# Opposition Brief — Board of Public Education v. Lucas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1009%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 973 ## Text —, 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 rrr rrr rrr Ty epee i pC Be RT ere ese Peek ii er Se OS. 5 ook ccuecdcceanveneeeeeun iv SO Peer EeeerC errr eS re tr 2 rr err re ree a 2 Ee mre re rr rues p 2 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.