KEADY, Chief Judge.
In this action, David Jordan, James Moore, Robert Sims, and Sammie Lee Chestnut, representing classes of all black citizens and black registered voters of the City of Greenwood, sue the City, its mayor, city commissioners, and the City Municipal Election Commission and its members,
I. FINDINGS OF FACT
The 1914 Referendum
Prior to 1914, Greenwood operated under a mayor-alderman form of municipal government under which the mayor and one alderman were elected at-large, and four additional aldermen were elected from each of four wards. On March 16, 1914, however, the City adopted the present mayor-commission system by city-wide referendum, 250 votes cast in favor of the commission form and 47 votes against. At this time in the City's history, blacks were disenfranchised and accordingly did not vote in the referendum. Under the commission form of government, the mayor and two commissioners are elected at-large; one of the commissioners is in charge of streets and sanitation, while the other oversees police and fire departments. The mayor and two commissioners compose the city council, and each has the right to vote on all questions coming before the council.
The 1914 referendum was authorized by a 1912 enactment by the Mississippi Legislature enabling a city, upon election by its voters, to change its government system and adopt the commission form of government.
According to plaintiffs' expert historian, Dr. Charles Sallis, reforms in Mississippi during the "progressive period" were enacted largely as devices to discriminate against blacks. Sallis was of the opinion that phrases such as "good government" and "corruption" were synonymous with "white control" and "black disenfranchisement." This opinion was based on certain Mississippi newspaper articles appearing in the 1900-1910 decade. He alluded to an article in the Laurel Chronicle on April 7, 1908, which stated:
Sallis acknowledged, however, that this mention of "a foreign or vicious element" reportedly electing inharmonious officials did not necessarily refer to blacks. He also cited a November 24, 1906, article in the
The court declines to accept, on the basis of this sketchy evidence, a conclusion that the progressive movement in general and the adoption of the commission form of government in particular by certain Mississippi municipalities in the early twentieth century was racially motivated. During this period in the state's history, blacks were and had been effectively disenfranchised by the use of poll taxes, residency requirements, and literacy tests as lawful impediments to voting, and therefore did not pose a threat to the white electorate. Indeed, had whites perceived that blacks might soon come to widely possess the franchise, it appears more likely that the commission form of government would be more adverse to political control by whites in most Delta cities, including Greenwood, since blacks then comprised a large majority of citizens residing in that section of the state.
In addition, the court finds that adoption of the commission form of government in Greenwood was motivated by economic reasons. As written on February 13, 1914, in a Greenwood newspaper:
Only one Greenwood newspaper article may be said to lend itself to an interpretation that racial considerations were interjected in the 1914 referendum process. This article which appeared on March 14, 1914, the day of the referendum, urged a vote for the proposed form of government, stating in part as follows:
The phrase "negro in the woodpile" is an obsolete expression that quite obviously refers not to black voters but to a charge that those opposing the commission form of government were misleading the electorate into believing that control of the city would be vested in certain "Big Bugs," i.e., that the political power would be concentrated in the hands of a few persons. The quoted phrase, according to eminent language authority, means "a dubious and improbable element in a situation esp. when regarded as possibly harmful or undesirable." Random House Dictionary of the English Language (unabridged ed. 1973) p. 966. Webster's Third New International Dictionary (unabridged ed. 1965) p. 1527, defines the phrase as: "something (as a concealed motive or obscure factor) contrary to appearances in a situation." These explanatory definitions support the only possible meaning of the expression as used in the article, given the context in which it appears, and renders farfetched an application to race as such. The great weight of the evidence
Blacks' Defeats at the Polls
According to the 1970 census data, Greenwood has a voting age population (18 years and older) of 13,906, of whom 7,612 are white (49.63%) and 6,204 are black (44.61%). The City's total population, under the 1980 census, is 20,115, with a majority black population (52%). However, whites have a majority of the voting age population and registered voters. The City is divided into three wards or precincts, East Greenwood which is predominantly black, North Greenwood which is all white, and West Greenwood which is a mixed neighborhood.
No black citizen has been elected to any seat on the Greenwood City council, although several have run for election. Pinkie Pilcher, black candidate for commissioner post 1 in the May 11, 1965 election was defeated by a white candidate by a vote of 2,400 to 61. William Wallace, black candidate for commissioner post 1 in the June 3, 1969 election, was defeated by a white by a vote of 3,757 to 2,339. John H. Johnson, black candidate for mayor in the June 5, 1973 election, was defeated by a white by 3,723 to 1,146 votes. Robert Robertson, black candidate for commissioner post 1 in the June 5, 1973 election, was defeated by a white by 3,647 to 1,102 votes. The black candidates did not enter the Democratic primaries but ran as Independents in the general elections.
Most recent are the 1981 Democratic primary elections which included black candidates Percy Washington, running for commissioner post 2, and Joseph W. Curtis, running for commissioner post 1, who were both defeated in the second Democratic primary runoff election by their white opponents by votes of 2,730 to 1,366 and 2,736 to 1,388, respectively. No blacks entered the general elections held on June 2, 1981, when three whites, a Republican mayor, Lanier Harper, and two Democratic commissioners, were elected to office. None of the black candidates at any general election or primary have received more than relatively few of the votes cast in the North Greenwood ward.
The 1977 Referendum
On July 13, 1977, approximately two months after this suit was filed, the Greenwood Voters League (GVL), a highly vocal all-black political organization which regularly endorses candidates sympathetic to the black community and of which David Jordan is president, presented the City Council with a petition signed by 2,186 qualified electors calling for an election to determine if the City should change its form of government to a mayor-council form to include the election of seven councilmen from wards. The petition was presented just one month after the former mayor, Louis Fancher, Jr., and Commissioners Sam Bass and E. M. Ambrose had been elected for four-year terms. Fancher and Ambrose had been publicly endorsed by GVL. At the referendum held on September 6, 1977, 2,766 persons voted to retain the commission system and 1,069 voted to change to the mayor-council form. As had been generally true in previous Greenwood elections, voting was predominantly along racial lines, with blacks voting for the change and whites against it.
The GVL's campaign to change the government structure was directed largely to what was perceived as a racially discriminatory effect of the at-large system on black representation. Hite McLean, a local attorney and Chairman of the City Democratic Executive Committee, formed a group known as Citizens for our Present Form of Government to campaign against the change in government form. Although McLean during the 1960's had organized a "white citizens committee" to oppose the Civil Rights Act of 1964, he, in a newspaper interview, denied racial motivations in opposing the change and stated:
Another attorney, Hardy Lott, serving as counsel for the Greenwood Separate Municipal School District, publicly opposed the change. Like the Citizens for our Present Form of Government, the reasons cited for the opposition were (1) the present form of government was more representative of the desires of the majority since commissioners represent the city, instead of "special interest" wards; (2) the mayor-council form, consisting of seven council members, would be, in effect, more bureaucratic and less efficient; and (3) the proposed form of government would be more expensive since there would be more salaries to pay. Commissioner Sam Bass expressed views against the change in government form, but made it clear that these views were personal only, and not those of the city council. Neither Mayor Fancher nor Commissioner Ambrose took a public position on the issue.
Two days before the referendum election, Citizens for our Present Form of Government printed a one-quarter page newspaper advertisement urging a vote against changing the commission form of government. Its objections to the proposed mayor-council system were as follows:
On the same day, a one-half page article entitled "Pro-Con: Should Greenwood Change its system of city government" appeared in the Greenwood Commonwealth. David Jordan argued the position "Yes! Fair representation for people needed," while Hite McLean advocated "No! Change would invite city factional fights." Photographs of both men appeared alongside their articles. In addition to the reasons cited against the proposed change in the advertisement by Citizens for our Present Form of Government, McLean stated:
Jordan, on the other hand, noted that under the mayor-council form executive and legislative functions would be separated, and also appealed to the inequity under the present system of blacks being unable to elect representatives, as follows:
The proposed change to the mayor-council form of government was endorsed by the editor and publisher of the Greenwood Commonwealth, who stated in an editorial:
In light of these newspaper accounts, we find as a fact that race was interjected as a factor to be considered in voting on the referendum and that this factor was interposed by blacks and whites alike.
At trial, Commonwealth editor Emmerich testified that he actually preferred the council-manager form of government for Greenwood since it would bring a greater degree of professionalism in municipal operations. Emmerich was of the view that the commission form was inadequate inasmuch as three commissioners act as legislative and executive departments, rendering city government only as good as the three individuals elected to office. In addition, Emmerich was of the opinion that the at-large system of voting diluted minority voting strength.
Dr. Gordon Henderson, plaintiffs' political science expert, expressed the view that the commission structure is neither responsive nor efficient since it relies on full-time amateur administrators and mirrors majority viewpoints. Henderson asserted that according to many political scientists the commission form of government is obsolete and no good nonracial reason exists for its retention. He also stated that discriminatory impact of at-large voting is particularly pronounced when there are relatively few positions to be filled.
Another of plaintiffs' experts, Dr. Alex Willingham, testified that although the level of black participation in city politics approached that of white involvement, he anticipated that black participation would decrease if the commission form of government remained in effect because blacks would become disillusioned. Willingham noted that the state's requirement of dual registration, i.e., that citizens register in the county office and then in the city office, and the existence of different polling places for city elections and for county and state elections, had the effect of confusing black voters and thereby limiting the number of blacks that actually vote. According to
Defendants' expert, Dana Brammer, testified that the commission form of government has advantage over other systems in that responsibility for city management is concentrated in a small group of people, thereby making the system more efficient. Brammer also stated that use of at-large, rather than ward, elections is the most popular electoral system in the United States, being employed in more than three-fifths of all cities.
History of Discrimination
It is well documented that a pattern of racial discrimination in the past has existed in Greenwood and Leflore County. Prior to the passage of the Voting Rights Act of 1965, blacks in Mississippi were effectively disenfranchised through the use of poll taxes, literacy tests, and the like. See United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). Federal examiners sent to Leflore County during the 1960's assisted in black registration efforts. In 1973, the Fifth Circuit Court of Appeals affirmed this court's decision that the Leflore County Board of Supervisors' redistricting plan diluted black voting strength and worked to deny blacks equal access to the political process. Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621 (5th Cir. 1974). In 1976, this court issued an injunction against then Circuit Clerk and Registrar of Leflore County preventing her from denying Mississippi Valley State University students from registering to vote. Latham v. Chandler, GC 75-48. In the same year, the City of Greenwood and black plaintiffs entered into a consent decree under which the City was to provide municipal services in a nondiscriminatory manner and agreed to specific street paving programs and recreational facilities in the black community. Johnson v. City of Greenwood, GC 75-131. In 1978, the City and black plaintiffs entered a consent order whereby the City agreed to formulate a nondiscriminatory hiring policy, notify former black applicants for city employment of the right to reapply therefor, devise a promotion and transfer policy, and establish an employee grievance procedure. The City also agreed to hire blacks for one-half of all job vacancies. Johnson v. City of Greenwood, GC 75-128; Myers v. City of Greenwood, GC 77-43. In 1979, this court found that the Greenwood Separate Municipal School District had failed to rehire plaintiff Jordan because of his constitutionally protected criticisms of the school board and issued an appropriate injunction. Jordan v. Cagle, 474 F.Supp. 1198 (N.D. Miss.1979), aff'd. mem. 620 F.2d 298 (5th Cir. 1980).
Plaintiffs failed, however, to show that after complying with federal court orders the City or the elected officials continue to be unresponsive toward the needs and interests of black citizens. Despite some contrary testimony, the overwhelming evidence is that all essential municipal services, such as fire and police protection, sanitation, sewers, streets, and utilities are provided in a nondiscriminatory manner, without disparate treatment to black neighborhoods. Although plaintiffs charged that the chief of police refused to speak before the GVL with regard to crime occurring in the black community, Police Chief Stevens testified that his refusal was not because of lack of interest but a personal belief that he should not appear at political meetings. The credible evidence is that law enforcement is as vigorously carried out in the black community as in the white. The police department dispatches 75% of its personnel to cover predominantly black areas of the City. The court rejects plaintiffs' generalized and unfounded assertions that the white community has better police protection than the black areas of the City. Since black citizens comprise a substantial percentage of the City's voting population, candidates for municipal office actively seek and must gain the support of blacks to be elected. Indeed, the GVL endorsed two of the three individuals for City office elected in 1977 and 1981. Blacks have been appointed to many of the municipal boards and commissions, and serve in policy-making roles. The City has actively sponsored various public housing projects to provide new housing, occupied
The court further finds that no official barriers presently exist to the rights of blacks to vote and to run for office. The city clerk's office registers anyone who appears for that purpose before 5 p. m. and is also open one-half day on Saturday four weeks before each registration deadline; and notices to this effect, as well as maps of polling places, are published in the local newspaper at appropriate times. Blacks participate as poll workers and also as challengers at all elections. Although federal examiners attended Leflore County elections at certain times in the past, they have never been assigned to municipal elections in Greenwood. Jordan's general and conclusory testimony that names of qualified black electors have been purged from registration rolls is rejected as unsupported by factual detail; and the charge is countered by the city clerk's testimony that it was not unusual for the name of a voter, irrespective of race, to be omitted from the voters' list through error or inadvertence. Moreover, although the legal requirement that dual registration of qualified electors is required of City voters, first at the office of the Circuit Clerk of Leflore County and again at the office of the City clerk, may be confusing and result in some persons being unable to vote in City elections because of ignorance, the court finds as a fact that this requirement was not manipulated or used to prevent blacks from being qualified municipal electors, and that the procedure employed by the registering officials was not racially motivated. Similarly, there is no credible evidence that use of different polling places for city and county elections is racially motivated. Rather, these are normal and reasonable requirements that result from separate city and county governments which necessitate separate elections by different electorates.
Greenwood's ordinance separates the two commissioner posts for election purposes. Persons seeking the office shall qualify and seek election for a post, as designated in the ordinance, and each post is voted on separately by the qualified electors. To be eligible for office of mayor or commissioner, one must be a qualified elector of the City and shall have been a bona fide resident of the City for at least one year next preceding the date of the commencement of his term of office. There is no requirement that candidates live in any particular section of the City. Miss.Code § 21-5-5 (1972).
II. CONCLUSIONS OF LAW
As noted at the outset, the law concerning elements necessary to establish discrimination in the adoption and maintenance of at-large voting systems is in a state of flux. The uncertainty arises from the Supreme Court's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), where the Court considered whether Mobile's at-large system of voting for city commissioners was violative of § 2 of the Voting Rights Act (42 U.S.C. § 1973), the fifteenth amendment, or the fourteenth amendment. The plurality opinion written by Justice Stewart and joined by the Chief Justice and Justices Powell and Rehnquist, reversed the Fifth Circuit's decision ordering disestablishment of the city commission and replacement by a city council composed of members selected from single-member districts and remanded the cause for further proceedings.
The Court first noted that the burden of proof under § 2 of the Voting Rights Act is the same as under the fifteenth amendment:
Id. at 65, 100 S.Ct. at 1499, 64 L.Ed.2d at 57.
As to the fourteenth amendment, the court held that multimember districts, while not per se illegal, violate the fourteenth amendment if established with the invidious purpose or minimizing or cancelling out the voting potential of blacks. "To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. A plaintiff must prove that the disputed plan was `conceived or operated as [a] purposeful devic[e] to further racial discrimination." Id. at 66, 100 S.Ct. at 1500, 64 L.Ed.2d at 58 (brackets in original). Although disproportionate impact may provide a starting place, "where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose." Id. at 70, 100 S.Ct. at 1502, 64 L.Ed.2d at 60.
The district court opinion affirmed by the Court of Appeals was based on Zimmer v. McKeithen, 485 F.2d 1297 (5 Cir. 1973) (en banc), wherein the Fifth Circuit established:
Id. at 1305. In Bolden, the district court relied heavily on the fact that no black had ever been elected to the city commission and also on a finding that city officials had not been as responsive to the needs and interests of blacks as to whites. To prove discriminatory purpose according to the Supreme Court, however, there must be "more than intent as volition or intent as awareness of consequences.... It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' and not merely `in spite of,' its adverse effects upon an identifiable group." 446 U.S. at 71 n.17, 100 S.Ct. at 1502 n.17, 64 L.Ed.2d at 62 n.17.
The Supreme Court, disagreeing with the Fifth Circuit's conclusion that proof of an aggregate of the Zimmer criteria constitutes proof of discriminatory purpose, noted:
Id. at 73, 100 S.Ct. at 1503, 64 L.Ed.2d at 62. The Court refuted the lower courts' reasoning as follows:
Justice Blackmun concurred in the opinion because, while he was of the view that the district court's findings would support an inference of purposeful discrimination, he deemed too drastic the remedy ordered by the district court for reorganizing the municipal government.
Justice Stevens, also concurring, stated that an at-large election system may violate both the fourteenth and fifteenth amendments but that the "proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker." Id. at 90, 100 S.Ct. at 1512, 64 L.Ed.2d at 73.
Id. at 91, 100 S.Ct. at 1513, 64 L.Ed.2d at 73-74 (Stevens, J., concurring).
Justices Brennan and Marshall were of the view that discriminatory impact was sufficient under either the fourteenth or fifteenth amendments and that the lower courts should have been affirmed, and also agreed with Justice White that discriminatory purpose could be inferred from the totality of facts in the case.
In the first case after Bolden to reach the Fifth Circuit, United States v. Uvalde Consolidated Independent School District, 625 F.2d 547 (5 Cir. 1980), the court interpreted the various opinions in the case to indicate that the fourteenth and fifteenth amendments and § 2 of the Voting Rights Act are violated by the adoption or maintenance of at-large voting systems for a discriminatory purpose. Accordingly, the court reversed the district court's dismissal, for failure to state a claim upon which relief could be granted, of a complaint alleging that the use of at-large method of electing school board members was implemented with the purpose of injuring Mexican-American voters by precluding them from meaningful access to the political process.
In McMillan v. Escambia County, 638 F.2d 1239 (5 Cir. 1981), however, the Fifth Circuit held that "vote dilution violates only the Fourteenth Amendment" and that there is no cause of action under either the fifteenth amendment or § 2 of the Voting Rights Act. Id. at 1243 n.9. The court further held that proof of the Zimmer criteria could no longer support a finding of discriminatory intent, but that the focus should be on the factors enumerated in Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), described as follows:
638 F.2d at 1243. The court held that responsiveness of governing officials to the needs of black citizens is irrelevant to a determination of whether an at-large system is adopted or maintained with a discriminatory purpose. Id. at 1248-49 & n.18.
In McMillan, the district court held invalid the at-large systems for electing county commissioners, the school board, and the city council. On appeal, the Fifth Circuit reversed only as to the county commission, about which the Court of Appeals noted that it had previously held that Florida's constitutional amendment requiring at-large elections, enacted in the early 1900's, was not racially motivated. In addition, the court stated that since blacks did not represent a political threat at that time, having been effectively disenfranchised, the initial adoption of the at-large system was not done with discriminatory purpose. As to subsequent developments, the county commission had twice rejected recommendations of its charter government to change to single-member districts, but each commissioner testified that racial considerations played no role in his rejection of the proposal; furthermore, "the desire to retain one's incumbency unaccompanied by other evidence ought not to be equated with an intent to discriminate against blacks qua blacks." Id. at 1245. Since there was no evidence to contradict the commissioners' statements that their decision was not racially motivated, the Fifth Circuit held that the district court erred in disbelieving that testimony.
As to the school board, the court affirmed the decision that at-large elections were racially motivated. The court noted that school board elections had been from single-member districts for 44 years until 1947, following a court decision declaring unconstitutional the "white primary." In addition, evidence established that the legislature in 1975 retaliated against the school board's decision to support black interests on the question of whether the school nickname "Rebel" should be used by calling for a referendum election to increase the size of the Board and reduce members' salaries, which referendum passed overwhelmingly. The court held that since an earlier referendum to the same effect failed miserably, and since the atmosphere at the time of the 1975 referendum was racially charged, the district court did not err in concluding that the referendum vote was racially motivated. Id. at 1247.
Regarding the city council elections, the court found sufficient evidence of discriminatory purpose, including testimony that the city council requested the legislature to change to at-large system so it "wouldn't have this hassle of reapportioning to keep so many blacks in this ward and so many whites in that ward and keep the population in balance as to race." Also, Governor Askew testified that he was aware that one council member wanted the change to at-large elections to avoid a "salt and pepper council." Furthermore, on the night before the referendum election, a newspaper editorial stated:
The Fifth Circuit noted that "though not legislative history, editorials written contemporaneously with the action are probative evidence of the motivation of the action." Id. at 1248. A petition for certiorari filed in the Supreme Court was voluntarily dismissed by the parties. City of Pensacola v. Jenkins, 453 U.S. 946, 102 U.S. 17, 69 L.Ed.2d 1033 (1981).
Approximately one month after the McMillan decision, another Fifth Circuit panel decided two cases which somewhat conflict with McMillan, which was not cited in either opinion. In Lodge v. Buxton, 639 F.2d 1358 (5 Cir. 1981), prob. jur. noted, ___ U.S. ___, 102 S.Ct. 86, 70 L.Ed.2d 80 (1981), Judge Fay, writing for himself and Judge Jones, affirmed a district court's conclusion
Id. at 1375. (Emphasis in original). Thus, while endorsing a "totality of the circumstances" test, Lodge explicitly held that proof of unresponsiveness is essential and may not be replaced by other proof. Id. at n.35.
Lodge considered the following factors sufficient to establish discriminatory purpose:
1. Proof of unresponsiveness of county commissioners was shown by (a) allowing some blacks to be educated in largely segregated and inferior schools; (b) failing to hire more than a minimal number of blacks to county jobs, and paying those blacks lower salaries than white counterparts; (c) appointing very few blacks on county boards and committees; (d) failing to appoint any blacks to judicial selection committee; (e) failing to pave roads in black subdivisions; and (f) contributing to operation of a private school established to circumvent desegregation requirements. Id. at 1376-77.
2. Past discrimination against blacks was shown to impact on their present opportunities for effective participation in the electoral process by (a) the great increase in black voter registration as a result of the Voting Rights Act of 1965; (b) bloc voting along racial lines. In this regard, the court noted:
(c) past and present inadequate and unequal educational opportunities; and (d) past and present official conduct making it more difficult
3. Depressed socio-economic condition of blacks as opposed to whites made it more difficult for them to effectively participate in electoral process, e.g., most blacks lived at poverty level; most black households lacked some plumbing facilities; more blacks were employed in menial jobs and therefore paid less than whites; and the quality and quantity of education for blacks was inferior to that provided white children.
4. Blacks had less access to political process because of inability to participate in Democratic party because of the failure to appoint blacks to governmental committees in meaningful numbers, and "the social reality that person-to-person relations, necessary to effective campaigning in a rural county, was virtually impossible on an interracial basis because of the deep-rooted discrimination by Whites against Blacks." Id. at 1379.
5. State policy behind at-large election system was found to have been subverted to invidious purposes because the policy was determined by the legislature, and Burke County's representatives had always been white.
6. The large size of the county (832 square miles) impaired access of blacks in electoral process.
7. Majority vote requirement and fact that candidates must run for specific seats had potential adverse effects. With regard to this, the district court found that "though there is no anti-single shot provision, the requirement that candidates run for numbered posts has potential effects that are equally adverse."
8. Although candidates must run for particular seat, there was no residency requirement and, therefore, all candidates could reside in all-white subdivisions.
The Court of Appeals found appropriate the relief ordered by the district court, i.e., that all county commissioners be elected from single-member districts in future elections.
Judge Henderson dissented, holding the view that the case should be remanded for reconsideration in light of Bolden, which came down after the district court's decision. Judge Henderson also criticized the majority's requirement for and emphasis on unresponsiveness as a necessary factor since the Supreme Court in Bolden stated that such proof is relevant as only tenuous and circumstantial evidence.
In Thomasville Branch of NAACP v. Thomas County, Georgia, 639 F.2d 1384 (5 Cir. 1981), the same Fifth Circuit panel reversed a district court's decision that the at-large electoral system in Thomas County did not violate the fourteenth or fifteenth amendments. Reversal was found to be necessary since the lower court interpreted Bolden to mean that proof of Zimmer criteria is not sufficient to allow an inference of discriminatory purpose. The Court of Appeals encouraged the district court to consider on remand depressed socio-economic conditions, the size of the county, history of bloc voting, anti-single shot provisions, requirements that candidates run from numbered posts, and majority vote requirements in primary elections. Judge Henderson dissented on the basis of Bolden.
The case most factually similar to the one sub judice is Kirksey v. City of Jackson, 663 F.2d 659 (5 Cir. 1981), in which black citizens challenged the commission form of government adopted in 1912 in Jackson, Mississippi, after a 1977 defeat on a referendum proposing a change in the governmental system. There plaintiffs sought to establish racial motivation on the part of the electorate in defeating the 1977 referendum,
As to the question of whether the at-large system had been since maintained for the purpose of diluting black voting strength, District Judge Nixon first held that a violation of the fifteenth amendment or of § 2 of the Voting Rights Act had not been shown since "Negroes in Jackson register and vote without hindrance" and since "the decision to adopt and maintain the commission form of government is a political decision that is supported by valid and articulable justification inasmuch as its basic election system is the same as that followed by literally thousands of municipalities and other governmental units throughout the nation." Id. at 505. The court next concluded that a fourteenth amendment violation had not been proved since if race were a factor in the 1977 referendum, it played only an insignificant part, and the referendum would have failed even if race had not been considered by the electorate.
The district court's opinion was affirmed on appeal, the Fifth Circuit holding:
On petition for rehearing and denial of rehearing en banc, the court "clarified" its opinion as follows:
Kirksey v. City of Jackson, 669 F.2d 316 (5th Cir., 1982).
Our understanding of the foregoing decisions constrains us to conclude that, to
Initially we hold that blacks of voting age in Greenwood register and vote freely, without hindrance, interference or impediment of any kind, and plaintiffs' claims based upon § 2 of the Voting Rights Act and the fifteenth amendment as to alleged denial or abridgement of the right to vote may not be sustained. Similarly, the court finds no merit in plaintiffs' contention that the commission form of government constitutes a "badge of slavery" to black citizens violative of the thirteenth amendment, and that claim, too, is summarily rejected. Plaintiffs' contention that the commission form of government impermissibly dilutes or cancels black voting strength contrary to the Equal Protection Clause of the fourteenth amendment as well as the spirit, if not the letter, of the fifteenth amendment requires detailed discussion.
Plaintiffs urge that the passage of Chapter 120, Mississippi Laws of 1912 (now codified as Miss.Code Ann. § 21-5-1 (1972)) by the Mississippi legislature permissively authorizing but not mandating the commission form of government for cities in the state was itself racially motivated and is therefore an unconstitutional attempt to dilute or cancel black voting strength. This argument must be rejected for several reasons. First, on the facts found and which are indisputably correct, blacks in 1912, and prior thereto, were largely disenfranchised throughout the state and had only limited access to the polls, and they were not affected significantly, if at all, by the at-large voting system which the legislature contemplated for the commission form of government. Plaintiffs offered no persuasive evidence of legislative intent that the statute was passed to effect a racially discriminatory method of electing city officials. On the contrary, the record supports a finding that by adopting the 1912 statute, the legislature acted in line with reforms embraced within the progressive movement then spreading throughout the United States. The objective, non-discriminatory character of that movement is well documented.
Bolden, supra, at 70, n.15, 100 S.Ct. at 1502 n.15, 64 L.Ed.2d at 60-61 n.15. Political scientists have generally agreed that the progressive movement, including advocacy of the commission form of city government, was not racially motivated or aimed at disenfranchising minority groups, but was intended to eliminate evils that developed in many cities from use of the ward method of electing officials. We therefore conclude that the commission form of government authorized in 1912 by the Mississippi Legislature was not conceived by state lawmakers as "a purposeful device to further racial discrimination," but instead was designed to provide an opportunity for cities to enhance the efficiency of their governments, subject to approval of local electorates.
Our next inquiry concerns the legality of Greenwood's 1914 referendum which established the commission form of government and the 1977 referendum reaffirming continued use of that system. As for the original referendum plaintiffs produced no direct evidence of racial motivation in what was an all-white election, and relied upon contemporaneous newspaper articles claimed to have racial connotation. As heretofore found, however, these articles were unrelated to a potential threat of
The court next considers the 1977 referendum in which the change to a mayor-council form of government with at-ward elections was overwhelmingly defeated. Plaintiffs assert that this outcome of the referendum evidences an intent to dilute black voting strength by maintaining an at-large election system in which black candidates for municipal office have invariably been defeated. Although the pros and cons of the change to a system with at-ward elections were vigorously debated throughout the community, the incumbent mayor and commissioners, two of whom had only recently assumed office with the public endorsement of GVL, took no official position on the question. Though no doubt interested in retaining their newly acquired incumbency, the elected city officials played no role in the campaign that preceded the referendum election beyond an expression by Commissioner Bass of a personal preference for the commission form of government. Thus, the record is "devoid of any proof linking a racial reason to the opposition of any person acting on behalf of the [City]." Kirksey, supra, at 664. The attempt by plaintiffs to attribute the views of Hite McLean and Hardy Lott to the City is without factual support, and we decline to infer that they spoke with authority from the City or its elected officials. Neither can the motivations of the electorate, whatever their reasons for defeating the referendum, fairly be attributable to the defendant officials.
Plaintiffs nevertheless urge that there is circumstantial evidence of racial motivation in the results of the referendum because retention of the commission form was approved by almost a three to one majority of the electorate that was heavily contributed to by votes cast by the all-white North Greenwood ward. It is impossible for us to determine with any reasonable degree of certainty the reason or reasons for the defeat of the proposed change. The total voter turnout for the referendum was low compared to candidate elections prior and subsequent to the 1977 referendum. For example, while only 3,835 voters cast ballots in the referendum, 4,797 voted in the 1977 Democratic primary election for mayor. Significantly, so few voters—1,069—cast votes in favor of change to so many more voters—2,186—who signed the petition requesting the referendum. This substantial loss of support for the proposal may be attributed to apathy or disinterest, satisfaction with newly elected officials, or a desire to maintain the status quo. It is certainly clear that neither blacks nor any other segment of the voting population were denied the opportunity to vote in the election and that had the petition signers and 581 additional voters cast ballots in favor of the proposed change, it would have been adopted. It appears, however, that after soliciting the requisite number of names to petition for a referendum, the proponents of the change failed to go forward and insure that the supporters would vote in the 1977 referendum. Thus, to grant plaintiffs the relief they request would mean that when faced with important elections, minority citizens could simply choose not to vote, and then challenge the election on the ground that whites who did vote defeated the proposal.
The record reveals that a campaign for and against the proposed change was prominently featured in the Greenwood newspaper, with known personalities taking sides
Kirksey, supra, at 662.
To allow inquiry into voters' motivations would open the door to endless challenges to all types of elections.
United Jewish Organizations v. Carey, 430 U.S. 144, 166-67, 97 S.Ct. 996, 1010, 51 L.Ed.2d 229, 246-47 (1977).
It is of course true that electorate's motivations are not immune from inquiry in proper cases. See Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). Each of those decisions, however, involved an attempt to circumvent constitutional mandates by local option. That is not the case here. At-large elections are not proscribed by the United States Constitution. Rather, under our reading of controlling precedent, a system for holding elections is invalid only if it was adopted or maintained by government officials for an invidious purpose. "And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at racial minority." James v. Valtiera, 402 U.S. 137, 141, 91 S.Ct. 1331, 1333, 28 L.Ed.2d 678, 682 (1971). We are unwilling, as were the Supreme Court in James and the Fifth Circuit in Kirksey to extend decisions allowing inquiry into voters' motivation to the case sub judice.
In summary, we hold that the 1912 legislative enactment authorizing the commission
Let an order issue accordingly.