Rogers v Lodge Brief of Appellees

    No. 80 -2100

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980

QUENTIN ROGERS, et al.,
Appellants,

versus

HERMAN LODGE, et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF APPELLEES

1525 Ohio Savings Plaza 
Cleveland, Ohio 44114 
216/574-9990

133 Luckie Street, N.W. 
Eighth Floor 
Atlanta, Georgia 30303 
404/656-6021

52 Fairlie Street, N.W. 
Atlanta, Georgia 30303 
404/523-2721

DAVID F. WALBERT 
Counsel of Record for 

Appellees

ROBERT W. CULLEN

LAUGHLIN McDONALD 
CHRISTOPHER COATES 
NEIL BRADLEY



1

QUESTIONS PRESENTED

I. WHETHER PURPOSEFUL DISCRIMINATION 
UNDER THE FOURTEENTH AMENDMENT 
WAS PROVED IN THIS CASE

II. WHETHER STATUTORY ELECTION CASES 
MAY BE MAINTAINED WITHOUT PROVING 
INTENTIONAL DISCRIMINATION

III. WHETHER THE JUDGMENT OF THE LOWER 
COURT SHOULD BE AFFIRMED ON THE 
BASIS OF THE FIFTEENTH AMENDMENT

IV. WHETHER THE JUDGMENT OF THE LOWER 
COURT SHOULD BE AFFIRMED ON THE 
BASIS OF THE THIRTEENTH AMENDMENT



11

TABLE OF CONTENTS

Page
QUESTIONS PRESEN TED ..............................................  i
CITATION OF AUTHORITIES iii
STATEMENT OF THE CASE ........................................  1
SUMMARY OF A R G U M E N T..........................................  24
ARGUMENT ........................................................................  25

I. Purposeful Discrimination Under the Fourteenth 
Amendment Was Proved In This C ase..................  25
A. The Evidence Of Intentional Discrimination

In This Case Entirely Supports the Lower 
Courts’ Conclusion That At-Large Elections 
Are Maintained In Burke County For The 
Purpose Of Discrimination..............................  25

B. This Case Differs Significantly From The
Facts And Issues Presented In B olden ........ 33

C. The Other Issues Raised By Appellants Have
No M erit..............................................................  36

II. Statutory Election Cases May Be Maintained
Without Proving Intentional Discrimination........ 41

III. The Judgment Of The Lower Court Should Be
Affirmed On The Basis Of The Fifteenth 
Am endm ent..................................................................  46

IV. The Judgment Of The Lower Court Should Be
Affirmed On The Basis Of The Thirteenth 
Am endm ent..................................................................  48

CONCLUSION......................................................................  50



Ill

TABLE OF AUTHORITIES

Page
Cases

Allen v. State Bd. of Elections, 393 U.S. 544
(1969)..........................................................  41

Arlington Heights v. Metropolitan Housing De­
velopment Corp., 429 U.S. 252 (1977). 25

Bolden v. City of Mobile, 423 F. Supp. 384 (S.D.
Ala. 1976) ...........................................................  33

Civil Rights Cases, 109 U.S. 3 (1883)....... 48
Columbus Board of Education v. Penick, 443

U.S. 449 (1979) .................................................. 29
Dayton Board of Education v. Brinkman, 443

U.S. 526 (1979) .................................................. 36

Dougherty County Board of Education v.
White, 439 U.S. 32 (1978).......................  42

FPC v. Florida Power and Light, 404 U.S. 453
(1972)........................................................... 26

Fullilove v. Klutznick, 448 U.S. 448 (1980) . . .  41
Gomillion v. Lightfoot, 364 U.S. 339 (1960) . . .  40
Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex.

1972).............................................................  38
Griggs v. Duke Power Co., 401 U.S. 424

(1971)...........................................................  43
Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968)...........................................................  49
Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981) passim
McMillan v. Escambia County, 638 F.2d 1239 

(5th Cir. 1981) 37



IV

Memphis, City of u. Greene, 101 S.Ct. 1584
(1981).................................................................... 48

Michalic v. Cleveland Tankers, 364 U.S. 325
(I960).................................................................... 26

Mobile, City of v. Bolden, 446 U.S. 55 (1980) 27, 34

Moore v. Brown, 448 U.S. 1335 (1980).................  35

Personnel Administrator v. Feeney, 442 U.S.
256 (1979)............................................................ 26, 33

Rogers v. Missouri Pac. R. Co., 352 U.S. 500
(1957).................................................................... 26

Rome, City of v. United States, 446 U.S. 156
(1980).................................................................... 41

South Carolina v. Katzenbach, 383 U.S. 301
(1966).................................................................... 3

Whitcomb v. Chavis, 403 U.S. 124 (1971)............  33

White v. Regester, 412 U.S. 755 (1973) .......... 35, 37, 38
Wilkes County v. United States, 439 U.S. 999 

(1978).................................................................... 46

United States v. Bd. of Comm’rs. of Sheffield,
435 U.S. 110 (1978)............................................ 44

United States v. Georgia, 436 U.S. 941 (1978) 32

Constitutional Provisions

Thirteenth Amendment to the Constitution of
the United States...................................... 24, 40, 48, 49

Fourteenth Amendment to the Constitution of
the United States...................................... 24, 40, 46, 48

Fifteenth Amendment to the Constitution of
the United States........................................ 24, 40, 43-47

Georgia Constitution, Ga. Code §2-403 ............ 32



Statutes

v

42 U.S.C. §1971 (a )(1 ) ............................................ 43

42 U.S.C. §1973 ...................................................... 41

Voting Rights Act of 1965, 42 U.S.C. §1973, et
s e q ......................................................................... passim

Ga. Code §34-610(a).............................................. 8

Ga. Code §34-702.................................................... 21

Ga. Laws of 1958, pp. 269, 279 .........................  3

Ga. Laws of 1931, p. 400 ...................................... 11

Ga. Laws of 1911, p. 390 ...................................... 11

Ga. Laws of 1873, p. 226 ...................................... 40

Miscellaneous
111 Cong. Rec. 8295 .............................................. 42
111 Cong. Rec. 8296, 10456, 10453-54, 11402-05,

11744-46 (1965) .................................................. 44
U.S. Code, Cong. & Admin. News (1965) ........ 43
40 Cong. Globe 668 (1869) .................................. 47
38 Cong. Globe 1319 (1864) ................................ 49
S. Rep. No. 162, 89th Cong., 1st Sess.

(1965)...............................................................  44
H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965) 44
H.R. Rep. No. 227, 97th Cong., 1st Sess. (1981) 45
Hearings on S. 1564 before the Com. on the Ju­

diciary, United States Senate, 89th Cong., 1st 
Sess. (1965).........................................................  43, 44

Hearings on H.B. 640 before Subcom. No. 5 of 
the Com. on the Judiciary, House of Reps.
89th Cong., 1st Sess. (1965) ............................ 44



VI

tenBroeck, The Thirteenth Amendment to the 
United States Constitution, 39 Cal. L. Rev.
171, 180 (1951)....................................................  49

Young, The Negro in Georgia Politics, 1867- 
1877, (Unpublished Thesis, Emory University 
Library) (1955)....................................................  40



STATEMENT OF THE CASE 
PROCEEDINGS BELOW

This action was filed in 1976 challenging the use of at- 
large elections for electing county commissioners in Burke 
County, Georgia, on the ground that they had both the pur­
pose and effect of discriminating against Black voters and 
candidates. The complaint was based on the Thirteenth, 
Fourteenth and Fifteenth Amendments, and Section 2 of 
the Voting Rights Act of 1965, 42 U.S.C. §1973. (R. 176, 
180) Trial occurred in 1978 after discovery was completed.

After reviewing all of the evidence, the District Court 
concluded that “ the present scheme of electing county com­
missioners, although racially neutral when adopted, is being 
maintained for invidious purposes.” (J.S. 71a) The Court 
found that Blacks were “ desperate to play a meaningful 
role in their local government,” that the commissioners 
failed “ to view problems with racial impartiality,” that de­
fendants had refused “ to make Blacks a viable part of the 
county government,” that the defendants’ insensitivity “ to 
the needs of the plaintiff class exists because of invidious 
racial motivations,” that “ in the past, as well as in the pre­
sent, plaintiffs have been denied equal access to the politi­
cal process,” that “ Blacks are shut out of the normal course 
of politics in this tightly-knit rural county,” that Blacks 
have not had “ meaningful political input,” that the govern­
ment has “ retained a system which has minimized the abil­
ity of Burke County Blacks to participate in the political 
system,” and that Blacks “ unfairly have been denied a role 
in the political destiny of Burke County.” (J.S. 78a-96a)

Having concluded that at-large elections were maintained 
for the purpose of discrimination, the District Court or­
dered elections to be held under a district election plan. 
(J.S. 96a-98a) That order was stayed by this Court pending 
appeal to the Court of Appeals for the Fifth Circuit.



2

On appeal, the Court of Appeals concluded that the Dis­
trict Court “ correctly anticipated how the intent require­
ment in [past] cases would be applied to voting dilution 
cases . . . .  It is clear . . . that Judge Alaimo employed the 
constitutionally required standard in his evaluation of the 
present case.” (J.S. 41a) After carefully reviewing the re­
cord and Judge Alaimo’s opinion, the Fifth Circuit con­
cluded that:

[Judge Alaimo’s] order leaves no doubt as to his conclu­
sion that the at-large electoral system in Burke County 
was maintained for the specific purpose of limiting the 
opportunity of the County’s Black residents to meaning­
fully participate therein. (J.S. 53a)

The Court of Appeals independently reviewed the evidence 
and agreed that purposeful, intentional discrimination had 
been proved.

Judge Alaimo’s evaluation of all of the relevant evidence 
was thorough and even-handed. His conclusion that the 
electoral system was maintained for invidious purposes 
was reasonable, and in fact virtually mandated by the 
overwhelming proof. (J.S. 53a-54a)

FACTS

Burke County Georgia, like many southern counties, has 
a history rooted in slavery, discrimination, and plantation 
life. But Burke County is significantly different than many 
counties in the South. The resistance to equal rights for 
Blacks has been worse there than in virtually all other 
Georgia counties (T. 120-21), changes have been slight over 
the past fifteen years (T. 746-47), and one finds there:

The fact that politics was perceived [as] a white man’s 
game, the assumption on the part [of] white citizens that 
black people should be excluded. (T. 551)



3

There has been no instance in the history of Burke 
County where the government has voluntarily allowed 
Blacks to progress politically or economically. Progress has 
occurred only when there has been federal compulsion, and 
it has occurred only over the fierce opposition of the entire 
White community of Burke County. The resistance to 
Black political rights has been especially pronounced. The 
voter registration and election processes have been con­
trolled to this day to minimize Black voting and political 
activity. Before the Voting Rights Act was passed in 1965, 
Blacks were virtually eliminated from voting. (J.S. 71a-72a) 
The voting process then was “ completely arbitrary.” (T. 
554) Blacks who went to register were met with the “ nasty” 
attitude of the officials (T. 152), others were made to drive 
over and over many miles between their residence and the 
one registration location in the County (T. 70-73, 93-96), 
and they had to apply to register on one occasion and come 
back later for a test. (T. 805) If you could not pass the liter­
acy test, which was designed to exclude Blacks from the 
ballot, South Carolina u. Katzenbach, 383 U.S. 301 (1966), 
you would be subjected to Georgia’s infamous “ Question 
and Answer” test. A significant number of Blacks tried that 
test. (T. 812-13) It was designed to ensure their failure, as is 
apparent from reading the questions. (Ga. Laws of 1958, pp. 
269, 279) Not everyone had to take these tests or come back 
to register, of course. “ Certain people were allowed to regis­
ter.” (T. 554) Even some Blacks were allowed to forego the 
“ technicalities” of registration, bypass the literacy test com­
pletely, and be registered on their first trip, so long as they 
had a White man vouch for them. (T. 312-14, 328)

With the passage of the Voting Rights Act, the county 
commissioners first tried to eliminate all but one polling 
place (PI. Ex. 11, T. 42) since the County’s impoverished 
Black residents would then be unable to get to the polls to 
vote. (J.S. 86a) Voter registration was limited to one day, 
with a short Saturday morning time as well. (PI. Ex. 7, 10,
T. 39, 41) The Saturday registration period was later elimi­



4

nated (PI. Ex. 197, T. 200) without approval under Section 
5 of the Voting Rights Act. (PI. Ex. 276, T. 662) Although 
Black registration increased, no polling place was ever ad­
ded to accommodate Blacks. The one polling place change 
that has occurred since 1965, moved the location further 
from the Black community. (T. 687) Armed White police 
and sheriff's men patrol the polling places on election day, 
which Blacks see as a “ threat because they have always 
been a symbol of injustice to most Blacks.” (T. 689, 736-37) 
The county government rarely allows a Black to work as a 
poll official, and never in a position of responsibility. (R. 56, 
414-22, T. 28-29) Whites tried to stop one Black leader 
from voting because his city taxes were allegedly not paid 
(T. 741, 758-59), although there is no legal authority for 
that in Georgia.

To this day, voter registration has been made as difficult 
in Burke County as possible. The effect has been predict­
able. Even with the salutary result of the Voting Rights 
Act, Blacks are still only 38% of the registered voters in the 
County (J.S. 72a), Whites are 62% of the registered voters, 
and Whites are registered at a “ rate” 50% higher per capita 
based on voting age populations.1 By comparison, defen­
dants’ expert witness, Dr. Ira Robinson, testified by deposi­
tion that Blacks have been registered at nearly the same 
rate as Whites “ in most places in the South” since 1968. 
(Robinson Depo. 9, T2 257)

For years, the County allowed voter registration only at 
the courthouse, which is a “ symbol of injustice” to Blacks.

1 The preliminary 1980 census report indicates that Blacks are 53.7% 
of the County’s population, but many Blacks leave Burke County when 
they are adults because it is “ an undesirable place for Blacks” (J.S. 83a 
n.18), so the voting age percentage is lower. That exact figure is not yet 
available in the 1980 census, but assuming the ratios of older Blacks to 
younger Blacks, and older Whites to younger Whites, is about the same 
as in the past censuses, Blacks are 47.6% of the total voting age popula­
tion. (PI. Ex. 59, T. 66)



5

(T. 676). It is where a black man could be lynched (T. 244), 
where no Black has ever worked, other than as maid or 
janitor (T. 298-99), where no Black ever held elected office, 
and where a Black citizen cannot even expect fair treat­
ment from the local courts. (T. 750) The vestiges of segre­
gation are literally everywhere in the courthouse. (J.S. 77a- 
78a; T. 747-48) Blacks do not feel welcome at the court­
house, for obvious reasons. The most educated and outspo­
ken Blacks in Burke County still feel anxious when they 
have to go there. (T. 676) The District Court commented on 
one witness’s testimony:

[If] they keep the courthouse as a central place of regis­
tration, that fact alone will discourage blacks attempting 
to register because of the history of the courthouse as be­
ing a symbol [of] repression. (T. 557)

Rural Blacks are “ most reluctant” to go to the courthouse 
to vote, they expect to be “ antagonized” if they go there, 
and they are “ in fear.” (T. 152-53).

Aside from the psychological deterrent, the use of a single 
registration site in an area as large as Burke County (which 
is 832 square miles and about two-thirds the size of Rhode 
Island (J.S. 91a)), inevitably excludes Blacks from registra­
tion. Defendants’ expert, Dr. Robinson, testified that he 
was “ shocked” by the number of families that had no 
automobiles. (Robinson Depo. 39) Eighty-two percent of 
these families are Black. Id. at 12-13.

By comparison, the City of Waynesboro—which is the 
county seat—has three registration sites to conduct its sep­
arate voter registration. The sites are more convenient to 
Blacks. (T. 757-58) The City covers less than one percent of 
the area of the County. It added its two additional sites af­
ter a consent judgment finding unconstitutional its at-large 
elections. (PI. Ex. 83A, T. 633)



6

Blacks asked for ten years for a registration site in each 
of the 15 voting districts. (T. 733-34, PI. Exs. 197, 198) The 
County lied to them and said it was illegal to register voters 
anywhere but at the courthouse, and Blacks had to ask the 
Secretary of State to intervene. (T. 733-34) Two years 
before trial, three additional sites were finally approved, 
technically. Even this token response was more form than 
substance. The sites were opened only for a few days before 
the 1976 election. The chief registrar, Metts McNair, stated 
“ that will give people four days to register. They can do it 
in that length of time if they really want to.” (PI. Ex. 99, T. 
639)

In fact, even this nominal announced registration did not 
exist for Blacks. A White man by the name of Butler was 
named the deputy registrar in Gough, a predominantly 
black area of Burke County. When Blacks tried to register 
there, Woodrow Harvey testified that Butler told them:

[He] didn’t know anything about the folks that were sup­
posed to register. He said he had not been given any cards 
and he had not been notified that he was going to register 
people at his store. (T. 319-20)

The next day, Mr. Harvey’s wife also went to see Butler.

And she went up to Mr. Butler’s store, he replied to her 
that he didn’t know anything about any cards and he had 
not been told anything about it. (T. 320)

When Mr. Harvey asked McNair about this, McNair gave 
him the run-around. (T. 321)2 At trial, McNair testified 
that Butler “ didn’t understand the process” (T. 952), al­

2 Mr. Harvey testified:

Q. Did you speak to him about registration?
A. He said if we were going to support a certain candidate, we had to 

have a lot more people to support him if we expected to get people 
registered in the City of Gough, that we had to have more people



7

though all Butler had to do was sign the card once it was 
filled out. McNair also testified, contrary to Butler’s repre­
sentations to Blacks, that he did in fact take cards to But­
ler. McNair then testified that he took the cards back from 
Butler in order to give him some of a different color. Mc­
Nair was unable to suggest any excuse for that switch since 
the cards were the same, regardless of color. (T. 952)3

In soliciting Butler to serve as a deputy (T. 954), McNair 
refused the enthusiastic offers of Blacks to serve as deputy 
(T. 724, 955-56), he overlooked a Black store owner in the 
area who is civically active (T. 953-54), and he continued 
the historic refusal of Burke County to ever appoint a sin­
gle Black deputy registrar. (T. 677) The defendants’ wit­
nesses could offer no reason other than race, of course, for 
that fact. (T. 954-56) Blacks had even volunteered to serve 
as deputies without pay since the County first gave them 
the excuse that they had no money to pay for deputies, and 
since this had been done in other Georgia counties. (T. 724) 
By comparison, the County eagerly appropriates funds to 
hire additional employees in order to purge voters. (PI. Ex. 
257, T. 660, 818-20)

The District Court and Court of Appeals properly found 
that the right of Blacks to vote was directly denied in 
Burke County, and that this “ overt conduct was taking

get out and vote, that Mr. Butler didn’t understand how to handle 
the cards.

Q. Did he say anything else about Mr. Butler’s handling the cards?
A. He didn’t think he was capable o f handling them.
Q. My next question is, then why would he give him the cards, if he 

were incapable of handling them? Was there any response to that?
A. He didn’t have any response. (T. 321)

3 McNair testified:

Q. Did you know what the difference was, if any, between the white 
card and the blue card or any other color?

A. No, sir, I didn’t. (T. 952)



8

place even at the time the present lawsuit was filed.” (J.S. 
44a, 81a)4

The state-wide laws of Georgia are also designed to mini­
mize voter registration because they allow registration only 
at fixed sites, which precludes mobile or house-to-house 
voter registration. Ga. Code §34-610(a). Defendants’ own 
witness admitted that there would be no practical problem 
in conducting house-to-house registration in Burke County 
(T. 815), and the evidence was undisputed that this restric­
tion particularly hinders Blacks. (T. 677)

For local elections, Burke County has been a one party 
county since Reconstruction, and Democratic nominees in­
variably win. (J.S. 87a) Although the Democratic White pri­
mary was struck down by this Court 38 years ago, Smith v. 
Allwright, 321 U.S. 649 (1944), the Burke County Demo­
cratic Party remains the “ party [of] elimination of black 
people in any office.” (T. 566) Of the twenty-four members 
of the county governing body of the Democratic Party, only 
one was Black (J.S. 50a), and he was unable to ever attend 
a meeting because they were conducted during business 
hours when he worked. (T. 438, 532-33, 914)

The District Court found that the segregated Democratic 
Executive Committee plays an important role in local polit­
ics. (J.S. 87a) That should be obvious since the party’s 
nominees invariably win local elections, the Committee 
members are the leading party members in the County, and

4 The slight expansion of voter registration, by the addition of three 
sites, occurred only after “ friendly persuasion” by the District Court. 
(J.S. 44a-45a n.13) While the appellants now suggest otherwise (Brief of 
Appellants at 32), they never challenged this finding as clearly erroneous 
below. Their statement of the events ignores the fact that the registra­
tion sites were not actually made operative when they claim, they were 
only open for several days initially, Blacks were not even allowed to reg­
ister at one of the sites, and the sites had not been permanently ap­
proved even by 1978. (PI. Ex. 197, 198).



9

elected officials almost always come from that group. Every 
elected official who was asked at trial testified that he was a 
member or officer of the Burke County Democratic Com­
mittee. (T. 437-39, 474, 532, 880, T2 98-99, 137-38)

The Democratic Executive Committee has always oper­
ated as a self-perpetuating “ club.” Members are either ap­
pointed to vacancies by the other members (T. 437-39), 
often taking their fathers’ position (T. 437, T2. 150), or 
they are solicited by the members to run for election, inva­
riably without opposition. (T. 913) The Democratic Com­
mittee is virtually unknown in the Black community. (T. 
692) Until recently, the Democratic Party conducted the 
primary elections in the County. (T2 99) The Party still 
handles the qualifying process for individuals who want to 
run for its executive committee posts, and for individuals 
who want to run in the primary to seek nomination for pub­
lic office. (T. 884, 894-95) The procedure for qualifying to 
run in the democratic primary is a virtual secret. As the 
party chairman testified, he “ can tell them how it is done” 
if anyone asks how to qualify. (T. 889-90) They would 
“ have to see the secretary of the Democratic executive com­
mittee.” (T. 884) Blacks would have no idea who to ask, 
however, since they are excluded from the Democratic 
Party, and few have even heard of the Executive Commit­
tee. (T. 692) The Committee has published short legal ad­
vertisements that announce elections, but they are hardly 
designed to give any real public notice of the elections or 
qualifying process. They are little formal ads contained 
among foreclosure notices and the like, and, as expected, 
Blacks have not seen the ads. (T. 737, 894, D. Ex. 16, 17, T2 
262) The Committee has ignored state and national party 
rules on fair representation, and it received no input from 
Blacks when it set up districts for electing its members in 
1976, as required by State rules. (J.S. 87a-88a, T. 890-93) 
The districts adopted by the Committee all had White vot­
ing majorities. (T. 534-42, 891-92)



10

There are other reasons why Blacks are not registered in 
Burke County, each rooted in past and present discrimina­
tion and racial oppression. Blacks still have a tremendous 
amount of fear, both of physical harm and of economic re­
taliation, that might be experienced were one to enter the 
“ white man’s game” of politics. In the few years before this 
case was filed, Black people were shot at in Burke County 
for seeking equal rights (T. 113, 125-26, 134, 682-83), they 
received bomb threats and harassing phone calls, and they 
were the subject of physical harassment. (T. 206-07, 671-73, 
684) Appellee Herman Lodge, received “ some very nasty” 
phone calls simply because this case was filed. (T. 672-73) 
Blacks must operate virtually “ in secret” to avoid the possi­
bility of reprisal for political activity. The Burke County 
Improvement Association cannot maintain membership 
records for fear of reprisals if they were discovered. (T. 670, 
709)5 Some Blacks still fear their ballot is not secret be­
cause of past practices of White voting officials. (T. 689-91)

Blacks in Burke County suffer a precarious economic ex­
istence that is “ in part caused by past discrimination.” (J.S. 
83a) Their poverty, the fact that Whites control nearly all 
the money and jobs in the County, and the history of severe 
oppression leaves many Blacks afraid to simply register to 
vote. They fear repercussions they cannot afford.6 Fear has

6 One witness testified:

Well, we did not keep membership records because of the fact that 
a lot of people in there would be vulnerable, I guess, to reprisal, and 
they were afraid to, you know, to help but, afraid because of certain 
positions, that is, the teachers were real vulnerable and in a real vul­
nerable position during this period. (T. 670)

6 One witness testified:

There was fear in regard to registration . . . .  [T]he black popula­
tion, o f course, o f Burke County was a population which had [a] great 
degree of dependency which is a political thing throughout the plan­
tation society, growing out of the low income, the under-employment 
and such phenomenon as that, as well as their vulnerability to white



11

always been pervasive in Burke County, and it remains so 
to this day. (T. 115, 120, 126, 134, 136-37, 152-53, 177-78, 
551-53, 555, 670-77) Their poverty has formally excluded 
them from office since there has been a “ freeholder” re­
quirement to serve as county commissioner since 1911. (Ga. 
Laws 1911, p. 390; Ga. Laws 1931, p. 400; J.S. 65a n.2, 75a)

Both plaintiffs’ and defendants’ witnesses suggested that 
the depressed Black educational levels also contributed to 
their under registration, and lack of access to the political 
process. (T. 675-77, 912) That is obviously a product of dis­
crimination, as the defendants concede. (T. 912)

The at-large election device itself directly minimizes 
Black political activity. Since blacks cannot win in a 
county-wide election, there is no reason to run, and they are 
further alienated from the political process. There is little 
reason to vote since the choice among the white candidates 
is just a matter of choosing the “ lesser of two evils.” (T. 
694)

The county commission controls public affairs in Burke 
County by appointing individuals to many boards, authori­
ties, committees and other offices, including the elections 
board. Blacks are rarely appointed (R. 57, 88-94, T. 30, J.S. 
78a), and when they are, federal funds and Title VI of the

employers and what have you. And the apparent acceptance by whites 
of the behavior towards blacks o f intimidation by whites towards 
blacks . . . .

They would have this feeling of intimidation because of their vulner­
ability in terms of jobs as time went on and because of welfare depen­
dency. (T. 552)

Another witness testified:

Now, there is fear of economic reprisal from you know, like people 
say, well, I’m not going to vote because if I go to register, my welfare 
check might be cut off. (T. 675)



12

1964 Civil Rights Act are the cause. (E.g., PI. Ex. 28) Defen­
dants admit that there are no particular qualifications for 
these positions, that Blacks are as equally qualified to serve 
on these boards as Whites, and that there is no objective 
reason why Blacks had not been appointed. (T. 399-402, 
445, 478) The commissioners solicit Whites for the posts (T. 
399-400), but overlook Blacks even when they seek appoint­
ment. (T. 184) As one commissioner testified, Blacks are 
not appointed because: “ That’s just the way things are.” (T. 
296)

The exclusion of Blacks from these boards reflects the 
firm refusal of the county commissioners to accord Blacks 
any role in the political process. The boards are important 
elements of government, they control many public opera­
tions, and they make policy recommendations to the county 
commissioners. (T. 401) The exclusion of Blacks from these 
posts eliminates them from having input into the operation 
of much of government. (T. 401-02) Their exclusion also 
undercuts the opportunity for Blacks to participate in polit­
ics. They are denied the public experience and exposure 
that is an integral part of politics, and they are deterred 
from political activity. One witness testified:

If it is not by appointment of black people to government 
agencies, you remove from the activism of a community 
just a special kind of reward. On that, I think it has an 
effect upon the motivation to continue. (T. 565a)

The commissioners’ refusal to appoint Blacks tells the 
entire community, both Black and White, that white 
supremacy remains the policy of Burke County. It is “ a 
general signal to the overall community about how their 
affairs are to be conducted. . . . ” Id. As the District Court 
concluded:

[The] Commissioners’ failure to appoint Blacks to the 
committees and boards in sufficient numbers, or a mean­



13

ingful fashion, is without doubt an unfair denial of access 
of input into the political process. (J.S. 89a)

This evidence is very telling. Since the commissioners do 
not feel Blacks are suited to hold these appointed positions, 
they would hardly believe that Blacks should serve on the 
commission itself.

Much other evidence is also telling about the attitudes 
and motivations of the county commissioners. The entire 
theory of the defense in this case, in fact, sounded like the 
traditional justifications for White supremacy. The defen­
dants and other public officials testified that it was not the 
at-large election system or other government action that ex­
cluded Blacks from the political process, but the fact that 
Blacks “ do not take an interest in [politics]” (T2 166), that 
they “ just have an interest in other things” (T2 169), that 
they “ wouldn’t think that [Blacks] would be interested in 
politics” (T. 799), and that Blacks do not register because 
of “ indifference, don’t care about politics probably.” (T. 
807) As the long-time state legislator from Burke County 
stated:

They don’t seem to care about [the] political process, I 
think they work hard and they worship and they’re very 
interested in their relations and affairs, but they do not 
take an interest in the political process. (T2 166)

To casually dismiss the historic elimination of Blacks from 
the political process because they are “ indifferent,” is strik­
ingly similar to the historic justification for White 
supremacy—that Blacks are not political beings, and that 
one would not expect them to be holding office or an ap­
pointed position with a board. Since Burke’s Whites believe 
that Blacks are not political beings, it is easy to rationalize 
the exclusion of Blacks from the elective process.

The county commissioners, who are the most powerful 
figures in the County politically (T. 215-16), demonstrated



14

their lack of concern for, and outright hostility towards, 
Blacks’ civil and political rights in other ways. For example, 
while the County employs Blacks only in menial positions 
(J.S. 75a, 85a, 94a)— and while those Blacks who are em­
ployed are usually hired only where there is federal money 
and the compulsion of Title VI of the Civil Rights Act (J.S. 
76a)—the county commissioners see no problem with this 
situation. Commissioner Buxton testified that it was “ obvi­
ously” the custom to rarely employ a Black person in 
county government, and “ that that has been the situation 
during the last eight years during the time that [he has] 
been County Commissioner.”  (T. 299) Commissioner 
Marchman testified that the County doesn’t “ have any hir­
ing policy” (T. 240), that they have never issued any “ pol­
icy suggesting that Blacks be hired equally” because they 
“ never have realized a problem in that area,” and he didn’t 
“ see any problem . . .  in terms of black employment . . . 
with the County Government.” (T. 241)

Commissioner Marchman publicly stated that he “ could 
care less” about having a swimming pool built at the public 
park that is used by Blacks, although the White pool in the 
County, which is now owned by the Jaycees, was given to 
them by local government to avoid desegregation. (T. 232- 
33) Two commissioners indicated their present belief in 
segregation. (T. 257-59, 264-66, 279) Another testified that 
desegregation might conceivably be accepted in Burke 
County in another thirty years (T. 378), and another testi­
fied that Blacks were referred to as “ niggers” in county 
commission meetings. (T. 242-44) Apparently acknowledg­
ing the absolute separation of the races in Burke County, 
one commissioner testified that “ I can’t speak for them 
[Blacks].” (T. 388) Another testified: “ I’m speaking as a 
white person, but I don’t know what a black person thinks.” 
(T. 309) This same man, when asked if this hindered his 
ability to represent Blacks, testified: “ I don’t get you.” (T. 
308-09)



15

The chairman of the county commission believes that 
Black people inherently trust Whites more than they do 
Blacks (T. 389-90), a notion that is part of traditional 
White supremacist thinking. In the county courthouse, 
which is under the control of the commissioners, the “ nig­
ger hook” still hangs in place (J.S. 77a), the “ colored” and 
“ white” signs have never been eradicated from the court­
house restroom doors (J.S. 78a), the seating in the court­
room remains segregated (T. 747-48), and the judicial pro­
cess there hands out justice unequally. Crimes against 
Blacks are barely punished, while crimes against Whites are 
punished most severely. (T. 750) Notwithstanding the ex­
ceptionally high degree of segregation and discrimination 
that remains in Burke County, the commissioners believe 
that nothing should be done about it. (T. 256-57) The com­
missioners believe that nothing need be done about racial 
discrimination because “ the Federal Government took care 
of that.” (T. 299-300)

The commissioners’ adherence to segregation and support 
of a status quo which refuses to accord Blacks full civil and 
political rights, is naturally a reflection of the White com­
munity that elected them. In Burke County, the Whites 
have always been “ in tremendous horror of blacks coming 
into power there” (T. 115), the changes from the old pat­
terns and attitudes of segregation have been slight over the 
past fifteen to twenty years (T. 213, 562), and Whites have 
vehemently opposed every effort by Blacks to move for­
ward. The battle over equal education is typical. Before this 
Court’s 1954 desegregation decision, Black education was 
dramatically inferior. The per student value of books and 
teaching aids in the Black schools was one-tenth that in the 
W’hite schools, the per student plant maintenance and oper­
ating budget for the White schools was thirty times that in 
the Black schools, the per pupil investment in White 
schools was ten times that in the Black schools (PI. Ex. 278, 
pp. 2, 3, 14, 15, 16, & 17, T. 662), and Blacks attended one- 
room schoolhouses that contained grades one through seven



16

in a single room. The facilities were “ vastly different” for 
Whites and Blacks. (T. 666) Until the early 1960’s, the 
County closed the Black schools down until mid-October to 
ensure that Blacks would be available to pick cotton for the 
White farmers. (T. 667)

In the 1960’s the Burke County delegation to the State 
commission on school desegregation “ presented the most 
overwhelming vote [of all the delegations] in favor of . . . 
closing public schools” to avoid desegregation (PI. Ex. 126, 
T. 643). The county officials were unanimous that Burke 
County “ would never integrate” id., the county commis­
sioners resolved that there should be a private school to 
avoid desegregation (PI. Ex. 31, T. 48), and they called 
upon the government to pay tuition “ to the parents who 
send their children to Burke Academy, Inc.” (PI. Ex. 32, T. 
49). The County received national attention for its vehe­
ment response to Brown. (PI. Ex. 128, T. 643) When a 
school desegregation suit was filed in 1968, the chairman of 
the board of education announced that the schools would 
remain segregated at least until some order “ by the Court,” 
and the county commissioners announced that they were 
“ legally and morally obligated” to pay attorneys’ fees in de­
fending the segregated system. (PI. Ex. 89, T. 635)

Because of the extreme racial hostility in Burke County, 
freedom of choice was a complete failure there. Not a single 
White went to a Black school, and very few Blacks had the 
courage to cross over. (PI. Ex. 147, 226-28, T. 647) Of those 
that did, one was nearly assassinated when she lay sleeping 
in her bed at home. (T. 133, 124-26, 134, 682-83) Only one 
White person in the entire County supported desegregation, 
and he was shunned and harassed because of it. (T. 206-07) 
The school board tried to avoid full desegregation by mak­
ing all Black schools vocational schools, all White schools 
college prepatory, and tracking the students based on pre- 
school-age tests. (PL Ex. 156-57, T. 648)



17

The private Edmund Burke Academy was begun to avoid 
desegregation. The local bar association volunteered its ser­
vices to the Academy as a “pro bono” project. (PI. Ex. 129, 
T. 644) Its list of incorporators included most of the public 
officials in the County, including some of the appellants in 
this case. (PI. Ex. 131, T. 644, 470-75) The Academy began 
operations with a building given it by the County Board of 
Education (PI. Ex. 132, 215, T. 645, 56), which still allows 
the Academy to use its facilities so long as the federal gov­
ernment does not interfere. (PI. Ex. 173, T. 650) The State 
provides books (T. 429-30), the county commissioners per­
sonally serve on the Board of Directors and send their chil­
dren there, and appellant Rogers has given the school six 
acres of land for a nominal sum. (T. 266, 375-76, 470-77, 
486-87, PI. Ex. 211, T. 655) As the local newspaper editori­
alized about the Burke Academy:

[We] are no longer cursing the Supreme Court, we are 
now standing to one side and watching them butt their 
heads against a stone wall. (PI. Ex. 128, T. 643)

The educational picture has not improved today. Most 
Whites who can afford the tuition still attend Burke Acad­
emy (T2 88, PI. Ex. 95, T. 637), the school superintendent 
still rails about the “ assinine” desegregation decisions of 
this Court (PI. Ex. 237, T. 658), many activities are no 
longer carried on in the public schools since integration (T. 
698-99), and private facilities such as the local White coun­
try club are no longer available for the students to use. (T. 
697-98) As the District Court found:

[The] unbroken history of an inferior formal education 
has had and does now have a strong tendency to preclude 
Blacks’ effective participation in the political process. 
(J.S. 84a-85a)

The fierce resistance to school integration typifies race re­
lations in Burke County. Unlike most counties in the South, 
no biracial committee was formed to deal with racial



18

problems (T. 420), Blacks and Whites had never even met 
before 1967 to talk about racial problems, (T. 117), and 
there was much noncompliance with federal desegregation 
laws. In the 1970’s, only one doctor in Burke County had 
desegregated waiting rooms, the county hospital was still 
segregated, the County Health Department treated Blacks 
so badly that some turned down its free services (T. 194- 
200, 216-17, PI. Ex. 223), and White doctors refused to cer­
tify Black patients as disabled when they sought disability 
benefits. (T. 123-24) When the 1964 Civil Rights Act was 
passed, the owner of the one downtown lunch counter 
closed his business rather than integrate (T. 684), the movie 
theater remained segregated a decade after the 1964 Civil 
Rights Act, and when Blacks finally did try to leave the bal­
cony and sit downstairs, state troopers had to intervene. (T. 
685-86, 732-33) There are two laundromats in Burke 
County, today, one Black and the other White. The White 
one is situated prominently one half block from the County 
Courthouse (T. 321-22), and Blacks are allowed there today 
only if they go to wash a White person’s clothes. (T. 321-22, 
332-33, 740)7 “ Whites only” signs are displayed openly on 
houses for rent (T. 334), deeds are sometimes still filed re­
flecting whether the property is Black or White (PI. Ex. 
212, 655), and poor Whites will not even avail themselves of

7 Just a few days before trial, a black woman entered the white laun­
dromat. She testified that:

[The man in charge] stretched his arms out then and said, don’t you 
see that sign on the door? I said, yes, I see that it says private. So, 
what does that mean? He says, that means if you’re colored, you can’t 
use the wash house. There’s one on Eighth Street, one on the other 
side of the railroad tracks, why don’t you go over there and use that 
one. And I said I prefer to use this one. So then he said, the way you 
colored people acted a long time ago, we were able to deal with you, 
but now you’re pulling all kinds of things and stuff. So, I said, if I 
wash my clothes here what will happen and he said, if you just hang 
around here until the boss man gets back, you will see what will hap­
pen to you. (T. 333) (emphasis added)



19

government assistance if it means associating with Blacks. 
(T. 141-42, 340)

Segregation in Burke County remains remarkably en­
trenched. All private organizations are segregated (T. 276- 
77, 233-37, 279-83, 296-97, 309-11), there is no cross-race so­
cial mixing (T. 238-39), and Blacks do not travel in White 
areas even though Burke County is rural and Black and 
White neighborhoods are close. (T. 323).

Segregation has a tremendous impact on politics in Burke 
County. It nurtures the pattern of racial bloc voting which 
ensures that Blacks cannot win at-large elections. (J.S. 46a) 
Blacks are entirely foreclosed from participating in the po­
litical and social processes which determine who the politi­
cal leaders will be, Whites personally know prospective 
White candidates, and “ [w]hen this factor is combined with 
the virtual segregation of all social, religious, and business 
organizations . . . , the result obtains that Blacks are shut 
out of the normal course of politics in this tightly-knit rural 
county.” (J.S. 88a-89a) As the Court of Appeals concluded: 
“ Person-to-person relations, necessary to effective 
campaigning in a rural county, [are] virtually impossible on 
an interracial basis because of the deep-rooted discrimina­
tion by Whites against Blacks.” (J.S. 49a-50a) Burke 
County is a “ continuation of the old southern pattern of 
keeping Blacks out of politics.” (T. 587)

The District Court found that Blacks are completely ex­
cluded from the political process. The Court commented:

It is the Court’s impression that Blacks of Burke County 
desire, and desperately need, to play a meaningful role in 
their local government; to be able to work within the sys­
tem, rather than to be forced to attack it from without. 
The Commissioners have been singularly unresponsive to 
this need. (J.S. 78a)



20

Blacks have been “ forced to attack [the system] from with­
out” by court orders and economic boycotts.8 Blacks were 
excluded from the grand juries and trial juries in Burke 
County until a federal court order was entered in 1977. (J.S. 
75a, PI. Ex. 82A, T. 632-33) Blacks were unconstitutionally 
excluded from elections in the City of Waynesboro until the 
at-large election system was eliminated by court order in 
1977. (Pl. Ex. 83A, T. 633). Excluded from meaningful po­
litical input by at-large elections, their sole voice has been 
to organize economic boycotts. (T. 668-69).

It is clear that county-wide elections exclude Blacks from 
political office. No evidence suggested that a Black could 
get elected. The local state legislator, who is also the Secre­
tary of the Democratic Committee (T2 137-39), admitted 
that a Black could not be elected county-wide. He testified:

Q. . . . [Y]ou knew full well that Burke County would 
never elect a black? You knew that, didn’t you?

A. Yes. . . . (T2 168)

There was no substantial evidence that at-large elections 
served any other function in Burke County. One of the de­
fendants’ witnesses was asked to compare district and at- 
large voting in Burke County. The “ only reason” he could 
think of to distinguish the two was race and a desire to pre­
fer one race over the other.9 (T2 101-02) If the purpose of a 
district system would be to give “ an unfair advantage” to

8 “ Blacks have been forced outside the local government for relief. 
They went to the courts to seek school and Grand Jury integration 
• • • > an<i to the streets to ‘agitate,’ as defendants have said, to get 
lighting at the Davis Park Ballfield. Outside pressure had to come to 
bear before the county budged.”  (J.S. 81a)

9 Q. Do you have any preference yourself as between the present
system of countywide elections and the elections by the voters 
only in a district of the county?

A. I would prefer it being like it is.
Q. Why is that?



21

Blacks — by allowing them some participation in the politi­
cal process — maintaining at-large elections must certainly 
have the purpose of denying Blacks that “ advantage.”

To determine whether there were any practical draw­
backs to a district system in Burke County, two of the 
county commissioners were asked what problems they 
would face if they were drawing up a district election plan. 
They saw none. They just testified that the districts would 
have to have equal populations. (T. 422-24, 462) Commis­
sioner Robert Webster testified that at-large elections 
served no purpose in comparison to district elections.10 
Some of the defendants’ witnesses attempted to offer one 
justification or another for county-wide elections. They 
were not convincing. Judson Thompson, a past commis­
sioner and Chairman of the Democratic Party, testified that 
it was impossible to draw districts with equal populations 
in Burke County. (T. 883) Mr. Thompson’s testimony was 
an apparent effort to fabricate a pretext for at-large elec­
tions. It is easy to draw election plans with equal popula­
tion districts, and neither plaintiffs nor defendants had any 
difficulty in submitting district plans to the Court. (E.g., PI. 
Exs. 300, 301)

Another witness suggested that there might be a problem 
in drawing districts because they could cut across the mili­
tia lines in the County. But the same witness admitted that 
there were no problems where state legislative districts cut 
across the militia district lines (T2 114), district election 
plans could be drawn that would hardly deviate from the 
militia districts (PI. Ex. 301), Georgia law allows for elec­

A. Well, the only reason I can think of doing a district would be to 
fix the districts at such gerrymandering which would bring 
about an unfair advantage to one race. (T2 101-02)

10 Q. It is your testimony, isn’t it, that in the event the county was 
divided into districts, it would not make any difference at all? 

A. I think I’ve said that, yes. (T. 484)



22

tion districts to be modified so that they do not have to 
correspond to militia district lines, Ga. Code §34-702, and 
there were any number of other ways of accommodating a 
change to districts.

Appellants offered testimony that county-wide voting 
might avoid “ political deals and trades” in Burke County, 
but these witnesses were not familiar with any of the dis­
trict systems in operation in Georgia, and their testimony 
was admittedly speculation. (T. 390-91, 451, 909-11) More­
over, since Blacks would become part of the political pro­
cess under a district system, since they would enjoy full po­
litical rights and public office then, and since they would be 
able to deal from an equal basis with Whites, there would 
in fact be a new breed of “ political deals and trades” in 
Burke County. Since Whites “ generally . . . have the same 
interests” in Burke County (T2 141), the political dealing 
the defendants fear must be solely what would occur be­
tween Whites and Blacks. To justify at-large elections be­
cause they preclude “ political dealing”  in Burke County, is 
virtually to admit that their purpose is to exclude Blacks 
from the political process, to maintain the status quo of po­
litical domination by Whites, and to eliminate any Black 
voice in county government.

The District Court concluded that at-large elections were 
maintained in Burke County for invidious purposes. Judge 
Alaimo found that voter confusion would not be a problem 
with district elections, and he concluded that it was so sim­
ple to institute district elections that it could be done in a 
few weeks time. (J.S. 98a) The Court noted that the Burke 
County Democratic Party elected its governing board from 
districts, that this district scheme created no problem what­
soever, and that other local governments elected by dis­
tricts in Georgia appeared to function perfectly well. (J.S. 
91a) The Court concluded that “ defendants are heedless of 
the needs of the Black community” (J.S. 95a), that Burke 
County’s representatives “ have retained a system which has



23

minimized the ability of Burke County Blacks to partici­
pate in the political system” (J.S. 90a), that the “ Commis­
sioners have been singularly unresponsive to this need” of 
Blacks to participate meaningfully in local government (J.S. 
78a), that the insensitivity of defendants to the needs of the 
plaintiff class “ exists because of invidious racial motiva­
tions” (J.S. 82a), and that the at-large election process in 
Burke County “ has been subverted to invidious purposes.” 
(J.S. 90a) The Court of Appeals affirmed in all regards, 
stating that:

Judge Alaimo’s evaluation of all the relevant evidence was 
thorough and even-handed. His conclusion that the elec­
toral system was maintained for invidious purposes was 
reasonable, and in fact, virtually mandated by the over­
whelming proof. (J.S. 53a-54a)

The events which transpired after the trial court’s judg­
ment dramatically confirm Judge Alaimo’s conclusion. A 
special election was ordered for November, 1978, and it in­
cluded five districts with two that had a majority of Black 
registered voters. One Black qualified to run in each of the 
five districts, one White qualified in three of the districts, 
and two Whites qualified in the other two. (J.S. 63a, 97a, 
Stipulation Filed October 27, 1981) Although this Court 
stayed that order before the election occurred, one of the 
white candidates dropped out, before the stay, from each of 
the two districts where there was another white candidate 
running. (Stipulation, supra) This is the only instance in 
the history of Burke County where one can see what hap­
pens under district elections, as compared to at-large elec­
tions. Under districts, Blacks are involved in the political 
process and run for office. Under an at-large system, none 
are even on the ballot. Even more telling is the manipula­
tion by the White candidates to minimize the possibility of 
a Black being elected. The obvious explanation for the two 
Whites dropping out of the election, is that they did not 
want to split the White vote between themselves and the



24

other White candidates, which would have given the Black 
candidates a good chance of election. Whites in Burke 
County would rather forego public office themselves, than 
make it possible for Blacks to get elected.

SUMMARY OF ARGUMENT

The District Court and the Court of Appeals concluded 
that at-large elections were maintained in Burke County for 
the purpose of discriminating against Blacks. That conclu­
sion was based on a tremendous amount of evidence from 
which the lower courts inferred a discriminatory purpose. 
The evidence was mostly circumstantial, and circumstantial 
evidence is sufficient to prove motive in a Fourteenth 
Amendment case, just as in all other areas of law where mo­
tive is relevant. The evidence here is more than sufficient to 
support the judgment below, and the findings are surely not 
clearly erroneous.

Appellees also rely on Section 2 of the Voting Rights Act 
of 1965 as an alternative basis for affirmance. Section 2 ap­
plies in cases where districting schemes are challenged, and 
it is not necessary to prove intentional discrimination in a 
Section 2 case. It is sufficient, at the very least, to prove 
that the challenged system perpetuates the effects of past 
discrimination.

Appellees also rely on the Thirteenth and Fifteenth 
Amendments. Neither requires proof of a specific intent to 
discriminate. The Thirteenth Amendment is broader than 
the Fourteenth Amendment in a number of ways, most im­
portantly because it reaches purely private conduct. The 
Fifteenth Amendment necessarily provides a stronger cause 
of action for a plaintiff in a vote dilution case, than does the 
Fourteenth Amendment, because the Fifteenth Amendment 
applies specifically and exclusively to voting. Any other in­
terpretation of the Fifteenth Amendment would render it 
meaningless.



25

ARGUMENT

I. Purposeful Discrimination Under the Four­
teenth Amendment Was Proved In This Case

A. The Evidence of Intentional Discrimi­
nation In This Case Entirely Supports 
The Lower Courts’ Conclusion That At- 
Large Elections Are Maintained In 
Burke County For The Purpose of 
Discrimination.

The issue in this case is straight-forward. It is whether 
indirect evidence will support a court’s conclusion that an 
election procedure is maintained for discriminatory reasons, 
or whether direct proof of discriminatory intent is required. 
The Court of Appeals held that indirect proof was 
sufficient.11

[I] t is unlikely that plaintiffs could ever uncover direct 
proof that such system was being maintained for the pur­
pose of discrimination . . . .  Circumstantial evidence, of 
necessity, must suffice, so long as the inference of discrim­
inatory intent is clear. (J.S. 8a)

This Court has expressly held that circumstantial evi­
dence may be used in the overall inquiry. Arlington 
Heights v. Metropolitan Housing Development Corp., 429

11 The Court of Appeals reasoned:

We think it can be stated unequivocally that, assuming an electoral 
system is being maintained for the purpose of restricting minority ac­
cess thereto, there will be no memorandum between the defendants, 
or legislative history, in which it is said, “ W e’ve got a good thing go­
ing with this system; let’s keep it this way so those Blacks won’t get to 
participate.”  Even those who might otherwise be inclined to create 
such documentation have become sufficiently sensitive to the opera­
tion of our judicial system that they would not do so. Quite simply, 
there will be no “ smoking gun.” (J.S. 8a n.8)



26

U.S. 252, 266 (1977). As Justice Powell wrote in Arlington 
Heights, it would be an “ extraordinary” case where a legis­
lator would take the stand to testify about his intentions. 
Circumstantial evidence is therefore necessary, and courts 
should focus largely on extrinsic factors, as this Court indi­
cated in Personnel Administrator v. Feeney, 442 U.S. 256, 
279 n.24 (1979).12 In all other areas of the law, evidence of 
the sort offered here would be far more than necessary to 
support the judgment. The rule on sufficiency of the evi­
dence should be no different in this case. Compare FPC v. 
Florida Power & Light, 404 U.S. 453, 468-69 (1972); 
Michalic v. Cleveland Tankers, 364 U.S. 325, 330 (I960); 
Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 508 n.17 
(1957).

The District Court here complied fully with this Court’s 
purposeful discrimination decisions. After reviewing all of 
the evidence, the Court concluded that “ the present scheme 
of electing county commissioners, although racially neutral 
when adopted, is being maintained for invidious purposes.” 
(J.S. 71a) The Court found that Blacks were “ desperate to 
play a meaningful role in their local government,” that the 
commissioners failed “ to view problems with racial impar­
tiality,” that Blacks are given the “ run around” once they 
make their needs known, that defendants had refused “ to 
make Blacks a viable part of the county government,” that 
the defendants’ insensitivity “ to the needs of the plaintiff 
class exists because of invidious racial motivations,” that 
“ in the past, as well as in the present, plaintiffs have been 
denied equal access to the political process,” that “ Blacks 
are shut out of the normal course of politics in this tightly- 
knit rural county,” that several factors, “ all of which seem 
to be related to past discrimination, operate unfairly to ex-

12 “ Proof of discriminatory intent must necessarily usually rely on ob­
jective factors . . . .  The inquiry is practical. What a legislature or any 
official entity is up to may be plain from the results its actions achieve, 
or the results they avoid.” 442 U.S. at 279 n.24.



27

elude Blacks from the normal course of personal contact 
politics in Burke County,” that Blacks have not had “ mean­
ingful political input,” that the government has “ retained a 
system which has minimized the ability of Burke County 
Blacks to participate in the political system,” and that 
Blacks “ unfairly have been denied a role in the political 
destiny of Burke County.” (J.S. 78a-96a)13

Although the District Court did not have the benefit of 
this Court’s decision in City of Mobile u. Bolden, 446 U.S. 
55 (1980), the Court followed the earlier intent decisions. 
As the Court of Appeals stated:

A court that correctly anticipated how the intent require­
ment in past cases would be applied to voting dilution 
cases, as in Bolden, could correctly interpret and apply 
the law, without the benefit of [Bolden]. This is precisely 
the type of foresight demonstrated by Judge Alaimo in 
the present case. . . .  It is clear . . . that Judge Alaimo 
employed the constitutionally required standard in his 
evaluation of the present case. (J.S. 41a)

Judge Alaimo discussed and considered Zimmer kinds of 
evidence, as he is authorized to do under Mobile, but he 
made findings of intentional discrimination that were based 
on the entire record. After carefully reviewing the record 
and Judge Alaimo’s opinion, the Fifth Circuit concluded 
that:

13 Commenting on the county commissioners’ refusal to allow Blacks 
any meaningful participation in the political process, the refusal to ac­
knowledge other legitimate interests and needs of Black citizens, and the 
commissioners’ dedication to preserving an all-White political structure 
with the at-large election system, the Court found: “ The Commissioners’ 
lack of responsiveness is merely an extension of a culture which could 
view the vestiges of slavery with unseeing eyes. Such indifference attests 
to the Commissioners’ realization of the Blacks’ political impotence, both 
individually and collectively.” (J.S. 95a)



28

[Judge Alaimo’s] order leaves no doubt as to his conclu­
sion that the at-large electoral system in Burke County 
was maintained for the specific purpose of limiting the 
opportunity of the County’s Black residents to meaning­
fully participate therein. (J.S. 53a)

The Court of Appeals independently reviewed the evidence 
and agreed that purposeful, intentional discrimination had 
been proved. The Court characterized the evidence of in­
tentional discrimination as “ overwhelming.”  (J.S. 54a)

The Fifth Circuit followed Justice Stewart’s opinion and 
rejected the Zimmer test as a categorical way of determin­
ing the constitutionality of at-large elections. In rejecting 
Zimmer, Justice Stewart wrote that the trial court must fo­
cus on the ultimate factual issue—what is the purpose that 
motivates the adoption or retention of the scheme? The 
Court of Appeals plainly recognized this requirement and 
the limits of Zimmer evidence.14 (J.S. 35a)

At the same time, the Court of Appeals held that the 
Zimmer criteria might have some evidentiary relevance in 
determining purpose, as the Mobile plurality recognized, 
but that other criteria and evidence must be considered as 
well. The Court held that the Zimmer criteria may provide 
some evidence of intent, but they were “ not dispositive on 
the question of intent.” (J.S. 39a) That is precisely Justice 
Stewart’s view in Mobile. 446 U.S. at 73. The Court of Ap­

14 The Court o f Appeals held that:

Though four Justices were satisfied with the Zimmer criteria [in 
Bolden], five Justices clearly rejected the exclusive use of those crite­
ria for inferring purpose or intent. We conclude that they rejected the 
use of Zimmer criteria to the extent that [the Fifth Circuit], in 
Bolden, presumed the existence of a discriminatory purpose for the 
proof of some of those factors. We believe the Court rejected the use 
of such a quantitative weighing approach, requiring instead an inde­
pendent inquiry into intent. (J.S. 35a)



29

peals also followed the plurality opinion and held that the 
Zimmer factors were relevant only insofar as they might 
elucidate the basic question of purpose (J.S. 35a), and that 
purpose must be decided “ only in light of the totality of the 
circumstances.” (J.S. 40a)

In assessing the District Court’s opinion under the intent 
test, the Court of Appeals concluded:

[A] careful reading of Judge Alaimo’s order leads us in­
escapably to the conclusion that he made the type of in­
dependent inquiry into intent that we have said is neces­
sary. (J.S. 53a)

Thus, while the appellants’ Brief reads as if the Court of 
Appeals willfully disregarded Mobile, appellants ignore the 
conscientious effort of the Court to implement the Mobile 
ruling. The appellants’ only real complaint here is with the 
facts that have been found against them, but as the Court 
of Appeals concluded after reviewing the record:

Judge Alaimo’s evaluation of all the relevant evidence was 
thorough and even-handed. His conclusion that the elec­
toral system was maintained for invidious purposes was 
reasonable, and in fact, virtually mandated by the over­
whelming proof. (J.S. 53a-54a) (Emphasis added).

As Chief Justice Burger has written, the Justices of this 
Court should defer to the trial court when intentional dis­
crimination has been found, even if they might “ have seri­
ous doubts as to how many of the [defendants’ actions] can 
properly be characterized as segregative in intent and ef­
fect.”  Columbus Board of Education v. Penick, 443 U.S. 
449, 468 (1979). That rule is even more appropriate here 
than in a school desegregation case, because the “ extremely 
unique factual context for decision [puts the trial court] in 
a far better position to evaluate the local political, social, 
and economic realities.”  (J.S. 40a) Such deference is espe­
cially warranted in this case since the trial judge had served



30

as a county commissioner in another county, and he was 
uniquely qualified to determine the intent issue here.

The appellants’ factual contentions should not be heard 
here for another reason. They did not challenge any of the 
findings as clearly erroneous in their appeal to the Fifth 
Circuit, and they cannot be raised now. Moreover, any chal­
lenge on the basis of the clearly erroneous test would be 
frivolous. The circumstantial evidence of intent was not 
merely substantial, it was overwhelming. (J.S. 54a)

The impact of the at-large system in Burke County is “ an 
important starting point” in determining purpose. The im­
pact here is “ stark,” so that evidence is particularly rele­
vant. 429 U.S. at 266. Defendants admit that Blacks cannot 
be elected county-wide (T2 168), and Blacks are deterred 
from even running for office because of the impossibility of 
winning. There has been an unbroken history of opposition 
to political rights for Blacks. Virtually all Blacks were kept 
from the ballot until the federal government enacted the 
Voting Rights Act in 1965. The county commissioners then 
tried to eliminate all of the polling places in the County but 
one, voter registration was made inaccessible, county offi­
cials lied to Blacks who sought additional registration sites, 
courthouse registration alone was allowed until the federal 
court pressured the County into adding additional sites, 
and Blacks were getting the run around in the voter regis­
tration process as recently as 1976. Blacks are not allowed 
to serve as deputy registrars, and Blacks are not chosen to 
work at polling places. Blacks are excluded from the Demo­
cratic Party whose nominees invariably win local elections, 
the local Democratic Party has ignored rules on fair repre­
sentation, and the process for qualifying to run in the dem­
ocratic primary is virtually secret.

Blacks are “ shut out of the normal course of politics” be­
cause of the “ deep-rooted discrimination by Whites against 
Blacks.” (J.S. 49a-50a, 88a-89a) Blacks fear reprisals should



31

they enter into the “ white man’s game” of politics, the ma­
jor Black civic organization in the county cannot even have 
a written membership list because of fear of reprisals, and 
these cumulative fears are, unfortunately, the rational prod­
uct of the very recent history of oppression, discrimination 
and outright violence directed at Blacks.

Blacks are discriminated against in all phases of local 
government. The county government rarely allows them to 
serve on any of the public boards and authorities that oper­
ate the government, Blacks were excluded from juries until 
a federal court order entered in 1977, and they were uncon­
stitutionally denied access to the electoral process in 
Waynesboro, the county seat, until a court order entered in 
1977. It is assumed in Burke County that Blacks should not 
have a role in politics, Whites rationalize the exclusion of 
Blacks on the basis that Blacks “ are just not interested” in 
politics, and Whites have resisted desegregation in Burke 
County as long, hard and successfully as anywhere in the 
nation.

In determining purpose, the trial court considered a host 
of other discriminatory laws passed by Georgia (J.S. 76a, R. 
334-38), many of which are still on the books. The pattern 
behind at-large elections is a telling factor in this case be­
cause 18 counties in Georgia switched from district elec­
tions to at-large elections after enactment of the Voting 
Rights Act when Blacks began to vote. (R. 398-99) Con­
versely, with the advent of the Black vote, no county volun­
tarily switched to a district system. That pattern is cer­
tainly some evidence of discrimination in the use of at-large 
elections. Similarly, Georgia recently adopted the num- 
bered-post and majority-vote requirements, which give the 
majority White electorate in Burke County and nearly 
every other Georgia county complete control of all commis­
sion seats. Those laws were conspicuously adopted precisely



32

when Blacks began to vote in the 1960’s. (J.S. 65a n.2)15 
The new 1976 Georgia Constitution readopted literacy and 
understanding tests, Ga. Code §2-403, which are inoperative 
solely because of the Voting Rights Act.

Much evidence was introduced concerning the racial atti­
tudes of the White community and White public officials. It 
showed a firm commitment to segregation, a belief that 
Blacks were not political beings, and unyielding opposition 
to equal rights for Blacks.

While this is only a part of the evidence that was intro­
duced, it certainly supports the trial court’s finding that at- 
large elections in Burke County are one more in a series of 
many, many efforts to limit the civil and political rights of 
Blacks. There was virtually no countervailing evidence 
presented. The evidence of other purposes was unconvinc­
ing, an apparent effort to fabricate a pretext. Moreover, as 
this Court held in Arlington Heights, plaintiffs need not 
show that the sole motivation was discriminatory, but just 
that it be “ a motivating factor.” 429 U.S. at 265-66. The 
finding of discriminatory purpose here is not clearly 
erroneous.

It is clear in this case that Blacks attain a measure of fair 
treatment and equality in Burke County only when the fed­
eral government intervenes. That is no less true with the 
electoral process than in any other phase of Burke County 
life. Unless the federal courts intervene, Blacks will never 
be allowed to participate fully in the political process. So

10 The change to majority vote and numbered post were approved 
under Section 5 of the Voting Rights Act by the Attorney General. How­
ever, the United States later filed an action against the State of Georgia 
contending that Section 5 approval had been obtained fraudulently be­
cause the State had included them in a general recodification of the elec­
tion code, and the United States had never been made aware of these 
changes when it passed on the general recodification legislation. United 
States v. Georgia, 436 U.S. 941 (1978).



33

long as the White politicians of Burke County are allowed 
to determine the rules of the “white man’s game,” those 
rules will be maintained to ensure that Blacks are excluded.

This Court has held that there is no constitutional viola­
tion where a minority group loses elections because of the 
normal “ give and take” of the political process. Whitcomb 
u. Chavis, 403 U.S. 124 (1971). As this Court said in Fee­
ney: “ It is presumed that ‘even improvident decisions will 
eventually be rectified by the democratic process.’ ” 442 
U.S. at 272. But where Blacks are completely excluded from 
the political process, and where they are subjected to ongo­
ing intentional discrimination in all aspects of public and 
private life, then there is no “ give and take,” improvident 
decisions cannot be rectified by the democratic process, and 
judicial intervention is both necessary and appropriate. 
Blacks did not just “ lose out” in politics in Burke County. 
They have never been a part of the political process there, 
they have no power to assert their interests, and they will 
remain impotent absent judicial relief.

B. This Case Differs Significantly From The 
Facts And Issues Presented in Bolden

Although plaintiffs satisfied the burden imposed by the 
Mobile plurality, they also contend that this case is signifi­
cantly different than the Mobile decision, and a different 
level of proof is appropriate here. In Mobile, the trial court 
invalidated the City’s historic “ commission” government 
and replaced it with an entirely new structure. Mobile’s 
three elected commissioners acted as executives, as well as 
legislative policy-makers. The at-large election was an inex­
tricable part of the commission form of government. As the 
District Court noted in Mobile, executive commissioners 
had to be elected at-large because of the nature of their re­
sponsibilities. Bolden v. City of Mobile, 423 F. Supp. 384, 
402 n.19 (S.D. Ala. 1976). Thus, to eliminate at-large elec­



34

tions, the Mobile plaintiffs had to prove that the very form 
of the City’s government was unconstitutional.

The present case is much different because the form of 
government is not at issue. The Commissioners here are en­
tirely a legislative, policy-making body. (T. 237) Burke 
County commissioners make policies and pass ordinances. 
(T. 453-54) The county administrator, who is appointed, is 
the executive arm of government and is responsible for car­
rying out the commissioners’ policies. (T. 496) Burke’s com­
missioners can be elected from districts without difficulty.16

Where the “ entire system of local governance” is chal­
lenged, as in Bolden, purposeful discrimination is more dif­
ficult to prove because there often are other factors that 
would justify the local scheme. 446 U.S. at 70. But where 
the question of districting alone is at issue, no automatic, 
non-racial justification is present, and a discriminatory pur­
pose is more easily shown. Proof is easier because any dis­
tricting decision is largely the determination of which vot­
ers will have what political “ clout” in electing 
representatives. This very point was made by Justice Ste­
vens in his concurring opinion in Bolden. 446 U.S. at 87-88. 
Because the impact of a districting scheme is so intimately 
related to the purposes of the districting, the effects of the 
election system are particularly important in determining 
the legal purpose in a case such as the present one.

Bolden is also very different from this case because the 
trial court there had made its decision only on the basis of

16 As the Court of Appeals held:

[T]his is not a case like Mobile u. Bolden, in which an entire form of 
government was abandoned without consideration of the valid local 
interests in the maintenance of the existing system. In this case, un­
like Bolden, the Court’s order does not affect the existing allocation of 
executive and administrative responsibilities among the Burke 
County commissioners. (J.S. 54a-55a)



35

“ effects.” See Moore v. Brown, 448 U.S. 1335 (1980) (opin­
ion of Justice Powell). The District Court in Bolden had 
concluded that Blacks were “ excluded” from the political 
process, but only because Blacks had not won office, and 
because there was bloc voting in Mobile. 423 F. Supp. at 
387-89. In the present case, the exclusion of Blacks from 
the political process was found by the District Court, in 
detailed findings, to result from past and present pur­
poseful discrimination.

Finally, appellees contend that proof of specific discrimi­
natory intent should not be necessary in a case such as the 
present one. In White v. Regester, 412 U.S. 755 (1973), this 
Court unanimously struck down multi-member legislative 
districts in two Texas counties. Unlike the present case, 
there was no finding that the multi-member districts were 
retained because of racial motives. Purposeful discrimina­
tion was proved in White v. Regester, but it was of a differ­
ent kind. The plurality opinion in Bolden identified the fac­
tual proof in White as a “ long history of official 
discrimination,” legislative “ indifference to minority 
needs,” and the restricted “ access of minority groups to the 
political process.” 446 U.S. at 69. In Dallas County, this last 
factor was proved because Blacks had not been supported 
politically by a private citizen’s group, and were thus less 
able to win county-wide election. In Bexar County, the evi­
dence was simply the cultural barriers that impeded His- 
panics’ participation in the political process.

Thus, White v. Regester held that a districting system 
cannot be used which excluded a racial group from the po­
litical process, and where their exclusion is a result of (1) 
the challenged apportionment scheme, and (2) the conse­
quences of past or present purposeful discrimination. White 
did not focus on the specific intent behind the apportion­



36

ment scheme. Appellees contend that White, decided unan­
imously, should still be good law.17

C. The Other Issues Raised By Appellants 
Have No Merit

First, appellants contend that the Court of Appeals’ em­
phasis on responsiveness was error. The Fifth Circuit held 
that unresponsiveness must be proved before plaintiffs can 
prevail. While it is true that this Court’s decisions do not 
require such proof, that could only be a ground for com­
plaint by an unsuccessful plaintiff who failed to satisfy this 
additional burden. Once the plaintiffs here overcame the 
burden of proving unresponsiveness, the Court of Appeals 
accorded this factor little evidentiary weight. The Fifth Cir­
cuit believed that unresponsiveness “ is a factor of greater 
significance in its absence.” (J.S. 47a n.41) Proof of unre­
sponsiveness was considered only as some circumstantial 
evidence of intent. That inference is certainly not clearly 
erroneous in this case. As the Court concluded:

Our review of the evidence in this case leads us to the 
conclusion that these patent examples of discriminatory 
treatment by Burke’s county commission typify the treat­
ment received by Blacks in Burke in every interaction

17 Similarly, an apportionment scheme may be enjoined as a remedial 
matter, regardless of purpose, where it perpetuates conditions flowing 
from past constitutional violations. State and local government have 
acted in concert here to extinguish black political activity. Quite clearly, 
as the District Court found, the effects of the long period of discrimina­
tion and oppression continue to this day. As a majority of this Court 
recently held in the Dayton and Columbus, Ohio school desegregation 
cases, the government has a continuing affirmative duty to eradicate the 
effects o f discriminatory and segregative acts. Neutral actions, which may 
not independently be motivated for invidious purposes, are still illegal if 
they perpetuate the effects of past discrimination. Dayton Bd. of Ed. u. 
Brinkman, 443 U.S. 526 (1979). The same principal should apply here, as 
the United States argued below in its Amicus brief.



37

they have had with the White controlled bureaucracy.
(J.S. 44a n.37)

Where discrimination is so pervasive and so rampant, this 
kind of “ unresponsiveness” unquestionably provides some 
evidence to infer a discriminatory purpose in the use of at- 
large elections.

Second, appellants claim that various decisions of the 
Fifth Circuit are inconsistent. Even if true, that would 
hardly be grounds for reversal. But more importantly, this 
contention shows how appellants have misunderstood the 
ruling of the Court of Appeals in this case. In McMillan v. 
Escambia County, 638 F.2d 1239, 1247 n.16 (5th Cir. 1981), 
the Fifth Circuit held that Zimmer was “ invalidated by 
Mobile.” McMillan was decided before Lodge, and it clearly 
shows that the Fifth Circuit understands the import of 
Mobile. Lodge, like McMillan, expressly recognized that the 
Zimmer approach was rejected by the Mobile plurality. 
Lodge simply followed Justice Stewart’s opinion and con­
sidered Zimmer evidence to the extent that it bore a direct 
evidentiary relation to the intent question.18

18 Appellants err when they argue that socioeconomics are irrelevant 
to this case. Contrary to their assertion, the lower courts here did not 
conclude that a disadvantaged group is “ entitlefd] . . .  to some special 
dispensation in the area of voting rights.”  (Brief of Appellants at 18) 
The tremendous socioeconomic disparity between Blacks and Whites is 
directly traceable, in substantial part, to slavery and past purposeful dis­
crimination by the State of Georgia and Burke County government. 
(Robinson Depo. 64-65; J.S. 83a) As the lower courts found, these socio­
economic disparities directly impede the ability of Blacks to participate 
in the political process in Burke County. In White u. Regester, supra, far 
less evidence of socioeconomic depression among Hispanics was consid­
ered enough, without any further evidence, to invalidate a multi-member 
district. 412 U.S. 767-70. The socioeconomic picture in Burke County 
must be considered by a trial court that is attempting to assess the polit­
ical realities of the county in determining the ultimate question of 
purpose.



38

Third, appellants cite testimony that at-large elections 
had not been a “ political issue” before this case was filed. 
Brief of Appellants at 39. It is true that Blacks in Burke 
County have no capacity to make at-large elections a viable 
political issue there. It is equally true that, to the White 
politicians, Black unemployment is not an issue, the failure 
to appoint Blacks to boards is not an issue, the low level of 
Black voter registration is not of interest to them, and the 
exclusion of Blacks from every other phase of public life is 
“ not a thing of interest.” (T. 232, 241, 255-57, 256, 296, 306, 
308, 392-98, 813) The fact that White politicians do not 
consider those things as issues, however, does not make 
them any less invidious or unconstitutional. Neither should 
the fact that Blacks cannot make at-large elections a politi­
cal issue, without going to federal court, somehow excuse 
the defendants. It would be a strange rule that allowed a 
defense on the ground that Blacks are so excluded from 
politics that they cannot effectively assert the right to polit­
ical equality.

Fourth, appellants seriously misrepresent the evidence in 
asserting that no electoral discrimination was shown, that 
Blacks have equal access to “ slating” in the political proc­
ess, and that Blacks themselves are the only group that 
conduct slating. The “ slating” evidence in White v. 
Regester did not involve the ability of Blacks to get on the 
ballot, contrary to the representation of appellants. (Brief 
of Appellants at 30) Getting on the ballot in Dallas County 
was simple and straight-forward. The slating in Dallas 
County referred to the fact that a private civic organization 
carried substantial political clout in the County, and it sup­
ported relatively few Blacks (although it did slate some 
black candidates, and in those cases, it allowed black com­
munity leaders to select the candidates). Graves v. Barnes, 
343 F. Supp. 704, 726 (W. D. Tex. 1972) The expulsion of 
Blacks from the political process in Burke County is dra­
matic by comparison. Blacks are excluded from the Demo­



39

cratic Party and the Democratic Committee, which is the 
one vehicle to election in Burke County.

Appellants claim that Black organizations conduct slating 
by publishing “ tickets” for elections. No such finding was 
made. The only witness who testified from personal experi­
ence, testified that the “ tickets” did not endorse candi­
dates, but simply listed all candidates running in a given 
election. They were nothing more than sample ballots to 
educate Blacks—who had never been allowed to vote before 
in Burke County—what a ballot looked like. (T. 715-20)

Appellants assert that there has never been voting dis­
crimination in Burke County. (Brief of Appellants at 33-35) 
Suffice it to say that this contention ignores the overwhelm­
ing evidence in the record, it ignores the findings and con­
clusions of two courts below, and it ignores the fact that 
none of these findings were challenged as clearly erroneous 
in the Court of Appeals.19

Finally, appellants discuss certain historical evidence re­
lating to Burke County election laws. Appellees contend

19 Appellants also contend that the tremendous discrimination and 
segregation in Burke County education is irrelevant. Id. at 37. The 
county commissioners have not acted completely independently of the 
educational process in Burke County, as appellants state. To the con­
trary, the county commissioners got very involved in education when 
there was a threat to school desegregation. Brief, supra, at 16-17. The 
purposeful discrimination in education contributes to the exclusion of 
Blacks from the political process. Also, the attitudes of the White com­
munity and the government officials in other areas provide some evi­
dence of the motivations behind at-large elections. As the trial court 
commented: “ [School discrimination] may have some relevance to the at­
titude of whites in this county at times generally, on the question of seg­
regation.”  (T. 61) The use of the evidence in that fashion is entirely 
proper. Most assuredly, had school integration been a smooth affair in 
Burke County, the appellants would be arguing that discrimination was a 
thing of the past in Burke County, that Whites did not object to integra­
tion, and that the District Court should have inferred from that fact a 
lack of discriminatory purpose in the use of at-large elections.



40

that this history is relevant because it shows that the very 
form of government was once before completely changed in 
Burke County for the specific purpose of eliminating 
Blacks. Since Blacks were an overwhelming majority of the 
County before the turn of the century (J.S. 83a n.18), and 
since Blacks were voting during Reconstruction, Blacks 
controlled county-wide voting at that time. They had all 
three of the county seats in the Georgia House of Repre­
sentatives. Young, The Negro in Georgia Politics, 1867- 
1877 at 50 (Unpublished Thesis, Emory University Library, 
1955) Since Blacks could similarly control the election of 
the ordinary, who was elected county-wide and who had 
governing authority over the County (Brief of Appellants 
at 41), the state legislature (which was dominated by 
Whites) simply eliminated elections. Instead, a board of 
commissioners was created to be appointed by the grand 
jury (Ga. Laws of 1873, p. 226) which did not include 
Blacks at that time. Young, supra, at 28. This historical se­
quence is stark, and it is explainable on no grounds other 
than race. Gomillion v. Lightfoot, 364 U.S. 339 (I960).20

20 Appellants raise two other arguments. They contend that vote dilu­
tion cases cannot be maintained against local governing bodies. That po­
sition is incorrect. The Thirteenth, Fourteenth and Fifteenth Amend­
ments and Section 2 of the Voting Rights Act of 1965, apply with full 
force to local government, just as to state-wide bodies. Indeed, where in­
tentional discrimination has been proved, as here, there could be no con­
ceivable reason why the plaintiffs should not prevail.

Appellants also contend that they should have had an opportunity to 
submit an election plan under Section 5 of the Voting Rights Act. This 
contention was never raised in the Court o f Appeals, and it is moot now 
in any event. The special election called for has passed, and how a rem­
edy should now be implemented for future elections should be con­
sidered first by the District Court.



41

II. Statutory Election Cases May Be Main­
tained Without Proving Intentional Dis­
crimination.

Appellees contend that they should prevail under Section 
2 of the Voting Rights Act, 42 U.S.C. §1973, without prov­
ing intentional discrimination. In Mobile, three Justices 
took no position on the statutory issue, and there was no 
majority view. The plurality concluded, after an admittedly 
“ cursory examination,” that Section 2 adds absolutely noth­
ing to the law, that it requires proof of purposeful discrimi­
nation, and that it does not even apply to vote abridgement 
and dilution cases. 446 U.S. at 60-61.

The plurality’s cursory conclusion was wrong, as is appar­
ent if one simply compares Sections 2 and 5, and this 
Court’s prior decisions. Sections 2 and 5 both cover the ex­
act same kinds of electoral practices— namely, any “ voting 
qualification or prerequisite to voting, or standard, practice, 
or procedure.” This Court has held that that language in­
cludes at-large elections in a Section 5 case. Allen v. State 
Bd. of Elections, 393 U.S. 544 (1969). Since the provision is 
identical in both sections, at-large elections are unquestion­
ably covered by Section 2 as well.

The only question is what standard of proof is necessary 
in a Section 2 case. Here, no one can dispute that at-large 
elections exclude Blacks from the political process by per­
petuating the effects of past discrimination, regardless of 
the subjective intentions that might motivate retention of 
the scheme. That should be enough to prevail in a Section 2 
case.21 Compare Fullilove u. Klutznick, 448 U.S. 448, 477 
(1980) (Chief Justice Burger); City of Rome v. United

21 One could also argue that Section 2 reaches any discriminatory ef­
fects, even if they do not result from past discrimination. That issue 
need not be reached here in light of the evidence and findings in this 
case.



42

States, 446 U.S. 156 (1980). The United States asserted its 
agreement with this position in its Amicus brief in the 
Court of Appeals. The legislative history supports it en­
tirely. The whole purpose of the Act was “ not only to cor­
rect an active history of discrimination, the denying to Ne­
groes of the right to register and vote, but also to deal with 
the accumulation of discrimination . . . .  The bill would at­
tempt to do something about accumulated wrongs and the 
continuance of the wrongs.” I l l  Cong. Rec. 8295 (1965) 
(Sen. Javits).

Nothing in the language of the Act or the legislative his­
tory suggests that the broad language of Section 2 was 
aimed only at intentional discrimination. While Section 2 
does not expressly incorporate either a “ purpose” or an “ ef­
fect” test, the Voting Rights Act did specify a particular 
test on ten other occasions that appear in eight separate 
provisions. (Sections 3(b), 3(c), 4(a), 4(d), 5 and 10(a)(iii)). 
In each instance, Congress condemned “ tests,” “ devices” 
and “ voting practices” used “ for the purpose or with the 
effect” of “ denying or abridging the right to vote on ac­
count of race or color.” In no instance did Congress require 
proof of purpose in addition to effect. To read an intent 
requirement into Section 2 would fundamentally rewrite 
the section in a way that is inconsistent with everything 
else in the Act.

This Court has held that Section 5 of the Voting Rights 
Act should be given the “ broadest possible scope” in order 
to reach “ the subtle, as well as the obvious, state regula­
tions which have the effect of denying citizens their right to 
vote because of their race.” Dougherty County Bd. of Educ. 
v. White, 439 U.S. 32, 38 (1978). Congress has approved 
this Court’s broad readings of Section 5. Id. at 39-40. Con­
gress could not have meant for this Court to turn around 
and read Section 2 so narrowly that it means absolutely 
nothing, which is precisely what Justice Stewart did. Under 
his view, Section 2 is a hollow reenactment of the prohibi­



43

tions already contained not only in the Constitution, but 
also in 42 U.S.C. §1971(a)(l), which provides that citizens 
“ shall be able to vote . . . without distinction of race.”22

All of the legislative history supports plaintiffs’ position. 
In the only instance where the standard of proof under Sec­
tion 2 was expressly discussed, Attorney General Katzen- 
bach stated that it reached all procedures with the “ pur­
pose or effect” of discrimination.

I had thought of the word “ procedure” as including any 
kind of practice of that kind if its purpose or effect was to 
deny or abridge the right to vote on account of race or 
color. (Emphasis added) Hearings on S.1564 before the 
Comm, on the Judiciary, United States Senate, 89th 
Cong., 1st Sess., 191 (1965) [hereinafter, “ 1965 Senate 
Hearings” ].

The plurality opinion in Mobile relies on the evidence 
that Section 2 was designed basically to reach Fifteenth 
Amendment violations. Since the plurality felt that the Fif­

22 By comparison, Title VII requires a finding that the “ respondent 
has intentionally engaged in or is intentionally engaging in” discrimina­
tion. That provision has been interpreted to prohibit discrimination re­
gardless of motive. Griggs v. Duke Power Co., 401 U.S. 424 (1971). Sec­
tion 2 is obviously less o f a “ motive” statute than Title VII. It speaks of 
practices that are “ imposed or applied” that “ deny or abridge”  the right 
to vote. These are not “ intent”  terms, particularly in comparison with 
the language of Title VII.

Other evidence supports the plaintiffs’ view. The Conference Commit­
tee on the Voting Rights Act specifically deleted from the criminal provi­
sions any requirement that a defendant act “ wilfully and knowingly”  or 
“ fraudulently,” limitations that had been included in the Senate bill. 
U.S. Code, Cong. & Admin. News 2581 (1965). The Senate had tried to 
include those restrictions simply “ to make it clear, for example, that no 
criminal violation is involved where a person acts inadvertently.” Id. at 
2567. The Senate position was rejected. Given this stringent criminal 
provision, “ intent” and “ purpose” should hardly be read into the civil 
remedy under Section 2.



44

teenth Amendment reached only the most blatant kinds of 
intentional voting discrimination, they concluded that Sec­
tion 2 was similarly limited. It is true that Congress largely 
equated Section 2 with Fifteenth Amendment prohibitions. 
But the plurality’s conclusion is wrong because, in equating 
the two, Congress held a far different concept of what the 
Fifteenth Amendment meant than the Mobile plurality. 
The testimony and debates are replete with comments 
which show that Congress understood the Fifteenth 
Amendment to ban practices that had the effect of discrim­
inating. See, e.g., 1965 Senate Hearings, at 194, 236 and 
239; Hearings on H.R. 640 before Subcom. No. 5 of the 
Com. on the Judiciary, House of Reps. 89th Cong., 1st Sess. 
at 50, 59-61 (1965) [hereinafter, 1965 House Hearings]; 111 
Cong. Rec. 10453-54 (Sen. Prouty), 10456 & 11402-05 (Sen. 
Hart); 11744-47 (Sen. Saltonstall); and 8296 (Sen. 
Mansfield).

Attorney General Katzenbach’s testimony is especially 
persuasive in construing the Voting Rights Act because he 
was so intimately involved in “ drafting the statute and ex­
plaining its operation to Congress.” United States v. Bd. of 
Comm’rs of Sheffield, 435 U.S. 110, 131 (1978). Mr. Katzen- 
bach time and again equated the Fifteenth Amendment 
with a purpose or effect test. For example, he believed that 
Sections 4 and 5, which expressly use “ purpose or effect” 
tests, just covered Fifteenth Amendment violations. When 
testifying before the House on the Section 5 preclearance 
provision, he stressed that “ the only laws that are struck 
down in this are those that are in violation of the 15th 
amendment.” 1965 House Hearings at 90. To satisfy Sec­
tion 5, the State or local government had only to show “ the 
court that the new provision is constitutional.” Id. at 94. 
See also id. at 102; H.R. Rep. No. 439, at 19; S. Rep. No. 
162, at 19.

Thus, Congress did largely equate the scope of Section 2 
with the Fifteenth Amendment, but Congress also equated



45

Section 5 with the Fifteenth Amendment. Congress under­
stood all three to include acts with the effect of discriminat­
ing. Section 2 and Section 5 were identical in their substan­
tive coverage. They differed only in that Section 5 required 
proof of nondiscrimination before a change could be 
effected.

This view has been confirmed implicitly by subsequent 
actions of Congress. While space does not permit a discus­
sion of all this legislative history, nor of all the 1965 history, 
much of it is set out in the United States Amicus Brief that 
was filed below.

The action of the House in 1981 explicitly confirms the 
historical record. Reacting to Justice Stewart’s reading of 
Section 2, the House passed a specific amendment to make 
it clear that intent is not required under the law. At the 
same time, the House stated unequivocally that the amend­
ment was only a clarification. Section 2 was never supposed 
to require proof of intent.23

23 The Committee does not agree with [Justice Stewart’s] construc­
tion of Section 2 and believes that the intent of the section should be 
clarified.

The purpose of the amendment to section 2 is to restate Congress’ 
earlier intent that violations of the Voting Rights Act, including Sec­
tion 2, could be established by showing the discriminatory effect of 
the challenged practice.

By amending Section 2 of the Act Congress intends to restore the 
pre-Bolden understanding of the proper legal standard which focuses 
on the result and consequences of an allegedly discriminatory voting 
or electoral practice rather than the intent or motivation behind it. 
H.R. Rep. No. 97-227, 97th Cong., 1st Sess. 29-30 (1981)



46

Finally, Sections 2 and 5 should be read the same if only 
to avoid the absurd consequences of reading them differ­
ently. Acting under Section 5, this Court has already invali­
dated at-large elections in Wilkes County, Georgia, which is 
adjacent to Burke County. Wilkes County u. United States, 
439 U.S. 999 (1978). The evidence of discrimination in 
Wilkes County was trifling by comparison to the present 
record. It would be wholly irrational to hold that the same 
election system is legal in Burke County, where the only 
difference is the date of adoption, because an entirely dif­
ferent legal test applies under Section 2. To make the date 
of enactment determinative would be especially ironic since 
Blacks were not even a part of the political process that led 
to the adoption of at-large elections in Burke County in 
1911. Congress did not intend to create such a hodge-podge, 
and this Court should not construe the Act to produce such 
inconsistencies.

III. The Judgment of the Lower Court Should 
Be Affirmed On The Basis Of the Fifteenth 
Amendment

The Fifteenth Amendment was misconstrued in Mobile. 
The plurality concluded that it was inapplicable because 
the District Court had found that Blacks “ register and vote 
without hindrance.”  446 U.S. at 65. By limiting the Amend­
ment to cases where the right to vote is absolutely denied, 
Justice Stewart’s opinion rewrites the Amendment by delet­
ing the words “ or abridged.”  Justice Stewart also concluded 
that the Fifteenth Amendment required proof of purposeful 
discrimination. The plurality view would read the Amend­
ment out of the Constitution. There is no situation where it 
would apply, that would not already be unconstitutional 
under the Fourteenth Amendment.

While Justice Stevens concluded that the Fifteenth 
Amendment reaches dilution cases, that opinion would also 
appear to be at odds with the literal text of the Constitu­



47

tion. Justice Stevens believed that the Constitution “ must 
apply equally to all forms of political gerrymandering—not 
just a racial gerrymandering.” 446 U.S. at 86. Justice Ste­
vens position cannot be supported by the express language 
of the Constitution. The Fifteenth Amendment does not 
apply to “ political” gerrymandering. It applies solely to 
electoral practices, be they gerrymandering or otherwise, 
that discriminate on the basis of race. Whatever may be the 
standard for testing an apportionment scheme challenged 
on political grounds, the test must be broader when the 
challenge is based on race. That follows directly from the 
fact that there is a specific amendment dealing with the de­
nial or abridgement of the right to vote on account of race.

Opponents of the Fifteenth Amendment complained in 
1869 that it would invade states’ rights by making the right 
to vote subject to federal judicial and congressional protec­
tion. The opponents were defeated, and their arguments 
were rejected. They should not be given a belated victory 
one hundred and ten years later by this Court construing 
the Fifteenth Amendment to mean nothing.

The supporters of the Amendment were convinced that it 
was necessary to insure “ against oppression” of black peo­
ple. 40 Cong. Globe 668 (1869) Senator James Dixon of 
Connecticut was typical in stating that the Fifteenth 
Amendment was an especially important addition to the 
Constitution.24 Proposed amendments with narrower lan­

[I]t rises far above the question of any mere detail as to suffrage; 
far higher in importance than the question even of abolishing slavery 
in the States; far higher than any proposition which has ever been 
made with regard to the amendment of the Constitution, because it is 
in its truest sense radical and revolutionary. It strikes at the very root 
and foundation of the Government; it removes its cornerstone, and 
changes the entire character of the State governments.”  40 Cong. 
Globe 668 (1869).



48

guage were made, and rejected, in favor of the Fifteenth 
Amendment with its broad “ deny or abridge” prohibition.

The Fifteenth Amendment was intended to be a broad 
prohibition reaching beyond the Thirteenth and Fourteenth 
Amendments. It should be construed to reach the over­
whelming evidence in this case that black people are not 
allowed a reasonable opportunity to participate in the polit­
ical process, and to hold office, in Burke County.

IV. The Judgment Of The Lower Court Should 
Be Affirmed On The Basis Of The Thir­
teenth Amendment

Last term, this Court found that the Thirteenth Amend­
ment was not implicated in a case where a municipal street 
had been closed. City of Memphis v. Greene, 101 S.Ct. 1584 
(1981). That case left open the question of whether proof of 
purposeful discrimination is necessary under the Thir­
teenth Amendment, and the question of what is made ille­
gal by the force of Section 1 of the Amendment.

In a case such as the present one, there should be no re­
quirement of proving specific intent to discriminate under 
the Thirteenth Amendment, or the promise of that Amend­
ment will remain unfulfilled. There were two fundamental 
characteristics of slavery. One was the complete elimination 
of the slaves’ political rights. The other was the subjugation 
of slaves economically. This case deals principally with the 
former.

Absent judicial relief, Blacks will not enjoy the “ universal 
civil and political freedom” envisioned by the Amendment. 
Civil Right Cases, 109 U.S. 3, 20 (1883) Except for the short 
interlude of Reconstruction, Blacks have never enjoyed 
meaningful participation in the political process in Burke 
County. They have been denied political equality by a com­
bination of private and governmental actions. The Thir­
teenth Amendment, of course, reaches private conduct.



49

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). For that 
reason, neither the concept of de jure discrimination, nor 
purposeful discrimination, should have any place in the 
Thirteenth Amendment in a case such as the present one.

The Thirteenth Amendment was not passed simply to 
abolish the formalisms of slavery. It was designed instead to 
accomplish broader purposes, and “ obliterate the last lin­
gering vestiges of the slave system; its chattelizing, degrad­
ing and bloody code; its dark, malignant barbarizing spirit.” 
38 Cong. Globe 1319-24 (1864). The framers intended the 
Amendment to do more than simply free the slaves who 
were still in bondage at the time. tenBroeck, The Thir­
teenth Amendment to the United States Constitution, 39 
Cal. L. Rev. 171, 180 (1951). Nowhere do the debates reveal 
any language limiting the construction of the Amendment 
to formal slavery per se.

The vestiges of slavery are most assuredly present in 
Burke County. The District Court was explicit in its finding 
that the “ vestiges of slavery” exist here (J.S. 95a), and the 
Court of Appeals concluded much the same thing. (J.S. 
55a). The promise and command of the Thirteenth Amend­
ment have been only partly fulfilled in Burke County. Since 
1864 and their defeat in the Civil War, the white people in 
Burke County have continued to oppose full and equal 
rights for black people by every means at their disposal. 
They have been very successful, and the “ badges and inci­
dents” of slavery remain very much in place. Until they are 
eliminated, the command of the Amendment has not been 
met.



50

CONCLUSION

Appellees respectfully pray that the judgment of the 
Court of Appeals be affirmed.

DAVID F. WALBERT 
Counsel of Record for 
Appellees
ROBERT W. CULLEN
LAUGHLIN McDONALD 
CHRISTOPHER COATES 
NEIL BRADLEY