Herman Lodge v. J. F. Buxton, Ray Delaigle

JONES, Before FAY HENDERSON, and Judges. Circuit FAY, Judge: Circuit class, Plaintiff consisting of all Black res- idents of Burke County, Georgia, brought this action to have that county’s at-large elections declared invalid as viola- First, tive of the Fourteenth and Fifteenth Amendments to the United States Constitu- tion and Title 42 U.S.C. 1971 and 1973. §§ The District Court for the Southern District Georgia held plaintiffs, for the on the grounds process election purpose maintained limiting Black access system in viola- tion of their Fourteenth and Fifteenth rights. Amendment Accordingly, the Dis- trict Court ordered existing that the of at-large elections be abandoned county be divided into five districts electing each district county one com- missioner. We judgment affirm the of the District respects. Court in all

FACTS large County, Burke This case arose in county in southern predominantly rural Burke is the Georgia. by diluting signifi fact U.S.C. § vote, largest Georgia’s 159 counties in thereby second cance Black unconstitu encompasses.1 tionally restricting right meaning terms of the area it Burke their many Georgia participation rural counties in in ful access similar in the elec ag process. its economic is predominantly base toral population county’s ricultural. The is some trial, during parties After a which both 10,000people, slight majority what over support offered voluminous evidence in of whom are Black.2 No Black ever has respective positions, their the District Court been elected to county commission plaintiff. held for The court concluded that County. Burke at-large system had been maintained This limiting suit was filed in 1976 various for the participa plaintiffs representatives process. named tion in the electoral The court order, class all Black residents of Burke Count setting findings entered an forth the y.3 alleged It that the county’s system law, of of fact and requiring conclusions of at-large First, plaintiff’s elections County violated Burke county elect five commis sioners, Fourteenth and Fifteenth Amendment one from each of five districts into rights, rights as well as their under county Section which the was to be divided.4 The 1965, Voting Rights 2 of the 26, Act of 42 court’s order of October 1978 was to be 1973, Act, and the by general U.S.C. Reconstruction effectuated time § elec area, County square following population 1. Burke is 832 miles in table is taken from making approximately findings the size of two-thirds District of fact and conclu- of the State of Rhode Island. sions law: TOTAL PERCENTAGE *a *b YEAR WHITE BLACK POPULATION 18,700 1975 *c 42% 18,248 1970 40% 20,596 1960 34% 23,458 1950 29% 71% 26,520 1940 25% 75% 29,224 1930 78% 22% *a Percentage percent. is to the nearest whole *b white”; “percentage figure category “foreign labelled born white” includes 42, 1930,

greatest group apparently number in this in 1930. After this statistic was kept.

*c figures plaintiffs’ The 1975 are a mid-census estimate taken from exhibit 191. addition, dispar- by actually Judge the record indicates that the 3. The class was certified 12, 1977, May ity in size between Alaimo on some eleven months the White and Black resi- after suit was filed. dents of Burke has continued to de- 1975, crease since so that current Black following 4. The table shows a breakdown of majority very slight. population plan of the districts se- by lected the District Court as to race and voting age percentage deviation district: Black White Total Population(%) Population Population (%) Deviation

District 3,736 2,899 (77.6) (22.4) + 2.3 837 1 3,673 2,753 (74.9) (25.1) + 920 0.5 2 1,681 1,914 (46.8) 3,595 (53.2) 3 -1.6 1,738 3,590 1,852 (48.4) (51.6) -1.7 2,091 (57.1) 3,661 1,570 (42.9) + 0.3 assert, alterna- (1972). They 8, District L.Ed.2d 1978. The on November tion meaningfully partic- inability to stay tively, for a motion defendant’s denied fun- violates a ap ipate on in the electoral the outcome pending of that order the mean- within liberty also interest this Court damental peal. On October contend They stay pend Amendment. ing motion for a of the First defendant’s denied 3, 1978, Rights Act of Voting Justice 2 of the ing appeal. November On Section for a the Reconstruc- motion 1973 and granted defendant’s § Powell U.S.C. appeal 1971(a)(1) proscribe disposition Act, stay pending final § tion U.S.C. having a discrimi- at-large voting systems this Court. effect, regard pur- without natory ISSUES PRESENTED system. pose or intent of the District Appellant asserts that BACKGROUND legal stan incorrect applying an erred assessing appellee’s constitutional dard turns on the this case We believe the Dis contends rights. Appellant proscriptions of interpretation not find that did not and could trict Court Amendments. Fifteenth Fourteenth system was created Therefore, review of the begin with a we limiting maintained principles constitutional application those system, as re participation in that certain There are voting dilution cases.5 the recent quired by Supreme Court in begin from the that can be set out truisms Bolden, 446 of Mobile v. City decision of per is not se uncon ning. At-large 55, 100 1490, (1980). 47 64 L.Ed.2d U.S. S.Ct. Richardson, 384 U.S. Burns v. stitutional. that, opera while the Appellant contends 1286, (1966); 73, 376 16 L.Ed.2d 86 S.Ct. may have had the affect system tion of the 433, 85 379 S.Ct. Dorsey, Fortson v. U.S. system limiting participation, Black 498, (1965). group, No 401 13 L.Ed.2d oper designed or maintained to so was not ethnically identifiable racially or whether ate. propor right representatives to elect has a voting power in the communi to its tionate response, appellee offers various bases 755, 765- 412 ty. Regester, White v. U.S. judgment. affirming the District Court’s for 66, 2332, (1973); 2339 Whitcomb 93 S.Ct. correctly contend that the trial court They 1858, 124, 149-50, Chavis, 91 403 S.Ct. U.S. or requisite degree purposeful found the 1872, (1971). Even consist 363 29 L.Ed.2d discriminatory of a intentional maintenance minority polls by a racial ent defeat at the Supreme meaning of the system within the not, itself, give rise to consti in and of White v. does decision in Bolden and Court’s U.S., Whitcomb, 2332, 403 tutional claims. 37 Regester, 412 U.S. 93 S.Ct. Age Voting Voting Age White Voting Age (%) Population (%) Population Population District (27.6) 1,482 (72.4) 2,048 556 1 (30.7) 1,407 (69.3) 622 2,029 2 1,137 (53.8) (46.2) 2,115 978 3 1,175 (55.4) (44.6) 2,112 947 4 1,414 (63.8) (36.2) 2,217 perti- provides, in provides perti- Amendment The Fifteenth Fourteenth Amendment 5. The right following: part, “The of citizens part, following: shall ... nent nent “No State not be denied deny any jurisdiction to vote shall person the United States its within by any abridged States or equal protection the United or laws.” being for the system was maintained 152-53, to find a such 1874. In order 91 S.Ct. Neither the discrimination.8 Su face, purpose of law, on its unconstitu racially neutral Court, however, preme nor this has tional, plaintiff prove must that it was weight when the the evi denied relief or or with the intent conceived maintained intentionally dis proved plan dence promoting invidious discrimina purpose criminate, purpose when its true even Id., 1872. As this tion. S.Ct. guise propriety. cleverly cloaked in the this, voting cases such as applies to dilution right does not of a to redress The existence racially plaintiff must establish which a degree subtlety on turn was created or neutral plan Circum discriminatory is effectuated. preventing purpose for the maintained suffice, evidence, must necessity, stantial participat minority groups effectively from discriminatory long as the inference of so ing process.6 is clear. intent plaintiff thing say is one that the It becomes, from what question then purpose must establish in- may an circumstantial evidence type of maintaining was to creating or drawn, and how much ference of intent be the access of a unconstitutionally restrict ques- The answer to that required? of it is quite political process, group to be contained in the tion will suffice to say what evidence another Mobile v. recent decision in purpose or in- establish 1490, 64 L.Ed.2d 47 U.S. literacy poll or involving Cases tests tent. (1980). taxes, ownership requirements property or are, by comparison, easy to decide. rep that Bolden Appellant contends most obvious for the creation rejection of radical shift from and resents a clearly dis- systems maintenance such prior to rendered the law of this Circuit crimination. might be ex Appellee, decision.

In a case in which dilution represents any pected, denies that Bolden at a time challenged system was created change. believe it fair such radical We may or not have may ambiguit when discrimination certain say that Bolden contains ies,9 attempt to unlikely plain requiring it is this Court to purpose,7 been its with it in a manner consistent proof that construe tiffs could ever uncover direct color, discriminatory race, previous intent whatever evidence of or that may State on account existed, disappeared. long since have has condition of servitude.” category. The focus within that This case falls allowing conceptual 6. One of the reasons of a then becomes the existence system. dilution cases to be maintained was well purpose of such a for the maintenance Sides, expressed by this in Nevett 571 Court that, unequivocally it can be stated 8. We think denied, (5th 1978), 209 F.2d 951, Cir. cert. 446 U.S. system being assuming main- an electoral 2916, (1980). 100 S.Ct. 64 L.Ed.2d 807 restricting minority tained for the said, Court thereto, no memorandum access there will be merely at-large invidious scheme achieves An defendants, legislative history, or between the gerrymandering], denial of the same end [as said, thing got good in which it is going “We’ve participation, by submerging in- effective keep way system; it this so with let’s this large group constituency enough terest get participate.” Even those Blacks won’t group polarized enough place might to cre- who be inclined those otherwise consistently. minority the [electoral] have become suffi- documentation ate such ciently Id. at 219. judicial operation of our sensitive to the they sim- would not do so. Quite many jurisdic- general 7. The election laws in “smoking gun.” ply, will be no there originally adopted tions were at a time when Blacks disputes franchise. No one had receive their In- States v. Uvalde Consolidated 9. See United adopted District, (5th that such laws were not dependent F.2d 547 625 School end, voting, Cir., plurality 1980). ambiguity achieve an exclusion of Black “The quo. supra opinion that was the states’ election is alleviated status Other [in ] ” opinions.... laws, concurring though adopted shortly after the enact- dissents and various Amendment, at 582. are so old Uvalde ment Fifteenth 1364 Court, may subject ing also that Supreme precedents of

other intent of expressed implied the circumstances of a challenge with the where and with decisions of Court. that Court ‘operate to minimize particular case end, begin review of we will with a To that voting strength of racial or cancel out the Court decisions and decisions Supreme voting popula- political or elements prior Supreme of this Court Fortson, at 439 S.Ct. tion.’ 779 U.S. [85 Next, we will set out in ruling in Bolden.10 Burns, 501], at 88 S.Ct. at & U.S. [86 positions taken the Justices detail said, tendency, we have Such 1294]. At that opinions in Bolden. their various large when the district is enhanced attempt to reconcile Bolden point we will portion of the seats elects a substantial decisions, and establish a worka prior legislature, a bicameral either house of Only point at that will ble rule to follow.11 provision for or if it lacks ... of this case and the we consider the facts particular geo- running from candidates party. legal various theories of each subdistricts, graphical as in Fortson.... U.S., 143-44, at 1869. S.Ct. THE LAW BEFORE BOLDEN12 detail, saying, greater into Court later went 124, Chavis, In Whitcomb v. U.S. Mar- suggestion there is no here that “[b]ut (1971), 29 L.Ed.2d 363 the Su- S.Ct. district or simi- County’s ion multi-member held, preme among things, that other state, throughout were con- lar districts Equal of the Four- Protection Clause operated purposeful or as devices to ceived violated, al- teenth Amendment was not discrimina- racial or economic further though challenged multi-member dis- trict electoral used in Marion Coun- tion. ... ty, in the of dis- Indiana resulted election record nothing have We discovered county’s proportionately few of that findings indicating that or in the Court’s ghetto The Court concluded that citizens. register poor Negroes were not allowed to political the results were an inevitable reali- vote, party they to choose the Blacks, voting ty, solidly because the af- support, participate in its desired Democrats, Republi- outvoted were represented on those equally fairs or to be rejecting plain- cans in most elections. legislative candidates occasions when the relief, however,

tiff’s claim for the Court 149, 91 were chosen.” Id. at which, factually prov- noted areas if several Whitcomb, en, Two terms after strengthened plaintiff’s could have case. Regester, point At one the Court decided White v. U.S. (1972). 37 L.Ed.2d 314 93 S.Ct. validity of mul- But we have deemed the the District justifiable, recogniz- In that case the Court affirmed ti-member districts Supreme (see opinions attempt provide the do herein Justices of the Court 10. We to J., Stuart, Marshall, dissenting) of this that exhaustive review of all the decisions Court or the current state of of such is not the case. We do not J. and Supreme up express any Court lead to the that opinion application law. For an excellent his- the of the First as to the survey, Judge Tjoflat’s opinion for torical this Court in Nevett v. see 1971 to this case. § Amendment or U.S.C. Sides, supra, note 6. should be charted We believe such new courses by prior simply which, to Our Bolden, to state the law yet, as of has not the Court impact and to determine the of that in believe our restraint chosen to do so. We ruling on this case. given appropriate particularly the this area is Court did not consider fact that the District 11. The is for dilution claims rule we establish grounds case. in its evaluation of the those brought and Fifteenth under the Fourteenth appellees We not reach First Amendments. Amendment the District Court’s the assertion Act, do prior the Su- to the law 12. We refer here statutory affirming or for bases preme in in Bolden. Included Court’s decision judgment. respect to With analysis of this deci- section is an Court’s Voting Rights section 2 of the sion in Bolden. 1973, provides remedy for a § U.S.C. by conduct not covered the Fifteenth Amend- ment, expression the of five we are bound Reconstruction, (4) County days since the judgment the multi-member County, slating organization Bexar Texas the and its candidates districts in Dallas and voting rights unresponsive the who were elected were unconstitutionally diluted groups popula the Black minority aspirations of certain racial and ethnic needs and began The Court tion because the Blacks’ votes were not within those counties. in Whit- needed, (5) slating organization proposition with the enunciated and the comb, campaign plaintiff’s recently burden is to had relied on racial tac “[t]he produce support findings expressing evidence to tics to defeat those candidates leading political process rights the to nomination concern for the needs and of the equally open par community.14 and election were not the case Bexar group ticipation by question County, requisite in its found the ex —that opportunity political process members had less than did oth clusion from the with the participate type, although quantity, er residents in the district in a lesser same political process legislators and to elect its on evidence. The Court based decision U.S., finding (1) long of their history choice.” 93 S.Ct. there was a County at 2339. The Court held that this standard in Bexar of invidious discrimination “education, plaintiffs had been met in employment, Dallas Coun in the fields of (1) economics, health, others,” ty, history politics (2) of official and rights racial discrimination typical affected the “the Mexican-American suffers vote, register, participate language Blacks to and in cultural barrier makes (2) political process, requirements community processes in ex participation his difficult...,” majority primary coupled (3) vote in tremely elections Mexican-Ameri requirement with the run vastly underrepresented that candidates cans were “place”,13 though improper positions, (4) from a elective Mexican-Americans themselves, opportunity register enhanced the for were hindered in their efforts discrimination, (3) registra racial extremely recently by few vote until a restrictive (5) Blacks had been procedure slated elected Dallas tion the Bexar Running “place” Responsi- from a is the same as run- for slated Dallas Committee ning post. (DCRG), from a numbered A candidate se- ble Government a white-dominated for, organization lects the area whose seat he wishes to run that is in effective control of although Party slating he need not live in that area. Democratic County.11 candidate in Dallas organization, That the District found, standards, support regard did not need the 14. With due for these community Negro history to win elections District Court first referred to Texas, county, good- official racial and it did not therefore exhibit discrimination in right reg- Negroes at times touched the faith concern for and other needs participate aspirations Negro community. ister and vote and to in the demo- processes. F.Supp., recently cratic at 725. It The court found that as as 1970the requiring relying campaign upon referred also to the Texas rule DCRG was “racial majority prerequisite precincts vote as a to nomination tactics in white to defeat candi- primary in a overwhelming support election and to the so-called dates who had the “place” limiting candidacy legislative Id., community.” rule the black Based speci- it, office from a multimember district to a on the evidence before the District Court “place” ticket, fied being on community with the result “the concluded that black has representatives election from the effectively participation been excluded from Dallas multimember district to a reduced primary proc- in the Democratic ess,” id., selection position. head-to-head 726, contest for each generally at and was therefore These characteristics of the Texas electoral permitted proc- not to enter into the system, improper neither in themselves nor meaningful ess in a reliable and manner. invidious, opportunity enhanced the for racial findings These and conclusions are sufficient discrimination, thought.1® the District Court judgment to sustain the District Court’s fundamentally, More it found that since Re- respect and, multimember district Dallas days, only construction Negroes there have been two record, on this we have no reason County delegation in the Dallas disturb them. Representatives the Texas House of and U.S., 766-67, at at 412 93 S.Ct. 2339-40. Negroes these two were the ever two 1366 districts, require- vote large majority insufficient legislative delegation was

state ments, anti-single voting provisions shot of the Mexi responsive to ly the interests at-large provisions the lack of when considered community, can-American geo- running particular from candidates posi aggregate, supported plaintiff’s of dilu- The fact graphical subdistricts. effectively removed were tion ex- proof of the upon is established tion County. political process in Bexar from the aggregate of these factors. istence of an White, Following decided the this Court pronounce- recent Supreme McKeithen, F.2d 1297 of Zimmer v. 485 case supra, v. demon- Regester, in White ment 1973) (en (5th banc), on other Cir. aff’d however, strates, all these factors nom., grounds, sub East Carroll Parish to obtain proved be in order need not 636, Marshall, Bd. v. 424 96 School U.S. relief. 1083, (1975).15 In Zim 47 L.Ed.2d 296 S.Ct. at 1305.16 Zimmer mer, held a of we multi-member factors, Parish, ex Finding primary all elections in East Carroll Louisiana established, rights unresponsiveness,17 were plaintiff’s cept violative constitutional many “enhancing” factors votes impact in that it diluted the of the concluded that a present, were Court minority community. residents of that This been estab Court, violation had taking guidance constitutional from the decisions lished. Regester, Supreme Court in White v. Chavis, and Whitcomb v. set out a list of later, called on years Five this Court was that courts in evalu factors should consider light analysis, in its Zimmer to reconsider ating permissibility constitutional in Wash Supreme Court’s decisions voting practices alleged to discriminate Davis, 229, 2040, ington v. 426 96 S.Ct. U.S. against racial minorities. We Ar (1976), Village of 48 L.Ed.2d 597 minority ... where a can demonstrate a Housing Heights Metropolitan v. lington process slating lack of access 252, Development Corp., 97 S.Ct. 429 U.S. candidates, legis- unresponsiveness 555, (1977).18 450 so a L.Ed.2d It did 50 interests, particular to their a tenu- lators day: Nev series of cases decided the same policy underlying preference 1978), ous state Sides, (5th v. 571 209 Cir. ett F.2d districting, 2916, denied, 951, 100 for multi-member or 446 64 cert. U.S. past (1980); or that discrimina- existence of v. 571 L.Ed.2d 807 Mobile rev’d., 55, general (5th 1978), tion in the effective precludes 238 Cir. 446 U.S. F.2d 1490, (1980); participation system, 47 Blacks the election 100 S.Ct. L.Ed.2d strong Lasting Leadership v. Shreve proof case is en- United for made. Such (5th 1978); Thomas 571 F.2d 248 showing port, hanced of the existence of Cir. They expressly These were dilution cases. 15. Court said 18. judgment protection approval simply equal affirmed the “without reaffirmed “the basic quality expressed principle constitutional of law [neu views Court that the invidious S.Ct., U.S., Appeals.” racially at its discrimi tral on claimed to face] racially 240, natory ultimately to a must be traced Zimmer, proof U.S., 16. In criteria of these was discriminatory purpose.” 426 an end unto itself. This did make the the S.Ct., intent at 2048. The indicated its inquiry, required, as to next extent to which as is now broadly applied rule to cases such as have the this, proof of those factors referring Wright approvingly to would allow an inference of intentional discrim- Rockefeller, 376 U.S. 84 S.Ct. ination be drawn. (1964), apportion congressional L.Ed.2d case, proof ment discussed, infra, 17. As will be Zimmer was con- required. purpose was stitutionally infirm relief to the extent granted unresponsiveness. without significant this is We believe one of the reasons strongly Zimmer was in Bol- criticized so den. be established. could Zimmer the NAACP v. Thomas ville Branch of hand, on the other to indicate quick was (5th 1978).19 Cir. County, 571 F.2d or finding purpose of intent should series, in Nevett In the first case process by which the mathematical not be a Sides, writing Judge Tjoflat, supra, refuting greatest num or party proving Court, the status of extensively reviewed winner. We is declared the of criteria ber regard to claims that certain the law with said, Fourteenth and voting practices violate the of fact determines the the finder [t]hat rights mi Amendment of racial Fifteenth or even prevailed has under one plaintiff Washington v. the basis of norities. On of the Zimmer criteria several Davis, Arlington Heights v. Village of and of intentional dis establish the existence Development Corp., Metropolitan Housing See, g., v. Gadsden crimination. e. McGill a claim concluded that such could Commission, (5th 535 F.2d proof that the not to be established without 1976). other The evidence under the Cir. discriminatory system was con allegedly may weigh heavily so in favor of criteria purpose for the ceived or maintained as a the defendant the evidence restricting the access of minorities an inference of invidi whole will not bear process. 571 F.2d at 219-21.20 political course, plain discrimination. Of ous As was the case in decisions discussed prevail under all of the tiff need not type what previously, question became criteria, Zimmer, F.2d at nor is required to es and how much evidence is The task before the he limited them. Particularly, tablish of intent. determine, under all the fact finder is to attempting to set forth the evi Court was facts, “aggre in whose favor the relevant allow an inference to be dence that would gate” preponderates. evidence being system was drawn that the electoral peculiarly depend is This determination maintained, implemented, for a rather than It com upon ent the facts of each case. discriminatory purpose.21 After detailed history and an in prehends “a blend of pres analysis the Court concluded that the design appraisal of the tensely local set in Zimmer could ence of the factors out [at-large] district impact of the purposeful allow the inference of discrimi reality, political light past The Court reasoned Regester, nation to be drawn. otherwise.” White v. being U.S., 769-70, S.Ct., that if the electoral at 2341. It is therefore, purpose achieving for the obligation, maintained of the finder of end, i.e., proscribed weigh constitutionally official examine and carefully fact determine whether perpetuation competing distribution factors to probative those of in power, and economic it was coincidence of is sufficient. discrimination highly unlikely that the criteria set out tentional racially showing moti- “... we hold that 19. We discuss herein the first two of the Sides, case, necessary four cases. The first important Nevett v. is is a element vated discrimination analysis equal protection this Court to this because dilution claim such principles law used that case to set forth the to be decision, presented 571 F.2d at showing in this case.” as the one applied said, The second all such cases. Similarly, “A the Court significant here Mobile v. necessary improper motivation rejection was the because it Fif- under the a valid cause action establish analysis gives our in that rise to of appellant’s employing case that Id. at 221. amendment.” teenth has been contention that this Court legal an erroneous standard. contention that the 21. There was no discriminatory purposes be- was created for 20. So that the Court that there can be no doubt creation, cause, Blacks had of its at the time thought purpose be essential ele- or intent to effectively an amend- disenfranchised been ments of a claim, Fifteenth Amendment Fourteenth or Constitution. ment to the Alabama quote language we in that some opinion. respect With to a claim founded on Amendment, the Fourteenth the Court 1368 (5th F.2d 238 Cir. Mobile 571 invidious discrimi v.

“Determining whether 55, 1490, 1978), rev’d, 100 motivating was a factor S.Ct. 64 natory purpose 446 U.S. inquiry such cir a sensitive into the (1980) demands L.Ed.2d was the second of 47 and direct evidence of intent cumstantial voting by four dilution cases decided Arlington Heights, may be available.” case, this Court affirmed Court. In that 266, at 429 97 S.Ct. 564. U.S. judgment plaintiff- that the District Court’s appellee’s and Fifteenth Fourteenth at 224-25. F.2d violated, rights had been Amendment great lengths ex- went to Court requir- order reinstated the District Court’s criteria, plain if each of the Zimmer how from ing city elected commissioners established, allowing be evidence an could single-member in the future. districts particular signifi- inference of intent. Of cance of this is our to our resolution case repeat lengthy the Rather than historical un-responsiveness discussion of the factor. Nevett, analysis the Court in su by which said Court of or pra, proof intentional concluded plan

Consider a neutral its enactment discriminatory of a purposeful maintenance intentionally vehicle for that is used as a requisite proving a dilution was a ignoring interests. black The existence case, incorporated by the ref simply Court of presupposes such discrimination racial- portion erence of the Nevett decision.22 ly voting in the polarized electorate. Po- place At in the decision did the one voting, although larized or bloc in itself the intent explicitly require Court refer to unobjectionable, constitutionally allows ment. The Court representatives ignore minority inter- II, today of holding Under our Nevett reprisal polls. fear of ests without at the findings compel these inference also demonstrated, voting has been When bloc with that the has been maintained a showing govern- under Zimmer vote, diluting of purpose black ing body unresponsive minority of supplying thus the element intent nec- strongly needs is corroborative of an essary to establish a violation the four- electorate’s bias. The of inten- likelihood amendment, Village Arlington teenth exploitation is tional “enhanced” 555, Heights, 429 97 S.Ct. U.S. systemic existence of devices such as (1976), and fifteenth L.Ed.2d 597 majority requirement, anti-single vote amendment, Rockefeller, Wright v. provision, require- shot lack of a U.S. L.Ed.2d 512 representatives ment that sub- reside in (1964). districts. Despite brevity 571 F.2d 245. of this 571 F.2d at 223. comment, reading of the a careful decision Having established the standard confirms that the our conclusion intent, evidence of evaluate the Court following intent standard set considered the facts of the case then at bar. Davis, Washington Village out in Finding the factual determinations of the Arlington Metropolitan Housing Heights v. court, trial plaintiffs had to es- failed Development Corp. criteria, tablish evidence of the Zimmer In attempting to evaluate the existence erroneous, to be clearly this Court affirmed discriminatory intent in the judgment Court’s maintenance District for defend- system, ants. a racially neutral electoral intent, portions given incorporate have rise to the “We of our erroneous also: opinion today recognize in Nevett II that this did [Nevett ] v. Sides conclusion explicate legal principles applicable proof case. need for reading A careful such Bolden, however, opinion in dilution cases.” 571 at 241. We F.2d our inextricably incorporate believe the decision to leads to the conclusion that standard, required. legal respect intent was reference the necessity establishing proof purpose or discussed, either of agree we do not with circumstan consider required to Court was however, agree, We do positions. inference of those from which an tial evidence ruling; complex the Court’s that is a Accordingly, be drawn. intent could plurality, with a and, commanding only a opinion criteria applied the Zimmer being publish- separate opinions of six finding of in total Court’s holding the District light on the the most ed. In order to shed a maintenance of tentional decision, begin we will erroneous,23 implications en clearly system not to be by the positions taken by reviewing the plaintiffs. The judgment for the tered separate opinions. afforded, however, in their was considera Justices remedy dilution than in the traditional different bly Stewart, writ (a) Plurality The —Justice under a three- operated Mobile had case. begins analy with an plurality,24 ing for the government. commission form person respect to opinions of this with sis for all ex responsible The commission He details Amendment. the Fifteenth functions of the administrative ecutive and Fifteenth development of law case elected one The three commissioners city. concludes, as did this Amendment Mayor. The of their members to serve Court, by a that is racial that “action State discrimi concluded that District Court violates the Fifteenth neutral on its face ly remedied, as in system could not be natory only if motivated a discrim Amendment case, into by dividing city the normal at 1497. The 100 S.Ct. inatory purpose.” precinct ward or along preexisting districts purpose plurality then concludes Court or Accordingly, the District lines. directly interferes ful conduct government commission form dered the or vote is register Blacks to rights mayor-com replaced it with a abolished and Fifteenth Amendment.25 proscribed by the executive under which the system mission prohib “That Amendment The Court separated, legislative functions were discriminatory denial only purposefully its mayor, to the being former allocated the free abridgment by government Additionally, the latter to the council. race, color, or vote ‘on account dom to size changed the commission District Court Having of servitude.’ previous condition with nine to a council from three members Mobile, ‘register Negroes found members, from being each member elected hindrance,’ District Court vote without single-member a district. in be were in error Appeals and Court pro invaded the lieving appellants BOLDEN Amendment tection of that Supreme Court’s We come now to the S.Ct., 1499. case.” 100 Bolden, decision, v. 446 U.S. recent Mobile attention focused its (1980). plurality next L.Ed.2d 47 100 S.Ct. elec- that Mobile’s conclusion litigation on this Court’s Depending party on which to this plaintiff-appellee’s violated to, this decision is either revolu- toral one listens equal protection Amendment definitive, or evolu- Fourteenth and absolute tionary, propo- with the opinion begins rights. in its im- ambiguous, and flexible tionary, Chavis, and Whitcomb v. taken from As will be sition pact on the state of the law. conclusion, role of the Fif- view of the reaching 25. This restrictive In its that the discriminatory pur- this did not in cases such as Amendment was maintained for teenth fact, majority five poses, Zim- of the Court. found all of the the District Court command that, proper present except going explicitly with the mer criteria stated Justices support weight policy elec- would proof, of the state behind Amendment the Fifteenth factor, respect the District tions. With claim. dilution it was neutral. Court concluded that opinion by joined in the 24. Justice Stewart was Powell, Burger, and Jus- Justice Justice Chief Rehnquist. tice by the District Court was commensu- Regester, and adhered

White of judicial exercise its 571 F.2d 238 rate with the sound opinion S.Ct., at 1507. Justice (5th 1980), a constitution- discretion.” 100 prove Cir. accept the District case “it is not Blackmun was unable al in a dilution violation allegedly force Mobile abandon group Court’s decision to enough to show repre- year old commission form seventy its against has elected discriminated numbers, (ci- mayor-council system, government to its proportion sentatives reme- plaintiff prove attempting first to fashion a omitted). A must without tations compatible exist- dy that would be with the disputed plan the was ‘conceived said, system. I operated ing device further Justice Blackmun “... purposeful [a] ” that, S.Ct., the remedy at not believe in order to racial discrimination.’ 100 1499. do found, vote dilution it unconstitutional [] Looking in the at bar at the record case necessary city convert Mobile’s was held, the Court “... it is clear that the In mayor-council system. government present fell far short evidence the case view, at least my the District Court should showing appellants ‘conceived or the have maintained some the basic elements operated purposeful device to further [a] long ago of the commission Mobile omitted).” (citation racial discrimination.’ joint legislative had exercise of selected— S.Ct., compared at 1502. The Court power, repre- citywide and executive Regester, “only White v. the case [] [] S.Ct., at sentation.” mul- which the Court sustained a claim that result, Jus- legislative Despite timember unconstitu- his concurrence in the districts clear his view he tionally voting strength the of a tice Blackmun was diluted as to group.” agreed discrete at with the with Justice White’s dissent S.Ct. recog- Though questions it. the substantive of constitutional facts case before presented. nizing attempting opinion, to evaluate law At the outset of his courts said, leg- constitutionality racially “Assuming the Justice Blackmun neutral prerequisite appellees’ is a proof islation “... must look to other evidence to of intent finding pur- support prevailing on their constitutional claim dilution, agree I pose.” 100 vote am inclined to Court held that, that, case, upon ‘the so-called Zimmer criteria Mr. Justice White in this “[t]he sup- findings amply of the District which District Court and the Court of port purposeful discrimina- Appeals assuredly relied were most insuffi- an inference of tion,’ S.Ct., post, It prove at 1518.” unconstitutionally cient discrim- particularly significant Justice in the inatory case.” 100 S.Ct., agreed portion with that of Jus- Blackmun plurality at 1503. The was of the that, tice that said the District opinion White’s dissent presence while “the as to Court was correct its determination indicia relied on in Zimmer may afford that both the Fourteenth and Fifteenth discriminatory purpose,” some evidence of a Amendments had been violated. S.Ct., quality nor neither presented sup- the quantity of the evidence

ported finding of purposeful conduct. (c) Stevens concurrence Justice in the Though Justice concurred Stevens

(b) Justice Blackmun’s concurrence result, apply he would have the a test opposite that appears diametrically concurring opinions, In the first of two employed by the He plurality. joining Justice Blackmun that he is states result “be- plurality view, reached proper sug my standard appellees cause I afforded gested ger believe relief by three characteristics intent, (1) tempting to draw an inference of in Gomillion: 26 rymander condemned was, he is not concerned with but rather because configuration the 28-sided “uncouth,” subjective intent. It is entire word, say, it such that is to likely, that he would ly possible, rou and in fact product of a manifestly not decision; (2) criteria were he re employ the Zimmer political tine or a traditional evaluate the existence discrimi impact quired on a significant had adverse (3) unsup natory intent.27 group; and it was minority justification and ported by any neutral or en totally was either irrational thus (d) Justice White’s dissent by a desire to curtail the tirely motivated reach a result differ- Justice White would strength minority. These political plurality, al- ent than that reached proper test suggest that a characteristics agreeing purposeful though apparently objective on effects of should focus necessary element of a discrimination is a sub decisionrather than the dilu- or Fifteenth Amendment Fourteenth the maker. jective motivation of decision quite simply that position tion claim. His added) (emphasis Regester, v. Bolden is controlled White S.Ct., 100 Justice then Stevens incorrectly applied plurality and that the that, reject

goes say only on to does he case, rule established in that that courts the plurality, of the the or intent test historical, totality the of should consider persuaded also “... I am that a but that cultural, factors in eval- and socio-economic political group decision that affects purposefully dis- uating the existence of a rights may proved be if it be valid even can begins by criminatory system. He irrational or invidious factors have that demonstrating how the factors considered part its or reten- played some in enactment identical, similar, were if not in White tion.” Id. which the District Court and Court of those Though applied finding plaintiffs it is clear that Justice Stevens in for the Appeals rejects plurality opinion respects points the in all He out that the Bolden. then achieved, Appeals, opinion his of ad- other than the result District Court v. Da- dressing Washington of leaves this and other courts in a somewhat “the effect vis, omitted), v. Re- (citations on the White precarious position as to the rule to be that the re- applied example, gester it is standards.... concluded in future cases. For facially that a neutral statute quirement what standard Justice Stevens unclear before a purposeful discrimination apply attempt would were he to to find the involved can Equal Protection Clause purposeful or conduct that five violation intentional not inconsistent require. other would In that re be established was Justices criteria, recogni- Regester light gard, rejects he Zimmer not White v. the Davis that the dis- Washington at tion in v. they inappropriate because are when 339, legitimate justification any Lightfoot, for 81 the absence 26. Gomillionv. 364 U.S. S.Ct. subjec- 125, system, (1960). without reference to the 5 L.Ed.2d 110 the political body has re- tive intent said, 27. Justice Stevens it.” fused to alter U.S., 86, S.Ct., at 1512. Justice proper objec- at 100 focus on “... test should only to the effects of an electoral Stevens looks system. rather tive effects of the decision approach subjective looks at those The Zimmer than the of the deci- motivation case, effects, only they (citation omitted). this to the extent sionmaker. if the commission same but government form of an inference of intent. It is reasonable allow assume, therefore, that, extraordinary, required Mobile were or if it were no were he history, vestige great- intent, more than a with no Justice Stevens an inference draw justification figure grotesque employ er than the he thinks same factors that would Gomiiiion, surely inquiry. it would violate the Consti- independent of the intent relevant are simply tution. That conclusion would follow plus impact from its adverse on black voters Marshall plurality. would the Justice often be inferred than purpose may criminatory ” position rejects plurality’s .. totality from of the relevant facts.. S.Ct., thought prove White “the mak plaintiff at Justice must decision approach consistent with that a particular er . selected or reaffirmed . . Davis, Washington of,’ v. in which Court in part course of action at least in ‘because discriminatory purpose it “an invidious of,’ spite ‘in its adverse effects merely totality may often be inferred from upon Ad group.” identifiable Personnel fact, including the if it is the relevant facts Feeney, U.S. ministrator Mass. true, heavily law more on bears 2296, 256, 279, 60 L.Ed.2d 870 U.S., one than another.” 426 race Rather, (1979). ap Marshall “would Justice S.Ct., Ultimately, at 2048-49. Justice pre ply foreseeability common-law plurality opinion White concludes that S.Ct., such sumption” 100 cases those of the simply inconsistent with standard, de Applying his as this. “[t]he White, Whitcomb, Village Ar- Court in their burden of carry would fendants although lington Heights, Washington, they considered they showed that if expresses posi- an intent to affirm the Negro vote a detri submergence tions in and be consistent with those taken benefit, ment, not a multimember decisions. citi systems, minority accorded whites, respect given same

zens the maintain they nevertheless decided to (e) Brennan’s dissent Justice Id. legitimate reasons.” systems Brennan’s is concise and position Justice BOLDEN RECONCILING unequivocal. agrees He with Mar- Justice proof discriminatory shall impact “that is principles are that can There certain S.Ct., in these sufficient cases.” A definitively be after Bolden. stated accept- 1520. He also states that “... even bringing voting case at plaintiff dilution ing premise plurality’s the that discrimina- racially tacking is an electoral that shown, agree tory purpose must I with face, challenge sys may its such neutral on Mr. Marshall Mr. White Justice Justice grounds the that it violates either tem on appellees clearly have met that bur- the Fourteenth or Fifteenth Amendment. den.” Id. scope would limit the Though plurality the to situa Fifteenth Amendment those the (f) Justice Marshall’s dissent di in which was official action tions there to impinging rights the Blacks rectly analysis Marshall’s was substan Justice vote, register position did not com or tively position to the similar bifurcated majority. dissenting Three Justices mand a Brennan, although Justice he went into far Fif specifically parameters said of the greater explain jurisprudential depth to voting di encompasses teenth Amendment underpinning opinion. of his We do not it is asserted that lution cases which exposition here Justice as review Marshall’s limits the access of purposefully why proof unnecessary to is intent political process. In his con to Blacks cases his such as this. This is not because currence, agrees with the Justice Blackmun opinion lacking philosophical appeal, is his dis position taken Justice White in because, opinions of at given but rather sent, questions as to the substantive Court, quite least members it is six fourth presented, thereby becomes the law clearly not the approve of an to member respect governed. case must be With expansive reading Amend of the Fifteenth question proof necessary to establish concurrence, Justice Stevens In his discriminate, ment. intent Justice requisite states, disagree Mr. I explicitly “... impose dif substantially Marshall would plurali for the proof on the Justice Stewart’s conclusion plaintiffs ferent burden right to re Clearly, the inatory purposes. applies Fifteenth Amendment ty that public or not depend on whether access lief cannot directly affect practices only inculpatory docum officials have created inapplica totally hence is the ballot and r.”28 reject possibili this first We must S.Ct., ents.29 the case at ba ble to ty. satisfied that 3. He also “.. . Iam n. [at-large may be systems] a structure

such that, while cir possibility is The second Amendment challenged under the Fifteenth suffice, type evidence cumstantial Equal Protection well as under the for in Zim called of circumstantial evidence ” Amendment.... of the Fourteenth Clause discriminatory prove inadequate mer conclude, therefore, S.Ct., We elusive area think this is the purpose. We Fifteenth believe the five Justices were Though four Justices post-Bolden. right of action in creates a Amendment criteria,30 five Zimmer with the satisfied cases. dilution use of rejected the exclusive clearly Justices inferring means of those criteria as the disputable principle, af An even less they purpose or intent.31 We conclude Bolden, challenging plaintiff an ter is that rejected the Zimmer criteria the use of prove that the at-large voting system must Court, pre the extent that this for the system was created maintained the existence of a sumed limiting the access of or exclud purpose of of those of some purpose from participation in ing from effective Blacks rejected factors. We believe the system. weighing ap quantitative of such a use independent proach, requiring instead type to is what question we return we think Additionally, into intent. inquiry required to es- how much evidence directing all courts Supreme Court was discriminatory purpose. proof of a tablish the Zimmer making inquiry apply possi- are three seems to us that there It they are criteria to the extent bilities. and, hand context at relevant to the factual is that Bolden possibility The first relevant, to are not so to the extent We evidence of intent. requires direct Finally, appears it employ other criteria. the only incorrect. Not does think this is in has somewhat Supreme the the circumstantial plurality opinion say that in proof plaintiffs on creased the burden of “may in Zimmer afford some evi Zimmer, granted evidence In this Court such cases. discriminatory purpose” dence of a that the despite factual conclusion relief the S.Ct., 1503, that in question at common sense tells us in juries school board police this, not be such as in which it can needs of the unresponsive case to the were not created for Court im system community. asserted that the was explicitly that no as we discriminatory purposes, likely plicitly concluded of unre proof such today, evidence do that absent plaintiff could ever find direct can not be prima facie case sponsiveness a was maintained for discrim prove footnote, in- was sufficient to Justice Stevens trial 28. In that same points to understand tent. out that it is “... difficult why, given position Fifteenth [that inapplicable position to cases such as joined Amendment is plurality in this 31. The at-bar], understand, to reaches out one he [Justice Stewart] It is essential Justice Stevens. discriminatory purpose must be decide that however, rejects Zimmer use of the that he proper Amend- Fifteenth intent, demonstrated in a ment not inference of criteria to draw an S.Ct., at n. 3. case.” proof cannot establish he such because discriminatory believes intent, because he but rather accompanying supra text. 29. See note question to the intent is irrelevant thinks disposition as this. of cases such agreed dis- Blackmun with the three Justice senting Justices that the evidence adduced Regester in White v. rejected proval to its decisions been Zimmer has established. Thus, points The Court we and Whitcomb Chavis. it holds otherwise. the extent that, in White our earlier statement out exception make one is re of the Zimmer criteria evidence in the upon relied extent are quired only to the history of long included a record that particular case. relevant the facts of a against minorities discrimination official believe, however, exception that this We their needs and well indifference to as as conceptual framework grounded well in the elected part of white interests on rights recognizes the Constitutional also found in each officials. The Court before, stated here involved. As has been factors that restricted county additional and Fifteenth Amendments the Fourteenth polit- minority groups to the the access of participation protect right to effective county, Negroes ef- process. ical one partici process. in the electoral Effective process from the fectively were excluded right pation does not mean the to have slating for the Democratic candidates race, sex, group elected members one’s other Party, plaintiffs while the mean is political office. What it does who county Mexican-Americans were system government that the that serves language barri- a cultural and “suffer[ed] people must serve the the interests “participation er” that made communi- difficult, to the people; particu- interests of all the at least ty processes extremely group’s respect extent that one interests are larly ... with invidiously against. There county. discriminated life” of the U.S. fore, (footnote omitted). racially group may definable chal 2340-41 S.Ct. at lenge system on dilution an electoral Moreover, S.Ct., it is clear that grounds only if it can be shown that gleaned were from the the Zimmer criteria system invidiously operates to the detri Supreme guidance in White and Unresponsiveness ment of their interests. Finally, plurality itself Whitcomb.33 necessary plaintiff’s is a element to mainte recognized on in that “the indicia relied nance of an Proof of action such this. evidence of a Zimmer afford some ” alone, unresponsiveness, give rise does opin discriminatory purpose. .. . In our is main an inference that therefore, ion, crite the use of the Zimmer discriminatory purposes. tained for That inquiry ria is sound to the extent that light conclusion must be reached primary question of discrimi focuses on the totality presented. of the circumstances natory purpose. that, light Bol

Appellant contends possible explanation for The third den, the to draw use of the Zimmer criteria in Bolden is sim Supreme Court’s decision an inference of intent is erroneous. Such insuffi ply that the evidence adduced was reading un broad absolute of Bolden seems of discriminato cient to allow an inference Bolden, In warranted incorrect.32 most purpose. We believe this was the ry Supreme ap specifically Court refers ruli significant behind the Court’s factor very factors “... Zimmer articulated the 32. See United States v. Uvalde Consolidated District, by Regester Independent supra, in deemed White v. School note relevant said, minority ac Whitcomb v. Chavis — a lack of which this Court “We are convinced that reasoning process, unre the fundamental of in cess to the candidate selection our decision Bolden, Sides, sponsiveness minority companion, and its Nevett v. of elected officials to discrimination, interests, majori (5th history 1978), Supreme F.2d Cir. survives the ty requirements, provisions vote that candi Court’s decision Bolden intact.” Uvaldeat 582. [in ] number, positions by place or dates run for the lack of at-large any provision candi particular geographical dates to run from dissenting opinion 33. his in Justice subdistricts. points White out that S.Ct., 1518. established, an indicating are inference discrimina ng.34 After the factors necessarily to be tory purpose in Zimmer could be indicative is not drawn. enunciated though discriminatory totality not conclusive of The must consider the trial court so-called purpose, ultimately the circumstances and rule on “[t]he upon Zimmer criteria which the District precise discriminatory purpose. issue of Appeals and the Court of relied were Finally, reality that each case given prove assuredly most insufficient to an un represents extremely unique factual con discriminatory purpose in constitutionally decision, great give text for this Court will added) (emphasis case.” judgment of the trial deference S.Ct., weigh at 1503. The fact that such a court, position which is in a far better ing of the evidence was difficult and ex social, political, the local and eco evaluate tremely close is reflected the division nomic realities than is this Court. the Court.

THE RULE ESTABLISHED THE PRESENT CASE A cause of action under the original- complaint in this action was Fourteenth or Fifteenth Amendment as April, Judge in District ly filed Alai- serting unconstitutional vote dilution order, including findings mo’s final of fact through at-large the maintenance of an law, and conclusions of was entered over system legally cognizable only if years length two and one-half later. The injured allegedly group establishes that largely the case was attrib- pendency system was created or such maintained for discovery utable to the extensive conducted discriminatory purposes. A parties. both At the conclusion purpose may totality be inferred from the trial, Judge Alaimo held non-jury for the of circumstantial evidence. An essential class, plaintiff concluding that Burke Coun- prima proof element of a facie case is system electing county commission- ty’s unresponsiveness by public body in ers on an basis had been main- question group claiming injury. limiting tained for the the access alone, unresponsiveness, Proof of does not county’s of that Black residents to the elec- prima establish a facie case sufficient to process. toral party shift the burden of to the de by appellants Much ado has been made fending constitutionality system; fact that the District this action about the responsiveness is a determinative factor preceded Court’s order only in its absence. Zimmer criteria Though this decision in Mobile v. Bolden. dispositive but be indicative on the cases, we could make a difference some question of intent. factors rele Those are timing controlling find here. do not such vant only they to the extent that allow the earlier, the “new rule” As we indicated trial court to draw an of intent. inference appears in Bolden to be an ex established The Zimmer criteria are not the exclusive and, pansion principles earlier established discriminatory purpose indicia of Village Washington v. Davis and of Ar factually extent are not relevant in a case, lington given Heights Metropolitan Housing they may replaced supple meaningful Development Corp. correctly A court that mented more factors.35 anticipated requirement Even if all of the Zimmer and other factors how the intent Uvalde, 9, indicated, supra Judge points unresponsiveness 34. Rubin As note 35. we have replaced. plurality’s rejection may Proof of unre- out that “... of the criteria not be sponsiveness element to the fifteenth amendment 2 claims in is an essential and section may entirely upon a claim such as this. It should Bolden rest the conclusion maintenance of course, discriminatory supplemented, with such other that no was shown.” be motivation analysis may relevant to the of a Uvalde at 582. criteria as given case. formula, voting mary dilu factor in the Zimmer is a applied cases would be those status, cases, ‘which correctly depressed could in socio-economic tion as law, community processes participation makes terpret apply without ben important This is an factor Supreme opinion. difficult.’ Id.36 efit of the Court’s recent and must be considered here.” Order foresight dem precisely type This is statements, well of these as On the basis Judge present onstrated Alaimo in the analysis of the order, the District Court’s detailed Judge case. At the outset of his factors, the Dis Kirksey we conclude that Alaimo refers to this Court’s treatment not treat the Zimmer crite trict Court did Arling Washington Village v. Davis and absolute, rather considered them ria as but Heights Metropolitan Housing ton v. Devel they were relevant to the only to the extent opment Corp. Sides, in Nevett v. 571 F.2d question intent. denied, 209, (5th 1978), Cir. cert. 951, U.S. L.Ed.2d step analysis The next in our is to deter- (1980), and concludes that demon ‘... [a] properly mine whether the District Court necessary stration of intention is under both finding unresponsiveness. made a As we amendments,’ fourteenth and fifteenth as a earlier, unrespon- indicated failure to find requisite finding to a of unconstitutional precludes siveness the maintenance Buxton, Lodge vote dilution. Herman v. For dilution case. the reasons set 78-3241, Findings No. of Fact and Conclu below, out we conclude that the District (S.D.Ga., 1978) sions of Law at 4 Oct. finding unresponsiveness (hereinafter clear, therefore, Order). It is quite present correct in the case. Judge employed Alaimo the constitu considering After exhaustive evidence on tionally required standard in his evaluation subject, found that the coun case. We cannot affirm his ty commissioners demonstrated their unre however, judgment, unless and until we sponsiveness particularized needs of analysis conclude his satisfies the rule (1) community by: allowing the Black some we today. have established largely Blacks to continue to be educated in begin with, To we note that the District schools; (2) segregated clearly inferior Court’s order was not defective exclu failing hire more than a token number of sive and unwarranted reliance on the Zim jobs, county paying Blacks for those Though mer criteria. court did consider Blacks hired lower salaries than their White those criteria it also evaluated the case in counterparts; (3) few appointing extremely light of “other factors” set out Blacks to the numerous boards and commit Kirksey Court in Supervisors Board of tees oversee the execution of the coun Hinds County, (5th Cir.) (en 554 F.2d 139 ty government, particularly groups, those banc), denied, cert. 434 U.S. 98 S.Ct. overseeing such as the committee the De 512, 54 (1977). L.Ed.2d 454 In its order the Services, partment of Family and Childrens District Court “It must be remem agencies whose function is to monitor bered that the Court is not limited its county government primarily that work factors, determination to the Zimmer Blacks; rather (4) failing appoint any with factors, the Court committee, consider the Zimmer judge Blacks to the selection Kirksey ‘or similar ones.’ v. Board of Su respect appointment Judge of a pervisors County, Court, of Hinds 554 F.2d at for the Burke Small Claims One ‘similar factor’ Kirksey despite considered in the fact most of the defendants Black; (5) which did explicit pri making not seem to be an in that court are road Regester 36. We think the District Court’s consideration determination in White v. Court’s the factor, County, of this in addition to those established in in Bexar Zimmer, particularly significant given plaintiffs how Texas violated Fourteenth Amend- important presence depressed rights. of a socio- ment economic condition was of fly would in the face over- so wise be to paving ignore decisions in a manner as to whelming shocking evidence. and of county’s the interests the legitimate residents;37 (6) forcing resi Black Black question going to the of A second factor legal protect to their dents to take action to discriminatory is the extent intent rights integrated grand ju schools and to a impacts on mi historical discrimination ries, register and vote without interf and nority group’s present opportunity for ef erence; (7) participating and in the proce participation fective in the of, contributing pub in fact formation and evidence, the ss.39 On basis of substantial of, operation private lic to the a funds previous that the District Court concluded signifi re school established to circumvent the had a acts of official discrimination hold, integration. negative opportunity We of quirements impact of not cant on the exercise County Blacks in Burke their only finding the District Court’s was agree. right participate. to so We erroneous, unresponsiveness clearly but commissioners, acting in county that the assessing began by The District Court capacity, their have official demonstrated present impact registration on voter legitimate such insensitivity rights to the prior suffrage. absence Black that county’s only Black residents it can Voting said that when the until ef explained as a conscious willful Rights adopted, suffrage Act was part fort maintain on their the invidious “virtually present, At was non-existent.” vestiges of To discrimination. find other- registration approximately Black voter is particular significance, given plurality typical example 37. As a lack of concern 38. Of county position that White interest of commissioners have for the Black that a Fifteenth Amendment Bolden residents, only Burke’s the District when there is violation occurs pointed directly to the facts right register the pinged, and vote was im- (1) Subdivision, finding The Mamie Jo Rhodes inhab- is the District Court’s such by unpaved. directly taking place ited across from a subdivision inhabited Blacks is It is even at the overt conduct was by present was filed. The court time lawsuit paved (2) Whites. The latter has roads. said paved up pond, is Millers Pond Road to the did, indeed, county establish additional Whites; by point used is but from the road registration pre-trial only a sites. But after unpaved, although portion is inhabited “friendly persuasion” conference by before by (3) Paving on Blacks. Road ends Hatchett tepidity this The defendants’ was Court. White; yet at on the remainder of the residence a live Blacks peri- by that a further demonstrated the fact unpaved (4) road. get required od of four months was paved are The streets of Alexander sites; registration cards to the new Whites; by inhabited section town but the only operative the new were sites short paved. in the black section are roads And point registration period while before the ended. (5) county paved road road 284 is Admittedly, County Commissioners lives, beyond, white where the last but recently approved transportation Blacks, by the road is inhabited where problems help that should solve access unpaved. It is of interest road to note some; being prodded but after dog paved trial field-is the road to the though contrast, even prosecution The Commis- of this lawsuit. By year. held but once trials are respect sluggishness sioners’ in this anoth- unpaved is still an to a a there road example unresponsiveness to the er of their unpaved Although school. the last road to community. black members paved white school was it seems as Order 14-15. School, Elementary if formerly minately Palmer the road school, predo- an all-black and still properly The focus the District Court black, unpaved. remains of discrimination. As on the effects Order at 13-14. review of the evidence in Our past “... Court said leads us to the these case conclusion that cannot, original in the manner discrimination patent examples treatment sin, government that is not in action condemn county typify commission treat- Burke’s ment received S.Ct., at 1503. itself unlawful.” Blacks in Burke every interaction have with the White bureaucracy. controlled 1378 basis, registrar in coun Blacks to as chief a On serve eligible.40 that

38% of those Party the Democratic ty. history infer that The thought it reasonable to primary”, “white registration Primary in the from the ranges marked increase “[t]he 1946, Chapman King, v. following the enactment struck Blacks down in denied, Act indicates Voting Rights clearly (5th Cir.), F.2d 460 cert. 327 U.S. (1946), has an adverse past discrimination had L.Ed. 1025 to registration which Black voter present effect on member Burke twenty-four lingers Committee, this date.” Order at 7. to Executive Democratic present Black. This of whom one is considered the fact The Court next participation lack of was found be the past voting impacts it and bloc as historical discrimination. direct result of present ability participate of Blacks to of official Equally significant evidence The system. in the evidence of electoral found in Ga. present discrimination was voting such bloc was clear and overwhelmi 34-605, perti which states in Code Ann. § ng.41 significance particular was the Of eligible part, person nent shall “[n]o city fact that in the one election which registrar person as unless such serve chief city single- were elected councilmen from property....” Given owns interest in real districts,42 Black member was elected. significantly fewer testimony freeholders, Blacks are than Whites Inadequate unequal op- and educational statute past operated that the portunities, present, both in the as Court concluded and acts, participation to restrict the elector the result of official important process. was another consideration to the al was court. The evidence clear that of the evidence set out On the basis percentage relative of Blacks who had at- herein, of official as well as that discrimina school, school, high high finished tended etc., paving, dis employment, tion as college substantially attended was less than earlier, District Court cussed concluded Burke County. White residents of On that the of historical discrimination effect evidence, expert basis of that as well as opportunity was restrict the Blacks “... testimony, the Court concluded that process participate in the electoral Blacks, group, one as a have been reason finding clearly present. is not errone That political process, ineffective in the is the ous, and, unresponsiveness fac as with the completed fact have less formal tor, completely agree. we education.” Order considered Dis- third factor preclu Further evidence of effective depressed trict Court was socio-economic participation proc sion in the electoral from ess, conduct, process. participation in the based on official found in was past point evidence on this was both clear and present operation coun ty’s disconcerting. poverty Blacks suffer at the primary system Democratic proportionate degree Georgia making greater law it more for level to far difficult natory, purposes succeed. It is was some conflict in will for There the evidence eligible percentage voting patterns inquiry Blacks who were reason that the into registered to vote. Defendants unresponsiveness, asserted it factor relevant. Like is a figure 44%, plaintiffs the correct was while greater plain- significance in its absence. A asserted that it was The District Court pressed prove 38%. tiff would be hard plaintiffs, resolved the issue for that either indicated but pur- being maintained invidious figure supported the conclusion voting. poses, bloc without reached. single-members 42. The was from dis election course, illegal. 41. Of bloc is not None- tricts, at-large, pursuant court to a rather than theless, have this Court DeLoach, Civ.No. 176- order. See Sullivan repeatedly recognized voting along racial 11, 1977). (S.D.Ga., Sept. seeking lines enhances the likelihood that those manipulate the electoral for discrimi- the effects thereof. As the County. operated, and of Burke the White residents than out, “[ejec correctly pointed District Court have one-half of the Black residents Over primary is ‘tanta tion in the less, three-fourths, or of a equaling [Democratic] incomes the office.” Order at mount’ to election to per- Seventy-three income. poverty level Moreover, local Execu the Democratic some, or Black households lacked cent of all empowered by state law tive Committee is facilities, all, opposed to six- plumbing as watchers, Ann. provide poll Ga.Code percent of the White households. teen officers, Ann., 34-1310(b), poll Ga.Code § to be em- County Blacks in Burke tend nomination, 34-501, Ga. and substituted § greater degree to a in menial ployed far The committee also Ann. 34A-903. Code § and, non- positions to the extent have to the various delegates elects to be sent occupations, they compensated are menial it clear We think political conventions. counterparts. at a level below their White successfully in ability operate that the blatantly Finally, the court considered the existing Democratic framework of the the education quality quantity inferior and keys to elector party structure is one past from to the received Blacks the one of victory. only the fact that al Given of this evidence the present. On the basis is twenty-four members the committee’s in Burke Coun- concluded that Blacks Black, that the painfully it clear becomes de- ty suffered from severe socio-economic purpose existing system could be caused, depression that such was pression, what must be fully conjunction used in with discrimination, part, by past in and at least political reality in Burke viewed as the negative depression such has a direct the official and unoffi County to continue impact opportunity on the for Blacks to partici excluding Blacks from policy cial proc- in effectively participate the electoral pation system. in that erroneous. finding clearly That is not ess. factors primary so-called The last of the the District Court was by the considered next factor considered the at-large sys- election policy behind the state was of access to District Court lack tem. The Court stated (1) the basis of political process.43 On origin, it neutral policy while participate op [the is] in the inability of Blacks to purposes. to invidious has been subverted party, and eration of the local Democratic added). it is a statute of (emphasis Since thereof, (2) County Commis effects enactment, mainte- its application, local appoint sioners’ failure to Blacks to local by the is determined nance alteration committees, governmental meaningful leg- representatives in the state desire of numbers, (3) reality per the social county affected. Burke’s islature of the relations, son-to-person necessary to effec always been Whites. representatives have county, was campaigning tive in a rural system retained a Accordingly, they have an interracial basis virtually impossible on ability Burke which has minimized deep-rooted because of the discrimination politi- County participate Blacks to Blacks, against Whites the District system. cal Court concluded that historical and finding of We hold that this Order at 22. operated conjunction discrimination Court, be on based as must the District officially sanctioned electoral the local unique opportunity to assess his unfairly limit the access of Blacks to environment, is not social political political process. finding clearly That is not clearly erroneous. particular significance to the erroneous. Of criteria, primary is the man District Court and to this Court In addition a number of fac- considered party is District Court ner in which the local Democratic sys- perpetuate by public pulated officials to considered evidence of 43. The District Court purpose by pri- the exclusion of by public tem whose actions officials and actions groups Blacks. could be mani- vate individuals or all the rele Court, Having concluded that as well the Su- tors enhancing factors were Court, primary indicated enhance vant have preme favor, system for plaintiff’s an electoral opportunity use established Dis first factor is that purposes. question remains whether invidious large. district questioned the size of the could have drawn properly trict Court pointed regard, In that the District elec inference therefrom County is two- nearly the fact “Burke has been in Burke toral Island, comprising thirds the size of Rhode restricting maintained for square approximately miles.” an area county’s residents access goes say on to that at 22. The Court Order earlier, the system. we indicated As law, that as a the size it “finds matter on the make its conclusion trial court is to the county impair tends to access the circumstances, totality basis the of the County in Blacks Burke party by measuring which merely being Id. 23. This a conclu- process.” presence or absence proved the law, by we not restricted sion are making his greatest of factors. number Nonetheless, clearly erroneous standard. not have the judgment, Judge Alaimo did independent analysis our of this factor leads in decision benefit of the Court’s agree us to with the District Court’s conclu- nor, Bolden, of our obviously, Mobile v. sion. Nonetheless, a of that case here. discussion order reading Judge Alaimo’s enhancing second careful The factor considered by majority inescapably District was the vote leads the conclusion the Court us that, points by inquiry requirement. type independent The Court out he made the statute, “county necessary. the terms of the commis- have said is into intent that we at-large, victor sioners are run the Moreover, doubt as his order leaves no vote, majority be by must elected Ga.Code the electoral his conclusion that 34-1513, Ann. and that candidates run for § County for system in Burke was maintained seats, specific Ann. Ga.Code 34-1015.” § opportu specific limiting the the that, 23. also Order at The Court noted nity county’s residents anti-single provi- though there is no shot At one participate therein. meaningfully sion, requirement the that candidates run Judge example, Alaimo makes point, for posts potential for has effects numbered that, it unequivocal “[m]oreover, statement The District equally that are adverse. of elect that the scheme evident presence Court concluded that the of these racially commissioners, although ing county factors likelihood enhanced the adopted, being maintained neutral when be used for electoral could discrimi- origi in purposes.” (emphasis for invidious natory purposes. This conclusion is sound nal) Order supported. well rele Judge of all the Alaimo’s evaluation by The final the Dis- factor considered thorough and even-hand vant evidence was or of a presence trict Court is the absence sys ed. His conclusion residency requirement. Burke has purposes for tem was maintained invidious residency despite requirement, no the fact reasonable, virtually in man was fact for that candidates must run numbered overwhelming proof. We af by dated posts. As the Court District “[a]ll judgment.44 firm the District Waynesboro, in or candidates could reside THE RELIEF GRANTED ex- “lilly-white” neighborhoods. To that that the tent, District Court ordered The of access becomes en- denial for Burke Coun county commissioners hanced.” Order five effects, simply question that the adverse left unresolved the various establish 44. One consequences of opinions plaintiff foreseeable were the must effects Boldenis whether plurality maintaining system. would The demonstrate was that the maintained Marshall, former, require merely spite Justice whereas “because of of” its adverse presented, may required. picture it The single-member districts be elected from ty paint is all too clear. The plaintiffs adopted in all future elections. encompass totality vestiges of racism plan plaintiff, original submitted County. life Burke popula- substantially smaller because had public enjoy symbiotic officials acts among than the tion deviations the districts private sec relationship with those of the defendants. plan submitted Such susceptible The situation is not to iso tor. proper. relief was is aware remedy.46 While lated outset, note, as did the District At the we conduct, we inability private of its to alter Court, “special there were no circum prevent equally duty aware of our are exception to justify stances” that would manipulating that con public officials from general at-large districts are rule that public elections duct within the context of Moreover, this is not a case not favored.45 purposes. constitutionally proscribed an entire like Mobile v. in which herein, For all the reasons set forth government abandoned with form of judgment of the District Court is AF of the valid local interests out consideration FIRMED. existing system. in the maintenance of the case, Bolden, the or In this unlike HENDERSON, dissenting: Judge, Circuit existing der does not affect the allocation responsibil of executive and administrative Although appreciate I can the monumen- among County ities the Burke commission in of the district court its articula- tal task require ers. Nor does the relief ordered findings of fact and conclusions of tion any operation other alteration in the of that law, opinion I am of the this case fact, governmental In the Court’s unit. in be remanded for reconsideration should change number of Bolden, order does not even 446 light City of Mobile v. U.S. county 1490, that are to be elected. 55, (1980). commissioners 100 64 L.Ed.2d 47 S.Ct. distinguishes This is another factor that constitutionality The vot- remedy in Bolden from that ordered here. system for commissioners ing county is remedy County, Georgia, We conclude that the ordered Burke has not been tested but, majority opin- only permitted, under the facts the Mobile criteria. dissent, problems in Burke suf- 46. The of Blacks indicated that the latter would Judge in a vacuum. fice. We conclude that Alaimo’s order should not viewed and, therefore, satisfy South is of Blacks in the would we either standard treatment positions specifically attempt directly do not to resolve that to their historical as traceable Moreover, dispute. many political we have a difficult time leaders slaves. While individual understanding attempted bring meaningful the substance of the conflict. It reforms to have fruition, plaintiff equally seems to us that if a establishes that a that the White com it is true discriminatory pur- munities, fought part, was maintained for for the most have poses, proven integra it was programs he had a fortiori implementation of aimed at discriminatory maintained its ef- every “because of” A device available. District tion with fects. ordering relief in a case such as this Court must cognizance a of that fact. As take clear, however, recently recog that a “We have made member of this Court learned nized, we, formulating apportionment plan judges, any court in as an exercise of its learned . . if as have “. should, Education, equity powers thing as it is Brown v. Board of from rule, legis- general permit prohibitory a multimember relief affords but hollow alone “[S]ingle-member continuing lative districts protection districts. abuse recalci from legisla- preferred situation, Facing are to be court-ordered governments. trant reapportionment plans tive unless the court option declaring judges of either have ‘singular remedies, can articulate a unique combination rights litigants or fash have without justifies Johnson, factors’ a different re- ioning F. to fit the case.” relief 333, Howell, 315, Mahan 410 93 sult. v. U.S. Activism, Emory 28 L.J. Defense of Judicial 979, 989, S.Ct. 35 L.Ed. 320.” Connor v. 901, (1979). 910 1834, Finch, 407, 415, 1828, 431 U.S. 97 S.Ct. 52 L.Ed.2d 465.” S.Ct., 100 at 1499. government per- constitutionally deci- form of court’s recognizes ion district policy missible. I find two considerations guidance sion without was made persuasive. raised in to be his concurrence Mobile, the inquiry states that into but it judiciary Each to exer- notion counsels actually discriminatory intent undertaken voting cise dilution cases. restraint court satisfies that standard. the trial First, always will disad- at-large systems than the ne- Mobile does more reaffirm strug- vantage minority groups one or more cessity showing in- for a Yet, power. the essence gling political tent, also however. Mobile abolishes majority voting rule and democracy simple “aggregate approach judged by of factors” structure must be standard process to political function McKeithen, “allows the (5th Zimmer v. F.2d 1297 Bolden, effectively.” of Mobile City 1973) Cir. sub nom. East Par- aff’d. Carroll 1509, Second, at 70. 64 L.Ed.2d S.Ct. Marshall, ish Board v. 424 U.S. School reprehensible hold standard chosen cannot (1976), hereto- 47 L.Ed.2d on an all detrimental effects identifiable place, circuit. fore followed in this In its such a would group because test “totality Mobile circum- institutes a invite host of dilution cases sure in which the stances” test Zimmer factors plunge judiciary politi- into a “voracious possess varying still relevance but de- City cal of Mobile v. thicket.” Thus, grees. past official discrimination Reading S.Ct. at 64 L.Ed.2d “original not to as an be treated sin” together Mr. concurrence Justice Stevens’ unresponsiveness by elected officials is “rel- opinion with the leads me to con- plurality evant tenuous only as the most and circum- clude that a court intrude into before stantial evidence of the inval- constitutional it must political processes, possess local idity stronger of the electoral under of invidious motivation evidence past discrimination and econom- than social City attained their offices.” of Mobile deprivation. ic Bolden, at 64 L.Ed.2d more exposition An of evidence detailed judge than that made the district sole Zimmer was measure City Mobile is seldom seen. Bolden v. case findings of fact the district Mobile, (S.D.Ala.1976). F.Supp. court were tailored. That order Most of here is of the evidence a similar gauged by hybrid standard referred to as eyes character. Yet in the Zimmer-Kirksey Kirksey test. v. Board Court, findings set were forth Mobile (5th Supervisors, 1977) 554 F.2d 139 Cir. prove insufficient to unconstitutional depressed instructs that socio-economic sta dilution data was not viewed in because the tus participation which hinders in communi proper perspective. The conclusions ty signals affairs a denial of access gathered drawn the evidence below from Kirksey v. process. Board of I infirmity. Su suffer from the same As Mobile, emphasis read evi- pervisors, it demands on findings 554 F.2d at 143. In the equal par- dence of state denial of official judge, depressed fact of the district so ticipation slating process and election cio-economic status was accorded considera reliance on heavy eschews socio-eco- equal tion given to that the Zimmer factors. nomic data. A remand reassessment Yet, plurality the Mobile considers historical evidence, together record addition- factors, from apart social the discrimi evidence, necessary, seems be the al if generated action, nation by official state appropriate of action. these course For sociological “gauzy considerations reasons, I dissent. respectfully City no constitutional have basis.” [which] of Mobile v. 100 S.Ct. 1504 n.

64 L.Ed.2d at 64 n. 22.

Mr. joined plu- Justice Stevens the Mobile

rality decision to retain Mobile’s commission

Case Details

Case Name: Herman Lodge v. J. F. Buxton, Ray Delaigle

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 20, 1981

Citation: 639 F.2d 1358

Docket Number: 78-3241

Court Abbreviation: 5th Cir.