Appellants Reply Brief — Rogers v. Lodge

| otfice Supreme Cour, US. |

FILED

WAR WY Yoe?

NO. 80-2100 ALEXANDER L., STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

QUENTIN ROGERS, et al.,

Appellants,

versus

HERMAN LODGE, et al.,

Appellees.

APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF ON BEHALF OF APPELLANTS

Preston B. Lewis E. FREEMAN LEVERETT

Counsel HEARD, LEVERETT &

LEWIS & LEWIS ADAMS, P.C.

P. O. Box 88 Counsel of Record for

Waynesboro, GA 30830 Appellants

Tel: 404/554-3955 P. O. Drawer 399

Elberton, GA 30635

Tel: 404/283-2651

TABLE OF CONTENTS

ht Te ep LL |

(1) Section 2 Of The Voting

Rights Act Does Not Impose

A Discriminatory Impact

Een «0° e © 0 ae «.°@

(2) Adoption Of At-Large Voting

During The 1960's Does Not

Establish Intentional

DSGCEAMAMACION 2. we ws ee se aa V

(3) Factual Misstatements In

Appellees' Brief And The

District Court's Opinion ....9

PS 6) wow elise & 6. :e. 6: ea: ete

TABLE OF AUTHORITIES

CASES

Allen v. State Board of Elections,

393 U.S. 544, 568-9 .

Avery v. Midland County, 390 U.S.

474 (1968) ....

Baker v. Carr,

369 U.S.

186 (1962)

Beal v. Doe, 432 U.S. 438, 444 (1977).

Beer v. United States,

141 (1976) ....

Black Voters v. McDonough, 565 F2d

lst 1977)

1, 2 (C.A.

425 U.S.

Commonwealth of Kentucky v.

Rucklehaus, 362 F. Supp. 360,

365 (D.C. Ky.

Crawford v. Burke,

190 (1904) ....

Davis v. Thomas County, 380 F2d 93

(C.A. 5th 1967) .

1973)

195 U.S.

Dusch v. Davis, 387 U.S.

Feldman v. Philadelphia Nat. Bank,

408 F. Supp. 24 (D.C. Pa. 1976)

Griggs v. Duke Power Co., 401 U.S.

424 (1971) ....

176,

130,

112 (1967)

Hadley v. Junior College District,

397 U.S. 50 (1970)

International Brotherhood of

Teamsters v. United States,

U.S. 324, 354, £.n. 29 (1979)

Mastro Plastics Corp. v. NLRB,

350 U.S. 270, 288, Note 22 (1956)

Mobile, City of, v. Bolden, 446

U.S. 55, 60 (1980)

ii

431

Ny @

NLRB v. Fruit & hi Te sire

377 U.S. 58, 66 (1964) ... e.6 “e

Schwegmann Bros. v. Calvert

Distillers Corp., 341 U.S. 384,

394 (1951) . ° . 7 . . . . . . . .

Southeastern Community College v.

Davis, 442 U.S. 397, 405 (1979)...

Tennessee Valley Authority v. Hill,

437 U.S. 183, 193 (1978). « « « « «

United States v. Clark, 445 U.S.

23, 33, £2.mn- 9 (U9BO). «. « « cw ew eo

United States v. Uvalde Consolidated

School District, 461 F. Supp. 117,

123 > Tex. 1978) a - _ . _ . >. .

United States v. Wiltberger, 5

Wheat 76, 5 L.Ed.37, 45 (1820)...

Washington v. Finlay, 664 F2d 913

(C.A. 4th 1981) . . . 7 . . . . . . .

Whitcomb v. Chavis, 403 U.S. 124,

157, Note 37 (1971) . . _ >. . . . 7

Woodwork Mfgrs. Assn. v. NLRB, 386

U.S. 612, 639-640 (1967). ....

MISCELLANEOUS

Hansen, Danger in Washington. ...

Jewell, Local Systems of Represen-

tation: Political Consequences and

Judicial Choices, 36 Geo. Wash.

LR. 790 (1968). . «. «© «© «© © © @ 2

2A Sutherland, Statutory Construc-

tion, §47.23 (1973) . . a ° . . . . .

iii

NO. 80-2100

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

QUENTIN ROGERS, et al.,

Appellants,

versus

HERMAN LODGE, et al.,

Appellees.

APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF ON BEHALF OF APPELLANTS

(1) Section 2 Of The Voting Rights Act

Does Not Impose A Discriminatory

Impact Standard

This agreement is made by Appellees

and a number of the Amici.

The Court of Appeals rejected this

contention in this case, 639 F2d at 1364,

f.n. 11 (J.S. 10a), and there was no cross

appeal. It was also recently rejected in

Washington v. Finlay, 664 F2d 913 (C.A.

1

4th 1981).

"The starting point in every case in-

volving construction of a statute is the

language itself." Beal v. Doe, 432 U.S.

438, 444 (1977); Southeastern Community

College v. Davis, 442 U.S. 397, 405

(1979). Section 2 uses the terms "deny

and abridge", and as observed in United

States v. Uvalde Consolidated School

District, 461 F. Supp. 117, 123 (D.C.

Tex. 1978), these terms connote intent

or purpose.

Secondly, the terms "deny or abridge"

reflect the wording of the Fourteenth, and

specifically, the Fifteenth Amendment, and

they traditionally have carried a discrimi-

natory intent connotation.

Thirdly, when Congress intended to

adopt a disparate impact standard in the

Act, it expressly so declared in Sections

3, 4 and 5. The pointed use of the term

"effect" in these sections, and its omis-

sion in §2, evinces a deliberate decision

to give Section 2 a different meaning,

under the rule that where certain words

are used in one part of an act, and

omitted in another, the presumption is

that the difference was intentional. 2A

Sutherland, Statutory Construction,

2

§47.23 (1973); Commonwealth of Kentucky v.

Rucklehaus, 362 F. Supp. 360, 365 (D.C.

Ky. 1973); Feldman v. Philadelphia Nat.

Bank, 408 F. Supp. 24 (D.C. Pa. 1976);

United States v. Wiltberger, 5 Wheat 76,

5 L.Ed.37, 45 (1820). "A change in phrase-

Ology creates a presumption of a change of

intent." Crawford v. Burke, 195 U.S. 176,

190 (1904).

Fourthly, the statement of Attorney

General Katzenbach relied on by Appellees,

is not determinative. The statement

should be read in context. The Attorney

General was not asked the specific ques-

tion as to whether §2 adopted an impact

or effect test, but whether the word "pro-

cedure" as used therein would cover a case

where a political subdivision hardly ever

opened its registration office. The

Attorney General replied, "I suppose that

you could if it had that purpose", + clear-

ly an assertion of an intent requirement.

Immediately following, the Attorney

General proceeded to paraphrase the

Section, and in so doing, used the word

"effect", but the casualness of his

1. Hearings Before The Committee On The

Judiciary, United States Senate, 89th

Congress, list Sess., on S 1564, p. 191

(1965).

3

remarks here indicate that he was confus-

ing the language of Sections 3, 4 and 5

with that of Section 2, making particu-

larly applicable what this Court held in

Allen v. State Board of Elections, 393 U.S.

544, 568-9: " .. . In any case where the

legislative hearings and debate are so

voluminous, no single statement or excerpt

of testimony can be conclusive." In so

doing, this Court rejected a statement of

the Assistant Attorney General to the

effect that Section 5 was intended to be

limited to registration and voting.

Arrayed against this is the statement

ot Senator Dirksen, reiterated twice and

concurred in both times by the Attorney

General, to the effect that §2 was merely

a restatement of the 15th Amendment . 7

It is also argued by Amici that in

rejecting bills in 1970 and 1975 which

would have repealed Section 5 and substi-

tuted a new, "effect" standard, Congress

relied on statements that Section 2 al-

ready accomplished the same thing (Brief

of Georgia Association of Black Elected

2. Id., pp. 171, 208 (1965), cited by

this Court in Mobile (446 U.S. at 61).

4

Officials et al, pp. 14-16). As Amici

concede, however, "The views of members of

a later Congress ... are entitled to

little, if any, weight," International

Brotherhood of Teamsters v. United States,

431 U.S. 424, 354, f.n. 39 (1979); Tennes-

see Valley Authority v. Hill, 437 U.S.

153, 193 (1978); United States v. Clark,

445 U.S. 23, 33 f.n. 9 (1980), and more

significantly, these statements were made

in opposition to pending legislation, not

in_ support, and this Court has many times

held that the statements of opponents of

legislation as to meaning are not to be

relied upon. Woodwork Mfgrs. Assn. v.

NLRB, 386 U.S. 612, 639-640 (1967);

Schwegmann Bros. v. Calvert Distillers

Corp., 341 U.S. 384, 394 (1951); NLRB v.

Fruit & Vegetable Packers, 377 U.S. 58,

66 (1964); Mastro Plastics Corp. v. NLRB,

350 U.S. 270, 288, Note 22 (1956).

Lastly, this Court should not con-

strue Section 2 as having an “impact” or

“effect” standard absent more compelling

language or legislative history requiring

that construction. To begin with, Section

2, because of its universal, permanent

application, may well not be subject to

the limiting construction placed on the

5

“effect” language of §5 in Beer v. United

States, 425 U.S. 130, 141 (1976), as being

designed to prohibit changes which lead to

retrogression. An unqualified impact law

would place in doubt election codes,

governmental structures and districting

schemes for congressional, state legis-

lative and local political subdivision

bodies all over the nation. At-large

voting itself is a rational election

method, serving valid interests and is

also a simplified way of satisfying the

one-man, one-vote requirement in many

jurisdictions. It is in wide use through-

out the United States. Of the 50 largest

school boards in the United States, 32

use at-large voting. Black Voters v.

McDonough, 565 F2d 1, 2 (C.A. lst 1977).

Almost two-thirds of all cities elect

their councilmen at-large. As to counties,

40% elect at-large, and another 20% elect

the presiding officer at-large, and the

recent trend is toward at-large elections.

Jewell, Local Systems of Representation:

Political Consequences and Judicial

Choices, 36 Geo. Wash. L.R. 790 (1968).

See also, City of Mobile v. Bolden, 446

U.S. 55, 60 (1980). As of 1970, 46% of

the upper houses and 62% of the lower

6

houses of state legislatures, contained

some at-large seats. Whitcomb v. Chavis,

403 U.S. 124, 157, Note 37 (1971).

An “effect or impact" standard not

only will vary from year to year, depend-

ing upon the facts upon which it operates,

but it would produce different results in

different parts of the state. Indeed,

such a standard would subject to judicial

scrutiny, the voter and candidate qualifi-

cation laws throughout the country, and

very likely require that they be validated

in the same manner as employment tests

under the effect standards of Title VII.

Compare Griggs v. Duke Power Co., 401 U.S.

424 (1971).

(2) Adoption Of At-Large Voting During

The 1960's Does Not Establish

Intentional Discrimination

Appellees argue that the fact that a

number of Georgia Counties changed to at-

large voting during the 1960's, following

enactment of the Voting Rights Act, is

evidence of intentional discrimination.

(Brief, p. 31). This is not so. As this

Court observed in Whitcomb v. Chavis, 403

U.S. 124, 157, f.n. 37 (1971). “"(T)here

is no doubt that some states switched to

7

multi-member districts as a result of those

(reapportionment) decisions. That is what

happened in Georgia. Baker v. Carr was

decided March 26, 1962. In Dusch v. Davis,

387 U.S. 112 (1967), this Court held that

assuming but not deciding that the one-man,

one-vote principle applied to political

subdivisions,election of the members at-

large from residency districts would sat-

isfy the Constitution. About this time,

speculation was high that the one-man, one-

vote principle was going to be held appli-

cable to political subdivision bodies, as

this Court later did in Avery v. Midland

County, 390 U.S. 474 (1968), and Hadley v.

Junior College District, 397 U.S. 50

(1970). This issue was raised in a case

involving Thomas County, Georgia. The

district court in that case held on June

22, 1966, that at-large voting of commis-

sioners running from unequally-populated

districts satisfied the Constitution, and

the Court of Appeals affirmed on June 26,

1967. Davis v. Thomas County, 380 F2d

93 (C.A. 5th 1967). This prompted many

counties which had district election

arrangements involving unequal districts,

to simply amend their district laws so as

to retain the districts, but to require

8

at-large voting. That is precisely the

case with respect to the 18 counties

referred to in Appellee's trial brief,

pages 13-14 (R. 398-99). The Thomas

County case indicated a simple means for

counties having malapportioned districts

to comply with the law.

(3) Factual Misstatements In Appellees'

Brief And The District Court's Opinion

Appellees’ Brief devotes 23 pages to

reviewing evidence, mostly on matters not

relating to voting. A number of misstate-

ments are contained therein, which require

response:

(1) A defendant's witness stated the

only reason he could think of for the at-

large voting was the desire to prefer one

race over another (Brief, p. 20). What

the witness said was that the only purpose

of changing from at-large voting to a

district basis would be in order to favor

one race over the other (T. 101).

(2) If you could not pass the lit-

eracy test, you would be subjected to

Georgia's question and answer test, and

that a significant number of blacks tried

that test, citing (T. 812-13) (Brief, p.

9

3). The witness did not say that "a sig-

nificant number of blacks" tried the test,

and more significantly, she doesn't recall

a single black person every failing

Georgia's literacy test (T. 802). She

further testified that the office always

followed the same procedure for whites

and blacks (T. 803).

(3) Throughout Appellees' brief,

reference is made to the fact that there

was more vigorous opposition to school

desegregation in Burke County than any

other county in Georgia, and that there

was much fear on the part of blacks and

whites concerning desegregation (Brief,

pages 2, 10, 11, 15 and 16). These state-

ments are based upon the testimony of

Mrs. Frances Pauley, who testified that

she came to Burke County about 6 times in

1967 when desegregation was just beginning

(T. 110-134). The fact is, however, that

these apprehensions did not prove to be

true, for it appears that the white school

population in Burke County decreased only

6 percentage points, from 28.85% of the

total before desegregation, to 22% after

(T2. 81). This means that in fact, de-

segregation worked better in Burke County

than it did in Washington, D.C., where

10

the white school population dropped from

around 50% to less than 15% (See Hansen,

Danger in Washington), or in Atlanta,

Georgia, where the white school population

has dropped from 60% before desegregation,

to around only 10% at the present.

(4) Before the Voting Rights Act,

blacks were virtually eliminated from

voting, citing (J.S. 7la-71) (Brief, p. 3).

There is no evidence that blacks were

eliminated. The reference to the Court's

opinion was merely to the effect that

blacks were not registered in large num-

bers prior to the Voting Rights Act. The

testimony was undisputed that they had

never had any trouble registering, voting

“

or running for office. See Appellants’

Brief, pp. 33-34, for discussion and

citations).

(5) To this day, voter registration

has been made as difficult in Burke County

as possible (Brief, p. 4). There is no

evidence whatever to this effect. Indeed,

the evidence is to the contrary for it

shows that at the request of plaintiffs,

the County officials opened up 3 new

registration sites which were not really

needed.

11

(6) The districts adopted by the

Democratic Executive Committee for elect-

ing members of the Executive Committee

all had white voting majorities, citing

(T. 534-42, 891-92) (Brief, p. 9). The

testimony does not support this assertion.

(7) In the few years before this

case was filed, black people were shot at

in Burke County for seeking equal rights,

citing (T. 113, 125-6, 134, 682-83). The

one incident referred to, however, was

not the action of an organized group, but

of a single individual who was ruled

mentally incompetent and was sent to pri-

son for shooting his father-in-law and

stabbing his wife (T. 154, D.E. 73).

(8) Blacks are rarely appointed to

boards or commissions. (Brief, p. 11).

The evidence, however, shows the follow-

ing black appointments:

2 black members, Recreation Commis-

sion (T. 857, 875)

2 members, Democratic Executive

Committee (T. 890-1)

George Williams, registrar (one of

3 registrars), succeeded a prior

black appointee (T. 940, T2. 188)

Joe Lewis, Department of Family &

Children's Services (T2. 188-9)

12

(Now, 3 of the 5 board members are

black)

Marvin Mobley, black, nominated for

DFCS board (D.E. 54, 2nd Page)

Samuel Stone, Planning Board, CSRA

(T2. 189), and Jury Commission

(T2. 190, D.E. 22)

Three black deputy sheriffs (T2. 191)

Mr. Hankerson, appointed to head

youth program, with 2 black coun-

selors (T2. 192)

Arthur Stewart, Neighborhood Youth

Corps Director (T2. 196-7)

Watson Blount - Board of Registrars

(D.E. 19)

Clifford Jones - Board of Registrars

(D.E. 20; T2. 188)

Alvin Robinson, Jury Commission (D.E.

23)

John M. Ellis, Board of Education

(D.E. 24; T. 79)

Calvin Thornton, CSRA Board (T.

290, 825)

Porter Anderson, Youth Summer

Program (T. 825-6)

Elizabeth Carter, Hospital Authority

Board (Appointed after trial)

(9) Throughout Appellees' brief,

the argument is made that Burke County

13

has not been responsive to the needs of

blacks. The district court so found (J.S.

77a). Appellants submit that this find-

ing was clearly erroneous, as they did

below (Brief of Appellants in Court of

Appeals, pp. 2, 30). The Court below

completely disregarded undisputed evidence

that the Commissioners:

(a) Established 3 new registration

sites at the request of blacks (P.E. 105,

D.E. 4; T2. 193).

(b) Denied a beer license to a white

which was opposed by blacks.(D.E. 48, 49).

(c) Authorized a survey of land

lots in Gough at request of a black citi-

zen (T2. 134).

(d) Furnish administration costs

for handling CETA employees, and allocate

CETA employees to black programs, and a

black private school, Boggs Academy (T.

180, T2. 186-7, 201).

(e) Provided $150,000 to purchase

a building for the Burke County Training

Center (Mentally retarded) which serves

mostly black (T2. 203, D.E. 7, 49, 50).

(f) Allocated $8000 to Child Day

Care Center (D.E. 9, T2. 204, 151); and

$6770 on another occasion (T2. 227, ex-

plaining P.E. 244).

14

(g) Applied to HUD and EDA for a

grant to move deteriorated housing (T2.

210).

(h) Approved a county transporta-

tion program which was worked out in

detail with the county's obligations

defined specifically (T2. 37, T2. 221;

D.E. 71). A prior program was rejected

because no details were presented, and it

would have imposed great expense on the

county in 2 years (T. 829-834; T2. 220,

169; D.E. 6).

(i) Do grading and repair ditches

at 12 black churches (T2. 215-216).

(j) The County has at least 16 un-

paved roads which serve predominantly

white areas (T2. 212-215, 219). Plain-

tiffs identified 17 roads which indicate

either paving only for white areas, or

lack of paving in black areas (T. 700-

705; 616-619). Four of these roads

which were paved to a white residence,

however, were not done by the Commis-

sioners, but were political roads pro-

vided by past governors to political

friends (T2. 216-7).

(k) Participate in a recreation

program providing $30,000 annual operating

funds (T. 858, 729; T2. 194; D.E. 51, 52,

15

68), and $43,000 for a new building (T.

864) and allocates CETA employees for the

program (T. 858).

(1) Recently paved 2 roads in pre-

dominantly black areas (T2. 208-209).

(m) Joined the CSRA Manpower Council

to get funds (D.E. 8).

(n) Paved the streets in Gough, a

predominantly black community in 1976-77

(D.E. 68; T. 132).

(o) Approved these programs benefit-

ting blacks:

(1) Weatherization Program,

whereby homes are repaired against

the elements (T. 338; T2. 178)

(2) Emergency Program to pay

past-due utility bills (T. 331)

(3) Dental program for kinder-

garten and first grade, 85% of

clients are black (T. 963-4)

(4) Prenatal program - one of

few counties having this (T. 965;

T2. 8, 22)

(5) Transportation by Health

Department of persons needing it for

other programs (T. 966, 973)

(6) WIC program, supplemental

food for ages 1-18, milk, cheese,

etc. (T. 966, 175)

16

(7) Infant clinic (T. 968)

(8) Counseling program for

parents (T. 969)

(9) Early Periodic Screening,

Diagnosis and Treatment Program

(EPSDT) Free health examinations

(T. 970)

(10) Clinic at Gough (T. 975)

(11) Clinic at Vidette (T. 976)

(12) Clinics at Sardis and

Midville (T. 977)

(13) Mental health program

(T2. 9)

(14) High blood pressure clinic

(T2. 3)

(15) Transportation program by

DFCS to Augusta (T2. 48, 52)

(16) Provides 2 employees, and

pays costs of administering food

stamp program (T2. 58-63; T2. 184,

205)

(17) DFCS emergency fund for

food and medicine (T2. 59, 836, 140)

(18) Migrant farm worker pro-

grams (T2. 64)

(19) County provides much more

than required by the Hill-Burton

committment for free hospital ser-

vices to indigent, 82% of whom are

17

black (T2. 124)

(20) Rural Health Initiative

Program approved (T2. 126, 920, 927)

(21) OIC Program, brick mason

course in Midville (T2. 198; D.E.

10, p. 2)

(22) Feed-A-Kid Program, money

and other contributions (T2. 200;

D.E. 11)

(23) Senior Citizens' Hot Meal

Program (T2. 203)

(24) Dermatology Clinic (Dr.

Abalee) (Dep. of Dr. Byne, p. 13 and

T. 919).

18

CONCLUSION

The judgment below should be re-

versed.

Respectfully Submitted,

PRESTON B. LEWIS

P. O. Box 88 LEWIS & LEWIS

Waynesboro, GA. 38030

E. FREEMAN LEVERETT

HEARD, LEVERETT &

ADAMS, P.C.

Counsel of Record

Attorneys for Appellants

P. O. Drawer 399

Elberton, GA. 30635