Jeffers v. Clinton

We have arrived at a point no one envisioned in 1965. The right to vote no longer means simply the right to enter a polling booth and pull the lever. Yet the issue retains a simpleFifteenthAmendment aura — an aura that is pure camouflage. An alleged voting rights violation today is a districting plan that contains nine majority-black [or Hispanic] districts when a tenth could be drawn. The question is: how much special protection from white competition are black candidates entitled to? For instance, when aWest Page 228different plan might give a seat to another black, should the interests of white incumbents give way to the goal of minority officeholding? The temptation to provide maximum protection (a maximum number of seats) is strong and has been only intermittently resisted. * * * Districting plans are torn up following every decennial census. * * * There is thus a need to devise new plans, to determine when black ballots "fully count." The phrase itself invites a definition that gives those ballots maximum weight, defined as officeholding; anything less suggests a compromised right.Yet maximum weight implies anentitlement to proportionate ethnic and racialrepresentation — a concept that is no lesscontroversial with respect to legislative bodiesthan with reference to schools and places ofemployment. Voting rights has become anotherimmensely complex affirmative action issue,distinctive only in not being acknowledged as such.

The myth of moral simplicity has largely insulated the voting rights issue from debate, yet perhaps no other affirmative action question is more significant.

(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(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) is established if, based on the totality of the 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.

Congress and the courts have declared that members of minority groups are entitled to "an equal opportunity to elect representatives of their choice." What does that high-sounding phrase reallyWest Page 229mean? Who counts as a "representative of their choice," and when are opportunities truly equal? If the ballots of white Democrats in an overwhelmingly Republican county "count," if Democrats who are never able to elect "candidates of their choice" are nevertheless fully enfranchised, what about black Democrats when no black ever wins? Are blacks and Hispanics ever properly represented by whites? Are black candidates who run as part of a white-dominated ticket consequently "white" candidates? Do socioeconomic disparities between whites and blacks mean that members of the two groups stand on unequal political footing, and that compensation in the form of special protection in the electoral process is appropriate?

B.To Make Out A Section 2 Violation, MustPlaintiffs Prove Both Of The Following: That,As A Result Of The 1981 District Lines,Blacks (1) Have Less Opportunity ToParticipate In The Political Processes; and(2) Have Less Opportunity to ElectRepresentatives of their Choice?

Moreover, the argument fails purely as a logical and linguistic matter. Even if plaintiffs failed to show less opportunity to participate in the political process, a showing that they have less opportunityWest Page 231to elect candidates of their choice would suffice to establish their claim. The right protected is the aggregate of these opportunities — the right to effective participation in the political system. . . .

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 political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements,West Page 232anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority;

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 the minority group in the state or political subdivision bear the effects 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;

Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are;

whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;

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.

In making that political judgment, Congress necessarily took into account and rejected as unfounded, or assumed as outweighed, several risks to fundamental political values that opponents of the amendment urged in committee deliberations and floor debate. Among these were the risk that the judicial remedy might actually be at odds with the judgment of significant elements in the racial minority; the risk that creating "safe" black-majority single-member districts would perpetuate racial ghettos and racial polarization in voting behavior; the risk that reliance upon the judicial remedy would supplant the normal, more healthy processes of acquiring political power by registration, voting and coalition building; and the fundamental risk that the recognition of "group voting rights" and the imposing of affirmative obligation upon government to secure those rights by race-conscious electoral mechanisms was alien to the American political tradition.

What had actually been asked of this Court, he said, was nothing less than "to choose among competing bases of representation — ultimately, really, among competing theories of political philosophy."

Justice Frankfurter was convinced that courts and politics did not mix, and that political choices (beyond the competence of judges) were an inevitable component of every apportionment decision. That is, themeansby which political influence was distributed inescapably suggested anend.To choose a particular distributive principle was to adopt a particular definition of democratic government. In every apportionment rule there lurked an implicit theory of representation, and no case of alleged malapportionment could be judged without such a theoretical framework. That is, the means not only suggested an end, but without a carefully delineated end, appropriate means remained uncertain. Lacking clearly articulated political values, Frankfurter asked, how could courts judge the equity of particular contested district lines? Without settled standards, how could judges weigh such competing considerations as the desirability of population equality, the value of an experienced incumbent, the need to honor community integrity or to provide a strong rural voice despite a sparse rural population?

The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke theFourteenthAmendment rather than Art. IV, § 4, . . .

Art. IV, § 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends "on how he [the plaintiff] casts his action," . . . whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause . . . the Court had no difficulty in dispelling any mere confusion resulting from forms of expression, and considering the substance of things. . . ."

Here appellants attack "the State as a State," precisely as it was perceived to be attacked in thePacific States[TelephoneWest Page 236Telegraph Co. v. Oregon] case, id. [223 U.S. 118], at 150, 32 S.Ct. [224] at 231 [56 L.Ed. 377(1912)]. Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that a "minority now rules in Tennessee," that the apportionment statute results in a "distortion of the constitutional system," that the General Assembly is no longer "a body representative of the people of the State of Tennessee," all "contrary to the basic principle of representative government. . . ." Accepting appellants' own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate.Massachusetts v. Mellon[262 U.S. 447,485,43 S.Ct. 597,600,67 L.Ed. 1078(1923)], supra.

In fact it seems likely that this unfortunate doctrine — that all Republican Form cases are necessarily cases involving political questions — will wholly pass from the scene one of these days. Friend and foe alike have come to recognize the obvious, that although the various state voting rights cases decided by the Warren and Burger Courts have been styled as equal protection decisions, they cannot comfortably be understood without a strong injection of the view that the right to vote in state elections is a rather special constitutional prerogative, a view that cannot be teased out of the language of equal protection alone and in textual terms is most naturally assignable to the Republican Form Clause.

We further find that the history of discrimination has adversely affected opportunities for black citizens in health, education and employment. The hangover from this history necessarily inhibits full participation in the political process.

This is also a "given" for the state of Arkansas and Phillips County and probably for every other political subdivision in the nation. But the effects are more devastating in Phillips County than in other places because of the dire economic circumstances that have developed in that area of the state over the past decade. Although the court is finding that blacks still bear the effects of discrimination in such areas as education, employment, and health, nevertheless, the Court also finds that those effects should not hinder their ability to participate effectively and equally in the political process. The Court also notes that typical factor # 5 refers to the "ability to participate" rather than "opportunity" to participate as stated in the statute. The statutory language, not being ambiguous, controls. The effects of discrimination referred to do not, in any legally significant way, hinder the "opportunity" or, indeed, the ability of blacks to participate effectively in the political process.

And they can demonstrate that not having a telephone or an automobile makes it more difficult and less convenient for a citizen to qualify for, and to exercise, his or her voting rights. The tricky words are "difficult" and "inconvenient." . . . . But ordinary inconveniences such as one might experience if he wished to go to the doctor's office or to the post office or the general store should not be deemed to constitute legal barriers simply because the objective is to get to the voting place. The value one places on one's rights to vote will be reflected in the difficulties and inconveniences overcome in exercising that right.

In evaluating a Section 2 claim, the Court must first determine whether three preconditions to a legally substantial impairment of plaintiffs' ability to elect the candidates of their choice have been met. First, the claimant minority must establish that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Second, the plaintiffs must show that the group to which they belong is politically cohesive.Thornburg,478 U.S. at 50-51,106 S.Ct. at 2766-67. Third, the minority voters must show that the "majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as a minority candidate running unopposed . . . to defeat the minority's preferred candidate."Id.at 51,106 S.Ct. at 2766. The latter two factors can be shown by proving that voting in the jurisdiction is highly racially polarized.

Ibid. Accord, Smith,

687 F. Supp. at 1314-1315.

The inquiry into the existence of vote dilution caused by submergence in a multimember district is district specific. When considering several separate vote dilution claims in a single case, courts must notrelyon data aggregated from all the challenged districts in concluding that racially polarized voting exists in each district.

For purposes of § 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates.

It is thedifferencebetween the choices made by blacks and whites — not the reasons for that difference — that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that under the "results test" of § 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters.

In amending § 2, Congress rejected the requirement announced by this Court inBolden, supra,that § 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a § 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How.L.J. 495 (1985).

The Senate Report states that one reason the Senate Committee abandoned the intent test was that "the Committee . . . heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities." S.Rep., at 36, U.S. Code Cong. Admin.News 1982, p. 214. The Committee found the testimony of Dr. Arthur S. Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified:

[Under an intent test] [l]itigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquires can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief.Ibid.(footnote omitted).

The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement.

The new intent test would be equally, if not more, burdensome. In order to prove that aspecific factor— racial hostility —determinedwhite voters' ballots, it would be necessary to demonstrate that other potentially relevantcausalfactors,such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior.

Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under § 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail,supra,requiring proof that racial considerations actuallycausedvoter behavior will result — contrary to congressional intent — in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a § 2 violation. The Senate Report's remark concerning the old intent test thus is pertinent to the new test: The requirement that a "court . . . make a separate . . . finding of intent, after accepting the proof of the factors involved in theWhite. [v. Regester,412 U.S. 755,93 S.Ct. 2332,37 L.Ed.2d 314(1973)] analysis . . . [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections."Id.,at 37, U.S. Code Cong. Admin. News 1982, p. 215. We therefore decline to adopt such a requirement.

Not everyone was thrilled with Doug Wilder's victory in the Virginia governor's race.

For starters, of course, there were the people who supported his opponent, Republican Marshall Coleman. The media grumbled about the narrowness of the contest. Wilder was supposed to win comfortably, or so the polls said, and when it didn't happen that way, when the election went down to the last precinct, the press and pundits were stunned. They were shocked,shockedto find that some of Virginia's white voters are still racially prejudiced and, what's more, anxious to conceal it from pollsters. And some blacks, having been weaned on liberal politics and seismic oratory, were disappointed that Wilder ran such a mainstream campaign with so little emphasis on race.

It was almost enough to obscure the plain, breathtaking fact that a black man, the grandson of slaves, had won a statewide election in Virginia just a generation after Jim Crow.

But some folks got the message right away. On the very morning after the election, Atlanta Mayor Andrew Young, a candidate for governor for next year's contest in Georgia, called a news conference and said he was rethinking his opposition to the death penalty. It was no coincidence, but a page torn directly out of Wilder's playbook. Like Wilder, who reversed himself over the years and became an advocate of capital punishment, Young is turning away from his liberal past and driving hard to the middle ground. It's the way black candidates will be running into the 1990s, and probably into the next century, and it's worth a look.

Wilder's style and strategy could be called "color-deaf." The usual term, colorblind, doesn't really apply, because voters are always going to notice a candidate's race. Granted, a black candidate does have to pay some attention to his appearance. Dashikis and Afros are out — but then, so are Nehru jackets and muttonchops for white men. A lot is made of Wilder's appearance in photographs from the early seventies, when he wore an Afro and loud shirts, but every man in America, black or white, looked like hell in the early seventies. What black candidates have to avoid is wearing thepoliticsof the seventies. When Wilder won election to the Virginia Senate 20 years ago, his first issue was a strident attack on the state song, "Carry Me Back to Old Virginny." Since then he's simmered down. In 1984, a seeker of conciliation, he stitched together a compromise that made a state holiday of the birthdays of Robert E. Lee, Stonewall Jackson, and Martin Luther King, Jr. But before someone blurts out "Uncle Tom," let's be plain that the black candidate of the nineties doesn't have to shuffle and grin. He must be moderate to conservative, just as a white candidate must be. The most interesting thing about the Virginia race was its clear signal that most whites, even if they're not especially sympathetic to blacks — even if they're still openly bigoted — do not wish to turn back the clock. No one has happy memories of the fire hoses and freedom rides. Wilder's most effective TV spot charged that his opponent wanted to "turn back the clock." The subject was abortion rights, but the subliminal message was race, and the appeal was to maintain the status quo. To succeed, a black candidate doesn't have to beanti-civil rights, he simply has to bepost-civil rights. It's worth noting that Wilder didn't send an invitation to Jesse Jackson, who would've loved sharing the election-night glory but instead ended up with Larry King on CNN.

We know, and have found in this opinion, how many such districts can be created, and we also know that their lines can be drawn so as to make them reasonably compact and contiguous. There is, therefore, a sort of presumption that any plan adopted should contain that number of majority-black districts.

The 1981 apportionment plan created only five legislative positions, one in the Senate and four in the house, representing districts in which a majority of the voting-age population was black. We find that a total of 16 such districts, three in the Senate and 13 in the House, could have been created, and that these districts would have been reasonably contiguous and compact. We further find that voting in the areas of the State in question is markedly polarized by race. Both black and white voters usually prefer candidates of their own race.

We also have little difficulty in finding that voting patterns are highly racially polarized, in the sense that black and white voters prefer different candidates with a high degree of frequency. Furthermore, the white voting majority isWest Page 250powerful enough, and consistent enough, to defeat black voters' preferences for black candidates almost without exception.

It is true here, as it was inSmith,see687 F. Supp. at 1317, that there is racially polarized voting in races for the Arkansas State Legislature, that black voters usually vote cohesively, as a unit, and that white voters have the strength under the present plan of apportionment (except in majority-black districts) to enable them to frustrate the choices made by black voters.

It does not hold that unlawful dilution is impossible when a multi-member body's members are chosen from single-member districts that have been drawn in such a way as to split a certain class of voters among different districts.

If lines are drawn so as to avoid majority-black single-member districts, and reasonably compact and contiguous majority-black districts could have been drawn, and if racial cohesiveness in voting is so great that, as a practical matter, black voters' preferences for black candidates are frustrated by this system of apportionment, the outlines of a Section 2 theory are made out.

And, as indicated above, when the voting age population of blacks approaches equality with the voting age population of whites and the evidence shows, in addition, a consistent pattern of "crossover" votes in actual elections, which,West Page 251although small percentagewise, are sufficient to "bridge the gap," the basic assumption used to challenge runoff provisions appears to be undermined.

And, in general, a white bloc vote that normally will defeat thecombinedstrength ofminoritysupportplus white "crossover" votesrises to the level of legally significant white bloc voting.

The case,Campbell, et al. v. Lee County ElectionCommittee,(No. H-C-86-48), which is still before the court, involved a plan of reapportionment to produce equal single member districts. The black plaintiffs argued that they would need a voting age population of 60 percent or more in order to have a "safe" black district and any real opportunity of electing the representatives of their choice. In the absence of demonstrated barriers to full political participation by blacks in the electoral process, the court characterized such an argument as a racial slur against blacks.

The relevance of this list is confirmed by the Supreme Court's opinion inThornburg,478 U.S. at 44-45[106 S.Ct. at 2763-64].

The Senate report specifies factors which typicallymay berelevant to a Section 2 claim.

While the enumerated factorswill often bepertinentto certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered.Id.,at 29-30. Furthermore, the Senate Committee observed that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other."

Some of theZimmerfactors — those which focus on electoral structure — simply have no relation to single-member districting. The remaining factors are important to establish the social context, but,since they are independent of any particulardistricting configuration, they can provide noinsight into the relative merits of variousdistricting plans.. . . More generally, in cases of racial gerrymandering, where the denial of access is unlikely to be complete, theZimmerfactors are unable to distinguish between alternative districting plans. Use of theZimmerfactors is simply not an effective way to evaluate claims of racial gerrymandering. (Emphasis added)

And our own experience as citizens of this State, which we are not required to lay aside, strongly confirms this conclusion.

I have tried here to suggest a way of thinking about the issues raised by section 2 litigation. They do not lend themselves to resolution by too great a preoccupation with the Senate checklist. I argued . . . that, with theZimmerfactors to guide them, the constitutional decisions assumed "an orderliness and rationality that disguised their subjectivity." But the subjectivity derived from the arbitrariness of the listed factors themselves, which, in turn, resulted from an effort to measure an undefined phenomenon. What is justice in the electoral sphere? these cases asked. What is the normal relation between racial and ethnic groups in the political sphere? When are the "opportunities and occasions of power" properly shared? The inadequacy of the courts' decisions reflected the magnitudes of the task before them.

The Senate's list is no improvement over the one provided byZimmer.It obfuscates rather than clarifies; simplifies what cannot be simplified; makes orderly a process that is inherently disorderly.

And that inescapable element of subjectivity in section 2 decisions suggests the wisdom of judicial restraint in upholding plaintiffs' claims. As of 1986, however, such restraint has been in short supply. "No objective observer of the political process in the South can argue that it is less open to minorities today," Katherine Butler has noted, ". . . yet in the past plaintiffs never enjoyed the degree of success evidenced by recent decisions." Such unprecedented success would be appropriate, of course, if past legal standards had been found wanting. It is clear, however, that in amending section 2 Congress did not expect substantial deviation from what the Senate Judiciary Committee report described as an extensive, reliable, and reassuring track record." The "results" test, as the report depicted it, was nothing "radically new" or "untested"; it was "well-known to federal judges" and not "easy." It was easier, of course than an intent test (defined as demanding evidence of a "smoking gun"), but the decision inMobile,requiring proof of discriminatory intent, had virtually halted vote dilution suits, advocates of the amendment claimed. "We are acting to restore the opportunity for further progress," the report stated. The intent was to restore normal traffic — to repair a light stuck on red.

What Congress envisioned is not what happened. In the first four years in the life of the amended provision, the successWest Page 255rate of plaintiffs in section 2 cases exceeded 90 percent.

Indeed, the plaintiffs' victories in court only hint at the magnitude of that success. An uncounted but unquestionably large number of suits are settled out of court by jurisdictions reluctant to commit scarce funds to an almost hopeless cause or to take a stand that might be interpreted as "anti-black."

Those in the civil rights community who fought hard for the 1982 amendments are justly elated by the results. Not only at-large systems, but also multi-member and single-member districting plans that fragment black and Hispanic residential concentrations are "falling like dominoes." Perhaps their demise is nothing to mourn.But ithas occurred not as a consequence of consideredlegislative judgment that such electoral proceduresviolate fundamental rights or entail unacceptablecosts as a consequence of their disparate racialimpact; rather, this change has resulted primarilyfrom threatened legal action by attorneys whosearguments have been given credibility by confusedcourts — courts that have neglected the statute'sfocus on fair process and come close to embracingthe principle of group rights to proportionateofficeholding.

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;

A number of witnesses testified to the difficulties experienced by blacks in electoral politics in various of the areas affected by this litigation. Polling places have been moved on short notice; deputy voting registrars have, with isolated exceptions, been appointed only as a result of litigation; efforts have been made to intimidate black candidates. It is not necessary to decide at this point which (if any) of these barriers were motivated by invidious discrimination. It is sufficient for present purposes to note that these and similar practices clearly result in discouraging black participation in elections. Partly this is due to a higher level of illiteracy, poverty, economic dependence, even timidity, among the black population. And while defendants can hardly be blamed for creating these conditions, it is an inescapable fact that they are in large part the legacy of a history of discrimination, much of it governmental, beginning with the constitutionally sanctioned institution of human slavery.

The Court finds that the black citizens of Phillips County do not still face harrassment or intimidation in registering, or in voting, or in running for office. The location of polling places is always a difficult problem. Blacks on the average, being poorer and having less access to transportation, may be said to experience more difficulty on a statistical basis in getting to the polls. Of course, poor whites face the same problem. The Court does not find that the location of the polls as described in the evidence constitutes a significant barrier to black or white participation given even minimal motivation to so participate.

The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.

Many more whites than blacks are high-school graduates, and many blacks were educated in schools that were both separate (by compulsion of law) and unequal. There is a tremendous amount of white poverty, especially in the Delta, but poverty among blacks is more nearly the rule than the exception. Blacks tend to have fewer telephones and fewer cars. If a person has no phone, cannot read, and does not own a car, the ability to do almost everything in the modern world, including vote, is severely curtailed.

The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority.

There is a requirement that candidates for the State Legislature get a majority of the vote in the primary to obtain a party nomination. And this majority-vote requirement, in four separate recent instances in which black candidates either won office by a plurality or were threatening to win, has been expanded to cover elections (e.g.,for municipal judge) to which it has traditionally not been applied. * * * For present purposes we simply note the existence of a majority-vote requirement affecting races for theWest Page 258General Assembly and many other public offices in Arkansas.

[I]ts effect depends on the number of candidates running and on voter response, and both that number and voter behavior may change with an alteration in procedures. In a single-member district in which blacks are in the minority (the circumstances that were the focus of Jackson's concern), a black candidate who leads the first primary with 40 percent of the vote may lose in the subsequent runoff. But without the runoff, there might not have been that 40 percent support to begin with. As Harold Stanley notes, without a majority-vote rule the field of candidates is likely to shrink; certainly where the white community is determined to keep blacks out of office, preelection bargaining to settle on one white candidate is likely to occur if the first election is the decisive one. In fact, if one assumes that such preelection bargaining will not occur, then black candidates may actually be in trouble without a second election. In Yazoo County, Mississippi, for instance, four blacks and one white ran for a county supervisor seat in a beat (district) that was 75 percent black; the black vote was thus splintered, and the white might have won without a subsequent runoff.

Even if the number of candidates remains large, voters will cast their ballots differently depending on how many chances they expect to have to register their choice. As Katharine Butler has put it: "The majority [vote] requirement allows a voter 'for' his candidate, without much thought about the opponents. The voter may realize that his first choice is a long shot, but will support the candidate anyway, knowing he will get another chance to affect the 'real' election. If the first election is the only election, the same voter may select his second or even third choice . . . hoping to . . . defeat a candidate he hopes will not be elected." This strategy may fail, of course, but if the candidate a voter dislikes is a black Democrat, in the general election the voter can usually cross party lines and vote for a white Republican. A change in procedure that appears good for blacks may thus benefit Republicans.

Where whites are determined to stop the election of a black, plurality rules will not help. On the other hand, where whites are not thus determined, a majority-vote rule may aid a black or a white moderate. In the primary, moderate white votes may be distributed among several candidates. But if the choice in the second round is between a conservative white and a moderate — black or white — a biracial coalition may form to defeat the conservative. Without a majority-vote requirement, that biracial coalition would perhaps have formed for the first and only election. This is not to assert the superiority of a majority-vote requirement over plurality elections, but only to indicate the uncertain value and unpredictable effect of either.

Whether political campaigns have been characterized by overt or subtle racial appeals;

Racial Appeals in Campaigns.Racial appeals, some quite offensive, are common in campaigns in which a white candidate is running against a black candidate. Sometimes simply informing the voters that one's opponent is black seems to be enough to do the trick. Some white candidates have bought newspaper ads or distributed political leaflets containing their black opponent's picture. Sometimes references to race are more explicit. In the Mayor's race in Pine Bluff in 1975, for example, a supporter of a white candidate publicly warned that if white voters didn't turn out, there would be a black mayor. Sometimes coarser words are spoken.

To this day, the races live separately, he said, they go to church separately, and they even die separately. And as late asWest Page 260October 2 of this year, the City of Marianna was maintaining, at public expense, a cemetery for whites only.

In their Pre-Trial Brief, plaintiffs state: "While recent campaigns in Phillips County have not been characterized by overt racial appeals, plaintiffs will present evidence of the central role race plays in Phillips County politics." The Court does not find evidence of significant, overt or subtle racial appeals, but accepts that those participating in the electoral process in Phillips County in recent years have more or less come to accept race as playing a central role in that county's politics.

The Senate report, however, lists only one such roadblock: "overt or subtle racial appeals." The reference, of course, is to such appeals on the part of whites in majority-white jurisdictions; the message from blacks to vote black is never considered a forbidden racial appeal.

What is a "subtle" racial appeal? Subtlety in campaigns risks political ineffectiveness; only overt appeals are reliable heard. The phrase would seem to invite courts to condemn messages the voters do not get — to condemn indiscriminately all discussions of issues connected to race. Plaintiffs in the Norfolk case sought to persuade the judge that news accounts of the 1982 city council campaigns mentioning both the candidates' race and their references to busing were invidious appeals for white solidarity. But the court held that the candidates had been racially identified not by whites but by blacks, who were alleging black under-representation, and furthermore that busing was a legitimate topic for public debate. Comments on an issue with a racial dimension do not necessarily constitute racial appeals — that is, calculated efforts to deny black candidates white support.

Evidence that political campaigns — whether on behalf of candidates or of propositions on the ballot — have been "characterized by overt or of subtle racial appeals" is certainly pertinent to the question of equal electoral opportunity in a jurisdiction. But that evidence must involve more than one campaign. The Senate report refers explicitly to "campaigns" in the plural. In addition, the appeal in question must be truly racial. When an "expert" for the plaintiffs in North Carolina litigation cited as examples of racial slurs slogans such as "Eddie Knox will serve all the people of Charlotte" and "Knox can unify this city," he certainly seemed to be reaching too far. And even though the Senate report does not mention the need to demonstrateWest Page 261that racial appeals had a significant influence on election results, this surely is a key question.The American political scene is filledwith fringe candidates peddling lines to which noone listens, and in many communities racistsoperate on the fringe.

The extent to which members of the minority group have been elected to public office in the jurisdiction;

Only in majority-black districts have black candidates been elected to the Arkansas General Assembly. All other black candidates have been defeated. It was not until 1972 that any blacks were elected to the Legislature in this century. Four black members, three in the House and one in the Senate, were elected at that time. Today there are only six black members, and one of them owes his seat to this Court's decree inSmith.No black person has ever won statewide office by election. And in all of the 75 counties of Arkansas, no black person has ever been elected, since Reconstruction, to any county-wide constitutional office.

The end of a campaign comes on election day. The Senate report directs courts to look at who has won, who has lost, and how blacks, Hispanics, and whites have cast their ballots. A crude count of minorities in office does not indicate whether black and Hispanic voters have had the "opportunity . . . to elect representatives of their choice," nor whether they have actually succeeded in doing so. Section 2, referring only to "representatives of their choice," does not equate minority representation with the election of blacks or Hispanics to office; it clearly allows for the possibility that such representatives could be whites elected with strong minority support. Moreover, a tally of those in office (whether white or black) only marks the starting point for the inquiry into opportunity. Voting patterns must be analyzed to determine not only the level of support for competing candidates, but the reasonswhyvoters have cast their ballots as they have. A candidate preferred by black voters may have been defeated in spite of adequate opportunity for black voters to organize for common ends. Success is not the measure of opportunity, and opportunity is the section 2 question.

Some contend that the level of opportunity may be gauged simply by looking at who has voted for whom. That whites and blacks prefer different candidates is seen as decisive evidence of electoral exclusion. Thus inThornburg v. Gingles(1986), the only section 2 case to reach the Supreme Court to date, Justice Brennan argued: "It is the difference between the choices made by blacks and whites — not the reasons for that difference — that results in blacks having less opportunity than whites to elect their preferred representatives . . . Only the correlation between race of voters and selection of certain candidates, not the causes of the correlation, matters.

Justice Brennan's view was that of only a minority on the Court, and it is an odd definition of opportunity. Black voters clearly lack an equal chance to elect representatives of their choice when whatever candidate they choose — simply by virtue of having been their choice — can almost never garner enough white votes to win, and when the usual rules of politics that permit shifting coalitions in response to changing issues do not seem to apply to them. In such circumstances, their race has left them politically isolated — without potential allies in electoral contests. But unless black voters in a majority-white jurisdiction are entitled to representation, the absence of white support for black candidates does not per seWest Page 262constitute a denial of electoral opportunity. And such a right to representation was explicitly rejected both by the Supreme Court in the constitutional decisions resurrected by section 2 and by Congress in amending the act.

Justice Brennan distorts the meaning of electoral opportunity while simultaneously showing excessive faith in statistical analyses of voting patterns.

7. The Strength or Tenuousness of Policies Underlying the Plan of Apportionment.

VII. THE MAJORITY'S DECISION TO EXCLUDE PULASKI COUNTY DISTRICTS: AN ANALYSIS.

We recognize that many political scientists disagree with this view, and that the opinions of two elected officials do not necessarily represent the views of all of their constituents, let alone the views of black citizens in other parts of the County. We note, however, the testimony of Governor White in the present case that no black citizen of Pulaski Countyasked forsingle-member districts.

After a careful consideration of all the factors, we resolve this close question in favor of the defendants. It would be unfair to fault the Board of Apportionment foracceding to the expressedwishes of the only two black legislators fromPulaski County who appeared before it.

VIII. DID PLAINTIFFS ESTABLISH ONE OR MORE SECTION 2 VIOLATIONS?

But the unfinished business of the reapportionment cases remains unfinished; the courts, Congress, attorneys, and scholars are still fumbling to define the vote at "full value without dilution or discount."

The question is unresolved, but the record is now cluttered with unsatisfactory, often inconsistent, judicial and administrative decisions, and, from Congress and the press, careless rhetoric.In theory, no group is entitledby law to proportional representation on alegislative body.Yet both lower courts and the Department of Justice — encouraged by mixed signals from the Supreme Court — rest decisions involving minority voting rights on thatunacknowledged standard.A maximum number of safe minority districts — or close to it — has become the rule in an electoral landscape from which at-large voting is being systematically cleared.

Republicans have an additional reason for overlooking racial gerrymandering that benefits black candidates: what is good for black candidates is often good for Republicans. As blacks are drained from white districts, the latter become fertile ground for conservative candidates. In Jefferson County, Alabama, an out-of-court settlement in 1985 replaced an at-large system — under which only whites had been elected — with five single-member districts. Two safe black districts were created, leaving three that were almost completely white, and the Republicans benefited from the change. Unless unopposed, Democrats could not win in districts that contained few blacks, and in 1986 two Democratic incumbents lost.

The Jefferson County story was not unique. As a consequence of a compromise reached by South Carolina and the Department of Justice (joined by the NAACP), the state increased the proportion of black voters in two senatorial districts. In the 1984 election, in four districts from which blacks had been drained, conservative Republicans replaced incumbent liberal Democrats. InGingles,the North Carolina case, state Republican leaders openly acknowledged the "happy coincidence" between the interests of blacks and Republicans. Indeed, they had much to celebrate. FollowingWest Page 279the district court decision, the North Carolina general assembly created thirty-one single-member districts out of eight that had been multimember. In 1984 the new districting helped Republicans double their share of state legislative seats. Ironically, it was the Democrats — usually quick to charge the Republicans with lax civil rights administration — who were unhappy. Safe black districts, they said, isolate black voters and deprive liberal white Democrats of crucial black support.

[Section 2] promises "political processes . . . equally open to participation" without regard to race, color, or language minority status. The breadth of the promise is actually somewhat misleading. Income and educational disparities alone may tip the balance of power in electoral contests to the side of whites. The effort to compensate for every potential source of inequality, however, can only lead to a covert system of reserved seats such as those India provides for its "scheduled castes." Congress settled, it might be said, for imperfect equality, lest inequality in a different form result.

It might be said that blacks ineveryjurisdiction benefit from having their own in office. However, that is an argument not for federal intervention but for black political organization. "The extension of trust or 'friendship' beyond the family and of citizenship beyond race, ethnicity, and religion, is a significant political achievement," Michael Walzer has written. "I think," he adds, "we will want . . . to limit the ways in which group membership counts as a qualification for office, much as we limit the ways in which blood relationship counts, and for similar reasons." In amending section 2, Congress unequivocally and wisely rejected the notion of group entitlement to even one legislative seat.

I have argued that the Senate report and the testimony of Armand Derfner, a key civil rights witness at the 1982 hearings, properly focused the section 2 inquiry. Nevertheless, an implied trust in the political process left substantially to its own devices is not shared by most spokesmen for the civil rights organizations. They see America as too racially divided to sustain a political life that transcends color. They believe that minority representation means minority officeholding, that whites cannot represent blacks, and that blacks elected with white support have questionable credentials. In "Hands That Picked Cotton," a defeated black candidate says of his victorious black opponent: "He got all the white votes . . . Doc is not classified as black to me. You black when black folks elect you. White folks don't vote for black folks."

This is too bleak a picture, too hard a line, and it confuses the issues. The "two societies" argument rests on the fact of severe and continuing economic and other problems in the black community to which whites appear largely indifferent. But the appalling level of black teenage pregnancy is not an argument for creating a maximum number of 65 percent black districts. Racially mixed dinner parties may still be rare, but a mix of blacks, browns, and whites in politics is not. "To start and stop analyses on the assumption that race is all that matters," Harold Stanley has written, "distorts rather than delivers an understanding of southern politics." The same can be said about northern politics. Not all whites are racists (whether in Boston or in Selma, Alabama), and whites vote for whites for reasons other than skin color. Personalities and issues divide the black community as well as the white. Most blacks whoWest Page 280vote for whites are neither intimidated nor misguided.

If a community of citizens is an unattainable ideal, and if blacks and Hispanics are represented only by one of their own, then aggressive federal action to restructure methods of voting to promote minority officeholding is appropriate. But if the logic of politics works for inclusion (once basic enfranchisement has been assured), then a lighter touch, a more hesitant intervention, is possible.

Perhaps most important [cost attached to maximizing minority officeholding] is the danger that categorizing individuals for political purposes along lines of race and sanctioning group membership as a qualification for office may inhibit political integration. As James Blumstein argued at the 1982 Senate hearings, such categorization amounts to a racial "piece-of-the-action approach," perhaps freezing rather than thawing the previous system of racial politics. The heightened sense of group membership works against that of common citizenship. And as Donald Horowitz pointed out at those same hearings, ethnic boundaries, by diminishing the sense of common citizenship, may "ultimately smother democratic choice and threaten democratic institutions."

The pressure for such interracial, inter-ethnic coalitions lessens with the existence of single-member districts drawn to maximize minority officeholding. Political necessity brings groups together. The majority-white county, city, or district in which whites vote as a solid bloc against any minority candidate is now unusual. Especially in districts or localities with a substantial minority population, divisions among white voters send white candidates scurrying for those important black votes. The process not only enhances political integration but also may serve to heighten minority electoral influence. "For thirty years, the minority vote was the deciding vote in the [at-large] Anniston [Alabama] elections," a black former city councilman noted. "Now it has gerrymandered itself into a corner where it can't wield any power at all," he continued. In city-wide elections, or in cities in which no districts are safe for either blacks or whites, blacks are often the swing vote in every election contest. A ward plan may sacrifice influence for guaranteed seats.

Candidates who have joined hands in a victorious biracial coalition will tend to stick together on a governing body, since the next election is never far off. But when whites on a city council or other legislative body owe nothing to black support, blacks in the minority may find themselves consistently outvoted and thus isolated. "I am bitterly opposed to any effort to resegregate me . . .," a black judge in Norfolk, Virginia, testified at a voting rights trial. "How does it help the black community to limit itself to two predominantly black wards and be of no consequence in the remainder of the community? Political power is not merely symbolic."

To emphasize the dark side of current affirmative action policy is too pessimistic a note on which to conclude. As President Lyndon Johnson stated in 1965, the Voting Rights Act flowed from a "clear and simple wrong." At that time no one imagined that the statute would so quickly and effectively right that wrong. Eighteen years later, giving a sermon in Boston, Andrew Young recalled his fear when driving through Georgia in the early 1960s. "It was the worst place in the world," he said. "If someone had told me then that I would be a congressman in Georgia, an ambassador to the United Nations, and a mayor of Atlanta, what I would have replied cannot be said in a church." Particularly in the South, the Voting Rights Act has radically altered politics. "Southern politics today is like the sprawling shopping mall that rises on a former tobacco field," one observer has noted. "The old lay of the land is still there, but the transformation has left it barely recognizable."

[A]s a matter of law, that the undisputed population figures here are not such as will permit the plaintiffs to challenge the primary runoff law of the state of Arkansas as a violation of Section 2 of the 1965 Voting Rights Act, as amended.

Section 2 is not restricted to numerical minorities but is violated whenever the voting strength of a traditionally disadvantaged racial group is diluted. "[H]istorically disadvantaged minorities require more than a simply majority in a voting district in order to have . . . a practical opportunity to elect candidates of their choice."Smith v. Clinton,687 F. Supp. 1361,1362, (E.D. Ark.),aff'd mem.[ ___ U.S. ___ ],109 S.Ct. 548[102 L.Ed.2d 576] (1988). We conclude, as a matter of law, that a numerical analysis of the voting age population in a particular geographic area does not automatically preclude application of section 2 to a challenged voting practice used in that area.

[A]t every election studied by Whitfield's expert, blacks turned out at a lower rate than whites. Thus, although theoretically a black candidate may be able to muster a majority of the votes in Phillips County, the practical reality is that there simply are not enough blacks voting in each election to allow a victory for a black candidate.

The district court reviewed the evidence presented by Whitfield as it related to the factors set forth in the Senate Report. For five of the seven factors, the court made factual findings which favored the conclusion that section 2 had been violated in Phillips County.

Contrary to the district court's opinion, we conclude that the factors set forth by the Senate Report are to be used primarily as proof of a section 2 violation under the results test.See id.at 28, 1982 U.S.Cong. Admin. News at 206.

Although the Court is finding that blacks still bear the effects of discrimination in such areas as education, employment, and health, nevertheless, the Court also finds that those effects should not hinder their ability to participate effectively and equally in the political process. The Court also notes that typical factor # 5 refers to the "ability to participate" rather than "opportunity" to participate as stated in the statute. The statutory language, not being ambiguous, controls. The effects of discrimination referred to do not, in any legally significant way, hinder the "opportunity" or, indeed, the ability of blacks to participate effectively in the political process.

There is nothing in the evidence which supports the contention that the plaintiffs here would have been the nominees of the Democratic Party in the general election had they run in a single, plurality-win primary. Had there been a single primary, plurality-win law in effect, and this was known to all before the fact, one can only speculate as to what would have happened.

When there is no runoff provision, the political dynamics are entirely different. As further explained by the district court inWhitfield:

It goes without saying that runoffs are of no importance if only two candidates are in the race. Putting aside the remote possibility of a tie vote, in that situation,West Page 283the winner must gain majority support. So a plurality election system, where racial voting and racial polarization exist, will result in attempts to limit the number of candidates on one's own side and, at the same time, to attempt to increase the number of candidates on the opposition side.

How thin a reed are plaintiffs relying on! Rationality is not involved. Only happenstance. The idea is: Maybe the black community can agree on one candidate and somehow prevent other black candidates from filing while the white community does not respond in kind and therefore ends up with two or more white candidates in the race. This is not a political theory or philosophy; it is gamesmanship, political Russian roulette; and it is based solely on race. Note Professor Stanley's comments on the studies of Bradley Canon,

Ending the runoff accomplishes little, if political forces then tend to restrict contests to two candidates. Experience with single primary and runoff systems in the South and the Border South indicates that runoffs encourage multiple candidacies in the first primary, but that single primary systems work to limit the number of candidacies to two. This difference has political, rather than racial, roots — although racial considerations can reinforce the tendencies. Bradley Canon examined gubernatorial primaries, runoffs, and nominations in 16 southern and border-south states between 1932 and 1977: He found that, in the 10 states with runoffs, the top two candidates averaged 67 percent of the first primary vote; but that, in 6 states with single primaries, the top two candidates averaged 93 percent of the vote. In a runoff system, several candidates can enter the first primary and strive to qualify for the runoff; should they fail in that quest, they can productively bargain with the first- or second-place finisher to deliver support in the runoff. Under a single primary system, such bargaining takes place before the primary, as interested parties seek to line up behind a winner. The single primary system's tendency to limit contests to two serious candidates — in conjunction with the pressures provided by racial polarization — make it likely that a black candidate for the nomination would face a single white candidate. This matchup would produce defeat for the black candidate in election districts that are not winnable by a black in a runoff.

First, the plaintiffs have proved that the majority vote requirement has impaired their ability to elect a candidate because blacks of voting age, although they are numerous in Phillips County, fail to turn out at the polls in numbers sufficient to meet a majority vote requirement. Second, the plaintiffs have established, through proof of Senate factors, that the political climate of Phillips County has caused the low voter participation, because "[o]nce lower socio-economic status of blacks has been shown, there is no need to show the causal link of this lower status on political participation."United States v. Dallas CountyComm'n,739 F.2d 1529,1537(11th Cir. 1984).

Arkansas election law does not preclude cross-party voting in runoff (general) primary elections. It is factually uncontested that virtually no white voters support black candidates in Phillips County.

Thus, the Phillips County runoff system permits white Republicans, if they have a mind to do so, to, at least in limited circumstances, support a white Democrat in a runoff primary and to further dilute black voting strength. This cross-over factor distinguishes and attenuates the holding inButts v. City of New York,779 F.2d 141(2d Cir. 1985) sinceButtsclearly dealt with a closed (no cross-over) runoff primary. While we subscribe to Chief Judge Oakes' panel dissent, which opinion fully supports our results, we believe that the precedential value of the majority opinion inButtsis erased when the cross-over component is added to the factual mix.