Johnson v. Halifax County Court Opinion
Public Court Documents
July 10, 1984

Cite this item
-
Case Files, Thornburg v. Gingles Working Files - Schnapper. Johnson v. Halifax County Court Opinion, 1984. e932edd6-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d3fa2977-61df-4ab3-b474-cfb88b79f773/johnson-v-halifax-county-court-opinion. Accessed April 29, 2025.
Copied!
\ 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