Whitfield v. Clinton Petition for a Writ of Certiorari

    No. 90-

In Th e

Supreme Court of tfje ®mteti states
October Te r m , 1990

Sam Whitfield, J r ., Linda Whitfield,
P.L. Perkins, J ulious McGruder,

Georgia M. Varner, Annie Sykes,
Ollie Jennings, and Sam Bennett,

Petitioners,
v.

Bill Clinton, Governor of Arkansas,
W.J. M'cCuen, Secretary of State of Arkansas,

The Phillips County Board of Election Commissioners, 
The Democratic Party of Arkansas,

The Democratic State Committee, and 
The P hillips County Democratic Committee,

Respondents.

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

FOR THE EIGHTH CIRCUIT

Olly Neal 
Neal Lawyers 
33 North Poplar Street 
Marianna, Arkansas 72360 
(501) 295-2578

J ulius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn A. Ifill 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900
C. Lani Guinier*
University of Pennsylvania 

Law School 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(215) 898-7032
P amela S. Karlan 
University of Virginia 

School of Law 
Charlottesville, VA 22903 
(804) 924-7810
Attorneys fo r  Petitioners 
* Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Questions Presented

1. Does section 2 of the Voting Rights Act of 1965 

as amended, 42 U.S.C. § 1973, prohibit the use of a runoff 

primary requirement in a county where blacks constitute 47 

percent of the voting-age population but where:

•  black candidates who win the initial primary, are 

always defeated in the runoff primary by the white candidate 

who had originally finished behind them;

•  black citizens were historically disenfranchised 

on account of race or color;

•  blacks continue to suffer disproportionately from 

the legacy of past discrimination; and

•  voting patterns are characterized by extreme 

racial bloc voting?

2. Did the courts below err in creating a per se rule



that section 2 of the Voting Rights Act as amended does not 

protect black voters if black citizens are a bare majority of 

the total population within the relevant jurisdiction, even 

when blacks are not a majority of the population of voting 

age?

3. Are State executive branch officials, who certify 

election results and otherwise administer state election laws, 

proper parties defendant in a challenge to those state laws 

under section 2 of the Voting Rights Act?



Ill

List of Parties

The names of all the parties to the proceedings below

appear in the caption.



Table of Contents

Page

Questions Presented . . . . . . . . . . . . . . . . .  i

List of Parties . . . . . . . . . . . . . . . . . . . . .  iii

Table of Contents . . . . . . . . . . . . . . . . . .  iv

Table of Authorities . . . . . . . . . . . . . . . . .  vi

Opinions Below . . . . . . . . . . . . . . . . . . . . .  l

Jurisdiction of this Court . . . . . . . . . . . . .  2

Statutes Involved . . . . . . . . . . . . . . . . . .  3

Statement of the Case . . . . . . . . . . . . . . .  3

Introduction .......................................  3

Statement o f Facts . . . . . . . . . . . . . . . . .  7

1. The runoff’s interaction with racial
bloc voting in Phillips County . . . . . .  10

2. The runoffs interaction with other 
social and historical conditions in
Phillips County . . . . . . . . . . . . . . .  16

3. The tenuousness o f the policy under­
lying the use o f runoff primaries . . . .  21

Course o f the Proceedings Below . . . . . . . . .  25



V Page

Reasons for Granting the Writ . . . . . . . . .  29

I. This Court Should Grant Certiorari to
Provide the Lower Courts with Guidance 
on How to Treat Section 2 Claims 
Challenging Runoff Requirements . . . .  29

II. The Per Se Rule that Section 2 Does Not 
Protect Black Voters if Blacks Constitute a 
Majority of the Population (But Not a 
Majority of the Voting-Age Population) 
Announced in this Case Squarely Conflicts 
with Decisions of this Court and the
Other Courts of Appeals . . . . . . . . . . .  35

A. This Court Has Rejected the Use
o f Per Se Rules in Section 2 Cases . . .  36

B. The Specific Per Se Rule Created in 
this Case Conflicts with this Court’s 
Decisions in White v. Regester and 
Rogers v. Lodge and with Decisions of
the Fifth and Eleventh Circuits . . . . .  39

III. The Holding Below that the Governor and 
Secretary of State are Not Proper 
Defendants to a Statutory and Constitu­
tional Challenge to a General Election 
Runoff Statute Conflicts with Almost 
Three Decades of this Court’s
Decisions .................. ..  42

Conclusion 49



VI

Table of Authorities

Page
Cases

Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . .  .44-45

Butterworth v. Smith, 110 S.Ct. 1376 (1990) . . . .46-47

Butts v. City o f New York, 779 F.2d 141 (2d Cir.
1985), cert, denied, 478 U.S. 1021 (1986) . . 34

Citizens for a Better Gretna v. City o f Gretna,
834 F.2d 496 (5th Cir. 1987) . . . . . . . . . .  48

City o f Port Arthur v. United States, 459 U.S. 159
(1983) . . . . . . . . . . . .  ...........  . . . . . . .  31

City o f Rome v. United States, 446 U.S. 156
(1980) ........... ..  30-31

Eu v. San Francisco County Democratic Central
Committee, 109 S.Ct. 1013 (1989) . . . . . . .  47

Ex parte Young, 209 U.S. 123 (1908) . . .  46, 47

Fortson v. Dorsey, 379 U.S. 433 (1965) . . . . . . .  45

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex 1972) 
(three-judge court), ajf’d in relevant part and 
rev’d in part on other grounds sub nom White v. 
Regester, 412 U.S. 755 (1973) . . . . . . . . . .  40



Hendrix v. McKinney, 460 F. Supp. 626 (M.D. Ala.
1978) . . . . . . . .  ................. . . . . . . . . . .  48

INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . .  47

Jeffers v. Clinton, No. H-C-89-004 (E.D. Ark.
May 16, 1990) (three-judge court) . . .  5, 22-23, 42

McMillan v. Escambia County, 748 F.2d 1037 (11th
Cir. 1984) ...................  48

Monroe v. City ofWoodville, 819 F.2d 507 (5th Cir.
1987) . . . . . . . .  .................... . . . . . . . . .  41

Perkins v. City of West Helena, 675 F.2d 201
(8th Cir), qffd, 459 U.S. 801 (1982) . . . . .  .7, 21

Perkins v. Matthews, 400 U.S. 379 (1971) . . . . . .  20

Quinn v. Millsap, 109 S.Ct. 2324 (1989) . . . . . .  47

Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . .  45

Rockefeller v. Matthews, 249 Ark. 341, 459
S.W.2d 110 (1970) ......................  22

Rogers v. Lodge, 458 U.S. 613 (1982) . . .  40, 45

Smith v. Allwright, 321 U.S. 649 (1944) . . . . . .  23

Smith v. Clinton, 687 F. Supp. 1310 (E.D. Ark.) 
(three-judge court), aff’d, 109 S.Ct. 531 (1988) . . 8



Page

Thornburg v. Gingles, 478 U.S. 25 (1986) 4, passim

United States v. Board of Commissioners of
Sheffield, Alabama, 435 U.S. 110 (1978) . . .  31

United States v. Dallas County Commission, 850
F.2d 1430 (11th Cir. 1988) . . . . . . . . . . . .  42

Wesberry v. Sanders, 376 U.S. 1 (1964) . . . . . .  45

Whitcomb v. Chavis, 403 U.S. 124 (1971) . . . . .  45

White v. Regester, 412 U.S. 755 (1973) . . 40, 45

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) . . . . . . . . . .  41

Statutes

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . .  6

28 U.S.C. § 1343 ........... ..  6

28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . .  6

28 U.S.C. § 2202 .....................................................  6

Voting Rights Act of 1965 as amended, § 2,
42 U.S.C. § 1973 ........... ..  4, passim

viii



IX Page

Voting Rights Act of 1965 as amended, § 5,
42 U.S.C. § 1973c ........... ..  19, 20, 32

42 U.S.C. § 1973j(f) ........... ..  6

Ark. Stat. Ann. § 7-5-106 . . . . . . . . . . . . . . .  5

Ark. Stat. Ann. § 7-5-203 ........... ..  45

Ark. Stat. Ann. § 7-5-701 . . . . . . . . . . . . . . .  45

Ark. Stat. Ann. § 7-5-704 . .........................   45

Ark. Stat. Ann. § 7-7-202 . . . . . . . . . . . . . . .  5

Other Materials

28 C.F.R. § 51 (appendix) .............. .. ...................... 5

8th Cir. R. 16(a) ...............................................  28

Isikoff, U, S. Sues Georgia Over Voting Law:
Widespread Effect Seen if  Requirement for 
Runoffs is Overturned, Wash. Post, Aug. 10,
1990, at Al, col. 1 .................................... ..  . 4

McDonald, The Majority Vote Requirement: Its 
Use and Abuse in the South, 17 Urb. Law.
429 (1985) ................... ................ ...................... 5



X Page

S. Rep. No. 97-417 (1982) . . . . . . . . . .  4, passim

U.S. Commission on Civil Rights, The Voting
Rights Act: Unfulfilled Goals (1981) . . . . . .  32

Voting Rights Act: Runoff Primaries and Registration 
Barriers: Oversight Hearings Before the 
Subcomm. on Civil and Constitutional Rights of 
the House Comm, on the Judiciary, 98th Cong.
2d Sess. (1984) . . . . . . . . . . . . . . . . . . .  30



No.  90-

IN THE
Supreme Court of the United States 

October Term 1990

Sam Whitfield, Jr ., Linda Whitfield, 
P.L. Perkins, Julious McGruder, 
Georgia M. Varner, Annie Sykes, 
Ollie Jennings, and Sam Bennett,

Petitioners,

v.

Bill Clinton, Governor of Arkansas,
W.J. McCuen, Secretary of State of Arkansas,

The Phillips County Board of Election Commissioners, 
The Democratic Party of Arkansas,

The Democratic State Committee, and 
The Phillips County Democratic Committee,

Respondents.

Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

Opinions Below

The opinion issued by the Court of Appeals sitting en 

banc is reported at 902 F.2d 15, and is contained in the



2

Appendix at page la. The opinion of the Court of Appeals 

panel is reported at 890 F.2d 1423, and is contained in the 

Appendix at page 3a. The memorandum opinion of the 

district court dismissing petitioners’ challenge to the primary 

runoff statute is reported at 686 F. Supp. 1365, and is 

contained in the Appendix at page 58a. The order of the 

district court dismissing petitioners’ challenge to the general 

election runoff statute and dismissing the Governor and 

Secretary of State as party defendants is unreported; it and 

relevant portions of the transcript of the district court’s oral 

ruling are contained in the Appendix at page 132a.

Jurisdiction of this Court

The per curiam opinion of the United States Court of 

Appeals for the Eighth Circuit upon rehearing en banc, 

summarily affirming, by an equally divided court, the 

decision of the United States District Court for the Eastern 

District of Arkansas, was issued on May 4, 1990.



3

On July 26, 1990, Justice Blackmun entered an order 

extending the time for filing a petition for writ of certiorari 

to and including August 31, 1990.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

Statutes Involved

This case involves the following statutes, which are set 

out in the Appendix at page 171a:

•  Section 2 of the Voting Rights Act of 1965 as 

amended, 42 U.S.C. § 1973

•  Ark. Stat. Ann. § 7-5-106

•  Ark. Stat. Ann. § 7-7-102

•  Ark. Stat. Ann. § 7-7-202

Statement of the Case 

Introduction

The Senate Report accompanying the 1982 amendments



4

to section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 

1973—which this Court has described as an "authoritative" 

source for interpreting section 2, Thornburg v. Gingles, 478 

U.S. 25, 43 n. 7 (1986)—expressly recognized that "majority 

vote requirements . . . may enhance the opportunity for 

discrimination against the minority." S. Rep. No. 97-417, 

p. 29 (1982) [hereafter referred to as "Senate Report"]. 

Earlier this month, in announcing that the United States has 

filed suit under section 2 to invalidate Georgia’s primary 

runoff statute, Assistant Attorney General John Dunne, the 

head of the Civil Rights Division of the U.S. Department of 

Justice, described majority-vote requirements as "an electoral 

steroid for white candidates."1

In most states, a candidate wins an election or a party’s 

nomination in a primary when he or she receives more votes 

than any of his or her opponents. Arkansas is one of ten

hsikoff, U.S. Sues Georgia Over Voting Law: Widespread Effect 
Seen i f  Requirement fo r  Runoffs is Overturned, Wash. Post, Aug. 10, 
1990, at A l, col. 1.



5

states, all of them in the South, and all of them with a long 

history of purposeful racial vote dilution, that do not follow 

this general rule.2 Instead, under Arkansas law, a candidate 

must receive a majority of the vote cast in a primary election 

to obtain the nomination of a political party. Ark. Stat. 

Ann. § 7-7-202. If no candidate wins an outright majority 

of the votes cast in the first, or "preferential," primary than 

a second, "general," runoff primary is held between the top 

two vote getters two weeks later. Another statute, Ark. Stat. 

Ann. § 7-5-106, requires that a candidate for municipal or 

county office receive a majority of the vote cast to be 

declared the winner of a general election. Again, if no

"The ten states are Alabama, Arkansas, Florida, Georgia, Louisiana, 
Mississippi, North Carolina, South Carolina, Texas, and Oklahoma. See 
McDonald, The Majority Vote Requirement: Its TJse and Abuse in the 
South, 17 Urb. Law. 429, 429 (1985). All of these states are subject, 
at least in part, to the preclearance requirements of the Voting Rights 
Act, 42 U.S.C. § 1973c, precisely because of their history of voting 
rights discrimination. See 28 C.F.R. § 51 appendix (1987) (listing states 
subject to preclearance requirements); Jeffers v. Clinton, No. H-C-89- 
004 (E.D. Ark. May 16, 1990) (three-judge court) (imposing partial 
preclearance requirement under section 3(c) of the Voting Rights Act on 
the state of Arkansas based on a finding of pervasive intentional 
discrimination in the adoption of general election runoff requirements).



6
candidate receives an outright majority, a runoff election 

between the top two vote getters is conducted two weeks 

after the general election.

This case challenges both of these runoff requirements 

as they operate in Phillips County, Arkansas. Petitioners are 

black registered voters in Phillips County. Their complaint 

alleged that the two runoff requirements interact with social 

and historical conditions to deny them an equal opportunity 

to participate in the political process and to elect the 

candidates of their choice to local and county wide office, in 

violation of section 2 of the Voting Rights Act of 1965 as 

amended, 42 U.S.C. § 1973. It further alleged that the 

runoff requirements had been adopted and maintained for the 

purpose of diluting black voting strength, in violation of 

section 2 and the Fourteenth and Fifteenth Amendments to 

the Constitution.3

3The district court’s jurisdiction was based on28U .S .C . §§1331, 
1343, 2201, and 2202; and 42 U.S.C. § 1973j(f).



7

Statement o f Facts

Phillips County, Arkansas, is a rural, heavily black 

county on the Mississippi River. Although a bare majority 

of the county’s total population is black, undisputed census 

figures show that only 47.00% of the residents of voting age 

are black. App. to Pet. for Cert, at 6a & n. 1.

Despite the large number of black residents, no black 

candidate has received the Democratic or Republican 

nomination for, or been elected to, any county wide office in 

Phillips County since the turn of the century. See App. to 

Pet. for Cert, at 6a; id. at 125a.

Historically, the primary reason for the lack of black 

electoral success was outright disenfranchisement through 

such devices as physical intimidation; discriminatory literacy 

tests; poll taxes; a white primary; and segregated polling 

places. See App. to Pet. for Cert, at 5a; Perkins v. City of 

West Helena, 675 F.2d 201 (8th Cir.), aff’d, 459 U.S. 801



8
(1982);4 Smith v. Clinton, 687 F. Supp. 1310 (E.D. Ark. 

1988) (three-judge court), aff’d 109 S.Ct.541 (1988). Cf. 

App. to Pet. for Cert, at 115a (terming the history of official 

discrimination against black voters a "given").

Today, even when black voters do manage to surmount 

this legacy of discrimination-as well as the tremendous 

barriers that still preclude many of the county’s black 

residents from registering and voting, see infra pages 16 to 

18—they are still unable to nominate and ultimately to elect 

the candidates of their choice because of Arkansas’ primary 

runoff requirement.

In the two most recent election cycles for countywide 

office in Phillips County, four black candidates, competing 

for separate offices, received the highest totals of votes cast 

in the first Democratic primary. Yet all four of those 

plurality winning candidates were subsequently unable to

4The largest concentration of black voters in Phillips County lives 
in West Helena.



9

obtain the Democratic Party nomination because they were 

defeated by white candidates in head-to-head primary runoff 

contests. (There was no Republican opposition in the 

general election for any of these positions.) By contrast, no 

white candidate who has ever led a preferential primary in 

Phillips County has been defeated in a runoff. In all four 

black-white contests in which a black finished first in the 

initial election, the white candidate was able to come from 

behind to win the runoff.5

There are two major reasons why the runoff system 

operates to defeat black candidates: the extreme level of 

racial bloc voting in Phillips County and the interaction of 

the runoff system with the devastating poverty and 

continuing effects of past official discrimination that 

permeate the black community.

5
la  the two black-white contests in which a white candidate won 

the initial election, the white candidate was able to maintain his lead in 
the runoff.



10

1. The runoff’s interaction with racial bloc 
voting in Phillips County

Voting patterns in Phillips County are characterized by 

"extreme" racial polarization. App. to Pet. for Cert, at 

107a; 116a. Petitioners’ expert political scientists as well as 

experienced political observers of the Arkansas Delta—both 

white and black, Republicans and Democrats—testified 

without contradiction to the extraordinary levels of bloc 

voting.

Dr. Richard L. Engstrom, Research Professor of 

Political Science at the University of New Orleans, whose 

work on racial bloc voting has been cited with approval by 

this Court in Gingles, 478 U.S. at 53 n. 20 and 55, 

performed both extreme case analysis and bivariate 

ecological regression analysis on the fifteen county-wide, 

city-wide, and state legislative elections since 1984 in which 

both black and white candidates competed. He concluded 

that in all fifteen elections, voting was racially polarized as



11

that term was defined in Gingles: black candidates were 

supported by an average of over 94 percent of black voters, 

but in no contest did more than 4.9 percent of the white 

voters support a black candidate; in six of eight countywide 

races, virtually no white voters supported the black 

candidate.

The extreme racial bloc voting to which Dr. Engstrom 

testified was demonstrated once again by the results of the 

1988 preferential and runoff primaries. The preferential 

primary took place on the second day of the trial in this 

case. Two black candidates sought the Democratic 

nomination for different countywide offices and received the 

support of over 90 percent of the voters in the virtually 

homogeneous black precincts while receiving less than 6 

percent of the votes from the virtually homogeneous white 

precincts. Sam Whitfield came in first in a four-way race, 

receiving 37.4 percent of the vote, and Linda Whitfield lost 

a challenge to the white incumbent, receiving 42.9 percent



12

of the vote in a head-to-head contest.

In the runoff election two weeks later (in which Sam 

Whitfield, the preferential primary winner, competed and 

lost to the white candidate who had finished second in the 

preferential primary), voting was even more polarized, with 

Sam Whitfield receiving an average of 95.6 percent of the 

votes in the overwhelmingly black wards and an average of 

only 3.1 percent in the overwhelmingly white wards.6

Party officials also testified that voting in Phillips 

County is racially polarized. John Anderson, the chairman 

of the county Democratic Party, testified that race is a 

"more significant" factor in Phillips County politics than it 

used to be and that "both sides will vote for white 

[candidates] because they’re white or a black because they’re 

black regardless of the reputations or ability of either 

candidate." Bankston Waters, the head of the Republican

^The results of the runoff primary were admitted into evidence as 
a supplemental exhibit pursuant to the district court’s order.



13

Party in Phillips County, also stated that voting in Phillips 

County split along racial lines. The same conclusion-that 

voting in Phillips County was extremely racially 

polarized—was reached by every lay witness who addressed 

the question. Not a single witness testified to any white 

crossover voting in a single election contest in Phillips 

County.

Racial bloc voting interacts with the runoff requirement 

to deprive black voters in Phillips County of the opportunity 

to nominate and elect their preferred candidates in this 

fashion. The electorate in the county is primarily white. 

See App. to Pet. for Cert, at 6a, 22a, 105a. Thus, a black 

candidate can finish first only when the white community 

splits its support among two or more (invariably white) 

candidates. A black candidate has never received a majority 

of the votes cast in a primary election; at best, he or she has 

finished first by a plurality. The majority-vote requirement 

necessarily forces a black plurality winner into a head-to-



14

head contest against one white opponent. In such a contest, 

pervasive racial bloc voting has guaranteed that the white 

candidate will win.

For white voters, the majority-vote requirement lets 

them, in effect, have a separate white primary in the 

preference race among themselves, with the most popular 

white candidate being able to attract the support of all white 

voters in the black-white runoff. As U.S. Assistant 

Attorney General Dunne noted, the runoff serves as an 

"electoral steroid" for the remaining white candidate, by 

giving him or her an additional, artificially contrived, boost 

to win the nomination.

In any event, the majority-vote requirement has not in 

fact resulted in the winning candidate being the choice of a 

majority of those voting in Phillips County. Turnout in 

every runoff primary in Phillips County was lower than 

turnout in the preferential primary. In three of the four 

runoff primaries in which black candidates were overtaken



15

by whites who had finished behind them, the winner’s total 

votes, although a majority of the votes cast in the runoff, 

did not represent a majority of the total votes cast in the 

preferential primary. (The winning total in the runoff was 

46 percent of the number of votes cast in the preferential 

primary for county judge; the winning total in the runoff 

was 46 percent of the number of votes cast in the 

preferential primary for circuit clerk; and the winning total 

in the runoff was 42 percent of the number of votes cast in 

the preferential primary for coroner See, e.g., Trial 

Transcript at 556-60, 563-64, 589). In fact, in one of the 

four runoffs, the decline in turnout was so steep that the 

white runoff "victor" actually received fewer total votes in 

the runoff than the black plurality winner had received in 

the preferential primary! Id.



16

2. The runoff’s interaction with other 
social and historical conditions in 
Phillips County

Several features of the runoff system as it 

interacts with social and political factors in Phillips County 

exacerbate its discriminatory impact. Phillips County’s 

black residents suffer from "devastating" poverty. App. to 

Pet. for Cert, at 119a. With respect to education and 

income~the socioeconomic indicators most closely correlated 

with political participation-blacks in Phillips County lag far 

behind whites.7 Petitioners’ expert, Dr. Richard L. 

Engstrom, testified that he had never analyzed data for an 

area in which the black community was as disadvantaged, in 

both absolute and relative terms, as it is in Phillips County.

The median years of school completed by white adults in Phillips 
County is 12.2, compared to 8.4 for blacks, and 58.3 percent of white 
adults are high school graduates, whereas only 22.9 percent of black 
adults are high school graduates. Per capita black income in Phillips 
County is only $2336, and the median family income in Phillips County 
for black families in Phillips County ($6437) is only 39 percent of the 
median family income for white families in the county ($16,440). A 
majority of black families in Phillips County (53.6 percent) have incomes 
below the federally defined poverty level, and over four times as many 
black families as white families live below the poverty line.



17

Access to motor vehicles and telephones is a 

particularly important socioeconomic indicator for political 

participation because these politically relevant private 

resources are critical to effective voter mobilization, 

including seeking information about registration 

requirements and getting out the vote on election day. The 

district court recognized that "not having a telephone or an 

automobile makes it more difficult and less convenient for a 

citizen to qualify for, and to exercise, his or her voting 

rights." App. to Pet. for Cert, at 123a. The black 

community has far less access to these critical resources than 

does the white community. While only 9.0 percent of white 

households have no vehicle available, and only 10.9 percent 

have no telephone, 42.0 percent of black households have no 

vehicle and 30.5 percent have no telephone.

Many poor and less educated black citizens in Phillips 

County were unaware of their political rights; they still 

believed that they must pay a poll tax to be entitled to vote.



18

Others, who are economically dependent on the white 

community, are intimidated from full participation. Some 

lack transportation to get to polling places, which are often 

located long distances from black neighborhoods. Still 

others, worn down by generations of racism and oppression, 

have a sense of futility about the efficacy of the political 

process. Cf. App. to Pet. for Cert, at 123a (recognizing 

that "lack of education" and feelings of "estrangement, 

frustration, [and] futility" are "likely bases" for 

nonparticipation in politics).

These socioeconomic factors interacted in five separate 

ways with the runoff requirement to further decrease the 

political efficacy of Phillips County’s black citizens. First, 

the short period of time between the preferential election and 

the runoff crippled fundraising in the economically 

disadvantaged black community. Second, the short time 

period made it difficult for black candidates to educate their 

often politically unsophisticated supporters about the need to



19

return to the polls despite the black candidate’s apparent 

victory.8 Third, because fewer black candidates are 

competing in the runoff election (since the results for many 

offices were already determined by the preferential primary) 

there were fewer get-out-the-vote activities in the black 

community and the financial burdens on the remaining black 

candidates were greater. Fourth, the fact that polling places 

in the black community were changed, without advance 

notice, on the eve of the election and between preferential 

and runoff elections,9 depressed black participation since 

many black voters were confused or discouraged from

8Linda Whitfield testified that she received numerous congratulatory 
calls after her first place showing in the May 1986 primary, from people 
who did not understand that she had not yet won the nomination. Many 
blacks, even after being told that they had to return to the polls a second 
time, refused, saying "Well, the white folks are just going to take it 
away from you."

9
One witness testified without contradiction that in Ward 1, West 

Helena, a 98 percent black precinct with the highest concentration of 
blacks in Phillips County, polling places were changed five times in ten 
election contests over a two year period.



20

participating.10 Indeed, it is uncontested that in every runoff 

election black participation declined from its rate in the 

corresponding preferential election. Fifth, runoffs further 

polarized an already divided community.11 In sum, the use 

of runoff elections in Phillips County exacerbates the 

numerical and socioeconomic disadvantages of the black 

community, while enhancing the likelihood that racial bloc 

voting will result in the defeat of the candidate preferred by 

the black community.

By contrast to the virtually certain defeat of their 

preferred candidates in runoff systems, black voters within

10Iii jurisdictions covered by section 5 of the Voting Rights Act (at 
the time of the trial in this case Arkansas was not yet subject to section 
5), changes in polling places must be approved in advance by either the 
Attorney General of the United States or the United States District Court 
for the District of Columbia, precisely because such changes pose the 
potential for intentional discrimination against minority voters or for a 
discriminatory impact on minority political participation. See Perkins v. 
Matthews, 400 U.S. 379 (1971).

UFor example, using extreme case analysis, white crossover votes 
for black candidate Sam Whitfield decreased between the 1988 
preferential primary and the 1988 runoff. Moreover, in 1986, a few 
store owners who initially accepted Linda Whitfield posters along with 
those of white candidates in the first primary refused her literature but 
not that of the white candidate in the runoff.



21

Phillips County have been able to elect their preferred 

candidates to local office under plurality-win systems. See 

Perkins v. City of West Helena, 675 F.2d 201, 203 (8th 

Cir.), affd,  459 U.S. 801 (1982). Thus, the presence of a 

runoff has a direct causal relationship to the inability of 

black voters in Phillips County to elect the candidates of 

their choice.

3. The tenuousness o f the policy 
underlying the use o f runoff 
primaries

The sole justification for the use of runoffs articulated 

by respondents was that it fosters the election of candidates 

who represent the views of a majority of the population. As 

we have already seen, however, the use of runoffs in 

Phillips County does not have that effect. See supra pages 

14 to 15. In addition, however, the very structure of 

Arkansas’ election laws shows that this is not in fact a 

consistent state purpose. Under the Arkansas Constitution,



22
the State s six "constitutional" offices—Governor, Secretary 

of State, Treasurer, Attorney General, Auditor, and 

Commissioner of Lands-may all be elected by a simple 

plurality. Indeed, in Rockefeller v. Matthews, 249 Ark. 

341, 459 S.W.2d 110 (1970), the Arkansas Supreme Court 

struck down as unconstitutional an attempt to extend the 

majority-vote requirement to the general election for these 

positions. Similarly, state senators and representatives may 

be elected by a plurality, rather than a majority. Thus, 

neither the State Constitution nor any state statute applies a 

majority-vote requirement to these critical state positions.12

^ O t until 1975 did the state impose a majority-vote requirement in 
any local general elections; not until 1983 did it create a statewide 
majority-vote requirement for most county or local general elections; not 
until 1990 did it extend that requirement to municipal offices in all cities 
and towns. In all three cases, the imposition of the requirement was 
racially motivated: it followed directly on the heels of a black candidate’s 
having achieved a plurality victory. See Jeffers v. Clinton, No. H-C- 
89-004 (E.D. Ark. May 16, 1990), slip op. at 24:

"We cannot ignore the pattern formed by these enactments. 
Devotion to majority rule for local offices lay dormant as long 
as the plurality system produced white office-holders. But 
whenever black candidates used this system successfully-and 
victory by a plurality has been virtually their only chance at 
success in at-large elections in majority-white cities—the



23

The state never explained why its purported interest in 

majority rule is served by requiring a majority vote for 

nomination by a primary while permitting election by a 

plurality.* 13

Nor, despite the district court’s suggestion, does the 

runoff requirement enhance coalition-building within political 

parties. See App. to Pet. for Cert, at 73a, n.l; see also 

103a. There was no evidence in the record to suggest that

response was swift and certain. Laws were passed in an 
attempt to close off this avenue of black political victory.
This series of laws represents a systematic and deliberate 
attempt to reduce black political opportunity. Such an attempt 
is plainly unconstitutional. It replaces a system in which 
blacks could and did succeed, with one in which they almost 
certainly cannot. The inference of racial motivation is 
inescapable."

13The district court observed that ”[i]n the hierarchy of the 
fundamental values of a democratic states, the manner in which political 
parties choose to identify their nominees for public office positions is not 
as important as the procedures used to control the actual election of such 
public officers." App. to Pet. for Cert, at 71a n. 1. With respect to the 
fundamental value of racial fairness contained in the Constitution and the 
Voting Rights Act, the district court was wrong: racial discrimination is 
forbidden in the nomination process as well as the general election itself. 
See, e.g., Smith v. Allwright, 321 U.S. 649 (1944) (white primary 
violates Fifteenth Amendment); Voting Rights Act, § 2(b) (violation of 
section 2 is established when the processes leading to "nomination or 
election" are not equally open) (emphasis added).



24

the desire to promote coalition-building was in fact a state 

policy; indeed, the respondents never mentioned such a 

goal. Nor, using the district court’s own analysis, could 

enhancing biracial appeals have been a purpose in enacting 

a primary runoff requirement, since the requirement was 

adopted at a time when blacks were completely excluded 

from the Democratic Party, App. to Pet. for Cert, at 70a. 

To the contrary, the evidence showed that runoff 

requirements have been adopted in Arkansas because they 

enable the white community to exclude blacks from the 

coalition-building process. See supra note 12. Finally, the 

evidence is unrebutted in this case that because whites 

absolutely refuse to support black candidates in Phillips 

County, the majority-vote requirement does just the 

reverse-it promotes coalition building within the white 

community only. In the first primary, white voters can 

select the most popular white candidate to then coalesce 

behind in the runoff to defeat the black candidate. Election



25

returns from Phillips County showed that polarization was 

often more extreme in the runoff than it was in the initial 

election.

Course of the Proceedings Below

Petitioners’ complaint challenged both Arkansas runoff 

statutes, claiming that they violated, the results test of 

amended section 2 as well as the intent tests of both 

amended section 2 and the Fourteenth and Fifteenth 

Amendments.14 After a three-day trial, in which the state 

attorney general represented the respondent Democratic 

Party organizations despite the fact that every state official 

defendant had been dismissed from the lawsuit, the district

14On the eve of trial, the district court dismissed petitioners’ 
challenge to the general election runoff on the ground that the governor 
and secretary of state were not proper and adequate defendants in such 
a lawsuit; instead, the district court held, petitioners were required to 
have sued the local election officials actually responsible for conducting 
elections and counting the ballots. See App. to Pet. for Cert, at 141a; 
id. at 155a. In addition, it dismissed petitioners’ suit because no black 
candidate had in fact lost a general election in a runoff. Id. at 164a- 
167a.



26

court dismissed petitioners’ challenge to the primary runoff 

statute. It concluded, first, that because blacks were a 

majority of the total population (although not of the 

electorate), they were barred as a matter of law from 

bringing a section 2 claim. App. to Pet. for Cert, at 107a- 

108a. Second, although the district court recognized that the 

Senate Report had expressly singled out the majority-vote 

requirement as a discrimination-enhancing device, it declined 

to give any weight to that conclusion. See App. to Pet. for 

Cert, at 118a. Indeed, it described the Senate Report 

factors, upon which this Court placed great weight in 

(Singles as "more [of] a distraction than a useful tool for 

evaluating the cause and effect operation of the challenged 

runoff laws." App. to Pet. for Cert, at 130a. It held, 

essentially, that majority-vote requirements were so central 

to democratic principles that they were immune from attack 

as racially discriminatory devices.

A divided panel of the Eighth Circuit reversed. It



27

found that the undisputed evidence showed that black voters 

were in fact a minority of the Phillips County electorate 

(and the district court’s finding to the contrary was 

unsupported by any record evidence) and held that, in any 

event, section 2’s protection was not limited to numerical 

minorities. See App. to Pet. for Cert, at 20a-22a. It 

further held that the district court had committed critical 

legal error in refusing to apply the analysis set out on pages 

28-29 of the Senate Report and approved by this Court in 

Gingles, App. to Pet. for Cert, at 26a-27a. It noted the 

uncontested evidence regarding the presence of critical 

Senate Report factors—such as a history of discrimination; 

extreme bloc voting; "devastating" socioeconomic 

deprivation; the "dominati[on] over qualifications and 

issues" of candidates’ racial identity; and the complete lack 

of black electoral success, App. to Pet. for Cert, at 28a- 

29a—and concluded that "based on the proof set forth by 

Whitfield and the totality of the circumstances in Phillips



28
County, a section 2 violation has been established under the 

results test." App. to Pet. for Cert, at 37a.15

The Eighth Circuit granted respondents’ motion for 

rehearing en banc. After reargument, the court of appeals 

affirmed the district court by an equally divided vote.16

15It affirmed the district court’s dismissal of the challenge to the 
general election on the ground that petitioners had failed to show that a 
black candidate had been defeated in a general election runoff in Phillips 
County. App. to Pet. for Cert, at 37a n. 4.

16Five of the nine active judges on the Eighth Circuit—Chief Judge 
Lay and Judges McMillian, John R. Gibson, Fagg, and Beam—would 
have reversed the district court. App. to Pet. for Cert, at 2a. The tie 
was the result of the fact that Senior Circuit Judge Bright was permitted 
to sit because he had sat on the original panel. See 8th Cir. R. 16(a).



29

REASONS FOR GRANTING THE WRIT

I. This Court Should Grant Certiorari 
to Provide the Lower Courts with 
Guidance on How to Treat Section 
2 Claims Challenging Runoff 
Requirements

In Gingles, this Court did not address the question of 

how the lower courts should assess section 2 claims 

involving challenges to runoff election requirements. See 

478 U.S. at 46 n. 12. The deadlock in the en banc Court 

of Appeals in this case, in which five circuit judges voted to 

affirm a district court that rejected completely the 

applicability of the Senate Report factors and this Court’s 

opinions, shows how necessary further guidance from this 

Court is to the proper functioning of the Voting Rights Act.

All three branches of the government have repeatedly 

recognized the discriminatory impact of runoff requirements 

in jurisdictions where blacks are a minority of the electorate 

and racial bloc voting exists. The Senate Report



30

accompanying the 1982 amendment of section 2, which this 

Court has termed an "authoritative" source of congressional 

intent, Gingles, 478 U.S. at 43 n. 7, explicitly identifies 

majority vote requirements as a practice that can "enhance 

the opportunity for discrimination against the minority 

group." Senate Report at 29. See also Voting Rights Act: 

Runoff Primaries and Registration Barriers: Oversight 

Hearings Before the Subcomm. on Civil and Constitutional 

Rights o f the House Comm, on the Judiciary, 98th Cong 2d 

Sess. (1984) (collecting data and testimony regarding the 

discriminatory impact of runoff primaries).

This Court has also repeatedly found that runoff 

requirements improperly minimize black voting strength. In 

City o f Rome v. United States, 446 U.S. 156 (1980), for 

example, this Court held that a change from a plurality-win 

system to a runoff system would have a discriminatory 

effect on black voters in Rome, Georgia:

[Ujnder the pre-existing plurality-win system, a



31

Negro candidate would have a fair opportunity to 
be elected by a plurality of the vote if white 
citizens split their votes among several white 
candidates . . . .  The 1966 change to the majority 
vote/runoff election scheme significantly decreased 
the opportunity for such a Negro candidate since, 
even if he gained a plurality of votes in the general 
election, [he] would still have to face the runner- 
up white candidate in a head-to-head runoff election 
in which, given bloc voting by race and a white 
majority, [he] would be at a severe disadvantage.

Id. at 183-84 (bracketed materials in this Court’s opinion;

internal quotation marks omitted); see also, e.g, , Gingles,

478 U.S. at 39 (discussing three-judge court’s finding that

North Carolina’s majority-vote requirement posed "a

continuing practical impediment to the opportunity of black

voting minorities to elect candidates of their choice"); City

o f Port Arthur v. United States, 459 U.S. 159, 167 (1983)

(striking down runoff requirement for municipal elections

under § 5 of the Voting Rights Act).

Finally, the Attorney General, whose interpretations of

the Act have been accorded "great deference" by this Court,

United States v. Board of Commissioners of Sheffield,



32

Alabama, 435 U.S. 110, 131 (1978), has also repeatedly

found that runoff requirements impermissibly diminish back

voting strength. Indeed, during the period 1975-1980, the

Attorney General objected, under section 5 of the Voting

Rights Act, 42 U.S.C. § 1973c, to the adoption of sixty-six

separate majority-vote requirements. Only annexations and

at-large elections occasioned more objections. U.S.

Commission on Civil Rights, The Voting Rights Act:

Unfulfilled Goals 187 (table 6.4) (1981) (compiling data

regarding section 5 objections). And earlier this month, the

United States filed suit against the state of Georgia, seeking

the invalidation of its primary runoff statute under section 2.

The court below squarely rejected the position taken by

this Court, Congress, and the Attorney General:

It is interesting to note that the U.S. Supreme 
Court apparently has suggested that "majority" 
voting is a procedure that "may enhance the 
opportunity for discrimination." That is far from 
clear to the Court based on the evidence and 
authorities it has reviewed.



33

App. to Pet. for Cert, at 118a. In place of the intensely 

local, fact-specific appraisal required by Congress and this 

Court, it announced two novel and unsupportable legal 

principles. First, it rejected the applicability of the Senate 

Report factors to section 2 results claims. See, e.g. , App. 

to Pet. for Cert, at 130a ("the positive findings with respect 

to the Senate Report factors have no tendency to prove" a 

section 2 violation; instead, they serve as "a distraction"); 

id. at 111a (the Senate Report factors "more logically 

support proof relating to ’intent’ issues that ’cause and 

effects’ issues"). Second, it held that runoff requirements 

(which this Court has found racially discriminatory) are so 

fundamental a part of the American democratic system that 

they are simply immune from attack. Id. at 81a-82a.

This Court’s opinion in Gingles provided lower courts 

with guidance on how to assess claims of vote dilution 

through submergence in multimember districts. See Gingles, 

478 U.S. at 48-51 (setting out how the Senate Report factors



34

should be applied to claims that multimember districts 

violate section 2). However, it is clear from Whitfield and 

from the Second Circuit’s opinion in Bum  v. City o f New 

York, 779 F„2d 141, 148-49 (2d Cir. 1985) (also holding 

that runoff requirements are not subject to challenge under 

section 2), cert, denied, 478 U.S. 1021 (1986), that lower 

courts faced with challenges to runoffs are refusing to apply 

the "intensely local appraisal of the design and impact of the 

contested electoral mechanism" based "upon a searching 

practical evaluation of the past and present reality" of 

politics within the relevant jurisdiction that this Court and 

Congress have mandated, Gingles, 478 U.S. at 79 (internal 

quotation remarks omitted); Senate Report at 30. This Court 

should grant certiorari to clarify the standards for assessing 

these increasingly common section 2 claims.



35

II. The Per Se Rule that Section 2 Does Not 
Protect Black Voters if Blacks Constitute 
a Majority of the Population (But Not a 
Majority of the Voting Age Population) 
Announced in this Case Squarely 
Conflicts with Decisions of this Court and 
the Other Courts of Appeals

According to the most recent available, uncontested, 

census data, blacks form a bare majority of Phillips County’s 

total population. (They are, however, a distinct minority of 

the population of voting age.)17 The court below held that, 

"as a matter of law, the undisputed population figures here 

are not such as will permit the plaintiffs to challenge the 

primary runoff law of the state of Arkansas as a violation of 

section 2 of the 1965 Voting Rights Act, as amended," App. 

to Pet. for Cert, at 106a-107a, since blacks were not a 

"minority," within the meaning of the statute.

1?The district court’s suppositions to the contrary were clearly 
erroneous, as the stipulated figures from the Census Bureau show that 
blacks constitute 52.94 percent of the total population and 47.00 percent 
of the population of voting age. See App. to Pet. for Cert, at 6a. The 
stipulated figures also showed that the number of blacks in the county 
has been steadily declining over the past three decades. Finally, it was 
uncontested that blacks are a minority of registered voters.



36

That conclusion represents a complete misreading of 

section 2. The text of section 2 never uses the word 

"minority." By its terms, section 2 prohibits discrimination 

against "any citizen of the United States" on the basis of 

race or color, section 2(a) (emphasis added), and condemns 

electoral arrangements not equally open to participation by 

"members of a class of citizens protected by subsection (a)," 

section 2(b), without placing any strictures on the relative 

size of that class.

This rule conflicts with the decisions of this Court in 

two separate ways.

A. This Court Has Rejected the Use of 
Per Se Rules in Section 2 Cases

In Gingles, this Court held that in a section 2 lawsuit,

the trial court is to consider the "totality of the 
circumstances" and to determine, based "upon a 
searching practical evaluation of the ’past and 
present reality,”' S. Rep. 30 (footnote omitted), 
whether the political process is equally open to 
minority voters. "’This determination is peculiarly 
dependent upon the facts of each case,’" Rogers [v. 
Lodge, 458 U.S.] at 621, quoting Nevitt v. Sides,



37

571 F.2d 209, 224 (CA5 1978), and requires "an 
intensely local appraisal of the design and impact" 
of the contested electoral mechanisms. 458 U.S., 
at 622.

478 U.S. at 79. "The essence-of a § 2 claim," then, is "that 

a certain electoral law, practice, or structure interacts with 

social and historical conditions to cause an inequality in the 

opportunities enjoyed by black and white voters to elect their 

preferred representatives." Id. at 47.

This Court’s interpretation in Gingles, as well as the 

actual outcome (which affirmed the finding of liability in 

four legislative districts and reversed the finding of liability 

in a fifth), thus clearly require jurisdiction-specific 

consideration of challenged electoral mechanisms, rather than 

the development of per se rules regarding the legitimacy of 

various practices.

Despite this clear directive, the court in this case 

announced a per se rule: "as a matter of law," regardless of 

social and historical conditions within Phillips County,



38

petitioners were barred from bringing a section 2 challenge 

to Arkansas5 runoff requirements. App. to Pet. for Cert, at 

106a-107a. Rather than discussing political reality in

Phillips County, Arkansas, in 1988 or at any other time, the 

court’s discussion focused on conditions in France, id. at 

81a; Chile at the time of Allende’s election in the 1970’s, 

id. at 81a-82a; New York City during the 1970’s, id. at 74a- 

78a; Virginia and Chicago, id. at 94a; and gubernatorial 

politics generally in the South between 1932 and 1977, id. 

at 99a and 102a. It relied on the experience with runoffs in 

these situations to hold that runoff provisions cannot be 

attacked under section 2. Such an approach clearly conflicts 

with the approach taken by this Court in Gingles. This 

Court should grant certiorari to make clear that the Voting 

Rights Act does not permit the erection of per se barriers to

section 2 claims.



39

B; The Specific Per Se Rule Created in 
this Case Conflicts with this Court’s 
Decisions in White v. Regester and 
Rogers v. Lodge and with Decisions 
of the Fifth and Eleventh Circuits

In this case, the court held that petitioners were barred 

as a matter of law from bringing a section 2 lawsuit because 

they were not a numerical minority in Phillips County. (In 

fact, blacks are a numerical minority of the voting-age 

population.) No other court has ever held that black voters 

are barred as a matter of law from bringing a section 2 

lawsuit because black residents outnumber white residents of 

the relevant jurisdiction. To the contrary, both this Court 

and the Fifth and Eleventh Circuits have recognized that 

electoral arrangements can illegally diminish the voting 

strength of black voters even when they are a majority of 

the electorate.

Two of this Court’s leading voting rights cases, White 

v. Regester, 412 U.S. 755 (1973), and Rogers v. Lodge, 458



40

U.S. 613 (1982), have reached precisely the opposite

conclusion. Rogers involved a challenge to at-large

elections in Burke County, Georgia, which was 53.6 percent

black. Id. at 614. Despite this numerical superiority, the

Court concluded that the system denied black voters an

ability to elect their preferred candidates. And in White,

roughly half the population of Bexar County, Texas, was

Mexican-American. The White district court squarely

rejected the idea that only numerical minorities are

protected: Such a position

misconceives the meaning of the word "minority".
In the context of the Constitution’s guarantee of 
equal protection, "minority" does not have a merely 
numerical denotation; rather it refers to an 
identifiable and specially disadvantaged group.

Graves v. Barnes, 343 F. Supp. 704, 730 (W.D. Tex. 1972)

(three-judge court), aff’d in relevant part and rev’d in part

on other grounds sub nom. White v. Regester, 412 U.S. 755

(1973); see also 412 U.S. at 767 (district court properly



41

treated plaintiffs as a minority).18

Moreover, the decision in this case squarely conflicts 

with recent holdings of the Fifth and Eleventh Circuits. In 

Monroe v. City ofWoodville, 819 F.2d 507 (5th Cir. 1987), 

the Fifth Circuit held that the fact that blacks constitute a 

majority of a jurisdiction’s population cannot as a matter of 

law preclude a section 2 lawsuit. Monroe involved a 

challenge to at-large elections in a city whose total 

population was 60.5 percent black. Id. at 508. The Fifth 

Circuit held that plaintiffs must be given the opportunity to 

prove that, despite this numerical predominance, they did not 

enjoy the equal opportunity to elect the candidates of their 

choice. Id. at 511. Similarly, the Eleventh Circuit found a

18White was one of two cases on which the Senate relied in 
articulating the section 2 "results test." The other was 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). See Senate Report at 23, 27-28. Zimmer, 
like White v. Regester involved a predominantly minority jurisdiction. 
East Carroll Parish, Louisiana, was roughly 59 percent black in total 
population, 485 F.2d at 1301. Nonetheless, there too the court found 
racial vote dilution.



42

section 2 violation in Dallas County, Alabama, which was 

55 percent black in total population and 49 percent black in 

voting-age population. United. States v. Dallas County 

Commission, 850 F.2d 1430, 1434 (11th Cir. 1988).

In sum, a clear conflict exists between the numerical 

threshold rule applied in this case and the approaches taken 

by this Court and the Fifth and Eleventh Circuits.

in. The Holding Below that the 
Governor and Secretary of 
S t a t e  a r e  n o t  P r o p e r  
Defendants to a Statutory and 
Constitutional Challenge to a 
General  Election  Ru n o ff  
Statute Conflicts with Almost 
Three Decades of this Court’s 
Decisions

Petitioners’ statutory and constitutional challenges to 

Arkansas’ "systematic and deliberate attempt to reduce black 

political opportunity" through the enactment of a series of 

general election runoff statutes, Jeffers v. Clinton, No. H- 

C-89-004 (E.D. Ark. May 16, 1990) (three-judge court),



43

slip op. at 24,19 was dismissed, prior to trial because the 

district court held that a challenge to a statewide election 

statute cannot be maintained against the Governor and 

Secretary of State as the only defendants. First, it held that 

plaintiffs wishing to bring such a challenge must also name 

the local officials physically responsible for running the 

elections:

You’ve got to serve the people, it seems to me, 
who are charged with the duty of conducting the 
election or to effectuate the statute you are 
challenging. The Governor as such and the 
Secretary of State as such are not those people.

App. to Pet. for Cert, at 141a-142a. Second, it held that,

because the duties performed by the Governor and Secretary

are purely ministerial and compelled by statute, the

Governor and Secretary are improper parties in any event:

[N]o claim of wrongdoing has appropriately been 
asserted against those defendants . . . .  [I] f the 
Court were to require that the defendant political 
county committees certify certain candidates, "the

The opinion in Jeffers was issued only a fortnight after the en banc 
decision in this case.



44

separate defendants Clinton and McCuen cannot 
exercise their legal function in any way other than 
to issue commissions and certify candidates and 
results certified by local authorities."

App. to Pet. for Cert, at 155a. These holdings directly

conflict with the longstanding precedents of this Court.

This Court has consistently treated governors and

secretaries of state as proper and adequate defendants in

voting rights cases, despite the fact that these officials

neither physically conduct actual elections nor have any

discretion under the state statutory schemes.

In the seminal case of Baker v. Carr, 369 U.S. 186

(1962), the lead defendant, Joe C. Carr, was the Tennessee

Secretary of State. The duties that made him a proper

defendant—furnishing envelopes and forms to county election

commissions; maintaining election returns sent to him by the

county commissions; and, along with the governor, declaring

election results, id. at 205 n. 25-are identical to the duties

performed by Secretary McCuen in this case. See Ark. Stat.



45

Ann. §§ 7-5-203 (secretary certifies lists of candidates to 

county commissions), 7-5-701(d) (secretary maintains 

election records); 7-5-704(a) (secretary informs governor of 

identity of winning candidates).

In case after case since Baker v. Carr, this Court has 

treated governors and secretaries of state as proper and 

adequate defendants in vote-dilution litigation. See, e.g., 

Wesberry v. Sanders, 376 U.S. 1 (1964) (governor and 

secretary of state were only defendants); Reynolds v. Sims, 

377 U.S. 533 (1964) (secretary of state); Fortson v, Dorsey, 

379 U.S. 433 (1965) (secretary of state as only defendant); 

Whitcomb v. Chavis, 403 U.S. 124 (1971) (governor as only 

defendant); White v. Regester, 422 U.S. 935 (1975) 

(governor). Cf. Rogers v. Lodge, 458 U.S. 613 (1982) 

(county commissioners elected under at-large system being 

challenged were proper defendants although they had nothing 

to do with enactment or maintainance of system or with 

actual running of elections); Thornburg v. Gingles, 478 U.S.



46

30 (attorney general as defendant in section 2 case). No 

court has ever required the actual local officials who conduct 

elections also to be named.

Furthermore, in none of the cases cited in the previous 

paragraph was there any allegation that the relevant state 

official had himself willfully violated federal law. In each 

case, the named defendants performed solely ministerial 

duties.

Since Ex parte Young, 209 U.S. 123 (1908), it has been 

clearly established that plaintiffs may maintain federal 

lawsuits against state officials that allege that those officials’ 

performance of ministerial duties denies the plaintiffs some 

federal right. The fact that state law requires the officials to 

act as they have has never before been used to immunize 

them from a suit requiring injunctive relief. Every Term, 

this Court decides cases involving claims for declaratory and 

injunctive relief against state officials performing their duties 

in accordance with state law. See, e.g. , Butterworth v.



47

Smith, 110 S.Ct. 1376 (1990) (state attorney general as 

defendant in lawsuit challenging enforcement of state grand 

jury secrecy statute); Quinn v. Millsap, 109 S.Ct. 2324 

(1989) (mayor and governor as defendants in lawsuit 

challenging property ownership as qualification for 

appointment to local board); Eu v. San Francisco County 

Democratic Central Committee, 109 S.Ct. 1013 (1989) (state 

secretary of state as defendant in lawsuit challenging statute 

regulating political parties). In fact, this Court has viewed 

officials performing ministerial functions as appropriate 

defendants even in cases where the official in fact agrees 

with the plaintiff’s claim but is constrained by statute. See, 

e.g., INS v. Chadha, 462 U.S. 919 (1983).

In sum, the lower court’s position in this case would 

require the complete abandonment of the entire structure of 

federal judicial review that has been erected since Ex parte 

Young. This Court should grant certiorari to make clear that 

plaintiffs may seek injunctions against state officials whose



48

ministerial acts violate federal law.20

20The alternative ground for dismissal-that petitioners lacked 
standing to challenge the general election runoff statute because they had 
not lost an election, as candidates, due to the operation of the general 
election runoff, see App. to Pet. for Cert, at 155a~also squarely conflicts 
with congressional intent, Gingles and decisions of other circuits.

This Court has squarely held that section 2 liability (and therefore 
a fortiori standing) can be established even in cases where no minority- 
preferred candidate has yet been defeated by the operation of the 
challenged practice. "Where a minority group has never been able to 
sponsor a candidate, courts must rely on other factors that tend to prove 
unequal access to the electoral process." Gingles, 478 U.S. at 57 n. 25. 
Thus holding is critical to the operation of the Voting Rights Act, since 
one of the major consequences of discriminatory practices is that they 
deter the minority community from sponsoring candidates in the first 
place. See, e.g., McMillan v. Escambia County, 748 F.2d 1037, 1045 
(11th Cir. 1984); Citizens fo r  a Better Gretna v. City o f Gretna, 834 
F -2d 496 (5th Cir. 1987); Hendrix v. McKinney, 460 F. Supp. 626, 631- 
32 (M.D. Ala. 1978) (Frank Johnson, J.).



49

C o n c l u sio n

For the reasons stated above, this Court should grant 

the petition for a writ of certiorari to the United States Court 

of Appeals for the Eighth Circuit.

Respectfully submitted,

Pamela S. Karlan 
University of Virginia 
School of Law 
Charlottesville, VA 22903 
(804) 924-7810

Oily Neal 
Neal Lawyers 
33 North Poplar Street 
Marianna, AR 72360 
(501) 295-2578

Julius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn A. Ifill 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

*C. Lani Guinier 
University of Pennsylvania 
Law School 
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7032

Counsel for Petitioners

*Counsel of Record

August 27, 1990