United States Court of Appeals,
Eleventh Circuit.
No. 96-8884.
Bonnie L. ASKEW, Alvin L. Jackson, Sr., Larry G. Morrow, Sr., Committee of Concerned
Citizens for the Reappointment of Rome/Floyd County, NAACP of Rome/Floyd County, Plaintiffs-
Counter-Defendants, Appellants, Cross-Appellees,
v.
CITY OF ROME, Georgia City Commission, City of Rome Georgia, Defendants-Counter-
Claimants-Appellees, Cross-Appellants,
William George Pullen, in his Official Capacity as Chair of the Rome City Commission, City of
Rome, Georgia Board of Education, Sandra Burk, in her Official Capacity as Chair of the Rome
Board of Education, Defendants-Appellees-Cross-Appellants,
Joan Treglawn, in her Official Capacity as Superintendent of Elections of Floyd County,
Georgia, Diane Bojo, John Ware, Esther Vaughn, Defendants-Appellees,
United States of America, Intervenor-Cross-Appellee.
Nov. 14, 1997.
Appeals from the United States District Court for the Northern District of Georgia. (No. 4:93-CV-
028), Harold L. Murphy, Judge.
Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL*, Senior District Judge.
PER CURIAM:
The judgment of the district court is affirmed for the reasons set forth in the thorough Order
(opinion) entered on June 25, 1996 and attached hereto as Exhibit A.
AFFIRMED.
ATTACHMENT
APPENDIX
United States District Court,
Northern District of Georgia,
Rome Division.
Bonny L. Askew, et al., Plaintiffs,
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
v.
City of Rome, Georgia, et al., Defendants.
Civil Action 4:93-cv-28-HLM.
ORDER
This case came before the Court for a four day non-jury trial on January 29. Plaintiffs
contend that the Defendant City of Rome's methods of electing its City Commission and Board of
Education are intentionally discriminatory against Rome's African-American community and have
the effect of "diluting" the "black vote." They contend, therefore, that Rome's methods violate
Section 2 of the Voting Rights Act and several provisions of the United States Constitution.
Defendants vehemently disagree. The Court has carefully considered both the testimonial and
documentary evidence presented at trial. The Court makes the following findings of fact and
conclusions of law.
I. Findings of Fact
A. Parties
1. The individual Plaintiffs—Bonny L. Askew, Alvin L. Jackson, Sr., and Larry G. Morrow,
Sr.—are African-American citizens and voters of Rome, Georgia.
2. The organizational Plaintiffs—Committee of Concerned Citizens for the Reapportionment
of Rome/Floyd County ["CCCRRFC"] and the NAACP of Rome/Floyd County ["NAACP"]—are
organizations composed predominantly of African-Americans who reside in Rome and Floyd
County.
3. Defendants are the City of Rome, the Rome City Commission, Chairman of the Rome City
Commission William George Pullen, the Rome Board of Education, and Chairwoman of the Rome
Board of Education Sandra Burk ("the City Defendants").
4. Election Superintendent of Floyd County Evon Billups and Floyd County Board of
Elections members Esther Vaughn, John Ware, and Donna Bojo are also Defendants ("the County
Defendants").
2
B. Current Methods of Election
5. Elections for the City Commission and Board of Education are conducted by the
Defendant Floyd County Board of Elections. The County Defendants are also responsible for
conducting registration for city voters.
6. No direct barriers to black voting exist in Rome.
7. While Rome does not have any official anti-single shot policy, many of the election ballots
contain language like "Vote for 3" or "Vote for 7," suggesting that voters must vote for a full slate
of candidates. Because of this language, the average voter is more likely to exercise all of her votes
than she would otherwise be.
a. City Commission
8. The Rome City Commission consists of nine members elected at-large by plurality vote
in non-partisan elections.
9. Three City Commissioners are elected from each of three residency wards in which the
Commissioners must reside.
10. In 1990, the wards varied widely in size and population:
Ward Total Pop. % of City Pop. B Pop. % B
Ward 1 6,228 20.5 2,767 44.4
Ward 2 9,405 31.0 4,189 44.5
Ward 3 14,691 48.4 2,054 14.0
As a result of the different population sizes of the City Commission residency wards, Ward 1 had
less than half the candidate pool of Ward 3.
11. The current system allows Commissioners to be elected to a particular ward seat even
though the voters in that ward favored other candidates.
12. The top three vote getters in each of the three residency wards for City Commission are
elected.
3
13. City Commissioners are elected to four year staggered terms. The six members from
Wards 1 and 3 are elected at one election, and the three members from Ward 2 are elected at another
election two years later.
14. The three current City Commissioners from Ward 2 were elected in 1993 and the six
current City Commissioners from Wards 1 and 3 were elected in 1995.
15. When vacancies on the City Commission occur, Commissioners generally appoint
someone to fill that position until the next regularly scheduled election for that residency ward.
b. Board of Education
16. The Rome Board of Education consists of seven members elected at-large by plurality
vote in non-partisan elections.
17. Board of Education members are elected to four year concurrent terms.
18. There is no residency ward requirement for Board of Education members.
19. The top seven vote getters are elected. Thus, all seven Board of Education members
were elected in 1993.
20. When vacancies on the Board of Education occur, Board members generally appoint
someone to fill that position until the next regularly scheduled election.
C. Origin and Background of Methods of Election.
21. Between 1847 and 1918, the City Commission operated under several different
schemes—having a mayor or first Commissioner with a varying number of council members,
alternating between residency and no residency requirements, majority and plurality vote, and
staggered and concurrent terms.
22. In 1909, the Board of Education consisted of 5 members elected at large by plurality
vote.
23. In 1918, the Georgia legislature adopted a new charter for the Defendant City of Rome
which serves as the origin of the City's current election system for both the City Commission and
Board of Education.
4
24. The 1918 charter created a seven member City Commission elected at-large to concurrent
terms by plurality vote with one Commissioner elected from each of seven residency wards.
25. The 1918 charter created the position of city manager who directed day to day city
government.
26. The 1918 charter created a five member Board of Education elected at-large.
27. In 1929, the city charter was amended to increase the number of Commissioners from
seven to nine. The amendment added two wards to the Commission to cover newly annexed areas
for a total of nine residency wards from each of which one member was elected at-large to
concurrent terms by plurality vote.
28. In 1966, the Georgia legislature enacted legislation reducing the number of wards for the
Rome City Commission from nine with one member each to three wards with three "numbered
posts" in each.
29. Prior to this change, one of the nine wards had a majority of black registered voters, and
two other wards were 44 and 46 percent black in population respectively.
30. In 1966, the Georgia legislature enacted legislation adopting a majority vote requirement
for primary and general elections for the City Commission and Board of Education.
31. In 1966, the Georgia legislature enacted legislation adopting staggered terms for the City
Commission and Board of Education.
32. In 1966, the Georgia legislature enacted legislation increasing the number of members
on the Board of Education from five to six and adopted a residency ward requirement for the Board
of Education using the same three residency districts adopted for the City Commission with two
numbered posts in each ward.
33. In 1970, the Georgia legislature enacted a runoff requirement for City Commission
elections in which no candidate received a majority of the vote.
34. In 1971, the Georgia legislature enacted a runoff requirement for Board of Education
elections in which no candidate received a majority of the vote.
5
35. The 1966, 1970, and 1971 election changes were not submitted to the Attorney General
of the United States for preclearance under Section 5 of the Voting Rights Act until 1975.
36. Between 1966 and 1974, elections for the City Commission and Board of Education were
conducted under the unprecleared systems.
37. In October, 1975, the Attorney General interposed an objection to the majority vote
requirement and runoff provisions for both the City Commission and Board of Education, the
numbered post and staggered term provisions for the City Commission and Board of Education, and
the residency ward requirement for the Board of Education.
38. The Attorney General stated that he could not conclude as required by Section 5 of the
Voting Rights Act that these electoral changes "in the context of the at-large elections that presently
exist" would not have a racially discriminatory effect.
39. The at-large method of election for the City Commission and Board of Education, as well
as the use of residency wards for the City Commission, predated the Attorney General's jurisdiction
under Section 5 and, hence, were not subject to Section 5 review.
40. In October, 1975, the Attorney General also interposed an objection to thirteen
annexations because he could not conclude that they did not have "a racially dilutive effect on voting
in Rome."
41. In 1977, the City of Rome, its city manager, and Chair of the City Commission filed suit
in the United States District Court for the District of Columbia ("Rome I ") seeking a declaratory
judgment that the election changes objected to by the Attorney General complied with Section 5.
42. In Rome I, the district court found that the majority vote requirement, numbered posts,
and staggered terms for both the City Commission and Board of Education, as well as the residency
requirement for the Board of Education, violated Section 5 because they had a facially
discriminatory effect.
43. In 1980, the Supreme Court affirmed the district court's decision finding Section 5
objections.
6
44. Subsequent to the Supreme Court's decision, the Attorney General declined to withdraw
his objection to the Defendant City's proposed adoption of residency wards for the Board of
Education.
45. Rome complied with the Supreme Court's decision and eliminated the offending practices
from its electoral system.
46. In 1983, the City proposed and the Attorney General precleared, a change from
concurrent to staggered terms for City Commission.
47. The staggered terms for City Commission were implemented in the 1984 election in
which Commission candidates from Wards 1 and 3 were elected for three year terms expiring
January, 1988 and those from Ward 2 were elected for five year terms expiring January, 1990.
48. With the adoption of staggered terms, Rome's City Commission election system required
twice as many elections as held previously, and twice as many elections as are conducted for the
Board of Education.
49. In 1987, the City proposed, and the Attorney General objected to, the adoption of
staggered terms for the Board of Education.
50. In 1988, the City proposed, and the Attorney General precleared, legislation increasing
the size of the Board of Education from six to seven and setting an election for all Board of
Education members in 1988.
51. In 1992, Defendant CCCRRFC, Defendant NAACP and 60 African-American citizens
petitioned the Rome City Commission to change the method of election for the Commission and
Board of Education because they believed that at-large voting unfairly hindered the black
community's ability to elect its favored candidates. In presenting their request for a voluntary
change in Rome's methods of election, the citizens committee appeared at a number of City
Commission meetings and provided the Commission with a number of proposed district election
plans.
7
52. The City had several alternative district election plans drawn by the state legislative
reapportionment office.
53. The City also conducted a survey of the election systems used by other cities in Georgia
and neighboring states.
54. In January, 1993, the Commission voted to retain the current electoral systems with the
exception of eliminating partisan elections.
55. In 1993, the Attorney General precleared a change from partisan to nonpartisan elections
for both the City Commission and the Board of Education. This election change was made at the
instigation of the City Commission, not as the result of citizen input.
D. Demographics and Geography
a. Population
56. In 1990, Rome's population was as follows:
Total population: 30,326
White population: 20,860
Percentage white: 68.8%
Black population: 9,010
Percentage black: 29.7%
Total voting age population: 23,050
White voting age population: 16,814
Percentage white: 72.9%
Black voting age population: 5,928
Percentage black: 25.7%
57. In 1980, Rome's population was as follows:
Total population: 29,654
White population: 21,230
Percentage white: 71.6%
8
Black population: 8,220
Percentage black: 27.7%
Total voting age population: 21,712
White voting age population: 16,406
Percentage white: 75.6%
Black voting age population: 5,176
Percentage black: 23.8%
58. In 1970, Rome's population was as follows:
Total population: 30,759
White population: 23,499
Percentage white: 76.4%
Black population: 7,216
Percentage black: 23.5%
Total voting age population: 20,945
White voting age population: 16,590
Percentage white: 79.1%
Black voting age population: 4,355
Percentage black: 20.8%
59. Between 1970 and 1990, the percentage of the total population in Rome that was African-
American increased from 23.5 to 29.7%: an increase of more than six percentage points.
60. Between 1970 and 1990, the percentage of the total voting age population in Rome that
is African-American increased from 20.8 to 25.7%: an increase of nearly 5 percentage points.
b. Registered Voters
61. As of October 31, 1995, the number of registered voters in Rome was as follows:
Total registered voters: 12,971
White registered voters: 10,098
9
Percentage white: 77.85%
Black registered voters: 2,801
Percentage black: 21.6%
62. As of October 26, 1993, the total number of registered voters in Rome was 11,903, of
which 9,382 (78.8%) were white and 2,471 (20.8%) were black.
63. As of September 12, 1989, the total number of registered voters in Rome was 11,339, of
which 8,970 (79.1%) were white and 2,347 (20.69%) were black.
64. As of August, 14, 1984, the total number of registered voters in Rome was 12,042, of
which 9,692 (80.5%) were white and 2,327 (19.3%) were black.
65. As of 1975, Rome had a total of 13,097 registered voters of which 83.9% were white and
15.5% were African-American.
66. Between 1975 and October, 1995, the percentage of total registered voters in Rome who
were African-American increased from 15.5 to 21.6%: an increase of more than six percentage
points and an overall increase of more than 39%.
c. Annexations
67. Including annexations prior to February, 1978 and those between March, 1985 and May,
1993, 4,487 persons have been annexed into Rome, of which 4,218 (94%) are white and 228 (5%)
are African-American.
68. Approximately 15% of Rome's total population, 20% of its white population, and 3.2%
of its black population reside in annexed areas.
d. Voting Precincts
69. There are currently six voting precincts wholly contained within the city limits of Rome.
As of October 27, 1995, the number of persons registered to vote in each of those precincts was as
follows:
70. As of October 26, 1993, the number of persons registered to vote in each of those
precincts was as follows:
10
71. There are also currently seven voting precincts which lie partially within the city limits
of Rome as a result of city annexation.
72. As of October 27, 1995, the number of persons registered to vote in city elections in
those split precincts was as follows:
Precinct Total White Black Other
Alto Park 240 237 3 0
Etowah 74 60 14 0
Garden Lakes 825 802 18 5
East Lindale 87 32 55 0
Riverside 8 8 0 0
Chulio 0 0 0 0
Glenwood 6 6 0 0
West Lindale 38 38 0 0
73. As of October 26, 1993, the number of persons registered to vote in city elections in
those split precincts was as follows:
e. School Zones
74. There are currently eight elementary schools in the Rome School District. Students are
assigned to particular schools according to the district in which they live.
75. As of September 3, 1993, the number of students in each of the elementary schools was
as follows:
School White % Black % Total
Anna K. Davie 11 206 217
East Central 320 178 498
Elm Street 204 136 340
Main 23 294 317
11
North Heights 138 186 324
Southeast 16 183 199
West Central 242 167 409
West End 488 46 534
TOTAL 1,442 1,396 2,838
76. Three of Rome's eight public elementary schools have student bodies which are more
than 91% black, and one which is more than 91% white.
77. Approximately 51 percent of the students in the Rome School District are white and 49
percent are black.
f. City and Ward Boundaries
78. Rome has irregularly shaped city boundaries and it appears that the current city boundary
splits census blocks. There are numerous portions of Floyd County which are completely
surrounded by city land constituting islands of Floyd County within the city limits of Rome.
79. Geographic compactness has not been a traditional districting criteria for Rome as
evidenced by the City's irregular boundaries and its pattern of annexation. Portions of the City are
simply extensions along a highway which are even less than a block wide.
80. Three rivers run through Rome. The residency ward boundaries trace the rivers' paths.
81. Rome citizens frequently cross bridges to carry on their day-to-day business.
82. The current ward lines used for City Commission include multiple elementary school
attendance zones within each ward. People living in the same ward have children attending different
schools. Similarly, the current ward lines include multiple voting precincts within any one ward.
People living in the same ward vote in different places.
g. Districting Plans
83. In constructing district election plans for the Rome City Commission and Rome Board
of Education, Plaintiffs' expert, Mr. Cooper, attempted to follow traditional redistricting principles
such as one person-one vote, contiguity, compactness, and utilizing whole census blocks. These
12
districting variables interact with each other: any change in one affects others. For example, the
one person-one vote requirement affects the district boundary, while shape considerations affect the
overall plan deviation. The irregular shape of the City's boundaries affects the shape of the districts
drawn by Mr. Cooper. In drawing districts, Mr. Cooper utilized only official data produced by the
1990 census. Mr. Cooper also followed the districting guideline that the overall population
deviation within a plan should not exceed 10%.
84. Mr. Cooper used clearly observable boundaries, such as streets used to demarcate census
blocks, in constructing districts. There are 749 populated census blocks in Rome. Census block
boundaries are defined by the Census Bureau in consultation with local planning officials using
clearly observable boundaries.
85. Mr. Cooper's plans and Defendants' plans are described below. The Court finds as fact
that these plans are true and accurate representations of possible districting schemes for Rome.1
86. Plaintiffs' Exhibit 210 is a nine single-member district plan with a total plan deviation
of 8.69%. The plan includes four districts with African-American population majorities of 57.6,
54.6, 55.6, and 62.4%. The black voting age population percentage in these four districts is 51.9,
50.5, 50.1, and 55.7% respectively.
87. Plaintiffs' Exhibit 210A is a nine single member district plan with a total plan deviation
of 4.01%. The plan includes three districts with African-American population majorities of 62.6%,
66.0%, and 65.1%. The percent black voting age population in these three districts is 57.0%, 60.2%,
and 59.0% respectively.
88. Plaintiffs' Exhibit 61 is a nine single-member district plan drawn for Defendants by the
State Reapportionment Office with a total plan deviation of 7.69%. The plan includes three districts
1
In other words, the Court simply finds that these plans are what they purport to be. For
example, the Court concludes that if district lines are drawn as they are in Plaintiffs' Exhibit 210,
four of the districts would have 57.6, 54.6, 55.6, and 62.4% African-American majorities. The
Court does not yet reach the question whether any of the plans are legally sufficient vote dilution
remedies.
13
with African-American population majorities of 71.15, 65.68, and 51.68%. The percent black voting
age population in these three districts is 65.75, 59.57, and 46.91% respectively.
89. Plaintiffs' Exhibit 61A is another nine single-member district plan drawn by the State
Reapportionment Office for Defendants with a total population deviation of 8.04%. The plan
includes three districts with African-American population majorities of 67.18, 67.10, and 52.16%.
The percent black voting age population in these three districts is 61.54, 60.82, and 47.25%
respectively.
90. Plaintiffs' Exhibit 159B is a three district plan under which three members would be
elected from each of three districts, similar to the current ward system. This plan has one
three-member district which is 66.6% black in general population and 60.8% black in voting age
population. The plan has an overall deviation of 4.55%.
91. Plaintiffs' Exhibit 59 is a three district plan drawn by the State Reapportionment Office
for Defendants. This plan has a district which is 63.68% black in general population and 57.57%
black in voting age population with an overall deviation of 9.26%.
92. Plaintiffs' Exhibit 209 is a seven district plan which has an overall deviation of 6.42%.
The plan includes two districts with African-American population majorities of 70.0 and 69.3%.
The voting age population majorities in these two districts are 64.1 and 64.5% respectively.
93. Plaintiffs' Exhibit 60 is a six district plan drawn for Defendants with an overall deviation
of 7.48%. The plan includes two districts with African-American population majorities of 64.54 and
61.93%. The voting age population majorities in these two districts are 58.94 and 55.46%
respectively.
E. Rome's Voting History
94. Reverend Clyde Hill, a black man, ran unsuccessfully for Rome's Board of Education in
1970. Rev. Hill received the highest number of votes in the general election, but was defeated by
one of his white opponents in the run-off necessitated by the majority vote requirement. More
14
Romans voted in the run-off than in the general election. Normally, less people vote in runoffs than
vote in general elections.
95. Appointment has been the primary means by which blacks in Rome have initially come
to hold office. Five black Romans—Mr. Fielder, Mr. Askew, Ms. Sims, Mr. Carmichael, and Mr.
Leggette—have been members of the City Commission or Board of Education since 1980. Of these
five, four were appointed. Only one black officeholder on these bodies, Judy Sims, attained public
office in the first instance through election.
96. Elgin Carmichael, the first black known to sit on a governing body in Rome, was
appointed to the Board of Education in 1975.
97. Mr. Carmichael was elected to the Board of Education in 1980.
98. Napoleon Fielder, the first black known to serve on the City Commission, was appointed
in 1980 to a Ward 2 seat.
99. Napoleon Fielder was elected to a Ward 2 seat in 1980, 1984, 1989, and 1993.
100. Bonny L. Askew, an African-American, was appointed to a Ward 2 seat on the City
Commission in 1982. He was defeated in his reelection attempt.
101. Judy Sims, an African-American, was elected to the Board of Education in 1984, 1988,
and 1993. Ms. Sims was not first appointed.
102. In late 1995, Roy Leggette was appointed to the Board of Education. He has not yet
run for reelection.
103. Samuel Burrell, the first black known to serve on the Floyd County Board of
Commissioners, was appointed to that body in 1992. In 1994, Samuel Burrell was elected to that
post. Mr. Burrell was the favored candidate of both black and white Rome voters.
104. The specific results of Rome elections for City Commission and Board of Education
since 1980 in which a black candidate has run are as follows:2
2
The following conclusions regarding black and white voting percentages are taken from the
analysis of Plaintiffs' expert Dr. Cole. Defendants' expert, however, opined at trial that Dr.
Cole's conclusions could not be relied upon because they are based upon insufficient voting data.
15
% Black Reg. Voting % White Reg. Voting Outcome
Election/Name of Candidate(s) for Cand.(s) for Cand.(s) for Cand.(s)
_______________________________________________________________________________
_______________________________________________________________________________
1980 Democratic Primary
City Commission Ward 2
Caldwell 19 19 2
Cofield (A-A) 29 4 5
Fielder (A-A) 37 18 1
Hines 7 12 3
Wheeler 1 10 4
The Court concludes that Plaintiffs' expert employed the generally accepted methods of voting
analysis—ecological regression analysis, ranking analysis and homogeneous precinct analysis.
The Court, therefore, will not discount Plaintiffs' expert's conclusions regarding the percentages
of registered voters of each race who voted for particular candidates. The Court recognizes that
Dr. Cole's projections may be inaccurate to a certain degree, but their usefulness is due to the
pattern of behavior that they demonstrate. This pattern will not be fatally altered if a few of his
percentages are somewhat inaccurate. The Court, therefore, accepts Dr. Cole's estimates as true.
This is not to say that the Court accepts Dr. Cole's legal conclusions regarding polarization. That
determination is for the Court based upon its reading of the relevant law. The Court simply
accepts Dr. Cole's numbers.
Furthermore, the Court notes that the percentages listed in the following charts
represent the percent of registered voters of a particular race who voted for a particular
candidate. This appears to be an unusual statistic to use to gauge bloc voting in voting
rights cases. Usually, bloc voting is judged by examining the percentage of actual voters
of a particular race who voted for a particular candidate. Presumably Plaintiffs' expert
employed percent of registered voter numbers because they are more reliable than
percent of actual voter numbers. The Court is not concerned by this unusual statistical
feature, but simply notes it for purposes of clarity.
Finally, the Court notes that the designation "A-A" next to a candidate's name
indicates that she is African American. Those without such designations are white.
16
1980 General Election
City Commission Ward 2
Caldwell (D) 18 22 2
Dunwoody (R) 9 22 3
Fielder (D)(A-A) 30 23 1
Hines (D) 16 14 4
Board of Education
Brewster (R) 9 17 6
Bryant (R) 11 18 3
Carmichael (D)(A-A) 24 17 1
Clark (D) 3 17 7
Evans (D) 12 17 5
Franklin (D) 18 17 2
Gaylor (D) 11 12 9
Gould (R) 9 13 8
Ham (R) 8 10 10
Jones (D) 22 16 4
Simmons (R) 2 10 11
1984 Democratic Primary
City Commission Ward 2
17
Askew (A-A) 35 7 4
Fielder (A-A) 37 19 1
Fricks 7 22 2
Steinbruegge 6 20 3
City Commission Ward 3
Kennedy 11 22 1
Mitchell 10 22 2
Smith (A-A) 34 7 4
Wade 5 17 3
Board of Education
Bell 3 17 5
Burk 11 20 1
Chapman 5 12 7
Clark 4 20 2
Crider 2 11 8
Greer 4 15 6
Jones 19 16 4
Milam 1 7 10
Morrow (A-A) 27 5 9
Sims (A-A) 33 13 3
1984 General Election
18
City Commission Ward 2
Bratcher (R) 0 6 5
Dunwoody (R) 5 13 4
Fielder (D) (A-A) 20 16 1
Fricks (D) 8 17 2
Steinbruegge (D) 7 15 3
Board of Education
Bell (D) 8 18 5
Burk (D) 12 20 1
Clark (D) 6 20 2
Glover (R) 0 11 7
Greer (D) 4 20 6
Jones (D) 9 20 3
Sims (D) (A-A) 15 17 4
1987 Democratic Primary
City Commission Ward 3
Kennedy 10 7 1
Mitchell 9 7 2
Smith (A-A) 17 2 4
19
Wade 3 6 3
1988 General Election
Board of Education
Bell 25 38 3
Burk 23 41 1
Burnes 13 32 8
Clark 21 37 5
Greer 18 35 6
Holland (A-A) 38 17 9
Jones 25 37 4
Perry 4 23 10
Sims (A-A) 39 35 2
Swann 2 40 7
1989 Democratic Primary
City Commission Ward 2
Fielder (A-A) 21 8 1
Fricks 9 9 2
Holland (A-A) 18 1 4
Steinbruegge 7 8 3
20
1993 Democratic Primary
City Commission Ward 2
Askew (A-A) 8 4 3
Fielder (A-A) 10 6 1
Fricks 7 6 2
Board of Education
Burk 8 5 7
Clark 9 5 4
Greer 8 6 3
Horton 8 5 6
Jernigan 4 5 8
Lightfoot 9 5 5
Sims (A-A) 10 5 1
Swann 8 6 2
1993 General Election
City Commission Ward 2
Askew (D) (A-A) 28 5 5
Doss (R) 10 13 3
Fielder (D)(A-A) 32 13 1
21
Fricks (D) 22 14 2
Norman (R) 5 13 4
Board of Education
Burk (D) 23 13 4
Burnham (R) 9 12 9
Clark (D) 26 14 3
Greer (D) 23 14 5
Horton (D) 23 12 8
Lightfoot (D) 27 12 6 (tie)
Sims (D) (A-A) 33 14 1
Smith (R) 10 16 6 (tie)
Swann (D) 25 15 2
1995 General Election
City Commission Ward 3
Doster 0 12 4
Griffin 8 14 1
Leonard 3 15 3
McClure (A-A) 7 7 5
Toles 0 8 6
Wallace 4 15 2
Williams (A-A) 10 5 7
22
105. The results of Rome's City Commission elections from 1980 through 1993 in which no
black candidate ran are as follows:3
% Black Reg. Voting % White Reg. Voting Outcome
Election/Name of Candidate(s) for Cand.(s) for Cand.(s) for Cand.(s)
_______________________________________________________________________________
_______________________________________________________________________________
1980 Democratic Primary
City Commission Ward 1
Hanson 19.1% 15.4% W
Harrington 20.6 15.2 W
Pullen 23.4 11.1 W
Wilson 16.7 8.4 L
City Commission Ward 3
Duke 6.1 3.5 L
Kennedy 23.0 11.0 W
Mitchell 13.7 13.4 W
Newton 20.2 7.4 L
Phillips 11.9 6.8 L
3
The forgoing statistics were derived from Plaintiffs' expert's analysis of elections in which
black candidates participated. The following statistics, in contrast, were derived from
Defendants' expert's analysis of elections in which no black candidate participated. For purposes
of clarity, the Court simply notes that Defendants' expert did not rank the candidates by order of
finish. Instead, he simply noted which candidates won the election. In the fourth column below,
therefore, the Court uses the letters "W" and "L" to indicate who won and lost, rather than the
numbers used above to indicate order of finish.
23
Wade 12.3 13.1 W
1980 General Election
City Commission Ward 1
Callan (R) 5.0% 15.8% L
Hanson (D) 24.7 10.0 W
Harrington (D) 17.8 15.6 W
Morris (R) 8.1 15.7 L
Pullen (D) 19.3 13.0 W
City Commission Ward 3
Kennedy (D) 23.8 20.0 W
Mitchell (D) 20.0 19.9 W
Wade (D) 16.0 20.5 W
1984 General Election
City Commission Ward 1
Hanson (D) 11.1% 16.3% W
Harrington (0) 10.7 16.8 W
Pullen (D) 15.5 17.0 W
Williams (R) 3.0 5.5 L
24
City Commission Ward 1
Kennedy (D) 11.7 19.3 W
Mitchell (D) 9.2 18.2 W
Wade (D) 7.8 17.2 W
1991 General Election
City Commissioner Ward 1
Hanson 11.6% 15.2% L
Harrington 10.7 16.0 W
Pullen 12.8 16.4 W
Smith 15.2 21.0 W
City Commissioner Ward 3
Griffin 17.2 19.4 W
Kennedy 16.8 19.7 W
Laseter 5.6 14.2 L
Wade 11.9 16.0 W
106. No African-American has run for one of the three Ward 1 City Commission seats.
107. The number of African-Americans currently holding office on Rome's local governing
bodies is identical to the number in 1980: one on both the City Commission and Board of
Education.
25
108. The percentage of candidates for Rome's governing bodies who are black is lower than
the percentage of Rome's population that is black—i.e. lower than roughly 30%.
109. The most important factor determining whether individuals run for elected office is
whether they believe they will be successful.
110. Some black citizens who are interested in running for local office have not run because
they believe they cannot win under Rome's present electoral systems. A change in the method of
elections to single-member districts with some majority black districts would increase the number
of black candidacies for local office.
111. Some Black citizens believe their votes do not affect the outcome of local elections.
This sense of a "lack of political efficacy" causes some black voters to eschew political involvement.
112. In 1995, Reverend Ingram, a black leader in Rome, publicly endorsed candidate
Wallace who was running for City Commission Ward 3. Mr. Wallace is white. The endorsement
was targeted at attracting the votes of black voters.
113. In the past, some informal "tickets" have been formed for particular Rome elections.
No black candidates have been included in any of these tickets. These "tickets" have been
infrequently formed, however, because all Board of Education candidates and all City Commission
candidates from a particular ward run against each another. None of the tickets were formed by any
formal political party.
114. The cost of campaigning and being elected in Rome is increasing. Running at-large
citywide costs more than running from a single-member district. In the 1990s, Commissioners have
spent $5,000 or more to be elected.
115. Plaintiff Askew is articulate and bright, but did not campaign hard in the white
community in his election attempts. The Court also notes the following portion of his testimony:
A. [Black Romans] have seen what happens in this community when someone stands up.
That's why Mr. Fielder sits down and doesn't address black issues. That's why Ms. Sims
doesn't address black issues, because if they did, they wouldn't be there anymore.
...
26
Q. You know that politics is a compromise situation everywhere, isn't it?
A. I don't compromise my integrity, Mr. Brinson.
...
Q. Don't you think that you have to pull, and tug, and bargain, and give up, some give and
take?
A. But you've got to stand up, Mr. Brinson, you've got to stand up.
...
A. You can't lay down, let people run over you and that's basically what happens in [the
black] community, because we feel like we have no other hope.
...
A. [I]f my people turn out, then your people turn out. And if your people turn out, I can't
win.
From this testimony, the Court concludes that Mr. Askew views Rome's white and black
communities as in conflict with one another.
116. Mr. Holland did not "run hard" in either of his campaigns.
117. Rome's residency wards reduce the effectiveness of single-shot voting by reducing the
number of seats in each election. For example, the City Commission involves three separate
elections for three members each, instead of one election for nine members.
118. Rome's practice of staggering City Commission elections increases the frequency of city
elections. This has a depressing effect on both black and white voter turnout.
F. Socioeconomic Disparities
119. As of 1989, per capita income for white persons in Rome was $14,263; per capita
income for African-Americans in Rome was $6,798.
120. As of 1989, 12.22% of white persons (2,375) had income below poverty level; 33.47%
of African-Americans (2,955) had income below poverty level.
121. Of the 5,470 white families in Rome in 1989, 843 (15.41%) were female-headed
households with no husband present. Of the 2,341 black families in Rome, 1,133 (48.4%) were
female-headed households with no husband present.
27
122. Of the 9,744 white persons sixteen years and over in the labor force in Rome in 1989,
499 (5.12%) were unemployed. Of the 4,038 black persons sixteen years and over in the labor force,
525 (13.00%) were unemployed.
123. Of the 14,649 white persons in Rome who were 25 years and over in 1989, 40.72%
(5,965) attended some college or received a college or graduate or professional degree, 13.51%
(1,979) were college graduates, and 8.01% (1,174) had graduate or professional degrees. Of the
4,952 black persons in Rome who were 25 years and over, 19.14% (948) attended some college or
received a college or graduate degree, 3.19% (158) were college graduates, and 2.18% (108) had
graduate or professional degrees.
124. Of 3,168 housing units occupied by African-Americans in 1989, 1,129 (35.64%) were
owner-occupied and 2,039 (64.36%) were renter-occupied. Of 8,757 housing units occupied by
whites, 5,021 (57.34%) were owner-occupied and 3,739 (42.66%) were renter-occupied.
125. Of 8,757 white occupied housing units in 1989, 1,101 (12.57%) had no vehicle
available. Of 3,168 black occupied housing units, 984 (31.06%) had no vehicle available.
126. The percentage of the City's workforce which is black has declined by more than
one-quarter in the past 20 years, from 21.8% in 1973 to 15.9% in 1993. The City's black population
has increased during that period from 23.5 to nearly 30%.
127. The current black public employment rate has fallen even lower. As of January, 1996,
the Defendant City of Rome employed 687 persons of which minorities comprised only 12%.
128. Similarly, the percentage of new city employees who were black decreased from 37.9%
in 1974 to 14.0% in 1993.
129. In 1993, 61.3% of all black city employees (57 of 93 persons) earned $19,900 or less,
whereas 45.2% of all white city employees (221 of 489 persons) fell in this category.
130. In 1993, 46.2% of all black city employees (43 of 93 persons) were employed in the
service/maintenance job category, whereas 25.4% of all white city employees (124 of 489 persons)
were employed in this job category.
28
131. In 1993, 11.8% of all black city employees (11 of 93 persons) were employed in the
protective service job category, whereas 40.9% of all white city employees (200 of 489 persons)
were employed in this job category.
132. Between 1984 and 1992, the percentage of blacks employed by the Rome public schools
as teachers decreased from 17.9% (49 of 273) to 9.2% (23 of 250).
133. Between 1984 and 1992, while the total number of faculty and staff in the Rome schools
increased, the percentage of blacks on the faculty and staff decreased from 18.1% (55 of 304) to
13.4% (48 of 358.5).
134. Between 1986 and 1992, while the total number of persons employed by the Rome City
School District increased, the percentage of the total school workforce that was black decreased
from 23.3% (102 of 437) to 19.2% (98 of 510).
135. In 1986, the school district hired a total of 66 new employees of which 15 (22.7%) were
black, whereas in 1992, a total of 26 new employees were hired, of which 1 (3.8%) was black.
Similarly, in 1986, the school district hired a total of 33 new teachers of which 4 (12.1%) were
black, whereas in 1992, a total of 14 new teachers were hired, of which none were black.
136. In comparison to some other cities and communities with significant black and white
populations in Georgia, however, the aforementioned socio-economic disparities are not particularly
large.
G. Voter Registration
137. In 1995, 47.25% of age eligible blacks were registered to vote whereas 60.1% of age
eligible whites were registered to vote: a racial registration rate differential of 12.85%.
138. Throughout the 1980s and 1990s there has been a consistent 12 to 14% voter
registration rate differential between blacks and whites.
139. People with low socioeconomic status register to vote and turn out to vote in lower
percentages than people in higher socioeconomic categories.
H. Residential and Social Segregation
29
140. Rome's social organizations and churches continue to be largely segregated by race.
141. Nearly three quarters of Rome's black population (72.04% or 6,491 persons) lives in
majority black census blocks, and nearly one-half of the black population (45.25% or 4,077 persons)
resides in census blocks that are 90% or more black.
142. 94% of Rome's white population lives in majority white census blocks, and 57% of the
white population resides in census blocks that are 90% or more white.
143. In 1990, more than 76% (6,908/9,010) of Rome's total black population resided in the
North Rome, South Rome, and East Rome precincts, whereas only 12.8% (1,152/9,010) of Rome's
total black population resided in the Town Rome, Mount Alto One and Mount Alto Two precincts.
144. In 1995, two of the six city precincts (Mount Alto South and Town Rome) had more
than 90% white registered voters, one (Mount Alto North) had nearly 85% white voter registration,
two (East Rome and North Rome) ranged from approximately 60 to 75% white voter registration,
and one (South Rome) was approximately 63% black.
145. Data as recent as August 8, 1995 demonstrates that much of the public housing in Rome
continues to be essentially segregated on the basis of race.
146. As of August 8, 1995 there were 1033 persons residing in projects operated by the
Rome Housing Authority of which 479 were white, 547 were black, and 7 were of other races. Of
these, 84.8% of the white residents (406 persons) lived in projects which were 80% or more white
in population and 69.0% of the black residents (380 persons) lived in projects which were 95% or
more black in population.
147. Eight (8) of the ten (10) public housing projects operated by the Rome Housing
Authority have resident populations which are more than 93% black or white, and 1 of the 10 is
more than 80% white. Three of the projects have resident populations which are more than 93%
white, while 5 of the projects have resident populations which are more than 95% black.
148. These same eight public housing projects which today are more than 93% black or
white had resident populations in 1980 which were more than 98% black or white.
30
I. Race Related Governmental Action
149. In the late 1950s, the state legislature enacted laws continuing restrictions adopted in
the 1940s requiring all election officials in Georgia to purge voter lists, conduct voter registration
only at specifically designated stationary locations, and impose a voter registration requirement of
passing a literacy test or test of "good character" and "understanding the duties and responsibilities
of citizenship under a republican form of government." The Georgia Constitution of 1976 carried
forward the literacy test combined with a "good character and understand[ing]" test. These laws
were applicable to Rome election officials as well as all other election officials in the state of
Georgia.
150. During the 1950s, Rome maintained separate public swimming pools, baseball fields,
and cemeteries segregated on the basis of race.
151. Into the 1960s, Rome maintained separate public libraries segregated on the basis of
race.
152. In 1980, the Georgia Department of Natural Resources found evidence of discrimination
by Rome in the maintenance and programming in a city park located in a minority neighborhood.
153. The Rome City schools were segregated until 1972 and were desegregated only as a
result of litigation by the federal government in United States and Ridley v. State of Georgia, Rome
City School District, No. 1:69-CV-2972 (N.D.Ga.1969).
154. The Rome school district has never been declared unitary and today continues to operate
under a desegregation order.
155. In August, 1994, the United States Department of Education determined that four
elementary schools did not meet the definition of integrated facilities in this Court's desegregation
order, and were therefore racially identifiable.
156. In August, 1994, the United States Department of Education determined that the Rome
school district does not meet the definition of an integrated school district because only 69% (rather
than 75%) of the black students attend integrated facilities.
31
157. The Department of Education also found that ability grouping and class assignment
practices utilized in some of Rome's schools had resulted in racially identifiable and racially isolated
classes.
158. As of May 19, 1995, the Department of Education found that 19 of 120 classes (18%)
at the Rome Middle School were racially identifiable and that two accelerated classes at the Elm
Street Elementary School were racially identifiable. While the Department of Education found
numerous racially identifiable classes at Rome High School, as of May 19, 1995, the Department
had not made a determination regarding the school district's current compliance status.
159. Rome's current white governing officials are not racists. No evidence exists, moreover,
indicating that there have been any racists on the City Commission or Board of Education within
the last 16 years.
160. Many members of the City Commission sincerely believe that the at-large election
system is best for the future of Rome because each governing official feels a responsibility to
represent every citizen. They also believe residency wards to be good policy because they ensure
members of the Commission are familiar with all areas of the City. Even Mr. Fielder supports the
current system.
161. None of the decisions by Rome's white governing officials to appoint black Romans to
the City Commission and Board of Education constituted an attempt to avoid the reach of the Voting
Rights Act. Rome's elected officials were simply motivated by a desire to achieve racial diversity
on Rome's elected bodies.
162. Rome's current governing bodies are responsive to the black community's needs.
163. Testimony by Plaintiffs' witnesses at trial indicates that Ms. Kennedy, Ms. Burk, Ms.
Lightfoot and Ms. Clark are supported by the black community and have been at least "satisfactory"
representatives of their interests. The Court concludes that this testimony is accurate and, in fact,
understates their effectiveness in representing the black community's needs.
II. Conclusions of Law
32
164. Plaintiffs, African-American citizens and registered voters of the City of Rome, contend
that Rome's at-large method of electing its City Commission and Board of Education violates the
First, Thirteenth, Fourteenth and Fifteenth Amendments of the Constitution and Section 2 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973 (hereinafter "Section 2").
A. The Constitutional Claims and Section 2's "Purpose" Standard
165. Plaintiffs' statutory claim under Section 2 may be established by proof that the
challenged methods of election either have a discriminatory purpose or effect. Thornburg v.
Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Plaintiffs' constitutional claims under
the Fourteenth and Fifteenth Amendments require proof of racially discriminatory purpose and
effect. Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Rogers v.
Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982).4
166. The House and Senate Reports accompanying the 1982 amendments to the Voting
Rights Act adopt the standard for proving discriminatory purpose established in Village of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-68, 97 S.Ct. 555, 562-65, 50 L.Ed.2d 450
(1977). According to the Senate Report:
Plaintiff may establish discriminatory intent for purposes of this section through direct or
indirect circumstantial evidence, including the normal inferences to be drawn from the
foreseeability of defendant's actions which "is one type of quite relevant evidence of racially
discriminatory purpose."
S.Rep. No. 417, 97th Cong., 2d Sess. 27, n. 108 (1982), reprinted in 1982 U.S. Code Cong. &
Admin. News 177. The House Report provides that:
Plaintiffs would not be required to prove that a discriminatory purpose was the sole,
dominant, or even the primary purpose for the challenged practice or procedure, but only that
it has been a motivating factor in the decision.
4
As noted above, Plaintiffs assert in their Complaint that their voting rights are also protected
under the First and Thirteenth Amendments. Plaintiffs, however, have not even taken the time to
set forth proposed findings of fact and conclusions of law on these claims. The Court, therefore,
concludes that Plaintiffs have abandoned these claims and that it need not examine them here.
To be thorough, however, the Court notes that Plaintiffs have not proven a claim under either
Amendment.
33
H.Rep. No. 227, 97th Cong., 1st Sess., at 30, n. 101. "[R]acial discrimination is not just another
competing consideration." Id., at 265-66, 97 S.Ct. at 563-64. "Discriminatory intent is simply not
amenable to calibration. It either is a factor that has influenced the legislative choice or it is not."
Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 277, 99 S.Ct. 2282, 2295, 60 L.Ed.2d
870 (1979).
167. Once intent is shown, it is not a defense under the Voting Rights Act that the same
action would have been taken regardless of the racial motive. Richmond v. United States, 422 U.S.
358, 378, 95 S.Ct. 2296, 2307, 45 L.Ed.2d 245 (1975) ("An official action ... taken for the purpose
of discriminating against Negroes on account of their race has no legitimacy at all under our
Constitution or under the statute.").
168. Direct evidence of intent, moreover, is not required where at-large elections are
challenged as being maintained for discriminatory purposes: "Clearly, the right to relief cannot
depend on whether or not public officials have created inculpatory documents." Lodge v. Buxton,
639 F.2d 1358, 1373 (5th Cir.1981), aff'd sub nom. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272,
73 L.Ed.2d 1012 (1982).
169. Plaintiffs attempt to prove Defendants' discriminatory intent through evidence of the
electoral system's alleged dilutive effect. While use of such circumstantial evidence is permissible
for this purpose in some circumstances, the Court does not find it persuasive in the instant case.
Instead, the Court is influenced by several other factors. First, Plaintiffs have produced no credible
evidence that Rome's system was established for discriminatory purposes. Second, the evidence
indicates that Rome's current white governing officials are not racists. To the contrary, they are
responsive to the black community, and, in fact, many are supported by the black community.
Third, the Court is convinced that many members of the City Commission sincerely believe that the
at-large election system is best for the future of Rome. Fourth, the Court notes that none of Rome's
black elected officials object to the current system or attribute any discriminatory motive to Rome's
white City Commissioners. For these reasons, the Court concludes that Rome's current electoral
34
systems were not established and are not maintained for discriminatory purposes. Plaintiffs'
Constitutional claims, and the "purpose" portion of their Section 2 claim, fail.
B. The Section 2 Results Test
a. The Law
170. Section 2 of the Voting Rights Act prohibits "voting ... standard[s], practice[s], or
procedure[s] ... which result[ ] in the denial or abridgement of the right of any citizen ... to vote on
account of race." 42 U.S.C.A. § 1973(a) (West 1994). A Section 2 violation, moreover, is
established:
if, based on the totality of circumstances, it is shown that the political processes leading to
nomination or election in the state or political subdivision are not equally open to
participation by [minorities] in that [their] members have less opportunity than other
members of the electorate to participate in the political process and to elect representative[s]
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.
42 U.S.C.A. § 1973(b) (West 1994).
171. "The essence of a § 2 claim is that a certain electoral law ... interacts with social and
historical conditions to cause an inequality in the opportunities enjoyed by black and white voters
to elect their preferred representatives." Gingles, 478 U.S. at 46-47, 106 S.Ct. at 2764. "The
theoretical basis for this type of impairment is that where minority and majority voters consistently
prefer different candidates, the majority, by virtue of is numerical superiority, will regularly defeat
the choices of minority voters." Id. at 48, 106 S.Ct. at 2765 (emphasis added). "Not only does
voting along racial lines deprive minority voters of their preferred representative in these
circumstances, it also allows those elected to ignore [minority] interests without fear of political
consequences, leaving the minority effectively unrepresented." Id. at 48 n. 14, 106 S.Ct. at 2765 n.
14 (citations and internal quotations omitted).
172. At-large election schemes, like the one at issue, are not violative of Section 2 per se.
Rather, at-large elections only violate Section 2 when "a bloc voting majority [is] usually ... able to
defeat candidates supported by a politically cohesive, geographically insular minority group." Id.
35
at 49, 106 S.Ct. at 2766. In other words, the Supreme Court has held that there are three
prerequisites to a successful vote dilution claim:
First, the minority group must be able to demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a single-member district. If it is not, as
would be the case in a substantially integrated district, the multi-member form of the district
cannot be responsible for minority voters' inability to elect its candidates. Second, the
minority group must be able to show that it is politically cohesive. If the minority group is
not politically cohesive, it cannot be said that the selection of a multi-member electoral
structure thwarts distinctive minority group interests. Third, the minority must be able to
demonstrate that the white majority votes sufficiently as a bloc to enable it—in the absence
of special circumstances, such as the minority candidate running unopposed, ... usually to
defeat the minority's preferred candidate. In establishing this last circumstance, the minority
group demonstrates that submergence in a white multi-member district impedes its ability
to elect its chosen representatives.
Id. at 50-51, 106 S.Ct. at 2766-67 (citations omitted) (hereinafter known as "the three Gingles
prerequisites").5
173. If Plaintiffs can satisfy these prerequisites, they will sometimes have carried their
ultimate burden of demonstrating "based on the totality of circumstances," that members of Rome's
African-American community "have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice." 42 U.S.C.A. §
1973(b) (West 1994). Depending on the specific circumstances at issue, however, the three Gingles
prerequisites may not be sufficient by themselves to prove vote dilution. In such a case, any number
of other showings will also be relevant. Some of these factors are as follows:
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 the state or political subdivision has used unusually large election
districts, majority vote requirements, anti-single shot provision, or other voting practices or
procedures that may enhance the opportunity for discrimination against the minority group;
[3]. if there is a candidate slating process, whether the members of the minority group have
been denied access to that process;
5
The Supreme Court also noted that "the usual predictability of the majority's success
distinguishes structural dilution from the mere loss of an occasional election." Id. at 51, 106
S.Ct. at 2767.
36
[4]. 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;
[5]. whether political campaigns have been characterized by overt or subtle racial appeals;
....
[6.] 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[;]
[7.] whether the policy underlying the state or political subdivision's use of such voting
qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Id. at 36-37, 106 S.Ct. at 2759-60.
174. District courts must not forget, moreover, that:
[i]n evaluating a statutory claim of vote dilution through districting, the trial court is to
consider the totality of the circumstances and to determine, based upon a searching practical
evaluation of the past and present reality, whether the political process is equally open to
minority voters. This determination ... requires an intensely local appraisal of the design and
impact of the contested electoral mechanisms.
Id. at 79, 106 S.Ct. at 2781 (citations and internal quotations omitted).
b. Application of the Law
i. The First Gingles Prerequisite: Minority Numerosity and Geographical Compactness
175. As indicated by Plaintiffs' plans, it is possible to draw three single member districts in
which African-Americans comprise a majority of the voting age population in a nine district scheme.
Plaintiffs' plans also demonstrate the possibility of drawing districts in which African-Americans
are the majority of the voting age population in two out of seven single member districts. The
aforementioned districts could be drawn in a manner (1) consistent with Gingles' requirement that
they be geographically compact and (2) in compliance with the one person-one vote requirement.
Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 2695-96, 77 L.Ed.2d 214 (1983).
Though none of Plaintiffs' proposals is a completely satisfactory remedy, Plaintiffs' Exhibit 210A
comes closest to satisfying the Court's concerns.6 The Court's compactness conclusion is also
6
At first glance, Plaintiffs' plans appear contorted, but much of this impression is given by the
city's irregular boundaries and the fact that several "islands of Floyd county" exist within the city
limits. The fact that Rome's pattern of annexations has rendered the city unshapely has no
37
bolstered by the fact that Rome's school attendance zones result in half of the elementary schools
having student populations over either 90% white or 90% black. In fact, three of eight elementary
schools in Rome have student bodies which are more than 90% black, and these schools reflect the
racial demographics of the neighborhoods in which they are located. The Court concludes,
therefore, that Rome's African-American community is sufficiently numerous and compact that it
satisfies the first Gingles prerequisite.
176. Before turning to the next Gingles factor, the Court pauses briefly to consider
Defendants' argument that Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) and
its progeny impact this case. This line of cases establishes that the Equal Protection Clause is
implicated, and strict scrutiny must be applied, whenever racial considerations predominate over
traditional districting principles in a state's districting scheme. See Shaw v. Hunt, --- U.S. ----, 116
S.Ct. 1894, 135 L.Ed.2d 207, (1996); Bush v. Vera, --- U.S. ----, 116 S.Ct. 1941, 135 L.Ed.2d 248,
(1996). Assuming for the moment that this holding theoretically places new limits on this Court's
ability to compose a remedial plan in this case and assuming that upon further consideration the
Court determines that a remedial plan can not be composed in this case that is entirely consistent
with traditional race-neutral districting principles, the Court concludes, nonetheless, that the Court
could fashion a constitutional districting plan in this case. This is so because eliminating violations
of Section 2 is a compelling state interest. Even under this modified Shaw framework, therefore,
the Court's only requirement would be to narrowly tailor its remedy to the goal of eliminating a
Section 2 violation. Even in the absence of Shaw and its progeny, the Court would have labored to
eliminate vote dilution in the manner that least disrupted Rome's chosen electoral system and its
bearing on whether Rome's minority population is compact within the meaning of Gingles.
The Court also notes that Rome's boundaries indicate that geographic
compactness has not been a particularly important districting criteria for Rome. For
example, portions of the City are simply extensions along a highway which are even less
than a block wide.
38
districting principles. Shaw, therefore, has little practical relevance to this case.7 See generally,
Shaw, --- U.S. ----, 116 S.Ct. 1894, 135 L.Ed.2d 207; Bush, --- U.S. ----, ----, 116 S.Ct. 1941, 1960-
61, 135 L.Ed.2d 248 ("we assume without deciding that compliance with the results test ... can be
a compelling state interest. We also reaffirm that the "narrow tailoring' requirement of strict scrutiny
allows the states a limited degree of leeway in furthering such interests. If ... the district that is
based on race "substantially addresses the Section 2 violation, it satisfies strict scrutiny. We thus
reject, as impossibly stringent, the ... view of the narrow tailoring requirement ... that a district must
have the least possible amount of irregularity in shape, making allowances for traditional districting
criteria. A Section 2 district that is reasonably compact and regular, taking into account traditional
districting principles such as maintaining communities of interest and traditional boundaries, may
pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts
in endless beauty contests.").
ii. The Second and Third Gingles Prerequisites: Minority Political Cohesion And White Majority
Bloc Voting
177. "Because the extent of bloc voting necessary to demonstrate that a minority's ability
to elect its preferred representative is impaired varies according to several factual circumstances,
the degree of bloc voting which constitutes the threshold of legal significance will vary from district
to district." Gingles, 478 U.S. at 55, 106 S.Ct. at 2769. In general, however:
[a] showing that a significant number of minority group members usually vote for the same
candidates is one way of proving the political cohesiveness necessary to a vote dilution claim
... and, consequently, establishes minority bloc voting within the context of § 2. And, in
general, a white bloc vote that normally will defeat the combined strength of minority
support plus white "crossover" votes rises to the level of legally significant white bloc
voting.
Id. at 55-58, 106 S.Ct. at 2768-70.
7
The Court notes, moreover, that Rome's only discernable districting principle appears to be a
desire not to have any political subdivision divided by one of Rome's rivers. Rome's three rivers
are the boundaries of its three residency wards, yet these wards are dissimilar in population and
geographic area. Keeping precincts intact, moreover, has not been a particularly important
districting criteria for Rome as there are more precincts split by the city boundary than there are
whole precincts within the city limits.
39
178. To begin, the Court concludes that both empirical and anecdotal evidence indicate that
Rome's black community is "cohesive." The black community consistently ranks black candidates
as their favorite candidates. Testimony also revealed that Rome is a largely segregated society in
which whites are somewhat more affluent and better educated than blacks. These facts are more
than sufficient to support the inference that Rome's African-American community is legally cohesive
with distinctive wants and needs. See id. at 58-59, 106 S.Ct. at 2770-71 ("The District Court's
findings concerning black support for black candidates in the five multi-member districts at issue
here clearly establish the political cohesiveness of black voters."). Plaintiffs, therefore, have
satisfied the second Gingles prerequisite.
179. In order to determine whether a bloc voting white community usually defeats black
preferred candidates, the Court must determine who can truly be counted as a "black preferred
candidate" in the instant case.8 Plaintiffs contend that the black community's candidates of choice
are all those who have run for office who are black. Indeed, as noted above, every black Roman to
have run for the City Commission or the Board of Education has been strongly supported by the
black community. All but one have been preferred by the black community more than every other
white candidate to have run against them. The Court concludes, therefore, that every black
candidate to have run for the aforementioned offices can fairly be considered to be a black preferred
candidate for purposes of this analysis. Defendants do not seriously contest this conclusion.
180. Defendants, however, note that African-Americans have not voted solely for black
candidates and, in fact, have cast significant numbers of votes for white candidates in Rome's city
elections. Defendants contend, therefore, that those white candidates for whom African-American
8
In order to ensure that this Order generates no confusion, the Court notes that its use of the
terms "black candidate" and "white candidate" refers solely to the race of the candidate himself.
The Court's use of the terms "black preferred candidate" and "white preferred candidate" refers
to a candidate—of whatever race—preferred by the black electorate and white electorate
respectively. In its efforts to explain that not all candidates who are voted for by the black
community are truly "black preferred candidates", moreover, the Court also occasionally makes
use of the phrases black or white "favored candidate." The Court defines a black or white
"favored candidate" to be one that would have been elected by the black or white communities if
they alone had voted in a particular election.
40
Romans have voted should be counted as black preferred candidates. Plaintiffs disagree. Plaintiffs
note that Rome's ballots usually contain language suggesting that voters must vote for three City
Commissioners from each ward and seven Board of Education members. Plaintiffs note,
furthermore, that Rome's black community has never had the opportunity to vote for a full slate of
black candidates because few black Romans have offered for office. This, in turn, is allegedly so
because potential black candidates believe that the current system is so dilutive that they cannot win.
Plaintiffs contend, therefore, that they have been forced to vote for white candidates who are not
truly black preferred and urge the Court to examine only black candidacies when calculating
whether white bloc voting usually defeats black preferred candidacies.
181. The Court does not accept either party's position. The Court will not automatically
assume that the black community can only be satisfied by black candidates. See Johnson v.
DeGrandy, 512 U.S. 997, 1027, 114 S.Ct. 2647, 2665, 129 L.Ed.2d 775, 801 (1994) (Kennedy, J.,
concurring) ("The assumption that majority-minority districts elect only minority representatives,
or that majority-white districts elect only white representatives, is false as an empirical matter. And
on a more fundamental level, the assumptions reflect "the demeaning notion that members of the
defined racial groups ascribe to certain "minority views" that must be different from those of other
citizens'."); Nipper v. Smith, 39 F.3d 1494, 1540 (11th Cir.1994) (en banc) (2 Judge portion of
majority opinion) (holding that white on white elections are probative of racial polarization and,
therefore, implicitly holding that some white candidates can be truly "black preferred"), cert. denied,
514 U.S. 1083, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995); S.C.L.C. v. Sessions, 56 F.3d 1281, 1293-
94 (11th Cir.1995) (en banc) (affirming trial court's consideration of all relevant evidence including
white on white elections), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996).
182. On the other hand, the Court will not automatically assume that every white candidate
who has been voted for by the black community is truly satisfactory to the black community. The
Court concludes that some potential black candidates do believe they cannot win election under the
current system. Both the testimony of Plaintiffs' witnesses and the disproportionately low number
41
of black candidacies support this finding. Thus, the black community's electoral choices may have
been limited, and they may have been forced to vote for white candidates whose views and character
were not satisfactory. Nipper, 39 F.3d at 1541 ("In holding as we do, ... we do not foreclose the
consideration of electoral races involving only white candidates where the record indicates that one
of the candidates was strongly preferred by black voters."). Some, but not all, white candidates who
have received black votes are "black preferred."
183. Black preferred candidates, moreover, are not only those who are perfectly ideologically
in tune with the prevailing political sentiment in the black community. To so hold would, to start
with, raise the possibility that none of Rome's current black officials were truly black preferred
because they are too moderate in their views. Such a result cannot have been intended by Congress.
The idea that black preferred candidates must be perfectly ideologically aligned with the mainstream
black community would also render the third prong of the Gingles test meaningless. This is so
because if the black community is (1) found to be cohesive with its own distinct needs and (2) black
preferred candidates must represent those needs without regard for the white community, the white
community is quite naturally going to vote against the black preferred candidates almost every time.
Again, this cannot have been Congress's intention. Six members of the Supreme Court, moreover,
have endorsed the view that:
[i]f the lesson of Gingles is that society's racial and ethnic cleavages sometimes necessitate
majority-minority districts to ensure equal political and electoral opportunity, that should not
obscure the fact that there are communities in which minority citizens are able to form
coalitions with voters from other racial and ethnic groups, having no need to be a majority
within a single district in order to elect candidates of their choice. Those candidates may not
represent perfection to every minority voter, but minority voters are not immune from the
obligation to pull, haul, and trade to find common political ground, the virtue of which is not
to be slighted in applying a statute meant to hasten the waning of racism in American
politics.
Johnson, 512 U.S. at 1020, 114 S.Ct. at 2661, 129 L.Ed.2d at 796; see Nipper, 39 F.3d 1494
(quoting the above passage in the context of determining who may truly be considered "black
preferred"); S.C.L.C., 56 F.3d at 1293-94 (en banc decision affirming district court decision that no
Voting Rights Act violation shown when "factors other than race, such as party politics ..., were
42
driving the election results"). The Court concludes that minority preferred candidates can be more
moderate than the average black Roman.
184. The Court, therefore, concludes that no hard and fast rule can be set forth defining who
is truly a "black preferred candidate." Instead, the Court must carefully examine the candidacies at
issue in order to determine if a fair interpretation of the evidence indicates that a particular candidate
was "black preferred" or, alternatively, whether he was merely the best choice available from an
unacceptable candidate pool. "Under such circumstances, the preference of the black electorate
might be proved though the use of anecdotal testimonial evidence, polling data, a review of the
appeals made during the campaign, and turnout information, indicating whether black voters were
energized to support a particular white candidate." Nipper, 39 F.3d at 1540. This inquiry is
somewhat subjective in that the Court is attempting to determine which candidates are sufficiently
satisfactory to the minority as to be capable of being considered minority preferred. This approach,
however, is consistent with the Supreme Court's admonition that "[i]n evaluating a statutory claim
of vote dilution through districting, the trial court is to consider the totality of the circumstances and
to determine, based upon a searching practical evaluation ..., whether the political process is equally
open to minority voters." Gingles, 478 U.S. at 79, 106 S.Ct. at 2781 (citations and internal
quotations omitted). In other words, scrutinizing electoral systems for Voting Rights Act violations
is not an exact science.9
9
For some of Rome's elections, the Court has little information with which to determine which
candidates were truly black preferred other than voting statistics. To combat this problem, the
Court has relied primarily on its comparison of the level of black support for candidates with
whom the Court is unfamiliar and the level of black support for those candidates who the Court
has determined are black preferred from the fact that they received the most black votes or other
non-statistical evidence. For instance, if candidate X was white and received almost as much
support from the black community as candidate Y who was black and was the leading vote getter
in the black community, then the Court would deem both candidate X and Y to be black
preferred. If candidate Z would have also been elected by the black community but received
significantly less support than candidates X and Y, the Court would not conclude that candidate
Z was black preferred.
The Court concludes that this mode of analysis allows the Court to accurately
determine who is truly a black candidate of choice. Though the Court concludes that
elections in which no black candidates participated ("white only elections") are
43
185. To begin, the Court examines the 1980 race for City Commission Ward 2. In the
Democratic primary, the African-American community would have elected Mr. Fielder, Mr. Cofield
and Mr. Caldwell. Mr. Fielder and Mr. Cofield are African-Americans who received high levels of
black voter support. They will be considered black preferred candidates. 19% of all African-
American registered voters supported Mr. Caldwell. This figure is greater than the percentage vote
any candidate received from the white community and is substantially greater support than the black
community gave to the fourth and fifth candidates in the race. The Court concludes, therefore, that
Mr. Caldwell was also black preferred. Mr. Fielder and Mr. Caldwell won the primary, but Mr.
Cofield was defeated. Mr. Fielder and Mr. Caldwell also won the general election. The Court
concludes, therefore, that two out of three minority preferred candidates were successful in this
election.
186. In the 1980 Board of Education race, the Court notes that 5 of the 6 candidates favored
by the black community were elected including Mr. Carmichael—an African-American. The Court
notes, furthermore, that the only candidate that the black community would have elected, but who
lost, was the 5th choice of the black community. Under the Court's analysis, therefore, this
candidate was not truly black preferred because he did not truly engender enthusiasm in the black
community. The Court concludes that the only candidates who were truly strongly supported by the
black community were Mr. Carmichael, Ms. Jones and Mr. Franklin. These candidates not only won
the election, but were three of the four top vote getters. The Court concludes that all three black
preferred candidates won this election.
theoretically subject to this same analysis, most such elections do not contain a candidate
that the Court can be sure is minority preferred and who, consequently, can serve as a
benchmark for measuring the level of black voter support that is a true indicator of other
candidates who are black preferred. The Court also concludes that it need not analyze the
instant white only elections to gain an accurate picture of the black community's ability to
elect its preferred candidates. The instant white only elections serve solely to reinforce
the lesson learned in the Court's analysis of black on white elections below: black
preferred candidates who are white almost always win. The Court, therefore, will
analyze white only elections no further.
44
187. In the 1984 Democratic Primary for City Commission Ward 2, Mr. Askew, Mr. Fielder
and Mr. Fricks were favored by the black community. Mr. Askew and Mr. Fielder are black and
received significant black voter support. The Court deems them black preferred. Mr. Fricks,
however, received minimal black support and will not be so deemed. Mr. Fielder won and Mr.
Askew lost. Mr. Fielder went on to win the general election. One out of two black preferred
candidates won this race.
188. In the City Commission Ward 3 Democratic primary that year, Mr. Smith, Mr. Mitchell
and Ms. Kennedy were favored by the black community. The Court heard evidence at trial that Ms.
Kennedy has been a satisfactory representative of the black community. Mr. Smith is black and
received significant support. The Court concludes that Mr. Smith and Ms. Kennedy were black
preferred. Ms. Kennedy won, but Mr. Smith lost: one out of two black preferred candidates was
successful.
189. In the 1984 Democratic primary for the Board of Education, Ms. Sims, Mr. Morrow,
Ms. Jones, and Ms. Burk received significantly more support from the black community than any
other candidates and will be deemed black preferred. Three of the four won the primary. Those
same three went on to win the general election. Three of four black preferred candidates were
successful.
190. The 1987 Ward 3 Democratic primary for City Commission is identical to the 1984
general election for this spot: again, one black preferred candidate won, and one lost.
191. In the 1988 general election for Board of Education, 6 of 7 candidates favored by the
black community won. None of the six, moreover, received less than 18% of the vote of all
registered African-Americans. To give the Plaintiffs the benefit of the doubt, the Court will not
consider them all black preferred. The Court concludes that Ms. Sims, Mr. Holland, Mr. Bell, Ms.
Jones and Ms. Burk were "black preferred." 4 of these 5 won.
192. In the 1989 Democratic Primary for City Commission Ward 2, Mr. Fielder and Mr.
Holland were black preferred. One won, and one lost.
45
193. In the 1993 Democratic primary for the Board of Education, every candidate favored
by the black community won. It is difficult, however, to determine who was truly black preferred.
Ms. Sims, who is black, received significant black support: she was, accordingly, black preferred.
The Court notes that there is no significant difference in the vote totals for Ms. Sims, Ms. Lightfoot,
Mr. Clark. The Court, therefore, will deem all three black preferred. The Court notes, moreover,
that Ms. Burk had received significant black support in the past.10 The Court will, therefore, deem
her black preferred as well. Mr. Swann had not received significant black support in the past and,
therefore, will not be considered black preferred. To give Plaintiffs the benefit of the doubt,
moreover, Mr. Greer and Mr. Horton will not be considered black preferred despite their respectable
black vote count and Mr. Greer's respectable performance in the black community in the previous
election. The Court's decision to deem these four candidates as black preferred is also bolstered by
the fact that they were the four highest vote getters in the general election among African-
Americans. All four of these black preferred candidates won the general election.
194. In the 1993 general election for City Commission Ward 2, Mr. Askew and Mr. Fielder
were black preferred. Though Mr. Fricks received substantial black support, the Court will not
consider him black preferred since he was the only other Democrat in the race and had not received
substantial black support in the past. Mr. Fielder was elected, and Mr. Askew was defeated. One
out of two black preferred candidates was elected.
195. In the 1995 general election for City Commission Ward 3, Mr. Williams and Mr.
McClure were black candidates. Mr. Griffin received more black support than Mr. McClure. The
Court concludes, therefore, that these three were black preferred. One of the three was elected.
10
The Court also heard evidence from one of the Plaintiffs that Ms. Burk, Ms. Lightfoot and
Ms. Clark are supported by the black community.
46
196. The Court, furthermore, concludes that Dr. Sam Burrell was a black preferred candidate.
Dr. Burrell is an African-American who has been elected to the Floyd County Commission and
whose election is probative of the electoral success of Rome's black community.11
197. The foregoing analysis reveals that even in elections in which black candidates ran, 23
of 33 black preferred candidates were elected.12 According to a strict count of the candidacies
considered above, black preferred candidates are usually elected in Rome. Id. at 49, 106 S.Ct. at
2766 (Section 2 violated when "a bloc voting majority [is] usually ... able to defeat candidates
supported by a politically cohesive, geographically insular minority group.").13 Black preferred
candidates, moreover, filled 45% (22/49) of the positions available in the races in which they ran.
This, of course, is a higher percentage of positions filled than the percentage of Rome's population
which is black.14
11
Rome is located within Floyd County.
12
To give Plaintiffs the benefit of the doubt, the Court has not counted Mr. David Shelley in
this total. Mr. Shelley is an African-American who was supported by the white community in
Rome for county office. His election is not particularly probative, however, because he ran
against an opponent who was not considered to be a "friend of the city." The Court has also
excluded from the count the candidacy of Reverend Hill because the challenged electoral system
is significantly different than when he ran. Reverend Hill ran when the city had a majority vote
requirement. His defeat, therefore, is not probative of the inability of Rome's black community
to defeat white bloc voting in a plurality system. In fact, the election arguably shows that black
candidates can win under Rome's plurality system since Reverend Hill won the initial election.
13
To be thorough, the Court notes that some evidence was introduced of bloc voting in
exogenous elections that the Court has not explicitly considered above. The Court is aware of
this evidence and has considered it. The Court concludes, however, that in the instant case
Rome's endogenous elections are more than sufficient to paint an accurate picture of Rome's
voting habits.
14
At various times, Plaintiffs have implied that Mr. Fielder and Ms. Sims are simply "Uncle
Toms" who do not truly represent the black community. The Court simply notes that this
suggestion is undermined by the aforementioned election results. Ms. Sims was favored over
Plaintiff Morrow by both the black and white communities in 1984 when both initially ran for
office. Likewise, Mr. Fielder was favored over Plaintiff Askew by both the black and white
communities when both ran for election as sitting members of the Commission in 1984. This
data does not suggest that Mr. Fielder and Ms. Sims are not true representatives of the black
community.
47
198. Plaintiffs, however, argue that these numbers are misleading. First, Plaintiffs argue that
many of the successful black candidacies above must be excluded from this count because their
success was due to a "special circumstance." The "special circumstance" at issue is the fact that,
with one exception, every black candidate to have been elected to either the City Commission or the
Board of Education in Rome has been first appointed by sitting members of either the Commission
or the Board to fill a vacancy on that body. Plaintiffs contend that these candidates' appointments
constituted a "good housekeeping stamp of approval" from the white political elite in Rome. They
contend that this stamp of approval enabled these black officials to overcome racial bias in the white
electorate and to achieve electoral success that they would not have been able to otherwise achieve.
They cite Gingles for the proposition that "the election of a few minority candidates does not
necessarily foreclose the possibility of dilution of the black vote" and argue that the appointment
process was simply an attempt by the white community to "manipulate[e] the election of ... "safe'
minority candidate[s]." Id. at 75, 106 S.Ct. at 2779. They contend that the true political reality in
Rome is that black candidates can almost never overcome racial bias in the electorate to win election
when they have not been previously appointed, and, therefore, these appointed candidates should
be excluded from the vote dilution count.
199. To begin its analysis of this theory, the Court concludes that none of the individual
decisions to appoint African-Americans to the City Commission and Board of Education has been
an attempt to avoid the reach of the Voting Rights Act or to manipulate the instant case in any way.
The evidence indicates that Rome's elected officials were simply motivated by an appropriate desire
to achieve racial diversity on Rome's elected bodies.
200. The Court concludes, however, that racism exists in Rome. This conclusion is justified
by several facts. Among those that the Court considers probative are Rome's history of racial
tension, the black community's continuing depressed socio-economic status and the fact that Rome
continues to be a largely segregated society.
48
201. The Court concludes that racism in Rome is not explicit. No direct barriers to black
voting exist. Some interracial neighborhoods and schools do exist. No evidence was presented of
recent racially motivated confrontations between Rome's black and white citizens. Racism has
become more rare and more subtle than in the past.
202. Given these facts, the Court must attempt to determine to what extent racism plays a
role in the voting behavior of the Rome electorate. The Court is compelled to make clear that it does
not understand the law to require Plaintiffs to prove racism determines the voting choices of the
white electorate in order to succeed in a voting rights case. Neither the Supreme Court nor the
Eleventh Circuit has ever held that such a showing is a necessary element of a vote dilution claim.
See id. at 62, 106 S.Ct. at 2772 (plurality portion of majority opinion) ("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 ... vote in blocks for different candidates."); Nipper, 39
F.3d at 1524-25 (only 2 Judge portion of majority opinion holds that racism is necessary element);
but see also S.C.L.C., 56 F.3d at 1293-94 (en banc decision affirming district court decision that
"factors other than race, such as party politics ..., were driving the election results and that racially
polarized voting did not leave minorities with less" political opportunity. The Court understands
this paragraph to signify that "race" must play a role in the defeat of black preferred candidates
before the Voting Rights Act is violated, but racism in the electorate is only one of several roles that
race may play.). The Court concludes, however, that it is necessary to evaluate the level of racism
in the electorate in the instant case because without racism the fact that Mr. Fielder, Mr. Carmichael,
and Mr. Burrell have been appointed is far less significant. True, appointments offer the advantage
of incumbency, but that is essentially a publicity advantage that can be neutralized through hard
work. See Clarke v. City of Cincinnati, 40 F.3d 807, 813 (6th Cir.1994) ("Plaintiffs assert that the
special circumstance of incumbency explains away the success enjoyed by black candidates for City
Commission because five of the eight blacks elected to the city council ... were first appointed to that
49
body.... But unlike other "special circumstances,' incumbency plays a significant role in the vast
majority of American elections. To qualify as a "special' circumstance, then, incumbency must play
an unusually important role in the election at issue; a contrary rule would confuse the ordinary with
the special, and thus "make practically every American election a special circumstance'."), cert.
denied, 514 U.S. 1109, 115 S.Ct. 1960, 131 L.Ed.2d 851 (1995). Incumbency is, moreover, far from
a guarantee of electoral success, particularly in a multiple seat system in which candidates rarely run
for reelection unopposed. Rather, the Court concludes that these appointments are primarily relevant
for Plaintiffs' suggestion that they help to overcome racism in the white electorate. A determination
of to what degree racism affects Rome's electoral choices is, therefore, probative of the size of the
advantage given by these appointments. It is probative of what the true political reality is in Rome
and whether these candidacies demonstrate that black Romans can elect their preferred candidates
in the absence of appointment.
203. In 1970, the candidacy of Reverend Hill demonstrated that many of Rome's white voters
were substantially motivated by racism. Reverend Hill, a popular black candidate, won the initial
election against three white opponents. He was, however, subsequently defeated in a run off. More
voters turned out for the runoff than turned out for the initial election. The Court concludes that they
did so in order to defeat the first serious black candidacy in Rome's history.
204. Circumstances have, however, changed in the intervening period. Regardless of how
they got their start, the fact remains that several black candidates have successfully garnered
sustained biracial support in Rome. In fact, Mr. Fielder and, for the most part, Ms. Sims have
received roughly as many white votes in their reelection bids as those white incumbents also running
for reelection. The Court discerns from this information that racism does not affect voter behavior
once voters become familiar with a candidate. The importance of interracial endorsements in Rome
politics, however, demonstrates that racism does play a role in the electorate's view of new and
unknown candidates for office. The Court concludes, therefore, that racism does affect a portion
of the electorate when the voters are unfamiliar with a candidate of the opposite race, but that it is
50
a relatively inconsequential factor once a candidate becomes familiar to the electorate through either
serious campaigning, interracial endorsements, or incumbency. At that point, ideology and other
legitimate voting criteria predominate in the minds of Rome's white voters.15
205. The question, then, is whether these circumstances justify discounting the success of
minority preferred candidates like Mr. Fielder. The answer is that they do not. Though racism in
any form or degree is morally unacceptable, racism in Rome's electorate has declined to the point
where its impact may be overcome through hard work, political savvy and a willingness to
compromise. The key to eliminating the effects of racism in Rome is voter familiarity with the
candidate. The Court, therefore, cannot say that those black candidates who have not been elected
were defeated by racism. Mr. Askew, after all, was defeated despite an appointment while Ms. Sims
was elected without one. Those black candidates who were unsuccessful were defeated by other
non-racial factors such as the failure to campaign hard with the intent to form a biracial coalition.
See S.C.L.C., 56 F.3d at 1293-94 (en banc decision affirming district court's finding of no vote
dilution when "factors other than race, such as ... [the] availability of qualified candidates, were
driving the election results."). Testimony at trial revealed that those candidates who lost placed
emphasis in their campaigns on signs and posters, while those candidates who won relied on a far
more effective asset: "shoe leather." The record reflects, for instance, that Mr. Holland did not "run
hard" in his two races.16 Mr. Askew, who also accounted for two races, is articulate and bright, but
the Court concludes that he did not campaign hard in the white community. Mr. Askew, moreover,
testified to a principled unwillingness to compromise:
15
The Court finds it quite ironic that this racist hesitancy to vote across racial lines, which
results quite naturally from the interracial ignorance bred by a segregated society, is now being
put forth as justification for effectively segregating Rome's governing bodies.
16
The Court anticipates that Plaintiffs might argue that this finding is inaccurate or irrelevant
since Mr. Holland obviously ran hard enough to garner the votes of a substantial number of
black voters. The Court concludes, however, that the black community is sufficiently cohesive
that it will vote in large numbers for almost any reputable black candidate. Plaintiffs, in fact,
have admitted as much. Thus, the fact that Mr. Holland received black voter support does not
indicate that he put forth sufficient effort to become known in the white community.
51
A. [Black Romans] have seen what happens in this community when someone stands up.
That's why Mr. Fielder sits down and doesn't address black issues. That's why Ms. Sims
doesn't address black issues, because if they did, they wouldn't be there anymore.
...
Q. You know that politics is a compromise situation everywhere, isn't it?
A. I don't compromise my integrity, Mr. Brinson.
...
Q. Don't you think that you have to pull, and tug, and bargain, and give up, some give and
take?
A. But you've got to stand up, Mr. Brinson, you've got to stand up.
...
A. You can't lay down, let people run over you and that's basically what happens in [the
black] community, because we feel like we have no other hope.
...
A. [I]f my people turn out, then your people turn out. And if your people turn out, I can't
win.
While principled politicians are a rare and noble breed, the issue before the Court is whether it was
racism or, alternatively, ideology that determined Mr. Askew's electoral fate. The aforementioned
testimony reveals that Mr. Askew views the black and white communities as at odds with each other.
The Court concludes, therefore, that his defeat was a result of his ideology, not the color of his skin.
The Court, therefore, will not characterize Mr. Fielder, Mr. Carmichael and others as being
exceptions to the political reality.17 They are not products of a "good housekeeping stamp of
approval."18 Rather, they are products of Rome's racial progress and reflection of the fact that
17
Excluding from the count the candidacies of all initially appointed black officials, 4 of 12
black candidacies have been successful if the count includes Mr. Shelley. Thus the success rate
of black candidates is roughly proportional to the percentage of Rome's population that is black.
Such a ratio implies that if more black candidates ran, black candidates would fill the same
percentage of seats on Rome's governing bodies as the percentage of Rome's population that is
black.
18
The Court is aware that some courts have taken a different view of the electoral success of
black candidates who were first appointed. These courts have concluded that the success of
these black candidates was the result of "special circumstances" and, therefore, not probative of
52
biracial coalitions are possible in Rome for both black and white candidates. Though it is irrelevant
to the Court's analysis, they are also examples of everything that the Voting Rights Act and other
civil rights laws have attempted to foster.
206. Second, Plaintiffs may find fault with the aforementioned analysis in that it fails to
account for those black candidates who have not run for office because they believed they could not
win. The Court recognizes the argument could be made, therefore, that had they run and lost, black
preferred candidates would have usually been defeated by a white bloc voting majority. The Court
concludes that some black candidates do believe that they are unable to win in the absence of an
appointment. The Court, however, concludes that they are wrong. The sustained success of Rome's
black office holders indicates that qualified black candidates can win if they campaign hard with the
intent to form biracial coalitions.19
207. Third, the Court also anticipates that Plaintiffs may find fault with the Court's analysis
because in every one of the successful black preferred candidacies counted above, the white
community would have elected the black preferred candidate on its own. These, therefore, are not
"split preference" elections. Two Eleventh Circuit Judges have held elections such as these to be
"of relatively little use in evaluating the power of white bloc voting." Nipper, 39 F.3d at 1494.
208. This statement is undoubtedly true. An examination of only those races in which black
preferred candidates would not have been elected by the white majority if they alone had voted
whether blacks can elect candidates of their choice. The essential distinction between those
cases and the instant one, however, is that in those cases there was no evidence that the
appointed candidates had been able to develop sustained biracial coalitions. Instead, the
candidates were able to maintain their elected positions because of the sheer power of
incumbency: often running unopposed for reelection. The Court would agree that those
candidates were not probative of the ability of blacks to elect candidates of their choice. The
Court, however, concludes that the instant case is distinct from those cases because the ability of
both black and white candidates to form sustained biracial coalitions in this case is clear. See,
e.g., United States v. Marengo County Commission, 731 F.2d 1546, 1572 (11th Cir.1984), cert.
denied 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984) (One black official was appointed
and unopposed for reelection. One other black candidate was elected without appointment and
then reelected without opposition. 72 other black candidacies were unsuccessful).
19
This may necessarily entail taking more moderate positions than the majority of the black
electorate would like.
53
reveals that none of these black preferred candidates was elected. In all ten of these elections, black
preferred candidates, who were black, lost. This is a powerful statement: it is, however, misleading.
It demonstrates the power of the white vote to defeat black preferred candidates who are black, but
it says nothing about their willingness to do so.20 It says nothing about the degree of racial
polarization that exists in Rome because it makes no reference to the many candidates upon whom
the races agreed. It demonstrates bloc voting, but it says nothing about the severity of that bloc
voting. The Court, therefore, will not consider only those black preferred candidacies in which there
is a "split preference," because doing so does not answer the question of whether white bloc voting
usually defeats black preferred candidates. Gingles, 478 U.S. at 48, 106 S.Ct. at 2765 ("The
theoretical basis for this type of impairment is that where minority and majority voters consistently
prefer different candidates, the majority, by virtue of is numerical superiority, will regularly defeat
the choices of minority voters.").
209. Finally, in the alternative to their hypothesis that black candidates' electoral successes
have been due to a "good housekeeping stamp of approval," Plaintiffs advance another novel theory.
Plaintiffs contend that even if the white electorate is willing to elect one "token" African-American
to each governing body, they are not willing to elect two. Plaintiffs contend, therefore, that the
Court should ignore the electoral success of Mr. Fielder, Ms. Sims and Mr. Carmichael and conclude
that Section 2 is violated because black candidates cannot win two seats. The Court concludes,
however, that this theory is frivolous.
210. Plaintiffs' theory implies that there is some sort of active conspiracy among the white
electorate to allow the black community a token representative, but no more. Plaintiffs, however,
have produced no evidence of such a sinister plot. If Plaintiffs do not mean to suggest that such a
conspiracy exists, then their theory presupposes a unique racist psychological phenomenon among
the white electorate by which they will put aside their racism for one candidate while simultaneously
20
For instance, it ignores the elections of Mr. Fielder, Mr. Carmichael, Ms. Sims and Mr.
Burrell.
54
bigotedly voting against all other black candidates. Plaintiffs have simply produced no evidence of
this type of voting phenomenon, and their theory defies common sense.
211. The Court, therefore, remains convinced that Rome is not sufficiently racially polarized
to warrant the conclusion that the Voting Rights Act has been violated. Rome's white electorate
simply does not "usually ... defeat candidates supported by a politically cohesive, geographically
insular minority group." Id. at 49, 106 S.Ct. at 2766.
iii. Other Factors
212. Plaintiffs have failed to prove one of the essential elements of their claim. They
cannot, therefore, show that under the "totality of the circumstances" their votes have been diluted.
To be thorough, however, the Court will continue its analysis. The Court concludes below that the
balance of the other factors relevant to Plaintiffs' claim also support the conclusion that Defendants'
electoral systems are not diluting Plaintiffs' votes.
213. Weighing in Plaintiffs' favor is the fact that Rome's black community "bear[s] the
effects of discrimination in such areas as education [and] employment ..., which hinder their ability
to participate effectively in the political process." Id. at 37, 106 S.Ct. at 2759; Marengo County
Commission, 731 F.2d at 1567 ("Past discrimination may cause blacks to register or vote in lower
numbers than whites. Past discrimination may also lead to present socioeconomic disadvantages,
which in turn can reduce participation and influence in political affairs."). Until 1972, Rome's
school systems were segregated. As a result, Rome's black population is, as a whole, less educated
and less wealthy than Rome's white community. Less educated populaces are likely to be less
interested in policy debates and less likely to effectively advocate for their needs. Accordingly, such
populaces are at a disadvantage when forced to compete against better educated majorities in the
delicate and complicated game of choosing elected officials. Rome's at-large electoral systems,
moreover, have the effect of increasing the importance of money in the electoral process by
enlarging the electoral district. At-large systems, therefore, also hurt minority populaces, such as
Rome's black community, that are less wealthy than majority populaces. The Court concludes,
55
however, that these factors are mitigated somewhat by the fact that the socio-economic disparities
between the races are not as great in Rome as they are in some other communities.
214. Also weighing in Plaintiffs' favor is the fact that Rome "has used majority vote
requirements" in the past and continues to word its ballots in such a way that single shot voting is
discouraged.21 The Supreme Court has recognized that these "procedures ... enhance the opportunity
for discrimination against the minority group" and are, therefore, relevant to the dilution inquiry.
Gingles, 478 U.S. at 37, 106 S.Ct. at 2759. The Court concludes, however, that these factors are of
diminished importance in the instant case because the majority vote practice has been abolished and
was not found to have been implemented for a discriminatory purpose. See City of Rome v. United
States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). There is, furthermore, no official
anti-single shot policy. These factors, therefore, are not particularly probative of current racial bias
in Rome. Most voters, moreover, that are sophisticated enough to understand the power of single
shot voting will also understand that it is permissible.
215. The Court also concludes that candidates for city office in Rome have at times formed
informal alliances and these alliances have failed to include black candidates. Gingles, 478 U.S. at
37, 106 S.Ct. at 2759 (relevant factors include "if there is a candidate slating process, whether the
members of the minority group have been denied access to that process"). Again, however, this
factor is mitigated by the fact that this practice has been infrequent and was not sanctioned by any
formal political party. In a multi-seat voting system such as Rome's where everyone competes
against everyone else for votes, slating is naturally going to be a rarely utilized practice.
21
Throughout this case Plaintiffs have contended that the combination of Rome's residency
wards and staggered terms for City Commissioners is dilutive. This is allegedly so, because
these practices have the effect of separating elections and thereby decreasing the effectiveness of
single shot voting. The Court simply notes the combination of these methods is no more
detrimental to single shot voting than the use of residency wards without staggered terms. The
same number of ward elections will be held whether they are all held in the same year or whether
each ward's commissioners are elected at different times. Rome's staggering of terms may have
some effect on voter turnout, but the practice is irrelevant to the effectiveness of single shot
voting in a residency ward system.
56
216. On the other hand, Defendants' case is supported by the fact that Rome's political
campaigns "have not been characterized by overt or subtle racial appeals." Id. In fact, just the
opposite is true. The testimony from active Rome politicians revealed that white politicians actively
seek support from the black community and seek endorsements from black leaders.
217. Plaintiffs, moreover, have made no attempt to prove that there is a "significant lack of
responsiveness on the part of elected officials to the particularized needs of the members of the black
community." Id. Once again, just the opposite is true. Both voting statistics and testimonial
evidence conclusively reveal that Rome's black community has political influence.22 This political
influence naturally translates into political responsiveness.
218. Finally, the Court concludes that the policy underlying Rome's electoral methods is not
tenuous. Id. Rome's electoral system is grounded in the belief that at-large elections produce
candidates that are responsive to the whole electorate, rather than a geographical faction. Residency
wards temper this system by ensuring that Rome's governing bodies are familiar with all areas of
the City. The Court need not determine whether this system represents Rome's political paradigm:
it is enough to conclude that the justification for Rome's system is not "tenuous." Accordingly, the
systems do not, in and of themselves, support the inference that they are maintained for a
discriminatory purpose or that Rome's electorate is racially biased.
219. In brief, though the Court considers the depressed socio-economic status of Rome's
African-American community to be evidence of dilution, the Court is most impressed by the fact
22
For instance, in the 1980 Ward 1 general election, white voters favored Morris and Callan,
but both lost to the black favored candidates Hanson and Pullen. In the 1980 Board of Education
general election, white voters would have elected Clark but black favored candidate Jones won
election instead.
The Court also notes Defendants' expert's analysis indicates that white favored
candidate Burnes was defeated in the 1988 Board of Education race. His analysis
indicates that white favored candidate Norman was defeated in the 1993 Ward 2 City
Council race. His analysis also indicates that in the 1993 Board of Education race white
favored candidate Horton was defeated. Plaintiffs' expert's analysis in each of these last
three races either contradicts Defendants' expert's conclusions or is inconclusive. The
Court, therefore, simply notes the possibility that these latter white candidates may have
also been defeated despite being favored by the white community.
57
that Rome's white candidates actively seek the black vote and are responsive to the black
community's needs. One of the theoretical foundations of Justice Brennan's interpretation of the
Voting Rights Act in Gingles was the fact that racial bloc voting not only "deprive[s] minority voters
of their preferred representative[, but] also allows those elected to ignore [minority] interests without
fear of political consequences, leaving the minority effectively unrepresented." Id. at 48 n. 14, 106
S.Ct. at 2765 n. 14 (citations and internal quotations omitted). Such is not the case in Rome. On
balance, therefore, the Court concludes that these Gingles factors support a finding that Plaintiffs
have not been denied equal electoral opportunity.23
iv. Summary
220. The Court, above, reaches several conclusions which bear repeating here. First, the
Court concludes that a certain degree of racism exists in a portion of Rome's white electorate which
causes them to hesitate to vote for black candidates with which they are unfamiliar. Second, the
Court concludes that Rome's African-Americans are somewhat less able to elect candidates of their
choice than white Romans because they are somewhat poorer, less educated and less politically
involved than the white community due in part to the effects of past racial discrimination. Third,
the Court concludes that racism is of minimal significance once the electorate becomes familiar with
a black candidate: ideology, character and other legitimate voting criteria determine voting
preferences at this point. Fourth, the Court concludes that both black and white candidates can form
biracial coalitions in Rome which result in the election of black preferred candidates who are both
23
The Court is aware that "the extent of any history of official discrimination in ... the 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" is also a factor to be considered in the vote
dilution determination. Id. at 36, 106 S.Ct. at 2759. The Court is also aware that in the 1950's
Georgia enacted legislation requiring all election officials to purge voter lists, conduct voter
registration only at specifically designated stationary locations, and impose a voter registration
requirement of passing a literacy test or test of "good character." The Court is aware that the
Georgia Constitution of 1976 carried forward the literacy test combined with a "good character
and understand[ing]" test, and that all of the aforementioned laws were applicable to Rome
election officials. The Court concludes, however, that this factor is of little consequence in the
instant case since the City of Rome itself did not take these discriminatory actions and they have
been abolished.
58
black and white. Finally, the Court concludes that black voters exert considerable influence over
city campaigns: in fact, every black preferred white candidate to have run for either the City
Commission or the Board of Education since 1980 has been elected.
221. Under these circumstances, the Court has concluded that an insufficient amount of white
bloc voting exists to deprive Rome's black community of an equal opportunity to elect candidates
of their choice. This conclusion is bolstered by an examination of the other factors relevant to the
vote dilution determination. The parties have ably demonstrated that a variety of policy arguments
can be made both for and against at-large voting systems. In the words of Justice Stevens, however,
"[i]t is, of course, irrelevant whether we, as judges, deem it wise policy to create majority-minority
districts as a means of assuring fair and effective representation to minority voters." Shaw, --- U.S.
----, 116 S.Ct. 1894, 135 L.Ed.2d 207 (Stevens, J., dissenting). The Court's duty is simply to carry
out the will of Congress as interpreted by the Supreme Court and the Eleventh Circuit. This it has
done: no more and no less. In the totality of the circumstances, the Court concludes that Plaintiffs
have not been denied equal electoral opportunity by Rome's method of electing its City Commission
and its Board of Education. 42 U.S.C. § 1973.
III. Conclusion
Accordingly, the Court finds for the Defendants and against the Plaintiffs on all claims.
IT IS SO ORDERED, this the 25th day of June, 1996.
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Askew v. City of Rome, GA Comm.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 1997-11-14
Citations: 127 F.3d 1355
Copy CitationsCombined Opinion