YAZOO COUNTY

In Yazoo County, the section 5 preclearance requirement forced the county to abandon its repeated efforts to split up the black population concentration in Yazoo City among all five districts, and requested in the development of a new plan under which black candidates could get elected to county government.

Black people in Yazoo County are most heavily concentrated in seven majority black Census enumeration districts (ED's) in central and south Yazoo City, the county seat. Yazoo City itself is 60 percent black, and prior to redistricting in 1970 was located entirely within one district. In 1971 the Board of Supervisors devised a new plan, purporting to equalize population disparities among the districts, which combined rural and urban areas in each district and which fragmented the black population concentration in Yazoo City among all five districts.92 In 1971 the Attorney General objected to the plan, noting that the districts were not equal in population, that black residential areas in Yazoo City were unnecessarily divided into each of the five districts, and that the proposed district lines did not seem to be related to equalizing population or achieving compactness or regularity of shape.93 In 1974 the Board made revisions based on the 1971 plan, but the Justice Department indicated that the revised plan retained the objectionable features of the objected-to plan. The Department found that:

"Given the number and location of black persons in the City of Yazoo, alternative district lines, drawn solely to achieve compact, regularly shaped districts within the city, would naturally result in two of the county's five supervisors' districts having black populations in excess of 64 percent." 94

The Department then made suggestions for revising the plan which would cure its objectionable features. Subsequently, the Board developed a new plan which still split Yazoo City up among all five districts, but which avoided the fragmentation of black voting strength of the prior plan by putting the bulk of the black population in Districts 3 and 5. Under the new plan, District 3 was 61 percent black and District 5 was 69 percent black. The Justice Department approved the new plan in 1979 and in the 1979 county elections, a black county supervisor, the county's first since Reconstruction, was elected from District 5.

2. City redistricting

In two significant instances since 1975, the Attorney General has objected to city redistricting plans in Canton and Batesville, In both instances, the section 5 objections were based upon findings that wards containing black population concentrations were malapportioned, resulting in unlawful dilution of black voting strength. Malapportionment devalues the votes of persons living in overpopulated districts, and enhances the value of the votes of persons living in underpopulated districts.95 Thus, districts which are larger in population than the ideal-sized district are "underrepresented," and districts which are smaller in population than the ideal are "overrepresented." A districting plan is racially discriminatory when majority black districts are underrepresented and majority white districts are overrepresent

ed.

In 1977 the Attroney General objected to a redistricting plan for Canton, a city involved in two lawsuits which prevented a switch to at-large voting.96 The city submitted a redistricting plan based upon its own population census which significantly understated the black population and overstated the white population.97 As a result, the Attorney General determined that the plan unnecessarily packed black population concentrations into two majority black wards which-because of malapportionment-were underrepresented in ward voting?

"Thus, even though we have received information that the City's house count itself may not be accurate, if the 3 and 4 person factors are applied to the white and

92 See F. Parker, County Redistricting in Mississippi, supra, pp. 404, 419.

93 Letter from David L. Norman, Asst. Att'y Gen., to Griffin Norquist, attorney for the Yazoo County Board of Supervisors, July 19, 1971.

94 Letter from Gerald W. Jones, Chief, Voting Section, Civil Rights Division, U.S. Dept. of Justice, to Griffin Norquist, Jan. 20, 1975.

95 See Reynolds v. Sims, 377 U.S. 533 (1964).

96 Perkins v. Matthews, 400 U.S. 379 (1971); Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975).

97 The city's population census was based upon counting houses and multiplying the number of houses by the citywide average number of persons per house (3.5) as shown by the 1970 Census. This estimation process failed to take into account the fact that there were statistical differences in the number of person per household for whites and blacks. The average white household consisted of approximately 3 persons, and the average black household contained approximately 4 persons. The city's method of calculation overstated the number of whites in each ward, and understated the number of blacks.

black house count data, respectively which the city has provided, the City is 59.6 percent black, Wards 5 and 6 [two majority black wards] are significantly overpopulated, and the majority white wards are all underpopulated. The result of this is that blacks are, in general, underrepresented and whites are overrepresented." 98 In 1980 a similar objection was lodged in a Batesville redistricting plan based on a special house-count census survey conducted by the city. The Attorney General determined that one ward had only a slight black population majority (51.4 percent), and that blacks were overly concentrated in this ward-resulting in underrepresentation-while whites were overrepresented in more sparsely populated majority white wards." The Attorney General also determined that the district configuration unnecessarily deprived black citizens, who constituted 25 percent of the city's population, of any opportunity to elect aldermen of their choice:

“Our analysis further reveals that voting in the county and the various school district elections appears to follow racial lines. Thus, blacks under this plan would appear to have no effective opportunity to elect an alderman of their choice. On the other hand, we find that a reasonable and fairly drawn alternative plan which eliminated the malapportionment extant in the submitted plan likely would contain a district with a significantly larger black majority than does the proposed Ward No. 2. In fact, we understand that such an alternative was available to and considered by the city prior to its adoption of the plan now under submission. In our view, the adoption of a plan that would maintain black voting strength at a minimum level, where alternative options would provide a fairer chance for minority representation, is relevant to the question of an impermissible racial purpose in its adoption (see Wilkes County v. United States, 450 F. Supp. 1171 (D.D.C. 1978), aff'd 439 U.S. 999 (1978)).”1

SIX: DISCRIMINATORY MANIPULATION OF STATE ELECTION LAWS

Since 1966 to the present, the Mississippi Legislature and units of local government have made sustained and persistent efforts to manipulate the election laws of the state to prevent the election of black candidates. These include establishing a majority vote/runoff requirement to win elective office and abolishing party primaries, manipulating the qualifying deadlines for independent candidates, switching from election to appointment for certain offices, and creating numbered posts. Each of these discriminatory election law changes has been blocked by section 5 objections or, in some cases, litigation.

1. The "Open Primary" statutes and the majority vote requirement

In 1979 the Mississippi Legislature-for the fifth time-reenacted an "open primary" law abolishing the traditional system of political party primaries and establishing a majority vote runoff requirement to win elective office. The Attorney General determined-for the third time-that the state had failed to meet its burden of showing that implementation of this law would not be retrogressive for black political participation in Mississippi or that this retrogression was not intended. In December, 1979 Mississippi filed a lawsuit in the District Court for the District of Columbia seeking to overturn this section 5 objection, and this litigation is continuing.

Mississippi traditionally has required a majority vote to win party nomination, but candidates running in the general election can win with less than a majority-a plurality-of the vote. Black candidates running in party primaries against several white candidates frequently have received the largest number of votes-but less than a majority-only to lose in the primary runoff in a head-to-head contest with the white candidate receiving the largest number of votes. Under the plurality requirement applicable in general elections, if there is a split in the white vote between the white Democratic and Republican candidates, black independents have a chance of winning even in elections in which black voters do not have a voting

98 Letter from Drew S. Days, III, Asst. Att'y Gen., to R. L. Goza, Apr. 13, 1977, p. 2. "Letter from Days to Richard T. Phillips, Sept. 29, 1980.

1 Id., p. 2.

2 Miss. Laws, 1979, ch. 452.

Section 5 objection letter from Drew S. Days, III, Asst. Att'y Gen., to Miss. Att'g Gen. A. F. Summer, June 11, 1979. The Supreme Court has held that a § 5 objection is required under the discriminatory effect standard if the change would "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141 (1970). Under 85, and implementing Justice Department regulations, 28 CFR § 51.39 (1981), the burden of proof is on the submitting state or locality. Mississippi v. United States, Civil No. 79–3469 (D.D.C., filed Dec. 27, 1979).

4

5 Miss. Code. Ann. § 3279 (1956 Recomp.).

majority. Underlying most Mississippi elections is the fact of racial bloc voting; most whites refuse to vote for black candidates regardless of their qualifications." Since 1966, the Mississippi Legislature has on five separate occasions-in 1966, 1970, 1975, 1976, and 1979-enacted "open primary" statutes aimed at preventing black independent candidates from winning in the general election with less than a majority of the vote. Under this proposal, all candidates-independents as well as party candidates-are required to qualify and run at the same time in a "preferential election." Candidates affiliated with political parties may run with the party label, but more than one political party candidate can run for the same officepolitical party nominations are not permitted by the legislation. If no candidate receives a majority, the two top vote-getters are required to run in general election "runoff." These statutes enacted a radical new system for electing public officials in Mississippi from Governor to constable, and, in various versions, congressional and municipal officials as well.

"Open primary" legislation in Mississippi has a long and involved history tainted with strong evidence of racially discriminatory intent. The Mississippi Legislature first passed "open primary" legislation in 1966, but it was vetoed by Gov. Paul Johnson who stated that "this is an inopportune time for racial changes to be made in our election procedures" and was concerned that approval of the law might subject "our entire election procedures to a multiplicity of litigation." Renewed interest in the "open primary" scheme was sparked when in the 1967 elections, 195 black candidates ran as independents and 23—more than ever before-were elected to office (including the state's first black state legislator). Also, in a 1968 special election to fill a vacancy in Congress, black candidate Charles Evers got more votes than any of the white candidates (he lost in the runoff). The sponsor of the 1968 "open primary" bill, state Rep. Stone Barefield of Hattiesburg, stated that it would cut down the chances of a "minority" candidate being elected. He told newsmen that the Evers special election campaign illustrated the need for such a change, but it was not directed against Evers personally. 10 The bill-dubbed the "Charles Evers bill"-passed the Mississippi House of Representatives by a vote of 103 to 4, but died in the Senate Elections Committee amid doubt "whether the bill would have withstood a court challenge." 11

12

"Open primary" legislation again passed both houses in 1970. The House sponsor of the legislation indicated that it was "almost indentical" to the 1968 proposal. The Senate debate focused on whether or not it would "encourage Ñegro bloc voting" and whether it would "aid or thwart the power of minority groups. chairman of the Senate Elections Committee warned that the legislation was necessary to prevent the election of "minority" candidates:

13 The

"Talk about the bloc vote . . . under the present election laws, a minority candidate with a minority vote can come in and win a general election." 14

When the legislation was submitted to the Attorney General for preclearance, the Assistant Attorney General in charge of the Civil Rights Division (who acts for the Attorney General on section 5 submissions) wrote Mississippi officials that "there appear to be some indications from the reported statements of proponents and the statements of purpose made with respect to prior similar proposals" that one

"In Mississippi, large numbers of black candidates have run for office as independent candidates, who can qualify to run by submitting nominating petitions containing the required number of signatures. Many blacks have run as independents because of their past exclusion from effective participation in party affairs, see Riddell v. Nat'l Democratic Party, 508 F.2d 770 (5th Cir. 1975), and because of the possibility of winning in the general election with less than a majority of the vote.

See Appendix B, Racial Bloc Voting.

1966 House Journal, pp. 1111-12. Also in 1966, the Mississippi Legislature enacted racially discriminatory legislation increasing tenfold or more the number of nominating petition signatures required for independent candidates to qualify. This statute was enacted after three black members of the Mississippi Freedom Democratic Party announced their intention to run_as independents in the general election for the U.S. Senate and House of Representatives. See United States Commission on Civil Rights, "Political Participation," pp. 44-46 (1968). The Supreme Court held that the new qualifying requirements were subject to Federal preclearance under the Voting Rights Act, Whitley v. Williams, decided sub nom. Allen v. State Bd. of Elections, 393 U.S. 544, 570 (1969), and the Attorney General objected to their implementation as racially discriminatory in both purpose and effect. Letter from Jerris Leonard, Asst. Att'y Gen., to Miss. Att'y Gen. A. F. Summer, May 21, 1969.

9 Andrew Reese, Jr., United Press International (UPI), Feb. 9, 1968.

10 James Saggus, Associated Press (AP), Mar. 28, 1968.

11 UPI, Apr. 4, 1968.

12 UPI, Jan. 29, 1970.

13 UPI, Mar. 24, 1970; (Memphis) Commercial Appeal, Feb. 25, 1970. 14 (New Orleans) Times-Picayune, Mar. 25, 1970.

purpose of the bill was to prevent the election of independent black candidates. 15 However, he stated that he was unable to make a determination within the alloted 60 days provided by the Act, and therefore was taking no action on the submission: "Under these circumstances, the Attorney General is not prepared at this time60 days after receipt of these statutes-to make any determination of the validity or invalidity of Acts 362 and 363 under the Voting Rights Act."16

Terming this a "Pilate-like response,' a three-judge Mississippi District Court held that the Assistant Attorney General had failed to perform his duty under the Act and enjoined implementation pending proper § 5 review.17

This legislation was not resubmitted to the Attorney General until 1974, and this time the Attorney General concluded that the effect of this legislation "likely will be to minimize the opportunity of black voters to elect a candidate of their choice for a substantial number of district and countywide offices.***" 18

Unable to conclude that the legislation did not have a racially discriminatory purpose and would not have a racially discriminatory effect, the Attorney General lodged an objection.19

"Open primary" statutes were again enacted by the state legislature in 1975 and 1976. The 1975 legislation was vetoed by Gov. William Waller, and the Attorney General objected to the 1976 legislation for the same reasons stated in the 1974 objection letter.20 Proponents of the "open primary" have contended that the law would treat all candidates alike—regardless of race—and help cut down on rising costs of conducting campaigns and holding elections. However, most of the independent candidates who have run since 1965 in state and county races have been black, and there are less discriminatory alternatives available for reducing campaign costs and election expenses."1

The Justice Department's position regarding this "open primary" legislation was recently sustained by the Supreme Court in City of Rome, Georgia v. United States 22 when it affirmed a three-judge District Court's determination that a similar majority-vote, runoff-election requirement failed to pass § 5 muster because of its discriminatory effect:

"With respect to the majority vote and runoff election provisions, the discriminatory effect is clear beyond peradventure. Under the plurality-win system, a black candidate in Rome would stand a good chance of election if the white citizens spilt their votes among numerous candidates and the black voters engaged in "singleshot" voting, i.e., voted only for the candidate or candidates of their choice. Under the majority vote/runoff election scheme, however, the black candidate, even if he gained a plurality of votes in the general election, would still have to face the runner-up white candidate in a head-to-head runoff election in which, given bloc voting by race and a white majority, the black candidate would be at a severe disadvantage."23

Despite the Attorney General's three successive objections to this legislation, and the Supreme Court's decision, Mississippi has not given up in its efforts to imple ment this discriminatory "open primary" legislation. Although the provisions of the "open primary" law remain unenforceable because of these § 5 objections, they are still published in the Elections sections of the Mississippi Code Annotated with state approval, apparently awaiting the day when § 5 will lapse or be repealed and this unique law can go into effect.

Also, despite these repeated § 5 objections to the "open primary" legislation, units of local government in Mississippi have attempted to institute their own local majority vote requirements.

Louisville Municipal Separate School District.-In 1980, the Board of Trustees of the Louisville Municipal School District-which functions as a countywide school district"-attempted to gain Attorney General approval of a new election plan under which board members would be elected from each of the five supervisors'

15 Letter from Jerris Leonard, Asst. Att'y Gen., to Miss. Att'y Gen. A. F. Summer, Sept. 21, 1970. 16 Id.

17 Evers v. State Bd. of Election Comm'rs, 327 F. Supp. 640 (S.D. Miss. 1971) (three-judge court), appeal dism'd, 450 U.S. 1001 (1972).

is Letter from L. Stanley Pottinger, Asst. Att'y Gen., to A.F. Summer, Apr. 26, 1974. 19 Id.

20 Letter from Pottinger to Summer, Aug. 23, 1976.

"For example, election expenses could be reduced by moving the date for party primaries closer to the date for holding the general election, and by eliminating primary runoffs.

23

U.S., 64 L.Ed.2d 119 (1980), aff'g, 472 F. Supp. 221 (D.D.C. 1979) (three-judge court). 23 472 F. Supp. at 244 (footnotes omitted).

"In most counties in Mississippi, there is a county board of education, each member of which is elected from one of the five supervisors' districts. As in most other elections in Mississippi, candidates may win in the general election with a plurality of the votes cast.