Petition for Writ of Certiorari — Howard v. Adams County Board of Supervisors

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IN THE

Supreme Court of the United States

OCTOBER TERM 1971

REVEREND LEON HOWARD and BARNEY -

SCHOBY, individually and on_ behalf of all

others similarly situated,

Petitioners,

versus

_ ADAMS COUNTY BOARD OF SUPERVISORS,

SAMUEL L. CAUTHEN, A. BOYD SOJOURNER,

JAMES H. CARTER, IKE FOSTER, and E. A.

REDD, members of the Adams County Board of

Supervisors,

| Respondents.

PRS NR AG PER RIE IAN HRN mcr a "

;

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT . :

.

,

GEORGE PEACH TAYLOR

FRANK R. PARKER . %

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

Attorneys for Petitioners

|

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................--.. ii

OPINIONS BELOW ..................5.....0.055. 1

JURISDICTION ........... Wks fa Rey eee, ces

QUESTIONS PRESENTED ........................ 2

CONSTITUTIONAL AND STATUTORY PRO-

-VISIONSINVOLVED ......... Ra si FE 3

STATEMENT OF THE CASE _........ at a 5

REASONS FOR GRANTING THE WRIT.......... 19

I. THE DECISION BELOW CONFLICTS |

WITH GOMILLION v. LIGHTFOOT, 364

U.S. 339 (1960), AND THE OTHER AP-

PLICABLE DECISIONS OF THIS AND

OTHER COURTS REGARDING THE

CHARACTERISTICS OF UNCONSTITU-

TIONAL RACIAL GERRYMANDER-

NS <a ysguesekdsew nae PRES TEAS ei oe 22

II. THE DECISION BELOW CONFLICTS

WITH THE APPLICABLE DECISIONS

. OF THIS COURT REGARDING THE

BURDEN OF PROOF IN CASES SHOW-

ING RACIAL AND VOTING DEPRIVA-

RUNG ne rarectS Ipeeiec Ener ant ier 27

III) THE COURT OF APPEALS MISCON- ~

STRUED WHITCOMB v. CHAVIS, 403

U.S. 124 (1971) AND WRIGHT v. ROCKE-

FELLER, 376 U.S. 52 (1964), IN CON-

SIDERING THEM DETERMINATIVE

OP THIS CASE. ...................2025.:.. 31

;

Se a ee UR a nn ee

ARTE ID AP RE BTR: FRESE Ae aE A

°

aa ale so a a

no, ote Leama oils 84 a

spine) HAS 4aaihepaden enke GN

a

TABLE OF AUTHORITIES

Cases . . Page

Anderson v. Martin, 375 U.S. 399 (1964)....... ae

Burns v. Richardson, 384 U.S. 73 (1966)............ 22

‘Bussie v. Governor of. Louisiana, 333 F. Supp. 452

(E.D.La. 1971), modified, F.2d (5th

Cir. 1971), petition for cert. filed sub nom.

Taylor v. McKeithen, 40 U.S.L.W. 3356 (U.S.

- Dec. 18, 1971) (No. 71-784).............. trea 23

Dunn v. Blumstein, 40 U.S.L.W. 4269 (U.S. Mar.

Oe ie I nse as vas 29

Drum v. Seawell, 250 F. Supp. 922 (M.D. N.C. |

1966) (three-judge court) ...............,...... 23°

Fairley v. Patterson, decided sub nom. Allen v.

State Bd. of Elections, 393 U.S. 544 (1969)... ..20, 21

Fortson v. Dorsey, 379 U.S. 433 (1965)............ 2

Gomillion v. Lightfoot, 364 U.S. 339 (1960). .22, 23, 25,

26, 31

Harper v. Virginia State Bd. of Elections, 983 U.S.

663 (1966) ................ Pear nee ogee 29

Hunter v. Erickson, 393 U.S. 385 (1969).......... 28

' Kirkpatrick v. Preisler, 394 U.S. 526 (1969)....... 4

Kramer v. Union Free School District, 395 U.S.

gee Aa rere rere Serres 29

Loving v. Virginia, 388 U.S. 1 (1967).:............-. 28

‘ TABLE OF AUTHORITIES (Continued)

Page

Marsaw v. Patterson, Civil No. 1201, S.D. Miss.,

consolidated with Fairley v. Patterson, 282 F.

Supp. 164 (S.D. Miss. 1967), rev’d sub nom.

Allen v. State Bd. of Elections, 393 U.S/ 544

er RRO akens Chenesenlasiidncens es 6

McLaughlin v. Florida, 379 U.S. 184 (1964)...... 28, 29

Perkins v. Matthews, 400 U.S. 379 (1971).......... 20

Reynolds v. Sims, 377.U.S. 533 (1964)............ 23, 29

Sellers v. Trussell, 253 F. Supp. - (M.D. Ala.

1966) (three-judge court) SUPE a ES aD teats 24

Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965)

(three-judge court) ........ in mee See 23, 24, 26

Sincock v. Gately, 262 F. Supp. 739 (D.Del. 1967)

Geen SNINED 2... 56 lek '. 12,24

Smith v. Paris, 386 F.2d 979 (5th Cir. 1967), af-

firming 257 F. Supp. 901 (M.D.Ala. 1966)...... 24

_ South Carolina v. Katzenbach, 383 U.S. 301 (1966).. 22

United States v. Mississippi, 380 U.S. 128 (1965).... 19

Whitcomb v. Chavis, 403 U.S. 124 (1971)........ 3, 31, 32

Wright v. Rockefeller, 376 US. 52 (1964)... .3, 23, 31, 32

Other Authorities =

Pe OEE SiR ches Ooh Late elebenx ses 2

42 U.S.C.

I eee ee catia or en ae 7

TABLE OF AUTHORITIES (Continued)

| Page

Bb Pt rare es calle 4,7

RNG ic Gu eke tn Sele uel. piieiewkioat a coe

Miss. Code § 2870 (1956 Recomp.) .............. 5, 20, 30

A. deGrazia, APPORTIONMENT AND REP- —

RESENTATIVE GOVERNMENT (Praeger: ’

New York, 1962) We Senna iadieioe aemancns Bunce’ -, 8

IN THE -

SUPREME COURT OF THE UNITED STATES

, October Term 1971

No.

REVEREND LEON HOWARD and BARNEY

SCHOBY, individually and on behalf of all others

similarly situated, |

Petitioners,

versus

ADAMS COUNTY BOARD OF SUPERVISORS,

SAMUEL L. CAUTHEN, A. BOYD SOJOURNER,

- JAMES H. CARTER, IKE FOSTER, and E. A. REDD,

members of the Adams County Board of Supervisors,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

‘UNITED STATES COURT OF APPEALS

_ FOR THE FIFTH CIRCUIT

_ The petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Cir-

cuit entered in this proceeding on January 6, 1972.

OPINIONSBELOW . ’

The opinion of the United States Court of Appeals :

for the Fifth Circuit is reported at 453 F.2d 455, the

a

opinion of the United States District Court for the

Southern District of Mississippi is unreported, and both

Opinions are reproduced in the Appendix attached to

this Petition.

. JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Fifth Circuit was entered on J anu-

_ ary 6, 1972, and subsequently a timely petition for re-

hearing or, alternatively, for rehearing en'banc was

filed. The petition fo» rehearing was denied, and after

a poll of the court at the request of one of the judges,

the petition for rehearing en banc likewise was denied

on February 25, 1972. This petition for certiorari is

being filed within ninety days of the denial of the pe-

tition for rehearing en banc. This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. § 1254(1).

. QUESTIONS PRESENTED

Petitioners are challenging a redistricting plan

which restructures the boundaries of the five county

Supervisors’ districts of Adams County, Mississippi

(47.9 percent black) to insure that no more than one

‘of the five districts contains a black population ma-

jority, substantially diminishes the voting strength of

blacks in that one district, and cancels out the voting

strength of blacks dispersed throughout the other four

districts. The questions thus presented are:

1. Whether manipulation of election district boun-

daries on the basis of race by abandoning pre-existing

3

district lines and crossing neighborhood boundaries to

disperse a heavily black population concentration

(here, old District Four) among ‘four new election dis-

’ tricts and thereby maximizing the number of white

majority districts and minimizing the number of black

majority distriéts constitutes unconstitutional and un-

lawful racial gerrymandering.

2. Whether the burden of proof should have been

shifted to the defendants to show that the new boun-

dary lines not merely were rational or logical, but that

they were necessary to redistricting and that no less

burdensome alternatives were available.

3. Whether the court of appeals erred in holding

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

Wright v. Rockefeller, 376 U.S. 52 (1964), governed the

outcome in this case. :

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment:

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdic-

tion thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or enforce any law which shall a-_

bridge the privileges or immunities of citizens

of the United States; nor shall any State de-

prive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protec-

tion of the laws.

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4

United States Constitution, Fifteenth Amendment:

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged

by the United States or by any State on account

of race, color, or previous condition of servi-

tude. |

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

42 U.S.C. § 1971(a)(1):

(a) (1) All citizens of the United States who

are otherwise qualified by law to vote at any

_ election by the people in any State, Territory,

district, county, city, parish, township, school

district, municipality, or other territorial sub-

division, shall be entitled and allowed to vote.

at all such elections, without distinction of

race, color, or previous condition of servitude;

any constitution, law, custom, usage, or regu-

lation of any State or Territory, or by or under

its authority, to the contrary notwithstanding.

42 USC. § 1973:

No voting qualification or prerequisite to vot-

ing, or standard, practice, or procedure shall

’ be imposed or applied by any State or political

subdivision to deny or abridge the right of any

citizen of the United States to vote on account

of race or color.

06 Ee A mee

.

STATEMENT OF THE CASE

In Mississippi each county is governed by a five-

man board of supervisors which exercises executive,

legislative, and quasi-judicial powers (such as jury se-

lection) and whose members are elected from five su-

pervisors’ districts required to be equal in population

by state law. Miss. Code § 2870 (1956 Recomp.). The

court of appeals’ decision sustains'as nondiscrimina-

tory a racial gerrymander of the boundaries of the

five supervisors’ districts of Adams County, Missis-

sippi — a county which is 47.9 percent black — which

insured that no more than one black representative

(if indeed it is possible to elect one) can be elected

to the county’s five-man governing board of supervis-

ors, or to other offices elected on a district basis,

justice of the peace.and constable.

The petitioners (hereinafter designated plaintiffs)

are two black Adams County voters, one a candidate

for the board of supervisors in the 1971 general elec-

tion, who were displaced by the defendants’ November

2, 1970 redistricting plan from’ District Four, the only

majority black district in the county, and placed in

new majority white districts where, because of bloc

voting along racial lines in the county (Tr. 16-17),'

they and those similarly situated are unable to elect

any blacks or to be elected to public office.?, The re-

'The abbreviation “Tr.” refers to pages in the Trial Transcript.

2Subsequent to the redistricting plaintiff Leon Howard moved his

legal residence back into new District Four to run, unsuccess-

fully, as an independent candidate for the District Four seat

on the board of supervisors.

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spondents (hereinafter designated defendants) are the

Adams County Board of Supervisors and its members

who are charged under Mississippi law with the duty

of establishing equi-populous Supervisors’ districts and

who adopted the challenged redistricting plan. ~

1. This case is another step in the continuing efforts

by Adams County officials to inhibit the constitutional

rights of the plaintiff class to free and equal political

participation. Prior to the passage of the Voting Rights

Act of 1965, few black citizens of Adams County were

permitted to register and vote (App. lla).* Subse-

quent to the enactment of the Voting Rights Act, when

black voters had gained a majority in Supervisor’s Dis-

trict Four, the Adams County Board of Supervisors

abolished election of its members on a district basis

and in 1967 all five supervisors were chosen on an at-

large basis, with all the county voters voting for all

the candidates, thus returning to office another all-

white board (Pre-Trial Stipulation, 7] 12, 15). The

switch to at-large Supervisors elections subsequently

was enjoined for failure of the defendants to obtain

clearance under Section 5 of the Voting Rights Act

of 1965 and when clearance was sought the Attorney

' General objected to the change as racially discrimina-

tory (Complaint, Ex. D). |

sThe abbreviation “App.” refers to Pages in the Appendix filed

with this Petition.

4Marsaw v. Patterson, Civil No. 1201, S.D. Miss., consolidated with

Fairly v. Patterson, 282 F. Supp. 164 (S.D. Miss. 1967), rev’d

sub nom. Allen v. State Bd. of Elections, 393 U.S. 544 (1969),

temporary injunction issued, April 23, 1969.

7

Having failed in their effort to dilute black voting

strength by contriving at-large elections, the defend-

ants contracted with a Mississippi planning: agency,

Comprehensive Planners, Inc. (CPI), to redistrict the

county and on November 2, 1970 adopted a new plan

redistricting the county’s five supervisors’ districts.

After an examination of the characteristics and effects

of the plan, the plaintiffs on May 5, 1971, filed this

class action challenging the redistricting plan on the

grounds, inter alia, that it was racially discriminatory

in violation of the rights of black voters and candidates

for office secured by the Fourteenth And Fifteenth A-

mendments to the United States Constitution and im-

plementing Federal statutes, 42 U.S.C. §§ 1971, 1973

and 1983.5 !

2. The evidence shows that prior to the redistrict-

ing, the population and racial composition of the

Adams County supervisors’ districts was as follows

(1970 Census figures):

SOther counts in the complaint involved the failure of the United

States Attorney General to make a specific finding that the

- redistricting plan was nondiscriminatory when it was sub-

mitted to him pursuant to Section 5 of the Voting Rights Act

of 1965, 42 U.S.C. § 1973c (Count I), and the malapportion-

ment of the supervisors’ districts which resulted from the re-

districting (Count III), the latter of which was sustained by

the District Court. According to the statistics provided by the

defendants, as judged by 1970 Census data, the November 2,

1970 redistricting plan resulted in new districts ranging from

10.12 percent under-represented to 12.03 percent over-repre-

sented, a span of 22.15 percentage points, a malapportionment

clearly unconstitutional under the standards set out in Kirk-

patrick v. Preisler, 394 U.S. 526 (1969).

4

Old District White

1 9,305 (68.5%)

668 ° (62.3% )

1,040 (69.7%)

oI m G bo

4,658 (76.8%)

19,366 (51.9%)

3,695 (24.5%) °

Black

4,265 (31.4%)

403 (37.6%)

448 (30.0%)

11,356 (75.3%)

1,393 (23.0%)

17,865 (47.9%)

Total

13,590

1,073

1,492

15,074

6,064

37,293

Black majority District Four, with 15,074 persons, was

twice the population norm of a correctly apportioned

district (7,459). The most logical and economical plan

(which would have done the least violence to pre-exist-

ing district boundaries) would have been to split old

District Four into two new districts (which would have

had black majorities) and to combine other districts

to establish new districts with the following results:

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Instead of relying upon pre-existing boundaries which

would have provided an adequate basis for a new re- :

districting plan, the defendants completely abandoned

pre-existing district lines in favor of. a plan which dis-

persed the black population of old District Four among

four new districts. ~ |

3. Under the challenged plan, the population of

black majority District Four was split four ways. The

less politically active rural area, together with some

territory from adjacent District Five, became new Dis-

trict Four with a substantially diminished black popu-

lation percentage. The urban area of old District Four,

containing the most politicaliy active black voters, was

divided up among three of the new white majority dis-

tricts. The result was that the percentage of blacks

in new District Four was substantially decreased, and

the more than 6,700 black persons who were excluded

from new District Four had. their votes cancelled out

by being dispersed throughout white majority districts

where they would be out-voted by white bloc voting

in every election:

- New District White Non-White Total

1 3,586 (54.6% ) 2,976 (45.4%) 6,562

2: . 4,466 (60.2%) 2,955 (39.8%) 7,421

3 4,183 (50.9%) 4,031 (4971%) 8,214

4 2,288 (33.2%) 4,602 (66.8%) 6,890

5 4,843 (59.0%) 3,363 (41.0%) 8,206

e °19,366 (51.9%) 17,927 (48.1%) 37,293

(Trial Ex. P-12)

—

This population dispersal had a clearly discrimina-

tory effect on black voting strength in the new dis-

tricts. In each district in Adams County the number

of black registered voters as a percentage of the black

population invariably is disproportionately lower than

the number of white registered voters as a percentage

of the white population (Pre-Trial Stipulation, Ex. H).

Thus, although new District Three is almost half white

and half black by population, there can be no doubt

that the district has a white registered majority. Even

more significantly, the black registered majority of

District Four, which prior to the redistricting was 62.8

percent of the total number of registered voters in that

district (id.), was reduced by the redistricting to an

estimated 50 percent of the total in new District Four

(Tr. 91). Thus, while the defendants had the opportuni-

ty to redistrict the county to provide black registered

majorities in two of the five districts, with the atten-

dant possibility of electing blacks to the board of super-

visors and other district positions, under the redistrict-

ing plan which they adopted none of the five districts

contained a black registered majority, with the pos- _

sible exception of new District Four in which a clear-

cut black registered majority of 62.2 percent was all

but eliminated.

This is the classic case of maximizing the number

of districts returning safe majorities for whites and

minimizing the number of districts returning safe ma-

_ jorities for blacks by dispersing the black majorities

12

as much as possible and gathering together white vot-

ers to create new white majorities.®

Instead of utilizing 1970 Census data (available in

published form in early 1971), Comprehensive Planners

at the same time the 1970 Decennial Census was being

taken (April 1, 1970) counted the occupied houses in

Adams County and multiplied occupied houses by a

housing occupancy factor (average number of persons

per occupied housing unit) to locate persons in Adams

County and to-arrive at a “population estimate” as a

basis for redistricting. Far from. being “colorblind”.

(App. 32a), the defendants and their planning agents

were exceedingly race-conscious in designating all

occupied houses on a house count map according to

the race of the occupants — white homes marked in

red and black homes in green (Pre-Trial Stipulation,

Exhibits F and G) — with racial designations supplied

by the defendants or their employees (Tr. 202-07, 304-

14 and passim). The housing occupancy factors used

as multipliers also were differentiated according to

race, although it was conceded that the racial statistics

for housing occupancy used (1960 Census data) were

not an accurate method of estimating 1970 population

(Tr. 205-06) and the use of this technique resulted in

malapportioned supervisors’ districts.

eBee A. de Grazia, APPORTIONMENT AND REPRESENTATIVE

GOVERNMENT (Praeger: New York, 1962), quoted with ap-

proval in Sincock v. Gately, 262 F. Supp. 739, 829 (D.Del.

1967) (three-judge court). '

| 1B °

°4. The locations and shapes of the boundaries of

the new districts, indicate an intentional manipulation

of district lines to disperse black voters. Prior to the

redistricting, ‘only two of the five districts penetrated

the corporate limits of the City of Natchez, where

blacks constitute a majority of the city population and

where most of the black voters in the county live (see

Figure 1). |

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Figure 1. Map showing the boundaries of supervisors’.

districts (beats) within the City of Natchez

prior to redistricting; superimposed on 1970:

Census enumeration districts shaded for

racial percentage.

14

As a goal of the new redistricting plan, the population

concentration in Natchez (majority black) was con-

sciously and intentionally “split up ... between the

districts” (Tr. 214-15). The new district lines, rather

than following neighborhood patterns, cut across neigh-

borhood lines to disperse the black population formerly

contained in District Four among four of the five new

districts (see Figure 2).

Figure 2. Map showing the boundaries of supervisors’

districts (beats) within the City of Natchez

as established by the challenged November

2, 1970 redistricting plan, superimposed on

1970 Census enumeration districts shaded for

racial percentage.

15

5. Each of the new district lines spread out from

Natchez like spokes from the center of a wheel, com-

bining black population concentrations in Natchez with

white population concentrations in the county, sacrific-

ing any semblance of compactness or contiguity (see

Figure 3).

Figure 3. Outline map of the boundaries of the super-

visors’ districts in the city and the county

éstablished by the challenged November 2,

1970 redistricting plan, showing the distorted

boundaries lacking compactness and con-

tiguity, including the “giraffe” shape of Dis- .

trict 2 (county and city) and the “turtle’s

head” shape in District 5 (city map).

oe

16

New District Two is a giraffe-shaped district with more

than 70 sides, nearly 50 of which are found within the

City of Natchez, takes three pages to describe, and

zig-zags a tortuous path from the Mississippi River

on the north across the county to the Wilkinson County

boundary on the south. Similarly, new District Five

spans the county in zig-zag fashion from the Franklin

County boundary on the east to the Steirs Lane area,

where that portion which gobbles up portions of the

black population of old District Four resembles a tur-

tle’s head. It was admitted by defendants’ own planner

that the district shapes in the City of Natchez were

not compact or contiguous (Tr. 273) and defendants

failed to establish any non-racial justification for the

shape or location of those lines. .

6. The uncontradicted and largely admitted facts

show that the redistricting has a disastrous effect on

the voting strength and political power of black voters

in Adams County. Those residential areas in the city

and county containing the most politicaliy active black

citizens were displaced from District Four and re-

moved to white majority districts. The only black of-

ficials to be elected to office in Adams County in this

century, the District Four justice of the peace and con-

stable elected in 1967, and all the officers and mem-

bers of the board of the NAACP county branch (the

county’s only civil rights organization) were displaced

from District Four and settled in new white majority

districts. On the other hand, the planners consciously

and intentionally as a goal of the redistricting plan

_ drew the boundaries so that none of the incumbent

white supervisors, illegally elected as part of the at-

17

large election scheme in 1967, were displaced from the

districts they were elected to represent. As a result,

another all-white board of Supervisors was returned

to office in the elections of 1971.

Both plaintiffs testified without contradiction that

black candidates could not win office in any of the

new districts, éxcept in new District Four as a remote

possibility (Tr. 50-51, 90), and plaintiffs’ expert witness

testified that the redistricting plan was, in his opinion,

a racial gerrymander diluting and minimizing black

voting strength (Pr- ). Finally, there is nothing nec-

essary or “inevitable” (App. 63a) about the shape or

location of the new district lines; the defendants’ plan-

ning expert himself testified that there were “a num-.

ber of ways that lines can be drawy in any given county

Situation” (Tr. 284). Pd

- The district court found that the defendants’ redis-

tricting plan on the undisputed’ 1970 Census figures re-

sulted in districts njalapportioned by a span of 22.15

percentage points variance from the norm and ordered

them to submit a hew plan by December 1, 1971 provid-

ing for equally apportioned districts, but held that

“plaintiffs have failed upon the facts and the law to

establish any gerrymandering to dilute the black vot-

ing strength in District 4 or any other district of-Adams

County” (App. 29a). The district court refused to en-

join the use of the challenged redistricting plan in the

1971 primary and general elections (App. 50a), and

the Fifth Circuit concurred but in an interlocutory or-

der required new elections for supervisor positions af-

18

ter district court approval of a constitutional redis-

tricting plan in 1972 (App. 53a).

On plaintiffs’ claim of racial discrimination, the

court of appeals, without discussion of the elements

of proof of plaintiffs’ case, recognized that the black

voters formerly residing in District Four were disad-

vantaged by being placed in new districts with white

majorities (App. 63a), but declined to hold either that

the redistricting constituted a racial gerrymander or

that the proof thrust on the defendants the burden of

showing that the new lines were required by a compell-

ing state interest and that no less burdensome alterna-

tives were available.

Although’ a new election for supervisor positions is

required by the Fifth Circuit’s Order of July 29, 1971,

this case is not moot, and plaintiffs seek review of

the decision of the court of appeals for the following

reasons. Since both the district court and the court

of appeals refused to enjoin the use of the challenged

plan in the 1971 elections, the defendants’ November

-2, 1970 redistricting plan established the boundaries

of Adams County supervisors’ districts for the elec-

tion of county supervisors, justices of the peace, and

constables in that major election year. Both the district

court and the court of appeals denied plaintiffs’ pray-

ers in their complaint for a declaratory judgment that

the November 2, 1970 redistricting plan was racially

discriminatory ( which would have the effect of barring

its use as the basis for future plans) (Complaint, {| 22

(a) ) and for an injunction against the defendants bar-

ring future racial gerrymandering (id. at 7 22(b)).

If this Court should review and reverse the decision

19

of the court of appeals, plaintiffs would be entitled to

this future relief. Further, because of malapportion-

ment, the interlocutory order requires new elections

only for county supervisors, but not for other county

officials elected in 1971 on the basis of the gerryman-

dered districts, specifically, justices of the peace and

constables. If the district court and court of appeals

erred in holding that the districts used as the basis

for the 1971 elections were not gerrymandered, plain-

tiffs would press their claim in this Court for new jus-

tice of the peace and constable elections as well.

REASONS FOR GRANTING THE WRIT

This case represents a continuation and further stage

of what this Court early identified in United States

v. Mississippi, 380 U. S. 128, 135 (1965) as the “long-

Standing, carefully prepared, and faithfully observed”

effort in Mississippi to bar black voters from the effec-

tive use of the franchise. Although as a direct result

of the Voting Rights Act of 1965, black voter registra-

tion in the state has increased from 28,500 (pre-1965)

‘to an estimated 268,000 (28 percent of the total), only

seven black county supervisors (of a total of 410) in

-Six counties (out of 82) have been successful in gaining

elective office.

This exclusion of blacks from county governing

boards in Mississippi cannot be attributed to accidental

or adventitious circumstances. Shortly after the pas-

sage of the Voting Rights Act of 1965 the Mississippi

Legislature enacted legislation, ostensibly for the pur-

pose of meeting one man, one vote requirements, to

20

allow county boards of supervisors to switch from a

district system of electing members to at-large voting,

with all the voters of the county voting fer all the mem-

bers of the board. A number of Mississippi counties,

including Adams, took advantage of this opportunity

to dilute the voting strength of blacks who had attained

a registered majority in particular supervisors’ dis-

tricts (in Adams, District Four) but who were in the

minority county-wide. In Fairley v. Patterson, No. 25,

O.T. 1968, decided sub nom. Allen v. State Bd. of Elec-

tions, 393 U.S. 544 (1969), this Court noted the poten-

tial for dilution of black voting strength inherent in

this new ‘device in requiring that it be submitted to

the United States Attorney General for his approval

pursuant to Section 5 of the Voting Rights Act of 1965,

42 U.S.C. § 1973c. Upon submission of the 1966 Amend-

ment to Miss. Code § 2870 the Attorney General en-

tered an objection on the ground that this new law

had the purpose and effect of denying and abridging

the right to vote on account of race (Complaint, Ex.

D).

At-large elections having been eliminated as a device

for diluting black voting strength, racial gerrymander-

ing of district lines now appears as one of the greatest

current threats to free exercise of the franchise by

black voters in Mississippi. Last term in Perkins v.

Matthews, 400 U.S. 379, 389 (1971), this Court noted

the findings of the United States Commission on Civil

Rights that since the passage of the Voting Rights Act

“gerrymandering and boundary changes had become

prime weapons for discriminating against Negro vot-

ers” in the South. There appears to be a growing move-

21

rnent in Mississippi on the part of all-white boards of

Supervisors to use their constitutional obligation to es-

tablish equally apportioned districts as a cover to ger-

rymander district lines and disperse concentrations of

black voting strength, thus assuring all-white county

governments in most parts of the state.”

The essential issue presented in this case is whether

this Court’s decision in Fairley and the Attorney Gen-

eral’s subsequent objection are to remain effective

barriers to unconstitutional dilutions of black voting

strength, or whether those decisions may. be under-

mined by the use of the new technique of racial gerry-

mandering. which, by combining black majorities with

greater white majorities through manipulation of dis-

trict boundaries, minimizes or wipes out the gains

achieved in the prior litigation.

7In 1971 the United States Attorney General, through his delegated

agent the Assistant Attorney General in charge of the Civil

Rights Division, entered objections pursuant to Section 5 of

the Voting Rights Act to county redistricting plans submitted .

by seven Mississippi counties on grounds that it was impossible

to determine whether the new redistricting plan diluted black

voting strength or that study revealed that the submitted plan

made the effect of diluting black voting strength without com-

pelling justification. Significantly, redistricting plans in four of

these counties were devised by Comprehensive Planners, Inc.,

of West Point, Mississippi, the planning agent of the defendants

in the case at bar.

22

I. The Decision Below Conflicts With Gomil-

lion v. Lightfoot, 364 U.S. 339 (1960), And

The Other Applicable Decisions Of This

And Other Courts Regarding The Charac-

teristics Of Unconstitutional Racial Gerry-

mandering. :

Prior to its decisions in the reapportionment cases,

this Court held in Gomillion v. Lightfoot, 364 U.S. 339

(1960), that a complaint alleging that the boundaries

of a municipality had been altered from a regular geo-

metrical shape to an “uncouth twenty-eight-sided fig-

ure” excluding most of the black voters from majority

black Tuskegee, Alabama, stated a cause of action for

violation of rights secured by the Fourteenth and Fif-

teenth Amendments. Gomillion thus stands for the

proposition that racial gerrymandering — the manipu-

lation of election district boundaries for the purpose

or effect of diluting black voting strength — violates

Federal constitutional and statutory voting guaran-

tees. South Carolina v. Katzenbach, 383 U.S. 301, 311

(1966). Gomillion and the dicta of the subsequent re-

apportionment cases indicate that to establish uncon-

stitutional racial gerrymandering, it is not necessary

to produce direct evidence of evil motives or racial

motivation: apportionment schemes are unconstitu-

tional when they “designedly or otherwise ... operate

to minimize or cancel out the voting strength of racial

or political elements of the voting population.” Fortson

v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richard-

son, 384 U.S. 73, 88 (1966). |

The court-of appeals appears to have been in general

23

agreement with the plaintiffs on these fundamental le-

‘ gal principles, but failed properly to apply the princi-

ples of the racial gerrymandering decisions to the facts

of this case. This Court and other courts have identified

the following characteristics — the symptoms of the

disease — as indicating prohibited racial gerryman-

dering: ;

1. History of prior racial discrimination in

voting. Sims v. Baggett, 247 F. Supp. 96,

109 (M.D.Ala. 1965) (three-judge court).

2. Departing from historic and previously es-

tablished boundary lines. Gomillion v.

Lightfoot, supra; Sims v. Baggett, supra,

247 F. Supp. at 109.

3. Dispersing concentrations of black voters

throughout several districts with the effect

of diluting black voting strength. Bussie v.

Governor of Louisiana, 333 F. Supp. 452,

457 (E.D. La. 1971), modified, F.2d

(5th Cir. 1971), petition for cert. filed

sub nom. Taylor v. McKeithen, 40

U.S.L.W. 3356 (U.S. Dec. 13, 1971) (No. 71-

784).

4. Lack of geographic compactness and con-

tiguity in the new districts. Gomillion v.

Lightfoot, supra; Reynolds v. Sims, 377

US. 533, 568 (1964); Drum v. Seawell, 250

F. Supp. 922, 925 (M.D. N.C. 1966); cf.

Wright v. Rockefeller, 376 U.S. 52, 59-74

24 °

(dissenting opinions of Dougies and Gold-

berg, JJ.).

5. Combining territories with compact black

majorities with territories containing

white majorities and thus converting black

voting majorities into white voting major-

ities. Sims v. Baggett, supra, 247 F. Supp.

at 109; Smith v. Paris, 386 F.2d 979 (5th

Cir. 1967), affirming 257 F. Supp. 901 (M.D.

Ala. 1966); cf. Sincock v. Gately, 262 F.

Supp. 739, 829 saa Del. 1967) (three-judge

court).

6. Perpetuating whites in office, while at the

' same time excluding blacks from the op- .

portunity of being elected. Cf. Sellers v.

Trussell, 253 F. Supp. 915 (M.D. Ala. 1966)

(three-judge court).

This listing is not exhaustive, but merely identifies the

‘principal characteristics of racial gerrymandering.

Some of these elements taken alone, or several in com-

bination have been held sufficient in the cited cases

to show a violation of Equal Protection Clause and -

Fifteenth Amendment guarantees.

The_ critical significance of this case is that on the

admitted and undisputed facts set out in the Statement

of the Case, ALL of the above-stated characteristics

of unconstitutional racial gerrymandering are present.

25

Given the distribution of population in Adams Coun-

ty, it is doubtful that the defendants could have

achieved a more devastating dispersal of black voting

“Strength to minimize the voting power of the black

residents remaining in District Four and to cancel out

the voting power of those excluded from District Four.

Plaintiffs Howard and Schoby, and the class they rep-

resent, (like the plaintiffs in Gomillion, supra) were :

‘by this dispersal of the black population denied the —

_ Tight to vote in the one district’in which their vote -

could be effective — the district in which they con-

stituted a majority prior to redistricting — and where

they could run for office with some possibility of suc-

cess and elect black candidates if they so chose. The

court of appeals failed to discuss or justify any of these

characteristics of racial gerrymandering, established

by the undisputed facts, in its decision. Rather, the

court of appeals rested its decision on what it con-

sidered was a failure of proof.

First, the court of appeals held that the record was

“bare” of any evidence showing that the redistricting

plan was the product of a racial motivation or purpose

(App. 6la), and thus appears to hold that such pro-

hibited racial motivation must be shown by some di-

rect evidence of improper motive or racial bias on

the part of the defendants. After years of civil rights

litigation, those who are bent on denying constitutional

rights have learned to be quiet about it, and thus to

require direct evidence of improper purpose is not only

impossible in most cases, but is not even necessary,

as the cases cited by the court of appeals and noted

above have established. Proof of an “inescapable ef-

fect of discriminating against Negroes” in voting has

been held sufficient to show prohibited racial motiva-

tion, since the defendant public officials knowing what

they have done must have intended the natural and

inescapable effects of their actions. Gomillion v. Light-

foot, supra; Sims v. Baggett, supra, 247 F. Supp. at

109-110.

Second, the court of appeals rejected plaintiffs’ con-

tention that the redistricting plan was unconstitutional

by relying on the fact that biacks retained a majority

in new District Four (although substantially dimin-

ished) and that they had swelled in population in the

other districts, This analysis is defective because it

uses as the basis of comparison the unconstitutional

circumstances prior to redistricting. Although blacks

previously had a majority in only one district, District

Four, their population was sufficiently large that, in

the language of the reapportionment cases, District

Four votefs were “constitutionally entitled” to two su-

pervisors, not one. The redistricting plan, which dis-

persed this second black majority among three new

white majority districts, thus robbed those black vot-

ers of the opportunity to elect a second black super-

visor which they would have had if the redistricting

had been accomplished on a fair and non-racial basis

— by dividing old District Four in half, providing for

two black majority districts.

As to racially balancing the other districts, achiev-

ing a racial balance may be a significant remedy a-

gainst discrimination where schools or juries are in-

volved, but providing racial balance among election

27

districts in a black minority county where racial bloc

voting prevails has the disastrous and inherently

discriminatory effect of cancelling out the voting

strength of the black minority with the alana ;

white vote.

This is not to say that under any circumstances black

voters in a 48 percent black county are constitutionally

entitled to two black majority districts. What we are

saying is that prior to the redistricting, according to

the district boundaries that obtained then, plaintiffs

and the plaintiff class resided in a majority black dis-

trict large enough to elect two supervisors, that this

pre-existing circumstance may be taken as a non-ra-

cial standard against which the challenged redistrict-

ing may be judged. The fact that the defendants did

not consider or adopt a redistricting plan which recog-

nized this pre-existing level of black voting strength,

but rather adopted a plan which dispersed the black

population concentration formerly included within old

District Four among three new white majority dis-

tricts, thus diminishing the effectiveness of their votes,

shows purposeful racial discrimination and a constitu-

tionally impermissible dilution of black voting

strength.

Il. The Decision Below Conflicts With The Ap- _

plicable Decisions Of This Court Regarding

The Burden Of Proof In Cases Showing

Racial And Voting Deprivations.

The court of appeals in judging the facts failed to

apply the proper constitutional standard because, hav-

on ~~ jeer we oor 8 ~ a. =.

ing determined that black voters in Adams County

were disadvantaged by being “shifted ... to districi-

in which they may no longer be in the clear majority,”

(App. 63a), it failed to hold that the burden of proof

was shifted to the defendants to establish a compelling

justification for the new district lines. Shifting the bur-

den of proof to the defendants was required first, be-

cause the evidence established a prima facie case that -

defendants had employed a racial classification in re-

districting, dispersing the black population of old Dis-

trict Four and using express racial designations

in computing population figures (red for white homes

and green for black homes); second, because the redis-

tricting plan disproportionately burdened the effective-

ness of the voting strength of the county's black popu-

lation, thus infringing the exercise of a fundamental

constitutional right; and third, because the redistrict-

ing came on the heels of an immediate prior history

of discrimination in voting, thus making the new elec-

toral mechanism which diluted black voting strength

presumptively unconstitutional.

The decision of.the court of appeals dire¢tly conflicts

with the numerous decisions of this Court holding that

both racial classifications and electoral] mechanisms

which abridge the effectiveness of the franchise — par-

ticularly the voting rights of racial minorities protect-

ed by the Fourteenth and Fifteenth Amendments —

are “constitutionally suspect” and “bear a far heavier

burden of justification than other classifications.”

Hunter v. Erickson, 393 U.S. 385 (1969), Loving v. Vir-

ginia, 388 US. 1 (1967); McLaughlin v. Florida, 379

US. 184 (1964), Anderson v. Martin, 375 U.S. 399 (1964)

(racial classifications); Dunn v. Blumstein, 40

U.S.L.W. 4269 (U.S Mar. 21, 1972) (No. 70-13), Kramer

v. Union Free Sciooi District, 395 U.S. 621 (1969),

Harper v. Virginia State Bd. of Elections, 383 U.S. 663

(1966), Reynolds v. Sims, supra, 377 U.S. at 561-62 (vot-

ing deprivations).

Under this “strict scrutiny” standard, which the

court of appeals should have applied, the defendants

should have been required to show that the boundaries

of their redistricting plan were (1) necessary, (2) were

required by a compelling state interest, and not merely

“logically” drawn (as the district court erroneously

held (App. 22a) ) or rationally related to redistricting,

and (3) that there were no available alternatives which

could have accomplished redistricting without the at-

tendant dilution of black voting strength. See Kramer

v. Union Free School District, 395 U.S. 621 (1969),

McLaughlin v. Florida, supra.

If the court of appeals had placed the burden of justi-

fication on the defendants, it is unlikely that the redis-

tricting scheme could have been sustained, particular-

ly in light of the testimony of defendants’ expert wit-

ness that “there are a number of ways that lines can

be drawn in any given county situation” (Tr. 284) to

achieve districts of equal population and in light af

the possibility that equi-populous districts could have

been obtained merely by subdividing District Four

without diluting black voting strength.

The court of appeals also failed to give any weight

to the admitted proof that none of the defendants’

Stated goals of their redistricting had been achieved

ad EE ‘wth ee - Ga &

30

by the challenged plan. The defendants have claimed

throughout that the new boundaries were justified to

achieve equality in population, road mileage, and area

of each of the new districts (App. 57a). However, the |

new districts resulted in inequalities in population

ranging from 10.12 percent under-represented to 12.03

‘percent over-represented (a span of 22.15 percentage

points) (App, 20a), disparities of road mileage from

59.0 miles to 74.7 miles (Plan, p. 6), and disparities

of area from 45 square miles to 152 square miles (a

disparity of 107 square miles, 9 square miles greater

than the disparity under the pre-existing districts)

(id.).? The fact that the redistricting did not achieve

even its stated goals® is both probative of racial moti-

vation and evidence that the challenged redistricting

fails to withstand the required “strict scrutiny.”

7Supervisors’ districts are not required to be equal in road mileage

or area either by state law, Miss Code § 2870 (1956 Recomp.)

or the Constitution, These criteria were injected because of the

traditional district unit system of county management in which

each supervisor is responsible for maintaining county roads and

bridges within his own district, a system which has been con-

demned as wasteful and inefficient by the General Legislative

Investigating Committee of the 1972 Mississippi Legislature.

®Only the unstated goal, that of retaining each incumbent super-

visor in his respective district (Tr. 271) was achieved, and that

goal is inherently discrimjnatory under the circumstances of

‘this case.

Rei POT area~ @

31

Ill. The Court Of Appeals Misconstrued Whit-

comb v. Chavis, 403 U.S. 124 (1971) And

Wright v. Rockefeller, 376 U.S. 52 (1964)

In Considering Them Determinative Of This

Case.

In holding that the challeriged redistricting plan did

not unconstitutionally dilute the voting strength of the

complaining minority, the court of appeals relied

heavily upon this Court’s decisions in Wright v. Rocke-

feller, 376 U.S. 52 ( 1964), and Whitcomb v. Chavis, 403

U.S. 124 (1971), neither of which is directly applicable

to, or determinative of, this case. In Wright this Court

held that the plaintiffs had failed to show that a Con-

gressional redistricting scheme which established

a heavily black and minority group district adjacent

to several majority white districts had the purpose or

effect of racial discrimination. In this case the opposite

was accomplished — rather than concentrate minority

voting strength, the defendants here dispersed black

voting strength to achieve a dilution of black votes

more closely resembling the Gomillion gerrymander

and which Mr. Justice Black writing for the majority

in Wright suggested would be vulnerable to constitu-

tional attack (376 U.S. at 58).

Last term in Whitcomb the Court refused to strike

down an Indiana legislative apportionment scheme

providing for multi-member districts because of its ad-

ventitious effects upon ghetto voting strength. Con-

trary to the claims of the plaintiffs here, the plaintiffs

in Whitcomb conceded that there was no legislative

purpose to dilute black political effectiveness.

ee Maal A ie AR AL LTR RL TN aa

ee vee ee

.

nto thas tees

32

Neither Wright nor Whitcomb involved proof of a

history of exclusion of blacks from the free exercise .

of voting rights, the use of racial designations to ac-

complish redistricting, disparate treatment of white

and black office-holders, or the specific question of

dilution of black voting strength achieved by the dis-

persal of the black voting population among several

election districts by manipulation of district boundar-

ies. Thus, the court of appeals’ reliance on those de-

cisions presents an urgent case for granting the peti-

tion for certiorari because this case presents important

questions relating to the deprivation of voting rights

which were not settled by the Court in those cases

and which should be resolved.

The decision of the court of appeals bodes ill for

the future of black political participation in Southern

states because it accepts as “inevitable” redistricting

which unnecessarily disperses black voters throughout

white majority districts, thus robbing them of the op-

portunity to elect black representatives if they so

chose. The court below, by deciding the case summari-

ly and without oral argument, turned a deaf ear to

the political realities of the situation. If the decision

of the court of appeals is allowed to stand, the newly

enfranchised black voters of Adams County, Missis-

sippi, will find themselves once again without an effec-

tive voice in the political process, for it is axiomatic

in American politics that submerging an identifiable

interest group — particularly a constitutionally pro-

tected minority — so that it is denied the opportunity

33

to elect representatives in proportion to its voting

strength is as harmful to the group’s members as not

' permitting them to vote at all.

' CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of-the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

GEORGE PEACH TAYLOR |

FRANK R. PARKER

Lawyers’ Committee for Civil

Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

Attorneys for Petitioners

April, 1972

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