private lawsuits were filed challenging these changes for lack of § 5 preclearance. The defendants in these cases maintained that changes in election procedures-as opposed to changes in voter registration procedures-were not covered by § 5. In 1969 the Supreme Court, noting the potential for dilution of black voting strength present in at-large county voting, held these enactments subject to § 5 preclearance: "The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting." 34

Enforcement of the statutes affecting supervisor elections was enjoined pending § 5 preclearance, and when finally submitted, the Attorney General lodged an objection to its implementation, finding that it and other statutes enacted at the same time “Had as their purpose and have had as their effect the denial and the abridgment of the right to vote on account of race or color." 35 Similar statutes were reenacted by the Mississippi Legislature in 1968 and 1971, only to be blocked again by § 5.36

Discriminatory efforts to switch from district to at-large county elections to nullify the black vote have been extensive. At least 13 counties have switched or attempted to switch to at-large voting for county supervisors," and 22 counties have switched or attempted to switch to at-large elections for county school board members with the purpose or effect of diluting black voting strength.38 Most of these counties had one or more majority black supervisors' districts (which also serve as election districts for school board members), but were majority white countywide. In other instances, the counties were majority black in population, but had white countywide voting majorities which precluded the election of black candidates on a countywide basis.

Despite the Supreme Court's decision noting the discriminatory potential of atlarge voting in Mississippi counties, and despite court decisions and § 5 objections blocking at-large voting efforts, state and county officials have persisted in their efforts to implement discriminatory at-large county voting. In 1975 and 1977, the State submitted for § 5 review two state statutes 3-first enacted in 1966-requiring at-large voting for school board members in 22 counties. The Attorney General objected to these changes in 17 counties and requested additional information concerning the others."0

If allowed to go into effect, these at-large voting changes would have had a disastrous impact on the opportunities of black voters to elect candidates of their choice. As a result of the operation of § 5, nineteen black school board members and four black supervisors have been elected on a district basis in counties in which switches to at-large voting would have precluded any black representation in county government.

Section 5 also prevents cities in Mississippi from switching to at-large elections after the effective date of the Act, November 1, 1964, for a racially discriminatory purpose or effect. The City of Canton switched from ward elections to citywide elections of members of its Board of Aldermen in 1969 and refused to submit the change for Federal review as required by § 5. The Supreme Court, in reversing the refusal of the Mississippi District Court to enjoin the change, held that the change could not go into effect without § 5 preclearance." Subsequently, three Mississippi cities, Grenada, Kosciusko, and Lexington, attempted to switch from ward to atlarge voting. When these changes were submitted to the Attorney General for approval, the Justice Department lodged §5 objections to these changes because

Fairley v. Patterson decided sub nom. Allen v. State Board of Elections, 393 U.S. 544, 569 (1969). 35 Letter from Jerris Leonard, Asst. Attorney General, Civil Rights Div., U.S. Dep't of Justice, to A. F. Summer, Miss. Att'y Gen. May 21, 1969.

F. Parker, County Redistricting in Mississippi, supra, at 396 n. 32.

37 United States Commission on Civil Rights, "The Voting Rights Act; Ten Years After" 272 (1975).

38 Section 5 objection letters from J. Stanley Pottinger, Asst. Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to John L. Hatcher, attorney for the Bolivar County Bd. of Election Comm'rs, April 8, 1975, W. H. Jolly, Sr., attorney for the Lowndes County Bd. of Education, June 23, 1975, and A. F. Summer, Miss. Att'y Gen., December 1, 1975; letter from Drew S. Days, Asst. Att'y Gen., Civil Rights Div., U.S. Dep't of Justice, to A. F. Summer, July 8, 1977.

"Miss. Code Ann. §§ 37-5-13, 37-5-15 (1972).

40 Letters of Dec. 1, 1975 and July 8, 1977, supra.

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

these cities failed to show that the changes would not have a racially discriminatory purpose or effect.^2

In Grenada, for example, blacks were in the majority in certain wards, but whites had a 56.4 percent majority citywide. The change would have prevented blacks from obtaining any representation on the city council. As a result of this § 5 objection, two black city council members have been elected in Grenada in ward voting. 2. Preexisting at-large voting systems

The preclearance requirements of § 5, however, do not reach at-large municipal election schemes in effect before 1964, and these preexisting at-large systems have as great an impact on black political participation as recent changes from ward to at-large voting. Without any direct protection from §5 of the Voting Rights Act, black voters denied municipal representation by preexisting at-large voting must go to Federal Court and attempt to prove on a case-by-case basis that at-large voting denies them rights secured by the Fourteenth and Fifteenth Amendments to the United States Constitution. Although several of the early lawsuits were successfully litigated or settled, the Supreme Court in April 1980 substantially decreased the likelihood of success of such cases in its City of Mobile v. Bolden decision.13

Of the 79 cities and towns in Mississippi with populations of 2,500 and over, half— 39-elect the entire city council under at-large systems in effect before 1964. Of these 39 cities and towns with at-large election systems, 69 percent (27) have no black representation on their city councils. Of the 12 cities and towns which do have one or more black city council member elected at-large, seven are majority black in population. These at-large election systems deny 129,735 black people-40 percent of the total black population living in cities and towns over 2,500 in population-any opportunity to gain representation on the city councils which govern city affairs in their communities.

The discriminatory impact of at-large voting systems may be illustrated by the case of Jackson, the state's largest city and the state capital. Jackson has a commission form of government under which the mayor and two city commissioners all are elected citywide. Blacks compose 40 percent of the population of Jackson, and 26 voting precincts-located mostly in the central city-are majority black in registered voters. Since the at-large voting system was adopted in 1912, no black has won election to the city council in citywide voting. Thus, at-large voting has allowed the 60 percent of the population which is white consistently to gain 100 percent of the representation on the Jackson City Council.

Voluntary efforts to change to ward voting to provide some black representation in city government have failed. In 1977, a citywide referendum was held in Jackson seeking a change to a mayor-council form of government under which nine city council members would be elected from single-member districts or wards. If the referendum had passed, black voters would have had the opportunity to elect three or more black council members in ward voting. The referendum was defeated; 72.4 percent of the white voters voted to retain the existing system, and 97.9 percent of the black voters voted for the change."

42 Letter from David L. Norman, Asst. Att'y Gen., to W. H. Fedric, City Attorney, Grenada, Mar. 20, 1972; letter from J. Stanley Pottinger to John D. Guyton, City Attorney, Kosciusko, Sept. 20, 1976; letter from Drew S. Days III, to J. R. Gilfoy, City Attorney, Lexington, Feb. 25, 1977.

43 466 U.S. 55 (1980).

44 Citywide referendums to change to ward voting also have been defeated by white voting majorities in Greenwood and Hattiesburg, which also have commission forms of government.

The retention of at-large elections clearly shows that attitudes have not significantly changed, and that there is still a prevailing desire, on the part of whites, to exclude blacks from representation in government. A poll taken of the white Jackson voters who voted to retain at-large voting under the commission form of government in the 1977 referendum showed that a majority-61 percent of those who voted against the change did so for one or more racial reasons." Different voters responded to different racial reasons:

(a) Might cause racial tension

(b) Would encourage black participation in city government

(c) Might make it possible for blacks to serve as City Councilmen..

(d) Might result in my being represented by a person of another race.

3. Litigation.

Percent

Since 1965, twelve lawsuits have been filed challenging the constitutionality of Mississippi at-large voting systems. In Stewart v. Waller, the most successful case to date, black voters challenged the constitutionality of a 1962 Mississippi statute which required all cities with a mayor-alderman form of government-the most popular form of government in Mississippi-to elect their aldermen on an at-large basis. Prior to 1962, cities over 10,000 in population were required to elect six aldermen by wards and one at-large, and cities under 10,000 had the option of atlarge or ward voting. The author of the bill urged on the floor of the Mississippi Legislature that the law was needed "to maintain our southern way of life." A three-judge District Court in 1975, holding that the Act's provisions were "indicative of an intent to thwart the election of minority candidates to the office of altermen," declared the statute unconstitutional "as a purposeful device conceived and operated to further racial discrimination in the voting process." The District Court, however, limited its injunction only to those cities and towns which switched to at-large voting pursuant to the 1962 statute, and refused to enjoin at-large election systems in effect before 1962, holding that the constitutionality of these systems would have to be "left for case-by-case examination."

"150

In the 1977 municipal elections following the District Court's judgment, 19 black aldermen were elected in ward voting to previously all-white boards of aldermen in cities and towns covered by the court's decree.

Individual lawsuits challenging all-at-large election systems have been filed against the cities of Aberdeen, Canton, Columbus, Greenwood, Greenville, Hattiesburg, Hazelhurst, Jackson, Picayune, West Point, and Yazoo City. Plaintiffs were successful in obtaining injunctions against at-large voting in the Canton and West Point cases, and Aberdeen, Columbus, Hazelhurst, Picayune, and Yazoo City settled the cases against them prior to trial and instituted ward voting systems. In each of the cities which have held city council elections since the ward voting systems went into effect, black candidats have been elected. The cities of Jackson, Hattiesburg, Greenwood, and Greenville, however, refuse to abolish their at-large voting systems, and those cases are still in litigation.

4. The Mobile decision

Efforts in Mississippi to challenge at-large voting systems in effect before 1964 through litigation received a severe, perhaps fatal, setback when in April 1980, the United States Supreme Court handed down its decision in City of Mobile v. Bolden."1 Before the Mobile decision, black voters were able to overturn at-large voting systems by proving that factors such as a history of voting discrimination, a majority vote requirement to win election, exclusion of minority representation in at-large voting, and unresponsiveness of the elected officials to minority needs denied black people equal access to the political process in at-large voting.52 In the Mobile decision, a heavily divided Supreme Court held that discriminatory impact alone was not sufficient to render at-large municipal voting schemes unconstitutional, and

45 Multi Quest International, Inc., "Attitudes of Jacksonians Toward the Form of City Government" (1980). A number of voters also offered unsolicated racial comments, such as "I don't want a 'Nigra' representing me.' and "Blacks are human, but whites are more efficient." 46 404 F. Supp. 206 (N.D. Miss. 1975) (three-judge court).

47 404 F. Supp. at 213.

48 404 F. Supp. at 214. 49 404 F. Supp. at 215.

50 404 F. Supp. at 128.

51 446 U.S. 55 (1980).

52 White v. Regester, 412 U.S. 755 (1973) (at-large legislative districts, Texas Legislature); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976) (Louisiana parish at-large voting).

that it was not sufficient merely to prove that black voters were prevented from electing candidates of their choice. "A plaintiff must prove that the disputed plan was 'conceived or operated as [a] purposeful device to further racial discrimination."" the majority ruled. In addition, the majority of the Court refused on the facts of that case to infer discriminatory intent from the circumstances of the adoption and maintenance of at-large voting in Mobile, rejecting reasonable inferences showing a discriminatory purpose which had been accepted by the Court in other cases, particularly the Northern school desegregation cases.54

Plaintiffs in lawsuits challenging at-large voting will rarely be able to adduce direct evidence that the system has been adopted or maintained for a specific racial purpose. As Eddie N. Williams, President of the Joint Center for Political Studies in Washington has noted:

"The requirement to prove discriminatory_intent is extremely difficult (some say impossible) to meet. Local governments can hardly be expected to articulate unambiguously any intent they may have to dilute black votes. Moreover, it is not clear at this time what kind of evidence the courts will accept as proof of intent to discriminate. Consequently, black and other minorities face the prospect of continued exclusion from thousands of local governmental bodies which are elected atlarge."55

57

The Supreme Court's Mobile decision has already had its impact upon Mississippi at-large voting challenges. In Kirksey v. City. of Jackson 5 the District Court on January 23, 1981, ruled against the plaintiffs' challenge to at-large municipal elections in Jackson. Plaintiffs presented evidence that blacks had been denied any representation in city government since at-large voting was adopted in 1912, that in the early 1900's at-large voting was viewed in Mississippi as another device to prevent black political praticipation, that in the 1977 referendum whites voted overwhelmingly against the change to ward_voting, and that the change to ward voting was opposed by the White Citizens Council and others for racial reasons. Nevertheless, the District Court found that “race was not a motivating factor in the enactment of the legislation permitting the referendum of 1912 or the adoption of the commission form of government with at-large voting by the electorate of Jackson in 1912," and that "the plaintiffs have failed to prove any intentional and purposeful racial motivation for the retention or maintenance of Jackson's form of government. . . ."

1158

5. Consequences to the black community

As a consequence of at-large voting, black citizens feel disenfranchised and denied an effective voice in the operation of city government. As State Rep. Fred L. Banks, Jr., President of the Jackson Branch of the NAACP, testified in the Jackson trial: "I mean that a black cannot vote for a person who is responsible to the black community solely or mostly who can articulate the needs of the black community. A black vote is no more than about 25 percent [of the total number of registered voters]. We have an at-large form of government. There are only three people who are elected in the City of Jackson. All three of these people have to run city-wide. Being in such a minority blacks cannot elect a black or elect anyone who would be solely responsible to them as his constituency."59

The result is a form of racial segregation in which blacks are excluded from the democratic processes. Blacks believe that they are forced to remain on the outside looking in. Henry J. Kirksey, who in 1979 was elected State Senator from Jackson, testified:

"First of all, there is a separation of races in the City of Jackson, a very definite clear-cut separation. There is no conventional, social relationship between the races. There is, for example, still opposition to blacks going to white churches, so that we

53 446 U.S. at 66 (plurality opinion).

54 See Note "The Supreme Court, 1979 Term," 94 Harv. L. Rev. 75, 147 (1980).

55 E. Williams, "Supreme Court Halts District Elections." Focus, p. 4 (May 1980).

56 461 F. Supp. 1282 (S.D. Miss. 1978), vac'd and remanded for reconsideration in light of Mobile v. Bolden, 625 F.2d 21 (5th Cir. 1980).

57 For example, State Sen. J. L. Hebron, who was President Pro Tem. of the Mississippi Senate in 1908, and who supported and voted for the legislation allowing Mississippi cities to switch to the commission form of government with at-large voting, argued in opposition to a proposed change to ward voting in his hometown of Greenville:

"I opposed the bringing of the negro back into politics which going under the Code and allowing the wards to select their Aldermen, will surely do." Greenville Times, Nov. 24, 1906, p.

1.

58 Kirksey v. City of Jackson, Civil No. J77-0075(N), S.D. Miss., Post-Remand Supplemental Memorandum Opinion, filed Jan. 23, 1981, pp. 19, 23.

59 Trial Trascript, Kirksey v. City of Jackson, Civil No. J77-0075(N), S.D. Miss., Vol I, p. 60 (July 6, 1978).

are separated throughout the-the relationship is one of racial separation. That means that in terms of your question about having a white government, we cannot relate to them as our peers. They are not, in fact, our peers. They are from a completely separate environment. I object because things happen in city government about which the black community has little information, very little information..." "60

Data and statistics developed in lawsuits challenging at-large municipal voting and racial discrimination in the provision of municipal services in Mississippi show that the exclusion of black representation in city government through at-large voting also results in discrimination against black citizens in the operation of city government and in the provision of municpal services. Evidence gathered in these cases involving cities with at-large elections shows discrimination against blacks in appointments to municipal boards and commissions, city employment, street paving and maintenance, street lighting, sewer service, water service, fire protection, police protection, parks and recreation facilities, education and city planning. (See Appendix A, Discrimination Against Black Citizens in the Provision of Municipal Services in Cities with At-Large Elections.)

FIVE: RACIAL GERRYMANDERING OF DISTRICT LINES

In 1977, the United States Supreme Court strongly condemned the apparent racial gerrymandering of state legislative districts in a plan ordered into effect by the District Court in the state legislative reapportionment case. 61 The Court noted unexplained departures from neutral guidelines “which have the apparent effect of scattering Negro voting concentrations among a number of white majority districts," including the "adoption of irregularly shaped districts when alternative plans exhibiting contiguity, compactness, and lower or acceptable population variances were at hand." As examples, the Court noted:

(1) The senatorial districts for Hinds County which corresponded to "five oddly shaped beats [supervisors' districts] that extend from the far corners of the county in long corridors that fragment the City of Jackson, where much of the Negro population is concentrated," and

(2) Splitting up two contiguous, majority black counties-Jefferson and Claiborne Counties-and unnecessarily combining them with majority white counties or parts of counties to make up two separate senatorial districts, one with a white majority and another with only a slight Negro voting-age majority. These configurations, the Supreme Court held, support:

A charge that the departures are explicable only in terms of a purpose to minimize the voting strength of a minority group. The District Court could have avoided this charge by more carefully abiding by its stated intent of adopting reasonably contiguous and compact districts, and by fully explaining any departures from that goal."

"Impermissible racial dilution"62 through gerrymandering of election district lines continues to deny the voting rights of black voters in Mississippi at the state, county, and local levels. Althugh the right to cast a ballot remains intact, voting becomes a futile exercise when the voting strength of minorities is fragmented and cancelled out by sophisticated gerrymandering techniques which frustrate the purpose of the Voting Rights Act.

1. County Redistricting.-In Mississippi, each county is divided into five supervisors' districts, which serve as election districts for the election of members of the county board of supervisors (the county governing board), constables, justice court judges (justices of the peace), county school board members, and, recently, members of the county board of election commissioners. Racial gerrymandering of county supervisors' districts to dilute black voting strength, primarily through splitting up black concentrations, has been 63 and continues to be widely used to deny black voters in Mississippi representation of their choice in county government. Since the Voting Rights Act was enacted, eight major lawsuits have been filed challenging racial gerrymandering of supervisor's district lines, and the Attorney General has

60 Transcript of Hearing on Motion for Preliminary Injunction, Kirksey v. City of Jackson, supra, p. 39 (March 31, 1977).

61 Connor v. Finch, 431 U.S., 404, 421-26 (1977).

62 Id. at 422.

63 F. Parker, County Redistricting in Mississippi: Case Studies in Racial Gerrymandering, 44 Miss. L. J. 391 (1973).

64 Howard v. Adams County Bd. of Supervisors 452 F. 2d (5th Cir. 1971), cert. denied, 407 U.S. 925 (1972), 480 F. 2d 978 (5th Cir. 1973, cert. denied, 415 U.S. 975 (1974; Henry v. Coahoma County Bd. of Election Comm'rs, Civil No. DC-71-50-S (N.D. Miss., filed June 11, 1971; United States v. Bd. of Supervisors of Forrest County, 571 F. 2d 951 (5th Cir. 1978); Grenada County Chapter, NAACP v. Grenada County Bd. of Supervisors, Civil No. WC 75-42-K (N.D. Miss. filed