Petition — Nevett v. Sides

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SEP 22 1978

, FTL - rt, US

| E D

IN THE

SUPREME COURT OF THE UNITED STAPHS AM RODAK, ik.

October Term, 1978

NO. 78- 49 2

REV. CHARLES H. NEVETT, et al.,

Petitioners,

Vv.

LAWRENCE G. SIDES, etc., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

EDWARD STILL

601 Title Building

Birmingham, Alabama 35203

WILLIAM M. DAWSON, JR.

Birmingham, Alabama

NEIL BRADLEY

LAUGHLIN McDONALD

52 Fairlie Street, NW

Atlanta, Georgia 30303

COUNSEL FOR PETITIONERS

TABLE OF CONTENTS

Page

Opinions Below..... Oa aS 'e. 4 © ie 06% & 1

WURSOGLGCIOR. «oo cccccccen was 0he.60-% 2

Constitutional and Statutory

Provisions Involved.............. 3

Questions Presented for Review..... 4

Statement of the Case.............. 5

Reasons for Granting the Writ...... 11

GRPUUGINs 6 os Gedo db eccce errr ee 29

oie

TABLE OF AUTHORITIES

Cases: | Page(s)

Alexander v. Louisiana, 405

ee a Ee. |

Brades v. Rapides Parish Police

Jury, 508 F.2d 1109 (5th Cir.

RO ERE 0 66.0 eae eke 0d ex ce ee ce

David v. Garrison, 553 F.2d 923

(S+h Cir. es SO eRe eee

Gaffney v. Cummings, 412 U.S.

735 ERCP MV 04a ch tueawewen ua Khe 24, 25

Gilbert v. Sterrett, 509 F.2a

BOGS {3th Civ. 1978) 6 ock'c cc eccld

Gray v. Sanders, 372 U.S. 368

ET 6 Book ile hi dn Bika SSa oe cae

Harper v. virginia Board of

Elections, 383 U.S. 663 (1966).19

Hendrix v. Joseph, 559 F.2d

Beene feem CAG. TOFTl so kkécccccld

Hernandez v. Texas, 347 U.S.

475 SRE 6 bk de waieis bei ee

Kirksey v. Bd. of Supervisors

of Hinds County, 559 F.2d 139

(Sth Cir.) (en banc), cert. {eebae a@, 16,

denied, 434 U.S. 968 (1977) + Pe

Kramer v. Union Free School

Dist. No. 15, 395 U.S. 621

CAPD oa 456 doo wee s ceeeb cece

atfea

Cases (cont'd): Page (s)

Mahan v. Howell, 410 U.S. 315

§! 6) ae a Se ee 19, 25

McGill v. Gadsden County Com-

missioners, 535 F.2d 277

fo RS eee | ee ee 13

Moore v. Leflore County Bd. of

Education Commissioners, 502

Fem Gas. CSGh Cis. . LOPE) cc ccce 13

Mt. Healthy School Dist. v.

Doyle, 429 U.S. 274 (1977)....15, 17

Neil v. Biggers, 409 U.S. 188

OS io | ee Oar eoeeeeeeeeee 21

Paige v. Gray, 538 F.2d 1108

FEO SEN s GOURD std soeweussecece 13

Reynolds v. Sims, 377 U.S. 533..19, 23, 24,

(1964) 25, 26

Robinson v. Commissioners

Court, 505 F.2d 674 (5th

Cir. See 6 bee ee eoeeeeseeese* 13

Roman v. Sincock, 377 U.S. 695

S| a ee eceeeneeeeee 20

Screws v. United States, 325

U.S. 91 CD eh a ele ae ee a ela) ae

Turner v. McKeithen, 490 F.2d

Bee See. Ces BOP Sl os cecesewsckd, 13

United Jewish Organizations v.

Carey, 430 U.S. 144 (1977)....15, 20

-iii-

Cases (cont'd): Page (s)

Village of Arlington Heights

v. Metropolitan Housing

Development Corp., 429 U.S. ..14, 19, 20,

252 (1977) 22, 27

Washington v. Davis, 426 U.S. .. Be ae, 22

229 (1976) 23, 26

Whitcomb v. Chavis, 403 U.S. ccoonn, 1S, 20,

124 (1971) 24

White v. Regester, 412 U.S.

FSS (1973) . ceccccckccccesesscsPeeie

White v. Weiser, 412 U.S. 783

C29 7S nc +006 ensenanedece eee

Wright v. Rockefeller, 376 coceebee Sha Ane

U.S. 52 (1964) 23

Zimmer v. McKeithen, 485 F.2da

1297 (5th Cir. 1973) (en

banc), aff'd sub nom. East

Carroll Parish School Board

v. Marshall, 424 U.S. 636

es | eS meee eocccccccee -PAaSSim

Constitutional Provisions:

Fourteenth Amendment........ 003, 4, 6, 24

Fifteenth Amendment..... coeeeed, 4, 6, 26

Statutes:

#8. U.8.C. §1356(2) ..casvancauae

28 U.S.C. §1343..... eeeccccc cc &

-iv-

a —

Statutes (cont'd):

28 U.S.C.

Ala.Code,

-V-

GRADY ALEXANDER as members of the Fair-

IN THE , .

SUPREME COURT OF THE UNITED STATES field City Council and their official

successors,

October Term, 1978

Respondents.

No. 78-

REV. CHARLES H. NEVETT; REV. JOHN A.

Salary, and ERNEST McLIN, individually PETITION FOR WRIT OF CERTIORARI

and on behalf of all those similarly TO THE UNITED STATES COURT OF

situated, APPEALS FOR THE FIFTH CIRCUIT

Petitioners, |

vs. : Petitioners pray that a writ of

certiorari issue to review the opinions

LAWRENCE G. SIDES, individually and in and judgments of the United States Court

his capacity as Mayor of Fairfield,

Alabama; GRADY ELLISON, individually and cause on March 29, 1978 and June 8,

in his capacity as City Clerk of Fairfield, 1976.

Alabama; and WILLIAM J. BAXLEY, individ-

ually and in his capacity as Attorney

General of the State of Alabama; THE

of Appeals entered in the above-styled

OPINIONS BELOW

CITY OF FAIRFIELD, a municipal corporation; | The opinion of the United States

and JAMES H. SIMS, VERA BELL, BILL GILMORE, Court of Appeals is reported at 571

CARL H. KILGORE, JOHN E. PHILLIPS, HENRY | F.2d 209 and is reproduced in the

HARDY, CHARLES A. WILLIAMS, GEORGE W. separately bound appendix at la. The

SCOREY, JR., JERRY F. MAPLES, T.S. SMITH, |

CLIFTON L. WOOD, JR., GORDON JONES and

opinion of the United States District Court

for the Northern District of Alabama was

published as an appendix to the court of

appeals opinion, reported at 571 F.2d

229, and is reproduced at 59a. The

previous appeal in this cause, opinion

rendered June 8, 1976, is reported at 533 F.2d

1361, and is reproduced at 90a. Like-*

wise, the district court opinion there

reviewed was published as an appendix to

the court of appeals opinion, published at

533 F.2G4 1366. It is reproduced at

103a.*

JURISDICTION

The judament of the United States

Court of Appeals was entered on March 29,

1978. A timely petition for rehearing and

suggestion for rehearing en banc was

denied on May 25, 1978. By order of

*These four ovinions will be referred to as

follows:

Seconda court of appeals opinion--Nevett II

Second district court opinion --Nevett B

First court of appeals opinion --Nevett I

First district court opinion --Nevett A

Additionally, an unpublished order was enter-

August 9,'1978, Justice Lewis F. Powell,

Jr., extended the time for filing a peti-

tion for writ of certiorari to and in-

clucing September 22, 1978. This Court

has jurisdiction under 28 U.S.c. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section I of the Fourteenth Amendment

of the Constitution of the United States:

All versons born or naturalized in

the United States and subject to

the jurisdiction thereof, are citi-

zens of the United States and of

the State wherein they reside. No

State shall make or enforce any

law which shall abridge the privi-

leges or immunities of citizens

of the United States; nor shall

any State deprive any person of

life, liberty, or proverty, with-

out due process of law; nor deny

to any person within its juris-

diction the equal protection of

the laws.

Section I of the Fifteenth Amendment

of the Constitution of the United States:

The right of citizens of the United

States to vote shall not be denied

or abridged by the United States or

by any State on account of race, color,

or previous condition of servitude--

ed on June 30, 1976, denying rehearing from Nevett I

and also refusing to review the district court pro- ie ,

33 mes 4. It is renroduced at 1é2a. Ala.Code, §11-43-40 (1975).* It is reproduced in full

-*Formerly Ala.Code. tit. 37, §426. It was

recodified with editorial but no substantive

| changes. See, 3a, for former language.

— | ~

The statute at issue is now codified as

beginning at 144a, but in pertinent part reads:

(a) In cities having a popula-

tion of 12,59 or more, the fol-

lowing officers shall be elected

(1) In cities having seven

wards or less, a president of

the city council and two alder-

men from each ward, to be elected

by the qualified voters of the

several wards voting separately in

every ward; except, that in such

cities having a population of less

than 20,000 the two aldermen from

each ward shall be elected by the

electors of the city at large.

QUNSTIONS PRESENTED FOR REVIEW

1. Whether a finding that dilution

of the minority vote does not exist may be

premised on a conclusion that blacks could

be successful at the pogéls if they worked

harder than whites.

2. Whether the defendants in a voting

rights case alleging dilution of the black

vote prevail when the district court makes

a finding of "ultimate fact" that dilution

has been proved in accordance with the

standards set out in White v. Regester, 412

U.S. 755 (1973), though not proved when

considered under precedents of the court

of appeals.

3. Whether the plaintiffs in a vot-

ing rights case brought under the fourteenth

‘and fifteenth amendments alleging dilution

~y =

ef ee

of minority voting strength must prove that

the defendants or their predecessors had an

intent to discriminate against blacks by

means of the at-large system of voting.

4. If intent must be proved in such

cases, did the court of appeals apply the

proper standard of proof.

STATEMENT OF THE CASE

Fairfield is an industrial suburb of

Birmingham, originally a planned community

for the workers of Tennessee Coal and Iron

Company (now part of the United States

Steel Corvoration). Of the city's 14,369

residents i»proximately 48% are black.

The city is governed by a mayor and a

thirteen-member citv council, all of whom

are elected at large. There are residence

requirements for twelve of the council

members: two must reside in each of six

wards and are elected from numbered places,

e.a., Ward 2, Place l.

In 1968 black candidates won six of

the 13 council vositions, but in 1972 all

blacks were defeated at the polls by a

citv-wide white majority despite their

usually carrving their own wards. The

petitioners (plaintiffs below), three

black Fairfield residents, brought suit

alleging that the at-large election sys-

tem diluted their voting strength in

violation of the fourteenth and fifteenth

amendments of the Constitution

and 42 U.S.C. §§1981 and 1983.

Jurisdiction was vested in the district

court by 28 U.S.C. §§1343, 2201 and 2202.

On the trial of the case, the district

court found that the at-large election sys-

tem coupled with racially polarized

voting "operate[s] to minimize or cancel

the voting strength of the blacks in the

City of Fairfield," Nevett A, 122a. The

district court made explicit findings

under each of the criteria set out in

Zimmer v. McKeithen, 485 F.2d 1297 (5th_

Cir. 1973) (en banc), aff'd sub. nom. East

Carroll Parish School Board v. Marshall,

424 U.S. 636 (1976), but found it necessary

to return to the “basic standards" of

White v. Regester, 412 U.S. 755 (1973),

122a.1

1. Both sides appealed; the defendants

apoealing the finding of dilution and the plain-

tiffs the remedy to be implemented,

The Nevett I court did not hold

that this ultimate conclusion was in-

correct, but held it could not "affirm

the ultimate conclusion of a dilution

without findings of fact to fit proper

standards" as enumerated in Zimmer ve

McKeithen, Nevett I, 100-Ola. It remanded for

reconsideration of the findings of fact

"according to the indicia of dilution

stated in Zimmer and other cases," Nevett -

102a.

On remand, the district court made

new findings under the Zimmer criteria,

and concluded that the plaintiffs had not

made out a case. The court then made a

finding of "ultimate fact" that plaintiffs

had established a case of dilution of

black voting strength under White v. Reges-

ter, but that the court understood it was

in error in failing to apply the Zimmer

Standards as "the determinants" of dilu-

tion. Nevett B, 63-4a.

I. In fact, the court of appeals held that

the findings could not be set aside as clearly

erroneous. Nevett I, 96a.

2. No additional evidence was taken. The

Nevett I decision was on June 8, 1976 and Nevett B

on June 11, 1978,

The Nevett II Court again found the

findings of fact to be not clearly erron-

eous, Nevett II, 54a, but the court of

appeals never addressed the difference

the district court perceived between

the White v. Regester criteria _

and the Zimmer factors. The second

district court conclusion was affirmed.

Nevett II also held that racially

discriminatory intent is a necessary ele-

ment of proof of dilution. The court of

appeals then held that proof of the Zimmer

factors would satisfy the intent require-

ment which it believed Washington v. Davis,

426 U.S. 229 (1976), imposed.

The black/white population of Fair-

field is nearly even. Until 1968, no blacks

ever held elective office in the city.

106-07a. With the assistance of federal

registrars, blacks achieved that year a 53

percent majority of registered voters, 108-

09a, 122a, and elected six blacks to the

thirteen member city council. All blacks

were defeated at the polls in 1972. By

the time of Nevett A, blacks were 48 per-

cent of the registered voters. 122a.

The [district] court attributed

the marked disparity in these

results [of the 1968 and 1972

elections] not to any invidious

racial discrimination but rather

to the failure of blacks to turn

out a higher percentage in

1972.25

25. As the district court

stated in its opinion on re-

mand, "[tJhe failure to elect

any blacks to the thirteen

member council in 1972 was not

the result of past discrimina-

tion, but rather the conse-

quence of (a) a failure to

turn out a higher percentage

of black voters than of white

voters, (b) bloc voting, and

numbered places."

Nevett II, 50a.

This finding of no discrimi-

nation was posited in a fact-finding that

in order to win elections, blacks would

have to turn out at a higher rate than

whites.

In Nevett A, the district court found

that the city council was "far more" res-

ponsive when blacks were on the council,

119a, “but there has not been a total

lack of responsiveness merely because

-9—

there were no blacks on the city council."

120a. In Nevett B, that court said that

while blacks "fared less well during an

all-white city administration than under

the laws of chance," 60a, unresponsive-

ness was not established because this

must be a "condition or quality of being

unresponsive, and is not established

by isolated acts of being unresponsive."

60a. The “isolated acts" included, inter

alia, one to three blacks out of sixty

employed among civil service, fire and po-

lice positions, 118a, no blacks appointed

to boards or agencies until 1964, 106a,

and then only one board (relating to the

financing of a predominantly black college)

with a black majority, 117a. The district

court found "some conscious characteriza-

tion by city officials to the effect that

boards would not become majority dominated

by blacks, but only minority." 117a.

These findings on responsiveness were

affirmed.

-10-

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS OPINIONS

HERE DEPARTED FPOM WHITE V.

REGESTER, 412 U.S. 755 (1973),

AND OTHER HOLDINGS OF THIS

COURT.

A. Fifth Circuit precedent since

White v. Regester.

This Court has dealt with the con-

stitutionality of multi-member district

systems only twice where race was a

relevant factor in the Court's decision:

Whitcomb v. Chavis, 403 U.S. 124 (1971),

and White v. Regester, 412 U.S. 755 (1973).

White affirmed a finding of dilution

on findings of fact by the district court

that included past official discrimination

touching the franchise, education, employ-

ment, economics, health, politics, etc.,

majority vote and "place" statutes, failure

to elect blacks, slating, lack of need for

black electoral support, unresponsiveness,

and racial campaigns. 412 U.S. at 766-68.

The fifth circuit has distilled its own

touchstone formula, Zimmer v. McKeithen,

485 F.2d 1297, 1305 (5th Cir. 1973) (en |

banc), aff'd sub nom. East Carroll Parish

School Board v. Marshall, 424 U.S. 636

(1976) (per curiam).

alle .

Zimmer identified four major factors

to be considered by district courts as con-

tributing to the existence of racial

dilution: .

(a) lack of minority access to the

process of slating candidates; ?

(b) unresponsiveness of legislators

to the particularized interests of the

minority;

ing the preference for multi-member dis-

tricting; and

(d) the existence of past discrimina-

tion which precludes effective participation

in the election system.

If these factors are proven,

a strong case is made. Such proof

is enhanced by a showing of the

existence of large districts,

majority vote requirements, anti-

single shot voting provisions and

the lack of provision for at-

large candidates running from

1. In Turner v. McKeithen, 490 F.2d 191,

194 (5th Cir. 1973), the fifth circuit made clear

that this factor also includes "the opportunity

for the minority group to participate in the cand-

idate selection process" and election.

2. The court held that the state policy

must be "divorced from the maintenance of racial

discrimination." 485 F.2d at 1305.

=} Du

particular geographical sub-

districts.

485 F.2d at 1305.

The court of appeals noted that the aggre-

gate of these factors establishes the

case. The court did not say how much proof

is needed to prevail. This test has been

utilized numerous times by the fifth cir-

cuit to test the correctness of the anal-

ysis (but not the result) of district

court opinions.?

A later en banc decision marks the

next significant reconsideration of this

question by the court of appeals: Kirksey

v. Board of Supervisors of Hinds County,

554 F.2d 139 (5th Cir.) (en banc), cert.

denied, 434 U.S. 968 (1977). In Kirksey,

the court restated the factors or issues

to be considered in different language than

in Zimmer, and held for the first time that

similar factors, not just the ones stated

I. Hendrix v. Joseph, 559 F.2d 1265 (5th

Cir. 1977); David v. Garrison, 553 F.2d 923 (5th

Cir. 1977); Paige v. Gray, 538 F.2d 1108 (5th Cir.

1976); McGill v. Gadsden County Commission, 535

F.2d 277 (5th Cir. 1976); Gilbert v. Sterrett,

509 F.2d 1389 (5th Cir. 1975): Bradas v. Rapides

Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975);

Robinson v. Commissioners Court, 505 F.2d 674 (5th

Cir. 1974); Moore v. Leflore County Board of

Election Commissioners, 502 F.2d 621 (5th Cir.

1974); Tumer v. McKeithen, 490 F.2d 191 (5th Cir.

1973).

-l13-

in Zimmer, could be used, but retained

the "aggregation" language. 554 F.2d at

143. The Kirksey court also utilized a

prima facie case concept, at least for the

issue of past discrimination precluding ef-

fective participation in the political

process. The court held that

Once plaintiffs established a past

record of racial discrimination and

official unresponsiveness ..., it

then fell to the defendants to come

forward with evidence that...

there was presently equality of

access.

554 F.2d at 144-5.

Finally, the court considered the ef-

fect of Washington v. Davis, 426 U.S. 229

(1976), and Village of Arlington Heights v.

Metropolitan Housing Development Corp.,

429 U.S. 252 (1977), on the holding in White

v. Regester, supra, and concluded

the Dallas and Bexar County plain-

tiffs in White v. Regester were suc-

cessful, even though they did not

prove the plan in question was

a Gomillion v. Lightfoot [364 U.S.

339 (15960)] type of racial gerry-

mander, because they established

the requisite intent or purpose

in the form of the existent denial

of access to the political process.

554 F.2d at 148.

«lin

Because intent is shown by present

denial of access, which in turn is proven

by an unrebutted record of past discrimina-

tion, including unresponsiveness, the next

step was to hold that proof of intent was

required, which is what Nevett II did.

24-5a.

B. The Court of Appeals Failed to

Apply the Law of Burden Shifting as Required

by Mt. Healthy City School District v.

Doyle, 429 U.S. 274 (1977), and Previous

Elections Decisions.

While at-large election schemes are

not per se unconstitutional they can

easily be utilized to dilute the voting

strength of minorities. Racially polar-

ized voting, though unfortunate, United

Jewish Organizations v. Carey, 430 U.S.

144 (1977), is often a reality, Most

black elected officials are elected from —

Majority black districts.

White v. Regester, 412 U.S. 755

(1972), and Whitcomb v. Chavis, 403 U.S.

124 (1971), indicate that the order of

proof in challenging an at-large system is

that plaintiffs need to show:

«1 S—

1. racially polarized voting that,

combined with the at-large system,

operates to deprive the minority

of the seats it could be expected

to win with single-member dis-

tricts.

2. That blacks have had less oppor-

tunity than did other residents

to participate in the political

process.

These are key elements necessary to

find the ultimate issue of unconstitutional

dilution of the franchise. Lack of access

to the political process can be proved by

the whole panoply of factors (and others)

as listed in White. Bloc voting and fail-

ure at the poéls are obviously relevant to

lack of access. If intent is required,

then it can be shown by proof of the above,

for when it becomes apparent that the elec-

tion machinery has the discriminatory im-

pact, the choice of electoral scheme abets

the impact in a knowing manner. It can

be particularly established by proof of

past discriminatory conduct the effect of

which has not abated, Kirksey v. Board of

Supervisors of Hinds County, 554 F.2d 139

(Sth Cir.) (en banc), cert. denied, 434

U.S. 968 (1977).

I. Of course, factor one plus intent would

. alone prove unconstitutional dilution.

-16=-

i i i

With this, a prima facie case of dis-

crimination is established. The burden

should shift to the defendants to show by

a preponderance of the evidence, Mt.

Healthy City School District v. Doyle,

429 U.S. 274, 287 (1977), that either

plaintiff's evidence is wrong or outweighed,

or that the past denial of access to the

political process has been dissipated.

Kirksey, supra, at 144-45. See also,

Gaffney v. Cummings, 412 U.S. 735, 745

(1973).

The "aggregate of factors" test

developed in Zimmer and applied in Nevett

II simply does not follow the burden of

proof procedure compelled by this Court.

It does not compel the district court to

decide, initially, whether a prima facie

case has been made out. Thus the evidence

of non-dilution, etc., is never weighed

by the preponderance of evidence test, with

the burden resting upon the defendants.

The aggregate test compels the weighing

of factors, some of which work in favor of

defendants in a particular case, when the

presumption is still in favor of

«120

defendants.

In sum, no matter how strong the

prima facie evidence of dilution presented

the court of appeals never weighs the to-

tality of the evidence of the defense by

the preponderance of the evidence test.

This works to the detriment of the

challenging parties, and merits review

by this Court.

Petitioners do not assert that lainti

tiffs'

paar ng anecgyger raghegeer the inteunene ree,

ainst them ight v. Rockefel

57 (1964), but that it is eviderrin die eee oe!

use absence of a factor, which has no rel

ance of a evance

to the jurisdiction, as a basis for such inferences.

-18-

Me nate at we

C. The Court of Appeals Pailed to

Apply the Strict Scrutiny Test to the Evid-

ence as Required by This Court.

Where the right to the elective fran-

chise is involvea,* or where there is proof

of racial discrimination, * the courts are

to apply careful judecial scrutiny to the

evidence. In measuring deviations in dis-

tricting cases, both the "character as well

as degree of deviation" are subject to

careful judicial scrutiny. Reynolds v.

Sims, 377 U.S. 533, 581 (1964) (emphasis

added) .? The court of appeals test at

1. Reynolds v. Sims, 377 U.S. 533 (1964);

Gray v. Sanders, 372 U.S. 368 (1963); Harper v.

Virginia Board of Elections, 383 U.S. 663 (1966);

Kramer v. Union Free School District No. 1§ 395

U.S. 621 (1969).

2. In Village of Arlington Heights v. Metro-

politan Housing Development Corp., 429 U.S. 252,

265-66 (1977), this Court said that "[w]hen there

is proof that a di purpose has been a

motivating factor," then at that point judicial def-

erence to other state policies is no longer just-

ified. If strict scrutiny in non-fundamental rights

matters is not to be applied wntil a facie

case of discrimination is found, then it is all the

more important, as argued in section I.B above, that

this determination be made.

3. Indeed, any rationale supporting such

deviations must be "free from any taint of arbi-

trariness or discrimination." Mahan v. Howell, 410

(Footnote continued on next page)

=19=

issue here does not apply such scrutiny,

though there is nothing in White v. Reges-

ter, 412 U.S. 755 (1973) or Whitcomb v.

Chavis, 403 U.S. 124 (1971), to indicate

that a lower standard of review should be

applied.

Petitioners do not contest that the

basic fact findings, e.g., whether there

are numbered post requirements, are to be

reviewed by the clearly erroneous rule.

But when the district court is to determine

by the aggregate of the factors whether

both denial of access to the political

process and intent to discriminate exist,

the rule does not shield these as findings

of fact. Proof of intent "demands a

sensitive inquiry into such circumstantial

and direct evidence as may be available,"

Village of Arlington Heights v. Metropoli-

tan Housing Development Corp., 429 U.S. 252,

266 (1977), not only by the district court

but also by any reviewing court. Addition-

ally, the ultimate conclusion as to whether

or not unconstitutional dilution exists is

(Footnote continued fram preceding page)

U.S. 315, 325 (1973) quoting Roman v. Sincock, 377

U.S. 695, 710 (1964). Where racial dilution is

Claimed on an at-large election system with a

substantial minority population, such a plan would

seldom be totally free of such taint. Cf. United

Jewish Organizations v. Carey, 430 U.S. 144 (1977).

-20-

not subject to the clearly erroneous rule.

See, Neil v. Biggers, 409 U.S. 188, 193

n. 3 (1972); the ultimate conclusion here

must be subjected to strict scrutiny. The

court of appeals here limited its review

to the clearly erroneous rule.

_, The standard of review applied by the

court of appeals affirmed a finding of

"responsiveness" on a definition that re-

quired this factor be proved as "a total

lack of responsiveness," supra, 9, and

that black voters were not diluted be-

cause they could win elections if black

voters turned out at a rate higher than

whites, supra, 9. These findings contra-

vene White v. Regester and would not with-

stand careful judicial scrutiny. The

court of appeals departure from White v.

Regester and other decisions of this

Court merits full review.

II. REVIEW SHOULD BE GRANTED TO

DECIDE THE NECESSITY AND

NATURE OF PROOF OF INTENT IN

CASES ALLEGING DILUTION OF A .

RACIAL GROUP'S VOTES. |

A. Wright v. Rockefeller, 376 U.S.

52 (1964) does not require proof of intent.

=2le

The court of appeals relied upon the

citation by this Court of Wright v. Rocke-

feller, 376 U.S. 52 (1964), in both

Washington v. Davis, 426 U.S. 229 (1976)

and Village of Arlington Heights v.

Metropolitan Development Corp., 429 U.S.-

252 (1977), for the conclusion that this

Court considered intent to be a require-

ment in election cases.! Wright does not

compel such a conclusion.

The Wright plaintiffs claimed that

four Manhattan congressional districts

had been racially gerrymandered because one

was 86.3% black and Puerto Rican and the

others had less than 25% non-whites. Because

the relief sought would probably have been

four white-dominated districts, it is nor

surprising that a Negro Congressman inter-

vened as a defendant. 376 U.S. at 53.

Plaintiffs' only claim was an intent to

segregate and they failed to prove their

case.

1. Kirksey v. Board of Supervisors of

Hinds County, 554 F.2d 139 (5th Cir.) (en banc),

cert. denied, 434 U.S. 968 (1977), did not

expressly decide the issue. Assuming intent

was required, it found intent. 554 F.2d at 147-

48.

-22-

we a

While citation of Wright in Davis and

Arlington Heights may lend credence to

the broad conclusion that intent must

be shown, such a conclusion must

also assume that this Court omitted the

element of intent when it wrote in White

v. Regester, 412 U.S. 755, 766 (1973):

The plaintiffs' burden is to

produce evidence to support

findings that the political

processes leading to nomina-

tion and election were not

equally open to participation

by the group in question--

that its members had less

opportunity than did other

residents in the district to

participate in the political

process and elect legislators

of their choice.

It is petitioners' position that

the element of intent was not inadvertently

omitted in White v. Regester. But if they

are in error, this issue merits plenary

consideration by this Court.

B. Racial dilution of the elective fran-

chise in at-large districts is not sui generis,

apart from other elective franchise issues.

The court of appeals held that dilu-

tion cases speak to the quality of repre-

sentation while Reynolds v. Sims, 377 U.S.

533 (1964), and other malapportionment

~23-

a a

cases are quantitative and there-

fore do not require proof of intent.

Nevett II, lla. Reynolds, as well as

Whitcomb, concerns the dilution of the

franchise. "Debasing" and "diluting" are

impermissible, 377 U.S. at 567, whether by

districts of unequal size or by submerging

votes.

Simply stated, an individual's

right to vote . . .is unconsti-

tutionally impaired when its

weight is in a substantial

fashion diluted. ..

Reynolds v. Sims, supra, 377 U.S.

at 568.

The Court of appeals

stated that, in single-member district

cases, mathematical comparisons are the

issue and "no showing of discrimination

along racial, ethnic, or political lines

need be shown." Nevett II, lla. The plaintiffs'

burden in all fourteenth amendment cases,

under precedents of this Court, is to make

out a "prima facie case of invidious dis-

crimination." Gaffney v. Cummings, 412

mt oe:

NS Te eR er ee

U.S. 735, 745 (1973). In single-member

district challenges, invidious discrim-

ination can be shown solely by population

variances.

It is clear, however, that at some

point or level in size, population

variances do import invidious de-

valuation of the individual's vote

and represent a failure to accord

him fair and effective representa-

tion. (Emphasis original.)

White v. Weiser, 412 U.S. 783,

792-93 (1973).

Variations may be so small as not to

be prima facie evidence of discrimination.

Gaffney v. Cummings, supra. If large

enough, the burden of proof then shifts

to the defendants, and they may be able

to justify the variations. Mahan v.

Howell, 410 U.S. 315 (1973). Plaintiffs

have no burden of showing lack of good

faith or intent to discriminate--

they need show only the effect, an

effect which imports invidious discrim-

ination.

There is no apparent reason for

changing the rules of proof for multi-

district submergence cases as the court

of appeals held. If plaintiffs show

that the effect of an at-large system

is submergence of the black minority

«~28—

” |

vote, they have made out a prima facie case

of invidious discrimination and the burden

of proof should shift to defendants to just-

ify their electoral scheme.

This Court should also consider the

holding of Nevett II that intent is an ele-

ment of proof required under the fifteenth

amendment. This narrow amendment + con-

cerns race and the elective franchise, "a

fundamental political right. . .preserva-

tive of all rights." Reynolds v. Sims,

377 U.S. 533, 562 (1964).

C. The elective franchise involves

a fundamental right, subject to strict

scrutiny. If intent to discriminate must .

be shown, it can be found in the structure

of the electoral scheme.

[T]he right to exercise the

franchise in a free and unim-

paired mannér is preservative

of all other basic civil and

political rights, any alleged

infringement of the right of

citizens to vote must be care-

fully and metPiculously

scrutinized. :

Reynolds v. Sims, 377 U.S. 533, .

562 (1964).

a , Washington v. Davis, 426 U.S. |

229, 248 (1976). |

-26-

This case is illustrative of the con-

fusion of the courts subsequent to White

v. Regester, 412 U.S. 755 (1973). The first

time around, the district court felt there

was no need to prove intent. 114a. Nevett

I did not dispel this belief, Intent was

joined as an issue only on the second

appeal.

If intent is a necessary element, it

need not be that purposefulness found

necessary in Screws v. United States, 325

U.S. 91 (1945). The state of mind of the

defendants is not a consideration, Hernan-

dez v. Texas, 347 U.S. 475, 482 (1954)

("The result bespeaks discrimination,

whether or not it was a conscious decis-

ion. . .").?

1. If intent is necessary, petitioners

strenuously urge review by this Court to define

what is needed for this element, in order to

assist both litigants and triers of fact.

2. This is not to say that a defendant's

testimony as to purpose would be entitled to no

weight. Village of Arlington Heights v. Metro-

politan Housing Development Corp., 429 U.S. 252,

268 (1977).

o2Fa

Like jury discrimination cases, once

disproportionate results and opportunity

to discriminate is shown, the necessary

intent to discriminate is inferred and a

prima facie case of discrimination is

established. E.g., Alexander v. Louisiana,

405 U.S. 625 (1972). Public officials are

deemed to be aware of the unrepre-

sentativeness of jury lists, as they must

be deemed to be aware of their own unre-

sponsiveness to minority interests and ra-

Cial bloc voting. This rule is effica-

cious in such cases because there can be

few reasons for the results.+ Likewise in

election cases there are a limited number

of reasons for a particular electoral |

scheme. In both it is open to defendants

to explain the reasons in rebuttal. Alex-

ander v. Louisiana, 405 U.S. 625, 632

(1972). Review should be granted to

settle these important issues in this

fundamental area of law.

1. In camparison, there are many good

reasons why a teacher is dismissed or a zoning

Change not made. It is less easy to perceive

the intent of the public officials in such

cases.

=28-

ARS Pi

ee RO te we A lO AE Och Ns tan Sra oe

Ieee techie eas stot

CONCLUSION

judgment below.

For the foregoing reasons, a writ

of certiorari should issue to review the

Respectfully submitted,