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The Interaction of Policy and Law: How the Courts Came to Treat Annexations under the Voting Rights Act

Published online by Cambridge University Press:  02 September 2014

Peyton McCrary
Peyton McCrary*
Affiliation:
George Washington University
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Journal of Policy History , Volume 26 , Issue 4 , October 2014 , pp. 429 - 458
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Copyright © Donald Critchlow and Cambridge University Press 2014 

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References

NOTES

1. Gomillion v. Lightfoot, 364 U.S. 339 (1960).

2. For example, Gray v. Sanders, 372 U.S. 368, 376 (1963), Reynolds v. Sims, 377 U.S. 533, 555 (1964), and South Carolina v. Katzenbach, 383 U.S. 30, 311 (1966) characterize Gomillion as forbidding racial gerrymandering.

3. J. Morgan Kousser, “The Undermining of the First Reconstruction: Lessons for the Second,” in Minority Vote Dilution, ed. Chandler Davidson (Washington, D.C., 1984), 31–32, 35; Derfner, Armand, “Racial Discrimination and the Right to Vote,” Vanderbilt Law Review 26 (April 1973): 553Google Scholar, 580n; Steven F. Lawson, In Pursuit of Power: Southern Blacks and Electoral Politics, 1965–1982 (New York, 1985), 212–15. Much the same thing can be accomplished through the consolidation of city and county governments. City-county consolidations rarely succeed, however. See Suzanne M. Leland and Kurt Thurmaier, “Introduction,” Case Studies of City-County Consolidation: Reshaping the Local Government Landscape, ed. Leland and Thurmaier (Armonk, N.Y., 2004), 3.

4. The most important exception is a case study of the annexation controversy in Richmond, Virginia, John V. Moeser and Rutledge M. Dennis, The Politics of Annexation: Oligarchic Power in a Southern City (Cambridge, Mass., 1982), the starting point for my research on this topic. Other fine studies include David C. Temple, Merger Politics: Local Government Consolidation in Tidewater Virginia (Charlottesville, 1972); Robert Brischetto, Charles Cotrell, and R. Michael Stevens, “Conflict and Change in the Political Culture of San Antonio in the 1970s,” in The Politics of San Antonio: Community, Progress, and Power, ed. David R. Johnson et al. (Lincoln, 1983), 87–91; and Thomas, Robert D. and Murray, Richard W., “Applying the Voting Rights Act in Houston: Federal Intervention or Local Political Determination?” Publius 16 (Fall 1986): 81, 91–94.CrossRefGoogle Scholar

5. In one case, Holt v. City of Richmond, 334 F. Supp. 228 (E.D. Va. 1971), the trial court found the annexation unconstitutional, but the Fourth Circuit Court of Appeals reversed that decision: 459 F.2d 1093 (4th Cir. 1972). In a somewhat analogous circumstance, the Supreme Court did strike down two attempts by southern municipalities to create new municipal school districts (seceding, in effect, from countywide school districts) in the aftermath of court-ordered school desegregation in their counties. Wright v. City of Emporia, 407 U.S. 451 (1972), and United States v. Scotland Neck, 407 U.S. 484 (1972).

6. A partial exception is the blocking of annexations in three Alabama municipalities—Camden in Wilcox County, Valley in Chambers County, and Foley in Baldwin County—on the grounds that the annexations would violate consent decrees the municipalities had signed in multijurisdictional Section 2 litigation. See Blacksher, Jameset al., “Voting Rights in Alabama: 1982–2006,” Southern California Review of Law & Social Justice 17 (Spring 2008): 249, 260–61.Google Scholar In that litigation, Judge Myron Thompson initially enjoined further use of at-large elections in nine Alabama counties: see Dillard v. Crenshaw County, 640 F. Supp. 1347 (M.D. Ala. 1986). Ultimately 176 counties, school boards, and municipalities—among them Camden, Valley, and Foley—signed consent decrees agreeing to adopt fair election plans. Dillard v. Baldwin County Board of Education, 686 F. Supp. 1459, 1462–62 (M.D. Ala. 1988), summarizes the history of this complex litigation to that date. See McCrary, Peyton, “Minority Representation in Alabama: The Pivotal Case of Dillard v. Crenshaw County,” in Dixie Redux: Essays in Honor of Sheldon Hackney, ed. Arsenault, Raymond and Burton, Orville Vernon (Montgomery, 2013), 403–22.Google Scholar

7. See Drew Days III, “Section 5 and the Role of the Justice Department,” in Controversies in Minority Voting: The Voting Rights Act in Perspective, ed. Bernard Grofman and Chandler Davidson (Washington, D.C., 1992), 54–56; Allen v. State Board of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The responsibility to act as a surrogate for the D.C. court, 28 C.F.R. § 51.52(a) (2004), was set forth in the department’s original Section 5 guidelines. 28 C.F.R. § 51.19 (1971). Shortly after their adoption, the Supreme Court found the guidelines “wholly reasonable and consistent with the Act.” Georgia v. United States, 411 U.S. 526, 541 (1973).

8. Shelby County v. Holder, 570 U.S. ___ (2013), 133 S. Ct. 2612 (2013).

9. City of Petersburg, 354 F. Supp. 1021 (D.D.C. 1972), aff’d 410 U.S. 962 (1973); City of Richmond v. United States, 376 F. Supp. 1344 (D.D.C. 1975), rev’d 422 U.S. 358 (1975).

10. The seminal study is Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (New York, 1985). See also Edward C. Banfield and James Q. Wilson, City Politics (Cambridge, Mass., 1963), 10–17, 37–38; Karl E. and Alma F. Taeuber, Negroes in Cities: Residential Segregation and Neighborhood Change (Chicago, 1965), 151–54, 186–89; Richard Polenberg, One Nation Divisible: Class, Race, and Ethnicity in the United States Since 1938 (New York, 1980), 127–32, 152–53; Michael B. Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare (New York, 1989), 134–36; Raymond A. Mohl, “Shifting Patterns of American Urban Policy Since 1900,” in Urban Policy in Twentieth-Century America, ed. Arnold R. Hirsch and Raymond A. Mohl (New Brunswick, 1993), 12–17, 36–41.

11. David Rusk, Cities Without Suburbs (Washington, D.C., 1993).

12. Lawson, In Pursuit of Power, 212–15.

13. Peyton McCrary, Christopher Seaman, and Valelly, Richard, “The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act,” Michigan Journal of Race & Law 11 (Spring 2006): 275Google Scholar, 283, 296 (table 1); Peyton McCrary, “How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965–2005,” South Carolina Law Review 57 (Summer 206): 785, 805 n. 123.

14. The final resolution of the conflict between urban policy concerns and the requirements of voting rights law in the Richmond annexation case—the case that shaped all future preclearance decisions on annexations—was determined by a trial in district court that was never published. See Magistrate Lawrence S. Margolis, Findings of Fact and Conclusions of Law, City of Richmond v. United States, C.A. No. 1718-72 (D.D.C., May 24, 1976), in Richmond Annexation Files, box 9, Special Collections, Virginia Commonwealth University. The only prior study to consult the record of this hearing is Moeser and Dennis, The Politics of Annexation, 173–76, 211–12. Unpublished opinions are not treated as precedents by future courts.

15. Briefs filed by the parties in these lawsuits can also illuminate the issues that were before the court, where briefs on both sides of the controversy are available. In the Section 5 preclearance process, the documents submitted by a jurisdiction to the Civil Rights Division of the Department of Justice often include substantial factual information, as required by the Division’s published guidelines. When the Assistant Attorney General for Civil Rights objects to boundary changes, letters sent to the jurisdiction explain the reasons for the objection, including the legal basis for the decision. McCrary et al., “The End of Preclearance,” 275–323, analyzes all the department’s objection letters from the earliest in 1968 through June 2004. An earlier study that makes good use of objection letters is Motomura, Hiroshi, “Preclearance Under Section 5 of the Voting Rights Act,” North Carolina Law Review 61 (January 1983): 189–246.Google Scholar

16. Robert J. Norrell, Reaping the Whirlwind: The Civil Rights Movement in Tuskegee (New York, 1985), 60–78, 89, 91–92, 95; J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill, 1999), 332.

17. State Senator J. Miller Bonner, quoted in McCrary, Peyton and Hebert, J. Gerald, “Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights Cases,” Southern University Law Review 16 (1989): 120.Google Scholar

18. McCrary, Peyton, “Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960–1990,” University of Pennsylvania Journal of Constitutional Law 5 (May 2003)Google Scholar: 672; Norrell, Reaping the Whirlwind, 91–92.

19. Gomillion v. Lightfoot, 167 F. Supp. 405 (M.D. Ala. 1958). Tinsley E. Yarbrough, Judge Frank Johnson and Human Rights in Alabama (Tuscaloosa, 1981), 73–74; McCrary, “Bringing Equality to Power,” 674n.

20. 270 F.2d 594 (5th Cir. 1959). See also Jack Bass, Unlikely Heroes (New York, 1981), 99–100, 106–9. The evolution of court assessments of intent and effect plays a significant role in the story that follows.

21. Colegrove v. Green, 328 U.S. 549, 556 (1946).

22. Gomillion v. Lightfoot, 364 U.S. 339 (1960). On the background of the case, see Richard Cortner, The Apportionment Cases (Knoxville, 1970), 71–72, 84–88; Norrell, Reaping the Whirlwind, 79–80, 91–92, 101.

23. It may be that some justices felt that Gomillion was simply not the right case to address the “political question” doctrine. See McCrary, “Bringing Equality to Power,” 675n.

24. Gomillion v. Lightfoot, 364 U.S. 339, 346–47 (1960). “The inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.”

25. The principal amendment by the Congress created a Section 5 preclearance route through the Department of Justice, rather than solely through the federal courts. See, in general, David J. Garrow, Protest at Selma (New Haven, 1978), 36–39, 41–42; Brian J. Landsberg, Free at Last to Vote: Alabama Origins of the Voting Rights Act (Lawrence, Kans., 2007), 149–89, 229–38.

26. Pub. L. 89-110, 79 Stat. 437 [42 U.S.C. 1971, 1973]. Chandler Davidson, “The Voting Rights Act: A Brief History,” in Controversies in Minority Voting: The Voting Rights Act in Perspective, ed. Bernard Grofman and Chandler Davidson (Washington, D.C., 1992), 17–21.

27. The preclearance provision enacted by Congress in 1965, as well as the act’s suspension of literacy tests, applied to covered states and counties the “freezing principle” previously adopted by the federal courts in Fifteenth Amendment cases as a way of coping with the constantly changing discriminatory devices used by southern registrars and election officials. The courts had “frozen” state laws in the sense that registrars were prohibited from applying registration requirements against African Americans differently from the way in which requirements had been applied to whites over the years. Landsberg, Free at Last to Vote, 104–7, 154, 159–60, 162 (table 7.1), 168–72, 188–89; Bass, Unlikely Heroes, 271–72; Abigail Thernstrom, Whose Votes Count: Affirmative Action and Minority Voting Rights (Cambridge, Mass., 1987), 15–17.

28. H. Rep. No. 439, 89th Cong., 1st sess. 8 (1965); S. Rep. No. 162, pt. 3, 89th Cong., 1st sess. 5, 18 (1965). See also the reliance on Gomillion by Attorney General Nicholas deB. Katzenbach, Hearings Before Subcommittee No. 5 of the House Judiciary Committee on H.R. 6400. . . . 89th Cong., 1st sess. 15 (1965). See also McCrary, “Bringing Equality to Power,” 155.

29. South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).

30. See, in general, James E. Alt, “The Impact of the Voting Rights Act on Black and White Voter Registration in the South,” in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990, ed. Chandler Davidson and Bernard Grofman (Princeton, 1994), 351–73, 452–59. See also Harold W. Stanley, Voter Mobilization and the Politics of Race: The South and Universal Suffrage, 1952–1984 (New York, 1987), 27, 94–99, 101–2 (noting, however, the difficulty of identifying a precise statistical measure of the impact of the act on registration or turnout).

31. Allen v. State Board of Elections, 393 U.S. 544 (1969). Thernstrom, Whose Votes Count, 4, describes the legislation challenged in Allen as intentionally discriminatory: “By 1969 public officials in Mississippi and elsewhere had made all too plain their readiness to alter the electoral environment by instituting, for instance, county-wide voting, eliminating the single-member districts from which some blacks were likely to get elected.” Yet she criticizes Allen as “the opening wedge in a profound transformation of the [Voting Rights] act,” and in Voting Rights—and Wrongs: The Elusive Quest for Racially Fair Elections (Washington, D.C., 2009), 32, Thernstrom contends that Allen “rewrote” the Voting Rights Act, “altering its core purpose” and (p. 34) setting the federal courts on a “slippery slope” leading to “what were, in effect, reserved legislative seats.”

32. Perkins v. Matthews, 400 U.S., 379, 388–89 (1971), citing Gomillion v. Lightfoot, 364 U.S. 339 (1960). Perkins reversed the decision of a three-judge court in Mississippi that had ignored Allen v. State Board of Elections, 393 U.S. 544 (1969), and held that annexations were beyond the scope of Section 5: 301 F. Supp. 565 (S.D. Miss. 1969). For the contrary view that coverage of annexations was a mistake—with which, as this study makes clear, I disagree—see Thernstrom, Whose Votes Count, 140 (“annexations are special and therefore should not have been included on the list of practices requiring preclearance. They are seldom discriminatory in purpose, and those enacted for racist ends could have been challenged in constitutional suits”).

33. City of Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972), aff’d 410 U.S. 962 (1973). Such lawsuits are known as Section 5 declaratory judgment actions; the burden of proof is on the plaintiff (the jurisdiction seeking preclearance).

34. 354 F. Supp. 1021, 1024 (D.D.C. 1972). Although not mentioned by the Petersburg trial court, all annexations in Virginia required approval by a special annexation court consisting of three circuit judges. See Holt v. City of Richmond, 334 F. Supp. 228, 231 (E.D. Va. 1971).

35. 354 F. Supp., 1024, 1026. Thernstrom, Voting Rights and Wrongs, 55, cites the election of two black council members as “compelling evidence that at-large elections in Petersburg did not exclude blacks from the political process.” The evidence before the court showed, however, that in the 1964 election in overwhelmingly white precincts (97 percent white) approximately 97 percent of the votes were cast for white candidates; in strongly black precincts (82 percent black), 82 percent of the votes were cast for the black candidate. Slightly greater white bloc voting characterized the 1966 election. 354 F. Supp., 1026. The most plausible explanation, based on the limited evidence in the court opinion, is that in both 1964 and 1966 the black candidates were successful due to single-shot voting by African Americans and perhaps some degree of white crossover voting in precincts that were not predominantly white.

36. 354 F. Supp., 1025–26. In the homogeneous white precincts, the white candidates never failed to win at least 90 percent of the vote; in homogeneous black precincts, the black candidates also received greater than 90 percent of the vote, except in 1964, when they got a little over 80 percent. On the use of homogeneous precinct data in analyzing the degree to which voting patterns are racially polarized, see McCrary, Peyton, “Racially Polarized Voting in the South: Quantitative Evidence from the Courtroom,” Social Science History 14 (Winter 1990): 507–31.CrossRefGoogle Scholar

37. 354 F. Supp., 1029. Thernstrom, Whose Votes Count, 139, criticizes the court because it “assumed” that under Section 5 “effect was distinctive from purpose” and thus refused preclearance because of the annexation’s discriminatory effect, despite finding that the change was not intentionally discriminatory. Actually, the text of Section 5 requires submitting jurisdictions to demonstrate that a voting change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race.” Pub. L. 89-110, Sec. 5, 42 U.S.C. 1973. In City of Rome v. United States, 446 U.S. 156 (1980), the Supreme Court rejected that city’s claim that Section 5 was unconstitutional because preclearance could be denied under its effect prong without proof of discriminatory purpose.

38. 354 F. Supp., 1024.

39. 354 F. Supp., 1027. Thernstrom, Voting Rights and Wrongs, 55, cynically mischaracterizes the court’s concept of balancing the city’s policy needs and the preservation of minority voting strength: “The court believed that the act had created an entitlement to electoral arrangements that would be most favorable to minority officeholding,” adding (p. 56) that “proportional racial representation, in [the court’s] view had become a right under the Voting Rights Act.”

40. 354 F. Supp., 1023, 1031.

41. 410 U.S. 962 (1973). The statute provides that in such a preclearance case before a three-judge court in the District of Columbia there is a right of direct appeal to the Supreme Court. The Court can, however, summarily affirm the lower court decision without hearing oral argument. On the role of a summary affirmance, see McCrary, Seaman, and Valelly, “The End of Preclearance as We Knew It,” 281–82 n. 25.

42. City of Petersburg v. United States, No. 72-865 (Oct. Term, 1972), Jurisdictional Statement, 12 December 1972 (hereafter JS), and Brief for Appellant in Opposition to Motions to Affirm, 15 February 1973 (hereafter Brief).

43. JS, 8–9, 14. In its Brief (p. 2), the city argued that “there is racial bloc voting . . . throughout the South.” In contrast, the city contended that Petersburg voting was not racially polarized. JS, 5–6.

44. As the city put it, “the proper result” in such a case was that “the ‘dilution’ of racial bloc voting power stemming from a necessary municipal boundary change does not discriminatorily dilute the right to vote.” JS, 15.

45. 410 U.S. 962 (1973).

46. Holt v. City of Richmond, 334 F. Supp. 228 (E.D. Va. 1971), rev’d 459 F.2d 1093 (4th Cir. 1972); City of Richmond v. U.S., 376 F. Supp. 1344 (D.D.C. 1974), aff’d in part, rev’d in part, and remanded, 422 U.S. 358 (1975). In the Section 5 case, all parties stipulated to the trial record in the constitutional challenge by Curtis Holt; the trial court appointed a special master, Lawrence S. Margolis, who reviewed the Holt record, heard three days of additional testimony, and provided preliminary findings to the trial court, which agreed with his findings. City of Richmond v. U.S., 376 F. Supp. 1344, 1346, 1349 (D.D.C. 1974). Moeser and Dennis, The Politics of Annexation, draws on the court record in the two cases, now housed as the Richmond Annexation Files in Special Collections at Virginia Commonwealth University—as well as on extensive newspaper research and structured interviews with participants.

47. Christopher Silver, Twentieth-Century Richmond: Planning, Politics, and Race (Knoxville, 1984), 241, 249.

48. Ibid., 241; Temple, Merger Politics, 16 (quote), 47–49, 94–97.

49. Silver, Twentieth-Century Richmond, 240.

50. Holt v. City of Richmond, 334 F. Supp. 228, 231 (E.D. Va. 1971).

51. Ibid.

52. Harper v. Va. State Bd. Of Elections, 383 U.S. 663 (1966).

53. Moeser and Dennis, Politics of Annexation, 60–61, 80; W. Avon Drake and Robert D. Holsworth, Affirmative Action and the Stalled Quest for Black Progress (Urbana, 1996), 132.

54. Robert A. Pratt, The Color of Their Skin: Education and Race in Richmond, Virginia, 1954–1989 (Charlottesville, 1992), 31–32, 36–38; Leedes, Gary C. and O’Fallon, James M., “School Desegregation in Richmond: A Case History,” University of Richmond Law Review 10 (Fall 1975): 1–14.Google Scholar

55. Pratt, The Color of Their Skin, 44–46. Of the predominantly black middle schools, two were 100 percent black, and one was 99.3 percent black; others were 88 percent, 73 percent, and 69 percent black. Three middle schools were 91 percent or more white. Of the forty-four elementary schools, seventeen were 100 percent black, four others were more than 93 percent black, and one was 78 percent black. Two elementary schools were 100 percent white, thirteen others were 90 percent or more white, two were 86 percent white, and five were between 53 percent and 70 percent white.

56. 334 F. Supp., 232. According to the court (p. 233), the views of the Crusade-endorsed council members—even the white members—“were generally considered by the [council] majority to be representatives of the Negro community,” because they were endorsed by a predominantly black organization and received “heavy support from Negro voters.” For further evidence, see Moeser and Dennis, Politics of Annexation, 82–86.

57. Ibid., 86–92.

58. 334 F. Supp., 235.

59. The clearest exposition of this aspect of the record, including extensive quotation from the Holt trial transcript, is in the dissenting opinion by Judge John Butzner in the appellate decision, 459 F.2d 1093, 1103–4 (4th Cir. 1972). For example, the chairman of the Chesterfield County Board of Supervisors testified that the city’s representatives “asked us in the fifty-one square mile area approximately how many black citizens were in this area,” and that he “estimated about five percent” (see 1103 n. 8).

60. 334 F. Supp., 235.

61. 334 F. Supp., 236. Moeser and Dennis, Politics of Annexation, 93, document several racially biased comments by Mayor Bagley during the negotiations.

62. 334 F. Supp., 236. Judge Mehrige relied on Gomillion in finding that the annexation violated the Fifteenth Amendment.

63. Holt v. City of Richmond, 459 F. 2d 1093, 1100 (4th Cir. 1972): “No violation of any Fifteenth Amendment right was worked by the annexation, effected, as it was, by the decree of the state court.”

64. 459 F. 2d 1093, 1096, 1099 (4th Cir. 1972): “In 1961 there were compelling reasons for annexation of portions of Chesterfield County. Negroes were then a minority in Richmond and no one was then thinking in terms of a possible cleavage between black and white voters. Race was not a factor in the decision to seek annexation. . . . If some impermissible reasons crept into the minds of some members of Richmond’s Council in 1969, that cannot negate all of the compelling reasons which led them and their predecessors in office to press on the same course in earlier years.”

65. 459 F.2d 1093, 1098–99 (4th Cir. 1972), reflecting a pre-Gomillion view of assessing constitutionality (p. 1098): “When the legislative purpose is not both obvious and constitutionally impermissible, however, the cases uniformly hold that facially constitutional legislation may not be stricken because of suspect legislative motivation.”

66. Ibid., 1097.

67. 459 F.2d 1093, 1108 (4th Cir. 1972).

68. 334 F. Supp. 228, 240 (E.D. Va. 1971). “Defendants, after some prodding by the Court, suggested two remedies,” first a mixed plan with five single-member districts and four at-large seats, and a reluctant second option, nine single-member districts. Ibid., 239.

69. 459 F.2d 1093, 1108 (4th Cir. 1972).

70. Ibid., 1108, 1111.

71. David L. Norman to C. B. Mattox Jr., 7 May 1971 (Department of Justice objection letter), reproduced in City of Richmond v. United States, 376 F. Supp. 1344, 1351 (D.D.C. 1974). City officials met with Attorney General John Mitchell to request a withdrawal of the objection, and they enlisted the participation of one of Richmond’s leading citizens, attorney Lewis F. Powell Jr., former president of the city’s school board during the segregation era and recent past-president of the American Bar Association, who was shortly to join the Supreme Court. The submission by the city included a memorandum by Powell, narrating the facts regarding the annexation as he saw them, and commenting on the legal standards he thought (incorrectly) applied in a preclearance review. Letter from Powell to Mitchell, 9 August 1971, and attached memo of the same date, “City of Richmond—Chesterfield Annexation: Applicability of Voting Rights Act of 1965,” box 29, Lewis F. Powell Jr., Papers, Washington & Lee University School of Law. At that time Powell thought that “the test should be whether the predominate purpose is racial and discriminatory” (pp. 6–7). In fact, under Section 5 the city needed to show that the annexation would have neither a discriminatory purpose nor a discriminatory effect. Nor did the constitutional-intent standard require proof that racial discrimination is the “predominate” purpose of a change—as Powell himself later explained in the majority opinion in Village of Arlington Heights v. Metro. Housing Development Corp., 429 U.S. 252, 265–66 (1977).

72. Holt v. City of Richmond, 409 U.S. 903 (1972).

73. City of Richmond v. United States, 376 F. Supp. 1344, 1352 (D.D.C. 1974).

74. “Council Backs Nine Wards Here,” Richmond Times-Dispatch, 2 May 1973, B1. The city filed the specific nine-ward plan in court almost a year later and the Justice Department agreed, following the reasoning in the earlier Petersburg decision, that the annexation was now entitled to preclearance. “Richmond Files 9-Ward Plan for Election,” Richmond Times-Dispatch, 1 February 1974, B1.

75. 376 F. Supp. F. Supp. 1344, 1352 (D.D.C. 1974).

76. Ibid., 1354.

77. Ibid., 1357.

78. Ibid. See Magistrate Lawrence S. Margolis, Findings of Fact and Conclusions of Law, City of Richmond v. United States, C.A. No. 1718-72 (D.D.C., 24 May 1976), 2 (noting his role in the earlier proceeding), in Richmond Annexation Files, box 9, Special Collections, Virginia Commonwealth University.

79. 376 F. Supp. 1344, 1353–54 (D.D.C. 1974).

80. Ibid., 1360.

81. White v. Regester, 412 U.S. 755 (1973). The Court’s opinion relied on evidence of a history of official discrimination against blacks in Dallas and Hispanics in Bexar, cultural and language barriers in Bexar and a discriminatory slating group in Dallas, a lack of responsiveness by elected officials to the needs of the minority community, and the use of numbered place and runoff requirements that enhance the discriminatory potential of at-large elections. Based on “the totality of the circumstances,” the Court found that minority voters in these two counties had “less opportunity than did other residents . . . to participate in the electoral processes and to elect candidates of their choice.” 412 U.S. 755, 766, 769 (1973).

82. In City of Mobile v. Bolden, 446 U.S. 55 (1980), and Rogers v. Lodge, 458 U.S. 613 (1982), the Supreme Court subsequently found that White did require proof of discriminatory intent. Blumstein, James F., “Defining and Proving Race Discrimination: Perspectives on the Purpose vs. Results Approach from the Voting Rights Act,” Virginia Law Review 69 (1983): 633, 669–70CrossRefGoogle Scholar, observes that the wording in White supports both the view that proof of discriminatory intent is necessary and that it is not. The Fifth Circuit Court of Appeals, which handled by far the largest number of vote-dilution cases in the 1970s, initially treated the test as requiring proof of either purpose or effect, but not both, in deciding a Louisiana challenge to at-large elections in East Carroll Parish, Louisiana. Zimmer v. McKeithen, 485 F.2d 1297, 1304 (5th Cir. 1973)(en banc), aff’d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976).

83. Washington v. Davis, 426 U.S. 229 (1976).

84. Ibid., 242.

85. 446 U.S. 55 (1980).

86. Newly appointed Justice Lewis Powell Jr. took no part in the case because before joining the Court he had sought to persuade the attorney general to preclear the annexation (see note 71 above).

87. City of Richmond v. U.S., 422 U.S. 358, 370–72 (1975).

88. 422 U.S. 358, 388–89 (1975) (quoting the trial court decision), 376 F. Supp. 1344, 1356–57 (D.D.C. 1974). Justices William O. Douglas and Thurgood Marshall joined Brennan’s dissent.

89. City of Richmond v. U.S., 422 U.S. 358, 370–72 (1975).

90. Ibid., 372.

91. Ibid., 372–73.

92. Ibid., 375 (emphasis added).

93. Ibid., 378–79 (emphasis added).

94. Ibid., 382. “The record is replete with statements by Richmond officials which prove beyond question that the predominant (if not the sole) motive and desire of the negotiators of the 1969 settlement was to acquire 44,000 additional white citizens for Richmond, in order to avert a transfer of political control to what was fast becoming a black-population majority.” See, further, the evidence presented by Moeser and Dennis, The Politics of Annexation, 88–93, 98–102, 107–9.

95. 422 U.S. 358, 383 (1975).

96. Ibid., 390.

97. See, in general, Margolis, Findings of Fact, 4 May 1976. The parties submitted voluminous exhibits and numerous witnesses, including several experts for each side, testified during the seven-day trial.

98. Ibid., 24; Moeser and Dennis, The Politics of Annexation, 173–75.

99. Margolis, Findings of Fact, 22.

100. Moeser and Dennis, The Politics of Annexation, 176.

101. City of Richmond v. U.S., 422 U.S. 358, 370–72 (1975) (emphasis added).

102. 425 U.S. 130 (1976).

103. Beer, 425 U.S. at 141. Before Beer, the standard for determining effect under Section 5 was believed to be the same as the standard in voting rights lawsuits set forth initially by the Supreme Court in White v. Regester, 412 U.S. 755 (1973), and spelled out in greater detail in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc).

104. Beer, 425 U.S., 141 (emphasis added).

105. The Court could hardly have intended its reference to a constitutional violation to mean that a voting change that was dilutive in effect under White v. Regester—but not retrogressive—would be objectionable under Section 5, because in announcing the retrogression test, the Beer majority made clear that the dilutive effect standard in constitutional cases was inapplicable in the Section 5 context. According to voting rights lawyer Mark A. Posner, “Post-1990 Redistrictings and the Preclearance Requirement of Section 5 of the Voting Rights Act,” in Race and Redistricting in the 1990s, ed. Bernard Grofman (New York, 1998), 100: “Both the Attorney General and the federal courts consistently have construed the Section 5 purpose test as being co-extensive with the constitutional prohibition on enacting redistricting plans (or other voting practices or procedures) that minimize minority electoral opportunity for a discriminatory reason.”

106. McCrary et al., “The End of Preclearance,” 284–86. Even justices who opposed a strong Voting Rights Act seemed to agree. See Justice William Rehnquist’s observation that in the Section 5 context “it is clear that if the proposed changes would violate the Constitution, Congress could certainly prohibit their implementation.” City of Rome v. United States, 446 U.S. 156, 210 (1980) (Rehnquist, J., dissenting). Not surprisingly, the Court the same year summarily affirmed the trial court decision in a Mississippi redistricting case. Mississippi v. United States, 490 F. Supp. 569, 582–83 (D.D.C. 1979), aff’d mem., 444 U.S. 1050 (1980), where the trial court declared that “the prohibited ‘purpose’ of section 5 may be described as the sort of invidious discriminatory purpose that would support a challenge to official action as an unconstitutional denial of equal protection.” Ibid. at 583.

107. U.S. Commission on Civil Rights, The Voting Rights Act: Unfulfilled Goals (Washington, D.C., 1981), 65, 69 (table 6.4). McCrary et al., “The End of Preclearance,” 296 (table 1), demonstrates that the Department of Justice objected to another seventy-one annexations in covered jurisdictions between 1980 and 2000.

108. See the Department’s objection letter, J. Stanley Pottinger to Morris Rosen, 20 September 1974. The population data were taken from the 1970 census, augmented by more recent numbers supplied by the city for unpopulated annexations that realtors had developed since 1970.

109. U.S. Commission on Civil Rights, The Voting Rights Act: Ten Years After (Washington, D.C., 1975), 324.

110. Brischetto, Cotrell, and Stevens, “Conflict and Change in San Antonio in the 1970s,” 87–91.

111. Thomas and Murray, “Applying the Voting Rights Act in Houston,” 81, 91–94.

112. J. Stanley Pottinger to W. H. Fredric, 5 February 1975.

113. Ibid., 2. In March, the city submitted additional annexations of predominantly white areas to which the department also objected on 2 May 1975. J. Stanley Pottinger to W. H. Fredric, 2 May 1975.

114. [Frank R. Parker and Barbara Y. Phillips], Voting in Mississippi: A Right Still Denied (Washington, D.C., 1981), 90–92.

115. Drew S. Days III to Frank H. Hawthorne, 29 December 1978 (relying on Beer, City of Richmond, and Gomillion). Motomura, “Preclearance Under Section Five,” 226, observes in connection with the Hayneville incorporation: “A racially selective policy is probably most evident when a white majority goes beyond mere annexation and actually creates a new governmental unit in a manner that excludes minorities.”

116. W. Bradford Reynolds to Charles A. Devaney, 27 July 1987.

117. United States v. City of Augusta, No. CV-187-004 (S.D. Ga.). See McCrary, Peyton, “The Dynamics of Minority Vote Dilution: The Case of Augusta, Georgia, 1945–1986,” Journal of Urban History 25 (January 1999): 199–225.CrossRefGoogle Scholar

118. City of Pleasant Grove v. United States, 479 U.S. 462 (1987).

119. City of Pleasant Grove v. United States, 568 F. Supp. 1455, 1456 (D.D.C. 1983) (denying plaintiff’s motion for summary judgment); see also City of Pleasant Grove v. United States, 623 F. Supp. 782, 784, 787–88 (D.D.C. 1985) (denying preclearance of the annexations), aff’d 479 U.S. 462 (1987).

120. The evidence of intentional discrimination was so strong, noted the Supreme Court, that “even if the burden of proving discrimination was on the United States, the [trial] court ‘would have had no difficulty in finding that the annexation policy of Pleasant Grove is, by design, racially discriminatory in violation of the Voting Rights Act.’“ City of Pleasant Grove, 479 U.S. at 467 (quoting 623 F. Supp. at 788 n. 30).

121. Ibid. at 470–71. The dissenters also adopted this view. Ibid., 475–76 (Powell, J., dissenting); see also Thernstrom, Whose Votes Count, 156 (“It is difficult to see how black voting rights had been abridged by the boundary change, since Pleasant Grove had no black voters to begin with.”).

122. 479 U.S., 471. The dissent by Justice Powell rejected this interpretation as “purely speculative,” in 479 U.S., 472 (Powell, J., dissenting).

123. Ibid., 469.

124. Ibid., 474 (Powell, J., dissenting).

125. Ibid., 471 n. 11 (quoting City of Richmond v. United States, 422 U.S. 358, 378–79 [1975]) (emphasis added).

126. See, for example, McCrary, Peyton, Gray, Jerome, Still, Edward, and Perry, Huey, “Alabama,” in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990, ed. Davidson, Chandler and Grofman, Bernard (Princeton, 1994), 61–64 (table 2.8)Google Scholar; Robert Brischetto, David Richards, Chandler Davidson, and Bernard Grofman, “Texas,” in Quiet Revolution in the South, 264–68 (table 8.8); Thomas R. Morris and Neil Bradley, “Virginia,” in Quiet Revolution in the South, 297–98 (table 9.8).

127. City of Richmond v. United States, 422 U.S. 358, 370–73, 375, 378–79 (1975).

128. Shelby County v. Holder, 570 U.S. ___ (2013), 133 S. CT. 2612 (2013). Technically the Court’s decision found unconstitutional only the coverage formula for preclearance set forth in Section 4 of the Voting Rights Act. As a practical matter, however, Section 5 is a dead letter.

129. City of Rome v. United States, 472 F. Supp. 221, 235 (D.D.C. 1979).