Correspondence from Turner to Guinier; Order

    sri".J

)

)

)

)

)

)

)

)

l

ti

MEMORANDI'M, OF DECISION

Thie cauae, flled on Junc 27, 1983; by elthE black

plaintlf f g, reeidentg and qualif ied elect,ors of Bollvar

County, Misslselppi, hae been heretofore certlfled as a

Rule 23 (b) (2) Fed . R. Civ. P. clags act,lon on behal f of

a plaintiff clase coopoaed of all Preeent and future black

residents, cltlzens and qualifled electors of Ehe five

eupervlsorE' diBtrlcte of the county. The defendanEs are

Bollvar County, lhe County Board of Supervisors and lte
meobere, County Election Commlesion and ite members, Councy

Democratlc and Republ.lcan Executive Comnlttees, and the

. f iL-', J{-J-4( n..> V, $Lo,

EARL LUCAS, IRA U. GRAY, ORA MARTIN
BUTLER, ARTHUR HoIJ{ES , JR. , B. L.
BELL, JR., RUTII C. TAYLOR, SHIPLEY I

MORRIS and ELLA B. JOHNSON, oD behalf
of themselves and all othera sllollarly
eituated ,

Plalnti ffs ,

v.

BOLIVAR COUNTY, I{ISSISSIPPI , TIIE
BOLIVAR COUNTY BOARD OF SUPERVISORS,
J. E. 8080, Mtl.tOND S. BARR, KERI,IIT
STANTON, TOM}IY NARRON AI{D VICTOR
BAIONI, SUPERVISORS, €t 81. , )

Defendante.

'.'rr.rr.'ft

-j

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OT MISSISSIPPI

DELTA DIVISION

',

CIVIL ACTION

NO. DC 83-136-WK-O



s5
,l-,

County Clrcuit Clerk and RegisErar. Plaintiffs geek

declaratory and injunctive relief againet further use of

Ehe County's 1971 redieErlcting plan and against

implemenEation of a 1983 plan alleged1y rejected by Ehe

United States DepartuenE of Justice. Jurladiction 1s

conferred by 28 u.S.c. $ 1343(3) and (4) and 42 U.S.C. $

1973(j) and 1973(c) for cauges of action arlsing under f
2 and $ 5 of . the Voting Rights Act of 1965, 88 amended and

extended, 42 U.S.C. t 1973 et seq., 42 U.S.C. $ 1981 and'

1983, and the Fourceenth and Flfteenth Amendments.
tl . 1

At Ehe out8eE, a three-Judge court was .convened

pursuant to law to addreee plalntiffs'. cIafuns ,rid"" Sectlon

5 of Ehe Voting Righte Act. After an evidentlary hearlng

on July 2L, the courE held that thb county'e proposed

aupervisorB redlstricElng plan, pr€viouely eubmitEed to

the Attorney General of the United SEaEee, congtltured a

change affecting votlnS, and votint proceduree and that the

plan had been tinely reJected by the AEtorney General on

June 13. The court enjoined defendants from ut,lllzing the

proposed plan for Ehe electlon of supervisors and const,ablee

unEil lE recelved t 5 preclearance. Lucas v. Bollvar @!.Y.,
567 F. Supb. 453 (N.D. Miee. 1983).

All remainlng issues having been remanded to Ehe

-2-



Banaging judge for resoluCion, Ehe court' on JuLy 22 enJoined

Ehe defendant,s from further utlllzlng the 1971 redistrictin8

plan for electlng eupervisora and constables because of

imperoiesibLe ualapportionEent result,lng froo populatlon

changes reflected .ln the 1980 offlcial ceneue. Defendant

supervisors were granted an oPPortunify to submit a further

redistricEing plan ernbodying the one-Person, one-vote

princlple and avoldlng lmpermleeible dilutlon of black votlng

sErenggh. After pubIlc hear1.8, the aupervlsors subttritted

a new plan, Eo whlch plalntiffa have obJected'rand,1In turn,

f iled' an alE,ernaEe PIan -' :

Io 'a five-day hearing enditg October 11, 1983,

the court received etlpulated facts,. lengthy oral and

documentary evldence and hae duly consldered the aaEe after

guboiseion of brlefs and hearing argu6ent of couneel. Since

both plans under conslderation by the court 8at16fy the

one-person, one-vote requlrenent of the Fourteenth Amendment,

that ls not an lseue ln Ehe ca"e.1 The queetions tbue

presented are: (a) whether defendangsr ne!, plan vlolatee

lrhe
from
4.3%

maximum deviation ranBe between
the ideal (9193) is 3.037. under

under plaintiffs' ProPoeal.

Ehe flve districts
defendants' plan and

-3-



.t,a

the results test of nes, Section 2 of the Voting Rights Act

as amended In June 1982; and (b) 1f not, whether the plan

1e the product of unconstltutlonal motlvation becauee of

race. If platntiffe prevail on thelr statutory claln, the

consEiEut,ional iesue ls mooted and the court, would be requlred

Eo granE approprlate relief. It 1s agalnst thie framework

of lega1 prlnclplee that the court uakes findings of fact

pursuanr to Fed. R. clv. P. 52(a) 88 follows.

I. Findingg of Fact

A. General '1

By t,he 1980 census Bo1'lvar County hae a populatlon

of 45 ,965 , of whlch 62.L7. le black . itt. county enconPassea

a land area of 923 Bquare nllee and . has a total of 15

lncorporated municlpalltiee, lncludlng tlro county 8eat8

located aE Cleveland and Roeedale. CleveLand, Ehe county

seat of the Second Judlcial DiEtrict, hae a populaEion of

L4 ,524 and 1s Located aE, Ehe lntersectlon of U. S. Hig,hway

61 and l'lississipppi Highway 8. Rosedale, t,he county seaE

of the First Judicial DisErict, is located approxlmately

tuenEy miles wesE of Cleveland on I'tississippi Highway 1

adjacent . to the Mississlppi River. Other lncorporated

uunicipallties wlthin Ehe counEy lnclude: A11ig,ator, BenolE,

Beulah, Boyle, Duncan, Gunnison, Merigold, Mound Bayou,

-4-



Pace, Shaw, Shelby, Renova and I{instonvllle. The county

ie approxinately forty-one mil,ee long and varieg from thirteen

Eo 28 nlles in widt,h.

Located in Ehe l.lleeieelppt Delta reglon, the county

has Eraditlonally featured farulng and agricuLt,ural' pursults

although ln recent years Ehere has been a eubstantlal

lndusCrial growth wlEh Sreater manufacturing emplopoent

opporUunities. As the agricultural employuent has declined

wi th E,he advent of uechanized f arming, Ehe county' s rural'

population has steadlly declined, and this trend 1s 1tke1y
ti \

to conEinue.

B. Hlstorv qf Racial DlgcriminaElon

From 1880 unEl l r,he pessage tn 1965 of t,he Votlng

Rlghts Act, f ew blacke :ln the counEy reglet,ered to vote,

voted or particlpated ltn polltlcal affairs because of

erstwhile lnpediments such as poll Eaxes, llteracy and other

electoral requireEenEs. Until the 1950'e lligsleeiPPi

maincained official policiee of racial segregation In pubIlc

education, EransPortation and accouunodations. The counEy

traditionally operated dual echools in six seParate echool

dietricrs.for rhe black and white races until the late 1960's-

The public schools were integrated by federal courE ordere

in the early 1970'e and Ehey remain under continued federal

-5-



br'

court jurisdiction Eo effectuate a unitary school' systen.

School Dietrict Number Six, Located 8t Mound Bayou and

t{insronvilLe, 1e historlcally an all black digtrlct. Raclally

eegregaCed paEEernB of housing have creaEed seParate whlt,e

and black neighborhoods throughout the county, and ooc181

and civic grouPs are largely seg,regated accordinS, to race.

Despite marked lmproveuent, durlng the past decade, blacks,

on the average, earn eignificantly less lncooe than whltee

an<i generally have not att,alned educatlonal levele on a

parity with the whlte population. Sur"marlee of Ehe 1980
'1 \

censuB data on lncome and educaE,lon ln Bollvar County are

as follows: 
:

I. Income

A. Median FanilY Income

B.

c.

1. White

2. Black

Mean FamiLy

I. White

2. Black

Per Capita

1. White

2. Black

....$

Income

Income

.....$

17 ,663 .00

7 ,084.00

$21 ,944.00

9 ,514.00

6,947 ,00

2,231 .00

-6-



,

D. Persons Below PovertY Level

1. Whlte 1,705
Percentage of White LO.7%

2. Black . .16 ,233
Percentage of Blacks 57.8%

II. Education Level (Pereons 25 years old and over)

A. Percent High School Graduateg

1. White 67 .47"

B.

2. Black 27 .8%

Median Years of School Completed

1. White ........ . . .L2.6

2. Black
tr \
.:. 8.4

AlEhough there no longer exist,s 8ny lnpedinent

to regi sEraEion and vot,lng , blacke dO not turn out or

part,icipate as fully as whites in the electoral process.

This ls due ln Part to the lower economic status and

educatlonal level and in Part to dislnteresE, and apathy.

Nevertheless, eubstantial numbers of blacka have regietered

to vote and are acEively engaged in polltlcal affairs. The

black voting age population (BVAP) ls 54.7% for the county

as a whole. Of the 19 electoral precincts, 13 have a maJorlt,y

BVAP. As'of July 2, 1983, 24,683 citizens of both races

were regisEered to vote. While no record of registered

-7-



lr r

voters is BainEained according Eo race, iE is evident from

rnany voter regisEratlon drivee conducted by blacks ln recent

years, comblned wlth arrang,euents oade in 1979 and agaln

in L983 by the county registrar Eo have voter registration

accomplished aE Ehe regul,ar polling places throughout the

county and on certaln Saturday mornings at Ehe courthouses

in Roeedale and Cleveland, so as to serve the publlc

convenience, that, age-e11gib1e blacks have in fact regis'tered

to vote in subsEantially the 6arDe proportion as whltes. There

are no lingering ef fects from past diecrininatiop tha,t inhlblt
presenE-day reglstratlon by blacks, nor 1e there .any 'credible

evidence that blacka are intinidated, diAcouraged, of harassed

in exercising thelr franchise rlghts.

C. RacialIv Polarized Voting

The evidence ie ln confllct as t,o Ehe ext,ent of

racially polarized voting. Accordlng E,o def endantsr exPert,,

Arthur C. WhiCtemore, racial block voting in Psst elections

has not been significant. According to plaintiffs' exPert,

Jerry Himelstein, racial block voting, 8E leaet by whiEes,

has been pervasive and overwhelming. The Court finds the

EesEimony ' of Whittemore rnore probatlve than tlimeleEein's.

To supporE, his opinion Whittenore did an anaLysis ln 2l

count,y elections since 1955 of 53 contests in which whiCe

-8-



candidaEes successfully opposed black candidates, carrying

a naJoriEy of the Preclncts and lndicating black voters

chose not, Eo suPPort bLack candidates. Coalitions between

black and white voEers reeulted in the election of at least

two black school trusEeeB in District Four, I{i11ie Sim'nons

In LgTg and Dan Snith ln 1981, against whice oPPonents ln

a school disrrlct having a 4O"L BVAP. Other black candidates

seeking multi-county dietrlct offices, although loelng to

white candidates outside Bolivar County, received a naJorify

voEe wlEhin Ehe county. For example ln L982,',RobefE Clark,

a black DeuocraElc candidate for Congrese ln . the Second

Congressional Dietrict,, received 52%'of Ehe vote agalnst

white opponente ln the DemocraEic prlmary and 52.47. of the

voEe ln Ehe general electlon against hla .whlte oPPonenE,

Webb Franklin. In other races by blacke agalnet whlte

opponents, such as Robert Gibbs for dlstrlct attorney and

Robert Ward for BEaEe representative, the black candidates

were narrowly defeated ln Bolivar County by polling 497"

and 477., resPectively, of Ehe Eotal county vote'

The evidence 1s repleEe with elections ln which

whlte candidates were substantially supported by the vot'erB

of majoriEy black preclncEs and owed thelr vlctories to

black vote. On the other hand, candidates Robert Clark

-9-



8nd Robert Gibbs, who campaigned actively ln white

neighborhoods, drew greater white suPPort Ehan black

candldates who choee noE to engage ln such carnpalg,ning.

HimelsEein's opinion that there was Polarized

voting by whiEes lras based uPon a study of 13 contests ln

Erro Cleveland preeincts having at least 9A% white voting

age populacion (WVAP). Since he thought that only Ehe two

precincts were appropriate, he excluded from consideratlon

the voEing paEterns of the remaining PreclacEs. Hinelstein

acknowledged that he did not, consider Ehe.racts'I BakeuP

of registered voEerB Dor factors of incumbency, Party

affiliation, iBsues and tyPe of campbignlng. Supervlsors

districts were not lncluded in. lit analyeis. The uae of

a euall sauple and hls fallure Eo conaider practlcal factors

in voEing renders HimelgEeln'g analysis of litfle value

and Eherefore, lt, ie rejected.

D. Success of Blacks in Elections

No black, however , has been elected to a counEy-l'ride

office although black candidates have sought various county

offices ln rnosE elections heLd since L975. Blacks have

fared bett'er ln municipal elections and elections for district

offices within the county. Nine of the 15 municipalities

which have a BVAP of not less Ehan 65"L have elected black

f,tr'

-10-



trayors, and 40 out of 77 aldermen are black. In Dietrlct

Three where blacks have a BVAP of l[ore Ehan 9L"L, Kereit

StanEon, a black, hae been elected supervisor for four teEEg

beginning ln L967, and blacks have been elected in Ehat

district as const,able, Just,ice courE judge and electlon

commissioner. Plaintiffs' witnesses, Gregory Flippens,

Johnnie Todd, RoogevelE Grenell and David Washing,ton, black

political. leaders, lrere of the view that a black candldate

could noE, be elecEed ln a district having, lese Ehan 65%

BVAP. On the oEher hand, def endants' witnesses\, Dlelvin

Crow and Sam Cllfgon of Mound Bayou, J. Y' Trice.of Roeedale

and Slrpervleor StanEon, all veEeran blAck polltical leaders,

vigorously differed with thie conclugion. Crow, who wlth

CIifEon gubmitted a biraclal redlstri"cirrg plan, cpined

that, any plan increasing Ehe BVAP PercentsSe ln a dlstrlct

over 52% would be acceptable and noE dilute black voting

strength. He regarded the size of ghe black voter turnout,

and election results, t,o be largely governed by such factors

as qualificaCions of candidaEes, incumbency, and vigorous

canpaigning, and not by race. StanEon EesEified he wag

elected supervisor wiEh 53% of, the vote and was of the opinion

ChaE Ehere was no eray Eo determine what PercenEage would

insure an elecEion buc rhat sL"L BVAP would be fair if Ehe

- l1-



black candidate enjoyed a record of service, had suitable

qualifications, and r8n the right tyPe of caupaign. Trice

and Olevia Johneon, €lection commi.EBioner at Mound Bayou,

expressed opinions that depending upon ons's qualificatlons

and calnpaigning , a black candidate lrould certainly have

a fair chance of being elected ln a district having a 57.1%

BVAP. The court finde as a fact that Euccess at Ehe polle

f or bl.ack candldates depends more uPon one'8 conPeEency

and quallfication for the Job and EyPe of campaign conducted

Ehan upon the aize of the BVAP, 80 long 88 it constlEutes

a majority of Ehe total VAP. 1

Size of Election District and Other Election Practlces

A11 pol l ing places wl.thtn thq electlon dletrlcte

are located ln public bulldings excePt for four rural areag

of Scott, Skene, SErlngtown and Longshot where PrivaEe

property is util lzed. The travel. distance for voEers in

most precincts does not exceed L\ to 2 ailes; in sParsely

seEtled districts, howevef, the distance tray lncrease uP

to 5 miles. ltiseleelppi Publlc TranslE, sponsored by the

Bolivar County Council on Aging, provldee transPortaElon

gervice on election day t,o and from ehe poI1s for elderly

and Iow income citizens of both races. Additionally, car

poo1s, buses, and other Eeans of EransPoraEion are provided

E.

-L2-



-t'

by candidates and their workers to carry voters to the polls.

The stze of election districts in Ehe county, which are

not unduly larg,e, doee noE aclvereely af f ect access of blacks

to voEing. State law requires a majority vote ln Party

primary elections, but noE ln g"o"."1 elecElons. Black

candidates have usually sought and gained offlce by running

as independents ln general electlons, where they have Sreater

succese Ehan in gaining nominaEion in Party Primariee.

AnEi-slngle-shot provielons in stat,e 1aw have no aPPlicatj.on

to the office of supervisor or conscable, eince each is

a single office or posiEion
\i \

I'

:

F. Access to Slating Process

Black candidatee for office. saEisfy Ehe same

prerequisites for candidacy as whites. There are no white

dooinated organlzations or white controlled politlcal Party

processes. The Bolivar County Democratic Executive Conmittee

consists of 27 persons, 19 of whom are b1ack. ltedia exPooure

and coverage aa well as nelrspaper articles concerning black

candidares and black officlals ln Bollvar County are racially
neuEral and fair. A11 candidates of elther race are provided

with Ehe .sane opportunity to have poliEical announcenente

and candidate photographs printed ln Ehe 1oca1 nevrsPsPer

without cost.

-13-



G.

The dieparlEies beEween blacks and whltes ln

educatlon and lncooe have been prevlously alluded Eo, and

such disparities do, to some extent, hinder the abiltty

of blackB t,o particlPate ful1y ln the electoral procesa.

This adverse lmpact haa dlniniehed Sreatly in recent yearg

becauge of progress oade ln Bolivar County by blacke

educationally, econotrlca11y and po1icical1y. Although

responsiveness of the county's supervisors is not an isgue

ln Ehe case, Ehe defendanEs have oade 8n luprdeelvA ehowlng

of the counEy'e lnvolvement ln obtaining lndusa.i." thaE

afford Job, opportunltlea for black citlzens, ln developing

afflrmaEive 8ctlon prograBs and. in sPoBEortng Job trainlng

Prog,ratDs.

tt. Raclal Campaigning

The partles have stipulated thaE whl te candldat,es

do noE campaign on the basis of overt racial appeals, and

t,here is no evidence Eo suggest subCle racial appeals. The

evidence showe convlncingly thst whlte candidatee actlvely

seek the support of black voters which, in contested races,

is essenEial to vlctory. Candidatee of either. race who

make racial appeals have ordlnarily been unsucceesful at

The Effects of Discrimination in

- 14-



the polls.

I. Underlying Pollcies

The evidence eetabllehes that Hoyt Holland and

Assoclates, professional planners, developed defendants'

proposed redistrictlng p1an, referred Eo as Holland Plan

"E", based upon Ehe following crlEerla, lieted ln order

of priority: r

(a) One-person, one-voEe princlple requlred by

the Fourteenth Amendment.

(b) Avoidance of iaperuiseible 't dllutlon or::
retrogresslon of black voting strength. forbidden' by fedelal

l

sEaEuEe or Ehe Fourteenth and Flfteenth Amendments. 
i

(c) Avoldance of havlng preclncta spllt ,by

leglelatlve dtetrlct linee afEer lmplementstlon.

(d) Avoidance of unnecessary and unjustifiable
adninistraEive reregistration of voEers.

(e) Avoidance of voter confusion by unnecessarlly

Eransferring voEers from distrlct to district or by

unnecessarily chang,ing polling placee for voters.

The county has a subetantlal g,overruDental interest

in Ehe bvoidance of having Precincts spllt by sEate

legislative district llnes after iuplementaEion, Ehe avoidance

of unnecessary and unJuetiftable adminisErative rereglstration

-15-



of voEers and Ehe avoidance of voter confusl.on by unnecessary

Eransferring of voters from district to district or by

unnecessary changing of polling places for voters. The

court finds that policy choices utilized by defendanEs in

their plan reflect Iegltimate and substantlal governnental

concerns and are not rooted in racial discriminaEion.

J. The Plans

The perEinent

Ehe five districte ln

plan in existence eince

and Ehe plan offered by

daEa respecEinpi BVAP for each of

Ehe counEy as it Day apply Eo Ehe

1971, the plan offeredl by defendants

plaintlf fa are as follows:- 
J

Plan elnce I971

Plan offered by
Defendants
(Def endant,s I

Exhibit 2)

Plan offered by
Plainti ffs
(Joint
Exhibit 2)

Dist. 2

3L .44%

Dist. 3 Dist. 4

81 .48% 50.72"L

67 .37" 22.5"L 8L.4% 53.2% 57.L%

67 .2% 8.2% gL.4% 73.3"/" 57.L%

Ae will be noted, Plaintiffs' plan differs from

defendanEs.' plan only in Et o resPects. FirsE, it reduces

the BVAP to 8.2% in District 2 and increases the BVAP in

District 4 Eo 73.3%. Second, the difference in the

- 16-



configurations of Districts 2 and 4 depend 1argely, 1f noE

alEogether, upon t.he dlvision of the populatlon ln Ehe CiEy

of Cleveland. lloet of the whlte population in Cleveland

live wesE of the nort,h-south I1linoi8 Central railroad tracks,

and blacks are concenErated in areas eagt of the tracks.

Under the defendantBr plan, District 2 extende eastwardly

beyond the railroad Eracks to a point on ChriEEan SEreeE,

souch to Hadley S6reet, then east to U.S. Hlghway 61, wlth

sEraight linee for Ehe north boundary (SunfLower Road) and

souEh boundary (White Streef ). The area east of- Chis.,divlsion

line is placed in Distrlct 4. Plaintiffe' pfJrr-esteblishes

the easE boundary of District 2 at .the Illiuois Central

railroad Cracks, retains the southern boundary along White

SE,reeE and utillzee t,he Cleveland city'limits as Ehe north

boundary. The area east of thie dlvtelon 1lne 1s placed

in District 4.

Under the defendants' plan , 337 1 pereons lncluding

1631 regisrered voteri would be ehifted frou one dietrict

Eo anoEher while under plaintiffe' plan 7003 persons lncluding

3601 registered votere would be 8o ahifted. The defendants'

plan would cause 6.6"L of the regist,ered voters Eo be moved

while che plaintlffs' plan would cause L4.6% of. Ehe regisEered

voEers to be moved. Both plans spliE seven precincts. In

-L7 -



Ehe defendants' plan, preclnct llnee of the euperviEorg

districts coinclde with leglslatlve districte, Ehue avoidlng

the necessiEy for EeParaEe pol1 books and ellminating voter

confusion otherwise occurrlng by votinB aE Ewo places on

the sane elecEion day. Thie objective is noE achleved by

the plaintiffs'plan. Defendants'plan 1e coIDPacE, based

on straight lines in dividing Districts 2 and 4, and the

boundaries are Earked by well-traveled EEreets and hig,hways.

Plaintiffs' plan utilizee the Cleveland clty llnita aa the

north boundary but thig is nelther an obvloue , line of

demarcgEion nor one ever used .for designatlog - suPervisors

district boundaries.
,

i Some divieion of voters. within the Cit,y of Cleveland

EusE be made anong Distrlcts 2, 4 and 5 to conply wlth the
lone-person, one-vote eEandard. Defendants' plan not only

avoids height,ening oE eharpening of the fragmentation of

the black population concenErated ln East Cleveland, but

materially reduces any fragmentaEion resulElng from Ehe

plan in effect slnce L97L. Defendants' plan subsEantially

adopts a biracial ProPosal authored by Melvin Crow and Sam

Clif ton, .veteran black political leaders. As init,ially

submitted, their ldeas, favorably adopted by a biracial

Broup, t{ere t,o f irst arrive at the popuLatlon requireBenEg

-18-



I

for District 1 adjolning the Mlseiesippi River, Ehen Eove

easEward in straight llnes to pick up population without

regard to race, and Ehey found no adJueEnent, t aB needed

because of race. According Eo Crow, the defendantsr plan,

as refined, is an. improvement over the Crow-Clifton plan

because it has lncreased the percentages of BVAP.

Under defendants' plan, black voters have a

reasonable and fair opporEunity to elect candldates of thelr
choice in four of the five eupervisors distrlcts.
Unquescionably, this would be Erue in Dlstrict.l (BV+P 67.27")

and District 3 (BVAP 8L.4%) , a fact which plainuiffs do

noE challenge. The court also f lnds t,hat blacks would have

a fair and equal opportunlty a: elect candidaEes of thelr
cholce ln Distrlct 5, where t,he BvAi {e 57 .17.. / wt tt"
plaintiffs' plan does not, provlde a higher BVAP, plalntiffe
conEend that blacke cannot, elecE a candidate of their cholce

ln District 5. / rrr" weight of the evidence clearly rebute

plaintif f s' conEenEl "./ Distrlct 4 with a BVAP of 53.27"

presents a closer issue as t,o whether blacks have a f air
and equal opportuniEy Eo elect candidates of theii choice,

but the court, concludes on Ehe total record made ln t,his

case, black candidatea of compeEency and qualificatione

who vigorously campaign, would have a fair opportunlEy of

- 19-



,t' .

being elected. Dlstrict 4, aB propoeed by defendants, doea

provide blacke with vot,ing Btrength adequate for blacka

residing ln. that area to elect a eupervlsor or coneEable

of their choice. The court rejects plaintiffs' contentlon

that defendants' plan unnecessarl!.y reBErlcts black votlng

BErength in District 2 to insure whit,e control of at leaet

three districts in the county; raEher, the defendants' p1an,

when considered as a whole, lnsures the political viabllity
of black candidates in four out of five distrlcts and provides

an opportunity for black voters comensurate wit,h whitee
r

to participate effectively ln the polltical Processes and

to elect candidates of thelr choice.

K. Regponglvenesa to the Needs of Black Clt{zens

The county supervlsorB have appolnred black clt,lzeng

Eo a number of boarde, comigsions and conrmitEees. Theee

appointments include, 8urong, othere, black rePreBentatlon

on the Bolivar County ConniEtee for Sout,h Delfa Plannlng

and Developnent, County Board of Welfare, County Conmunity

Action, County Library Board, County Planning Conmiasion,

County Park Comission, and Count,y Hospical Board. In 1973,

Ehe superv.isors eetablished a biraciaL coomittee Eo recoomend

ways of utilizlng federal revenue-sharing funde for Ehe

g,reatest benef it Eo Ehe citizens. The prinary recouulendatlon

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erophas ized l{as Ehe need for lcore Jobs for county reeidentg.

These recomnendatione have been placed into effect by

esEablishing industrial parks in four different are88,

building a slack lrater Port facllity wlth residentisl park

8t Rosedale, 8nd hiring a counEy adainlstrat,or Eo agelst

in overall develoPtrent, efforts.
prograrns have spurred the privaEe sector to Senerate

approximateLy 600 Jobe ln the county with 8n annual payroLl

exceedlng eix ml11ion dollara, thereby providlng increaeed

Job opportunities for black as well 88 white workere. Since
'c \

L978 the counEy hae eought Eo lmplement an affiroatlvp scElon

progratr of mlnorlty eoployment. Use of. CETA ProgfaE fundlng

hae resulted ln the employment of Eany black clt,lzens ln

counEy and nunicipal departmenEtl and ag'encle.s. The overall

policies of Ehe count,y supervlsors in reeenE years have been

eignificantly responsive to t,he inEerests and neede of black

ciEizens in eecurlng Job opportunitlee wlth uaJor lndustrlal

and manuf acturing employers that oPerate t lEhln the count,y.

II. Conclusima of Las

Ihe courE

clvil rights actlon
(4), and 42 U.S.C. $

These publlc lnveeEuent

has subject EaEter Jurlsdiction of thie
pursuant, t,o 28 U. S. C. $ 1343 (3) and

L973(c) (j) and (f).

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A. Statutorv Claims

The plalntlff claes brlngs suiE under $ 2 of the

Voting Rights Act of 1.965 , os aaended , 42 U. S. C. $ 1973 ,

$$ 1981 and 1983, and Ehe FourteenEh and Fifteenth Amendments.

The Court ousE flrst addrees the staEutory claime

arising under nee, f 2 of the Vocing Rlghte AcE. That sectlon

provides as follows:

(a) No voEing quallfication or Prerequisite
to voting or sEandard, PracEice, or procedure
shall be inposed or applied by any State - or
political sub-divislon ln a Eanner which results
in a deniaf- oi -"bridgenent of the rlghi of ' any
citlzen of Ehe Unlted Stateg to vote on account
of race or color, of ln cont,ravenElon bf the
guaranEeeB set forth in aection' 1973b(f) (?) , of
Etris title, 88 provided in subsecEion (b) of this
secEion

(b) A violaE,ion of eubsection (a) of Ehis
section ie established if, based on the totality-
of circuustances, it 1s ehown that Ehe poliEical
processes leading Eo nominaEion or election in
ttre State or pol IEical subdivision ar-e not -equallyopen Eo participation by oembers- of a claes of
citizens protected by subsection (a) of uhis section
in that - its members have legs oPPortunity than
oEher membere of the electoraEe to ParticiPaEe
in the poliEical process and Eo elect
representatives of their choice. The extent to
which memberg of a proCected class have been eLected
Eo office ln the State or politlcal subdivision
is one circumsEance which tray be considered:
Providqd, That nothing in this secgion establishes
ffig6t Eo have memberi of a protected class elected
in iuobers equal to their ProPorEion in the
population.

U.S.C. $ 1973, as amended June 29, L982.42

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The legisLative hietory of the Act makes clear

that iE, proh.lbite any 'voting Practlce or procedure that,

resulEs in discriminaEion, and EhaE proof of diecriminatory

lnEent is not required Eo establish a $ 2 violation. The

1ega1 etandards based on Supteme Court decisione Prlor to

llobile v. BoLden, 446 U.S. 55, 64 L. Ed.2d 47 (1980), were

restored in Ehe new Eubsection (b) above, whlch codlflee

crlEeria of the reeulEs tee.t as enunclated ln the leading

pre-Bo1den voting dilution, case Whit,e v. RegesEer, 4Lz

U.S. 755, 37 L. Ed.2d 314 (1973). "Thi8 niew spbsectlon

provides that t,he iesue to be. declded under -the' results

test 1s whether the politlcal Processes are equally oPen

Eo minority voters." SenaEe Report No. 97-L4, 97th Cong.

2d sese. p. 2 (1982), U. S. Cong. g Ad. News Llg (1982).

If as a result of a challenged Practlce or structure an

equal opportuniEy is not afforded to minority voters to

parEicipace in the electoral procees and to elect candldateg

of Eheir choice, $ 2 le vlolated . Ae seE f orth ln t'he SenaEe

Report, Egpg., at 28-29, to establish a $ 2 violation,

plaintiffs oay shot a variety of factors aB follows:

'(a) The
d i scr iminaEi on
t,hat Eouched
minoriey grouP
paEticipaEe in

extent of any historY of official
in the state or political subdivision
Ehe right of the membere of Ehe

to re[,ister, Eo voEe, oE oEherwise
Ehe democratic Process;

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..:i.!'l;,:- -: -.:-;:..lli;.: -*-,"

(b) The extent to which voting in the
elecEions of Ehe state or Polltlca1 eubdivielon
1s racially polarized;

(c) The extent to which the Etate or political
eubdivision has used unueually large election
districts, the ruajority vote requirenenEs,
anti-eingle ghot provislons, oE other votlng
practicea or procedures thaE aay enhance the
opportunity for discriminatlon agalnet, Ehe ninority
grouP;

(d) If Ehere le a candldate elae!,ng Procee8,
whether the ueubers of the ulnorlty SrouP have
been denied access to that Process;

(e) The extenE to which members of the
uinorit,y g,roup in the state or polltlcal subdlvieion
bear the - ef fLcte of discriminat,ion ln euch areag
{ls educaEion, employoent and health, whlchlhindered
cheir abl11ty tb partlcipate effectlvely in 3he
political process;

(f') Whether pollelca1 caopiigns have been
characterized by oveit or subtle racial'appeals;

(g) The extent to 'which ileaberg of the
otnorlty group have been elected to publlc offlce
in Ehe Juriedictlon.

In exauining Ehe PreBence or abgence of theee

fact,ors, Ehe court ie required Eo uee its overall JudgnenE,

based on the tofallty of circumsf,ances and guided by factors

relevanE, Eo the psrtlcular case of whet,her the voting strength

of ninority voters Is minimized, and the facEors are noE

Eo be used as a Eechanical "poinE counElng" device. See

SenaEe ReporE, SjEl, at 29 n.118.

Regester etandards lrere applied byThe WhiEe v.

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the Fifth Circuit in Zinmer v. McKeiuhen, (en banc), 485

t.2d L297 (5ctr Cir. L973), aff 'd on ot,her srounde eub 9.,
East Carroll Parish School Board v. Marsha11, 424 U.S. 636

(L976) (per curiam), and Klrksev v. Board of Supervisors

of Hinds county, .554 F.2d 139 (5ttr Cir. 1977).

As applied to E,he case sub judice, the lssue le
reduced einply to whether Distrlct 4, all proposed by

defendants, violates g 2 by noE providlng a BVAP greater

than 53 .2"L PlainEi f f e urge thar noE less than 657" BVAP

is necessary for blacks in that district to havg equgl access

to Ehe political process. We disggree. The court.has'weighed

Ehe hig,hly conflicting evidence as 1r relaEes to this eingle

lssue and concludee from a tocallty of the circumstances

thaE t,he political procesBeB under defendantB' redlstrlctlng
plan for District 4 are equally open to Particlpation by

black and white voters, and, Eoreover, that black vot,erg

have equal opportuniEy in four out of five supervisorB

discricts Eo elecE candidates of thelr choice. It ig Erue

that Ehe history of past discriminatlon with sone lingering

adverse effect upon poliEical participatlon by blacke cannot

be denied, nor can the failure of blacke Eo win elections

in proporEion Eo thelr numbers be ignored. These factore

cert,ainly require Eore Ehan a minimal rnajorlty BVAP Eo assure

-25-



blacks in a particular district equal acce68 to political

parElclpaEion. For example, a dletrict wlth less than 5L%

BVAP naJoriry could hardly be counted uPon to equallze

dlf f erences in vot,er ParEicipation. On the ot,her hand,

the lack of overt. or subEle racial appeals by candldaEea

in campaigning and the abeence of marked raclallt' Polsrized

voting in Bolivar County ate factore that favor the

defendants' plan. Sinilarly, lhe Presence of a PrePonderant

number of blacks on Ehe Executlve Conmlt,tee of Ehe county

Democrat,ic Party, the dominanE political party,i evincee

a strong inEerest of BinoriEy voters ln Party ParEic'iPaEion.

No hindrances, however, exlgE to cand'ldateg oPting Eo run

as lndependenEs, and candldatee run 
. 
for office without

lntinidatlon, harassnent or lnterference. The credlble

evidence 1e thaE the succeas of candidates 8E the PoIl.8

is generally determined by, Ehe factorg of lncumbency,

experience, qualificatione, and vigoroue coomunity-wide

campaigning, and not by race. Section 2 expresely disavows

any right of ProPortional rePreBentaEion to the members

of the proEected class, and 1t should not be construed Eo

guarantee,the Buccess of a candidate because of his race.

The courE, theref ore , concludes E,hat def endant,s'

redistrlcEing plan rePresenEs a good falth effort Eo afford

-26-



blacks an equal oPPortunl ty E,o particiPaEe ln elecElone

and elecE candldatee of thelr cholce, and that Ehe plan

does not resulE ln a denial or abridgenent of the rlght

of any cifizen to vote on account of race. Section 2 ls

tberefore noE vlolated.

B. Conetitutional Claimg

Plalnttffe have failed to eatabllah consEiEutlonal

claims under Ehe FourEeenth and Fifteenth Amendments. A.

showing of discriminatory lntent hae long been requlred

in all Eypes of equal protection casea ctrlrgfn| racial

discriminatlon. Villaee of Arlington HqiEhte v. Hetropollta.n

Houslng Developuent Corp., 429 U.S. 252, 265, 50 L. Ed.2d

450 (L977)i Waehlngton v. PSIE, 426 UrS. 229, 240, 48 L.

Ed.2d 3g7 (1976). Discrimlnagory lntent, however, need

not, be proved by dlrect evldence but tnay be inferred from

"the totality of Ehe relevant facts, lncluding the facEs,

lf it be Erue, Ehat the Iaw beare Dore heavlty on one race

Ehan another . " Rogers v. Lodge , U. S . 
-, 

73 L. Ed .2d

1012, 1018 (citing Arlington Heiehts).

In voting dilutlon cases under the Fourteenth

and Flfte€nth Amendment,s, the courE is requlred to make

"8 6ensitive lnquiry lnEo such circumgEances and direct

evidence of intent as B8y be available, " Rogers v. .@.,

-27 -



I ,d'

$.8, at 1018, and determlne under 811 of the relevant

f actors "ln whoee f avor the ag,greg,ste of Ehe evldence

preponderates," Nevett v. !l39g, 57L F.2d 209, 224 (5ttr

Cir. 1978) ; Rosers v. Lodge, -gg3g, at 1020, and ghould

therefore consider not only the evidentiary faccs as ouElined

in Zirrmer but any oEher relevant f actors as well Thue,

Ehe Z!g1log! criteria are not regarded aB absolute under the

constltutlonal amendments but only "to the extent that they

Iarel relevant Eo the question of discrininaEory inEent.'i

Rogers v. -@., supra, at, 1021 . ,! \

From a rotality of relevanE facEore, when considered

8a a whole and ln the aggregaEe, thei' courE concludeg that
I

the evidence preponderaEes agalnet 
"n)/i 

flndtng of lnvldioue

or discrinlnatory lntenE in t,he defendants'! redietrict,lng
plan. There is no direct evidence of d:iecrlminatory PurPose,

and Ehe circuueE,antial evidence negates such a conclusion.

After its first plan was rejected by the United SEatee

Departnent of Justice, the defendant supervisors hired a

disinterest,ed professlonal planner to aesist in thelr
redistricting effort,s, conducted public hearings, and Ehen

adopted a .proposal baelcally conceived by tlro black po1irlcal

leaders and sponsored by a biraclal ciElzens grouP.

Plaintiffs' insinuation that this effort lras inspired by

-28-



.{' '! .D

Ehe supervisors and t,heir atEorney ie without evldentiary

supporE, and rnusE be disregarded. It. ia clear that the

defendants' plan ls noE trotivated by race or Ehat it lrag

intended to dilute black voting strength. Racher, the

criteria used to acconplish the redlstricEinS, accords with

legiEimate and neutral policies in which the county has

a subsEantial governuenEal lntereeE.

Plaintiffe ergue that elnce Ehe total black

population ln 1970 ras concentrated in three dlstrlcts,
each of which had Eore Ehan 7O% toeal black populatlon,

the LITL plan heretofore approved by thie coqrt 'and Ehe

Department of JueElce wit,h only Ewo euch dietricte was ltself
dilutive, and EhaE defendants'. plan ie no tnore than a

continued unlawful fragnentsEion of black voting strengEh.

This argurnent ignores Ehat serioue population malapporEionnent,

shown by Ehe 1970 census required redistrlctlng at that,

time, that racial moElvation wa6 then found not Eo exieE,

and that t,he L97L divisione had no PercePtible lmpact uPon

black voEing strength. The overriding fact, however, 1E

that in four distrlcte the present plan propoeed by defendante

significantly enhances the BVAP, 8e distinguished from total

black population; this alone 1s gufflcient Eo refuEe Ehe

nocion that defendants seek to cancel or ninimize minorlty

-29-



'.r-.

I

{ { /l';

voting strength.

. The court Eherefore approves the defendant Board

of Supervisors' rediatrlcting plan and directs Ehem to eubnit

Ehe sal[e Eo Ehe Attorney General of the United States for
preclearance under section 5 of Ehe Voting Rights Act of
1955, and retalne Juriedictlon of Ehlg cause for the purpoBe

of entering such further orders as tr8y be approprlate for
Ehe calling of a epecial electlon of supervlsore and

consCables ln Bolivar County.

LeE an order lssue accordingly. ,1 \
This ,+1bd"y of February, 1984. :

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