Jeffers v. Clinton

Porter, JEFFERS, Evangeline Al M.C.

Brown, Collins, Clyde Duffy, Earl O.C.

Fоster, Gaylord, the Rev. Ellihue Shir Harvell, Shelby,

ley M. Linda J.C. Jef

fries, McDonald, Joseph Per Lavester Patterson, Richardson,

ry, Clinton T.E. Smith, Simpson, Brian

Earnest Statewright, on Behalf

Charlie Similarly

Themselves All Others

Situated, Plaintiffs, CLINTON, Capacity in His

Bill Official Arkansas and Chair

as Governor of Appor

man of Arkansas Board of McCuen,

tionment; W.J. His Official Secretary

Capacity Ar of State of

kansas and Member of the Arkansas Apportionment;

Board of and Steve

Clark, Capacity in His as Attor Official

ney Arkansas and Member General of Apportion the Arkansas Board

ment, Defendants.

No. H-C-89-004. Court, District

United States Arkansas,

E.D. E.D. Nov.

Submitted 1989. May

Decided

Judgment May ARNOLD, Judge,

Before Circuit EISELE, Judge, District Chief HOWARD, Judge. District ARNOLD, Judge. Circuit 4, 1989, On December we filed our first opinion voting-rights in this ease. We held plan apportionment then in ef- Assembly— fect for the Arkansas General plan adopted by the State Board of Apportionment in 1981—diluted the votes of black citizens violation of Section of Voting Rights Act of as amended seq. 42 U.S.C. 1973 et We §§ new, directed the defendants to submit a plan lawful in time for use in the 1990 questions elections. The whether the de- Constitution, fendants had also violated the whether, so, remedy preclear- 3(c) Voting ance under Section Act, 1973a(c), Rights 42 U.S.C. should be applied, were left to be decided another opinion. opinion. This is that We hold that the State of Arkansas has committed a of constitutional viola- number voting rights tions of the of black citizens. time, Some violations are distant large part longer their effects are in already with us. Others have been remed- by judicial ied action. Still are not others type preclearance. curable But a preclearance limited remedy is still re- quired by sys- this record. The State has tematically deliberately enacted new majority-vote requirements municipal offices, in polit- an effort to frustrate black ical traditionally requir- success elections ing only plurality to win. We therefore laws, standards, any direct that future practices designed to enforce or enhance a majority-vote requirement not take effect preclearance process until the has run Rock, Ark., Hollingsworth, P.A. Little course. We further direct that Simes, II, Helena, Ark., plan L.T. West Kath- apportionment Helena, Ark., Legislature for the State Bell, Oily Neal, Jr., leen Ma- adopted by rianna, Glover, Dermott, Apportionment Board of Ark., Ark., E. Don after the 1990 census not Hair, D.C., take effect Washington, D. until Penda Donna L. have had a chance Dennis, Chambers, inspect Dayna Julius L. L. Cun- challenge it and to ill, it in this Court. ningham, Sherrilyn City, If New York Thomas, Y. Legal Sheila NAACP Defense

Inc., D.C., Washington, plaintiffs. I. Wills, III, Atty.

Frank begin by setting 3(c) J. General’s Of- We out Section fice, Rock, Ark., Act, Little for defendants. the Voting Rights the statute that Rights part Voting sions of the Act automatical- governs this case. principally (the preclearance ly apply remedy follows: It reads as re- quirement approval of advance federal (c) any proceeding instituted If changes practices) in election laws and Attorney aggrieved General or an under statute to enforce certain states and' subdivisions. person court, the guarantees 3(c) empowers proper fourteenth or voting Section po- or case, amendment State remedy fifteenth impose to on States or finds the court litical subdivision originally political subdivisions not covered. of the fourteenth or fifteenth violations literacy test Arkansas did have for equitable justifying relief amendment 1965, Rights voting Voting the Act when territory the have occurred within law, originally became and so it was not subdivision, the or such State among jurisdictions pre- to subject those court, may as it in addition to such relief by the Plaintiffs ask clearance statute. us for such grant, jurisdiction retain shall subject preclearance to the to periоd may appropriate as it deem claim, case. In order to decide this we period voting qualifica- during such (1) must determine whether violations of stan- voting to or prerequisite tion or the or Fifteenth Amendments Fourteenth dard, respect procedure with practice, or justifying equitable- relief have occurred in force from that or voting different any of its political within the State or sub- proceeding the was effect at the time (2) whether, so, divisions; if the reme- enforced unless and commenced shall be dy imposed. To preclearance should qualifica- that such until the court finds we now turn. those issues tion, standard, practice, or prerequisite, purpose have the procedure does not II. denying effect of or

will not have the right the to vote on account of abridging A. color, contravention of the

race or in or voting guarantees set forth section discussing proof, Before the Provided, 1973b(f)(2) That of this title: applies legal must what standard decide standard, qualification, prerequisite, such question constitutional viola whether procedure be enforced practice, or parties agree All tions have occurred. standard, qualification, prerequisite, an essen racial discrimination is intentional procedure or has been sub- practice, plaintiffs’ under the tial claim element legal officer or other by chief mitted Equal of the Fourteenth Protection Clause of such State or sub- appropriate official however, They disagree, Amendment. Attorney General and the division to Amendment. respect to the Fifteenth interposed Attorney General has a discrimi position Plaintiffs take days sixty after such objection within natory on voters is sufficient impact submission, that neither except claim. a Fifteenth Amendment to establish finding Attorney Gener- nor court’s essentially legal standard the same This is object shall bar subse- al’s failure matter of enacted as a “results test” quent enjoin enforcement action to amendments statute standard, prerequisite, qualification, Defendants, on the Voting Rights Act. procedure. practice, or hand, racial argue that" intentional other one in which this Obviously this' case is shown. discrimination must be potentially applies. It is a least statute at We defendants the better think aggrieved persons proceeding instituted look first point. on this We argument Act), (the Voting Rights under a statute 1 of Fifteenth of Section text and the the statute purpose of both and the It reads: Amendment. guaran- voting proceeding is to enforce of the United States right of citizens Equal Clause Protection tees abridged by denied or shall not be vote and of Section Fourteenth Amendment by any State on provi- States United Amendment. Other the Fifteenth race, color, (1959), previous condi- U.S. 79 S.Ct. 3 L.Ed.2d 1072 account opinion servitude. a unanimous written Justice tion of Douglas, upheld the Court North Carolina’s comparison, we also set purposes of For so, literacy voting. doing test for it Equal Protection out here the text language indicating used that deliberate Amendment: Fourteenth Clause of the racial discrimination was an essential ele- deny any person ... No State shall proof attacking ment of for those the liter- equal protec- jurisdiction within legit- acy-test statute: the law evidenced a the laws. tion оf electorate, imate concern an informed language of the Fifteenth Amend- If the lay “not a calculated scheme to issue, way points on this either ment cuts Id. springes the citizen.” proof racial requiring animus. towards language at the S.Ct. at 991. This comes Amendment, which con- The Fourteenth opinion, end of the Court’s a sort of proof, speaks only in cededly requires peroration, clearly intended to seems might result. It have terms of action and the essential for its hold- summarize reason been) easily not rather (though it has been ing. discriminatory impact And if alone discriminatory impact, construed to forbid to a constitutional had been sufficient show regard to the intention of the de- without violation, literacy it is hard to see how But the Fifteenth Amendment fendants. test could have survived. speaks merely in terms of action and (denial abridgement right of the result Bolden, City Mobile v. 55, In 446 U.S. vote), pro- specifies as well that the but 1490, (1980), 64 47 100 S.Ct. L.Ed.2d how- abridgement must be “on hibited denial or ever, question squarely presented, was phrase “on of” race. The account account and neither side mustered a clear of,” think, naturally referring read as is Justices, plurality of the A of four Court. taken, to the reason for the action speaking through Justice Stewart’s lead pretend, it. We do not intention behind firmly opinion, advocated the intent stan- however, argument that this textual is con- 61-65, Id. at 100 dard. S.Ct. at 1496-1499. could refer clusive: “on account of” also Brennan, dissent, Justices Marshall and sense, strictly In if a to causation. 129-35, Id. argued rejection. at for its 100 minority disproportionately is affect- racial at 1533-36. S.Ct. Justice Stevens took tax, might by, say, poll say ed one that 90, Id. at position. intermediate 100 S.Ct. poll abridges right on tax vote Blackmun, at 1511. Justices White and is, of, of, account that as a result race. writing separately, seemed to assume So, happens, the usually words of the requirement, say intent was a but did not conclusively Constitution do not themselves 94-103, 80, Id. unequivocally. at so 100 question. parties Nor do the answer the 1513-1518, S.Ct. context, any cite of the inten- evidence guidance, In the face of this uncertain Framers, point. tion of the on this We what is a lower court to do? We read the look, therefore, tradition, to constitutional signs pointing firmly rather towards a precedent, and here we find a rather requirement proved. intent be Mere gen- to have been clear answer. seems numbers, majority, of a short are not con- years ten erally accepted, up until about clusive, it is of some relevance motivation ago, anyway, invidious thought more Members of the Court intent Fifteenth Amend- an essential element of a Mobile, required in City than took v. case, Guinn Unit- early ment An claim. opposite position. importantly, More States, 363-65, ed 238 35 S.Ct. U.S. reasoning plurality opin- we find of the 926, 930-31, (1915) (invalidat- 59 L.Ed. 1340 pre-Mobile authority, persuasive. ion And clause”), ing “grandfather clearly says it, strongly read as we accord. This major Supreme so. One of the last Court reading of the Constitution has the virtue opinions voting rights on before the enact- is, distinguishing between constitutional Voting Rights ment Act our claims, intent, require showing Lassiter opinion, to the same effect. Elections, Northampton claims, which, Board statutory after the amendments, repeatedly, before the not. Under Section Board it took no do Amendment, Congress affirmative aсtion ensure that dis- the Fifteenth majority-black voting-age pop- which it has exercised tricts with power, Act, created, Rights prohibit practices Voting apart ulation were from one Sen- proscribed district, have which would not ate one three-member House dis- proprio 1 of Amendment ex County, Section in Pulaski and one trict House vigore. Yet, County. in Jefferson district significant must that a Board have known proof of con We hold that the same majority-black dis- number additional scious racial discrimination required Although tricts could have been created. Equal Protection show a violation voting-age numbers were not before the of the Fourteenth Amendment is Clause such, they easily Board as could have been Amendment required also in Fifteenth Further, developed. Board must Accord, Sides, F.2d Nevett v. cases. majority-black known that district could (5th Cir.1978). does not 220-21 This Crittenden, County, have been created must be the mean that racial discrimination chose, instead, but it to create a two-mem- challenged. action sole motive behind the population ber district which the motivating one It need be black. And district the action would not factors but for which part including County, almost all of Chicot addition, will taken. there have been Ashley County, townships in two rarely proof direct of the forbidden mo be County, easily have Desha could been made to circum tive. Courts must be sensitive Township in Ash- black. Wilmot a evidence from which reasonable stantial ley County could have been substituted for discriminatory intent be inference of County townships, Desha and this two disparate given That action a drawn. would have done trick. knew that it impact, and that State officials ease, would, on proper depending can definite- These and similar concerns were record, impor proof in the be an the other ly brought to the attention of the Board. part tant of such circumstantial evidence— public hearings, At both black the Board’s especially if nondis there is no reasonable strongly citizens advocated sin- white justification criminatory for what has public hear- gle-member districts. At Finally, should not allow a natu done. Bluff, Coleman, Mr. ing Elijah Pine illicit motives to ral reluctance to attribute citizen, single- urged that leading black our high officials to deter us from created, majority-black districts be member proof is artificial duty. The burden of al- over and the one such district above ordinary only the burden ly high. It is civil ready A led Ms. in existence. coalition of the evidence. preponderance of a Ledbetter, called the Arkansas Brownie Representation, for Fair took a Committee B. coalition, in- position. This similar groups like citizens’ first of intentional cluded various Plaintiffs’ claim NAACP, Organization of the National plan ly discriminatory action is Women, the Arkansas Education Associa- sup apportionment itself. evidence tion, AFL-CIO, League, and the Urban position is porting plaintiffs’ substantial. adop- in the final postponement adopted a asked for Apportionment The Board of had plan, in tion order to allow to that included an admoni guidelines set of problem minority gather information address against votes. tion dilution request minority representation. This thoroughly familiar with The Board was group, The same with the situation was denied. demographic ob political White, Statе, support appeared at of Governor parts taining the various n andit had available Appor- meeting the final of the Board of figures to it census on request This township speak. tionment and asked of each the racial breakdown went' ahead Although questions was also denied. Board unit. smaller census brought adopted plan, over dissent minority representation were White, many parties. Governor who voiced of the nism between Frank White concerns, among same others. was Republican the second to take part in the deliberations Board of -is, however, strong There on evidence Apportionment adoption since the question the other side of the as well. The perhaps Constitution of 1874. It is unfor- uppermost in mind factor the Board’s was tunate, true, but it is nevertheless that one districts created had to be substan- political party automatically op- will often equal population. tially Data on the pose proposes, what another one and we available, makeup racial of each area were think this factor accounted for much of they voting-age were not form happened what here. The two Democrats statistics, apparent anyone nor is it thought on Board that Governor White provided the Board information in this primarily motivated im- a desire to population equality, form. In addition to prove Republican electing chances of mem- the Board was also concerned with natural boundaries, boundaries, Legislature, bers of the and this and stabili- is some- thing ty representation. ap- It took the 1971 wanted to avoid. portionment map starting point, as a con- aspect The stickiest of the case from the legisla- sidered the residence of incumbent point defendants’ of view is decision to tors, especially politically those who were create a multi-member district Critten- powerful seniority, and had and tried to County. decided, den The Board had up plan come with a that would disturb the general, that multi-member districts were existing political power allocation of as lit- single-mem- not desirable. Creation of two possible, complying tle as all with the while ber County districts Crittenden over-arching requirement person, of one required City of West Mem- specifically one vote. The Board did not phis split, cities, including but other minority population calculate the of each of Rock, Bluff, Dorado, Little Pine and El them, proposed adopting districts before (On hand, split. the other multi-mem- done, as it could well have the law in but ber districts splitting were used to avoid time, represented effect at the most recent- Fayetteville, Springs, Jonesboro.) Hot and decision, not, ly by the City Mobile did County, offer Plaintiffs Union in which El view, require in the Board’s it to make such located, particular Dorado is as a contrast calculations. When Board refused an County. to Why, they say, Crittenden adopted plan extension of time and its final single-member were two districts created in 1981, at the end of it felt June itself under County, Union in but not Crittenden Coun- pressure: some time the time deadline set ty? explanation General Clark’s for this Constitution, VIII, by the State Article 4§ seeming disparity is that there was a (February 1981), long passed. had since strong community of throughout interest pressure building daily, Political was County, County Crittenden and that Union thought bring the Board it desirable to largest county is the in the geo- State in matter to a swift conclusion. It refused true, graphic addition, area. It is give floor time to the Arkansas Committee County traditionally Crittenden had been Representation, though for Fair even given representation. multi-member Under against allowing rule individual citizens to plan, County the 1971 up Crittenden made uniformly address Board was not fol- a three-member district. lowed, but members of the Board had al- ready approached individually by pondered We have question of fact Committee, members of the and it can fair- record, in the context of the entire includ- ly be assumed that the Board was familiar ing testimony Attorney the live General position. with the Committee’s White, Clark deposition and Governor rejection Secretary Riviere, of Governor White’s views State Paul and the proof Report two Democratic members of the as to the Senate or Zimmer Board, Attorney opinion General Steve Clark and factors detailed our first in this Riviere, Secretary of Paul persuaded was due case. are not plaintiffs' We large part to the natural antago- proof any stronger is than defendants’ on greater attempted com- For point. explain, Whether there is a reasons we County munity of interest Crittenden as dowe not believe that it has been. We County as a whole is than in Union plan a whole therefore hold that the 1981 appor- debatable, certainly Attorney but General tionment did not violate either the Four- Arkansas, Clark, from Eastern who comes teenth or the Fifteenth Amendments. thought so. Eastern Ar- could well have probably homogeneous is more eco- kansas C. nomically culturally than South Arkan- view, In defendants’ this should be the Attorney White and sas. Both Governor complaint end the case. The was any explicitly denied inten- Clark General brought challenge, Voting under the on the of race. tion to discriminate basis Constitution, Rights Act and the cannot, course, given be These denials plan of If apportionment. plan was controlling weight. they But can neither unconstitutionally adopted, not there are no persuaded not ignored. We are be eq- justifying violations of Constitution in- was an affirmative Board motivated relief, preclearance uitable would not voting rights. Its tention to harm black 3(c) appropriate under Section instead, attitude, can best be described as alleged Act. Other constitutional viola- took no action to enhance indifference. respect tions prac- election laws and rights, neither did it minority voting but because, point, tices ar- are beside way them. positive to dilute move gument runs, they pleaded were not result, opinion, explained our first complaint. reject We this view of law. them, in fact to dilute result pretrial At least since the time of the con- plain- We find that

the same intention. ference, court, open which was held their on this tiffs have carried burden freely at which all sides discussed all of the issue. issues, legal and factual it has been clear addition, argue, in that deliber- Plaintiffs attempt prove voting rights, in ate indifference to black statutory pattern and constitutional vio- knowing form of failure to correct rights. voting lations of their All of the dilution, legal equivalent intention- trial, issues were on table before defen- support posi- discrimination. al adequate opportunity full and dants had a Lodge, cite 458 U.S. Rogers tion them, and, if proof offer on in fact the (1982), 102 S.Ct. L.Ed.2d 1012 enough complaint is not broad to encom- voting Equal case under the Protection a them, pleadings should pass now be of the Fourteenth Amendment. We Clause deemed amended to conform with the Rogers not so read the case. is written do 15(c). proof. See Fed.R.Civ.P. point appellate of view an court possible argue, entirely It is aside also reviewing finding a of fact that intentional proof, pleading and that from the state of Supreme The has occurred. discrimination 3(c) at all a apply does not unless Section Court, opinion holding in the of an course is with violation of the Constitution shown erroneous, clearly not finding this was that very practice law respect to the election to evidence defendants know- referred complaint. principal focus of plan maintained an electoral ingly brought This to enforce the vot- case was acknowledged to redress vote dilu- failed ing guarantees of the statute and the Con- Rogers creating do read a We tion. respect plan appor- stitution to the Rather, with simply legal standard. it de- new argument in adopted tionment sup- of evidence that can one kind scribes proof respect is that with to other election finding ultimate of intentional dis- port certainly un- practices laws and relevant Here, course, we function crimination. court, Report der the Senate Zimmer fact. trial as the triers of It is as a evidence, only to principles, but it comes in all the includ- bolster task to consider our rebut either side’s on the main issue: a deliberate failure to cor- case ing evidence of dilution, proof in- cannot itself be decide whether basis rect vote proved. agree preclearance. We discrimination has been do tentional 592 phrase statute. The other local

reading of the “viola- subdivisions are mere creatures Only or fifteenth sovereign, the fourteenth amend- of the State. the State is tions of relief,” justifying equitable ment which the and it can create or local subdivi- abolish triggering purposes condition for sions at will. For statute uses as of the Four- If, Amendments, in preclearance, is not limited at all. teenth and Fifteenth at least context, plan voting opinion attack on the 1981 course of their it is our apportionment, plaintiffs legal have succeeded in no distinction exists between State violations, officials.) showing other constitutional and and local violations, equitable princi- if those under findings Previous cases have resulted in opinion, later in ples to be discussed of other constitutional violations. We sufficiently widespread serious and cases, briefly refer cited to these which are remedy preclearance, justify the drastic previous opinion. and discussed our the statute should be read we do not think Helena, City Perkins v. West 675 F.2d way as to rule out such such a crabbed (8th Cir.), 801, mem., 459 U.S. 103 aff'd Certainly matter of law. relief as a (1982), S.Ct. L.Ed.2d held invalid require do not such a words of the statute racially at-large system motivated the reading, and would inconsistent with Helena, city aldermen West purpose. its broad remedial Phillips County. Sherpell And v. Hum F.Supp. noke Dist. Nо. School III. (E.D.Ark.1985), dismissed, 680-81 appeal propose We therefore now to discuss (8th Cir.1987), 814 F.2d 538 reached a sim each of the constitutional violations other respect at-large ilar conclusion with plaintiffs. asserted In each in- election of school-board members in the stance, duty finding it will be our to make a Humnoke School District of Lonoke Coun challenged practice whether the law or ty. by racially discriminatory pur- motivated Plaintiffs also claim a number of consti- because, above, pose, explained as we have tutional violations that did not discuss that is an essential element of a constitu- opinion. They may in our first be conve- tional violation in this context. A number (1) niently groups: divided into two state the claims need be discussed brief- requiring ‍‌‌‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​​​​‌‌​‌‌‍majority laws vote for nomina- ly, already fully because office; (2) public tion or election to opinions, addressed in court either in our variety practices of local incidents and case, previous opinion opinions in this or in the area of the State known as the Delta have, example, in other cases. We al- which, plaintiffs say, were intended to and ready statutory regulations found that the suppressing have had effect of affecting the ballot absentee enacted political activity. racially not the result of a dis- Therefore, Majority-Vote Requirements. criminatory purpose. no consti- principal majority-vote requirement tutional violation occurred in connection now party of effect in Arkansas has with the enactment this law. On the to do with hand, nominations, previous opinion proper. other our also found rather than elections violations, including racially certain local a Under 5 of Section Amendment 29 of the Arkansas, prosecution County in Lee motivated Constitution of candidates against Roy get general Lewellen and racial intimi- on the ballot at a in election County against ways: by dation in Desha in 1976 one of three by nomination a Willis, convention; county judge. a party Carol candidate for party nomination (Defendants, election; incidentally, argue primary the by petition. party or If (and do) they commonly acts of local officials cannot be attributed chooses to select State, something by, election, to the and in primary done its nominees the nom- say, county judge majority an incumbent is not rele- inee must receive a of all the impose So, vant to the decision whether to at the primary votes cast election. preelearance remedy candidates, in this case. We re- there are more than two and no Cities, argument. counties, ject this and one majority receives absolute all the of

593 McDonald, This first, preferential, supra, See 430-32. pri- in the or votes cast election, primary known as was not case in Amendment mary, another Arkansas. general primary, must adopted by people or the be was a vote in run-off 29 in top 1938, Bailey run held. The two candidates after the nomination of Carl winner becomes primary, second of for Governor less than 32% carrying The into (At statute nominee. Primary. the votes in the Democratic provision now time, this constitutional effect Democratic for nomination Ark. Ann. 7-7-202 codified as Code practical equivalent Governor was (1987). offices.) election, and it still is for some effectively already Blacks disen- had majority-vote re- years, In recent such whites-only franchised Democratic an issue quirements have become Party thought legal primary, then rights. minority voting Two context of majority-vote The re- under federal law. First, are made. it is kinds of attacks wholly unnecessary quirement for was requirements have the that such claimed Amend- purpose. We find that Section 5 of reducing minority political oppor- effect of implementing statutes ment 2 of the Vot- tunity, violation Section pur- racially were not enacted for invidious ing No claim is before us Rights Act. poses.3 Second, it is claimed that this case.1 requirements majority-vote were either ma- argue general Plaintiff also unconstitu- maintained for the adopted or jority-vote requirement party primaries for discourag- purpose suppressing tional discriminatory pur- was for a maintained ing activity. A substantial political black primaries un- pose. After white became position body opinion takes the lawful, they say, the State turned to other requirement vote has its “[t]he activity, political to suppress devices black century southern white roots nineteenth pri- including tax and the run-off poll racism____” McDonald, Majority The majority- mary. not so find. The We do Requirement: Its and Abuse in Vote Use requirement state Constitu- vote 429, South, Lawyer Urban then and Legislature could not tion. (1985).2 change argument it. cannot now So the that, 1944, people. reason to must be after There is substantial Arkansas, their to thwart requirement desire majority-vote believe that political opportunity, have vot- originally pre enacted to black in Arkansas was repeal In 5 Amendment political many ed Section vent black success. pre-1938 system of states, require go back majority-vote Southern disagree. by plurality. nomination We at the turn of the ments were instituted mis- argument This evinces fundamental century part package of a of measures history nature of understanding of the black voters. designed to disenfranchise Arkansas, impact likely very mi- Party little on beneficial v. Democratic Whitfield juris- (8th Cir.1989), seeking panel white norities office a divided 890 F.2d 1423 dictions, against actually work Appeals while it could for this Circuit held that the Court of many majority-vote party primaries of blacks in system Arkansas, policy question jurisdictions.’’ This is a County, A Phillips violates Section 2. Ibid. to our rehearing granted, effect which is irrelevant petition thus en banc opinion. present inquiry panel into motivation. vacating The case was ar- gued April on the Court en banc before Appeals May en the Court of banc finding, On reasoning supporting For detailed Court, judgment Arkansas, of the 686 affirmed District Party see v. Democratic Whitfield (E.D.Ark.1988), by equally di- F.Supp. 1365, (E.D.Ark. 1988), 1365 F.Supp. 686 1367-71 aff'd Thus, (8th case itself has 1423, vided vote. part, F.2d 1425-27 in relevant 890 Whitfield (so far) holding majority- in a Cir.1989). resulted opinion in This Court’s Whitfield Voting requirement violate the does not statutory vote carefully pre-1938 also describes Rights Act. history primary The of the run-off in Arkansas. majority requiring a vote was first statute nothing passed had to do also in 1933 and excellent article con- McDonald's Mr. requirement racial matters. that "abolition of the cludes 1973,requiring session, enacting Act 168 of primary The run-off politics. Arkansas such offices.5 majority vote for poli- a party fixture of permanеnt a become deep-seated a It reflects in this State. tics office 1975, vacancy occurred In a majority principle of attachment Bluff, Hand- Mayor of Pine and Robert rule, pillars of democra- the cardinal one of candidacy. Rev. Mr. The ley announced his main- instituted nor cy. It neither was man, a appeared to be Handley, a black rule, a coun- reasons. As tained for racial Legislature acted strong The contender. by district, offices are filled and State ty, special elec- promptly. advance elections, of them and for most partisan Bluff, Act passed Mayor of Pine tion for is still a virtual nomination the Democratic 1975, majority vote.6 requiring a 269 of in November. The election assurance of in a run-off. Handley was defeated Mr. ensures that the primary system run-off 1982, Leo be- In November of Chitman by a mere not be determined election will elected person to be came the first black party pri- in a vote plurality of those who first Memphis. He ran Mayor of West unnecessary for rule is mary. A similar get did not a among five candidates but elections, there are almost because general unseated a white majority of the votes. He candidates substantial never more than two by had won candidates incumbent. White for offices contested general in the legislative past, and no plurality a reject plaintiffs’ by We party nominees. . But Mr. Chitman reaction occurred. when system the run-off attack on constitutional way, the Mayor in the same was elected party nominees. passed responded. It Legislature promptly codified as Ark.Code Act 909 of now otherwise, however, as The result 7-5-106, majority vote require a Ann. § books, now on the to other run-off statutes county municipal for election to both 14-42-206, 7-5-106, Ann. Ark. Code §§ offices. general (1987), apply to elections which Marion finally, in 1988 the Rev. And county offices.4 Traditional municipal and lawyer, was elected Humphrey, a black offices, including mayor, ly, municipal by plurali- MunicipalJudge of Little Rock member, municipal judge, were council Rock, supra, n. 4 had ty. p. see Little election, conducted at by nonpartisan filled require- subject majority-vote per general election November. Humphrey’s elec- Judge ment. But after number of votes receiving highest son tion, Legislature quickly. reacted required. This won. A 1989, subjecting munici- passed Act change in 1973. In No began to situation and towns to a pal offices all cities (Les) Hollingsworth, a P.A. vember 1972 Ark.Code majority-vote requirement. See lawyer later served as an Associ who Ann. 14-42-206. of Arkan Supreme Court ate Justice City by sas, ignore pattern to the Little Rock formed was elected We cannot by plurality. enactments. of Directors Devotion Board lay long next rule for local offices dormant Assembly responded General p. apply requirement. 594, is further discussed at to cities hav- Act 905 does not 4. Section 7-5-106 government. ing city-manager Lit- form infra. city. Under Act 905 of Rock is such a tle however, Supreme 5. This Act was later invalidated Sec- same result will occur. much the Court of Arkansas on state constitutional Code, the cod- of the Arkansas tion 14-42-206 Rock, City grounds. Ark. v. Little Mears 905, requires Act all 1-5 and 8 of §§ ification of (1974). 508 S.W.2d 750 "municipal primary and towns to hold cities receives a at this If no one apply only election." election, 6. This Act was later amended the sixth Tues- is to be held on populations first-class cities with within a nar- election, general day the names of before row limit set the amendment. Act 175 of receiving highest number candidates amended Act was later invalidated the two 1977. The general Supreme go at the Court of Arkansas on state will on the ballot of votes Brick, Thus, Ferguson city grounds. in Arkansas are constitutional election. all offices (1983). subject majority-vote of a Ark. 652 S.W.2d now to some form Phillips Within two produced County. white office- weeks of plurality system election, candidates primary polling place But whenever black a holders. the 1986 victory successfully system this very used large a black was for ward moved. —and virtually- only has been their by plurality a personal given No notice of the move was at-large in at in elections success chance place polling had to voters. The response was majority-white cities—the Church, the Catholic but no notice was passed in an Laws were and certain. swift placed on the to door church indicate attempt to close off this avenue of black polling place, the new the Arkansas Street repre- of victory. This series laws political hand, the Fire Station. On the other move systematic attempt a and deliberate sents only a of and one-half was distance one political opportunity. reduce black Such to blocks, publish- and notice of the move was attempt plainly is unconstitutional. an newspaper. in the move confused ed This a blacks could replaces system voters, likely this some effect was succeed, with one which and did voters, pronounced among' more black of certainly The inference almost cannot. is group illiteracy higher, which the rate inescapable.7 is racial motivation persuaded polling are but we Finally, 2. Local Violations. places pur- were moved for the deliberate citing large amount of plaintiffs argue, pose reducing of the black vote. There evidence, that local anecdotal and other procedures any evidence that different no actions for officials have taken numerous respect have ever been followed with to purpose thwarting black of moving polling places, of and we believe already to referred opportunity. We insensitivity represents the incident to Judge County in Desha the 1976 race voters, problems of rather than a con- poor County the 1985-86 Lewellen case and to impede participation effort to black scious County. A number of other situations Lee political process. need to examined. and incidents testimony of There was also confusion discussing way of The most convenient respect to general of 1986 with election respect to claimed the evidence with phrase to aids.” This refers written “voter testimony is to local violations consider ballots, material, sample that are such as regard county each in the affected with to im- customarily out to some voters handed analysis method area of the State. This they go polls. mediately before opinion, questions prolong will but legal, is not of such “aids” use pub- important, parties and the and the are place, in a lеgal polling so electioneer findings to detailed of fact. lic are entitled showing the “aids” voters observed Pulaski, outset, side put we to one At place, arguable polling voters in a other Jefferson, and Ouachita Counties. No sub- place. laws takes violation manipulation stantial evidence instance, of the Election one the Chairman officials with system local electoral election offi- had instructed an Commission thwarting political activity black purpose aids, claiming away take the voter cial to any presented respect with was being Af- they were flashed around. respect with three counties. evidence protest, this instruction with- discussion, ter nine counties deserves other Again, persuasive find evi- however, drawn. evi- we now describe that discriminatory intent. We note dence dence. justifying pre- only as violations in this constitutional not mean that our decree 7. This does 3(c). existing Whether and to Section enjoin clearance under will the enforcement case may continue to be county municipal extent these statutes of- what statutes for run-off validly applied case-by-case be left to a thing, must the evidence illicit moti- fices. For one much, least this municipal in the future. At applies elections in determination vation minority though, If a candidate leads can be said: portions substantial another, is defeated in the first election then populations. at the And required Ark.Code Ann. argument run-off either at the of the trial oral close 14-42-206, They the election will be § 7-5-106 or for such relief. case disclaimed desire challenge. strong bring up municipal vulnerable to a constitutional run-off statutes the series prose- changing for the The tion is better. now eleven black members are that there attorney involved cuting who was for Central Committee on the Democratic against Mr. is no harassment Lewellen significant, this is be- Phillips County, and His successor is one longer office. Party runs its own the Democratic cause public officials the State the few white two out of the also controls primaries, and a black candi- publicly who have endorsed County Election Commis- three on the seats office, appointed a and he has date sion, general elections. which runs the Neal, prose- lawyer, Oily deputy black deputy voter 25 volunteer There are 20 to County. Another cuting attorney for Lee County, they per- are Phillips registrars in Bell, lawyer, Kathleen has become black County in the go anywhere mitted to exercising ju- Chancery Judge, and Circuit voters, of them has ever register and none (and jurisdiction. Places that blacks venile anyone re- Nor has ever been terminated. whites) ex- inhospitable some consider deputy made a volunteer quested to be —for country-and-western nightclub— ample, a deputies are The volunteer been refused. but, polling places, have been used as Although evenly by race. liti- split almost County, Phillips the case necessary produce the vol- gation was deliberately persuaded that this choice was it now seems to be unteer-deputy system, On the designed to reduce the black vote. working well. close, whole, though question we are time, At one discriminato- County. Lee persuaded that there now exist consti- voters in Lee ry interference with blaсk justifying equitable re- violations tutional In evidence County widespread. be- was Advisory report The Commit- lief. report of the Arkansas State fore us is the that is more than tee describes situation to the United States Advisory Committee old, recent constitu- years most Rights, published in on Civil Commission case, violation, the tional Lewellen report con- March of 1974. PX.59. by preliminary in- been remedied both cludes, things, as follows: among other by junction issued this Court County were discrimi- [Bjlacks in Lee charges. subsequent withdrawal of the through following against nated great County. We heard a Crittenden means: testimony political about conflict deal of poll 1. the interference of black watch- down, breaking County, this some of it enforcement officials ers local law along practice, racial lines because officials; and election prevalence voting by of block both whites boxes; tampering 2. of ballot The conflict revolves around and blacks. and intimidation of 3. the harassment practices, including ap- details of election voters; officials, pointment of election the techni- the election commission the failure of registration, purging of calities of voter provide adequate accommodations. eliminate who have voter lists to voters 59, p. PX died, away, simply have not vot- moved the trial of In an order filed before ed, dispute and the like. One incident in case, plaintiffs’ motion that we overruled mailing involved the out of absentee ballots of the conclusions judicial we take notice shortly before an election. Some of them report report. contained postage, out with insufficient were mailed evidence, however, report as a of an official charge Sally Brady, made that and the responsi with the body charged (the statute County charge official in Clerk findings. Fed.R.Evid. bility making matters), See registration voter and related de- 803(8); Corp. Rainey, Beech liberately postage, left off the in order to Aircraft 439, 102 153, 109 L.Ed.2d 445 S.Ct. 488 U.S. that the ballots would not deliv- ensure (1988). report persuasive evi good example We find ered. This incident is a events, including dence. the at high Similar level of distrust in mat- Roy Lewellen in tempt to intimidate his the races in ters between Crittenden Coun- Senate, ty. willing race for the have continued to oc Each side is to believe the particular cur. But there is no doubt that situa- worst about other. case, by also complaints polit- we find no deliberate violation There were County ical life County of is dominated one prop- She testified that the Clerk. family, white Sidney Gibsons. Charles by mistake, postage er was left off Gibson is Chairman of Democratic Cen- deliberately, and her. All of the we believe City Attorney tral Committee of and Der- question eventually their got voters in bal- mott. He also as of serves Chairman lots, County told voters that and Clerk Commission, County traditionally Election due, they pay postage had to she would position assumed whoever is Chairman deputy reg- them. A voter reimburse black Democratic Committee. The Central terminated, Brady istrar was Mrs. be- but Senator, Gibson, sponsored Jack a bill lieved, perhaps wrongly, good that she had in the Legislature to locate a landfill in the deputy registrar cause. A voter white popular area. The bill was not black with also been terminated. citizens, objeсted who to the landfill’s loca- serious, County Politics in Crittenden is violation, tion. no We see constitutional rough. often Fierce battles between en- otherwise, with to in respect voting or this forces, opposition trenched known end, pass, In the incident. the bill did not “machine,” challengers frequent. large part are in because of the efforts of Gibson, battles, Bynum Representative. Some of these no means all a State Gibsons, seems, families, The many like them, racially polarized. are Those who they appear are not so monolithic as vigorously. are office defend themselves fact, plaintiffs’ others. In one of the wit- Perhaps they have used the election laws Bynum nesses praised Representative Gib- fight. Perhaps they tools in this have responsiveness voters, son for his includ- interpreted strictly these laws in order to ing black voters. political insurgency make difficult. We do however, believe, activity that Finally, regard this is difficulties with to “vot- ing booths” discussed at the trial. especially keyed race. White candidates Voting County by paper is in Chicot ballot. challenging groups estab- precincts, In their some voters receive bal- lishment face the same While we hurdles. lots to mark them. and sit tables is among citizens, could wish for more trust possible for election officials to look over any present we do not find violations of the during process. the shoulders voters justifying equitable Fifteenth Amendment precincts At some times and at some there County. relief Crittenden give privacy, are that a measure of booths County. respect Chicot Problems with “frames,” apparently some of divid- sort polling places to the location are similar portions er table at which between in connection with to those described above cast, purpose. votes are for the same Phillips County. polling places Some these or frames has absence of booths notice, on short and some been moved caused black to feel some voters intimidat- places them are inconvenient to black ed, become known. lest their votes should however, regard, In voters. credit We do this can a serious not doubt that be Johnson, testimony Kathy County problem, officials should do and election view, good privacy County. her their utmost see that Clerk Chicot existed, respected. persuaded, ballot are not is We having nothing to reasons reasons however, problems are more race, change do with for each that was prevalent predominantly precincts black could made made. Greater efforts predominantly precincts, than white places in areas black polling locate where are the result of an intentional live, people public duty have a officials effort to intimidate voters. parts all of their to become familiar with parts constituency, prop- so that all can be deputy registrars We note also that But erly persuaded we are not freely served. being appointed now in Chicot Coun- problems places in polling Chicot ty, development great sig- is a and this County have been due to intentional racial are 12 vol- nificance for future. There deputies, unteer are black. discrimination. ten whom districts, County divided into two way voters is register ability Their Chiсkasawba, which means has never Osceola County Clerk restricted. separate sets of voter- there are two any person vol- who appoint refused to deputy books. A any registration registrar unteered, she ever terminated nor has Services at all times the Social on call deputy. volunteer Morgan never turned down Ms. office. present con- sum, that no In we conclude a wanted to be any qualified elector who respect voting to stitutional violations public- and she has asked deputy registrar, relief, have equitable rights, justifying find ly numerous times for volunteers. We County. proved in Chicot been with re- violations present no constitutional Polling have County. places Mississippi Mississippi in right to vote spect to the moved, this causes confusion been County. voters, probably more confusion among Larry Bryant, a County. S. Francis St. among than whites. among voters black City Council of For- member of the former employers of officials are Some election problems experi- City, testified rest about voters, voters fear a lack some In in races. when enced his Jr., Middlebrook, a privacy. As Lonnie margin against he was re-elected a close Council, Blytheville City member of error was opponent, a 50-vote a white testified, fear is in itself a form Mr. count. After made in the initial hand, Mr. Mid- the other intimidation. On complained, though, the error Bryant any- no instance in which dlebrook knew of Mayor ran for he corrected. This actually became known. one’s vote During campaign, his life 'was lost. resulting from natu- apprehension, sort of threatened, phone calls us- and he received position part of those a ral fears on the threatening to “blow ing epithets racial a serious dependence, can be of economic away.” him to us more problem, but it seems to consti- incidents do not amount impact than of deliber- These disparate nature of There is no evidence no testimo- tutional violations. ate discrimination. There was telephone threats came calls or against threat a voter. ny any actual official, anyone acting any public served as election offi- Many blacks have knowledge of a in concert with or with the cials, appointed to they tend not to be but kind, Threats of this public official. boxes, people while white serve at white serious, sig- extremely and their agree, are as officials at all represented are boxes. They minimized. nificance should not be County according Morgan, But to JoAnn to criminal violations of amount federal County, there is actual- Mississippi Clerk right designed protect to to statutes officials, and ly shortage a of election she showing a But in the absence of vote. purpose. seeking volunteers for this She action, they state are not violations complaint from a has never received Amendment. Fifteenth concerning person the conduct of already have re- Polling places County. have Desha We poll white worker. changes campaign ferred of Carol Willis for changed, a list of the but note, addition, County county judge. printed newspaper, and the We brother, testimony of his Andrew James many letters to individual Clerk has written they Andrew Willis described an inci- explaining to them where Willis. voters polling place day elеction polling places also dent at a on should vote. The have elections, pulled A white official for some but been consolidated special knife on him and had to be restrained in school elections and this occurs issue, present. police who were were single on a when others elections conducted there, low, attempt traditionally so there is but made investi- the turnout is press gate incident. Mr. Willis tried to legitimate reason for this consolidation. deputy prosecuting deputy regis- charges, but the attor- There are 46 active volunteer trars, the incum- ney, Their move- who was the son-in-law of 18 of whom black. (Carol all, county judge opponent), Willis’s except ments are not restricted at bent black, and victory Andrew Willis with he credits his election charge threatened After the that fact. trespass instead. elec- criminal suffered,

tion, family partly business testimony Mayor Harris’s was not rebut- by the official retaliation Coun- because ted. We found him believable. We there- ty- find fore that there have been constitution- right Ashley al violations vote been serious unquestionably There County. people part Many of the who took respect violations with constitutional in the 1986 incident described above is, County. There right to vote Desha citizens, private Sheriff of however, specific inci- no evidence of them, County apparently cooperated with county recent dent more than Commission, as did the is all Election Willis retired judge who defeated Carol proof this is the white. Whether sort of Registrars have now early the 1980s. remedy justify preclear- that would appointed, some of them are been and ance, question is a we shall later in discuss black, a though appears this to be relative- opinion. this development. is wheth- ly recent The issue proved justi- er the constitutional violations County. The Elli- Columbia Reverend present-day relief in the situa- fy equitable Sr., Gaylord, hue State President of the im- relevant indication the tion. One organiza- NAACP and a member the atmosphere in Carol Willis’s proved board, politi- tion’s national testified about occurred, in for circuit clerk race in County. cal conditions Columbia Before racial and This race was free of the abuse said, appointed he “we tried” to be flare-ups that the 1976 race. characterized deputy registrars, County but the Clerk a opponent good white ran Mr. Willis’s filed, us “turned down.” Suit'was and as The campaign. voting patterns were es- Gaylord Mr. two result Reverend and sentially same in We conclude deputized. people other black were There for in equitable the need relief registrars 12 deputy are now in the Coun- proved. has not been black, ty, 11 of whom are their efforts -3,000 registered have over since voters Ashley County. heard the testimo- We no real in this 1982. There is evidence Harris, Mayor ny of Clinton who has violation, testimony constitutional years. of Wilmot for three when and we find none. City Mr. first ran for the Wilmot Harris Council, his opponent white withdrew be- IV. city cause he did within the limits. live in The facts have found this and our The town was then rezoned order to opinion stage question for against prior man run set the enable another white Harris, Should or opponent was we must now answer: the State Mr. this white Then, blacks, subjected preclearance? group any part of it be elected. statute, law, governing The words of acting understanding on their 1973a(e), polling place. A are these: if “the court helping in a U.S.C. were voters or large gathering began disrupt finds that violations fourteenth whites equitable voting. They justifying fifteenth amendment announced territory changing polling relief have occurred within the laws subdivision, the prevent getting from State or place only, to voters such court, may such relief addition to' help in this manner. One member jurisdiction pe- Mayor grant, shall retain for such group physically prevented Harris appropriate during re-entering place. Mayor may riod as it deem polling qualification pre- period voting serious or experienced Harris has also diffi- standardj voting practice, or appointment requisite to or receiving culties in as a respect voting” registrar. procedure refused at least with deputy He was times, “Preclear- obtaining changed preclearance. eight finally appoint- without finding by this-Court September of 1986. He was then ance” means either ment etc., days, qualification, not have register people in two that the does able to all unquestionably been the effect of There have and will not have purpose right (plural) on account of to vote some constitutional violations denying . color, Arkansas, in contravention of the inquiry race or if is limited to even Act, failure Voting Rights majority- four recent times. series of States to Attorney of the United General passed to to a run-off vote statutes convert to, etc., qualification, within 60 object plurality elections which system those days. be succeeding, establishes this blacks were preclearance then manda yond a doubt. Is plaintiffs that agree We both It could be read tory under the statute? voting violations of the State and local justify way. says violations Fif guarantees the Fourteenth and shown, the ing equitable relief have been must be taken into teenth Amendments pre jurisdiction, “shall” retain court say does not account. statute period apply during the for clearance shall be-guilty must State or its officials jurisdiction retained. Plaintiffs violations, must which only that the violations but territory” requested equitable relief with “have occurred within the have not ours.) besides, (Emphasis And respect particular majority-vote the State. held, local already statutes, itself, officials of except preclearance as we present governments are State officials equitable injunc nature of an relief governments arms of purposes; local declaratory judgment would clear tion or a and exist at its sufferance. State justified, especially prevent ly be think that more than one violation We also being in the future to statutes from used plu The statute uses the must be shown. receiving plu deprive a candidate black (“violations”), strange if ral and it would be he or-she was rality of the office for which subject a single infringement could State running. strong medicine. We do not think that the word “shall” that, Beyond authority is scant. We are strip read to us of all discretion.8 should be reported discussing case aware of no stating standard doctrine that statutes is imposing preclearance. In- standards for grant equitable relief that courts “shall” deed, there seems to be no case in which a uрon the occurrence of a certain state of subjected pre- an entire court has Rather, literally are not construed. affairs (which plaintiffs request what clearance interpreted against are “a such statutes choice), here, at least as their first with the years of background of several hundred exception Anaya, of v. Civ. No. Sanchez Bowles, history.” The Hecht Co. court) (D.N.M.) (de- (three-judge 82-0067M 587, 591, 321, 329, 64 88 L.Ed. U.S. S.Ct. 17, 1984). There, cree entered December (1944)(Section 205(a) Emergency of the legislative ap- found the State’s Court Price Control Act of 56 Stat. portionment Voting violation of providing injunction that an “shall be Rights required preclearance Act and granted” engaged if someone has in or is any redistricting plan period for a new engage in a violation of the stat- about years. required was not ten Preclearance ute, princi- traditional held not to override voting practices, as to other laws or so discretion.) equitable ples of preclear- seems to indicate that case equity jurisdiction The essence ance, all, imposed at need not is to be power been the of the Chancellor to do all-or-nothing proposition. On the be hand, equity and to mould each decree to the judgment other the final was entered particular by stipulation, a circumstance which re- necessities of the case. Flexi- precedent. bility rigidity rather than has distin- weight duces its as ours.) (Emphasis plaintiffs, for if we understood them tional violations are found. Counsel correctly, open position They willingness disclaimed in court the accept also indicated a removing that the word '‘shall” has the effect of exception preclearance changes of local They position all discretion. took same minority jurisdictions pop- without a substantial brief, p. post-trial their 75: "a State as a whole ulation. Id. at 77-78. placed preclearance under constitu- if” qualities mercy trary power any portion government, it. guished equity all, made the instru- practicality have national or state. Above we are mind- adjustment for nice and reconcilia- ment ful both Constitution and the Vot- public pri- between the interest and tion ing Rights require Act if violations competing as needs as well between vate found, prospective have been and if relief do not private claims. We believe preclearance the form is indicated major departure long such a from that case, rights the other factors proposed tradition is here should be prevail. pur- must whole implied. lightly pose of the Fourteenth Fifteenth 329-30, Voting Rights Amendments and of the Act at 591-92. Section Id. 64 S.Ct. moreover, action, 3(c) Act, Voting Rights of the is to override state defer- undue simpliciter sovereignty “violations” permit- does establish ence state cannot be predicate preclearance, but “vio- purpose. to thwart ted this (Em- justifying equitable lations relief.” Having fully considered all of these ours.) least a phasis permissible It is at record, light factors in the of the entire language, if not a re- construction preclearance that a conclude limited reme one, quired granted, relief is that whatever dy required. Certain constitution including preclearance, must be measured found, including al violations those shown equitable prin- against traditional remedial Perkins, Humnoke, by the and Lewellen ciples. ambiguities So “we resolve cases, already by judi have been remedied [3(c) that interpretation in favor of Section ] requires action. A decree cial consent now opportunity equity affords full ready appointment voting of deputy proceedings to treat enforcement courts registrars, people amply rep legislation under this accordance ... appointments. resented There practices, their as condi- traditional been no consent violations public inter- tioned necessities widespread decree. The violations found to Congress sought protect." which to est County report exist in Lee in the 1974 of Bowles, supra, 321 The Hecht Co. v. U.S. Advisory Rights Committee Civil 64 S.Ct. at 592. are, large part, in at least Commission guide in exer- What criteria should us true, past. to thing of the The same is meaning this cise of discretion? Without degree, of the local violations we some possibly exhaust the rele- to universe in Ashley found and Desha Counties. have might factors that be shown in future vant Moreover, consist, in the violations cases, suggests present record the fol- main, explicit prac not of elections laws or lowing: persistent Have the been violations by tices, rather individual actions but repeated? they Are distant and recent or charged administering laws officials they in time? Are the kinds of violations their This practices and neutral on face. likely prevented, in the fu- that would be by a kind of violation would not be affected ture, preclearance? already they Have preclearance and requirement therefore by judicial remedied decree or other- strong imposing for it. furnishes no basis to likely How are recur? Do wise? majority-vote passed statutes The series independent of this political developments, politi purpose suppressing for the less litigation, make recurrence more or success, however, strong demands ac cal weighing process, likely? Throughout the hold that further tion. We therefore strong in interests on we have mind ordinances, statutes, regulations, practices, sides: the interest both imposing relating a ma or standards to right to of their constitutional vindication general jority-vote requirement in elections vote, precious politi- perhaps the most of all subjected pre itself, in this State must be free rights except speech cal that of (The re process. majority-vote clearance the defendants in main- interest of prima State, quirement party for nomination taining sovereignty holding.) In all part ries is not affected this important is itself an the constitu- plaintiffs’ request statu- against respects, balance of arbi- tional exercise other 3(c) EISELE, Judge, dissenting. will be Chief tory preclearance under Section perhaps within our It would be denied. Introduction statutory preelearance impose discretion to throughout people While the world basis,, for the reasons on a broader the idea of rejecting nation after nation are to, at least for given we have chosen not rule, minority today we find a United choice, being. making this the time account, holding district court that the State to the other States take into in addition mentioned, pace per- punishеd of Arkansas factors quickening. change in this We adopting give ceived motive laws which credit, testimony regard, of Gov- expression democratic to that most basic of ernor at the trial. We also note Clinton principles: majority rule. trend, taking place many ar- increasing it, brothers, my in their con- As I see State, at-large of conversion of eas of application of the law and the struction single-member systems. systems Constitution, unconsciously leaning litigation affecting This trend is evident over backward in their sincere effort municipal elec- school-board elections and help the victims of those believed to be already positive tions. It was law with racial discrimination. And when one leans courts, quorum respect to elections for backward, fall, and, likely over one is legislative bodies of counties. falls, likely way when will one others impose appropriate We deem it one happening I be hurt. That is what see pre- further item of relief in the nature of here. statute, clearance, not as a matter of but as equitable power. Af- a matter of inherent By finding certain state run-off election Census, Appor- ter the the Board of Constitution, violative our federal laws of. again the task of tionment will face once though legislative and- even histories drawing district lines for the House the intent of these state enactments remain plan appor- that no Senate. We direct undeveloped discriminatory their ef- adopted may go tionment so into effect undemonstrated, today fects the decision days elapsed the date of until 60 greater wrong than occasions an even the. adoption its final Board. This Court remedy by casting chilling one it seeks to jurisdiction, pe- will retain that time within and dark over the erstwhile re- shadow riod, entertaining any purpose for the concept majority-rule. vered The Court challenge by plaintiffs in case wrong believing power that it has such plan. challenge If such is forth- authority. wrong in its assess- and is effect, go coming, plan may the into sub- legislative en- ment of the motive for the however, ject, right any aggrieved wrong actment of these statutes. And it is challenge appropriate it in an citizen to impose in its decision to the draconic sover- action at a later time. This retention of eignty-denying remedy preclearance. I 3(c) jurisdiction required by is not Section dissent. Act, requested it, but have Preliminary Summary alternative, ap- it and we believe is propriate this case. under the facts of I agree majori- While with some of the fact, period vulnerability, such a so to conclusions, ty’s findings and I dissent speak, advantage the should work to the major holdings from its as set forth in its State, plan adopted if because the opinion rights voting latest this case. hurdle, of its survives this the chances be- occasion, On the issues before ing govern allowed to until the undisturbed alleged Court are the violations be, practical Census of will as a mat- Fourteenth and Amendments Fifteenth ter, greatly enhanced. and, if such violations are found to have An appropriate being decree is entered occurred, remedy imposed. then the to be today carry findings out the and conclu- agree I with the on the correct expressed in opinion. sions standard of review for violations of thеse

It is so ordered. majority’s Amendments and with the find- proof did not violate the that elusion of conscious intent ing that the defendants formulating grounds required is 1981 redis- discriminate on racial Constitution tricting plan. My colleagues Equal have conclud- to show a violation of the Protection Amendment, the Arkansas the enactments ed Clause of the Fourteenth majority-vote re- Assembly of four General also with the conclusion that the same violated Constitu- quirement statutes required proof is under the Fifteenth I con- vigorously tion. dissent those thorough- Amendment. Judge Arnold clusions, that, point I out even also area. ly canvassed the cases in this As he permitted in this case the factual record notes, opinion, Supreme the critical Court (which not), that would same it does record Bolden, City Mobile v. 446 U.S. any predicate proper not constitute a for (1980), plural- 64 L.Ed.2d 47 S.Ct. less the relief in harsh and this case—much agree that ity decision. I more nonetheless rarely remedy preclearance! used justices adopted the intent standard than I opposed agree it. that racial discrim- also majority-vote It is me that these clear to motivation; need not, been, ination not be the sole it have never statutes motivating need be one of the factors properly independent the Court before preclearance. And not remedy but for which the action would have bases the defendants were I am convinced that been taken. fairly notice that claim on finding plain I also concur as to the being the enactments of such made that carry their burden of tiffs failed to independent statutes bases constituted proving intentional discrimination not believe that there such relief. I also do redistricting plan in formulation of the of racial animus sur- is sufficient evidence step I further on go 1981. would one rounding of these statutes to passage affirmatively that racial evidence find

justify conclusion that enactments discrimination was one of the motivat Fourteenth or Fif- thereof violated the plan. of that ing factors the formulation And, even if there teenth Amendments. I members of the Board believe were, opinion my that under further person, by the “one primarily driven Constitution, federal our United States requirement, the traditional one vote” authority prohibit pun- courts have no princi as their identified factors the state of such ish enactment reapportionment (including pro ples of Congress did intend run-off statutes. Nor incumbents1) simple inertia. tection ‍‌‌‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​​​​‌‌​‌‌‍of And, power. have such that federal courts majority’s disturbingly, opinion while factual find- agree majority’s I with the to require decision undermines the State’s not motivated ing that Board was than by majority plurali- rather voting rights. any intention to harm black clear, provides ty, it at time the same Board did not agree I also But voters, candidates or principled guidance to affirmatively ways and means to seek out using the legislators the effect of as to At voting power. minority enhance in future challenged statutes elections. time, I the Board did find that same strong are My views these matters on voting rights in “in fact” not dilute black length. I set them out at plan. Dilution as- redistricting the 1981 There was no sumes some benchmark. CRITICAL CON- I. AGREEMENT ON showing plan that the 1981 decreased ISSUES STITUTIONAL voting power that which existed un- (with possible excep- plan in more der the 1971 I indicate detail will first Clinton, 100). agreement tion of H.D. See myself areas which I find Jeffers 1990) (Eisele, J., (E.D.Ark., F.Supp. with con- 730 196 majority. I concur with 1239, Co., incumbency unac- desire to retain one's [T]he Escambia 638 F.2d 1. See McMillan v. dismissed, 946, ought (5th companied by Cir.), evidence not to be 102 other cert. 453 U.S. 1245 17, (1981), against equated discriminate part, an intent to S.Ct. L.Ed.2d 1033 vacated 69 remanded, (1982), qua blacks blacks. vacated and 466 688 F.2d (1984): Id. at 1245. 80 L.Ed.2d U.S. 104 S.Ct. plain- And, preclearance was never raised assuming that de- dissenting). even this case. during the trial of group voting tiffs before to black indifference liberate equivalent of inten- legal power were the not—I it discrimination—which tional Voting A. Preclearance Under evidentiary there is no would conclude Act Rights finding any “knowing fail- for the basis Voting Rights Act of 5 of the Section because, I under- ure to correct dilution” voting legislative finding 1965makes evidence, the defendants did not stand in states where rights violations occurred “dilution” be know that there literacy in effect November tests were might they be “di- corrected or even presi- turnout in the 1964 and where voter rights” simply by not voting luting black of 1964 was less than dential election to enhance black taking opportunity age population. voting percent i.e., taking by group voting power, pro- automatically “covered” States super-majority black opportunity to create ways under were affected several vision (VAP) population districts. voting age 4(b) Act. the scheme contained § majority’s so, fully agree with the And I suspended for a literacy tests were All plan apportion- holding, “that the 1981 ob- years; federal election period of five Fourteenth violate either the ment did not dispatched to monitor elec- could be servers op. Majority or Fifteenth amendments.” tions; significantly, most the affected holding completely my' In view required to sub- political subdivisions were issueg remaining in the case disposes pre- qualification^] or mit all new “voter plaintiffs’ requires the dismissal of standard[s], practices[s] or requisite^] or denial of all claims and the constitutional voting” respect to procedure[s] with thereon. The be-

remedies based for the District of Columbia District Court for, finds, It looks lieves otherwise. “preclear- Attorney General for or to and then violations other constitutional Any such 42 U.S.C. 1973b. ance.” See preclearance. predicate uses them as a change implemented only proposed can be finding by that court or the Attor- upon a CONSTITU- II. ARE THESE OTHER provision is not viola- ney General BE- ISSUES PROPERLY TIONAL territories of the Act. The entire tive of FORE THE COURT? states, portions as well as of several seven view, majority’s a determination were, pronged two test and others met the was not moti- apportionment that the 1981 therefore, the strictures of subjected to discriminatory intent by invidious vated 94-295, Voting S.Rep. No. Section 5. See preclude inquiry further into does not Extension, Cong. Rights Act of 94th 1965— 3(c) under Section preclearance whether (1975), reprinted in 1975 U.S. 1st Sess. imposed on the basis of may nonetheless be Cong. & Admin.News Code “[ojther alleged constitutional violations” similar, 3(c) though provides for Section of Arkansas even within the State found identical, remedies, are to which plain- not the focus of though imposed by district courts on states or their Majority op. complaint. at 591. tiffs’ See voting where related violations of the units predicate finds as Fоurteenth or Fifteenth Amendments the enactment of preclearance” “limited 3(c) is Preclearance under Section shown. majority-vote applicable election laws four court, by the local district granted county-wide municipal and offices. jurisdiction period then retains “for such despite this conclusion reaches appropriate.” deem 42 U.S.C. clearly suit focused plaintiffs’ fact that the 1973a(c) (1981). (only these statutes one of not on filed), 3(c) applies specifically to those the suit was Section was in effect when apportionment, “pockets” of discrimination that exist out- upon rather the 1981 jurisdictions that were automati- this rationale for im- side those despite the fact that provisions admittedly remedy cally covered the of Section posing the drastic

605 3(c), any voting under statute enforce the constitutional violations Under Section proved. guarantees must be of the fourteenth or presumed; not fifteenth any amendment in State or sub- trigger” “pocket provision The does the finds that division court violations of automatically-presumed-dis- utilize the or fifteenth the fourteenth amendment criminatory approach pioneered sec- justifying equitable relief have occurred 4(a) 3(b), al- tions and 5. Instead these territory or polit- within the of such State discriminatory “qualifications, pre- leged court, subdivision, ical in addition to requisites, the “traditional etc.” retain may grant, such as it relief shall case-by-case approach.” Mobile Anaya, Civ. No. 82-0067M judge first the order December articulated Brown v. Board Never has an entire remained submit that this 2437, 2475). ago. sage (quoting The Section state, F.Supp. impression. Circumspection Cf. court) (decree City, ^[1965] practically McMillan v. Escambia standards for its Voting Ala, 3(c) subject U.S.Code 1984). (N.D.Fla.1983); is day. preclearance 542 essentially state, entered unused Rights School to its strictures. F.Supp. No Cong. & or even most (D.N.M.) court has since Act Comm’rs an issue of remedy has 1078 Sanchez imposition. stipulation should be Ad.News County, (three- (1982) years pas yet I The use additional 42 U.S.C. § congressional “justify[] may period procedure retain have the time the uisite does not have the shall be court finds such color, or [language minority status]. ent site, standard, practice, right deem jurisdiction no qualification equitable relief”, clearly reflect voting enforced unless effect to vote on that voting qualification 1973a(c). with proceeding appropriate reluctance to plural in force respect or of denying qualification, prerequi- for standard, purpose “violations” and the that account such was commenced or effect at the such and until or voting or and will not impose pre- during period practice, or procedure abridging violations race prereq- differ- such or or opinion lightly. my clearance It is that Interpreting Language B. Sec- very violations must arise out of those 3(c) tion voting guaran- proceeding “to enforce the First, 3(c) I cannot be believe Section of the fourteenth and fifteenth amend- tees unless Con- apply read violations to in the ments ...” which referred respect shown stitution are Why? phrase Be- statute. initial standard, very practice procedure that is or goes say if in the statute on to cause actually bеing in the challenged lawsuit. proceeding the Court “finds that vio- such Here, the electoral device at issue was of the fourteenth or fifteenth lations redistricting plan. Since court equitable relief justifying amendment re- no violations with found constitutional court, “the ...” then addition occurred apportionment, simply there spect to that relief, jurisdiction____” shall retain to such preclearanee predicate for under Section So, here, impose precléarance. 3(c). must find constitutional “violations” Court 3(c)’s contends that Section one) (i.e., just challenged in the redis- reference to “violations of fourteenth relief,” tricting plan “justifying equitable justifying eq- fifteenth amendment (i.e., ordering, example, justifying at Ma- is “not limited all.” uitable relief” changes plan least some new jority op. at 592. Not so. redistricting plan). If the Court finds 3(c) part: reads in relevant Section justifying violations such constitutional relief, “in by the then addition” Court any proceeding If in instituted (“shall”) preclearance.2 aggrieved person impose or an must Attorney General "may.” concluding preclearance means majority, by is led also conclude "shall” violations, statutory non-major disagree. predicates are found I If ordered even 3(c) plaintiffs not form the basis for here Section suggestion Simply alleging, that the defen- a cause of action. prove not their claim such need proving, violations of that violations of Four- dant Board committed formulating the 1981 redis- Fifteenth Amendments “have Constitution teenth and (and thereby equitable tricting plan territory obtain occurred within the of such State” relief) pre- alone, entitlement to enough, justify pre- as a condition to would not be negated clearance is further and undercut Why is that not clear? clearance. statutory language that the “court majority apparently disagrees, But the juris- shall retain in addition to such relief if, concluding in the course of an at- that diction If no other relief for constitu- ...” plan, plaintiffs upon apportionment tack awarded, clearly tional violations has been vio- put on evidence of other constitutional preclearance. parallel- And the there is no lations, may indepen- such other violations phrase any “in State ism in the use of the dently predicate for “the constitute political language and the or subdivision” remedy preclearance.” Summar- drastic territory politi- “within the of such State or izing point, majority states: on this ignored. cannot be cal subdivision” do not think the statute should be [W]e any proceeding that “If in statute states way read in such a crabbed as to rule out voting guarantees enforce the ... Certainly such relief as a matter of law. any fourteenth or fifteenth amendment require do the words of the statute not political court finds State or subdivision the reading, such a and would be inconsist- that violations ... have occurred within the purpose. ent with its broad remedial territory subdivi- Majority op. at 592. sion, (impose preclear- the court ... shall just explained, my As it is view that a ance).” ISo submit that the most reason- straightforward reading of the statute re- 3(c) able and fair construction of Section quires pre- the denial this case of requires succeed on their remedy clearance as a matter of law. It is challenge any basic before consideration that tortures the statute in preclearance. given remedy can be quest appears justifi- what to be for some correct, If the would it not impose preclearance. cation to None exists preclear- follow that a cause of action for in this case. without, ance could be stated at the same time, standard, attacking practice some C. The Due Process Issue Notice procedure voting guar- as a violation of the Furthermore, require it does not or Fifteenth antees Fourteenth reading of the statute or its “crabbed” example, plain- Amendment? For assume purpose principles to conclude that of fair January tiffs this lawsuit in filed process require plaintiffs notice and due simply claiming that the enactments of specify set forth and trial each and before these four run-off violated such statutes attacked, every being electoral structure provisions praying of the Constitution and justify imposition which contend (i.e., preclearance the relief of any remedy particularly the dracon- claiming that the run-off statutes violated remedy preclearance. ic Plaintiffs failed praying equitable Section to do this. Nor do I is it reasonable believe relief). complaint Could such survive conclude the defendants were Although motion to dismiss? fairly nevertheless on notice of such a theo- opinion equitable here relief states ry. here, justified go would be it does not on to grant any such relief in connection with the failure accord the This defendants my opinion right procedural four run-off statutes. It is their constitutional due established, then, here, justify equitable the Court to have been Section 2 violations barring problems, preclearance relief, constitutional enough. would not be It must find "vio- imposed. statutory predicates must be And the lations of the fourteenth or fifteenth amend- violations, merely must be constitutional justifying equitable ments relief.” statutory finding violations. So Court’s 1990)(en banc), single the most be process may serious would admissable under be if no other reason this case for error hearsay exception a certain view of De many it the for than has occasion so been partment of regulations that pur Justice the other errors. of portedly prevented the witness testi that, fying again “at in the trial of this case. majority The states least since pretrial it the time the conference ... of explaining objections In their the to use plaintiffs attempt did to has been clear that transcript, of the counsel defendants’ stat- pattern statutory a of and constitu- prove he ed that “never run-off considered stat- voting rights.” of their tional violations to be an this case.” This issue utes Majority majority goes on op. at The go testimony’s to appeared toward the rele- say: vance, question rather the hearsay. than All the table of the issues were on before objection, the As to latter the Court ruled trial, adequate had full and defendants a plaintiffs’ But the favor. statement of and, them, opportunity proof offer on strong the counsel indication of defen- complaint the is not fact broad them, encompass provisions dants’ lack notice that run-off enough plead- ings now be deemed amended to independently should would be used to establish a proof. conform with predicate Moreover, for preclearance. it must be that remembered law Id. at 591. Whitfield, at issue the focus of the disagree. pleadings make strongly I The testimony, expert’s likely and therefore the majority vote no mention of statutes parties pre-trial at the confer- focus being upon predicate as a for now relied ence, Having was not run-off provisions reviewed the record preclearance. conference, pretrial I must con- also now should serve as found clearly agreement clude that there was preclearance. a legal basis for any understanding as to about issue or But this was the discussion run- significance proving these “other provisions pre-trial off at the conference. short, In constitutional violations.” request did that Court placed the table even at issue was not on findings iii judicial take notice of other that late date. of constitutional cases violations pre-trial held on Much of the conference so, doing explained In State. plaintiffs’ on September 1989 focused these cases were relevant to their claim Early judicial for notice. requests various 3(c), specifically would under Section conference, following I posed the pattern local a con- be used establish attorneys question to one for in Arkansas. How- stitutional violations is, guess, I plaintiffs: “It dilution and dis- ever, plaintiffs did not contend dealing primarily tricting that we’re with predicate pre- as a for findings could serve attacking.” you’re the structure Coun- “Yes, ruling independent of the responded: your Honor.” clearance Court’s sel respect apportionment. to the 1981 with conference, question Later in the majority concedes that these earli- And the concerning transcript raised whether findings justify pre- not judicial er testimony in expert witness plaintiffs’ clearance since the effects Party v. Democratic Whitfield since ceased violations have Arkansas, F.Supp. State of (8th Majority op. at 601.3 (E.D.Ark.1988), F.2d 15 Cir. remedied. aff'd, 902 However, legal analyses. agree I do with that none of Because the concludes except that no such violation violations violations conclusion the other constitutional legal pre- proper basis for can or should constitute statutes constitute basis run-off should, specific points carefully here. Some preclearance, I have chosen not clearance however, dealing majority’s analysis with "local viola- be made. thereof review the tions,” agree indicating states there should be I dis- purpose wherein analysis. say acts of state and I do no distinction between the agree Suffice disagree. majority's state completely agree local officials. I with the factual parties requested judicial that the Court take no- Finally, the submissions of clearly the trial re- ranging both before and after tice of some 43 items from earlier constitutional findings that the issue whether judicial veal of racial discrimination to violations, independent apportion- the allegedly passed by enactments race-based predicate challenge, could serve as ment Assembly the Arkansas General from the brought was never into pre-clearance, for end of the Reconstruction era to the focus, For in- implicitly or otherwise. plaintiffs present. At no time did the iden- stance, findings proposed of fact and the tify, request judicial that the Court take by parties law filed both conclusions of majority-vote of the existence of the notice appropriate simply the standard outlined that the statutes now serve as basis necessary establish a constitutional vio- preclearance. imposition of plain- concluded that lation. Defendants trial, day plaintiffs On the first establishing in- the burden of tiffs “have presented the Court with a list of 67 exhib- disproportion- discrimination or tentional they intended to offer. These were ate effect in the establishment mainte- subject objections then received to later apportionment challenged nance of the Again, majority- from the defendants. the Proposed Findings plan.” Defendants’ among the vote statutes were not exhibits (empha- Fact and of Law at Conclusions offered. added). They proposed that the then sis accompa- find that no racial animus Court It was not until the trial commenced that plan, apportionment nied the the the run-off statutes became focus therefore, placed cannot be un- “Arkansas then, however, testimony. Even the some preclearance requirement of Sec- der the provisions manner which these are re- 3(c) Id., Voting Rights Act.” tion of the question ferred to is instructive on the point At do the defendants indi- 14-15. adequate defendants had notice whether pre-trial in their submissions that cate provisions that these would be tendered as attempt were aware instance, predicates preclearance. For preclearance imposed could be to show trial, day Represent- on the fourth finding appor- the absence of Irma Hunter Brown testified that she ative tionment was carried out with intent legislators and several other black looked against discriminate blacks. upon early a run-off bill introduced “jaundiced eye” with a because the bill was importantly, plaintiffs’ pre-trial More shortly plurality after the elec- introduced conference information sheet- does not list Humphrey tion of the Honorable Marion expected this issue of law to be post County municipal of Pulaski court at trial. Nor are the citations for contested judge. TR. at IV-50. The bill to which she any now-challenged runoff statutes by referred was never'cited either the wit- pre-trial submission ever mentioned plaintiffs. It must ness or counsel. Toward the end of her be noted conference, plaintiffs testimony, following colloquy occurred: during pre-trial private penalized for the isolated and unconnected inci- tions of citizens unconnected to either part of local offi- governmental majori- dents of bad behavior on the state or local action. Furthermore, violations are to rise cials. ty p. opinion: states at 600 of its “policy practice," there to the level of a say statute does not that the state or its a series of related inci- should be evidence of guilty officials must be of the violations but involving conduct over which the dents similar only ... the violations must "have occurred have some lawful control. state would territory within the of the state. And, thereon, choosing rely while not analysis wrong. I believe to be Violations prior judicial cited decisions as and Fifteenth Fourteenth Amendments prior while evidence of constitutional violations require guilty a state action. If state is not many completely ignoring the court decisions violations, then no violations of the Four- finding such constitutional claims to be without teenth or Fifteenth Amendments can occur. 3(c) permit such "boot- merit. Section does So, again, only state action which the preclear- strapping" to be used as a basis for rely upon here is court can found the enact- ance. ment of the four runoff statutes. Furthermore, many "local violations" discussed consisted of the ac- Brown, Rep. referred to pri- presumably had Q that the run-off you Do believe p. copy earlier. TR at VII-3. The was passed response to a mary bill was Exhibit and re- marked as Plaintiff’s election? particular tell, far I ceived the Court. As can only repeat what I said earlier. A I can first time of the four suspect in that we had thought it was I specifically cited to run-off statutes was Judge Humphrey just had the election Court, of- and the such exhibit was intro- a main bill that became point, plaintiffs. At this fered duced. day of what trial had entered seventh pass? Did the bill ARNOLD: JUDGE testimony. days be twelve passed city, coun- THE WITNESS: these Aside from the manner which it ulti- and I believe ty, local [committee] introduced, run-off it must also laws House, yes. mately passed the plaintiffs’ pre-trial brief like- be noted that law? ARNOLD: Did it become JUDGE never contended that the statutes wise I don’t THE I’m not sure. WITNESS: independently predicate serve as a could it did. I think it fell somewhere think Instead, plaintiffs fo- preclearance. for the Senate and Governor’s between cused on the discussion of the factors rele- happened. that’s I think what office. ap- that the 1981 vant to a determination I’m not sure. implemented in portionment had been viola- TR at IV-57. 2 and the Constitution. tion of Section later, Judge Humphrey testi- days Two plaintiffs noted the existence that context municipal judge, he ran for fied that when “discrimination-en- in Arkansas of so-called majority-vote requirements, were no there hancing” majority requirements. vote “understanding” that his but that was any point suggest more Plaintiffs at no enacted since requirements had been such the existence that the Court consider than p. VI-104. Pressed for election. TR at under the statutes as relevant of these Judge provision, run-off details about the plaintiffs’ factors to or Senate Zimmer4 only informed Humphrey he was said Plain- apportionment. attack on the See rep- by his elected state passage about Findings of Fact and Con- Proposed tiffs’ following: Then the resentative. par. 141. of Law at clusions wit- Did another JUDGE ARNOLD: 3(c) in law on Section the scant Given pass? testify the bill did not ness any complete absence general, and the Your Hon- MR. HOLLINGSWORTH: particular, on this issue previous cases or, Representative Brown I had think we placed defendants on should have testimony was that and her on the stand stating they would explicitly by notice she did not know did not think —that she regard- preclearance request imposition passed. it had She did whether or not finding ultimate less of Court’s introduced. know it had been apportionment. Plain- respect the 1981 right. All Will ARNOLD: JUDGE Moreover, post- their did not do this. tiffs us? you nail that down for thеory indicates that such trial brief We’ve been response MR. primarily HOLLINGSWORTH: relief was advanced Honor, to, just can’t during closing and we ar- trying Your questions Court’s try We will continue run it down. Post-trial Brief gument. Plaintiff’s accomplish that. circumstances, I do Under p. TR at VI-105. any permitting for there is basis think that deemed amended pleadings to be morning, plaintiffs’ following

On proof. I do not believe with the copy of Act conform offered as an exhibit counsel express or “tried this issue was Ann. codified as Ark.Code 905 of required parties,” as implied consent of the it as the identified 14-42-206. Counsel 15(b). Clearly, the defen- Humphrey, Fed.R.Civ.P. Judge run-off statute that Marshall, McKeithen, (5th 96 S.Ct. 424 U.S. Cir. School Board 485 F.2d 1297 Zimmer v. (1976). nom., 1973), 47 L.Ed.2d 296 Parish East Carroll sub aff'd. resisting I will here refer to vigorously pre- standards —which dants were ground.” remedy. Had realized that “sacred clearance advancing theory, plaintiffs were my opinion It is that if rule is was, own, seriously that the Court on its part required Constitution same, entirely reasonable entertaining it is parcel “Republican Form of concerning the to assume that the issues guaranteed by Arti- Government” which the run-off statutes would enactment of every in this cle IV Section “to out, aggressively thereby tried have been Union,” principle rule cer- adequate evi- providing the Court with tainly may prohibited enjoined not be to make its find- dentiary upon basis Nor, my opinion, may any reason. feeling I ings. Frankly, confess to any enactment of such run-off statute be on have been bushwhacked defendants punishing made the state or basis examination at the this issue. A careful sovereign power, re- limiting any state’s submit, would, evidentiary I con- record gardless for such of the motive or motives any lawyer that constitutional chal- vince regardless of the effect enactment and simply lenges to these four run-off statutes upon any individual such statutes impor- not tried out. To decide such (Of course, any group it or of individuals. evidentiary vacuum tant issues such view, my explained is further elsewhere possibility of serious embarrass- invites the my herein and in earlier decisions in this assumptions prove ment should Court’s Whitfield, case and in that such run-off wrong. potential embarrassment can That statutes, properly analyzed, have no dis- insisting easily by avoided that be effects.) criminatory ordinary process standards usual and due Here, majority enjoin while the does be here. followed statutes, the enforcement of such it finds constitu- I conclude that the defendants’ thereof violated the that enactments process right procedural tional to due has Fourteenth and Fifteenth Amendments and here, (measured and the cost been violated 3(c) may that such violations under Section potential accura- terms of the sacrifice punish be used to the State Arkansas cy findings) factual has been visited not limiting sovereignty through imposi- upon all the upon the defendants but preclearance. my opinion It that tion of is this state. citizens of the enactment of such run-off statutes did any not and cannot cause violation of our III. THE “OTHER” CONSTITUTIONAL my It is further Constitution. view that VIOLATIONS: MAJORITY VOTE 3(c) permit require Section does not or REQUIREMENTS impose preclearance upon courts to ba- sis of the enactment of such Majority-Vote A. Statutes —Sacred run-off stat- utes, regardless of motive or effect. Cer- Ground tainly congressmen and senators who my dissenting opinion plaintiffs’ on 3(c) voted for Section would be shocked to claim, cap- Section I included a section passed pur- learn that had a statute Limitations: Use of tioned “Constitutional power in porting place to such our federal ‘Republican Form of Government’ Guaran- power prohibit punish courts—the to 4, tee of Article IV Section U.S. Constitu- majority my opinion rule. is further Clinton, supra, v. tion.” Jeffers 3(c) interpreted permit if Section were so to incorporate I F.Supp. at 232. now basis, require preclearance on such a My section herein reference. conclusion 3(c) then Section itself would be unconstitu- there, here, is that there are certain and Congress may penal- tional. For even voting pro- practices and standards that are ize a state for its enactment of statutes tected from attack our United requiring majority rule. States Constitution. The four run-off stat- upon by relied At point utes of the some our national life I be- judges imposing required of this as a lieve that will Court basis states to preclearance just protected operate governments establish their under policy underlying give meaning validity and tenuousness state principles to rule principle person-one particular vote” and the of a the “one selection election scheme to “Republican Form of carry past out present and the effects of discrimina- make guarantee, and to clear operates Government” tion that minimize effective People Rule. and all that The for once participation minorities necessary I also do not believe But McKiethen, process. supra, Zimmer v. question in case. reach factors, 485 F.2d at 1305. Other relevant at-large within the context of or multi- Statutes: Not Majority-Vote B. If schemes, geo- member were: “Sacred Ground” district, presence graphic size had Assuming the defendants ade- ma- anti-single voting provisions shot non-pled preclearance quate notice of the requirements. jority vote Id. “other viola- respect issue court concluded that use of Rogers assuming tions” appropriately applied, factors Zimmer complaint amend their permitted now voting rights, the area of the standard of proof, trial conform with the after the proof devel- of intentional discrimination assuming that such further oped equal protection cases of Wash- ground” as are not “sacred vote statutes Davis, ington v. 426 U.S. 96 S.Ct. above, I must still dissent discussed (1976) Village 48 L.Ed.2d 597 majority’s that there ade- conclusions Arlington Heights Metropolitan Hous- proof in this record to establish con- quate ing Development Corp., U.S. justifying preclear- violations stitutional (1977). 555, 50 450 Under S.Ct. L.Ed.2d ance. cases, challenging an plaintiff this line of a 1. Review The Standard of system electoral need not show intent 613, 102 Rogers Lodge, v. 458 U.S. Rather, “an dis- direct evidence. invidious 3272, (1982),the 73 1012 Su- L.Ed.2d S.Ct. criminatory purpose may often be inferred

preme plaintiffs Court reaffirmed that who facts, totality of includ- from the relevant challenge equal structure on electoral fact, true, ing the if it is law bears grounds protection must establish heavily more on one race than another.” op- challenged structure was “conceived 3276, 618, Rogers, quoting, 102 at at S.Ct. to further purposeful erated ] [a] device[ Metropoli- v. Village Arlington Heights of minimizing, discrimination cancel- racial Corp., supra, Housing Development tan strength diluting voting ling out or 265, 429 97 U.S. at S.Ct. voting population.” racial elements Proper inquiry legislative intent re into 617, Id., at 3275 458 U.S. at S.Ct. first show that a dis quires plaintiffs omitted). rejecting (citations While also a leading criminatory purpose was one factor plurality opinion in earlier portion Upon challenged such action. Bolden, supra, Rog- City Mobile v. may then come forward showing, the State upheld use of court a district court’s ers justification with neutral evidence appro- as an the so called Zimmer factors including evidence that the conduct means determine whether Geor- priate ab would have occurred even same result electing county’s at-large system for gia any discriminatory motive. Mt. sent of commissioners had governing board v. City Board Education Healthy pur- or maintained for been conceived of 97 S.Ct. 568, Doyle, 429 U.S. against discriminating black voters. pose of (1977). Rybicki also L.Ed.2d See included a primary Zimmer factors Illi State Board Elections access the candidate minority lack of (N.D.Ill.1982) nois, F.Supp. process, unresponsiveness of selection interests, panel)5 minority (three-judge officials to elected analysis proof Applying Healthy to the instant Setting applicable Mt. out the standard following analytic steps. redistricting plan plaintiffs’ case involves under claim prima must establish adopted in of the Fourteenth First had been violation facie Amendment, purposeful ‍‌‌‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​​​​‌‌​‌‌‍vote dilution under Rybicki wrote: case of the court Majority-Vote rowly-defined applicable here. 2. The Role contexts not that, Requirement my opinion properly analyzed, Statutes It is majority vote statutes never have a dis- case, I present In the believe that criminatory effect. Some courts believe portions appropri- majority collapses do; they but none in the circumstances of isolating analysis inappropriately ate while this case. Specifically, Rogers others. while recognize Inability Disparate that certain electoral de- 3. The Zimmer Show requirements Impact vices such as vote Statutes of Run-Off inquiry potentially are relevant to the into Background a. legislative intent because these devices conjunction challenged might, in with the my opinion It is that run-off statutes practice practices at-large vot- such racially discriminatory have no effect or by minority ing, enhance difficulties faced So, disparate impact. even if the four stat- success, achieving voters in electoral passed an intent to utes were with discrimi- analytic leap makes the here nate—which were not—no constitu- requirements similarly all vote tional violations found. As could be suspect regardless of context. In other conspiracy, punish simple we do not words, what had been introduced as evi- wrong. intent to do As stated Whit- “discrimination-enhancing” dence of a de- field: purpose determining vice for the wheth- As the Court understands the law in this apportionment er the 1981 had been area, legislation was motivated or intent, adopted with invidious has now been maintained out of a desire to discriminate being elevated to the level of the electoral if, indeed, against blacks ... and p. attack. structure under See dissent legislation effect, has that fact Proposed supra, аnd Plaintiffs’ Find- Equal would violate the Protection ings of Fact and Conclusions of Law at 43. (Emphasis supplied) Clause. Neither nor Rogers the Zimmer factors contemplate such a transformation. Id., 1365, F.Supp. 686 Applying the factors in the con Zimmer majority acknowledges The that “aboli- text 2 of a claim under Section of the requirement likely tion of the would have Act, Voting Rights the Circuit has Second very impact little beneficial on minorities majority requirements concluded that vote seeking jurisdic- majority office in white susceptible challenge when used tions, actually against while it could work at-large districting with or multimember many majority the election of blacks schemes, not—as is the case in Arkan jurisdictions.” Majority op. at 593 sas—when used as a criteria for election to 2, McDonald, quoting, Majority n. The single-member City offices. Butts v. of Requirement: Vote Its Use and Abuse in York, (2d Cir.1985), New 779 F.2d 141 cert. South, supra. majority the But the then denied, 1021, 3335, 478 106 U.S. S.Ct. 92 ignores inability disparate to show im- (1986)6 L.Ed.2d 740 pact, finding question policy it to be “a of words, majority require- other vote or effect is which irrelevant to our potentially present It, ments have inquiry been found to have into motivation.” Id. therefore, discriminatory appears effects within certain nar- to be the view of the Note, principles Regester, Geometry Geography: established in White v. 6. See also and Ra- Act, 755, 2332, Gerrymandering Voting Rights cial and the U.S. 93 S.Ct. 37 L.Ed.2d 314 [412 (1984), Parker, citing, 94 Yale LJ. (1973) The Arlington Heights and Bolden. As- ] Voting Rights Results Test Section 2 the suming that are able to make such of Standard, Abandoning Act: the Intent 69 Va.L. prima showing, the burden would then facie (1983) ("[I]n challenge Rev. to a defendant shift to the Commissioners to estab- discriminatory redistricting plan employs redistricting question lish that the would district, single-member majority factors such as purpose have occurred even absent irrelevant, requirements vote ... would be since minority voting strength. dilute those are characteristics of multimember Id., F.Supp. at 1107-08. schemes.”) at-large election discriminatory natory majority highly that motivation effect is relevant trigger equitable present legislative is sufficient to re- determination of intent. alone Although language revealing is some lief. there Evidence whether vote support requirements heavily some of cases would such more on one “bear[] view, precisely I do that a race than another” is the type not believe Supreme Supreme Court factor the has said the Justices on have Court must be they. equal accepted protection analysis. that idea. Nor should Sec- examined under 3(c) part Voting Rights supra, Rogers Lodge, tion Act. 458 U.S. at standards, practices Logically, That act attacks S.Ct. at 3276. cannot procedures pre- reasonably And said that discriminate. be that run-off elections voters, remedy protect against any disparate have impact clearance on black standards, practic- or then can the creation enactment how enactment such stat- utes, statutes, procedures that have some discrimi- or the failure to es enact natory discriminatory effect. lead to an inference in- I majority- would that a tent? conclude dealing are not here violations We with vote statute which does not have such an and Fifteenth Amend- Fourteenth effect likewise cannot be found to reduce independent statute. Pre- ments minority рolitical opportunity in violation of statutory remedy. is a re- clearance either Fourteenth Fifteenth Amend- constitutionally challenged pro- quires that ments. cedures, statutes, such as run-off be shown purpose challenged have the and the effect of vio- earliest of the run-off Rights passed And lating Voting Act. after statutes was in 1973 and the latest Court, proposing being in 1989. If the preclearance suspicious, is ordered those standards, practices procedures wished to know the actual effect these new effect, must, statutes, easily suggest- same dem- four it could have putting before into purpose reflecting ed that onstrate do have all evidence violating experience be will have the effect of the Arkansas with statutes all, brought But obvious After we statute. it is before Court.7 imposed know that two the statutes were de- preclearance believes clared Su- though unconstitutional Arkansas even the “violations” which serve preme respecting so the evidence predicates remedy them- Court for this their be minimal. And know use would discriminatory discernible selves experience there would be little with majority imposes effect. most So, surely 1989 statute. it would not be remedy Voting available under the drastic provide perti- difficult to Court all Act, at the time Rights while same ac- concerning their so the nent evidence use knowledging trigger the that statutes carefully study that Court could evidence judicial action do not even violate the any actually if of the statutes determine less-stringent provisions which Section But, any no. discriminatory had effects. only showing requires discriminatory a evidentiary in another vacuum So we have majority’s How can the decision effect. I the only a critical can conclude that area. Voting Rights purpose the of the further majority believes such evidence would be Act, the Equal or Protection Clause regard- irrelevant and that such or Amendment the Fifteenth evidence— Fourteenth might not less of what show—would Amendment, practically that decision when change majority’s opinion. the require- acknowledges majority-vote Questioned against do discriminate The Four ments b. or white candidates? favor Statutes

candidates Run-Off sum, inquiry I into Of four vote statutes relied In believe an whether the any upon predicates imposition pre- statutes have discrimi- as the four run-off upon inquiry, the the it should have insisted a full be that it was Court It must remembered alerting development the we have of the issue after first that caused what little evidence con- brought po- cerning parties particularly the these statutes to be into the defendants —to run-off — place. Having significance inquiry. tential the record in the first initiated 14-47-109(c) 7-5-106(b).10 clearance, Ann. only two remain in effect. §§ provisions Act now as But of such far are: 909 of codified the effect These instance, municipal Ann. 7-5-106 Act 905 For the Ark.Code clear. § Ann. Ark.Code 14-42- choose primary codified as statute allows cities to §§ 14-48-109(a)(2)(B)(i). 206, 14-47-109(c), nominating political parties conduct in longer effect—Act The two that are no Ann primaries for candidates. Ark.Code (later Act 269 of 1965 14-42-206(a)(3). 168 of This would then shift § 1977) by 175 of invali- amended Act point the field is “nar- at which candidate —were by Supreme the Arkansas State time, dated point an earlier in rowed” to grounds.8 on state constitutional Court might subjеct primary candidates to the Whitfield, provisions run-off issue notes, the Ark.Code Ann. As here finds does vio- the requires run-off whenever a 7-5-106 § if can- late the Even a black Constitution. municipal county or office candidate partisan the run- didate were eliminated majority of receives less than a the votes off, for office in he or she could still run Ark.Code Ann. 14-42- general election. independent, the municipal election as an primary” “municipal for “all 206 creates ignore party pri- that candidate could the in cities and towns”. Under elections altogether, perhaps to conserve re- maries statute, provisions of the latter candidates sources, only oppo- and face one or two qualified to run either virtue of be municipal stage. primary nents at the In respective politi- being nominees from their any event, plaintiffs majori- neither nor the independent non-partisan parties, cal as ty require- explain majority-vote how only primary candidates. The occurs candidate, any impair ability ments qualify than two for the more candidates race, regardless participate equally emerge, If candidates office. two political process. simply and the primary then no is held two general election. proceed refer to four run-off stat- Plaintiffs 14-42-206(c)(l)(B).9 § by naming utes them after the four black targets provi- allegedly It is true that the sum these candidates who Thus, county for most of each enactment. we hear sions is candidates Act, “Handley” Act, “Hollingsworth” will municipal and most offices now be requirement. “Humphrey” Act subject majority vote and the to some “Chitman” only exception appears pointed in the Act. must out that none of be be city with referred harmed election of directors cities candidates to were Hollings- any manager government. form of Ark.Code of these statutes. Messrs. time, plaintiffs ever of 8. In also contended that Act I am more convinced than Whitfield discriminatory my original of 1983 enacted with 909 intent. This was on this correctness of decision is- against found court sue. issue, stating: on event, [Although legislature recently provisions en- found run-off principle 7-5-106, for use connec- dorsed runoff Ark.Code Ann insofar refer contests, general tion motive, certain municipal offices such as the one which above, overall, not, was discussed infra, elected, see, Leo must Chitman by fact that tainted racial considerations. The consequence, to be considered now of little legislators in 1983 a handful of by by repealed inference Ark.Code Ann. is be- been motivated such considerations short, pri- municipality 14-42-206. In with point. deal We are to with the over- side mary which candidates will two sur- legislative all intent. vive, needing position never be in the will disturbing ignores It is that the here general run-off after the election. findings those factual and conclusions made in Rather, challenge Whitfield. it treats the to Act assertion, Contrary majority’s p. to the ante re-litigated open as an to be without issue 594, 4, any having n. Little Rock other cities prevent any yet What is to a third inhibition. city-manager government form True, challenge year? we do next not have subject any majority-vote requirement. Rath- identity parties. cases were defend- But both er, great- elected officers are on the basis of the attorney general ed the state’s and some of est plaintiffs any number of votes. Ark.Code Ann. 14-47- §§ the event, here were there. In 109(c) 14-47-110(a)(4). hearing after the evidence the second worth, Any discussion of the reasonable infer- Humphrey were each Chitman legislative concerning ences to be drawn percent by plurality votes of 35 elected begin recognition motive must with the according laws of the State of to the less legislature presumed is to act con- time. As for in effect at the Arkansas stitutionally. Borden’s Farm Prods. Co. Hand- mayoral candidate Robert Pine Bluff Baldwin, 194, 209, 187, v. U.S. S.Ct. campaign preceded by en- ley, whose (1934). 79 L.Ed. 281 Consistent with (imposing ma- of Act 269 of 1975 actment principle, the Court has stated that municipal requirements for of- jority vote judges “reluctant should be attribute fices), any again fails to show the evidence state, par- unconstitutional motives to the discriminatory effect. ticularly plausible where [constitutional] election, Handley Robert re- In the first purpose may be discovered from the face votes highest the second number of ceived City of the statute.” New Butts v. PX 30t. out of a field of five candidates. York, supra, quoting, 779 F.2d at Moore, largest vote-getter was Charles Allen, 388, 394-95, 103 Mueller v. 463 U.S. 4,430 received votes a white candidate who 3062, 3066-67, (1983). 77 L.Ed.2d 721 S.Ct. cast, compared percent or 36 of the total Whitfield, rejected plaintiffs’ In I 3,455 votes, Hand- percent or 28 for Rev. sup- use of Ark.Code Ann. 7-5-106 as In the absence of Act ley. PX 30v. primary porting evidence that the run-off declared Moore would have been Charles had been enacted or maintained for a dis- However, 'the run-off statute the winner. Id., criminatory purpose. at 1370. Falso candidates face off required that the two pointed general out that run-offs in elec- election in against each other a second important perhaps tions were even more percent Mr. Moore received 68 which party primaries: than in compared percent for Rev. Hand- vote to 32 hierarchy of the fundamental val- short, ley. PX 30u. In neither the absence state, the manner in ues of a democratic presence the run-off can be said nor the political parties identify choose to Handley’s had effect on Mr. to have positions public office their nominees candidacy except, perhaps, that mayoral procedures important not as as the him a at election. gave second shot election of used to control the actual Using this reason- public officers.' position, these Contrary majority’s to the might feel less restraint ing, courts simply be dismissed circumstances cannot interfering nominating primary with the supra, Rogers Lodge, irrelevant. general election process than with disproportionate impact is makes clear that Arkansas, that, process. true among factors must considered required to use parties are not voting practice in a claim that a standard their nomi- primaries to determine open procedure the Fourteenth violates pro- They may use the convention nees. case, plaintiffs failed In this Amendment. runoff ruling primary that a cess. So factor. to establish this threatening would not be as law was bad Racial Animus c. The Inference of structure of democratic basic racially have no ruling If the statutes at issue like gоvernment as would a effect, general then does runoff law. discriminatory respect on what to a (Indeed, republican form of under our inference that racial base its plurality rule government, concept pur- legitimate some animus rather than might itself be sus- general elections pass legislature to pose motivated the signifi- But the pect constitutionally.) majori- is that the these laws? The answer in either situation. cance is immense suspicious that three of ty finds it states, primary elec- one-party And passed shortly after a black statutes were ones in deter- may be the critical tions pluralities, small won election candidate ultimately elected. mining shall be who Handley, Mr. the mu- in the case of while 1370, n. 1. at shortly run-off statute was enacted nicipal Whitfield likely case, readily by plurality present identifia- an election In the before these stat- legitimate purpose of ble and Majority op. at 594-95. occur. they me that require munici- stand them. But it is clear to simply to election to utes is indeed, by majority and, a pal county offices of vot- like or did understand them their prevent by consequently ers and legislators, believed them to white fellow a pluralities. While the benefits of such represent policy. But if good state one debated, it cannot policy may possibly be legislators position that the black takes improp- is purpose facially be said that bills, on what evi- did understand Thus, er the court or unconstitutional. dentiary can one conclude that the basis the level of reluctance proceed should with legislators leg- understood that such white Supreme that judicial deference racially islation a discriminato- would have appropriate in such Court has indicated effect, ry legislators or that such white cases. intended bills to have effect? such majority judges of this When the I contend to We start with what be be- Appor- that the Board of Court concluded acts yond question: legislative such have not violate Section tionment did racially discriminatory effects. Then legisla- Rights Act when drew the Voting legislators we find that all of black in 1981 for Pulaski Coun- tive lines district practically legislators sup- all of the white ty (even though the Board could have ported accusing these acts. No one is single majority member black drawn four legislators wanting black to discriminate of one instead multi-member VAP districts against blacks. And we know over three VAP district with black legislators two-thirds of the white in the members), by was influenced its decision no, Assembly Arkansas have General incumbent black Pulaski opinion of two negligible, and no pos- black constituencies County representatives. And it noted the winning any sible blacks concern about testimony “no black citizen of Pulaski by plurality election race their districts single districts.” County asked for member yet vote. And we also know these concluded: very legislators same white would be con- It be unfair to fault the Board of would plurality-wins. possible cerned about So ex- Apportionment acceding to the finding simply there is no basis for pressed only two black wishes legislators overwhelming black and the ap- legislators County from Pulaski who legislators number of white motivated peared it. before by any animus. What is left? racial Clinton, supra, F.Supp. Jeffers why 217. a different standard here? So legislators in districts Some white with has found that the mem- largе might populations black have be- legislature bers of the Arkansas acted with submit) (wrongly, lieved I that such run-off discriminatory racially enacting intent protect being statutes them from yet, four run-off statutes. And ev- these they defeated a black candidate. And ery legislator voted these stat- black legislation supported such be- can one fault white mem- utes.11 How erroneous, discriminatory, cause of this Assembly sup- bers of the General who belief.12 So I ask: if a handful of white ported these run-off statutes when their legislators racially have a discriminatory colleagues unanimously sup- also black statute, motive such a when vote for ported them? that an adequate finding basis for concluding acted with trial, that the state an effort to At the made remember, legislators say an intent? I no. And suggest sup- that the black who it is state, actor, ported just implicated run-offs did not under- that is here. legislator appears there A that in 1973 were three black who was motivated concern might that some candidate be defeated representatives black and one senator plurality-win person white black in a situa- Assembly. While there General is still one thereby evidencing racially tion would not senator, representa- number of black discriminatory simple majo- motive. A belief in tives went to four in 1982 and five in 1988. democracy equate ritarian does not racial animus.

617 run-off, majority majority-vote that if Perhaps the believes five enactments Arkan- sas, legislative of the members of a role various state court decisions percent animus, body requiring some racial is had on certain have amendments thereof, legislative consequent in- and the enough to taint the overall interrelated- theory perhaps upon majority-vote some of “mixed ness of the four statutes now tent — theory apply But does not under attack. motive.” here. It is true that a racial motive need Arkansas did not become involved with If, for” the not be the motive. “but run-off statutes until the 1930s. In the motive, legislation racial would not election, primary gu- the Democratic passed, enough. that is But this have then by plurality nominee bernatorial won houses of means that a of both percent of the vote. This caused con- legislature must have such a racial In Bailey cern. Carl won with a and intent and it must also mean motive plurality percent of 32 vote. Amend- motive, racial that in the absence of the ment 29 to our State Constitution and Ark. legislation passed. would not have Neither Code Ann. 7-7-202 were the results. In Clearly great true here: proposition is upon primary an earlier attack run- legislators such majority of the had no laws, I history off concluded that the lead- intent; and, just racially discriminatory (Amendment ing passage to their clearly, legislation passed referendum) popular demonstrated that the intent. in the absence of See sponsors moved, primarily, run-off “were least, supra. very At the there is Rybicki, by hostility to committee nominations in contrary. no evidence to the and, special secondarily, elections to hostili- state, latter, talking ty plurality

And while we are about nominations. The actor, however, I further ask: do we consider should not be minimized.” Whit- legislative response, just Party state v. Democratic total State field action, Arkansas, judges pass judg- supra, F.Supp. we federal when at 1867-70. uрon Similarly, of Arkan- here finds: ment acts of particularly, legisla- sas? More a state’s primary per- The run-off has become a passes an act in ture violation United party politics manent fixture of in this supreme States Constitution and the state’s deep-seated State. It reflects a attach- action, court then overturns that what are rule, principle majority ment to say we to about the state’s action? pillars democracy. one of the cardinal It was neither instituted nor maintained Here, challenged two of the four statutes racial reasons. stricken down the Arkansas Su- Majority op. preme grounds. Court on state See discus- at 593. Therefore, sion should not those assuming infra. Rather than that the State’s eliminated from

two run-off statutes be justification these statutes would be consideration? tenuous, begin the Court should with the that, recognition regardless of their uses Incomplete d. The Record elsewhere, majority-vote requirements in evaluating the intent of these enact- historically been Arkansas have associated ments, appreciate long critical to government” “good efforts and funda- has evi- preference historical this State principles rather than mental democratic requirements. majority-vote denced toward any desire to discriminate. and the here chose to Plaintiffs legisla- as if were When one considers the historical treat each statutes plurality pieces legislation— response tive in Arkansas to elec- separate, isolated successes, person immediately inference that each tion will presumably to raise the plurality-win per- specifically tailored note that the lower the enactment was likely political response Assembly prevent centage, certain the more General winning in the form of a run-off statute. Is it not candidates in certain areas from percent- analysis, plurality-win then that when elections. A much fairer how- clear ever, history ages percent, fall as we find in would take into account the below

618 case, legislative response percent run-off 37 of A this a is tween 36 and the vote. quite predictable? coup President Allende was occurred. yet Democracy murdered. has to return subsequent the un- Amendment and requirement to Chile. Would a runoff it, repeal effort to make clear successful democracy preserved have there? One philosophy people of the attitude and is: only speculate. point can But the plurality-win toward elections. this State reasons, compelling, there are obvious rule, majority That belief “one the race, completely unrelated to for states democracy” op. (majority pillars cardinal elections, opt for runoff 593) firmly ingrained at the Arkansas is political psyche. Although the record has fn. 2 The Court it “sort of” views it fully developed point, not been on the like Electoral our attitude toward the probably sporadic true that occasional or long person College system. So as the percent in the 40 plurality-win votes usually has a always elected or almost range response. not trigger immediate vote, the do majority popular people experience our with Amend- Remember agitated system, not get too about that supra. ment As stated in 29. See Whit- fn. The of our framers Constitu- (1988): field tion, acknowledging princi- while this The case the litera- evidence and ple, majority also that a understood subject the ab- ture the reveal that on roughshod minority. run over a could requirements sence runoff law Rights The Bill of their answer to was generally citizen’s or has not come prospect tyranny the ma- legislator’s attention until some bizarre jority. Most often result occurs an election. Id., F.Supp. Whitfield, at 1373. Since get- it has some candidate occurred when just Chile instituted run-offs and re- ting percent to 40 of the vote has cently witnessed run-offs in Peru See, up ended “nominated” “elected.” Hungary. Surely cogent there are reasons e.g., Henry of Mr. Alexan- the discussion for run-off laws unrelated race. article, Primary,” der’s “The Double su- pra. person a Whenever is elected 2] [fn. Interrelationships Among e. The country, plurality vote in there the Four Statutes appears tendency to be a for the citizen- Both treat ry, legislative representatives, and their sepa- each of the four run-off statutes as agitated and concerned. become This rate each This treatment from other.

is understandable because Americans first, serves dual function: divorces traditionally been schooled recent run-off statutes from context of theo- notion of rule. The [fn. 3] long-standing preference historical ry gives is: a vote validation majority-rule shown in re- this State for credibility acceptance; and invites quirements; second, it makes it easier to plurality to lead lack of vote tends passage link of each elec- acceptance instability. statute with the black, ignoring tion of a candidate who concept of “majority-rule” dominates persons also won office with problem our national mind. But the support fewer than a third or fewer Many to America. other confined (i.e., short, In voters. this mind-set had to democracies have deal with it. it was race of than a candidate rather Recently, the had a “run-off” French the bizarre election results that motivated election. situation South Korea enactment), complex each ignores appears present governing to be that the forces, political and historical as well party get majority of the votes did decisions, judicial considered as Their elec- when the most recent election. a whole being challenged. toral make inference of racial dis- rules Mr. glaringly simplistic, perhaps said crimination Allende is to have been the truth, paranoid. even Marxist who was ever elected head recent stat- legislation of a He “package” democratic state. received be- utes form a aimed race, goal majority Hollingworth’s rule implementing rather than his small disregards race. plurality victory, in a manner that legisla- that motivated the explained. ture is never And for reasons (1) Act 168 1973 above, already discussed the State has been of the Little Rock Board of Members deprived in this opportunity case of the basis, at-large Directors are elected on an justification even offer a neutral for this non-partisan elections in which ballots at enactment. Rybicki v. Board Cf. party designation for candidates. show no Elections, supra. Allowed to move be- Ann., 14-47-109(d), as amend Ark.Code § record, yond incomplete and distorted (1989). ed, electing certain This method however, get very picture different municipal adopted officers in 1956 as was by majority. than one drawn at un-do part of a reform movement aimed corruption ing widespread scandal and Assembly At the time the passed General previously city’s existed in the that had 168, legislators Act black had been elected government. aldermanic form of Leader Assembly. to both houses of the General Rock, ship City v. Little Roundtable they It is reasonable to conclude that (E.D.Ark.1980), F.Supp. 499 585-86 opposition have voiced to Act 168 if Cir.1981). (8th aff'd, 661 F.2d 701 racially-motivated. the statute believed was passed Yet Act 168 both houses unani- earlier, Hollingsworth Mr. was As stated mously. The votes were 26-0 in the Sen- Di- elected to the Little Rock Board of ate, and 69-0 in the House. Journals of plurality rectors in 1972 with a November Representatives Arkansas House of amounting percent 35 of the total about (1973). suggests Senate This result then months, Arkan- votes cast. Id. Within justifications that neutral for Act 168 out- Assembly passed Act 168 of sas General concerns, weighed among legis- even black providing of Board of 1973 that members lators, might about the effect this law “preferential at Directors be voted on on black candidates and voters and under- primary” to be held two weeks before the mines the inference of racial animus. Sec- general election. A candidate at that first ond, it must be remembered that some receiving majority election vote legislative response following the election position certified for that on the would be Otherwise, by percent plurality of a candidate a 35 largest Board. the two vote- getters against would face off each other consistent a state that amended its con- general provide shortly Ann. af- at the election. See Ark.Code stitution to for run-offs 14-47-109(c) (1987). gubernatorial ter the nomination of a candi- percent by date 32 of the vote. See Act 168 could ever be used it was Before supra. Nor were re- Whitfield, Supreme Arkansas invalidated quirements municipal elections new. In Rock, City Little Court. Mears v. Rock, prior adoption city- Little (1974). Relying Ark. 508 S.W.2d 750 city manager government, aldermen were grounds, on state constitutional the Court general primary elected at both the that Act 168 would have disenfran- held by majority Leadership elections vote. voters, particularly numerous those chised Rock, City supra, Little Roundtable affiliation, party “pref- without because F.Supp. at 585. day with the primary” erential coincided Id., Ark. at party primaries are held. Third, if it was race that motivated the 363-62, directors 508 S.W.2d 750. Since legislature pass why a Act then did positions, likely non-partisan to be the State not so react back 1968 when a required to voters invalidation confusion candidate, Bussey, Mr. was elected to the Act. Id. Id., the Little Rock Board of Directors? likely explanation is that Mr. 588. One Hollings- Mr. is the coincidence of Bussey’s percent plurality election did passage election and of Act 168 worth’s the same alarm as the much not raise that leads the to conclude that victorious, smaller, re- nonetheless vote was his election. But statute motivated Hollingsworth. The differ- that it was Mr. ceived Mr. why the concludes 6 of the following ‍‌‌‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​​​​‌‌​‌‌‍and towns in the State. Section the elections ent outcomes municipal 14-47-109(c) Act, votes Ann. ex- by plurality Ark.Code blacks supports inference that government in mu- directors elections cludes board of point, below a certain by pluralities city-manager form of nicipalities race, of Act passage motivated rather than exemption proposed This was government. Brown, during the by Representative who looked decision trial of this case testified that she Finally, of the Mears the effect “jaundiced” eye into both with be- upon taken account Act must also be 905 with Assem- 168 and the General respect Act shortly proposed cause it after majority-vote provision bly’s most recent However, Humphrey. election of Marion did of 1989. Mears found in Act 905 this must Rep. position point on Brown’s re-enacting a prevent legislature from the seriously questioned, despite her because long as it requirement so was majority-vote intent, allegation discriminatory at trial of non-partisan of the scheme consistent with In supported passage of Act 905. she the A elections. General Board Directors of fact, passed the majority-vote the statute preventing on blacks Assembly bent unanimously with of 97-0. House vote winning municipal elections could re- Reports, 77th Legislative Arkansas Gener- majority-vote statute before the enacted a (herein- Assembly, (1989) Regular al Sess. Rock, Little when Mr. Holl- 1976 election sig- “Legislative Reports”). It is also after black candidates would ingsworth or other nificant there were four other black gain municipal attempt to office. again was legislators in the House when Act 905 made. Nor However, no such effort was they no being considered. Yet too voiced act in when Mr. legislature the 1978 did opposition at the critical moment of enact- city’s again elected to the Bussey was ment.13 Leadership Directors. Roundta- Board of victory, ble, in his Mr. at As earlier Rep. sponsorship does Brown’s of a Nor by plurali- Bussey year won election in mu- provision allowing plurality elections percent. one 46 ty, but of Id. a substantial of nicipalities city-manager the form with objection to an to the government amount manager so, adopting city the And since majority-vote general principle require- government form of Little Rock directors all, solely Section 6 does no more the basis of ments. First of have been elected on codify the greatest number of votes. than effect of Arkansas Su- receiving the require majority in 1973 to elec- preme effort More Court’s decision Mears. naught tions came to after Mears. And important analysis legislative in- candidates to despite the election black 905, tent, Act could be Section 6 of what since, Board of Directors no the Little Rock termed “Brown” Amendment requirements have been reen- vote Act, “Humphrey” helped would not have Moreover, by plurality in acted. Judge Humphrey, purportedly who was recently through en- city codified this was target Act. Nor would the “Brown” of Act Ark. actment of 905 § help Amendment candidates in mu- black 14-47-109(c) (1989), por- other Ann. Code § nicipalities mayor/city council concludes are tions of which government. form of Section 6 carves out discriminatory. jump It instructive exception effectively applies forward statute. then Meanwhile, very few cities in Arkansas. (2) Act remaining provisions Act 905—which Rep. apparently every Brown other earlier, Act 905 of As discussed legislator (1989) supported— black in the House Ann. 14-42-206 creates Ark.Code requirements municipal imposes for all primary majority-vote elections cities Senate, history piece legislative passed Act 905 with a vote defendants Legislative Reports. 23-6. was at likely developed giv- There would have had senator, time at and wheth- least one state majority-vote en notice that to be statutes were among voting opposition er he those an issue trial. least, very it is statute is unknown. At the municipalities most of the in the State. greatly significant conspir- that this This includes those areas where acy theory blacks con- has been raised for the first portion popula- stitute a substantial litigation time in this years fifteen —some tion, and where has indicated Although after the fact. the record con- might enjoin the use Act 905 tains numerous consisting exhibits of news- Rep. future. I would find that paper neither accounts of the 1975 may- Pine Bluff any legislator any race, Brown nor other saw oral passage and the of Act danger posed this statute to contemporaneous black vot- objection run-off simply ers or black candidates. It is provision disin- by any was raised candidate. genuous to conclude that a state law was Nowhere do Handley, we find Rev. discriminatory leader, enacted with intent when no other expressing opin- objection during legis- was raised ion at the time of the election that race deliberations, lature’s and when at played least passage a role of Act 269. In fact, some of those who make prepared now the accusa- as he against for the run-off supported passage. Moore, tion nonetheless Charles Handley expressed Rev. the belief that race likely play would not (3) Act 269 significant determining role in who the required This Act run-off elections for mayor next of Pine Bluff would be. PX mayors of cities the first class. The 30m. majority opinion passed states that was only Pine Bluff’s representa- black state in anticipation candidacy of the of Mr. Rob- tive, Henry III, attempt Wilkins did to in- black, Handley, ert may- a for the office of sert amendment that would have de- Again ig- or of Pine Bluff. the layed the effective date of Act 269 until history nores much of the relevant that is mayoral after the election. PX 30fff and and that it available chooses to conclude is PX 24 at 352. wanting His reasons for Handley’s candidacy self-evident that Rev. delay However, such a are unknown. as passage Again motivated of Act 269. indicates, the final Rep. House vote Wilkins majority wrong. any opposition did not manifest to the ma- passage years As in the Act 168 two jority-vote requirement general since he earlier, sup- Act 269 received unanimous ultimately oppose passage did not of the port in both the House and Senate.14 Once Act. Had he at the time that Act believed again legit- this raises the inference that motivated, racially 269 was it seems rea- imate, non-discriminatory justifications out- Wilkins, Rep. sonable to assume that weighed opposition majority-vote re- legislators, other well as black would have quirement apparently from those opposition —even voiced voting to the statute legislators present black who were then in against it. Assembly. the General political city climate of the legisla- It is clear that Pine Bluff passage time of the of Act 269 must also special passage tors took a interest in the Again be considered. this evidence does Although originally Act proposed support not the inference that race motivat- senator, passage a North Little Rock state Pine majority-vote require- ed representatives chiefly respon- Moore, Bluff In ment. F.2d Dove steering (8th Cir.1976), legislation through sible for appeals the court of af- Assembly. the General PX 30fff. How- firmed a district determination that court’s ever, proposition City that Act 269 was moti- at-large system of Pine Bluff’s presence electing city vated of a black candidate council members was neither mayor, in the race for rather than the created nor purposes maintained for the by plurality, discriminating desire to avoid an election against black citizens. scrutiny. evidence, assessing sig- cannot withstand the court found passed Legislative Reports 14. Act 168 of 1973 was in the Senate 69-0. at S-N-5. 26-0; House, with a vote of the vote was equally prove that are 30fff. But this does not racial ani- nificant several factors present case: mus. be ludicrous assume relevant to would politicians appreciate fail the im- (1) residents of Pine “that black having city portance apply run-off to a full, open, equal access Bluff have up- in an where the number of candidates city’s political processes;” coming highly likely that election made it (2) signifi- they play an “that active person would receive a city politics;” role in cant However, vote. that the race one of (3) although at-large system “the motivating played also five candidates designed to maximize the number of legislation simply a whole is role elected, minority it serves oth- candidates totality unsupported given of relevant [including the er ... creation values surrounding circumstances the election. every system in candidate which] Finally, constituency which can- it should be noted when the percent Assembly considering Act ignored impunity.” General 269, an limited amendment that would have (4) alike have “that and whites .blacks application Pine Bluff and North rejected overriding criterion race as the rejected by proposed Little Rock was city voting Pine Bluff candidates legislature. PX Had 30fff. the Gener- elections.” Assembly aiming only at the antici- al Id., at 1155-56. Handley, pated race of Rev. such a limita- finding, To illustrate the latter factual tion would be some evidence of such a appeals specifically referred to court rejection focus. The of this amendment involving mayoral Rev. application of Act 269 to all cities of Handley. strong the first class is evidence that —re- Mayor resignation Franks’ [Austin] discriminatory gardless the intent of April special elec- of 1975 necessitated a legislators legitimate, some few non-dis- — tion. Four white candidates and one in the criminatory predominated motives sought black candidate succeed Mr. passage Healthy, of the Act. Mt. su- See mayor. All of the candi- Franks as white pra. actively campaigned areas. dates black (4) Act 909 1983 the candidates received sub- One of white the the can majority To extent said to suppоrt, including active stantial black impute have felt reluctance to illicit participation of local black leaders his Assembly motives to the General and the precincts campaign. group In iden- a Governor, such restraint been out- being percent to tified as from 90 100 weighed by what as see the self-evi- black, percent white re- candidates duplicitous justification majority dent vote, percent ceived 25 one requirements. Again Judge note Ar- vote support high as precinct their was nold’s language: Yet, despite percent. as 44 this “diver- votes, candidate, sion” of black the black Devotion to rule for local offices lay Handley, long plurality sys- Rev. Robert received the sec- dormant as as produced highest ond of votes cast and tem But number white office-holders. election, sys- in a runoff he black thus was whenever candidates used successfully____[l]aws passed lost. tem attempt in an close off avenue of Id., at 1154. political activity. fully analyzed, picture that When Majority op. at 594-95. emerges support type does of con- above, is, spiratorial point compa- There I motives out proponents now support attach rative data record to newspaper majority’s assumption cite Act 269. Plaintiffs a that white candi- legislators repeatedly by article mentions dates had elected sim- provision] pluralities realized “the legislative response. effect run-off ilar without [the special would have on the election.” PX a What full trial would have revealed about

623 plurality only elections in Arkansas we can within two weeks of the election if no can- speculate. Yet this further vindicates municipal didate for office received a ma- process require- the wisdom of our due jority Brick, Fergeson of the vote. opportunity ments of notice and an to be 288, 289-90, (1983). Ark. S.W.2d astounding heard. It is when one com- In Assembly passed the General pares the in this case that in record declaring Act 175 run-offs would York, supra, v. City Butts New where apply only henceforth to those cities with legislative motive for the enactment of 61,000. populations 57,000 between Id. challenged truly a run-off statute liti- effectively This application limited gated. run-off law to North Little Rock and Pine The closest to evidence we come of dis- Bluff. Id. It was the same amendment parate plaintiffs’ treatment is recitation of legislature rejected considered and leading passage the facts to the of Act years two earlier when origi- Act 269 was requir- Ann. Ark.Code 7-5-106 nally adopted. Again, incomplete ing a run-off a candidate unless receives record leaves us with no information that general of the vote in the why legis- would allow us to determine county municipal Upon offices. changed passed lature its mind in 1977 and examination, however, closer it is clear limiting known, amendment. It is how- plaintiffs either misunderstood or misstat- ever, that the amendment received near leading passage ed the facts relevant support unanimous passing by the House of this Act. 79-2, Legis- vote and the Senate 30-1. According plaintiffs, Act 909 was Reports, supra. lative passed by Assembly quick the General significant This amendment is here for response plurality to the 1982 election of Chitman, man, purpose evaluating Act mayor Leo a black truth, Mеmphis. Again, according passed, had Act 175 of West 1977not been plaintiffs, runner-up the first and white Mr. Chitman would have been forced into a incumbent, Mayor Joyce Fergeson, had her- mayoral run-off in his race for Mem- West plurality. self been elected was, phis. plurality. As it he won Thus, plaintiffs argue: The effect of Act 909 of as far as Mr. concerned, Fergeson The fact that had been elected Chitman is is that it returned plurality prompting a without enact- the law to the status that it was in immedi- requirement ment of a runoff demon- ately after the enactment of Act 269 of strates that was the fact that Chitman requiring idea that the 1975. So the law black, percentage rather than his mayors run-offs for of cities of the first vote, spurred legislature the into passed response class was first to Mr. action. simply election in 1982 is Chitman’s legislative That intent true. same had Plaintiff’s Post-trial Brief at 93. long expressed the 1975 Act before Plaintiffs misstate facts. candidacy. his discussing passage Before so- mayor the 1982 election for West Act, necessary called “Chitman” it is to Memphis, narrowly Leo Chitman defeated briefly majority-vote review the state of Joyce Fergeson margin percent of 0.8 municipalities requirements for most imme- gained majority. Neither of the vote. prior already diately passage. to its As percent plural- discussed, Mr. Chitman received a 27.9 long Chitman-Ferge- before the ity Fergeson race, per- while Mrs. received 27.1 provided that all son Act 269 of 1975 provisions cent.15 the run-off of Act mayor/council first-class cities forms Since longer applied Memphis, 269 no to government, including City of West West Memphis, required to hold run-offs Mr. Chitman was certified the winner. were 7,636 represents percent 15. A total of were cast for the field less than one of the total ballots 2,130 (0.8%). of six candidates. Chitman received votes votes cast 2,069. difference, votes, Fergeson and This 61 624 county defeat, existing Fergeson Mrs. run-off statutes

Following her constitutionality Act municipal thing, For challenged the offices. one then Specifically, sought she only 175 of 1977. applies of illicit motivation evidence amendment on of the run-off invalidation portions municipal elections ground that its limitation first-class minority popula- with substantial seemingly narrow arbi- cities within a another, plaintiffs And for at the tions. range trary population violated the State trial in argument at the close of the oral Brick, supra, Fergeson v. constitution. such case disclaimed desire for this Ark. 652 279 at S.W.2d They bring up the of mu- relief. series agreed constitu- Supreme nicipal run-off statutes as The Arkansas Court grant Fergeson the relief justifying preclearance declined tional violations of Mr. Chit- sought, namely, 3(c). invalidation Whether and to what under Section The court ex- mayor. man's election extent these statutes continue be Fergeson consciously had Mrs. plained that case-by- validly applied be left to a must challenge Act an earlier forego chosen to in the determination future. At case that the new although she was aware much, If though, can said: least this elec- would mean that amendment candidate leads the first Memphis thus be decided could tion West required in a then is defeated run-off Fergeson’s plurality. Noting initial by a Ann. by either 7-5-106 Ark.Code § law, in the change disinterest with 14-42-206, will the election be vulnera- explained Supreme Arkansas Court “[s]ince challenge. strong to a constitutional ble percent vote she received about So concludes that these while election, complain she did not the [1980] in violation run-off statutes were enacted Id., S.W.2d about [Act 175].” Constitution, and further concludes Fergeson had plaintiffs’ So statement such violations constitute the basis by plurality elected in 1980 .herself been order, preclearance still it does the Court’s is false. them hold invalid! not strike down or them decision, the Following Fergeson they Having purpose, served their are left passed requir- Act Assembly General wind,” “twisting speak, so to county municipal in all ing run-offs great confusion of the citizens of this Only municipalities with the elections. State. city-manager government, form Rock, The effect Little were excluded. result; enjoin Why strange why Ar- was to remove limitation the enforcement of statutes arbitrary had found Supreme kansas Court Because, unconstitutionally enacted? However, contrary plain- Fergeson. told, thing, “For evidence of are one tiffs’ there is no demonstration assertions only municipal applies to illicit motivation spurred legislature to action portions in with sub- elections simply a black candidate had been because minority populations.” Majority stantial Rather, legislature act- mayor. elected op. saying n. 7. the Court that at Is in reasonably ed to correct a defect recent- enjoined the enforcement of stat- ly statute well as to avoid invalidated utes, only in certain that could be done future, election results bizarre or areas with “substantial minori- counties Imposed f. The Remedies ty areas with “in- populations” but minority populations? substantial” And Having that ruled the enactments explain majority that note does violated Constitu- four run-off statutes tion, many means opinion then to the what it “substantial.” So turns State, remedy. possible The candi- consequence in terms of officials of interesting regard dates, most statement in this speculate are left how the federal to opinion: its found footnote to will deal the use of the run-off courts Obviously very in statutes their areas. This not mean that our decree does enjoin unhealthy this case will the enforcement situation. majority’s you reason for the deci- to telling

Another declare the winner. And it is enjoin the you sion not to enforcement of the you “strong that have constitutional existing run-off statutes is: “Plaintiffs ... challenge” you and that do not have to any desire for such Ma- disclaimed relief.” your conform to the same rules as white op. already n. I jority at have opponents. judicial Shame! The enthrone- expressed reservations about courts’ leav- ment of unprincipled chance and racial ing up the choice of remedies to the “de- preference! parties, Clinton, sire” of the see Jeffers And if we going give prefer- racial 262-63, supra, F.Supp. but I also ences in this unprincipled game judicial question why do not seek to roulette, what standards shall we use for enjoin the enforcement of those run-off qualification? racial If the father of the they statutes. Could it know such be leading candidate after the first election is discriminatory statutes effect and white, black and the mother is that suffi- only can be useful in the Whit- grandparent cient? If one is black trap unwary? context as a for the In

field whitе, rest of the ancestors enough? is that words, way other when the law is clear one potential Just who are the beneficiaries plurality-win or the other that either ruling? this race-conscious majority-win apply, rules there racial- is no ly discriminatory effect. But if a run-off IV. CONCLUSION placed

statute is left in effect but under a cloud, judicial opportunity then is sensed— my dissent, point earlier I made the equal opportunity. albeit not fair and The preferences while race conscious validity holds that of the run- might withstand constitutional muster case-by-case statutes “must left to a off be areas, certainly they other cannot in the determination in the future.” Then it political attempted point arena. And I states: dangers majority’s out the inherent If a black candidate leads in the first contrary position particularly appeal — election and then is defeated in a run-off separateness parochialism. Others ... the election will to a be vulnerable different have noted causes this retreat strong challenge. constitutional “melting pot” from our tradition. For in- Id. stance, Schlesinger, Professor Arthur com- menting April on “Ethnic Studies” further states: Journal, 1990 Wall Street states: requested equitable

Plaintiffs have not respect relief with particular melting pot was one of those meta- statutes, majority-vote except pre- phors partly turned out be itself, equitable clearance relief true, years and recent have seen an as- injunction the nature or a declara- of an tonishing repudiation of the whole con- tory judgment clearly justified, Many today right- ception. Americans especially prevent from statutes eously reject goal the historic of “a new being deprive used in the future to contemporary race of man.” The ideal is receiving plurality black candidate ethnicity. The not assimilation but es- running. the office for which he or she is cape origins given way prejudices search for “roots.” “Ancient op. Majority at 600. religion, the and manners” —the old-time Let us call this the “Jeffers invitation.” surprising old-time made a diet—have Frankly, I this solution to be un- believe comeback. candidates, seemly. says It let to black opposition developments portend your believe that the run-off These a new turn laws are in effect and will be followed. in American life. Instead of a transfor- you preferential pri- Then if lead in the mative nation with a new and distinctive increasingly mary, you identity, will have it made whether or not America sees itself you Why? preservative win in the run-off. Because of old identities. We you say pluribus invited e unum. the federal court has to ask used to Now we majoritarian deci- belittle unum. The have with democratic glorify pluribus and yields sions, of melting pot the Tower Babel. those courts would do well to remem- their distinctive inheritance as other We should take ^[******] inheritances. pride in' our distinctive nations take pride in Rule. great peril! ber that the whole American bottomed on the We sacrifice that principle that principle enterprise is The People at our melting pot points linguistic bonds of cohesion ficiently fragile, or so it seems to encouraging heritance that us, own culture into If we enclaves, ghettos and ^[******] we it makes no sense to strain them repudiate invite the apartheid. and history the in our exаlting cultural and fragmentation quarrelsome spatter quite republic society rejection marvelous bestowed on tribes. are suf- of in the me, our in- tion of There conclusion lished ty’s wrong ter filed ing equitable relief within the State of kansas ously I believe the issues, today —bad expressed in its being Voting preclearance, with I must dissent constitutional violations on the constitutional issues wrong. no other Rights respect majority’s Act and Therefore, predicate opinions on Section I must also dissent to voting from views as have estab- the for on the justify- opinion imposi- majori- rights. previ- Ar- lat- majority’s grant under from relief and chaos. direction incoherence 3(c) Section of the Act. political preferences are Once race based quickly gain the will status accepted, it will be “group right” of a JUDGMENT retreat. we slide most difficult to Once opinion In accordance with the filed to- slippery slope, it will be down that almost CONSIDERED, ORDERED, day, it is AD- n ground impossible high regain JUDGED, and DECREED follows: purity reflected in the con- constitutional respect 1. The final order with cept equality. total Rights Voting claim under Section required, is what all must insist What 5, 1990, Act, incorporated filed on March is upon, equal opportunity fair for all is and herein reference. participate political process —noth- request preclear- The plaintiffs’ more, ing is nothing less. This what 3(c) Voting under ance Section Rights Act and our Constitution

Voting Rights granted part, Act no vot- is and require. energizes This principle voting, ing qualification, prerequisite to or spirit American at its best. because standard, practice, procedure re- or great majority of our citizens believe voting spect to different from that force imperative equal fairness and in the or effect at the time this decree entered progress in opportunity that have made shall be enforced unless until never-ending against discrimina- battle qualification, prereq- finds that such Court tion. the law stands for fairness and When uisite, standard, practice, procedure or does equal opportunity, respected it is and fol- purpose and will have the enthusiastically, lowed—often sometimes denying abridging right effect But let law grudgingly, but followed. color, vote on of race or or in account special privilege and racial or stand voting guarantees contravention of set rule, language preferences, minority or for 1973b(f)(2) forth in of Title 42 of the dynamic new of resentment takes Code; provided, States that such United over, fueling arguments erstwhile standard, qualification, prerequisite, prac- bigots enervating discredited and con- tice, procedure may among be enforced fusing the fair decent us. At standard, history qualification, prerequisite, prac- very in our when the moment tice, procedure rising day dawning, sun is a new has been submitted And, legal appropriate law us the chief officer or other should not force backward. despite any impatience Attorney federal courts official of this State to the Gener- al, Attorney and the General not inter-

posed objection days within 60 after submission; provided further,

such

provisions and restrictions contained

paragraph voting quali- 2 shall be limited to

fications, prerequisites voting, stan-

dards, practices, procedures imposing relating majority-vote ‍‌‌‌‌‌​​‌​‌​‌‌‌‌‌​‌​‌‌​‌‌​​​​‌​​‌‌‌​‌‌‌​​​​​‌‌​‌‌‍requirement to a general elections. Paragraph judgment

3. 2 of this shall

remain in full force and effect until further

order of this Court. plan apportionment adopted by

4. No Apportionment

the defendant Board of Assembly

the Arkansas General after the may go

1990 census into effect until 60

days elapsed the date final of its

adoption the Board. This Court retains

jurisdiction, period, within that time for the

purpose entertaining any challenge by plaintiffs plan. this case to such If challenge forthcoming,

no such plan effect, however,

may go subject, into

right aggrieved challenge citizen to appropriate

it in an action at a later time. respects request In all other preclearance is denied. jurisdiction

6. This Court retains for the orders,

purpose entering other

any, may necessary to effectuate this

judgment.

It is so ordered.

Anthony JOHNSON, Plaintiff, D. SULLIVAN, Secretary

Louis W. Services,

Health and Human

Defendant.

No. LR-C-89-881. Court,

United States District Arkansas,

E.D. W.D.

June

Case Details

Case Name: Jeffers v. Clinton

Court Name: District Court, E.D. Arkansas

Date Published: May 16, 1990

Citation: 740 F. Supp. 585

Docket Number: H-C-89-004

Court Abbreviation: E.D. Ark.