Westwego Citizens for Better Government v. City of Westwego Brief Amicus Curiae

    \Zo -̂€- ~btluflQ n

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 87-3761

____________________________________________ _

WESTWEGO CITIZENS FOR BETTER GOVERNMENT, et al.., :
Plaintiffs-Appellants, :

v.  \
CITY OF WESTWEGO, et al., ’

Defendants-Appellants. :
x

BRIEF AMICUS CURIAE OF THE NAACP 
T.ECAL DEFENSE AND EDUCATIONAL FUND. INC^

JULIUS LeVONNE CHAMBERS 
C. LANI GUINIER 
PAMELA S. KARLAN
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae



TABLE OF CONTENTS

Page

Table of Authorities ...................................... n

Interest of Amicus Curiae ................................. 1

Introduction ..............................................  2

Argument ..................................................  7

I. The Absence of Black Candidates for Alderman 
Does Not Preclude Challenging the Current Use
of At-Large Elections ................................ 7

II. The District Court Erred in Holding that Section 
2 Imposes a Heavier Burden on Plaintiffs Who 
Challenge the Longstanding Use of At-Large
Elections for Municipal Office ......................  H

Conclusion ................................................  18

Certificate of Service .................................... 19

i



TABLE OF AUTHORITIES

Pages
Cases
Bolden v. City of Mobile, 542 F. Supp. 1050 (S.D.
Ala. 1982)   8,16

Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547
(11th Cir. 1987)   4,8,15

Chisom v. Edwards, ____ F.2d ___ (5th Cir. 1988) ....  2,9,14,17
Citizens for a Better Gretna v. City of Gretna, 834 F.2d

496 (5th Cir. 1987)   8,14,15
Citizens for a Better Gretna v. City of Gretna, 636 

F. Supp. 1113 (E.D. La. 1986), aff'd. 834 F.2d 496
(5th Cir. 1987)   10

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............  2,13
Dillard v. Crenshaw County, 831 F.2d 246 (11th Cir.

1987)   -7,1.4
Dillard v. Crenshaw County, 649 F. Supp. 289 (M.D. Ala".

1986), aff'd in part and remanded in part. 831 F.2d
246 (11th Cir. 1987)   8

Dillard v. Crenshaw County, 640 F. Supp. 1347
(M.D. Ala. 1986)   14

Dove v. Moore, 539 F.2d 115 (8th Cir. 1976) ...............  13

Escambia County v. McMillan, 466 U.S. 48 (1984) .............  2
Gingles v. Edmisten, 590 F. Supp. 345, 363 (E.D.N.C.

1984) (three-judge court), aff'd, 478 U.S. ___
(1986)   1 0 ,n

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert.
denied. 471 U.S. 1135 (1985)   8

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)
(three-judge court) ................................. 2,10,11

Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987) ......  9

ii



Cases Pages
McMillan v. Escambia County, 748 F.2d 1037

(11th Cir. 1984) ........................................  10

McNeil v. City of Springfield, 658 F. Supp. 1015
(C.D. 111. 1987) ...................................  8,16,17

NAACP v. Button, 371 U.S. 415 (1963) .......................  1

NAACP v. Hampton County, 470 U.S. 166 (1985) ...............  2
Panior v. Iberville Parish School Board, 536 F.2d

101 (5th Cir. 1976)   13

Perkins v. City of West Helena, 675 F.2d 201
(8th Cir. 1982) ..........................................  16

Thornburg v. Gingles, 478 U.S. ___, 92 L.Ed.2d
25 (1986) ........................................... 1,passim

WMCA v. Lomenzo, 377 U.S. 633 (1964)   16
White v. Regester, 412 U.S. 755 (1973) ....................  13

Zimmer v. McKeithen, 485 F. 2d 1297 (5th Cir. 1973)
(en banc), aff'd on other grounds sub nom. East 
Carroll Parish School Board v. Marshall, 424 U.S.
636 (1976) (per curiam) ..............................  14-15

Statutes
Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973 ....  3,passim

Other Materials
H.R. Rep. 97-227 (1982)   15

S. Rep. No. 97-417 (1982) .............................. 3,4,13
Blacksher & Menefee, From Reynolds v. Sims to City 

of Mobile v. Bolden: Have the White Suburbs 
Commandeered the Fifteenth Amendment?, 34
Hastings L.J. 1 (1982)   16

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
No. 87-3761

---------------------------------------------------x
WESTWEGO CITIZENS FOR BETTER GOVERNMENT, et al.. :

Plaintiffs-Appellants, :
v. :

CITY OF WESTWEGO, et al.. i
Defendants-Appellants. :

--------------------------------------------------------------

BRIEF AMICUS CURIAE OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND. INC.

Interest of Amicus Curiae

The NAACP Legal Defense and Educational Fund, Inc. ("LDF"), 
is a non-profit corporation that was established to assist black 
citizens in securing their constitutional and civil rights. The 
Supreme Court has noted LDF's "reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation." NAACP v. Button. 
371 U.S. 415, 422 (1963).

LDF maintains an active practice representing minority 
plaintiffs in voting rights litigation. It represented the
prevailing plaintiffs in Thornburg v. Gingles. 478 U.S. ___, 92
L.Ed.2d 25 (1986), the first Supreme Court decision to interpret 
amended section 2 of the Voting Rights Act. Attorneys affiliated 
with LDF have represented plaintiffs in many other significant



voting rights cases. See, e.g.. NAACP v. Hampton County. 470 
U.S. 166 (1985); Escambia County v. McMillan. 466 U.S. 48 (1984); 
City of Mobile v. Bolden. 446 U.S. 55 (1980); Chisom v. Edwards.
___ F.2d ___ (5th Cir. 1988) (No. 87-3463); Major v. Treen. 574
F. Supp. 325 (E.D. La. 1983) (three-judge court).

Counsel for LDF has requested the consent of the parties to 
the filing of this brief amicus curiae. Counsel for appellants 
has consented. Counsel for appellees is unable to give his 
consent until he has discussed the question with the Westwego 
city attorney. There is insufficient time to obtain such consent 
prior to the filing of amicus' proposed brief. Accordingly, LDF 
has filed a motion for leave to file this brief.

Introduction

This case presents the question whether a system for 
electing municipal officials that submerges a politically 
cohesive minority can be immunized from scrutiny under section 2 
of the Voting Rights Act of 196^. In this case, a district court 
held that the fact that minority candidates were deterred from 
contesting elections under Westwego's longstanding at-large 
election system prevented blacks as a matter of law from using 
section 2 to challenge that system. The district court rejected 
plaintiffs' challenge not because plaintiffs had failed to 
satisfy the factual test for section 2 cases set out by Congress, 
the Supreme Court, and this Court, but because of a novel legal 
interpretation that shields local election practices from

2



scrutiny because they have not been changed recently. The 
district court's radical departure from the well-established 
totality-of-the-circumstances test undermines the clear 
Congressional commitment "to creat[ing] a set of mechanisms for 
dealing with continued voting discrimination, not step by step, 
but comprehensively and finally." S. Rep. No. 97-417, p. 5 
(1982) ["Senate Report"].

In 1982, Congress amended section 2 of the Voting Rights Act
to make clear that plaintiffs need not show that challenged
voting practices are the product of purposeful discrimination.
Thornburcr v. Gingles. 478 U.S. ___, 92 L.Ed.2d 25, 37 (1986).
Rather, the relevant question is whether

based on the totality of the circumstances, it is shown 
that the political processes leading to nomination or 
election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) in that its 
members have less opportunity than other members of the 
electorate to participate in the political process and 
to elect representatives of their choice.

42 U.S.C. § 1973(b).
The Senate Report accompanying the 1982 amendments, which 

the Supreme Court has characterized as an "authoritative source" 
for interpreting section 2, Thornburg v. Gingles. 92 L.Ed.2d at 
42 n. 7, lists nine "[tjypical factors" that can serve to show a 
violation of section 2's "results test."1 Gingles represents the

x These factors are:
"1. the extent of any history of official 

discrimination in the state or political subdivision 
that touched the right of the members of the minority 
group to register, to vote, or otherwise to participate 
in the democratic process;

3



Supreme Court's "gloss" on these Senate factors. Carrollton
Branch of NAACP v. Stallings. 829 F.2d 1547, 1555 (11th Cir.
1987). In the context of at-large elections, "the most important 
Senate Report factors . . . are the 'extent to which members of 
the minority group have been elected to public office in the 
jurisdiction' and the 'extent to which voting in the elections of 
the state or political subdivision is racially polarized.'" 
Thornburg v. Gingles, 92 L.Ed.2d at 45, n. 15. The other factors

2. the extent to which voting in the elections of 
the state or political subdivision is racially 
polarized ;

3. the extent to which the state or political 
subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot 
provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination 
against the minority;

4. if there is a candidate slating process, 
whether the members of the minority group have been 
denied access to that process;

5. the extent to which members of the minority 
group in the state or political subdivision bear the 
effects of discrimination in such areas as education, 
employment and health, which hinder their ability to 
participate effectively in the political process;

6. whether political campaigns have been 
characterized by overt or subtle racial appeals;

7. the extent to which members of the minority 
group have been elected to public office in the 
jurisdiction.

• • • • •

[8.] whether there is a significant lack of 
responsiveness on the part of elected officials to the 
particularized needs of the members of the minority 
group.

[9.] whether the policy underlying the state or 
political subdivision's use of such voting 
qualification, prerequisite to voting, or standard, 
practice or procedure is tenuous."

S. Rep. No. 97-417, pp. 28-29 (1982). "[TJhere is no 
requirement that any particular number of factors be proved, or 
that a majority of them point one way or the other." Id. at 29.

4



are "supportive of, but not essential to, a minority voter's 
claim." Id.

This assessment led the Court to distill from the Senate 
factors three important elements for section 2 challenges to at- 
large elections: first, the minority group must show that it is 
sufficiently large and geographically compact to constitute a 
majority in a single-member district; second, it must show that 
it is politically cohesive, that is, that its members tend to 
support the same candidates; third, it must show that the white 
majority usually votes sufficiently as a bloc to result in the 
defeat of the minority group's preferred candidates. id. at 46.2 
The Court and Congress instructed district courts to evaluate the 
interaction of these factors from an intensely local vantage 
point. Thornburg v. Ginales. 92 L.Ed.2d at 62.

This case involves a challenge to the at-large election of 
the five-member Board of Aldermen for the City of Westwego, 
Louisiana. Westwego has a total population of 12,663. The black 
population of Westwego is sufficiently large— 1466 (or 11.6%)—  
and geographically concentrated so that, if the city were divided 
into five districts, it would be possible to create a district 
that is majority black in population. Record Excerpts a-21. Over 
85 percent of Westwego's black population would live in this one 
district. See Record Excerpts a-13 to a-14.

2 The second— "politica[l] cohesive[ness]"— and third—  
white bloc voting— prongs of this test reflect the two sides of 
racially polarized voting: blacks prefer one set of candidates 
while whites prefer another. See Thornburg v. Ginales. 92 
L.Ed.2d at 50.

5



The district court recognized that no black person has ever 
been elected to the Westwego Board of Aldermen. Record Excerpts 
a-17. It also recognized that, in elections involving both black 
and white candidates, voting in Westwego is racially polarized, 
that is, white voters and black voters vote differently. See 
Thornburg v. Gingles. 92 L.Ed.2d at 48, n. 21; Record Excerpts a- 
16. Nonetheless, despite the fact that plaintiffs proved each of 
the essential elements of the Thornburg v. Gingles test, the 
district court found no violation of section 2 because of its 
legal theory. First, because no black candidate had run for 
alderman, the court claimed that it was unable to find that the 
current election scheme diluted black voting strength. See 
Record Excerpts a-10, a-15. Second, the court held that a "much 
greater showing" of dilution was reguired in a case, such as this 
one, challenging an "age old method of elections in order to 
accommodate a very small percentage of the population," Record 
Excerpts a-13, than is required in a case, such as Thornburg v. 
Gingles, which challenges the result of a periodic legislative 
reapportionment.

Both of the district court's reasons for rejecting 
plaintiffs claims reflect a fundamental misunderstanding of 
amended section 2. First, the fact that no candidate has run for 
the particular office whose election scheme is being challenged 
does not preclude finding a violation. Second, nothing in either 
the legislative history or the case law supports placing a higher 
burden on plaintiffs either because they constitute only a small

6



portion of the electorate or because the system being challenged 
has existed for a long time.

Argument

I. The Absence of Black Candidates for Alderman Does Not 
Preclude Challenging the Current Use of At-Large 
Elections

The district court held that it was impossible to determine 
whether Westwego's use of at-large elections prevents black 
voters from electing their preferred candidates because no black 
candidate had yet run for alderman. Record Excerpts a-11. The 
absence of black candidates for the specific office at issue, 
however, does not preclude a section 2 claim.

As we have already noted, the two critical issues in a 
challenge to at-large elections are whether it is possible to 
create a plan that would allow minorities to elect their 
preferred candidates— for example, by drawing a predominantly 
minority district— and whether voting in the jurisdiction is 
racially polarized. The first issue is, of course, entirely 
independent of whether black candidates have ever sought 
election; it concerns solely the demographic characteristics of 
the jurisdiction's population. In this case, it is not disputed 
that it is possible to draw a predominantly black single-member 
district for aldermanic elections. See Record Excerpts a-21.3

3 The question at the liability phase of a section 2 
trial is solely whether a predominantly black district can be 
created. It is not whether such a district provides the fullest 
possible remedy, as required by the Court of Appeals in Dillard

7



As for the second issue, Thornburg v. Ginoles squarely held
that the absence of black candidates for a particular office 
cannot bar section 2 challenges to the way that office is 
elected:

The number of elections that must be studied in order 
to determine whether voting is polarized will vary 
according to pertinent circumstances. One important 
circumstance is the number of elections in which the 
minority group has sponsored candidates. Where a 
minority group has never been able to sponsor a 
candidate, courts must rely on other factors that tend 
to prove unegual access to the electoral process.
Similarly, where a minority group has begun to sponsor 
candidates just recently, the fact that statistics from 
only one or a few elections are available for 
examination does not foreclose a vote dilution claim.

92 L.Ed.2d at 51 n. 25 (emphasis added). Relying on Thornburg v.
Gingles' directive, this Court recently held, in Citizens for a
Better Gretna v. City of Gretna. 834 F.2d 496, 502-03 (5th Cir.

v. Crenshaw County. 831 F.2d 246, 252 (11th Cir. 1987). If the
district court were to conclude that a 52.9 percent black 
district would not provide plaintiffs with a fully equal 
opportunity to participate in the political process and elect the 
candidates of their choice, cf. Ketchum v. Bvrne. 740 F.2d 1398, 
1413-17 (7th Cir. 1984) (a fair plan may require supermajority 
districts), cert, denied. 471 U.S. 1135 (1985), then it would be 
required to develop a plan that does provide as full a remedy as 
possible. See Senate Report at 31. Thus, for example, the 
district court has the power to order Westwego to expand the size 
of its Board of Aldermen to provide plaintiffs with the 
opportunity to elect the candidates of their choice. See, e.g.. 
Carrollton Branch of NAACP. 829 F.2d at 1563 (plaintiffs in case 
challenging single-member county commission in Georgia could 
satisfy Gingles by showing that majority-black district could be 
created under either a three- or a five-member plan); McNeil v. 
City of Springfield. 658 F. Supp. 1015 (C.D. 111. 1987) (finding 
dilution when a majority-black district could be formed under a 
ten-district alternative to current five-member council scheme); 
Dillard v. Crenshaw County. 649 F. Supp. 289 (M.D. Ala. 1986) 
(expanding size of several county commissions), aff'd in part and 
remanded in part. 831 F.2d 246 (11th Cir. 1987); Bolden v. City 
of Mobile. 542 F. Supp. 1050 (S.D. Ala. 1982) (expanding size of 
Mobile Board of Commissioners from 3 to 7).

8



1987) , that a racial polarization analysis in a case challenging 
at-large aldermanic elections can rely on voting behavior in 
other contests involving the city's voters "in the face of sparse 
data" regarding aldermanic elections. Similarly, in Chisom v.
Edwards, ___ F.2d ___ (5th Cir. 1988) (No. 87-3463), this Court
found that black voters in Orleans Parish could challenge under 
section 2 the use of a multi-member district for Louisiana 
Supreme Court elections despite the fact that no black candidate 
had ever sought election to the court.4 See also Martin v.
Allain. 658 F. Supp. 1183 (S.D. Miss. 1987) (finding violations 
of section 2 with respect to some judicial districts as to which 
there was no evidence of black candidacy on the basis of the 
geographic submergence of concentrations of black voters and the 
pervasiveness of racial bloc voting for other judicial and 
legislative positions).

The reason for permitting section 2 challenges without 
requiring that a minority group first sponsor candidates is 
clear: the very existence of the challenged structure may deter 
serious minority candidates from competing in the first place. 
Particularly in a jurisdiction such as Westwego— where the 
minority community, although politically and geographically 
cohesive, is relatively small— the requirement that candidates 
obtain a majority of the votes throughout the jurisdiction

4 In Chisom. amici Washington Legal Foundation and Allied 
Educational Foundation argued that plaintiffs lacked Article III 
standing to challenge the multi-member district scheme given the 
absence of any black candidates. See Brief Amici Curiae at 18- 
21. This Court declined even to address that argument.

9



drastically alters the calculus faced by prospective black
candidates. In such cases, "the lack of black candidates is a 
likely result of a racially discriminatory system." McMillan v. 
Escambia County. 748 F.2d 1037, 1045 (11th Cir. 1984). As the 
district court noted in Citizens for a Better Gretna v. City of 
Gretna, 636 F. Supp. 1113 (E.D. La. 1986), aff'd. 834 F.2d 496 
(5th Cir. 1987), it is "axiomatic" that when minorities are faced 
with dilutive electoral structures "'their voter turnout and 
candidacy rates tend to drop.'" Id. at 1119 (quoting Minority 
Vote Dilution 15 (C. Davidson ed. 1984)) (emphasis added); see 
also id. at 1135; Ginales v. Edmisten. 590 F. Supp. 345, 363 
(E.D.N.C. 1984) (three-judge court) (discussing similar effect of
majority-vote requirement), aff'd. 478 U.S. ___ (1986). When
black voters are faced with an electoral structure that makes it 
impossible for them to participate equally in the political 
process, they are not required to wait for redress until they are 
able to persuade a candidate to undertake a certainly futile 
campaign. See, e.q., Major v. Treen. 574 F. Supp. 325 (E.D. La. 
1983) (three-judge court) (striking down congressional 
reapportionment scheme although no black candidate had yet run 
and lost, because plan clearly diluted collective black voting 
strength of Orleans Parish).

Finally, the district court cannot uphold the present 
current electoral scheme on the possibility that white voters in 
Westwego might support a black candidate if one were to run, see 
Record Excerpts a-11. As the three-judge district court in

10



Gingles v. Edmisten held:
In enacting amended Section 2, Congress made a 

deliberate political judgment that the time had come to 
apply the statute's remedial measures to present 
conditions of racial vote dilution that might be 
established in particular litigation that national 
policy respecting minority voting rights could no 
longer await the securing of those rights by normal 
political processes . . . .

In making that political judgment, Congress 
necessarily took into account and rejected as 
unfounded, or assumed as outweighed, several risks to 
fundamental political values that opponents of the 
amendment urged in committee deliberations and floor 
debate. Among these were . . . the risk that reliance 
upon the judicial remedy would supplant the normal, 
more healthy processes of acquiring political power by 
registration, voting and coalition building . . . .

For courts applying Section 2, the significance of 
Congress' general rejection or assumption of these 
risks as a matter of political judgment is that they 
are not among the circumstances to be considered in 
deciding whether a challenged electoral mechanism 
presently "results" in racial vote dilution, either as 
a new or perpetuated condition. If it does, the remedy 
follows, all risks to these values having been assessed 
and accepted by Congress. It is therefore irrelevant 
for courts applying amended Section 2 to speculate or 
to attempt to make findings as to whether a presently 
existing condition of racial vote dilution is likely in 
due course to be removed by normal political processes

Gingles v. Edmisten. 590 F. Supp. 345, 356-37 (E.D.N.C. 1984)
(emphasis in original), aff'd. 478 U.S. ___ (1986) ; accord. Major
v. Treen. 574 F. Supp. at 343.

II. The District Court Erred in Holding that Section 2
Imposes a Heavier Burden on Plaintiffs Who Challenge 
the Longstanding Use of At-Large Elections for 
Municipal Office

The district court expressed special reluctance to 
invalidate Westwego's use of at-large elections because

11



plaintiffs' challenge involved municipal, as opposed to 
legislative, elections:

I also want to say for the record that while I 
can't cite a case after Thornburg that makes the point 
I'm about to make, I'm satisfied that it is true, or 
ought to be true, the law surely should be different in 
the case of a multi, many member body, such as a 
legislature, which is compelled to reapportion after 
every census. A court's view of what a legislature 
does in that reapportionment situation vis a vis single 
member districts, ought to be more jaundiced than what 
it is, and what a court's view ought to be when the 
suggestion is made to the court that it ought to alter 
a historical, ancient system of electing all of the 
governing body at-large in a small municipality.

To say it another way, what the court is looking 
at in Thornburg is a reapportionment plan. It is 
looking at districts which could just as readily be 
single member as multi member . . . .

That contrasts vividly with the situation where a 
court is asked, as I'm asked to do, to tell a 
municipality that it must alter its age old method of 
elections in order to accommodate a very small 
percentage of the population, roughly 11 percent, a low 
10 percent of the registration.

And while I say again I have no case post- 
Thornburg which makes the distinction, the distinction 
to me, from a political and a broad sense view point, 
is quite clear. There ought to be a much greater 
showing, in my judgment, in a situation where a local 
governing body is subjected to a court order to change 
its method of voting as opposed to a situation where a 
legislature has multi member and single member 
districts, and the suggestion to the Court is that 
there ought to be more single member districts, the 
result of which would be to elect more blacks.

Record Excerpts a-12 to a-13. It is no accident that the
district court was unaware of any post-Thornburg v. Gingles cases
to support its distinctions: no other district court or court of
appeals has advanced such a fundamental misreading of both the
legislative history and the case law of amended section 2.

12



First, the legislative history of amended section 2 firmly 
contemplated that the same standard of proof would be applied to 
challenges to local elections that was to be applied to 
challenges to elections to state legislatures. In discussing the 
pre-Bolden test for racial vote dilution, the Senate Report noted 
that the test for analyzing challenges to multi-member 
legislative districts developed in White v. Reaester. 412 U.S.
755 (1973), had frequently been applied to at-large elections of 
local governing bodies, such as city councils. See Senate Report 
at 23 (noting decision in Dove v. Moore. 539 F.2d 115 (8th Cir. 
1976) (city council) and Panior v. Iberville Parish School Board. 
536 F.2d 101 (5th Cir. 1976) (school board)). Moreover, the 
amendment of section 2 was a direct response to the Supreme 
Court's decision in City of Mobile v. Bolden. 446 U.S. 55 (1980), 
a case interpreting then-existing section 2 in the context of 
elections to a municipal Board of Commissioners. Thornburg v. 
Gingles. 92 L.Ed.2d at 37, 42; Senate Report at 2, 15-16. Thus, 
the Senate Report's discussion of how section 2 violations are to 
be proven necessarily applies to challenges to local at-large 
elections.

In discussing how the "results" test would operate, the 
Senate Report expressly addressed its likely impact on the use of 
at-large elections by cities. See Senate Report at 34-35. The 
Senate Report discussed the use of "multi-member districts" and 
"at-large" elections virtually interchangeably. Nothing in the 
Report suggests that more deference was due to the latter. Cf.

13



Chisom v. Edwards, ___ F.2d ___, ___ (5th Cir. 1988) (slip op. at
2307) (interchangeable use of terms "representatives," 
"candidates," and "officials" in 1982 legislative history 
precludes limiting section 2 solely to legislative elections).

In light of this legislative history, it is entirely 
fortuitous that the first case to reach the Supreme Court 
requiring the interpretation of amended section 2 involved 
legislative, as opposed to municipal, elections. Nothing in 
Thornburo v. Gingles itself suggests that the test the Court set 
out would have differed in any way if the challenged at-large 
elections had involved local, rather than state legislative, 
office.

Second, the post-Ginales case law in this Circuit has
rejected the notion that the nature of an elected office should
affect the applicability of section 2:

"Nowhere in the language of Section 2 nor in the 
legislative history does Congress condition the 
applicability of Section 2 on the function performed by 
an elected official. The language is only and 
uncompromisingly premised on the fact of nomination or 
election."

Chisom v. Edwards. ___ F.2d at ___ (slip op. at 2304) (quoting
Dillard v. Crenshaw County. 831 F.2d 246,-250 (11th Cir. 1987)). 
Thus, in Citizens for a Better Gretna v, City of Gretna. 834 F.2d 
496 (5th Cir. 1987), this Court upheld a section 2 challenge to 
at-large aldermanic elections in Gretna, Louisiana. The Court's

14



intoopinion translated the district court's "Zimmer analysis"5
Gingles' terms, without any suggestion that the Supreme Court's
analysis should be modified because a municipal election scheme
was involved. See also, e. g. . Carrollton Branch of NAACP v.
Stallings. 829 F.2d 1547 (11th Cir. 1987) (applying Ginales test
to county commission elections).

Third, the fact that a challenged practice is of
longstanding duration, rather than of recent vintage, does not
preclude a challenge under section 2. The House Report
accompanying amended section 2 made essentially this point in
explaining the relationship between section 2 and section 5 (the
Act's preclearance provision):

Under the Voting Rights Act, whether a discriminatory 
practice or procedure is of recent origin affects only 
the mechanism that triggers relief . . . .  The 
lawfulness of such a practice should not vary depending 
on when it was adopted, i.e., whether it is a change.

H.R. Rep. No. 97-227, p. 28 (1982).
The duration of challenged practices poses no obstacle to

section 2 lawsuits. In Chisom. for example, the challenged
electoral district has existed for at least fifty years. And
many successful section 2 cases involving municipal election
schemes have challenged longstanding practices. See also, e.a..

5 The district court's opinion was issued prior to the 
Supreme Court's opinion in Thornburg v. Ginales. See Citizens 
for a Better Gretna. 834 F.2d at 497. Thus, the district court 
applied the then-existing Fifth Circuit test, set out in Zimmer 
v. McKeithen, 485 F. 2d 1297 (5th Cir. 1973) (en banc), aff'd on 
other grounds sub nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976) (per curiam). The "Zimmer factors" 
were expressly incorporated in the Senate Report. See Senate 
Report at 28-29.

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Citizens for a Better Gretna, supra (system used since 1913); 
Perkins v. City of West Helena. 675 F.2d 201 (8th Cir. 1982) 
(system used since 1920); McNeil v. City of Springfield. 658 F. 
Supp. 1015 (C.D. 111. 1987) (system used since 1913); Bolden v. 
City of Mobile. 542 F. Supp. 1050 (S.D. Ala. 1982) (system used 
since early 1900's).

Fourth, the district court's distinction between election 
schemes that are the product of reapportionment and those remain 
unchanged for long periods of time is specious. In Thornburg v. 
Singles itself, five of the six contested districts were not 
altered by the 1982 reapportionment. See 92 L.Ed.2d at 48 n. 19. 
Indeed, at-large elections reflect, in essence, a decision not to 
district. See WMCA v. Lomenzo. 377 U.S. 633, 750 (1964)
(Stewart, J., dissenting); Blacksher & Menefee, From Reynolds v. 
Sims to City of Mobile v. Bolden; Have the White Suburbs 
Commandeered the Fifteenth Amendment?. 34 Hastings L.J. 1, 3, 13 

(1982). To suggest, as the district court did, that systems that 
remain unchanged are somehow less vulnerable to attack under 
section 2 would create a perverse incentive for jurisdictions not 
to make any effort to adopt more equitable election schemes.

Fifth, the fact that only a small proportion of Gretna's 
citizenry is black provides absolutely no basis for imposing a 
higher burden on plaintiffs. Thornburg v. Gingles itself sets 
the only relevant numerical threshold; are blacks sufficiently 
numerous so that, in the absence of the challenged electoral 
structure, they would have an opportunity to elect their

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preferred candidate? 92 L.Ed.2d at 46. Here, it is undisputed 
that they are. See Record Excerpts a-13 to a-14; a-21. As long 
as it is possible to create at least one predominantly black 
single-member district, plaintiffs have satisfied the first prong 
of the Thornburg v. Ginales test. See, e.a.. McNeil v. City of 
Springfield. 658 F. Supp. at 1021 (finding section 2 liability in 
city with population that was 10.8% black where one majority 
black single-member district could be drawn under ten-district 
alternative to current five-member board plan); Dillard v. 
Crenshaw County. 640 F. Supp. 1347, 1352 n. 3 (M.D. Ala. 1986)
(finding section 2 liability in county with 13.4% black 
population).

In short, the district court used a fatally flawed legal 
standard in analyzing plaintiffs' case. By placing a greater 
burden on plaintiffs because of the character of the election 
scheme they challenged, it failed to comply with this Court's 
holding that "[t]he right to vote, the right to an effective 
voice in our society cannot be impaired on the basis of race in 
any instance wherein the will of the majority is expressed by
popular vote." Chisom v. Edwards. ___ F.2d at ___ (slip op. at
2310) (emphasis added).

17



Conclusion
For the reasons stated, the judgment of the district court

should be reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
C. LANI GUINIER 
PAMELA S. KARLAN
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae

March 29, 1988

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CERTIFICATE OF SERVICE

I, Pamela S. Karlan, hereby certify that on March 29, 1988, 
I served copies of the foregoing brief upon the attorneys listed 
below via United States mail, first class, postage prepaid:

Alice Jacobs 
Box 1874
Metairie, LA 70004-1874
Ronald L. Wilson 
310 Richards Building 
827 Gravier Street 
New Orleans, LA 70112
M. David Gelfand 
2322 Valmont Street 
New Orleans, LA 70115
Terry E. Allbritton
4814 Annunciation
New Orleans, LA 70115 _
Gerald Arceneaux 
1090 4th 
Westwego, LA
Jon A. Gegenheimer 
405 Amelia Street 
Gretna, LA 70053

GLty

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