*1 question confronting court on is men could whether reasonable ROME, this issue GEORGIA, CITY OF et at the conclusion that Antoine did arrive al., Plaintiffs, expect Kipnis. If not intend to wound v. men such a con- reasonable could arrive at STATES of America UNITED et clusion, there the trier of exist an issue for al., Defendants. facts, summary judgment hand, On the reasonable proper. other A. No. 77-0797. Civ. conclusion, could men not reach such a Court, States District United summary judgment granted. should be District of Columbia. Boeing F.2d Company Shipman, (5th 1969); Wright 374-75 Cir. & A. C. April Miller, Federal Practice & Procedure § at 703-04
The court has reached the conclusion surrounding the circumstances con Antoine, of Kipnis,
ference Tewes arranging same,
reasons almost
uncontradicted evidence as to what oc conference, during the office
curred thereafter, parties conduct no
leave reasonable conclusion other than Kipnis
Antoine called office into the him.
shoot Antoine’s version of matter jury
is so unreasonable no reasonable could
accept testimony it. At a trial where such
might presented judge would be
compelled to direct a the mov verdict for Under Horace
ant. such circumstances
Mann is entitled to summary judgment judicial policy
to a determination
of insurance held Antoine did not cover incident, and Horace Mann no liabil
ity any nature other to Antoine or on account thereof.
party
SUMMARY sustaining
The court will enter an order summary judgment
Antoine’s motions for
and motion dismiss in GC 77^-33-S-P and
directing judgment the clerk to enter final favor; dismissing com- his the amended filed
plaint, Nov. requests
The court counsel Horace appropriate declaratory
Mann for the in GC 78-
judgment court enter
80-S-P.
OPINION McGOWAN, Judge: Circuit judgment a declaratory This is action brought Voting Rights under the Act of seq. 1973 et It U.S.C. is before *3 pleadings styled the Court on cross-motions summary judgment, for based evidence developed stipulated Although in a record. parties recognize record presents fact, genuine issues of material willing for us to resolve these judgment. issues and reach final This we following opinion, have in the which done Findings shall constitute the Court’s of Fact required by and Conclusions of Law as Federal Rules.
I A. (Rome City
Plaintiff of Rome or City) municipality is a in Floyd County, situated Georgia. northwestern population Its 1970 30,759, 23,543, 76.6%, of whom or were 7,216, 23.4%, white and black. Of its voting age population, total 1970 79.4% black; were white and 20.6% as of its 13,097 registered voters were white 83.9% City and 15.5% black. administered council-manager government. form of Plaintiff Bruce Hamler is the Rome Hunter, Manager plaintiff and H. F. Jr. is Chairman of the Rome Commission.1 City’s govern- The basic structure of the ment was established a Charter enacted Brinson, City Atty., City Robert M. Georgia Assembly. in 1918 General Rome, Ga., Sumner, E. and William Atlan- provided The charter for a Commission of ta, Ga., plaintiffs, with whom was Jo- members, seven one from each seven Dorn, seph Washington, W. D. C. wards, concurrently, large, elected and Hancock, Justice, Atty., Dept, Paul F. by plurality vote. The same estab- Charter C., Washington, defendants, D. Education, consisting lished a Board of III, Days whom were Drew Atty. S. Asst. concurrently, large, five members elected Gen., Jones, Gerald W. Frederick J. vote; and by plurality unlike the Com- McGrath, Jones, and Carmen L. Attys., mission, however, residency there was no Dept, Justice, Washington, D. C. requirement for the Board of Education. In 1929 wards were annexed two additional McGOWAN, nine, Before Judge, Circuit and City, making a total of and RICHEY, Judges. provided GASCH and District in the seats for these wards were Stipulation
1. Parties’ First of Facts 1-2. by state 1964 either rules, however, ed after November Election City Commission. by local unchanged.2 law or ordinance.11 substantially remained the Novem- Beginning in and after B. Voting coverage date ber Assembly Georgia Rights developed voluminous parties made a num- through amendment history Charter bearing on the evidence proce- election changes political ber of Rome’s affairs of black condition require- majority It enacted vote City’s dures. side City of Rome. On the sheet, literacy Board of Educa- for Commission and no test ment find that balance pro- general primary elections in Rome employed tion device has been or other timing dur- registration for the runoff to voter prerequisite vided conduct as a elections;3 regis- years. of wards While ing past reduced the number seventeen pass the three;4 required provided technically nine to were from trants *4 tests, the affida- literacy was of one Commis- or character Commission to consist state responsible for posts City officials from one of three numbered in vits of sioner wards;5 by the unani- registration, supported size each of three increased the of voter six;6 testimony deponents, of are to five to mous black the Board Education from never been that such tests have the Board of Education was the effect provided not been discriminatorily and have applied of one from one two to consist member years.12 at all in Simi- posts in three wards and administered recent numbered each of employed has other barri- larly, that each candidate had to be a resident of ran;7 respect to time and stag- registration instituted ers to with the ward in which he personnel, gered registration purging, place, terms Board Commission Education;8 the lack reregistration.13 probative on voter Also eased restrictions reg- is the fact qualifications;9 registration voter of discrimination in and transferred County.10 registration at a rela- responsibility istration to the that black remained voting proce- period changes tively high throughout to these level addition dures, sixty some were effect- annexations 1963-74.14 Deposition 54; Deposition Wright 2. Id. at 3-4. Joe 42-43, 48; Deposition Fielder 69-71. 2816-17; 2383; 2376; id. id. 1966 Ga.Laws 3. 43, 48; Deposition Wright James 13. Joe 42— 3084; 2563-64. 1970 Ga.Laws id. 22-23; Aycock Deposition Wright Deposition 70; Depo- 44-45; Deposition Moreland Fielder 2379-80.
4. 1966 Ga.Laws sition 49. 2375-76; id. 2383-84. Ga.Laws 5. 1966 Interrog- Defendants’ Plaintiffs’ Answers to 14. following atories, supplied the Ex. 1. Plaintiffs Ga.Laws 2816. 6. 1966 registered in Rome voters of total breakdown period: during this 2816. Ga.Laws 7. 1966 TOTAL 2816-17; 2375-76; 1967 id. Ga.Laws 8. 1966 YEAR TOTALS BY RACE REGISTERED 3296-97. Ga.Laws WHITE BLACK VOTERS 1963 8097 1832 9929 3069-70. 9. 1966 Ga.Laws 1964 8313 1864 10177 1965 11241 2637 13878 Facts, Stipulation Ex. 24-25. Parties’ First 1966 9182 2154 11336 1967 9532 2236 11768 pp. 5-6. Id. at 1968 10585 2483 13068 1969 9906 2324 12230 Support Motion 12. Affidavits in of Plaintiffs’ 1970 11081 2599 13680 Ray Judgment Summary Beard and of Mrs. 1971 9969 2338 12307 21; Dowdy; Deposition Mrs. Helen Carmichael 10481 10; Aycock Deposition Deposition Jackson 22; 45; Dep- Wright Deposition Houser James 16-17; 8; Thomas.Deposition Moreland osition Further, employed number of blacks years at least in recent there skilled or supervisory positions.21 have been no other direct barriers to black voting in Rome. Blacks have not been de- politics, community, the black In Rome through loca- nied access ballot group, probably can to vote as it chooses polling places, tion of the actions of election many if not most the outcome of determine officials, the treatment of illiterate voters Thus, white candidates many contests.22 or similar means. Nor is there evi- support of black vot- vigorously pursue the candidacy dence of obstacles to black testi- present Commissioners ers.23 Several candidates, fees, respect slating filing spent proportionally more fied qualifying, obstacles to access to voters at community24 in the black campaigning time Indeed, whites, polling places, or the like.15 they “needed that vote to win.”25 because officials, including City have encouraged hand, most voters posts blacks to run for elective in Rome.16 On other black repre- official Carmichael, prefer to have a black black, would Elgin appointed A senting interests.26 Yet there their of Education when vacancy Board political office never been a black elected to body.17 occurred in that Indeed, only four of Rome. Rome, The white elected officials to- sought such office. Two have ever blacks gether appointed City with the white Mana- them, Dr. John W. Whatley M. D. ger, responsive to the needs and inter- Jr., Houser, of Education ran for the Board community.18 ests of the black 1960’s, early respectively; in the 1950’s and *5 against has not discriminated blacks in the black, Another neither did well.27 Samuel provision of services and has made effort Stubbs, Republican primary ran in the neighborhoods.19 upgrade some black Commission, City and received election for City department, pre- transit with a the 276 cast.28 only 79 votes out of dominantly ridership, operated black is in strongest black candidate through continuing City a subsidy.20 By And far Hill, Clyde who was Rev. history composition City the racial Rome’s workforce in 1970 Board of Education ran for the approximates population, that of the with a Responses Republicans, 15. Defendants’ to Plaintiffs’ Second are as is 1 of Commissioners Request for Admission of Facts and Genuine- the 6 members of the of Board Education. Documents, 4(b), 4(a), Deposition ness of 31. Nos. Hunter 9. 31; Deposition Depo- 16. Carmichael Moreland 58-61; Clary Deposition Deposition 23. Hamler 31; 48-50; Harvey Deposition sition Hamler 41; 47; Aycock Deposition Carmichael 39— 44— Deposition 26. 40; Deposition Deposition Moreland 38-39. Deposition 17. Carmichael 7. 18-24; Deposi- Harvey Deposition 24. Hunter 23-24, 30, 40; Deposition 14-17, 27; 18. Id. Deposition Fielder 17-18. tion Wade 39— 56; 11-14; Deposition Deposi- Houser Jackson however, (noting, responsive- tion 42—45 18; Deposition Harvey Deposition 25. Wade see City Manager greater ness of than that of was 20. Commissioners); Deposition Moreland 40. 12; Aycock Deposi- Deposition 26. Carmichael 57-66, 76-85, 142-145; Deposition 19. Hamler 11; 53, 75-76; Deposition tion Jackson James 41^44, 65, Deposition Hunter 79-81. 51-53; Wright Deposition Wright Deposi- Joe 20-21; Deposition 50. tion Fielder 91-98; Deposition Deposition 20. Hamler Wade 22-26. 9-10; Aycock Depo- Deposition 27. Carmichael 98-115; Deposi- Deposition 21. Hamler Wade 13; 17; Depo- Deposition sition Fielder Houser 32-33; 28-29; Clary Deposition tion Hunter 4-6, 10-11, 21; Wright Deposition sition James Deposition 65-66. 36, 54-55. Although predominantly 22. voters in Rome are 4; Deposition Stipula- Parties’ First 28. Stubbs Democrats, elections in the are no Facts, of tion Ex. 32. conclusion; indeed, foregone means a 6 of the 9 ward, residency numbered-post, judgment get cause in their could not a majority in 1966.29 system instituted votes.34
majority-win campaign against vigorous a ran Rev. Hill Underlying perception in the black strong and, with the opponents, three white community voting by is a belief bloc a received community, in the Rome. black race exists Racial bloc support of where, voting ais situation when candi- general votes cast plurality of running of different for the dates races a not receive he did Because election.30 office, large same voters will a however, into forced he was majority, for the candidate of their vote own race.35 runner-up was with the runoff election Unfortunately, a statistical demonstration defeated.31 non of racial bloc vot- vel of the existence Rev. failure of years since ing impossible present is in the case.36 community in candidacy, the black Hill’s is, however, There other evidence of record It is apathetic.32 politically been Rome has probative of the existence racial bloc blacks that black widely among believed voting. a. public office
will be elected never First, virtually testimony unanimous majority-win long as Rome as that, choice, deponents given of black A number remains effect.33 system voters in Rome tend to for the will vote However, be- race.37 will run for office candidate their own qualified blacks happens, regularly un- it is Deposition where it district likely 29. Hill 12-13. who will elected candidate 9-13; 17-18; Deposition Wright 30. Joe Id at is minori- race that is a member 16; Wright Deposi- Aycock Deposition James ty in that district. 12; Deposition 10-12. Hill re- tion Moreland Carey, Organizations United Jewish 144, votes, against L. Dr. Sara ceived L.Ed.2d Anderson, Hoyt, 143 for 407 for Jean V. (1977) (plurality opinion). Stipula- Rev. L. Jones. Parties’ First Warren demonstrating racial The surest method Facts, Ex. 28. tion of results, analyze is to broken bloc Hoyt differing received 1409 votes the runoff Dr. of districts of into a number down compared with 1142 Rev. Hill. makeup, election as a white an election which racial Facts, Stipulation Parties’ First Ex. 29. pitted against If one. candidate black *6 positive is a correlation in a sufficient there 31; Deposition Deposition 32. Jackson 11. Hill race between voters of one number of districts runoff, Rev. Hill’s defeat in ing after his seem- by percentage received and of votes election, general victory as a in the came race, of that it can be inferred candidate then disappointment many in bitter the black voting occurred. Stated that racial bloc community. deponent, one it the words of impressionistically, if District A is more white, 80% political people,” so that “killed a dream of candidate receives and the white 80% young particularly “have no in the blacks faith black, vote, and the and B is District 80% political process in the of Rome.” here vote, it is a black candidate receives 80% Deposition Moreland 6. ready for the voters voted inference that white For for the black. white candidate blacks and 23, 30; Wright Deposition Deposi- 33. Joe Hill example type of dem a clear onstration, statistical of this City 15-16; 24; Aycock Deposition tion Wright Deposition James Petersburg United see v. of 13; Deposition 11- Thomas States, (D.D.C.1972), F.Supp. 1026 n.10 14-15; 12; Dep- Deposition Jackson Moreland 'd, disputed aff This was osition 25. conclusion L.Ed.2d 71, 78; Deposition white officials. Hunter 138-139; Deposition Deposition impossible type analysis Wade Rome’s Hamler is in This of because, 19. blacks of four races which case whites, against of M. D. What- two—those ran ley 14; Depo- Wright Deposition Fielder 34. James many Houser —occurred Dr. John W. and 26; Wright 14; Deposition Joe Carmi- sition years ago apparently sur- no records have and 14; Deposition Deposition Hill 31. chael vived, not Samuel Stubbs —did one—that of votes, one— a sufficient number of and involve recognized Supreme the ex- Court has 35. Rev. not be down that of Hill—could broken voting its on of racial bloc and effect istence Deposition district. See Loewen 61-62. minority race the district: within 20; Depo- Aycock Deposition Wright occurs, 37. James voting against a Where 8; 10; Deposition sition Moreland Deposition Carmichael is an unfortu- because of his race candidate rare; 11; Deposition practice. see Houser but But it is not nate given explanation deponents opined some also that a reasonable these results is that the white confronted pick up significant community, black candidate could prospect being the imminent of a black enough support, although white not elected, coalesced to Rev. Hill. officials, defeat At hand, win.38 White on the other time, probable the same it is that Rev. Hill that unanimously testified racial bloc vot- did receive a sizable number of white votes. ing in Rome.39 of does exist Much assuming vigorous Even that Rev. Hill’s course, opinion testimony, is on based impelled campaign unprecedented num- previ- from inferences drawn the results in polls, ber of blacks this factor alone elections, particularly involving ous that probably cannot his account for 45% runoff effectively Rev. Hill —facts which more tally town of roughly regis- in a 15% black However, speak for themselves. the testi- tration. mony appear would also to reflect inferenc- Loewen, political Dr. James Finally, W. es long-time drawn from these residents’ expert sociologist, testified as an witness knowledge of the racial atmosphere voting that racial bloc existed in Floyd Rome.40 See Fed.R.Evid. 701. To this ex- during County the 1968 Democratic United tent, voting does inference bloc primary States Senate between Herman one, exist is the more credible and rational Talmadge and Maynard Jackson. Dr. because the officials testifying white Loewen concluded that at a minimum 88.9% contrary witnesses],” are “interested see Floyd County of the whites in voted white City of Richmond United approximately of the blacks 76.2% vot- L.Ed.2d testimony, ed black.42 The value of this voting because a belief racial bloc course, must be the fact discounted predicate was the for decisions by a number the Jackson-Talmadge race involved state of black deponents not to run for elective issues, local national rather than oc- office, and because other relevant evidence ago, than curred more a decade supports interacts with and the conclusion analyzed county-wide city- rather than degree that a substantial of racial vot- bloc Nevertheless, despite wide basis. these ing exists. factors, cautionary testimony Dr. Loewen’s campaign perhaps Rev. Hill’s is clear- probative of the existence of racial bloc est indication the extent of racial bloc Taking voting in Rome. these three voting in With the support Rome. solid together strands of evidence testimo- —the Hill, community, the black Rev. as we have deponents, ny of black the results of Rev. noted, plurality achieved a the votes cast campaign, Hill’s and the conclusions general losing election. In his runoff expert witness —we find a substantial however, campaign, picked up only he measure racial bloc does exist opponent gained additional votes while his Rome. Moreover, although a lower turnout *7 C. might expected have been for a runoff elec- single
tion involving a Board of Education litigation The present was seeded on June seat, 171 more votes were cast in runoff 15, the 1974, when the an- submitted than in general the election.41 The most Attorney ap- nexation to the General for course, Harvey Deposition 65; voting Deposition Of obvious, the existence of bloc is the 39. Hunter unstated, 17-18, 75; 12-13, 39-49, premise upon 53; Deposition if sometimes Wade 81-85; deponents Clary Deposition Depo-
which numerous based their conclu- Hamler 120-121, 159-161; Harry sion that no black could win an election sition Johnson Affi- supra. Rome. See note 34 davit. 15; Deposition Deposi- E.g., 38. Carmichael 40. Deposition Jackson Carmichael 14. tion 55. Rev. Hill testified that he received support during considerable paign, cam- white his supra. 30-31 41. See notes including financial contributions printing donated services a white-owned Deposition 42. 15. Loewen 28, Deposition business. Hill 36. above, accompanying see text described Voting to section 5
proval pursuant
had not been submitted
investiga-
notes 3-11
of his
As a result
Rights Act.43
to this
to him or
preclearance
discovered that
either
tion,44
Attorney
the
General
Eventual-
required by section 5.45
voting changes
annexations
the other
made,
Attorney
1973c,
objection
be
nor the
Act,
will
§
42 U.S.C.
Section 5 of
43.
declaratory
object,
to
nor a
provides
General’s failure
that:
judgment
bar
under this section shall
political
entered
subdivision
a State or
Whenever
enjoin
prohibitions
subsequent
of
to
enforcement
respect
set
a
action
to which the
with
standard,
1973b(a)
prerequisite,
qualification,
this title based
such
forth in section
upon
first
procedure.
made under the
practice,
determinations
event the At-
or
1973b(b) of this title are
affirmatively
of section
torney
sentence
indicates that no
General
any
to administer
effect shall enact or seek
sixty-day
in
voting qualification
objection
within the
will be made
voting,
prerequisite
to
or
submission,
receipt
period following
of a
standard,
procedure
practice,
with re-
or
or
right
Attorney
may
to
reserve
General
spect
voting
that in force or
to
different from
infor-
reexamine the submission
additional
1964,
1,
a
November
or whenever
effect on
during
his
the re-
comes to
attention
mation
respect
political
with
to
or
subdivision
State
sixty-day period which would
mainder of the
prohibitions
set forth
which
require objection in accordance
otherwise
1973b(a)
upon
title based
determina-
this
Any
under this sec-
this section.
action
with
of sec-
tions made under the second sentence
shall be
a court
tion
heard and determined
1973b(b) of
in effect shall
tion
this title are
provi-
judges
of three
in accordance with
any voting quali-
enact
seek to
or
administer
any
sions of section 2284 of Title 28 and
standard,
voting,
or
to
or
fication
prerequisite
appeal
Supreme
shall lie to the
Court.
voting
practice,
procedure
respect
or
with
to
Georgia
designated
The State
been
on No-
different from that
force or effect
pursuant
covered subdivision
to 4 of the
§
1, 1968,
politi-
vember
or whenever a State or
Fed.Reg.
municipalities
and its
respect
to which the
cal subdivision with
prohibitions
required
comply
United States
§
1973b(a)
in section
set forth
(Sheffield), 435
v. Board of Commissioners
upon
made
this title based
determinations
55 L.Ed.2d
1973b(b)
of section
under the third sentence
enact or seek to
of this title are in effect shall
24, 1974,
Attorney
July
General re-
44. On
any voting qualification
prereq-
or
administer
regarding
quested
additional
information
standard, practice,
pro-
voting,
or
or
uisite
annexation,
re-
as well as disclosure
submitted
voting
respect
different from
cedure with
occurring
garding
other
annexations
1, 1972,
effect
November
that in force or
on
respond-
Rome
§
since the effective date
may
or subdivision
institute an
such State
10, 1975, by submitting 59 additional
ed on Feb.
United States District Court for
action
preclearance. On March
annexations for
declaratory
the District of Columbia for
requested
Attorney
further
General
prerequi-
judgment
qualification,
that such
regarding
annexations
and
any
information
site, .standard, practice,
procedure does
or
there had been
asked the
whether
purpose
not have the
not have the
and will
system
changes
the effec-
in its electoral
since
denying
abridging
right
or
effect
responded
tive
Rome
on June
date
color,
vote on account of race or
or in contra-
1975, supplying
as to the
further information
guarantees
vention of the
set forth in section
confirming for the first time
annexations and
title,
1973b(f)(2) of
until
and unless and
changes
in its
the existence of numerous
judgment
person
the court enters such
no
disclosure, the Attor-
rules. As a result of this
ney
right
shall
comply
be denied the
to vote for failure
August
interposed a
qualification, prerequisite,
with such
objection
On Au-
technical
to the annexations.
Provided,
standard, practice,
procedure:
or
gust
City finally
its
submitted
qualification, prerequisite, stan-
That such
changes
preclearance.
See
electoral
dard,
may
practice,
procedure
enforced
or
Stipulation
Supplement
Second
to Parties’
proceeding
qualification,
if the
without such
prerequisite,
Facts, Ex. 45.
standard, practice,
procedure
or
legal
the chief
officer
has been submitted
voting changes
this case are
at issue in
45. The
appropriate
official of such State
or other
5, Georgia
purview
of §
no doubt within the
General and
subdivision
United
*8
interposed
Attorney
an ob-
has not
General
(1973);
Elec
Allen v. State Bd. of
472
L.Ed.2d
sixty days
jection
such submis-
within
after
817,
544,
tions,
22
1
89 S.Ct.
L.Ed.2d
393 U.S.
sion,
shown,
good
upon
to facilitate
or
cause
they
(1969),
insofar as
are the annexations
sixty days
expedited approval
after
within
City
voting,
United
Richmond v.
of
submission,
Attorney
affect
has
the
General
such
affirmatively
358,
2296,
States,
45 L.Ed.2d
objection
422 U.S.
95 S.Ct.
such
indicated that
379,
Matthews,
(1975);
400 U.S.
Perkins v.
245
an affirmative
will not be made. Neither
431,
(1971);
of
Attorney
27 L.Ed.2d
that no
91 S.Ct.
the
General
indication
objected-to
of
changes
already
Rome submitted all but one
these
ly,
been ad-
changes
pre-
to
Attorney
the
General
ministratively precleared (Count III);
that
During
clearance.46
the course of the ad-
(Count IV);
5 is
section
unconstitutional
Attorney
proceedings
ministrative
the
Gen-
disputed changes
and that the
have neither
object
objec-
failed to
his
eral
or withdrew
the purpose
denying
nor the effect of
or
to,
thereby
and
precleared,
tions
the follow-
abridging
right
the
to vote on the basis of
annexations;
(1)
(2)
ing:
47 of the 60
the
(Count VI).
race or color
The first
of
three
3;
(3)
in
9 to
reduction
wards from
the
pure questions
these are either
of
or
law
in
of
increase
size
the Board of Education
issues as to
the facts
undisputed,
which
are
6;
(4)
easing
from to
of restric-
appropriately disposed
and are therefore
of
qualifications.
on voter
Attorney
tions
on summary judgment. The
ques-
fourth
however,
object,
(1)
General did
to
13 an-
tion
genuine
does involve
issues of material
nexations,
insofar as
to City
relate
fact,
because,
noted,
but
as we have
elections; (2) (a)
vote,
majority
Commission
parties
willing
are
for us
reach
judg-
to
(c)
(b) runoff,47
post,
(d)
numbered
stipulated record,
ment
based
we
staggered
provisions for City
term
Commis-
Findings
make
of Fact and
Conclusions
elections;
sion
Board
Education
Law on this count also.
(3)
residency requirement
for Board of
Education elections.48
II
Attorney
After
General refused to
matter,
anAs
initial
the City seeks
decision, plaintiffs
reconsider his
filed the
to
coverage by
“bail-out” from section 5’s
During
lawsuit.
course of the
invoking
declaratory judgment
proce
(Counts
litigation,
plaintiffs’
two of
claims
I
4(a).
dure of section
Under the structure of
and V of
complaint)
their amended
were
jurisdictions subject
eliminated,49
to section
remaining
and the
issues are
preclearance procedures
5’s
in
are those “with
essentially four
number. Plaintiffs con-
respect
prohibitions
tend that Rome is
to which the
set forth
entitled to “bail-out”
pursuant
from coverage
4(a)]
to section 4 of the
in
in
effect.”50 Section
[section
(Count II);
turn,
Act
4(a),51
prohibits
that some or all of the
in
use of
or
tests
States,
404,
Petersburg
F.Supp.
Bell,
2428,
v. United
and Briscoe v.
97 S.Ct.
aff'd,
(D.D.C.1972),
410 U.S.
93 S.Ct.
231 and, purposes by implica- only for of section 5 afforded to those States or to those tion, section 4. We see little merit to this subdivisions as to which the formula has position. did not hold Sheffield that munic- apply separate been determined to as a ipalities “political within covered states are unit; subdivisions within a State which is subdivision^]”; quite to the contrary, by covered the formula are not afforded the concluded that ... a “[w]here opportunity separate exemption.” H.R. designated has been for coverage, State the Rep.No. 439, Cong., 89th 1st Sess. 14 meaning of the term ‘political subdivision’ Cong. 1965, U.S.Code pp. & Admin.News has operative significance no in determining 2437, (emphasis added) 2445 [hereinafter only question reach of 5: the is the H.R.Rep.]. cited as point The same was meaning ‘[designated] State’ ”. 435 U.S. by made 12 members of the Senate Com- 126, Moreover, at 976. S.Ct. even if mittee expressing joint their individual “political Rome were considered a subdivi- views: “We are also of the view that an sion” its cause would not be furthered. The entire by State covered the test and device 4(a) section bail-out remedy applies, not to prohibition of section 4 must be able to lift subdivisions, all only but to those the Attor- prohibition any part of it is to be ney determined to be covered requirements relieved from the of section separate “as a unit” —an event which has ” S.Rep.No. Pt. Cong., 89th 1st not occurred in Rome’s case. (1965) Cong. Sess. U.S.Code & Admin. Although clearly “political Rome is not a 1965, p. News cited as [hereinafter purposes subdivision” for 4(a), of section a Rep.]; see also id. at 21. stronger that, argument can be made Moreover, urged upon the construction us Sheffield, it is a within the meaning “State” by could well lead to many of the of that section. The Court in Sheffield same evils whose prompt- existence in 1965 interpreted 4(a)’s section prohibition of passage Voting Rights ed Act. Con- tests or devices “in import State” to gress existing legislation was aware that geographical It reach. then inferred that had not in implementing succeeded the Fif- light of the close connection between teenth eliminating Amendment and sections required to “State[s]” blight of racial discrimination in voting. judicial seek preclearance or administrative accomplish goals Efforts to these through changes under section 5 included case-by-case adjudication proved had inef- covered States themselves but also pre- fective because were “onerous to all subsidiary political units within their pare” “exceedingly produce slow” to By borders. reasoning, like it would seem Katzenbach, results. South Carolina v. that the bring entitled to section “Statefs]” 803, 811, 86 S.Ct. 15 L.Ed.2d 4(a) bail-out actions should also po- include (1966). litigation And even when litical subunits covered states. .within successful, jurisdic- some of the affected Hence, argued, Rome, it could be considered “merely tions switched to discriminatory “state,” as a should be entitled to its bail- devices not covered federal decrees.” Id. out action here. To combat these twin evils of burdensome Despite the ap- abstract force of this case-by-case litigation persistent “ob- proach, we unwilling logic to use as a jurisdic- structionist tactics” the affected means of subverting congressional intent. tions, Congress enacted a series of stern See Philbrook v. Glodgett, 421 U.S. measures, including section to “shift the (1975); S.Ct. United advantage of time and inertia from the Trucking Associations, States v. American perpetrators of the evil to its victims.” Id. 534, 542-44, 84 L.Ed. at 818. the intent Congress And Permitting political crystal case is clear. subunits covered The House Report would, believe, on the bill that became the states to bail-out alone Voting Rights explicitly rejected Act purposes by open- Rome’s theo- subvert the ry: opportunity to exemption ing obtain resurgence the door to a of these “[The] same 976; accord, County, supra, Dougherty severe impose potentially It would evils. burden on the Gen- at 375. administrative numerous forcing him to defend
eral *11 sum, then, despite we that In conclude subunits. brought by political suits bail-out might be drawn logical inference that any Report, permit “to in the House As noted Sheffield, reasoning the of that case from litigate to the such subdivision each [bail- ov- legislative history the coupled with impose contin- . . . would a issue out] Voting Rights erarching purposes of the county-by-county the burdensome uation of political compel the that sub- Act conclusion shown approach which has been litigation indepen- of a covered state cannot units inadequate.” H.R.Rep., supra, at to be 4(a) bail-out action. bring a section dently 1965, p. Cong. & Admin.News U.S.Code 2446. 111 possibility more is the Even troublesome that covered could circumvent States A. causing their purposes simply by of the Act argues that certain of next successfully pur- that jurisdictions sub have vote, rules, majority namely the its election engage in dis- remedy sued a bail-out to election, post provi and numbered runoff criminatory practices.56 In the words of the precleared sions, already fact been have in members, “in most of Committee Senate have Attorney General. As we not by the by boards affected section 4 local States supra, ed, 3-11 accompanying *12 voting, regarding majority and ordinances creating posts, the amendment numbered and, elections, posts, runoff and numbered a imposed 1968 Code or ratified numbered Therefore, possibly, general of a requirement. expression policy in its post Rome’s view, not, granting preclearanee the majority voting. the in favor It did preclearance 1968 Code constituted to the however, “unambiguous submit in vote, post and majority numbered runoff municipal recordable manner” all charter provisions election Charter. provisions, in 1968 or as written as amended thereafter, regarding these issues. To Supreme twice The Court has addressed sure, question in- Attorney the of what a the General could have constitutes “submis- voting change purposes sion” of a for ferred from the submission that some mu- 5. In Allen v. Board of Elec- State nicipalities recently adopted planned had or tions, 817, L.Ed.2d adopt such But the Court in rules. Shef- (1969), argument it rejected the that a rejected theory voting field the that Attorney submission occurred whenever the changes merely are to be deemed submitted particular became a General aware of state because renders the an earlier submission view, enactment. In the Court’s it was changes likely. very occurrence of these necessary submitting jurisdiction that the Just as in the a submission of Sheffield some unambiguous “in and recordable man- decision to hold a referendum did not incor- any legislation regulation ner submit in porate by the results of ref- reference that question directly Attorney General erendum, so, here, submission of state laws a request pursu- with for consideration his authorizing municipalities adopt certain ant the Act.” 393 provisions charters does in their not consti- Sheffield, Attorney Gen- tute the actual submission of exercise precleared city’s proposal eral to hold a governments. We authority by this local question referendum on the of whether to add, might that less finally, Rome has even mayor-coun- switch from a commission to a voting changes claim its to have submitted government. objected, cil form of He how- litigants than did the in Allen and Shef- ever, referendum, to the result of the field, Attorney since in earlier cases the which the approved proposed voters General made aware of the was at least change. The rejected argument issue, here, changes at whereas due to in approving that the referendum the At- submitting delay Rome’s its 1966 Charter torney General approved change also government, stating amendments, form of pur- Attorney that “the had General seeking in instances where no candidate receives a In the case of a one of two candidate majority municipal public having of the votes cast and the or more offices each the same provide charter or ordinance does not title and to be filled at the same election vote, by plurality electors, nomination or election ordi- the vote of the charter or same held, primary runoff or election shall be be- provisions nance now in effect or hereinafter receiving high- tween the two candidates govern enacted shall whether such candidate est number of votes. designate specific shall office he is seek- 34A-1407(b). §Id. ing. Ga.Code 34A-902. provided, pertinent part: 58. The 1968 Code reconsideration, request notice, the initial given as of never been expired period which case the would place.59 changes had even taken these on Attorney response prior to the General’s Government, on the other 12. The August B. hand, running from computes period argument second raises a its supplemented July the date Rome changes adminis have been its response was in which case the request, focusing time on tratively precleared, timely.62 in 1976. Attorney General’s actions agree with the We Government Attor sought Rome reconsideration when Rome period time commenced anew objection electoral to its ney General’s request July 14. In the supplemented its May changes and annexations on original submis- analogous situation of an Attorney Gen July before the On sion, power to re- the Government has the responded, City supplemented eral had and, in its un- additional information quest two affidavits. request its additional Gressette, discretion, Morris reviewable August Attorney General On 53 L.Ed.2d objection.60 to withdraw his declined the 60- delay commencement regulation received day period until the information is requests provided that for reconsideration is unsat- if it believes initial submission *13 of their upon days shall be acted 60 within 51.18(a).63 isfactory. 28 C.F.R. When § See (1978).61 receipt. 51.3(d) 28 C.F.R. § at the supplied additional information is States, Georgia v. generally 411 United submitting jurisdiction of the initiation 526, 536-41, 1702, Government, 93 S.Ct. is even than the there rather (1973). computes days 60 as run- period Rome the to as com- more reason view the 24, receipt.64 mencing date of from of ning continuously May from the anew the time statutorily Attorney 59. Because we binding on the hold which is that Rome’s election changes were never the Attor- See also infra. “submitted” to General. note 63 unnecessary ney to General we find argument reach the Government’s changes that the 51.13(d), proviso in § stresses the because, precleared were not not hav- supra, period tolling for at note 61 the least see ing preclearance been submitted for immediate- days following held at the 15 a conference ly adoption required after their as in 1966 authority’s agree submitting request. We that effect, Act, and, the were unenforceable supports argument proviso thát the this the Municipal Georgia Elec- void as of the date the Government, 60-day binding period is the tion Code was submitted. supra, period 62 were see note because the merely advisory, would not the Government 60. Second Stipulation Supplement to Parties’ exempt explicitly the need itself in have felt Facts, of Ex. 45. find, special how- one ever, situation. We do proviso means exclusive of that this is the 61. This provides: regulations tolling period. the are the Because objects Attorney to a When the General requests supplements effect silent on the of change voting, affecting and the submitted submitting reconsideration, free to treat we are authority seeking reconsideration way comports situation that most objection brings of the information additional implementing purposes the of the Act and its General, Attorney of the to the attention the regulations. Attorney days 60 General shall decide within Further, City’s sub- we do not find that the receipt request of of a for reconsideration constituted a mission of additional affidavits days (provided he at least 15 shall have meaning provi- the within the of “conference” submitting following a at the conference held so. authority’s request) to withdraw whether objection. to continue his 64. If we empowered the merits were to review Attorney under § 62. The Government decisions General’s the 60- contends that also ample might he had day merely goal be inclined to find that period 51.3(d) rather of is a § days respond opportunity of within 60 the binding we need than a While commitment. supplemen- City’s here, brief initial submission. The that the not decide this issue we do note impose hardly 51.3(d) mandatory language affidavits were of a nature to rather than tal of is Attorney significant require- permissive burden on the and that time additional it tracks the submissions, However, teachings responses the ment to initial General. under
235
cord,
conclude, therefore,
County
States,
Wilkes
v.
We
United
450
precleared
has not
aff’d,
F.Supp. 1171,
(D.D.C.),
1177
439 U.S.
changes at issue in this case.65
606, 58
S.Ct.
L.Ed.2d
true,
out,
is
plaintiffs point
It
as
that this
IV
impressive
line
cases has not been with-
plaintiffs
congeries
next
raise
an
out
undercurrent of dissent or
least
at
arguments challenging the constitutionality
Black,
unrest.
Justice
member
Voting Rights
of section
5 of
Act.
join
opinion
not to
in Katzen-
They
being (1)
attack
that section
be-
bach,
preclearance
believed that section 5’s
yond
power
Congress
under the Fif-
procedure “so distorts our constitutional
Amendment;
(2)
infringement
teenth
an
government
structure of
as to render
rights
reserved
the states under the
distinction
drawn
the Constitution be-
Amendment;
(3)
Tenth
a violation of the
power
tween state
and federal
almost
Clause;
(4)
infringement
Guarantee
Katzenbach,
meaningless.”
supra, 383 U.S.
rights
plaintiffs
private
J.,
(Black,
at
concurring
various
provisions.
constitutional
Allen,
see
dissenting);
supra,
also
note,
outset,
We
bound
at the
(Black, J.,
S.Ct. 817
dis-
asking
this Court
to declare section 5 senting);
Matthews,
Perkins v.
400 U.S.
unconstitutional,
plaintiffs
summon us 379, 401-07,
91 S.Ct.
L.Ed.2d
high
to a life of
For
adventure.
we could
J.,
(Black,
dissenting). Other
Justices
not do as
plaintiffs
ask without overrul
expressed misgivings.
Georgia
also
See
ing or ignoring unequivocal
repeated
United
411 U.S. at
holdings by
Supreme
Court of the Unit
J.,
(Powell,
dissenting);
Holt v.
ed
States.
South Carolina v. Katzen
Richmond,
City of
bach,
together
Court held that section
(1972)
J.,
(Burger,
L.Ed.2d
C.
provisions
with certain
other
Allen,
*14
concurring);
supra,
but not doubts, find we can take Despite these we Housing Develop- Heights Metropolitan v. pendent the claims on a jurisdiction over 252, 97 Corp., 429 U.S. S.Ct. ment constitutional and theory. The jurisdiction Davis, (1976); Washington v. L.Ed.2d arise from a Voting Rights Act claims L.Ed.2d 426 U.S. S.Ct. fact,” operative United nucleus of “common that, argue were the (1976). Plaintiffs Gibbs, 715, 725, 86 383 U.S. Mine Workers v. constitutionality to reconsider Court and the 16 L.Ed.2d cases, it other light efficiency section 5 in these call for their judicial interests of provision single proceeding. would strike that down. More resolution in a over, perceive we do not Court, however, we As a federal District taking preclude our congressional intent disobey explicit should be slow indeed to City’s jurisdiction either over the constitu absent Supreme Court command claims of the or over the tional assertions the Court has compelling indications that Congress has plaintiffs as to whom private And we do not find changed now its mind. of action.68 the section 5 cause not extended present case. To the such indications Co. v. Equipment & Erection See Owen that, is were the contrary, our best estimate 2396, 57 Kroger, 437 today, writing Court on a clean slate Howard, Aldinger (1978); L.Ed.2d 274 constitutionality affirm the of sec- would 49 L.Ed.2d years in Katzenbaeh 13 tion 5 much as it did therefore see no reason not We ago. all the constitutional jurisdiction take over merits, reaching Before how claims.
ever, dispose question going must of a A. which, jurisdiction although not raised our obligated to decide parties, we are Congress argue first Plaintiffs jurisdiction 3-judge sponte. sua of this state or simply power prevent had no established, District implementing voting jurisdiction from local purposes, in section 5 of Act.66 which, although not motivated changes jurisdiction cause of over which is in animus, action have the effect racial nevertheless terms section 5 is restricted to voting strength.69 conferred diluting black Section *15 actions, only parties preclearance Voting Rights and the Act in terms re 5 of the explicitly bring jurisdiction authorized to such actions to demonstrate quires a covered jurisdictions. pur we both in are covered The claims absence of discrimination however, are, supra. note 43 present pose section and in effect. consider See Amendment, However, which challenges to the some the Fifteenth constitutional municipal 4(a) jurisdic- government grants that no state or can sue 66. Section also this Court patriae government parens tion to hear bail-out actions such as that brought by in a ca- the federal pacity. part private parties as of this lawsuit. must The claims however, 4(a), obviously grant brought not Section does viewed as in their individ- therefore be jurisdiction challenges to capacities only. over the constitution- ual ality §of 5. course, would, to 69. We have no occasion be, course, may single-judge 67. It that a we to find that all the reach this issue were voting changes jurisdiction federal District would have pur- question from in resulted pro- to consider under other these claims some poseful we discuss in Part discrimination. As vision, such as 28 1331. § U.S.C. V, however, changes these we conclude that discriminatory purpose. in not in effect but are Although bring purports 68. of Rome argument squarely presented citizens, Rome’s is thus parens patriae private suit as the of its of this case. for decision on the facts it has been settled v. Kat- since South Carolina zenbach, 803, 324, supra, 383 at 86 S.Ct. U.S.
237 Moreover, noted, as Congress’ power Judge is the to enact Wisdom the spe- source of 5,70 plaintiffs’ only franchise, section in view outlaws cial “a character of the which is Therefore, purposeful they discrimination. political right, pre- because fundamental argue, beyond Congress acted its constitu- of all rights,” Hopkins, servative Yick Wo v. purported as it powers tional insofar 1064, 1071, 118 U.S. 6 30 S.Ct. proscribe changes discriminatory in (1886), may distinguish L.Ed. 220 serve to effect only.71 panoply from the constitutional other rights protected by the Fourteenth Amend- Fifteenth Whether Amendment reaches is an ment. only purposeful discrimination important unsettled constitutional here, question need We not decide Court,
question.
Arlington
Supreme
in
however,
assuming, arguendo,
because even
Davis,
Heights
Washington
supra,
v.
that the Fifteenth Amendment reaches
may have
an answer when it held
intimated
discrimination, we
purposeful
find that
equal protection components
that the
broad
Congress was within its
enforcement
Fifth and Fourteenth
reach
Amendments
power under
2
thereof when it out-
only purposeful
panel
A
discrimination.72
voting changes discriminatory
lawed
in ef-
held,
recently
large-
of the Fifth
Circuit
only.
empha-
fect
Chief Justice Warren
cases,
ly on the
of these
basis
sweeping
power
sized
nature of this
only pur-
Fifteenth Amendment
reaches
Katzenbach,
Carolina
supra,
South
v.
383
Sides,
poseful
Nevett v.
571
discrimination.
327,
818,
quoted
at
86 S.Ct. at
when he
U.S.
1978).
(5th
Supreme
F.2d 209
Cir.
approval
following
broad state-
Court, however,
explicitly
has never
ad-
339,
parte
Ex
Virginia,
ment
U.S.
Judge
question.73
dressed the
And as
Wis-
(1879):
239
Act,
Congress,
during
Rights
Congress
be
based
facts found
an
could
said to have
investigation, of
to
power
presumption,
exhaustive
its
created
irrebuttable
based
proof
of
legislative
finding,
establish standards
for facts which
on extensive
fact
admittedly
literacy
Fifteenth Amendment viola-
use
a
test
of
established the exist-
effect, Congress
tions.
In
said to
a
can be
ence of
constitutional violation. The
upholding
presumption
the courts that
exist-
instructed
Court’s
of this
in
racially disproportionate
impact
ence of
Oregon
Carolina v. Katzenbach and
South
of
presumption
strong
raises an irrebuttable
invidi-
v.
pre-
Mitchell
evidence
purpose.
ous
We can see
sumption
no constitutional
established
5 of the
impediment
Congress’
such
taking
purpose
to
an Act —that
invidious
is to
pre-
be
approach.
given
disproportion-
See South Carolina v. Katzen-
sumed
existence
bach,
330,
upheld.74
U.S. at
86
803.
impact
S.Ct.
ate
also be
—would
support
This conclusion
finds
B.
Court’s
Voting Rights
treatment
Plaintiffs’ second constitutional ar
literacy
Act’s ban on
tests and
voter
other
that,
Congress
gument is
if
even
otherwise
qualifications.
Northampton
In Lassiter v.
power
5,
had the
to enact section we must
County
Elections,
45,
Board of
U.S.
down,
provision
nevertheless strike that
un
(1959), a
League of Cities
the en-
pursuant
action
congressional
directly
did not
ad-
Fitzpatrick
Although
the Fif-
in section
power
here,
forcement
we find
question presented
dress the
compels a like result.
analytically it
teenth Amendment.
that
sure,
the Four-
the case arose under
To be
gave very strong indications
The Court
the Fif-
rather
than
teenth Amendment
question in
it would resolve the latter
how
teenth;
share a
but
these Amendments
Bitzer,
96 S.Ct.
Fitzpatrick
U.S.
explicit
en-
history and both
common
(1976), a case decided
ment,
against
any rational
private
Congress may
suits
use
provide
constitutional
means to effectuate
which are consti-
or state officials
States
particular
be-
analysis
is of
relevance
in Hutto v. Fin-
This citation
75. This
was followed
challenge
primary
ney,
constitutional
cause
98 S.Ct.
Rights
provisions
Attorney’s
Voting
Rights
in Katzenbach
upholding
Act
the Civil
Amendment,
e.,
i.
“that
against
Tenth
was based on the
Fees Awards Act of
claim
Congress
powers
and en-
infringed
exceed the
Eleventh Amendment
states’
by the
immunity.
to the States
croach on an area reserved
at 816.
U.S. at
Constitution.”
*19
Clause,78
a violation of
Guarantee
tutes
in vot-
racial discrimination
prohibition of
is
that such
gist of the matter
settled
ing.
long
.
. The
been
.
since it has
super-
Amendment
the Fifteenth
that
justiciable in feder-
generally
issues
power.
of state
contrary exertions
sedes
Carr,
186, 82
369 U.S.
al court. Baker
816-817
(1962);
at
691,
at
S.Ct.
Luther v.
383 U.S.
7 L.Ed.2d
S.Ct.
supplied).
(emphasis
Borden,
(7 How.)
the electoral D. is necessary preclearance tion until that, claim al private plaintiffs The “Congress was providing, In so obtained. operation of sec legedly as a result of the extraordinary effect the well aware of the regularly scheduled elections tion relation- might Act have on federal-state held in Rome since 1974 and can not been operation state orderly ships and completion until the not be held at least Allen, supra, government.” private plaintiffs assert litigation. Nevertheless, Congress at 830. inability to vote in a result of their judgment that this ex- that as made a considered necessary elections, traordinary procedure they have been de municipal evasion of the Fif- remedy systematic rights guaranteed under prived of certain that had hitherto been teenth Amendment provisions of the Constitution. various upheld appropri- occurring. The Court outset, note, damage We at the judgment congressional ateness of this private plaintiffs is at complained byof Katzenbach, questioned and has never since the result of the actions least as much holding.77 or otherwise undermined this Voting as of the Rome’s elected officials conclude, therefore, section 5 of We that, appear because Rights Act. It would prin- with the entirely the Act is consistent precleared the Attorney ciples of federalism as embodied to 3 but has not in wards from 9 reduction in Na- Tenth Amendment and articulated voting changes, the precleared certain other League tional of Cities. presently effective contains
City Charter as
C.
an election
would make
inconsistencies that
Attorney
Gen-
technically infeasible.
merits of
We need not reach the
however,
eral,
willing-
known his
consti-
has made
contention that section 5
plaintiffs’
that,
opera-
Supreme
Beer v. United
Court decided
as a result of the
Plaintiffs claim
States,
supra,
place
six
had been frozen for
taken
elections
tion of
no elections have
§
years,
as to
of Richmond v. United
Rome since 1974. We have some doubt
while
freezing
responsibility for the
the Court remanded to the Dis-
whether the sole
operation
factfinding
of elections in Rome rests with the
trict
for further
a case in
5, whether,
contrary,
already
for 5
on the
which elections had
been frozen
§
City
years.
the blame.
officials do not bear a share of
accompanying
text
note 79 infra.
See
event,
during
5-year suspension
of elections
U.S.Const.,
IV, 4.§
Art.
litigation
unusual. When
no means
permit
pre-existing
satisfy
ness to
elections on the
rate measures in order to
the clear
at-large
plurality-win system.79
Doubt-
commands of the Fifteenth Amendment.
less,
readily
General would
Katzenbach, supra,
Carolina v.
South
preclear any technical amendments to the
at 808.
necessary
permit
Charter
the hold-
note, too,
Congress adopted
We
ing
operation
of elections and effective
designed
mitigate
number
measures
City government.
It
appear
would not
recognized
potentially
what
to be
*20
that the
possi-
has even discussed this
Thus,
operation
harsh
of section 5.
states
bility
Attorney
with the
General.
separately
political
or
covered
subdivisions
agreed
injuries
Even if we
that the
com-
permitted
are
to bail-out from section 5’s
plained
operation
from
result
of the Vot-
coverage
4(a) under section
the Act. See
ing Rights
we would find little merit
Moreover,
supra.
Congress provid-
Part II
plaintiffs’ arguments.
to the
We need not
jurisdictions
ed
the alternative of submit-
right
decide whether the
to vote in a munic-
ting
voting changes
approval
their
for
to
ipal
regularly
election when that election is
the
rather
General
than to this
scheduled can ever be deemed a fundamen-
preclearance
Court. The administrative
right protected
tal
by the Constitution.
be,
mechanism was intended to
and has in
For even if fundamental
interests were at
as,
fact operated
proce-
a non-burdensome
stake, we believe section 5 of the Act is
proportion
dure which the vast
justifiable
advancing
compelling
as
the
na-
changes
approved
period.
within a brief
enforcing
tional
interest of
the Fifteenth
Further, Congress
that,
provided
should liti-
by “erasing]
blight
Amendment
of ra-
occur,
gation
place
it was to take
before a
cial
voting.” Sheffield,
discrimination in
3-judge District
with
appeal
direct
to
supra,
floor debates.
Congress
First:
felt itself
V
confronted by an
pervasive
insidious and
evil which
perpetuated
had been
Finally,
in cer-
we come to the basic issue for
parts
tain
of our country through
case,
unre-
e.,
decision in
section 5
i. whether
mitting
ingenious
defiance of the
plaintiff jurisdiction
has carried its bur-
Constitution.
Congress
Second:
showing
conclud- den of
voting changes
that the
ed that
the unsuccessful remedies which issue had
purpose
neither the
nor the effect
prescribed
it had
past
would have
denying
abridging
right
to vote on
replaced
by sterner and more elabo-
account of race or
This
color.80
determina-
Response
purpose
79. Defendants’
invidious
and absence of
Plaintiffs’ Motion
discriminato
Relief,
ry
States,
Interim
at 5.
effect. Beer v. United
425 (1976);
torney, Thus, accept record we on the voting in majority the switch to mended and associ- argument majority that the vote Georgia Election comply order to with the posts87 ated runoff election and numbered 1964,81the record demonstrates Code of primarily because were enacted provisions apply law did not in fact belief that City Attorney’s the 1964 mistaken required under state law. system municipal elections.82 such Katzenbach, Oldham, Hancock, 86 S.Ct. lina v. 803, R. L. Starnes L. Lucian County (1966); Wilkes Yarmough. John E. (D.D. States, F.Supp. 1177-78 United Deposition 116. 85. Hamler aff’d, C.), 99 S.Ct. 439 U.S. Petersburg (1978); City of v. Unit L.Ed.2d 674 Support 86. Affidavits in of Plaintiffs’ Motion (D.D.C. F.Supp. 1027-28 ed Summary Judgment for of J. Rattle Hall and aff’d, 1972), Terry Minge. J. L.Ed.2d 698 City Attorney 87. The testified that numbered Clary Deposition 54-55 & Ex. 1. posts were needed to facilitate the division of Clary Depo- the Commission into committees. Stipula- Supplement to Parties’ 82. See Second objective easily sition 51-53. This could Facts, at 2. Ex. 44 tion of IIIV accomplished posts, been without numbered likely explanation however. A more is that Clary Deposition 56. posts majori- numbered were intended to make ty voting possible by conveniently dividing Support of Plaintiffs’ Motion 84. Affidavits in Commission and Board of Education elections Summary Byars, Judgment S. of Grover C. separate into races. which, likely adopted given were most head runoff election in bloc Staggered terms felt would con- because officials and a voting majority,92 white by race91 continuity Govern- tribute would be at a severe disad- black candidate And the Board of Education resi- ment.88 Board of Education vantage. Rev. Hill’s find, dency requirement, we was enacted to on campaign exemplifies the dilutive effect members to responsiveness ensure Board strength black of these rules: he particular concerns of their wards.89 pre-1966 would have been elected under the result, however, reach a different system, We was defeated plurality-win but of whether the has met its question candidate in the runoff election white showing burden of the absence of discrimi- majority regime.93 under the vote natory effects from its non-annexation vot- posts, stag- The effects of the numbered ing changes. respect majority With terms, gered Board of resi- Education provisions, vote and runoff election the dis- dency provisions are somewhat less clear. criminatory beyond perad- effect is clear argued, conclusory The Government has plurality-win system, venture. Under terms, these rules have a discriminato- black candidate in Rome would stand a ry impact voting strength on black because good chance of election if the white citizens provisions “promote such head-to-head con- split among their votes numerous candi- tests between white and black candidates engaged dates and the black voters “sin- deprive community the black gle-shot” i.e., voting, voted opportunity to elect a candidate their candidate or candidates of their choice.90 through single-shot voting.”94 choice Al- majority Under election vote/runoff though the Government’s conclusions are scheme, however, candidate, even black and, inherently unreasonable least *22 gained plurality if he of votes in the election, general respect single-shot voting, sup- with would still have to face the runner-up ported by expert authority,95 white candidate in a head-to- we could have 45-47; Clary Deposition Deposition accompanying supra. 88. Hunter 93. See text note 11-13; Harvey Deposition 11-12. Proposed Findings 94. of Fact Defendants’ Conclusions of Law §§ 27-30, 36-39; Clary Deposition 89. See Hamler Deposition 22-24; Harvey Deposition 10-11. the words of the U.S. Commission Rights, Civil 90. The United States Commission on Civil voting There are number of rules which Rights single-shot voting has described as fol- frustrating single-shot have the effect of vot- lows: ing having . one race . . [I]nstead Consider . . . the town of 600 whites races, positions, for four be four there could at-large and 400 blacks with an election position. post each for for one Thus no. choose four council members. Each voter is able to cast four votes. might 1 there be one black candidate and one Suppose there are white, winning. with The situation the white eight candidates, white the votes of the with post, would be the or seat —a same for each split among approximately whites them always black candidate face a white in would equally, candidate, and one black all the with a head-to-head not be able contest and would voting blacks for him and no one else. The opportunity to win. There would be no result is that each white receives candidate single-shot voting. might A black still win about 300 votes and the re- black candidate there were more than one white candidate probably ceives 400 votes. The black has post, possibility for a but this would be elimi- technique single- won a seat. This is called majority require- nated if there were also a voting. Single-shot voting shot mi- enables a ment. nority group at-large to win some if it seats [Second,] might each council member be re- concentrates its vote behind a limited num- quired separate to live in a district but ber of candidates and if the vote of ma- voting large. just still at like num- This— jority among is divided a number of candi- posts separates bered one contest into a — dates. number of individual contests. Rights, Voting U.S. Comm’n on Civil Rights The [Third,] might the terms of council members Act: Ten Years After 206-07 4-year staggered. If each member has a accompanying supra. year, 91. See text notes 37-42 term and one member is elected each opportunity single-shot voting then the accompanying supra. 92. See text note 1 will never arise. long supporting stu- racial balance so as those benefitted from citation annexations discriminatory purpose were not did political sciences. dies from the statistical perpetuating not have the effect of or rein- Nevertheless, has shown us noth- forcing discriminatory effects stemming might refute the Govern- ing at all that operation discriminatory from the of other argument. In this situation we are ment’s voting rules. satisfy failed bound to find that it has its demonstrating that numbered burden of adopted The solution Peters- posts, staggered residency and the terms burg, subsequently endorsed the Su provision do not have the effect discrimi- Court, preme voting prac was to treat nating of race or on the basis color. tices under review in annexation cases as
being, geographic not extension of lines, boundary expansion rather the but B. particular voting system existing in the The concede that defendants community the time of the annexation.97 thirteen contested annexations were not ef sufficient, doctrine, It is under this discriminatory purpose.96 fected out of significantly pro an annexation reduces the therefore, is whether the an only question, race; portion particular of voters of a it is with discriminatory nexations had a effect minority necessary also that the race must meaning in the of section 5. opportunity “repre be denied the to obtain long Although annexations have been equivalent reasonably po sentation to [its] Rights subject Voting held Per strength enlarged community.” litical 379, 91 Matthews, kins v. Organizations Carey, United Jewish (1971), they do un 144, 160, 97 S.Ct. 51 L.Ed.2d ju require special usual considerations and Richmond, (1977), quoting City of su problem, broadly dicial treatment. 2296; 370-71, 95 pra, 422 U.S. at ac stated, virtually any is that annexation will cord, Petersburg, supra, F.Supp. City of jurisdiction change the racial balance in the at 1030. thereby, voting in a sense dilute the Additionally, this Court in of Peters-
power particular group. Appli of a racial device, burg also fashioned a remedial sub cation of a mechanistic test for dilu Court, Supreme sequently endorsed require deny pre tion would this Court Richmond, supra, 422 at 369— City of annexations, practically *23 clearance to all 2296, designed to ensure that 95 S.Ct. accomplished compelling even those of the above stan in violation annexations non-discriminatory municipal fi reasons accomplished as dard could nevertheless be nance, orderly growth, provision of serv rapidly possible upon as elimina simply and result, recognized we ices. Such a offending city’s tion of the features of a States, Petersburg 354 City of v. United Although the denied voting rules.98 Court (D.D.C.1972), aff’d, F.Supp. 1030 410 annexation, preclearance to the contested it 93 jurisdiction over the case and di retained (1973), could not be consonant with the in plan plaintiff “prepare rected the Congress tent of when it enacted the Vot conducting city elections in ac its council ing Rights contrary, prob Act. To the it is requirements of the Vot cordance with the Congress able Rights interpreted by would have condoned Act as ing Court dramatically Judgment even annexations that altered . .” of Peters Rights, supra Congress sought prevent note . . .” 354 Comm’n Civil . F.Supp. 207-08. at 1031. Proposed Findings 96. Defendant’s of Fact and City Petersburg pow- 98. The had no Conclusions of ¶ Law 19. themselves, rules er to mandate reform in the apart annexations, because these from the then, 97. “The that this annex- Court concludes changed. Beer v. United rules had not been Cf. ation, boundary change insofar as it is a mere 1357, 47 L.Ed.2d expansion at-large system, and not an of an 629 discriminatory change not the kind of which 246 Richmond,
burg, supra, quoted
addressing
question,
In
the first
will
supra,
Westminister Apts. Harry 0 49 Butler 0 0 138 3 0 220 10 0 Castle Cove 0 14 Subdivision 63 0 0 0 95 0 0 0 Mt., Saddle Sec. 4 0 47 0 Bill DuPre 55 0 84 0 0 0 0 0 Airport Old Community 0 241 203 0 511 0 515 337 0 1,038 2,582 1,797 TOTALS impact Because we find the on black vot- growth develop- and purposes of future significant, we must in- opinions ing strength further teach to be judicial
ment. Prior
quire
community,
whether the black
Voting Rights Act cases
further
that a court
annexations,
opportuni-
has a fair
a situation
after the
respond to the realities of
should
representation reasonably
ty to obtain
com-
the time of decision.100
they
as
exist at
numeri-
post-annexation
mensurate with its
these thir-
Additionally, we will not treat
strength. Our answer would be clear if
cal
separate
as
teen
annexations
political system
on Rome’s
it were based
we would be com-
changes, in which case
light
of our find-
presently instituted.
having
many of them as
de
pelled to sustain
amend-
ings as to the effect
Charter
Instead,
only.101
we view
minimis effect
case, we
no
ments also at issue in this
have
unified whole. The
single
them as a
and
significant
pro-
increase in the
doubt that a
annexations, although
reality is
these
perpetuates
of white voters
and re-
portion
an indivisible
separately,
effected
have
discriminatory effect of these
inforces the
voting strength
black
impact
cumulative
However, because of our
voting rules.
lest the
in Rome. We are also concerned
findings
regard,
and conclusions in this
through
piecemeal
frustrated
Act be
legally
system
electoral
Rome’s
effective
insignificant when taken
changes which are
rules,
e.,
i.
operates
pre-1966
separately but of considerable moment
plurality voting
without numbered
and
together.
Finally, viewing
when added
terms, runoff elections or
posts, staggered
present perspec-
from the
these annexations
residency require-
the Board of Education
eminently
light
fair in
tive and as a unit
have a
ment. Whether
the annexations
delay
of the fact that the reason for the
discriminatory
against
effect when viewed
for our consideration of the annexations as
question.
this context is a far more difficult
comply
group
was Rome’s initial failure
rules,
by submitting
pre-1966
with the Act
them when
Even under the
Rome’s
and,
at-large
occurred.
elections would be conducted
by a
presume,
we
would be characterized
manner, we find that the
Viewed in this
degree
voting. These
high
of racial bloc
question significantly
alter
annexations
present
City
were also
two factors
sure,
the racial balance in Rome. To be
Petersburg, supra, in which the Court found
compelling
City
effect here is not as
as in
discriminatory
ef-
annexation
Richmond,
Petersburg
cases in
approval
fect
conditioned
thereof on
which the annexations resulted in a shift
at-large voting
city’s abandonment
majority population
from a black
to a white
City of Pe-
favor of elections
ward.
If
majority.
But
the effect
here,
controlling
would have
tersburg is
significant
case is
nonetheless. As of Feb-
annexations
deny preclearance
of these
areas contained
ruary,
the annexed
Rome’s
approval upon
our
and condition
2,582 whites,
registered
823 of whom were
acceptable plan for elec-
adoption of some
vote,
blacks, only
9 of them
by single-member
tions
districts.
registered.
comparison,
reg-
in 1975 the
By
however,
are,
substantial
factual
istered voters in the
as a whole totalled
There
10,982
2,026
Thus,
signif-
Most
blacks.102
between the cases.
whites and
differences
Petersburg
presently
icantly, perhaps,
is fair to infer that
close to 10%of
elections
voters,
those under
virtually
by majority
the white
none of the were
vote whereas
plurality
voters,
annexed
rules are
pre-1966
black
reside in the
areas. Rome’s
dally
Richmond,
prior
date of the
made
to effective
100. See
422 U.S. at
preclearance
(even
change
if annexations
had to be submitted
because peripheral aspect minor
tively voting procedures, per- we do not
Rome’s dangers of intrusiveness in- particular
ceive letter, Department’s perti- of Education elections tions insofar as Board 105. The Justice part, are concerned. nent read as follows: however, cannot, con- reach a similar We objection respect to the 13 With to the elections. relative to Commission clusion annexations, sugges- mindful of the we are residency requirement pre-existing my letter that the tion in Attorney October Attorney (which the commission elections reconsider his deter- General would objection reach because does not General’s alia, city, inter under- mination should ‘the prevents change) did not constitute' again take to elect its councilmen and Board simple plurali- system being a electoral from simple plurality- of Education members ty-win system. Consequently, in view system incorporate win which does limiting residency in the context feature limiting objected features to therein. Since at-large voting that racial and indications objection ren- the continued to those features exists, Attorney bloc majority requirement, num- ders the vote objection to the 13 to withdraw his posts residency requirement unable bered elec- legally annexations insofar as Commission Board of Education elections unen- objec- necessary tions are concerned. forceable the effect of that Stipulation previously existing Supplement to Parties’ tion is a reversion to the Second Facts, simple plurality-win system. circumstance, therefore, of that In view Ex. 45. Gener- supra. 106. See note 49 objection 13 annexa- al withdraws his text notes see directly registration closely are so part provisions adopted were these subject by and to the direction controlled in the State Rome’s Charter 1966. indeed, and, boards State election — comprehensive enacted Munici Georgia a re- legislature they would be State —that (1968 Code), submitted pal Election Code devices, irre- quired misapply to tests General, pre Attorney and obtained inclinations, if this spective of their own argues that clearance thereof. Rome general policy the State suited General, Attorney preclearing in S.Rep., government.” supra, at U.S. Code, thereby approved by reference the 1965, p. 2554. Cong. & Admin.News Code 1966 Charter amendments. City’s motivating considerations a Similar were provided if a The 1968 Code that munici- Dougherty factor Sheffield and ordinance, or “as now exist- pality’s charter that ex- County cases. The Court observed subsequent as amended the effec- ing or empting municipalities from section 5 subsection,” plu- called for tive date of this “would invite circumvent the Act States to provision be allowing rality voting, that would effec- . local entities that do not call registration legislation voter to control If the local did for not conduct tive. required voting, 1968 Code aspects process.” plurality critical of the electoral Sheffield, voting elections.57 majority at and runoff majority voting, respect Although to sub- With a covered state would have provided pertinent part: preclearance any legislation in trans- mit for Code § ferring voting authority jurisdictions, to local ordinance, municipal as now If the or charter requirement do not believe that is suffi- this subsequent existing or as amended prevent For cient to of the Act. circumvention Subsection, provides effective date thing, political one to the extent that a subunit may or elected that a candidate be nominated possesses authority existing law to state ., plurality . such a the votes cast discriminatory voting implement potentially Otherwise, prevail. provision shall no candi- required changes, preclearance no would be § public office shall be for date nominated States, 425 U.S. of the state. Beer v. United any primary public or office elected L.Ed.2d 629 unless shall re- election such candidate Secondly, even when is re- a 5 submission § majority cast . ceived a of the votes likely quired, Attorney it is that General 34A-1407(a). Ga.Code grant preclearance this Court would because elections, respect to runoff With voting authority transfer of is non-discrimina- pertinent provided, part Code tory on its face. Charter, poses plainly of the Act be subverted argues having that its been would Rome provide majority in 1966 amended Attorney if the General could ever voting, provide plurality voting did not change approved deemed to have 1968, and the 1968 therefore Code when was neither proposal properly voting and majority runoff elec- mandated submitted evaluated him.” nor in fact provided 1968 Code Similarly, tions. S.Ct. at 982.
Notes
[435]
[98] provisions “charter or ordinance now in compel We Sheffield re- think Allen and govern” effect or hereinafter enacted shall jection theory. Georgia, our City’s posts whether numbered would be used.58 view, submitted to urges provi- the Charter Rome because only its defer to decision to local charters “in was the sion effect” in 1968