Petition for Writ of Certiorari — Monroe v. City of Woodville

UNITED STATES

OCTOBER TERM, 1990

JOHN MONROE, ET AL

PETITIONERS

V.

CITY OF WOODVILLE

MISSISSIPPI, ET AL

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

*Counsel of Record

June 18, 1990

Carroll Rhodes*

P. O. Box 588

Hazlehurst, MS 39083

(601) 894-4323

Deborah A. McDona!d

Southwest MS Legal Services

P. O. Box 1242

McComb, MS 39648

(601) 684-0578

Willie L. Rose

P. O. Box 5300

Jackson, MS 39296-5300

(601) 987-4265

THE SSENTED E

1. Are minority voters politically cohesive when at

least 70% of minority voters consistently vote as a bloc

for the minority preferred candidate in contested

political elections?

2. Is the test for determining legally significant white

bloc voting as announced in Thornburg v. Gingles, 478

U. S. 30 (1986), the same in jurisdictions where white

voters constitute a minority of the voting age population

as in jurisdictions where white voters constitute a

majority of the voting age population?

3. Does a factual finding that significant numbers of

minority voters cross-over and vote for the candidate not

preferred by the overwhelming majority of the minority

voters preclude a finding of racial vote dilution?

LIST OF PARTIES

The parties to the proceeding below were the

appellants JOHN MONROE, JIMMY HARRIS, DORA

MONROE, LARRY JOHNSON and all others similarly

situated and the appellees CITY OF WOODVILLE,

MISSISSIPPI, RON SENKO, IN HIS CAPACITY OF

MAYOR, AND CHARLES JAMES, GARY D'QUILLA,

TIM SESSIONS, AS MEMBERS OF WOODVILLE,

MISSISSIPPI BOARD OF ALDERMAN, JOE

TOWNSEND, MARY MAGEE, AND HERBERT CURRY,

AS MEMBERS OF THE CITY ELECTION

COMMISSION AND FRANCES TOWNSEND AS CITY

CLERK.

ii

TABLE OF CONTENTS

PAGE

Questions Presented for Review..................:::000000 i

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ED. . . wnsnpantunsbunsnnnssnssasangsees v-vi

Reference to Official Opinions By Lower Courts.. 1

Statement of the Grounds on which

Jurisdiction is invoked...................scecceeeeeeees ete 2

ch anbnnnhbbuanssuesion 2

Concise Statement of The Case 3-7

aa ckinthhnniijadlininnanncbanseerensarsereccenecesesses 7-14

1. Minority Voters Are Politically Cohesive

When At Least 70 Percent Of Minority

Voters Consistently Vote As A Bloc For

The Minority Preferred Candidate In

Contested Political Elections........................... 7-10

2. Is The Test For Determining Legally

Significant White Bloc Voting As

Announced in Thornburg v. Gingles,

478 U.S. 30(1986), The Same In

Jurisdictions Where White Voters

Constitute A Numercial Majority Of The

ill

Voters As In Jurisdictions Where White

Voters Constitute A Numerical Minority

a ee NE ariibcnbenicai ak ths dancannitacinicnpaitennitbsnnens 10-12

3. A Factual Finding That Significant

Numbers Of Minority Voters Crossover

And Vote For The Candidate Not

Preferred By The Overwhelming

Majority Of The Minority Voters Does

Not Preclude A Finding Of Racial Vote

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Appendices

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42 U.S.C. 1973

8 eT TE ENE eee D1-D3

Excerpts from testimony of Dr. Ronald Love

I tii icin Godedecabniaeaetee E1-E3

Excerpts from testimony of Dr. Craig Van Gelder

iv

TABLE OF AUTHORITIES

Cases: Page Number

Collins v. City of Norfolk, Va.

883 F. 2d 1232 (4th Cir. 1989).........0...000.. 9

Gomez v. City of Watsonville

863 F. 2d 1407, (9th Cir. 1988).................. 9

Frisdy v. Schultz, 487 U.S. ((1988)......... 2

Graves v. Barnes,

343 F. Supp. 704 (W. D. Texas 1972)

(three-judge panel) aff'd. sub. nom.

White v. Regester, 412 U.S. 755 (1973)..... 11,13

Monroe v. City of Woodville,

636 F. Supp. 423 (S.D. Miss. 1986)............ 1,4

Monroe v. City of Woodville,

819 F. 2d 507 (5th Cir. 1987).................... 1,4,7,12

Monroe v. City of Woodville,

688 F. 2d 255 (S.D. Miss. 1988)................ 1,3,5,6,7,13

Monroe v. City of Woodville,

881 F. 2d 1327 (5th Cir. 1989).................. 1,2,3,4,6,11,13

Monroe v. City of Woodville,

897 F. 2d 763 (5th Cir. 1990)...............0.00. 1,2,3,6,8,13

Solomon v. Liberty County, Fla.,

899 F. 2d 1012 (11th Cir. 1990)........00000.... 9

Thornburg v. Gingles,

re i ee hk chcisiicecetscccasedeienceines i1,2,6,9,10,12,

13,14

White v. Regester,

Gi Gy: | SON eme REDE RNC nnn 11,13

Other Authorities:

BD AEs. TRROEIOMA BEGG. ...oxsnrccserserscrssccsscrcnsssecsees 2

BD FIFI. TRUIEIOR DGGE ...00,errerrcsrccccresssssesesscsess 4

Be Ue Be. CRROTIO BEB anne ncennesccssccesssrsccsncnsccenees | 4

28 U.S.C. Section 2101(C)............:cccsseesseeeeereeeens 2

Se eas MENU CUP OU scpnsdniasscivacesncsarchniadasnenaies 10

Oe dams CONNOR BOT avasnsseesssseccssscssssrersncsscnesss 2

4B UBC. Bocticn LOTIGIED......0.0...r00scrsssesceeseees 4

Rhodes, Enforcing the Voting Rights Act in......... 13

Mississippi Through Livigation, 57 Miss.

L. J. 705 (1987)

I SE MU Se SOND asi ecciscasacacucasecccsksiveasas Renn teoe ae 8

vi

REFERENCE TO OFFICIAL OPINIONS

BY LOWER COURTS

Petitioners seek review of adverse decisions

rendered by the United States Court of Appeals for the

Fifth Circuit. Those decisions are reported as Monroe v.

City of Woodville, Miss., 897 F. 2d 763 (5th Cir. 1990)

(referred to as "Monroe V") and Monroe v. City of

Woodville, Miss., 881 F. 2d 1327 (5th Cir. 1989) (referred

to as "Monroe IV"). The Fifth Circuit decisions affirmed

the decision of the United States District Court for the

Southern District of Mississippi, cited in Monroe v. City

of Woodville, Miss., 688 F. Supp. 255 (S.D. Miss. 1988)

(referred to as "Monroe III"). The district court's decision

was rendered after a trial, and after the case was

remanded from the Court of Appeals for the Fifth

Circuit. The Fifth Circuit decision remanding the case is

reported in Monroe v. City of Woodville, Miss., 819 F. 2d

507 (5th Cir. 1987) (referred to as "Wodville II"). The

Woodville II decision reversed an earlier decision by the

district court disposing of the case on summary

judgment. The district court's summary judgment

decision is reported in Monroe v. City of Woodville, Miss.,

636 F. Supp. 423 (S. D. Miss. 1986) (referred to as

“Monroe I""). All five Monroe decisions are reported.

Monroe V and Monroe IV are set out in Appendix A and

Monroe III is set out Appendix B. Monore I and Monroe

II are reported decisions and are referred to herein.

STATEMENT OF THE GROUNDS FOR

INVOKING JURISDICTION

Petitioners seek review on writ of certiorari of two

decisions rendered by the United States Court of

Appeals for the Fifth Circuit in Monroe IV and Monroe

V construing issues raised by petitioners under Section 2

of the Voting Rights Act of 1965, as amended, 42 U.S.C.

§§ 1973. The Fifth Circuit rendered judgment and

entered on August 30, 1989. Thereafter, petitioners filed

a timely Petition for Rehearing before the Fifth Circuit.

The Fifth Circuit granted, in part, and denied, in part,

petitioners’ Petition for Rehearing on March 22, 1990.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Sections 1254 and 2101(c). The questions

involved are of substantial importance. See Thornburg

v. Gingles, 478 U.S. 30 (1986), compare Frisby v.

Schultz, 487 U.S. (1988).

STATUTES INVOLVED

This case involves 42 U.S.C. Section 1973. A copy of

the text of this statute is attached as Appendix "C".

STATEMENT OF THE CASE

Woodville, Mississippi is one mile square in size

located in the extreme southwest corner of the State of

Mississippi. The town has 1,512 residents. Afro-

American residents comprise 64.3% of the town's

population and 60.5% of the the town's voting age

population. Woodville lies in one of the most rural,

impoverished, and economically depressed areas of the

State of Mississippi.! There is almost total social and

educational segregation in Woodville. The town has a

history of racial discrimination. Gross socio-economic

disparities still exist between whites and Afro-

Americans. Before 1965, de jure segregation prohibited

Afro-Americans from participating in the electoral

process in Woodville.

The town is governed by a mayor and four (4)

aldermen elected at-large. There are no designated

posts. A majority vote is required for election to the

board of aldermen.

Aithough there have been Afro-American

candidates for aldermen since 1969, only one black

person, Charles James, has been elected as alderman in

1 The facts contained in petitioners’ statement of the case are

taken from the district court's findings of fact and conclusions of law

published in Monroe v. City of Woodville, Miss., 688 F. Supp. 255

(S.D.Miss. 1988). Although petitioners appealed the decision of the

district court to the United States Court of Appeals for the Fifth

Circuit, neither petitioners nor respondents challenged the district

court's fact finding, except for the ultimate facts critical to this case.

The only ultmate facts challenged on appeal were those challenged

by petitioners. Petitioners challenged the district court's ultimate

findings that Afro-Americans in Woodville were not politically

cohesive and white racial bloc voting in Woodville was not legally

significant. Petitioners did not challenge any other facts found by the

district court And, respondents did not challenge any of the district

court's findings of fact.

In their initial opinion published in Monroe v. City of Woodville,

Miss., 881 F. 2d 1327 (5th Cir. 1989) and in their opinion on

rehearing published in Monroe v. City of Woodville, Miss., 897, F. 2d

763 (5th 1990), the Fifth Circuit misapprehened certain facts found

by the district court. Since there was no challenge, on appeal, to the

district court's underlying facts, those facts will be relied on.

3

Woodville.2 He was first elected in 1981 and reelected ir:

1985.

Petitioners filed the instant Section 23 lawsuit in

1985 challenging Woodville's aldermanic election system

as racially dilutionary.4 The district court dismissed the

action, on respondents’ summary judgment motion,

stating that Woodville's Afro-American population

constituted a "safe district."9 Petitioners appealed this

adverse decision to the United States Court of Appeals

for the Fifth Circuit. The Fifth Circuit reversed the

district court's summary judgment decision and sent the

case back to the lower court for a trial.6

A trial was held on petitioners’ Section 2 claim in

1988. The district court found that "[T|here was no real

contest presented by the defendants to the plaintiffs’

proposition that whites in Woodville bloc vote to a

2 The Fifth Circuit intimated that three of Woodville’s four

aldermen are now black. Monroe v. City of Woodville, Miss., 881 F. 2d

at 1329, n. 2. The Fifth Circuit stated:

Charles James was elected as an aldermen in 1981 and

reelected in 1985. We note in passing that two additional black

candidates were elected as aldermen in 1989.

Monroe v. City of Woodville, Miss., id.

The Fifth Circuit was wrong in its understanding of events

subsequent to the district court's decision. Three blacks do not and

have never served on Woodville’s board of aldermen. In December,

1988, a black woman was appointed to the board of aldermen to fill a

vacancy. During regular elections in May and June, 1989, she was

elected becoming Woodville’s second black alderman. Of the four

aldermen elected, she received the least votes. This evidence was not

before the district court because these events occurred subsequent to

the decision in this matter. She was appointed by a majority white

board of aldermen, apparently, in an attempt to moot the instant

lawsuit.

3 42 U.S.C. 1973. The district court's federal question and civil

rights jurisdiction was invoked pursuant to 28 U.S.C. Section 1331

and 1343 and 42 U.S.C. Section 1973(jXf).

4 These facts are taken from the Fifth Circuit opinion in Monroe

v. City of Woodville, Miss., 881 F. 2d at 1328.

5 Monroe v. City of Woodville, Miss. 636 F. Supp. 423 (S.D. Miss.

1986).

6 Monroe v. City of Woodville, Miss., 819 F 2d 507 (5th Cir. 1987).

4

significant degree’ for white candidates when white

candidates are opposed by black candidates."8 The court

further found "that in Woodville white voters vote for

white candidates and that black voters vote for black

candidates",9 ... but that black voters crossover to vote

for white candidates in significant numbers!9 so that

they are not politically cohesive."!1 The district court

concluded "that there is obvious polarization of voting

along racial lines."12

Finally, the trial court concluded that "the evidence

presented in this case demonstrates that blacks can

constitute a geographically compact and insular

group."13

The district court, nevertheless, ruled adverse to

petitioners, essentially holding that petitioners failed to

prove that Afro-American voters in Woodville are

politically cohesive and white bloc voting in town

7 Evidence in the record reflects that white voters generally bioc

vote at a rate of 100% for white candidates in racially contested

elections. [See Appendix D-3, Dr. Ronald Love's testimony]. The

district court apparently accepted this evidence because the court

found that petitioners “may have established ‘a white bloc vote’,

Monroe v. City of Woodville, Miss., 688 F. Supp. at 263.

8Monroe v. City of Woodville, Miss., 688 F. Supp. at 259.

9Fvidence in the record shows that black voters generally bloc

vote at the rate of 70-80% for black candidates in racialiy contested

election. Appendix D-2, testimony of Dr. Ronald Love.

10Bvidence in the record revealed that generally 20-30% of black

voters crossover and vote for white candidates whereas (1% of white

voters crossover and vote for black candidates.

Petitioners submit that the black crossover voting for white

candidates is not significant. The district court in its conclusions of

law used less dramatic terms. The court, there, stated that "there is

much crossover voting by blacks for white candidates."Monroe v. City

of Woodville, Miss., 688 F. Supp. at 261.

11 Monroe v. City of Woodville, Miss., 688 F. Supp. at 259.

127d. at 261.

13Monroe v. City of Woodville, Miss., 688 F. Supp. at 262, referring

to Exhibits P-1 and P15.

elections is legally significant.14

Petitioners appealed the district court's trial

decision to the Fifth Circuit. Another panel of the Court

of Appeals affirmed the district court's judgment in favor

of the Woodville respondents.

The Fifth Circuit essentially agreed with the

district court that Woodville's Afro-American voters were

not politically cohesive and that "both white and black

residents in Woodville engage in some amount of racial

bloc voting.!5 (Emphasis added).

As to the factual issue of political cohesion, the Fifth

Circuit acknowledged that 1983 election results proved

"a strong degree of racial bloc voting by black residents,

which could indicate political cohesion.”! 6 However, the

court indicated that 1987 election results "weigh against

finding political cohesiveness.”!7 The court noted that

petitioners’ expert on racial bloc voting and respondents’

expert on racial bloc voting disagreed as to whether or

14The United States Supreme Court in Thornburg v. Gingles, 478

U.S. 20 (1986) held that in a usual vote dilution case, a protected

minority had to prove three essential facts in order to prove a prima

facie case of minority vote dilution. The district court held that

petitioners did prove one element of the Thornburg tripartite test,

i.e., that Afro-Americans “can constitute a geographically compact

and insular group.” Monroe v. City of Woodville, Miss., 688 F. Supp.

at 262.

15 Monroe v. City of Woodvile, Miss., 897 F. 2d at 764. The Fifth

Circuit added the adjectives “some amount” to its discourse on

legally significant white bloc voting in its amended opinion. The

court, in its earlier opinion rendered in Monroe v. City of Woodville,

Miss., 881 F. 2d 1327, 1332, ruled "[TJhe district court found that

both white and black residents in Woodville engage in racial bloc

voting.” The adjectives "some amount” describing racial bloc voting

distorts the district court's finding on that subject. The district court

found a “significant degree” of white bloc voting in Woodville.

Monroe V. City of Woodville, Miss., 688 F. Sup. at 259. The district

court also found "that black voters vote for black candidates”

although significant numbers of blacks crossover and vote for white

candidates. Monroe v. City of Woodville, Miss., 688 F. Supp. at 259.

1 >Monroe v. City of Woodville, Miss., 897 F. 2d at 764.

« "Td.

not Woodville's blacks were politically cohesive.18

Petitioners’ expert testified that if 51-60% of Woodville's

black voters voted as a bloc for a particular candidate in

contested elections, they would be politically cohesive.!9

He testified that at least 70-80% of black voters in

Woodville voted as a bloc for the the black candidate in

contested elections.29 Respondents’ expert, Dr. Craig

Van Gelder, testified that 84-85% of blacks in Woodville

would have to vote as a bloc for a particular candidate in

order for blacks to be politically cohesive.21

As to the factual issue of whether or not white bloc

voting in Woodville is legally significant, uncontradicted

testimony revealed that white voters in Woodville vote

“almost 100 percent” as a bloc for white candidates in

racially contested elections. 22 During the time of trial,

only one black candidate had been successful in being

elected as an alderman,2° although 16 blacks had run

for the position since 1969.24 Blacks, in Woodville's

elections, generally vote at the 70 percent level or higher

for black candidates in racially contested elections.2°

ARGUMENT I

Minority Voters Are Politically Cohesive When At

Least 70 Percent Of Minority Voters Consistently

Vote As A Bloc For The Minority Preferred

Candidate In Contested Political Elections.

The Fifth Circuit, in affirming the district court,

held that black voters in Woodville are not politically

cohesive essentially because 1987 election results

revealed that approximately 20-30% of the town's black

18

194 npendix D-3, testimony of Dr. Ronald Love.

204 ppendix D-2, testimony of Dr. Ronald Love.

21 Appendix E-2,3, testimony of Dr. Craig Van Gelder.

22. ppendix D-3, testimony of Dr. Ronald Love.

23Monroe v. City of Woodville, Miss., 688 F. Supp. at 257.

24 Monroe v. City of Woodville, Miss., 819 F. 2d at 508.

25, ppendix D-2, testimony of Dr. Ronald Leve.

7

voters crossed over2® and voted for the non-minority

preferred candidate in contested elections.2” The court

relied on the testimony of respondents’ expert, Dr. Van

Gelder, in reaching this conclusion.28 Dr. Van Gelder

testified that Woodville's blacks would have to vote as a

bloc at the 84-85 percent levels in order to be politically

cohesive.29 Petitioners’ expert, Dr. Ronald Love, testified

that blacks in Woodville consistently bloc voted at the

rate of 70-80% for black candidates in racially contested

elections, and therefore were politically cohesive.29 Dr.

Love was the only expert to perform a racial bloc voting

analysis.2! Dr. Van Gelder did not perform his own

racial bloc voting analysis. Thus, from the Fifth Circuit's

holding, affirming the district court, and the evidence, it

is apparent the Fifth Circuit held that in order for a

racial or language minority to be politically cohesive in a

jurisdiction wherein the minority voting age population

26The Fifth Circuit reviewed the district court's decision on

political cohesion under Fed. R. Civ. P. 52(a)’s clearly erroneous

standard. Monroe v. City of Woodville, Miss., 897 F. 2d at 764. The

Fifth Circuit indicated that there were two views of the evidence on

the issue. One view, the court recognized, is that Woodville's blacks

are politically cohesive. The other view, the court indicated, was that

Woodville’s blacks are not politically cohesive because in a single

election year, 1987, 20-30% of black voters crossed over and voted for

white candidates for elective offices in racially contested elections.

However, there are not two views of the evidence. At least 70% of

Woodville’s black voters have consistently voted for minority

~~. candidate in racially contested elections.

27Monroe v. City of Woodville, Miss., 897 f 2d at 764. See footnote

20 = 21, supra.

28Monroe v. City of Woodville, Miss., 897 F. 2d at 764.

footnote 21, supra.

30See footnote 20, supra. The court of appeals agreed that the

1983 elections showed a strong degree of racial bloc voting by

Woodville 3 blacks. Dr. Love testified racial bloc voting was greater in

1983 than in 1987. Since the Fifth Circuit indicated that there was no

issue of fact that the 1983 elections indicate Woodville's blacks are

politically cohesive, petitioners’ petition for a writ of certiorari will

address the Fifth Circuit's holding on the 1987 election results.

31 Appendix E-2, testimony of Dr. Craig Van Gelder.

constitutes a numerical majority of the total voting age

population, the minority voters would have to

consistently bloc vote at the 84 percent level or higher in

order to be politically cohesive. It is equally apparent the

Fifth Circuit held that in such a jurisdiction when at

least 70 percent of the minority voters consistently vote

as a bloc for the minority preferred candidate in

contested political elections, the minority voters are not

politically cohesive. An important federal question is

raised by the Fifth Circuit's decision, in light of

Thornburg v. Gingles, supra, i.e. what percentage of

minority voters must vote as a bloc in order to constitute

"a significant number." The Fifth Circuit has decided

this important question of federal law which has not

been, but should be, settled by the Supreme Court. This

question is inimical to one prong of the test utilized in

minority vote dilution cases, i.e. is the minority

politically cohesive.

Politicai cohesion, in the context of minority vote

dilution, was first defined by this court in Thornburg v.

Gingles, supra. There, the court held that "showing that

a significant number of minority group members usually

vote for the same candidates is one way of proving

political cohesiveness necessary to a vote dilution claim”

Thornburg v. Gingles, supra at 56. Lower federal courts,

from other circuits, have consistently held that proof of

minority racial bloc voting equates with proof of minority

political cohesion, as announced in Thornburg uv.

Gingles, supra.%2 The Eleventh Circuit noted in

Solomon v. Liberty County, Fla., 899 F.2d 1012 (11th Cir.

1990) that "[I]n Gingles, black support for black

candidates ranged from 71% to 92% in all but 5 of 16

primarily elections, and from 87% to 96% in the general

election." Solomon v. Liberty County, Fla., supra at 1020,

32Gomez v. City of Watsonville, 863 F. 2d 1407, 1415 (9th Cir.

1988) ("the issue of political cohesiveness is to be judged primarily on

the basis of the voting preferences expressed in actual elections”)’

Solomon v. Liberty County, Fla., supra. at 1019-1020 (11th Cir. 1990)

(strong minority bloc voting equates with political cohesiveness);

Collins v. City of Norfolk, Va., 883 F. 2d 1232, 1237, n. 6 (4th Cir.

1989) (court of appeals noted district court found racially polarized

voting to equate with political cohesion).

9

n. 10. Although this court has not ruled what threshold

percentage of a racial or language minority must vote, as

a bloc, for the minority preferred candidate in order to be

considered "politically cohesive," the court should setile

this issue. A new federal census will be completed

shortly. Thousands of political jurisdictions will

reapportion and redistrict election boundaries.

Undoubtedly, litigation under the Voting Rights Act of

1965, as amended,?% will probably heighten. The Fifth

Circuit's holding in this case could create chaos in the

fifth as well as other circuits.24

Thus, the federal question of what threshold

percentage of minority voters must vote as a bloc for the

minority preferred candidate in order to be considered

politically cohesive should be settled by this court.

ARGUMENT I

Is The Test For Determining Legally

Significant White Bloc Voting As Announced in

Thornburg v. Gingles, 478 U. S. 30 (1986), The

Same In Jurisdictions Where White Voters

Constitute A Numbercial Majority Of The

Voters As In Jurisdictions Where White Voters

Constitute A Numerical Minority Of The

Voters?

This court has never made any distinction in the

applicability of the Voting Rights Act and the controlling

3342 U.S.C. Section 1971, et. seq.

344 fter Thornburg v. Gingles, supra, many courts now hold that

racial and language minorities must prove the three-prong test

announced in Thornburg in order to prevail on a Section 2 (vote

dilution) claim. Many minorities could find themselves in petitioners’

shoes should other courts hold that although they have proven

minority racial bloc voting, such racial bloc voting does not establish

minority political cohesion. This is true, where, as here, the Fifth

Circuit did not find error in the district court's reliance on

respondents’ expert testimony that in order to be politically cohesive,

the minority voters would have to vote, as a bioc, at the 84-85 percent

level.

10

legal precedent to cases wherein the protected minority

was in the numerical majority or the numerical minority.

White v. Regester, 412 U.S. 755.3/

The Fifth Circuit has made a significant departure

from the precedent of White v. Regester, by implicitly

holding that in the present case Afro-Americans by

virtue of their numerical superiority should be able to

elect candidates of their choice. This fact was the

foundation of the court's holding.38

This court has held that: \

"The essence of a Section 2 claim is that a certain

electoral law, practice, or structure interacts with

social and historical conditions to cause an

inequality in the opportunities enjoyed by black

and white voters to elect their preferred

37The facts in White v. Regester, were that in Bexar County, Texas,

Mexican-Americans were a plurality in terms of their numerical

percentage of the population. At trial, defendants argued that

because the Mexican-Americans were in the numerical majority they

were not entitled to constitutional relief. The lower court rejected this

argument stating:

“Whitcomb speaks of a "minority", and we see no need to limit

that to numerical minority. In fact, “minority” has traditionally

been used in Civil Rights cases to denote a racial or social group

of people, not a numerical percentage. Therefore, the Mexican-

Americans of San Antonio are not red out of Whitcomb simply

because their numbers may predominate over those of the

Angolos. They still fall within the rationals of Whitcomd.”

Graves v. Barnes, 343 F. Supp. at 733.

The facts are stated by the trial court in Graves v. Barnes, 343 F.

Supp. 704, (W. D. Texas, 1972) (three-judge panel) affd. sub. nom.

White v. Regester, supra.

38The appellate court stated:

“If there is a black preferred candidate, or set of candidates,

the roughly twenty percent numerical superiority in voting

age population should provide black residents with a

sufficient opportunity for success at the polls.” Monroe v.

City of Woodville, Miss., 881 F. 2d 1333.

and

"The district court evidently found it difficult as do we, to

analyze “legally significant white bloc voting” in a

jurisdiction where blacks are in the numerica! majority." Jd.

at 1332.

11

representatives. This court has long recognized

that multimember districts and at-large voting

schemes my "operate to minimize or cancel out

the voting strength of racial [minorities in] the

voting population.” Thornburg v. Gingles, supra

at p. 47. :

A pertinent issue in this case is whether the white

bloc vote in an at-large system causes blacks inequality

of opportunity to elect candidates of their choice in the

Town of Woodville, Mississippi. The answer to that

question is affirmative and the evidence in support of

that conclusion is abundant. For example, as of the trial

of this action only one black had won a seat on the Board

of Aldermen out of a total of sixteen (16) Afro-Americans

candidates.39

The focal point of the third prong of a vote dilution

claim i.e. legally significant white bloc voting, as

articulated in Thornburg, is a white bloc vote which will

normally defeat the combined strength of the minority

support plus the white crossover.49 The trial court's

emphasis is not on the capacity of the white bloc vote to

defeat minority candidates but rather on the black

crossover.49 This conclusion was tacitly affirmed by the

appellate court.41

As a result of the emphasis on the black crossover

as a means of negating a finding legally significant white

bloc voting, the Fifth Circuit has enunciated a new test

which this court should address to clarify the legal

standards which lower federal courts should employ.

ARGUMENT III

39Monroe v. City of Woodville, Miss., 819 F. 2d 507 at 508.

40The trial court stated:

“White candidates win not because of the white bloc vote, but

because of the black crossover vote. The plaintiffs may have

established a “whit» bloc vote", but they have not proved

legally significant racial bloc voting for purposes of a Section

2 claim.” Monroe v. City of Woodville, Miss., 688 F. Supp. at

263.

41Monroe v. City of Woodville, Miss., 881 F. 2d at 1333.

12

A Factual Finding That Significant Numbers Of

Minority Voters Crossover And Vote For The

Candidate Not Preferred By The Overwhelming

Majority Of The Minority Voters Does Not Preclude

A Finding Of Racial Vote Dilution.

Essentially, the Fifth Circuit affirmed the district

court's conclusion that crossover voting by 20-30% of

minority voters? in racially contested elections preclude

a finding of vote dilution.43 Such a holding is

incongruous with this court's decision in Thornburg v.

Gingles, supra, that a prima facie case of a minoring vote

dilution is established by proving: (1) the protected

minority? is geographically insular such that a majority

42The district court held that “significant numbers" of Woodville's

black voters “are crossing over to elect white candidates." Monroe v.

City of Woodvilie, Miss., 688 F. Supp. at 259. The Fifth Circuit

indicted that his holding is limited to the results of 1987 elections

only. Monroe v. City of Woodville, Miss., 897 F. 2d at 764. Petitioners’

expert analyzed election data for the 1983 and the 1987 elections.

Monroe v. City of Woodville, Miss., 897 F. 2d at 764. "The 1983

elections show a strong degree of racial bloc voting by black residents,

which could indicate political cohesion.” Monroe v. City of Woodville,

Miss., 897 F 2d at 769. Respondent's expert “did not make a full

study” of the elections. Monroe v. City of Woodville, Miss., 688 F.

Supp. at 259. (Dr. Van Gelder testified that the did not analyze the

election data to draw a conclusion of racial bloc voting or pclitical

cohesion). Petitioners’ expert, Dr. Love, testified that the 1987

election results showed that 70-80% of blacks voted as a bloc for black

candidates. [Appendix D-2, Thus, 20-30% of blacks crossed over and

voted for white candidates in 1987. This is the evidence from which

the district court concluded that “significant numbers” of blacks were

crossing over.

43 Monroe v. City of Woodville, Miss., 897 F.2d at 764; Monroe v.

City of Woodville, Miss., 881 F. 2d at 1334.

44Protected minority is used to identify those classes of voters

entitled to invoke the protection of the Voting Rights Act of 1965, as

amended. See Rhodes, Enforcing the Voting Rights Act in Mississippi

Through Litigation, 57 Miss. L. J. 705, 705-706, n. 5(Dec. 1987);

Graves v. Barnes, 343 F. Supp. 704, 733 (W. D. Tex. 1972) (three-judge

court) affirmed in part and reversed in part sub. nom. White v.

Regester, 412 U. S. 755 (1973). Both the Fifth Circuit and district

court in the instant case indicated the word “minority” might refer to

a numerical minority rather than a racial or language minority. See

Monroe v. City of Woodville, Miss, 881 F. 2d at 1334.

13

minority single member district could be drawn if the

multi-member feature is dismantled; (2) the protected

minority is politically cohesive; and (3) white bloc voting

usually defeats the minority's preferred candidate.

Thornburg v. Gingles, supra at 51. Under Thornburg,

the focus of the inquiry into a minority's Section 2 vote

dilution claim is: are a significant number of the

minority group members voting together, and, if so, what

impact does white bloc voting have on their ability to

elect candidates of their choice? The Fifth Circuit has, in

Monroe, turned the focus of the inquiry away from the

significant number of minority group members and the

impact of white bloc voting on their voting strength to

the few crossover minority votes. Now, in the Fifth

Circuit, the focus of the inquiry is: how does the

crossover minority vote impact the ability of minority

group members to elect candidate of their choice. Or,

alternatively, the focus in the Fifth Circuit now is — if

all the minority group members vote as a bloc could they

elect candidates of their choice?

This shifting of the focus of the inquiry in this vote

dilution case conflicts with the Supreme Court's

pronouncement in Thornburg v. Gingles, supra.

CONLUSION

On the basis of the foregoing facts and authorities,

petitioners respectfully submit that their petition for a

writ of certiorari should be granted.

14

APPENDIX A

763

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 897 F. 2d 763 (5th Cir. 1990)

John MONROE, et al.,

Plaintiffs-Appellants,

Vv.

CITY OF WOODVILLE, MISSISSIPPI

et al., Defendant-Appellees.

NO. 88-4433

United States Court of Appeals,

Fifth Circuit

March 22, 1990.

Rehearing and Suggestion for Rehearing

En Banc Denied March 22, 1990

Black voters brought action challenging at-large

aldermanic election system in city, alleging that system

diluted voting strength of blacks. The United States

District Court for the Southern District of Mississippi,

636 F. Supp. 423, dismissed action, and voters appealed.

The Court of Appeals, 819 F.2d 507, reversed and

remanded. On remand, the District Court, William

Henry Barbour, Jr., Chief Judge, 688 F. Supp. 255,

entered judgment for city, and appeal was taken. The

Court of Appeals, 881 F.2d 1327 affirmed and, on motion

for rehearing, held that fact that black voters voted as

bloc for black candidates did not mandate finding of

political cohesion.

Ordered Accordingly.

1. Elections — 12(1)

For purpose of vote dilution claim under Voting

Rights Act, fact that minority group votes as bloc for

minority candidates does not mandate finding of political

A-1

cohesion where there is also evidence of significant and

consistent crossover voting; while statistical proof of

political cohesion is likely to be most. persuasive form of

evidence, courts must carefully examine statistical

evidence or racial bloc voting to determine its relevance

and probativeness to finding of political cohesiveness.

Voting Rights Act of 1965, § 2, as amended, 42 U.S.C.A. §

1973.

2. Municipal Corporations — 80

Evidence supported finding that there was not

political cohesion among city's black voters for purpose of

claim that city's at-large aldermanic election system

diluted voting strength of blacks; although there was

strong degree of racial bloc voting by black voters and

although both expert and lay witnesses testified as to

political cohesiveness among black voters, there was

significant degree of crossover voting for white

candidates by black voters in recent elections and there

was also expert and lay testimony indicating lack of

cohesiveness. Voting Rights Act of 1965, § 2, as

amended, 42 U.S.C.A. § 1973.

Willie L. Rose, Southwest, MS Legal Service,

McComb, Miss., Carroll Rhodes, Hazlehurst, Miss.,

Deborah A. McDonald, Natchez, Miss., for plaintiffs-

appellants.

Robert B. McDuff and Frank B. Parker, Lawyers

Com'n for Civil Rights Under Law, Washington, D. C.,

for amicus curiae.

Dennis L. Horn, Jackson, Miss., Richard T. Watson,

Woodville, Miss., for defendants-appellees.

Appeal from the United States District court for the

Southern District of Mississippi.

ON PETITION FOR REHEARING

(Opinion Aug. 30, 1989, 5th Cir. 881 F.2d 1327)

Before GEE, GARZA and JONES, Circuit Judges:

PER CURIAM:

A-2

Having considered appellants’ motion for rehearing

and decided that it is in part well-taken, the court

herewith revises part A and the first sentence of part B

of the opinion as follows:1

A. Political Cohesion

(1) [3] Based on the evidence before it,-the district

court concluded that the appellants did not prove

political cohesion among the black voters in Woodville.

764

897 FEDERAL REPORTER, 2d SERIES

That the appellants had the burden of proof on this

issue is not disputed. See Overton, 871 F.2d 529, 543

(Jones, J. concurring). Appellants assert that this finding

embodies an error cf law as well as fact. They note that

the district co:rt accepted the parties’ stipulation that

both whites and blacks in Woodville generally vote along

racial lines. According to appellants, Thornburg v.

Gingles, Campos v. City of Baytown, 840 F.2d 1240 (5th

Cir. 1988), and Citizens for a Better Gretna v. City of

Gretna, 834 F.2d 496 (5th Cir. 1987), hold that if the

district court finds that a minority group votes as a bloc

for minority candidates, political cohesion within the

minority group is proven even if the district court finds

significant and consistent cross over voting by the black

electorate. We disagree.

Thornburg does recognize that establishing "that a

significant number of minority group members usually

vote for the same candidates is one way of proving

political cohesiveness...” 106 S. Ct. 2769-70 (emphasis

added). Statistical proof of political cohesion is likely to

be the most persuasive form of evidence, although other

evidence may also establish this phenomenon. Brewer,

876 F.2d 448, 453 (lay testimony from members of the

community on political cohesion might be sufficient).

Nevertheless, courts must careful examine statistical

evidence of racial bloc voting to determine its relevance

and probativeness to a finding of political cohesiveness.

Accord Overton v. City of Austin, 871 F.2d 529.

1. The remainder of the cpinion is unchanged.

A-3

Political cohesion is required under Thornburg for a

fundamental reason. As the Court said, "if the minority

group is not politically cohesive, it cannot be said that

the selection of a multimember electoral structure

thwarts distinctive minority interests." Thornburg 106

S.Ct. at 2767.

We turn, then to the district court's finding that

Woodville's blacks are not politically cohesive. The ambit

of appellate review of this fact is limited. A finding is

clearly erroneous when "although there is evidence to

support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake

has been committed.” Anderson v. City of Bessemer City,

470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518

(1985) (quoting United States v. United States Gypsum

CO., 333 U. S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746

(1948).

If the district court's account of the evidence is

plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently....This is

so even when the district court's findings do not rest

on credibility determinations, but are based instead on

physical or documentary evidence or inferences from

other facts. Anderson, 470 U.S. 564, 573-74, 105 S.Ct.

1504, 1511.

(2) [4] In this case both parties can point to evidence

in the record to support their positions. The 1983

elections show a strong degree of racial bloc voting by

black residents, which could indicate political cohesion.

On the other hand, the more recent results from the

1987 county elections indicate a significant degree of

crossover voting for white candidates by black

citizens.!9 Crossover voting by a minority group does

not preclude a finding of political cohesiveness per se,

but its presence is relevant. The 1987 data, therefore,

weigh against finding political cohesiveness. Dr. Love

opined that Woodville's black residents were politically

cohesive; Dr. Van Gelder, appellees’ expert, disagreed.

Testimony from black residents of Woodville also differed

A-4

on this point. 11 Therefore, from the record before us, we

cannot say that the district court clearly erred in its

finding.

B. Legally Significant White Bloc Voting

The district court found that both white and black

residents in Woodville engage in some amount of racial

bloc voting.

765

10. Mississippi's anti-single-shot provision did

not apply to county elections.

11. Two black witnesses testified that, in their

view, the black residents of Woodville are not

politically cohesive. By contrast, a number of blacks

have held public office in Wilkinson County in

recent years.

In all other respects, the petition for rehearing is

DENIED, and no member of this panel nor Judge in

regular active service on the Court having requested

that the Court be polled on rehearing en banc (Federal

Rules of Appellate Procedure and Local Rule 35) the

Suggestion for Rehearing En Banc is DENIED.

1327

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 881 F.2d 1327 (5th Cir. 1989)

John MONROE , et al.,

Plaintiffs-Appellants,

v.

CITY OF WOODVILLE, MISSISSIPPI,

et al., Defendants-Appellees.

No. 88-4433

United States Court of Appeals,

Fifth Circuit

Aug. 30, 1989

A-5

Black voters brought action challenging at large

aldermanic election system in city alleging that city

diluted voting strength of blacks. The United States

District Court for the Southern District of Mississippi,

636 F. Supp. 423, dismissed action, and voters appealed.

The Court of Appeals, 819 F.2d 507, reversed and

remanded. On remand, the District Court, William

Henry Barbour, Jr., J., 688 F. Supp. 255, entered

judgment for city, and appeal was taken. The Court of

Appeals, Edith H. Jones, Circuit Judge, held that: (1)

District Court's finding that black voters were not

politically cohesive was not clearly erroneous, and (2)

given individual findings that black residents

constituted majority of city's voting age population, that

blacks crossed over to vote for white candidates to large

degree, that blacks served in many public offices in

surrounding county, and that black community was very

politically active, district court's finding that under

totality of circumstances, city's multimember districting

scheme did not run afoul of antidilution provision of

Voting Rights Act was not clearly erroneous.

Affirmed.

1. Elections — 12(3)

Plaintiffs bringing vote dilution action under Voting

Rights Act must establish that minority group is

sufficiently large and geographically compact to

constitute majority in single member district, that

minority group is politica'ly cohesive, and that white

majority votes sufficiently as bloc to enable it — in

absence of special circumstances, such as minority

candidate running unopposed — usually to defeat

minority's preferred candidate. Voting Rights Act of

1965, § 2, as amended, 42 U.S.C.A. § 1973.

2. Elections — 12(3)

Unless threshold showing of vote dilution in

violation of Voting Rights Act has been established, court

must determine under totality of circumstances whether

Act has been violated. Voting Rights Act of 1965 § 2, as

amended, 42 U.S.C.A. § 1973.

A-6

3. Elections — 12(3)

Proof that minority group votes as bloc for minority

candidates does not establish "political cohesiveness"

required for

, 1328

881 FEDERAL REPORTER, 2d SERIES

threshold showing of vote dilution in violation of Voting

Rights Act. Voting Rights Act of 1965, § 2, as amended,

42 U.S.C.A. § 1973.

4. Municipal Corporations — 80

District court's finding that city's blacks were not

politically cohesive as required to make threshold

showing of vote dilution in violation of Voting Rights Act

was not clearly erroneous; results from county elections

indicated significant degree of crossover voting for white

candidates by black citizens, and inability of city's black

residents, who comprised over 60% of city's voting age

populations, to put significant numbers of allegedly

black preferred candidates in local offices provided

further evidence of lack of political cohesion. Voting

Rights Act of 1965, § 2, as amended, 42 U.S.C.A. § 1973.

5. Municipal Corporations — 80

Given individual findings that black residents

constituted majority of city's voting age populations, that

blacks crossed over to vote for white candidates to a

large degree, that blacks served in many public offices in

surrounding county, and that black community was very

politically active, district court's finding that under

totality of circumstances, city's multimember districting

scheme did not run afoul of antidilution provision of

Voting Rights Act was not clearly erroneous. Voting

Rights Act of 1965, § 2, as amended, 42 U.S.C.A. § 1973.

Willie L. Rose, Southwest Miss. Legal Services,

McComb, Miss., Carroll Rhodes, Hazlehurst, Miss.,

Deborah A. McDonald, Natchez, Miss. for plaintiffs-

appellants.

Robert B. McDuff, Frank B. Parker, Lawyers

Committee for Civ. Rights Under Law, Washington, D.

A-7

C., for amicus curiae.

Dennis L. Horn, Jackson, Miss. Richard T. Watson,

Woodville, Miss., for defendants-appellees.

Appeal from the United States District Court for

the Southern District of Mississippi.

Before GEE, GARZA, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants, black residents of Woodville,

Mississippi, brought this action in 1985 against the City

of Woodville alleging that the city's aldermanic election

system diluted the voting strength of Woodville's black

residents in violation of Section 2 et seq. of the Voting

Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq.

(1982). Appellants would have the court superintend the

division of Woodville's single electoral district into four

single-member districts. The district court originally

granted summary judgment to appellees. Monroe v. City

of Woodville, Mississippi, 636 F. Supp. 423 (S.D. Miss.

1986) We reversed and remanded for a trial on the

merits. Monroe v. City of Woodville, Mississippi, 819 F.

2d 507 (5th Cir. 1987). After trial, the district court

concluded that Woodville's at-large election system did

not violate Section 2. Having considered appellants’

broad attacks on this result, we nevertheless affirm the

judgment on somewhat different reasoning than the

district court employed.

I

Woodville, Mississippi, is exactly one mile square

and claims 1,512 inhabitants. Black residents in

Woodville account for 64.3% of the total population and

60.5% of the voting age population. According to the

district court, Woodville is highly socially segregated and

lies in one of the most rural, impoverished and

economically depressed areas of Mississippi.

Woodville's mayor and four aldermen are elected in

at-large contests. When this suit was filed, Mississippi

A-8

prohibited “bullet,” or "single-shot," voting in municipal

elections.! Further, until 1987, Woodville's

1329

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 881 F.2d 1327 (5th Cir. 1989)

residents were required to register both with the city

and county in order to vote in their respective elections.

The town has never included more than one voting

precinct.

Although blacks constitute 60.5% of Woodville's

voting age population and at least two black candidates

have run for aldermanic seats in each city election since

1965, when this case was filed in 1985, only one black

candidate had been elected to that post.2 During the

same twenty year period, four black candidates have

unsuccessfully run for mayor, and three blacks failed in

bids for election as the town marshall, another at-large

post. None of the seven black residents who have run for

a position on Woodville's democratic executive committee

since 1965 has been successful.

II

Congress, in amending Section 2, affirmed its

commitment to an "effects" test of voting rights

discrimination based on the "totality of the

circumstances." See S.Rep. No. 417, 97th Cong., 2d Sess.,

reprinted in 1982 U.S.Code Cong. and Admin. News 177

at 192-93; Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.

1 Mississippi has recently enacted comprehensive changes to its

election laws. The Mississippi legislature repealed its “anti-single-

shot” statutory requirement for municipal elections effective January

1, 1987. Miss. Code Ann. § 21-11-15 (Supp. 1987). Single-shot or

bullet voting, therefore, is now permitted under Woodville's electoral

system. In addition, Mississippi's legislature abolished dual county-

city registration as of January 1, 1987, but county-only registration

prior to that date do not substitute for city registration. See Miss.

Code Ann. § 21-11-3 (Supp. 1987) & §§ 23-5-303(3), 23-15-39 (Sup.

1988)

2. Charles James was elected as an alderman in 1981 and

reelected in 1985. We note in passing that two additional black

candidates were elected as aldermen in 1989. The district court did

not have the results of this election before it; accordingly, these

results play no part in our review of the court's conclusions.

A-9

Ct. 2752, 2758, 92 L.Ed.2d 25, 37 (1986); Brewer uv.

Ham, 876 F.2d 448, 450 (5th Cir. 1989). At the same

time, however, Section 2 explicitly disallowed resort to a

rule of proportional representatior by race or ethnicity. |

Our judicial resources strain to walk the statutory

tightrope in this case, because Woodville's black

plaintiffs contend that they were denied effective

political representation notwithstanding their decisive

numerical voting majority. Confronted by a similar

paradox, a previous panel of our court asked whether

supposing that the proposed new system still fails

to produce a black winner, we will then be asked to

continue down the slippery slope, mandating new

designs which segregate blacks into greater and

greater concentrations until at last a black is

elected? Somewhere along this downward course,

the goal of an open and pluralistic political process,

where groups bargain among themselves, is

transformed into one of proportional representation

by persons beholden for office to discete ethnic

groups.

Houston v. Haley, 859 F.2d 341, 342-43 (5th Cir. 1988),

vacated, 869 F.2d 807 (5th Cir. 1989).

Nevertheless, when this case appeared before us

after summary judgment, we rejected the city's claim

that even if a violation of the Voting Rights Act had

occurred, Section 2 offers no possible remedy because of

the blacks’ significant majority at the poll. The case

accordingly went to trial, and we review it now on a full

record.

Congress instructed courts adjudicating Section 2

claims to conduct a "searching and practical evaluation”

of "past and present reality" to determine whether

participation in the political process is "equally open" to

all persons. See Thornburg, 106 S.Ct. at 2763-64

(quoting from S. Rep. No. 417, supra). As guidance for

this broad inquiry, Congress directed attention back to

our Circuit's opinion in Zimmer v. McKeithen, 485 F. 2d

1297 (5th Cir. 1973) (en banc), aff'd sub nom. East

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

96 S. Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam),

A-10

which identified a number of factors generally relevant

to a fact-bound, intensely local appraisal of the

challenged electoral system. Congress did not intend

these factors to be exclusive. Thornburg, 106 S. Ct. at

2764.

[1,2] The Supreme Court, in Thornburg v. Gingles,

acknowledged the totality of the circumstances approach

and introduced an additional, threshold analysis to be

used in challenges to at-large election systems. 3 As the

Court stated, unless the

1330

881 FEDERAL REPORTER, 2d SERIES

threshold factors are established by the Section 2

plaintiff, "the use of multimember districts generally will

not impede the ability of minority voters to elect

representatives of their choice." 106 S.Ct. at 2766.

Satisfying the threshold test, therefore does not prove a

plaintiffs Section 2 claim; the district court must then

3. The Thornburg threshold analysis requires the plaintiffs to

establish the following three circumstances;

(1) that the minority group is sufficiently large and

geographically compact to constitute a majority in a single

member district;

(2) that the minority group is politically cohesive; and

(3) that the white majority votes sufficiently as a bloc to enable

it — in the absense of special circumstances, such as the minority

candidate running unopposed — usually to defeat the minority's

preferred candidste.

See Thornburg, 478 U.S. at 50-52, 106 S.Ct. at 2766-67.

4. The district court here stated:

The United States Supreme Court through Thornburg has

substantially altered the law applicable to the Voting Rights Act.

The Supreme Court reduced the usefulness and materiality of the

Zimmer factors on the issue of whether there is a violation of

Section 2 of the Voting Rights Act. This Court questions the

purpose of the Zimmer factors after Thornburg now that the focus

of a Section 2 claim is on the Thornburg tripartite test of the

geographic compactness and insular existence of the minority,

majority bloc voting, and political cohesiveness of the minority.

688 F.Supp. at 261. This discussion misconstrues the legal effect of

on Section 2. The Thornburg threshold analysis does not

replace the totality of the circumstances inquiry, the ultimate

determination to be made under Section 2.

A-11

proceed to the totality of the circumstances inquiry.4

Cf. Overton v. City of Austion, 871 F.2d 529 (5th Cir.

1989) (plaintiff may lose at the threshold step

pretermitting need to conduct totality of circumstances

test). In this case, the district court made findings both

on the threshold factors and on the totality of the

circumstances inquiry.

We conclude that the district court was not clearly

erroneous in its determination that Woodville's electoral

structure does not violate Section 2. In so doing,

however, we must clarify the district court's analysis of

the Thornburg threshold factors, which is vigorously

attacked by appellants We affirm the district court's

findings on the totality of circumstances test for a

Section 2 violation.

III. FINDINGS UNDER THE

THRESHOLD ANALYSIS

Appellants contend that the trial court's Thornburg

analysis erred in its findings on the lack of political

cohesion among the black voters and the legal

significance of the white bloc vote. The first Thornburg

factor, that the "minority" is sufficiently large and

geographically compact to form a majority in a single-

member district, concededly exists here. We review the

district court's findings on the other two Thornburg

factors by the standard of clear error. Overton, 871 F.2d

at 533.

At the outset, we note that the district judge

discounted the statistical evidence presented by the

appellants as severely flawed.° The weaknesses he

observed are particuiarly damaging to the appellants’

case because this information constituted the bulk of

their evidence on the issues of black political

cohesiveness and white bloc voting. Dr. Love, appellants’

statistical expert, faced difficulties in producing useful

data for the court. Since Woodville uses only one precinct

5. The district court's opinion sets forth its criticisms of Dr.

Love's data. Monroe v. City of Woodville, Miss., 683 F.Supp. 255 (S.D.

Miss. 1988)

A-12

in its elections, statistical methods such as ecological

regression and “overlapping percentages," which require

multiple precincts, cannot be used. Therefore Dr. Love

examined 1983 and 1987 elections in Wilkinson County,

which includes Woodville. We hae previously cautioned

district courts to undertake "fact-specific assessments" of

the relevance and probative value of exogenous election

results. Westwego Citizens for Better Govern. v.

Westwego, 872 F.2d 1201, 1208 n. 8 (5th Cir. 1989). Dr.

Love's analysis of the 1987 county elections was further

hampered by results that were not statistically

significant because of large amounts of crossover voting.

Additionally, as the district court noted, appellees’ expert

identified specific

1331

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 881 F.2d 1327 (5th Cir. 1989)

flaws in Dr. Love's analysis: failure to provide a test of

statistical significance;® failure to analyze certain

relevant election contests; and mixing of data from

primary and general elections.

A. Political Cohesion

[3] Based on the evidence before it, the district court

concluded that the appellants did notrove political

cohesion among the black voters in Woodville. That the

appellants had the burden of proof on this issue is not

disputed. See Overton, 871 F.2d 529, 543 (Jones, J.,

concurring). Appellants assert that this finding embodies

an error of law as well as fact. They note that the district

court accepted the parties’ stipulation that both whites

and blacks in Woodville vote along racial lines. According

to appellants, Thornburg v. Gingles, Campos v. City of

Raytown, 840 F.2d 1240 (5th Cir. 1988), and Citizens for

a Better Gretna v. city of Gretna, . 834 F.2d 496 (5th Cir.

1987), hold that if the district court finds that a minority

group votes as a bloc for minority candidates, political

cohesion within the minority group is proven. We

6. See Overton v. City of Austin, 871 F.2d 529, 544-45 (5th Cir.

1989) (Jones J., concurring) (statistical data presented to courts in

Section 2 cases should include the results of tests for statistical

significance).

A-13

disagree.

Thornburg does recognize that establishing “that a

significant number of minority group members usually

vote for the same candidates is one way of proving

political cohesiveness...." 106 S.Ct. 2769-70 (emphasis

added). Statistical proof of political cohesion is likely to

be the most persuasive form of evidence, although other

evidence may also establish this phenomenon. Brewer,

876 F.2d 448, 453 (lay testimony from members of the

community on political cohesion might be sufficient).

Nevertheless, courts must carefully examine statistical

evidence of racial bloc voting to determine its relevance

and probativeness to a finding of political cohesiveness.

Accord Overton v. City of Austin, 871 F.2d 529.

Appellants err by implying that a finding of racial

polarization in voting behavior is synonymous with a

group's political cohesion. The terms are quite distinct.

That a group's voting behavior is racially polarized

indicates that the group prefers candidates of a

particular race. Political cohesion, on the other hand,

implies that the group generally unites behind a single

political "platform" of common goals and common means

by which to achieve them.’ For example, the black

population of a district may vote in a racially polarized

manner so as to overwhelmingly favor black candidates,

but the group may lack political cohesion if it splits its

vote among several different black candidates for the

same office. Where the black voters overwhelmingly

favor a particular black candidate to the exclusion of

others, data on racial bloc voting will be more probative

to determining political cohesiveness.8

7. “Political cohesion" may well embody different meanings at

the local }evel as compared to the state or national level. For instance,

three candidates for mayor, although members of the same party,

may campaign on separate, indeed conflicting, view of the issues. It is

too facile to conclude that because these candidates and their party

members may support common candidates in races in a different

subdivision, e. g., county. Congressional or presidential, they are

necessarily politically cohesive in a purely local election.

8. Where only one black candidate is running for an office at the

local level, political cohesion may be indistinguishable from racial

bloc voting, and the latter may provide evidence of the former. The

weight of such evidence is a determination left to the district court.

A-14

Political cohesion is required under Thornburg for

a fundamental reason. As the Court said, "if the

minority group is not politically cohesive, it cannot be

said that the selection of a multimember electoral

structure thwarts distinctive minority interests."

Thornburg 106 S.Ct. at 2767. Put otherwise, if the

members of the minority community do not agree among

themselves on basic political issues in their subdivision,

their interests asa minority are not subverted by an at-

large electoral system.

We turn, then, to the district court's finding that

Woodville's blacks are not politically cohesive. The ambit

of appellate review of this fact is limited. A finding is

clearly :

1332

881 FEDERAL REPORTER, 2d SERIES

erroneous when “although there is evidence to support

it, the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed." Anderson v. City of Blessemer City, 470 U.S.

564, 573, 105 S. Ct. 1504, 1511, 84 L.Ed. 2d 518 (1985)

(quoting United States v. United States Gypsum, Co., 333

U. S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948)).

If the district court's account of the evidence is

plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of

fact, it would have weighed the evidence

differently... This is so even when the district court's

findings do not rest on credibility determinations,

but are based instead on physical or documr -tary

evidence or inferences from other facts.

Anderson, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511.

[4] In this case both parties can point to evidence in

the record to support their positions. The 1983 elections

show a strong degree of racial bloc voting by black

residents, which could indicate political cohesion. On the

other hand, the more recent results from the 1987

county elections indicate a significant degree of crossover

A-15

voting for white candidates by black citizens.9 Crossover

voting by a minority group does not preclude a finding of

political cohesiveness per se, but its presence is relevant.

The 1987 data, therefore, weigh against finding political

cohesiveness. Dr. Love opined that Woodville's black

residents were politically cohesive; Dr. Van Gelder,

appellees’ expert, disagreed. Testimony from biack

residents of Woodville also differed on this point.!9

Finally, we note that the inability of Woodville's black

residents, who comprise over sixty percent of the city's

voting age population, to put significant numbers of

allegedly black preferred candidates in local office may

further signal a lack of political cohesion.!! Therefore,

from the record before us, we cannot say that the district

court clearly erred in its finding.

B. Legally Significant White Bloc Voting

The district court found that both white and black

residents in Woodville engage in racial bloc voting. The

determinative question for a Section 2 claim, however, is

not whether whites generally vote as a bloc, but rather,

whether such bloc voting is legally significant. In this

case, the district court found that the white bloc vote was

not legally significant.

Thornburg instructs that "Because... the extent of

bloc voting necessary to demonstrate that a minority's

ability to elect its preferred representatives is impaired

varies according to several factual circumstances, the

degree of bloc voting which constitutes the threshold of

legal significance will vary from district to district."

Thornburg, 106 S. Ct. at 2769. The Court then identified

some factors to consider in conducting this evaluation.

Among those are the nature of the allegedly dilutive

electoral mechanism, the percentage of registered voters

in the district who are members of the minority group,

9. Mississippi's anti-single-shot provision did not apply to

county elections.

10. Two black witnesses testified that, in their view, the black

residents of Woodville are not politically cohesive.

ll. By contrast, a number of blacks have held public office in

Wilkinson County in recent years.

A-16

and the size of the district. 106 S.Ct. at 2770. Based on

such facts, Thornburg holds that white bloc voting will

be legally significant where "the white majority votes

sufficiently as a bloc to enable it — in the absence of

special circumstances ... usually to defeat the minority's

preferred candidate.” Thornburg, 106 S.Ct. at 2767.

The district court evidently found it difficult, as do

we, to analyze "legally significant” white bloc voting in a

jurisdiction where blacks are the numerical majority.

The court held:

In the present case, the evidence shows that Blacks

constitute the majority of the over-all population, of

the vot-

1333

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 881 F.2d 1327 (5th Cir. 1989)

ing age population, and of the number of registered

voters; the evidence does not support the Plainfifffs'

arguments that the white bloc vote usually defeats

the minority's preferred candidates. There is no

"submergence of the minority” since minority

citizens (Blacks) are actually in the majority in the

City of Woodville. White candidates win not because

of the white bloc vote, but because of the crossover

vote. The Plaintiffs may have established a "white

bloc vote", but they have not proved legally

significant racial bloc voting for purposes of a

Section 2 claim. If white bloc voting to a legally

significantly degree is not proven, minority voters

have not established that the challenged electoral

structure interferes with their ability to elect their

preferred candidates.

Appellants assert that white bloc voting, rather than

black crossovers, is responsible for the historical defeat

of Woodville's black candidates. Consequently, they

interpret the district court's opinion as essentially

precluding Section 2 claims whenever a minority group

constitutes a majority of the population. If the district

court's opinion so held, it would be wrong.

Unimpeachable authority from our circuit has rejected

any per se rule that a racial minority that is a majority

A-17

i

in a political subdivision cannot experience vote dilution.

Zimmer v. McKeithen, 485 F.2d at 1303. Zimmer relied

upon the Supreme Court's decision in White v. Regester,

412 U.S. 755, 93 S. Ct. 2332, 37, L. Ed. 2d 314 (1973),

which affirmed a finding of racial vote dilution in Bexar

County, Texas, even though Mexican-American plaintiffs

constituted a numerical majority there. See Graves v.

Barnes, 343 F. Supp. 704, 733 (W.D. Tex. 1972) (three-

judge panel), aff'd sub nom. White v. Regester, 412 U.S.

755, 93 S. Ct. 2332 (1973). The caveat should be added

that in Zimmer, _ at least, the black majority had

recently been freed from literacy tests and impediments

to voting registration. As de jure restrictions on the

right to vote mercifully recede further into the historical

past, we should expect it to be increasingly difficult to

assemble a Zimmer-type voting rights case against an

at-large electoral district where a minority-majority

population exists. Such a case is not, however, precluded

as a matter of law.

A subtle error plagues the appellants’ disagreement

with the district court. The quoted portion of its opinion

refers not to any general principle of illegal vote dillution

but to the specific Thornburg threshold inquiry whether

the white bloc vote is legally significant, i.e. whether it

usually operates to defeat the black candidates. This

narrower issue discussed by the district court requires a

more focused attack than that levied by appellants. It

seems possible to argue both (1) that a § 2 vote dilution

violation may occur even if a minority is more populous

in a political jurisdiction and (2) that Thornburg’s

threshold criterion of legally significant white bloc voting

does not deal with such a circumstance. Thornburg

repeatedly described the submergence of black voters by

a white majority. See e.g. 106 S. Ct. at 2764, 2765,

2767. The terms "majority" and "minority", in context,

refer not only to the relative number of blacks and

whites in our general population but to their relative

representation in the electoral district being challenged.

Discussing its criterion of legally significant white bloc

voting, the court explains.

In establishing this last circumstance, the

A-18

minority group demonstrates that submergence in

a white multimember district impedes its ability to

elect its chosen representatives. 106 S. Ct. at 2767

(emphasis added).

In light of Thornburg’s emphasis when enunciating

its threshold standards, that a vote dilution Section 2

claim depends upon a black minority submerged within

a white majority, we can readily appreciate the district

court's conclusion that Woodville did not experience

"legally significant" white bloc voting in part because of

the black majority population. Whether this prong of

Thornburg was intended to address the case before us is

a matter of speculation among several possible

interpretations. The issue is, however, ultimately

irrelevant because irrespective of Thornburg’s meaning

in a case like this, Zimmer’s holding clearly was not

abandoned when Congress amended Section 2.

1334

881 FEDERAL REPORTER, 2d SERIES

Because we have already concluded that a

Thornburg vote dilution claim is foreclosed here by lack

of black-political cohesion, and we conclude in the

following discussion that a Zimmer totality of

circumstances dilution claim was not proven by

appellants, we need not opine further on this puzzling

aspect of Thornburg.

-

IV. THE TOTALITY OF THE

CIRCUMSTANCES TEST

[5] Responding to appellant's final point, we must

review whether the district court was correct in its

finding that Woodville’s multimember districting scheme

does not run afoul of the totality of the circumstances

test required by Section 2. In the court's words, the

appellants had failed to prove "that the political

processes leading to nomination or election in the City of

Woodville are not equally open to participation by black

voters or that Blacks have less opportunity than other

members of the electorate to participate in the political

process and to elect representatives of their choice." 688

A-19

F. Supp. at 264. The court's misreading of the proper

relationship between Thornburg and Section 2

(addressed in Part II of our opinion) is not fatal to its

fact finding, because the court proceeded to address each

of the Zimmer factors! and made specific findings as

to each. The district court then combined its analysis of

the Zimmer factors and the three Thornburg factors to

reach its ultimate finding under the "totality" test.

Once again, our review is limited to a determination

of whether the district court's findings were clearly

erroneous. The district court found that before 1965

discrimination prevented black citizens of Woodville

from fully participating in the electoral process; that

voting had been polarized along racial lines; that socio-

economic disparities existed between Woodville's black

and white residents; that few blacks had been elected in

the City of Woodville; and that the black population in

Woodville was sufficiently large and geographically

compact to allow the creation of single-member district

with majority black voting age populations. The court

balanced these findings against its other findings,

namely: that there was no candidate slating process in

Woodville; that overt or subtle racial appeals were

absent in political campaigns within the City; that

Woodville's elected officials had adequately responded to

the needs of the black residents, that Woodville's small

size resulted in a multimember district which was not

unusually large so as to hinder the opportunity of blacks

to elect representatives of their choice; that the anti-

single-shot provision had been repealed; that black

residents constituted a majority of Woodville's voting age

population; that blacks crossed over to vote for white

candidates to a large degree; that blacks served in many

public offices in the surrounding Wilkinson County; and

that the plaintiffs had failed to prove political cohesion

12.The district court also examined the responsiveness of

Woodville's elected officials to “the particularized needs of the

minority group.” This additional evaluation was specifically approved

by Congress. See S. Rep. No. 417, supra at 207. For purposes of Part

IV, our references to the Zimmer factors include the responsiveness

criterion. As we noted in Part II, district courts have a wide latitude

in the kinds of indicia to examine in a Section 2 claim.

A-20

among black residents or legally significant white bloc

voting. The court also noted that Woodville's black

community is very active politically.13 The role of the

district court is to make a "searching and practical

evaluation" of the election system being challenged.

Because its comprehensive individual findings find

support in the record, we cannot say that its ultimate

finding under the totality of the circumstances test is

clearly erroneous.

Thornburg’s endorsement of a "functional view" of

the political structure of the jurisdiction involved is

particularly relevant to this case. Based solely on the

observation that black candidates have been largely

unsuccessful in past Woodville elections despite their

constituting a voting age majority of the community, our

prior panel was initially inclined to suspect that the

town's electoral structure might violate Section 2. But

reliance on a merely visceral response is inadequate and

inappropriate in today's Voting Rights Act cases. Exam-

1335

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 881 F.2d 1327 (5th Cir. 1989)

ination of the trial record increases our confidence in the

district court's decision.

Since "the theoretical basis for this type of

impairment is that where minority and majority voters

consistently prefer different candidates, the majority, by

virtue of its numerical superiority, will regularly defeat

the choices of minority voters,"!4 appellants, in

challenging Woodville's electoral system, are at a distinct

disadvantage. "Minority voters who contend that the

multimember form of districting violates § 2, must prove

that the use of a multimember electoral structure

operates to minimize or cancel out their ability to elect

their preferred candidates." Thornburg, 106 S. CT. at

2765. If there truly is a black preferred candidate, or set

of candidates, the roughly twenty percent margin of

13.For example, in the May 1985 democratic primary, 86% of

the registered voters voted.

4. Thornburg, 106 S. Ct. at 2765.

A-21

en mera ett

Mise ne

numerical superiority in voting age population should

provide the black residents with a sufficient opportunity

for success at the polls. At least this court, along with

our sister circuits, has so held in fashioning legal

remedies.15 Thus, there is now no discernible structural

impediment to black success at the polls.

V.

The appellants raise two additional points of error

in the district court's decison. First, appellants argue

that the court's alternatively holding is barred by the

law of the case. The district court held atlernatively that

even if Woodville's electoral structure violated Section 2,

no remedy would be proper or necessavy because its

black residents are the decisive voting-age majority. This

statement comes close to flouting the contrary decision of

our court in reversing the previous summary judgment

awarded to Woodville. We need not address the law of

the case doctrine, however, in view of our affirmance of

the judgment on the merits of the case.

Second, appellants argue that the district court, on

several occasions, ignored substantial evidence contrary

to its decision. See Velasquez v. City of Abilene, Texas,

725 F.2d 1017, 1020 (5th Cir. 1984) Specifically,

appellants claim that the district court ignored evidence

that city officials do not repair streets in black

neighborhoods as compared to white neighborhoods and

that officials at City Hall are not as responsive to the

needs of blacks as to those of white. Having carefully

15. See, e.g. Jordan v. Winter, 604 F. Supp. 807, 814-15 (N. D.

Miss.) (three-judge panel) (52.8% black voting-age population

sufficient to overcome past discrimination and provide equal

opportunity for minority candidates to participate in elections), aff'd

sub. nom, Mississippi Republican Executive Comm. v. Brooks, 469 U.

S. 1002, 105 S. Ct. 416, 83 L. Ed. 2d 343 (1984); Ketchum v. Byrne,

740 F. 2d 1398, 1413-15 (7th Cir. 1984) (endorsing a 60% voting age

population figure for minorities as a target remedy to ensure

minorities a fair opportunity to elect a candidate of their choice),

cert. denied sub. nom. City Council of the City of Chicago v. Ketchum,

471 U.S. 1135, 105 S. Ct. 2673, 86 L. Ed. 2d 692 (1985).

A-22

reviewed the record, we agree with the implicit finding

of the district court that there was no substantial

evidence of these charges at trial. The appellants also

claim that the d’strict court overlooked the minimal

success of black candidates for public offices in

Woodville. On the contrary, the district court noted in its

opinion that only one black aldermanic candidate had

been successful up to 1985. Having conducted its

balancing test mindful of Woodville’s unimpressive

showing of black candidate success, the district court

should not be required to elaborate further on this point.

For the foregoing reasons, the decision of the

district court is AFFIRMED.

A-23

255

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 688 F. Supp. (s. D. Miss. 2988)

John MONROE, et al, Plaintiffs,

v.

CITY OF WOODVILLE,

MISSISSIPPI, Defendant.

Civ. A. No. W85-0088(B).

United States District Court,

S. D. Mississippi, W. D.

June 15, 1988

Black voters brought action challenging at-large

aldermanic election system in city alleging that system

diluted voting strength of blacks. The United States

District Court for the Southern District of Mississippi,

636 F. Supp. 423, dismissed action, and voters appealed.

The Court of Appeals, 819 F.2d 507, reversed and

remanded. The District Court, Barbour, J., held that at-

large system of electing aldermen in city did not dilute

voting strength of blacks in violation of Voting Rights

Act. ;

Judgment in favor of city.

1. Elections — 12(3)

To establish claim of vote dilution, minority group

must be able to demonstrate that it is sufficiently large

and geographically compact to constitute a majority in

single-member district, minority must be able to show

that is it politically cohesive, and minority must be able

to demonstrate that the white majority vote sufficiently

as a bloc to enable majority usually to defeat minority's

preferred candidate. Voting Rights Act of 1965, § 2, as

amended, 42 U.S.Ca. § 1973.

2. Election — 12(3)

Number of elections that must be studied to

determine whether voting is polarized and whether

there is violation of Voting Rights Act will vary according

to pertinent circumstances. Voting Rights Act of 1965, §

2, as amended, 42 U.S.C.A. § 1973.

3. Elections — 12(3)

If white bloc voting to a legally significant degree is

not proven, minority voters have not established that

challenged electoral structure interferes with minority's

ability to elect their preferred candidates and have failed

to establish Voting Rights Act violation. Voting Rights

Act of 1965, § 2, as amended, 42 U.S.C.A. § 1973.

4. Municipal Corporations — 80

At-large system of electing aldermen in Mississippi

city did not impede blacks in their opportunity and

ability to participate in political process and to elect

representative of their choice and did not constitute vote

dilution under the Voting Rights Act; blacks constituted

majority of overall population, of voting age population,

and of number of registered voters, evidence did not

support blacks' arguments that white bloc vote usually

defeated minority's preferred candidate, and black voters

were not politically cohesive. Voting Rights Act of 1965, §

2, as amended, 42 U.S.C.A. § 1973.

Willie L. Rose and Deborah McDonald, Southwest

MS Legal Services, McComb, Miss., for plaintiffs.

Richard T. Watson, Woodville, Miss., Dennis L.

Horn, Jackson, Miss. for defendant.

OPINION

BARBOUR, District Judge.

Introduction

This unusual vote dilution case is broucht under

Section 2 et seq. of the Voting Rights Act of 1965 as

amended, 42 U.S.C. § 1973 et seq., the Thirteenth,

Fourteenth and Fifteenth Amendments to the United

B-2

States Constitution, and 42 U.S.C. §§ 1981, 1983 and

1985. The Plaintiffs are black registered voters of the

City of Woodville, Mississippi. Plaintiffs allege that the

city's at-large electoral system whereby all of the

aldermen are elected at large dilutes black voting

strength. They seek to have the city divided into four

single-member electoral districts so that each of the four

aldermen is elected from a separate ward. This Court

earlier granted summary judgment to the Defendant on

the basis that the black voting age population of 60.5%

constituted an effective ma-

256

688 FEDERAL SUPPLEMENT

jority for which no remedy existed. Monroe v. City of

Woodville, Mississippi, 636 F. Supp. 423 (S.D. Miss.

1986). The Court of Appeals reversed and remanded for

trial. Monroe v. City of Woodville, Mississippi, 819 F.2d

507 (5th Cir. 1987). This Court having now conducted a

trial of the matter and having considered the evidence

and arguments of counsel, renders these findings of fact

and conclusions of law.

Findings of Fact

Woodville, Mississippi, is a town of 1512 persons in

Wilkinson County, Mississippi. Wilkinson County is in

the extreme southwest corner of the State of Mississippi,

the western boundary of which is the Mississippi River.

Wilkinson County has a population of 10,021 of which

66.9% is Black. The population of Woodville is 64.3%

Black. Of the voting age population of Woodville, 60.5%

is Black.

Woodville is one mile square in size. Although

Woodville is very small in size geographically and there

are some racially mixed neighborhoods, Blacks are

concentrated in two neig..borhoods in the northwestern

part of town and in one neighborhood in the south

central portion of town.

Wilkinson County and Woodville lie in one of the

most rural, impoverished and economically depressed

areas of the State of Mississippi. The economy of the

area is based primarily on the timber industry. The

predominant employer in Woodville is a sawmill which

B-3

employs 40 to 50 black laborers and a few \Vhites in

management. Thirty nine and seven-tenths percent of

the black families and 10% of the white families in

Wilkinson County, Mississippi, have incomes below the

poverty level. Sixty percent of the working age Whites

and 45% of the working age Blacks in Wilkinson County

are in the labor force. In 1986 the unemployment rate

was 8% for Whites and 24.8% for Blacks. Plaintiffs made

much of the few managerial positions held by Blacks.

Twenty-four percent of the Whites and 5% of the Blacks

in Wilkinson County are employed in managerial and

specialty occupations. Because of the depressed economy

of the area, there are very few managerial positions

available for either Blacks or Whites. Most of the white

managerial positions are sole proprietorships or small

family businesses. In Wilkinson County there are 3.44

persons living in each unit of black housing and 2.6

persons living in each unit of white housing. Although

most businesses are owned by Whites, Blacks are

employed in jobs such as grocery store cashiers and bank

tellers.

The black population percentages in the City of

Woodville for the past four censuses have been as

follows: 1950 census, 51.0%; 1960 census, 59.0%; 1970

census, 64.0%; 1980 census, 64.3%.

Woodville has a mayor-alderman form of

government under which the mayor and all four

aldermen are elected at large. There are no designated

posts. There is a majority vote requirement for being

elected to the board of aldermen in Woodville. Since 1969

there has been no Republican candidate for alderman.

Also since that date the four Democratic candidates for

alderman who received the most votes in each primarily

election also received a majority of the votes cast and

accordingly were nominated without a run-off election.

Each of those was thereafter elected during the general

election without oppasition.

The Defendants stipulated that before 1965 there

was de jure segregation which prohibited Blacks from

participating in the electoral process in Woodville and

Wilkinson County, Mississippi.

B-4

Prior to January 1, 1987, the election code for the

State of Mississippi required voting for as many

candidates as there were persons to be elected to each

office or the ballot would be rendered void. However,

effective January 1, 1987, the Mississippi legislature

repealed the "anti-single-shot" statutory requirement in

municipal elections., Miss. Code Ann. § 21-11-15 (Supp.

1987), so that now single-shot or bullet voting is

allowable in all municipal elections in Mississippi,

including Woodville elections. The Mississippi

legislature abolished dual county-city registration as of

August 3, 1984, see Miss. Code Ann. §§ 21-11-3, 23-5-

303(3) (Supp. 1987), but county-only registrations prior

to that date

257

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 688 F.Supp. 255 (S. D. Miss. 1988)

do not allow city voting without separate registration in

the city.

There is no formal or informal candidate slating

process in Woodville, Mississippi.

Although there have been black candidates for

aldermen since 1969, only one black person, Charles

James, has been elected as alderman in Woodville; he

was first elected in 1981 and reelected in 1985. Black

candidates have been more successful in Wilkinson

County elections. The black Superintendent of Education

has been elected three times and the black Chancery

Clerk has been elected twice. Currently three of the five

supervisors are black.

There is almost total social segregation of Blacks

and Whites in Woodville and Wilkinson County. The

public schools are attended only by black children; white

children attend a private academy. The city operates a

public swimming pol which is used only by Blacks.

Whites use a privately owned pool. The city operates a

public park which is used almost exclusively by Blacks.

Although the one restaurant in town is open to Blacks

and a few Blacks patronize it, that restaurant is used

primarily by Whites.

On the other hand, there has been no direct proof or

B-5

ee

even inference of any substantial racial unrest, conflict

or tension in either Woodville or Wilkinson County in

recent years. Political campaigns have not been

characterized by overt or subtle racial appeals. Although

one of the Plaintiffs testified that there was an

“unwritten rule" that Blacks shovid not go into white

neighborhoods, that testimony was noi credible in the

face of testimony by black candidates that they have

campaigned door-to-door throughout Woodville visiting

every residence, black and white, without repercussion

or even feeling uncomfortable.

The same witness for the Plaintiffs also complained

of problems in registering black citizens in Woodville,

Mississippi. He testified that when he was running for

mayor and later for alderman he too black citizens to city

hall to register and there experienced an intimidating

atmosphere. When pressed on cross-examination, the

strongest intimidation to which he could testify was a

vague reference to the clerk's "frowning" at him. In stark

contrast to this weak evidence are the facts that there is

a deputy-clerk in the registration office who is a black

person; that other Blacks who have run for office

specifically testified that they experienced no

intimidation when they took, black people to be

registered; and, that of the 826 registered voters in

Woodville, 428 are Black and 364 are White (the race of

the remaining 34 could not be determined)!. Nor was

there any evidence of intimidation at the polls. In the

May 14, 1985, democratic primary in Woodville 711

persons voted, 355 of whom have been identified as

Black and 257 of whom have been identified as White.

(The race of the remaining 99 was not identified).

There is no lack of responsiveness on the part of

elected officials in Woodville, Mississippi, to the

particularized needs of the black community. Woodville

has employed Blacks, including a Black in a managerial

1. The chief of police who identified the race of the registered

voters testified that he felt he knew all of the white voters either

personally or by family. If the 34 registered voters whose race is

undetermined are Black, 55.9% of the registered voters are Black. if

those 34 are all White, 51.8% of the registered voters are Black.

B-6

position as Superintendent of Utilities, Blacks as four of

its five police officers, and a Black as one of its two

deputy city clerks. Garbage collection, utilities and police

services are provided equally. The Plaintiffs attempted to

make a case of unequal responsiveness to the needs of

the black community but failed to present any

substantial proof. Several of the Plaintiffs’ witnesses

testified that the roads were not equal based on the fact

that the roads in Kaighler's Bottom, a black

neighborhood, were narrower than those in white areas

of town. The proof showed that the city had no control

over the width of the streets in that area because only a

very narrow street right-of-way was provided when

the houses were originally

258

688 FEDERAL SUPPLEMENT

built. There were not complaints that the streets

throughout town were maintained differently in black

and white areas an all streets within the town in both

the black and white neighborhoods are paved. Even less

persuasive testimony was presented by the Plaintiffs

regarding unequal provision of utilities to Blacks. One of

the Plaintiffs’ witnesses testified that utilities cost more

to Blacks than to Whites. The Superintendent of

Utilities, who is himself black, specifically denied this

and testified that all utility rates were exactly the same.

It appears that the Plaintiffs’ witness simply had

contested a utility bill of his own which he had thought

had been too high.

In order to meet the proof requirements of

Thornburg v Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L.

Ed.2d 25 (1986), the law of which will be discussed later,

Plaintiff called as an expert witness Dr. Ronald Love, an

assistant superintendent of schools at Tupelo,

Mississippi, who has a doctorate in applied sociology and

comparative sociology. He qualified as an expert in racial

bloc voting and statistics. Dr. Love attempted to make an

ecological correlation and a regression analysis of

elections in Woodville. The Court does not mean to

disparage Dr. Love's training or ability; however, he was

working under three adverse circumstances: First, Dr.

Love was initially presented with incomplete and

incorrect data with which to do his study. He admitted

B-7

ee

6 ROS TD ate te ——~

this on the stand and, in answer to the Defendants’

interrogatories regarding expert opinions, submitted

first one written report and then an amended one after

the first was withdrawn. Second, Woodville presents a

difficult situation under which to make a valid statistical

analysis of racial bloc voting for the unique reason that

it has only one precinct in the entire town. Third,

because Dr. Love was forced into trying to make a

statistical analysis within Woodville by analyzing

Wilkinson County election results, and because Blacks

enjoyed considerable electoral success in the most recent

county-wide elections held in 1987, he had to either

soften his conclusions as to racial bloc voting by

including an analysis of the 1987 county elections or

eliminate the 1987 results from his study. In any other

case in which the plaintiff has the burden of proof which

not must necessarily rest upon expert testimony, such as

in a medical malpractice case, and if the court were

presented with the same quality of expert proof as

presented in this case, the Court could simply say that

the plaintiff had failed to carry its burden of proof.

However, vote dilution cases are unique in that it is

universally recognized that racial bloc voting does exist

in the sense that most white voters vote for the white

candidate and most black voters vote for the black

candidate in elections in which candidates of both races

are running. Accordingly, here this Court will specifically

address the testimony of Dr. Love and his stated

opinions.

In opposition to the expert testimony offered by the

Plaintiffs the Defendant presented Dr. Craig Van Gelder.

Dr. Van Gelder did not conduct his own analysis from

original data of racial bloc voting. He limited his

testimony in regard to bloc voting to a criticism of Dr.

Love's testimony and stated that he could not have

offered a professional opinion and would not offer such

an opinion based upon the data base and methodiolgy

used by Dr. Love.

In making his regression analysis, Dr. Love used as

his independent variable the black voting age

population. Dr. Van Gelder testified and Dr. Love agreed

B-8

that this was the third best date to use for the

independent variable. The best data would have been

actual turn-out data as might have been collected by exit

polls. This data was non-existent. The next best data

would have been the percentages of black voters to white

voters among registered voters. This data could have

been obtained but was not. Dr. Van Gelder accordingly

testified that the use of the black voting age population

softened the conclusions of Dr. Love.

Based upon the weaknesses in the date and

statistical methodology evident from Dr. Love's

testimony and from the criticism of his testimony by Dr.

Van Gelder, the Court makes the following observations.

Dr. Love based his analysis only upon the 1983 county

elections involving Woodville

259

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 688 F. Supp. 255 (S. D. Miss. 1988)

precincts and did not use in his final analysis the 1987

elections which were available to him. He also mixed

primary elections with general elections without

separate analysis. The results which he reached differed

between his initial report and his final report, at least in

part because of incomplete data. These matters raise

questions as to the validity of his conclusions.

The statistical methodology used by Dr. Love was

incomplete since he did not incorporate all available

data, since he did not check original sources and

eliminate errors, and since he was unable to use an over-

lapping percentages, or homogeneous precinct, analysis

because there was only one precinct within the City of

Woodville. Dr. Love did try to use an overlapping

percentages analysis by using a county precinct which

contained a portion of the city. However, that precinct

could only be used for checking county elections and

only 10% of the population of that county precinct

resided within the City of Woodville.

Because Dr. Love was forced into analyzing county

elections, he formulated as his basic premise that the

City of Woodville and Wilkinson County share similar

demographic features and therefore the analysis of

B-9

Wilkinson County voting tendencies is applicable to the

City of Woodville itself. It is interesting to note that Dr.

Love specifically testified that Wilkinson County

provides equal access to the political process for Blacks

based upon the success of black candidates. He testified

that the only clear factors differentiating city voting

practices from county voting practices were anti-single-

shot voting provisions in the city, which have been

repealed, and the city's at-large system.

Dr. Love was cross-examined at considerable length

regarding his scattergram prepared as a part of his

regression analysis. In contrast to the scattergram and

explanation thereof continued in Campos v. City of

Baytown, Texas, 840 F.2d 1240, 1247 & n. 11, apps. A &

B (5th Cir. 1988), the sloping line of Dr. Love's

scattergram does not intersect the verticals on either

side of the scattergram but begins at the zero

coordinates. He testified that the point of reference in

his scattergam were only estimates. The Court concludes

that the scattergram and the analysis which it purposes

to make are so general as to be on no assistance to the

Court. Although the Court has criticized Dr. Love for

analyzing county races rather than city races, the Court

does note that as stated above Biack candidates have

enjoyed considerable success in obtaining election to

county offices.

Although Dr. Van Gelder did not make a full study,

he did give an opinion based on an extensive

hypothetical question to which there was no objection to

the factual basis by the Plaintiffs. His opinion was that

bloc voting by Whites usually wou not be able to defeat

Blacks in selecting candidates of their choice, that

Blacks have not been able to elect Blacks within

Woodville because they are not politically cohesive, and

that Blacks are crossing over to elect Whites in

significant numbers. There is direct evidence supporting

these opinions. The Democratic primary election results

of May 14, 1985, show that Charles James, a Black,

received 405 votes for alderman and placed third.

William A. Ward, the other Black in the race, received

only 281 votes and placed fifth out of the seven

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candidates. The fourth place candidate, Andy J. Lewis,

received 401 votes, which were considerably more votes

than that received by Ward.

There was no real contest presented by the

Defendants to the Plaintiffs proposition that Whites in

Woodville bloc vote to a significant degree for white

candidates when white candidates are opposed by black

candidates. The legal standard which the Plaintiffs had

to prove, however, was whether there is legally

significant racial bloc voting, that is a white bloc vote

that normally will defeat the combined strength of

minority support plus white crossover votes. The Court

accordingly concludes as a matter of fact that in

Woodville white voters vote for white candidates and

that black voters bloc vote for black candidates but that

black voters cross over to vote for white candidates in

significant numbers so that they are not politically

cohesive.

260

688 FEDERAL SUPPLEMENT

Plaintiffs presented no evidence in support of their

motion to proceed with this suit as a class action. The

Court's ruling on this motion had been carried with the

trial of the case.

The Court in applying the law to this case is

confronted with a somewhat unusual Voting Rights Act,

single-member district case. Woodville is a small, rural,

economically depressed town with an at-large system of

electing its aldermen. It has a past history of racial

discrimination as does every other Mississippi town or

city. It remains a place of almost total racial segregation

on a social level. On the other hand, Blacks and Whites

are operating a government which is fair and responsive

to Blacks in a community atmosphere of cooperation

between the races and devoid of intimidation.

CONCLUSIONS OF LAW

The Court concludes that the Plaintiffs failed to

make out a class action under Rule 23 of the Federal

Rules of Civil Procedure, and the Court will deny the

Motion to proceed as a class action.

The Plaintiffs have proceeded on their claims only

B-11

under Section 2 of the Voting Rights Act as amended, 42

U.S.C. § 1973. They have not advanced any other

constitutional or statutory arguments in the trial of this

matter.

Congress substantially revised Section 2 of the

Voting Rights Act in 1982 to make clear that a

violation could be proven by showing a

discriminatory result or effect alone without proof of

a discriminatory purpose. Section 2 as amended

provides:

(a) No voting qualification or prerequisite to

voting or standard, practice, or procedure shall be

imposed or applied by any State or political

subdivision in a manner which results in a denial or

abridgement of the right of any citizen of the United

States to vote on account of race or color, or in

contravention of the guarantees set forth in section

1973b(fK2) of this title, as provided in subsection (b)

of this section.

(b) A violation of subsection (a) of this section is

established if, based on the totality of

circumstances, it is shown that the political

processes leading to nomination or election in the

State or political subdivision are not equally open to

participation by members of a class of citizens

protected by subsection (a) of this section in that its

members have less opportunity than other members

of the electorate to participate in the political

process and to elect representatives of their choice.

The extent to which members of a protected class

have been elected to office in the State or political

subdivision is one circumstance which may be

considered: Provided, That nothing in this section

establishes a right to have members of a protected

class elected in numbers equal to their proportion in

the population.

42U.S.C. § 1973.

Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752,

92 L. Ed. 2d25 (1986), addressed the 1982 Amendments

to Section 2 of the Voting Rights Act of 1965, 42 U.S. C.

§ 1973. The 1982 Amendments and Thornburg focused

B-12

on a "results" test when analyzing whether challenged

election systems dilute minority voting strength. The

Supreme Court discussed certain factors or

circumstances which might be probative of a Section 2

violation which were contained in the Senate Judiciary

Committee Majority Report to the 1982 Amendments2.

261

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 688 F. Supp. 255 (S. D. Miss. 1988)

These factors have been termed the Zimmer factors

2. The court in Thornburg set forth these factors:

1. The extent of any history of official discrimination in

the state or political subdivision that touched the right of the

members of the minority group to register, to vote, or otherwise

to participate in the democratic process;

2. The extent to which voting in the elections of the state

or subdivision is racially polarized.

3. The extent to which the state or political subdivision

has use unusually large election district, majority vote

requirements, anti-single-shot provisions, or other voting

practices or procedures that may enhance the opportunity for

discrimination against the minority group;

4. If there is a candidate slating process, whether the

members of the minority group have been denied access to that

process;

5. The extent to which members of a minority group in a

state or political subdivision bear the effect of discrimination in

such areas as education, employment and health, which hinder

their ability to participate effectively in the political process;

6. Whether political campaigns have been characterized

by overt or subtle racial appeals;

7. The extent to which members of the minority group

have been elected to public office in the jurisdiction.

Thornburg, 478 U.S. at 36, 41, 106 S. Ct. at 2759, 2762, 92 L. Ed.2d

at 38, 42; S. Rep. 28-29. The Senate Report also mentioned additional

factors that in some cases would have probative value to establish a

violation. These are:

A. Whether there is a significant lack of responsiveness

on the part of elected official to the particularized needs of the

members of the minority group.

B. Whether the policy underlying the state or political

subdivision's use of such voting qualification, prerequisite to

voting, or standard, practice or procedure is tenuous.

Id., 478 U.S. 36, 106 S. Ct. at 2759, 92 L.Ed. 2d at 38; S.Rep. 28-29.

B-13

since they were refined and developed in Zimmer uv.

McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd. sub

nom East Carroll Parish School Board v. Marshall, 424

U. S. 636, 96 S. Ct, 1083, 47 L. Ed2d 296 (1976) (per

curiam). These factors were not intended to be

comprehensive or exclusive, but merely to espouse a

flexible fact-intensive test of Section 2 violations. See

Houston v. Haley, 663 F. Supp. 346, 350 (N. D. Miss.

1987).

The United States Supreme Court through

Thornburg has substantially altered the law applicable

to the Voting Rights Act. The Supreme Court reduced

the usefulness and materiality of the Zimmer factors on

the issue of whether there is a violation of Section 2 of

the Voting Rights Act. This Court questions the purpose

of the Zimmer factors after Thornburg now that the

focus of a Section 2 claim is on the Thornburg tripartite

test of the geographic compactness and insular existence

of the minority, majority bloc voting, and political

cohesiveness of the minority. [See infra Section II].

Although the Zimmer factors may evidence causes of

cohesiveness or bloc voting, this Court has observed that

these factors may be more useful in the remedy phase of

a Section 2 claim when considering whether the

guideline of 65% black population or 60% black voting

age population should be enhanced.

Although the proper emphasis is now on the

Thornburg tripartite test, courts have continued to

analyze the Zimmer factors. This Court has also

received evidence of the pertinent Zimmer factors and

will treat them as part of the "totality of the

circumstances" to be considered along with the

Thornburg tripartite test for determining whether there

is a violation of Section 2 of the Voting Rights Act.

I. ZIMMER FACTORS

In the present case the evidence established the

following facts concerning the above enumerated

B-14

Zimmer factors.

A. Historical Discrimination

The parties stipulated that before 1965 there was

de jure segregation and some discrimination which

prohibited Blacks from fully aiiinaditition in the

electoral process in Woodville.

B. Racially Polarized Voting

The Court has noted the difficulty in using the

Report and Statistical Analysis of Racial Polarization

made by the Plaintiffs' expert. The Court finds that

there is obvious polarization of voting along racial lines,

but there is much cross-over voting by Blacks for white

candidates. The voting may be characterized as

polarized, but the Court will analyze in Section II of this

Opinion whether their is legally significant racial bloc

voting such that the bloc voting majority must usually be

able to defeat candidates supported by a politically

cohesive, geographically insular, minority group.

Thornburg, 478 U. S. at 48-50, 106 S. Ct. at 2766. In the

City of Woodville, the "minority," that is, the black

voters, are actually the numerical majority. The Court

finds that black voters in the City of Woodville are not

politically cohesive and white bloc voting does not

usually defeat the minority's preferred candidate.

C. Use of Voting Practices Which May

Enhance the Opportunity for Discrimination

With a one mile square town, the Court finds that

the election district is not un-

262

688 FEDERAL SUPPLEMENT

usually large so as to hinderthe opportunity for Blacks to

elect candidates of their choice. State election laws

provide that a majority vote is required to win party

nomination. The Plaintiffs have not argued that the

majority vote provision impermissible promote

discrimination. The anti-single-shot statutory provision

previously in effect has now been repealed. See Miss.

Code Ann. § 21-11-15 (Supp. 1987).

D. Candidate Slating Process

There has been no proof of a candidate slating

B-15

process within the City of Woodville.

E. Socio-Economic Disparities

As stated in the Findings of Fact, there are socio-

economic disparities between Blacks and Whites in the

City of Woodville. These disparities are more than off-set

by the numerical advantages held by Blacks in both

population at-large and voting age population.

F. Racial Appeals During

Political Campaigns

Political campaigns within the City of Woodville are

not characterized by overt or subtle racial appeals. There

was testimony that black candidates have campaigned

door-to-door throughout Woodville visiting every

residence, back and white.

G. Extent to Which Blacks Have Been

Elected to Public Office

The evidence established that Blacks have been

elected to public offices in the City of Woodville, and they

serve in many public offices in Wilkinson County.

H. Responsiveness

The evidence established no lack of responsiveness

on the part of elected officials in Woodville to the needs

of the black citizens.

II. TRIPARTITE TEST

[1] The United States Supreme Court in Thornburg

held that although the above enumerated factors are

relevant in analyzing the "totality of the circumstances”

to a claim of vote dilution, unless there is a conjunction

of the following three circumstances the use of multi-

member or at-large districts generally will not impede

the ability of minority voters to elect representatives of

their choice. Thornburg, 478 U. S. at 47-50, 106 S. Ct. at

2665-66. This has come to be known as the Thornburg

tripartite test.

First, the minority group must be able to

demonstrate that it is sufficiently large and

geographically compact to constitute a majority in a

single-member district. If it is not, as would be the

case in a substantially, integrated district, the

multi-member form of the district cannot be

responsible for minority voters’ inability to elect its

B-16

candidates... Second, the minority group must be

able to show that it is politically cohesive. If the

minority group is not politically cohesive, it cannot

be said that the selection of a multi-member

electoral structure thwarts distinctive minority

group interests... Third, the minority must be able

to demonstrate that the white majority votes

sufficiently as a bloc to enable it — in the absence of

special circumstances, such as the minority

candidate running unopposed — usually to defeat

the minority's preferred candidate.

Thornburg, 478 U.S. at 50-51, 106 S. Ct. at 2766-67.

Under the Thornburg tripartite test, Plaintiffs

must prove they are sufficiently large and geographically

compact to constitute a majority in a single-member

district. The evidence presented in this case

demonstrates that Blacks can constitute a

geographically compact and insular group. See Exhibits

P-1, P-15.

Since the United States Supreme Court decided

Thornburg, the United States Court of Appeals for the

Fifth Circuit has addressed Section 2 of the Voting

Rights Act in two cases: Citizens for a Better Gretna v.

City of Gretna, Louisiana, 834 F. 2d 496 (5th Cir. 1987)

and Campos v. City of Baytown, Texas, 840 F.2d 1240

(5th Cir. 1988). In Gretna and Campos the Fifth

Circuit looked at the Zimmer factors as a foundation for

the analytic framework prescribed for Section 2 claims.

The opinions, however, primarily focused on the

statistical analyses involved in determining racial bloc

voting and political cohesiveness

263

MONROE v. CITY OF WOODVILLE, MISS.

Cite as 688 F. Supp. 255 (S. D. Miss. 1988)

for the tripartite test of Thornburg. As the Supreme

Court clearly stated in Thornburg, "The Purpose of

inquiring into the existence of racially polarized voting is

twofold: to ascertain whether minority group members

constitute a politically cohesive unit and to determine

whether whites vote sufficiently as a bloc usually to

defeat the minority's preferred candidates." Thornburg,

B-i7

478 U.S. at 56, 106 S. Ct. at 2769; Campos, 840 F.2d at

1244; Gretna, 834 F. 2d at 500. Statistical methods of

bivariate ecological regression analysis and extreme case

analysis were used and approved in Thornburg, but the

Fifth Circuit has noted that the Supreme Court did not

mandate any particular statistical method for evaluating

vote dilution claims. See Gretna, 834 F.2d at 500.

[2] The number of elections that must be studied in

order to determine whether voting is polarized will vary

according to pertinent circumstances. Houston, 663 F.

Supp. at 351. One important circumstance is the number

of elections in which the minority group has sponsored

candidates. Jd. In the case subjudice, election results

from Woodville municipal elections were offered for the

years 1969 through 1985. See Exhibit P-2. In each

election year a black candidate ran for office. The

Plaintiffs also offered evidence of county elections for

1983 and 1987 in which Blacks ran. Since the existence

of only one precinct within the City of Woodville

prevented any significant statistical analyses of

municipal elections, the Plaintiffs’ expert concentrated

only on the 1983 county election for his statistical

analysis because the 1987 elections involved much cross-

over voting.

In Gretna and Campos the district courts made

explicit finding on the statistical evidence presented.

This court has previously found that Dr. Love's

statistical data and methodology were impaired and Dr.

Van Gelder did not conduct an analysis of his own. It

would be pointless for this Court to set out the statistical

data and conducts its own analysis. The parties

stipulated that the white voters in Woodville to a great

degree vote for white candidates and black voters

generally vote for black candidates although their are

more crossover votes by Blacks. The Court has sufficient

general data on which to rely without the specific

findings of the statistical analyses.

Again, Thornburg defines legally significant racial

bloc voting as white majority bloc voting that defeats

3. See Campos, 840 at 1246-48 & n.9; Gretna, 834 F.2d at

501 nn. 11 & 12.

B-18

a

—

minority preferred candidates.Thornburg, 478 U. S. at

51, 106 S. Ct. at 2767; Campos, 840 F. 2d at 1248;

Gretna, 834 F.2d at 502. As explained by the United

States Supreme Court, "a white bloc vote that normally

will defeat the combined strength of minority support

plus white ‘crossover’ votes rises to the level of legally

significant white bloc voting." Thornburg, 478 U. S. 56,

106 S.Ct. at 2770. The plaintiffs’ attorney argued that

back crossover vote for white candidates should be

counted with the white bloc vote, but there is no

authority to support this proposition. The cases clearly

demand that the court consider only whether the white

bloc vote usually defeats the black vote plus white

crossover votes. See id.; Campos, 840 F.2d at 1248.

(3, 4] In the present case, the evidence shows that

Blacks constitute the majority of the over-all population,

of the voting age population, and of the number of

registered voters; the evidence does not support the

Plaintiffs’ arguments that the white bloc vote usually

defeats the minority's preferred candidates. There is no

“submergence of the minority" since minority citizens

(Blacks) are actually in the majority in the City of

Woodville. White candidates win not because of the

white bloc vote, but because of the black crossover vote.

The Plaintiffs may have established a "white bloc vote",

but they have not proved legally significant racial bloc

voting for purposes of a Section 2 claim. If white bloc

voting to a legally significantly degree is not proven,

minority voters have not established that the challenged

electoral structure interferes with their ability to elect

their preferred candidates. Houston, 663

264

688 FEDERAL SUPPLEMENT

F. Supp. at 350; see also Thornburg, 478 U.S. at 48-49

n. 15, 106 S. Ct. at 2766 n. 15.

The evidence presented also leads this Court to

conclude that black voters in the City of Woodville are

not politically cohesive. The Plaintiffs’ expert, Dr. Love,

admittedly did not focus on the most recent county

election in which Woodville citizens participated since

the data revealed that there was a large black crossover

B-19

memes - o

9 2

vote for whiie candidates. See Exhibit P-17. The parties’

experts testified that there is no set measure for

determining political cohesiveness. Given the evidence

that there has been consistent, substantial, crossover

voting by black voters for white candidates, the Court

finds that the black citizens in the City of Woodville are

not politically cohesive.

CONCLUSION

The ultimate finding of minority vote dilution is to

be based on the totality of the circumstances combining

the Zimmer factors and the Thornburg tripartite test.

Under the language of Section 2(b) and considering the

totality of the circumstances, this Court finds that

Plaintiffs have failed to prove that the political processes

leading to nomination or election in the City of Woodville

are not equally open to participation by black voters or

that Blacks have less opportunity than other members of

the electorate to participate in the political process and

to elect representatives of their choice. The Court

therefore finds that the at-large system of electing

aldermen in the City of Woodville does not impede

Blacks in their opportunity and ability to participate in

the political process and to elect representatives of their

choice. This system therefore does not violate Section 2

of the Voting Rights Act.

If this Court is in error in holding that the at-large

system of electing the board of aldermen does not violate

Section 2, it readapts its earlier ruling made on

Defendants’ Motion for Summary Judgment that no

remedy is necessary or proper. In vote dilution cases

involving single-member election districts, the Courts

have developed guidelines that minority districts should

be designed so that they have either a black population

of at least 65% or a black voting age population of at

least 60%. See Ketchum v. Byrne, 740 F.2d 1398, 1413-

16 (7th Cir. 1984). This advantage is given in order to

overcome the problems caused by the Zimmer factors so

that the Blacks of the district can elect representatives

of their choice. Adoption of a guideline necessarily

implies the possibility of departing from that guideline

B-20

under certain circumstances. Those circumstances would

include exaggeration of one or more of the Zimmer

factors. Although this Court has found the existence of

several of the Zimmer factors (which might require the

designing of single member districts with black voting

age population of at least 60% if single member districts

were required), none of the Zimmer factors found to exist

in this case is of an exaggerated nature so as to require

enhancement of the guidelines. Accordingly, even if the

court were required to design single member districts, it

would be proper to follow the guideline. Therefore, since

Blacks constitute 60.5% of the voting age population, the

entire town constitutes a district in which they can elect

candidates of their choice.

The black citizens of the City of Woodville enjoy a

substantial numerical advantage over the white citizens.

If they were politically cohesive and so desired, they

could easily exercise their electoral right to either elect a

totally black city government or to change their form of

government to a ward system. They do not need the

assistance of a federal court.

Accordingly, the Court finds in favor of the

Defendant and judgment will be entered.

B-21

—

42 USCS § 1973

§1973. Denial or abridgement or right to vote

on account of race or color through voting

qualifications or prerequisites; establishment of

violation a

(a) No voting qualification or prerequisite to voting

or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner

which results in a denial or abridgement of the right of

any citizen of the United States to vote on account of

race or color, or in contravention of the guarantees set

forth in section 4(f2) [42USCS § 1973(f2)], as provided

in subsection (b).

(b) A violation of subsection (a) is established if,

based on the totality of circumstances, it is shown that

the political processes leading to nomination or election

in the State or political subdivision are not equally open

to participation by members of a class of citizens

protected by subsection (a) in that its members have less

opportunity than other members of the electorate to

participate in the political process and to elect

representatives of their choice. The extent to which

members of a protected class have been elected to office

in-the State or political subdivision is one circumstance

which may be considered: Provided, That nothing in this

section establishes a right to have members of a

protected class elected in numbers equal to their

proportion in the population.

(Aug. 6, 1965, P. L. 89-110, Title I, § 2, 79 Stat. 437;

June 22, 1970, P. L. 91-285, § 2, 84 Stat. 314; Aug. 6,

1975, P. L. 94-73, Title II, § 206, 89 Stat. 402; June 29,

1982, P. L. 97-205, § 3, 96 Stat. 134.)

TRIAL PROCEEDINGS

BEFORE

THE HONORABLE

WILLIAM H. BARBOUR, JR.

UNITED STATES DISTRICT JUDGE

MAY 2, 3, 1988

VICKSBURG, MISSISSIPPI

EXCERPTS FROM

TESTIMONY OF

DR. RONALD LOVE

DIRECT EXAMINATION BY

WILLIE ROSE, ESQUIRE

D-1

V. 3, P. 235

is on the overlapping percentage but most of that relates

to '83. In '87, to a lesser degree, blacks voted for black

candidates than in '83.

Q. But you do have a professional opinion as to

percentage of which blacks voted for black candidates in

the 1987 election?

A. In most contests I would predict that they voted

between 70 and 80 percent black but there were other

contests that that was not true. I'll put it that way. I

think that's probably the most accurate way of stating it.

Q. In what contest would that not have been true

in?

A. If I can remember correctly, in '87 there was a

Sheriff contest, I think.

Q. What about the Circuit Clerk contest?

A. I think yeah, and maybe a Circuit Clerks contest.

But there was a number of instances where clearly there

were some candidates in which blacks did not support,

not to say that they didn't support them in the majority

but there was a block of them that did not vote for them

and voted for the white candidate, yes.

Q. Was that black cross over sufficient enough when

it was mingled with the racial block voting to defeat the

black candidate?

A. Of course. If you start out you're going to

generally finish it.

V. 3, P. 237

racial block voting — that blacks are a political cohesive

group in Woodville in Wilkinsobn County?

MR. HORN: Objection, leading.

MR. ROSE: Your Honor, only leading to lay a

foundation. I think you can for purposes of laying

grounds for an opinion.

THE COURT: Sustain the objection. Rephrase your

question.

Q. Okay. Doctor, based upon your analysis of the

1983 and ‘87 elections in Woodville, was you able to

reach a professional opinion based on probability as to

political cohesiveness of the blacks living in that county?

A. I think, yes. Blacks are politically cohesive

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though they sometimes vote — cross racial lines.

Q. In your opinion, how would you define political

cohesion?

A. How people stick together, cohesive being the

bond between them.

Q. What would be the determining factor in

determining what percentage of a people has to vote a

certain way for there to be — for you to determine

political cohesion?

A. I guess it could be 51 percent or 60 percent.

Q. You would say it had to be a majority?

A. I woul say it had to be a majority, yes. Though I

think that there are different standards for that,

certainly,

V. 3, P. 239

candidates?

THE WITNESS: Yes.

THE COURT: Why do we pay you fellows to go

through all these analysis if everybody knows that that's

what happened?

THE WITNESS: To what degree that happens,

differs based upon where you are. But in general, I think

it's an established fact and statistics simply allow you to

verify that much more cohesively. Sometimes I feel like

you.

THE COURT: Be careful. You'll talk yourself out of

a job.

THE WITNESS: I'd like to see the day when I don't

have to do this.

Q. Doctor, have you a professional opinion as to the

degree that whites vote for white candidates in the City

of Woodville?

A. Yes. Almost absolutely. Almost 100 percent. I

mean, that's — you never say that statistically. There's

almost always a standard factor but I think very clearly

whites vote for white candidates and that's been the case

in every analysis I have done in the State of Mississippi

and there's no exception in this one.

Q. Of course, when you were conducting this

analysis you wasn't influenced by the other analysis that

you have conducted.

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TRIAL PROCEEDINGS

BEFORE

THE HONORABLE

WILLIAM H. BARBOUR, JR.

UNITED STATES DISTRICT JUDGE

MAY 6, 1988

VICKSBURG, MISSISSIPPI

EXCERPTS FROM

TESTIMONY OF

DR. CRAIG VAN GELDER

DIRECT EXAMINATION BY

CARROLL RHODES, ESQUIRE

V. 6, P 40

Q. Okay. I want to go back to the conclusion that

you drew that blacks are not politically cohesive. Did you

do an analysis of election returns for Wilkinson County

for elections in 1983 and 1987?

A. I have not conducted an analysis of the election

returns of the supervisor districts or county-wide

e'ections for the City of Woodville for any years. I have

crosschecked only some of the figures that Dr. Love

indicated in his report in attempting to, in a sense,

reconstruct what he was reporting. I have not conducted

from the original data my own analysis of racial bloc

voting patterns.

Q. So, when you say that blacks are not politically

cohesive, you don't have your own independent

conclusions derived from the — :

A. The question — I'm sorry.

Q. — derived from your own independent research

that blacks do not vote substantially as a bloc?

A. The question that I testified to was did I have an

opinion as to a reasonable probability based upon the

testimony that I heard in this court. And that was my

answer. Based

V. 6, p 53

Q. If I could be a little more specific, what would be

the percentage of blacks needed to vote for a black

candidate in Woodville elections in order for you to say

that blacks are politically cohesive in Woodville?

(Brief pause.)

A. Let me have a moment. I want to reflect a little

bit on that in terms of my previous testimony.

Q. Yes, sir.

A. Is that all right?

Q. Yes, sir.

(Brief pause.)

A. Can you restate the question, please.

Q. Yeah. What in terms of Woodville's elections,

what percentage of the black vote would have to vote

consistently for a candidate of their choice, usually a

black candidate, in order for you to determine that

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blacks are politically cohesive?

A. It would be my opinion in terms of the testimony

that I have given and my evaluation of the testimony

that I have heard that if blacks would vote normally or

usually in the range of 85 percent it would constitute

political cohesiveness in being able to elect candidates of

their choice.

V.6, P. 54

Q. Blacks would have — at least 85 percent of the

black voters would have to vote?

A. 84 to 85 percent, mid-eighties to put it that way.

84 to 85 percent.

Q. Okay. Now, are you aware of the fact that there

has been no election in the Town of Woodville since

January 1, 1987?

A. In the Town of Woodville?

Q. Yes, sir. For municipal offices.

A. If I remember correctly it is 1985.

Q. Let me ask it another way. Since the anti-single

shot provision that has been eliminated by the state of

Mississippi have there been any elections conducted

where voters in Woodville elections could single shot

their vote?

A. Since January 1, 1987 there have not been

municipal elections in the City of Woodville.

Q. So, you don't have any empirical data since

January 1, '87 in which to assess whether or not the

removal of an anti-single shot provision would remedy

any violation of the section to the Voter Right's Act if the

court were to find those?

A. There is no data available from an actual election

to render a conclusion at this

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