Johnson v. Halifax County Court Opinion

    \

tdiNsox v. HALTFAf couNTy
Ct& r S9lt Fsupp. t6t (r9e{)

[trial] court deemed it entitled to the deal he had no further interest in
110 P. at 599. t' partnership or claim alainst it.t

t

|}

t
t,

161

the

II
t

I

t

In the present case, we believe the fact
that Pawl failed to meet his eontraetual
obligation to contribute eapital to the enter-
prise is entitled to significant weight. As
indicated above, we are conyinced that the
parties did not intend for him to beeome a
cmwner of the business within the mean-
ing of Cal.Corp.Code S 15006 without first
making such a contribution. Instead, the
capital contribution was a eontingent event,
and the failure of that event to occur pre.
vented the new partnership from eoming
into existence. See Solomont, supra;
Taylor o. Nelson. 26 Cal.App. 681, 14? p.
1189, 1190 (1915).

We recognize that California courts are
not inclined to find that a particular provi-
sion in a contract is a condition precedent
unless such a construction is compelled and
plainly expressed by the language of the
contract. Minthonte o. Seeburg Corp.,
397 F.2d 237, 241 (9th Cir.1968) cert. d,e-
nied 397 U.S. 1036, 90 S.Ct. tBS7, 25
L.Ed.zd 64? (1970) (decided under Catifor-
nia law). However, we are satisfied that
such a construction is in fact warranted in
the present case. Pawl did not perform his
duties under the agreement to acquire the
interest in the eorporation and therefore
was not entitled to be treated as a partner
for the period January 1, 1981, to Novem-
ber 1, 1981. His right to be treated as a
partner for that period was conditioned
upon his making the down payment which
he did not do. Pawl was not entitled to
share in the profiLs of the business because
he chose not to become a partner. He was
entitled to retain his salary of g1,2b0.00 a
month from January 1, 1981, to November
1, 1981. But when he walked away from

E. - For the purposes of this Order, rhe precise
form of the association (i.e., partnership or Sub-
chapter S corporation) conremplated by the par-
ties is immaterial.

9. There was testimony thar in 1980 good pack-
ers could be hired for approximarely 91,000 per
monrh. Pau,l's salary as a packer .,o.milly
would have been berween !l,0OO and $1,250 pei
month. If the bonus u'as regarded as part of
Pas'l's salary, defendants would have bein pay-
ing him almosr twice as much as rhey paid oihir

t5l Furthermore, since the parties at all
times intended that the $5,000 bonus be
used only for capital acquisition, pawl has
no right to now claim it as salary that has
been withheld by the defendants.e

This memorandum decision shall consti-
tute the Court's findings of fact and eon-
clusions of law.

IT IS, THEREFORE, HEREBY OR-
DERED that the Clerk of the Court shall
enter judgment in favor of defendants and
against plaintiff.

Horace JOHNSON, Sr., et al., plaintiffs,

v.

HALIFAX COUNTY, et al., Defendants,

UNITED STATES of America, plaintiff,

v.

HALIFAX COUNTY, et al., Defendants.

Nos. 83-48-CIV-8, 8B-88-CIV-8.

United Stat€s District Court,
E.D. North Carolina,

Wilson Division_

July 10, 1984.

United States and black registered vot-
ers sought preliminary injunction concern-

packers. There is no evidence that the defend-
ants intended to {p this,.and there is convincing
evidence that the bonus was intended solely to
help Pawl acquire an interest in Rock Crlek.
Plaintiff also contends that he is entitled to
$1,250 per monlh as salary for the last two
months of 1981. Plaintifls Trial Brief (Docu-
ment # 60) at 2 and 3. However, there is no
evidence thar plainriff did any work for Rock
Creek during that nvo-month period.



162

ing 1984 elections for county board of com-

missioners. The District Court, James C.

Fox, J., held that black voters demonstrat-

ed substantial likelihood that county's at-

large system for electing county commis-

sioners violated S 2 of the Voting Rights
Act by depriving black eitizens of an equal

opportunity to participate in the political
process and elect commissioners of their
choice; therefore, they were entitled to pre-

liminary injunctive relief.

Motions granted.

1. Injunction G"136(3), 137(2)

Court of Appeals has adopted balance-

of-hardship test for interlocutory relief'

2. Elections e12(B)
While a voting Practice that was

adopied or has been maintained for racially
discriminatory reasons would violate S 2 of
the Voting RighLs Act, a voting practice

that'"results" in racial vote dilution would
also violate that section regardless of in-

tent of defendants. Voting Rights Act of
1965, 5 2, as amended, 42 U.S.C.A. S 19?3.

3. Elections el2(3)
Under S 2 of the Voting Rights Act,

which prohibits a voting practice that "re-
sult^s" in racia! vote dilution, "results" test
focuses judicial inquiry on objective factors
concerning the "totality of circumstances"
bearing on present ability of minorities ef-

fectively to participate in political process;

however, Congress did not intend relevant
factors identified in Senate Report to be

used as a mechanical "point counting" de'

vice, but, rather, evidence about those and

other relevant factors was intended as a
guide for court's exercise of its judgment

about whether the electoral system, in light
of its present effecls and historical context,

treats minorities so unfairly that they ef-

fectively lose access to political processes'

Voting Rights Act of 1965, 5 2, as amend-

ed, 42 U.S.C.A. S 1973.

,1. Counties e38
Black voters demonstriitecl substantial

like'lihood th:it county's at-larg(' s1'stem for
electing ct,:tltri' commissionrrs vicrlated S 2

ol the \ r,t:1ri Rights: Ai i i'1, delrriving

694 FEDERAL .SUPPLEMENT

black citizens of an equal opportuirity to
participate in the political process and elect

commissioners of their choice; therefore,

they were entitled to preliminary injunctive

relief. Voting Rights Act of 1965, S 2, as

amended, 42 U.S.C.A. S 1973.

Leslie J. Winner, Chambers, Ferguson,

Watt, Wallas, Adkins, P.A., Charlotte,
N.C., Jack Greenberg, Lani Guinier, New

York City, for Plaintiffs.
Steven H. Rosenbaum, Poli A. Marmole-

jos, Dept. of Justice, Civ. Rights Div., Wash-

ington, D.C., for United States.

Odes L. Stroupe, Jr., John R. McArthur,
Hunton & Williams, Raleigh, N.C., for de-

fendants.

REASONS FOR THE ISSUANCE OF OR.

DER DATED JULY 2, 1984, GRANT.
ING PRELIMINARY INJUNCTION

JAMES C. FOX, District Judge.

The United States and the Johnson plain-

tiffs (19 black registered voters of Halifax
County, North Carolina) sought a prelimi-

nary injunction concerning the 1984 elec-

tions for the Halifax County Board of Com-

missioners in order to ensure that the right
to vote of black citizens of Halifax County
is not denied or abridged in violation of
Section 2 of the Voting Rights Act, as

amended. 42 U.S.C. S 1973 (hereinafter,

"section 2"), and the Fourteenth and Fif-
teenth Amendments. The Johnson plain-

tiffs filed suit on June 6, 1983. The United
Stat€s filed suit October 6, 1983, asserting
a Section 2 claim, and in addition, alleging
that the County failed to obtain preclear-

ance of tu'o components of its election

method in violation of Section 5 of the Act.
Plaintiffs' Section 2 claims have been con-

solidated for determination ,ty this single-
judge district court.

Upon revieu' of plaintiffs' complaint,
plaintiffs' motions and briefs in support
thereof, defendants' resporrse and affida-
vits submitted bv all partics. and after oral
argument ot-i June 2(j. tlr, r ,,.1t'1 concluded

that plaintiffs sustairted 1,ir' 'r' I)rilnarv bur-
den of establisliing tiri'i
rable harm unless iit' it,'i

r:ffer irrepa-
:, i:,sued and

that
of tl
for ,

orde
follt

A.

1.

nan'i
Cari
asc
tion
whil
votir
ofr
16,6
wer
15,6
wer,
rutr-
votr
The
elec
C,ou

,
ing
Roa
witi
tow
(79.

inI
Tor,
blat

B.

;1.it^{?
,,

i

"j{L..L 11i--.-&

3

Boi
ina,
twt
thr
19(
194

fiv,
Ea,
gio,



that they will likely sueeeed on the,merits

of this action. Thernefore, ptlaintiffs' motion

for a preliminary injunction was granted by

order dated July 2, 1984, based upon the

following facts and conclusions of law.

FINDINGS OF FACT I

A. Background

1. Halifax County is a large, predomi-

nantly rural county in northeastern North
Carolina. According to the 1980 C,ensus,

as corrected, Halifax County had a popula-

tion of 55,076, of whom 26,811 (48'7%) wete
white and 26,599 (48.3%) were black' The

voting age population in 1980 was 38,051,

of whom 20,280 (53.3%) were white and

16,615 (44.17,) were black. In 1980, there

were 24,634 registered voters, of whom

15,669 (63.6%) were white and 8,513 (34.6%)

were black. The black voter registration
rat€ was 50.8 percent, whereas the white
voter registration rate was 77.3 percent.

The voters of Halifax County have not

elected a black candidate to the Board of
County Commissioners in this century.

2. The eounty has 12 townships, rang-
ing in 1980 population from 51? to 20,340.

Roanoke Bapids, which is the township
with the largest population, is the only
township with a white population majority
(79.4%). In 1980, 60 percent of the whites
in Halifax County lived in Roanoke Rapids

Township, while 85 percent of the county's
blacks lived in the other eleven townships'

B. Method of Eleeting the Board oJ

County Commissioners

3. The members of the Halifax County
Board of County Commissioners were nom-

inated and elected on an at-large basis for
two.year, concurrent terms from 1896

through 1944. 1895 N.C.Sess.Laws 135;

1903 N.C.Sess.Laws 515. Beginning in the

1944 elections, the county was divided into
five districts based upon township lines'
Each district nominated a county commis-

sioner; general elections were still held on

1. Most of the recited facts are undisputed.
Where disputed, the court's findings, while sup-
ported by affidavits, are tentative, and arc found

-'--
.:

JOHNSON ry. HALIFAX COLJNTY
cltc u l'9l FSupP. tct it*r) t

i.*'
\

. 163

an at-large basis. 1943 N.C.Sess.Laws 317.

This system of nomination b! district but
election at-large operated eisentially as a
singlemember district system because

nomination by the Democratic Party virtu-
ally assured election.

4. The district nomination method last'
ed from 1944 until 1960, when the county
reverbed to a system of at'large nomination
and election. 1959 N.C.Sess.laws 1041.

In 1960, voters in Halifax County were

allowed to choose between an at-large sys-

tem with or without residence districts.
Voters were not allowed to choose to retain
the district nomination system that had

been in effeet since 1944. Ibid. By a vote
of 7,255 to 2,611, the voters ehose an at-

large system with residency districts.

5. Since 1960, Halifax County has both
nominated and elected county eommission-

ers on an at-large basis, with at least one

commissioner from each of five residency

districts. In 1968, the terms of county
commissioners were staggered and in-

creased from two years to four years.

196? N.C.Sess.Laws 839. Even though this
change was implemented in 1968, the pre-

clearance required by Section 5 was not
obtained until May 16, 1984, when the At-
torney General declined to interpose an ob-
jection.

6. In 19?1, the state legislature readopt-

ed and expanded the at-large election sys-

tem by adding a sixth commissioner who

would reside in Roanoke Rapids Township
but he nominated and elected on an at-

large basis. 19?1 N.C.Sess.Laws 681. The

county has implemented this change since

19?2, although it had not sought preclear-

ance under Section 5 before this suit was

filed. On May 16, 1984, the Attorney Gen-

eral interposed a timely objection under
Section 5 to the voting changes occasioned

by the 1971 lau'. Ig addressing the coun-

ty's readoption and expansion of the at-

large election system, the Section 5 objec-

tion states:

for the purpose of ruling on plaintiffs' respec'
tive motions.

-i. _.



164 594 FEDERAL SUPPLEMENT
t

While we have noted the submission's
statement that Chapter 681 was adopted
to remedy malapportioned residency dis-
tricts, the county has presented no ade.
quate explanation for adopting the meth-
od chosen. The county commission ad-
mittedly considered other alternatives
but those other alternatives and the rea-
son(s) for their rejection have not been
identified. Several obvious options, such
as eliminating residency districts (there-
by allowing single,shot voting) or adopt-
ing a single,member district election sys-
tem, would have enhanced black voting
strength yet apparently were rejected in
favor of the Chapter 681 alternative
which maintained black voting strength
at a minimum level. There is no evi-
dence that black citizens were consulted
about the malapportionment issue, nor
was it submitt€d to the voters in a refer-
endum as has been the past procedure
for modifying the method of electing the
county commission.

7. Although the five-member at-large
eleetion plan which was in force and effect
as of November 1, 1964, contains such ra-
cially discriminatory features as may exist
in the plan to which the Attorney General
objected, Section 5, by itself, does not pre-
clude use of said five-member plan. See
City of Rotne a. United States, 446 LI.S.
156, 182, 100 S.Ct. 1548, 1564, 64 L.Ed.zd
119 (1980). That system required at-large
nomination and election of five commission-
ers, with one commissioner residing in each
of five residence districts.z County eom-
missioners serve four-year, staggered
terms. A majority-vote requirement ap-
plies in the primary elections. N.C.Gen.
Stat. S 169-111.

8. Defendants have submitted affida-
vits which tend to show that Halifax Coun-
ty's eurrent method of electing County
Commissioners is a political compromise

2, The five residencv districts are the same dis-
tricts adopted in 1943 N.C.Sess.l.arvs 317. See
1959 N.C.Sess.Lau,s 1041. Thc disrricrs follou.
tou'nship lines:
District l: Brinkler.r'illc, Fuii..good and l_ittlc.

ton
District 2: Roanoke Rapr-:.

adoptedrwithout intent to abridge the righf
of black citizens to vote. As hereinafter
discussed, however, such intent is not an
essential predicate for a violation of Section
2.

C. Racial
Matters

in Voting

9. "[T]he Stat€ of North Carolina had
officially and effectively diseriminated
against blaek citizens in matters touching
their exercise of the voting franchise for a
period of around seventy years, roughly
two generations, from ca. 1900 to ca. 19?0.,,
Gingles a. Edmisten 590 F.Supp. B4b at
359 (E.D.N.C.1984).3 In 1900, North Caro-
lina voters approved "constitutional amend-
ments specifically designed to disenfran-
chise black voters by imposing a poll tax
and a literacy test for voting with a grand-
father clause for the literacy test whose
effect was to limit the disenfranehising ef-
fect to blacks." Gingles, supra, at 859.
The following year, the legislature ensured
that those devices would have their full
effect by requiring a re-registration of all
voters subject to the poll tax and literacy
test. 1901 N.C.Sess.Laws 89, 55 12 and 18.
"The 1900 official literaey test continued to
be freely applied for 60 years in a variety
of forms that effectively disenfranchised
most blacks." Gin.gles. supra, at 359; see
Bazemore a. Bertie Countg Board of Elcc-
tiorx, 254 N.C. 398. 119 S.E.zd 68? (1961).

10. Consequentll', in November 1964,
prior to passage of the Voting Rights Act,
which barred use of literac.v- tests in juris-
dictions covered by Section 5 of the Act,42
U.S.C. 1973c, 42 U.S.C. 19?3b, blacks con-
stituted only 19.7 percent of Halifax Coun-
ty's registered voters (4,487 "non-whiies,'
out of a total of 22,808).

11. In May 1964, the federal dlstrict'
court found that Halifax County election

District 3: Faucert, Weldon
District 4: Enfield, Halifax
Dislrict 5: Conoconnara, Palmyra, Roseneath

and Scotland Neck.

3. A copv is included in Johnson plaintiffs' Ap,
pendir of Unreported Decisions.

officials
to enga
discrimi:
fax Cou
nity to r
C.A. N,
straininl
barred d

ry taetir
and reqr
May 16,

residenc,
granted
some pa
modified

12, B
who engr
jected kr
black tea
system r

her parti
cluding '
tivity." ,

178 (4th
1003, 87

13. In
for voter
weeks pri
did not r

August 1l

torically I

to serve
officials.
served as

From 19?
of blacks
1970, only
total of t
1980, ther
the 112 el,

L4. Th
discrimina
1982, whe
elections r

tration rar
the white
percent.
cent of Ha

4, There h;
ber of rr
rn.l bL,..r"

a.. -_



t
?

I
I

iouxsoN v. H.umix couNry

orriciars,,ha,e beefi 
'eni",;-*;J[;il:;',',,','il?,,-;;,rrg 

out or,r,onn,, ]nllto engage in a course of coriduct whieh were only 38-5 percent of its resistered,
discriminatorily deprives Negroes in Hali- voters (9,0g2 out of zi,iaii., '"'",*''",
fax C,ounty, North Carolina, of an opportu- 15. Halifax County also used votingniW to register to vote.,, Alston a. Butts, .".f.,;ririr.-;".;;; to dilute potentialC.A. No. 875 (E.D.N.C. Temporary Re- btack voting strength. See Oingles, su-Itraining order, May 8, 1964). The order pra, at 860. In t9is, the state legislaturebarred defendants from engaging in diratc passed an anti-singre shot voting law appli_ry tactics when registering braek voters cabre to primaries- herd in Halifax countyand required weekday registration through for eounty and municipal offices. lg'bMay 16, at places other than the registrar's N.C.Sess.Lws 1104. This law had ,,the
residence. On May 14, 1964, the court intended effect of fragmenting a black mi_granted a preliminary injunction in which nority,s total vote between two or moresome particulars of the earlier order were candidates in a multi-seat election and pre-modified. Ibid. venting its concentration on one candi-

L2. Black citizens in Halifax County date." Gingles, sltpra, at 860. A black
who engaged in political activity were sub- citizen of Halifax County was unsuccessful
jected to intimidation and retaliation. A in his attempt to challenge the law in state
black teacher in the Halifax county school court. walker a. Moss, 246 N.c. 196, g?
system was unlawfully fired in igOa for S.E.2d 836 (195?). In 1959, the anti-single
her participation in civil rights activity, in- shot provision was extended to gene-ral
cluding "voter registration and voting ac- elections for municipalities in Halifax
tivity." Johruon o. Branch, BG4 F.2JU?, County, 1959 N.C.Sess.Laws 906. A num-
178 (4th Cir.1966), cert. denied, 885 U.S. bered seat plan for the state representative
1003, 8? S.Ct. ?06, t? L.Ed.2d uz Osetl. district, which included Haliiax County,

13. In addition, prior to 1970, the time 
passed in 1967 and served to prevent sin-

for voter registratio'n was limited to a few 
gle-shot voting' The anti-single shot laws

weeks priorL an ereetion. Harirax c;; ffirdJll?j::Li::'Ti?ffi"J::i,,ildid not adopt full-time registration until
August l9?0. Moreover, black citizens his- 

Dunston a' scott' 336 F'supp' 206 (E'D'N'
torically have been denied the opportunity 

c'1972)' see Gingles, s't4pra, at 360.

to serve as election or voter registration 16' In 1960, the meth-od -of electing
officials. Apparently no black person county commissioners in Halifax changed
served as an election official before 1g?0. from a district nomination system to an
From 1970 until 198i, only token numbers at-large nomination and election system.
of blacks served as election officials. In 1959 N'C'Sess'Laws 1041. (See discussion,
19?0, only one black person sen'ed out of a supra' at paragraphs 3-4') This change

total of gS election otti.i"t.. As late as ensured that the white voting majority in
1980, there *"r" orty 10 blacks (g.g%\ of the county would be able to control the

the 112 etection orriciats in Hatirax count1,. ;i"r'J:"i"j:."?,f:Ti: :r,Ifj['i:?i,":il14. The legacy of this history of voting majorities in voting age popuration. Blaeksdiscrimination against blacks is that as oi were a minority 1r- tl" overall county,s
1982, when the last county commissioner voting age popuiation.
elections were held, the black voter regis- ,
tration rate was 52.3 percent, compared to D. Racial Bloc voting in contests forthe white voter registration rate of 68.5 County Contmissioner
percent. Although blacks were 44.s per- 77. Not one brack person has been elect-cent of Halifax county's 

'oting age popula- ed to thc Hiilifax county Board of county
4. Therc has becn a marked increase in the num- lrari.n ::r.r,.i,.rrl.s sh.u, lhal thc white registrationber of registcrcd voters-both among rvhites raic ): l, , :,i r.cnl, s,hcreas fhc black registra,and blacks-sincc 19E2. The 1984 voiet.regis- ri6u rlrlr i.^.: lr",i."ni.'



166 594 tr'EDERAL SUPPLEMET{T

Commissioners in this century. Nor have
blacks been elected to any countywide of-
fice in this century. Black candidates have
run for county commissioner eight times
from 1968 through 1982. Dr. Allan J.
Lichtman, a professor of history at the
American University, has analyzed these
contests to determine whether voting has
been racially polarized. He concludes that
"the results of analysis demonstrate a sub-
stantial and enduring pattern of racial bloc
voting in elections for the county commis-
sioners of Halifax County, North Caroli-
na.t'

18. Dr. Lichtman's analysis shows that
in the eight contests between black and
white candidates, on average 90 percent of
the white voters supported the white candi-
date, while 75 percent of the blaek voters
supported the black candidate. The follow-
ing chart shows the extent of racial bloe
voting, according to Dr. Lichtman, in the
last four contests between black and white
candidates. -

7 OF BLACXS 
' 

OF WHITES
YEAR AND VOTING FSR THE VOTING FOIT

CONTEST BLACK CANDIDATE WHITE CANDII)ATES

1976

Disrict 3 82 97

l9?5

District I U3 8tl

t9it0

District 4 92 i4
191{2

District I 88 83

Dr. Lichtman's analysis further indicates
that: (a) in the last four contests. black
voters' support for the black candidates
averaged 86 percent, while white voters'
support for the white candidates averaged
86 percent; (b) each of the eight contests
between black and white candidates pro-
duced an extremely high conelation be-
tween the percentage of blacks among vot-
ers in a precinct and the percentage of
voters voting for the black candidate; and
(c) each correlation is statistically signifi-
cant-the results obtained are likely to oc-
cur by chance less than one in one hundred
thousand times.

19. Dr. Lichtman also analyzed racial
differences in voter registration from 1968
through 1984, and turnout in all county

eommissloner elections from 1968 through:
1982. Throughout the entire period the
proportion of voting age whites registered
to vote has been higher than the proportion
of voting age blacks registered to vote.
There are differences in terms of turnout,
as well. On average, black voters turn out
at a higher ratc (43.6%) in elections with
black candidates than do white voters
(35.3%). But the mean white voter turnout
in eontests with only white candidates
(36.5%) is higher than the black mean
(29.0%). While the participation of white
vot€rs appears to be independent of the
race of the candidates, black voter partici-
pation increases dramatically in contests
with black candidates. In light of this
analysis of voter turnout, it is Dr. Licht-
man's opinion that the laek of suceess of
black candidates cannot be attributed to
the apathy of black voters,

20. While Dr. Lichtman's analysis of
county commissioner contests involving
black candidates gives rise to his opinion
that there has been a substantial and en-
during pattern of racial bloc voting in such
contests, Defendant expert, Dr. Noel Duni-
vant, has opined that Lichtman's analysis is
flawed because he failed to conduct a mul-
tivariate analysis necessary for accurate
results in a voter motivation study. Dr.
Dunivant found race not to be an important
determinate of candidate choice during the
past decade in Halifax County. Without
ultimately determining the issue, the court,
for the purposes of ruling on plaintiffs'
respective motions, will accept Dr. Licht-
man's opinion at this time in view of de-
fendant's eoncessions that (a) as an histori-
cal matter, black citizens of North Caroli-
na, including Halifax County, were not per-
mitted by lau, or eustom to participate on
an equal basis n'ith white citizens in the
political, economic, educational and social
endeavors of the community, and (b) that
the black community continues to occupy a
lower socioeconomic status as a conse-
quence of historical disadvantages.

E. The Present Day Socioeconontic Ef-
.fects of Racial Discriminatiort

21. North Carolina ha-q a "long his,tor]'
... of racial discrimination in 1rul,):: an:l

private f
ment, hor
prq at i.

existed in

22. It
t;r remain
Brown a.

483, 74 S.

Supreme t

segregatir
The r

complet
In that
freedor
very lit
r967-19
studen!
traditior
of the
traditior
school-b
studen!
faculty

United f
Board oJ
486, 92 S

(Lg'.t2). L
ruled that
school syr

have the
Iishment ,

existed in
S.Ct. at 2

first bega
plan in 19

2216 n.3.
23. Tor

Halifax r

schools ar

the Halifa
schools ar
tion, 18.6

attend pr:
0.9 percer,

24. Th,
tory of sr

S. Sledge ,t

N.C. t 975 )
Appendix
parl. ,tr,'.



. .JOHNSON v. HALIFAX COT NTY , 167r ctt u r9l Fsupp. tct (Igin)

private facility uses, education, efnploy- that among the countyt population, 25

ment, housing and health." Gingles, su- years and older, there are great disparities
pra, at 861. De jure racial segregation in educational attainment between whites
existed in virtually all areas of life. and blacks. For example, only 5? percent

zz. The public schools in Halifax coun- of the blacks had 'at least an eighth grade
r r- - -,r education, while fully 80.? percent of thety remalneo raclally segregaEeo to:.8- "-'.Y whites had that much school-ing. Whereas

Broutn a. Board of Ed.ucation, 34? U.S. 'l

4g3,74S.Ct.6g6,98 L.Ed. g?3 (ig54). The 54'6 percent of the whites had eompleted

supreme courr has d",.;;i th;;;;; li-J ffIfiUl'rrilt'trfflt'irT"j:ffI;
segregation as follows: years of schooling for blacks is g.g, B.B

The schools of Halifax county_ were years less than the median years of school-
completely segregated by race until 1965. ing for whites.
In that year, the school board adopted a
freedomof-choice plan rnl! produced 

"r31,r,1'tr::l'ffi:lXl'J:lltxil:jl:very little actual desegregation' In,the and the former Albemarle paper compa-
1967-1968 school year':]1 

"i l* *^hi* ny6 have been found to have engaged-in
students in the county attended the four racial discrimination in violation of Title
traditionally all-white schools, while g7% VII of the Civil Rights Act of 1964, as
of the Negro students attended the_Ja amended, 42 U.S.C. ZOOOe et seq. In 1979,
traditionally all-Negro schools. The blacks had a mean family income of 10,465,
school-busing system, used by 90% of the only 55 percent of the mean income for
students, was segregated by race, and white families. Blacks were four times
faculty desegregation was minimal. more likely than whites to be living in

United States a. Scotland Neck City poverty. They had a higher unemployment
Board of Education, 407 U.S. 484, 485- rate and those blacks who were employed

496, gZ S.Ct. 2214, ZZLS, gB L.Ed.2d ?b tended to hold low-paying, low-level jobs.

(Lg72). ln that case, the Supreme Court Consequently, the 1980 Census shows that
ruled that the 196g law creating a separate the living conditions of blacks in Halifax

school system for Scotland Neck ,iwould County were worse than those of whites.

have the effect of impeding the disestab- 26. Defendants have submitted affida-
Iishment of the dual school system that vits which clear)y show that (a) Halifax
existed in Halifax County." Id. at 490, 92 County has become increasingly responsive

S.Ct. at 2218. The county school districl and sensitive to the needs of the disadvan-

first began to implement a unitary school taged citizens of the County, many of
plan in 19?0. Id. at 487 n. 3, 92 S.Ct. at whom are black, and (b) blacks have in-

2216 n. B. creasingly participated in the political pro.

23. Today, of three school systems in cess' Nevertheless' it appears likely that

Harifax county, th" 
";;;;";;" 

ri"ori= blacks in Halifax countv are suffering

schoors are overwher-rr*iJ'i,irit .';;;; from. the lingering effects, of historical dis'

the Halifax county .choori and the I"r9:: ;'fiT:::f iiJ,"li;ifi:X1il::*:: TJ;
schools are overwhelmingly black' In addi- served to diminish their effective political
tion, 18.6 percent of the white students influence.
attend private schools, compared to only t
0.9 percent of the black students. CONCLUSIONS OF LAW

24. The present-day effects of this his- tll 1. The eourt of appeals has
tory of segregated and inferior schools is adopted a balance-of-hardship test for in-

5. Sledge v. J.P. Stcten.s, l0 E.D.P. 1i 10,585 (E.D. cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60
N.C.1975) (6'opr appended to Johnson Plaintiffs' L.Ed.2d 241 (1979).

Aplrcndir , ' I ':rr lrorlcd Decisions), alf 'd in
pi,t. re,iii,,,,,,,r .s8.r izJiii'iii-('c#iqzsi, ''"1y";t!:{{r:#:^";#tl;r\1j 

u's'40s'es
:

._.fl..... --



::.d ..:. --
\

168

terlocutor!, relief. North Carolina \tate
Ports Authority o. Dart Containerline
Co., Ltd.,592 F.2d ?49 (4th Cv.1979); Fort
Sumter Tours, Inc. o. Andrus, 564 F.zd
llfg (4th Cir.1977); Blackwelder hrrni-
ture Co. tt. Seilig Manufaeturing Co., 550

F.2d 189 (4th Cir.1977). The four factors
to be considered are: (1) likelihood of suc-

cess on the merits, (2) possible irreparable
injury to plaintiff if relief is denied, (3)

possible harm to defendants if relief is
granted, and (4) the public interest. Ibid.
ln North Carolina State Ports Authority,
supra, 592 F.2d at 750, the court summa-
rized the interplay of these four factors, as

follows:

There is a correlation between the likeli-
hood of plaintiff's success and the proba-
bility of irreparable injury to him. If the
likelihood of success is great, the need

for showing the probability of irrepara-
ble harm is less. Conversely, if the like-
lihood of success is remote, there must
be a strong showing of the probability of
irreparable injury to justify issuance of
the injunetion. Of all the factors, the
two most important are those of probable
irreparable injury to the plaintiff if an

injunetion is not issued and likely harm
to the defendant if an injunction is is-

sued. If, upon weighing them, the bal-
ance is struck in favor of plaintiff, a

preliminary injunction should issue if, at
least. grave or serious questions are
presented.

7. Section 2, as amended in 1982, providcs:
(a) No voting qualification or prerequisite

to voting or standard, practice, or procedure
shall be imposed or applied by any State or
political subdivision in a manner which re-
sults in a denial or abridgement of the right of
any citizen of the United States to vote on
accounl of race or color, or in contravention
of the guarantees set forth in section 4(fX2),
as provided in subsection (b).

(b) A violation of subsection (a) is estab-
lished if, based on the totality of circumstanc-
es, it is shown thal the political processes
leading to nornination or elcction in the State
or political subdivision are not equally open
to participation bl mcmbrrs of a class of
citizens protccted by subsection (a) in that its
membcrs hatc lcss (,pli()ilunil\ than othcr

694 FEDERAL SPPPLEMENT

A: There Is a Subtantial Likelihood

fhat Halifaa County's At-Large Elec-
tion System Violates Section 2 of the
Voting Rights Act, As Amended, and
That Use of That System Will Result
In Ineparoble Injury

t2,3l 2. C,ongress' primary objective
in amending Section 2 was to provide a
remedy for racial vote dilution that is not
necessarily the product of intentional raeial
discrimination.? While a voting practice
that was adopted or has been maintained
for racially discriminatory reasons would
violate Section 2, a voting practice that
"results" in racial vote dilution also would
violate Section 2, regardless of the intent
of the defendants.s S.Rep. No. 417, 97th
Cong., 2d Sess. 16, p.21, reprinted in 1982
U.S.Code Cong. and Ad.News 177. The
"results" test focuses judicial inquiry on

objective factors concerning the "totality of
circumstances" bearing on the present abil-
ity of minorities effectively to participate in
the political process. The test is based
upon the standards developed in White u.

Regester, 412 U.S. 755, 93 S.Ct. 2332, 37

L.Ed.2d 314 (1973) and subsequent cases,
including Zimmer a. McKeithera, 485 F.2d
1297 (5th Cir.1973) (en bane), affd on oth-
er groun.ds sub nom. East Carroll Parish
School Board a. Marshall,424 LI.S. 636,96
S.Ct. 1083, 47 L.Ed.zd 296 (1976). S.Rep.
No. 417 aL 27-30,32; see United Sta,tes u.

Marengo County Comm.issiort 731 F.zd
1546 (1lth Cir.1984); Gingles, supra.

members of the eleclorate to participate in the
political process and to elect representatives
of their choice. The extent to which members
of a protected class have been elected to office
in the State or political subdivision is one
circumstance which may be considered: Pro-
vided, That nothing in this section establishes
a right to have members of a protecred class
elected in numbers equal to their proportion
in the population. .

42 U.S.C. 1973.

E. The elimination of the "intent" requiremenl is
a conslitutional exercise of congressional power
to enforce the Fourteenth and Fifteenth Amcnd-
mcnts. L/nired Slale.s r,. Marengt, Countv Cont-
tttissiort, 731 F.2cl l-546 (l lth Cir.l984), Jones t
('trt oi l-ubbock, 727 F.2d 361 (5th Cir.l98i,

3.

lowinl
"total

1.

disc
subr
men
ter,
the

2.

elecl
sion

3.
polit
larg,
quir,
orc
that
discr
groL

4.

cess,

ty gr
proc(

5.

the r
cal ."

erimi
empl
their'
the p

6.

been
cial a

1.

the n

publi,

S.Rep..
U.S.Co(
20s-20\

4.C
"to be r

ing' der
n.118,
1982, p.
ment "r

9. ln Ut

the sig
Bvi
hard
are

,*i*



...---

to-zvt. than the white registration rate (76.g%).

1r-?.1X"::.^9,^O:-"llr":d,thesefacrors 6. Brack politicar participarion is also

JOHNSON i. HALTFAX{OIrNTY log
s. rhe Senate R:*r,*,or,"l'ril;i:T:'#|Jo,"a, or that a majority or themlowing factors as rereibnt to the section 2 ryr1t oni way or lhe pther.,, Id. at zg,"totality of circumstances" inquirf il.S.Coa" Cong. O-e.a.in.N"*s lgg2, p.1' the extent of any history of official 20?. Rather, 

""rid"n"" 
about these and oth-discrimination in the ltate or political er relevant factors is intended as a guidesuMivision that touched the righi of the for the dourt,s 

"*"""i." of its judgment
members of the minority group to regrs- about whether ,,the electorar system, inter, to vote, or otherwise to participate in light of its present effects and historicalthe democratic process; context, treats minorities so unfairly that2' the extent to which voting in the they effectively lose access to the political
elections of the state or political subdivi- processes.,, Jones, supra,7z7 F.zdat Bg4_sion is racially polarized; Bg5, see United Siates a. Marengo, supra;3. the extent to which the state or Gingles, supra.
political subdivision has used unusually
iarge election districts, majority uo; ;"- t4l 5' The "totality of circumstances"
quirements, anti-single shot provisions, demonstrate that defendants' at-large
or other voting praetices or irocedure' 

county commissioner election system with
that may ennln." the opportunity foi relid-e1c9 distriets deprives Halifax Coun-
diserimination against t'h. ;;;;; tv's black citizens of an..equal opportunity
group; to participate in the political process and

""1,;'n:ln::fi "L#1,"t:ilf, IXffi .;',""ff 1:"H"ffIT",,*T,:',.l}ff t[:X.
ty group have been denied aceess to that n1-have been subjected to a long history of
process; w urro! official racial discrimination 

"or.".ring5. the extent to which members of 
their right to vote and participate in thI

th9 minglitr g.ouf-in the state o" poriii- ililTx fi:.,T: ,J1i"'ijrJ:1":Jr".:ffical subdivision bear the effeets oi dir_ .l

crimination in sueh areas as education, 
in the fact that Halifax County blacks com-

employment and health, which hinde. Ptitu-d less than 20 percent of the rcgis-
ttreir anility to f"rti.lprt" effectively in 

tered voters' Halifax County did not insti-
the politicai p.o."r., 

-'t"'v rrrELurvtrJ rtr tute full-time voter registration until 1970,

,": 
j;f*:;""1*":,.'":r::'ffi 

,,:"""":::J,.i3:h",','""i'"".',,ii'"ili1,f ,::i:J;
cial appeals; 

r vrsr u ur Duuure ra- more than token numbers before 1983.e I;
7. the extent to which members or iSii;"',iliX ffi:-':ll,ilT,:l'5J'ffi[]the minority group have been elected to and the white registration rate (6g.b%). A1_public office in the jurisdiction. though about B,d0o blacks have registered

S.Rep. No. 477 at28-29 (footnotes omitted), since 1gg2, the black registration rateu'S.code cong. & Admin.News 19g2, p. (6g.8%) still remains significantry lower20U207. +1,^- .L^ ---L:a-

"to be used [ ] as a mechanical 'point count- impaired by the p."."it day soeioeconomicing' device." s.Rep. No. 4r7, supra, at 2g, effects 
"".rttrng'rro- raciar discriminationn' 118, u's.code cong. & Admin.News in education, ",ipl"y.*t and other areas.1982, p' 207, n. 118. Nor is there a require- see supra, at paragraphs il-14. com-ment "that any particular number of fac- pared to whites ln rt'"tir"x County, blacks

9. ln United States v. Marengo, the courl noted having feu,black poll officials ... county offi-the significance of these kind of policies: cials impaired Uiu.[ u..".. ro rhe politicalBv holding shorl hours the Board made it system and the confidence of blacks in thcharder for u-nregistered voters, more of .^,I.ro- system,s openness.are black than u,hite, to regisler .... By Ar 1570.

)
2

-t..-..*. -

.#-



170 694 FEDERAL SUPPLEMENT

have lower educational, employment and

income levels, and dis-proportionately more

blacks live in poverty and have less ade'

ouate housing. In amending Section 2,

{3ongt"tt recognized that "[w]here these

conditions are shown, and where the level

of black participation in politics is de-

pressed, plaintiffs need not prove any fur-

iher causal nexus between their disparate

socioeconomic status and the depressed lev-

el of political participation." S'Rep' No'
g14li, supro, at 29 N' 114; see Gingles,

supra, at 363 n. 23.

7. Black candidates have been unsuc-

cessful in their attempts to gain election to

the Halifax County Board of County Com-

missioners. Not one black candidate has

been elected to the county commission or

any other county-wide office in this centu-

ry. Th"t" is evidence which supports the

view that racial bloc voting in the eight

contests between black and white candi-

dates between 1968 and 1982 is persistent

and severe. In the last four contests, the

mean white support for the white candi-

dates was 86 percent, while the mean black

support for the black candidates was 86

percent. In other words, only 14 percent

of *," whites voted for the black candi-

dates; similarly, only 14 percent of the

blacks voted for the white candidates'

8. Evidence of racially polarized voting

is at the root of a racial vote dilution claim

because it demonstrates that racial consid-

erations predominate in elections and cause

the defeat of minority candidates or candi-

dates identified with minority interesG'

United States t. Marengo, supra, at 1566-

1567; Jones, sltpra, 727 F.zd at 384, Gin-
gles described the essence of a vote dilution

claim as follows:
primarily because of the interaction of
substantial and persistent racial polariza-

tion in voting patterns (racial bloc voting)

with a challenged electoral mechanism, a

racial minority with distinctive group in-

teresls that are capable of aid or amelio-

ration b1' governn.ient is effectively de-

10. Thc facr tl:r,' " .tural barriers to regislra'
tion, voting alr(i ( ':Jidacv mal no longcr exist

does not elinr:r:. il,( \iolation because ractal

bloc vorint clt ',i1, other factors may- still

ni"a'tn" political power to further thos!

interests that numbers alone would pre'

sumptively [citation omitted] give it in a

voting constituency not racially polarized

in its voting behavior.

At 355. In other words, absent racial bloe

voting an atJarge syst€m would not ensure

the consistent defeat of minority candi-

dates or eandidates associated with minori-

ty interests.lo

9. Halifax County's at-large election

system with residence districts also has

slveral so-called "enhancing" features that

make it more difficult for blacks to elect

eounty commissioners of their choice' The

county is geographically large, the use of

resideney districts, which operate like num-

bered-post requirements, precludes single-

shot voting, and a majority-vote require-

ment applies in primary elections' See

United States u. Marengo, supra, at 15?0;

Gingles, suqra, at 363-364.

10. Thus in evaluating the totality of

factual circumstances it should be empha-

sized that this lawsuit does not challenge

at-large elections per se. Rather the )aw-

suit challenges an election system which

results in an abridgment of the rights of

black citizens to effectively participate in

the political process. The election struc-

ture challenged is imposed in the context of

a long history of racial discrimination with

present day effecLs and is imposed also in

ihe context of evidence tending to show

racial bloc voting. The election structure

conlains at large provisions, as well as a

majority vote requirement and residency

distriets, which preclude single-shot voting,

all of which, in these circumstances, hinder

effective minority participation' The evi-

dence also supports a finding that the at-

large election system maintained to dale

has diluted the voting strength of black

citizens of Halifax County' Rogers a'

Lod.ge, 458 U.S. 613, 102 S'Ct' 3272, ?3

L.Ed.zd 1012 (1982).

deny minorities equal opporlunity in an l']u.tc"
.le.iio., system. See Jones, supra,727 F'2d al

38rf-385; Ginglcs, saPra, al 355.

11.

totaliW
plaintif
the de

sioner
The co

"[ilf th
need ft
rable h
Ports .

Here, )

fax Co
once a

equal r

sioners

B. Dt
th

t2.
ant's I
missio:
tions
found,
burder
sion a:

set fo
1984,
sioner
electic
comm
vide c
tion, (

politic
less tl
itself
sion 

'

meritr
denso
toral

! Not

i that
I admir

defen
not, i

view
be in

.' c. 1

l
.:

tt .

-t- _



.aF--
, 'CoPE v. ucPtipRsdN rtr

. 9ltcu39lF.6upp. l7l (t98a)

11. These factors, ebnsidered in their unlawfully dilute black vqding strength not
totality, make it exceedingly likely tllat the be used, 42 U.S.C. 1973, ahd authorized the
plaintiffs will prevail on their claims that Attorney General to seek preliminary relief
the defendants' at-large county commis- to prevent a violation of the Voting Rights
sioner election system violates Section 2. Act. 42 U.S.C. 1973j(d). The public inter-
The court of appeals has recognized that est would therefore be served if black citi-
"[i]f the likelihood of success is great, the zens are afforded an equal opportunity to
need for showing the probability of irrepa- elect county commissioners of their choice.
rable harm is less." North Carolina State
Ports Authority, supra, 592 ?.2d at ?50.
Here, however, the black citizens of Hali-
fax County will suffer irreparable harm if,
once again, they are unable to have an
equal opportunity to elect county commis-
sioners of their choice.

B. Defmdants Will Not. Be Harmed By
the Issuance of An Injunction

12. It would appear to be in the defend-
ant's best interest in holding county com-
missioner elections in the 1984 general elec-
tions if an interim plan therfor can be

found, provided the plan does not unduly
burden the defendant and/or cause confu-
sion among the voting populace. The plan
set forth in the court's order of July 2,

1984, (a) will permit three county commis-
sioners to be elected in the 1984 general
elections, (b) will continue in office county
commissioners elected in 1982, (c) will pro-
vide continuity in the county's administra-
tion, (d) will insure minority access to the
political process, (e) will provide districts of
less than 2% deviation, (0 possibly willlend
itself to a permanent solution at the conclu-
sion of the trial of these cases on the
merits, and (g) should not be unduly bur-
densome to execute using the current elec-
toral process.

Notwithstanding the foregoing, it is clear
that the preliminary injunction will place
administrative and financial burdens on the
defendant. Such burdens, however, are
not, in the opinion of the court, undue in
view of the otherwise irreparable harm to
be incurred by plaintiffs.

C. The Public Interest lilould Be Sen'ed
By The Issuance of an Injunction

13. Congress es+.ablished that the public
interest requires thiit t,iection systems that

CONCLUSION
Accordingly, based on all of the above

considerations, the court finds that:

1. Plaintiffs have met their burden of
showing they will suffer irreparable injury
without the requested relief;

2. Granting the preliminary injunction
harms the defendants, but the balance of
harm tips in favor of the plaintiffs;

3. Plaintiffs have met their burden of
showing they will likely succeed on the
merits of this dispute; and

4. The public interest favors issuance of
the preliminary injunction.

For the foregoing reasons, plaintiffs' mo-
tions for preliminary injunction were grant-
ed by order of the court entered July 2,

1984, which order is effective herewith.

SO ORDERED.

Henry J. COPE, Plaintiff,
Y.

M. Peter McPHERSON, Administrator,
Agency for International
Development, Defendant.

Civ. A. No. 83-3064.
I

United Stat€s District Court,
District of Columbia.

July 10, 1984.

Employee of the agency for interna-
tional deveiopnient i'rought suit under the