A Note on Court Decisions as Sources

Among the principal sources for this study are federal court decisions, both published and unpublished.^{Footnote 14} Every opinion by a federal trial court deciding liability is divided into two sections, findings of fact and conclusions of law. When examining the legal analysis applied by the court, I treat these opinions as primary sources for understanding the evolution of the case law. When the court is recounting the factual evidence presented at trial and supplying its interpretation of the evidence, in contrast, the opinion becomes a secondary source, rather like a scholarly work. The factual evidence presented in court proceedings—in voting rights cases, key evidence often comes through expert witness testimony by political scientists or historians—is an invaluable resource for historical and social science research. As with evidence in a scholarly work, I interpret the facts reported in court decisions as reliable, or in some instances unreliable, depending on my assessment of the sources and the logic of the court’s interpretation of the evidence.^{Footnote 15}

Trial courts are of course bound by the standards articulated by the decisions of the appellate court in their federal circuit, which are in turn bound by the standards set forth by the Supreme Court. A proper understanding of the interaction of policy and law necessarily requires consideration of each level of judicial decision-making. It requires, as well, that court decisions be viewed in light of what scholars have discovered about the social and political context of the facts at issue.

The Tuskegee De-annexation

The case with which the story begins arises in the eastern Alabama black belt. In 1957 the Alabama legislature redrew the boundaries of the predominantly African American city of Tuskegee in such a way that virtually all its black inhabitants were beyond the municipal limits, turning an 80 percent black city into a virtually all-white city and thus eliminating the threat that African Americans might elect a member to the city council. The city was the home of historic Tuskegee Institute and a veterans’ hospital; the black professional staff of both institutions had been fighting mostly hostile registrars to secure the right to vote since the 1930s. At the time of the de-annexation, 40 percent of the eligible voters in the city were African American—a large enough proportion to worry local officials about future municipal elections—but in the county as a whole black registration was far lower.^{Footnote 16}

Sam Engelhardt Jr., a leader in the state’s white citizens’ council organization, was the legislative architect of the de-annexation plan. Engelhardt understood the process of vote dilution. Several years earlier, in 1951, he had persuaded the legislature to pass a bill outlawing single-shot voting in Alabama municipalities because, as a fellow legislator explained, “There are some who fear that the colored voters might be able to elect one of their own race to the city council by single-shot voting.”^{Footnote 17} This term of art referred to a practice often utilized by minority citizens where several seats on a council are to be filled in an election; by casting a ballot only for their preferred candidate (or candidates), minority voters deny support to other candidates and thus increase the mathematical weight of their solitary vote. The de-annexation plan for Tuskegee was simply the latest in Engelhardt’s efforts to maintain white control of the political process.^{Footnote 18}

Civil rights lawyer Fred Gray challenged Engelhardt’s handiwork in federal court. In the district court, Judge Frank Johnson dismissed the case, based on two lines of precedents. First of all, the judge followed the reasoning of a series of decisions giving state and local governments plenary authority to alter municipal boundaries; Judge Johnson also adopted the common view at that time that courts should not inquire into legislative motivation in adopting laws.^{Footnote 19} The Fifth Circuit Court of Appeals affirmed that dismissal, adding an additional concern that the Tuskegee annexation was analogous to a legislative redistricting plan.^{Footnote 20} At that time, the Supreme Court treated any challenge to apportionment or redistricting plans as nonjusticiable because such lawsuits presented a “political question,” as Supreme Court Justice Felix Frankfurter put it in the 1946 redistricting decision Colegrove v. Green: “Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly.”^{Footnote 21} In this instance, of course, there was no chance the Alabama legislature would remedy its racially discriminatory de-annexation of Tuskegee.

The Supreme Court broke new ground, however, in dealing with the de-annexation in the landmark decision Gomillion v. Lightfoot.^{Footnote 22} Justice Frankfurter, the architect of Colegrove, wrote the majority opinion. Frankfurter persuaded his colleagues to strike down the Tuskegee de-annexation as a violation of the Fifteenth Amendment, based on his view that it denied blacks the right to vote in municipal elections, rather than as a dilution of their voting strength in violation of the Fourteenth Amendment’s equal protection clause.^{Footnote 23} In this way Frankfurter could take action against the infamous gerrymander while still claiming that Colegrove was good law.^{Footnote 24}

The Voting Rights Act and Preclearance Review

By 1965, both President Lyndon Johnson and supporters of minority voting rights in Congress had decided that litigation by itself would never eliminate racial discrimination affecting voting in the South. Even those judges who sought to eliminate discriminatory barriers found that every time the courts struck down one registration procedure southern local officials or state legislators devised newer, more subtle ways of minimizing black voter registration. Frustrated with the slow progress of the jurisdiction-by-jurisdiction campaign before often-hostile southern federal judges, the president asked the Civil Rights Division of the Justice Department to draft a strong voting rights law substantially increasing the department’s enforcement powers. The bill they drafted, which was only slightly revised after introduction on Capitol Hill, drew on their experience in voting rights litigation in the deep South since 1960. The national outrage over the attacks on civil rights demonstrators in Selma, Alabama, in March 1965, helped make it possible to win congressional passage of the bill.^{Footnote 25}

As adopted in 1965, the Voting Rights Act departed from precedent by providing for direct federal action to enable African Americans in the South to register and vote. Section 4 of the act suspended, initially for only five years, the use of literacy tests and other discriminatory devices in six states and forty counties in a seventh, North Carolina. To counter the actions of discriminatory local registrars and poll officials, other provisions of the act authorized the use of federal examiners to register persons in designated counties and federal observers to monitor the conduct of elections.^{Footnote 26} The most novel feature of the act was the “preclearance” requirement set forth in Section 5. Under its terms, all changes in voting practices in states covered by the act’s special provisions must be approved by one of two fact-finders—either a three-judge panel in the federal courts of the District of Columbia or the Department of Justice—before they can be legally enforced.^{Footnote 27}

Among the Supreme Court decisions on which the Congress relied as a justification for the preclearance requirement in Section 5 of the act was Gomillion v. Lightfoot. Thus Congress saw annexations or de-annexations—as well as redrawing district boundaries or other devices that dilute minority voting strength—as among the voting changes requiring preclearance under Section 5.^{Footnote 28} In 1966, the Supreme Court ruled that the preclearance requirement, like other challenged provisions of the act, was constitutional. Whenever the Justice Department obtained favorable decisions striking down particular tests, southern states simply enacted new discriminatory devices, said the Court, and “Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.”^{Footnote 29} Within a few years, implementation of the Voting Rights Act brought a dramatic increase in voter registration among both black and white southerners.^{Footnote 30}

In 1969, the Supreme Court ruled in Allen v. State Board of Elections that the language of Section 5 meant what it said: all voting changes adopted in covered jurisdictions, including such potentially dilutive changes as the adoption of at-large elections or new redistricting plans—or annexations and de-annexations—must be submitted for preclearance.^{Footnote 31} In a 1971 decision regarding the small city of Canton, Mississippi, the Supreme Court underscored its ruling in Allen that municipal annexations were among the voting changes covered by the act and explained how they should be interpreted: “§ 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation.” The precedent cited by the Court as providing “a clearcut illustration of the potential of boundary changes for ‘denying or abridging the right to vote on account of race or color’” was, not surprisingly, Gomillion v. Lightfoot.^{Footnote 32}

Dealing with Annexation: The Petersburg Model

In the 1970s the Supreme Court adopted a distinctive approach to assessing annexation cases, following the lead of a D.C. trial court in a Section 5 preclearance case, City of Petersburg v. United States.^{Footnote 33} Petersburg is an old industrial city about twenty miles south of Richmond, the Virginia state capital. It is the site of a famous Civil War battlefield and the historically black Virginia State University. The city council initially adopted the annexation ordinance in 1966, but, as in all Virginia cities, it had to be approved by a special annexation court. As a result, the expansion of the city’s boundaries did not take effect until the end of December 1971. Before the annexation at issue, Petersburg’s population (36, 103 in 1970) was 55 percent African American and 45 percent white. The city added fourteen square miles with 7,323 persons, virtually all white, leaving the post-annexation city with a population 54 percent white and only 46 percent black—a black-majority city would now become a white-majority city.^{Footnote 34}

Under the city’s at-large election system, two blacks had been elected to the five-member city council in 1964 and 1966—before the annexation ordinance was adopted by the council—when the city’s population was majority black but its registered voters were still just barely majority white.^{Footnote 35} This black electoral success did not mean that voting patterns in Petersburg were free of racial polarization. In 1968 one of the two black incumbents was defeated, along with another black candidate. Based on the election returns from 1964 through 1970 in predominantly black and predominantly white precincts—what came to be called homogeneous precinct analysis in voting rights litigation—the court found that “almost total bloc voting by race has been the well established pattern in Petersburg.”^{Footnote 36} As a result, the annexation, which the court viewed as “an expansion of an at-large voting system,” had a discriminatory effect: “The dilution here has occurred as a result of the annexation in the context of at-large elections and bloc-voting by race, and under these circumstances it abridges the right to vote on account of color by impairing the ability of blacks to elect candidates of their choice.”^{Footnote 37}

In contrast, the court found no evidence that the annexation was prompted by a racial purpose. One of the black council members had, in fact, introduced the annexation ordinance in 1966 and the other black council member supported the annexation as well. The expansion of the city was supported by blacks and whites alike, declared the court, “as a necessary measure to allow the city to expand its tax base and allow its potential for growth and development.”^{Footnote 38} Although the remaining black council member supported the annexation, he introduced a proposal to have members of the city council elected from single-member districts “in an effort to reduce the dilutive effect the at-large election would have on black political strength.” This option, which the Petersburg city council rejected, seemed to the trial court a means of balancing the city’s need for expansion with the goal of preventing a diminution of minority voting strength.^{Footnote 39} The court denied preclearance and retained jurisdiction in the case until the city switched to ward elections.^{Footnote 40}

The city appealed this decision to the Supreme Court, which summarily affirmed the trial court’s decision. This means the Court provides no opinion but simply endorses the lower court’s ruling and not necessarily its reasoning. In a preclearance case such as this, however, a summary affirmance is a binding precedent for the lower courts in the District of Columbia and the Department of Justice until contradicted by a future Supreme Court decision.^{Footnote 41} Because this was the first time the Supreme Court had to review the denial of preclearance to a municipal annexation—what attorneys call an issue of first impression—the arguments Petersburg’s lawyers unsuccessfully made to the Court are worth noting.^{Footnote 42}

The city contended that the lower court decision, if affirmed, would “have a revolutionary impact on municipal government” because it would “require virtually every city subject to the Voting Rights Act which elects its councilmen at large to switch to a ward system as the price of annexation.” As the city saw it—and this is quite a concession—“bloc voting by race is ubiquitous” in areas covered by Section 5, and in most instances “the annexed area will typically be populated with whites who will tend to ‘dilute’ black voting power in the expanded urban area.”^{Footnote 43} The city also argued that because the trial court found that the annexation was not adopted with a discriminatory purpose and served a legitimate, race-neutral policy need, the annexation was entitled to preclearance without requiring a change in the city’s existing at-large elections—even where racial bloc voting in the enlarged city would dilute minority voting strength.^{Footnote 44} The Supreme Court did not even schedule oral argument on these claims before summarily affirming the trial court’s decision.^{Footnote 45}

The Richmond Annexation: The Fifteenth Amendment Case

Two years later the Supreme Court issued a landmark decision in an annexation case from neighboring Richmond, whose annexation of a significant portion of adjacent Chesterfield County had a tangled history, beginning in 1962 and culminating in 1970. Two separate lawsuits were brought in federal court concerning the Richmond annexation. The first was a Fifteenth Amendment challenge in the local district court by black plaintiff Curtis Holt, who won the case before Judge Robert Mehrige. This decision was reversed, however, by the Fourth Circuit Court of Appeals (also headquartered in Richmond). A second case, a Section 5 preclearance lawsuit filed by the city, followed an initial objection to the Richmond annexation by the Department of Justice. This case was tried before a three-judge court in the District of Columbia; on appeal in that case, the Supreme Court adopted the policy first utilized by the trial court in the Petersburg case—and that set the policy for addressing annexation issues under Section 5 of the Voting Rights Act for decades.^{Footnote 46}

Before beginning its annexation efforts, Richmond had attempted in 1960 to consolidate the city with predominantly white, suburban Henrico County. Already experiencing white flight to the suburbs, Richmond was seeing an increase in black political strength within the city. As historian Christopher Silver observes, “Consolidation backers attempted to convince suburbanites that a black-dominated city government would hurt them as much as white Richmonders.”^{Footnote 47} They had as a model the merger in the 1950s of the cities of Newport News and Warwick to the southeast, on the northern shore of Hampton Roads. The Tidewater consolidation’s backers, like their Richmond counterparts, had a significant racial purpose and the referendum vote there was racially polarized, with whites favoring consolidation and blacks opposing it. According to political scientist David Temple, “Fear was expressed privately, and later openly, among white Newport News residents that the growing Negro population of Newport News might soon win control of the municipal government.”^{Footnote 48} African Americans in Richmond also opposed city-county consolidation in the 1960 referendum. Unlike the Tidewater model, however, the merger was rejected by whites in suburban Henrico.^{Footnote 49}

In 1962, Richmond filed annexation suits against both Henrico County to the north and Chesterfield County to the south, seeking to add substantial land and population to the city.^{Footnote 50} No evidence was ever presented to the annexation courts of a racial purpose underlying the 1962 annexation lawsuits. In 1965, the annexation court awarded Richmond a little more than sixteen square miles of Henrico County with around forty-five thousand people, but at a cost of $55 million. Richmond rejected the deal with Henrico County due to the price tag and focused its attention instead on annexing part of Chesterfield County.^{Footnote 51}

While the Chesterfield County annexation lawsuit moved forward between 1965 and 1968, the Voting Rights Act was adopted and Virginia’s poll tax was struck down as an unconstitutional prerequisite for voting.^{Footnote 52} As a result, African Americans began to register and vote in much larger numbers in Richmond, as in the rest of Virginia. White flight to the suburbs also accelerated in the late 1960s, as whites reacted to court-ordered desegregation of the public schools.^{Footnote 53}

In fact, the entire Richmond annexation struggle should be viewed against the background of racial conflict over school desegregation. In 1961, black plaintiffs represented by veteran civil rights lawyers Oliver Hill and Samuel Tucker, filed a class-action lawsuit that challenged the segregated school system in Richmond. Although eleven African American students were admitted to previously all-white schools in the fall of 1962, a year later there were only 312, spread among twelve overwhelmingly white schools. In 1964, the district court accepted the school board’s “freedom of choice” plan for student assignments, but left the city’s segregated school faculties untouched. In the fall of 1965, the U.S. Supreme Court found that approach unacceptable and sent the case back to the lower courts, which expanded the freedom-of-choice policy to teachers.^{Footnote 54}

As more and more whites left the city for Chesterfield and Henrico counties in the late 1960s, the city school system was still operating under the limited freedom-of-choice plan. The limited degree to which this plan produced actual desegregation is revealed by the demographic composition of schools in May 1970. Of the city’s seven high schools, three were 100 percent black and one was more integrated at 68 percent black. Other schools were 99.3 percent white, another 92 percent white, and a third 81 percent white. The same pattern prevailed in middle and elementary schools. Nevertheless, federal court decisions elsewhere left little doubt that substantial integration of both students and teachers was likely in the near future.^{Footnote 55}

In the last half of the 1960s, Richmond city politics was dominated by Richmond Forward, a predominantly white political organization, and the Crusade for Voters, a predominantly black organization. Each, however, nominated a biracial slate of candidates for city council in 1968. Richmond Forward supported the Chesterfield annexation and the Crusade for Voters opposed it. In that election two white candidates endorsed by the Crusade defeated two black candidates who were endorsed by Richmond Forward, but the Crusade candidates held only three of nine seats on the council.^{Footnote 56}

The Crusade-endorsed members, one of whom was black, were the only council members who opposed the Chesterfield annexation project. As a result, the council majority decided to exclude the members endorsed by the Crusade from participation in annexation discussions. The city’s mayor, Phil Bagley, and Irvin Horner, the chairman of the Chesterfield County Board of Supervisors, began secret negotiations in 1969 that led to the ultimate compromise between city and county.^{Footnote 57} The record in the constitutional challenge brought by Curtis Holt demonstrated that during the negotiations Mayor Bagley did not have detailed information about the effect of the annexation on potential tax revenues or economic characteristics of the portions of Chesterfield County to be annexed, and the person assigned to provide the city with necessary details of this sort was only called upon more than a week after the negotiation had been concluded.^{Footnote 58} Nor did the mayor or other city officials inquire of the Chesterfield representatives the amount of vacant land, industrial land, or assessable property in the area to be annexed. Instead, the city’s representatives wanted to know how many people were to be annexed—and what percentage of them were black—and white.^{Footnote 59}

The other key concern of city officials was that the county agree not to appeal the decision of the annexation court. “Timing,” emphasized the trial court in Holt, “was of the essence to the city by 1969.”^{Footnote 60} The city’s concern was to have the Chesterfield annexation in place by the time of the 1970 city elections, so that the newly annexed voters—predominantly white—could vote. In fact, the trial court found that “the primary reason” for the compromise agreement on the annexation in 1969 was “to assure an unquestioned white majority for the upcoming councilmanic elections.”^{Footnote 61} The sequence of events convinced Judge Mehrige that the annexation was “a purposeful device to further racial discrimination by way of diluting the vote of the Negroes, and this is constitutionally impermissible.”^{Footnote 62}

The Fourth Circuit majority had a quite different view of the matter. In an en banc decision written by Judge Clement Haynesworth, who had recently been denied confirmation to the Supreme Court as a result of liberal opposition in the U.S. Senate, the Court of Appeals reversed Judge Mehrige. The majority opinion focused on the annexation court as the key decision-maker, rather than city officials.^{Footnote 63} Moreover, the Fourth Circuit chose to emphasize the city’s initial goals when filing the annexation lawsuit in 1962 and saw little significance in the sequence of events that actually led to the annexation in 1968–69.^{Footnote 64} The appeals court followed an older line of cases, moreover, questioning if “legislative motivation is ever relevant” when deciding a constitutional claim.^{Footnote 65} Judge Haynesworth treated Gomillion as an “exceptional” case because the “sole” purpose of the Tuskegee de-annexation was obviously racial discrimination.^{Footnote 66}

In dissent, Judge John Butzner set forth in great detail the sequence of events in 1969, essentially tracking the trial court’s account, leading him to conclude that had the annexation court “known the facts that were subsequently exposed in this suit, it would not have approved the compromise.” He would have affirmed the decision below on the grounds that the annexation “was a deliberate act to dilute the voting rights of black citizens.”^{Footnote 67} Judge Butzner disagreed with the trial court’s proposed remedy, however; Mehrige had proposed a plan in which seven council members would be elected from the pre-annexation city (51 percent black in total population) and two from the newly annexed area (96 percent white).^{Footnote 68} As Butzner saw it, “The only adequate remedy is to require Richmond to divest itself of the annexed area.”^{Footnote 69} Judge Harrison Winter also dissented, agreeing with Butzner that the annexation was racially motivated and thus unconstitutional but disagreeing as to the proper remedy. Winter would have affirmed the trial court’s remedy.^{Footnote 70}

The Richmond Annexation Case: The Section 5 Trial Court

The issue of how to remedy the discriminatory Richmond annexation fell next to a three-judge trial court in the District of Columbia and subsequently to the Supreme Court. Understanding the sequence of events before the case went to trial is important to understanding the outcome. Richmond submitted its Chesterfield annexation to the Department of Justice, which objected to the expansion on May 7, 1971, making it legally unenforceable.^{Footnote 71} In December of that year, Curtis Holt filed his challenge that landed in Judge Mehrige’s court in Richmond. In April 1972, the Supreme Court in the Holt case stayed the 1972 city council election.^{Footnote 72} Not until August 1972 did Richmond file a declaratory judgment action in the District of Columbia, seeking preclearance of the annexation—with its at-large system of city council elections.^{Footnote 73} On May 1, 1973, after the Supreme Court affirmed the Petersburg decision, the Richmond city council adopted a single-member district plan with nine wards, as a way of saving its annexation; thus when the case went to trial in the Section 5 case, the election plan at issue was no longer the city’s at-large system but the newly adopted ward plan.^{Footnote 74}

The three-judge court concluded, based largely on the trial record in the Holt case, that the 1970 annexation was “discriminatory in purpose and effect” and thus not entitled to preclearance. The court rejected the city’s claim at trial that “any discriminatory purpose or effect of the annexation was purged by the City’s adoption of a single-member district, nine ward plan.”^{Footnote 75} The city’s plan included four districts with heavy white majorities, four with heavy black majorities, and one ward with a 41 percent black total population. It contended that the proposed ward alignment would assure that black voters would be able to elect four candidates of choice and have “some hope of capturing a fifth seat.”^{Footnote 76} The Crusade for Voters, which had intervened on the side of the defendant United States, submitted an alternative plan with a “swing” ward with a total black population of 59 percent—compared with the city’s 41 percent—which in the court’s view “suggests that the City could have done more to compensate for the dilution of black voting power caused by the annexation.”^{Footnote 77}

Curtis Holt had also intervened as a defendant in the Section 5 case and urged the court, in addition to denying preclearance to the annexation, to order a new council election held immediately within the city’s old boundaries. The special master appointed by the Section 5 trial court to assist in reviewing the voluminous record, Magistrate Lawrence S. Margolis, agreed with Holt’s proposal.^{Footnote 78} The special master had also examined the evidence regarding the economic justification offered by the city for its annexation proposal, and found it unpersuasive. In fact, he found, “the return of the annexed area to Chesterfield County would actually save the City at least $8.5 million of operating loss per year and $21.3 million of required capital outlay.”^{Footnote 79} The court declined to grant Holt’s motion, however, and deferred the question of remedy to Judge Mehrige—in the Fifteenth Amendment case—in the view that he could “better balance all relevant factors, including our refusal to grant Richmond a declaratory judgment.”^{Footnote 80}

Purpose and Effect—and Remedy—in the Richmond Annexation Case

Clearly the judges wrestling with how to deal with the Richmond annexation controversy were of mixed minds—and the question was ultimately decided by the Supreme Court, to which the city appealed the trial court decision. There, too, the justices were of mixed minds. The Supreme Court was at that time on the cusp of key decisions about the standards of proof required of plaintiffs in both constitutional challenges and Section 5 preclearance cases. Its resolution of these issues would shape voting rights decisions for the next quarter century.

The federal courts had since Gomillion often found state actions racially discriminatory in intent, and, coupled with evidence of discriminatory effect, unconstitutional. What the Supreme Court had not yet done was to find that proof of discriminatory intent was essential to striking down a state action as unconstitutional. Its 1973 decision in the Texas redistricting case, White v. Regester, found the legislative plan in violation of the Equal Protection Clause of the Fourteenth Amendment, under what the Court termed a “totality of circumstances” test.^{Footnote 81} Although in later decisions the Supreme Court interpreted White as incorporating an intent requirement, the majority opinion in the case did not state explicitly that proof of discriminatory intent was required under the totality of circumstances test.^{Footnote 82}

In 1976, however, the Supreme Court determined in an employment discrimination case, Washington v. Davis, that in a constitutional challenge plaintiffs would, in fact, have to prove that the decision at issue was made with a racially discriminatory purpose.^{Footnote 83} The Court observed that ordinarily the purpose of a decision would have to be inferred from circumstantial evidence: “An invidious purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than the other.”^{Footnote 84} Four years later the Court extended this intent requirement to constitutional challenges to election laws in City of Mobile v. Bolden.^{Footnote 85} Even so, these decisions did not change the constitutional standard for assessing the intent underlying decisions, which the federal courts continued to apply in Section 5 preclearance cases.

The solution that the majority crafted in the Richmond case—and that proved to be the landmark decision in annexation cases—resolved the legal questions in a way that reflected the policy preferences of the justices in the majority. Both the five justices in the majority and the three dissenters agreed that the Petersburg model should be followed in the Richmond case, but they disagreed about how to apply it.^{Footnote 86} The majority opinion written by Justice Byron White favored the position advocated by the city, with the agreement of the Department of Justice: the dilutive effect of the annexation could be neutralized to the extent possible by adoption of a fair election system—and the city’s proposed nine-ward plan was satisfactory for this purpose.^{Footnote 87} The three most liberal members of the Court, in a dissenting opinion written by Justice William Brennan, pointed out that the Crusade for Voters “submitted several plans providing for a greater black representation in the so-called ‘swing district’ than that afforded by Richmond’s own plan,” so that the city’s plan did not, in fact, minimize dilution of black voting power.^{Footnote 88}

The Court also, however, had to address the question of purpose. All justices agreed that a voting change adopted with a discriminatory intent—as interpreted under the Reconstruction amendments—could not be precleared: “An official action, whether an annexation or otherwise, 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.” An annexation motivated by the sort of invidious racial discrimination evidenced in Gomillion v. Lightfoot, wrote Justice White, “is forbidden by § 5, whatever its actual effect may have been or may be.”^{Footnote 89}

The way in which the majority applied the purpose requirement of Section 5 is, however, perplexing. Both the majority and the liberal dissenters accepted the findings of the trial court that “when the annexation eventually approved in 1969 took place, it was adopted by the city with a racially discriminatory purpose prohibited by § 5.”^{Footnote 90} The trial court had also accepted as valid the special master’s finding that “there were no current legitimate economic or administrative reasons warranting the annexation.”^{Footnote 91} Here, the majority decided, the trial court had gone wrong. Justice White seemed persuaded by the observation of the state annexation court in 1969 that “cities must in some manner be permitted to grow in territory and population or they will face disastrous economic and social problems.” In remanding the case to the trial court, he introduced a novel dimension: “The controlling factor in this case is whether there are now objectively verifiable, legitimate reasons for the annexation.”^{Footnote 92} On remand, the trial court was instructed to hold a new evidentiary hearing and consider new evidence the city might put on as to the costs and benefits of the annexation—as of 1975, not at the time of the annexation decision.^{Footnote 93}

The dissenters disagreed profoundly with the majority’s interpretation of the factual evidence regarding the intent of the 1969 annexation plan. In Justice Brennan’s view, “The flagrantly discriminatory purpose with which Richmond hastily settled its Chesterfield County annexation suit in 1969 compelled the District Court to deny Richmond the declaratory judgment.^{Footnote 94} In short, the dissenters shared the assessment of the 1969 annexation plan set forth in Judge Mehrige’s opinion in Holt, Judge Butzner’s dissent on appeal in Holt, and the trial court decision below. As a result, Justice Brennan found the position of the majority illogical and inconsistent with precedent: “Richmond now argues that it can purge the taint of its impermissible purpose by dredging up supposed objective justifications for the annexation,” he wrote. “I have grave difficulty with the idea that the taint of an illegal purpose can, under § 5, be disspelled by the sort of post hoc rationalization which the city now offers.”^{Footnote 95} The dissenters would have affirmed the trial court and remanded the case for determination of an appropriate remedy.^{Footnote 96}

The policy issue the Supreme Court instructed the lower court to resolve on remand—whether there were now “objectively verifiable, legitimate reasons for the annexation”—was the focus of a hearing on remand before the same special master who had assessed the city’s earlier rationale for the annexation, Magistrate Lawrence Margolis. Each side presented testimony by expert witnesses from economics, planning, and public administration, addressing the cost-benefit issues the Supreme Court majority had made relevant.^{Footnote 97} Margolis reviewed the voluminous evidence and concluded—contrary to the findings he had made earlier when analyzing the record before the trial court—“that there are now objectively verifiable, legitimate economic and administrative benefits or advantages from the annexation now accruing to the City of Richmond.”^{Footnote 98} Margolis also took into account the impact of the annexation on the now-integrated—but heavily African American—public schools. “If the annexed area were lost, the percentage of white students in the school system would drop from 23.6% to 14.3%,” because approximately half the white students would no longer live in the city.^{Footnote 99} More than a year later, in August 1976, the trial court precleared the Richmond annexation but without a published opinion.^{Footnote 100} Because there was no published court opinion, neither this decision nor the magistrate’s opinion on which it was based has served as a precedent for future annexation cases. The 1975 Supreme Court decision, however, had a profound effect on the enforcement of Section 5 preclearance—in all cases, not just those involving annexations.

In the years that followed, City of Richmond was most influential for its insistence that the purpose requirement of Section 5 was to be assessed for all voting changes, not just annexations, by the standard set forth in constitutional cases: “An official action, whether an annexation or otherwise, 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.”^{Footnote 101} This declaration was reinforced the following year when the Supreme Court redefined the Section 5 effects test in a New Orleans redistricting case, Beer v. United States. ^{Footnote 102} The majority in Beer ruled that the term “effect” has a different meaning under Section 5 than under the Constitution. In the preclearance context, discriminatory “effect” was to be defined as “retrogression,” a newly minted term that described changes that place minority voters in a worse position than under the status quo.^{Footnote 103} By contrast, the Court referred to the purpose prong of Section 5 in terms similar to City of Richmond: “We conclude, therefore, that such an ameliorative new legislative apportionment cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.”^{Footnote 104} The Court’s reference to a constitutional violation appears understandable only as a reference to the purpose test in Fourteenth or Fifteenth Amendment cases.^{Footnote 105} That is the interpretation placed upon this wording by the Supreme Court itself in preclearance cases for the next quarter century.^{Footnote 106}

Applying City of Richmond to Municipal Boundary Changes

As a result of the Richmond decision, objections to municipal annexations—both by the courts and by the Department of Justice—played a significant role in persuading southern municipalities to give up at-large elections. During the years 1975–80, annexations accounted for the largest single type of voting change to which the Department of Justice objected, and most were withdrawn only when the municipality switched from at-large to single-member district elections. Objections to annexations continued to lead to ward elections for the next two decades.^{Footnote 107} Specific examples clarify how the process worked.

Among the earliest cities to which the department interposed an objection was Charleston, South Carolina, in September 1974. Under review were twenty-five annexations spanning the preceding decade but never submitted for preclearance. These annexations added more than three thousand whites and under one hundred African Americans, thus reducing the city’s black population from 47 percent to 45 percent of the total. Most of the annexations had been adopted before 1971, when the city’s municipal elections were highly polarized along racial lines and the black-preferred mayoral candidate lost by only a few hundred votes—easily affected by the unprecleared addition of well over two thousand net white population.^{Footnote 108} Under the Petersburg standard the annexations plainly diluted black voting strength. In order to secure approval of its annexations, Charleston agreed to adopt a racially fair single-member district plan for electing its city council.^{Footnote 109}

When Congress extended Section 5 for another seven years in 1975, it also revised the formula for Section 5 coverage in such a way that for the first time Texas had to seek preclearance for its voting changes. The following year the Attorney General objected to a 1972 annexation that added 51,400 people to the city of San Antonio. The annexed area included three Anglos for every Mexican American resident; although the city’s population was majority Hispanic, Anglos provided 54 percent of its registered voters. In a 1977 referendum, voters approved a change from at-large to ward elections and as a result the 1972 annexation was precleared.^{Footnote 110} The department objected in 1979 to two substantial annexations by the state’s largest city, Houston, but withdrew the objection when the city’s voters approved a mixed election plan with nine wards and five at-large seats.^{Footnote 111}

The Issue of Racially Selective Annexations

The Section 5 purpose prong was key to a particular type of objection, where municipal annexations revealed a racially selective pattern of bringing heavily white or Anglo areas into the city but excluding black or Latino areas. For example, since 1965 Grenada, Mississippi, had annexed a series of “exclusively white residential areas,” but left black neighborhoods contiguous to the city “surrounded on three sides by the City of Grenada corporate boundaries,” according to the Department of Justice, even though a consulting firm retained by the city under a federal housing grant recommended annexing at least part of that black population concentration.^{Footnote 112} Citing as precedent Gomillion v. Lightfoot, the department emphasized that “a city can no more exclude black residents from the city by refusing to annex black neighborhoods than it can exclude black residents from the city by evicting or deannexing its black voters.”^{Footnote 113} The department precleared the annexations on June 25, 1976, when the city agreed to annex the previously excluded black neighborhoods.^{Footnote 114}

Whites in 77 percent black Lowndes County, Alabama, living in an unincorporated area known as Hayneville, decided to incorporate as a new town a few years after the Voting Rights Act eliminated barriers to black registration and voting. The boundaries of the town were drawn in such a way as to exclude most of the blacks residing in the unincorporated community. The evidence considered by the department led to the conclusion that the change was objectionable, both because it was retrogressive and because “the purpose of the incorporation was to reduce the influence over Hayneville of the majority black Lowndes County electorate,” and to prevent the possibility of control of the new municipality “by blacks residing within the Town.”^{Footnote 115}

Faced with a declining center city, Augusta, Georgia, pursued a vigorous annexation program in the 1980s, to which the department ultimately objected in 1987 because “the city’s present annexation policy centers on a racial quota system requiring that each time a black residential area is annexed into the city, a corresponding number of white residents must be annexed in order to avoid increasing the city’s black population percentage.”^{Footnote 116} This objection was withdrawn on July 15, 1988, after the city agreed to a fair districting plan as a way of settling a Section 2 lawsuit.^{Footnote 117}

In 1987, the Supreme Court agreed to hear a case involving racially selective annexations in City of Pleasant Grove v. United States.^{Footnote 118} The factual context in this case was unusual. Pleasant Grove, Alabama, a virtually all-white city near Birmingham in industrial Jefferson County, sought preclearance of a series of annexations. Its refusal to annex nearby black population concentrations was part of what the trial court called “an astounding pattern of racial exclusion and discrimination in all phases of Pleasant Grove life,” and as a result, the city had remained an “all-white enclave in an otherwise racially mixed area of Alabama.”^{Footnote 119} The annexations at issue provided further evidence of racial discrimination in the city’s annexation policy.^{Footnote 120}

The city claimed that there could be no retrogressive effect to its annexation policies because there were no black people in the city, and thus no one whose voting strength could be worsened.^{Footnote 121} The Pleasant Grove majority rejected this view, pointing out that “Section 5 looks not only to the present effects of changes, but to their future effects as well,” adding that the purpose requirement also applied to “anticipated as well as present circumstances.”^{Footnote 122} The city also argued that proof of discriminatory intent without proof of discriminatory effect was insufficient to deny preclearance. The courts gave short shrift to that argument. The Supreme Court emphasized that “Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent.”^{Footnote 123}

Pleasant Grove also argued that the purpose requirement of Section 5 was limited to what came to be called retrogressive intent. In dissenting, Justice Lewis Powell, joined by Chief Justice William Rehnquist and Justice Sandra Day O’Connor, agreed: “[F]or a city to have a discriminatory purpose within the meaning of the Voting Rights Act, it must intend its action to have a retrogressive effect on the voting rights of blacks.”^{Footnote 124} The majority of the Court, however, observed that it had rejected such reasoning since the City of Richmond case. A change motivated by a racially discriminatory purpose “has no legitimacy under our Constitution or under the statute,” the Court had ruled then, “whatever its actual effect may have been or may be.”^{Footnote 125}