Collins v. City of Norfolk Court Opinions

    a\-..r*-: ,]1-i V JL,.', I
IV ED JUL 2 t 885

r OF APPEALS

q$r- FoRIHEFouRIHcmlr

No. 84-1819

Eerbert it - Coll ins ;
Dr. E. ilarks S,' Richard;
Barbara C. Parham.
Willian E. Swindell Jr. :

Dr. l,tilton A. Reid
Norfolk Branch. National Association
for t,he Advancement of Colored PeoPle;
George Banks an<i
JuIian Hazel,

versus

City of Norfo1k, Virglnia, a
municipal corporation; Vlncent J.
Thomas Mayor: Dr Mason C. Andrews:
Joseph A. Leafe: Rev. Joseph N. Green,
Jr.; Claude J, Staylor, Jt.; Robert E.
Sunmer s : and Mrs , Eli zabe Eh l,t. Eowell .-

members of the Norfolk City Council;
City of Nbrfolk Electoral Board;
Paul D. Frairn. Martha E. Boone' and
Paul H. Lipkin, members of the CitY
of Norfolk Electoral Board,

Appeal from the United States District Court
District of Virginia, dt Norfo1k. J' Calvitt
trict Judge. (C/A 83-525-N).

Appellants,

Appellees.

for t,he Eastern
Clarke, Jr., Dis-

Argued: April 1, 1985 Decided:

Before MURNAGBAN and CEAPiIAN, Circuit Judges'
Circuit Judge.

July 22, 1985

and BUTZNER, Senior

Frank R. Parker (WilIiam
brief) for Appellants; R.

L. Robinson; Patr icia
Earvey Chappel1, Jr.

M. Hanrahan on
(Pau1 W. Jacobs,



rI Chr istian Barton, EPPS,
Trapani.' EaroId P. Juren; LYdia
Actorney on brief) for APPellees.

Brent & ChaPPell; PhiliP R.
C. Taylor ; Of f ice of t'he CitY



UURNAGHAN, Circuit Judge:

llaintenance by the City of Norfolk, Virginia, of an at,-

Iarge election procedure covering mernbers of the ltat 
Council has

Ied to a suit by t,he National Associat,ion.for the Advancement of

Colored people and seven black Norfolk voters contending that

Section 2 of the Voting Rights Act, 42 U.S.C. S 19731 had been

violated. The suit also blairaed infringement of the Fourteenth

and Fifteenth Amendments through adoptlon ln 1918 of the at,-large

I (a) No votlng qualification or prerequisite to
votlng or standaid, practlce, or procedure sha11 be
tmposEd or applied by any State or political subdi-
viilon in a- hanner whlch results in a denial or
abrldgeruent of the ffi citizen of the
united states to vote on account of race or co10r,
or in contravention of the guarantees set forth in
sectlon 1973b(f)(2) as provided in subsection (b) of
thd.s section.

(b) A violation of subsection (a) is established
it, based on the t,olalitv of circqlostF.nces,, it is
shown -leading to nomi-
nation or election in the State or political subdi-
vision are not, equally oPen to Participation by
members of a class of citizens protected by subsec-
tion (a) of this section in that its members have
less opportunity t,han other members of the elector-
ate to participate in t,he pol itical process and to
elect represent,atives of their cholce. The extent
Eo which members of a Protected class have been
elected to of f ice in t,he sE,ate or political subdivi-
sion is one circumstance which may be considered:
Provided, That nothing in t,his section establishes a
E{I'ffi have members of a protected class elected
in- numbers equal to their ProPortion in the popula-
tion.

(Emphasis added.) .



election as a means to promote racially discriminatorl :bjec-

tives.
Thereliefsoughtldasreplacementwithaplanestab.

lishing seven single member districts, each with'one representa-

tive in t,he city council, together e,ith a declaration of the

illegality of and an injunction proh.!r'ciIr9 the at-1arge system

duetoanunlawfuldilutionofblackvotingstrength.
A bench Erlal rasting t,en days and producing over 2100

pages oE transcript, and more than 590 exhibits resulted in a

judgnent in favor of the clty of Norfolk and its officials joined

as defendants. The issues raised, t'hough sPorting various

guises,.wereessentiallyfactualand,inEheend,anountedt'othe

assertion that the district judge, in tris findings' was clearly

erroneous. lrtanifestly, a heavy burden has been assumed on appeal

bythepartieswholdereunsuccessfulinthedistrictcourt.
Anderson v. c!ty of Bessemer, North carolina' 53 U'S'L'W' 4314

(U.S. trtarch 19, 1985) .2 Accordinglyr w€ must examine ghe €actual

record 'in light of t,he aPProPr iat,ely def erential standard" af -

€orded the district courtrs findings' Id' at 4318'

lf the district' courtrs account of the evidence is
pi"r"inr" i;-iigha-;i the record viewed in its en-

tirety, the couri of appeals may not reverse it even

t,hough convi-n-cia that--had it, been sitt,ing as the.
r,r ier of E;;t-,- it would have weighed the evidence
differently.-wheretherearet,wopermissibleviews
of the evidence, the Eactfinder's choice between

them cannot be clearIY erroneous'

53 U.S.L.!{. at 4317.



Historically, in 1918, ProYision was made for a five-

member Cit,y Council, each to be elected at-1arge. Each tdas to

have a t,erm of four years, with terms to be staggered, presumably

to minimize the possible ill-effects of a 100t turnover, all at

the same tirae. Between 1949 and 1952, the number of councilmen

rose t,o seven. In 1958 a nine-member Advisory Study Commission,

one of whose members was black, was created by the Cit'y Council

to study and evaluate the 1918 Charter. Its rePort and recomBen-

dations appeared in 1971. ft unaninously recommended retentlon

of staggered terms and at-large elections, agreeing that 'coun-

cilmen should be elected by and be respo.nsive to the entire com-

munity rather than a portion of it. " The corumission also ex-

pressed a wish to avoid parochialism, which is another way of

saying the. sarue thing.

since 1968, one member of the city council has been

black, Joseph A. Jordan, Jt. from 1968 to 1977, and Joseph Green

from ;.g77 to the present. Jordan was vice mayor during his terms

beginning in Lg72 and I976. Green has been vice nayor since

t982. In 1984, John Foster, another black, was elected to the

City Council.3

3 A poinE pressed by the appellants v,as the asserted exis-
tence of a conspiracy to orchestrate Foster's election
through the decision, after the institution of this suit, of
a whiEe candidate to abandon efEorts to obtain reelection.

( Continued )



Pluralit,Y voting governs in Norfolk. Single-sh vot-

ing is not' ProhibiEed' i.e., casting votes for a fuIl slat'e is

not required'4 The Norfolk rules impose hw numbered Place or

SuchinE,erferencewith.tl:electionP.rocess.wouldnodoubt
have been or il;;"JJ "is1'ri;;;;;-i; 

ihe-;iiinate outcome or

the case, if;;;;";' 
-sowe;;;' it was or'rit"tat'ed bv the

district judgel;";iid'1s".'- 'r'i"t' " 'e- oot crearry erroneous '

rhat the wtrit=e 
-".ndla"a1'? -i;h1 at'al.u'"= for personar rea-

sons and rrral ;i;'-"req.+ "i;' 
"i""iion-oe 

a seqold brack

ll.i:":?:.'l;"fiiili,":,#""F*i"]lt.'.'S"1";"1::1?"I'3:
Rev. Fost'er 

'?-t" 'oicnest'lt"i ;;-'r'i't"- city of f ic-iars or

cornmunit'y r"tiJi" i"-"" "t["iit 
it 'ooot 

this action'"

The dissent contends t'haL it' rdas 
#.ffrffi ::l

the district "oott 
t'o conclude t'hat cit

ar,rerupr, ao ,ooJi-ihl insrant'iii=oit. To support its- conten-

eion, the ai=J"nt hig riehG- a newsP-aPel-1?ti"Ie 'in which

the trtayor or uEtolk was. goi1"a as sayiDg ' "Af ter the elec-

cion,thei.".u-"I-f.o.'""*.ilpi!=Ent"ti.on.*.ybecomeamoot
oo inr . , wherher rhar pdii;;;i" "t"t"^"nt 

which ' otr its

tace, amounts to no morg it't" the "*pt"""ion 
of an' opinion

by no means 1i"..";i'ii-in;;"or.t", 
cons-t-i-tuted a subtle and

improper ..",Ii=i}!";r. ei"iila-iirgery ;;.i;; credibility of

r,he l,layor ," .iir"iI" gr- . triJi- "iil-"*eit- 
as well as a close

Eactual "*"*"'!l'l'i"- 
q' tnt'i'"";;;il"-iicrctr mood in Norrolk

ar t,he r,irue # t;.; iir-y coii.ii erection' tno='. Ie in t'he

oanel majoriiy- aie- trarap."II"a-to upset-tt'" district- judge's

ionclusion th"t'"io"t"ii-" election !?: not promoted for an

improper potpo="' see ana=""li.n-l" iit" ot eessemer' -W-'
at 4317

AlthoughStaggeredtermscanhavetheeffectofErustrat.
ins siner!ls-r,-oT'oot-ing_]''iiJ Jistr ici";t;;i Eound t'hat the

cicy of *"ii.i,. aaaulla ''J;ri i; i;;i- "olatt'"" at t'r iaI to

prove rn"[-lfr" staggerJi t-".r= of ift"- Clty Council members

did nor pio*oe" "treaa .iJ he;a "ont"=i-= 
itl'""tn lBlacks] and

whites "'i- tdid no!)- 1:;'i;;-til:lJi-of 
Ehe oeportunit'v to

elect a ."rraidate uv -s-ingre-shot . y1iifl9 - " citv of Rome v '

H*ffi i 3 I 3, ! ; : ; . 
t 

? il ;ii lt1 ;; U 
I I 

= 

t i l;s 
=: 

: ffi :', : ? : : ;
eEEecr op* Norf ork'=.'til=v 

'-*;ry':i -erections 
' ' it would be

r ikelv th;l the electi;;; f or -tlt: i"*""t number o f seats

would not' vierd any iili*'I""aia"t""'- Yet the evidence

( Continued )

6



residency requirements.5 Since the Passage oE the Voting Rights

Act in 1965, the black voter registration rat'e and turnout rate'

based on a percentage oE the black voting age population, have

increased to the point that, today they exceed t,hose of Norfolkls

whitepopulation.Whit'eregistrationis5l.2tofthewhitevot.

ing age population as against 52'9t for the black voting age

l6oIIG."a Ehat in those elections in which the f ewest

number of "";;:-t".-, ttit""--were j!"1, -l?t ^:t1L1lo"j.,* 1[iM' oJu' 
"i=*?i-" 

ffi'vrctorious. rn lishr or such evi-
dence, the aiJdriJ .ootii = f indings with respect t'o stag-
gered terms cannot be deemed clearly erroneous'

lhere is disagreement over whet,her residency requirements
ninimize the voting strength qf- I-t:]:l minor ities' S(il1

Roqers v. Lodge , 45ti u' s' e iS, 627 ( 198.2) (without residency
# -.-*iC".ts - c'ou1d reside in "'Iily-whiterrequirement
;;i;ffi-;1r-ogs"; ) . .coppa,re 

per*t"= ,. 
:t?I a?' #E"to *l"EEi67s F.2d zoL' 212_]tfcTffi67)-71

( 19g? ) (Ward iesidency ,"q-oit"*elt,-' intffiiia, ef f ectively
prohibired single-shor voii;; -;;a 

" ei-h-arrceTET-tne Poss ib il-
ity t'hat f cityi;i ti""eioniJnene lwas] being maintained for
a discr iminat'or-y puipo"t' ) : - The lesson !o ?: der ived is
that any partlcu'Ia; aipect'of the voting Process l"el not be

absolutely gooa- ot bad. Rather the apPlic-ation in the Par-
ticular case should controi, ina we si:buld eschew generali-
ties. Dete.ri"ing whethei residency requirements., or the
lack thereof, hinder the position of racial minorities
within the electoral p.o""""- requires a careful factual and

statistical ""irV=G'"t 
-the sfecific political communi't'y

under scrutinY.

In the instant case, the district court' after consider-
ing a1I of t,he evidence, concluded that' t,he lack of a ward

residency req;i;;";J aia nor enhance rhe opportunit,y for
discrj.minatiJn 

-in elections for Norfolk City Council mem-

bers. That conclusion 'ras amply suP-Ported by tle record '
Eor example, 

- Lh; record aemotisirated t'hat the lack of a

residency r"gJ."*""i aiA not water down the ability of
black voters '=u.""="f u11y t.o util ize single-shot voting nor
eid it resulc in "IiIy-white" representaEion.



poPulation.ThoseEiguresdevelopedbyleg:-essionanaljr.are

comparable to 53.lt white and 55.31 black on the hornogeneous

precinct analysis. Black voEer turnout ex-eeded whit'e voter

turnout in Ehe 1984 election. The black turnout- rate t'as 111

higher .6

Norfolk,seffort,stoincreaocroterregistrat,ionhave

been exemplary. In the 1984 election, s ix st'af f positions tdere

equallydivided,t,hreeandthreelnthemainregistrationof-
ftce.ofthe3Tlelectionofficers,l02wereblack.

TheConcernedcitizensofNorfolk,ablackpolitical

organization, endorses both black and white candidates and wields

considerable c1out. From $72 through 1984, iE had endorsed

twenty-one candidates for the city council ' Thirteen (621 ) have

been elected , of whom five were black and eight white '

ThemunicipalworkEorcet,as36.I6tblackinL9T3,

41.3lt black in 1983. Representation on major boards and commis-

sions appointed by the city council has been reasonably good'

The parties sti.oulated that Prograrns and services of the flre

department,t,helibrarydepartment,andt,heDepartmentofEluman
Resources did not, discriminate against blacks and have been re-

sponsive to their needs '

Thosestatist,icsCamefromstudiesint,roducedinevidence
by the appeliint=. They did not cover the predominantly
white residents oE navaf bases and ships. Ead Ehey been

included, the-statistics would have been even more striking
as to black Predominance '



There are other stat,ist ics which generally show ilu-

provement ln t,he status and circumstances of blacks in Norfo1k.

The median income dispariEy ($17,548 for whites, $10,250 for

blacks), an endemic problem for the entire Uniteft SE,ates, has not

been demonstrated to be related in any eray to the procedures for

election to the Norfolk City Council'

In amending in 1982 the Voting Rights Act, congress

called for conEideration, in problng the totality of the circurn-

stances, of the folloring factors:

1. t,he extent of any history of off icial discrimi-
naiion in the state or political subdivision that
touched the rtghc of the members of the minority
grorp to regist6r, to voter oE otherwise to partici-
pate in t,he dernocratic Processi

2. the extent to which voting in the elections of
the state or political subdivision ig racially Po-
lari zedi

3. the extent t,o which the state or political
subdivlsion has used unusually large election dis-
tricts, majority vote requirements, anti-single_shot
provisionsl or bther voting pfactices -or procedures
ffrat may enhance the opportunity foc discrimination
against the .rui'norit'Y grouP;

4. if there is a candidate slating Process,
whether the members of the minorit,y grouP have been
denied access to that Process i

5. the extent, to which members of the minority
group in the state or polit,ical subdivision bear the
6tfelts of discrimination in such areas as educa-
tion, employment and health , which hin<ier- . t'heir.
ability io participate effectively i'n the political
Process i

5. whether poliEical campaigns have been cha-
racterized by overt or subtle racial appeals;



7 . the extent to which members of the minor it'y
group have been elected to public office in the
j ur isd iction;

t8.]whetherthereisasignificantlackofre-
sporrsl.r"rr""s on the pa+ 9f elec.ted off icials to the
pireicurirized needs of the members oE the rninorit,y
grouP.

tg.lwhetherthepolicyu^d1.1yingt'he.stateor
poiitical subdivision's use 'f such voting quali-
fication, prerequisite to vocing, ot standardr pfac-
tice or Procedure is tenuous.

s. Rep. No. 417,97th Con$.r 2d sess. 2, reprinEed in 1982 U.S.

Code Cong. & Ad. News L77, 206.207. Those fact'ors, while gener-

ally the most probative, are not exclusive. Congress, through

the senate commlttee on th- Judiciary, has made clear that at-

large elections need not be elirninated. Id. P' 211' The test

established by t,he 1982 arnendments merely codified Pre-existing

law. See i -e.L_, white v. Reqester , 412 U. S. 755 11973 ) ; Zimmer

v. t{cKeithen, 485 F.2d L2g7 (5th Cir. 1973) (en banc), aff 'd sub

(1e76).

Looking at the facts, €lS established by the record as a

who1e, and rneasuring Ehe question presented by n the t'otality of

the circumstancesrn we simply are not left with a firm conviction

that an error has been commiEted by the district judge. see

United States v. U , 333 U'S' 364, " 395

(194S). perhaps, in such detailed and lengthy findings as the

dj.strict judge made here it is inevitable thaE a phrase sprinkled

t0



here or there might occas ion regr et.,7 but t,he question is not

whether we could have done better--a matter necessarily of some

uncert,ainty--but whether the district' judge to whom the resolu-

tion of factual disputes is finally allocated was clearly errone-

ous. We cannot say that he was. Accordingly, w6 afflrm.

AFFIRIttED.

For examP}e, the dissent contends that the distr ice
court, evide-nced by his remarks t'hroughout tria1, "equated
;pioporLional polit-icaI representation' with the institution
o? a ward systin in which sone wards will have a majority of
black voterl. o Eowever , the distr ict j udge' s r,emarks must
be read in the context of a rather long and difficult trial
in which he was attempting to comply with Ehe pro.viso in S 2

;i the Voting Righcs-acC ('provided, That nothing in this
section establlishls a right EEve members oE a protected
class elected in numbers equal to Eheir ProPortion in t'he

;;p;iaCion.'). Thus, the diltrict court, in contrast to the
Silsent's assertion, did not concluder EIS a matter of Iaw,
t,hat ward systems would be violations of that proviso but
rather mereiy attempted to grapple with the interplay be-
tween the appellantj' desired relief and a statutory prohi-
bi Eion.

11



BUIZNER, Senior Circuit Judge, dissenting:

The principal issues the appellants raise address errors

of law to which the clearly erroneous rule uoes not aPPly'

pullman Standard v. swint, 456 U.s. 273, 287 (I982I' Because

these assignments of error are meritorious, I would vacate the

judgnent of the district court and re-- .d the case for con-

sideration of the evidence in accordance wiEh correct legal

standards.

Theappellantscomplainthatthedistrictjudgedenied

them a fair trial because of his expressed antipathy to the

conversion of an at-Iarge electoral system to a ward system in

which some wards would have a predominately black population'

InsuPPortoftheircomplaint,theappellantsemphasizethe
following comments of the district court during the proceed-

ings:

WelI, aren'
system which
Icouncil], that

***

t you when You're asking for a ward
wiif guarantee more blacks on
is a quota sYstem, isn't it?

.That'stheproblemlhavephilosophicallyandl
may be Premature in raising it'

***

WeII, the real question is whether segregated
votingoughttobetheruleofthedayorintegrated
voting.

***

If you had a tOO percent.black ward' there
won,t be any *rrit" candidates there for blacks to
vote for, would there?

L2



See, what concerns me is you are esPousing seg-
regated voting, and Ehat really concerns me as a
matter of principle.

Wetre trying Eo integrate housing, werre try-
ing to integrate schools, werre trying to integrate
jobs, rderre trying to integrate society so it will
iork together, and your position is, as a very basic
thing, which goes Eo how we live and how tde get
along together, and that is the right of franchise,
you want to segregate. And that does concern -me.

* * *.

So your design, I take it, then is to see that
the blacks get a certain quota of people on city
counc i 1?

***

When you segregate them aren't you creating
more problerns than yourre doing good?

**t

They have voted for
black and white, and
grated society than
stockade and say this

successful candidates, both
isnrt that better in an inte-
putting somebody in a color
is the way you're going to do?

*

How is the establishment of a ward system going to
correct Iracial appeals] ? How are you going to
bring about a millenium of Peace on earth and good
will toward men by segregating the white vote and
the black vote by establishing a ward system?

The court's characterization of the relief the appellants are

seeking pervaded its perception of the entire proceedings.

Thus, in the introduction to its opinion, the court wrote in

discussing the "Applicab1e Lawn:

Two competing legal principles are apPlicable
in this case. The first is that political systems
or practices which deny minority voters access to
the political system have been repeatedly struck
down by the courts. . The second is that courts
have consistently rejected the view that any grouP
has a constitutional right to ProPortional politi-
cal representation. . These competing lega1

13



princiPles are rr'i'rectlY involved in this case'

i"itition" omitted)

The appellees respond that the district court was not

biasedanditdidnotdenyt'heappellantsafairtrial'onthe
contrary, they sstr the concerns raised by the court

rrere solely in -the context of - (t) whether ' a ward

svstem ii-ilorforr ""uiil-i" 
ilqer-'to establish ap-

pelrantsi- goals' '"g"i-r-J 
a quota' system contrary to

rhe "*p.""3 
- 
prou-i 

= 
io_ni' k- tfr"-vot-i-n; 

-aignt= Act . 
and

(Z) *n"rili ',r"ia" ir, 
-tlJr?o-ir,'.oufd,' as a Fractical

matter, end cfo.ss-o'"'--iJ"itr votinj P'?t!lI:: and

coalit,ion politics ,ii"t,.iiE=u*ably 
- otherwise are

to be encouraged'

Idonotsubscribetotheappellants'complaintofbias.
Thecourttserrorwasnotduetoprejudice.lheerrorwasthe
courtr s incorrect interpretation of the proviso found in sec-

tion Z of the voting Rights Act, which states: 'Provided'

thatnothinginthissectionestablishesarighttohave
membersofaprotectedclasselectedinnumbersequaltotheir
proPortion in the population" 42 U'S'C' S 1973' Both the

appellees and t'he district court incorrectly have equated

'proportionalpolitical.rePresentationnwiththeinstitution
ofawardsysteminwhichsomewardswillhaveamajorityof
black voters'

GiventhecourtIsmisperceptionoftheproviso,judgment
againsttheappellantswasforeordained.Itiswrongtoreme-
dyanillegalat-IargeSystembysubstitutingaProportj.onal
rePresentationsystem;butitisnotwrongtosubstitute'a
fairlydrawnwardsystemeventhoughsomewardswillhavea
majorit'yofblackvoters'Onmoret'hanoneoccasiontheSu-

PremeCourthasapprovedconversionofdiscrininatoryat-large
systemtoawardsystem.Thewardsystemmustbefairly

l4



4rawn, but if this condition is met, it is no impediment that

some wards have predominately black residents and others have

predominaEely white residents. For example, in City of
Richmond v. United States, 422 U.S. 358, 372 (1975), the Court

approved the replacement of an at-large electoral system for
the city council with a ward system of four wards -with a 64t

black majority, four wards with a heavily white electorate,
and one ward with a 40.9t black population. More recently,
approving the conversion of an at-large system to a ward sys-

Eem in Rogers v. Lodge, 458 U.S. 513, 5I5 (1982), the Court

observed that a minority may be unable to elect representa-

tives in an at-large system, but it may be able to elect sev-

eral representatives if single-member districts are estab-

lished.

The appellants do not seek proportional representation.

Instead, they seek conversion of an at-Iarge system to a ward

system. Nevertheless, in its discussion of nApplicable Law,'

the court confused an impermissible "proportional political
representation plan" with a permissible ward p1an. The

couit's perception that the relief Ehe appellants sought com-

peted with the rights secured by section 2 of the Voting

Rights Act was a mistake of law that infected this entire pro-

ceeding. fndeed, the concerns the district court expressed

during the trial about the remedy Ehe appellants seek were

similar to the views rejected by the congress when it enacted

the L982 amendments to Ehe Voting Rights Act. See Gingles v.

Edmiston, 590 F. Supp. 345, 356-57 (E.D.N.C. 1984) (three-

15



judge court), P-Eg,E,' iuris' noted' Thornburg v' Gingles' 105 S'

Cr. 2L37 (1985).

Althoughtheappellantscontendthatsomeofthedistrict
court,s findings are crearly erroneous when tested by the pre-

cePtsofUnitedStatesv.UnitedStatesGypsum.co.,333U.s.
364,395(1948),theprimarythesisofEheirappealisthe
commission of errors of law' They assert that the district

courterredinapplyingthecriteriaPrescribedbyS.ReP.
No. 4L7, 97th Con$' r 2d Sess ' 28-29' reprinted in 1982 U'S'

Code Cong. & Ad' News L71 t 206-207 (hereinafter cited as

SenateReport).Thesecriteriawerederivedfromcaselawand
shourd be interpreted in the right of that raw.

oneofthemostimportantfactorsCongressdirected
courtstoconsideristheextenttowhichvotingisracially
polarized.Thedistrictcourtadoptedadefinitionofpolari-
zation that required the appellants to prove "white backlash"

andthat"whitesattemPttolimitthefieldofcandidates.n
InSupPortofthisdefinition,itcitedasinglecase,United
Statesv.DallasCouniyCommission,548F.SuPp.875,904-05
(S.D.AIa.1982).Thiscase,however,hasbeenreversedbya
decisionthatrecognizedtheexistenceofracialpolarizat,ion
without, requiring proof of either additional element' See

United States v' Dallas County Commission' 139 F'2d L529'

I535-35 (Ilth Cir' 1984) '

The definition of polarization the

is contrary to precedent' The Supreme

that racially polarized voting exists

district court aPPlied

Court has recognized

when there is "bloc

I5



\ .r--ing along racial lines. " Rogers v. Lodge, 458 U. S. 613 ,

623 (1982). See United Jewish organizations v. carey, 430

U.S. L44, 155 (L977) (voting following racial lines). See

also NAACP v. Gadsen County School Board, 591 F.2d 978, 982

(llth Cir. 1982); City of Rome v. uniEed states, 472 F. SuPp.

22L, 226 (D.D.C. L979) (three-judge court), aff rd, 446 u.s.

156 (1980).

The additional elements the district court engrafted on

the accepted definition of racially polarized voting require

proof of intention to abridge the minority's voting rights.

this is evident from the Courtrs insistence that minority con-

plainants prove that "whites attemPt to limit the field of

candidates.n But in enacting the 1982 amendments to the Vot-

ing Rights Act, Congress eliminated the necessity of proving a

discriminatory PurPose to establish a violation of the Act.

See Senate Report at 2'7, 1982 U.S. Code Cong. & Ad. News 205.

The disirict court's interpretation is contrary to the cardi-

nal principle of the 1982 amendment.

Another factor deemed important by the Senate Judiciary

Cornmittee is a slating Process to which the minority has been

denied access. To determine whether this factor exists, the

district court adopted, without the citation of precedent, a

restrictive definition of a "slate." The court required the

appellants to prove a "permanent or semipermanent organiza-

tion" which solicits candidates Eo run for office and puts

them up trfor as many seats as are open.n The legislat,ive his-

tory offers no suPport for this definition. It is contrary to

LI



the accepted rneaning of " slate ' 
n which Webster t s Third

InternationalDictionarvdefinesassimply''thegroupofPer.
sonsproposedforappointment,nomination,orelection..,sig-
nificantly,courtsthathavediscussedslatesoraslating
process hive not imposed the burdensome requirenents initiated

by the distrlct court' See White v' Regester ' 4L2 g'S' 755'

166..67 (1973); Mclntosh County NAACP v' Darien' 505 F'2d 153'

758 (5th Cir. 1979) '

Theresponsivenessofelectedofficialstotheparticu-
larizedneedsofthemembersoftheminoritygrouPisanother
factormentionedintheSenateReport.Initsinquiryabout
thissubject,thedistrictcourtrequiredthehppellantsto
ProvethattherelocationofapProximatelyls0oblackfamilies
whoseneighborhoodwasredevelopedformiddle-incomefamilies

t{asraciallymotivate.d.Thiswasanerroroflaw.Itbears
repeatingthatminoritycitizensarenotrequiredtoprovea
discrininatorypurposetoestablj.shtheirrightsundersection
2oftheVotingRightsAct.FaultyinterpretationoftheAct
isnotavoidedbyrequiri.ngproofofnracialmotivation,"for
thistermissimplyasemanticdisguisefor"discriminatory
purpose. "

ContrarytoSupreneCourtprecedent,thedistrictcourt
held that staggered t,erms and the lack of residency require-

mentsdonotenhancetheoPPortunityfordiscriminat.ion
againstminorities'seeCityofRomev'UnitedStates'446
U.S. 155, I85 (L980) (staggered terms); Rogers v' Lodge' 458

U.s. 613, 62'7 (f982) (Iack of residency requirements) ' See

18



a so Jones v. Lubbock , 727 F.2d 364, 383 (1984) (staggered

terms are evidence of violation of section 2 of the voting
Rights Act). Additionally, staggered terms of office are

cited as examples of objective factors of discrirnination in
both llouse and Senate reports. II.R. Rep. No. 227, 97th Cong.,
lst sess. 18 (1981); senate Report at L43-44, L9g2-u.s. code

Cong. & Ad. News 315-16.

rt is not the functi.on of this dissent to reassess the
evidence in light of the correct principles of 1aw. This can

be undertaken by the district court on remand. rt is enough

to note that the district court,s judgnrnent is fatally flawed
by its erroneous interpretation of statutory and case law and

that application of proper legal standards to the evidence

could alter the outcome of this litigation.
Nevertheless, a fact the district court omitted in its

opinion deser.ves cornment. The keystone of the appellees' de-
fense was the election of a second black councifunan in 19g4

after this action rras commenced. The appellants challenge the
significance of this event. They point out that despite a

long history of discrimination by city officials, the mayor

for the first time supported a second black candidate for
council. The appellants emphasize that the mayor publicry
stated how the election of the candidate would affect this
litigation in which the mayor was a defendant.

Testifying under cross-examination, the mayor admitted
that he was quoted correctly in a newspaper articre before the
election:



IPlaintif f s' 'attorney]: Now, the next to the
last paragraph of that article, "The election of a

seconi Uticf Council member could influence the out-
come of an NAACP suiE seeking a ward system in
Norfolk. The suit contends current at-large elec-
tions have prevented blacks from getting f3ir rePre-
sentation on Council and seeks to establish a ward
system. The case is scheduled to be lheard] ]lay L7
in the U. S. District Court.

And then you're quoted here, Mayor, o'After the
election, the issue of black rePresentation may be-
come a moot Pointr' Thomas said- "

Do you agree with that?

$.layor]: Yeah, .I said that. Thatrs merely an
observatlon. That has nothing to do wiEh my motiva-
tion for supporting a black for City Council.

Regardless of his intentions about supporting a black candi-

date for an unPrecedented second seat, the mayor seized on the

opportunity of that candidacy to let his constituents know

that a favorable vote for the black candidate could moot the

issue of black rePresentation, a development, of courSe, which

he favored.

The mayor's published statement eras a subtle racial aP-

pea1, of the tyPe which the Senate report condemns, for im-

plicitly it appealed to all who opposed the ward system, which

rrras sought by the NAACP, to vote Eor the mayor's black candi-

date. The district court did not discuss this episode. In-

stead, it brushed aside Ehe challenge to the appelleesr de-

fense as 'innuendo." Without mention of Ehe mayor's public

statement about mooting the issue of black representation, the

district court found: "There is no evidence that the election

of Rev. Foster was orchestrated by white city officials or

community leaders in an attemPt to moot this action. "

20



Whatever t,he mayor did or did not do to "orchestrate" the

black candidacy for a second seat, he certainly promoted it
for an irnproper purpose. The mayorrs tactic is not ne$r. It
has long been suspect. In a case from which the Senate Judi-

ciary Committee. derived the factors it prescribed, Zimmer v.

McKeithen, 485 F.2d L297, 1307 (5th Cir. tg73), aff '-d sub nom.

East Carroll Parish Schoo1 Board v. MarshalI , 424 U.S. 635

(1975), the court said:

[W] e cannot endorse the view that, the success of
black candidates at the pol1s necessarily fore-
closes the possibility of dilution of the black
vote. . . . [S] uch success might be attributable to
political support motivated by different considera-
tions--namely that election of a black candidate
will thwart successful challenges to electoral
schemes on dilution grounds.

Because the evidence discloses Ehat the mayor publicly repre-

sented that election of the black candidate, whom he sup-

ported, might moot the issue that is at the heart of this ac-

tion, I cannot accept the notion that the district court's
f inding 'ras not clearly erroneous.

I respectfully dissent.

)1