Opposition Brief — Board of Public Education v. Lucas

—,

No. 90-1167

In The

Supreme Court of the United States

October Term, 1990

y%

—

THE BOARD OF PUBLIC EDUCATION and

ORPHANAGE FOR BIBB COUNTY, GEORGIA, et al.,

Petitioners,

versus

DAVID LUCAS, et al.,

Respondents.

,

we

Petition For Writ Of Certiorari

To The United States Court Of

4 Appeals For The Eleventh Circuit

&

-

RESPONDENTS’ BRIEF IN OPPOSITION

a,

a

Neit BRADLEY

Counsel of Record

LAUGHLIN McDoNALD

KATHLEEN L. WILDE

Mary E. Wyckorr

American Civil Liberties Union

Foundation, Inc.

44 Forsyth Street, NW

Atlanta, GA 30303

(404) 523-2721

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

«*

e-

QUESTION PRESENTED

Whether, after petitioners changed a referendum

from an election date with high black voter turnout to a

date when voter turnout was expected to be low, the

court of appeals correctly ruled that the combining of

bond issues into one referendum question which forced

minority voters supporting one project to either vote in

favor of other projects they might not support, to abstain

from voting, or to vote against the project they favored,

was a standard, practice or procedure affecting voting

that has the potential for abridgement of the right to vote

on account of race under Section 2 of the Voting Right Act

of 1965, 42 U.S.C. § 1973.

li

TABLE OF CONTENTS

Page

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FUROR TU oc bbc ca veer eanaes Peweees 3

Facts Material to the Question Presented......... 6

1. The Referendum Form and Structure

| ETT ETS e eT ee oe Freee TE oe 6

2. The School Bond Issues as Racially Divisive

PP eee ere rr ie BES 8

3. Election Turnouts, Results & Racially Polarized

PEER eT Eye ee rel rer ese 8

Reasons for Denying the WEE «oo. 2.052. ones eect tews 10

I. The Opinion Below Reversing & Remanding

for Consideration of Respondents’ Section 2

Complaint is Not Ripe for Review........... 10

I]. The Court of Appeals Decided Section 2 of the

Voting Rights Act Covers How Ballot Questions

Are Presented, Not, As Petitioners Contend, What

Issues May be Placed on Ballots............... 11

III. The Holding of the Court of Appeals that the

Structure of a Referendum Question is a “Stan-

dard, Practice or Procedure” Affecting Voting

Under § 2 Of the Voting Rights Act is Correct

and Does Not Merit Review by this Court... 13

A. Section 2 Covers Practices Which Affect

How Votes Are Cast and the Decision to

Have One Referendum Question on Sep-

arable Bond Issues Does Just That ...... 13

ili

TABLE OF CONTENTS - Continued

Page

B. The Board’s Actions In Setting the Time of

the Election and the Ballot Structure Were

Political/Election Practices...............

The Evidence in This Record Illustrates

How Referendum Timing and Structure

Can Dilute Minority Voting Strength to

eG Se

The Court of Appeals Correctly Adhered

to the Law That Summary Affirmances are

Binding on Lower Courts...............

IV. This Litigation Presents A Unique Set of Facts.

Similar Issues Will Seldom Arise or be Capable

of Proof, and Therefore Review by this Court is

Rae ga

nu awhdweuwcewvuvens

APPENDIX

Order of Three-Judge Court Denying Preliminary

Injunction on May 27, 1988

Opinion Entered Upon Stay Pending Appeal

Enjoining the Holding of the May 31, 1988 Bond

Referendum Election

Table Showing Racially Polarized Voting Analysis

of Bibb County Elections (Source: Affidavit of

ae eee ee ee ob e ee OR eA OO eS Re oe we ©

15

16

Michael Binford, R48, pp. 6-7)................... 12A°

iv

TABLE OF AUTHORITIES

Page

CASES

Allen v. State Board of Elections, 393 U.S. 544

UN et ar a ee enn i ee ee sa sy ee € 14

Brotherhood of Locomotive Firemen v. Bangor &

Aroostook R.R., 3869 U.S. 327 (1967)............... 11

Brown v. Dean, 555 FSupp. 502 (D.R.I. 1982)........ 14

Dunston v. Scott, 336 FSupp. 206 (E.D.N.C. 1972) .... 13

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

Se kG ey se Ch aS CNA ae be Es 11

Harris v. Graddick, 593 F.Supp. 128 (M.D. Ala.

PCa as cel area ee SaN sorry bi sest nausea 14

Reynotds v. Sime, 377 US. 533 (1968) ... .... 222.005. 14

Thornburg v. Gingles, 478 U.S. 30 (1986)..... 14, 15, 18

U.S. Dept. of Labor v. Triplett, __ U.S. __, 110

to ee CA ca bop CRS Oe ews 11

STATUTES, CONSTITUTIONAL PROVISIONS AND REGULATIONS

Fe I Sere cs. cleo ycened ene tonite ewe dds 4

pe EET OCTE TET ECET TEC TRE Te 4

Fourteenth Ere ey bth Soo i alot ceca ee ata oat 4

ERE ee ere a rer nee 4

ee ee cp hess nb seu causa uaes av veda ak 4

Ne a i ee ie tiene 2

§ 36-82-1, Official Code of Georgia Ann.............. 6

TABLE OF AUTHORITIES - Continued

Page

Section 2 of the Voting Rights Act of 1965, 42

es CU ask vans Kank piensa aetna yaaa passim

Section 5 of the Voting Rights Act of 1965, 42

Ss Se POC SS dn oon ow ae passe senses £3.73, 7,4

a S160: & TI . oink hse 13

OtHeR AUTHORITIES

S. Rep. 417, 97th Gong., 20 Sees. (1908)... .... 6.52.0 14

H. Rep. 227, 97th Cong., 1st°Sess. (1981)............ 14

No. 90-1167

-%

er

In The

Supreme Court of the United States

October Term, 1990

,

4

THE BOARD OF PUBLIC EDUCATION and

ORPHANAGE FOR BIBB COUNTY, GEORGIA, et al.,

Petitioners,

versus

DAVID LUCAS, et al.,

Respondents.

- =

4

Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Eleventh Circuit

>

vw

RESPONDENTS’ BRIEF IN OPPOSITION

y

wr

Respondents David Lucas, Willie Davis, Jr., Connie

Cater, Corlis McKenzie and Ronnie T. Miley respectfully

request that this Court deny the Petition for Writ of

Certiorari seeking review of the Eleventh Circuit’s opin-

ion which reversed and remanded for consideration, inter

alia, of respondents’ claim premised on Section 2 of the

Voting Rights Act, 42 U.S.C. § 1973.

= *

4

OPINIONS BELOW

The petition appendix does not contain the following

opinions — the opinion of the district court denying

respondents’ first motion for preliminary injunction,

reported at 686 F.Supp. 902 (M.D.Ga. 1988), appended

hereto at 1A, and the opinion entered upon granting a

stay pending appeal and enjoining the holding of the

May 31, 1988 bond referendum election, reported at 486

U.S. 1301 (1988) (KENNEDY, J., in chambers), appended

hereto at 7A.*

.

=

STATEMENT OF JURISDICTION

Petitioners assert jurisdiction in this Court under 28

U.S.C. § 1254(1).

a

>

STATEMENT OF THE CASE

Petitioners, the Board of Public Education and

Orphanage of Bibb County, Georgia (hereinafter “the

Board”) and related public officials of the county seek

review of the determination by the U.S. Court of Appeals

for the Eleventh Circuit that the form and structure of a

* Reference to the appendix hereto are “__A.” References to

the petition appendix are “___a.” References to the record are

to the record document number, e.g., “R21.”

referendum question may violate Section 2 of the Voting

Rights Act of 1965, 42 U.S.C. § 1973.!

Proceedings Below. Respondents, black registered

voters of Bibb County and plaintiffs below, instituted this

action contending that the Board removed from the ballot

a bond issue that biack citizens favored (air conditioning

for existing schools) and combined it with several other

bond issues which black citizens opposed (mainly con-

struction of a high school in a white neighborhood when

there was space available in a majority black high school)

and scheduled the referendum for a later, special election.

The air conditioning issue was originally scheduled to be

on the ballot on the March 8, 1988 presidential preference

primary popularly known as Super Tuesday, an election

at which high black voter turnout was expected and

occurred, but the combined issues were scheduled for a

special election at which no other item or races were on

the ballot, on a day after a national holiday at which low

voter turnout would be expected.

Respondents contended that the setting and changing

of the election date and the removal of the one issue and

combining it as one ballot question with others were

“standards, practices or procedures” under the Voting

Rights Act. The complaint was brought under Sections 2

' Section 2 states in relevant part that “[nlo voting quali-

fication or prerequisite to voting or standard, practice, or pro-

cedure shall be imposed or applied by any State or political

subdivision in a manner which results in a denial or abridge-

ment of the right of any citizen of the United States to vote on

account of race or color... ”

and 5 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973

and 1973c, and the first, thirteenth, fourteenth and fif-

teenth amendments of the Constitution.

Respondents were successful in getting an injunction

to stop the special election set for May 31, 1988. Special

elections in Bibb County are required to receive pre-

clearance under Section 5 of the Voting Rights Act. 28

CFR § 51.17 (1987). The Board did submit the special

election to the Attorney General of the United States, but

when the Attorney General requested additional informa-

tion rather than preclearing the special election, the

Board proceeded with plans to hold the election. Though

the three-judge district court denied a preliminary injunc-

tion, ruling that the Attorney General’s regulation desig-

nating special elections as covered changes under Section

5 was not authorized under the Act, the election was

enjoined by the Circuit Justice. See appendix hereto, at 1A

and 7A.

The Board rescheduled the bond referendum (with

four bond issues combined into one ballot question) for

the general election on November 8, 1988. Respondents

unsuccessfully sought to enjoin the referendum at that

election, again contending that the combining of issues

required preclearance under Section 5. 38a. The three-

judge district court entered judgment for the Board that

the structure of the referendum question did not violate

the preclearance requirement of Section 5. 44a. Respon-

dents’ appeal to this Court on the Section 5 issue was

affirmed. 46a.

The single judge district court held subsequently that

the form and structure of the referendum question was

not a standard, practice or procedure affecting voting

under Section 2 and dismissed respondents’ Section 2

claims. 17a et seq.?

On appeal to the Eleventh Circuit, the court of

appeals reinstated the complaint holding that respon-

dents did state a claim under Section 2. The Court

rejected the Board’s argument that this Court’s summary

affirmance on the Section 5 appeal foreclosed the claim

under Section 2, stating that “because two reasons exist

for the Supreme Court’s affirmance, it did not necessarily

decide the issue of whether the form of a bond referen-

dum question is a standard, practice or procedure affect-

ing voting.” 9a. (Emphasis in original.) After examining

cases of this Court and inferior courts under Sections 2

and 5, the court concluded respondents’ claim was

encompassed by Section 2. 9a-15a. It stated:

How the Board presents projects to the voters,

whether as single-issue or multiple-issue refer-

endums, becomes a political decision with the

potential for diluting or submerging the minor-

ity vote as prohibited by section 2... . By

combining projects in one referendum, the

Board forced minority voters supporting one

project to either vote in favor of other projects

they might not support, to abstain from voting,

or to vote against the project they supported.

Their political will to defeat certain propositions

2 The opinion only addressed Section 2, not mentioning

respondents’ constitutional claims. A judgment captioned

“Final Judgment” was entered, R61, but by its terms it also

covered only Section 2. The Court of appeals directed the

district court to determine the status of the constitutional

claims. 15a, n.7.

is effectively diluted or submerged by the com-

bination of multiple projects in a single referen-

dum.

13a. The court did not reach the merits of the claim but

remanded for proceedings consistent with its opinion.

Facts Material to the Question Presented.

1. The Referendum Form and Structure Decisions. The

Board had for several years considered a number of pro-

jects - one was the air conditioning of older buildings

and another was the construction of a high school. On

December 17, 1987 a black member of the Board, Revert

Brown, moved to place the air conditioning bond referen-

dum on the March 8, 1988, presidential primary (Super

Tuesday) ballot.3 Jesse Jackson’s name would be on that

ballot as it had been in 1984, which resulted in high black

voter turnout (59%) compared to white voter turnout

(37%). R48, p. 17; R58, p. 48. Four black members joined

with one white member of the Board to adopt the motion.

R4, p. 52. This decision was opposed by the county com-

mission, which itself had previously placed a controver-

sial one cent sales tax on the Super Tuesday ballot. R4, p.

57. The county commission had hired a consultant to help

decide when to hold its sales tax referendum. R21 (Stipu-

lation of: Facts). The consultant studied turnout data for

past elections, including the 1984 presidential primary,

and recommended against having the school bond

3 The county commission, not the Board, has the authority

to call a referendum election, O.C.G.A. § 36-82-1, but as a

practical matter the county commission, which is a party here-

to, accedes to the Board’s requests.

issue and the sales tax referendum together on the Super

Tuesday ballot and reported:

The presidential preference primary (Super

Tuesday) to be held in March may attract large

numbers of voters that are not prepared to cast

an informed vote on the sales tax referendum.

Ibid.. report of Kermit Keenum.

Three weeks after its original vote, the Board re-

scinded the motion calling for the air conditioning refer-

endum, voting strictly on racial lines. R4, p. 57. It decided

to consolidate the air conditioning issue and the school

construction issue into one ballot question and to hold

the election as a one-item special election the day after

Memorial Day, despite the “possibility of a smaller voter

turnout for a one-item vote.” R4, p. 57. A second vote to

separate the multiple issues into individual ballot ques-

tions was rejected strictly along racial lines. 3a, R-21,

Board minutes of June 9, 1988, p. 3. The six white mem-

bers followed the recommendation of the superintendent

who strongly opposed dividing the issues. He recom-

mended:

In order to. . . structure a program which has

the best chance of passing, . . . the Administra-

tion believes that we should keep the package

together and try to get as many persons as pos-

sible who have an interest in any part of it to

support it.

R21 (Stipulation of Facts).

2. The School Bond Issues as Racially Divisive Issues.4

There was a difference between white and black voters in

Bibb County on the referendum issues. As noted above,

all black board members voted to separate the multiple

issues into separate ballot questions. R-21. The Baptist

Ministers Union/Evangelical Ministerial Alliance, com-

posed of all black ministers in Macon, favored the air

conditioning project but opposed the construction of the

high school. The ministers issued a statement that they

were “committed to supporting air conditioning for chil-

dren,” but urged voters to vote against the combined

bond question. R23, p. 10. David Lucas, one of the

respondents, a state representative for fourteen years

with children in the public schools, along with other

black citizens opposed the construction of a new high

school believing that there was space available in a pre-

dominantly black high school and that the location of the

proposed school in a white area would put the burden of

bussing disproportionately on black students. R23, p. 9.

3. Election Turnouts, Results and Racially Polarized

Voting. The combined bond referendum passed with

50.8% of the vote, a margin of 628 votes. White turnout

was higher than black turnout, 71% of whites compared

to 60% of blacks. At the originally scheduled Super Tues-

day referendum date with Jesse Jackson’s name on the

4 The following facts concerning racial division and

polarized voting are in the record but are not set out as

conclusive on these issues, for no trial has been held. Respon-

dents set them out to illustrate how the timing of an election

and the ballot format can be utilized to dilute minority voting

strength.

ballot, black and white turnout were almost equal, 51% of

blacks, 52% of whites. R48, p. 19.

Respondents presented an analysis of 15 elections in

Bibb County between 1979 and 1988, including the school

bond and sales tax referendums in 1988. Dr. Michael

Binford conducted a regression analysis on those elec-

tions, the same procedure utilized in Thornburg v. Gingles,

478 U.S. 30 (1986).

In the twelve black/white elections plus the 1988

presidential general election, the correlation coefficient

(“r’) between votes and racial composition of the turnout

was always between .91 and .99, 1.0 being a perfect

correlation. The amount of variance (“r squared”)

explained by the correlation coefficient ranged from .84 to

99. R48, pp. 3 through 7. The table compiled by Binford

on these races is reproduced at 12A, infra. Binford subse-

quently analyzed seventeen additional races in Macon

and Bibb County between 1971 and 1988, and these but-

tressed his conclusion that “racially polarized voting

exists in Bibb County.” R58, p. 3.

The ecological regression estimates conducted by

Binford showed that 66% of blacks voted against the

combined bond referendum; 57% of whites voted for.

R48, pp. 3-7. Thus a majority of each race voted on

opposing sides, and the difference between the races in

their support of (or opposition to) the referendum was

23%.

More voters of both races turned out in November,

1988 (when the school bond referendum was held) than

in March, 1988 (Super Tuesday, the date of the originally

scheduled air conditioning bond issue), but white voters

10

turned out at a much higher rate than blacks in Novem-

ber. Binford concluded that if black voters in November

had matched the white turnout as they had in March, and

the degree of polarity had continued as the ecological

regression indicates, the referendum would have been

narrowly defeated. R48, p.5.

y%

vw

REASONS FOR DENYING THE WRIT

I. The Opinion Below Reversing and Remanding for

Consideration of Respondents’ Section 2 Complaint

is Not Ripe for Review.

This case is not ripe for review. No trial has been held

and the court of appeals merely remanded the case for

further proceedings.

Subsequent to a pre-trial conference, the district

court ruled that the determination of “the number of

questions to be submitted to the electorate for its

approval or disapproval at the ballot box is not a voting

standard, practice, or procedure” and denied respon-

dents’ claim under Section 2. 35a. The court of appeals

found that a challenge to the form or structure of a

referendum question can state a claim under Section 2,

but appropriately did not reach the merits “because the

district court did not rule on the ‘results’ aspects of this

case.” 15a. The case was remanded to the district court

“for the determination of whether section 2 has been

violated.” Ibid.

It is not the usual practice of this Court to review a

case prior to final judgment, when a court of appeals has

11

remanded, because the case is not ripe for review. Brother-

hood of Locomotive Fireman v. Bangor & Aroostook R.R., 389

U.S. 327 (1967); Hamilton-Brown Shoe Co. v. Wolf Bros. &

Co., 240 U.S. 251 (1916). Denial of review at this stage is

appropriate here.

In addition, this case may yet be resolved below on

factual grounds. Any need for this Court’s review may be

obviated by development of facts. The parties have never

had a trial in which a finder of fact could explore the

evidentiary bases for respondents’ claims. The claims and

defenses may present different issues when fleshed out

with a full factual record. Cf. U.S. Dept. of Labor v. Triplett,

__ US. __, 110 S.Ct. 1428 (1990). The courts below could

rule for either petitioners or respondents in such a way as

to obviate the question of interpretation of Section 2. If

the findings are that no racial effects sufficient to violate

Section 2 are present, the need to construe the coverage of

Section 2 would not arise. Conversely, if invidiously dis-

criminatory racial purpose and effect are found, respon-

dents would prevail under their constitutional claims

regardless of the scope of Section 2.

Review by the Court at this stage of the proceedings

is simply premature.

II. The Court of Appeals Decided Section 2 of the

Voting Rights Act Covers How Ballot Questions

Are Presented, Not, As Petitioners Contend, What

Issues May be Placed on Ballots.

The Board’s first question presented, which contends

the court of appeals’ opinion allows voters “to challenge

a policy decision of a school board as to what bond issues

12

to submit to the voters,” Petition, (i), simply is not at

issue in this case, was not decided by the court below,

and is not presented here.

The Board’s authority to decide on the propriety of

projects and to submit those projects to voters for

approval of bonded indebtedness is unaffected by this

litigation. Nothing in this case even suggests that the

Board may not present any and all projects to the voters.

What respondents contend, and what the court of appeals

decided respondents must be heard on, is that “the struc-

ture of the referendum question” requiring an all or noth-

ing vote on racially divisive issues diluted minority

voting strength. The complaint repeatedly uses the

phrase “the structure of the referendum,” Complaint, R1,

qq 25, 28, 29, 30. It does not challenge the substance of the

items to be placed on the ballot or the authority to place

them on the ballot. It does challenge the Board’s election

decisions — how those items appear on the ballot and how

votes are to be cast and counted for them.

The Board’s argument that the court of appeals held

voters have the right under Section 2 to place items up

for referendum is of whole cloth. There is nothing to

review on this point and_this is not grounds for issuing

the writ of certiorari.

13

III. The Holding of the Court of Appeals that the

Structure of a Referendum Question is a “Stan-

dard, Practice or Procedure” Affecting Voting

Under § 2 of the Voting Rights Act is Correct and

Does Not Merit Review by this Court.

A. Section 2 Covers Practices Which Affect How

Votes are Cast and The Decision to Have One

Referendum Question on Separable Bond

Issues Does Just That.

The court of appeals was correct in holding that the

practice of combining separable referendum issues into a

single question could, in some situations, “dilute a minor-

ity vote as effectively as anti-single shot voting pro-

cedures and straight ticket voting requirements.” 15a. The

anti-single shot and straight ticket comparisons are apt.

Such laws compel voters to vote a full slate, thus casting

ballots for those they co not support. Dunston v. Scott, 336

F.Supp. 206 (E.D.N.C. 1972) (3-judge court). Combining

the bond issues here operated in the same manner. As

reflected in the statement of the Baptist Ministers Union/

Evangelical Alliance, minority voters faced the choice of

opposing a project they favored in order to vote against a

project they opposed. Voters favoring all or none of the

bond issues were able to cast a fully effective ballot.

Those voters divided cn the issues were not.

The Voting Rights Act was designed to cover all

practices that affect voting, and referendum elections are

included in the scope of the Act. The definition of voting

for Section 2 is found in 42 U.S.C. § 1973I(c)(1):

‘

The terms “vote” or “voting” shall include all

action necessary to make a vote effective in any

primary, special, or general election, including,

but not limited to, registration, listing pursuant

14

to this subchapter, or other action required by

law prerequisite to voting, casting a ballot, and

having such ballot counted properly and

included in the appropriate totals of votes cast

with respect to candidates for public or party

office and propositions for which votes are received

in an election.

(Emphasis added.)

This Court long ago recognized that the right to vote

“can be denied by a debasement or dilution of the weight

of a citizen’s vote just as effectively as by wholly prohib-

iting the free exercise of the franchise.” Reynolds v. Sims,

377 U.S. 533, 555 (1964). Congress recognized this in

drafting the Voting Rights Act and defining “voting”

broadly in the Act. Allen v. State Board of Elections, 393

U.S. 544, 565-66 (1969). From Allen to Thornburg v. Gingles,

478 U.S. 30 (1986), the broad scope of potentially discrim-

inatory devices has been recognized.

The Senate Report accompanying the 1982 amend-

ments to the Voting Rights Act states that Section 2 “also

prohibits practices, which, while episodic and not involv-

ing permanent structural barriers, result in the denial of

equal access to any phase of the electoral process for

minority group members.” S. Rep. No. 417, 97th Cong,.,

2d Sess., 30, reprinted in U.S. Code, Cong. & Admin.

News 177 (1982). Consistent with the language of the Act

and the legislative history, Section 2 has been applied to a

range of election related practices. Brown v. Dean, 555

F.Supp. 502 (D.R.I. 1982) (polling place locations); Harris

v. Graddick, 593 F.Supp. 128 (M.D.Ala. 1984) (appointment

of poll officials). For examples of other practices held

covered by Section 2 see cases collected at S. Rep. No.

417, 30, n. 119 and H. Rep. 227, 97th Cong., Ist Sess.,

15

14-17 (1981). A broad construction of Section 2 is consis-

tent with this Court’s opinion in Thornburg v. Gingles, 478

U.S. at 45, n. 10 (“Section 2 prohibits all forms of voting

discrimination, not just vote dilution. S.Rep. at 30.”)

B. The Board’s Actions in Setting the Time of the

Election and the Ballot Structure were Political/

Election Practices.

The Board’s actions in setting the time of the referen-

dum election and combining the bond issues into one

question were political/election practice decisions. The

Board was engaged in a political campaign and was

structuring the election to enhance its chance of winning.

There is nothing inherently sinister in this. This is what is

expected of referendum proponents who control the tim-

ing of the election and the ballot format. But because

election dates and ballot structure affect minority politi-

cal participation, they are subject to challenge under Sec-

tion 2.

The Board’s own statements make clear the purely

political aspect of its decisionmaking. E.g., the superin-

tendent’s report, quoted supra, 7, on how to “structure a

program which has the best chance of passing”; the con-

sultant’s report that the Super Tuesday primary “may

attract large numbers of voters that are not prepared to

cast an informed vote,” quoted supra, 7. Even to this

Court the Board argues the decision of the court v°

appeals will make it “virtually impossible . . . to forge the

coalitions and compromises necessary to fund most pro-

jects.” Petition, 9.

16

The timing and structure of a referendum are clearly

“standards, practices or procedures” affecting voting. The

court of appeals was correct in ruling that Section 2 of the

Voting Rights Act proscribes their manipulation in a man-

ner that dilutes minority voting strength.

C. The Evidence in This Record Illustrates How

Referendum Timing and Structure Can Dilute

Minority Voting Strength to Come Within Sec-

tion 2.

Respondents have set out in their statement of the

case some of the facts illustrating how the manipulation

of the ballot timing and structure can dilute minority

voting strength.

When Robert Brown and the other black Board mem-

bers voted to put the air conditioning issue on the 1988

Super Tuesday ballot, they knew Jesse Jackson would be

on the ballot and a high black voter turnout was

expected. When petitioners removed the referendum

from Super Tuesday, they had studied the voter turnout

at the 1984 presidential preference primary, at which

blacks had turned out at a much higher rate than whites.

The Board then picked an election day which was

expected to result in low turnout. The November election

date at which the referendum was finally held resulted in

whites having an advantage, by virtue of high white

voter turnout, they did not have in the March election.

The Board's decision to combine the air conditioning

and high school construction into one ballot question was

made at a time when it knew that black voters supported

the air conditioning and that there was substantial black

17

voter opposition to the school construction. The decision

to combine the questions was specifically made to affect

how people voted, to diminish voting against the school

construction.

The referendum results were racially polarized

despite the Board’s efforts to minimize black voters’

opposition to the school construction. Though the vote on

the referendum was not as polarized as other votes in

Bibb County, 12A, the facts that the majority of black and

white voters cast their votes on opposite sides and that

the spread between black and white voter support or

opposition was 23% strikingly illustrate that the referen-

dum issues were racially divisive. Further, the closeness

of the vote and the different turnouts between March and

November, coupled with the racial polarization, indicates

the manipulation of the date and ballot question affected

the outcome of the election. The referendum carried

though 66% of minority voters opposed it, and the evi-

dence in the record strongly indicates the results would

have been different if the original election date had been

used. This case presents a classic instance of dilution of

the minority vote.

The court of appeals was correct in holding the

Board’s actions were encompassed by Section 2 of the

Voting Rights Act. The decision below is consistent with

the language and legislative history of the Act, and plen-

ary review is not warranted.

D. The Court of Appeals Correctly Adhered to the

Law That Summary Affirmances are Binding

on Lower Courts.

In the Section 5 part of this case, this Court sum-

marily affirmed the judgment of the three judge district

18

court that the decision to combine the bond issues into

one referendum question did not violate Section 5 of the

Voting Rights Act for failure to receive preclearance. 44a,

46a. Petitioners urge review contending that the court of

appeals’ decision is in direct conflict with this summary

affirmance. Petition, 13.

To the contrary, the court of appeals correctly

acknowledged that all inferior courts are bound by any

question necessarily decided by a summary affirmance by

this Court. 7a. The court also correctly decided that the

summary affirmance could have been based on one of

two rationales — that the Board’s action was not a change

in voting practices because it was authorized by statutes

pre-existing the effective date of the Act, or that it was

not a voting practice. 9a.°

The argument in this section demonstrates that the

court of appeals’ decision — that the Board’s actions were

standards, practices or procedures affecting voting within

the meaning of Section 2 - was correct and plenary

review by this Court is not warranted.

> There is nothing that “defies reason,” Petition, 13, in a

voting practice exempt from Section 5, either because it was

authorized by law in effect prior to the date of coverage or was

actually precleared, being subject to challenge under Section 2.

See, Thornburg v. Gingles, supra, finding a legislative reappor-

tionment in violation of Section 2 which had been previously

precleared under Section 5.

19

IV. This Litigation Presents a Unique Set of Facts.

Similar Issues Will Seldom Arise or Be Capable of

Proof, and Therefore Review by this Court is Not

Merited.

The facts underlying this litigation are unique, both

as a matter of occurrence and of availability of proof of

racial purpose and effect. Seldom will there be recorded

evidence of the decision to place a ballot issue on a date

on which blacks would be expected to turn out in rela-

tively high numbers, that public officials would rescind

that decision and attempt to move the referendum to a

day after a national holiday with expected low turnout,

that black and white citizens would be divided over

referendum proposals in the same election, that p.<opo-

nents’ motivations in structuring the election would be

contemporaneously recorded, that the ultimate vote

would be so close and so racially polarized that proof is

available not merely of minority vote dilution, but that

the outcome of the election would have been different

absent the dilution.

Similar litigation will seldom arise such that there is

a need for plenary review, and as the.court of appeals

noted, its “holdings do not have any far reaching impact

on the manner in which public bodies in Georgia may

offer propositions to the voters.” 15a.

,

=

20

CONCLUSION

For the foregoing reasons, respondents suggest that

the petition for writ of certiorari be denied.

Respectfully submitted,

Net. BRADLEY

(Counsel of Record)

LAUGHLIN McDoNnaLp

KATHLEEN L. WILDE

Mary E. Wyckorr

AMERICAN Civil LIBERTIES

UNION FOUNDATION, INC.

44 Forsyth Street, NW

Atlanta, GA 30303

(404) 523-2721

Counsel for Respondents

1A

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

C.A. 88-166-1-MAC (WDO)

[Filed May 27, 1988]

[686 FSupp. 902)

DAVID LUCAS, et al.,

Plaintiffs,

vs.

JUDY TOWNSEND, et al.,

Defendants.

OWENS, District Judge

Plaintiffs in their complaint filed this 27th day of

May at 2:20 P.M. contend that the Tuesday, May 31, 1988,

bond referendum election to be held in Bibb County,

Georgia, should be temporarily restrained by the receiv-

ing single district judge and preliminarily enjoined by the

court of three judges — Circuit Judge James C. Hill, Dis-

trict Judge Duross Fitzpatrick and Chief District Judge

Wilbur D. Owens, Jr., appointed this date by Chief Circuit

Judge Paul Roney pursuant to 28 U.S.C. 2284(b) — because

it is being held in violation of Section Five of the Voting

Rights Act, 42 U.S.C. 1973(c).

Plaintiffs’ motion for a temporary restraining order

came on to be heard before the receiving single judge

who heard evidence and argument from plaintiffs and

defendants. At the conclusion of the hearing the parties

were asked if they desired a further hearing preceding

2A

the scheduled election before the court of three judges.

All parties responded that if such a hearing were held,

they would present nothing other than what was pre-

sented this afternoon so that it is agreeable with all for

the court of three judges to decide this controversy on the

basis of all that was presented to and heard by the

receiving single district judge. Accordingly, the court of

three judges conferred by telephone, carefully considered

the contentions of the parties and decided as follows:

Section Five of the Act, 42 U.S.C.A. § 1973c,

provides that whenever a covered state or politi-

cal subdivision “shall enact or seek to adminis-

ter any voting qualification or prerequisite to

voting, or standard, practice, or procedure with

respect to voting different from that in force or

effect on November 1, 1964...” it may not

utilize or implement such change until (a) it has

secured a judicial determination in the U.S. Dis-

trict Court for the District of Columbia that the

change does not have the purpose or effect of

denying the right to vote on account of race or

(b) it has submitted such change to the Attorney

General of the United States and the Attorney

General has not interposed an objection within

sixty days. While the Act does not specifically

provide for a remedy for failure to comply with

Section Five, the Supreme Court has held that a

complaint for injunctive relief to be heard by a

district court of three judges may be filed in any

U.S. District Court and that court if it is shown

that Section Five applies must enjoin the utiliza-

tion or implementation of such change until Sec-

tion Five is complied with. Allen v. Board of

Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed. 2d 1

(1969).

3A

This district court of three judges is required to

resolve any dispute as to the coverage of Section

Five or, said more directly, to determine

“whether such changes have the potential! for

diluting the value of the Negro vote and are

within the definitional terms of § 5.” Georgia v.

United States, 411 U.S. 526, 534, 93 S.Ct. 1702,

1707, 36 L.Ed.2d 472, 481 (1973). The question of

coverage to be decided by this court does not

include the ultimate question required by Sec-

tion Five to be presented to the District Court

for the District of Columbia or the Attorney

General, i.e., whether or not the enactment in

truth and fact has a discriminatory purpose or

effect. Perkins v. Matthews, 400 U.S. 379, 383, 91

S.Ct. 431, 434, 27 L.Ed.2d 476, 482 (1971).

Plaintiffs contend that the school bond referendum

scheduled for May 31, 1988, constitutes a “change,” as

that term has been defined under 42 U.S.C. § 1973c, and

therefore, the bond referendum cannot be held on that

date absent preclearance from the Attorney General’s

office. Plaintiffs support this position by citing the court

to 28 C.F.R. § 51.17. This section provides in relevant part:

(a) The conduct of a special election_(e.g., an

election to fill a vacancy; an initiative, referen-

dum, or recall election; or a bond issue election)

is subject to the preclearance requirement to the

extent that the jurisdiction makes changes in the

practices or procedures to be followed.

(b) Any discretionary setting of the date for a

special election or scheduling of events leading

up to or following a special election is subject to

the preclearance requirement.

Plaintiffs have also presented evidence that the Attorney

General, has, in fact, refused to preclear the May 31st,

4A

1988, election date’ because he had not been provided

with sufficient data to make an informed decision on the

subject. Based upon these facts, and without any more

evidence, plaintiffs assert that Section Five is implicated

because the election, as scheduled, is a “change,” and that

it has the “potential for diluting the value of the Negro

vote.” See Georgia v. United States, 411 U.S. at 534

(emphasis added).

Plaintiffs have presented no evidence, however, that

the standard, practice, or procedure for scheduling bond

referendums presently being utilized in this state is any

different from that in force or effect when the Voting

Rights Act was adopted and/or extended. Even assuming

that such is the case, the evidence presented before this

Court has utterly failed to demonstrate that the holding

of the bond referendum on May 31st, 1988, has even the

potential for diluting the minority vote. Plaintiffs’ argu-

ment is that there would be an adverse effect with regard

to voting by minorities if a bond referendum, such as the

one at issue, is conducted on a date other than the date of

a statewide or national election. As the argument goes,

this would be necessary in order to insure a large black

voter turnout. We are aware of nothing in Section Five

jurisprudence which requires such a result. There is no

reason to suspect that blacks or whites will turn out in

greater or less numbers in proportion to each other if the

election is conducted at a time when only one issue is put

before the voters, as opposed to a date when other issues

' Defendants have made an effort to comply with the

Attorney General’s regulations, however, their compliance was

done under protest.

5A

or races are pending. To find to the contrary would, in

effect, restrict all special elections to being held at the

time of a general primary or general election, and would

entirely negate the purpose of having a special election

law in the first place. Plaintiffs have presented no evi-

dence to refute such a conclusion. Plaintiffs have cited the

court to the Eleventh [sic Fifth] Circuit’s decision in Gar-

cia v. Guerra, 744 F.2d 1159 (11th [5th] Cir. 1984), however,

this case is not controlling because the “change” therein

clearly implicated the migrant farmworkers’ ability to

participate in the planned election.

While the court recognizes that the Attorney General

plays a cextral role in formulating and implementing

Section Five, and that his interpretation of the scope of

this section is entitled to particular deference, the ulti-

mate determination of whether a change is covered by

Section Five is reserved for a three-judge panel in the

local district court. See Allen v. Board of Elections, 393 U.S.

544, 562-63 (1969); and Garcia, 744 F.2d at 1163. The Attor-

ney General’s regulation making all discretionary special

elections subject to Section Five’s coverage is simply not

supported by the language found in 42 U.S.C. § 1973c.

The electoral action involved must constitute a genuine

change from past practices, and further it must have, at

minimum, the potential for discrimination. The facts as

presented herein, do not demonstrate these requirements.

Accordingly, because plaintiffs have failed to present

any evidence that the school bond referendum scheduled

for May 31st, 1988, is a cognizable “change” under Sec-

tion Five of the Voting Rights Act, and that the election

will in some way discriminate against minority voters,

6A

the court must and does hereby DENY plaintiffs’ prayer

for preliminary injunctive relief.

For the Court of three Judges, this 27th day of May,

1988.

/s/ Wilbur D. Owens, Jr.

Wilbur D. Owens, Jr.

Chief United States

District Judge

###

7A

[108 S.Ct. 1763]

IN THE SUPREME COURT OF THE UNITED STATES

LUCAS ET AL. v. TOWNSEND ET AL.

No. A-898

JUSTICE KENNEDY, Circuit Justice.

This is an application to enjoin a bond referendum

election scheduled for May 31, 1988, in Bibb County,

Georgia. The applicants are five black citizens registered

to vote in Bibb County. On May 27, 1988, a three-judge

District Court for the Middle District of Georgia declined

to issue an injunction, concluding that the applicants had

failed to establish that holding the election now contem-

plated would violate Section 5 of the Voting Rights Act,

79 Stat., as amended, 42 U.S.C. § 1973c. The United States

has submitted, and i have reviewed, a memorandum

advising me that it supports the applicants’ request for

immediate injunctive relief. | have also reviewed and

considered a submission by appellees in opposition.

I

On December 17, 1987, the Bibb County Board of

Education resolved to place a bond referendum on the

March 8, 1988 ballot, a primary election date popularly

known as “Super Tuesday.” The bond issue was intended

to help defray the cost of air conditioning certain local

schools. The Board subsequently voted, on January 4,

1988, to rescind its prior resolution. It resolved to post-

pone the referendum until May 31, 1988, when it would

8A

be voted on with a second bond issue for the building of

a new high school.

On March 7, 1988, counsel for the applicants

requested the Board to rescind its vote calling for the May

31 referendum. In his letter to the Board, counsel argued

that changing the date of the election from a primary day

would adversely affect minority voter turnout. The letter

also argued that the two bond issues had been combined

in an effort to manipulate the minority vote, and noted

that the call for the May 31 referendum had not yet been

submitted for preclearance to the Voting Section of the

United States Department of Justice.

On March 30, 1988, the State authorities applied to

the Voting Section of the Civil Rights Division of the

Department of Justice for preclearance. On May 25, 1988,

the Civil Rights Division responded that “the information

sent is insufficient to enable us to determine that the

proposed change does not have the purpose and will not

have the effect of denying or abridging the right to vote

on account of race or color,” and asked for additional

information, including a “detailed explanation of the rea-

son for choosing May 31, 1988, as the bond election date.”

The Division also requested that State authorities

respond to allegations (i) that the Super Tuesday date had

been abandoned because the turnout of black voters was

expected to be high on that date, and (ii) that the two

bond issues were consolidated to prevent black voters

from voting separately on each of the proposed projects.

Finally, the Division noted that the Attorney General has

60 days to consider a completed submission, and that the

9A

period would begin to run upon receipt by the Division

of all necessary information.

Applicants sought an injunction prohibiting the

Board from holding the election on the ground that the

election had not been precleared by the Attorney General

in.accordance with Section 5. On May 27, 1988, the three-

judge court denied the request for an injunction. The

court stated that it was required to determine whether the

actions proposed “have the potential for diluting the

value of the Negro vote and are within the definitional

terms of § 5.” Opinion, at 3, quoting Georgia v. United

States, 411 U.S. 526, 534 (1976). It also adverted to the

Attorney General’s regulation providing that any discre-

tionary setting of the date for a special election, which is

defined to include a referendum, is subject to the pre-

clearance requirement, 28 CFR § 51.17 (1987), and

acknowledged that the Attorney General had not pre-

cleared the referendum.

The court concluded that the applicants had failed to

present evidence that the procedures to be utilized in the

upcoming election differ from those in use at the time the

Act became law. Accordingly, it concluded that the refer-

endum was not a “change” covered by Section 5. While

the court noted that the Attorney General’s regulation

provides otherwise, it held that the regulation is not

supported by the language of Section 5. Alternatively, the

court concluded that plaintiffs had failed to show that

holding the referendum on May 31, 1988, “has even the

potential for diluting the minority vote.” Opinion, at 4-5.

Accordingly, the court declined to issue the injunction

prayed for by the applicants. This application followed.

10A

I]

The principles that control a Circuit Justice’s consid-

eration of in-chambers applications for equitable relief

are well settled. As a threshold consideration, it must be

established that four members of the Court will consider

the issue sufficiently meritorious to grant certiorari or to

note probable jurisdiction. See White v. Florida, 458 U.S.

1301, 1302 (1982) (Powell, J., in chambers); Rostker v.

Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in cham-

bers). I must also be persuaded that there is a fair pros-

pect that five Justices will conclude that the case was

erroneously decided below. See, e.g., Graves v. Barnes, 405

U.S. 1201, 1203 (1972). Finally, an applicant must demon-

strate that irreparable harm will likely resuit from the

denial of equitable relief and, in appropriate cases, a

Circuit Justice will balance the equities to determine

whether the injury asserted by the applicant outweighs

the harm to other parties or to the public. See Rostker v.

Goldberg, supra, at 1308; Times Picayune Publishing Corp. v.

Schulingkamp, 419 U.S. 1301, 1304 (1974) (Powell, J., in

chambers). —

The substantiality of the federal questions presented

by the case cannot be doubted. Section 5 provides that

certain jurisdictions, including the one in which this case

arose, may not implement any election practices different

from those in force on November 1, 1964, without first

obtaining approval from the United States District Court

for the District of Columbia or, alternatively, from the

Attorney General. Neither statutory requirement has

been met in this case. The three-judge court concluded,

however, that the discretionary setting of the date of a

special election is not a “change” covered by the statute,

11A

notwithstanding the provision in 28 CFR § 51.17 to the

contrary. The conclusion is most problematic under our

precedents, see, e.g., NAACP v. Hampton County Election

Commission, 470 U.S. 166, 178 (1985) (noting that it could

not seriously be disputed “that a change in the date of an

election, if effected by statute, requires approval by the

Attorney General under § 5”), and I have concluded that

four members of the Court would likely vote to note

probable jurisdiction and that there is a fair prospect that

the Court would vote to reverse the judgment below.

I am further persuaded that irreparable harm likely

would flow from a denial of injunctive relief. Permitting

the election to go forward would place the burdens of

inertia and litigation delay on those whom the siatute

was intended to protect, despite their obvious diligence

in seeking an adjudication of their rights prior to the

election. Even if the election is subsequently invalidated,

the effect on both applicants and defendants likely would

be most disruptive. Further, although an injunction

would doubtless place certain burdens on defendants,

such burdens can fairly be ascribed to the defendants’

own failure to seek preclearance sufficiently in advance

of the date chosen for the election. On balance, I conclude

that the equities favor the applicants. Today | have

entered an order enjoining the election, pending the

timely docketing of an appeal.

HHH

12A

[Source: Affidavit of Michael Binford, R48, pp. 6-7]

Bibb County, Georgia

r R2 100% 100%

White black

Jackson 99 99 3% 69%

1984

Jackson 59 .98 12% 104%

1988

Sales Tax .68 46 53% 71%

(No)

Dukakis .98 95 30% 101%

1988

Bonds (No) .66 44 43% 66%

Adams, 1986 .98 .96 18% 91%

primary

Hudson, 1986 95 .90 13% 83%

primary

Adams, 1986 93 87 23% 103%

run-off

Harvey/Hill 91 84 56% 98%

1987 primary

Brooks, 1987 99 99 17% 93%

primary

Lucas, 1987 99 99 16% 97%

primary

Dillard / Huff .98 .97 36% 95%

1987 primary

Brooks, 1987 99 .98 39% 94%

general

13A

Lucas, 1987 .99 99 8% 96%

general

Brooks, 1979 99 .97 25% 93%

primary

The first column reports the correlation coefficient

between the votes and racial composition of the precinct.

The second column indicates the amount of variance

explained by the correlation. The third and fourth col-

umns present the estimates from the regression equations

for the percentage of vote that would be given to a

candidate in homogeneous white and black precincts.