Case Summaries

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Date is approximate.
Matter
- Gingles
Case
- Thornburg v. Gingles
U.S. state
- North Carolina
Collection
- Case Files
Taxonomy
Identifier
- 0d7555a9-dc92-ee11-be37-6045bdeb8873
Cite this item

Case Files, Thornburg v. Gingles Working Files - Guinier. Case Summaries, 1984. 0d7555a9-dc92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c37de3ec-07a7-4213-a9b9-921c8886e99e/case-summaries. Accessed December 04, 2025.

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McCARIY v. HENSON 1135
Cltc a! 749 F2d I t 3'4 ( I 9E4)

htsActoflg6s,s2etseq.,asamend.dismissaloftheconstitutionalclaims.The
42 u.s.c.A. s 19?3 "t 

.;;l'' -- 
- 

plaintiffs also alleged' although they did

not further press the contention' that the

If Sctroots c'$(r) at-large system abridged their right to vote

:S Findings of the district court,- that i" uiJ"tio" of the Voting Rights Act, as
'fborteenti and Fifteenth Amendment ,.uni"a in 1982' The disirict court did not

rfOt" had not been denied' 0.":11.."^:I 
"*pr"*fv 

address this claim, but its find-

ffi system for election of school board il; J;; ln"t tt " 
at-large system has not

tsult ". had not been created ot .*?tn: hid a discriminatory impact on black vot-

lin€d with discriminatory intent and that ers. Accordingly, we affirm the dismissal

isre had been failure to proveJhat t{tFT oiit " 
Voring Rights Act contention'

[ffi*U:i#J;'Ti'ii,i#tn{, 
jr*:"lii],[*l;"T1i1tIi

l.Le", the voting Rights Act. Fed-Rules ,"ti"h seg or 7.1% are black' The black

iin.pro..nore 52(a), zi ui.c.l.' voting r"r!i*i-i':'T:"H*""?"1' *:i"*Tt:Iflffifil ,fr?:s1 ; :;;.}t*i;i I'i po'tion 9l t[". District' bordering the

' j{ 42 U.S.C.A. s 19?s. Lt ."+; U'S'C'A' Red River' The District was formed in the

, bostA.ends. 14, ,.s. 
'' =u oo''' 

t"t" tgoo'. bI^:1:::-.,1,."^" consolidation of

I
!
a

s' "' -vr 
several separate districts'|;,

r l:l

I C,ornett, Echols & Biard, Leighton Cor' Only two black candidates sought elec-

rs paris, rex., ror Jirfi.'tr-"#"'ffi *H"I 
,Xi,l"Tl"l.Iilf;"i; lHrt'n:

I Eenslee & Ryan, Donald -9: H^"nt'""' tgZO. In 1980, Geneva Bailey, a black

llvia p. Ryan, Austin, Tex.,. M_,*.", Y*"1 woman, was appointed to fill a vacancy on

Itlor, Tex., for Henson, et al. & N' ['emar if,"-il""a. h^tSgt she was elected, but,

lD' 'rt "r, 
.t'" ran for re'election in 1981' she

+ Aooeal from the United States District was defeated'

ffi tot the Eastern District of Texas' Bhck voters register and vote in lamar

^nr n Coonty without hindrance' as each plaintiff
Beforc CLARK, Chief. Judge, GOLD' [riiiila, and rhere is no hindrance or ob
IRG and RUBIN, Circuit Judges' stcle to the candidacy of black persons for

ALVIN B. RUBIN, Circuit Judge: the Board' Neither the District nor the

u - - . Board has discriminated against black stu-
Bleck voters contend that their vote has i^-." i. nrnvidins educational services.t Bl"q vohrs contend thaj.lhet: "": lT dents in providing educational services.

!a diluted, in violation of .th".,tooY^11:1 if," dropout rate for black students is

X4 frfteenth amendmentsi Py 
th" "f'._tl:l con.iaer"Uty lower than for whites, and on

f rhool board trust€es at large and seek )u^ ro*,o Assessment of Basic SkillsI fooot boand trust€es aL rarxe auu DsE^ the Texas Assessment of ljaslc DKurs

r..ffi*,,k;ffi:,,ffi ffiI J,r,*T liiieii i";,, brack students perform signif-

t lrurar county, te*"r, b€ elected from [T1'"fft[lr:m. 
ttit;$"ffit X"ffi

t3bmember districts. The district court ;;; b";. appointed to- advisory commit-

-hnd *rat the at-large systel. had not ;;" ; asri.f tne Board of Trust€es in

Hmf nfTfTri"lflffi*'m ::]l-;;;;; and riscar poricv deci

hiLr;;;;;;;; 
"vrt 

," operated ro s,ons'

ffi ;i"il;*l"ir"'in* it had a discrimi- /Tt " oirtict has, since tgi5, made signif'

rbry impact F"d.d.C;p. szt"l forbids t/rci"tefforts to hire more,H".:}:::i:I
, fr,'J:'Iffi nlil;L" of this nature on- "*-in 

all levels of School District emplov'

i L;;il;'h:il":''ilri 
"*n"oo.' 

so "'i't' f{"d"lt: t Tljl"*. Ii"l,l';
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GILBERT V. STERRETT
Cite aE t00 F.2d 1388 (1175)

r393

12) It is clear that none of the find-
,-o.-of fact should bc set a^side as clearl)'

"rion"or.. 
See F.R'Civ 'P' 54a)' There

6ay, ho*erer, be some question as t<r

it". .rffici"ncy of the findings, specifical-

rs &s to u'heLher the district court con-

.ia"r"a the 19?3 plan in the light of the
-past 

history of racial discrimination in

ballas CountY'

This appeal is not from'the opinion of

the district court but from its judgment'

the nature of the evidenti-

ary findings sufficient and appropriate

to support the court's tlecision

is for the trial court 1'o determine in

the first instance in the light of the

circumstances of the particular case'

!\,e holtl that there must trc

findings, stated either in the court's

opinion or separatell', u'hich are sufJi-

cient to indicate thc factual basis for
the ultimate conclusion "

Kelley v. Everglades District, 1943, 319

u.s. 
-415, 4n, 63 S-Ct. 1141, 1145, 8?

L.Ed. 1485.

Rule 52(b) provides in part that after
the entry of judgment a party ma]' move

the court to amend iLs findings or make

additional findings. See Wright and

Miller, Federal Practice and Procedure:

Civil S 2582. It does not appear that
such a motion u'as filed in this case'

The text writers emphasize that, in cases

tried u'ithout a jur.v- there shoultl tre no

formal barriers to aplrcllate revieu of

the court's findings. See Wright and

Miller, supra, $ 2581; 5 A' Moore's Fed-

eral Practice 1 52.11[4]' Indeed the Rule

itself Provides:
Whcn findings of fact are maile in
actions trietl bl' the court without a

jur1, the question of thc sufficiencl of
the evidencc to support the findings
ma-v thereafter bc raised whether or

not the part]' raising the question has

madc in thc district court an objt:ction
io such fin<ling* or has m:rdt' a motion
L(' arnen(l thetr or a m<'titrn -for .iutlg-
menL.

L'nrlr:r tht circu n:s'"irnccs of r'ht presenl

casr wt iriLiici: nt'sii:nific:rtlcr to tht.

l. This coun ernpio\ ec e sinrila; anall srs lrr I a)'i()r
89;

failure of the plaintiffs-appellants, to file
a motion in the district court for addi-

tional findings.

t3l On the other hand, findings
"should be construed liberally and found
to be in consonance with the judp;rnent'

so long as that judgment is supported by

evidence in the record." Zimmerman v'
Montour Railroad Co., 3 Cir' 1961, 296

F.2d 9?, 98; Blumenthal v' United
States, 3 Cir. 1962, 306 F'zd 16, 17' 18'

The findings and conclusions them-

selves are clearly susceptible of the con-

struction that the district court con-

sidered thc 19?3 plan in the light of Dal-

las Countl"s past history of racial dis-

crimination. The district court specifi-

calll' ruled that, "This court is of the

opinion that the 19?3 plan does not di-

tut tt," r'oting strength of black voters'"
Also in the constitutional test applied by

the district court (ante p. 1392) it is rec-

ognized that the apportionment plan '"!'as

subject to attack if it "would operate to

minimize or cancel out the voting
strength of racial or political elements of
the voting population" (language bor-

rou'e<l from Fortson v. Dorsey, 1965, 379

u.s. 4.33, 439, 85 s.ct. 498, 501' 13

L.Ed.2d 401). The district court's opin-

ion opted against "the adoption of a plan

which u'oultl presently dilut'e the voting
strength of blacks in the commissioner's

districts of Dalla-s Count\'." (ante p'

1392.) t

Thc district court took judicial notice

of the findingns of facL in Graves v'

Barnes, 343 F.Supp. ?04 (W'D'Tex'7972)'
aff'd sult nom. White v. Ilegester, 412

u.s. ?55, 93 S.Ct. %32, 37 L.&1.2d 314

(19?3). Those findings of fact state une-

quivtrcabll' that Blacks in Dallas, Texas'

han'. b"e., subject to blaternt discrimina-

tion and delimit the most salient aspecls

of that discrimination a^s it'pertains to
the political l)rocess. Tht'court also re-

ceir ed testimon\- atrout racialil tinge<i

camyraign "dirl1 t-ricks." the'effe'ct of
ISllrcL \'()1( : (iL t'arli''t' I)olla' ( ('Lln.l \
q.j1.,.:i,,'1;. ani. tn,. nuntir.r r.rf Iiia,''l' ulr'-

nir.-. :i:.., '.r- i:'..rr'r :t' :rl' :. r'tl, i:

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1-ll2 t08 FEDERAL REPORTER, 2d SERIES PLAT

blacks regir
elections, ?u
A finding ol

discriminatio
evidence in

Likewise
that the us

has tliminisl
portion of t
less some
that such
"conceive<l r

vices to ful
crimination.
403 u.s. 12

L.Ed.2d 3G

the bt:rck P

I is rlecre:r
stantiallY u

strength o.

increased.
recognized
creases in 1

from the
ment sYSt(

c:rses provi
criminator.
supra, 490
involved tr
pelling sig

"In Hor
of Supervi
45?) rhis
the existe
missible
must mai
either fin
mantler, ,

lines, or s
ly or oth
tionment
stances ot

ate to mi
strength
the votin
{85 F.2d
found thr
burden, :
the te B
Census (r

O.Wet
Court d
u.s. t,

508Fi

Minnesota State Senate v. Beens, 1972,

406 u.s. 187,92 S.Ct. 1477, 32 L.Ed.2d 1.

Since we find merit in appellants'second
contention, regarding the lrurden of
proof, we do not reach the other tw'o
points raised.

Allegations of dilution of minority vot-
ing strength are ngt new to this Court.
See Reese v. Dallas County, Alabama, 5

Cir. 1974, 505 F.2d 879; Turner v'
McKeithen, 5 Cir. 1973, 490 F.2d 191;

Zimmer v. McKeithen, 5 Cir. 1973, 485

F.zd 1.?P7 (en banc decision reversing 5

Cir. 19?2, 467 F.zd 1381). Following the

mandate of the Supreme Court in White
v. Regester, 1913, 412 U.S. 755, 93 S'Ct.
2332,37 L.Ed.2d 314, we have consistent-
ly recognized that "access to the political
process and not population (is) the ba-

rometer of dilution of minority voting
strength." Reese, supra, 505 F.2d at
882; Turner, supra, 490 F'zd at 193-194;

Zimmer, supra' 485 F.2d at 1303. Plain-
tiffs' burden, then, "is to produce evi-
dence to support findings that the politi-
cal processes leading to nomination and

election were not equally open to partici-
pation by the group in question-that its
members had less opportunity than did
other residents in the district to partici-
pate in the political processes and to
elect legislators of their choice." White
v. Regester, supra, 412 U.S. at 766' 93

S.Ct. at 2339. It is in the failure to
meet this burden that we find appellees'
proof fatallY deficient.

ln Turner we set forth a number of
factors drawn from lVhite and Zimmer
relevant to a determination of whether a
minority group actually lacks meaningful
access to the political Process:

"Among the factors entitled to consid-

eration are the continuing effecis of
past discrimination on the minority
group's ability to participate in the po-

litical process, the opportunity for the
minority group to participate in the

ztandidate selection process' the respon-
./ siveness of elected officials to the par-

ticular concerns of the minority group'
and the strength of the state interest
in multi-member or atJarge voting'

Furthermore, both White v. Reges-

ter and Zimmer recognized that the
presence of various structural voting
devices such as a majoritY vote re-
quirement, anti-single shot voting,
large districts, and lack of residency
requirements in a district or its geo-

graphical suMivisions may increase
the potential for dilution under a mul-
ti-member or atJarge arrangement.
Dilution, as with so many complex fac-
tual determinations turns on an aggre-

rgation of the circumstances." (foot-
notes deleted\ Turner, supra' 490 F.2d

at 194.

Consideration of the evidence below in
the light of these factors emphasizes the

dearth of appellees' proof. Neither the

record nor the district court's findings
indicates difficulty on behalf of blacks in
registering to vote, in choosing the polit-
ical party they desire to support, in
meaningfully participating in party ac-

tivities, in qualifl-ing as candidates for a
desired office, in participating in the

candidate selection process' or in partici-
pating meaningfully in any other portion
of the political process. The record does

not evidence a state policy favoring mul-
ti-member districts that is rooted in ra-

cial discrimination, nor does it indicate a
lack of responsiveness on behalf of elect-

ed officials to the particular concerns of
the black communitY.

The single glaring fact that no black
has ever been elected to a parish office
does not by itself support judicial nullifi-
cation of a reapportionment plan. It ev-

idences no more at the most than a poli-

cy of past discrimination. But the issue

hlre of course is not whether Rapides

Parish discriminated against blacks in

the past, but rather whether any debili-
tating effects of that discrimination still
persist. See Zimmer, supra' 485 F'%l .aL
1gOO. In previous cases such debilitating
effects have usually been shown by a

relatively large discrepancy between the

size of the black population and the

number of registered black vohers, Zim'
mer, supra, ,l85 F.zd at 1306, or between

the number of blacks registered to vote

in federal elections and the number of

t6|}
fr1l

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50' FEDERAL REPORTER, 2d SERIES678

was divided among the three other pre-
c incts.

In 1969, the Commissioners ('ourt re-
apportioned Anderson County' on the l.'as-
is of voter registration statistics. Each
new' precinct contained a part ,lt' Pales-
tine. llore significantly. the black con-
,:entrat.ion in Palestine was diced into
three parts, t,ach in a different nelv pre-
cinct. [n September, 1973, the Commis-
sionet's Court modified'its 1g69 di.strict-
ing, effective January l, L974, but pre-
sen'ed the fragmentation of the black
communitl'along the same lines.

L l, 2l Plaintiffs maintain that the
black vote in Anderson County rnas un-
constitutionally diluted by means of this
apportionment.:r The standards fol de-
cision in dilution cases are developed
primarily in cases dealing u'ith multi-
member districting. See e. 17., White v.
Regester, L973, 412 U.S. 755, 765-770,
93 S.Cr. 2332, 23:i9, 37 L.Ed.zd ;t1,1,

324-326; Whitcomb v. Chavis, 1971, .103

u.s. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363;
Burns v. Richardson, 1966, 384 U.S. ?3,
88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376,
388, Fortson v. Dorsey, 379 U.S. 4:13,

439, 85 S.Ct. 498, 501, 13 L.Ed.zd .101,

405; Turner v. IlcKeithen, 5 Cir. 1973,
490 F.2d 191; Zimmer v. l,IcKeithen, 5
Cir.1973 (en banc),485 F.zd 1297.
But

we have no hesitation in applying
Ithose tests tol measure
the constitutionality of reappoltion-
ment plans involving only single-mem-
ber districts. [n each instance, we

3. In Ilos':rrrl v. .\tlums. i-r (]ir. 19?2. {53 f'.ld
{55. -157-{ir8 rve reurgnizerl that

to tstablish the cristence of a (onstitution-
ally inrpernrissible rerlistrir.tiug 1rlun, in the
lbscnce of lrralupportionrntnt, pl;rintiffs
nrust milintain the burrlen of proving (l)
rt rll' iilll.v nrotivnterl gorr.r'nrunrler, or a
plrrn rlrurvn:rlong rar.iul liues, \\'right v.
Ilor'kofeller, 1l)6-{, 376 I-1.S. 59. r.i{ S.('t.
(iO3, 11 L.Fll.:.Il Jl!; (ionrillion v. Light-
foot, llXio, 36{ tl.S. 339, st S.('t. 1:.15, 5
t,.Erl.:ld 11O: Sinrs v. Iluggett, \I.I.).llu.
llxij;, :l{7 l'.Supp. 96, or (2) that

rlesigncrll.v or otherwise, a In I
. lJrlxlrtionment .sr.henre, unrler the

circumstances of a lrarticular case, wouLl

are re(luired to determine the same
que-stion, rvhether or not there has
been an unconstitutional manipulation
of electoral district boundaries so as
to minimize or dilute the voting
strength of a minority class or inter-
est.

Hou'ard \,. Adams County Board of Su-
perr.'isors, 5 Cir. 1972, 453 F.2d l5S, 158
n. 2. lVe recognized in Zimmer v. Jlc-
Keithen, supra, 485 F.2d at 1305 that
"[tlhe Sr.rpreme Court has identified a
panoply of factors, any number of which
ma1' contribute to the existence of dilu-
tion." Some of these are applicable in
their detail only in the context of multi-
member districting. The most signifi-
cant and general factors also obtain in
cases such as the matter at bar, how-
ever, rvhere the dilution of a racial
group's voting strength has been ar-
ranged by shifting single-member pre-
cinct boundaries. Thus,

[w]here a minority can demonstrate a
flegal, customary, or practical ] lack of
access to the process of slating candi' /
dates, the unresponsiveness of legisla'y'
tors to their particularized interests. s
tenuous state policy underlying the
preference for Ithe established] dis-
tricting, or that the existence of past
discrimination in general precludes
the effective participation in the elec'
tion system, a strong case is made'

. The fact of dilution is estab'
lished upon proof of the existence ol
an aggregate of these factors' The

Supreme Court's recent pronounce-

r)l)ernte to rninimize or calrt'el out tllo vot'
ing streugth of raeial or lrolitit'al dlomelltl
of the voting lx)t)uldtion." lJurns v' Ili"h'
itrtlson. 19()6,38.{ U.S.73, SS, r€ S'('t'
l:36, 1J9{. 16 L.tit.:ld 3?6. ^\cc \\'hit'
.onrb v' ch:tvis, lC?t, {{)3 t's' l:'l{' l{3-
1{-1, t{9. 91 S.('t. 1}J58. J9 L.ril.::d :lrt}

-let'ord, Zirntner v. IIcKeitlten, rupra. Thtra
t$'() ('rrteg()rios of invtlirlity rtro, of rt'u6"'
not muturrlly exr:lusive. \1-e uced tlot t't'
llore Itere the e\tellt of their overlup in rtn'
gle ntember rlistrict,'&ses sur'h as that nt

lrund ; :llttl u e pretermit r:,rttsirlerrrtioo or

rvltethcr Gomillion u. Lightfoot slulle s utlru

resolve tlris orse.

ROBINS

ment in \l'ht'
demonstratt's.
factors need ttr

obtain rc'lief.

/d. Sce nl.so Tur
1973, 190 F.:d ll

t3, f l These
conclusion that
correct in ruling
Anderson Countl
diluted under the
apportionment.
sufficient evider
trict court's t'inr
but realistic rval
the black commu
ty "continue's to
of oppressive an
islation and raci
ally in the State
Regester, lsupra
rioners Court ol
been generally u
and interests o:

. ." Sp
the record incluc
ration in public
in other public f,
mary dismissal
home demonstral
of that agency (

juvenile officel
o( his previous
ilf in response t
nif icantly, rvhilr
rlome recognitior
Board politics,
elected or appoir
rppointed by thr
to any board or
al\ Leflore C,
Comm'rs, su.pr&,
v. llcKeithen, .s

lg5: Zimmer v
F.2d at 1306.

The most cru
Eent of the C

l. The rlivision orluite r1iJ6g1pn1 1trrl v. ^\,lanrs (.r
P?a.



ROBINSON v. COMIIISSIONERS COLTRT, ANDERSON COLTNTY
('itr. trs .'i()j t' ::d riTl ( 197+)

5. Sce \\'hite v. Ihgester, rupra, l7J fi.S. at
769, 03 S.Ct. rt :.t3{1, 37 L.Erl.lld ut i}26.

679

ment in lVhite r'. Regester, supra, the black minority's equal access to po-
demonstrates, however, that all these litical participation, however, remains
factors need not be proved in order to the gerrymander of precinct lines so as
obtain relief. to fragment what could otherwise be a

t* sce also Tur.ner v. IIcKeithen, 5 cir. cohesive voting community' Despite the

lg?3, {g0 F.zd 1g1. 1g4. gross population disparities betrveen pre-
cincts. no redistricting in any form was

tJ, {l These standards compel the effectuated until 1969. when blacks in
(.onclusion that the district court lvas Anderson Crounty finally organized and

correct in ruling that the black i.ote in elected Plaintiff Smith the first black
.{nderson County rvas rrnconstituJionally Democratic Precinct Chairman-and,
diluted under the Commissioners (.ourt,s thus, the first member of the policy-
epportionment. To begin rvith, u-e find making County Democratic Executive
rufficient evidence to support the tlis- ('ommittee-in modern times. Compare
trict court's findings that in a genL,ral lloore v. Leflore County Bd. of Election
hut realistic way the voting strength of Commissioners, supra, 502 F.2d at 624.
the black community in Anrierson Coun- Under the County Commissioners' 1969

ty "continues to sufter flom the effect apportionrnent of Anderson County, the
,r( oppressive and restrictiye 

'oting leg- County rvas divided into precincts by
:slation and racial tliscrimination gener- two lines, running roughly north-south
ally in the State of Texas. See lVhite v. and east-west, and meeting in Palestine.
Regester, lsupra, and thatl the Commis- Were these lines straightened out, they
rioners Court of Anderson Count-v has rvould have left the black community of
tr+en generally unresponsive to the needs Pdlestine compact and cohesive in the
and interests of the black community southrvestern precinct, number two. As

. . " Specific demonstrations in the lines were drawn, however, a single
the record inelude maintenance of segre- wedge intruded from precinct one to
{ation in public schools until 196?, and capture the central third of the black con-
rn other public facilities until 1g63, sum- centration, and another peninsula ex-
mary dismissal of the county,s black tended from precinct four to draw off
home demonstration agent. and abolition the westernmost third; thus only one

':f that agency office, appointment of a third was left in precinct two.{ This
lur.enile officer,*.ho had been forced out dismemberment of the black community
'r( his previous position as deputy sher- in the 1969 redistricting-along lines
rff in response to a racial incident. Sig- substantially maintained by 1973 adjust-
nificantly, while blacks ha\.e achieved ments effective January 1, 1974-had the
(ome recognition in palestine and School predictable effect of debilitating the or-
Eoard politics, no black has ever been ganization and decreasing the participa-
"lected or appointed to county office, or tion of black voters in county 8:overn-
alrpointed by the County Commissioners ment. Plaintiff Smith was not reelected,
,?."n, board or commission. See gener._ and, of course no black has been elected
ally Leflore County Bd. of Election to any county post since. The district
('omm'rs, supra.So2 F.Zd aL624. Turner court determined on this record that the
v. llcKeithen,'s4pra,4g0 F.zd at 1g.t- County Commissioners' apportionment

].tli Zimmer u. ^lt.i<"itt"n, sap.r.a, 385 was designed precisely to dilute the black
F-.2d at 1306. vote and, mindful of the trial court's

- 
rl" .o.t cruciar and precise instru- H:if:l 1ff3',H:XTiTi:"t'iJii#ment of the Commissioner's denial of clusion as clearly "rr;;u'r;;.-;Zf. G";-

l' 'fhe rlivisi0rr of tlre rrrurrty lrere u.rrs tlrrrs{ulte rliffglgal frorn th:rt ;rpproverl irr llow-lrd. v. .\rlanrs ('ount.v Iil. rrf Srrlx,rr.isors, su-



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1268 559 FEDERAL REPORTER" 2d SERIES

the Act unconstitutional. It then stayed

any action on a remedy pending the out-

come of this aPPeal.

Much of what we said in David v' Gati-
son,553 F.2d 923, 9?5-9A3,930-931(Sth Cir'

1.9??), is directly applicable to this case'

The discussion there forms a necessary

backdrop for our decisioh today' In order

to place that analysis in this file, but to
avold burdening the Federal Reporter with

repetition, we incorporate here, in an un-

prUtitn"a footnote, a substantial portion of

that opinion.l

U,2l As enunciated in David v' Garri'

,rr, SSg F.2d at 928, the correct approach to

a claim of dilution is to examine the situa-

tion in light of the factors identified in

Zimmer v. McKeithen, 485 F'2d 1297 (5th

Cir. 19?3) (en banc), aff'd per curiam on

other grounds sub nom., East Carroll Parish

School Board v. lrlarshall,4% U'S' 636, 96

S.Ct. 1083, 4? L.Ed.2d 296 (1976)' A conclu-

sory finding by the trial court that there

has been dilution is not sufficient' See

l,levett v. Sides, 533 F'2d 1361 (5th Cir'

19?6). It remains therefore to address each

of tire factors through which a plaintiff
may show dilution. In doing so we keep.in

mind that while no factual finding may be

, disturbed unless clearly erroneous' the fail-
( ure to find facts necessary to support a

result is an error of law'

Slating

The first factor which must be addressed

is minority access to the sla'ting process'

The district court made no findings with

respect to the existence or absence of

screening organizations, petition require-

ments, or other barriers to minority group

members. It did discuss a number of suc-

cessful and unsuccessful black candidates

for public office. The very fact that there

hare been such candidacies is "suggestive of

the fact that there is minority access to the

nomination process." David v' Gatison'

553 F.2d at 929. The court did not, how-

ever, make any findings concerning the

process through which one may become list-

ed on the ballot, and it is the rtbility
blacks to get rin the ballot which is the

of the inquiry as to slating. Ahsont

findings, a pausity of black cantlirltte rn{
be caused by a multitude of faeton
lhan an unequal slating process anrl a rlilrt:
ing at-large system. ,/

/
Responsiv'ene r, './

t3,4l The analysis of the resyrnsiven{
question requires a consideration of tll 1

distinct problems. The first is the provisit
of governmental services to minority ctrtl '

munities. This is the area in which citizen
most typically rely on their locul govetr.

ments for equal treatment. Yet the rlistrfut

court made no findings whats<rcver ol
whether the Montgomery County Commb

sion was presently providing equal servicl
to all communities within the county. Ttr
only evidence concerning county stn'ict
related to the refusal of the Commission tl
build a football field at a school when rl

was an all black junior high school with m

football team, followed by the constructio'
of such a field when the school q745 sefivelt
ed to an integrated high school with such I
team. This alone seems insufficienL

tsl The rlistrict court opinion rlid catalol

the long, and certainly undisputed histoty

of official racial discrimination in Alabcto'

in general and Montgomery County in f^
ticular, and took judicial notice of a rcn'
of desegregation suits concerning Moob

gomery recreation facilities, buses, bus.tcF

minats, libraries, and museums. In each d
these cases, however, the County Commr
sion itself was not a party, and there it 1
indication that the matters involved wcil

within its jurisdiction. Instead, in each to'

stance the lawsuits were concernud *'?
conrlitions existing within the city of Mont'

gomery and the activities of the cttt

loru.nrn"nt. Such facts cannot pn)Pdd'

b"u. on the "governmental servicr:s" rlF

sponsiveness inquiry here since they (lo. no'

deal with matters within the control 'rf 
tlt

County Commission.I

i

i

I

i

I

I
I

l. Unpublished footnote.

.t
t'
ihl*I
,l.r'

i.l '

F.'l:

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tl)tt't"

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Lb.

HENDRIX v. JOSEPH
Clte as 559 F.zd 1265 (1977)

1269

The second problem faced in making the used by the courts to determine how skepti-

..rJn.iu.nors analysis "concerns the distri- cally a given at-large system should be re-

tuiion of municipal jobs and appointments garded. In our federal svstem states can

ro various boards and commissions." Da"'id choose those techniques of electing officials

r.. Garrr.son, 553 F.2d at 929. In this regarrl. which suit their local requirements. The

'"he district court noted that arioption of an at-large scheme in a state

[t]he Commission is currently under court *.hich has not often used such a mechanism

o.d". to end racially discriminatorl' hir' casts the scheme in a dubious light and

ing practices. Sims v. Montgomery indicates that it may be a tool of minority
Ciunty Commission, CA. No. 3?08-N vote dilution.
tM.D.AIa. !Iarch 22, 1973)

[)ilot only are blacks significantly under-

represented on the County's pa1'roll. but
. those rvho are emPloYed are

assigned primarill' to lorv'paf ing clerical

and laborer positions. The plaintiffs' evi-
,lence also demonstrates that blacks are

significantly underepresented in ap-

pointments made by the Commission.

[6,7] Unlike David v. Garrison, the hir-
ing disparity here is indicative of some

measure of lack of responsiveness since the
prrcrequisites to a hiring discrimination law-
suit include a showing of intentional refusal
ro hire otherwise qualified persons by the
defendant Commission. This finding alone,

however, is not enough. County jobs rlo not
necessarily need to be allocated proportion-
atcly to every group in the electorate be-

-fore a local governmental entity is deemed

,' to be responsive. Hiring disparity is rele-
vant at all only because it is suggestive of
'.he fact that the Commission believes it can
wat black citizens unequally with impuni-
ty. Such a belief, of course, is in turn a
tymptom of dilution.

As is true of all the Zimmer factors, the
inquiry into governmental responsiveness is
derigned to test whether an at-large system
hrr made elected officials so secure in their
pocitions and has made the black vote so
unnecessary to success at the polls that the
dry'today governmental services provided
to, and input secured from, all segments of
thc electorate as a matter of course are
being withheld from the black community.
T'he allocation of jobs is only one piece of
tbe puzzle.

State Policy for At-Large Drstricts
t& gl Although motive is not a direct

que in the dilution context, this factor is

In this regard, the trial court observed:

"[T]he multi-member district plan cannot

be said to serve any historical policy in

Montgomery County. Prior to the enact-

ment of the plan challenged here, the Com-

mission had been elected from single mem-

ber districts in which candidates were re-

quired to reside." The manifestation of a
state's policy toward the at-large concept

can most readily be found in the sum of its
statutory and judiciai pronouncements.

The at-large scheme in this case supplant-

ed one that was grossly malapportioned

among single member districts. When the

state enacted the statute rvhich converted

the Montgomery County Commission elec-

tion to the at-large system in 1957, it was

worded to apply to counties having a popu-

lation of not less than 125,000 nor more

than 225,000. At that time the only county

fitting that definition was Montgomery

County. According to the 1950 census, the

next larger county, Mobile, had a popula-

tion of 231,105, thus just escaping the force

of the act. When the results of the 19?0

census became known, however, it appeared

that Madison County had a population of

186,540 and thus would be covered by the

at-large statute. In 1971 the Alabama Leg-

islature, by Act No. 1662, amended the stat-

ute to limit it to counties having a popula-

tion of not less than 150,000 nor more than

180,000. At the time Montgomery County

had a population of 16?,?90 and remained

the only county in the state affected by this

particular statute.

On the other hand, Montgomery C,ounty

is not alone in Alabama in its use of the

at-large method of choosing County Com-

missioners. Some 35 of Alabama's 67 coun'

i

t
t;
l'
I



559 FEDERAL REPORTER, 2d SERIES
r270

ties use the at-large system to elect Com-

,ni..ion.^. See Eeese v' Dallas County'

loi p za 8?9, 882 n. 2 (5th cir' 1974)' At

least one such system, that in Dallas Coun-

,rl ,tu,., back to 1901 when its enactment

.'"rf,i."t, have been tlesigned to dilute. the

uoi". of blacks who were thoroughly disen-

i.r".rrit"a by more direct means' Laws of

ffi;;; xo. szs (Fe!. 8, leol); se9 M:9!i
;;;;il", CountY Cumm'n' 535 F'2d 277

(5th cir. 1976).

There is nothing in the findings ol the

trial court which chooses among the inter-

t,*rii".. which coultl be placed on.this

l'irt" 
-oi 

uf f"i... With more than half 
. 
of

the state's counties using at-large votlng

ihu.. *orta appear to be some state policy

i"t"n "a. 
yei' ttre vigilance exercised by

the legislature to guarantee that the act

i".u u-na"t consideration remains limited to

Montgn*u.y County is rather curious'

Whether the state policy for multimember

districts can be characterized as "tenuous'"

*t i.t i, what the plaintiffs must demon-

strate untler Zimmer, remains an open ques-

t;r. The trial court is in the best position

to come to a conclusion as to the true mo-

tive un.lerlying the choice for at-large vot-

ing.

Does Past Discrimination Preclude Present

Ef fective ParticiPation

The virtually universal racial discrimina-

tiun,l,rLf, priuut" and governmental' which

nreviously existed within our jurtsdtctton ts'

uf .nrrr", unquestioned' Precisely because

;; ;;;^ within our Circuit can claim to have

Un* f."" of discrimination in the recent

Ir".i. r,o*"".r, a careful assessment must be

made of the still lingering effects on any

political sYstem scrutinized'

The trial court, in the context of its re-

*p"nrir""u.. tliscussion, made a thorough

,i.r"y of the systematic forms of racial

*egr"Lation which existed in the Montgom-

; ;;; during the fifties and sixties' The

i"'.t"rf ,luestiJn is whether that' discrimina-

,1" *".fra"s effective participation in the

"i".ri."f 
system by blacks today in such.a

*"v t,tt"t, ii can be remedied by a change in

electoral sYstems'

t10l The concept of lingering effects of

,rast riiscrimination was tleveloped in Bra-

ilr, ,. nrpi,les Parish Police Jury' 508 F 2d

1109, 1112 (5th Cir' 19?5):

tTlhe issue here of eourse is not whether

Rapides Parish discriminated against

btacks in the past, but rather whether

any debilitating effects of that discrimi-

naiion still persist' See Zimmer' supra'

+sS f.Za at igoO' In previous cases such

aoUitit,rting effects have usually been

shown by a relatively large discrepancy

between the size of the black population

and the numtrer of registered black vot-

ers,

The district court here found that only

i.m ,t eligible black voters are registered

while 83.37o of the eligible whites have reg-

iti"."a. This clearly implies that although

the population is 36% black, the percentage

oi- tu*.. who are black is significantly

.rnattut. When the findings of the court

that the voting in Montgomery County ts

polarized along racial lines and that no

iiu"t t u. 
"uu. 

b""n elected to the Commis-

sion are also considered, it would seem ap-

oarent that the system suffers from linger-

ing 
"f 

f..t. of previous racial discrimination'

g;t, ttti. cannot be the sole criteria for

changing a Political sYstem'

The Other Factors

It is apparent either on the face of the

.".ora oi 
^f.o* the district court findings

,iui ,t"." is a majority vote requirement

and that the place-on-the-ballot system pre-

cludes single shot voting' These facts sup-

oort the plaintiffs' It is equally clear thar

ih"." i. a geographical subdistrict requrre-

.."t, *rtii .it. in the defendants' favor'

w;'k";; that the district contains 167'000

no..on.. but we rlo not know if this is a

l'1or*u-ai.t.i.t" in the context of Alabama

elections.

The Aggregate of the Factors

tlU In cases such as these' all.fittlf
*r.i'U" considered, and those which imPtY

a nondiluted system cannot be ignored' We

in". fru". a system in which candirlate slal'

i.r"i.'., f"^i arguably open' but in which

there are Iingerinl
nalion, and in wl

state policY for m
lhe commission's
needs of the minor

also have the offsr

place voting sYste

district requireme

With the burde

plaintiffs, there
found, in the light

the district cour'l

conclude that the
was constitution
less, the serious c

son had for the

system, as mal
makes it aPProPr
further Proceedir

In each of the

court is being asl

state-created ele

piace it with a
because of suPPl

ties. Before en

interference wi'
been regarded al

and detailed fint
courts have thu
must be made.

ings that "the g'

and that "no bla

substitute for s

balance that ot

federalism is ,

judgment of tl
and this cause i

ceedings consisl
in David v. Gat

cases decided
case by the dir

VACATED ,



f ,'&2

@,LL{gy D-r>
(54

p.aso

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esap)tue

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/MfficMnY€ruot)
?k.22 Oa> lb bapr

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6*/@t,rls ).on/, @ ?Dary-ekdUz /brr- z-r uzcoqiJ.>ZaDa''

u//P nil u.rDd*^l<t-- ,r*ffalltt uzloss
W yurw)b rc so <lov aa {o perruDb

o9 o n1,,1 on<-}drzsc/,ti(roo

% *Za {* ).o- z4z. rzZa&zaasupph
aK>{r-,oit -tlrZL' Lhe ry q^f- @o9*r-ff't -,,-
ts vncc>nsl&ufro,rA . 4 tJTe 

te4qfr 
;trI,

tJLJDe- a-h-c- f-g^dutq= dt- tlh* a-u4rA)

%*- k,ftn7-p/:Pa:-fpfi
C*"?ndlooc. n {Zru Ll)ztqfr,nq an}'b'al c.n.,tnq
egatl .9-th",* t_S c-ID 9.u- so th} I

a-;>..,=5, n, ]o o=-\ o t \, -6h ;xa 
? q r" y*--

"?-t[-f-.6J" *",LL,a- v,"dd,-' ,. ttlo.
uAUta' 4, UryL F.b"v3 ts orbr no-rtl1
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&q- On ,=ruor-b -bhe-b,-. 
=h allL onZ,r4T

p ast



[of dilution]
anced by [a]
f large dis-
irements, [c]
rions and [d]
large candi-
r geographic
lution is es-
existence of
rS

factorc need
btain relief.
rs suppliedl.

hese factors
tinguish be-
nocuous at-
in an area

lree to slate
r particular
Lheir repre-
; that the
lrge system
ent right t<t

trict is ex-
required to
:luded from
nore reason
,tical about

verv much
61 (sth Cir.
I a finding
rrther find-
" tests. In
ught to re-
itredl]' im-
cur second-
on, to-u'it,
less of pur-
:el thc r'ot-

the Citl-
;es lxrinted
re ultimate
lin<lings of
hold mere-
impl.i d<les

.ed voting
rgh." 533

rurt in thc
the same

DAVID v. GARRISON g}g
Clte as 553 F.2dS2g <t577\

language 8s that used by the trial judge, characterized hy dilapidated housing, poor
and found inadequate in l{ev'etl. We note enforcement of the city building codes,'and
that conclusory findings as to each of the despite recent efforts b1' the .it.v to up-
Zimmer criteria are no more helpful than grade the streets in the area,- inferior
an overall conclusory finding of dilution. streets." The court made no findinpJs as to
The factual predicates for such conclusions which of these services or conditions are the
must be clearly stated by the trial court. responsibility of the City' Commissi6n hou.-

The first factor which must be addressed ever. More importantly, these findings are
is minority access to the slating process. incomplete. They neither accept nor reject
The district court made no findings as to the undisputed documentary evidence of-
the existence of any organization o'hi.h ,"u. fered b}' the defendants in the form of a

involved in the slating process or the meth- comprehensive master plan for the city.
od of slating, if any, which forecloses mi- That evidence purported to shou' that the

nority participation. It did discuss the can- black section of the city had better drain-
didacy' of Inez Tims, a black, for City Com- age, fire protection, neighborhood school

missioner. The presence of Mr. Tims on the coverage and neighborhood recreational fa-
ballot is suggestive of the faet that there is cilities than the most affluent white section

minority access to the nomination process. of Lufkin' It also concludes that the black

There is no indication that any other blacks section possessed equal qualities of police

have since sought election. Tire lack of any protection, library and medical facilities, al-

findings or discussion of this point may though health services in the black area

indicate that the district court failed t; were slightly inferior to the white section.

consider this factor, which it was obliged to Further, five of the citl''s ten parks were

weigh in coming to its ultimate conclusion. located in the black residential area, and in

Any consideration of access to the elec- 
the last five years the city had expended

tion process must necessarily concern itselr fli:i.:t:,:*tlffil',:t:mffiJ,i$l,?li:
with the size of the electorate. The time, This percentage is greatly disproportionate
money, and number of persons needed for a to the compar"tiru Iir" of the black area to
campaign in a small electorate, and the the rest of the city. Clearly, findings on allability of the vot€rs to know the various
candidates with a minimum or errort, dir- :*'?fi1:::;::,J:tJfi:,:,""t-"1'r:1',::i::,/
fers so much from districts of large popula- of responsiveness.
tion and extended geographical area that
cases decided under one set of circumstanc_ The other facet of the responsiveness in_

es may be questionable guides to decisions 
quirl' concerns the distribution of municipal

under the other. In a small electorate, the jobs and appointments to various boards

plaintiffs must show facts that o'ercome and commissions on this subject the dis-

what would seem to be apparent-that can- trict court found that there are no black

didates with only modest support could policemen or firemen and virtualll' no black

wage an effective campaign in u.hich the citl' emplo-vees in Lufkin' There are no

merits of their candidacy cou16 be amplv findings' however' as to whether any' blacks

exposed to the voter.. 
*'' """"' uL orrrl'rr applied for these positions, nor as to wheth-

er any black applicary[s were qualifie<l for
The second factor concerns legislative re- the positigns ih-ey sought. Furthermore,

sponsiveness to the particularized needs of there is no finding as to u.hether or not
the minoritl' group. There are two some- present emp)o.yees are long-term emplovees
u'hat distinct facels to this issue. The first with a lou. turnover, creating fewer'oppor-
concerns the provisions of municipal serv- tunities for black employment. finatty,
ices to neighborhoods populated b1- minorit.l' there are no findings as to ho\^- much con-
grouP mcmbers. on this subject the dis- trol, if anr., is exercised by the city. com-
trict court found that "more than any other mission in making these hiring decisions.
area u'ithin the citl', [the black area] is There is some question as to whether hiring



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1070 708 FEDERAL REPORTER 2d SERIES

electing a county Board of Commissioners
under the Fourteenth Amendment.T Al-
though Justice Whit€, writing for the ma-
jority, did not overule Bolden, the Court's
decision in Bqlens clearly represents a re'
treat from the plurality's views in that case.

The Supreme Court in Rogerc first noted
that the lower courts had correctly anticipa-
ted the intent standard set forth in Bolden.
102 S.Ct. at 3tl7-78. The courts below
concluded that although the atJarge system
was racially neutral when it was adopted, it
was being maintained for invidious pur-
poses." I'odge v. Buxton, No. 78-3241, slip
op. at 4 (S.D.Ga.1978). Emphasizing the
deference to be accorded the District
Court's findings of fact, particularly re-
garding issues of intent, the majority held
that the District Judge's determination that
-the electoral system in Burke County was

/ being maintained for discriminatory pur-

I poses was not clearlv eg'oneorrs. -f02 S.Ct.
Vt gzzs-zg.

In marked contrast to the plurality opin-
ion in Bolden where the various Zimmer
factors relied upon by the lower courts were
singled out and discredited, the Court in
Rogen enumerated the lower courts' find-
ings consisting largely of Zimmer factors,
and endorsed a "totality of the circumstanc-
es" approach to the question of discrimina-
tory intent. Id. at 32?9-81. The Court
concluded that the District Court had based
its finding of discriminatory intent primari-
ly on the existence of. Zimmer factors, but
found this acceptable because the Court had
not limited its inquiry to such factors. Id.
at 3218. The majority then upheld the
combined signifieance of the follon'ing evi-
dence relied upon by the courts below as

evincing a discriminatory purpose in the
maintenance of an aLlarge system: (1) al-
though blacks constituted a substantial ma-
jority of the county's population, they were
a distinct minority of the registered voters;
(2) the existpnce of bloc voting along racial
lines coupled u'ith the faet that no black
candidate had er,er been eiected to the

7. Although the Complaint irr Roger-s *'as also
broughl under the Voting Righrs Aci- of 1965
and the Thineenth and Fifteenth Amendments,
the Supreme Coun in Rogers did not address

Board of Commissioners; (3) low black voL
er registration, attributable to pre-Votino
Rights Act discrimination in the form oi
literacy tests, poll taxes, white primarieq
and edueational discrimination; (4) erclu-
sion fipm the political processes genenllv
as evidenced by past digcrimination in dem'.
ocratic party affairs and primaries, lele
tion of grand juries, hiring of county e5.
ployees, and appointments to county-wide
boards and committees; (5) unresponsivs
ness and insensitivity on the part of elected
officials toward the needs of the black com-
munity, as evidenced by discriminatory pav-
ing of roads, a reluctance to remedy om-
plaints of school segregation and grand jury
segregation, and the Commissioner's tlle in
the incorporation of an all-white privete
school; and (6) the depressed socioeconomie
status of blacks in Burke County attribute-
ble at least in part to inferior education,
and employment and housing discrimine-
tion. Id. at 3279-81.

The Court in Rogers also approved tlre
evidentiary value of various characteristics
of an atJarge system which may enhanee
the denial of access to the political proes,
specifically, the large geographic size of the
county, the majority vote provision, the re
quirement that candidates run for a specific
seat, and the lack of any residency rcstric-
tions on candidates. Id. at 31ts0-€1.

Rogers v. Ldge restores the significance
of cirrumstantial evidence in determining
whether a discriminatory pur?ose underlies
the maintenance of an at large systen
Whereas Bolden appeared to requirc eome

direct evidence of discriminatory intcnt, 116

U.S. at 74, fn.21, 100 S.Ct. at 1503, fn. 21,

Roge6, recognizes that circumstantial evi-
dence may, in some cases, be insufficienL
Provided a court considen the existence of
Zimmer criteria as merely evidence of dis'

criminatory intent, rather than the ultimar
issue to be determined, it ma-v proprerly bast

a finding of discriminatorl purpose upon

such factors. Also. a ctru;'t clear"lv should

these claims, presumabh because its dectslott
in Bolden foreclosed suci'; aYenues absent an

allegation of actuai interference u'ith tlre regts'

tration or voting processes



-,M'L=-s re82

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1552 73I F'EDIiRAL REPORTT]R. 2d SERIT]S

w'hich blae ks ran against ',vhites.i One

black was electeri County (ltrrorl€r in l9i'3
by rvinning the Democratic llrirnarv bv a

nrargin of 3,?19 to :l,ti1? over a rvhite cirndi-

rlate. Another black w'as appt-,inted to the

school board.r

On -Lugust 15, 197? a group rlf bhicks

filed a class action rrllegine that )lrlcnf i
County's irt-large svstem ft)r electing the

county' comnlissiorLand schrlol btliirtl unlllr'-
fully dilut"etl the voting rights of blacks.

One 1'ear later. the United States filed sLrit

under the \',tting Rights -\ct.e The crlttrt

tried the crlse ()n ()ctober 2;j-25' l1)?S irnti

.lanuary 1, 19?9. On .\Pril 13, 19?9 the

district court issued an opinion and etitered
judgment lor defentlants. The court eon-

cludecl thtrt the plaintiffs hati not proved

that the at-large st-stetlr rvlts Ireing lttain-

tained rvith a discrirlrinator)' llLtrl)()se 1ti1)

F.Supp. at 1180.

The United States appealed to the Fifth
Circuit. On April 22, l9lJ0' the United

States Supreme Court decided City o1' 'llo'
bile u. Boldez, 1980, -116 U.S. ;;. 100 S'(lt'

1.190. ti-l L.Ed.2d'1?. -llobile t'. Boitlerr

held that in vote dilutiorl cases r.liscrinrina-

tor-r- intent must be shown to establish a

constitutional violation, anrl it raised doubts

about the methoclology used by the Fifth

Circuit in vote dilution cases. This Court

accordinglv remanded the case to the tlis-

trict court "for further proceedings, includ-

ing the presentation of such additional evi-

dence [as] is appropriate, in light of l.llobile
r. Bolden )". L'nited States t. )larertgo

County Commission, )'lo. 79-2i25 (5 Cir'

Aug. f), 1980), Record'l'18.

7. The rccord is not clear as to horv n-rany black

candidates actually ran for countv olficc during
this period. Some of thc 73 counti'rvide elcc-

tions idcntified rvere elections [or statc or na-

tional offices; moreover, a single candidacy

might be coullted sercral timcs if therc rvere

mu-ltiple elections (e.8. runoffs) for the samc

office.

E. Both rvere apparently rcelectcd uithout oppo-

sition afrer thii.ot" was tricd. !lricf ft-rr thc

Appellees at 25.

9, The complaint alleges that the et'large election
svstems foi the County Commission und Board

t)n )tay 20, t9l31, the Fifth Circuit decid-

ecl Lotlgt' r. Bu't'tott, a Cir.19tl1' ti39 F.2d

l3;8. t,ott1le hel'J, that llobile t'. BolLlen'

r.Ilres rtot require r.lirect evidence of rliscrimi-

natorv intent but stated, "An essential ele-

nrent of a prima Jhr:ie <:ase [of unconstitu-

tit.rnai vote rtilutionl is proof of unrespon-

sir-eness b1- rhe public btldf in tluestion to
the group clairning injury." tj:ll) F.2d at

I:r?5. ()n .Iull; 30, 1981, the district cc-rurt

in the liresent case again orclered judgment

for,lefenrl:rt1t5 r)11 the grounrl that the

plaintitf,s had not e-stablished unresponsive-

ness. The court rejected the Urtiteti States'

offer to present :rdditirlnal evidence. includ-

ing evitlence concerning the reasons for the

:rtloption of at-large elections in Marengo
(-ount1', because it concluded that this ev!
rlence "ivoulrl atld trothing" to show unre-

sir,rnsiveness. Rectlrrl 199-50l.

tl.2l The United States again appealed,

and u'e granted its motion to hold this

appeal in abeyane e pending rer'ierv of
Lotlge r. Bttrtrttt (sub nom. Rogers r'

Lol11c I by the United States Supreme

Ci-iurt. On July' 1, 1982, the Supreme Court

aft'irnretl the result in Lodge. but held that

u11t'g-*ponsiveness is not an e-*sential ele-

rnettt of a (:llIim rlf uncon-qtitutirlnal vote

dilution. Instead, the court helr] that "un-

resprinsiveness is an important element but

onlv r)ne of a number of circumstances a

c()urt shoulcl cotlsider in determining

whether cliscriminatory purpose may be in-

ferrerl", Rogers * Lodge, 158 U.S. at ti25

n. 9, 102 S.Ct. at 32f10 n. 9.t')

The 1982 amendment to -cection 2 of the

Voting Rights Act became effective on

o[ Education violate the Fourtecnth and Fif-

tecnth \mcndments and -12 U'S'C' SS t97l(a)
and 1q73. Jurisdicrion rvas predicatcd on 1-8

U.S.C. qS 13'15 and 2201 and 12 L S C'

95 leTt(d) and I973j(f).

10. trr thc light of Rogers v Loclge it is apparL'nt

that the disirict court's rulings on intent must be

\aeated. Unrcsponsiren!'ss is not the cssclrtlal

factor in shorving intctlt that the district court

held it to be. Fu-rthermore, the rccord demon-

\trares significant ullrcsponsi\eness to black po-

litieal arid functional nccds on the part o] tne

Sehool Board and thc Board of Registrars' 'Sac

parr VB of this opinion. And the district courl

June 2

96 Stal
scope (

only tl
ited by

any pr
manne
abridg
accoun
5 l9?3
ed). I
Sess. I

Cong.
portl.
the an
and hc

Countl
tory "l
argue
should
sectiol
claims
stitutir
distric

"[A.
the tir
ing so

there
histor
mond
7I1, S

.188.

Unite

erre(
cedu
1935
fran,
at-la
their
at-la
year
tion,
873.
tices
clud
crirr
not
NAA
Cir.
four
clus
inF



UNITED STATES v. IIARENCO COLiNTY COII'N
Clre as 73t F.2d f 5.|6 ( l9t4)

r553

June 29, 1982. Pub.L. No.9?-205, sec. ri, u.s. (r cranch) 103,2 L.Ed. {9. in which
96 stat. 131, 135. congress redefined the chief Justice Marshall stated,
scope of section 2 of the Act to forbid not ,,It is true that in mere private casesonly those voting practices directly prohib- between individuals, a court will andited by the Fifteenth Amendment but also
any practice ,,imposed or appried .. in a :,H:,# j'.n}f,tii,,:Tl ;?i*ffl[manner which rcsults in a denial or
abridgement or the right . to vore on ;f ij'?J:t:::,"tH,:3lj:J.t o:T';
account of race or color . . . . " 12 U.S.C.A. court must decide according to existings 19?3(a) (west Supp'1983) (empllasis add- Iarvs. and if it be necessary to set aside aed)' see S'Rep' No' '11?, 9?th cong., 2d judgment, rightfur rvhen renderecr, butSess. (1982), reprinted in 1982 U.S.Code which cannot be affirmed but in violationCong. & Ad.News 1?? [1982 Senate Re- of law, the judgment must be set aside.,,port]. The United States urges us to apply
the amended statute to the existing record 5 L'S' (l Cranch) at 110' The defendants

and hold as a matter of law that Marengo argue that "manifest injustice" would be

County's at-large system has a discrimina- done if the amended version of section 2
tory "result". In rlsponse, the defenrlants rvere applied here' We find, however, that
argue that the 1982 amendment does not or the iegislative history of the amendment,

should not apply to this litigation; that and the vital public interest in insuring

section 2 does not apply to vote dilution effective participation in the political pro-

claims; that the lg82 amendment is uncon- cess for every citizen' mandate our applica-

stitutional; and that the findings of tlte,r 
tion of the law in effect now.

district court are not clearly .r.on"orr. ,/ t31 In general, it is unnecessary to find
affirmative support in a statute or its legis-

II. lative history for applying it to pending
cases. A statute will be assumed to apply

"[A] court is to apply the law in effect at to cases pending at the time of its pas.agl
the time it renders its decision, unless clo- unless there is a "clear inrlication" that it is
ing so would result in manifest injustice or nol to apply. Brad,ley,,116 U.S. at 712_
there is staturory direction or legislative ?16,94 S.ct. at 2016-10lg. Here there is
history to the contrary." Bradley u. Rich- certainly no such indication in either the
mond school Board, lg?4, 416 u.s. 696, stature or its legislative history. on the
71L,94 s.ct. 2006, 2016, 40 L.Ed.2d {?6, contrar}-, the available evidence suggests
188 This principle goes back as far as that Congress expecterJ the amendment to
L'nited states 1,. schooner Pegga, 1801, 5 govern a case such as the one now before

erred when it held "that since the election pro- at-large svstem used in Mobile rvas adopted incedures in question were enacted in r92J and t9lr, rvhen bracks were ,lisenfranchised, but1935 when blacks had been cffectively disen- after a painstaking and scholarly analysis of thefranchised, there can be no allegation ihat the history of Nlobile the district court concluded,at-large schemes rvere racially motivated in and the Supreme Court affirmed, that the at-their enactment"' 459 F'Supp' at ll72' The large system rvas originarly conceived as part ofat-large s]-stem tvas in fact enacted in 1955, a
y.u. ift.i Brown l, Brown v. Board ol Educa- a comprehensive scheme, devised after Recon-

tion, t954,347 U.S. lg3, 7_l S.Ct.6g6,9g L.Ed. struction, ro disenfranchise blacks. See Bolden
873. The history of di.c.iminatory voting prac- v' Cit;' ol Vobile, 1982' S.D.Ala., 542 F'Supp.
tices is far ;'.;;i;; for any .or.t ,l'.on- l05O: Brown v. Board of .**hool Commksioners,
clude that a srarute'*u, not enacred wirh dis- 1982, S.D.Ala.,5{2 F.Supp. l}7g, aff'd, ll Cir.
criminatory intent simply because blacks could 1983,706 F.2d 1103, a/f'd mem., 1983, 

- 
U.S.

not vote when the stature was adopted. In 
-, 

l0'l S.Ct. 520, 78L.Ed.2d 705. The district
NAACP v. Gadsden County School Board, ll court denied the government the opportunity to
Cir.1982. 691 F.2d 978,982, a panel of this Courr present o'idence concerning the history of the
found clearly erroneous a district court's con- at'large system in Marengo Countlr, a clearly
clusion that a 1947 change to at.large elections erroneous ruling.
in Florida had no discriminatory puipose. The



1572 73I FEDERAL REPORTER,2d SERIES
does not automatically violate section 2. sponsive it suggests that they are wi,ingBut it is equally clear that 

't'" 
.l".iion or to aiscriminat"'rg"in.t minorities and needone or a small number of minority elected not be 

"..*nr"ut" to minority interests.officiars w,r not^comper a finding-or no logers;-i;;;;,158 u.s. at 625 & n. 9, r02dilution. Id. at ]9 n. lts. ,,Su.h-.r"...rs 
S.Ct. at B2g0 & n. 9.might, on occasion, be attributabt" io tfr"work of politicians, who, appreherairg ti"i -^-Y.:::tp"i.iveness 

is considerabty less im-

i:it#il::;i;":f ff ilili1Tm:,tlixi{:J:',T.'TJ.",',:H[:j;,"t.i:::1.:l
election. or such (uccess ,i*r,, u" 

"rr.,u- 
n-ess "has 

,lotl,_ng to do with fdiscriminato-

i:?i,]i::,1",,:l'if#::'#iffi 
"fl.,'Ji:;;i'fr 

'!;'j;'',;*tfi?ff 
:".fl ',J.il\;:!;

of a black .unltarru will thwart .r....ji:'i Ll1,- 
rnl..oonsiveness does have ,or"'it"-

challenges to electoral schemes 
", dii;;:-' vance ln a section 2 case. [f minority

grounds." Zintmer,485 F.zd 
", ,ror. .ill Ilt i* ,not sen'ed it is evidenc"',r,",

also National Association for ,n, 7J- :::1:'"" have insufficient political influ-
uancement of cotored peopti ,;. C;;r;;" :,1t^t_ ': ,tnt:tu that their desires are con-
county schoot Board,,i ci..,s8z,-ie'i 

ilT.xorl,,fffjt,ril;,,;::rf?:{:,F.zd 9?8, 988. 
^_ " ,^-^ .-' 

' 
143_46. But unresponsiveness is of limitedThe record shows, as of l9?g, that no importance ,iJ"" .".tion 2 for two rea_black had ever been elected to eitier the sons. First, section Z protects the accessSchool Board or the county co.rnl.ion. of minorities ,oi- .irpty to the fruits ofOne had been ap.pointed. to the sciool government but to partieipation in the pro-board' but the warning of z;mrt*lr, qr"i"a cess itself. Accordingry, evidence tr,at ortiabove' is particularly appropriate 

'to' 
*.t cials meet the functional needs of minorityan appointment' The appointment of one citizens ao". -i- overcome evidence thatblack to the school so"ta, *ni[ it-.ry the minorities a=re excluded from politicalhave demonstrated an inc."as"J *ilr,r,*- participation. s"cona, responsiveness is aness of Marengo county whites to all-oiv highly'subjectiu" ,utt"", and this subjectiv-black individuars to partieipate, 

";;;; 
ity-is at raa. *i*'ir," emphasis of section Zdoes not demonstrate tne aiitity 

"i il;l on objective factors. The Senate Reportvoters to elect officials.rT One other black states thac "defendants,proof of .or"'."-was elected, to the post of county co.on"". sponsiveness wourd not ""*",. oir;rririlThese were the onrlr two bracks ,;;;; showing by oth.;:'more objective factorsoffice despite numerous black candidacies. enumerated here that minority votersThis evidenc" ."n,b:.,int".p*t"a 
""rv'r. 

nevertheress were shut out of equal accessstrong evidence of dilution. The aistrict to the political process,,. 19g2 Senate Re-court's conclusion that this nearly complete port at 29 n. 116', u.S.code cong. & Admin.lack of success clid not indicate u tr.t oi New_s 19g2, p. zoz, n. rto. The authors ofeffective access to the system, aog r.irpp. the Senate n"p""t apparentry contemplated

,^_\,rur,is clearly erroneous. that unresponsiveness wourd be rerevant
,' unresponsiueness only if the plaintiff chose to ,"t.li.o,iJ

under an intent test the responsiveness 3,xtJllt -,!l,'lt* ::il'1il:rHfiti;of elected officials to minority 
"".d. l.;; a showing of responsiveness wourd haveimportant factor. If the officlal. ; ;;- very little.

The district cc

ness extensively,
was no "substa
ness". This cor
heavily against a

any event it is r

dence. The reco
ing authorities-
Board and rhe

-wer€ consideral
interests than onr

if blacks had eq

process. The fail
its statutory dutir
itate black regist
The School Board
opposition to intel
faculty. 469 F.S

trict court noted

the County Boar
be to make tht
whites" [sic]. 4

court's 1978 opi
case reveals the
ty toward integ
the Board was
school bus router
engo County E

F.Supp. at 937.
not find the Scl
because it did n(
siveness to blacl
impact on equal
{69 F.Supp. at 1

ther that the onl
was unresponsir
the United Statc
id. at 1179, who
regation policy
ceives no greate
munity than it d

LY", id. at 11?0

These conclu:
massive differe
white education

19. Although the
Registrars is not
Board's unrespo
portant because

731 F 2d_35

47.. Neither would his subsequent unopposed re-election.

*:..,,1_o**:., should plaintiff choose to offerevroence ot unresponsirtness, then tn. a.f*i_

ant could offer rebuttal evidence of its respon.
:ir:1..:." 1982 Senate Report ar fS n. iri,U.S.Code Cong. & Admin.News |SSZ, p.'ini,'".
I 16.



UNITED STATES v. IIARENGO COUNTY COM'N t573
Cl.euTfl F.2d 1546 (19E4)

The district court discussed responsive- irrefutable evidence of the effects of the

ness extensively, and concluded that there segregated school system on generations

was no ,,substantial lack of responsive- of Marengo county's black citizens' The

ness,,. This conclusion would not weigh notion that black children might prefer

heavily against a finding of dilution, end in segregated schools' faculties' and bus

}nyeventitisnotbor"neoutbytheevi.routeshasbeenrejectedsinceBroa,'nr''
rlence. The rectlrd shows that the govern- Board' oJ' Ed'ucation' The court's empha-

ingauthorities-e.p".iuttytheSchoolsisonthepresenteqtralityofeducationin
Board and the eo";'';r ntgrt"^tt ;; the schools is misplaced' The voting

-were considerably less responsive to btack Rights Act is concerned with politicaL te'

interests than one would exiecf them to be, tponsiteness' while the Board may finally'

if blacks had equal ".:;1T","i"'o#tt[i 
be provitiing equal education it has done so

pmcess. The failure 
"f 

;;".;; ;; ;; onlv after three rlecades of resistance' and

its statutory duties and;;il:;,'",, t" rr."- 3l?;T'ffi#'.::'T:""J$"1"j ::::*n:
Hf.:ffi ;:trHT"lfr.Hl'l:::TIl ;i*lfu*; r ff x',',",',:':;';fJ':H":l

;ffiil1*-?,''fffi:ili|if#'il,: :f :i;'.n"r"m::::1.:0"''' 
ra'[her'ihan

trict court noted that the "main objective of

the county Board appears to the court to The County (lommission has a better

be to make the s-r-stem as palatable to record' The plaintiffs did nrlt tnake a

whites" [sic]. 469 F.supp. at 1170. The strong showing of functional unresponsive-

court's l9?8 opinion in the desegregation ness' but the functions of a county commis-

case reveals the Board,s continuing hostili- sion, in 
,*.,.,-"1]. -_1L_not 

easily lend them-

ry toward integration, to the extent that T,Yi,rl,"niT;T"ii=ffi.'iliil"iillk-
the Board was still attempting to keep trict court did not discuss the potitical
school bus routes segregated. Lee t'. llar- responsiveness of the commission. The
engo County Board of Edttcation, 154 besi evidence of this is the racially polar-
F.Supp. at 9:l?. Still, the district court did izeJ uoting patterns. Responsiveness is an

not find the School Board "unresponsive" inherently iubjective factor and the best
because it did not "feel that any unrespon- judges are the people themselves. The

siveness to black needs has had a seriout .oniinring pattern of polarization is there-

impact on equal educational opportunities", fore strong evidence that lhe elected offi-
f69 F.Supp. at 1170. The court stated fur- cials are not meeting the political needs of

ther that lhe only unresponsiveness shown Marengo {Jounty blacks. -See .\J,{CP i''

was unresponsiveness 'ito th" efforts of Gadsden Cot,tty. 691 F.zd at 9l{;1. I
the United States Department of Justice", 

The district court,s findings on ,n.".pun- ./
id. at 11?9, whose "facially neutral deseg- 

siveness are clearly "..on*r*. 
We find'

regation policy ... in many respects re- solid evidence of unresponsiveness on the

;il::,Tnil"X':::li:TJlff .'.:il;:n',:J,:"',i1'":,:1",1::i'"',;JtJffi ,ft 3;:
Ly", id. at l1?0. mission does not appreciably' strengthen

the plaintiffs' case, but it does not harnr it

These conclusions cannot stand. The either. To the extent that the evidence on

massive differentials tretween black and unresponsiveness is relevant' it weighs in

white educational and literacy levels are favor of a finding of ,lilution.

{9. Although the composition of the Board of sible for Voter rcgistration' Its unrcsponsi"c'

Registrars is not chull"n'j"i'i. ,f,i. lirigation, the ncss contributes significantly to the inability of

Board's unresponsivenels to black n""d, i. i.- blacks to participatc equall-v- irr the political pro-

portant because the Board is dircctly rcspon- ccss'

73I F 2d_35



%' ;ufl F*t.o*o. -zL

@L#&e Lh&> su.Uqv:{)t CCn* Mr
,, <o??> z*/ ? tuZ*, ,tE'b

(fu !t

/*? ,i7,1 thuwutfr/ & ,%?t4qzaz?

2P4
)c )aru



t'}iITED STITES v. DALLAS COLI{TY COM':\a 1.5:19
Clte as 739 F.2d

I rvant to say rhat I have listened'*ith isdictions seeking to bail ')ut of I 5 was

great interest and r:oncern. and I wiil telt "irppointment rtf ileputv registrars who ere

!ou. registration hours from 9 to I is present at locations accessible to minority

outrrg"orr. [t is absolutely designed to candidates." 19E2 -qenate Report at 55,

keep people who are working and who repinted ln 1982 U.S.Code Cong. & .\d.

have difficulty in traveling from register' News at 233. While the rlistriet court cor-

ing. rectly characterized the appointment of
If that persists and exists, it is more deput-v- registrars as discretionary under

than wrong . ... the law, the fact that the Board refused to

Ertension of the Voting 'Rights Act: appoint such deputies is evidence of a fail-

Heaings Be/bre the Subcomm' on Ciuil ure to act to overcome past discrimination'

and Constitutional Rights of the House This issue of lingering effects of past
Comm. on the Judiciary, 97th Cong.' tst discrimination must be reconsidered by the
Sess. Part 2 at 1584 (1982). There was

evidence rhat rhe Board had previously' li:il::".,"JJ:i,,:;;:':".;'"no 
view on the

held night and Saturday meetings, 14 Rec.

at 3217 (Horne), but there was also evi-

dence that these meetings were publicized

only at the courthouse, so that most people

were unaware of them, 5 Rec. at 418 tFos-

ter). We find the district court erred in nor
concluding that this practice hindered ac'

cess to the political process by blacks and

continued the effects of past discrimina-
tion.

We reach the same conclusion rvith re-

gard to the Board's failure, between 1978

and 1982, to go to the beats and register
voters. That the county courthouse is an

appropriate meeting place for the Board of
Registrars does not address the possible

need for the Board to take steps to carry
on the registration process at other loca-

tions. Cf. 1982 Senate Report at 53-55'
reprinted in 1982 Li.S.Code Cong. & Ad.
News at 231-34 (describing positive steps
necessary for covered jurisdiction to take
under S 4 of the Voting Rights Act in

order to qualify for bailout from S 5 of the
.A.ct). Some evidence suggests that in 1982

the Board decided to go to the beats to
register voters, 14 Rec. at 3205 (Horne),

but the record does not reveal whether this
was carried out. We therefore conclude
that the district court erred in treating the
Board's meeting at only the county court-
house a1 sufficient in light of the historical
disenfranchisement of blacks in Dallas
County.

tt51 We also find the district court im-
properly considered as unimportant the
failure to appoint deputy registrars. See

548 F.Supp. at 845-46, 889. One of the
positive steps Congress suggested for .1ur-

III. OTHER FACTORS

We have discussed three of the eight
factors. Now we turn to the other five and

hold the district court correctly decided

them.

t161 The court determined that no white
groups slate candidates, a fact that sup-

ports a finding of no dilution. 518 F.Supp.

at 851, 855, 856, 903, 90?, 910. It found

that there have been no racial campaigns

since 1966 and that this factor weighs in

favor of a finding of no dilution. Id. at

855, 90?, 916. It held that no blacks had

been elected in modern {post-1965) times

and that this determination supports a find-

ing of dilution. Id. at 817, 857' 899, 908.

All these findings are correct.

The district court's finding of responsive-

ness, a subsidiary factor under amended

S 2, is also correct. Because the court's

findings concerning the Board of Education

and the County Commission rest on differ-
ent evidence, they are considered separate-

ly.

tlTl On the issue of responsiveness by

the Board of Education' the government

and the Board stipulated that the district
court could take judicial notice of Lee r'.

Daltas County Board oJ' Education, 156

F.Supp. 1161 (S.D A1.19?8), a case involving

school desegregation and faculty hiring in

Dallas County. The district court set out
an impressive body of evidence showing
significant improvements in Dallas County
schools. The government did not include in
the record for this appeal Lhe Lee record.



r5-10 7:}9 I'EDERAL REPORTER. 2d SERIES

Feti.R.-\pp.P. i0(bXl) and llth Cir'R'

tl(a)(1) t.qu,." the appellant to include in

the record ail parts of the transcript of the

proceedings not already on file and rele-

vant to findings chat it contends are unsup-

porterJ b.v or contrary to the evidence' In

ihe absence of a complete record we cannot

adequately review the challenged findings

on responsiveness by the Bozud and must

affirm the ,listrict court on this issue' See

tI.S. r,. Bob Lau'rence Realty, Inc" 111

F.2d 1i5, 126 (5th Cir.)' cerf' denied' 4ll
LI.S. 826, 91 s.ct. 131, 38 L.Ed.2d 59 (1973)'

The question of the Commission's respon-

siveness is more comPlex'

tlSl Roads: A great portion of the trial

concern"d testimony about paving and

maintenance of roads. The district court

found that "blacks live scattered across

most of the County." 548 F'Supp' at 892'

- This finding is not clearly erroneous' Fur-

thermore, the district court correctly con-

cluded that even had it found that blacks

tended to live on unpaved and fringe roads'

such a conclusion would not show unre-

sponsiveness without other evidence show-

ing discrimination in providing road servic-

es. Id.
.lppointment Policy: All county boards

are integrated except for one that is-. all

Utact<. Ie R".. at 3l2l-22 (Jones)' While

the Commission did appoint two whites to

replace deceased commissioners' this action

was insignificant since one replacement

was the 
-brother of the deceased commis-

sioner and the other was someone who had

once run for the office'

Funding: Evidence shows that the Com-

mission his funded or sought federal fund-

ing for a variety of projects that. h.ave

be"nefitted the black community, including

drainage projects, water service, site prepa-

ration 
"ior 

industry, a regional comprehen-

sive mental health center, the county

health department, and recreational facili-

ties. See generally 548 F'Supp' at 89G-98'

9. There is some evidence that suggests that in
tgZa the Probate Judge disqualified several

black candidates from appearing on the ballot

whom the federal court ordered be put back on'

7 Rec. art tlE0-8l (Chestnut)' However' ques-

tioning by counsel for the County Commission

sugges-ted that the black candidates had not met

state requirements on qualifications and ballot

proced.ries. /d. at 1l8l' In another incident a

t 19, 20 I .\fter lgYiswing ihe entlre

record, we crinclude thar the district c()urt s

finding that the Commission is responsive ,/
to the needs of btacks is not clearll' errone- v
ous.

The other subsitiiarl' factor listed under

amencied 5 2 is the tenuousness of the

smte policv or political subriivision polic-'*

underlying voting procedures' The riistrict

court iete-rmined that there was a firm and

long-standing state polic.v- favoring the at-

larie election of the Dallas County Board

of 
"Education 

as well as the boards of the

other 3.1 counties covered by Ala'C'ide
g 16-8-1 (19?5). 518 F'Supp' at 859' This

finding is correct.

The court also concluded that although

there was a long-standing policy favoring

^t-la.ge 
electioni of the County Commis'

sion iI Dallas County, the policy state-wide

*r. n"uttut. 518 F SuPP' at 910' The

finding and conclusion are correct'

t2ll The Senate Report stated that the

Zimmer factors were typical but not exclu-

*iu". 1982 Senate Report at 28-29' re.-

nrinted in 1982 U'S'Code Cong' dr 'ro'
S-"*. "t 

206-0?. The district court did not

ii*it irs consideration to lhe Zimmer fa.c'

[ors. and rve turn to other factors ghs rlis-

it* .or* analyzed. The court correct'ly

determined that there was no propertJ". re'.

qrjt.*"rif"t candidates for the Board.of

iducation or the Commission and that this

;;;;; .;pp"rted a finding of no. dilution'

iri-e.Srpp at 85?, 908; that Dallas Coun-

ty had been designated for use of federat

.".gi.tiur. and that this factor weighed in

i"io. of dilution, id' al851; and that there

was no evidence of disqualification of blacK

candidates and that this sub-issu" t:f
ported a finding of no dilution's id' at so''

908.

IV. INTENT

122'l Because we cannot resolve this

case on the statutory claim, we must turn

black who should have been disqualified ,bc^'

cause he was a convicted felon was allowed-to

run. 548 F.Supp. at 857' Because the go-tcrrt'

ment did not chillenge the district court Ilnqrrrl

on this criterion and the record does n-ot p-re

vide sufficient information about the .197'lrnct'
alni, *. conclude the district court's dclermtna'

,ion ih", there had been no evidence of disquatt'

fication of blacks is not clearly erroncous'

:

I
I

!o lhe ,:onstltutlona
.\cts ;j28(6). :he st

Commission is elect

under che Fourtee

plaintiff must' show

the enactment or r

ute. BoLden, 146

l{99. The district
the government ha

inatory intent. ;'tl

t231 The distric

that the adoPtion

was motivated bY

as the hilis: rhe ,

power wanted to
at 913. This cont

ous. As the Ct

Jones, testified,
power in 190H1
no fear of losing

3925-26. In rea

district court ma

the 1876 change

rather than the I
at-large sYstem.

were returning k
to the RePublict

however, the Der

control in Dallas
cause the distri'
that 328(6) was e

sought to regair
case must be r'
well as on the t

t21l To aid t
sideration on ret

lyzing the intenr

[T]he Plaintifl
oPinion that r
inant motivati
evidence mor

nomic as wel
were dominat

rejects the ct

10. As exPlained
the governmen
criminatorY int
becausc the gol
ute onlY as aPl

ll. On aPPeal t

thc district cou



'rr+-

L'\ITED STATES v. DALLAS COL-NTY COII'N 15.11

V (]ONCLUSION

Our anal-v-sis of the government's claim

under amended S 2 has shown that the

district court was clearl-v- erroneous on two

of the six principal factors-polarized vot-

ing and structure of the election system.

We have additionally' determined that on

remand the district court must reconsider

the factor of lingering effects of past dis'
crimination. Finally, we have concluded

that the district court erred in finding that
the enactment of 1901 Ala.Acts 328(6) rvas

motivated b.v the Democrats' desire to re-

gain porver. We therefore remand the case

for further proceeilings consistent rvith this
opinion.

AFFIRIIED in part, VACATED in Part,
REVERSED in part, and REMANDED.

ON PETITIONS FOR REHEARING

Before GODBOLD, Chief Judge, RONEY
and KRAVITCH, Circuit Judges'

PER CURIAM:

IT IS ORDERED that the petitions for
rehearing filed by Dallas County Commis-

sion, Board of Supervisors of Elections,

and Dallas County Board of Education and

its members are DENIED.

provcn a violation of the Fourteenth Amend-
ment. We therefore do not reach the issue

whether the Fifteenth Amendment proscribes
vote dilution, which is an open question. See

Jones v. City ol Lubbock,727 F.2d 364, 370 (5th

Cir. 198.1).

Clre s 739 F.!d t529 i t9&rl

to '-he constituironai ,:hailenge to l9(jl .\la. e\pert 'ritnesses ihat rliseniranchlsement

-\cts 3?8(6). lhe sectitln 'inrler which ihe was soieiv- ractari-v- mr>tivated'

Commission is eiected.t0 Tr) p,p,les a ciarm j{8 F.Suop. at 9ll-Lil. To tind a vioiation
under the Fourteenth Amendment rr the of the Fourteenrh .\men,f ment plaintiff
plaintiff must show discriminator"," intent in does not have to prove that racial discrimi-
the enactment rtr maintenance of the stat- nation was a "ilominant" or "primary" mo-

ute. Botden, {16 I-.S. at 66. 100 S.Ct. at rrve, oni-v- thar it was a motive. Arlingtott
l{99. The district court determined that Heights 1,. .lletropolitdn Housirg Derclop-
the government had failed to show discrim' ,,r.it Coro., l2g L.S. 252, 26;66, 9? S.Llt.
inatory intent. 5.18 F.Supp..at 912-l{. ;55, 563-61, 50 L.Ed.2d {50 (19?7). on

t23l The district court found "as a fact remand, if the court reaches the constitu-

that the adoption of the ar,-large s]'stem tional claim, it should determine whether

was motivated b-r* one human desire as old racial discrimination was a motivating fac-

as the hills: the group which was rlut of tor.
power wanted to get back in power." td.

at 913. This conclusion is clearly errone-

ous. As the Commission's expert, Dr.

Jones, testified, the Democrats were in

porver in 1900-01 in Dallas Count.v* and had

no fear of losing their control. lti Rec. at
392t26. In reaching its conclusion the

district court may have been thinking of
che 1876 change to an appointive system
rather than the 1901 change to an elected

at-large system. In 1876 the Democrats
were returning to power that they had lost
to the Republicans after the Civil War;
however, the Democrats had solidified their
control in Dallas County before 1901. Be-

cause the district court erred in finding
that :128(6) was enacted because Democrats
sought to regain power in the county, the

case must be remanded on this issue as

well as on the statutory claim.

tz{l To aid the district court in its con-

sideration on remand, we note that, in ana-

lyzing the intent issue, it stated:

[Tlhe plaintiff's witness testified to the

opinion that race was the sole or predom-

inant motivation. This court believes the
evidence more clearly shows that eco
nomic as well as political considerations
were dominant factors . ... The Court
rejects the conclusions of the Plaintiff's

10. -{s explained supra, the court did not permtt
the government to introduce evidence of dis-
criminatory intent in the enactment of 5 l6-8-l
because the government had challenged rhe stat'
ute only as applied.

ll. on appeal the government challenged only
the district court's determination that it had not



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LEU COI-')ITY BRA:,JCH OF NA-{CP v. CITY OF OPELIKA
ctrc rr TrlE F.rd t{73 I t9s4)

1179

lVe turn now to ihe ,;,i;s[i1111 ',vhether this t:]l The,iet'encianrs tnsist that a remand
case should be remnn,le,l to the iiistrir:t is,r,-,t necessar],t') rlecirle the ptaintiifsl
court for further proceedings eoncerning iecti()n 2 elaim. They note that. alihough
the plainriffs'section 2,:laim. rhe iegai rheor_v- of the plaintiffs,case tias

rrr. sHoLrLD rHrs .ASE BE RElrAliD ";T::: i;:il,; ':::":","L,JHf;,r:i;
ED FOR FURTHER PROLIEEDINGS theories. Because the case was tried under
ON THE SECTION 2 CLAIMI the intent standard articulated in :\-erett t.

While this case was on appgal, this Crturt Sidcs. which looks to the Zimmer factors,
decided L'nited States r. -l[arengo County the rlefendants conclude that the necessarf
Commissiort, 1l Cir.l9gl, 781 F.:ld 1;d6. evidence f,)r a ruling under the results
,l[arengo explains in r.lsrail how the ''re- stantiard is before this Court. They urge
sults" test of section 3 is to be applied to that the district court correctly' concluded,
an allegation that an at-large .ji'srem un- rrn the basi-q of that evidence. that no sec-
lawfully ,lilutes minority votes. Discrimi- tion 2 violation occurred.
natory intent need not be shown to estab- iVe reject the defendants,arguments forlish a violation. Section 2 focuses ..on 

several reas{)ns. First, this C"r.il*Oi"-whether minorities have an equal right to sized in ,l[arengo that .,the Zimnter factorsparticipate in the political process." .Id. at serve a differJnt purpose in litigation un_
]56?' A denial of equal participation may tler section 2 frorn their purpose in consti-be demonstrated by proof of various objec- tutjonal litigation.,, llaretryo, ?31 F.2d attive factors, many of which are rhose out- 1566. Some factors weigh more heavilylined in Zimmer u. McKeithen,5 Cir.l9T3, under the results standard, while cthers485 F.2d 1297 (en banc), aJl'd per turiant weigh more heavily under the intent stan-sub nom. East Carroll Parish School ,larrl. In particular, we notecl in ;llarengoBoard u. .Varshall, 1976. {2.1 LI.S. 63ri. 96 that a shoiving of racially polarized votings.ct. 1083, 4? L.Ed.2d 296. These factors .,will ordinaril-v be rhe keystone of a dilu_include the existence of racially polarized ,i;;'.;:;r.i.. .*i1", ,., Id. Bv con- /voting; past discrimination and its linger- trast. althougn tn" ..rp,rnli"";;;. ,;i ,i;;;y/ing effects: access to the slating p.o.u..; ed ,fficials io minoritl: needs is an impor-eleetion practices that exacerbate the tlefi- ;; r.*;;; 

";";;;";;; 
intent rest, it ,,is

c.iencies in minority participation in the po- consirlerably less important under the re-Iitical process; elections characterized iy sults test.', e Unresponsiveness is relevantracial appeals; tenuousness of state poli- under the results test only if the plaintiffscies underlying the at-large elections; suc- choose to make it so. Id. Moreover, Con-

ltltr:-f.Ill,"rity candidates; and "enhanc- gress relegated another factor that is pri-rng taetors" such as the existence of large mary under the intent standard_tenuour-districts, majority vote requirements, anii- ness of state policies untlerlying an at-large
ltngle ;tr.ot voting. provisions and the lack se heme-ro secondary importance under
:j^pj"ll.i:l for at-large candidates running rhe results standard. 

-.Iones 
u. city of Lub-r-om.-particular geographic subdistricts. bock, 5 cir.19g4, ?z? F.2d J64, 3g1. It is

ncee- Marengo 731 F.2d at t.;6fj-7:1. The theret'ore iror enough for the defendants
:it:9.. are to be weighed under a "rotality simply to nore ttrai the Zimme,r factorsuI ue ctrcumstances" approach. Id. at constitute relevant evidenee under both the156H6. intent and rhe results standard, because
&.-"Voring.a-long racial tines allorvs those c'lccted 9. '[f:]nrcsponsivcness is of limited importanceto ignore black interests rvithout fear o[ political undcr secii,rn 2 for trvo reasons. First, sectionconsequences, and without bloc ,,'oting the rni- 2 protects thc acccss of minorities not simply tonority candidates rvould not l,rse clcetirins ,olcly rhc lruirs ,rI g,ylqrnrnenl bur to particioation ino€cause of rhcir race.,, R,ag.y 1.. t.,ilce, lqgi, rhc prr,ecss rriclf. Second, .;.p"nril;;;.; i-,

lt:,Y: ^6t3, 
623, 102 s.Cr. 3272, 327e, 73 a highl,v subiccrive *o,,.i, 

"na 
this subjecrivityL Ld 2d r0r2' ro2r 

;,::,:1t;":l:jl, in:,,'#lT'',jf ;:'j''"1 iJl



1{80

the weighing oi lhose facr,rrs is .lii:erenr
ln,ler :he two standar,is.

Second. we are unable i,. tell fr,:,rn ihe
riistrict court s opinion horv the c{)ur!
rveighed the various factors to find thar rhe
plaintiffs had not established a vioiation ot'
section 2. The rlistricr courr in its ,rriginal
rrpinion applied "the criteria expres_sed bv
the Zimmer (lourt and the Supreme Court
in City ol' .ltobile ,:. Bold.en". Rer.ord ar
306. The court concluded that the plain-
tiffs had "not proved by a prepond"."n..
of the evidence the e\isren." of 

"n 
rggre-

cate of the fat'tors which the Zinn,ner
Court said wrrulcl make out 'a str,)ng
ct.;e' " :rnd harl 'failerl to pr{)r.c b_v ;r ;;re-
ponderance of the evidence rhar the disput_
ed plan was conceived or operated al a
purposeful device to further racial rliscrimi-
nation". /d. at :108--{)9. In part because
the court's opinion made no mention r)f
section 2, the plaintiffs filed a motion to
alter or amend the judgment, or for a new
trial, asserting that their right to relief rvas
particularly evident under the amendetl sec_
tion 2. The court denied the plaintiffs'
motion in a short three-paragraph opinion
that gave no rletailed findings ,if fact or
conclusions of law. The court stated,

In the interest of avoiding iurther liti-
gation, this Court has reviewerl this case
in the light lof Rogers t,. Loclge and the
a.mended section 2] and is r>f the opinion
that ... the preponderance of thl evi-
dence showing facts alleged and proved
in this case do not indicate a violaiion ol
42 U.S.C. 5 19?B as last amenLlecl or of
theConstitution....

Record aL :122.

The court's second opinion does not artic-
ulate the basis for irs consideration of the

lO. ln Kirksey v. ('ity o/ Juckson,5 Cir.l9g3, 7l.t
F.2d .12, thc Court found that rhe amendmcnrs
to section 2 changed rhe larv cnough that a
dismissal of rhe plaintiffs' claim undJr thc old
scction 2 w'as not a bar undcr thc doctrinc o[ rasjudicara to a netv action undcr the arnendcd
section 2,

ll. The plaintiffs estimaie rhat g0 perccnt o[
their time spenr in dcveloping and irving rhis
case originallv was devoted to rhe issuc of rc-
sponsiteness.

7{8 FEDERAL REPORTER.2d SERIES

i-itn()rls t'ec!ors fhat ie,j it to t'inri no ,;i,tia-
tlolt rtt seL-tlon l. ive ha'..e ,rniv rhe Ci_)urt s,r\t)lil'lliltlUtr :,rr :ts,.rrtittg r:t,1er ihe intent
stanrlarri. Brit the Zirrt ntt.r Iact,)rs ,.lrrrv
,.litierent rveights rrnrler the re*ults tert
than ihev ,irt unrier the intent test.r,r lVe
are lherel()re unabie trt review, {)n the
record bet'rtre us. the riistnct crlurt's inter_
pretation ()r rir.)plicirtion ,.rf the new. legal
stantlarrl tmhr,t,liet-l in se(jtir)n 2. X,r, ,1,i., 

/the criurt'..; .sec,tnri 'ipinion satist-\. the re-./
rluirerrrents ,rt Ferl.R.('ir'.p. Jl(a). which re-'
,luires the cr)urt to "iind the facts sper:ially
inri state seltar:rtel1- its conclusirtns-rtf law
rhereon" in rrll :tctions trierl up,tn the t'acts
w'rthout u juri'. \i'hen. because ,tf lb-
sence Lif drndings r>f facr or conclusions ,rf
law, an apllellate L.()urt cannot determine
'*'hether ihe reerrrrl sul)p(lrts the trial ,:ourt
,lecision. it shoul,l remand the action for
entrv r)f findines r,.f fact and conclusions of
l1y ' Oomploint ol'lthat.a Corp.. i Cr.
19?8, 582 F.2d :t. {

Finall""-, the evidence c.ompiled in this
record is n(,)w at least six years rtld and
rloes not necessarilv reflect current condi_
tions. Moreor-er, because the record rvas
not crtmpiled unrler the result.s standard of
section 2, it is incomplete on certain impor-
tant issues, especiallv the ,.ke1.stone.' 

is.que
of raciallv polarized voting. The evidence
in the case focused ol) two Zimnter factors
,rf special relevance in proving r.oting dilu_
tion under the intent standarrl-w[iether
the plaintiffs had erlual access ro the politi-
cal process anr.l whether government offi_
cials were responsive to the interests of the
plaintiff minority.il Thus, neither the
plaintiffs nor the det'endants have had an
adequate opportunity to develop a record
with the results standard in rnind. Fair-
ness dictates that the case be remanded.rl

12., Judgc Coldbcrg, spcciallv concurring in a
dccision to rcrnand a uasc tor reconsidera-tion in
thc light of llobile,,rbscne<l rhat

duc prrrccss and prcccdcnt mandate rhat
r\hcn lllc rulcs,rl rhc ganre are changed, the
plavcrs rnusr be alfordl,d a full and ?"i; ;;.porlunit\ to plav hv rhe rrerv rcgulations.
Thcrcfirrc, thc lirigants in this action murt b"
.rllorvcd, if thc,r. so dusirc, to p.cr"nt fu.rh"i
cridcncc on romand to establish their clairns
undcr rlrc lat, annorrnccd in [.llobilel.

l,ntes y. L'iqt ol I_ubbot.l., .i Cir:.19gl. OfO f.Ua
777, t-77-78 (Coltlbcrg, J., spcciallr. .un.u.rin j;.

I,EE (](

][,rreover. ] r*rnlrn'i

S'rpreme (1,-rLlfi 
-< .ICI

198ts. -tti0 I'.S.'.')ti
L.Ed.2d 9{2 rrnem.r,
,i Cir. 1982, which '":

constitutional r{ite

and r?ogers tind rern

sideration in light 'l
ing Rights .\ct . . .

IV. THE PLAINT
TABLI-CHED .I

TION ON THI
The plaintiifs,tr

,listrict cour!, irl r
supplement the recc

events, that a secti
established on the 

1

cline to do so. .\ltl
instruct in the .I/c

presented much stt
factors of specral ir

ofasectionlviol
the "keystone" iss
voting, the district
strong" evidence
elections before
though reduced, p

eleetion. ![are'ngo
plaintiffs had prov
direct statistical a

turns. In addition,
of racial polarizatio
the Marengo Cou
mary concern wit
from the district c<

ous doubts that l
would attend dese
schools. Sueh att
"strong circumsta
continues to domir
County." Id. rt I

t{l By contrast
the plaintiffs' evid
voting is weak. l

county kept racia
tered voters. and

13. The plaintiffs e:

tion of rhe voting 1

graphic boundaric:
districts rvith rhc gr

lika's voting prccir:



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h' Mc(IART)' v. HENSON
CIte s 749 f.2d ll34 (19E4)

1135

}rU,ffil.:ll?'i;i,'J'.fi: 
"' amend 

ffi;;l :1.l}'i,'.?:'o:':1H:[f'ffi, T;

r. Schoots c=53(l) not further press the contention' that the

Findinss or the district court, that ilHffijjt:?*J'if,:1,::"ffi1i'ff"[
::'rfTi: ,:ioo"ItT:l"L *:lU.}: amended in 1e82 rhe disirict court did not

tke sr-stem for election of school board expressly address this claim' but it.s find'

Eusrces had not been created or main- ings show that the at-large system has not

uined with discnmrnatory intent, and that had a discriminatorl- impact on black vot'

tr,er" had been falure.to prove that svstem il'".^;:liiJil;ri.'fi|:;*".,3f.''""'
il*"a to dilute black votes or that it had

dlccriminator}'lmpacteffective}l,estab.Thedistrictcourtfound:theSchoo)Dis-
hshed rhat there was no right if action trict has a total population of ?954, of

.--,ror ihp Votins Right^s Act' Fed'Rules which 56E or 7'11" are black' The black

X.$**.iri;- sit"l,'za U.S.C.A.; Voting population is concentrated in the northeast-

;;;.-;;;;; ig#, s 2 et seq., as amend- ern portion of the District, bordering the

I"'ai us.c.A. s 19?B .t .uq.; U.S.C.A. Red River. The District was formed in the

iln.,.,crn"nas. 14, 15. late 1g60's by successive consolidation of

several separate districts.

.\

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Cornett, Echols & Biard, Leighton Cor-

nett. Paris, Tex., for piaintiffs'appellants'

Hensiee & R1'an, Donald G' Henslee'

Darid P. Ryan, Austin, Tex', Mike Rou'ar''

Ttler. Tex., for Henson, et al & N Lamar

lSlt.

Appeal from the United States District

corii for the Eastern District of Texas'

Before CLARK, Chief Judge, GOLD-

BERG and RUBIN, Circuit Judges'

ALVIN B. RUBIN, Circuit Judge:

Biack voters contend that their vote has

been diiuted. in violation of the fourteentli

ud fifteenth amendmenLs, hl the election

of echo<,l board trustees at large and seek

er, order that the seven menrbers of the

!ronh Lamar Independent School District

rr lamar Countl', Texas. tre elected from

lngie.member districls. The district court

founri that the at-large s)'sLenr had not

ix.en creaLed or maintained with discrimir'a-
trra int.ent and that the plaintiffs had

faileC to prove that the systenr operated Lo

riilute black votes or that ii. had a discrimi-
naton impact. Fed.P..Cir-.P 52tat fort,ids'{
us u, olerturn findings of rhis nature urr-

less n'e fing then, clear'ir errorreous Be'

ceust Lhe fact find.ir,gs &rt' suLrlr(rrlec' Lrr

the reeord. we affirn the drstrict couri's

Onll- two black candidates sought elec-

tion to the Board of Trustees. The first'
Robert Bills, was defeated in 1975 and

19?6. In 1980, Geneva BaileY, a black

woman, was appointed to fill a vacanc)' on

the Board. In 1981 she \^'as elected' but,

when she ran for re-election in 1981' she

u'as defeated.

Biack voters register and vote in Lamar

Countl' without hindrance. as each plaintiff
testified, and there is no hindrance or ob-

stacle to the candidacv of black persons for
the Board. Neither the District nor the

Board has discriminarcd against black stu-

dents in providing educational sen'ices'

The drop-oul rate for black students is

considerabll' lou'er than for whites. and on

the Texas Assessment of Basic Skills

(TABS) 
"est, 

blzrck studenlq perform signif-

icantil- better than the stateu-ide average

for black students. Manv black citizens

have been appointed to advisory,commit-

tees to assist the Board of TrusLees in

maktng educational and fiscal policy deci-

sions.

/ m, District has. since i9?5' made signif'
icant efforlq to hire more minorit.v employ-

ees in al] leve)s of School fristrict emplol"

meni. par'licularlv as teachers The Di-'-

ficf's blaclr empir,';ees refrr€'seni e slighill
hrgi'rer liercentagr (E.6':'i than the blaek



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McCART)' v. HENSON
Clte er 749 F2d lt34 (r9E4)

I 137

the school distriet, and the plaintiffs allege or their abilitv tn participate fully in the
no other hindrance to the candidacv of politica) process.

black persons for the board. Although
s€veral of the plaintiffs' witnesses asserted t4l ln their complaint, the plaintiffs in-
thst an independent black Board member voked the Voting Rights Act s but they did
would be more responsive to the needs of not make any specific allegation thai the
blacks in the District, none testified to any Act had been violated, nor did they raise
specific examples, of unresponsiveness b1' the Voting Right^s Act issue in theii argu-
t}e present Board. The district court cited menls to the iistrict court. Instead, th-ey
numerous uncontroverted examples of the relied on asserted violations of the four-
Board's responsiveness to the needs of the teenth and fifteenth amendments. The tri_
black community, including participation in ar court eonsequentry made no findings un-
funding programs for disadvantaged stu- der the Voting Rights Act.
dents, appointment of black citizens to ad-

vlsory committees, and efforls to recruit Although the plaintiffs argue in their
end 

-hire 
more minority employees. The brief that they are entitled to relief under

plaintiffs did not rebut this evidence of the the Voting Rights Act, the findings of fact
Board's responsiveness by eoming forward by the district court on the constitutional

lrit"h specific instances of present Board issue show that it would have denied reUef
.,,/ un*rponsiveness. The evidence of dis- under the Act had the elaim been urged.
' criminatory hiring practices by the Board The Aet forbids any' voting practice that

during the late 1960's and early 1970's does "resullq in a denial or abridgment of the
not establish that the Board is unrespon- right of any citizen of the United States to
rive todal'. vote on aceount of race or color.,'6 ILs

plaintiffs submitted no evidence that the violation is estahlished by proving discrimi-
rtate policy behind atJarge distrieting is nator!' impaet under a "totalitl of circum-
tenuous. Although the defendanls have stances." The legislative historl'to the
eonceded that historicalll' there has been Act lists a set of objective criteria to guide
bot-h social and economic discrimination the courts in anall'zing the discriminatorl-
rgainst black persons in the District. the impact of an election s!'stem. This list
plaintiffs presented no eridence connecting incorporares Lhe Zimmer criteria with a
tlrat history to present black participation fevt additions.? Since the district ccrurt
in the political system. The evidence found no discriminatorS impacr, i.e., no
rhows that candidates in the District are abridgment of the right to vote on account
eleeted by pluralitl'vote, and that there are of race, and that the political processes are
oo majority or antisingle shot vor,ing re- equalll. open ro participation ti. black per_
quiremenls that might prevent the election sons, the plaintiifs hate not established a
of minority candidates. Plaintiffs' wirness. violarion of the Voting Righr-. Act. Al-
cs did offer opinion testimon)- of polarized thougl, the Act was amended in 19Ei uivoring. but this alone does not suffice to eliminate the requirement that a plaintiff
rhol^' discriminatory impaci. under the Ac,. prove that the election s1.s-

The plaintiffs have noi submitted evi- tenr was implemented or maintained n'ith
&nce of an aggregate of Zimmer factors diseriminatory intent,t the plaintiffs in this
or 8 totality of cireumstances to support case have not established the denial or
tlrer claim that the at-large voting s1'stem abridgment of their right to vote that is rr
cueels out or dilutes their voting strength prerequisite to relief.
I {2 U.S.C.A. S 1973 (Wesr Supp.1983r.

r' {l L.S.C.A. S t973 (Wesr Supp.l9E3).

1962 L:.S.Code Cong. and Ad.Neu,s 177. a; ZOG
07; H.R.Rep. Nc. 227 ar 30.

E. 42 L.S.C.A. 5 tC:_t (Wesi Supp.l98-r). &rt' ,.! lonas v. Cirt'of btbboct: 727 F.2d 361, -179 Jone: r. Cir oi 1u66nk. 727 F.zd 364. 376 (_irh
t)tr, Ct:.1984). ciriag S.Rep N<,. 417 ar 2L29, Crr.t9E4i

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I

725 FEDERAT REPORTER, 2d SERIES1020

ry purpos€ in order to establish a violation.
rhe at-large election scheme in Abilene .iid
not have a discriminatory effect.

Appellants' principal attacks on the judg-
ment of dismissal by the court below are:
(1) that the trial court improperly decided
the case upon constitutional grounds when
it could have decided the same on statutory
grounds alone; (2) that the trial court
failed to make detailed fipdings of fact in
its resolution of the minority voters' Voting
Rights Act claim, as required by Rule 52(a)
F.R.C.P.; and (3) that the trial court did
not use the correct standard of proof to
decide that there was no violation of the
Voting Rights Act.

[1,2] Plaintiffs-appellants' argument
that the trial court improperly rlecided the
case upon constitutional grounds is unmeri-
lorious for a variety of reasons. First,
plaintiffs have not shown that the trial
court could properly have decided the case

on statutory grounds alone. Second, plain-
tiffs' complaint included allegations of con-
stitutional violations as well as statutory
violations; plaintiffs cannot now be heard
to complain that the trial judge addressed
those allegations. Finally, in voting dilu-
tion cases many of the questions asked to
determine whether there has been a statu-
tory violation are also asked when a consti-
tutional violation claim is evaluated. We
see no reason why in voting dilution cases,

in light of the interrelated standards, a trial
court cannot consider both the constitution-
al and statutory claims together. Plain-
tiffs-appellants' first attack on the judg-
ment below must therefore be rejected.

tial contrar.v evidence. In Crtxs v. Baxter.
604 F.2d 875 (5th Cir.i979), vacated on oth-
er grounds,704 F.2d 1.13 lSth (1ir.1983). this
circuit discussed the need t'or rletarled find-
ings of t'act in voting rlilution cases:

F.R.C.P. 12(.a\ requires the district
court to make findings of fact and conclu-
sions ,rf law in deciding all cases lried
w'ithout a jury, and these must be suffi-
ciently detailed that the court of appeals
can ascertain the factual and legal basis
for the district court's ultimaLe conclu-
sion. Because the resolution of a voting
dilution claim requires close analysis of
unusually complex factual patterns, and

because the decision of such a case has

the potential for serious interference with
state functions, we have strictly adhered
to the rule 52(a) requirements in voting
dilution cases and have required district
courts to explain with particularity their
reasoning and the subsidiary factual con-

clusions underlying their reasoning.
'[Clonclusory findings as to each of the

Zimmer criteria are no more helpful than
an overall conclusory finding of dilution
The factual predicates for such conclu'
sions must be clearly stated by the trial
court.' Perhaps in no other arta of the

law is as much specificity in reasoning
and fact finding required, as shown by

our frequent remands of voting dilution
cases to district courts. As a general

rule, if the district court reaches a conclu-
sion on one of lhe Zimmer inquiries with'
out discussing substantial relevant con-

trary evidence, the requirements of rule

52 have not been met and a remand maY

be called for if the court's conclusions on

the other Zimmer inquiries are not suffi-

member district i:

present realitY, P

White v. Rcgester,

s.ct.2332, ?34L,31

Supreme Court ha

finding of intentit
sary in voting d

Fourteenth Ament
under the Fifteenl
governed by Rul
standard. Rogerr

102 s.ct. 3n2,73
have no doubt tht
natory effect or
Rights Act amend

erned by the clt
and while apPella
tion eases involve
and fact not gove

ous standard, we

ment. The cleal

applicable in botl
tory voting diluti

The oPinion o1

and detailed and
invulnerable to a

ever, because of
substantial contr
the appellants, it
case for further
the court below
dence substantia
ty, but we ar€ u

silent record thr
court below.

t5l In passir

the Voting Righ
the Supreme C

Mobile v. Bold,
1490, 64 L.Ed.z
that a claim of
strength could s

of discriminatot
1982 amendme
put?ose standat
and substituted
under the totali

'stated in the
amendments:

The amen'

Section 2 is

[3,4] After reading the record we find cient to support a judgmenL
merit in plaintiffs-appellants' charge that Id. at g?g (citations omitted).

l[Tl!;fti*1*1ffi:"$"li1i:j]* A crose reading or the briers submittcd

that the voting Righrs Act, as amended in iJ-':", '#ti.Ht::'ii,jnllJ"[",f $
1982, was violated. controversy-. Both the constitutional and

Although the trial court is not required to statutory .tui^" of the plaintiffs below in'
recount and discuss every bit of evidence volve extraordinary fact-oriented issuee

offered to it, it is rcquired to discuss all the The district court's factual findings in vot'
substantial evidence contraty to its opinion. ing dilution cases represent "a blend of

The trial court offered a iairly thorough history and an intensely local appraisal.of
analysis, but did not discuss all the substan- the design and impact of the . . ' mulu'



VETASQUEZ v. CITY OF ABILENE, TEX. t02l
Cite as 725 F.2d l0l7 (l9E{)

member district in the light of past and plaintiffs need not prove a discriminatory
present reality, political and otherwise." purpose in the atloption or maintenance
White v. Regester, 412 U.S. 755, 769-70, 93 of the challengal system of [sie] practice
S.Ct. 233e %41,3i L.Ed.2d 31.f (1973). The in order to establish a violation. Ptain-
Supreme Court has squarely held that the tiffs must either prove such intent, or,
finding of intentional discrimination neces- alternatively-, must -show that the chal-
sary in voting dilution eases under the lenged system or practice, in the crrntext
Fourtcenth Amendment, and by implication of all the circumstances in the jurisdiction
under the Fifteenth Amendment, is factual, in question, results in minorities being
governed by Rule 52's clearly efroneous denied equal aeess to the political pro

J

.-

l

a

istandard. Rogerc v. Lodge, 458 U.S. 613,

102 S.Ct. 3272,73 L.Ed.2d 1012 (1982). We
have no doubt that the finding of discrimi-
natory effect or result under the Voting
Rights Act amendments of 1982 is also gov-
erned by the clearly erroneous standard,
and while appellants try to argue that dilu-
tion cases involve a mixed question of law
and fact not governed by the clearly errone-
ous standard, we cannot embrace this argu-
ment. The clearly erroneous standard is
applicable in both constitutional and statu-
tory voting dilution cases.

7 The opinion of the court below is long
/and detailed and at first blush seems fairly

../ invulnerable to a Rule 54a) attack. How-
ever, because of its failure to take note of
subetantial contrary evidence presented by
the appellants, it is necessary to remand the
case for further findings. It may be that
the court below did not consider such evi-
dence substantial or did not credit its validi-
ty, but we are unable to determine from a
silent record the thought processes of the
court below.

t5] In passing the 1982 amendment !o
the Voting Rights Act, Congress reacted to
the Supreme Court's decision in City of
Liobile v- Bolden, 446 U.S. 55, 100 S.Ct.
1490, 64 L.Ed.zd 4? (1980), which had held
that a claim of dilution of minority voting
strength could succeed only upon a showing
of discriminatory purpose. By passing the
1982 amendment, Congress rejected the
purpose standard in voting dilution claims
and substituted in its place a results test
under the totality of the circumstances. As
stated in the Senate Report on the
amendments:

The amendment to the language of
Section 2 is designed to make clear that

S.Rep. No. 417, g?th Cong., 2d Sess., re-
printed in 1982 U.S.Code Cong. & Ad.News
177,205. It is clear that Congress intended
to lighten the burden of plaintiffs in voting
dilution cases.

We are being Lsked to write on a clean
slate under this standard. If under the
intentional discriminatory purpose standard
we required detailexl findings of all relevant
substantial evidence, we certainly should
require no less under [he results test when
deciding whether there has been a Voting
Rights Act violation.

The court below held that the decision of
the citizens of Abilene "to perpetuate the
at-large scheme, as provided in the 1911 and
1962 city charters, was a conscientious deci-
sion made on the basis of available data and
reflective of the pervasive political theory
of the time." (Memorandum Opinion at
2'l). With regards to the 1962 adoption of
the at-large election scheme, plaintiffs ar-
gue with some merit that more should have
been said about this event, which not only
continued the at-large election scheme but
also added a majority vote requiremenl

t6l A fact completely ignored by the
court below was the plaintiffs' elidence
about the extreme level of racial tension
during the time period of the 1962 charter
amendments, as well as evidence that it was
well known at the time that at-large elec-
tions, majority vote requirements, and stag-
gerrd terms tended lo dilute minority vot-
ing power. There was also evidence
presented that the chairman of the Charter
Commission, during the 1962 charter ehc-
tion, stated that one of the rea.sons for the
adoption of the majority vote requirement
was to insure a minority could not gain

I



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JONES v. CITY 0F LUBBOCK
Citeas 727 F.2d 364 (19E4)

cial and political-pn-rvitletl a partial motive The record might persuade us that the

for the rnovement to at-large government. first two inferences are -qound' The best

.rvailable t'vi,lence suggests that Dow con-

trolled the paper's views to an e-\tent r-hat

he is lairly charqeable with at leiut irpprov-

ing them. \1.'e ,ioubt that the district ,:ourt

mistakenly imputed the views to llr Dow.

Although Lubbock lacked a substantial

black population when the charter commit-

tee sat, the editorials do espouse an exag-
gerated concern for keeping both the politi-
cal system and the City itself free of any

black influence. On that basis, we must

acknowlerlge that Mr. Dow coultl have en-

tertained the possibility of structurally lock-

ing blacks r>ut of the political s!'stem.

t3] The sparse record, however, leads us

to conclude that the final infertnce goes too

far.3 Certainly, the paper's circulation and

the historical context makes palatable the
notion that Dow's views had more than

limited appeal. Yet, we know nothing of
the other charter commission members.

The black ppulation of Lubbock in 1920

consisted of only 66 persons. Particularly
in light of pen'asive statutory limitations
on blarck participation, the notion that the
fifteen charter commission members con-

cernetl themselves with adding a superflu-
ous means of ensuring hlack plitical po*-
erlessness appears implausible.

We could certainly accept that the Lub-

bock electoral system effectively maintains
the effects of other past denials of access.

We might even accept findings that the

charter commission would have adopted

such a system if its members believed that
the black residents represented any genuine

political threat. We do not, however, per-

ceive enough evidence to affirm findings
that the commission adopted the electoral
system, even in part, because it would pre-

reflecting on the purpose of the decision. Id. at

267-68, 9? S.Ct. at 564-65. Undoubtedly, the
evidence here sheds some light on the historical
background of the Lubbock at'large system.
The record. however, tells us nothing about the
events or procedures attending the l9l7 initia-
tion of that system. We are asked hot to judge

intent from the "statements" of the legislative
body, but rather those of a single member.

:l7l

.r\.:

.A

U,2l As the CitY views the evidence,

the connection betrveen the appearance of a

few editorials over the space of 12 1-ears

crrates too tenuous a link between the
probable views of a single citizen and the

driving force behind the charter commis-

sion; thus, the City argues, the evidence

cannot suffice to sustain the finding of
discriminatory intent. To reverse the find-
ing of the district court, of course, we must

7 proceed under the clearly erroneous rule.

. / nea.R.Civ.P. 52(a); see, e.g., Bogeru v.u l^ilg", {58 U.S. at 622-'8, 102 S.Ct. at
3718-79; Chescheir v. Liberty llutual In'
sutance C-o., 713 F.2d 1142, 1148 (5th Cir.
1983). Only if, on a review of the record,
we derive the clear impression that a mis-
take has been made, may we second guess

the conclusions of the district judge. See

Unitcd States v. Ltnitcd States G-rpsum.333
u.s. 364, 395, 68 S.Ct. 525, *11,92 L.Ed. 716

(1e48).

We note, however, lhe multiple inferenc-
es that this evidence requires. There is no
direct evidence that Mr. Dow authored the
articles; thus, the evidence must fairly at-
tribute to Mr. Dow the articles'statements.
T'trere is no direct evidence that those senti-
ments affected Mr. Dow's participation in
the charter commission; thus, some evi-
dence must suggest that Mr. Dow would
have espoused those views in connection
rith the City's form of government. Final-
lr, ther€ is no direct evidence that Mr.
Dov's alleged views influenced the commis-
rfrn's deliberations; thus, some evidence
mwt suggest either that these views played
bme part in the commission's deliberations
c' at least, that other committee members
rctively shared these views.

t 
^ta 

erfingto n Heights v. Metropolitan Housing
7: Cqp., 429 U.S. 252, 97 S.Cr. 555, 50
LF/r.2d 450 (1972), rhe Court suggested rhat a
trlinuff rray demonstrate intent circumstan-tuly throudh evidence of: (l) the historical
UckgrounO-of the decision; (i) the sequence ofc\'tat! leading up to the chailenged 

-decision;

rJ^, proc€dural or substantive departures frombrmal decision-making; and (4) sratements,|&ludinS legislative or"adminisirative history,

5

..i!

E*.t
,

li



380 727 FEDERAL REPORTER.:d SERIES

tiff to meet 3ome 'objective design' test
that is, in effect, a version of the 'foreseea-
ble consequences' test of tort law."); 128

Cong.Rec- H3841 (daily ed. June 23, 1982)
(remarks of Rep. Sensenbrenner).ll See

a/so S.Rep. No. 417 at l9-2{. 1982 L:.S.Code
Cong. & Ad.News at.196-202 (reriewing
prior case law and congressional under-
standing of. White). Thus. whatever the
proper interpretation of early voting dilu-
tion cases may be, Congress has set the
courts to the task of giving them meaning
as "results" cases. See generally Buchanan
v. City of Jackson,708 F.2d 1066, 1071-72
(6th Cir.1983) (no need to inquire into pur-
pose under amended section 2).

tlTl We cannot adopt the City's position
that Congress absent-mindedly reimposed a

standard that the legislative history so care-
fully rejects. No court that has considered
amended section 2 has adopted the City's
view of the congressional intent. The stat-
ute itself and the legislative history require
that we conclude that the test is one of
"results." 8.g., Buchanan, 708 F.2d at
1071-72; McMillan v. Escambia County, ffi8
F.2d 960, 961 n, 2 (5th Cir.l982), probable
juisdiction noted, 

- 
U.S. 

-, 
103 S.Ct.

1?66, 76 L.Ed.zd 341 (1983).

C. The District Court's Findings.

The City next urges that we reject as

clearly erroneous the court's findings as to
one of the congressional factors-polarized
voting. They attack the accuracy of plain-
tiffs' evidence of polarization, its signifi-

ll. As Rep. Sensenbrenner, one of the House
Subcommittee members, made clear:

Let there be no question then. We are
writing into law our understanding of the test
in White against Regester. And our under-
standing is that this looks only to the results
of a challenged law, in the totality of the
circumstances-with no requirement of prov-
ing purpose. But should the Highest Court
in the land---or a majority of the Court-<on-
clude there is a purpose element in White,
then the committee nonetheless has drafted a
bill that does not incorporate this require-
ment, and that is the ultimate legislative in-
tent of the bill we are adopting here today.

The test to be applied againit the totality of
circumstances as set out in White against

cance in light of the court's t'indings on

responsiveness anti the r.legree of reliance
the court placed on the evidence of polariza-

tion. In response. plaintiffs contend that
the court's findings of responsiveness and

of a lack of a tenuous justification for the
electoral system are clearly erroneous.
With the caveats that follow, we find no

clear error.

1. Polarized Voting.

Erpert testimony provided a substantial
basis from which the court could have

found polarization. In the initial trial, Dr.

Charles Johnson, plaintiff's expert, testified
that minority candidates received an aver-
age of only 11% of the vote in predominate-
ly anglo precincts in Lubbock compared to
an average of 63% of the vote in predomi-

nately minority areas. At the second trial,
Dr. Robert Brischetto introduced polariza-
tion studies purporting to show that the

race or ethnicity of a candidate overwhelm'
ingly determined voter preference.

Without disputing these studies, the City
emphasizes that minority candidates have

succeeded with the support of the anglo
community in elections for the school board.

These electoral successes purportedly dem-
onstrate that a qualified minority candidate
can succeed in elections in Lubbock, and

that the results of polarization are not se-

vere. Like the district court, we place little
reliance on this evidence. Unlike city coun-

cil elections, the school board elections did

not feature a majority vote requiremenL

Regester and the case law under it. [sicl
That test does not depend upon any finding
or inference of intent, nor does it require--as
some have erroneously sugSested-a findinS
that there are barriers to the process of regis'
tration and voting themselves. Thus' the
problems of discriminatory slating and lan-

guage difficulties in the White against Rege*
ter case are important factors to be con'
sidered along with other factors such as ra'

cial bloc voting and the other types of fac'
tors, but they are not essential prerequtsites'
if ,rther relevant factors can be ihown which
in the aggregate add up to the discriminatory
result.

128 Cong.Rec. at H3841.

Furthermore, the rest

ferences between scl

council elections tha

probity of school dist

demonstrate Lhe eKt

Lubbock. Until rer

elections were held o

the citY c'ouncil elect

out, and an electora

educational issues,

board eler:tions'

t18l FinallY, the

trict court's finding
stantiallY undercuts

of polarized voting

knowledged that' i

polarized voting all

regard minoritY tn
political conseque

showing of unresP'

voting can combiu
tional exPloitation
l{evett Il, 5'll F '2
sponsiveness, the.

voting lacks stgnt

t19l \Ye do not

oolarized voting a

make a Plaintiff'
absence of unres
gate other inferer
zation. Whether
ignore minoritY
nevertheless freel
for disadvantagir
ty. Rogers v. L
S.Ct. at 3?19; N
n. 16; NAACP
County &hool
(llth Cir.1982).
confirms that ra
at issue in the p,t

12. The dependet
the Cin's "respr
upon e)aminati
the disposition
block grants. I
projects that fr
court's findings
s€rvices derive(
niry developm€
tus, as its prin

rhe developr
ties, by prov



JONES v. CITY OF LL'BBOCK
Cite as 727 F.2d 364 (19E4)

381

Furthermore, the :estimrrnv established iif- r- .S. a: rl:)1, 102 S.r_-t. at 32ig; \e,".ett II,
iercnces betu'een -.choo[ district and ,]itv .-);1 F 2d at'ts).3 n. 16; Terrazas r.. Clements.
council elections that, cast rioubt on rhe .\,r i-gL jiL)i-R. siip op at B? n. 25 {-\.D.
probity of school 'iistrict '''oting pattefns to ler:., J.inuat'1 -t, i9S.1) rthree ,iu,:lge tlistrict
,iemonstrate the e.xtent of polarization in cr),jrt).

[20. 21] Furilitjrniore. we r"eject the
(--it]-'s implicit oremise rhat responsiveness
nrovides tn cssentiai element of an action
under ,secrion 2. Even a ,lilution claim un-
,ier the con-stitution rloes not tr-,quire unre-
-rponsiveness. fiogers, 158 U.S. at 625 n. 9,
102 S.Ct. at 3280 n. 9. Untler a results test,
(-ongress has expressl.v disapproved exces-
si',-e reliance !)n resl)onsii'eness. S.Rep. No.
117 at 29 & n. 116, L.S.Code Cong. & Ad.
\ews at 207 & n. 116. \Yhether, unrler rhe
totalit-v r)f {tircuntstances, responsiveness rle-
ieats plaintiffs' claims is a matter we rvill
r,'onsirler rnt'ra.

2. Eesponsireness. .,'
For their part, ptaintiffs contend that the

,listrict court clearlv erred in fintling re-
sponsiveness rvithout aririressing plaintiffs'
eontrary' evitlence. They point out that
many Cit-v policies fatorable to minorities
resulted primaril.v from the impetus r.rf law-
suits, demonstra[ions or adverse publicity.
\loreover, they maintain that most evidence
,rf equal provision of municipal serv.ices car-
ries little iveight because ferleral programs
targeting minoritl' areas supplied the lunrls.

t22l lVe cannot conclutle that the dis-
trict court clearlv erred in crtncluding that
piaintiffs rlicl nrtt estirblish :r signilicant
lack of responsir-eness to the particularizerl
needs of minttrities. !Iinoritv areas tlo re-
ceive a substantial share of rnunicipal ser-
vir,'es, albeit largel-v on rhe strength of fed-
eral funrling.rr The C'ity's affirmative

able living environment and expanding eco
nomic opportunities, principally for persons
of low- and moderate-income.

24 C.F,R. S 570.302 (1983). The City must
certify that:

its community development program has
been developed so as to give maximum feasi-
ble priority to activities rhat will benefit low-
and moderate-income families. . . .

Id.

Lubbock. Until recentll'. school riistrict
eiections were held on a rlate -.eparat€ irom
'.he city council elections. Low voter turn-
,lut and an electorate highly' interestetl in
erlucational issues, characterized school
board elections.

tl8l Finally, the Citl' urges rhat the',lis-
trict court's finding of responsiveness .uh-
stantially undercuts :rn;' .;tatistical shorvl ng
of polarized voting. Our cases have ac-
knowledged that, as ,rne invidious rr:suit,
polarized voting allows ,rfficeholders to riis-
regard minority interests without fear ot'
political consequences. Accordingly, a
showing of unresponsiveness and polarizerl
loting can combine to rlemonstrate ..inten-

'.ional exploitation of the electorate,s bias.,'
.\'evett Id 5?l F.Zt at 1223. Without unre_
.ponsiveness, the (litv contends, polarizeri
voting lacks significance.

[t9t We do not agree. While combining
polarized voting and unresponsiven"., rri.
make a plaintiff's case ,.strong," rri., thi
absence of unresponsiveness does not ne-
gate other inferences that flow from polari-
zation. Whether or nor Citv officiils rlo
ignore minority interests, polarization
nevertheless frees them of political reprisal
for disadvantaging the minority communi-
'-Y Rog,ers v. Lodge, 158 U.S. * 6n, n2
S.Ct. at 32?9; ,Ver.Jtr tI.57t F.2d at 221 &

1 l0; iVA,lCP by Campbell v. Gadsden
Lounty Sbhoo/ Boarrl. tigl F.2d 9?9, 9g3(llth Cir.1982). Moreover, polarized voting
tnnfirms that race, at least subtly, remains
at issue in the political system. Eogers, 45g

12.. The dependency on federal funds for most ofthe Citvs "rcsponsirc' spcrrtling bccornes rlclrr.
u?on examination of the exhiblts summarizing
the 

. 
disposition of community developmeni

olock grants. D.Exhs. tg,22,2i. lvlany of theprojects that formed the basis of the district
coun's findings on equal provision of municipal
s€rvices derived their funding from the commu_
ru-ty development btock granls. That program
nas, as its primary objeciive:

the development of '",iable urban communi-
ties, by providing decent housing and a suit.



382 72? FEDER.{L REPORTER' !d SERIES

acti()n plan has rncreased the shtrre,rt pub- We aiso note that t"he circumstances sug-

tic emplo-vment enjoy-erl by minorities, el- gest that much of.the affirmative evidence

beit not in the mr:st hrghlv pairl ,ir responsi- ,rf responsiveness is suspect' The City can-

Ut" ro.irion..ri Citv,rt'ficials have acretl on not taie creclit entirely for the equal provi-

a number of pro]eets of speciai interest to sion of city ser';ices; the lunds for these

Lubbock's biack and liesican-American ,lerived largely from federal programs

communiries. albeit perhaps without the aimerl at economically'rlepressed areas' 
,.S99

;;;"J ". degre of willir4Jness that the Perkins v Citl' of west Helena' 675 F'2d

minority communities rlesirecl. 201,210 n. 12 (8th Cir.1981), afJ'd' 459U'S'

Atthesametime,therlistrictcourtover-801'103S'Ct':13'?1L'Ed'2d17(1982)'
stated matters by declaring that "over- Furthermore, much of the evidence of re-

whelming evidence establishes a real re- sponsiveness concerns.programs initiated in

,;;;i;;;"t' bv the citl'of Lubbock " sub- tire vears during which this action has been

sLntial unadiressed evitlence suggested p"njing. Actions taken during the course

that demonstrations or protest often at- or titigution in which.the degree of respon-

tended the ilecision-making process in in- sivene"ss has been an important evidentiary

;;;;". where the city did respond to mi- issue cannot be rlecisive of past and future

nority needs.l{ Substantial unaddressetl ev- conduct by the Cit):'

ll":x,m":i"lJH*T :lll,fil"^,:T Despite these rrirricurties in rhe evidence'

or public meetings by minorities'r5 Sub- *e cannot conclude that the ev-idence of

stantialunaddresserlevidencesuggestedunresponsivenessclearlypreponderates.
that the City has used one advisory borly'- Nor can we tliscern clear enor' If the

the Lubbock Human Relations Commis- court had reliecl on this evidence as a factor

sion-as a means of channeling, and often strongly militating against relief, we might

ignoring, minority irprl." whi-ile we would be inJline.l to require further findings' The

hardly reverse the finding of responsiveness clistrict court, however' regarrled the evi-

on the basis of this eiidence alone, we tlence as inconclusive in light of the dimin-

would expect explicit .r"alrritity findings ished role responsiveness plays under the

beforelightlydisregardingit.resultstest.Weagreethattheweakness

of the
of sect

sponsir
second

The
should
ing ag

at-larg
they a

text, I
strong
systen

t23l
found,
preciv
large
the e'

that
adopt'
lhat r

See (
(5th I

Cir.19
1r0l
the d

under

&n.
at 20
nesg

evalu
s)'ste

D.

Wr
ing r

Lubt
ty ci
Undr
has r

accer

revir
natu
clml
r"ion.

findr
abor

13. Stipulated Exhibits AA through II contain

breakdowns of the racial and ethnic composF

tion of the City work force and its change over

the period during which the affirmative action

;;d; has beJn in force' While in terms of

sheir numbers, blacks and Mexican-Americans
a.e wett-represented in the work force' the dis-

tribution oi minority workers by job category

reveals that blacks and Mexican-Americans are

most heavily represented in service and main-

tenance or clerical positions, and underrepre'

sented in administrative, professional and para-

piofessional positions. Stip Exhs' EE CG;

Exhs. SS-13 to SS-22.

14. For example, one witness testified about the

relationship between protests in Lubbock dur-

i", tn" t970s and the movement toward in-

l.E"t.a minority hiring by the Citv' Supp R' 8'

825-26 (tesdmony of Andres Tijerina)' Anotn-

"i 
*itn"it related how the city council permit-

i"d th" M.*i""n-American community to adopt

" f"f"*i*n name for one neighborhood park

after members of the Mexican-American com-

munity moUilized media attention' Supp R' 9'

1023-i6 (testimony of Gilbert Herrera)'

15. So, for example, there was testimony that' in" inv i-p"sei a curfew in minority neigh-

i"tt ""it fotlowing the police shooting of a

black youth. Supp-R. 7' 568-70 (testimony 
-oi

Thomas Petterson). 'Another witness' a pnesl'.

i"i"i"J-intt"n.es of harassment after he held

ouOii. .."tings. Supp R' 9, 965-s6' Th" lT:
iritn"tt reported harassment of his pansnte

;;;;;ft". public meetings at his church' Id at

966-7 l.

16. Several witnesses' inctuding former mffi
bers of the Human Relations Conunission' test
fi.J uUor, their own impressions-at *"U-,1:

the impressions of the rrunority commu-ru-l::

nenerailv-that the commission was a "tronL.

I. "g".." that created only the tp""t1l:"^:
minJrity input. Supp.R 5, 174-77-(testrmonv

of Gene Gaines); Supp R 6' 338-407 qtlT:
nV of W"Vn" Dickey): Supp R' 1^' 571-72 

^(est}
mony of Thomas Patterson) One witness rc-

tated that a former mayor of Lubbock flatly

ioia ni- that the commission should not in-

volve itself in the operation of other g9-":T

*-"ni.i uoai", in the Citv' Supp R' 6' 45o-5r

(testimony of Luciano Perez)'

TI
that
the


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