Correspondence from Lani Guinier, Ronald L. Ellis, and Pamela Karlan to P.A. Hollingsworth, Esq. Re Reapportionment of Little Rock Board of Directors

    Lese,EefenseIt. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
gg Hudson street, New york, N.y. 10013 o (2121219-1900

June 8, 1988

P.A. Hollingsworth, Esq.
Hollingsworth Law Firn, P.A.
415 Main Street
Little Rock, Arkansas 722OL

Re: Reapportionnent of Little Rock Board of
Directors

Dear Les:

You have asked us whether the new 4-3 mixed plan for
electing the Little Rock Board of Directors complies wlth section
2 of the Voting Rights Act of 1965 as amended in 1982, 42 U.S.C.
S 1973. In our opinion, the at-large component of the plan, as
presently constituted, impermissibly dilutes the collective
voting strength of the city'E black residents and therefore
violates the Act.

We assume for purposes of this letter that it would be
impossible to get the State Legislature to authorize any
alternative configurations for the Board. For example, a plan
with seven fairly drawn wardsr or one with eight fairly drawn
wards and a mayor elected by popular vote, could comply with the
Voting Rights Act and provide both the benefl-ts of ward elections
and of a popularly elected mayor.

IrIe also assume that remaining with the present election
scheme--which may itself be infirn under the results test of the
L9a2 Voting Rights Act despite the district court's earlier
decision in Leadership Roundtable v. Citv of Little Rock, 499 F.
supp.579 (8.D. Ark. 1980), C-f.l!!, 561 F.2d 701 (8th Cir. 1981)
(per curiam)--is not a reallstic option. The present election
scheme uses at-large elections with numbered positions and
staggered terms (that ls, all the seats are not interchangeable
and are not up for electlon in the same year). Under thie
system, three black candidates have been elected to the Board
since 1958, but no more than two blacks have serrred at any one
tine. Only one black candldate--Lottie Shackelford in 1984--has
ever received a najority of the votes cast in a contested
election. It is unclear whether she received a naJority of the

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P.A. Holllngsworth, Esq.
June 8, 1988
Page 2

votes cast by white voters. (It is clear, however, that no other
black candidate has received a maJority of the white voteE cast
in a contested election.) The two other blackE to have Eerrred on
the Board flrst gained their seats by pluralitleE in multi-
candidate fieldE. Although the black community has sponsored
additLonal candidates, it haE been unable ever to elect a third
black representatives to the Board.

According to the 1980 census, 32.24 percent of Llttle Rock,s
residents are black.' Blacks have, at leas!-over the recent
past, held 28 percent of the Boardis seats.**

The new election schene uses four single-member districts
and three at-Iarge seats. Of the four geographlc districts,
only one (currently denominated l{ard rrArr) has an effective black
voting majority. A second (l{ard nCrr) has a mlnority population
that roughly approximates the city's, and the final two have
extremely snall minority populations. The three at-large seats--
one of which wlll be an elected nayor's posltion--will be elected
for staggered tems from numbered posts.

* The figures provided ln the Arkansas Democrat,s April
6, 1988, issue suggest that the city's rrminority percentagem is
31.35 percent.

** Although blacks constitute roughly one-third of Little
Rock's total population, their percentage of the actual
electorate (those voting on election day) is likely to be
eignificantly lower. First, a higher percentage of the white
community ie likely to be age 18 or over (and thus of voting
age). Second, a higher percentage of the whlte voting age
population iE likely actually to be registered. Third, a higher
percentage of white registered voters is llkely to turn out on
election day. The district court in Leadershlp Roundtable v.
City of Little Rock, 499 f. Supp.579, 585 (8.D. Ark. 1980),
aff'd 651 F.2d 7O1 (8th Cir. 1981) (per curlam), inplicitly
recognized this in finding that although the population of Litt1e
Rock in the nid-197o's was approxinately 30 percent black, the
voting age population was only approximately 2O percent black,
although that drop off is probably an overestimate.

In some cases, for exarnple, courts have recognized that a
dlstrlct that iE 65 percent black in total population may be only
50 percent black in turnout on e}ection day. See, e.9., Buskey
v. Oliver, 555 F. Supp. L473, L484 (It{.D. Ala. 1985) (dlscussing
165 percent standardn). Using the same analytLc adjustment in
Little Rock, lt uay be that the city's turnout ls only one-
quarter black.



P.A. Hollingsworth, Esq.
June 8, 1988
Page 3

Assuming, for the tine being, that Little Rock is not
adopting.the new system for the Purpose of diluting black voting
strength"'--in which case, of course, the system would by
definition violate both the Constitution and section 2r E99 City
of Pleasant Grove v. United States, 479 U.S. 

-, 
93 L.Ed.2d 866,

876 & n. 11 (1987); Hunter v. Undemood, 47L U.S. 222, 233
(1985); City of Richrnond v. United SlateE, 422 U.S. 358, 378
(L975)--the new system nonetheless vl-olates section 2 because it
provides blacks with less of an opportunity than they currently
enjoy to elect the representatives of thelr choice. See, e.ct.,
Ketchum v. Byrne, 74O F.2d 1398, 1406 (7th Cir. 1984), cert.
denied, 471 U.S. 1135 (1985) (retrogression violates section 2).
Moreover, the new system also violates section 2 becauEe it is
likely to result in the three at-large seats, including the new
mayoral position, being beyond the reach of the black community.
Finally, va see a serioue danger that the at-large components
will deprive the directors elected in racially fair wards
electlons, particularly the director elected fron the naJority-
black ward, of the powers traditionally associated with that
office. See, e.ct., , 649 F. Supp. 289
(u.D. Ala. 1986), , 831 F.2d
245 (l].th Cir. t9871 , reaff'd on remand, 749 F. Supp. 1546 (l{.D.
AIa. 1988).

1. The Ward-Based Components of the ProPosed Scheme

Under state Iaw as we understand lt, Litt1e Rock iE
constrained, if Lt adopts a mixed system, to use four single-
member districts. In light of thie reEtriction, we offer no
opinion on the question whether the current boundaries are fairly
drawn, even though blacks are likely to be able to elect only one
of the four directors elected from single-nember districts.
Under section 2 of the Voting Rights Act, their potential
ability to influence the elections in other districts cannot
provide an adequate substitute for the right actually to elect
candidates of their choice. See, e.9., Glngles v. Edmisten, 590
F. Supp. 345, 356 (B.D.N.C. 1984) (three-judge court), B1[-fl.i!, 478
u.s. _, 92 L.Ed.2d 25 (1985) .

Blacks have a reasonable opportunity to elect the candidate
of their choice only in t{ard A, since in none of the other sards
are blacks anywhere near an effective votlng naJority. (In fact,
they constitute less than one-third the total population of any

*** This question iE, however, worth investigating in view
of the fact that the inpetus for direct electlon of the mayor
followed on the heels of the election by the Board of the City's
first black mayor.



P.A. Holllngsworth, Esq.
June 8, 1988
Paqe 4

of the other three wards.) It has been argued that blacks night
conceivably elect a candidate from Ward C. ThiE sould require a
fortuitous set of circumstancee, such as a higher level of
crossover voting by white voters for the black-preferred
candidate than haE been obserrred in past Board electLons and a
Iarge number of white candidates significantly fragrmenting the
white vote. It would also necessitate trsail trlnmingr by the
black conmunity, which would have to support a candidate
palatable to white interests.

The past success of some black candidates cannot
mechanically be translated into a prediction about white voting
patterns in Ward C elections. The white connunity in Litt1e
Rock, although it has been amenable to some black representation,
has clearly resisted efforts by the black conmunity to elect a
third director. Election results suggest that when each voter is
entitled to vote for candidates for seven seats, whites have been
willing to provide some level of support to some black candidates
for two of the positions. But lt is clear that the white
community views the other five positions aa rwhiten seats. In a
ward eLection system, the white voters in lfard C in essence give
up their right to vote for candidates for director from Wards A,
B, and D, in return for having a greater say in the election of a
single director from l{ard C. It is highly improbable that white
voters in Ward C will willingly view the sole ward-baEed
directorship for which they can vote as a seat to be filled by
the choice of the black voters in that l{ard. Thus, 8t best t{ard
C provides blacke with a hl4pothetical chance to influence who ls
elected. It does not provide black voters with the equal
opportunity to elect representatives of their choice mandated by
section 2.

2. The At-Larcre Conponents of the PropoEed Scheme

The critical infirnlty in the proposed scheme stems from its
use of three at-Iarge, numbered-post, staggered-term seats.

At large elections tend to minimize the voting strength of
minority groups by permitting the najority to elect all the
representatives in the JurisdictLon. Rogers v. Lodge, 458 U.S.
613, 615 (1982). Even in an at-Iarge scheme, however, a ninority
may be able to elect sone of its preferred candidates by engaging
in rrbulletrr or msingle-shotr voting. Nunbered-posts and
staggered termE, however, preclude single-shot voting by creating
head-to-head contests and depriving black voters of the ability
to withhold support for all but their first choLce candidate.
Accordingly, both the courts and Congress have recognized that
numbered posts and staggered terms enhance the opportunity for
discrimination in at-large elections. See, e.ct., City of Rone v.



P.A. Hollingsworth, Esq.
June 8, 1988
Page 5

United States, 446 U.S. 156, L84, 185 n. 2L (1980) (quoting U.S.
Comnrn on Civil Rights, The Voting Rights Act: Ten Years After
2oB (1975)) (use of staggered tetms means 'rthe opportunLty for
single-shot voting vill never ari-sen); Perklne v. City of West
Ee.Iene, 675 F.2d 2OL, 2L2 (8th Cir. 1982) (nunbered posts
frustrate single-shot voting), gffl,il, 459 U.S. 8O1 (1982); S.
Rep. No. 97-4L7, p. 29 (1982) (condemning anti-Eingle shot
provisions), H.R. Rep. No. 97-227, p. 18 (1982) (condenning
staggered tetms) .

The fact that the present election system uses at-large
elections, numbered poste, and staggered terms does not immunize
a new system using these features from attack. In particular,
the district court's decision in Leadership Roundtable, provides
no protection for a revamping of Board elections that retains
these features. First, Leadership Roundtable's precedential
value is necessarily linited to its deterainatLon that the
election system then in use did not impemissibly dllute black
votes; the fact-inteneive examination required by the legislatl,ve
history of amended sectlon 2 and Gingles depends on the actual
electoral mechanisms at issue, and the proposed syetem
contemplates 6ome drastic changes. Second, Leadership Roundtable
was not a class action. See 499 F. Supp. at 580 n. 2. Thus, it
is at most of precedential valuet it cannot preclude black
citizens other than the plalntiffs from
bringing suit. Finally, Leaderehip Roundtable antedatee
Congiess, amendment of section 2 and the Suprene Court's decision
in Thornburq v. Ginqles, 478 U.S. 

-, 
92 L.Ed.zd 25 (1986). The

Gingles Court enunciated a test for whether voting i9 racially
polirized far broader than the test used ln Leadership
ioundtable. lloreover, since Leadership Roundtable the methods
for ascertaining whether racial bloc voting exiets have been
refined. The nethod used by the district court in Leadership
Roundtable iE likely to have overestimated eubstantlally the
level of white support for black-preferred candidateE.

The real question is whether blacks are likely to elect, on
a consistent basis, &t least one of the three at-large directors,
for if they are not, then blacks will have less opportuntty to
elect their preferred candldates than they now enJoy. Irloreover,
as the denomLnation of one of the at-large candLdates aa mayor
shows, the at-large directors are llkely to be viewed as entitled
to higher statuE and, perhaps, power due to their electl'on by a
citlnride constituency. Thus, if the only black dlrectorE are
elected by wards, they may have less effectlve porrer on the
Board. This, too, would inpermlssibly dllute the voting strength
of black voters. See Dillardr EIEE3!. Even more invldlous iE the
creation of a group of seatE effectively resenred for whLte
voters.



P.A. Hollingsworth, Esq.
June 8, 1988
Page 6

It is unlikely that the black community will enjoy
consistent success ln electlng an at-large director of its
choice. First, electlon returns over the past ten years make it
unlikely that a najority-white southern city such as Little Rock
wlll with any frequency elect a black candidate to the mayoral
position, even though a black has been elected mayor by her
-olleagues on the Board. Thus, that positlon will be beyond the
reach of black voterE. Second, at an election in which voterE
are voting city-wide on only one candidate, whlch wlII happen at
every other election under the staggering system, it is unlikely
that the white community will forego electing any white
candidates. (In contrast, under the present system, there are
three or four positionE to be filled at each election. ) Finally,
the articulated sense that blacks have received all the
representation they are nentitledtr to by the creation of one
najority-black ward and a second ostensible rrinfluencetr ward
(whlch is ln fact unlikely to be conpetitive) may affect the
wlllingness of white voters to support black candldatee.

3. Potential Modiflcations to the At-Large Conponent

If the Board has legitinate reasonE for moving to a mixed
system, there are modifications that would provide black voters
with an equal opportunity to elect at-large directors and which
would move a long vay toward curing the existing infltmity under
section 2.

First, the Board should eliminate the use of staggered terms
and numbered places. For example, if the three at-large
directors were elected at the same elections, the top three vote-
getters could be elected and the candidate with the most votes
could become mayor. Under thls system, blacke would be able to
concentrate their support through single-shot voting and thus
normally achieve the electlon of their first-choice candidate.
This ie probably the only utYr moreover, that a black could be
elected to one of the three at-Iarge seats. In addltion, this
would also provlde black voters with an opportunity on occasion
to elect the mayor they prefer since there night be electlons at
which, because of the nunber of white candidates in the field,
the black-sponsored candidate finishes first.

Second, there are several rnon-exclusionaryr forus of
jurisdiction-wide election that provide sLzeable minorities, such
as the black community ln Litt1e Rock, with an excellent
opportunity to elect a candldate of its choice. In a
cumulative-vote svstem, each voter would have three voteE to cast
for the three at-large positions, but could cast all three votes,
if he or Ehe wished, for a eingle candidate. This allows voters



P.A. Hollingsworth, Esq.
June 8, 1988
Page 7

chooEe between expressing intense support for a single candidate
(by casting all three votes for that candidate) or to engage in
coalition-building by casting three votes for three separate
candidates. Cunulative voting has been adopted aa a remedy in
vote dilution cases in New Mexico and Alabama. In a linited-vote
svstem, although all three seats are filled, each voter may cast
only one vote. Thls allows each voter to register a first-choice
preference, but prevents the najority from outvoting the minority
for every seat. Limited voting has been adopted aE a remedy in
North Carolina and Alabama. Under either of these systems, a
group the size of Little Rock's black cornrnunity, if it votes
cohesively, cannot be denied representatlon.

At a minimum, w€ think Little Rock must abandon the uee of
staggered terms and numbered posts for the at-large seats it
proposes to retain. OnIy cumulative or linited voting, however,
would provide black citizens with a truly equal opportunity to
elect their preferred candidates, since reliance on single-Ehot
voting both can be foiled by strategic slating on the part of the
white majority and requires that black voterE, but not whLte
voters, forego the right to vote for a full slate in order to
elect their preferred candidate.

We hope that if you bring these issues to the attention of
the City, it will voluntarily nodify the propoeed eystem to bring
it into compliance with the Voting Rights Act. If some
accommodation cannot be reached, the Legal Defense Fund iE
prepared to pursue with you a legal challenge under section 2.

Assistant Counsel

f*.Uzsza
Rona1d L. Ellis

fu"H't
Assistant Counsel