Correspondence from Winner to Chambers; From White to Nevett II - Court of Appeals Cases Which Talk About Racially Polarized Voting Research Paper
Correspondence
October 31, 1985

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Case Files, Thornburg v. Gingles Working Files - Guinier. Correspondence from Winner to Chambers; From White to Nevett II - Court of Appeals Cases Which Talk About Racially Polarized Voting Research Paper, 1985. 37a58b6b-db92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e69fd34d-1ee5-4395-b2dd-000a9453e18f/correspondence-from-winner-to-chambers-from-white-to-nevett-ii-court-of-appeals-cases-which-talk-about-racially-polarized-voting-research-paper. Accessed May 12, 2025.
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FERGUSON, WATI WALLAS & ADKINS, P.A. ATTORNEYS AT LAW SUITE 73O EAST INDEPENDENCE PLAZA 95 1 SOUTH INDEPENOENCE BOULEVARD CHARLOTTE. NORTH CAROLINA 28202 TELEPHONE (704) 375,846tJAMES E. FERGUSON. II MELVIN L. WATT JONATHAN WALLAS KARL ADKINS YVONNE MIMS EVANS JOHN W, GRESHAM LESLIE J. WINNER JOHN T. NOCKLEBY GERALDINE SUMTER FRANK E, EMORY JR, THOMAS M, STERN October 31, 1985 Mr. JuIius Chambers NAACP Legal Defense and Education Fundr Inc. I6th Floor 99 Hudson Street New Yorkr New York 10013 Dear Ju1ius: Enclosed is a history of the use of racially polarized voting in vote dilution cases from Whrte v. neqister to Nevett v. Sides. r prepared it in preparin@ier @ thought it might be useful to you in preparing for the oral argument. If there is anything else that f can help you with to get ready, let me know. Otherwise, I will see you on November LZr 1985. Sincerely r LesIi"e LJW: acw Enclosure cc: Ms. Lani Guinier From White to Nevqtt fI - Court of Appeals Cases wtrlEtr talk About Racially Polarized Voting 1. It is notable that there is not a word about polarized voting in Zimmer v. McKeithen. The first case that mentions racially polarized voting is Wallace v. House, 5I5 F.2d 6L9,622 (5tfr Cir. f975). It does not discuss how racially polarized voting was determined but says, "they apparently voted right down the line for racial solidarity, with whites voting for whites and blacks voting for b1acks." The lower court (finding #130) found "the record documents a history of bloc voting along racial lines" such that "virtually all" whites vote for whites and blacks vote for blacks. 377 F.Supp. L92, LL97 (L974). There is no discussion of how it was proved. It was in the context of only one black having ever won an election (which the court found was a "mere stroke of luck" ). There was no discussion of the importance of racially polarized voting, but it was used to explain why the white candidates won. 2. In Perry v. City of Opelousas, 515 F.2d 639 (5th Cir. 1975 ), a decision mostly about the appropriate remedy, the court discusses racially polarized voting in the course of discussing unresponsiveness: "IT]he aII at large election plan has combined with racially polarized voting patterns to produce aIl-white Boards of Aldermen which have been able to ignore the interests of their black constituents." Id. at 640. That is, since whites had only a slight edge in voter registration, the racially polarized voting was used to explain why white candidates could ignore black concerns. There had never been blacks elected. Bases finding of dilution on history of racial discrimination, anti-single shot and majority vote reguirements, and racially polarized voting patterns combined with a white voting majority. There is no finding of intent and no discussion of how racially polarized voting hras proved. The district court findings are unreported. (375 F.Supp. 11 is District Court remedy order). 3. In Nevett I,533 F.2d 1361 (5th Cir. L976), the Court of Appeals vacates the District Court's finding of dilution. Blacks were 50t of the registered voters and had won 6 out of 13 seats in 1968. They lost all in L972 due to the failure of blacks to turn out combined with "substantial bloc voting. " The appendix does not say how this vvas determined. The Court of Appeals suggested the District Court thought blacks had to be guaranteed electoral success and remanded for reconsideration in accordance with Zimmer 4. In McGill v. Gadsden Co. Commissioners, 535 F.2d 277 (5th Cir. 1976), the Court affirms the District Court's determination of no dilution since blacks were over l/Z the democratic registered voters. The Court of Appeals mentions that the District Court found racially polarized voting in context in which blacks had never been elected, but the Court of Appeals does not discuss the effect of this or how racially polarized voting was determined. ( r do not believe the lower court decision is reported.) [S.540 F.2d 1084,1085] 5. In Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977), the Court vacated the District Courtrs order in favor of 2- plaintiffs and remanded for more complete findings. In passing the court notes that the great disparity in registration, the racially polarized voting and the fact that no blacks have been elected support the finding that the system suffers from lingering effects of previous racial discrimination. Id. at L270. There is no discussion of the extent or method of determining racial polarized voting and the District Court decision is not published. 6. In Kirksey v. Board gf Supervisors, 554 F.2d 139 (5th Cir. L977) (en banc), cert denied 434 U.S. 968 (L977), the court reversed a District Court finding of no dilution. The Court holds that a redistricting plan is constitutionally inpermissible if it perpetuates past purposeful denial of access to the political process. Id. at L42, 146-8. In its list of facts which lead to its conclusion of perpetuation of lack of access and "Iess opportunity" are that no blacks had been elected and "alleged bloc voting. " The District Court , 402 F.Supp at 672 n.4, bases its conclusion of racially polarized voting on high correlation coefficients (+.979 and +.957). 7. fn ParneII v. Rapides Parish School Board, 553 F.2d 180 (5th Cir. L977), the Court considers "the probability of racial bloc voting" in assessing the Zimmer factors and affirms the Iower court finding of dilution. The court states that in the context of racially polarized voting here blacks are consistently defeated in the multimember districts. Id. at 184. The Iower court had used a Pearson correlation and retrogression analysis to conclude "there was a 98t probability of bloc voting 3- along racial lines" although some whites did vote for black candidates. I assume that the 9BE was the correlation coefficient or the statistical probability, not the percent of whites who voted for the white candidate, but that is not clear from the decision. B. The Fifth Circuitrs first meaningful discussion of racially polarized voting is in Nevett v. Sides , 57 I F.2d 209 (5th Cir. 1978) (Nevett II) in which the Court holds that plaintiffs must prove discriminatory intent to prevail and that the purpose of examining the Zlmmer factors is to determine whether they raise a inference of discriminatory intent. Id. at 217. ( "When the more blatent obstacles to black access are struck down, such an at-large plan may operate to devalue black participation so as to alIow representatives to ignore black needs. Where the plan is maintained with the purpose of excluding minority input, the necessary intent is established. . . " Id. at 222. ) It is in the context of determining if the method is being maintained for the purpose of allowing the elected officials to be unresponsive that Court discusses racially polarj.zed voting. Noting that polarized voting aIIows representatives to ignore minority interests with impunity the Court states, "When bloc voting has been demonstrated, a showing under Zimmer that the governing body is unresponsive to minority needs is strong corrborative of an intentional exploitation of the electorates bias. " 4- As a footnote, the Court uses the often cited language, "II]n the absence of polarized voting, black candidates could not be denied office because they were black, and a case of unconstitutional dilution could not be made. " Note 18 discusses how bloc voting can be indicated. ft states it can be indicated by showing the Zimmer factors (?), by statistical analysis as in Bolden v. Mobile, 423 F.Supp. 384, 388-89, or by the "consistent lack of success of gualified black candidates. I' The method used in Bolden was regression used to establish correlation. In Bolden the Court finds, "There is no reasonable expectation that a black candidate could be elected in a citywide election race because of race polarization. " Id. at 389. Thus racially polarized voting was not mentioned at aII in Zimmer, it was noted in some but not all cases from Wallace v. House through Kirksev, although either without any statement of importance or as an explanation of why blacks were not getting elected. There was no discussion in any of these cases about the extent of racially polarized voting necessary for it to be significant, and no statistic used except correlation coefficient. The first discussion was in Nevett If which discussed racially polarized voting in its discussion of why the Zimmer factors raise an inference of intentionat$-,maintenance ofv a system which allows white politicians to be unresponsive. That is, if there r^rere not enough polarized voting to assure consistent black defeat, whites would not be able to be totally tr J_ unresponsive. This reasoning is not applicable to 52 which focuses on neither purpose or unresponsiveness. Of the cases cited by Parker from other circuits, three do not mention polarized voting. fn pove v. Moore, 539 F.2d 1152 (Bth Cir. L976'), the Court uses an extreme case analysis in two elections and concludes that "blacks and whites alike have ,'-lrejected" race as the overriding critefi*o/i" voting for \/ candidates. (A black candidate got 44.5t of white vote in white ward, a white card got 44* of black vote in black pct). The court concludes that blacks have fuII and egual access to the city's political process emphasizing the need of white candidates to campaign in black areas to get elected. 6-