Jeffers v. Clinton

for Milwau- Court back to Circuit plaint and analysis Cannon Supreme Court’s kee, granted. is deter- is not outcome Wisconsin this factor held that minative: plain- IT IS FURTHER ORDERED fact that a supra, as discussed And attorney’s motion for an award tiffs’ the control exercises corporation parent expended on their mo- costs fees and full necessarily incident which is is denied. to remand tion subsidiary insuffi- is ownership of its more, justify ignoring

cient, without entities.... corporate separate corporate formalities long as ... [A]s case, observed, they were this as designed subsidiary was fact that the [parent] Ltd. CompAir

as a “conduit” corporate ignore not a reason

is separation.... Porter, Evangeline JEFFERS, Al M.C. having no value in can ... discern [W]e Collins, Duffy, Brown, Clyde Earl O.C. get mired courts federal district Gaylord, Foster, Shir Rev. Elihue unnecessary hopeless and down in Harvell, Shelby, Jef ley J.C. M. Linda power internal deciphering task of McDonald, Joseph fries, Per Lavester cor- parent on between struggles going Patterson, Richardson, ry, T.E. Clinton subsidiaries. and its poration Smith, Simpson, Brian Earnest Cannon, 837; 267 U.S. F.2d at Topp, 814 Statewright, Behalf Charlie Thus, considering 250. 45 S.Ct. at Similarly All Others Themselves ego alter doc- by the utilized the factors Plaintiffs, Situated, Capi- conclusion that leads to the trine also v. place of principal business Bankers’ tol CLINTON, Capacity as in his Bill Official Wisconsin. and Chairman of Arkansas Governor FEES AND COSTS II. ATTORNEY’S Apportionment; Arkansas Board pursuant argue that McCuen, Capacity in his Official W.J. 1447(c) court should to 28 U.S.C. § Secretary Arkansas and of State of as fees costs attorney’s them award Ap Board of the Arkansas Member be their remand motion associated Clark, in his portionment; and Steve estab evidence of “the substantial cause Attorney Capacity General as Official prin Capitol Bankers’ as lishing Wisconsin of the Arkan and Member of Arkansas recognized cipal place of business Apportionment, Defen sas Board ego of alter doctrine use prohibiting law dants. agrees that This court jurisdiction.” create No. H-C-89-004. establishing evidence is substantial there principal Bankers’ Capitol Wisconsin Court, District States United Circuit, The Seventh place of business. Arkansas, E.D. E.D. whether however, yet determined has not Dec. 1989. applicable ego doctrine the alter or not subsidiary corporation’s determining Judge Eisele Dissenting Opinion First addition, place business. principal Dec. Leach, unaware of this court is other Dissenting Opinion Concurring and Second enun Circuit has the Seventh a case where 26, 1990. Eisele Judge Jan. ego of the alter interpretation ciated its Thus, position in defendants’ doctrine. justifiable

support of removal good faith.

made ORDERED

IT IS THEREFORE com- for remand of their motion

plaintiffs’

P.A. Hollingsworth, Rock, Ark., Little Simes, II, L.T. Helena, Ark., West Kath- 16of a total findWe black. Jr., tion Neal, Ma- Oily Ark., Helena, Bell, leen Senate districts, three Ark., Dermott, Glover, Ark., E. rianna, Don created, and have been House, could L. Donna D.C., Washington, Hair, D. Penda rea- L. these Cham- City, Julius York Dennis, New fur-We compact. Sherrilyn and contiguous sonably and Cunningham Dayna L. bers, the of Inc., areas the Fund, voting in find Defense Legal ther Ifill, NAACP Thomas, markedly polarized Y. is Sheila question and in City, State York New usually Washington, Inc., voters and black Legal Defense Both NAACP race. Black race. own their of plaintiffs. for candidates D.C., prefer They exer- powerless. from far are Of- voters General's III, Atty. Wills, J. Frank influ- decisive sometimes significant, cise Ark., for defendants. Rock, fice, Little of a candidate elect can But ence. vot- the EI- Judge, in which choice, a district ARNOLD, Circuit in their Before white, only if HO- and Judge, majority is District SELE, population ing-age Chief foreseea- the Judge. For WARD, is white. District candidate legisla- of location future, present the ble Judge.* ARNOLD, Circuit very difficult make lines will tive district out legislators, Appor- of six black Board than more Arkansas to elect 1981 the Governor, members. 135 then of the houses consisting of in both tionment, total aof General, Attorney people though black State, and even Secretary of so is this And cent, apportionment total of the plan of per effect into 16 placed about up make Seventeen Assembly. Arkansas. General of the for the State of population 1 claiming the suit, bring this electors less have situation, citizens In this Rights Voting the 2 of Section plan violates the of members other opportunity 1973 amended, 42 U.S.C. 1965, § ofAct their of representatives to elect electorate Fifteenth and Fourteenth seq., and the et 2(b) of a violation This choice. the Constitution Amendments 1973(b). Act, 42 U.S.C. § Voting Rights the hold tous They ask States. United opin- this in explain shall we reasons For House Senate arrangement of existing a violation proved have ion, plaintiffs plan into new unlawful, order districts called State areas of the all law elections, place the 1990 for effect Pulaski except for suit, by this question preclearance under of Arkansas State elections more no holdWe County. 3(c) of the in Section out laid procedure ap- 1981 unlawful under held may be 1973a(c). Act, 42 U.S.C. § Rights Voting bewill defendants The plan. portionment Nu- days. for twelve evidence heard We force any further giving from enjoined We have us. before exhibits merous plan new, lawful A plan. to that effect re- due proof with carefully considered for place to be drafted, in time must nature intensely practical gard filing period elections; the year’s next hold We now process. Tues- third on begin will elections these a violation demonstrated Ark. See 1990. in March—March day 1981 The law. federal rights under parties The (1987). 7-7-203(c) Ann. Code § legis- only five created plan apportionment compliance plans submit are directed four Senate one positions, lative 15,1990. January before oron Court to this districts House, representing duty emphasize especially We voting-age popula- majori single-member includes * This number Judge 2. Ei- opinion. joins this Judge Howard County, which Crittenden concurring ty-black district opinion, separate file will sele v. Clin in Smith effect into See ordered Court course. due part, in dissenting in part and id. adopted, remedy ton, F.Supp. 687 p. 219. infra - U.S. -, 109 mem., (E.D.Ark.), 1361 certifica- aff’d for class a motion made 1. Plaintiffs (1988). L.Ed.2d S.Ct. untimely. was not It tion, it as denied as re- complaint, days within filed quired E.D.Ark.R. defendants, present members ton, supra) adopted 28, 1981, June Apportionment, Board of plan. submit a by a vote of two to one. Governor White The responsibility complying with the dissented. plan created 35 single- primarily law theirs. Promptly after member districts for the Senate. Of the January 1990, we will convene an evi- 100 House, members of the plan called dentiary hearing on the remedy, if neces- for 74 to be elected from single-member sary, and thereafter enter an order em- multi-member dis- bodying plan (We a new directing note, tricts.3 that it be parenthetically, only used for the legislative two of the elections. multi-member districts in the House are in the area of the State towards opinion today we file decides which this suit is primarily addressed: the plaintiffs’ statutory claim under Section 2 two-member district in Crittenden County, Voting Rights Act. Plaintiffs’ con- longer no which exists because Smith, of stitutional claim request pre- and a three-member district Pulaski clearance remedy as a for constitutional County. This three-member district has a violations remain under advisement. We majority-black voting-age population, and questions will decide these in a second writ- all three of its Representatives State are opinion in ten due course. ruling Our lawsuit, black. however, This pri- is not statutory require claim will substantial marily single-member about versus multi- adjustments in existing apportionment member It is districts. about dilution of plan. If relief tois for next effective strength. We see no reason year’s elections, is of time the essence. We why the multi-member districts in other proper therefore think it to file opinion, this parts of the by State be affected process which will start the of re-drawing granting.) relief we are lines, promptly. time, We need how- plan Under the adopted in ever, two to consider the hard of issues intent House districts voting-age had a population remedy plaintiffs’ constitutional that was black—one of the three- raises, claim and we do not delay wish to member County districts Pulaski and a whole case we take while that time. single-member district in County. Jefferson (We voting-age-population (VAP) use per-

I. centages because are the numbers Apportionment The Board of is created purposes relevant for voting, of which is VIII, Article 1 of the Constitu- this case what is about. Under the one- present tion Arkansas. Its person, members are course, one-vote principle, of which Clinton, Governor Bill Secretary requires of State legislative districts be sub- McCuen, Attorney Bill General Steve stantially equal4 in population, it is total They Clark. are defendants in population this case. counts, regardless of age The Board’s in 1981 were members Gover- eligibility to vote. But this case is about White, Frank Secretary nor Paul State effective use franchise, of the elective Riviere, Attorney General Clark. The equality population. Black VAP num- plan presently (except in effect modified as run consistently bers lower total-popu- County by as to Crittenden v. Smith Clin- lation numbers areas affected by this Smith, consequence 3. As a of our Substantially greater decision leeway, in terms devi- supra, Representatives equality, ation are now from chosen absolute is allowed in the districts, drawing districts, single-member legislative of state opposed and 24 as from multi- drawing (U.S. congressional to Representatives) House member districts. Fifteen of House plan districts. The 1981 al- chosen members from multi-member districts legislative lowed districts to deviate as much County, from Pulaski which is divided into cent, per as five above or below the ideal size. districts, five three-member House one each Supreme Court has indicated that a devia- single-member with a coterminous cent, per tion as much ten above or below Senate district. upheld. the ideal size can be Connor v. See located districts VAPs including black opinion point insert suit.) We re- (an area Mississippi River along the each 1) showing (Map Arkansas map of Delta). as the areas, ferred affected House great- containing the State area concentrations indicate areas The shaded none people, of black concentration to note est important It is population. drawn, had plan was them, as the 1981 are located although these Finch, L.Ed.2d 97 S.Ct. 431 U.S. (1977).

majority-black plan VAP. Senate fol- person tricts. No black has ever been pattern. single- lows the same Of the 35 Legislature (in elected to the State this districts, only member Senate one has a century, anyway) from a district that did majority-black VAP. We insert at majority-black not have a VAP. point Map which shows the Senate dis-

II. apportion- that it filed too was late. The plan challenged 1981, ment adopted was get Before we substance case, January but suit was not filed until the we must deal with defendants’ laches,5 argument by election, that the is Only suit barred 1989. one that of re- laches, plea governed by any The is limitations. This is a it is statute of limitations. equity, argue suit in and defendants do not 202 ef- dilutive the only with There, dealt be must State the run before to be

mains relief The district. two-member of one fect 1990 the because anyway, reapportioned no There district. only that affected say, case, defendants this So Census. bound- district’s other No effect. ripple still are plaintiffs If dismissed. be should Smith, 687 See disturbed. aries reapportionment, 1991 after unhappy would there here But n. 4. 1313 F.Supp. at rejected Court This then. suit file they can claim Plaintiffs effect. ripple some be Clinton, v. Smith contention similar (13 in the as many as be should there defendants But at 1312-13. F.Supp. dis- Senate) majority-black House, and claim argument press earnestly sim- accomplished be cannot Relief tricts. We distinguished. be can that Smith existing more one dividing up ply length. at some point address therefore single-mem- If the districts. multi-member It defense. equitable an is Laches them, are any of requested, or districts ber is unreason- if suit essentially this: means adjacent some created, the boundaries preju- causes delay this delayed, and ably ex- to some necessarily shift will equity defendants, a court dice ef- ripple assert Plaintiffs tent. greater complaint. may dismiss State’s to 26 be confined will fect unreasonable, the more delay, or east and south counties, them all of shown; vice need be prejudice State less splitting roughly line diagonal facts weigh must Court as southwest, versa. even northeast sides, up summon on both interests changes necessary limited so chancellor, remember aof occasioned discretion those substantially greater legal conscience a court is by Smith. ato can as it close stricture, come compare mind, we argument With some there Frequently result. fair prejudice. defendants’ delay to plaintiffs’ is sides, on both arguments good running clock start reasonable It is our quoting start We here. case Court Supreme when on June Clinton: v. in Smith issue discussion Gingles, v. Thornburg down handed by the alleged First, injury L.Ed.2d 2752, 92 30, 106 S.Ct. U.S. time each anew continuing, suffered the law star pole This (1986). case un- is held election Representative State can decision this Only with in this area. Second, there structure. [illegal] the present der The jelled. to have said law be the since developments significant in been intervene have to leave for moved plaintiffs reapportionment. Arkansas than 1,1988, 1981 less the June on v. Clinton Smith in amended Act was Voting Rights denied was motion This years later. two interpre- Court’s Supreme denying and order July 1988. on v. Thornburg bring in could the statute of plaintiffs tation suggested motion 2752, 92 six S.Ct. 106 about did 478 U.S. suit, Gingles, which separate 14 rather down about lays filed (1986), was 25 Suit L.Ed.2d later. months appli- for filing deadline structure uncompromising before months Smith, 687 cases. (Compare vote-dilution in the law of elections. cation 1990 had are candidates 1312, which in Third, F.Supp. note at we chal- campaign of that, result aas to begun prove to and required filed hearing on of the time structure, at the a white lenged district challenged injunc- pre- preliminary defeat to motion able usually plaintiffs’ is bloc enormous an takes Of case minority. of tion.) sort This of candidates ferred plain- it is preparation, circumstance of this of amount course, evidence prepare time they took the struc- credit unless tiffs’ unavailable be would This coming court. time. before thoroughly for some it place had been ture de- some contain does events of sequence at 1313. F.Supp. reasonable. it was of all if not most lay, but here, but present are factors of these All As to defendants? prejudice about What different. Smith claim defendants disruption trouble, and expense, noted, the Brief, 2 n. Post-Trial Defendants’ See (assuming, compliance earlier, of as must filed we think that fairness analysis, stage this of the the com- equal opportunity voting are worth merit) substantial, plaint some will has be it. We will not say to these plaintiffs, so than in the ex- more Smith. But “Wait for another census. The is time trouble, pense, disruption a yet ripe.” They have heard these words consequence plaintiffs’ delay filing. many past. too times in the They whenever the occurred filed, it suit was filed—even if had been III. say, right passage after the 1982amend- We turn now to the merits plaintiffs’ Voting Rights There ments to the Act. Section claim. As amended in public some additional increment confu- statute now reads as follows: by changing sion will be caused dis- abridgement right 1973. Denial or § less two trict lines than months before to vote on account of race or color filing opens, and less four months through voting qualifications pre- or primary before the first It is also election. requisites; establishment violation true that the census data relied on both (a) voting qualification No prereq- or presumably sides—and that will the ba- be standard, uisite or practice, or any sis of plan—become remedial increas- procedure shall imposed applied by or ingly passes stale as time after any State or subdivision census. But no means clear that manner which results denial data, they may these inaccurate however abridgement right of the of any citizen of numbers, become terms of absolute will the United States to vote on account of also be inaccurate in relative terms. On color, race or or in contravention of the contrary, what evidence we have guarantees set forth section subject that, although population indicates 1973b(f)(2) title, provided as a whole has declined in the affected (b) subsection of this section. State, proportions areas of (b) (a) A violation of subsection virtually blacks and whites have remained if, this section is established based on the Testimony Engstrom, constant. See of Dr. circumstances, totality of it is shown that Morrison, Benham, Represent- Dr. Senator political processes leading nomina- McGinnis, Representative ative Cun- tion or election in the State or ningham. And in event the staleness equally open par- subdivision are not escaped. census data cannot be ticipation by of a of citi- members class For theory, even under defendants’ protected by (a) zens subsection of this dismissed, is that the case should be section in that its members have less run in elections will be districts based opportunity than other members comparison on 1980 census data. The true participate electorate to in political (by hy- is between out-of-date districts that process representatives and to elect pothesis) vote, dilute the black and out-of- their choice. The to mem- extent which date districts that do not. protected bers of a class have elect- been question essentially judg- The is one in political ed to or office State subdi- degree. Logic absolutely ment and cannot vision is one which circumstance In judgment, exclude either answer. our Provided, nothing That in considered: part, the defense of must fail. In laches right this section establishes a to have expense disruption and undeni- will protected class members of elected ably nothing consequence occur are but a equal proportion in the numbers to their wrong that has been done. population. illegality, injury, beyond extend a sin- gle district, The statute a “results” remedy and so the must be embodies (like voting practice procedure A or applied necessarily be test. will more trouble if apportionment plan) than To an violates the law it it was Smith. the extent that abridgement disruption electoral confusion and exceed results denial right they what have if the case had to on of race or color. vote account (footnote omitted). By effects, F.Supp. at 1317 or 687 purpose on focuses The law 1989, 2, the first (b) order entered October adds a further Subsection motivation. ease, we made the day of the trial in this consider we are to to the courts: direction circumstances,” findings. same which is totality of “the facts,” and language for “all the lawyer’s Moreover, argument purely fails protected whether members of decide if logical linguistic and matter. Even as a opportunity than other less class “have opportunity to less to plaintiffs failed show participate the electorate to members of process, political a show participate represent process to elect political they opportunity less to elect ing that have choice.” of their atives of their suffice to candidates choice would right protected their claim. establish A. opportunities— these aggregate is right participation legal effective outset, make two At defendants of a system: essence alto- the action arguments “[t]he § that would bar law, prac is that a certain electoral First, they say that claim if gether successful. tice, 2(b) social and or structure interacts with language Section plain under the inequality things: conditions to cause an historical separate two must show enjoyed by the black par- opportunities (1) they opportunity less have (2) preferred and white voters elect process; ticipate at repre- representatives.” Thornburg, U.S. they opportunity elect have less example An they if 106 S.Ct. at 2764. choice. Even of their sentatives runs, second, less exalted field of human endeavor will argument have shown you say point. Suppose case, they illustrate because they cannot win this putt you ability chip than showing. There are I have less first cannot make the you good chipper as just do. If am as existing legal to vot- presently no barriers are, good putting, Arkansas, not so at this state ing by black citizens ment, ordinary speech, as a is just opportu- matter much therefore It a true one. is combination political process as still nity participate in the green) qualities (play around that we anyone else. discussing, comparison and the be to reckon with the argument fails This aggregates respective totals or tween our past effects of racial discrimina- present qualities. So in the context of of these tion, governmental. of it official and much 2: is a combination abilities Clinton, made the follow- v. Smith franchise) (abilities to use the elective ing findings: comparing. If I can vote at will but we are (1) judicial notice that The Court takes political ability is anyone, my never elect of racial discrimination history there is a Elections, winning yours. less process Arkansas. See in the electoral them, point voting. This are the whole Helena, F.2d City v. West Perkins is, rate, reading one of the statute (8th Cir.), mem., 459 U.S. aff'd available, and the grammatically (1982). L.Ed.2d 47 103 S.Ct. liberally in fa should be construed statute history of do not that this We believe up open is to object, of its which vor discrimination, the exercise affects process participation. full electoral all elections under right to vote in of law, proved anew in each Second, argue state must be also that defendants Voting Rights under the Act. case just apply 2 at all to cases Section doesn’t single-member districts. Both history involving (2) further that the of We find Smith, they say, were mul- Thornburg and adversely op- affected discrimination has health, Single-member district cases. citizens in ti-member portunities for black submerge majority no one. The education, hang- districts employment. any wins, democratic that’s inherent in necessarily inhi- but history this over from reading of this pro- system. disagree We with participation full bits Nothing of the stat- in the words the law. cess.

205 nothing particular 2 supports says context, ute it. Section on the factual including kind of It is directed about districts. all of the Thornburg, Smith, factors that effects, regard- against certain described legislative and the of 2 history say Section less form of the device or are relevant. produces Thorn-

mechanism them. sure, burg, to is a multi-member district be B. (in Court, is),6 Supreme case but it first major We address the Thorn- implies particular configuration a factors, burg factors present that must be can rise to single-member give a predicate if the of a vote-dilution claim is to 16, claim, 478 at 50 n. vote-dilution see U.S. evaluating claim, be laid. a Section 2 16, principle 106 at S.Ct. 2766 n. and in the Court must first determine whether why there no reason this should not be is preconditions three legally to a substantial Accord, Coleburn, F.Supp. so. Neal v. impairment plaintiffs’ ability to elect (E.D.Ya.1988) (county single-member candidates of their choice have been met. voting strength vio- districts dilute First, minority the claimant must establish 2). lation of Defendants cite Butts sufficiently is large geographi York, (2d City v. New F.2d cally compact to constitute a majority.in a Cir.1985), pre-Thomburg opinion, a for the single-member Second, district. plain proposition that won’t vote-dilution claims tiffs must show that group to which respect single-member districts, lie they belong politically is cohesive. Thorn- It not so read the case. holds we do burg, 50-51, atU.S. 106 S.Ct. 2766- requirement particular that a device—the Third, minority voters must show gets if no candidate a run-off 40% “majority that the votes as sufficiently a partic- a vote—does not violate Section 2 in block to it—in special enable the absence of choosing single offi- ular electoral unit a circumstances, such minority as a candi cial. dilu- It does hold unlawful running unopposed date ... to defeat the impossible tion is when multi-member minority’s preferred candidate.” Id. at single- body’s members are chosen from (footnote omitted). 106 S.Ct. at 2766 member districts that have been drawn in by proving latter two factors can be shown way split class certain voting jurisdiction highly ra among voters different districts. cially polarized. Accord, Smith, Ibid. agree Thornburg We and Smith F.Supp. at 1314-1315. automatically applied cannot be sin- gle-member place, context. Dilution In the first we find that black Smith, much obvious in a case more like communities areas the State chal potential majority lenged by large voters sufficiently where a are submerged geographically compact in a two-member district. constitute principle single-member But is the If the basic same. lines districts. This majori- finding primarily testimony that limit the number of on the drawn based single-member districts, plaintiffs’ expert, ty-black Jerry and rea- Wilson. al As compact contiguous ready noted, sonably majority- testimony, together this taken drawn, black districts could have been and with the details set out Mr. Wilson’s great report, if racial cohesiveness in is so PX establishes that the Board of that, matter, drawn, practical Apportionment as a black voters’ could have preferences majority-black frus- black candidates are thirteen House districts system apportionment, majority-black trated three districts. Senate theory outlines of a Section 2 are made out. These districts could drawn depends will are the focus Whether such claim succeed the areas of the State which single Thornburg originally Court this plaintiffs 6. district. District found had district, single-member challenged one single addi- violated and the defen- district districts, being the re- tion to multi-member appeal finding. Gingles v. dants did Edmisten, this See fracturing sult of the of a concentration (E.D.N.C.1984). F.Supp. up majority could have in a voters that made Senate, House districts native convenience For suit. this opinion respectively.7 point insert reader, we alter- Mr. Wilson’s showing 3 and Maps own, they will plan of portionment necessarily districts," rather "alternative term useWe dis- alternative these bound stage thisAt districts." “proposed suggestions, make also should Plaintiffs tricts. show need plaintiffs stage, liability case, the dur- defendants position, reflecting their fully could majority-black only defendants’ preparation process case, ing stage of relief theAt drawn. plan. ap- an submit will, presumably, when maps indicate, As the some of the dis- Defendants question compactness look strange, contiguity plaintiffs’ tricts rather but we do not alternative dis- tricts, but, with perhaps one exception, all believe this is plaintiffs’ position. fatal to questions of these have been resolved to Their alternative districts are not material- our satisfaction. Initially, defendants took ly stranger shape than at some least position that some of the alternative the districts present contained appor- put by plaintiffs forward con- plan. tionment one-person, one-vote “islands,” is, tained completely areas inevitably rule requires county lines district, surrounded the alternative natural barriers be crossed in some part criticism, of it. This particular, instances, and that cities and other against was leveled alternative House dis- geographic split units be in others. tricts which part includes City strong ais there is that fact The tion. part includes Marianna, which white for vote to voters white tendency for includes 10, which and Magnolia, City of candidate is black there when candidates An examina- McGehee. City of the of part exactly in behave voters Black race. testi- the in study of the and exhibits tion particular- not is This us fashion. satisfy the same experts opposing the mony of voting be- the commentary on House in ly admirable islands no in fact are there that in fact race, is but plain- by either of put forward havior 11, as 1 and is there and politics, completely Arkansas present-day that we sure are tiffs. We change it will suppose with to situation no reason geographical the understand Evidence even future. but in the near substantially district hypothetical to respect elections, district, the exogenous this concerning so-called within island anis if there other cut- simply positions for cured easily is, elections can be problem also in Legislature, Mr. referred in the State membership “finger” ting off PX testimony. See conclusion. rebuttal this supports Wilson's of made, problem change is If this 92. and time of deal good spent a Both sides so does and disappears, clearly insularity sta- of various merits debating energy one-vote one-person, violating without expert, plaintiffs’ The methods. tistical goal deviating rule, without and such three Engstrom, used Richard Dr. We district. majority-black creating a of regres- double regression, single methods: existing appor- incidentally, note, analysis. homogeneous-precinct sion, and is- contains indisputably plan tionment Wildgen, Dr. John expert, defendants’ example, 27, for district lands—Senate double-regression particularly objected district Senate wholly surrounds noth- show it could claiming that analysis, finding difficulty in little have alsoWe voters. of individual the behavior ing about racially po- highly are voting patterns Court, Thornburg, Supreme Yet, both white and black sense larized, in the 2767-72, and at 53-61,106 S.Ct. 478 U.S. awith candidates different prefer voters 1316-17, F.Supp. at Smith, Court, this Furthermore, frequency. of degree high bivariate on testimony based accepted powerful majority white regression ecological double) is, (that defeat enough, to consistent enough, recog- We analysis. homogeneous-precinct candi- for black preferences voters’ black these argues, Wildgen nize, as Dr. exception. without almost dates be- predict cannot methods statistical rely primarily finding we making this In not believe individuals, do but we of havior politics. practical events actual Fur- any claim. make for races ten have been there Since intro- was exhibit after thermore, exhibit in Legislature in the State membership in “scattergrams,” of the form duced against ran candidates black which candi- and white for black the votes which districts. majority-white candidates To precincts. for various plotted are dates these every one lost candidate effect cumulative eye, the our untrained seven for returns election Complete races. whatever overwhelming, exhibits these before record are races ten these vari- demerits merits or the technical respect evidence us, substantial expe- own our And theories. statistical ous all In introduced. also was three other State, this citizens rience Earl in which races, that of these one but con- aside, strongly lay required are not State for candidate the black was Foster conclusion. this firms in88 district in House Representative pattern exceptions some There between high correlation a was there Judge Edwin voting. racially polarized support level of and the the voter race Camden, was Judge Municipal Keaton, in Fos- even And candidate. the black single white against re-elected preferred candidate case, was he ter’s awin failed he opponent, county, his home by blacks incumbent. being an despite vote the white by whites preferred candidate House candidates addition, ques- district covered the counties majority the occasionally have received a We must now examine all of the other vote, only running as in- white but when whether, relevant factors and decide on majority-black in districts. And cumbents balance, political a diminution of op black races, proportion in the of the even these portunity, in violation of Section has by black vote received these candidates purpose been shown. For this begin greater much than that of the white with the list of relevant factors contained vote. in report the Judiciary Senate Com involving competition Races not direct mittee on the bill that became the 1982 between white and black candidates do not Voting Rights amendment to the Act. The pattern. lend themselves to such a clear relevance of this list is by confirmed running, Where two white candidates are Supreme opinion Court’s in Thornburg, 478 example, for black voters can hold the bal- 44-45, U.S. at at S.Ct. 2763-64. Ac power. mini- ance of We do not wish to cord, Smith, F.Supp. at 1314. The list aspect political reality, mize this but we appears S.Rep. in Cong., No. 97th 2d weight do not believe has sufficient 28-29, Sess. reprinted in 1982 U.S.Code negate proof polarization. clear Cong. 177, 205-07, & Admim.News Supreme in Thornburg Court used a statis- reads as follows: analysis solely in tical based on elections any history 1. the extent of of official which black and white candidates faced discrimination in political the state or other, There, did in each and so we Smith. subdivision that right touched the analysis we stated that of elections in proves there are no candidates the minority group reg- which black members of only “[cjandidates by ister, vote, favored or participate otherwise to win, can if the candidates are in the process; democratic F.Supp. white.” 687 at 1318. White vot- 2. the extent to ers, short, can elect white candidates political elections of the state or subdivi- against opposition, but black voters black racially polarized; sion is against cannot elect candidates 3. the extent to which the state or opposition, insignificant exceptions. unusually subdivision has used' hope day We will come when this is no districts, large election re- vote true, longer when voters of races both will quirements, anti-single provisions, shot person vote for the and not for the color of voting practices procedures or or other may his or her skin. Whatever distaste we opportunity enhance the personally stereotypes have for racial minority; against discrimination politics, question present relevant slating pro- 4. if there is a candidate purposes preferences is the of voters life, cess, real of the minori- we believe have been whether members clearly here, established. It is true as it ty group have been denied access to that Smith, F.Supp. was in see 687 process; racially polarized voting

there is in races 5. the extent to which members of Legislature, for the Arkansas State minority group politi- state usually cohesively, as a voters vote of dis- cal subdivision bear the effects unit, and that white voters have the education, crimination in such areas as strength present plan appor- under health, employment and which hinder districts) (except majority-black tionment ability participate effectively to enable them to frustrate choices process; by made black voters. political campaigns 6. whether have been characterized overt or subtle ra- C. appeals; cial What we have written so far suffic extent to which members es to establish that have minority group have been elected to proved predicate the essential for a Section public jurisdiction; violation. But it does no more than that. office Assembly’s rejection General place the cases in some factors that Additional Amendment, pri- the white plain- part of the Fourteenth value probative had (abolished by the poll a violation tax establish mary, evidence tiffs’ cannot 1964). incidents But other are; voters A of. number disposed lack significant easily is a so there whether experi- of- of elected part the difficulties responsiveness testified witnesses needs of particularized politics vari- in electoral ficials enced minority group; litigation. by members this affected areas ous underlying policy on short moved been Polling places whether have use of such have, subdivision’s political registrars or state notice; deputy vot- to prerequisite voting qualification, only as appointed been exceptions, isolated is standard, procedure or practice ing, or been have litigation; efforts result of a tenuous. It is candidates. black to intimidate made point which (racial polari- at this necessary to decide of these factors second fully already motivated were voting) (if has barriers any) in of these zation notice judicial have taken It We sufficient discussed. discrimination. invidious discrimination official (history of first and note that these purposes to present for discrim- (effects past voting) and fifth in discourag- in clearly result practices similar etc.) education, employment, in ination Partly in elections. participation ing black Smith, F.Supp. at Accord, 687 factors. illiteracy, level of higher due this is to case, in this record made 7. The & n. 1317 timidi- even dependence, poverty, economic made the one however, fuller than is much while And among population. ty, the black to appropriate it Smith, deem and we in creat- for hardly blamed can defendants proof of the details some summarize inescapable conditions, it is an ing these keep the try to We will points. on these legacy large part the in they are fact compass. Much short within discussion discrimination, itof much history of aof already obvious case in this was proof constitu- with the beginning governmental, Arkansan, we do not and any conscious to human institution tionally sanctioned upon Ossa. pile to Pelion wish slavery. in Discrimination History Official addi- refer to one proper think it We findings made In Voting. addition intimidation, occur- of racial instance tional City v. West Perkins in Smith point make the 1986, in order ring mem., Cir.), (8th Helena, 201 F.2d 675 aff'd sup- designed to that official discrimination 47 74 L.Ed.2d S.Ct. U.S. 103 wholly a activity is not press political black at-large (maintenance of elections (1982) Delta. not in the past, least thing of call we discriminatory purpose), also for Marianna, Lewellen, lawyer Roy black v. School Sherpell Humnoke attention State for the Senate County, ran Lee (E.D. F.Supp. 680-81 No. Dist. incumbent, Senator against the white dismissed, F.2d Ark.1985), appeal time, the the same At about Benham. There, found Paul Court Cir.1987). this (8th Attorney insti- Prosecuting 5 of and the District No. Sheriff School that the Humnoke prosecution Arkansas, an criminal well-publicized maintained County, tuted Lonoke bribery. witness electing school-board Mr. Lewellen system of at-large against discriminatory purpose of before some detail for the Lewellen testified members Mr. his opportunity. of reasons limiting number gave He us. designed prosecution that the belief by plain- history relied Some po- particular discourage him on the minimized can tiffs be dismissed this We find general. activity litical ago its long so ground that occurred Defendants entirely credible. testimony disappeared almost by now effects Lewel- it.8 Mr. to rebut no witnesses category we would called this In completely. him; the Sher- remains that the fact but believe testify noth- that he had did Benham 8. Senator run, and that Lewellen had warned iff prosecution. We do with the ing personally to high-school gradu- degree of his. whites than blacks to some len’s difficulties ates, himself to be making. many He allowed educated in blacks were own equivocal situation with into an drawn separate (by com- schools that were both case in a criminal prosecution witness law) unequal. pulsion of There is a the defendant. But represented he poverty, espe- tremendous amount of white explanation for what this is not the whole Delta, among cially poverty that a white happened. We do not think nearly the rule than the blacks is more opposed lawyer, even one who tele- exception. Blacks tend have fewer be, would have been treated powers phones person cars. If a has no fewer no way. This kind of intimidation this car, read, and does not own a phone, cannot powerful chilling effect. doubt had a everything in the ability to do almost making finding, are consistent with this vote, world, including severely modern provisional findings made point, again, is not that curtailed. Court, injunction, preliminary on motion for produced these We defendants conditions. (E.D.Ark.1986), F.Supp. 1229 Raff, in Lewellen v. that the two defendants who convinced (8th Cir.), d, 843 F.2d 1103 aff' us, testified before Governor Clinton Cir.1988), (8th F.2d 1108 opinion modified, 851 Clark, Attorney — are determined to General denied, U.S. -, 109 S.Ct. rt. ce blacks, long as as a alleviate them. But (1989). 1171, 103 L.Ed.2d 229 depressed group, remain socio-econom- short, long history there is a of offi- status, political power will necessar- ic present It has a effect. cial discrimination. less, impact ily and the on them of occurring. And some instances of it are still vote-diluting boundary great- lines will be in Em- Past Discrimination Effects er. already Much has ployment, etc. setting point We insert at this a table out See, Smith, subject. e.g., said on this of life for the some of the economic facts (income F.Supp. at 1317 n. 7 and education in the 16 counties this suit two races where County). for Education is data Crittenden challenges lines. key point Many here. more district probably the instigated prosecution, not wheth- ig- charges brought those who after that advice was among them. Benham himself point er Senator here is the motivation nored. The voters informing the simply times Requirements Majority-Vote Use of enough to be seems is black opponent one’s believe doWe Devices. Other candidates Some trick. to do un- challenged any or distributed ads newspaper bought have Legisla- State for the large. Races usually op- containing their leaflets to run candidate each require ture references Sometimes picture. ponent’s voting” “single-shot seat, so designated race Mayor’s In the explicit. more race are significance. practical no sup- example, 1975, for Bluff in Pine candidates requirement is a There warned publicly candidate a white porter aget Legislature the State out, there turn didn’t voters if white party nomi- obtain primary to vote coars- Sometimes mayor. a black be require- majority-vote this And nation. in mind have We spoken. are er words in instances separate recent ment, in four James of Andrew testimony especially by office won either candidates which brother, Carol his and of McGehee Willis win, has threatening to or were plurality a to Governor an assistant Willis, is now who for (e.g., elections to cover expanded been Coun- ran for Willis Carol Clinton. it has traditional- to which judge) municipal first black County, the Desha Judge of ty stop to We do applied. been ly not any- century so, this to do ever person run-off point whether at this determine phone obscene received Willis way. Mr. in its recent or origin in its primary, either night on One slurs. including calls, racial discriminatory of extensions, product is the aby the road off home, run he was way his when addressed will be That issue intent. And hoods. wearing of individuals group claims constitutional plaintiffs’ consider we used opponent rally his white public aat under preclearance for request their and in his epithet a racial and profanity —not we sim- purposes present 3(c). For con- sure, open but to be speech, actual majority-vote aof existence ply note testi- Willis Messrs. Both of versation. the Gener- affecting races requirement them. incident, believe we and this fied to public offices many other Assembly and al to the no evidence offered The defendants in Arkansas. County election, the After contrary. evidence No slating process. Candidate had de- who Judge County (headed by as farAs subject. on this introduced was its reduced or Willis) stopped Carol feated no slating plays know, process Home. Funeral Willis with business Legislature. the Arkansas in races part funeral paying been had County (ex- by primary, made are Nominations paupers. bury black to $100 home instances) committee rare cept in pay to as far so went even County run to sim- wants Anyone who convention. (a premium $500 home funeral “white” If primary. in the an individual files as ply event pauper bury a black rate) to —an fee, filing peti- pay a cannot candidate still probably and time at unheard ballot, and get on to may be used tions echo macabre here findWe unique. fairly is now access ballot longtime method Henry, this R.C. testimony of Repub- County common. Lee (black) Chairman To to 1989. Committee, lican Racial Campaigns. Appeals Racial said, he separately, live day, races this offensive, common are quite some appeals, they and separately, church go they to is candidate a white campaigns as Octo- late as And separately. die even Some- candidate. a black against running predomi- the residential area whether City of Marianna year, this ber Housing is still nantly ceme- or black. expense, a maintaining, public at was law, but, just segregated only. largely tery for whites —not ne- effectively, by choice and economic Have Been Blacks to The Extent Which parts of in black town cessity. Houses expressly provides The statute Elected. down, gutters streets tend to be run no protected class have that members kept, are more and there are not as well equal to in numbers “elected right to be Certainly condition is open ditches. population.” proportion to their unresponsiveness of local part due 1973(b). But extent “[t]he U.S.C. § years, a situation over the government have protected class which members that, however, beginning change is now politi- in the State or been elected office City Council the election of more black considered....” be cal subdivision of the Peace. and Justices members strongly plain- points This Ibid. factor Only in present case. tiffs’ favor convinced, however, that the We are not have black candi- majority-black districts can be sus- charge unresponsiveness the Arkansas General dates been elected Leg- the State as to the members of tained Assembly. All black candidates other islature, that we must it is with them It not until 1972 defeated. in this case. particularly concerned Legislature elected to the Representatives House like Members members, century. Four in this McGinnis, Flanagin, Cunningham, Senate, one in the three House unresponsive. anything are Dawson Today there time. were elected large propor- that a They are well aware members, them and one of only six black black, constituency tion of this Court’s decree his seat owes rep- efforts and sincere make assiduous ever won person has No black Smith. to be There is bound these voters. resent And in all of by election. statewide office dissatisfaction, among blacks public some Arkansas, per- no black the 75 counties of whites, any office with almost as well as elected, Recon- since son has ever been legisla- holder, charge white but struction, any county-wide to constitutional to black unresponsive are Delta tors increasing numbers of There office. are our satisfac- proved not to needs has been Delta, officials, in the but even black are some record. No doubt tion on this they have elect- every instance been almost others, such indi- but responsive more districts single-member majority-black ined and political philosophy vidual variations councils, city school (we primarily to refer always be found. will conduct courts), many boards, and of quorum and plain- unresponsiveness, examples to civil- of their existence As these districts owe addition, of believe, pieces particularly two litigation. pointed We to rights tiffs have one politicians law and many potential black one that became legislation, prac- a They passed that as to simply run. know In a bill was not not. that did candidacy probably would of regulations their on the use tical matter impose additional spon- futile. be bill was ballot. The the absentee Delta, from the members House by sored Elected Responsiveness Lack Offi- of of purpose was to plaintiffs claim its and legisla- that white claim Plaintiffs cials. incipient use effective suppress the are insensitive in the Delta tors There is by black ballot voters. absentee Certainly people. poor black of concerns De- support this claim. to some evidence effect feeling to this widespread there is a fraud difficulty and long history of spite voters, present- plaintiffs among and black Arkansas, it ballot the absentee with feel genuinely who several witnesses ed question that the bill until 1987 was not These process. out of the left things, the bill (Among other passed. was person If a not without basis. feelings are absen- to deliver relatives only close allows of given part taken to a is blindfolded and county clerk. voters to the from removed, tee ballots he then town, and the blindfold restriction say, this practice, tell certainly able to will almost or she unresponsive- of evidence is some There people, who elderly black against operates Some Legislature. part ness on to not able and relatives may not have approached members, being on op- The themselves. courthouse get to the own in their citizens black remains, some ballot mailing the of tion to black these constituents referred help, postage.) afford cannot poor people And areas. other representing legislators unpersua- claim balance, this we find On to difficult found it have members black over- passed legislation was The sive. bills cosponsor some members get white parts of all from votes whelmingly, with example, voters—for of interest mem- of State, including all Dr. of holiday in honor create the bill It is Representatives. of House of bers record But on King, Jr. Luther Martin plausible neutral, we find facially unresponsiveness whole, charge of aas absen- real abuses in there were claim proved. has not to be addressed. that needed balloting tee Underlying Policies Strength a considerable presented also Plaintiffs quite areWe Apportionment. Plan of amount, H.B. testimony about criterion apply this how to sure reg- during the 1989 introduced nor policy, was no There case. present Assembly, but the General session ular one, requir- explicitly a valid there be could bill, This the Senate. pass in failed black-major- cracking splitting ing the Clinton, have would sponsored Governor did Apportionment Board of ity areas. have things: would principal two done other a number allegiance profess rolls a income-tax State from the removed undesirabil- however, including the policies, includ- people, of low-income large number rivers, like natural barriers crossing ity of have it would people, ing many black cities, a pref- splitting undesirability of in ex- incomes taxpayers imposed on representation continuity erence tax 7% $100,000 a flat rate year cess of incum- avoiding where (that is, situations claim Plaintiffs entire income. oth- each against to run bents opposed Delta legislators possible as that white little depart as er), desire to few of a needs plan, bill, preferring thus apportionment this boundaries, like thousands to those rich constituents cross desire There agree with possible. lines, do We as little blacks. county low-income overriding policy Cunningham addition, the was, Representatives claim. probably which was example, cosponsored population, equality of Schexnayder, for mind the Board’s thought in Dawson uppermost Representatives H.B. time. voted at the Benham Flanagin Senator and and the legislators it. white for Some not consist- policies were these of Some bill, their motives Rock, the but oppose did Delta Little The cities ently applied. honestly politi- think, were so, doing split, we but in were Bluff, El Dorado and Pine Balton, ex- Nancy for it had Representative large that cal. cities is so those each in middle-class voters contained not have ample, testified could It split. the oppose the bill. On district. her House one wholly asked within district her Bluff, them, which directly injured Pine hand, City of in the bill Nothing other district, people up on one Senate poor made felt could have of them some but districts, evi- were, they two Senate split living between better was welfare necessity of a anything that avoid they opposed dently therefore and One senators. The two senior people. of these race between lot improve Crittenden preserving is all given the sentiment reason faulty, but reasoning is district County na- like as multi-member familiar, legislators, state too City of West splitting the pub- to avoid desire the basis ones, vote on often tional inconsistency surface is a There Memphis. proposed the effects perception lic El City of split the decision in here with to the effects opposed legislation, by the perhaps, explained, Dorado, is but it but we problem, is a serious reality. This Dorado El County, of which Union fact that racial one. is a not believe do seat, way, directly in the claim the follow- largest county involves county is the area, ing through and therefore districts: 56 geographic House State sepa- 80-83, 38, 47, 74, 75, 73, 85, the creation of and 100. It logical candidate policy The single-member districts. directly following rate also involves Senate which are divided creating districts against 27, 28, 19, and 30. districts: barrier, urged upon us as now by a natural respect clear with We think the case is a district that would not to create a reason except County all these areas Pulaski County ei- territory in Pulaski contain (which through includes House districts 56 River, Arkansas was violat- ther side 70). proof justifies The consideration of House district drawing of ed in the Delta, County area, the Jefferson side of territory on either includes the Ouachita-Nevada Counties area as a County, in Desha forc- Arkansas River group. There are some differences within more of the river to drive ing citizens north group, signif- as a whole it shares a but largest city miles to reach than 90 icant of common characteristics. number district, representa- their state where Voting markedly polarized between the tive lives. exception races. With the dis- House of crosscurrents There are a number County, trict Jefferson there are no here, directions. they point various districts, Senate, majority- House or whole, persuaded that are not we On voting-age percentage. A number weight. There were factor has much districts, nine in the House and two underlying appor- fairly strong policies Senate, (The could have been created. always plan, were not tionment districts, nine, number of House is exclu- extent, consistently applied. To a certain majority-black sive of the new House dis- line-drawing part of this is an inevitable County trict Crittenden created regime. one-person, one-vote under the Smith.) These districts would have been reasonably compact contiguous. D. discrimination, history official the fre- fully the relevant Having reviewed quency appeals campaigning, of racial factors, must now balance them and candidates, of successful black absence the ultimate issue: come to a conclusion on education, the effects of discrimination opportunity voters have less whether black employment, health—all these factors members of the electorate than other plaintiffs’ claim. Also on point in favor of political process and to participate existence of a plaintiffs’ side is the representatives elect of their choice. slating- majority-vote requirement. The that are in issue include areas of the State all, process factor9 is not in this case at County, County and Pulaski Jefferson point does not state-policy and the factor Ar- territory, areas in South adjacent some hand, way. strongly either On the other Ouachita, including parts of Neva- kansas responsive are a there number Counties, da, area and the and Columbia balance, legislators. a clear answer On Delta, includ- generally referred to as the areas, political emerges. In these black Lee, Cross, Mississippi, Phillips, St. ing significantly lessened the opportunity is Chicot, Francis, Desha, Ashley and Coun- plan, plan and the vio- apportionment territory. ties, adjacent some together with Voting Rights the Act. lates Section (Crittenden County, is also in the which County? Is it mate- Pulaski affected, What about Delta, cor- except not for one just rially from the areas we have Smith, different with in and nei- ner: it was dealt factors are Many of the same change in discussed? case asks for a ther side 49, polarized, and four rea- present. Voting is comprise districts 48 and which House compact majori- contiguous10 and sonably County.) put To it another most of the territory both sides pact p. because it contains supra 209. See a number of There are of the Arkansas River. River, legislative plain- bridges districts the and reject argument across 10. We defendants’ Moreover, past. split by reasonably it in the com- have been district 7 is not tiffs' alternative Furthermore, socio-econom- the extent of House single-member ty-black people is less among black drawn, depression opposed as ic could have been County. As the ta- district in Pulaski majority-black pronounced one three-member shows, (There single- p. are five 211 above appearing at that was drawn. ble districts, case, only one of them by the among member Senate counties affected black, population the black percentage but County highest has Pulaski more possible enough to make large highest not graduates, the high-school of black district.) majority-black Senate one than pro- income, smallest capita per black candi- no successful black has been There poverty families below portion of black majori- Legislature outside for the date peo- of black level, percentage the smallest some ra- There have been ty-black areas. telephone, the second and ple without history appeals elections. cial people with- percentage of black smallest voting in the affects official discrimination whole importantly, car. More out a disparities be- Socio-economic entire State. respect to black atmosphere, with political races are marked. tween the more participation, seems opportunity and hand, polarization in racial Willis, the other On a man of wide open. Carol in Pulaski Coun- pronounced voting is less to whom we experience governmental and Johnston, 1976, an incum- Robert ty. In earlier, up: Pulaski summed it referred member, defeated a House bent white County is different. majority-black district. in a opponent black question, in enough? The Is it different support significant black He had to have end, judgment, as to is one of candidate, Glenn In a black do so. may dif- judges politicians reasonable Mahone, nomination the Democratic won approach such fer. We are instructed majority-white dis- in a seat for a House practical evalu- searching “a questions with in the run- opponent against a white trict reality,” and past present ation Republican by the He defeated off. view of to take “a functional election, win- general nominee in Thornburg, 478 U.S. process.” is better nomination ning the Democratic quota- (citations internal S.Ct. at legis- has done candidate omitted). Furthermore, the list tions else- majority-white districts lative races neither Report “is Senate factors candi- a black State. where ... other comprehensive nor exclusive^] Collins, was Congress, Thedford date for may also be relevant factors whole, running district as a defeated omitted). (footnote We considered.” Ibid Pri- in the Democratic out of five fourth tips the yet mentioned think a factor County he ran in Pulaski third mary. But in Pulaski against plaintiffs’ claim balance areas, primarily in some white and did well com- County: preference of He was endorsed among affluent voters. expressed by County, munity in Pulaski Democrat, one two by the Arkansas for the representatives, of its two elected shared with newspapers, and state-wide Irma Representatives quo. State status one other candidate endorsement Richardson, who Hunter Grover Brown Gazette, state-wide the other Arkansas mem- of the three black in 1981 were two newspapers are con- newspaper. Both 62-64, both in House district serving bers Marion Hum- people. And trolled white Apportionment Board told State judge by plurali- municipal phrey, elected multi-member existing they preferred won without ty in have single-mem- system of 15 arrangement to There support. significant white PX County. See in Pulaski ber districts elections, they but appeals racial May Hearing of (Minutes the Public of 14C features grosser of have included Apportion- 12, 1981, of the Board before have de- incidents we other some appeared advocated ment). who Others scribed. n.& 31. Brief Plaintiffs 44-45 majority-black Trial for might possible to create a new be entirely See Post- River. district north ordering them principle, districts in but tant. We are to submit a single-member (who plan. They charged in of- are the Brown is still authorities Representatives Richardson, fice) only responsibility drawing black state law with the two plan apportionment, speak, disagreed. they Mr. should officials elected single-member primary responsibility seemed to favor also bear for Richardson Arkansas, conforming present plan he require- in Eastern but districts representatives They ments of federal law. thought “the three closer to [black] County] many the multi- and more familiar with all of the Pulaski favor[ed] [in 14C, factors, political, social, PX p. demographic, district.” Ms. member subject suggest- had mixed emotions on the deserve be considered. A Brown plan by plaintiffs in the end ed came down to the view submitted is also im- but existing arrangement portant. a little “was alternative districts Repre- suggested already, at 20. Both have palatable.” liability Id. more case, Representative stage may of the adjusted, Richardson need to be sentative plaintiffs even under close stuck to this view have shown a considerable Brown Bethea, represent- degree drawing Bill of skill in questioning by who them. We as- hearing. They at the sume that defendants White will consider the ed Governor strength more and cohesion views of and all other interested seemed to find espe- arrangement, preparing and affected citizens their in the multi-member recognize plan. minority interests. We cially for disagree with many political scientists simple. just The task will not be It is not view, opinions of and that two drawing a matter of districts that will have repre- necessarily elected officials do not majority-black voting-age population. constituents, of all of their sent the views effect, inevitably ripple There be a will in other the views of black citizens let alone changes in necessary the boundaries of ad- note, however, County. parts of the We jacent This effect lim- districts. should be testimony of White Governor possible. ited as much as It should be case that no citizen of Pula- present possible to limit it to those districts single-member dis- County ski asked directly adjacent to the new ma- which are tricts. jority-black districts to be created. In this careful consideration of all the After a way, legislative districts in the most of

factors, question this close we resolve We see no State will not be disturbed. un- of the defendants. It would be favor changes part need for Apportionment fault the Board of fair to diago- lies north and west of a State which expressed acceding to the wishes running from the nal line southwest legislators from Pulaski only two black Nor, already given, for reasons northeast. appeared it. County who before any changes in Pulaski Coun- need there be ty- sum, hold that no violation we Rights Act has Voting holding requires are not that the law We County. With re- been shown Pulaski any particular number the creation chal- spect to the other areas of State know, and majority-black districts. We suit, plain- in this we hold for the lenged many how opinion, found in this being 2 is violated those tiffs. Section created, we also know can be areas. make drawn so as to that their lines can be contiguous. reasonably compact and them IV. is, therefore, presumption a sort of There any plan adopted should contain remedy. A few We must now fashion There majority-black districts. parties. may helpful to the number be comments problems we cannot practical at the place, participation active In the first foreclosing foresee, though, and are not part of case on the stage of this remedial after both sides duty consider them defendants, our the members of the State plans. vitally impor- submit Apportionment, Board of 218 will he has advised Judge Exsele plans be submitted requiring that We are plaintiffs the laches for the 15, January dissent or before on parties the inappropriateness and the action filing this trial, took the defendants theAt 1990. so relief near injunctive requested days with- they would need position that the 1990 and reapportionment the next liabili- we found plan, if to draft in which he will advises further He elections. them con- giving are part. We ty on their finding that the with concur so, doing time, we but we siderably less although he 2 violation a Section there First, 90-day think, good reason. for County but Pulaski exclude being neces- was mentioned period time House districts County and also Jefferson entire for the the lines to re-draw sary disagrees 82, Since he and necessary. Sec- State, not be that will findings and Court’s certain with has groundwork ond, deal good course file a due conclusions, inwill he proof detailed by laid already in order opinion concurring dissent stage, liability at the case in this made agrees He his views. set forth further districts maps of alternative including however, opinion its majority, with if re- Finally, plaintiffs. introduced Voting Rights Act 2 of on Section all, be must effective to be is lief an and that time at this be filed should of the 1990 sufficiently advance place orders, order, entered appropriate prospec- public to allow elections Board the defendant giving purpose of adjust- necessary make tive candidates time as as much parties interested and all will of this All lines. ments to new with accordance possible to redistrict time, expense, and great require deal dis- also Judge Eisele opinion. Court’s Voting dislocation, believe the but that, .opinion majority’s agrees with us no alternative. leaves Rights Act found has the Court because or the either this Court permit does not Act thirteen created could have in 1981 Board plaintiffs subject the defendants and three House majority-black election to another represent those districts, there Senate majority-black The lines basis. an unlawful conducted presumption of a sort some again after re-drawn to be will have should, complying in 1990 present Board represen- census, lawful fair and order, that number create this Court’s elected in to be Legislature tation in He will also districts. and Senate of House espe- importance, great 1990 remains remedy issue on this his views explain its members the fact in view of cially opinion. his dis- congressional new lines will draw carry today to being entered An order is now will Only if relief afforded tricts. ex- directions conclusions out of this ground floor in on the get opinion. in this pressed by law. required the extent process to

CONTENTS 219-226 226-284 (#1). filed Dec. Opinion, Dissenting 19, 1990 filed Jan. Opinion, Dissenting Concurring and OVERVIEW. I. SECTION A. FRAMEWORK.. A Walk Through the Statute. OF THE VOTING RIGHTS ACT: THE INTERPRETIVE toto toto <£> (1) Lines, Blacks 1981 District of The That, A Result As Following: Processes; In The Political Participate To Opportunity Less Have and Their Of Representatives To Elect Opportunity (2) Less Have to CO o Choice?. Factors. to h-A CO and “Senate” “Zimmer” Introducing The C. OF FORM “REPUBLICAN OF USE LIMITATIONS: II. CONSTITUTIONAL IV, U.S. SECTION ARTICLE OF GUARANTEE GOVERNMENT” CONSTITUTION. to to CO

<N 07 THAT THE 1981 DISTRICTING PLAN HAVE PLAINTIFFS SHOWN III. IN HAVING LESS OPPORTUNITY THAN RESULTS BLACKS OTH- THE PARTICIPATE IN POLITICAL PROCESS? ERS TO . to CO THAT THE 1981 PLAINTIFFS SHOWN DISTRICTING PLAN IV. HAVE THAN RESULTS IN BLACKS HAVING LESS OPPORTUNITY OTH- THEIR TO ELECT CANDIDATES OF CHOICE?. ERS coo THE THORNBURG FACTORS. V. ^ A. Political Cohesiveness . ^ Voting 1. Black Behavior. ^ Voting 2. White Behavior . ^ “Minority?” is a . B. What cr THE “ZIMMER” AND SENATE VI. FACTORS... A. Relevance and Effect. bo Application B. of Senate Factors This Case. cn 1. Senate Factor #1. cn 2. Senate Factor #5. 3. Senate Factor #3. 4. Senate Factor #6. 5. Senate Factor #7. m Elected 6. Lack of Officials. Strength Underlying Tenuousness of Policies the Plan 7. The Apportionment. too to THE TO EXCLUDE PULASKI COUNTY DIS- VII. MAJORITY’S DECISION AN ANALYSIS. TRICTS: to to PLAINTIFFS ESTABLISH ONE OR MORE SECTION VIOLA- VIII.DID cq<N Mississippi A. and Crittenden Counties.266 Phillips County B. .267 Chicot, Ashley Desha and Counties.270 C. D. St. Francis and Lee Counties.272 County and Pine Bluff.273 E. Jefferson F. Lincoln and Cleveland Counties.274 Ouachita, Nevada and Counties .275 G. Columbia H. The Senate Districts .276 Summary.277 I.

IX.CONCLUSION.278 THE REVERSAL IN WHITFIELD: SAME ADDENDUM: EIGHTH CIRCUIT PROBLEM; SAME RESULT.281 lawsuit, delay filing of a EISELE, Judge, justified Chief District prejudice, the court delay and this causes (Eisele 1) dissenting. # As equity may complaint. dismiss the Filed Dec. Judge stated Arnold: dealing majority opinion with Section delay, or the more unrea- greater Voting Rights Act was filed herein 2 of the sonable, prejudice less need be opinion, the 1989. In that on December shown; The Court must and vice versa. the claims of the majority concluded that interests on both weigh the facts and by the doctrine plaintiffs were not barred sides, up the discretion of summon I of laches. dissent.1 chancellor, that it is a court of remember Judge stricture, laches is agree with Arnold that legal not of conscience and result. means essen- close as it can to a fair equitable an defense which come as good argu- Frequently there are some un- if there is unreasonable and tially that 199, plaintiffs’ and their constitutional claims opinion the issue of lach- 1. This deals date, will, setting opinion remedy request preclearance as a for consti- at a later file an es. I And, my of "Section 2” violations. forth views advisement. remain under tutional violations Judge opinion, page pointed out in Arnold’s (assumedly recurring harm (1988) the sides, the case and is on both ments election) justifies new occurring at each here. imposing time limits leniency in greater agree. Again chal- voting rights aof the commencement legisla- note how important first is It Population redistricting plans. lenge to our constitutional redistricting fits into tive redistricting regular last changes since the democracy. representative for schemes original the or mooted may corrected have redistricting legislative periodic Regular, indeed, harm) or, recurring no {ergo, vice law area. election unique in the is indeed vice created may exacerbated have have if we are absolutely essential It is will infirmities new constitutional if arewe representation and equal and fair next at the decennial corrected have to be one-vote one-person, meaning give not know. simply do redistricting. We formed, nation was Yet, our since concept. guess at left to part, we are most For the has, prac redistricting for legislative most Be- current situation. realities decennial on a reasons, been done tical left delay, we are seven-year cause of census national it is to our basis, keyed as standing in sand. things willingness to “let procedures. data shows several The 1980 census (ten years) period long for such alone” by the defen- House districts drawn we in which manner practical reflects (in to those in 1981 addition Board dant pro principle of carry democratic out the Counties) majori- had Pulaski Jefferson are all We representation.2 portional though the vot- even populations ty-black years, span of such a that within aware than 50 less populations ing-age-black popu changes in be dramatic there can percent black 74 has District 52 percent. districts. legislative various lations percent 47 black-vot- but population total farther that the conceded generally It is per- 75 had District 51 ing-age population. more census the last gets from one only per- 45 population black total cent figures as a population unreliable Dis- population. And black-voting-age cent actually weight the current measure percent, 47 percent and had 52 trict 100 And we legislator’s vote. in each reflected Indeed, district— one Senate respectively. and white of black number that the know total percent black a 51 30—had District dramatically and change may also residents percent black-vot- 43 population but For exam necessarily proportionately. can be inference population. What ing-age Elections, Board Rybicki v. State ple, is that figures? these One drawn evidence (N.D.Ill.1982), F.Supp. 1082 574 percentage higher 1981 blacks had that between showed at trial adduced “under-18” population total census, of sen number 1980 1970 and that, This means category than whites. did constituted in which blacks districts ate mi- (including in-and-out factors if all other six. from five increased had rates) con- remained death grations and alone, the racial one district at 1092. In Id. whites, proportion- stant, than more percent changed from 21.6 composition had during the age of 18 ately, reach would in 1980. percent black in 1970 to 57.7 persons All and 1989. period between utility society accepts 1109. Still Id. at date by a certain age or older years of nine accepts implicitly system decennial of a date that same be over in 1980would may apportionment passes as time consequence predictable in 1989. re constitutional comport with longer no of black-vot- percentage be that necessarily detracts This quirements. and the would increase population Clinton, ing-age v. Smith conclusion from the — population white-voting-age percentage 1310, (E.D.Ark.), aff'd, F.Supp. during in those districts decrease 576 would L.Ed.2d -, 109 S.Ct. U.S. hand, current where accurate even other On the meth- fixing popu- develops and reliable new 2. As research available, opt fixed may for some accurately we data technologies is ods and redistricting on a the interest legislative period figures within between lation current, current, basis, decide continuity. we stability or more redistricting called for. frequent more period of time during this know shows we do not But period. nine-year a well-informed existed there of blacks migration rates the relative represen- advocacy group highly-organized period and do during that whites champi- as are tating mor- the same interests relevant relative handle on here. work more Its Nevertheless, exercise oned tality rates. groundwork laid amply differ- how suggests because instructive work, and that the (if challenge. But were present 1989 data the might be ent lay inexplicably figures. developed then census available) evidence years, to be nearly eight for unused knew, should or Assuming plaintiffs near the suit was filed when this off dusted legal bases and known, factual of the have only fifteen months decade and of the close when in 1981 back claim dilution for their cen- the commencement before inor adopted, was reapportionment sus. was Rights Act Voting 1982 when over allowed amended, and nevertheless began, Ms. process apportionment the As then objecting, pass to before years seven she was testified Ledbetter Brownie say that to unreasonable it is not of the co-chairperson to serve as appointed de- underlying our reasons strong practical a coali- Representation, Fair for Committee re- system also reapportionment cennial and national local eighteen of some tion en- they delayed conclusion quire the as- with various concerned organizations continuity Stability and long. too tirely its reapportionment including pects — The for place once redistricting plans, require coalition, voters. on black effect time, to remain period substantial a As- Education the Arkansas included which next decennial until the effect force and AFL-CIO, Common sociation, Arkansas show can plaintiff a redistricting, unless the National chapter of Cause, state or excuse reason strong legitimate some Women, NAACP and Organization challenge. delaying or postponing for public forums League, organized Urban hearings in public plaintiffs for additional to called available and information Was attention bring upon which to to in 1981 effort an citizens back other and to insure the need Apportionment The answer claim? Board their dilution to base in both minority representation adequate is: Yes. and Senate. House Ar- reapportionment First, ample generated Assembly ob- General committee kansas’ importantly, More after and debate before public held tapes and publicity computer copies of tained adopted its Apportionment of Arkansas —the the Board the state for data census districts. and Senate House Appor- state plan for Board by the tapes used same hearings conducted were public technical help Numerous aof With tionment. Attorney General the state. throughout to was able staff, the committee support period of several testified the effect Clark determine data to analyze this comments, suggestions he received months have on districting proposals would various district- proposed of various criticisms minorities, and devel- then other daily. plans almost ing tapes, these And proposals. op alternative many used them, again copies of or plain- to note that interesting also It is Jerry Dr. expert by plaintiffs’ later years complained bitter- lawsuit in this tiffs apportion- existing analyze the to Wilson Board the defendant majority of ly that showing maps develop alternate ment and 30-day grant even refused members House a number to en- of 1981 June late back in extension drawn have been could Senate informa- present parties interested able needed information in 1981. back minority representation. adequate tion on avail- as plan was an attack mount rele- also However, of events this series to Ms. it was here able to plaintiffs’ of whether question vant involved organizations and the Ledbetter action present commencing the delay in Representa- Fair Committee it with because is relevant It was reasonable. are not altered or sequences if election concerning polarized And And tion. evidence probability at least the enjoined, there is also available. voting and other issues was held under the legislative races will be simply if examines the This is obvious one cer- appeals. Under cloud of one or more Much of introduced in this case. evidence prospects of diffi- circumstances such elections tain evidence out of arose ac- could be culty, expense, and confusion And occurring almost events before essentially un- cepted as reasonable in this case the evidence used all of But avoidable. here? by 1986.3 available a Hobson’s choice: redistricting The defendants have legislative The decennial large amount of VIII, (1) spend Sec- whether contemplated by Article process cur- updated pro- money an effort obtain of Arkansas 1 of the Constitution tion (2) rely on figures, simply Ap- rent census for the Board of opportunity an vides stale, figures. outdated 1981 census the and consider the portionment to obtain is the first alternative even avail- groups Whether persons and of all affected views by the period provided in the short apportionment able settling upon an before questionable. If such information is may Court process The be extended plan. whole obtained, possible it is that it 1981)4 can and is there is be (as and little was done drawing parties all “back to the process will send anyway because that pressure time board,” controversy, re- invite further years. But ordinarily occurs in off-election simply hearings. If the Board 4, quire new entered December majority’s the order no figures, the 1981 it will have up relies on 1989, to come directs the defendants any 1990, that its will have 15, assurance decisions January that plan by a new with And, pur- validity. all for what em- current is, period days of 41 which within legislative To create pose? holi- and New Year the Christmas braces Then, only the use in one election. early date be- The chose this days. Court the of Board on basis sea- new will redistrict recognized that the “election it cause open to census It is figures. the 1990 begin soon thereafter. for 1990 will son” to fair or reasonable question whether is (Indeed, filing period the will it notes that expenditures of time 20, 1990.) require such immense the new begin March Once election, create, dis- Court, money to for one adopted filed with the plan is changed probably be tricts whose lines will opportunity for interest- there should be an And, if the year. objec- again within another plan. the If parties object to to ed data, it the 1981 census will be filed, Board uses hearing probably will be tions are election, essentially hypo- acts, creating, for one and, there this Court required, after as to whose va- legislative districts prospect thetical possibility appeals. guess prior lidity no one can even interfere with have to may that this Court 1990 census. schedule is a real one. the state’s election judicial notice of was able take important the Court to evidence in this case is The most 3. voting history with and white discrimination which of official that established Arkansas’ legislative age populations districts in respect voting. of racial The evidence Id. question. is derived from the This evidence report largely polarization derived from the census, became available in 1981. 1980 Engstrom, analyzed some Richard who of Dr. in 1981 there were evidence This geographically reveals candidates elections in which black 46 Arkansas compact of mi- concentrations elections, opposed Of these white candidates. among nority split voters that or fractured See thirty-two or earlier. occurred in 1986 is also The census data the various districts. 1 and 2 herein. Exhibit 3 Tables Plaintiffs’ concerning compara- source information conditions of blacks and tive socioeconomic plan that the mandates 4. The state constitution simply majority the Court then A whites. reapportionment no later adopt a Board new judicial condi- notice of the fact that these took year following February each 1st of discouraged participating blacks from tions However, delays because decennial census. establishing thereby political process, one of figures obtaining need to and'the final census of Octo- Senate factors. See Order the so-called hearings, public the Board continued conduct Helena, City citing West Perkins v. ber 1989 redistricting proposed revise mem., draft and various (8th Cir.) U.S. 459 F.2d 201 675 aff'd summer of 1981. (1982). Similarly, plans until well into the 47 103 S.Ct. L.Ed.2d agree But do not not unreasonable. expenditure said It be appropriate moment from which is the re- been effort would have time and delay. say To plaintiffs’ in 1981 to measure had made been if the attack quired run after began to plaintiffs’ then “clock” then would the data But or had been rendered the result- decision relatively Gingles current have been sweep of recent ignore in effect a much broader redistricting would ing following development of the law history elections control the voting rights. respect to years. eight seven rejecting majority ignores Specifically, the I note that present Voting law- argument Congress amended Section defendants’ equitable doc- by clearly prohibiting Act in Rights be barred should suit upon principally relies structure “which laches trine of the use hard as thought long and abridgment I have in a denial or Smith. results ruling and accorded this to be the effect States right any citizen of United I con- affirmance. Supreme Court’s race or on account of color....” vote is not of laches application clude that the 1973(a) (Emphasis applied). U.S.C. § It is ruling in Smith. foreclosed added a new also subdivision amendment is to voting rights cases relief clear that a violation of Section stated that light of well-known “fashioned showing of such upon could be established Carr, 369 equity.” Baker v. principles totality of circum- on the results “based 691, 727, L.Ed.2d 7 186, 250, 82 S.Ct. U.S. 1973(b). The amendment stances.” Id. § concurring). These (1962)(Douglas, J. 663 unambiguous rebuke the Su- an was case-specific. nature by their principles City Mobile v. decision preme Court’s did held that laches Thus, while Smith 1490, 55, 64 Bolden, 100 S.Ct. 446 U.S. chal- in their in that case plaintiffs bar (1980), a viola- which held that L.Ed.2d 47 single for a scheme the election lenge to Voting Rights required Act tion of the district, ruling its legislative multi-member discriminatory purpose. showing of facts of specific to the be limited should Moreover, amending the lan- statute’s perma- ought It not be read case. 2 could of Section guage so that a violation exercise court’s nently enjoin a district analysis, using a “results” be established redistricting vot- in all equitable judgment slate or on a clean Congress did not write forevermore. ing rights cases was reaf- rule of law. It a new establish out, re laches points majority As the been the to have firming what believed inex key finding of two elements: quires a plain- And note prior to Bolden. standard result commencing a suit delay in cusable pretrial brief in their contention tiffs’ defendant. prejudice to the ing in undue Bolden, plaintiffs “[pjrior to the decision posi However, majority also takes case a vote dilution prevail in could commencing delay plaintiffs’ tion that in- discriminatory results showing either apportionment to the 1981 challenge Findings of Proposed Plaintiffs’ tent.” See in Thorn the decision should date from 53, citing, of Law at Fact and Conclusions 30, 106 S.Ct. 478 U.S. burg Gingles, v. Cong. & Admin.News U.S.Code 1982 words, (1986). other 2752, 25 92 L.Ed.2d 192-201. if ade even suggests that factors, Report Senate The so-called 2” violation of a “Section quate evidence accompanied the 1982 amendment plaintiffs back available applied to arguably must now be and which so law was period, pertinent 1981-1984 case, new. also not present plaintiffs confusing unclear instead derived These factors were delay before be excused should first articulated analytic framework using And air in Gingles cleared (5th McKeithen, 1297 485 F.2d Zimmer v. law “pole star” this decision as banc), other (en Cir.1973) area, argued it is. in this affd nom., Parish East Carroll sub grounds to com years thereafter two waited 636, Marshall, 96 424 U.S. Board v. delay is School action, mence 224 1398, (7th 1401 Byrne, v. 740 F.2d Thorn chum (1976). 1083, 47 L.Ed.2d 296

S.Ct. nom., City sub 4, Cir.1984, cert. denied supra, 478 U.S. at 36 n. burg Gingles, v. Chicago v. Ketchum 471 U.S. only days And after Council of n. 4. 106 S.Ct. at 2759 (1985)); amendments, Supreme 2673, 1135, 105 86 L.Ed.2d 692 S.Ct. passage of Edmisten, 345, plurality’s F.Supp. rejected portion 350 Gingles v. 590 Court the Zimmer part in Bolden and rev’d in and held that ruling (E.D.N.C.1984), aff'd wheth 30, used to determine are to be Thornburg Gingles, v. factors 478 U.S. part, discrimi purposefully (1986). (Com an election scheme 2752, er L.Ed.2d 25 106 S.Ct. 92 minority violation against voters nates chal months after plaint filed within two Rogers v. Amendment. the Fourteenth state; adopted by the lenged apportionment 623-24, 102 3272, 613, S.Ct. Lodge, 458 U.S. Treen, (E.D. Major v. F.Supp. 327 (1982). 3278-79, It is also 73 L.Ed.2d 1012 La.1983) (Trial challenging 1981 con suit factors were interesting to note that these redistricting commenced gressional in 1981 as defendants back known to the Board 1983); Rybicki v. State March reapportion develop a they prepared to Illinois, F.Supp. Elections of plan. ment (State (N.D.Ill.1982) legislative redis 1981; district tricting plan adopted October meeting, initial the Board After its later). Al- months opinion Professor rendered four Apportionment commissioned court University Furthermore, challenges of Arkansas Arkansas prior Witte of the bert lengthy legal prepare a brought of Law to soon reapportionments School were also current state of the on the challenged plan. memorandum adoption of the after the redistricting. legislative Faubus, rspect law with Yancey v. F.Supp. See the memorandum Among its conclusions nom., sub (E.D.Ark.1965), Crawford aff'd challenge apportionment to an that a noted Faubus, 383 U.S. County Bar Ass’n v. sup- grounds could be on vote dilution (1966), Kelly v. L.Ed.2d 750 86 S.Ct. evidence as “an historical ported with such (E.D.Ark.1972), Bumpers, F.Supp. 340 568 underrepresentation, the pattern current 901, 93 S.Ct. 37 413 U.S. aff'd which hin- past effects of discrimination (1973). these The bases of L.Ed.2d 1019 participation in the electoral dered effective differ, course, all of many attacks depressed process group’s the econom- need plaintiffs recognized involved the the impeded further ic and social status which challenges. promptly their to move participation.” Plaintiffs’ Exhibit then, Clearly plaintiffs should have been 14B, point is: The law was p. 27. The cause of action to determine that a able legal lawyers schol- adequately clear shortly at least some time after existed Gingles. ars without Rights Act Voting 1982 amendment to Gingles perhaps clarified the While effect, have been took and also should the various Senate weight to be accorded enough relevant evidence that aware of factors, provide or Zimmer it does not in an effort to estab- could have been used waiting until Janu- plaintiffs an excuse for 2. Viewed this lish a violation of Section say ary this lawsuit. To 1989 to commence context, delay more on the plaintiffs’ is nothing do without ben- could years rather than the two order of seven Gingles say the 1982 efit of is to majority. years suggested by the Voting Rights Act were amendments to the states, true, Judge Arnold It is effect, practical meaningless and without equity. It is therefore not this is a suit in anyone interested in vot- indecipherable to limitations. governed by any statute of simply is no basis ing rights issues. There Still, important to remember it is Moreover, it is for such a conclusion. con- — Okure, -, -, v. 109 Owens U.S. experience numerous other trary to the (1989), 573, 583, 102 L.Ed.2d S.Ct. Gingles, in the absence of litigants, who general a state’s Supreme Court held that challenge reappor- managed to similar still of limitations should be or residual statute in this dec- much earlier tionment schemes Arkansas’ claims. applied to Section 1983 ade, immediately reap- and most after three limitations is e.g., Ket- residual statute of See portionments took effect. complaint plaintiffs’ panel dismissed court While 16-56-105. Ark.Code.Ann. years. § legislature’s appor- a 1977 state attacking control not does of limitations statute the suit was not plan where filed tionment rough guide for here, a provide it can prior to just the commencement until Dobbs, Reme- See of laches. application reapportionment. The court of the next (1973). 2.3, dies, p. 43-44 § allowing interpreted Reynolds as dismissal laches, dismissed if a case not Even as well as apportionment an claim relief be denied where injunctive should relief. Id. at 114-16. staying equitable tardy by the caused time strictures required held laches court also integrity or effective- filing undermine plaintiffs’ delay in com- dismissal because Sims, In v. Reynolds relief? ness of such inexcusable, mencing the action was 12 L.Ed.2d 84 S.Ct. 377 U.S. result in un- going forward would because Warren, writing for the (1964), Justice Id. at 116. prejudice to the defendant. due stated: Court Representa- Maryland In Citizens for apportion- legislative a State’s [OJnce Assembly v. Ma- Governor tive General unconstitu- to be is found scheme ment Cir.1970), (4th F.2d 606 ryland, unusual case tional, it would be appeals upheld a district court’s court of justified in would be a court panel three-judge refusal convene action to insure appropriate taking challenging suit subsequent dismissal under are conducted elections further no general apportionment of the state’s However, under certain plan. invalid in passing court assembly. The found impend- an as where circumstances three-judge upon motion convene and a State’s is imminent ing elections required court panel, district was already progress, election scheme is the suit made out a whether determine might justify a considerations equitable and further reasoned claim” “substantial im- granting withholding the court supported the conclusion Reynolds legislative in a relief mediately effective test could not meet this where that a claim though ex- case even apportionment Id. at relief was unavailable. injunctive found isting apportionment scheme 610-11. withholding im- awarding or invalid. v. court in Gres- Similarly, the Simkins relief, entitled court mediate Cir.1980), (4th upheld sette, F.2d 287 a forth- proximity of should consider appor- an dismissal of court’s the district mechanics and the coming election days filed two challenge that was tionment laws, and elections complexities of state filing period for opening of the the before eq- general rely upon act and should Significant- Id. at 289. 1980 election. the the respect to principles. With uitable challenge to a the involved ly, Simkins reasonably relief, court can timing of a plan apportionment Senate South Carolina the disruption of to avoid endeavor that it diluted black grounds on the from might result process which election 2 of the in of Section strength violation changes that could requiring precipitate First, Act, the Voting Rights as well embarrassing de- or unreasonable make Thirteenth, Fifteenth Fourteenth adjusting the in on a state mands Nothing 289. Id. at Amendments. court’s decree. requirements of the senate had for the state last election the I 585, 84 at 1393. Id., at S.Ct. 377 U.S. 1976, stated: the court been held trying majority recognize that the then, they chose bringing suit Instead process” the election “disruption of avoid years until than three for more to wait my view that it is nevertheless but The record 1980 elections. the eve December herein on entered order delay. for the good no reason reflects time limita- will, because of foreseeable maintained, suit, if delayed Such a embarrassing tions, make “unreasonable disruption in the major clearly cause of Arkansas. upon the state demands” begin South momentarily to election coupled with disruption, This F.Supp. 637 Carolina. Connolly, v. In MacGovern year of 1980 is also the fact (D.Mass.1986) three-judge district 111 nation, likely require admittedly equitable The national census which will stale. Carolina, reapportionment principle implicit withholding grant South predicated upon theory places squarely this case within our hold- relief is wait, ing plaintiffs upon should Maryland Citizens. theory entirely long. waited too Gressette, supra, v. 631 F.2d at Simkins 296. EISELE, Judge, District Chief Admittedly, voting rights dismissal of a 2) (Eisele # concurring dissenting. challenge delay filing repre- because of Filed Jan. 1990. step necessarily sents a substantial dissenting opinion In a filed on the 7th of supported by language quoted above However, my December forth set belief Reynolds. these cases do that, proceeding this entire should been point although very make that sound plaintiffs dismissed because the waited judiciary upon be called to enter challenge until thicket,” without excuse “political equity “demands redistricting plan adopted in 1981 and stay hand be- that a federal court its when prejudice thereby cause of the caused judicial relief makes no sense.” MacGo- defendants, people in the affected F.Supp. Connolly, supra, vern v. areas, and, indeed, integrity and reliability fact-finding of the Court’s func- The time frames here are such that I see Acknowledging tion itself. dis- broad way no that a reasonable and fair reme- given eq- cretion the chancellor in such dy complexity with the —commensurate proceedings, I uitable nevertheless conclud- difficulty of the task—could be crafted ed that it would be an abuse of that discre- properly implemented before next permit tion—as a matter of law—to begins. “election season” go unique case to under its forward facts proximity of the next election as well My disagree; and circumstances. brothers reapportionment, as the next the mechanics proceeds so the case to resolution on the attempting remedy and cost of that will merits. election, only last one the staleness and “merits” issue dealt with data, unreliability of the essential the likeli- majority to date is whether estab- hood of confusion to voters and loss of one lished or more violations Section of continuity representation caused Voting Rights Act. The constitutional events, firmly weigh in favor dis- these and “intent” issues have reserved for denying any or at missal least favor opinion, in later resolution. And this like remedy beyond declaratory relief. Relief manner, confined to the will be beyond the circumstances of this majority’s opin- issues. I dissent from the case should denied as a matter of law. ion on those Section issues. And, balance, I conclude that dismissal appropriate would be more under the facts When the announced its find- of this case. ings 2 and conclusions on the Section is- sues, I I indicated that also believed that majority any disrup- The concludes that some 2 violations had shown. Section by implementing remedy tion caused However, Ias further reviewed the law importance outweighed the fundamental evidence, and the I have become convinced vindicating right equal partic- of the of any 2 plaintiffs prove that failed to Section ipation political process. Conse- This conclusion is violations. blanket quently, the believes it would be upon my opinion plaintiffs based that did plaintiffs say unreasonable to that prove, any in connection with “[wjait they should for another census. districts, that the House or Senate redis- yet ripe.” supra The time is not at 203. tricting plan of 1981 resulted in in principle ripe- is not But the at stake here overripe. having opportunity those districts less than anything, ness. If this suit is trial, political process. in presented participate critical facts at and others to the The As a matter of law I concluded that which control much of the court’s determi- have

227 pre- has been Ironically, there that cussion. showing and that must make plaintiffs this I attribute of little either. of blacks, a result cious proving that simply part of the on the inadequate awareness opportunity less lines, have district people of and courts, Congress, of their candidates elect others seems, ap- assump- it it And, strange as Upon the suffice. Nation. will choice conclusion, most are who in this of those wrong some I am pears tion have are plaintiffs rights cases agree with I involved then respect long-range with larger, 2 violation a Section least aware shown See more. directly perhaps and district consequences one least at and issues VIII, Section implicated. infra. from, follow here express I views passed was Act Voting Rights When with, have opinions are consistent and enfran- was “black aim single its rights in other voter expressed previously regis- Obstacles South. chisement Phillips Coun and coming out of Lee cases is, the sole were voting, and tration involving justice former ties, the statute.” who framed of those concern County and ward in Lee districts peace Thernstrom, Count? Votes Whose A. Af- and Marianna city of Voting Minority Action and firmative the state’s challenge to involving a latter (1987) 18 [Hereinafter 3 and Rights, See elections. primary law run-off 1973 42 U.S.C. § See also “Thernstrom”]. Com County Election Lee v. Campbell decision Supreme Court’s With the seq. et and (E.D.Ark.1986) mission, H-C-86-48 Elections, 393 Board v. State Allen Arkan Party v. Democratic Whitfield (1969), 817, 22 L.Ed.2d 544, 89 S.Ct. U.S. rev’d (E.D.Ark.1988), F.Supp. 1365 sas, 686 the Court began to shift as emphasis Cir.1989) (8th F.2d 1423 part, en- definition enlarged the “implicitly also I have part). J., dissenting in (Bright, be- franchisement,” making distinctions dis multi-member challenge to awith dealt “meaningful” and “meaningless” tween 2 as Section under County, in Pulaski tricts 22-24. Statu- and at 4 Thernstrom votes. amend the 1982 before interpreted em- in 1982 enacted tory amendments v. Leadership Roundtable See ments. challenge any stan- minorities powering (E.D. F.Supp. 579 Rock, 499 City Little relating to procedure dard, practice, Ark.1980). discriminatory ground elections opinion majority’s I concur (1982). Court § U.S.C. “results.” not shown have in an effort interpreting Section decisions any of the with in connection violations have discrimination electoral deal County, in Pulaski in 1981 created district’s the nature relating to questions exposed Arkansas. government our structure See, democracy. majoritarian efficacy of OVERVIEW. now are we Where supra. e.g., Whitfield, Voting Rights many my view It is 1990? changing the one, are cases, as this envi- fundamen- no one point of America arrived landscape We no right to vote mandate legislative without in 1965. ways sioned tal scholarly legal right to enter simply benefit longer means without doing these cases Yet the lever. pull so discourse. booth polling manner, rede- Amend- inadvertent Fifteenth simple are, almost in an retains issue form pure democratic camou- of our nature fining the aura aura —an ment believe, to the Con- contrary, violation voting rights I alleged government, An flage. contains plan districting today stitution. is a Hispanic] majority-black [or nine of one the idea really believe Do we ques- The drawn. could be a tenth when a nation this be society or should political protection special much is: how tion ethnic, language racial, separate candi- are black competition from are issues Surely such enclaves? political instance, when For to? entitled dates dis- serious, debate focussed worthy of prerequi- (a) voting qualification or give a to anoth- No plan might seat different standard, practice, or voting or site to black, interests of white should the er imposed applied or procedure shall be mi- way goal of give to the incumbents political by any or subdivision State temptation to officeholding? nority The in a denial a manner which results (a protection maximum provide maximum right abridgement of the or seats) is and has been strong number * * * to vote on citizen of the United States Dis- intermittently only resisted. color, in contra- of race or or account every following up are torn tricting plans * * * set forth in guarantees vention of thus a is census. There decennial 1973b(f)(2) title, pro- of this as section plans, to determine new need to devise (b) of this section. in subsection vided The “fully count.” ballots when black (a) is (b) of subsection estab- A violation a definition phrase itself invites if, totality lished based weight, de- maximum gives those ballots circumstances, it is shown less officeholding; anything as fined to nomina- political processes leading compromised right. Yet suggests a politi- in the or tion or election State implies an entitle- weight maximum equally open are not cal subdivision ra- proportionate to ethnic ment of a participation members is concept that representation cial —a protected by subsec- class of citizens respect controversial with no less (a) in that its members have less tion than with legislative bodies reference opportunity than other members employment. places schools participate the electorate another im- rights has become Voting repre- process and to elect political action is- mensely complex affirmative choice. The ex- sentatives of their sue, being ac- only in distinctive protected of a tent to which members knowledged as such. elected to office class have been simplicity has myth of moral subdivision the State voting rights issue largely insulated the may be con- one circumstance which debate, af- yet perhaps no other Provided, nothing in sidered: signifi- is more question action firmative right establishes a this section cant. protected class members of a added) (Emphasis Thernstrom at 5-6. pro- equal to their in numbers elected my formally stating objective in My population. portion detail is in this dissent views have, in suggest the federal courts explain the law as I understand eases, language many not followed legal, help open up the issues to also to Supreme Voting Rights Act or the U.S. debate, scholarly, popular and and, Act opinions interpreting that Court’s must, mind, are as we keeping unwittingly crossed consequence, have as a of our dealing the heart soul here This of those lines. is one constitutional issues raised government. The democratic Claiming simply giving to be lib- cases. before in this case should be resolved language interpretation eral redistricting season nationwide 1990-1991 purposes, “judicial to effectuate its statute begins. shaped less decisions been] [have by the decisions.” than the statute statute 2 OF THE VOTING I. SECTION approach has left at 8-9. This Thernstrom ACT: THE INTERPRETIVE RIGHTS to, effect, guidance judges without real FRAMEWORK. areas, in this most sensitive right” “do “right” is far from clear. where what into what Justice courts are thrust courts have declared “political thick- and the Congress Frankfurter called Felix groups en- minority 2 of the a result of that members primarily et” as amended, equal opportunity to elect to “an titled Voting Rights Act of What of their choice.” representatives as fol- That section reads U.S.C. § phrase really high-sounding does lows: political process participate to “representative ers as a counts mean? Who choice. opportuni- representatives their choice,” are to elect and when of their partic- of white “to “opportunity” If the ballots of blacks truly It is the equal? ties overwhelmingly Repub- as in an extent “to elect” same ipate” Democrats “count,” who if Democrats county lican electorate that members of other elect “candidates to never able abridged by are state some be denied or fully en- are nevertheless choice” view, my applied or barrier. created franchised, Democrats about black what matter, (or, for that construction” “liberal Are blacks ever wins? no black when construction”) avail- “conservative represented properly Hispanics ever statute language of the where able who candidates by whites? Are black interpre- one reasonable more than permits ticket part of a white-dominated run the issues we with In connection tation. Do consequently “white” candidates? case, it is upon called resolve to are whites disparities between socioeconomic language of Section opinion that the my that members mean and blacks States Su- of the United the decisions political unequal groups stand two guidance. We adequate give Court preme compensation footing, and that con- for some liberal no look further need electoral protection in the special form remedial the Act’s consistent with struction process appropriate? ap- simply rigorously We should purposes. at 6-7. Thernstrom And, applying if after so the law. ply 2 and the ordi- Section grammar left with constitutional we are still statute phrases of its words nary meaning simply must then so be it. We problems, to felt need place to the taken second them. to deal up to the need with face wrongs in the remedy perceived all opinion at- of this in the course I will give expres- through which processes has majority where tempt point to out govern- form of “republican sion to rigorous standard of departed from this every state guaranteed to that is ment” in its resolution statutory construction See of the United States. the Constitution issues. Const, IV, Although the 4. U.S. art. § 2(a) those proscribes language of Section or an in a

things result denial which Through the Statute. AA. Walk vote,” cases “right to abridgement language of Sec- suggesting that By any possi- beyond carry us far such as this convo- clear, I do not overlook 2 is tion “right concerning each citizen’s ble issues arrangement thereof grammatical luted “group new vote” to the world carefully fol- reader requires the which representation. rights” proportionate by which the phrases the succession low in an therefore, must, be taken Care itself. “reinterprets” statute “group” or individual even effort insure clear (b) makes of Section un- Subsection perhaps rights, we do undermine — Section provisions of prin- operative basic constitutionally undermine—the (a). In other in subsection government. contained are ciples of our democratic always is whether words, question that, So, agree I while standard, procedure practice or challenged liberally construed statute “the should (a). SPP) violates subsection (hereinafter not state object,” would in favor of its (b) mere- subsection know this because We do, to broadly as object quite as (a) by use of subsection back to ly refers process up the electoral open “to wit: “A introductory following language: op. Majority participation.” full (a) is established of subsection violation Section purpose of Rather, say the I would courts which question So the basic if....” prohibit is to case of this 2 in the context applying asked answer subdivisions states and other being imposed or SPP is is whether standard, prac- any applying or imposing in a which results “in a manner applied in black results procedure or tice right abridgement of denial oth- opportunity having less citizens’ race_” representatives of their cess and to elect on account of citizen ... to vote challenged SPP If it is decided that choice.” right in a of the does not result denial So, cause challenged if the SPP does not race, then any citizen to vote on account of opportunity citizens to “have less whether that the court must determine the electorate to than other members of “abridgement of the results an SPP process and to participate political in the account of right any citizen to vote on choice,” representatives of their then elect context, In this it is assumed race.” causes it cannot found that such SPP be curtail, limit, or “abridge” would mean to equally political processes “not to be event, dealing any we are burden. and, by citizens open participation” to vote, or its right to either its denial therefore, finally, there would be no viola- curtailment or limitation. language in subsec- operative tion of the above, (b) pointed As out subsection i.e., right (a), “abridgement tion necessary 2 identifies what is to Section on account of any citizen ... to vote (a). establish a violation of subsection Of race.” course, it is assumed that there should be showing challenged Absent a showing logical nexus between the some a citizen’s in the denial of SPP resulted (b) identified in subsection and the “denial then, vote, right inquiry, will be to first abridgement” language or of subsection to have that SPP caused blacks whether (a). (b), According to a denial or subsection other members of opportunity “less abridgement right to vote “is estab- political participate the electorate to political if it is shown that the lished ... representatives processes and to elect processes leading to nomination or election their choice.”5 equally open participation by are not to ... protected class. members of ...” Violation, B. Make A To Out Section easy It is to determine whether a SPP Must Prove Both Of Plaintiffs not, right citizen the to If denies vote. That, A Result Following: As Of (b) showing subsection states that (1) Lines, Blacks The 1981 District “equally “political processes” are not Partic- Opportunity To Have Less open participation,” to of the chal- because Processes; ipate In The Political SPP, lenged be ade- would nevertheless (2) Opportunity to Less Have quate abridged that the establish SPP Representatives Elect right we look at the SPP vote. So Choice? if it in the and determine has resulted that, process being equally open under the political argue “not The defendants 2(b), participation” black citizens. If it did plain language of Section effect, then, logically, “(1) things: not have that one separate must show two participate would conclude no violation. they opportunity to have less (2) they political processes; (b) But subsection has anoth- representa- opportunity to elect have less It, phrase er that must dealt with. be opinion of their choice.” tives effect, showing states that a can made be responds: challenged has caused the SPP Moreover, purely as a argument fails political process equally open “not to be if linguistic matter. Even logical and if it can participation” black citizens opportunity less plaintiffs failed to show “have shown that such black citizens less process, a participate in the members of the opportunity than other opportunity less participate political pro- showing electorate to participate Thornburg of the electorate Justice Brennan in confirms members 5. And representatives process this: and to elect choice. question in a 2 claim is wheth- of their § critical [T]he practice Thornburg Gingles,supra, electoral U.S. at er the use of a contested v. protected in members of a structure results group having S.Ct. at 2773. opportunity less than other judicial just But this is “fault” majority. choice of their would candidates elect to claim that reasoning. How can blacks the their claim. to establish suffice drawing the lines so of these was at fault aggregate Board protected is the right par- minority in the right they to effective that are a VAP district opportunities—the (This no political system.... if the had alternative? ticipation in the Board type of that was no the rationale doubt the inter- permit that statute would agree I development the of the responsible for if it by Judge Arnold placed on it pretation lawyers “preconditions.” We Thornburg “aggregate of speak of the proper to were interpreta- reasonable judges seek the constituting as opportunities” these But, first, admit that un- tions.) we must polit- in the participation to effective “right any time district test lines der a “results” the statute system.” But nowhere ical minority are a that blacks so drawn partic- right to effective speaks of “the having in blacks VAP, lines result those history of the act and the ipation”; and the to elect candi- than opportunity less others strongly ar- statute plain language of the is true whether choice. This dates of their proving necessity of both. gue for the lines could have been district or not the legislative district in the black citizens If majority VAP. make blacks the drawn to to great opportunity an have as involved participate Judge in the Arnold. I be- disagree to and otherwise I with vote So others, fail- require then their to process Congress political intended lieve that challenged of their choice SPP ure to elect candidates that the proof in all cases having function of the simply Hispanics demo- less would be or resulted blacks fate from the process participate different to cratic than others opportunity —no in a consistently Republicans agree who lose not process. do political the district. majority-Democratie challenged resulted in the SPP proof that elect can- opportunity to having less blacks course, And, plaintiffs the if suffice. alone their choice will didates of challenged SPP results prove that the participate to having opportunity less their the “Zimmer” and Introducing C. would, in then that political process, Factors. “Senate” case, automatically prove the usual the difficulties illustrated Having less having in their also resulted SPP and structure language, grammar, the their representatives elect opportunity to preliminarily are left to But Section Ergo, a violation. choice. Section deal— “Zim- point effect at this results proof that the SPP blacks —with interpreta- in this factors or “Senate” mer” opportunity to elect candidates having less earlier, with explained process. As say tive necessarily choice would their Act’s “results Voting Rights respect to to opportunity partic- anything about their certify cer- tests,” purports Senate process. ipate political may establish factors” that “typical tain Congress intend- my never view It has a discrimi- challenged SPP whether challenged showing that a simple ed that are: Those factors natory effect. having minority group’s resulted SPP history of official any 1. extent representatives opportunity to elect less or in the state discrimination to establish suffice choice would right of the that touched subdivision districting case. 2 claim in a Other- reg- minority group members If dis- wise, self-proving. be it would participate vote, ister, or otherwise minority being a lines result trict process; in the democratic (VAP), clearly voting age population voting to which 2. extent opportunity others have less will subdivi- or of the state elections argued may it be candidates. But elect racially polarized; sion is at least have state or lines, extent to which there that, district across the show unusually used has political subdivision the lines could other blacks and re- districts, majority vote large election make the blacks been drawn to minority group coffee.” Proof drink anti-single provisions, shot quirements, way or the other—could “factor”—one procedures practices or other upon which opportunity rise to inference give enhance the mi- minority; decided whether against properly could discrimination challenged of the nority group, because slating pro- if is a candidate 4. there SPP, opportunity than other had “less cess, of minori- the members the whether participate in to of the electorate members to that have been denied access ty group repre- elect processes and to the political process; suggest that I of their choice.” sentatives to which the extent members 5. may factors have of the actual Senate some politi- or minority group state the hypothetical than this relevance no more of dis- the effects cal bear subdivision my opinion It is drinking” factor.6 “coffee education, as such areas crimination in have decided “Sec- federal courts that some health, hinder which employment of these factors on the basis tion cases” effectively in ability participate reference to any but token without political process; and, statute language of that as precise campaigns have political 6. whether at conclusions consequence, have reached or ra- by overt subtle been characterized language thereof. See the clear odds with appeals; cial V, Section discussion under further infra. to which members extent interpre- of the Having elected to identified some minority group have been must at- courts with which problems public jurisdiction; office in the tive of Section tempt disposing to deal that in cases Additional factors some disagree- claims, specific I turn to certain part plain- value as probative have had my But I brothers. which have with ments a violation tiffs’ evidence establish outer limits. first: are; significant lack of there is a whether of- part on the

responsiveness elected LIMITATIONS: II. CONSTITUTIONAL particularized to the needs ficials OF FORM “REPUBLICAN OF USE minority group; members OF GUARANTEE GOVERMNENT” IV, U.S. CON- policy underlying the ARTICLE SECTION whether political use state or subdivision’s STITUTION. prerequisite to vot- voting qualification, provisions any there constitutional Are standard, practice procedure or ing, or election voting or certain protect which tenuous. (SPPs) standards, procedures practices or 28-29, Cong. & Admin. 5.Rep., at U.S.Code challenge under Section effective the 1982 pp. 206-07. Since

News otherwise, fed- should Stated as amended? amendments, courts almost federal challenges handling eral courts the find- unanimously felt the need make limi- constitutional potential be sensitive “factors” whether ings suggested these those contained problems beyond or tations they any real relevance or not had my It is Amendment? in the Fifteenth hand. issues at rarely do But they should be. view that sensitivity. Even of such may arise see evidence process issues Substantive due “risks” in- litany of enumerating a or “true” when there is lack of scientific when 2, we do application of Section and the volved such factors relevance between such constitu- suggestion of To not find intended to establish. “fact” following lan- Take limitations. example, sup- tional point by an absurd make opinion in court’s following guage from the district added the the Senate had pose 345, 356: Edmisten, supra at Gingles v. “The to which members factor: extent fact-finding power. judicial Com- Report legislate rele- invade cannot 6. And the Senate 2(b) quoted Congress language of Section pare cannot mandate actual Even the vance. a violation shown 2(a) if it is supra. is established of Section page at coffee, for this would drink 3,No. Factor Senate suggest Con- judgment, effect. political making that at- such an invites practically unhappily, account into took necessarily gress “ma- identifies Factor That Senate as tack. unfounded, or assumed rejected of those as one requirements” vote jority fundamental risks outweighed, several procedures or “voting practices opponents values discrimination opportunity delibera- enhance in committee urged amendment Factor, minority.” The Senate Among these against debate. floor tions “the to determine remedy effect, asks courts judicial risk subdi- state judg- extent odds actually be might require- majority vote the racial ... has used elements vision significant ment suggestion creating “safe” obvious risk ments....” minority; the requirement the districts used has single-member if the state that black-majority to ra- assumed and extent, be ghettos it should racial great perpetuate to behavior; the discrimination-enhancing effect. voting in have polarization cial reme- judicial upon the reliance risk that peo- the that question beyond is clear It normal, more the supplant dy would through their chosen, have Arkansas of ple political acquiring of healthy processes of the acts through and constitution state coali- voting and registration, by power “run-off,” the use to legislature, state their risk fundamental the and building; tion pri- most in requirement vote” “majority “group of recognition the that elections. general mary and affirmative of imposing the rights” stated sense, be it can course, in one Of secure to government upon obligation always dis- democracy majoritarian that electoral by race-conscious rights those But minorities. political against criminates American the to alien was mechanisms the in which sense the is not surely that tradition. political vote “majority to reference its used Senate that, if there is, suppose, I suggestion Whitfield, in explained As requirements.” only they are problems, constitutional are have not do requirements run-off supra, deal courts—to the Congress for the —not blacks, against discriminating of effect the disagree. with. group. cohesive politically aas taken even raised the attack consider example, For requirements such that assume let us But vote on supra, Whitfield, in panel effect, aas an such have do here pertinent attack That requirement. partially in now decided has Eighth Circuit also case in this because too decision. this Court’s reversing Whitfield the Constitu- of requirement to point ask: is fair ADDENDUM, It See infra. of state of statutes various tion or “non-ne- limits” things “off some are show Arkansas, in effort an system? political in our gotiable” ma- intent, also discriminatory cautioned Frankfurter Justice Mr. fact, dis- requirement, runoff vote jority questions. political of clear steer courts of its by virtue blacks against criminates dis- political any "minority” in are blacks might raise questions 2” "Section Other on percent, exceeds VAP where trict issues: constitutional factors, socio-economic ground protect recognize and (1) May courts discrimination, it make by past part caused rights”? "group participate for blacks difficult more propor- system of order courts (2) May the process? political race? on based representatives tional scaled individuals (6)May votes its to increase a state May order (3) courts socio-eco- comparative the basis value seats Senate of House members income, wealth, litera- as factors nomic enough so creating small districts purpose not, may If education, age? health cy, there- majority VAP could blacks Does scaled? groups be so of certain votes in? de- current any difference make gerrymander (4) May courts status socio-economic pressed majority dis- creating "safe” purpose to result found may be compared to whites ex- VAPs in majority black (i.e., require tricts discrimination racial prior official part from of, percent)? say, 60 cess discrimina- official present absence regis- legal barriers no (5) there Where tion? hold may courts voting, toor tration His views are well described Ms. majority-vote requirement, can the courts Thernstrom: still identify essential, refuse to what is actually essential,

What had been asked of what is not system our Court, said, he nothing government? was less than “to democratic among choose competing repre- bases of All of which me directly leads to a con- ultimately, really, among sentation — IV, sideration of Article Section 4 which competing political philoso- theories of provides, part: “The United States shall phy.” guarantee every State in this Union a Justice Frankfurter was convinced that Republican Form of Government....” politics mix, courts did not and that Why provision has not this of our Constitu- (beyond choices competence tion, clearly which more deals with type judges) were an component inevitable government of state contemplated by the every apportionment decision. That other, founders than prolific is, the means which influence great source of Supreme decisions, Court distributed inescapably suggested giving form and content to that which is an particular end. To choose a distribu- essential in our democratic govern- form of principle adopt particular tive was to ment? The answer will be found in a re- government. definition democratic In important view of a few decisions. every apportionment rule there lurked an implicit theory representation, and no (7 How.) From Luther v. Borden 48 U.S. alleged malapportionment ease of could 1, (1849) 12 L.Ed. 581 until Carr, Baker v. judged without such a theoretical supra, accepted by was the Justices of is, only framework. That the means not Supreme the Court that Republican the end, suggested an but without a careful- Form only Clause can be enforced Con- end, ly appropriate delineated re- means Luther, gress. In the issue before the Lacking mained uncertain. clearly artic- Court government was which of Rhode Is- values, political ulated Frankfurter land recognized should be legitimate as the asked, judge how could equity courts the state following administration the insurrec- particular contested district lines? tion of plaintiff 1841-42. The brought a standards, Without settled how could suit in trespass challenging legality the judges weigh competing such considera- a martial law decree under which the char- tions as the desirability population government’s ter soldiers had invaded her equality, the experienced value of an in- home. She claimed the decree was invalid cumbent, the need to community honor government because the state had been integrity provide strong a rural by popular overthrown convention. Justice despite sparse voice a population? rural Taney refused to finding review the case Thernstrom at 64. only Congress power had the to decide Supreme The get Court nevertheless did questions legitimacy. of state Thus was political into the thicket only but in a limit- political born question the doctrine. ed, non-comprehensive manner. The Court Professor Ely opines John Hart enough went far “one-per- decide that correctly decided, while Luther was it was son, required by one-vote” is equal gross infer, “a logic mistake of as subse- protection holding clause. This could be quent did, cases brought that all cases un- give said to real meaning substance to the Republican der the Form Clause must “Republican Government,” Form of present therefore also political questions.” specifically Court eschewed Section Ely, Democracy p. and Distrust IV, Constitution, of Article U.S. predi- as a (1980). cate for its decision. The Court was able large to announce this The next “one-person, leap in the one-vote” evolution of precisely standard without describing question what doctrine came in Pa- are, practices not, and are Telephone essential to our Telegraph States & Com- cific But, now, government. democratic form of pany Oregon, v. 223 U.S. 32 S.Ct. facing such upon (1912) attacks as the one 56 L.Ed. 377 in which Chief Justice case? in this being made ones as such challenge company’s utility a found White run-off ban order a courts federal If the to be by referendum passed law tax to a representa- proportional elections, or order Ta- Extending Justice question. ruling that silentio they not sub tion, are de- White Justice reasoning, Chief ney’s (Surely constitutional? orders are power to such judicial nowas there clared they if orders enter Republican under any cases review doing would actions so believed Clause. Form Constitution.) the U.S. offend seminal Baker, supra, one area, urges Justice itself rights of the clause language The cases pow- legislative exclusive Congress’ challenge state concluded Brennan under Form Republican justiciable under er to act apportionment Four- United “The states: Clause clause Protection Equal Clause. Form every State Amendment, Republican guarantee shall teenth States essentially of Govern- being Form Republican Clause Union this of Government Const, lacking IV, standards If the letter art. § U.S. constitutional dead ment.” Justice discretion. enforcement Court’s to leave guide had intended framers dissent, commented should clause Congress, his solely Frankfurter essence, “Guar- was, guaran- as the claim “Congress” Baker specified have under masquerading other four claim it does Clause rights antee of such tor Congress’ said: He label.” IV where different in Article occasions Instead, ele- United “the all case involves is exclusive. present power its Guarantee all of coor- through made States,” presumably ments is, in ef- re- It charged with non-justiciable. branches, is cases dinate Clause Frankfurter, masquer- claim Clause Justice fect, Even Guarantee a sponsibility. it But label. as he viewed a different what ading under agreeing while judi- for fit more courts’ case federal against the make prohibition cannot general the debate,” recog- invoke appellants “political for becoming cial action fora Art. than rather the en- limit not Amendment did IV Fourteenth Article nized He Congress. 4, IV, ... thereof § forcement at 297, S.Ct. 82 states: at U.S. 369 Baker by express 4, committed Tug IV, is not case, v. Kohler Art. § post-Baker rare In a is Congress. It terms (E.D.La.1968), 978, 985 constitutional F.Supp. well, 292 arising controversies of merits nature reached panel judge three it made else, has it, nothing a con under claim Clause Form Republican course, if a Of unenforceable. judicially constitutional adopt a state fusing ballot it power, judicial controversy falls within constitutionally offensive. was amendment casts plaintiff] he how was “on [the depends the ballot finding that ultimately While brings him- he action,” whether ... Judge Minor his constitutionally infirm not But statute. jurisdictional found majority, self within Wisdom, writing it wanting, competence judicial in was where Clause Form Republican invoking clause one created clause be process cannot due in the corporated another. rather should be Constitution courts of “Federal in dictum: noted essentially Guarantee as was what When constitution out of read loathe laid, as to be sought claim provision Clause nonenforceable judicially Clause Protection Equal well, essential under considered Founding Fathers dispel- difficulty in no had Court federalism.” ... a workable of formulation resulting from confusion ling any mere original) (Emphasis considering the expression, forms courts for the arrived the time Has things....” substance “a meaning of interpret up to take aas “the State attack appellants Here Put Government?” Form Republican perceived it was as State,” precisely in- an really avoid otherwise, can States [Tele- in the attacked be attacks Pacific light in the process terpretive case, Oregon ing rights an absurd extension of the erro- phone Telegraph & Co. v. ] id. [223 U.S. 118], at 150, 32 S.Ct. ^[224] at neous holding in Luther. In reviewing (1912)]. voting rights, Their com- L.Ed. Constitution for Justice [56 representation plaint Douglas Republican is that the basis on the Form focussed Legislature them. voting rights of the Tennessee hurts Clause. “So far as are con- “minority They cerned, assert that a now rules large gaps there Consti- Tennessee,” apportionment that the stat- right tution. Yet the to vote is inherent results in a “distortion of the consti- ute republican government form of j system,” IV, the General As- tutional envisaged by Article representa- sembly longer body Baker, is no “a supra at Constitution.’’ people J., (Em- tive of the of the State Tennes- (Douglas, concurring) S.Ct. see,” “contrary principle all added). basic phasis representative government_” Ac- Finally, the current awkward and unsa- cepting appellants’ own formulation of tisfying analyses reapportionment cases issue, one can know this handsaw argue Republican for a revival of the Form from a Such a claim would be hawk. as a Clause basis review. Professor IV, non-justiciable merely Art. under Ely John Hart writes: any under clause of the Consti- § likely In fact seems that this unfortu- tution, by very virtue of the fact that a Republican all nate doctrine—that Form federal court is not a forum for necessarily involving po- cases are cases debate. Massachusetts v. Mellon [262 questions wholly pass litical —will 447, 485, 597, 600, 67 L.Ed. U.S. S.Ct. days. the scene one of these Friend and (1923)], supra. recognize foe alike have come to the ob- Baker 369 U.S. at 82 S.Ct. at 754. vious, although the various state last-stated, weakening This old view is voting rights cases decided the War- event, should be reexamined. Burger styled ren and Courts idea that Section 4 of Article IV should be decisions, equal protection cannot only by Congress suspect. enforced comfortably understood be without a and, sug- It should also reexamined strong injection right that the view gest, abandoned. spe- to vote state elections is a rather prerogative, cial constitutional a view meaning “republican” govern- The of a that cannot teased out of the lan- clause, ment to the author of the James guage equal protection in of alone and Madison, indicates that the clause is the naturally assigna- textual terms is most logical judicial most source for of review Republican Form ble Clause. relating voting. In cases to The Federalist (New 1961), Bork, Ely, supra, No. 39 at 100 Amer. Lib. ed. he at 118. also Neu- See republican government Principles stated that a “de- tral and Some First Amend- powers directly indirectly Problems, 1, all (1972). rives its 47 ment Ind.L.J. 19 great body people.” from the of the And And, agree. although I I believe that a possible “tyr- the heated debates about the proper interpretation ap- of 2 as Section anny majority” of the to are known all. plied to the facts here avoids most constitu- rep- The majority inference of election of problems, I am tional convinced that the appears quite resentatives obvious.8 majority’s transgress opinion does constitu- by recognizing enforcing tional limits and Douglas, concurring opin- Justice in his and, Baker, “group political rights” in ion in also found the abdication of affirmative effect, judicial power involving requiring proportional representa- over all cases vot- " by quotes Tocqueville’s 8. noted de remark that ‘the love As Justice O’Connor in her discus- importance the in F.E.R.C. republican government sion of of federalism the in the and habit of Mississippi, v. 456 U.S. 102 S.Ct. engendered townships States were United ” J., (1982) (O’Connor, dissenting) L.Ed.2d 532 provincial assemblies.’ Id. at and in the opportunities all "federalism enhances the of Tribe, 102 S.Ct. at 2153. See Constitutional Law govern- participate representative citizens to in (1988), at 398. ment”. Id. at 102 S.Ct. at She then 2153. politi- the participate to electorate of the an ade- without race—all upon based tion Smith, means finding in The process.” cal viola- predicate factual legitimate quate —in the nor legal barriers present equal clause, the that neither process the due of tion of by the Board districting plan 4 Article formulated of clause protection for responsible is in 1981 Apportionment IV. other opportunity having “less blacks THAT SHOWN PLAINTIFFS participate HAVE to III. the electorate of members RE- PLAN DISTRICTING THE the Rather, it is process.” political the LESS HAVING BLACKS IN SULTS past discrimination effects present TO OTHERS THAN OPPORTUNITY Stated employment. health, education POLITICAL THE IN PARTICIPATE par- of blacks otherwise, opportunity the PROCESS? the would be process political ticipate the the deal with majority the manner does How regardless same (This is argument lines. defendants’ the district drew Board opportu less “have show whether cannot question different electorate members other nity than affected Board drawing by the line process.” political participate candidates elect “to of blacks opportunity appears majority, Arnold, Judge majority agree with choice.” presently no that, “there acknowledge by drawing line instances in some barriers legal existing opportuni- affect did in 1981 the Board atOp. Majority in Arkansas.” citizens of their candidates elect ty of blacks concludes nevertheless he But 204. analytical- important very it is But choice. opportunity as much they do the issue with separately deal ly to any as process participate issue participate” "to opportunity effects present “the because else one elect.”) “to opportunity it discrimination, much racial past reply, as probably The Op. Majority governmental.” official have, courts federal other certain upon relies he proof SPP “interaction” at the look must taking the court’s supplied principally a result suffer impairments v. finding in Smith aof notice judicial if that to determine discrimination prior (E.D.Ark.1988) 1310, 1317 F.Supp. Clinton, 687 opportu- less having — in blacks results SPP U.S. -, S.Ct. mem., af 548, f'd process. participate nity to (1988), to wit: L.Ed.2d Clearly it is legerdemain. linguistic This of dis- history find further We SPP board—the drawing by the line oppor- adversely affected has crimination having less in blacks “results” health, here—which edu- citizens tunities diminish- rather, is the opportunity; hangover employment. cation re- to have found status full ed socio-economic necessarily inhibits history this from Sec- And discrimination.9 prior from process. sulted in participation remedy give to purport 2 does tion “bootstrap- type of this disagree with I risk theAt basis. the latter solely on fundamental more have I also ping,” Board overkill, assume argumentative 2(b) requires First, Section objections. exactly as lines district drawn had chal- showing that cause effect opportu- Would request. now hav- blacks for responsible SPP lenged any dif- be participate” “to nity of blacks members other than opportunity “less ing to Arkansas counties Delta in the ployment iden- try quantify rarely do courts And 9. much whites Blacks this. understand socio-econom- "diminished of tify causes state) the rest (as compared to off appear satisfied to be better They of blacks. ic status” they The now. are degree say in some in comfortably it is area in that they can if the result dire “the no referred If discrimination. prior official in court district Whitfield developed in "given.” But easy needed, is an circumstances more reality economic prior discrim- Id. past decade.” apparent that it the state over make area only to One has role. played small ination unem- poverty and the reasons examine Clearly analysis “opportunity” participate ferent? not. This error in rather than identify of so much in statutory as the source unnec- as stated the statute. The essary “voting language, being ambiguous, intellectual conflict in the controls. rights” principal cases and as the source of The effects of discrimination referred to not, certain of any legally significant way, the misuse of the Zimmer or do in or, indeed, “opportunity” Senate factors. hinder the ability participate effectively of blacks to Is not all of this The socio-eco- obvious? political process. in the any given nomic condition of in always area —whatever is—will be a S}! SjS Sji >jC # % “given” any voting rights in challenge. And can demonstrate that not hav- And, unfortunately country, in this ing telephone or an automobile makes sea, blacks, although making signifi- sea to it more difficult and less convenient for a progress, cant suffer still adverse effects for, qualify exercise, citizen to and to his education, in the economic arena and voting or her rights. tricky words health, and, basis, on a statistical sim- _ are “difficult” and “inconvenient.” ply not as off well as non-blacks our ordinary But inconveniences such as one So, society. accepts being poor, if one might experience if go he wished to uneducated, etc., unhealthy, decreases post doctor’s office or to the office or “opportunity participate” one’s general store should not be deemed political process, then there will be no vot- legal simply constitute barriers be- ing SPP which will be immune from attack. objective get cause the is to per readily Elections se could at- place. places one value on one’s And, although pushed tacked! no one has rights to vote will be reflected yet, again plaintiffs’ that far note the suc- difficulties and inconveniences overcome Eighth cess in the Appeals Circuit Court of exercising right. “runoff, attacking majority-vote” stat- Whitfield, supra, at 1384-85. See also ute. v. Party Democratic Whitfield York, 141, City Butts v. New 779 F.2d Arkansas, supra. State (2d Cir.1985), denied, 149 and n. 4 cert. (the Court) This Court U.S. District in its U.S. 106 S.Ct. 92 L.Ed.2d 740 opinion problem. discussed this Whitfield (1986) (Section employ 2 does not a “diffi After quoting Senate Factor No. see test). culty victory” supra, p. the Court stated: here, I conclude as I did in Whitfield, “given” This is also a for the state of past that the residual effects of discrimina- Phillips County proba- Arkansas and education, employ- tion such areas as bly every other subdivision ment and health' legally sig- do not in the nation. But the effects are more or, way “opportunity” nificant hinder the devastating Phillips County than in indeed, “ability” participate of blacks to places other because of the dire economic effectively political process. developed circumstances that have So, past area of the state over the dec- I agree since with the defendants Although finding ade. the court is plaintiffs, to succeed under Section 2(b), must, alia, blacks still bear the effects of prove following discrimina- inter education, tion in employ- separate things, i.e., (1) such areas as they two that have ment, health, nevertheless, opportunity and the Court participate politi- less in the process, (2) also finds that those effects should not cal they that have less ability participate hinder their opportunity representatives effec- to elect of their tively equally political process. choice, I conclude that the have typical also that participate in the bers of electorate origin. county, Spanish VAP of the representatives elect political process and to 45, n. 1. See Table (emphasis § U.S.C. 1973 of their choice.” added). solely on not focus should The court 3,465 The ticket with votes. combined For the reasons I detail in Section VIII 5,812. opponents opinion, totaled of this infra, plain- votes his white find that the 61pp. Plaintiffs’ The evidence es- have Exhibit tiffs shown that the 1981 district lines strong voting polarization having tablishes racial did result in blacks opportunity less Phillips County. Let us therefore as- than others to elect candidates of their only respect sume that voted for Mr. Whit- choice with blacks seven of the House However, since, only oppo- explain field and whites voted for his districts. Ias else- case, where, If plaintiffs nents. that were the Mr. Whitfield is not all have to claims, only percent prove received 33.3 of the black establish Section I con- plaintiffs and the clude that YAP white candidates combined have not met their percent respect received 50.3 white VAP. burden even with to these seven Then, law, discussion, under Arkansas there was a House districts. See runoff, III, supra. runoff on March 1988. At that 3,439 Mr. Whitfield received votes and his Stoner,

opponent, white, Mr. received V. THE THORNBURG FACTORS. 4,839 votes. Plaintiffs’ Exhibit 61oo. On majority opinion The herein identifies the assumption above, made Mr. Whitfield required Thornburg factors to be estab- percent voting received 33.08 age of the predicate lished as a for a vote-dilution population and Mr. Stoner received claim: percent 41.9 voting age popu- of the white claim, evaluating a Section 2 the Court Thus, lation. it will be seen that if Mr. pre- must first determine three whether 1,401 Whitfield received more black votes legally impair- conditions to a substantial runoff, he would have won. That plaintiffs’ ability ment of to elect the given 4,840 would have him a total of candidates of their choice have been met. votes, which percent is 46.57 First, minority must the claimant estab- voting age county. sufficiently large geo- lish that it is point The is: dismally because of the low graphically compact to constitute a ma- participation Americans, black and jority single-member in a district. Sec- white, in exercising their voting rights, a ond, must show that the small, active, but minority easily could win group they belong politically is most local larger races over a much non- 50-51, Thornburg, cohesive. 478 U.S. at participating However, majority. if racial Third, minority at 106 S.Ct. 2766-67. polarization established, then one could “majority voters must show safely predict actively partici- an sufficiently votes as a bloc to enable pating minority consistently would over- special it—in the circumstanc- absence come the majority. minority might es, running minority such as a candidate “slip up” times, on majority one or two minority’s unopposed to defeat the ... suggestion is that preferred candidate.” Id. at respond soon in kind. This rationali- at 2766. The latter two factors can S.Ct. zation at justify least tends to our choice of by proving be shown VAPs as the figures critical because those jurisdiction highly racially polarized. figures “per tend to set possibility” outside Accord, Smith, F.Supp. Ibid. But, limits.12 when the VAPs of blacks or 1314-1315. range whites percent, say, from 45 to 55 the fact Although majority aptly that one states the group might or the other factors, not, be the “minority” my on a VAP three critical it does basis will not explain alone facts opinion, rigorously apply success or failure of the them to the black or case; explore the white adequately candidates of this nor does it who opposed each past. interrelationships among other in elections those factors. (Em- Thornburg opinion 12. confirms this stan- U.S. at n. 106 S.Ct. at 2766 n. 16. dard. "diluting added) Justice Brennan refers to phasis potential strength minority vote.” Id. 478

241 black cohesive politically existing or Cohesiveness. A. Political com- evidence for in vain I waited groups. Voting Behavior. 1. Black in the blacks of status political paring the does opinion majority the clear It is political their with in 1971 created districts ap- fact-specific intensely the not conduct 1981. in created districts the status not has It Gingles. by required praisal lines drawn the new did myself: asked groups separate the studied systematically lessen, the or limit, decrease, curtail 1981 incorporation for projected citizens of black participation political black of effectiveness to deter- districts new proposed the into otherwise? or packing or fragmenting constitute together, they, taken ifmine approach this eschewed plaintiffs But This, how- group. cohesive” “politically only show need theory that aof favor ever, is understandable. to failed in 1981 Board defendant the “gerryman- 2 law Section The polit- black enhance to opportunity the take redistricting) area or (districting dering” ap- view plaintiffs’ The effectiveness. ical The proscription. negative developed as a whether immaterial is parently “packing” or “fragmenting” prohibits law the under politically off better they were citizens of black groups political cohesive Their plan. 1971 the under than plan voting pow- diluting their of the effect with off under not better they were is that point con- the develop in did law er.13 have been they could than plan out if reach to the obligations of affirmative text every of advantage citi- taken had of black numbers Board larger the include and posi- political their black enhance to to enhance opportunity zens in order action was words, mandate affirmative clearly the an other This tion. power. “you definition rather action harm” “you shall Affirmative theory. nega- the dealing which intent help.” When implications shall carries simple were issues the claims proscription, tive constitutional plaintiffs’ to relate possessing If blacks straightforward. their tangential relevance single district in a power majority claims. 2 “results” districts, each two into divided simply had main, plaintiffs, every- minority, they constituted which loca- geographic identify the experts straightfor- simple quite thing they drew Then citizens. black tions black two 60% one, say, took Or, if ward. into citizens black such incorporating lines so VAP the and divided districts VAP would blacks in which districts new the other had 80% district that one voting age constitute And be clear. also would 40%,the case those showing that without population is likewise multi-member-at-large district cohesive politically represented blacks case. simple relatively part, most For group. effort direct no made here, plaintiffs But all assume court asked simply drawn lines were district show new into incorporated citizens effect had which way in a alike. vote alike think district pri- fragmenting up or breaking packing or whether consider occasion no We ... have dis- a multi-member Thornburg, supra, was 13. respondents’ [multi- apply to guid- standards primary our provides but it still trict case fully pertinent ... claim district] member occasion first presented It ance here. claims, dilution of vote sorts Voting to other -the to construe Supreme Court large aof splitting alleging that a claim Note 1965, in 1982. as amended Rights Act minority between cohesive geographically single-mem- therein following references re- districts single member ... or more two districts: ber minority vote. Id. dilution sulted minority group racial Dilution 2764, n. 12. 12, at 106 S.Ct. n. U.S. at dispersal of by the may be caused strength stan- assume So, cannot although we they constitute districts into blacks Thorn- Supreme Court by the applied dards minority of voters ineffective an "fully will districts burg multi-member where into concentration clearly establishes here, case pertinent" majority. Id. excessive an they constitute this case. disposition framework n. at S.Ct. n. U.S. 242 candidates, recently sponsored steadfastly only I resist the notion that

But per- question in is presume that the law election data for the district we should —or blacks, 25, regard- sparse. Gingles, us to assume—that all 478 U.S. at 57 n. mits hand, differing geographic politi- the other less of their at 2769 n. 25. On S.Ct. racial backgrounds, prove cal will vote as a bloc “exogenous elections alone could opposing is whenever a black candidate the chal- racially polarized voting” within candidate; or, matter, that white a Better lenged district. Citizens for (likewise brought togeth- Gretna, 496, all citizens 834 F.2d City Gretna v. district) in er for the first time the new will Cir.1987). Rather, (5th such data can suggest respond in kind. that such as- determining polari- a reliable source for be sumptions represent stereotyping at its represen- “aggregate zation when rejected and should be out-of-hand. worst virtually” tation from those elections ... But, important, they ig- more invite us to the entire district at issue. See covers specific requirements. nore the Thornburg v. Par- East Coalition Jefferson Jefferson ish, 991, (E.D.La.1988). F.Supp. point proof political The is: some of the groups of the different black cohesiveness proposed house plaintiffs’ Most of new proposed into a new dis- to be assembled county lines. In some in- districts cross brought trict must be forward. One stances, plaintiffs might put on evi- dangers statewide, of a “scattershot” at- voting in showing polarized dence one of tack, case, being made in this as is those counties but then make no effort to focus on the there be no real counties, adjacent in who show that blacks particular affect- facts and circumstances proposed in incorporated would new be (here, ing the districts es- each of the old district, policies House identified with the 1981), proposed in tablished and each in coun- positions and the of the blacks (proposed by plaintiffs) districts. Even words, ty. proof, that the other racially polarized the Senate Factor on vot- jurisdictions political from different who ing voting inquiry directs the into the be- incorporated proposed into a were to be particular havior of the “State or cohesive,” “politically district were has new in Factor subdivision” issue. See Senate required. not been 2, But, better, No. supra. even we have gener- exceptions There are some to this clear directions from the United States Su- ality. proof made preme point: Court on this counties, por- polarization adjacent in some inquiry into the existence of vote into a tions of which have been assembled by submergence dilution in a mul- caused high popula- proposed district. And in new specific. timember district is district legisla- tion counties where more than one considering separate When several vote “exoge- lay county, tive district within case, single dilution claims in a courts some- county nous” election results wo.uld rely aggregated must not on data cohesiveness of times reveal challenged concluding all the districts residing in groups voters those of black racially polarized voting exists in through their legislative different each district. responses county elections. common 59, 28, 106 Thornburg 478 U.S. at n. S.Ct. least, circum- proof, This at affords some at n. 28. possible future cohe- stantial evidence out, pointed And as Justice Brennan exception might Another be the siveness. trial court in that “relied on data that case presi- proof of how the blacks voted specific to each individual district primaries when Rever- dential democratic concluding experienced district each But end Jackson was a candidate. Jesse legally significant racially polarized vot- this was a one-time everyone knows that ing.” at n. Id. at n. 106 S.Ct. If results in response. nationwide alone, prop- primary, may, presidential voting, polarized to establish exogenous permissa- erly be used Use elections simply an- where, instance, polarized ble minorities have then 63-64, at S.Ct. supra, Thornburg, Arkansas just “given” not other original). (emphasis 2772-73 the Nation. every state South voted that percentages arguments overwhelming rejects Brennan Justice Blacks pat- voted Jackson, whites “voting while to voting” refers “polarized Reverend for white by the the primarily that arguable It is determined are him. that against terns had less candidacy other the his than voter’s rather response race voter’s voters 64, characteristics," issues. Id. at substantive than race with socio-economic do “polarized vot- 2773, and that 106 S.Ct. at Voting Behavior. reject can- White or 2. select that voters ing” means the the basis on principally opinion didates majority’s carefully has the How 67, at 106 S.Ct. Id. at race. plain- candidate’s the that requirement the with dealt point: “Clear- this on He concludes suffi- votes 2775. “majority the that prove tiffs voter, race not the of the race only the ly, to defeat it ... to enable a bloc ciently as to vote dilution candidate, candidate,”? is relevant of the preferred minority’s at 2775. 68, S.Ct. at Id. at 51, analysis.” 106 S.Ct. at U.S. Thornburg, 478 sug- rejects “the Brennan suggest. We Finally Justice carefully, very Not 2766. voting refers racially polarized discrimina- gestion racial that talking about be should caused is voting which have a bloc should be: to white question The here. tion hostility toward chal- racial voters’ of whites white majority substantial at 106 S.Ct. at dis- Id. candidates.” legislative lenged 1981 contrary to be says would He candidates 2777. against criminating 2 to amending Section their intent solely Congress’ because them against voting test. “results” pure is not say that will majority establish But race? strong rejected authori- 2, Congress have amending question and § In Court by this position. announced requirement that ty for must plaintiffs that Bolden, supra, § instructed Brennan Justice of state discriminatory intent prove the vot- “bloc white show that not have do or adopting governments local or racially motivated. is behavior ing” challenged electoral maintaining the be afforded not to are fact, the defendants suggestion Appellants’ mechanism. view, to his under opportunity, right or individual discriminatory intent the white voting behavior prove that in order proved must voters racially motivated: not voters fail for must 2 claim out § make concept of legal purposes § For in- rejected the Congress very reasons nei- incorporates racially polarized respect governmental with test tent sim- It means nor intent. causation ther Reincarna- The Engstrom, See bodies. correlates voters the race of ply Federal Standard: the Intent tion candidate certain aof selection Cases, 28 At-Large Election Judges is, it refers candidates; or (1985). How.L.J. (or minor- races different where situation at 71, 106 S.Ct. at Id. in blocs vote groups) language ity different It is the difference sons for made whites under atives. correlation selection causes ^[*] by blacks having less Consequently, candidates. of certain elect ^[*] “results between difference—that correlation, matters. ^[*] test” between whites—not preferred candidates, race opportunity sk we of § of voter conclude ^[*] the choices 2, only the represent- results ^[*] rea- bloc But has conditions” need voting.” my reject, majority to these those views. opinion expressed voting” “political for, Thornburg views nor at to Section that a Why? no least cohesiveness” justices judicially judgment definition majority will Justice opinions significantly 2 cases. have Brennan. concerning the reveal of, “polarized created eventually signed Congress modify, “white “pre- It is persuasive testimony in- extravagant interpretations ap- heard that the unnecessarily reached the tent test divisive be- plications of Section have charges where, “pre- cause it involves of racism on point absent some reasonable conditions,” part interpretations would of individual officials or entire those creation, example, S.Rep., communities.” U.S.Code simply require the legislative Cong. p. 214. The hispanic VAP & Admin.News black and Thus, possible. testimony found the of Dr. districts wherever Committee right Flemming, establishment Arthur S. Chairman of the representation based on proportional on Civil United States Commission ethnicity only con- which is Rights, particularly persuasive. race and He tes- express language of Section trary to the tified: 2(b) nothing this section {Provided [ljitigators rep- an intent [Under test] right to have members establishes resenting excluded minorities will have equal protected class elected numbers explore to the motivations of individual population”) proportion to their members, mayors, council and other also, contrary to the my opinion, Consti- question citizens. would be “precondi- only Thornburg tution. So whether their decisions were motivated interpre- machine” prevent

tions” this “slot by invidious racial considerations. tation of Section 2.13 inquires only divisive, Such can threatening destroy any existing ra- “preconditions” interprets But if one progress community. cial in a It is the any necessity plaintiffs for the to remove test, test, intent not the results prove fault or racial 2 cases Section necessary make it would brand indi- part on the of the white vot- discrimination viduals racist in order to obtain ers, significantly then one has not inhibited Ibid, (footnote omitted). judicial relief. important- result. More that “automatic” away grave interpretation progress does with the threat to racial ly, that wit, deplored, harmony Congress perceived the result from nexus between voting power, requiring proof and the that racism caused the the dilution racially discriminatory adoption challenged vot- or maintenance of a cause thereof: my present of whites. it is view ing part on the So electoral mechanism is to much justices greater degree proposed require- on the Su- (1) go preme plaintiffs will back to a more ment that demonstrate that ra- Court interpretation animosity and defensible cial determined white reasonable 2, (2) give discriminatory” test, patterns. a “racial Under the old intent Section meaning polarization, plaintiffs might by proving only content to racial succeed (4) (3) both, accept interpreta- or liberal a limited number elected officials racist; tion of Section and Justice Brennan’s under the new intent test “preconditions” plaintiffs required prove and con- definition of would be interpreted community 2 as so most of the is racist in clude that Section judicial relief. It applied is unconstitutional. order to obtain is diffi- imagine racially a more cult to divisive position Brennan also takes the Justice requirement. that the motives of the voters should not be 71-72, Thornburg, supra, at 106 S.Ct. at gone into that introduces the issue because 2777. therefore be divi- of “racism”

sive. Surely everyone understands that it is procedure in these Report

The Senate states one reason standard allege the in- intentional racial dis- Committee abandoned cases to also Senate that “the Committee ... crimination as a basis for their constitution- tent test was redistricting accepts spell that Section or case. If the lines are drawn so To this out: If one “right minority a VAP in the district protects the individual’s blacks are to, vote,” procedure specifically refers but also the then is it not clear that this "results which it votes, having opportunity” groups than whites right then Section in blacks “less to "effective” 2(b) districting "to elect candidates of their choice"? makes the result automatic in a al claims. And even in a (7th bare Section 2 F.2d Cir.1989). Regardless of case, “results” the record will overflow difficulty suggest may not remove prove (Just with efforts to racism. note from the case the very predicate for the factors.) once more the Senate why And relief sought. not? That is what such cases are ultimate- Finally, Justice says: Brennan ly all about. say To that the defendants in Focusing on the discriminatory intent of cases as this not show that race voters, rather than the behavior discrimination is not the true reason for voters, also wrong asks the question. differing voting behavior of blacks All that matters under 2 and under a § and/or whites in the deny is to area theory functional of vote dilution is voter right to demonstrate that there is no consti- behavior, not its explanations. More- tutionally adequate basis for the over, as we explained detail, su- claim potential relief which will pra, requiring proof that racial consider- follow “establishment” of that actually ations caused voter behavior claim. will contrary congressional to in- result — Justice says Brennan also a voter’s mo- tent—in situations where a black minori- tive and intent test should required not be ty that functionally has been totally ex- because it would be too burdensome to political cluded from the process will be

prove. unable to establish a 2 violation. The § The new intent test would be if equally, Senate Report’s remark concerning the more, not burdensome. In order to old intent test pertinent thus prove specific a that hos- new test: requirement that a “court factor —racial tility ballots, white voters’ ... separate make a ... finding —determined of in- it would be necessary tent, to demonstrate after accepting proof of the that potentially other relevant causal factors involved in the White Reges- [v.

factors, such as socioeconomic ter, character- 755, 412 U.S. 93 S.Ct. istics and candidate expenditures, (1973) do not L.Ed.2d 314 analysis ... ] [would] correlate better animosity racial seriously prospects of eradi- clou[d] voting with white behavior. cating remaining instances of racial discrimination in American elections.” Thornburg, supra, at 106 S.Ct. at 2777. Id., Cong. U.S.Code & Admin. proof But of the true basis of the com- 1982,p. News 215. We therefore decline plaint simply should be excused be- adopt to requirement. such a cause it would be burdensome. Plaintiffs Thornburg, supra, 478 U.S. at in these regularly cases use statistical ex- S.Ct. at 2778. perts. In Title VII we find sophis- cases parties ticated using So, multiple-regression there it is! says Justice Brennan that if (to techniques regress other variables be- we get are to rid of the “remaining instanc- race) sides to reveal was, race whether es of racial discrimination in American elec- not, a tions,” factor a employment certain require proof should not we of that decision. e.g., Seidman, See Allen v. 881 racial I discrimination!14 am convinced 14. Contrast Justice occasion, attitude Brennan’s concern- might, vote. Such black on success ing significance of black candidates’ success politicians, be attributable to work of evaluating elections. He states who, apprehending support a black successes, significance of such the trial court: politically expedient, would be candidate cam- appropriately [C]ould take account of the cir- paign to insure his Or election. success surrounding cumstances black recent elector- might be attributable support to mo- deciding significance al appel- success its to by namely different tivated considerations — lees’ claim. that election of a black candidate thwart will footnote, In a ing Justice cites the Brennan follow- challenges successful to electoral schemes on McKeithen, language from v. Zimmer situation, grounds. In either dilution a candi- F.2d, at 1307. despite polit- date could be elected the relative We cannot endorse the that the view success ical backwardness black residents polls necessarily black candidates at the district. electoral possibility forecloses of dilution of the po- there are And their votes. do with do not sub- justices majority political overtones. partisan tential I am Assuming that notion. to that scribe show? record does this Demo- where

right, what district Republican In a Re- win, assume can never crats that black assumption is the Unspoken defeat against and who vote publicans of racism not manifestation voting bloc racially moti- candidate Democrat black willing voting I am is. bloc white whereas vated? simply bloc accept that Brennan expressed Justice The views for a desire pride and the racial reflect appropriate prevented the have may well arena. the democratic “breakthrough” in voting be- explanation analysis and the basis accept willing to I am And analy- case. Since take in this havior indeed, or, without opinions, experts’ plaintiffs necessary, I conclude to be sis vote of the white portion some proof degree to to demonstrate failed have against pitting contests motivated were white votes which solely simply and unfortunately, is, white therefore, have, discrimination race portion? what on race. But based very heart of establish failed bring to chosen parties voting. discriminatory bloc case: the facts all of attention Court’s majority herein define does the And how political races involved circumstances Thornburg formula- “sufficiently” in the upon by relied votes sufficient- (i.e., tion only given voting. We were bloc prove it to defeat as a enable ly bloc qualifi- the relative at glimpses occasional candidate)? minority’s candidates vis-a-vis of the black cations the notice of judicial may take Court have not opponents. We white their Virginia elections the recent outcomes platforms about detail informed Wilder, a Doug Mr. City. York New and candidates, their the opposing policies or in a Virginia black, governor elected their speakers, as their experience, abilities Virginia The statewide election. very close communities, the in their records” “track demographics black-white Arkansas and candidate, their each recognition of name constitute identical. Blacks almost are personalities, their support, financial population. total percent about detractors, supporters their identity of lost, that would had if Wilder Mr. Now that one would etc., (i.e., factors etc., those “sufficiently” whites had voted prove estimate, like- determine, or to for look minority’s defeat a bloc as in a or failure of success lihood candidate? involved). was not race which contest majority of great writing off Before evidentiary infer—-in this are invited We South, Delta, and the whites voted who the whites all of vacuum—that racists, Arkansas, I regions of Southeast simply en- were candidate the white proof would much more suggest of racial instance another yet gaged at this introduced required than ais agree that this not do discrimination. fare candidate would a How trial. legitimate inference. or reasonable on a ran if he or she voters white this, conserva- moderate that, espousing in cases like accept platform must We person a white against views the manner being penalized tive are people know, do not vote, simply views? We right to liberal their exercise Wilder’s of Mr. analysis one note opportunity but given the being without nothing race:15 had considerations racial show expedi- "political politicians” or to the "work ency.” at 106 S.Ct. n. Thornburg U.S. 2779, n. 37. 15. I feel So, "two-way The defendants street." press popular citing the justified in moti- were not many votes may that white not show journals because professional addition other inherently On the discrimination. are racial case "legal” vated in this issues of "political" Therefore, politi- hand, permitted to show are the views of issues. helpful as experts be as polls attributable were at the successes cal observers everyone Doug then, Not was thrilled with out—but are jackets so Nehru victory Virginia gover- Wilder’s muttonchops for white men. A lot is nor’s race. made of appearance Wilder’s in photo- starters, course, graphs seventies, For there were from early when he people supported opponent, his shirts, who Re- wore an Afro and loud every publican America, Marshall Coleman. The media white, man in black or looked grumbled about the narrowness of the like hell in early seventies. What supposed contest. Wilder was to win black candidates have to wearing avoid is said, comfortably, polls or so the politics of the seventies. When Wil- happen way, when it didn’t when the der won Virginia election to the Senate precinct, election went down to the last years ago, his first issue was a stri- press pundits were stunned. dent attack on song, “Carry the state Me shocked, They were find shocked to Virginny.” Back to Old Since then he’s Virginia’s some of voters still simmered down. a seeker of and, more, racially prejudiced what’s conciliation, together he stitched a com- pollsters. anxious to conceal it from And promise that holiday made a state blacks, having some been weaned on lib- birthdays Lee, of Robert E. Stonewall politics oratory, eral and seismic Jackson, and Martin King, Luther Jr. disappointed that Wilder ran such a But before someone blurts out “Uncle campaign mainstream with so little em- Tom,” plain let’s be that the black candi- phasis on race. date of the nineties doesn’t have to shuf- enough It was almost obscure grin. fle and He must be moderate to man, plain, breathtaking fact that a black conservative, just as a white candidate slaves, grandson had won a state- must interesting thing be. The most Virginia just wide genera- election Virginia about race was its clear tion after Jim Crow. signal whites, that most they’re even if got message right But some folks especially sympathetic to blacks— away. very morning On the after the they’re even if openly bigoted still —do election, Mayor Atlanta Young, Andrew not wish turn to back the clock. No one governor a year’s candidate for for next happy has memories of the fire hoses Georgia, contest in called a news confer- and freedom rides. Wilder’s most effec- ence and rethinking oppo- said he was his spot charged tive opponent TV that his penalty. sition to the death It was no wanted to “turn back the clock.” The coincidence, page directly but a torn out subject rights, was abortion but the sub- Wilder, playbook. of Wilder’s Like who race, message appeal liminal and the years reversed himself over the and be- quo. was to maintain the status To suc- capital punishment, came an advocate of ceed, a black candidate doesn’t have to Young turning away from his liberal rights, simply be anti-civil he has to be past driving and hard to the middle posi-civil rights. noting It’s worth ground. way It’s the candidates black Wilder didn’t send an invitation Jesse 1990s, running proba- will be into the Jackson, sharing who would’ve loved the bly century, into the next and it’s worth election-night glory up but instead ended a look. Larry King with on CNN. style strategy Wilder’s could be Allen, Candidacy,” F. “The Color-Deaf term, called “color-deaf.” The usual co- 1990). Southpoint, (January 16-17 lorblind, really apply, doesn’t because agrees analy- Whether one with Mr. Allen’s always going voters are to notice a candi- not, Granted, accept date’s race. sis or one has to that over 40 black candidate pay percent participating does have to some of the whites voted attention to his Wilder, appearance. percent Dashikis and Afros are for Mr. a black. If 30 of And, legal perhaps expressing opinions reporters those of more so. articles of scholars— course, plaintiffs of in this case introduced journalists. objection great newspaper without number of 248 majority opinion clear that it is So had voted easting their ballots whites

those evi- or evaluate not detail does herein suggest lost—I he Wilder—and Mr. “precondi- Thornburg supporting dence bloc not show “white still that this or cohesiveness” “political of either tions” Thornburg. And into voting” referred as according proper voting” bloc “white phenomenon voting is this bloc I believe because, in could Nor legal standards. upon disproved or proved be that cannot such instances, evidence of sufficient many election in one the results of basis received. or offered was not preconditions voting behavior Some consistent alone. of evidence specific” “district And shown. must be each made has not preconditions course, observations similar And, of this action. challenged in district victory in Dinkins’ be made about could majority’s decision The breadth polit- (tailored reflect City York New can County) Pulaski (which excluded city as contrasted ical environment While remedy fashioned. be seen to note interesting It is Virginia). creation requires the law holding that City Butts v. black that the majority-black number any particular the 40 challenging York, supra, were New states: districts, court nevertheless (i.e., if no provision runoff percent primary know, opinion, in this have found We more in percent 40 received candidate created, can be many such districts how a runoff between then primary, general lines can know that we also required) on the getters top two vote reasonably them as to make so drawn prevent it would theory that is, there- There contiguous. compact and York New for office being nominated any plan fore, presumption a sort of later, here, years four City. And that number contain should adopted in the face only nominated man majority-black districts. also elected requirement, of that op. at 217. Majority 51 Dinkins received Mr. election. general comply with Board order for pri- Democratic the vote percent inevitably have decree, it will court’s others percent and Mayor Koch mary, lines and district change the election, he re- general In the percent. legislative districts many compositions vote, Mr. the total percent ceived over way tainted no percent. Ac- others percent, Guiliani effect,” “ripple Because violation. Butts, the U.S. opinion cording to the more lines in district legislative House the combined found Court District have to be 25 such City eq- New York in black-hispanic vote of significance scope and changed. The the total. percent of 30 ualled candidly be should are about what large of numbers it obvious Is not affect the order will court’s The faced. candi- black supporting are white voters white citizens many black interest race but because dates, not because that are districts living legislative in terms in candidacies Many of their the merits challenged herein. being even perceived platform The lawsuit. philosophy, political completely unaware be obvious equally many it not And is innocent competency? affect will also order court’s are voters affect of white also non-racist) It will large numbers whites. (i.e., (i.e., up in end districts candidates will against black who voting many blacks of the black voters percentage not because opponents) a smaller their white with ide- said that it can be because If race but before. black candidate’s who blacks Republi- (e.g., of those power factors political partisan ological or VAP majority black Guiliani)? new On what Mr. included voting for cans enhanced, must also perhaps bewill many, districts towe assume basis are put power of blacks that the Arkansas clear in eastern most, voters will VAPs reduced in districts black candidates against voted have not some provide try to I will be diminished. reasons? similar the same by comparing effect majority measure of this create a black district. As for the political power 5,934 status of black under the behind, they blacks left will consti- districting plan to what it will be if percent tute 27 of the VAP in the “new” plaintiffs’ proposed plan were substituted House District 85.

therefor. 73, In House District which had included Excluding County por- Pulaski and those most of Phillips County outside of the Hel- County tions of Crittenden that were the region, ena/West Helena as well as Monroe subject challenge of the in Smith v. Clin- County, where blacks per- constituted 42 ton, supra, pluralities blacks constituted VAP, cent of the remedy will leave percent voting between 30 and 39 of the 8,284 black residents to only constitute age population eight House districts cre- percent of the VAP in the new District 73. Apportionment ated the Board of power So of those black citi- They 1981.16 constituted plu- substantial zens who (i.e., have been left behind percent ralities of voting or more of the placed majority districts) black VAP has age population in five additional House dis- clearly been diluted. remedy What do tricts, majority voting-age and a of the have? population then, in one other.17 All tolled pertinent “precondi- Thornburg pluralities percent blacks constituted of 30 findings tions” majority are: or more in 14 House districts under the plan, majority and a in one. apportionment plan created legislative positions, five one in the proposed plan Under remedial devel- house, Senate represent- and four in the oped by response to the ing majority districts which a of the majority’s order of December voting-age population was black. We majority blacks would constitute a districts, find that a total of 16 such voting-age population eight House dis- House, three in the Senate and 13 in the tricts including House Districts where created, could have been and that these already majority. constituted a So districts would have been reasonably con- creating terms of black dis- tiguous compact. We further find tricts, proposed remedy will create in the areas of the State in However, previously. more than existed question markedly polarized by race. accomplished essentially by “pack- this is Both usually black and white voters pre- ing” districts, blacks into a few and reduc- fer candidates of their own race. ing pluralities elsewhere. Majority op. at 198. example, For House District previously encompassed all of northern St. Note specificity polari- there is no County Francis percent and had a 40 finding. zation There is no effort to deal YAP, will, plaintiffs plan, under the now be with challenged sepa- each of the shifted county, to the western half of that rately in totality accordance with the portions and include of Lonoke and Lee affecting circumstances each such district. counties, 8,710 where black residents will No, majority simply “voting states: percent constitute 27 of the VAP. question the areas of the State is mark- edly polarized by race.” page On 208 of In previously House District which opinion, following: we find the included all County of Desha as well as its largest city equalled had difficulty finding We also have little —Dumas—blacks Now, percent 38 of the VAP. Dumas voting patterns highly racially and are adjoining townships its placed polarized, will be in a in the sense that black and up through district that run prefer will Lincoln different voters candidates County County high degree frequency. and into northern Jefferson with a of Fur- including thermore, portions of Pine Bluff voting majority so as to the white is (30%), (40%), (42%), 16. These were House Districts: 24 House Districts: 47 38 73 75 (32%), (37%), (39%), (38%), (31%), (45%), (47%), (47%). (67%) 80 83 85 88 74 and 100 82 (30%) (31%). and 91 VIII, in Section I discuss districts House enough, and consistent enough, powerful appears District 82 only House And preferences voters’ black to defeat infra. to be apparently But excep- “packed.” without almost candidates black Sec- See that. about complaining not are tion. VIII, tion infra. at 208. Id. differences mind the keep in must opinion, We 209 of page Finally, on claims 2 case and a Section between find: require which violations Smith, see constitutional here, it as was It is true well may It discriminatory intent. racially proof of is there F.Supp. at required proof precision Arkan- for the in races be voting polarized claim under Section voters “results” that black a Legislature, establish sas State unit, establish and required aas be cohesively, not vote usually reserving strength un- We are have claim. voters that white constitutional dis- apportionment plan of claim for later present constitutional der the plaintiffs’ districts) to en- here because majority-black (except I mention But cussion. made choices majori- to frustrate them suggestion able is some there voters. may black have been on Section opinion ty's Board in- that the thoughts influenced out the point I opinion in this Elsewhere “so as to lines district drew tentionally these establish proof deficiencies districts. majority black creating proof re- avoid” the elements findings. Unless following language: redistricting chal- Note state-wide quired in stated those from different lenge majori- are avoid as to drawn so are If lines “ger- applied generally Thornburg districts, rea- single-member ty-black cannot cases, proof here rymandering” majori- contiguous compact and sonably conclusions majority’s broad support drawn, been districts could ty-black remedy broad or the 2 violations Section voting is so cohesiveness if racial proof obvious. is The failure imposed. matter, black that, practical as a great saying that simply majority candidates for black preferences voters’ many black as create did in 1981 Board appor- system by this frustrated are as districts House Senate YAP theo- tionment, outlines Section proof that require It did could have. out. are made ry (or packed) previously plan split the 1981 opinion’s explain This cohesive” “politically existing re- specificity indifference seeming proposed citizens not that groups; preconditions. Thornburg by the quired “politically districts in new placed proof plaintiffs’ discussion further Note it does not connection In this cohesive.” VIII, under infra. itself, In postulates. it, very test meet the (an analysis with case the Butts analyzing “Minority?”18 ais B. What states: Judge Arnold agree), an attack supra, which Whitfield, dilution that unlawful not hold does It laws, the runoff primary upon Arkansas’ body’s a multi-member when impossible observed: Court single-member chosen members above, in such when And, drawn indicated been as that have approaches voters class of of blacks split population a certain way age population voting age districts. different among equality shows, in the evidence whites showing previously no There has “cross- pattern addition, consistent of black groups cohesive politically existing which, elections, in actual votes over” seven in except “split” voters were looks discussion to "opportunity elect” IV above in Section 18. discussion Note opportuni- assessing turnouts in voter language Section actual to elect” "opportunity from, of their elect candidates to, this is- to ty voters black is different which relates accepts "minority” section definition choice. sue. This premise. correct as the Age Populations Voting although percentagewise, inquiry are suffi- populations small critical total —not “bridge gap,” registered the basic as- or the (espe- cient to number voters where, challenge provi- here, sumption cially used to runoff as there are no barriers registration). appears reject sions to be undermined. And I the notion that we should use some such nebulous Whitfield, supra, at 1376. voting majority,” standard as “effective see equally perhaps more—true in And this is — Edmisten, Gingles supra, v. based as- redistricting, gerrymandering case such a sumedly upon history some voting “suc- as this. cess.” trying We are to determine under Thornburg, In the court identified the right if the of blacks to vote is evaluating polarized bloc vot- standard being abridged by denied or virtue of the ing: “political processes” being equally open And, general, in white bloc vote opportuni- them that have “less normally will defeat the combined ty” “to participate others strength support minority plus white process representatives and to elect votes rises to the level of “crossover” talking their choice.” We are “op- about legally significant voting. bloc portunity participate.” assuming And (Em- Id. 478 U.S. at 106 S.Ct. at 2769 voting no registration, barriers to or phasis supplied). actual particular “turnout” of voters at a “legally signif- to determine if there is nothing “oppor- So election tells us about that (But voting, tunity.” icant” bloc should first Majority op. Court see Whitfield Circuit, Eighth make an effort to determine supra, whether and in ADDEN- DUM.) “minority” required blacks constitute chal- No one in America is and, so, lenged participate if then determine vote or to political pro- if, spite polarization, voting government, state, of racial cesses of local strength minority of the black combined the nation. with “white ’crossover’votes” is still insuf- my laches, dissent on the issue of ficient to overcome the white bloc vote. If pointed dramatically out how VAPs can voting strength

this combined is insuffi- change ten-year period. in a And since we cient, Thornburg say possi- then we years ten-year peri- over nine into the bly legally significant white bloc vot- od, changes we must assume have oc- sufficient, If ing.19 it is then the attack explained dissent, curred. As al- fails. though will not until know the census is here, in Whitfield, (starting data taken for 1990 within a few Perkins, (with decision), excep- plausible indicates rare months of this the most tions) that there have been “crossover” inference is VAPs understate degree white votes for candidates—in some the 1989 VAPs. And some considerably percent. cases in excess of 5 this understatement does not have to be “ma- proper great change “minority” what is the test to determine if So “minority” jority.” Afro-Americans constitute a challenged Conversely,

within district? accepting fig- But even the 1981 VAP “majority?” when are whites considered a ures, if one adds thereto the consistent racially appears parties It that all to this action “crossover” white vote even areas, that, (VAP) in at agree voting age population polarized it becomes clear "Possibly" concept percent concept The whole of white bloc is used because black. voting" must have some inherent limita- voting arguably play "bloc un- should not come into tions and also must be evaluated in relation to consistently percent over 70 less one race votes instance, Assume, minority. the size of the Otherwise, we are for that race's candidate. percent that the VAP in a unit was 90 ordinarily expectable spreads. dealing with percent white and 10 black. Then assume vari- This, turn, suggests concept also will divisions that white vote in an election ous contest between a black and a white. Then compare pertinent not be if the black VAP is below as, percentage say, percent. such See certain percentage divisions when the Whitfield, opinion district court at 1376. percent VAP is assumed to be 60 white and 40 evi- if had even we solid And in turn-out. legislative least one by, turn-outs consistently lower percent dence VAP was black the 1980 where would, opin- voters, my it still had, say, the have, have and greater, blacks or such evidence law to use ion, contrary to of their candidates elect “opportunity to the creation ordering for was, predicate or as a that candidate even when choice” inhi- nothing If districts. super-majority the crossover That is because is, black. vote, we to of citizens opportunity the of 5 in excess bits usually been has vote to failure reward the certainly should may not that blacks The facts percent. opportunity. that as proportion exercise in the same registered have have), they that appears (although whites with in connection fail must Plaintiffs vote out to turned they may not have 74 since District to House challenge whites, they did that as proportion same districting the shows the evidence candi- the black percent for not vote do that district in 1981 for as drawn lines the They had point. the are all beside date opportunity of the with not interfere to elect and participate to “opportunity" pro- participate in citizens their choice. the candidate choice, of their candidates or to elect cess even are black. candidates position such plaintiffs take even when The Dis- VAP results House Strangely a if constitute blacks con- district, may still be 75 do not they and House District particular in a trict votes purposes of crossover the white “minority” sistently show considered this Act. I referred District Voting Rights find in House [At my skepticism express case: argument point, I want same Whitfield expert's ba- plaintiffs’ statistical County about Lee case, et al. v. Campbell, (i.e., no concluding that there H-C-86-48), Committee, sis (No. Election elec- votes certain zero) court, white crossover involved still before keyed to returns precinct The actual equal produce' tions. plan reapportionment precincts those composition of racial plain- The black districts. single member “statistical” negates conclusion.] this need vot- argued that tiffs more percent or population of 60 ing age black district a “safe” to have

in order AND SENATE “ZIMMER” THE VI. electing the opportunity real FACTORS. choice. In of their representatives A. Relevance to full barriers of demonstrated absence Effect. participation my differences most of I sense characterized process, court electoral ways different from the majority stem against slur argument as racial an and Senate the “Zimmer” in which we treat blacks. many fed- other majority, like factors. supra, at 1380-81. Whitfield, e.g. opinion (See eral courts panel revers- Eighth Circuit majority of the using VAP parties are long as the As supra), Whitfield, court district long this ing upon, and as they agree figures that such factors view that to take seem registra- legal are barriers there no in all cases. applied considered must be my it is view then voting, tion or the relevance state They seem to “majority” percent VAP 50-plus lawby has been established factors “minority”. those ais percent VAP 50-minus 2 cases handling Section judges that courts my it is further view And rely accept and thereon uncritically of must the creation constitutionally mandate factors those it is obvious when even And in districts. “super-majority" relevance scientific real or no usually have the excuses are not even there case made Sec- challenge being under particular no There is action. justify such used Major- and 208 of pages 204-05 2. See tion and blacks that whites evidence reliable to “the refers Judge Arnold Opinion. ity differing and we rates registering contained factors of relevant list differentials of such limited evidence

253 Judiciary usually report by proving of the Senate Committee.” shown voting particular jurisdiction and then states: highly racially po- larized and that members of the minority by confirmed The relevance of list is group have had limited success becom- Supreme opinion Court’s in Thorn- ing public elected to office in jurisdic- burg, 478 U.S. at 44-45 S.Ct. at [106 Otherwise, tion. the relevance 2763-64], of the factors depend upon will the nature of the opinion. Brennan’s I do not so read Justice challenge asserted. fact, Brennan makes it clear that Justice judgments are courts to use own particular jurisdiction If a still had a dealing with most “senate factors.” voting literacy test or a financial burden He states: tax), (e.g., poll test then the relevance of report specifies many

The Senate factors which of the other senate factors would be typically 2 may be relevant to a Section apparent. But when there is an attack on claim. legislative reapportionment plan, I chal-

lenge the relevance of most of the other factors. While the enumerated will factors often special Nevett, In a pertinent types be to certain 2 concurrence in Judge vio- § lations, Wisdom particularly to vote dilution noted that when a court is con- claims, may fronted consisting other factors also be rele- with a test aggre- of an Id,., factors, gate vant and considered. at 29- “the case turns on the Furthermore, judge Senate Committee attitude of the trial appellate and the requirement judges_” Sides, that “there observed is no Nevett v. 571 F.2d 209 (5th any particular Cir.1978), p. number of factors be 233. As stated Mr. proved, point or that a of them Howard Shapiro, M. “with such an elusive standard, way one the other.” judicial discretion is at a maxi- mum and likely outcome is to be inconsist- 44-45, supra, 478 Thornburg, U.S. at Note, ent.” Geometry Geography: added). (Emphasis S.Ct. at 2763-64 Gerrymandering Voting Racial and the Indeed, any purported which view to re- Act, (1984). Rights 94 Yale L.J. quire acceptance the court’s of the Senate article, Later in that it is stated: always Factors as relevant to the factual Some the Zimmer factors—those challenges issues raised Section which focus on electoral structure —sim- fact-finding invade the and truth-establish- ply single-member have no relation to ing province of the courts. So courts districting. remaining factors are must look at each factor and determine its important context, establish social relevance, relevance, or lack of to the is- but, they independent any since sues the case. As with other cases tried particular districting configuration, courts, irrelevant factors must be provide insight can no into the ignored. districting relative merits various course, Of it is almost certain that two plans.... generally, More in cases of Senate Factors will be relevant in gerrymandering, racial where the denial Section case. Those two factors are “the unlikely complete, of access is to be extent to which the elections of distinguish factors are Zimmer unable racially the state or subdivision is districting plans. between alternative polarized” and “the extent to which mem- simply factors is Use Zimmer minority group bers of a have been elected way an effective to evaluate claims of public jurisdiction.” office in the This is gerrymandering. (Emphasis racial add- because the in a case ed) alia, prove, group must inter that the Id. at 197. they belong “politically cohesive” Report “typical “majority sufficiently and that the votes as The role of the Senate extensively by a bloc to factors” also dealt with enable ... defeat the minori- ty candidate.” These two factors are the trial court in at 1381-82. Whitfield re- decisions courts’ of the inadequacy Judge by expressed The concerns of task before the magnitudes tak- flected the should be Shapiro by Mr. and

Wisdom relevance them. seriously. The assumed quite en escape an provides Senate factors the over improvement of no list is The Senate’s specific by the imposed discipline the from It obfus- by provided Zimmer. one the li- so Once language involved. statutory clarifies; simplifies than cates rather their rely upon must berated, judges the makes simplified; order- cannot be what philosophies. political even personal own disorderly. inherently process ly a The business. dangerous can be This at 227. Thernstrom overly rely on to judges of temptation Sen- and upon the Zimmer emphasis The values personal and experiences” “life own plain- has, suggest, resulted I lim- factors proper ate resist. The to difficult becomes in chal- unanticipated success having are notice tiffs judicial of concept upon the its the 2. Note brought under Section lenges the Note how process. in the lost pat- Thernstrom: of Ms. conclusion its comment “confirms” polarized: highly terns subjec- of inescapable element And that of as citizens experience own And our suggests 2 decisions tivity in section required State, we are not this upholding restraint judicial of wisdom this conclu- aside, confirms strongly lay however, ofAs claims. plaintiffs’ sion. supply. in short has such restraint political op. at 208. Majority objective observer “No it is argue that can in the South process judges on course, three each Of Katherine today,” minorities expo- open to less personal brings a lifetime Court past noted, yet “... in, Butler has to, involvement and sure degree but, dem- state, enjoyed this case never plaintiffs of our affairs away come decisions.” always by recent onstrates, we do not evidenced success with involvement and exposure from ap- success would unprecedented Such views, and conclusions, ideas same course, legal stan- past if propriate, being lost to avoid judges are If opinions. wanting. It is found had been dards harken must subjectivity, a sea of amending section however, clear, guid- 2 for of Section language back expect substantial did not Congress the Zim- song of siren resist the and ance Judiciary what Senate from deviation the words Hear factors. and Senate mer as an exten- report described Committee Act: Voting Rights on the expert an reassuring track reliable, sive, way of suggest a here to tried I have test, re- as the The “results” record.” sec- raised issues thinking about “radically it, nothing was port depicted them- lend They do not litigation. tion “untested"; “well-known was new” or great preoc- too resolution selves “easy.” It and not judges” to federal checklist. Senate with the cupation test an intent easier, of course that, Zimmer argued ... aof demanding evidence (defined as them, constitutional guide factors Mo- but the decision “smoking gun”), “an orderliness assumed decisions discriminatory proof bile, requiring subjectivi- disguised their rationality that vote dilution virtually intent, halted had from derived subjectivity But the ty.” amendment suits, advocates the listed factors the arbitrariness restore acting to “We are claimed. turn, which, resulted themselves, progress,” for further opportunity phe- undefined an to measure an effort was to restore intent stated. report in the elector- justice isWhat nomenon. light stuck repair traffic —to normal isWhat these cases asked. sphere? al red. racial between normal relation what is not envisioned Congress What sphere? groups ethnic years in the first four happened. occa- “opportunities When are sue- provision, amended life shared? properly power” sions cess rate of in section 2 minority cases bers of the group register, vote, percent. exceeded 90 or otherwise to participate in the ^[*] >}t % if: Jj! 8}5 democratic process; In addition taking notice of the Court’s Indeed, plaintiffs’ victories court findings Smith, Perkins, Sherpell v. magnitude hint at the of that suc- District, Humnoke School 619 F.Supp. unquestionably cess. An uncounted but (E.D.Ark.1985), 680-681 appeal dis- large number of suits are settled out of (8th missed 814 Cir.1987), F.2d 538 Judge by jurisdictions court reluctant to commit Arnold states: scarce hopeless funds to an almost cause A number of or to take a witnesses testified might stand that be inter- experienced difficulties by preted as “anti-black.” blacks in elec- politics toral in various of the areas af- JjS sj: >!< Jfc by litigation. fected this Polling places rights Those in the community civil who notice; been moved on short deputy fought hard for the 1982 amendments voting registrars have, with isolated ex- justly by elated the results. Not ceptions, appointed only as a result only at-large systems, but also multi- litigation; of efforts have been made to single-member member and districting intimidate black candidates. It is not plans fragment Hispanic black and necessary to point (if decide at this residential “falling concentrations are any) of these barriers were motivated like Perhaps dominoes.” their demise is invidious discrimination. It is sufficient nothing to mourn. itBut has occurred present purposes to note that these consequence not as a leg- considered practices and similar clearly result in dis- judgment islative that such electoral couraging participation in elections. procedures violate rights fundamental Partly this is higher due to a level of or unacceptable entail costs as a conse- illiteracy, poverty, dependence, economic quence disparate impact; racial timidity, even among the popula- rather, change this pri- has resulted tion. And while defendants can hardly marily legal threatened action creating conditions, be blamed for these attorneys arguments whose have been inescapable it is an they fact that are in given credibility by courts— confused large part the legacy history of a courts neglected that have the statute’s discrimination, much governmental, of it process and come close to focus fair beginning constitutionally with the sanc- embracing principle group rights tioned slavery. institution of human proportionate officeholding. previously explained, As I have none of (Emphasis added) Thernstrom at 227. these facts and circumstances tend to B. Application Senate Factors in prove disprove or that the district lines as This Case. drawn in living 1981 resulted in blacks having opportunity the contested areas less Judge Arnold deals with the Senate than other members of the electorate to majority opinion. factors in Section C of the participate political process and to pp. though See 209-15. Even I do not Being elect candidates of their choice. ir- agree many of them are relevant they entirely ignored. relevant should be case, will, nevertheless, supra, this see I findings review certain of his and conclu- not, agree Relevant or do I with respect sions with to some of the factors findings, and the inferences drawn there- explain my disagreement and then there- by Judge Again, from as stated Arnold? with. states, “polling places no. He have been case, moved on short notice.” In this 1. Senate # Factor ordering the most massive re- any history districting The extent of of official required by dis- ever a federal court crimination in encompassing potential the state or subdi- in this in its Nation right approximately vision that touched the of the mem- effect one-third of the coun- politics— or issues, or economics evidence emphasize To of Arkansas. ties litigation, cer- type of will—of this you if polling changes in few instances of aof developed with tain issues communi- in a few notice” places “on short True, the defen- zeal. adversarial usual deputy a few ties; the evidence allega- against vigorously defended dants as a result appointed registrars were intentionally purposely tions that isolated few and evidence litigation; formulating against blacks discriminated is to attempted intimidation instances redistricting implementing And, al- important case. trivialize best that, was at the defense me, Beyond intended, plan. so obviously not though develop was made Little effort spotty. patronize unfairly tends to emphasis surround- circumstances facts and all the are black. who citizens fellow our plain- by the alluded to incident ing each much the Whitfield, dealt many witnesses. tiffs’ of, which we evidence same, type or same incident, to the Lewellen respect With consequence As a in this case. considered Ben- bring Senator on defendants did the findings: following made the I or prosecutor call they not the ham did of citizens the black finds that The Court knowledge the with or others the sheriff harrass- County do not still face Phillips client and Lewellen’s including Mr. facts or in registering, ment or intimidation it be- majority states The relatives. office. The running voting, or testimony he Benham’s lieved Senator always a polling places is location prosecution. nothing to do with the had aver- Blacks on problem. difficult that, “Mr. acknowledges majority The also access having less being poorer and age, degree to some difficulties Lewellen’s experi- to may be said transportation, to op. 210- Majority making.” own of his basis difficulty a statistical more ence course, poor polls. Of 11. getting testi- own Mr. Lewellen’s On basis of problem. face same whites him- opened he I am convinced mony, the location does not find Court I mostly, But charges. to serious up evidence self polls as described finding, “We majority’s disagree with the to black barrier significant a constitutes lawyer, even one a white not think that do minimal given even participation white be, powers that would opposed the who participate. so to motivation I find way.” Id. this treated at 1375. supra, Whitfield, this disagreement with complete myself in findings on the the same make I would me It is inconceivable finding. And is in this case. the evidence basis circumstances lawyer in same things here to all none clear differently. any treated have been would opinion should majority by the referred in other states campaigns political Maybe participation. “barriers” considered rough and but in “civilized” are more factor, the this discussion Under its one does politics, of Arkansas tumble findings of “ef- its documents majority also opportuni- enemies political give his candidates” to intimidate black forts try take them not expect ties and Lewellen, a Roy testimony of Mr. citing the to ex- is not And this advantage thereof. Sen- ran for the State attorney who “merits,” since on the any judgment press incumbent, Senator against the in 1986 ate this tried out in never merits were those Mr. found majority Benham. Paul issue was say that serious It is to case. “entirely credible” testimony Lewellen's be con- might legitimately raised which that, no witness- called “Defendants noting qualifi- upon an candidate’s to bear sidered it.” es to rebut state sena- as a his district to serve cation race, the political Perhaps, absent tor. to make me the occasion gives This not have witness-bribing would issue this case— about comment general more not, episode whole pursued. If many been apply to which, suspect, I one prosecutor badly on reflect of would Possibly because Rights cases. Voting discretion. official of his exercise upon his defendants, the nature identity event, above, But, if any Whitfield, I am convinced that and in at 1384-85. It is political upon “in” faction would seize my view that Section 2 of Voting political advantage against the situation for Rights Act upon does not call courts to assuredly lawyer, a black would as decide in the abstract if deficiencies of lawyer. against have done so a white group compared blacks as a to whites in education, status, (evi- economic or health agree that “there So education, denced less illiteracy, more long history has been of official discrimi- wealth, less income and fewer agree present telephones, nation.” I has a ef- “[i]t automobiles, etc.) fect.” But I fewer am unaware of evidence result in the cur- that “some instances of it discrimi- ability tailment of “the every- to do almost [official occurring.” are still thing world, including nation] the modern vote.” simply begs question Id. at 211. It # 2. Senate Factor nothing and adds of substance to the dis- The extent to the mi- which members of say political cussion to power nority group in the state or sub- in depressed those socio-economicstatus division the effects of discrimination bear will be impact upon less and the them of education, employment such areas as vote-diluting boundary great- lines will be health, ability which hinder their er. The socio-economiclevel of blacks in participate effectively pro- regardless the area will be the same cess. where the lines are drawn. It is also noted majority, heading, The under this states: majority opinion that the speaks “ability Many high- more whites than blacks are ... to vote.” This is a common mistake graduates, many school blacks were made in Voting Rights courts cases. sepa- educated in schools that were both The “ability statute nowhere uses the term law) (by compulsion rate unequal. to”; it unambiguously “opportunity uses There is a tremendous amount of white to.” poverty, Delta, especially pov- but erty among is nearly blacks more 3. # Senate Factor 3. exception. rule than the Blacks tend to The extent to which the state or telephones have fewer and fewer cars. unusually large subdivision has used read, person phone, If a has no cannot districts, majority require- election vote car, ability and does not a own to do ments, anti-single provisions, shot or oth- world, everything in almost the modern practices er voting procedures or vote, including severely curtailed. may opportunity enhance the for discrim-

Id. at 211. against minority. ination majority acknowledges that the defen- Judge caption Arnold’s here is “Use of conditions; produced dants these Requirements Majority-Vote and Other De- indeed “are determined to alleviate He states: vices.” But, notes, blacks, long them.” he “as group, depressed as a remain in a socio-eco- requirement There is a that candidates status, political power nomic their will nec- Legislature get majority for the a State essarily impact upon less and them primary of the vote to obtain vote-diluting boundary lines will be majority- party nomination. And greater.” majority at 211. Then the Id. requirement, separate vote in four recent incorporates opinion a into its table “set- in which black candidates ei- instances ting some out of the economic facts of life plurality ther won office for the two races in the 16 counties where win, expanded threatening to has been challenges this suit district lines.” Id. at municipal judge) (e.g., cover elections traditionally not been to which it has 211. * * * present purposes For applied. already This issue has been discussed majority- simply of a any note existence supra, perhaps ad nauseam. event, V, requirement affecting races for the see discussion Sections III and vote re- candidates number if the Even public many other Assembly and General ballots their will cast large, voters mains Arkansas. offices many how on depending differently

Id. at register have to they expect chances discussing the after opinion, Later Butler has As Katharine choice. Judge Arnold separately^ factors Senate requirement it: “The put [vote] factors those “balance” purports candidate, without his ‘for’ voter allows issue. ultimate on the ato conclusion come opponents. thought about much states, “Also alia: he inter process, In the is a first choice that his realize may voter of a existence is the side plaintiffs’ on the candidate support the shot, will long but at 215. Id. requirement.” majority-vote get another knowing he will anyway, factors, he con- reviewing all After If election. ‘real’ affect chance plan apportionment cludes election, the is the election first Voting Act. Rights violates Section or even his second may select voter same majority-vote strong my view It is defeat hoping to ... ... choice third do not have statutory requirements run-off elected.” not be will hopes he candidate discriminatory ef- racially identifiably course, if fail, may strategy This said on already I have to what add fects. a black voter dislikes candidate Thernstrom: of Ms. the views subject the vot- general election Democrat, the number depends effect [I]ts vote lines and party usually cross can er re- on voter running and candidates change A Republican. a white voter that number both sponse, blacks good for appears procedure alteration an change with behavior Republicans. benefit may thus dis- single-member aIn procedures. stop the are determined minority whites Where in which trict will black, rules plurality the focus of a that were election (the circumstances hand, where candidate other concern), help. a black On Jackson’s determined, majori- per- a with primary not thus first leads the are whites who subse- a white or may may lose aid a black vote ty-vote cent rule runoff, moderate primary, But without In the runoff. quent moderate. per- among have been might not be distributed may there votes white Harold As in begin with. to the choice support But if cent candidates. several majority-vote notes, a without Stanley a conserva- is between round second likely is to candidates the field rule a moderate —black white tive com- the white certainly where shrink; may form coalition biracial white—a keep out blacks munity is determined a ma- Without conservative. defeat to settle office, bargaining preelection coa- biracial requirement, jority-vote occur likely to candidate is one white for have formed perhaps lition one. is the decisive election if the first not to This is only election. first preelec- fact, if one assumes In majority-vote of a superiority assert occur, black then will bargaining tion elections, but plurality over requirement in trouble actually be may candidates value uncertain indicate Yazoo In election. second a without either. effect unpredictable instance, four for Mississippi, County, at 223-24. Thernstrom county for a ran and one white blacks view— contrary to this one If (district) that assumes— ain beat seat supervisor minori- hurt statutes run-off black; vote the black percent 75was gam- them (because deprives ties might splintered, thus will run majority chance20 bler’s runoff. subsequent a without have won matter, that, practical a figures turn-out low to use VAP us logic convinces 20. The in a percent low as VAP as blacks a mi- group is determining a when figures for they just if win most elections could determining district majority and nority or a that, recognize while also But we out. turned pertinent also. here to elect” "opportunity majority "slip up” might on the minority recognize, V, because We See infra. possibly and thus lines are redrawn so that blacks are an than one candidate more and, time, the majority” many vote at the same “effective of the dis- split its enough then, run minority disciplined tricts, will be according plaintiffs theory, behind that only one candidate and unite majority-vote, the absence of runoff re- candidate) how does that circumstance then quirement very will hurt them in those redistricting say Is one to fit into a case? districts. right (perhaps run-off statute is all

that the districts in which blacks required?) those 4. Factor # Senate in all majority are a of the VAP but bad political campaigns Whether have been in which blacks are minori- those districts characterized overt or subtle racial happens And when ty of the VAP? what appeals; districts changes majority from 5 black one majority opinion states: to, say, or 16 black districts? Appeals Campaigns. Racial Racial If, by packing into those districts we blacks offensive, appeals, quite some are com- population have reduced the VAP of blacks campaigns mon in in which a white candi- from, say, percent 10 other districts running against date is a black candi- percent, happens what to the chances to 25 simply informing date. (i.e., Sometimes of those blacks opponent voters that one’s reduced) black seems pull where their VAP has been enough to be to do the trick. Some white plurality nomination or election? off a bought newspaper candidates have ads say? redistricting If So what are we to containing or distributed leaflets percentage decreases the of VAP board opponent’s picture. their black Some- A in blacks in District order to create explic- times references to race are more B, VAP in does a majority black District Mayor’s it. in Pine race Bluff statute, indeed, or, majority-vote, run-off example, supporter of a white thereof, the absence result an increase publicly candidate warned that if white political power? or decrease out, voters didn’t turn there would be a opinion my It is further that courts mayor. coarser words Sometimes constitutionally prohibit, away or do spoken. with, majoritarian democracy remedy as a Majority op. at 212. C.F., for violations of Section 2. Butts v. majority opinion then documents the York, City supra, New 779 F.2d at 149. by reviewing testimony last sentence Finally, my it is view that the circum- brother, and his Carol Andrew J. Willis stance, that the state of Arkansas has ma- Willis, County Judge concerning a race for jority-vote requirements in run-off most County agree in 1976. I with the Desha elections, primary general, may its not strong majority testimony was determining lawfully be considered quite compelling. But it involved one whether the manner in which the Board of years county election in one some thirteen Apportionment drew the Senate and House finding that ago. To further document its resulted in citizens hav- lines black political campaigns have been characterized ing opportunity participate less appeals, major- by overt or racial subtle process political or to elect candidates ity opinion, citing testimony of one wit- subject My their choice. views on this ness, states: Whitfield, in detail in have been discussed 1374-1381, separately, simply day, I To this the races live he supra, at which views said, go separately, fi- church by they herein reference. But a incorporate separately. And as late as irony can noted: When the district even die nal twice, twice, attempt quickly would re- once or but then whites once or spond. opt figures agreeing only VAP rather than respond by So we one candi- kind on Similarly, figures. districts with- turn-out with political prin- date like the blacks. No rational If whites have more than one out run-off laws. presence ciple can therefore be built around one, only the black candidate and blacks have run-off statutes. or absence of opposition might slip up on the white candidate however, lists report, Senate Ma- The City of year, the 2 of this October ra- or subtle roadblock: “overt ex- such public one maintaining, at rianna was course, reference, of only. appeals.” whites cial cemetery for pense, part of whites appeals on is to 212-13. at Id. mes- jurisdictions; majority-white an to was testimony referred Although the is never to vote black sage from blacks “separateness” expression of the eloquent appeal. racial a forbidden considered inference, evil races, and, by * * * * * * ap- “racial thereof, it does document peals” ing though those ments few where, they testified that pointed out that brought forward didacy,” of the race issue. surprised ask: Who elections candidates black. evidence cause voters want black Allen’s term, candidate’s When Frankly, against, adherents —one would opponent was black. color present statement Mostly the plaintiffs’ one of overt or subtle quoted supra, at how referred to. political attempted to race.” of each of the blind, voters fighting separateness elements considers in our national some by the little always in “The Color-Deaf doesn’t campaigns. Surely, surprised to know for, and who is strong evidence supporters of may have plaintiffs upon I inform voters the extreme going to notice that, “everyone candidates really in this agree be inclined However, else- racial society (But I also “the candidates how apply, witnesses relatively with Mr. they are case?) appeals —even knew” fight- white usual to be little Can- was ele- be- tiveness; tlety in What race. invidious But race and paigns all heard. courts do public debate. accounts sought had been under-representation, culated ily constitute ^[******] discussions the court busing a racial dimension ais support. get Plaintiffs mentioning blacks, who were campaigns risks efforts their references to racially identified only overt condemn —to appeals for persuade “subtle” would seem phrase was the 1982 racial held that condemn Comments deny both messages the voters issues connected to appeals racial legitimate appeals are reliable city council white judge do not indiscriminately the candidates’ the candidates alleging black appeal? Sub- Norfolk case —that not whites busing were furthermore candidates solidarity. by necessar- topic for an issue to invite ineffec- is, cal- news cam- politi- in recent to find were able plaintiffs campaigns— Evidence Ar- throughout the state campaigns cal or of candidates on behalf whether case, I said in kansas. What Whitfield the ballot—have propositions on repeat firmly here: I can subtle ra- or of overt “characterized Brief, state: Pre-Trial In their pertinent to the certainly appeals” is cial Phillips campaigns recent “While opportunity in electoral equal question by characterized County have must But that evidence jurisdiction. plaintiffs will appeals, racial overt campaign. The than one more involve race central role present evidence to “cam- explicitly report refers Senate County politics.” Phillips plays in addition, plural. paigns” signifi- evidence not find Court does truly racial. must be question appeal appeals, but racial cant, or subtle overt plaintiffs in for the “expert” anWhen in the participating those accepts exam- litigation cited Carolina North County Phillips process in electoral as “Ed- slogans such of racial slurs ples or less come have more years recent people of all serve Knox will die role playing a central accept race as unify this “Knox can Charlotte” county’s politics. reaching be certainly seemed to city,” he 1385. Whitfield, at though the Senate even And far. too to dem- need mention the report does not Thernstrom: of Ms. comments I add the signifi- office; appeals Hispanics that racial had a of blacks or onstrate it clear- results, influence on election ly possibility cant allows for the that such surely key question. The American is a representatives could be whites elected fringe with can- political scene is strong Moreover, minority support. filled which no one peddling didates lines to (whether tally of those in office listens, rac- many and in communities black) only starting point marks the operate fringe. on the ists inquiry opportunity. Voting into added) (Emphasis patterns at 202-204. analyzed Thernstrom must be to determine only support compet- the level of # 5. Senate Factor candidates, ing but the why reasons vot- mi- The extent to which members of the ers have cast their they ballots as have. nority public group have been elected to preferred by A candidate black voters jurisdiction; office spite have been defeated in of ade- Although agree I do not that the quate opportunity for black voters or- picture presented a balanced of the ganize for common ends. Success is not or, success of black candidates in Arkansas opportunity, the measure of opportu- importantly, more the overall suc- nity 2 question. is the section cess of black citizens in Arkansas over the opportuni- Some contend that the level of decade, agree following last I do with the ty may gauged simply by looking finding majority: who has voted for whom. That whites Only majority-black districts have prefer and blacks different candidates is black candidates been elected to the Ar- seen as decisive evidence of electoral ex- Assembly. All kansas General other in Thornburg Gingles clusion. Thus v. It black candidates have been defeated. (1986), only section case to reach was not until 1972 that blacks were date, Supreme Court to Justice Bren- Legislature century. elected to the in this argued: nan “It difference be- members, Four black three House tween the choices made blacks and Senate, elected at and one whites—not the reasons for that differ- Today only time. there are six having ence—that results in blacks less members, and one of them owes opportunity than whites to elect their his seat to this Court’s decree Smith. preferred representatives Only the person No has won statewide ... ever in all of the 75 office election. And correlation between race of voters Arkansas, candidates, person counties of no black selection of certain not the elected, correlation, has ever been since Reconstruc- matters. causes tion, any county-wide constitutional was that Justice Brennan’s view office. Court, on the and it is an odd minority Majority op. at 213. opportunity. Black voters definition of clearly equal rep- an chance to elect lack However, I add the comments of Ms. resentatives of their choice when whatev- Thernstrom on this Senate Factor: simply by er candidate vir- campaign of a comes on election end choose— having al- tue of been their choice—can day. report directs courts to The Senate enough garner never white votes to most lost, won, has who has look at who win, politics rules of and when the usual blacks, whites have Hispanics, and how shifting coalitions in re- permit A crude count of mi- cast their ballots. changing do not seem to sponse to issues does not indicate wheth- norities office circumstances, In such apply to them. voters have had Hispanic er and politically race has left them isolat- their representa- “opportunity ... to elect potential allies in electoral ed—without choice,” they whether tives their nor of voters in a contests. But unless black doing so. actually have succeeded jurisdiction are entitled to majority-white 2, referring only “representa- to Section sup- representation, the absence of white choice,” equate does not tives of their per candidates does not se port for black the election minority representation with Poli- of Strength or Tenuousness opportuni- of electoral denial constitute Appor- Plan of Underlying the cies representation to right ty. And tionment. by the Su- rejected both explicitly deci- and guidelines in the constitutional preme my Court view It is by apportion- of and the board policies section of resurrected stated sions 1981, were ment, promulgated as amending the act. Congress instead, but, reasonable reflected tenuous meaning of distorts Brennan Justice could ex- that one approaches policies and while simultaneous- opportunity electoral guidance to give adopted to pect to be faith statistical showing excessive ly If plan. apportionment of execution voting patterns. analyses of in the state Arkansas people all the at 205-206. Thernstrom black, would be no one all were or white and guidelines the stated suggesting Elected Responsiveness 6. Lack attempting “tenuous.” policies were Officials. one-person, duty under discharge their conclusion majority’s obviously neces- agree I it was principle, one-vote stated unresponsive-ness depart from its charge of sary the Board “The that: occasion. On op. policies on Majority at proved.” guidelines has not attempted to Board whole, that the I find convincing evidence is no 213. There fairly good did a policies and adhere to representatives white the elected doing so. job insensitive presently areas are questioned their black constituents. recog- the interests the Board not fault And do indicates that contrary, evidence incum- value of On the nizing importance con- their black the admit- about they concerned much because bency so—not the incumbent but about interest of personal and concerned interests ted stituents’ her value his assiduously pursue. of its votes, more because their tenure is Long legislative do constituents. that blacks wrong to conclude itSo through an increase usually rewarded their just because representation It is effectiveness. prestige and power, white, just as be representative life reality that this only natural whites do wrong to conclude that would be process. redistricting recognized their just because representation not have may be black. repre-sentative TO DECISION MAJORITY’S VII. THE important. Justice very finding is This COUNTY PULASKI EXCLUDE along voting racial states that Brennan ANALYSIS. AN DISTRICTS: pre- of their deprives blacks lines not on Senate factors emphasis ‘it also allows “... representative, ferred language of to adhere the failure [minority] interest ignore those elected “pre- Thornburg the three 2 and consequences.’ fear of without too, case, in this can be seen conditions” 617, 613, U.S. Lodge Rogers v. [458 why explain attempts to majority when the 3275, (1982)] L.Ed.2d 1012 S.Ct. County a Section excluding Pulaski it is unrep- effectively minority leaving the ... suggested here Plaintiffs violator. at n. 478 U.S. Thornburg resented.” dis- single-member majority-black, four But, as demon- n. 14. S.Ct. at Board created have been tricts could case, always true. is not in this strated rather than in 1981 Apportionment have unani- this Court judges The three large district. existing three-member have not mously agreed that racial noting the evidence briefly After elected charge that the dis- proved campaigns, socio-economic appeals in challenged dis- racially-polarized representative from parities, Pulaski to, re- history sensitive of official discrimination not been tricts have evi- concluded County, the their black to, the interests sponsive had been factors to these relevant dence constituents. 184, 197, 1676, 1683, established, ex- U.S. 84 S.Ct. although not to the same (1964). areas of the L.Ed.2d 793 also Karcher v. challenged in other See tent as Then, 725, 755, in a op., Daggett, at 215. 462 U.S. 103 S.Ct. Majority state. (1983) (Stevens, telling J., most perhaps that is 77 L.Ed.2d 133 statement solely upon relying concurring) (Advocating objective flaws in use of the inherent factors, “Is it majority asks: judging constitutionality ger- the senate criteria for County] enough? districts). Ultimately, different rymandered the ma- [Pulaski end, judgment, as is one of question, jority this issue on the ba- decides “close” judges politicians and to which reasonable “preference sis of the of the black commu- Id., at 216. may differ.” County nity expressed in Pulaski two representatives.” Using of its elected this finally “tips the balance” Note what guidance approach, what is there to inform respect with to Pulaski Coun- majority use, abuse, prevent the or to testimony of two incumbent black ty: The judicial The law exercise of discretion? main- legislators expressing their desire to resting place along slippery can find no that a quo, and their beliefs tain the status slope! county was district in the multi-member minutes of palatable”, as well as the “more plain- agree majority I that the with Apportionment’s public hear- the Board of tiffs have not established Section viola- no one testified ing in 1981 which respect to the tion with House Senate creating single-member districts favor of County, in Pulaski but not on Id., County. at 217. Pulaski theory some that we should not “fault” the County quite political scien- Board or that Pulaski “is not recognize many We view, challenged areas. that the as bad” as the other disagree with this tists Rather, failed, plaintiffs respect with do not opinions of two elected officials all of to the House and Senate districts created necessarily represent the views of constituents, County, to meet the re- the views of 1981 Pulaski let alone failed to quirements of Section and have parts in other of the Coun- black citizens note, however, preconditions required by testimony of establish the ty. We I simple It is as as that. present Thornburg. case that White Governor completely reject the notion that a Section County asked no black citizen of Pulaski ultimately upon turn 2 violation can single-member districts. community,” even “preference of the black of all the After a careful consideration upon a “preference” is determined if that factors, question in we resolve this close opinion of simply more solid basis the defendants. It would be favor of representatives. two elected Apportion- unfair to fault the Board expressed acceding ment for to the ESTABLISH DID PLAINTIFFS VIII. only legislators two black wishes of 2 VIO- OR MORE SECTION ONE County appeared who be- Pulaski from LATIONS? it. fore legal review some of Herein we will added) Id., (Emphasis at 217. opinion earlier in this principles discussed short, analyze majority did not In principles to the attempt apply those County in accordance Pulaski situation This exercise this case. actual facts of 2 to determine language of Section inadequacy will, believe, I also reveal a case thereunder if the made analysis. majority’s test. The Senate pursuant to the “results” Supreme set forth Court Gingles conclu- majority led the factors rigorous test for seen as a County is should be in Pulaski what sion that the situation 2. To establishing violations of Section different, degree, that of only in that the with, explained begin the Court areas. It leaves the other list of factors “flexible fact-intensive” than Justice with no more of standard circumstanc- “limits the Report obscenity know the Senate Stewart’s definition —“I violations Ohio, under which Section 378 es it.” v. it when see Jacobellis 264 creation lines had on 46, onstrating the effect Id., at ways.” 478 U.S.

proved in three districts). has There majority-black these two of The first at 2764. 106 S.Ct. the explanation of how no coherent importance been particular limitations are “op- boundaries legislative district that various position the here, give support to [plain- out or cancel to minimize reme- provide Act should Voting Rights erate^] candi- preferred ability to elect govern- tiffs’] for unintentional dial assistance 48, S.Ct. at Gingles, at 106 U.S. 478 affirm- date.” impose wrongs, rather mental 2765. minori- to enhance on the state ative duties power.

ty political limits, Gingles initial from these Aside who minority voters clear that makes Gingles first noted also Thus, the Court violates structure that an electoral contend considered device no electoral that conjunc- “a must demonstrate demon- Section must per se violative. Plaintiffs “First, preconditions: three circum- tion” strate, totality under the demon- be able to minority group must challenged “result stances, that the devices large geo- sufficiently that it is process.” strate unequal access electoral majori- compact to constitute Second, graphically added). the Court Id. (emphasis Id., single district.” ty in a member of an the existence Gingles explained that here, Where, plain- at 2766. 106 S.Ct. mechanism electoral dilutive allegedly 2 violation that the Section allege alone tiffs representation proportional lack of single- from the gerrymandering stems a violation. not establish does lines, suggested the Court district member case, mecha- “electoral present In the be a necessary precondition would that legisla- placement of is the nism” at issue minority group “that is showing that claim lines. tive Plaintiffs district enough to large compact sufficiently way in a have been drawn districts district has member single constitute politi- potential results in the dilution multimem- two or more split between “District voters. strength of cal black districts, single-member ber phenomena.” rarely neutral lines are Gaff- strength of diluting potential effect 735, 753, 93 Cummings, 412 U.S. ney v. Id., n. 16. minority vote.” (1973). 2321, 2331, 298 37 L.Ed.2d S.Ct. plain- compactness, geographic To define viola- be seen as Gerrymandering cannot upon principally relies post-trial brief per se—not unless tiffs’ Act tive Edu- County Bd. v. Baldwin placement of district Dillard that the demonstrate (M.D.Ala.1988), in cation, F.Supp. 1459 686 the elec- unequal access to lines resulted “a district stated: court which district nevertheless process. toral Plaintiffs compact if it sufficiently geographically conjunction of two rely upon largely Id., representation.” allows for effective Gingles clearly states circumstances a chal- Dillard involved 1) Of course at 1466. prove a violation: are insufficient voting system used at-large 2) to an lenge drawn and lines were district challenge Implicit single county. re- plan proportionately did not resulting among the of interest commonality in Arkansas was population flect county, particularly of that residents possible majority black number of terms of so here. That is not minority residents. its districts'. split join and alternative Plaintiffs majority opinion does Unfortunately, common- no similar communities place identify the effect specifically Dillard Even should be assumed. ality had lines ment of various district not be that “a district would recognizes Byrne, F.2d v. Cf., Ketchum voters. spread out if compact it was so sufficiently denied, Cir.1984), U.S. cert. (7th there convoluted if it was so ... or (1985); L.Ed.2d 692 105 S.Ct. Id. community....” no sense of Elections, supra, Bd. v. Rybicki State mi- precondition second district F.Supp. (placement politically cohe- that it is group nority show whites and included lines excluded political cohe- show Id. Failure thereby dem- sive. disproportionate numbers lyze plaintiffs’ claims in the holistic manner finding of a viola- prevent siveness instance, be im- adopted by majority. 2 since it would For under Section tion particular that a “elec- establish possible majority plaintiffs geo- found that were a minority thwarts distinctive toral structure graphically compact group portion in a separate treat- The group interests.” Id. running roughly along Arkansas down and cohe- political and demographics ment of east, region including the delta in the and siveness, the latter definition of portion counties in the southern several interests, group terms of distinctive testimony the state. This is based on the the as- Gingles bars strong indication plaintiff’s expert Jerry Wilson and vari- alike, or can sumption that all blacks vote maps existing and alterna- ous show cohesive presumed to constitute be of concen- tive districts relation to areas they reside or what matter where blocs no Ex- tration of black residents. Plaintiffs’ prior political experience might be their However, through hibit 6 13. as more ful- behavior. below, ly explained close examination of demonstrate that Finally, plaintiffs must always support this evidence does not sufficiently as a majority votes the white finding that the residents included special it—in the to enable absence bloc geographically compact very in the ar- mi- usually to defeat circumstances— nority’s plaintiffs majority-black eas contend preferred candidate. Id. order during could have formed significant,” plaintiffs must “legally to be apportionment. “normally vote that the white bloc show generalized approach plaintiffs’ strength of minor- will defeat the combined impossible claims also makes it almost votes.” ity support plus white ‘crossover’ polarization, racial evaluate Id., 106 S.Ct. at 2769. 478 U.S. among cohesiveness black voters since explained also various The Court instances, way predict many there is no Report in the “are factors listed Senate from diverse how black voters assembled of, to, a mi- supportive but not essential suddenly if parts of the state would behave Id., n. nority claim.” 478 U.S. at 48 voter’s political unit. Can it placed into a common corollary n. A at 2765 S.Ct. said, suggests, Plaintiffs’ Exhibit 6 be relating that evidence to these then is Dumas voters in Pine Bluff and that black support a dilution cannot alone vote factors politically Cf., cohesive unit? Dil form claim. Education, Bd. County lard v. Baldwin compact- Determining the existence of they su-pra. What evidence is there ness, political cohesiveness and beyond group interests share distinctive matter voting is a critical threshold bloc skin color? finding ultimately be linked to a that must must question is a of law that There preconditions interacted with the that these one can deter- (here, faced and resolved before challenged electoral mechanism establishing lines) plaintiffs in a manner that results mine if succeeded district (here minority assumed to be African- case. The 2 violation this Section Americans) having opportunity less in all redis- question will be fundamental participate political process instance, others to in this case tricting For cases. of their choice. and to elect candidates system- effort to plaintiffs have made no glosses over these critical majority opinion the defendant Board atically prove that elements, emphasizes instead Sen- political- existing groups of split prior finding Section violations. ate factors All that ly cohesive voters. the district lines attempted prove is that largest, appears that this case is the It who, predictably, would split voters ambitious, redistricting chal- most group if politically cohesive constitute a directly affected ar- lenge filed. The ever placed future they are at sometime spread over 16 counties out eas include It is a matter legislative district. in one miles. It is insufficient several hundred enough to history. Is prediction, to ana- applying Gingles purposes ond, long-standing politi- form the counties “po- Thornburg precondition satisfy the possess their often not. cal subdivisions I think litical cohesiveness”? They pos- also natural own boundaries. However, though the even economic in terms of sess characteristics establish systematically effort made no distin- services that governmental base district, they district precondition from, may in instanc- and some guish them I from evidence which on sufficient put with, neigh- competition them in place es finding politi- of a to make have been able It was their cities. boring and counties of to seven cohesiveness relation cal of prompted the Board this feature this evi- cases In most districts. House guide- promulgate as Apportionment to “exoge- results of found in the dence is counties, pos- wherever line the belief that groups of black in which nous” elections dis- sible, split by legislative not be should legislative districts different voters from fail- to the Board’s county point Plaintiffs elections. in the same tricts. have voted to this of vot- to adhere evidence in some districts accept such circumstantial ure such seems adequate basis for dilution. It as an as evidence of ing guideline behavior weak- plaintiffs’ the overall evidence findings. Nevertheless then that only natural case in this evidence rules.” “ground ness the “election” of the same be evaluated with compared it is apparent when becomes There Thornburg. used in

the evidence Coun- Mississippi and Crittenden A. primary plaintiffs legislative used 53 ties. period results over a general election and claimed, majority and the Plaintiffs in the six years election of three different found, existing District a violation in House must one When districts. multi-member Mississippi includes most of here, voting elections, as rely exogenous northern Crittenden County portions of com- difficult more becomes behavior data, According to 1980 census County. pare. VAP. percent black the district had a 32.33 aas analysis uses counties The below time, county a total had At same analyze plaintiffs’ evi- by which base 16,164 59,517, were of which population of compactness, cohesive- dence of Exhibit Plaintiffs’ residents. black See ness, voting majority bloc white Table”). (hereinafter “Census p. of district boundaries. to the effect relation the entire District which includes House separately Municipalities evaluated a black VAP Blytheville, had city of cen- populations under where their Overall, popu- percent. black about form sufficiently concentrated to sus were percent. equalled Blytheville 37.99 lation of districts, legislative separate one or more por- plaintiffs use since significant This county, i.e., rest of separate majori- that a city establish tions Bluff. and Pine Helena with Helena/West have been formed could ty-black district sparse, as population Where However, only constitut- this area. plaintiffs’ House District area of population total percent ed 27.1 necessary that it would be indicate exhibits the 1981 County at the time of Mississippi several different merge voters from apportionment. district, analy- single to form a counties rele- synthesize evidence attempts to sis in this that blacks In order establish general area. vant to that to have sufficiently numerous region were dis- single-member in a majority formed municipali- populous counties and Using legisla- trict, undisturbed the leaving while two starting point is sound for as a ties in the remainder created tive district relatively few First, there reasons: court by the district County Crittenden in which legislative districts elections Clinton, supra, v. Smith opponents, faced black candidates two-county dis- narrow, elongated, create plaintiffs’ evidence most of and thus Alterna- (See Exhibit G: Plaintiff’s from trict. voting comes racially polarized 8). District Sec- tive county-wide elections. “exogenous” placement majority formed a but for the plaintiffs suggest that Specifically, district could have for House Districts 23 or 24. voter boundaries majority black por- have included that would been drawn Moreover, plaintiffs present any did not Mississippi coun- tions of Crittenden racially polarized voting in Mis evidence essentially run The district would ties. sissippi County, municipali or either of the south, Mississippi River north to “directly” ties that would be affected To reach eastern border. as its polari this lawsuit. existence such strength, the district would accepted must be in Crittenden zation Township Mississippi Coun- split Monroe holding County on the basis of the capturing solely purpose ty, However, say v. Smith Clinton. dis- proposed voters Osceola. polarization townships exists in split apparently also Osceola trict would pure speculation, just cities north is as it legislative districts. separate into two itself guesswork say would be that black resi there, reaches further the district From Blytheville Mississippi County dents of along the north, creating a thin isthmus group with black share distinctive interests city Blytheville, river until it reaches townships residents of the rural of Critten capture pre- again the district would where County. C.f., den East Coali Jefferson city, dominately portions of the while black Parish, supra, tion v. 691 Jefferson Currently, Blytheville excluding the rest. Therefore, F.Supp. plaintiffs at 999. failed township single- create surrounding its preconditions a to establish the of Section short, plaintiffs 24. In H.D. member 38, any violation in House District or of the living in merge residents black region other districts within this three, regions, consisting of non-contiguous state. rural town- portions municipalities single, ships in two counties to form Phillips County. B. majority black district. apportionment, parts of Under the 1981 finding support

This does not Phillips County were divided into three geo- sufficiently large formed blacks These were: House Dis- form a House districts. compact group here to graphically 75, includes Helena and West majority district. trict which single-member black Dillard, surrounding F.Supp. at 1466. Helena and the immediate supra, 686 C.f, 73, in- portions townships; House District which the southern of Crittenden Once remaining inquiry from this two of the town- County are excluded cludes all but —as request map Phillips County, shows that and all of Monroe ships —the west; community region District County the black and House large compact, spread County, but rather out over includes most of Desha comprised of both pockets in several town- area includes the two southernmost also townships. This is not an junction cities and rural Phillips County near ships contiguous where a and concentrated Mississippi area rivers. Arkansas and split has been of black residents area 1. fragmented into several prove political begin, plaintiffs did To thereby diluting their districting lines among as reflected cohesiveness blacks strength.” Thornburg v. “potential Gin- in the last elections held studies of various at 2766 at 50 n. 106 S.Ct. gles, 478 U.S. candidates black and white decade in which contrary, the creation in 1981 n. 16 To the Simes, In L.T. opposed other. each Blytheville area of a district out of Pri- Democratic ran black candidate political strength apparently enhanced the from Representative mary for the office relative to the rest of of black voters support 75. His estimated House District voters do not form a county. While black per- ranged 87.5 voters among black districts, of these House percent. 92.5 cent to that this does not demonstrate the evidence of a only reported instance fracturing an This was splitting or a function of running for House District have black candidate group voters who would insular This standard district boundaries. However, data from of election other 75. minority votes support the con- racial only protect also county-wide elections “would support common tend to that blacks caused proximately clusion from diminution elec- county-wide In eleven candidates. not assure districting plan; it would in which and 1988 between 1984 held tions representa- proportional minorities racial es- opponents, white candidates faced n. at Thornburg, supra, U.S. tion.” for black candidates support timated (citations 2766 n. 17 omit- 106 S.Ct. at percent percent to 100 ranged 80.2 between added). have not ted; Plaintiffs emphasis voters. all black in House District to be the case shown this “legally signifi- is also evidence There 75. voting. As noted majority white bloc cant” apportionment, Helena At the time of the per- above, for almost accounted populations had total and West Helena of House voting-age population cent 10,708, percent, 20,965, or 51.07 of which only election In the 75. District Census Table black residents. See black candi- involving a white and district Consequently, population these ranged date, vote be- “crossover” white to reach ideal cities was insufficient percent. to 6.7 estimate 0 an tween 22,855 persons estab- house district size involving four county-wide elections eleven Apportionment, or by the Board of candidates, lished “crossover” was estimat- 21,713 percent persons. 2.4 to 13.8 range between the minimum of ed homogeneous dis- analyses in of percent short, to people had to be added In more using either tricts, to 4.9 and between 0.6 single form a member cities in order to regression analysis. See double single or one-per- comport with that district would 3, Report Eng- of Dr. Exhibit Plaintiffs' requirements. son, one vote constitutional Report”), (hereinafter “Engstrom strom by incorporating into This was achieved Meanwhile, city-wide four elec- in 2. Table Horner, the rest of St. District 75 House 1986, in white “crossover” in Helena tions in townships, L’Anguilline Francis and only percent in one at 3.7 estimated was Helena are located. Helena and West rest, it was estimated In the race. population of the brought the total This no white voter candidates received 11,542 22,582 of which persons, to district 2, Table Plaintiffs’ Exhibit support at all. must noted residents. It were black Thus, that white it can be concluded 3. to boundaries extending district enabled voting existed that majority bloc townships ac- of the include the remainder usually defeat candidates to voters white in percentage of tually white “crossover” increased blacks and preferred House District percent in and around both to 51.1 voters House District 75 counties. Phillips County Monroe in true, 75 that the district population. It is total short, percent black voters were the 45 percent a 44.59 in had as created 1981 percent or more ordinarily joined 5 not this was a function Yet again, black VAP. enough elec- in “crossover” votes and white age in the black disparities remaining white usually to defeat tions per- community, sheer numbers and of bloc. and West Helena living in and around sons 2 into whether a Section inquiry But the district enabled Although the Helena. cannot end has been established violation large geographically form a blacks to finding dilution H.D. 75 A of vote here. majority of and a total compact community, plaintiffs have demon- unless stand cannot large enough to they were population, at is- mechanism that the electoral strated majority as of 1980. voting-age constitute a case, of district placement in this sue now, the time of or at figures are What the boundaries, minimize or cancel operated Engstrom, is analyzed by Dr. elections voters. strength of black potential out guess. anyone’s plain- Thus, voting, polarized in addition However, nothing in the record there is resided black voters must show that tiffs placement of that demonstrates they so that in sufficient numbers area this House District result- the boundaries politically cohesive have formed a could “political” potential ed in the dilution placement in district majority a have districts could Obviously, such evidence voters. strength of black But that apportionment. in the 1981 voters drawn the black demonstrate does not oper- majority, what was drawn prove formed does not have could region effect, diluting ated, their numbers or had not show does reduced adjacent manner that strength in a in the area fractured split or existing political could out Helena. What cancelled and West Helena proposed enhanced, alternative strength. Plaintiffs’ would have have been drawn conclu- supports this area for this created, district dominant black even draw district could sion because But to use already did not exist. base give blacks that would apply vote dilution is this as evidence Rather, region. West Helena Helena and Vot- affirmative action principles of incorpo- cities and split the plaintiffs meaning- that would render ing Rights Act com- separate districts into two rate them “nothing proviso less the Desha, Mon- Phillips, portions of prised right establishes in this section counties. See roe, St. Francis Lee class elected protected aof members House Alternative Exhibit Plaintiff’s proportion to their equal numbers 1 and 9. District 1973(b). There- 42 U.S.C. population.” § funda- illustrates a district This to demonstrate proposed fore, have failed case, i.e., plaintiffs’ through weakness mental 2 was violated that Section compactness geographic their evidence District 75. creation House competing legitimate every other ignores redistrieting ex- inherent policy concern apportionment most Under U.S. Daggett, v. In Karcher cept race. County outside the Helena/West Phillips (1983), L.Ed.2d 133 103 S.Ct. House District placed into area Helena equal down on struck Court Supreme Coun- of Monroe includes all which also Jersey’s Con- New grounds representation black VAP. percent 41.66 had a ty, and though the plan even districting gressional a third time split then County was Phillips per- less one of deviations plan had and Tappan Moo- through placement so, eschewed doing the Court cent. In 85, District House townships into ney could be districting scheme that a notion Desha comprised of which otherwise long so attack from constitutional immune 85 had black District County. House within populations fell districts’ as the percent. 37.76 range of devia- VAP acceptable numeric some time, noted the Court same tion. At county-wide earlier, data from As noted consistently nondis- any number of politically that blacks suggest elections justify policies could criminatory applied support of their cohesive, in terms at least in- among districts variances population candidates, there existed and for black “preserv[e] desire cluding a state’s is able vote majority bloc white groups,” minority racial strength of preferred candidates usually defeat 2664, well as at 742, id., 103 S.Ct. white votes. any “crossover” plus blacks mu- compact, respecting “making districts political cohesiveness evidence cores boundaries, preserving nicipal supplmented voting is racially polarized avoiding be- contests prior districts and Primary for House the 1984 Democratic Id., at Representatives.” tween incumbent Phillips and 73, blacks which District added). (emphasis at 2663 S.Ct. supported a black candi- counties Monroe over- into an race would turn Plaintiffs percent to by an estimated date several than one of riding rather concern election, estimated same In that percent. in an effort must a state balance ranged between support “crossover” white ap- an Such representation. equal achieve percent. 12.5 percent and 5.6 of both view cannot be sustained proach to create used townships Excluding the clear Congress’ Court’s Supreme Phillips Coun- the rest District rep- House proportional guarantees rejection of 12,190 persons population 1973(b). ty had total U.S.C. § See resentation. 6,868, encompasses all of the percent 56.3 House District 100 of which townships in county, Table at 19. Obvi- as well as several were black. See Census pop- ously, Phillips County Although had insufficient Ashley and Desha counties. district, legislative to form a majority ulation alone in the total blacks constituted district, and additional residents needed to be incor- they only com- population of the porated surrounding from counties. On prised percent voting-age popu- 47.21 hand, merely combining the re- the other 5, Report Plaintiff’s Exhibit lation. See Phillips County and all of Mon- mainder of Wilson, (Hereinafter Appendix D Jerry created a district of County roe Report”). “Wilson 4,000 26,242 approximately over people, or plaintiffs’ Both the census tables and get back within the the ideal size. To maps geographically indicate that a com- acceptable population range, the Board pact of blacks resided both in area Chicot number of town- needed to exclude some townships County immediately ships Phillips or Monroe. The either Ashley County, and that to the west excluded from Phillips, Board chose resided sufficient numbers to form Tappan Mooney House District 73 majority. single-member district 1,489 townships and their black residents. ample politi- There was also evidence of included, townships the over- With these “legally significant” cal cohesiveness and percent have had a 48.0 sized district would majority voting. white bloc No black can- population. The exclusion of these didate ran for office in House District 100. percentage townships further reduced the However, involving in five elections all vot- percent. of black residents to 47.4 County, ers from Chicot estimated black say speculation It would support ranged voter for black candidates County townships might Monroe have been percent percent. between 59.8 to 96.8 excluded House District 73 instead. from races, support all but one of these choice would have been One reasonable percent. the black candidates exceeded lay townships those farthest time, county- At in these five the same Phillips County, and a review of the evi- wide elections held between 1984 and dence indicates this would have meant ex- was no white it was estimated that there cluding virtually townships, and all-white Consequently, at all. “crossover” consequently increasing percentage rose to the level of bloc vote in House District 73 to some number could, legal significance every since it in percent. above 48 election, preferred by the candidate defeat It that the should be noted exclusion of minority. Phillips County townships only rep- No election data was available from Ash- county, resented a third division of the it However, ley County. County, in Desha placed Mooney Tap- also residents involving only election a black candi- pan townships separat- in an area that was candidate, running against date a white ed the Arkansas River from the bulk of support ranged between 84 estimated black County. District in Desha As a House 85 percent percent, with no white and 100 result, Phillips County some residents crossover whatsoever. have to travel some miles to would 90 representative’s reach their office. Therefore, preconditions the minimal compactness, political cohesive- geographic circumstances, splitting these Given bloc have ness and white County in Phillips of black residents into remaining met. The determination is 73 can seen to House Districts and 85 placement of district lines. the effect of the operated have in a manner that diluted the boundaries The clear answer is that political strength. black strength in potential black diluted Chicot, region. Ashley C. Desha and Counties. its House District 100 retained strongest evidence of dilution was Because apportionment 1971

presented County. shape from its earlier and around Chicot district, from the ideal district acceptable deviation existing other more 4at and 6. See size. Census Table can be determined the boundaries effect by the changes made by comparing easily area, in this geography Given in 1981 in relation Apportionment Board only two choices for further Board had resulting composition of the racial expanded north expansion: it could have Compare Plaintiffs’ Exhibits district. into County, or further west into Desha 42. would Ashley County where the district township, the last re- picked Wilmot have 1971, County, as well all of Chicot Ashley/Chicot maining township on the town- Banner, Montrose Bayou, Union and County border. County com- Ashley neighboring ships to add Wilmot Had the Board chosen House designated what was then prised 100, brought House District would composition of racial 79. The 1970 District 1,495 population total in an area with a part was not made a district thereby the district within people bring case, of such and the absence in this record range population. It acceptable through- evidence, for this district both incorporated into the dis- have also valu- state, the court of a deprived out the township and predominately trict a to ana- with which or benchmark able tool that would legislative district created claims.21 lyze plaintiffs’ percent popula- total have had a 53.7 taken However, can be judicial notice Instead, district boundaries Id. tion. census, House according to the Desha, county, into a expanded third 19,430 population had a District 79 total town- picked up all-white where it almost 10,473 percent were or 53.9 people of which thereby legislative dis- ships, and created Further, opinion it was black.22 popu- percent total black trict with a 51.98 deciding the constitu Henley, then Judge Report: Appendix D. Wilson lation. district, “Negroes tionality of the Therefore, placement of boundaries Representative able to elect ought to be 100 somewhat diluted for House District Bumpers, Kelly v. 79....” from District vot- political strength of black potential (E.D.Ark.1972), aff'd, 568, F.Supp. when com- apparent is also ers. Dilution L.Ed.2d 1019 93 S.Ct. 413 U.S. composition of changed paring the racial (1973). district. the 1981 the old 1971 district with County population of Chicot By in which the that the manner it is clear So Table dropped percent. two Census had in blacks in 1981 resulted lines were drawn in- overall Coupled with the state’s representa- to elect having opportunity less corresponding population had crease before their choice than tives of size, necessary Therefore, dur- if I it was “ideal” district drawn. those lines were expand apportionment majority that ing agreed the 1981 with the outward. lines as drawn district’s boundaries that the legislative need show having opportu- less 100 was drawn House District 1981 resulted So representatives of and the nity include all of Chicot than others to elect again once majori- choice, Ashley County town- I would concur mentioned their previously have estab- county ty’s judgment the latter added from ships. Also respect to 2 with Portland, DeBastrop a violation lished Section Beech Creek were plaintiffs did since 100. But alone would House District This townships. expansion the lines drawing of popu- prove total only brought district’s opportunity having less 1,077 resulted blacks 20,636, lowest below but still lation racial figures from the 22. These derived Comparative data was critical census 21. figures in Chicot population findings with sim- courts faced breakdown of other factual e.g., townships gerrymandering. County See incor- Ashley County of racial ilar claims and the 1398, 1401- Byrne, supra, F.2d Ketchum v. See 1970 Census porated into H.D. 79 1971. Treen, 02; F.Supp. Major 328-332 v. pp. and 9-98 5-97 Population, Vol. Part 5 Elections, (E.D.La.1983); Rybicki Bd. v. State 1973). (February F.Supp. 1089-91. supra, 574 earlier, Rather, plain- as mentioned this. participate than others split 1 would For- their tiffs’ alternative District failed to establish process, they have County, pick up Francis respect City to House rest in St. 2 claim even with additional, townships predominately black District city County split in western Lee Lee Counties. D. Francis and St. Marianna, Phil- swing southeast into then splitting end combined, lips County where would Francis and Lee Counties St. Plaintiff’s from Helena. See West Helena shape roughly the geographic area form say if blacks formed 6. Suffice to Mississippi River as Exhibit rectangle of a sufficiently compact rectangle geographically This jagged eastern border. ap- community split lengthwise large to constitute was then legislative dis- Francis two Lee or St. portionment to form district either black thereof, encompasses all District 74 tricts. House or some combination counties half of St. County and the southern of Lee it—at least not plaintiffs have not shown had, according to 1980 County. It Francis own form of engaging without House black VAP. figures, census a 47.04 gerrymandering. extreme included the remain- 47 meanwhile District cohesiveness Evidence County, and in- half of Lee ing northern incomplete. In voting was also white bloc heavily populated area of For- cluded the decade, ever past no black candidate percent a 40.37 City. rest This district had leg- against opponent in either ran a white VAP. County-wide election data islative district. compactness is geographic The issue of opposing black and for races with determine. somewhat difficult to County, available for Lee candidates was 15,539 population County Lee had total County. but not St. Francis percent were black. persons, of which 54.8 available, in seven According to the data county Because the Table at 15. Census county-wide involving four differ- elections form a population insufficient possessed candidates, support ent black the estimated St. Francis Coun- district on its own—while ranged County in Lee from black voters 30,858 big— was too ty, with its residents In all percent percent. between 90.4 County the 74 added to Lee House District races, of these estimated black but one Goodwin, Prairie, townships Wheatley, percent candidate was 60 support for black Franks, along the Black Fish and Garland higher. County. In border of St. Francis southern so, residents doing more white Meanwhile, “cross- the estimated white district, reduced added to the and this percent high to a ranged vote from 0 over” population percent to 51.9 the total black county-wide percent. 21.6 Of the seven mentioned, and, already voting-age as analyzed, estimated white elections approximately percent. population to in all but percent exceeded 8 “crossover” County. races in Lee two Incidentally, separation of these Francis townships the rest of St. suggest figures appear These County little effect on the overall ra- had candi- tended to vote for black District 47. Of the cial balance of House though not in as unified numbers dates — in other counties 14,190 persons, county’s population, total previously discussed. percent The exclusion or 45.9 were black. racially polarized suggests The data also Dis- townships from House of the southern white “cross- voting, yet degree some per- a 46.09 trict 47 created a district with theoretically should have been over” that population. total Census cent black See District 74’s 47 with House able combine Table at 21. bloc to defeat white percent black YAP plain- County, voting. As for St. Francis dividing these two Nor is it clear that suggest it is safe to assume horizontally appear tiffs vertically rather than counties there would of black voters experience dis- majority-black achieved a would have proven it. they have not the same. But propose trict in either. Plaintiffs do between opponents faced white dates who supra, 478 Gingles, v. Thornburg C.F. 1988, support black can- black 46, 2764. at 106 S.Ct. at U.S. range between was estimated didates Pine County and percent. In four of and 99.9 percent E. 84.2 Bluff Jefferson elections, support for these black these six among County is divided ofAll Jefferson percent. greater than 90 was candidates House Districts legislative districts: four 81, Each of these districts 80, 83. 82 and same candidates support for these White incorporate portions per converge on and of 2.2 an estimated low ranged from Bluff, roughly at lies single regression Pine City (using in one election cent Vaugine county (under percent center 20.1 analysis) high to a Dis- townships. House Niven of six portions analysis). five regression double portion northeast includes the elections, preferred by black trict candidate black predominately city and several percent than 5 of the white got more voters there Township. From Vaugine sections However, except in House District vote. Jef- across most of spreads out district 82, have been the white bloc vote would Pine itself County, wrapping around ferson minority and to defeat the combined able “C”-shaped rough, inverted into a Bluff every election. vote in white “crossover” exceptions, most few only a With district. Therefore, majority it must be said incorporated by House townships in this area rises to the white bloc Thus, white. predominately are District significance. Gingles, legal See level percent. only 37 overall is VAP black 56-57, 106 S.Ct. at 2769-70. 478 U.S. west, includes District 81 House To established that blacks also evidence townships, as white predominately several sufficiently large geographically were small, white again predominately aaswell majorities in county to form compact a 6 The district has city. section According to the single districts. member population. voting-age percent black census, County resi- black Jefferson split Pine Bluff are remaining portions of total percent of the 40.5 dents constituted 83, which have 82 and districts between at 19. Mean- Table population. Census percent and 39 percent of 67 VAP’s black while, population of percent of the 49.05 respectively. Given black residents. Pine Bluff unreasonable not be it would figures these has elected representative black A residents and white that black plaintiff to assume and while House Districts However, evenly. as districts split would “packing” or otherwise charge of make no above, legislative districts four out of noted legality, the evi- challenge that district’s majority only one had a county, within the geographic com- to show submitted dence the result This population. majority black additional indicates that pactness district, District creating a House drawn have been districts could black higher than population much had a black making only by substantial area surrounding coun- Bluff or the Pine Dis- either of House changes boundaries of black reducing percentage ty, and VAP there black that would reduce trict plurali- three the other districts voters in Appendix Exhibits percent. See 62.69 or less. percent ties of 40 B and plaintiffs’ alternative passing of- Without evidence from the anecdotal Aside (which create region in this districts dem- fered, that area from elections data Bluff in Pine cohe- two politically that blacks onstrates predominately every other include demonstrates, then also This data sive. portions county with township in the District whites exception of House to form a Desha counties of Lincoln as a bloc County tend to vote in Jefferson district), evidence majority black usually third them that enables in a manner alone, County to Jefferson restricted and as by black preferred candidates defeat drawn resulted lines clearly county- shows In six voters. “crossover” single into being “packed” candi- black voters involving three black elections wide 274 that these counties would be potential tricts indicate thereby reducing their

district by plan, predomi- since affected a remedial county. How- strength in the rest of the County nately townships in Lincoln above, black ever, have not plaintiffs as stated portions with have to be combined would Sec- that House District 82 violated claimed Phillips counties in order Desha and by unnecessarily “packing” 2 tion in that blacks reside sufficient demonstrate perhaps This is because into that district. geographically compact area numbers in a a “safe” oft-repeated argument that single-member majority to form a black require percent black district would 65 Considering Lincoln and Cleve- district. Nevertheless, proof required for VAP. however, own, their land counties on Further- 2 violation is there. a Section placement of dis- examining the effect more, plaintiffs’ proposed new districts for in this area had on black trict boundaries percentage of area in effect reduce the voters, 2 violation demonstrates no Section what should YAP District 82. So black here. response? be the Court’s House apportionment, the 1981 Under appear to answer: district courts Some voting-age popula- District 91 had black plaintiffs is whatever the want. the result percent and a total tion of 30.64 black Edmisten, F.Supp. supra, 590 Gingles v. percent. Neither Lin- population of 33.27 dangerous. This is irrational and at 356. coln, counties, however, were nor Cleveland legal acceptable not be an stan- This should single sufficiently large constitute a dis- District dard for Section cases. Is House own, their and thus needed to be trict on YAP, an exam- percent with its 67 with other counties to form combined in violation of Section ple “packing” option in legislative district. One Lincoln by it district created or is portions include County would have been to “ef- Apportionment that had an Board County in the north to form of Jefferson majority? fective” black single arrange- had district. This appear would to want it both Plaintiffs apportionment al- ment under the 1971 ways. given plaintiffs I have would suggested by though not in the manner pleadings to opportunity to amend their Plaintiffs’ Exhibit plaintiffs now. See specifically packing contend that District 58. House House District 82 resulted a Section option, taken Another and the one amend, they I violation. If did so would join Apportionment, was to most Board of of the evi- find the violation on the basis Lincoln, exception predomi- with If chose not dence discussed above. south, nately townships amend, challenge the the to so Section County, lies virtually all of Cleveland which would, accept, go out of House District According to immediately to the west. The result is that the case. data, 35.8 census blacks constituted control the decision at least in the percent population, and of Lincoln’s total might who of black intervenors absence County. As not- percent 15.7 Cleveland public-in- to tender the issue. Even seek roughly formed one-third ed above blacks this, there are limits terest lawsuits such as resulting district. population upon authority sponte, to sua Court’s Therefore, joinder it cannot said that the up and deal with issues sees take reduced significantly two counties of these parties ignore. case but which the choose strength of black voters the relative Indeed, joinder Lincoln. F. Counties. Lincoln Cleveland possibility of voters enhanced the County Directly lies south Jefferson County electing repre- a black Cleveland includes most of House District sentative. counties. House Lincoln Cleveland that blacks could have To demonstrate among 91 is not those that District area, in this district “directly” affect- formed majority found would be cut proposed District 13 would plaintiffs’ findings plaintiffs’ ed County, However, townships Cleveland plaintiffs’ proposed dis- off black claim. (37.95 percent) and a black counties every pre- three virtually incorporate then but percent. of 30.75 line run- VAP townships in a dominately black County, Jefferson northern ning from that black voters could To demonstrate of Lincoln through portions southeast in majority district a black constituted of town ending just past the County and a area, propose that district plaintiffs this County. The alternative in Desha Dumas incorpo- drawn would have been could 52.07 VAP of a black would have district County, pre- three most of rate Ouachita contiguous incorporate does percent, along townships run dominately black this across townships black predominately County, and edge of Nevada eastern the state. region of in townships Columbia portions of then Magnolia. including the town County however, demonstrating what Again, a black VAP would have district This a demonstra- drawn is not have been could 6, Plaintiffs’ Exhibit percent. 52.07 See a show- without vote dilution—not tion This dis- Appendix B. Report, and Wilson racially cohesiveness and political ing of encompass what is essentially would trict above, there voting. As noted polarized predomi- area of contiguous presently in voters that black ample evidence was junc- townships that lie at nately black support County tended Jefferson counties. the three tion of excep- candidate, that with same 82, unable District adequately of House dem evidence Assuming tion this votes white “crossover” plain compactness, to draw sufficient geographic onstrates preferred the candidate usually defeat area in this vote dilution claims of tiffs’ In Desha majority bloc. the white be denied because nevertheless should suggested a best, from one election County, demonstrated, data at evidence voting. How- racially polarized county, one among level blacks cohesiveness from ever, presented was election data others, no did not and further counties. or Cleveland Lincoln majority either the white demonstrate to have appear Again, sufficiently as a bloc counties vote these presumption rely upon minority’s “usually to defeat the court enable three-county area throughout Thornburg v. Gin candidate.” preferred with dis- group cohesive politically 51, at form at 106 S.Ct. 478 U.S. gles, not been But has interests. tinctive in Columbia no elections There have been Lin- demonstrated, respect least at faced candidate a black County which thus, the counties. And and Cleveland coln from thus no statistics opponent, white finding a Sec- necessary for preconditions inferred. can polarization which racial here. met have not been 2 violation tion counties, However, and Ouachita in Nevada faced where blacks elections county-wide Ouachita, Columbia Nevada and G. racial bloc evidence both whites showed Counties. time, ability of voting, at same support. gain white candidate a black plain- area in geographic which The last pri- 1988 Democratic example, in For diluted apportionment the 1981 claim tiffs’ sheriff, it County Ouachita mary race for encompasses House strength candidate, the black was estimated Oua- portions of includes District of the 14.5 percent 7.8 to received between County and a County, of Nevada all chita re- time vote, same while County. non-white township Columbia single percent ceiving approximately popu- not form Blacks do for the (In earlier election an vote. num- black Their counties. any these lation re- candidate same post in Nevada same percent 30.6 range between bers percentage the same approximately ceived County percent Columbia County, 34.6 county in a 1982 race support). And County. of in Ouachita percent 36.0 received coroner, candidate the black Board by the as created District House vote, percent 7 and between had total Apportionment support overwhelming receiving the while any higher than population hand, help bring into focus the critical failing the other voters. On black Keaton, in- Judge running general- as an While this Municipal before the Court. isues cumbent, per- between 42 and 49.5 received made it difficult to evaluate approach ized vote, at the same the white cent of claims, ap- plaintiffs’ House district 88.3 to supported by an estimated time was judge impossible for this proach rendered voters. percent of black 90.7 claims of dilu- rationally support find district drawing of the Senate present challenge is tion relevant to the

More primary Therefore, majori- election for from the the 1984 Democratic lines. dissent race, In that Earl Fos- House District 88. 2 violations in the ty’s finding of Section ter, black, Ar- against ran Richard who is Dis- drawing of district lines for Senate Mr. rington, white candidate. While Fos- 27, 28, tricts 19 and 30. percent 57.4 ter received an estimated only seats. To com- There are 35 Senate County, in his native Nevada the black vote require- one-person, one-vote port with neigh- only percent of black voters 15.6 ments, Apportionment deter- the Board of County supported him boring Ouachita districts could mined Senate fact, opponent. In Foster against his white 62,035 population of have a minimum total higher percentage of the vote received a 68,565 persons. a maximum of With (22.3 percent) resid- from non-black voters population, exception of areas of dense County. Plaintiffs ing in Ouachita See counties, as Pulaski and Jefferson expert, p. Table 1 3. Plaintiffs Exhibit cap- population could sufficient opined that Engstrom, Dr. nonetheless by merging two single tured into a district polarization racial figures these evidence portions of counties. or more counties or county it showed that in neither because result, areas covered geographic As a preferred Mr. Foster the candidate However, larger a more much among by non-black voters. each district are Senate figures description is that accurate than House districts. This circumstance preferred showed Mr. Foster was not ability of the obviously results a dilution among any regardless of their any group discreet to constitute a one voters— greater numbers race—-and the inclusion of any given within dominant force of blacks within that district would necessarily af- district. This also Senate likely result with changed the election to establish ability plaintiffs fects the candidacy. There- respect to Mr. Foster’s resided in suf- precondition that blacks fore, plaintiffs’ have not established the numbers, geographically and in com- ficient preconditions of cohesiveness or areas, majorities pact to constitute significant racially polarized voting, and given district. Senate claim in this area should their vote dilution noted, constituted 16 already As have been denied. population of Arkansas percent of the total The sixteen coun- under the 1980 census.

H. The Districts. Senate repre- lawsuit directly ties affected this far, attempted has Thus this Court highest concentration of sent the areas of districting claims give plaintiffs’ House However, even in this re- residents. analysis that I the “fact-intensive” believe majority only constitute a gion, blacks requires properly apply in order Gingles population in three counties.23 the total Voting Rights Act. The Lee, these, Phillips Only two generalized plaintiffs chose to take a more incorporated into contiguous and both were un- approach litigating this case. And (i.e., Senate District single Senate district fortunately, the defendants offered little 30) apportionment. in the 1981 generalizations, rebuttal to thus no those lawsuit, census, popula- According the three coun- counties affected to the 1980 high ranged blacks formed a of the total ties which from a of 46% tion (52.9%), population were: Chicot Lee County total County population to a low of in St. Francis (52.9%). (54.8%) County Phillips County. Id. 23.9% in Pulaski remaining See Plaintiffs’ Exhibit 14. Of the an- counties to form and Desha Jefferson com- Lee counties Phillips and Because district. Even majority black Senate popula- other sufficient not contain still did bined analysis, require- totality of circumstances the minimum under a even to reach tion added district, Board the burden must still shoulder for Senate ment Monroe 30 the whole claims of vote dilution. proving District to Senate 40.8 only constituted plaintiffs could County, may blacks be true that where While it of 1980. establishing total population of percent their burden have carried in result- VAP brought black political This cohesiveness prerequisites of sug- Plaintiffs percent. district to ing majority white significant” “legally and excluded have Board could districts, gest that proposed in the Senate voting bloc 30, District County Senate from Monroe failed to do so. they simply predominately incorporated and instead and in Francis Crittenden portions St. black Summary. I. creating majority a thereby counties prerequi- establishing the Without first district. Senate size, compactness and geographic sites of counties, Jefferson, and Desha Lincoln majority bloc vot- and cohesiveness political that maps indicate and tables the census prevail Gingles under cannot ing, plaintiffs predomi- line of contiguous a there exists The so called 2 violation. on a Section suffi- that contained townships nately black supportive of be Senate Factors Senate another to form population cient claims, used to estab- cannot be alone Apportionment Had the Board district. that If I to assume the violation. lish town- these line around simply a drawn (1) contentions correct in plaintiffs are their suggest) it (as now plaintiffs ships in 1981 show that black need not plaintiffs that second, majority created have would in 1981 were districts drawn voters district. Senate dis- manner in which those by the harmed then, geographical- existed Clearly there politi- (i.e., that their lines were drawn trict pre- regions of contiguous compact and ly (2) thereby) and lessened power cal was have could dominately black residents the line show they need However, plain- districts. formed Senate op- having less drawing resulted Gingles remaining evidence tiffs’ to elect candidates others portunity than incomplete. and was deficient preconditions choice, applying the “fact-inten- then evidence, there has plaintiffs’ As with all requires Gingles examination sive” attempt to establish or no little been the conclusion me to lead of black groups political cohesiveness estab- was of vote dilution demonstration different areas reside in who voters County, exclusive Phillips lished single aas heretofore functioned have area; in Coun- Chicot Helena Helena/West on this evidence unit. sole town- surrounding immediately ty and the racially the estimates point has counties; Ashley ships in Desha legislative dis- several polarized put it in manner County. To Phillips elections. exogenous trict, county-wide, finding, majority’s in line more geographically House districts Because viola- have established plaintiffs would cases smaller, in certain possible it affecting Districts directly tion areas elections these find sufficient overlap/ plain- Clearly 81, 83, 73, 80, 85 and 100. rea- cohesivprfesscould Dis- be House case would strongest tiffs’ This was not the inferred. case sonably be (i.e., areas, House In all other trict 100. districts. proposed Senate relative to 88; 47, 74, Senate 38, Districts Moreover, to offer plaintiffs failed 30), fail- plaintiffs’ 19 and in St. in elections polarization on racial data geographic adequately establish ure of which County, portions Francis ma- or political eohesiveness compactness, a district have formed suggest could their claim voting would bar jority bloc Dis- by Senate comprised presently region here, issue electoral mechanism County, in Lincoln or tricts district lines placement namely the portions of merged with which would years, In recent may ironically coincide. in violations of Section resulted loyal considered the most blacks have been VAP of 67 82 with a black House district Party. So supporters of the Democratic makings appear to have the percent would ignored. theory linkage cannot be claim, claim is but no such “packing” of a indeed, and, Although it would be unlawful plaintiffs. named being pursued gerrymander legisla- unconstitutional to purpose guarantee- tive district for the IX. CONCLUSION. legis- Republican ing a “safe” Democrat They run amuck. The courts have district, nevertheless, guaran- if one lative language the clear of Section ignored district, legislative a “safe black” tees mandate opting instead to search for some of current realities can be said on basis intent24, improperly perceived legislative thereby guarantees a “safe Demo- that one 2 mandate for converting into a Section Republicans surpris- cratic” district. But representation directly con- proportional — with alarm. ingly may not view this result Apparently, trary congressional intent. by Ms. Thernstrom: As stated “No, say, stop!” willing no one there is an additional reason Republicans have even, least, you pro- “At think before overlooking gerrymandering racial path.” Ms. Thernstrom ceed down this what is that benefits black candidates: problem explains and the rea- identifies good good for black candidates is often son: Republicans. are drained As blacks reap- But the unfinished business of districts, from white the latter become unfinished; portionment cases remains candi- ground fertile for conservative courts, attorneys, and Congress, Alabama, County, In dates. Jefferson fumbling are to define scholars still in 1985 re- an out-of-court settlement dilution or vote at “full value without at-large system placed an —under discount.” five only whites had been elected—with unresolved, question but single-member safe districts. Two black record is now cluttered with unsatisfac- created, leaving were three that districts inconsistent, judicial and ad- tory, often white, completely were almost and decisions, and, from Con- ministrative change. Republicans benefited from the gress press, and the careless rhetoric. unopposed, could not Unless Democrats theory, group In no is entitled law few win in districts that contained on a proportional representation blacks, in- two Democratic body. Yet lower courts legislative both cumbents lost. Department and the of Justice —encour- County story was not The Jefferson Supreme aged by signals mixed from the compro- unique. consequence of a As minority involving Court—rest decisions and the mise reached South Carolina unacknowledged voting rights on that Department (joined by the of Justice A maximum number of safe standard. NAACP), propor- increased the the state to it—has be- minority districts—or close voters in two senatorial tion of black landscape the rule in an electoral come election, in In four districts. the 1984 being sys- at-large from which had been districts from which blacks tematically cleared. drained, Republicans re- conservative added) (Emphasis at 232. Thernstrom Democrats. In placed incumbent liberal case, state the North Carolina judicial Gingles, discretion is relieved Once acknowledged openly language Republican leaders obligation to follow the the in- poli- “happy coincidence” between ordinary political philosophies In- Republicans. perceived terests of blacks easily can take over. tics deed, much to celebrate. Fol- Republicans they had Democrats and interest of Fonseca, S.Ct. U.S. "Judges interpret recon- INS v. laws rather Cardoza 24. J., 1207, 1224, (1987) (Scalia, legislators’ lan- intentions. Where the struct 94 L.Ed.2d 434 clear, guage are free to those laws is we concurring.) legislative replace unenacted intent.” it with an unequivocally wise- decision, Congress tion court lowing the district entitle- group created notion of assembly ly rejected the general North Carolina out of legislative seat. single-member even one thirty-one ment multimember. had been eight ¡{: j}: i{: # ífc Republi- helped districting the new report and legisla- the Senate argued of state share cans double Derfner, key the Demo- Ironically, it was testimony of seats. Armand tive charge the Re- usually quick to hearings, at the 1982 rights witness civil crats— rights administra- lax civil publicans inquiry. section focused the properly unhappy. Safe tion—who Nevertheless, implied po- an trust said, districts, black voters isolate substantially to its left process litical Democrats deprive liberal by most shared is not own devices support. crucial rights organiza- civil spokesmen for the Thernstrom racially They as too see America tions. life that “No,” head- to sustain saying no one divided With that can mi- They structure believe ing toward color. transcends equal.” “separate minority of- only be described means nority representation us how tells in other areas experience And represent ficeholding, that whites cannot long we can Thernstrom: “equal.” [Section promise is jurisdiction benefit minority Income and fort to lead to out contests may source of inequality might be “scheduled such as black It own in office. ment not sion of trust has written. want family for similar group in which blood tion for ethnicity, and ... might be s}{ equally regard to tip political membership counts ... a covert Again note the office, compensate for 2] to the side said, achievement,” Michael Walzer status. The breadth those India :f: actually somewhat inequality, in a different expect “separate” promises castes.” balance reasons.” educational open federal intervention “I said that blacks or for organization. limit the much as However, race, color, religion, is citizenship system of reserved seats think,” relationship jj! ‘friendship’ imperfect participation” of whites. Congress “political however, power # In comments provides for he disparities alone ways every form result. amending sec- as a adds, limit beyond having their equality, lest or counts, and “The exten- misleading. beyond the ^[*] in electoral is an significant to remain processes settled, it language qualifica- can potential “we but for of Ms. every argu- with- ways % race, will ef- its blacks, tials. torious defeated black candidate white votes ... black This is too black elect line, nity to which ferent. fact dinner percent black districts. for teenage ten, “two politics mix of The same ses understanding of politics. bama), and whites ty reasons (whether ties and creating other on the of severe matters,” Harold “distorts and well to me. You black you. White societies” folks.” support In “Hands That parties black is not. “To and that blacks elected other But the blacks, issues is pregnancy as the white. problems it confuses Not can be bleak a assumption that race a maximum whites Boston opponent: divide may still be rather and all whites Doc is not classified argument rests browns, appalling skin color. Personali- folks don’t said about start questionable in the black continuing economic vote appear picture, southern Picked than delivers not an Stanley has writ- when black Most “He says of his vic- Racially mixed for whites and whites number level of black issues. largely indif- Selma, Ala- rare, are too got all the stop blacks Cotton,” a argument communi- vote for politics.” northern commu- creden- hard a on the racists analy- of 65 is all folks who as an gerrymandered “Now it has it- neither intimidated noted. vote for whites are can’t self into a corner where it wield misguided. nor all,” city-wide power at he continued. elections, or in cities which no districts community If a citizens is an unattain- whites, either blacks or are safe for ideal, Hispanics if able blacks every swing are often the vote blacks own, represented only by one of their plan A may contest. ward sacri- election aggressive federal action to restruc- then guaranteed seats. fice influence for promote minor- ture methods joined who have hands in a Candidates if ity officeholding appropriate. is But victorious biracial will tend to coalition logic politics works for inclusion together governing body, since stick (once enfranchisement has been as- basic far off. But the next election never sured), touch, hesi- lighter then a a more city when whites on a council or other intervention, possible. tant legislative body nothing owe to black support, minority may find Perhaps important most attached to [cost consistently outvoted and themselves officeholding] maximizing minority is the “I bitterly opposed thus isolated. am danger categorizing individuals for ...,” resegregate me any effort political purposes along lines of race and Norfolk, judge Virginia, testified sanctioning group membership qual- aas voting rights trial. at a “How does ification for office inhibit help community limit the black itself integration. argued Blumstein As James predominantly black wards and to two hearings, at the 1982 such cate- Senate consequence in of no the remainder of “piece-of- gorization amounts to a racial community? power Political is not approach,” perhaps freezing the-action merely symbolic.” thawing previous system rather than emphasize To the dark side of current politics. heightened racial The sense policy pessi- affirmative action is too group membership against works mistic a note on which to conclude. As citizenship. of common And as Donald Lyndon in President Johnson stated pointed Horowitz out at those same hear- 1965, Voting Rights the Act flowed boundaries, ings, by diminishing ethnic simple wrong.” At that a “clear and citizenship, may the sense of common imagined time no one the statute “ultimately smother democratic choice quickly effectively right would so and threaten democratic institutions.” later, wrong. Eighteen years giving Boston, Young Andrew re-

a sermon driving through called his fear when interracial, pressure inter- The for such Georgia early “It was the 1960s. ethnic coalitions lessens with exist- world,” place in the he said. “If worst single-member ence of districts drawn to I someone had told me then that would minority officeholding. maximize Politi- congressman Georgia, an be a ambas- necessity brings groups together. cal Nations, mayor and a sador to the United majority-white county, city, The or dis- Atlanta, replied I would have what a trict which whites vote as solid bloc Particularly in a church.” cannot be said against any minority candidate is now South, Voting Rights Act has Especially in locali- unusual. districts or poli- radically politics. altered “Southern minority popula- ties with a substantial today sprawling shopping tics is like the tion, among divisions white voters send on a former tobacco mall that rises im- scurrying candidates for those white field,” has noted. “The old one observer process The portant black votes. there, lay land is still but the of the integration enhances barely recog- has left it transformation heighten minority elec- also serve to nizable.” thirty years, the toral influence. “For Thernstrom at 237-44. minority deciding vote in vote was the say, I “Amen!” How will our [at-large] Anniston elec- To which [Alabama] tions,” express Will it be city democracy councilman itself? a black former (or 2 is not restricted to numerical Section society or two through one but is violated whenever the minorities more) political societies? three, separate strength traditionally of a disad dream? is the Which group vantaged racial is diluted. “[His torically disadvantaged minorities re ADDENDUM simply majority a a quire more than voting district in to have ... order IN REVERSAL EIGHTH CIRCUIT THE to elect candidates practical opportunity PROBLEM; WHITFIELD: SAME Clinton, 687 their choice.” v. Smith SAME RESULT 1361, 1362, (E.D.Ark.), F.Supp. aff 'd one, Eighth two to By a vote of U.S. -], 109 S.Ct. 548 mem. [102 [— reversed this Appeals Court Circuit conclude, (1988). We as a L.Ed.2d 576] plaintiffs had holding Court’s law, analysis matter of numerical primary Arkansas failed to show particu voting age population in a violation of Sec- resulted runoff laws not automatical geographic lar area does That Voting Rights Act.25 tion 2 to a ly application of section preclude I December was filed on decision voting practice used in that challenged an en banc petition informed that am area. presently filed and hearing has been Party v. The Democratic Whitfield therefore, accept the I, do not pending. 1423, 1428, Arkansas, F.2d State of final deci- opinion as the panel’s two-to-one Cir.1989). (8th Eighth Circuit sion explain how panel stop does not not be and conclude that issues requirement possibly can majority vote panel’s deci- inappropriate to discuss quoted lan- political majority. harm a raised in with the issues in connection sion appear that a guage makes it case. panel that the Eighth believes Circuit alia, the district court Inter chal- requirement Whitfield can be majority vote held: had large regardless of how lenged by blacks law, undisputed might vis-a- voting age population a matter [A]s the, suggest, are not such But figures here VAP. population vis challenge the more analysis becomes permit fuzzy nature of will explains of Ar- its panel law of the state as the further primary apparent runoff the of as a violation Section position: kansas Act, amended. Voting Rights as by Whitfield’s every election studied [A]t a lower rate turned out at expert, blacks F.Supp. at 1381. supra, 686 Whitfield, Thus, although theoretical- than whites. upon “the circum- ruling was based This to mus- able candidate ly a black voting age populations the that stances Phillips in votes majority of the ter a Phillips County whites in

blacks that there reality is County, practical the district purposes.” The equal practical voting in enough not blacks simply are the that where rejected idea court victory for a to allow each election or exceed white populations equal candidate. neverthe- should voting populations, blacks At 1427. “minority because less be considered saying effect, panel is Eighth Circuit the partici- they have not that the evidence voting age that, have a if the blacks even process of past in pated in the the “theoretically mus- ... could majority, and as large proportion county in as the Phillips in Coun- the majority votes Eighth ter majority of the Cir- The whites.” win be- cannot candidate ty,” the black with the district panel disagreed cuit out” voters “turn enough black not cause analysis. It court’s states: vote, majority the establish that their failure to unanimously affirmed the district panel 25. The main- enacted or had been primary run-off laws holding plaintiffs had not estab- that the court’s discriminatory legislative intent. tained with virtue violation lished a constitutional statutory The lan- stated in the statute. show that no effort to There is to vote. being ambiguous, controls. “opportunity” guage, not have the do not blacks vote; simply it is stated referred to and to of discrimination participate effects rate not, significant way, at a lower they any legally turn out to vote do in indeed, simply or, a “success” This is the “opportunity” than whites. hinder the effectively participate test. ability of blacks political process. in the Eighth in the majority Finally, panel find- its own reasons Circuit discusses swpra, at 1384. Whitfield, plaintiff concluding that ing Eighth majority that the on I submit the Sec- established violation Whitfield uncritically accepts panel notion Circuit rely do And what 2 results test. tion factors automati- proof senate typical factors is: the The answer on? a violation of Section cally establishes report. the Senate standard, pro- though practice, even “typical enumerating the Senate After challenged does not result cedure panel majority factors,” Eighth Circuit par- opportunity than having less whites goes on state: process or to elect ticipate reviewed evidence The district court The comments of their choice. candidates as it related presented by Whitfield the senate herein about made elsewhere Senate Re- forth the factors set repeated again be here. factors need factors, the port. For five of seven held that The district court Whitfield findings which fa- factual court made prove a plaintiff had failed to causal 2 had the conclusion section vored requirement the runoff connection between Phillips County. violated minority elective and the success. lack panel Eighth on the opinion, court’s Contrary to district past stating “during the disagreed, Circuit set forth conclude that factors elections, the runoff years, four but for primari- Report are to be used the Senate would have been four black candidates under a section violation ly proof of. my It party’s nominee.” Democratic id. the results test. See highly conjectu- conclusion is view at 206. U.S.Cong. Admin. News & ral, entirely specula- overly simplistic, and at 1430-31. Id. by the district court tive. As stated court’s find- relying upon the lower While Whitfield: factors, the ma- concerning the senate ings nothing in the evidence There is Eighth did jority panel Circuit plain- supports the contention with the lower court’s conclusion deal have been nominees tiffs here would not, any way, prove findings general Party of the Democratic strongly disagree violations. single, plurali- they run in a election had findings five of the my factual single there ty-win primary. Had the conclusion that “favored factors seven effect, in plurality-win law primary, Phillips in 2 had been violated fact, one to all before this was known court in County.” The lower Whitfield to what would have only speculate can as stated: happened. finding that blacks Although the Court is at 1378. Whitfield, supra, the effects of discrimination bear still po- provision, no runoff When there is education, employment, as areas entirely As different. dynamics litical are nevertheless, health, also the Court by the district court explained further not hinder effects that those should finds Whitfield: effectively and ability participate their are that runoffs saying goes It without process. The political equally if two candidates importance # of no typical factor also notes Court Putting aside remote in the race. participate” rath- “ability refers situation, vote, in that a tie possibility of as “opportunity” participate than er support. up single line a winner. The gain majority behind must the winner primary system’s tendency ra- system, where to limit con- plurality election So a exist, polarization to two serious candidates—in voting and racial tests cial attempts conjunction pressures provid- to limit the num- will result and, side polarization on one’s own ed racial it like- of candidates ber —make time, attempt ly to increase that a the same black candidate for the nomi- opposi- single of candidates on nation would face a white candi- the number matchup produce date. This de- tion side. feat for the black candidate election plaintiffs relying on! thin a reed are How that are not winnable Only hap- Rationality involved. is not in a runoff. Maybe is: the black penstance. The idea one candidate community agree can on Whitfield, supra, at 1378-79. candi- prevent other black and somehow So, that, might it be correct to state had filing the white commu- dates from while election, primary there been no runoff respond in kind and there- nity does (having four black candidates led up with two or more white fore ends preferential primary) would have been the race. This is not a candidates Party Democratic It is not cor- nominees. theory philosophy; that, say primary- rect to had there been no political Russian rou- gamesmanship, law, runoff four black candidates would lette; solely on race. and it is based Party have been Democratic nominee. Stanley’s comments Note Professor Next, Eighth panel majority Circuit Canon, Bradley the studies of agreement states its causal connec- little, accomplishes Ending the runoff primary tion must be shown between the restrict if forces then tend to voting power runoff law and the “diluted Experi- to two candidates. contests proof minority.” They find that single primary and runoff ence with follows: and the Border systems the South First, proved that the encourage indicates that runoffs South requirement impaired majority vote has pri- in the first multiple candidacies ability to elect a candidate because mary, single primary systems but that although they are voting age, limit the number of candida- work to Phillips County, fail to turn numerous politi- two. This difference has cies to polls in sufficient to out at the numbers racial, cal, although rather roots— requirement. Sec- meet a vote can reinforce the racial considerations established, ond, plaintiffs have Bradley Canon examined tendencies. factors, that the through proof of Senate runoffs, and gubernatorial primaries, County Phillips has political climate of and border- nominations 16 southern participation, be- the low voter caused 1932 and 1977: south states between “[ojnce socio-economic sta- cause lower that, in the 10 states with He found shown, no there is tus of blacks has been runoffs, top two candidates aver- link of this lower to show the causal need primary aged percent of the first political participation.” United status on vote; that, single in 6 states with Comm’n, 739 County v. Dallas States top candidates aver- primaries, the two Cir.1984). (11th F.2d the vote. In a aged percent of At 1430-31. candidates can system, runoff several “fail to that because blacks We are told to primary first and strive enter the sufficient polls in numbers turn out at the runoff; they fail qualify for the should the majority requirement,” vote meet a to productively quest, they in can that the thereby established plaintiffs have second-place the first- or bargain with “impaired requirement majority vote support in the run- finisher to deliver Surely, proof ability to elect a candidate.” primary system, single off. Under the turn out at of the failure blacks place bargaining takes before that a used to establish polls cannot be parties seek to

primary, interested as While we subscribe primary. runoff Section requirement violates majority vote dissent, panel Judge Oakes’ Chief So, is forced to again, the Court once results, we fully supports our opinion It factors.” states rely upon the “Senate precedential value of the that the believe factors, that, by proving the Senate in when majority opinion Butts erased politi- “that the plaintiffs have established added to the component is the cross-over County has caused Phillips cal climate factual mix. It is Note: participation.” voter the low 1432, n. 3. At is identified as “political climate” that 7-1-103(23) provides Ann. But Again, there is Ark.Code. culprit and the cause. or vote person shall cast a ballot that: “No require- nothing to show that the runoff (1) politi- one preferential primary in having less in ment has resulted in then cast a ballot or vote party cal in participate than whites to opportunity primary another general process or to elect candidates premise that in state.” So the party this choice. of their cross-party preclude Arkansas law does not including my view My further views— correct. voting in run-off elections is not not, Eighth Circuit as that courts Whitfield, purports to do in panel majority Conclusion Addendum away prohibit or do constitutionally “equal opportu- 2 as written is an remedy democracy majoritarian as nity” With no clear mandate statute. found else- 2—will be violations of Section into Congress, it should not be transformed herein, II particularly Sections where law. The an affirmative action ask, And, a federal how can and VI. opinion in Eighth Circuit’s here Equal Protection court, consistent with many cases—have other Whitfield—like of Arkan- application principles, forbid its head. “opportunity” word turned the leaving county, run-off law one sas’ “fair accepting it to mean a Instead of the state the benefits to the rest of effect, or, “open door” with- an chance” barriers, the effect majority-rule? they And what will be de- state-imposed legal out court- it on “ability” rule and then measure Eighth Circuit’s after fine it as re- voting of actual behavior re- basis redistricting: will run-offs be ordered black “turn-outs.” So if flected vote Phillips legislative races in Coun- quired in turn-out to vote and therefore voters do not VAP) (blacks being majority ty then “oppor- lose, they had less proves county there? elections prohibited political pro- tunity” participate in the I note an- Although importance, of less assumedly turn- who did cess than whites footnote, Judge disagreement. In a other They talk of won! like to out and therefore up a had turned states that research Beam reality” the situation rath- “practical parties had not factor which the significant Yet, language of Section 2. er than the addressed, to wit: perhaps be- no effort to make show— preclude election law does not Arkansas the exist- it cannot be shown—that cause (general) pri- cross-party voting in runoff responsible for statutes is ence of run-off factually It is uncontest- mary elections. “turn-out.” such low support virtually no white voters ed that not all. The courts But that County. Phillips candidates statutory Senate factors elevated the system Thus, Phillips County runoff give Congress did status —a status they have a Republicans, if permits white interpret and proceeded then them—and so, to, least in limited to do rele- mind for their apply without concern them circumstances, Democrat cases support particular a white vance to issues dilute primary and further before them. in runoff strength. cross-over This distinguishes and attenuates factor York, City v. New holding Butts Cir.1985) (2d since Butts

779 F.2d cross-over) (no

clearly dealt with a closed Court notes factor failed to 2 violations establish Section However, “ability participate” agreed # 5 refers to the if here.10 I with the ma- justices may agree argument 10. Justice O’Connor and the three who also with defendants’ here. joined concurring Thornburg language: opinion her Note her 239 preconditions Thornburg tain whether showing that blacks simple that jority V, ifBut candidates See Section to elect are satisfied. opportunity “less have infra. suffice, satisfied, I end would Thornburg preconditions are choice” of their plaintiffs have concluding that automatically follow up then the result will 2 See violation. least one Section shown of the socio-economiccondition regardless in Section discussion, District 100 House in the area. or the whites of the blacks surface, this limited C, theOn VIII 2 that states nothing in Section There is infra. make, easy to appear showing would richer, are if in the district that the blacks required by Thornburg “preconditions” whites, and healthier better educated difficulties. See to the real alert us of entitled benefits will be pre- those dealing with V, Before infra. law. conditions,- necessary to consider it is my agreed with brothers While greater language “opportunity elect” are critical that the of VAPs percentages depth. is, not, a “ma- determining or what what “minority,” I must nevertheless jority” or a THAT SHOWN PLAINTIFFS IV. HAVE is a certain lack acknowledge that there RE- PLAN THE 1981 DISTRICTING the areas of approach. in that In realism LESS IN BLACKS HAVING SULTS challenged in this Arkansas THAN OTHERS TO the state of OPPORTUNITY THEIR other lawsuit, practically OF all as well as ELECT CANDIDATES States, the number CHOICE? of the United areas white, vote, actually persons who compara- 2 is provision This of Section of those of the number is far below course, if race straightforward. Of tively of those far the number age and also below assume politics and we used to define So, talk about when we registered to vote. whites, if then parties, only two blacks which have VAPs political districts con- drawn so blacks district lines are 30 and ranging between or whites blacks voting age popula- stitute a overlooking the percent, 70 “VAP”), say (hereafter we can tion percentage a much smaller having reality less in blacks do not lines result determine the of their can candidates or white voters opportunity to elect We will if are drawn so usual election. But lines choice. outcome say can majority, we are not a VAP example. an take in blacks drawn result the lines as Arkansas, according Phillips County, to elect candidates having opportunity less figures, there were census to the 1980 Note that the socio-eco- their choice. older, 22,110 aged 18 and persons total is a constant. of blacks nomic status 10,393 11,542 white and of which the district lines is where variable So, VAP was the black were black.11 (b) Majority (a) Majority Black or placed: 31, Exhibit Table Plaintiffs’ percent. every district mean Does this White. primary preferential In the Democratic minority are a VAP so that blacks drawn Whitfield, 8, 1988, March Mr. held on No, one because before Section 2? violates led whites and black, against several ascer- ran he or she must question, gets to ability represent- minority group’s to elect approach outlined adhere to the I would Chavis, measure U.S. 91 S.Ct. of its choice. Whatever atives Whitcomb [v. (1971)] strength minority voting [v. and White the court 29 L.Ed.2d 363 undiluted S.Ct. Regester, evaluating U.S. employs in connection with followed, (1973) some ] L.Ed.2d 314 elaboration, minority suc- presence electoral or absence and other in Zimmer cases cess, mind that "the also bear it should prior Appeals to Bolden. Under Courts political process is not power influence the relevant consider all approach, a should court winning elections.” limited minority bearing whether factors group mem- opportunity than other has "less percent persons, or 1.3 11. An additional

Case Details

Case Name: Jeffers v. Clinton

Court Name: District Court, E.D. Arkansas

Date Published: Jan 26, 1990

Citation: 730 F. Supp. 196

Docket Number: H-C-89-004

Court Abbreviation: E.D. Ark.