Collins v. City of Norfolk Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    No.85-

IN THE 

~uprttttt Qtnurt nf tf1r l!luttr~ ~tatt.a 
OCTOBER TERM, 1985 

HERBERT M. COLLINS, et al., 
Petitioners, 

v. 

CITY OF NORFOLK, VIRGINIA, et al., 
Respondents. 

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

Of Counsel: 
PROF. HARLON L. DALTON 

127 Wall Street 
New Haven, CT 06520 
(203) 436-2216 

GENE B. SPERLING 

1265 Lincolnshire Lane 
Ann Arbor, MI 48103. 
(313.) 662-2216 

WILLIAM L. ROBINSON 

FRANK R. PARKER * 
SAMUEL ISSACHAROFF 
PATRICIA M. HANRAHAN 

LAWYERS' C'OMMITTEEFOR 

C'IVIL RIGHTS UNDER LAW 

1400 Eye St., N.W., Suite 400 
Washington, D.C. 20005 
(202.) 371-1212 

JAMES F. GAY 

1317 E. Brambleton Avenue 
Norfolk, Virginia 23504 
(804) 627-3100 

Attorneys for Petitioners, 
Herbert Collins, et al. 

* Counsel of Record 

WILSON • EPES PRINTING Co. , INC. • 789-0096 ·WASH INGTON , D . C . 20001 





QUESTIONS PRESENTED 

This is an action challenging at-large city council elec­
tions in Norfolk, Virginia, for unlawful dilution of black 
voting strength in violation of Section 2 of the Voting 
Rights Act. The District Court, using its own standards 
for the legal criteria which departed significantly from 
those mandated by Congress for proving a Section 2 vio­
lation, ruled that the proof failed to establish a violation 
of Section 2. The Court of Appeals, Judge Butzner dis­
senting, viewed all of the district court's decision as rest­
ing entirely upon factual findings subject to the "clearly 
erroneous" standard of Fed. R. Civ. P. Rule 52 (a) and 
it affirmed the district court's judgment without examin­
ing the legal framework by which the trial judge eval­
uated the facts. In this context, the questions presented 
are: 

1. Whether the Court of Appeals met its responsibility 
to correct the errors of law that infected both the sub­
sidiary fact-finding and the ultimate judgment of the 
district court, when it applied the "clearly erroneous." 
standard of review to all of the issues raised in this 
case, including challenges to the district court's interpre­
tation of terms and standards in Section 2 of the Voting 
Rights Act and its legislative history? 

2. Whether relief under Section 2 of the Voting Rights 
Act, as amended in 1982, may be denied because of a 
district court's view that actions and conditions which 
Congress stated were highly indicative of a statutory vio­
lation had not been brought about "intentionally," when 
Congress' clear purpose in amending the law was to 
eliminate any "intent" requirement from Section 2 cases? 

3. Whether the Court of Appeals should have reversed 
as "clearly erroneous" the district court's assertion that 
there was Hno evidence'' to support plaintiffs' claim of an 
attempt to moot this voting discrimination lawsuit by 
manipulating the election of an additional black city 

(i) 



ii 

council member on the eve of trial, since the evidence 
included highly probative indicia of this claim, including 
admissions by an important governmental official of pro­
bative contemporaneous. statements? 

4. Whether the Court of Appeals erred in affirming the 
District Court's judgment denying relief from at-large 
city ,council voting <based, in part, on the District Court's 
view that the institution of a ward system in which some 
wards would be majority black would constitute "segre­
gated voting" and would violate Section 2's proviso that 
the statute does not esta;blish a right to proportional 
representation. 

LIST OF PARTIES 

The Petitioners, plaintiffs in the action below, are: 
Herbert M. Collins, Dr. Marks S. Richard, Barbara C. 
Parham, William E. Swindell, Jr., Dr. Milton A. Reid, 
Julien Hazel, George Banks, and the Norfolk Branch, Na­
tional Association for the Advancement of Colored People. 
The Respondents, defendants in the action lbelow, are the 
City of Norfolk, Virginia; Vincent J. 'Thomas, Mayor; 
Dr. Mason C. Andrews, Joseph A. Leafe, Rev. Joseph N. 
Green, Jr., Claude J. Staylor, Jr., <Robert E. Summers, 
and Mrs. Elizabeth M. Howell, members of the Norfolk 
City Council; the City of Norfolk Electoral Board; and 
Paul D. Fraim, Martha H. Boone and Paul M. Lipkin, 
members of the City of Norfolk Electoral Board. Re­
spondents were sued in their official eapicity and are 
designated according to office held when suit was ,filed. 



TABLE OF CONTENTS 
Page 

Questions Presented ------------------------·---·-------·-----------··---·--··· i 

List of Parties ·---- ·--------------··- ----·········-··--- ---·········--------·------· ii 

Table of Authorities ----------········· ··- ---·-·-------·····--·······-········· v 

Opinions Below··------------------ -·---------·----- ---- -·--------·------------···- 1 

Statement of Related Proceedings -- -------- ·--------- ------ ------- --- 1 

Jurisdiction----------·---·---······---·--···-·····----------------····-·-·-------·---- 2 

Statutes and Rule Involved ---------------------· ----···················· 2 

Statement of the Case ........................................................ 2 

Reasons for Granting this Writ --- -- -------·--·-······················ 10 

Introduction .................................................................... 10 

I. Failure to Review District Court Rulings of 
Law Interpreting the Factors Establishing a 
Violation of Section 2 of The Voting Rights Act 
Was Neither Required Nor Justified Under Fed. 
R. Giv. P. 52 and Presents an Important Issue 
Upon Which Guidance from this Court is Re-
quired... ...................................................................... 11 

II. Without Independent Legal Review, The Court 
of Appeals Affirmed the District Court's Appli­
cation of Improper Legal Standards Which Con­
flict with Decisions of this Court, other Courts 
of Appeals, and the Legislative History of Sec-
tion 2 -------------------------------------------· ·········-····-------------- 16 

A. The Court of Appeals Affirmed Without 
Comment the Application of An Intent 
Standard to the Critical Evidentiary Factor 
of Racially Polarized Voting------------------------- -- 16 

B. The Court of Appeals Also Affirmed an In­
tent Standard for the Question Whether the 
Norfolk City Government was Unresponsive 
to the Needs of the Black Community __ _____ __ 20 

(iii) 



iv 

TABLE OF CONTENTS-Continued 

C. The Court of Appeals Affirmed the District 
Court's Imposition of Heightened Proof Re­
quirements Not Grounded in the Statute and 
the Misdefinition of Other Evidentiary 

Page 

Standards ---------------------------------- ---------- -------------- 2:0 

1. Slating Process ---------------- -- ------------------------- 21 
2. History of Official Discrimination __________ 22 

3. Discriminatory Election Mechanisms ·---- 23 

4. Lingering Socioeconomic Effects of Past 
Discrimination --------- ------- --------- -------------------- 24 

III. The Court of Appeals Failed to· Carry Out its 
Proper Responsibilities Under Fed. R. Civ. P. 
52 (a) When It Allowed to Stand a District 
Court Ruling That There Was "No Evidence" 
Supporting the Claim that the Eve-of-Trial 
Election of a Second Black to the Norfolk City 
Council Resulted from Manipulation of the Elec­
toral Process in an Attempt to Moot this Law-
suit ---------- ------------- -------------------------------------------- --------- 25 

IV. The Proper Legal Remedy of District Elections 
was Erroneously Equated with Proportional 
Representation and Denied Plaintiffs an Inde­
pendent Assessment WhetheT the At-Large Sys­
tem was a Violation of Section 2 of the Voting 
Rights Act ----- --- ----- ------ -------------------------------------------- 27 

Conclusion ·-- ---------------- -------------------------------------------------------- ·- 28 



v 

TABLE OF AUTHORITIES 
Cases Page 

Anderson v. City of Bessemer, 470 U.S. --, 84 
L.Ed. 2d 518 ( 1985) _______________________________________________ passim 

Baumgartner v. United States, 322 U.S. 665 
(1944) --- --- ---------------------- -------------- ---------------------------- 13 

Beer v. United States, 425 U.S. 130 (1976) __________ 18 
Bose v. Consumer's Union, 466 U.S. 485 (1984) __ 15 
City of Lockhart v. United States, 460 U.S. 125 

(1983) -----------------------------------------------------·· ·············-·· 18 
City of Mobile v. Bolden, 446 U.S. 55 (1980) ___ ____ passim 
City of Petersburg v. United States, 354 F.Supp. 

1021 (D.D.C. 1972), aff'd, 410 U.S. 926 (1973) __ 18 
City of Port Arthur v. United States, 459 U.S. 159 

( 1982 >------- ------ -------·-------- ---------------------------- ---------------- 18 
City of Richmond v. United States, 422 U.S. 358 

(1975) -------------------------------- ----- ------------------------ --- ------- 18, 2.8 
City of Rome v. United States, 472 F.Supp. 221 

(D.D.C. 1979), a.fj'd, 446 U.S. 156 (1980) --------- 18, 23 
Commissioner v. Duberstein, 363 U.S. 278 (196:0:) __ 13 
Graves v. Barnes, 343 F.Supp. 704 (W.D. Tex. 

1972.) (thre~judge court) -------------------------------- ---- 18 
Hathorn v. Lovorn, 457 U.S. 255 (1982) ___ __ __ ________ 18 
Inwood Laboratories v. Ives Laboratories, 456 

u.s. 844 (1982) ·····-·------------------------------------------------ 15 
James v. Ducksworth, 170· F.Supp. 342. (E.D. Va. 

1959), aff'd, 267 F.2d 224 (4th Cir. 1959) __ ____ ___ _ 4 
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 

1984) --------------------- --- -------------------- ------------------ ------- ---Passim 
Karavos Campania Naviera, S.A. v. Atlantic Ex-

port Corp., 588 F.2d 1 (2nd Cir. 1978) ______________ 14 
Kir·ksey v. Board of Supervisors of Hinds County, 

554 F'.2d 139 (5th Cir. 1977) (en bane), cert. 
denied, 434 U.S. 968 (1977) -------------···-------·------·· 20 

Major v. Treen, 57 4 F.Supp. 32'5 (E.D.La. 1983) ____ 18 
Manning v. Trustees of Tufts College, 613 F.2d 

1200 (1st Cir. 1980) ------- ------ -- ------------ ----------------- 14 
Mcintosh County NAACP v. Darien, 605 F.2d 

753 (5th Cir. 1979)--------------------------------------- -- -- ----- 21 
McMillan v. Escambia County (McMillan II), 748 

F.2d 1037 (5th Cir. 1984) ------- ---------------- ------------ --Passim 



vi 

TABLE OF AUTHORITIES-Continued 
Page 

Mississt~ppi Republican Executive Committee v. 
Brooks, -- U.S. --, 83 L.Ed.2d 343, 105 
S.Ct. 416 (1984) ----- ---------- ---- --- --------- ---- ------------------ 18 

Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), 
cert. denied, 446 U.S. 951 (1980) ------------------------- 18 

Parnell v. Rapides Parish School Bd., 42·5 F.Supp·. 
399 (E.D. La. 1976) ------------------------------------------------ 18 

Perkins v. City of West Helena, 675 F.2d 201 
(8th Cir. 1982), aff'd mem., 459 U.S. 801 
(1982) ----------------------------------------------------------------------- 18 

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ___ passim 
Rawl v. United States, No. 84-2333 (4th Cir., Dec. 

4, 1985) ------------------------------ --------------------------- ------------ 14 
Rogers v. Lodge, 458 U.S. 613 (1982) . ____________________ passim 
Stafos v. Jarvos, 477 F.2d 369 (lOth Cir. 1973), 

cert. denied, 414 U.S. 944 (1973) ------------------------- 14 
Stewart v. General Motors Corp., 542 F.2d 445 

(7th Cir. 1976) ------------------------------------------------------ 14 
Thornburg v. Gingles, No. 83-1968 (October Term, 

1985) ------------------------------------------------------------------- ------Passim 
United Jewish Organizations v. Carey, 430 U.S. 

144 (1977) ------------------------------------ --------- -- ------ --------- - 17, 18 
United States v. Dallas County Commission, 548 

F.Supp. 875 (S.D.Ala. 1982), rev., 739 F.2d 
1529 (11th Cir. 1984) _____________________________________________ passim 

United States v. Marengo County Commission, 731 
F.2d 1546 (11th Cir. 1984), cert. denied. 105 
S.Ct. 375 (1984) -- -------- --------------- ----------------------------Passim 

United States v. McConney, 728 F.2d 1195 (9th 
Cir. 1984), cert. denied, 105 S.Ct. 101 (1984) ___ 14 

United States v. Mississippi, 444 U.S. 1050 (1980,) __ 18 
United States v. United States Gypsum Co., 333 

u.s. 364 (1948) ----------------·- ---------------------------------- -- 25 
Washington v. Finlay, 664 F.2d 913 (4th Gir. 

1981) ------- ------- -- ------------------- ------------------------------------- 23 
Whitcomb v. Chavis, 403 U.S. 124 (1971) _______ _____ __ 18 
White v. Regester, 412 U.S. 755 (1973) ________ _________ passim 
William B. Tanner v. WIOQ, Inc., 528 F.2d 262 -

(3rd Cir. 1975) - ----------- - -----------·--------------------::- ~ ---- 14 



vii 

TABLE OF AUTHORITIES-Continued 
Page 

Wood v. Georgia, 370 U.S. 375 (1962) --------------------- 18 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973) (en bane), aff' d sub nom. East Carroll 
Parish School Board v. Marshall, 424 U.S. 636 
( 1976) ---------- -------- ------ -·-------------- ------------------------------ 12., 27 

STATUTES: 

28 u.s.c. ·§ 1254 (1) ------------------- -------------------------------- 2 
Voting Rights Act of 1965, 42 U.S.C. § 1973 __ _________ passim 

RULES: 
Fed.R.Civ.P. 52(a) ______ ________ ______________ __ ________ ______ __ ______ passim 

LEGISLATIVE HISTORY: 

S. Rep. No. 417, 97th Cong., 2d Sess. (1982), re­
printed in 1982 U.S. Code Cong. & Ad. News 
177 .---- ------------ ------------ -- ------ -- -- -- ------------------- --- ------------Passim 

H.R. Rep. No. 227, 97th Cong., 1st Sess. (1981) ____ 24 





IN THE 

@Juprtmt Qlnurt nf t4t Unitt!\ @Jtatt.a 
OCTOBER TERM, 1985 

No. 85-

HERBERT M. COLLINS, et al., 

v. Petitioners, 

CITY OF NORFOLK, VIRGINIA, et al., 
Respondents. 

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

Petitioners, who are the Norfolk Branch of the NAACP 
and seven black voters in Norfolk, respectfully petition 
for a writ of certiorari to review the judgment of the 
United States Court of Appeals for the Fourth Circuit 
entered on July 22, 1985. 

OPINIONS BELOW 

The majority and dissenting opinions of the Court of 
Appeals are reported at 768 F.2d 572 and are reprinted 
at App. A. The opinion of the district court is reported 
at 605 F. ~Supp. 377 and is reprinted at App. B. 

STATEMENT OF RELATED PROCEEDINGS 

The principal issues of substantive law in this petition 
overlap with those presently before this Court in Thorn­
burg v. Gingles, No. 83-1968 (October Term, 1'985), in 
which oral argument was held on December 4, J_985. 
Petitioners respectfully request this Court to defer con­
sideration of the present petition pending the resolution 
of Thornburg v. Gingles. 



2 

JURISDICTION 

The Court helow entered judgment on July 22, 1985, 
App. E, 83a. On September 13, 1985, the Court of Ap­
peals denied a timely petition for rehearing, App. D, 
82a. On November 25, 1985, Chief Justice Burger ex­
tended the time for filing this petition to and including 
January 31, 1986, App. C, 81,a. This Court has jurisdic­
tion to review the judgment below under 28 U.S.C. 
§ 1254 ( 1). 

STATUTES AND RULE INVOLVED 

The pertinent parts of tSection 2 of the Voting Rights 
Act, as amended, 42 U.S.C. § 1973, and of Rule 52 (a), 
Fed.R.Civ. Pro., are reprinted at Apps. G and H. 

STATEMENT OF THE CASE 

Norfolk selects its seven-member city ·council in city­
wide, at-large elections for staggered four-year terms. 
Generally, three council members are elected one year and 
four council members are elected two years later. (App. 
27 a. )1 Norfolk is Virginia's sixth largest city in size, 
and with a population of 266,979 (1980 Census) is Vir­
ginia's largest city in population. As of 1980, blacks 
made up 35.2 percent of the general population and 31.48 
percent of the voting 'age population (App. 26a). At the 
time of 1984 municipal elections, an estimated 35.4 per­
cent of Norfolk's registered voters were black (Ex. P-
213). 

Sixty.,five percent of the black citizens of Norfolk are 
concentrated in 15 of the ·55 precincts in Norfolk (Ex. 
P-158). Of these 15 precincts, 11 are over -90 percent 
black ( Tr. 599). If Norfolk were divided into single-

1 "App." refers to the appendix to this petition, "Tr." refers to 
pages in the trial transcript, "Ex. P-" refers to plaintiffs' exhibits, 
and "Ex. D-" to defendants' exhibits admitted into evidence at 
trial. 



3 

member districts or wards, blacks would have voting 
majorities in three of the seven wards (Tr. 670, Ex. 
P-52). 

Despite the fact that Norfolk historically has been ap­
proximately one-third black or more, in the half-century 
between 1918 (when at-large voting was adopted) and 
1968, no black person ever ·was elected to that body ( App. 
27a). The ;first black councilman was elected in 1968 
but from then until the time this lawsuit was filed, the 
council never had more than one black member ( id.) . In 
the May, 1984 dty eouncil election, held after this law­
suit was filed and just three weeks before trial, for the 
first time a second black council member was elected 
(id.). 

At trial, plaintiffs presented extensive evidence to estab­
lish the existence of each of the factors which Congress, 
when it enacted the 1982 Amendments to Section 2 of 
the Voting Rights Act, 42 U.S.C. § 1973, declared would 
support a finding of lack of full access to the political 
process for minority citizens, in violation of the Act. See 
S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-29 (1982), 
reprinted in 1'982 U.S. Code Cong. & Ad. News 177, 206:-
07 [hereinafter cited as S.Rep.] .2 We summarize below 
some of the evidence on matters which are significant 
because of the district court's legal errors. 

To demonstrate racially polarized voting in Norfolk, 
plaintiffs established that from 197 4 to 1982 the propor­
tion of white votes for all ·white city council eandidates 
ranged from 89.7 percent to 99.1 percent (Tr. 618-19, 
Ex. P-179). Votes by whites for all black candidates 
ranged from 0.9 percent to a high of only 10.3 percent 
( id.). No black candidate for city council has ever been 
supported by more than 32 percent of white voters. (Tr. 
633, Ex. P-183). While black voters have at times backed 

2 These factors are listed in Judge Murnaghan's majority opinion 
for the Court of Appeals. App. 7a-8a. 



4 

certain white candidates, in the last two elections blacks 
have overwhelmingly voted for :black candidates ( 67.0 
percent and 93.3 percent, respectively) (Tr. '620-21, Ex. 
P-179). 

Kimball Brace, an experienced analyst of voting be­
havior (Tr. 584-585, Ex. P-46), performed regression 
analyses of Norfolk city ,council elections between 197 4 
and 1982 and concluded that "there is severe and strong 
racial polarization and bloc voting in the City of Norfolk" 
(Tr. 638). A second expert, Dr. Richard Engstrom, who 
is a national authority on minority vote dilution, per­
formed an independent statistical analysis of Norfolk 
voting and concluded that "voting in Norfolk is racially 
polarized .... Seriously polarized" ( Tr. 920). Dr. Justin 
Green, defendant's main ·computer expert, admitted that 
the differences between Mr. Brace's regression results and 
his own were so small that he used Mr. Brace's figures in 
his analysis ( Tr. 1892), and 'both of defendants' experts 
admitted that there was a high correlation between race 
and voting in Norfolk city council elections (Tr. 1871-
72 [Dr. Green]; Tr. 2019-20 [Dr. Timothy O'Rourke]). 

Plaintiffs established a history of official discrimination 
in Norfolk. Black voters had been effectively disenfran­
chised by the literacy test and poll tax provisions of the 
Virginia Constitution of 1902 (Va. Const. ·of 1902, Art. 
IX § 140), which remained in effect until the Voting 
Rights Act ·of 1965, and Norfolk long maintained a dual 
school system which provided inferior education for black 
students. When the dty's high schools and junior high 
schools were desegregated by court order, the Norfolk 
City Council voted to close the integrated schools. See 
James v. Ducksworth, 170 F. Supp. 342 (E.D. Va.), 
ajj'd, 267 ·F.2d 224 (4th Cir. 1959), cert. denied, 361 
U.S. 835 ( 1959) . As recently as 1981 and 1982, the 
United States Attorney General had objected under Sec­
tion ,5 of the Voting Rights Act to state legislative re­
apportionment plans for the Virginia House ·and Senate, 



5 

in part because of the dilution of black voting strength in 
Norfolk ( Exs. P-27, P-28, and P-29). In 19.S2 the Justice 
Department objected to at-large voting in Norfolk's multi­
member House district because it diluted black voting 
strength (Ex. P-29); the Norfolk City Council supported 
the efforts of the Norfolk house delegation to retain this 
discriminatory multi-member district (Ex. P-11, pp. 73-
74; Ex. P-13, p. 80). 

Plaintiffs presented evidence that blacks were excluded 
from a slating process controlled by an all-white "west­
side business coalition" (Ex. P-11, pp. 9-21) which a 
witness for defendants claimed "has maintained a ma­
jority on council since I can remember ... " (Tr. 1672). 
When asked why a black candidate was not ,considered by 
the westside business coalition when they were "looking 
for somebody to run" with a slate consisting of two whites 
in 1976, Norfolk's Mayor Vincent Thomas replied that 
including a black on the ticket "was just not a reasonable 
political possibility" (Ex. P-11, p.21). 

Expert testimony was offered by the plaintiffs which 
indicated that electoral campaigns in Norfolk were chamc­
terized by both overt and subtle racial appeals. For 
instance, the question of school busing dominated the 1982 
city council election and all three white incumbents ap­
pealed to white fears and backlash on this issue (Tr. 
1134-35, 1183; Ex. P-12, pp. ,67-69; Ex. P-40). Addi­
tionally, voting in the subsequent election, according to 
the expert testimony, was polarized along racial lines and 
corresponded to the candidates' positions on busing. (Ex. 
P-16, pp. 36-38, Ex. 'P-187). 

Plaintiffs also sought to demonstrate that the election 
of a second black city council member in 1984 reflected an 
attempt to manipulate the electoral process so as to thwart 
their legal challenge to the at-large system. In the 1984 
election, which took place after the filing of this lawsuit 
and immediately prior to trial, the westside business 
coalition made a decision to run only two candidates in 



6 

an election in which there were three open seats (Tr. 
1672-73, Tr. 921); in a January 1984 newspaper inter­
view Norfolk Mayor Thomas remarked: "After the elec­
tion, the issue of black representation may become a moot 
point" (Ex. P-11, p.101). 

Finally, plaintiffs also sought to show that Norfolk's 
large size in both population and land area, the election 
of council members for staggered terms, and the absence 
of any district or ward residency requirement, when seen 
in conjunction with pervasive racially polarized voting 
served to "enhance the opportunity for discrimination 
against the minority group" CS. Rep. at 29). 

The District Court Opinion 

Despite this evidence, the district court rejected plain­
tiffs' claim and ruled that the at-large voting system for 
electing the Norfolk City Council did not violate Section 
2 of the Voting Rights Act. The district court either 
discounted or found against plaintiffs on each of the nine 
factors which Congress, in enacting the 1982 amendment, 
regarded as ·strong evidence to support a finding of a 
Section 2 violation. See S. Rep. at 27-29. For example, 
the trial judge held that the fact that in two recent elec­
tions the turnout rate of black voters had exceeded that 
of white voters offset the entire history of official discrimi­
nation in Norfolk. App. 33a. 

The district court rejected plaintiffs' claim that Nor­
folk city council elections had been characterized by 
pervasive racially polarized voting by adopting a three­
part definition of bloc voting proffered by defendants' 
expert Dr. Timothy G. O'Rourke. These factors are: "the 
presence or absence of 'white backlash,'" "the voting 
patterns of black and white voters over a period of years," 
and "whether whites attempt to limit the field of candi­
dates." App. 35a-4}a. Without reference to either the 
legislative history or any appellate court decision thus 



7 

defining racially polarized voting, the district court ex­
pressly embraced this definition because "it more effec­
tively considers voters' motivations in selecting particular 
candidates" ( id.) (emphasis added). · 

The district court also rejected plaintiff's evidence of an 
all-white slating process, basing its conclusion expressly 
upon a novel definition by Dr. O'Rourke of a slating group 
as "a permanent or semipermanent organization who 
[sic] recruits candidates to run for ... as many seats 
as are open . . . as a slate." App. 44a. It also re­
jected plaintiffs' claims that elected officials in Norfolk 
were unresponsive to the needs of the black -community by 
seeking to excuse historic underrepresentation of blacks 
in Norfolk governmental employment because other local 
entities' records were no better (App. ,53a-54a) or because 
of recent recruiting efforts mandated by federal court 
decrees governing the police and fire departments ( id.). 

'The district court rejected daims by plaintiffs that the 
Norfolk Redevelopment and Housing Authority (NRHA) 
had not been responsive to the needs of black residents, 
particularly in its relocation of 1800 black families from 
their neighborhood, because plaintiffs had failed to estab­
lish racial ,animus as the motivating faetor. App. 58a-
62a.3 

Thus, the trial court minimized the significance of 
plaintiffs' proof either by holding it insufficient to meet 
an evidentiary burden not grounded in the statute, or 
by simply denying its existence. Having failed to credit 

3 The district court also, found no racial appeals in city council 
elections, App. 48a-50a, that there was "no evidence" that the elec­
tion of a second black city council member after the filing of this 
lawsuit was an attempt to moot this case, id., determined that 
Norfolk was "not an unusually large election district" App. 7la, 
and held that neither the staggered election terms nor the lack of 
a district residency requirement enhanced the opportunity for 
discrimination in Norfolk city council elections-despite Congress' 
recognition that both factors are evidence of a Voting Rights Act 
violation. 



8 

the plaintiffs with establishing any of the factors which 
Congress explicitly identified as substantial indications 
of discriminatory practices, the district court drew the 
conclusion that the "totality of the circumstances" failed 
to show a violation of Section 2 of the Voting Rights Act. 

The Court of Appeals' Decision 

On July 22, 1985, a divided Court of Appeals for the 
Fourth Circuit affirmed, Judge Butzner dissenting. App. 
83a. The panel majority characterized the issues as 
"essentially factual" and, applying the standard of review 
governing findings of fact contained in Fed. R. Civ. P. 
Rule 52 (a), found that plaintiffs had failed to meet their 
"heavy burden" of showing that the district court's rulings 
were "clearly erroneous" : 

Looking at the facts, as established by the record 
as a whole and measuring the question presented by 
the "totality of the circumstances," we simply are 
not left with a firm conviction that an error has been 
committed by the district judge ... [T] he question 
is . . . whether the district judge to 'Whom the 
resolution of the factual disputes is ,finally allocated 
was clearly erroneous. We 'Cannot say that he was. 
[iApp. 8a-9a.] 

Because of this standard of review, many of the im­
portant legal issues raised by petitioners are not addressed 
in the majority's opinion. For example, petitioners con­
tended that the district court erred as a matter of law in 
negating plaintiffs' extensive statistical proof of voting 
along racial lines in Norfolk council elections, and that 
the definition adopted by the district court is contrary to 
the legislative history of Section 2 and existing case law, 
including decisions of this Court. Yet this issue is not 
even discussed in the majority opinion. 

The dissenting judge recognized that "[t] he principal 
issues the appellants raise address errors of law to which 
the clearly erroneous rule does not apply/' that the 
mistakes of law "infected this entire proceeding," and 



9 

that "[g] iven the court's misperception . . . judgment 
against appellants was foreordained." App. 9a-15a (Butz­
ner, J., dissenting). 

Judge Butzner would have held that the requirement 
that plaintiffs in a Section 2 case show "white backlash" 
and "white attempts to limit the field of candidates," in 
order to prove racial polarization constituted an error of 
law "contrary to precedent," citing Rogers v. Lodge, 458 
U.S. 613, 623 ( 1982), in which this Court "has recog­
nized racially polarized voting exists when there is 'bloc 
voting along racial lines.'" App. 14a. Judge Butzner 
stated that the "additional elements the district court en­
grafted on the accepted definition of racially polarized 
voting require proof of intention to abridge the minority's 
voting rights," but because the 1982 Amendment to the 
Voting Rights Act "eliminated the necessity of proving a 
discriminatory purpose to establish a [Section 2] viola­
tion . . . [t] he district court's interpretation is contrary 
to the cardinal principle of the 1982 Amendment." App. 
14a (emphasis added). (The dissenting judge ·also found 
that the district court made this same "error of law" in 
requiring plaintiffs to prove that the relocation of the ap­
proximately 1800 black families in East Ghent "was 
racially motivated." App. 15a). 

Judge Butzner's opinion criticized the district court for 
"adopt[ing] without the citation of precedent, a restric­
tive definition of a 'slate,'" App. 14a, and declared that, 
"[ic]ontrary to Supreme Court precedent, the district court 
held that staggered terms and the lack of residency re­
quirements do not enhance the opportunity for discrimina­
tion against minorities." App. 15a. Finally, the dissent 
found "clearly erroneous" the district court's dismissal 
of the suspect events surrounding the election of a second 
black council member in 1984: "[t] he mayor's published 
statement was a subtle racial appeal, of the type which 
the Senate Report condemns, for implicitly it appealed to 
all who opposed the ward system, which was sought by 



10 

the NAACP, to vote for the mayor's black candidate." 
App. 17a. 

REASONS. FOR GRANTING THE WRIT 

Introduction 

As in Thornburg v. Gingles, No. 83-1968 (pending), 
this case presents important issues concerning the proper 
interpretation of the 1982 Amendments to Section 2 of 
the Voting Rights Act of 1965, 42 U.S.C. § 1973. Con­
gress acted decisively in 1982 to alter the prior inter­
pretation of Section 2 announced by this Court in City 
of Mobile v. Bolden, 446 U.S. 55 (1980), in order to 
restore the broad proscription of discriminatory prac­
tices which earlier decisions of this Court and the Courts 
of Appeals had recognized. It is therefore of critical 
importance that the "new" Section 2 be properly inter­
preted and applied in order to effectuate the Congres­
sional intent. 

Affirmance of the district court's ruling by the court 
below brings the Fourth Circuit into conflict with the 
standards of law set forth by Congress in the 1982 
Amendments, as well as with rulings of other Courts of 
Appeals interpreting amended Section 2. The trial court 
erroneously reintroduced into the Voting Rights Act an 
"intent" standard for proving several of the key factors 
which Congress identified as highly probative of a Sec­
tion 2 violation-in direct contradiction to Congress' cen­
tral purpose in the 1982 Amendments of removing any 
"intent" requirement. In addition, the district court dis­
regarded or reformulated other key evidentiary factors 
despite Congress' explicit endorsement of their signifi­
cance in the legislative history of the 1982 Amendments. 

This petition presents the Court with only the second 
opportunity to guide the decisionmaking of trial and ap­
pellate courts under Section 2. The district court ac­
cepted and applied many of the same sorts of arguments 
for an improperly narrow interpretation of Section 2 



]1 

which are advanced by Appellants in Gingles. But the 
Court of Appeals' majority declined to review those legal 
questions. Rather, it treated the case as one involving 
only factual disputes subject to the "clearly erroneous" 
standard of Fed. R. Civ. P. 52 (a). This Court should, 
therefore, grant the petition in order to consider and 
correct the critical legal errors made by the district court 
in construing the 1982 Amendments to Section 2, as well 
as to clarify the standard of review. 

This Court has a special responsibility, in light of its 
limited resources, to insure the availability of e·ffective 
appellate review of trial court rulings on legal questions. 
Recently the Court has emphasized Rule 52's deferential 
standard of review of factual determinations; but it has 
correspondingly affirmed that the Courts of Appeals must 
independently examine trial court rulings of law, even 
those which necessarily channel the subsidiary fact-finding 
upon which a trial court's ultimate judgment may rest. 
The failure of the court below to review rigorously the 
legal standards for establishing a Section 2 violation 
which were applied by the trial judge, therefore, also 
warrants review because it presents a recurring question 
about the division of responsibility and authority between 
trial and appellate courts that demands the exercise of 
this Court's supervisory jurisdiction. 

I. THE COURT OF APPEALS' F AlLURE TO REVIEW 
DISTRICT COURT RULINGS OF LAW INTERPRET­
ING THE FACTORS ESTABLISHING A VIOLA­
TION OF SECTION 2 OF THE VOTING RIGHTS 
ACT WAS NEITHER REQUIRED NOR JUSTIFIED 
UNDER FED. R. CIV. P. 52 AND PRESENTS AN 
IMPORTANT ISSUE UPON WHICH GUIDANCE 
FROM THIS COURT IS REQUIRED. 

In 1982, Congress amended the Voting Rights Act to 
provide a remedy for racial discrimination where the 
"totality of the circumstances" revealed that "the political 
processes leading to nomination or election in the state or 



12 

political subdivision are not ·equally open to participation 
by members" of a protected group, and that such "mem­
bers have less opportunity than other members of the 
electorate to participate in the political processes and to 
elect representatives of their choice." 42 U.S.C. § 1973. 
The authoritative Senate Report on the 1982 Amendments 
identifies many of the criteria to be examined under this 
"results" test to determine whether there is true equality 
of political opportunity for the minority community. It 
adopts standards derived from this Court's decision in 
White v. Regester, 412 U.S. 755 ( 1973), and lower court 
rulings applying White, including Zimmer v. McKeithen, 
485 F .2d 1297 (5th Cir. 1973) (en bane), aff'd on other 
grounds sub nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976). 

The district court departed from this statutory scheme 
through its recasting of several of the principal indicia of 
vote dilution recognized by the Congress, as by introduc­
ing an intent requirement to make out a showing of both 
racially polarized voting and the non-responsiveness of 
local officials to minority communities, or by sharply 
limiting the meaning of a "·slating organization." That 
court also committed legal error when it gave no weight 
to factors which Congress considered important, either by 
holding they were outweighed by recent episodic oc­
currences (e.g., voter turnout in last two elections negates 
history of discrimination) or simply by treating them as 
insignificant (staggered terms and lack of residency re­
quirements). Petitioners sought to have these manifest 
errors corrected by the Court of Appeals, but the panel 
majority failed to review the fundamental errors claimed 
by petitioners in light of its characterization of the case 
as implicating only factual determinations subject to 
deferential review under Fed.R.Civ.P. 52 (a). 

Whether the majority thought that petitioners' claims 
were shielded from scrutiny because they guided the lower 
court's fad-finding, or whether it was applying Rule 52 



13 

to its review of legal as well as factual matters, it erred. 
Because the subsidiary fact .. finding of trial courts in Sec­
tion 2 cases is guided by well established judicial stand­
ards which Congress adopted, the failure of the court below 
to afford effective appellate review to petitioners neces­
sarily raises substantial issues as to the proper construc­
tion of the statute which merit review, and some of which 
are presently being ,considered by this Court in Thornburg 
v. Gingles. 

Review by this Court is also compelled because of the 
recurring need for clarification and guidance as to the 
Courts of Appeals' responsibility to afford effective appel­
late review. In recent years, the Court has acted to 
restrain the Courts of Appeals from trenching upon the 
trial judges' superior opportunities to make credibility 
and evidentiary determinations. See Pullman-Standard v. 
Swint, 456 U.S. 273 (1982); Anderson v. City of Bes­
semer, 470 U.S.-- , 84 L.Ed. 2d 518 (1985). This case 
presents the other side of the coin-a situation in which 
the panel majority in effect delegated unreviewed discre­
tion to the trial court to make legal judgments. Although 
it arises here in the context of a statutory "totality of 
the circumstances" standard, the issue is the same as 
that involving "mixed questions" of law and fact, as to 
which the lower courts remain divided and in need of 
further guidance.4 The extent of the confusion over this 

4 It is easy to state the general rule: the scope of appellate re­
view turns on whether the trial court determination under consid­
eration was factual or legal . Yet, as this Court has recognized, the 
fact-law distinction is often vexing. Pullman-Standa,rd, 456 U.S. 
at 288; see also· Baumgartner v. United St,ates, 322 U.S. 665, 671 
(1944). 

Some prior :cases seem to suggest that mixed questions are 
to be treated like findings of fact (see, e.g., Commissioner v . 
Duberstein, 363 U.S. 278 (1960)), while others appear to favor the 
thorough review given conclusions of law (see, e.g., Baumgartner 
v. United States). Unfortunately, this Court's decisions provide 
no litmus test to determine which "mixed questions" are to be 
treated which way. When the legal component of a mixed question 



14 

critical matter of appellate review is best exemplified by 
comparing the invocation of the clearly erroneous stand­
ard in the case at bar with the diametrically opposite con­
clusion reached by another panel of the Fourth Circuit 
in an opinion authored by the same judge, Judge Murna­
ghan: 

Of course, we are aware of the limits placed upon 
us as an appellate cou:rt reviewing a trial court 
decision. We may not overturn findings of fact un­
less they are "clearly erroneous." ... In the case 
sub judice, however, we find a mistake in the rule of 
law, or perhaps, a mistake in the application ·of law 
to the facts. Characterized in either fashion, the 
situation permits us to correct the error in the district 
court. 

Rawl v. United States, No. 84-2333 (4th Cir., December 
4, 1985), slip op. at 10-11. In spite of this understanding 
in one context, the Court of Appeals in the present case 
failed even to address the issues ·Of law raised by plaintiff­
appellants.5 

is commonplace or ordinary, there is a tendency to apply the "clearly 
erroneous" standard. When the legal component is technical or 
uncertain, reviewing courts tend to be more exacting in their con­
sideration. However, the distinction between principles that are 
common and those that are technical is no more "illuminating" or 
"self-executing" (to borrow Duberstein's terms) than is the dis­
tinction between fact and law. See, e.g., Manning v. Trustees of 
Tufts College, 613 F.2d 1200, 1203 (1st Cir. 1980) (applying "clearly 
erroneous" standard to mixed questions ) ; United States v. Mc­
Conney, 728 F.2d 1195, 1202 (9th Cir. 1984), cert. denied, -- U.S. 
--, 105 S. Ct. 101 (1984) (standard of review of mixed questions 
to be determined on case-by-case basis) ; Karavos Compania Naviera, 
S.A. v. Atlantic Export Corp., 588 F.2d 1, 7-8 (2d Cir. 197'8) 
(plenary review of mixed questions ) ; Stewart v. General Motors 
Corp., 542 F.2d 445, 449· (7th Cir. 1976) (same) ; William B. Tanmer 
WIOQ, Inc., 528 F .2d 262, 266· (3d Cir. 1975) (same) ; Stafos v. 
Jarvos, 477 F.2d 369, 372 (lOth Cir.) (same), cert. denied, 414 U.S. 
944 (1973). 

oWe recognize that the panel majority wrote that "(t) he issues 
raised, though sporting various guises, were essentially factual 



15 

The proper role of the Courts of Appeals is to afford 
effective review by making independent determinations 
of the correctness or error of legal determinations by trial 
courts, while exercising more deferential review of lower 
court factual findings : 

Rule 52 (a) broadly requires that findings of fact 
not 1be set aside unless clearly erroneous . . . . The 
Rule does not apply to conclusions of law. The Court 
of Appeals, therefore, was quite right in saying that 
if a district ·court's findings rest on an erroneous 
view of the law, they may he set aside on that basis. 

Pullman-Standard v. Swint, 456 U.S. at 287; accord 
Anderson v. City of Bessemer, 470 U.S.--, 84 L.Ed. 2d 
518, 529 (1985) ; Bose v. Consumer's Union, 466 U.S. 
485, 498 (1984); Inwood Laboratories v. Ives Labora­
tories, 456 U.S. 844, 855 n.15 (1982). 

It is as important for this Court to ensure that the 
Courts of Appeals carry out the first part of their re­
sponsibilities as it was for the Court to insure that they 
complied with the strictures of Fed. R .Civ. P. 52 (a), see 
Pullman-Standard v. Swint. Review should be granted in 
this case for that purpose. 

and, in the end, amounted to the assertion that the district judge, 
in his findings, was clearly erroneous." App. 3a. As described in 
the succeeding portions of this Petition, the legal issues sought to be 
raised by Petitioners in the Court of Appeals were straightforward, 
not disguised, and they go to the very core of the Amendments to 
Section 2 which Congress enacted in 1982. As Judge Butzner 
correctly pointed out in his dissenting opinion, after following 
Justice Powell's admonition in Anderson to "engage in a compre­
hensive review of the entire record," 

[T]he principal issues the appellants raised addressed errors 
of law to which the clearly erroneous rule does not apply .... 
Because these assignments of error are meritorious, I would 
vacate the judgment of the district court and remand the case 
for consideration of the evidence in accordance with correct 
legal standards. [App. 9a (emphasis added; citation omitted)]. 



.16 

II. WITHOUT' INDEPENDENT LEGAL REVIEW, THE 
COURT OF APPEALS AFFIRMED THE DISTRICT 
COURT'S APPLICATION OF IMPROPER LEGAL 
STANDARDS WHICH CONFLICT WITH DECI­
SIONS OF THIS COURT, OTHER COURTS OF AP­
PEALS, AND THE LEGISLATIVE HISTORY OF 
SECTION 2. 

The district court, in its pivotal construction of Section 
2 leading to its judgment that plaintiffs proved none of 
the factors which Congress recognized would tend to 
establish a statutory violation, made fundamental legal 
mistakes of two kinds: First, it read an "intent" require­
ment into the law as to some of the factors. Second, it 
imposed heightened evidentiary burdens upon plaintiffs or 
applied incorrect legal standards as to other factors. 
These errors, if left uncorrected, threaten to undermine 
the Congressional purpose behind the 1982 Amendments 
to Section 2-at least in the Fourth Circuit-and require 
examination by this Court. 

A. The Court of Appeals Affirmed Without Comment 
The Application Of An Intent Standard To The 
Critical Evidentiary Factor Of Racially Polarized 
Voting. 

The legislative history of the 1982 Amendments makes 
unmistakably clear that Congress' principal objective was 
to provide a remedy for electoral schemes that deny 
minorities an equal opportunity to participate in the 
political process and elect representatives of their choice 
without requiring proof of discriminatory intent. S. Rep. 
at 15-16; McMillan v. Escambia County (McMillan II), 
748 F.2d 1037, 1041-42 (5th Cir. 1984). Congress stated 
that the intent standard asked the "wrong question," was 
"unnecessarily divisive," and imposed an "inordinately 
difficult burden of proof" upon plaintiffs. S. Rep. at 36-37. 

In direct contravention of Congress' express purpose in 
amending the Act, the district ·court crafted an idiosyn­
cratic definition of racially polarized voting which focused 



17 

primarily on discriminatory intent. Under this home. 
spun definition of racial bloc voting, plaintiffs were 
required to prove the presence of "white backlash" and 
"white attempt[s] to limit the field of candidates." App. 
35a-41a. The district court reasoned that this novel re­
quirement "more effectively considers voters' motivations 
in selecting particular candidates." App. 36a. The statis­
tical studies relied on by plaintiffs were ~ound lacking 
because "in no way can they be said to reflect the rationale 
behind an individual's selection of a particular candidate." 
ld. 6 

The legislative history of the 1982 Amendments to Sec­
tion 2 and subsequent case law note the importance of 
proof of racially polarized voting to a vote dilution claim. 
S. Rep. at 33; United States v. Marengo County Commis­
sion, 731 F.2d 1546, 1566-67 (11th Cir. 1984), cert. 
denied, 105 S. Ct. 375 (1984); Jones v. City of Lubbock, 
727 F .2d 364, 385 (5th Cir. 1984). Racially polarized 
voting has been defined by this Court simply as " [ v] oting 
along racial lines . . ." Rogers v. Lodge, 458 U.S. at 
623; cf. United Jewish Organizations v. Carey, 430 
U.S. 144, 166 n.·24 (1977). 

-
The proper legal standards governing proof of racially 

polarized voting are clear. In the cases decided both under 
the new Section 2 standard and under the White v. 
Regester standard-which were intended by Congress to 

'6 Under the majority's opinion, the combined reintroduction of 
intent into· the Voting Rights Act and the radical redefinition of 
racially polarized voting were left unreviewed. As the dissent 
noted: 

The additional elements the district court engrafted on the 
accepted definition of racially polarized voting required proof 
of intention to abridge the minority's voting rights .... But 
in enacting the 1982 amendments to the Voting Rights Act, 
Congress eliminated the necessity of proving a discriminatory 
purpose to establish a violation of the Act .... The district 
court's interpretation is contrary to the cardinal principal of 
the 1982 amendment. (App. 14a.) 



18 

govern Section 2 adjudication (S.Rep. at p.23 nn.78, 82, 
pp. 27-30) -racially polarized voting has been proven by 
statistical and other proof showing a high degree of 
association between the racial composition of the voting 
precincts and the race of the candidates.7 

None of these cases, nor any of the 14 cases to reach 
this Court involving proof of racially polarized voting,8 

have required proof of "white backlash" or "white at­
tempts to limit the field of candidates" as necessary or 
required to show racially polarized voting. The relevant 
portion of the sole case relied upon by the district court 
in support of its idiosyncratic definition, United States v. 
Dallas County Commission, 538 F.'Supp. 904-05 (S.D. 

7 See, e.g., Section 2 cases: McMillan v . Escambia County, supra, 
748 F.2d at 1043; Marengo County, supra, 731 F.2d at 1567; Jones 
v. City fJf Lubbock, supra, 727 F.2d at 380-81; Major v. Treen, 
574 F.Supp. 325, 337-39 (E.D. La.1983) (three-judge court); White 
v. Regester cases: Nevett v. Sides, 571 F .2d 209, 223 n.16 (5th Cir. 
1978) , cert. denied, 446 U.S. 951 (1980) ; Parnell v. Rapides Parish 
School Bd., 425 F.Supp. 399, 405 (E.D. La. 1976), af!'d, 563 F.2d 
180 (5th Cir. 1978), cert. denied, 438 U.S. 915 (1978) ; Graves v. 
Barnes, 343 F.Supp. 704, 731 .(W.D. Tex. 1972) (three-judge court), 
aff'd sub nom. White v. Regester, supra. 

8 See Mississippi Republican Executive Committee v. Brooks, -­
U.S.--, 105 S.Ct. 416 (1984), aff'g, Jordan v. Winter, 604 F.Supp·. 
807 (N.D. Miss. 1984) (three-judge court) (summary affirmance 
of district court use of statistical correlations) ; City of Lockhart v. 
United States, 460 U.S. 125 (1983); Perkins v. City of West Helena, 
675 F.2d 2.ol, 213 (8th Cir. 1982), aff'd mem., 459 U.S. 801 (1982) ; 
City of Port Arthur v. United States, 459 U.S. 159 (1982) ; Rogers · 
v. Lodge, 458 U.S. 613, 623 (1982) ; Hathorn v. Lovorn, 457 U.S. 
255 (1982) ; City of Mobile v. Bolden, 446 U.S. 55 (1980) ; City of 
Rome v. United States, 472 F.Supp. 221, 226 (D.D.C. 1979), aff'd, 
446 U.S. 156 (1980) ; United States v . Mississippi and Henry v. 
Mississippi, 444 U.S. 1050 (1980); United Jewish Organizations v. 
Carey, 430 U.S. 144, 166 (1977) ; Beer v. U.S., 425 U.S. 130 (1976) ; 
City of Richmond v. U.S., 422 U.S. 358 (1975) ; City of Petersburg 
v. U.S., 354 F.Supp .. 1021, 1026 n.10 (D.D.C. 1972), af!'d, 410 U.S. 
962 (1973) ; Whitcomb v. Chavis, 403 U.S. 124 (1971) ; Wood v. 
Georgia, 370 U.S. 375 (1962). 



19 

Ala. 1982), .subsequently was reversed by the Eleventh 
Circuit in a decision which finds ra.cially polarized voting 
without requiring proof of the additional elements relied 
upon by the district court. 739 F.2d 11529, 1535-36 (11th 
Cir. 1984) .9 

Under proper legal standards, the record reveals clear 
statistical evidence of racially polarized voting. See supra 
pp. 3-4. Thus, the unreviewed errors of law have a 
critical and immediate impact upon the substantive out­
come of this case. 

9 The scope of the lerg.al, not factw:kl problem is r·evealed by the 
district court's comments during the trial, when it said that the pre­
sentation of testimony on voting patterns was a waste of time (Tr. 
606), "beating the obvious" (Tr. 631), "overkill" (Tr. 1231), and 
"absolutely obvious" (Tr. 123.2). The Court further stated: "I 
don't think that Mr. Chappeii or Mr. J uren or any of these folks 
on the city side deny that blaick precincts by and large support­
overwhelmingly support black candidates or that white precincts 
by and large generally support white candidates ... " (Tr. 606). 
Even respondents admitted below that, "the problem, however, was 
not so much with the appellants' statistics, as with the inter­
pretation of those numbers." Brief for Appellees at 32. 

The evidence and testimony at trial established that white city 
council members were able to get elected with "virtually no· black 
vote" (Tr. 916-918), while blacks "have never elected any candidate 
without some white support and therefore are very much beholden 
to the white community." (Testimony of K. Brace, Tr. 640). 
Such racially polarized voting patterns allow white elected officials 
to gain office without concern for black interests, while black 
elected officials "don't always reflect totally the black electorate." 
!d. For example, Rev. Joseph N. Green was elected in 1982 with 
approximately 30 percent of the white vote, but Mrs. Evelyn Butts, 
whom defendants' witness Del. William P. Robinson, Jr. termed 
"a good candidate" (Tr. 1676), received a full 100 percent of the 
black vote in the 1980 city counsel election and 93.1 percent of the 
black vote in the 1982 election yet lost both times (Tr. 636, Ex. 
P-184) . In explaining the outcome of the 1982 city council election, 
white city councilman Summers explained: "People feared Evelyn 
Butts, that's why they came out and worked. Nobody fears Joe 
Green" (Ex. P-52, Ex. P-13, p. 66). Cf. Rogers v. Lodge, 458 U.S. 
613, 623 (1982) (racial bloc voting "allows those elected to ignore 
black interests without fear of political consequences"). 



20 

B. The Court of Appeals Also Affirmed, Without Re­
view, The Use Of An Intent Standard To Evaluate 
Whether The Norfolk City Government Was Unre­
sponsive To the Needs Of The Black Community. 

Parallel to its ruling on racially polarized voting, the 
district court imposed a requirement of proof of discrimi­
natory intent underlying the lack of responsiveness by 
white elected officials. See App. 60a-61a (housing au­
thority's unresponsiveness held insignificant because "not 
racially motivated") . 1<~ The dissent by Judge Butzner 
termed this "a semantic disguise for 'discriminatory pur­
pose'". App. 15a. See also Kirksey v. Board of Super­
visors of Hinds County, 554 F.2d 139, 149 n. 18 (5th 
Cir. 1977) (en vane), cert. denied 434 U.S. 968 (1977) 
(district court erred by requiring proof of willful un­
responsiveness) . 

C. The Court of Appeals Affirmed the District Court's 
Imposition Of Heightened Proof Requirements Not 
Grounded in the Statute and the Misdefinition of 
Other Evidentiary Standards. 

The district court required plaintiffs to meet enhanced 
evidentiary burdens to establish several of the factors 
expressly declared probative of Section 2 violations by 
Congress in the Senate Report on the 1982 Amendments 
to the Voting Rights Act, in direct contravention of the 

1o This issue arose most graphically in connection with the City's 
decision to relocate black low-income families to make way for a 
white middle-income redevelopment project. Although the district 
court acknowledged an initial commitment by the city Housing 
Authority to include some subsidized housing to permit relocated 
black families to· return to East Ghent, that commitment was not 
fulfilled. The district court refused to find evidence of unrespon­
siveness since it decided that the decision of the housing authority 
"was not racially motivated, but rather was motivated by a genuine 
desire to broaden the city's downtown tax base" App. 61a. 



21 

standards set forth in the legislative history of the 
Amendments. 

1. Slating Process. 

The existence of a white-controlled slating process, ac­
cording to Congress, constitutes a significant impediment 
to equal minority participation. S. Rep. at 29. At trial, 
plaintiffs presented considerable evidence and testimony 
to support their claim that an all-white "westside busi­
nessman's coalition" existed which slated and promoted 
white candidates only. The district "court [found] that 
this group does not constitute a slating organization as 
defined by Dr. O'Rourke," App. 44a (emphasis added) 
and gave this factor no weight in determining whether 
the "totality of the circumstances" indicated discrimina­
tion. Neither the legislative history, nor the pre-1982 
case law which it adopts, see White v. Regester, 412 
U.S. at 767, employs Dr. O'Rourke's definition, however. 
As the dissent below noted: 

[:T] he district court adopted, without the citation of 
precedent, a restrictive definition of a "slate." The 
court required the appellants to prove a "permanent 
or semipermanent organization" which solicits candi­
dates to run for office and puts them up "for as 
many seat as are open." The legislative history offers 
no support for this definition . . . . Significantly, 
courts that have discussed slates or a slating process 
have not imposed the burdensome requirements initi­
ated by the district court. See White v. Regester, 412 
U.S. 755, 766-67 (1973); Mcintosh County NAACP 
v. Darien, 605 F.2d 753, 758 (5th Cir. 1979). [rApp. 
14a-15a.] 

Utilizing the more narrow definition offered by re­
spondents' witness caused the district court to disre­
gard uncontradicted evidence that both current Mayor 
Vincent Thomas and another white politician were re­
cruited in 1976 by a group of westside white business-



22 

men to serve on a "slate" which they would sponsor 
and for which they would not consider a black candi­
date. The district court held that "[a] slate, as de­
fined by Dr. O'Rourke, consists of as many candidates 
as there are seats available. Accordingly, the Thomas­
Phillips ticket could not constitute a slate." 44a-45a.'11 

There is nothing in the 1982 Amendments to Section 2, 
their legislative history or the White v. Regester progeny 
which supports the heightened evidentiary burden which 
the district court imposed upon the plaintiffs, and based 
upon which it held that plaintiffs had failed to establish 
one of the factors Congress declared to be indicative of a 
Section 2 violation. 

2. History of Official Discrimination. 

The district court correctly found that there had been 
an extensive past history of official discrimination in Vir­
ginia affecting the rights of black Virginians to register 
and vote (App. 32a-35a). But the court of appeals erred 
as a matter of law in failing to review according to 
proper legal standards the district court's conclusions 
that recent increases in black registration and turnout 
negated Virginia's past history of discrimination and 
that "there are no lingering effects of that discrimina­
tion which prevent Norfolk's black citizens from partici­
pating in the electoral process today" (App. 70a). 

:L'1 The district court's finding that there was "no evidence, other 
than the testimony of plaintiffs themselves, that this 'westside 
businessmen's coalition' is a slating organization," App. 44a, 
is a clearly erroneous finding of fact. DeL Robinson, a witness 
for defendants, testified that the all-white westside business coali­
tion "has maintained a majority on council since I can remem­
ber ... " (Tr. 1672). Mayor Thomas testified that he was first 
recruited to run for city council 'bY this coalition, and that no 
consideration was given to including a ·black incumbent on the 
ticket (Ex. P-11, pp. 9-21). Mayor Thomas testified that "[w]e 
wanted to have as many things in our favor to get elected as pos­
sible" and that including a black on the ticket "was just not a 
reasonable political possibility" (id. at p. 20). 



23 

The proof at trial showed continued underrepresenta­
tion of blacks on the Norfolk City Council, continued 
voting along racial lines in the city council elections, 
continued depressed socioeconomic circumstances for Nor­
folk blacks, and continued segregated residential pat­
terns, all of which have been held by courts of appeals 
in other cases to show that the effects of past discrimi­
nation continue to persist and directly affect electoral 
participation by the black minority. Dallas County Com­
mission, 739 F.2d at 1537; Marengo County Commission, 
731 F.2d at 1568; Jones v. City of Lubbock, 727 F.2d at 
383; Washington v. Finlay, 664 F.2d 913, 921 (4th Cir. 
1981). Recent court of appeals decisions in other Section 
2 cases also have ruled that the absence of significant 
disparities between white and black voter registration 
does not negate a finding that "the present political sys­
tem nevertheless preserves a past lack of access." · Jones 
v. City of Lubbock, 727 F.2d at 385; McMillan, 748 F.2d 
at 1045. 

3. Discriminatory Electoral Mechanisms. 

The court of appeals also erred as a matter of law in 
affirming the district court's conclusions that N orfol~'s 
large size, both in population and land area, the stag­
gered terms rule, and the lack of a district residency 
requirement do not enhance the opportunity for dis­
crimination in city council elections (App. 71a-72a). This 
conclusion is contrary to controlling decisions of this 
Court, City of Rome v. United States, 446 U.S. 156, 185 
(1980) (staggered terms); Rogers v. Lodge, 458 U.S. at 
627 (large size of at-large election district; with no 
residency requirement " [a]ll candidates could reside in 

"lilly-white' neighborhoods. To that extent, the de­
nial of access becomes enhanced.") ; White v. Regeste1·, 
412 U.S. at 766 n. 10 (lack of subdistrict residency 
requirement); also, Jones v. City of Lubbock, 727 F.2d 
at 383 (staggered terms), and contrary to the legislative 
history of Section 2 which cites these mechanisms as fac-



24 

tors proving a Section 2 violation, S.Rep. at 29 (large 
election districts), 143-44 (staggered terms) ; H.R. Rep. 
No. 227, 97th Cong., 1st Sess. 18 (1981) (staggered 
terms). Failure to recognize the rulings of this Court 
and the findings of Congress that these devices do en­
hance discrimination in an at-large election system con­
stitutes plain legal error and conflicts with controlling 
decisions of this Court and other courts of appeals. See 
Dallas County, 739 F.2d at 1535.12 

4. Lingering Socioeconomic Effects of Past 
Discrimination. 

In enacting the 1982 amendment to Section 2, Con­
gress indicated that proof of continued socioeconomic 
disparities between whites and minorities is an important 
factor in establishing a Section 2 violation. S.Rep. at 29; 
see White v. Regester, 412 U.S. at 768. The district 
court found that blacks in Norfolk continue to be dis­
advantaged in education, income, employment and other 
areas (App. 46a-47a), but negated this factor because 
of recent increases in black registration and turnout 
(App. 69a-70a). The court of appeals erred in affirming 
this conclusion without independent review according to 
proper Section 2 legal standards. Under Section 2, socio­
economic disparities show a denial of equal access to the 
political process without any need to prove a causal 

l:2 The proof also showed that each of these devices has a dis­
criminatory impact upon Norfolk City Council elections. Nodolk's 
large size makes campaigning more difficult for black candidates, 
who have fewer financial resources than whites (Ex. P-41, Exs. 
D-70 to 91, Tr. 47-48) ; defendants' own expert admitted that the 
staggered terms rule reduces the effectiveness of black voting 
(Tr. 2088-89) and increases the minimum percentage needed to 
win, resulting in the defeat of blwck candidates (Tr. 2093-96; Ex. 
P-238, Ex. D-470); and because there is no district residency 
requirement, at the time o.f trial six of the seven council members 
came from predominantly-white neighborhoods, five from a small, 
upper-class, almost all-white westside enclave (Tr. 600-01; Ex. 
P-48). 



25 

nexus between socioeconomic status and black political 
participation. S.Rep. at 29 n.l44; Dallas: Coonty, 739 
F.2d at 1537; Marengo County, 731 F.2d at 1567-68. 

III. THE COURT OF APPEALS FAILED TO CARRY 
OUT ITS PROPER RESPONSIBILITIES UNDER 
FED. R. CIV. P~ 52(a) WIIE'N IT· ALLOWED TO 
STAND A DISTRICT COURT RULING THAT 
THERE WAS "NO EVIDENCE"' SUPPORTING THE' 
CLAIM THAT THE EVE-OF-TRIAL ELECTION OF 
A SECOND BLACK 'FO THE NORFOLK CITY 
COUNCIL RESULTED FROM MANIPULATION OF 
THE ELECTORAL PROCESS IN AN ATTEMPT TO 
MOOT THIS LAWSUIT. 

While Fed. R. Civ. P. 52 (a) commands the Courts of 
Appeals to show proper deference to the factual findings 
of trial judges, it commands, them equally to reverse judg­
ments when the reviewing court is satis·fied they are 
"clearly erroneous," that is, when "the reviewing court 
on the entire evidence is left with the definite and firm 
conviction that a mistake has been committed," United 
States v. United States Gypsum Company, ·333 U.S. 364, 
395 (1948). In this case, the district court held that there 
was "no evidence'' that after the filing of this lawsuit, 
the political process in Norfolk was manipulated to bring 
about the election of a second black member of the city 
council in an effort to moot the litigation. App. 51a. The 
record, however, demonstrates the contrary. 

1For example, one of the witnesses called by defendants 
(respondents in this Court) testified that the 1984 city 
council election in Norfolk was "unique" (T:r. 1672). 
After the filing of this lawsuit, the leaders of the principal 
all-white slating group in the city decided not to run a 
candidate for each of the three city council seats to be 
filled in the 1984 elections, but to run candidates only for 
two seats (Tr. 1672-73, 921-22}. In the same campaign, 
Mayor Vincent Thomas, for the first time ever, supported 
a black candidate who would, if elected, become the second 



26 

minority-race council memberY Thomas was quoted in a 
contemporaneous newspaper article-which he ·confirmed 
at trial-as saying that "After the election, the issue of 
black representation may become a moot point" (Ex. P-11, 
p.lOl). 

The district court made no findings that this testimony 
and documentary evidence was either not credible or not 
probative. It was therefore clearly in error in stating 
that there was "no evidence" to support the plaintiffs' 
charges, and the Court of Appeals failed to carry out its 
responsibility to reverse the judgment because of that 
clearly erroneous fact-finding. 

As important as it may be to grant review in order to 
insure fulfillment of the Court of Appeals' duties under 
Rule 52, however, it is even more important that this 
issue be reviewed for the future correct interpretation of 
Section 2 of the Voting Rights Act. In 1982 Congress 
specifically warned against finding a minority candidate's 
recent success at the polls to be "·conclusive of a minority 

13 The sudden turnaround of Mayor Thomas contrasted sharply 
with his customary penchant for racial campaign appeals, as noted 
by the dissent. App. 16a-17a. Thus for example, one week before 
the 1982 elections, Mayor Thomas commented that, 

a failure to curb busing could destroy the political balance of 
power between blacks and whites in the city. 

It's not going to be any advantage to blacks and whites to have 
our traditional racial makeup altered ... what does it help the 
city to change it. (Ex. P-40, Ex. P-11, pp. 53-70). 

These comments by Mayor Thomas followed previous published 
comments by the white candidates for the 1982 city council election 
than busing would "bring the· school system to its knees' and lead 
to a "breakdo·wn in discipline," "premature retirements of principals 
and teachers," and "disproportionate numbers of blacks" (Ex. P-40, 
Ex. P-13, pp. 42-44, Ex. P-14, pp. 41-43). Evidence at trial proved 
the existence of ongoing subtle and overt racial appeals in opposi­
tion to· measures overwhelmingly supported by the black community, 
particularly the issue of pu'Qlic school busing in the 1982 Norfolk 
City Council election. (Tr. 1183, Ex. P-12, pp. 67-69). 



27 

group's access to the political process, [because] we would 
merely be inviting attempts to circumvent the Constitu­
tion." S. Rep. at 29 n.115. In one of the two most im­
portant cases pointed to by Congress in the 1982 Amend­
ments' legislative history, the court specifically cautioned 
that oc.casional success by minority candidates "might be 
attributable to political support motivated by different 
considerations-namely that election of a black candidate 
will thwart successful challenges to electoral schemes on 
dilution grounds." Zimmer v. McKeithen, 485 F.2d at 
1307. 

IV. THE PROPER LEGAL REMEDY OF DISTRICT 
ELECTIONS WAS ERRONEOUSLY EQUATED 
WITH PROPORTIONAL REPRESENTATION AND 
DENIED PLAINTIFFS AN INDEPENDENT AS­
SESSMENT WHETHER THE AT-LARGE SYST'EM 
WAS A VIOLATION OF SECTION 2 OF THE VOT­
ING RIGHTS ACT. 

During the trial and in its opinion, the District Court 
repeatedly interjected its concern with proposed remedies 
into the determination whether a violation of the Act 
existed.H This improper intermingling of remedial and 
violation-oriented concerns was a by-product of the dis­
trict court's incorrect interpretation of the Section 2 
proviso: "Provided, that nothing in this section establishes 
a right to have members of a protected 'Class elected in 

~4 Among the trial judge's repeated references to possible reme­
dies are: his assertion that any ward system ordered into effect 
would equal a quota system ("So your design, I take it, then is to 
see that the blacks get a certain quota of people on city council?") 
(Tr. 821), that ward lines would involve segregated voting ("When 
you segregate them aren't you creating more problems than you're 
doing good?") (Tr. 823), and that a ward system would be a "color 
stockade" (Tr. 824) in which the black vote "will be cooped up in 
the minority of the wards of the city" (Tr. 825). For even more 
extensive quotations of the District Judge's repeated interjecting 
of inappropriate remedial issues see App. lOa-lla (Butzner, J., dis­
senting). 



28 

numbers equal to their proportion in the population." 42 
u.s.c. § 1973. 

Contrary to the district court's equation of any ward 
system in which some wards would have a majority of 
black votes with "proportional political representation," 
the replacement of an at-large system with a ward sys­
tem is a time-proven permissible remedy for vote dilution. 
See Rogers, 458 U.S. at 616; City of Richmond v. United 
States, 422 U.S. 358 (1975) .15 

As the dissent stated, "Given the court's misperception 
of the proviso, judgment against the appellants was fore­
ordained." App. 12a. The district court's equation of 
remedies removing at-large elections with "proportional 
representation" parallels the arguments advanced in 
Thornburg v. Gingles and requires clear guidance from 
this Court. 

CONCLUSION 

The record in this ,case demonstrates that blacks in 
Norfolk have organized behind candidates, have registered 
to vote, and have faithfully participated in the political 
process. Nevertheless, the history of electoral outcomes 
shows that strong candidates marshalling the unified 
support of the entire black community have been thwarted 
in their bids for elected office. Given the strong polariza-

w The dissent correctly observed: 

It is wrong to remedy an illegal at-large system by substituting 
a proportional representation system; but it is not wrong to 
substitute a fairly drawn ward system even though some wards 
will have a majority of black voters. On more than one occasion 
the Supreme Court has approved conversion of a discriminatory 
at-large system to a ward system. The ward system must be 
fairly drawn, but if this condition is met, it is no impediment 
that some wards have predominantly black residents and others 
have predominantly white residents . . . . [I]n Rogers v. Lodge, 
the Court observed that a minority may be unable to elect 
representatives in an at-large system, but it may be able to 
elect several representativse if single-membr districts are 
established. [Citations omitted.] App. 12a. 



29 

tion of voting patterns along racial lines and the presence 
of racial appeals in campaigns, the consistent electoral 
defeat of the chosen candidates of over one-third of the 
electorate to secure meaningful representation on a seven­
member city council must be attributed to the structural 
impediment created by Norfolk's at-large election system. 
Because of the errors described above, the federal courts 
have failed to afford petitioners the relief to which they 
are entitled. 

For the foregoing reasons, petitioners respectfully pray 
that the writ herein be granted and the case be set down 
for plenary consideration by this Court, or alternatively, 
that this Petition be held pending announcement of this 
Court's ruling in Thornburg v. Gingles, thereafter granted 
and the judgment vacated and cause remanded for con­
sideration by the Court of Appeals in light of that 
decision. 

Of Counsel: 
PROF. HARLON L. DALTON 

127 Wall Street 
New Haven, CT 0652'0 
(203) 436-2216 

GENE B. SPERLING 

1265 Lincolnshire Lane 
Ann Arbor, MI 48103 
(313.) 662-22,16 

Respectfully ·submitted, 

WILLIAM L. ROBINSON 

FRANK R. PARKER * 
SAMUEL lSSACHAROFF 

PATRICIA M. HANRAHAN 
LA WYERS' COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 

1400 Eye St., N.W., Suite 400 
Washington, D.C. 20005 
(20·2.) 371-1212, 

JAMES F. GAY 

1317 E. Brambleton Avenue 
N orfoik, Virginia 23504 
(804) 627-3100 

Attorneys for Petitioners, 
Herbert Collins, et al. 

* Counsel of Record 












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