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May 29, 1974

UNITED STATES of America, and Richard Kleindienst, Defendants. CURTIS Holt, Sr., et al. and Crusade for Voters of Richmond et al., Defendant intervenors

The opinion of the court was delivered by: WRIGHT

The City of Richmond, Virginia instituted this action seeking a declaratory judgment, pursuant to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. ยง 1973c (1970), that its annexation of approximately 23 square miles of adjacent county land does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. *fn1" Richmond subsequently adopted a change in its method of electing its City Council from its previous at-large system to a nine-ward, single-member district plan. The City now requests that we approve under Section 5 the annexation as modified by this ward plan. Under Rule 53(c) of the Federal Rules of Civil Procedure, we referred the case to a Master to hold a hearing and to take testimony on "whether the City of Richmond annexation plan as amended has the purpose of the effect of diluting the black vote in that City." The Master found that the City had failed to carry the burden imposed on it by Section 5 of proving that the annexation, even as modified, did not have such a discriminatory purpose or effect. We conclude that this finding, far from being "clearly erroneous," *fn2" was compelled by the record before the Master. We therefore decline to grant Richmond the declaratory judgment it seeks.


 Before discussing the Master's findings and the record in this case, we think it appropriate to delineate and stress the heavy responsibility placed on this court by Section 5 of the Voting Rights Act of 1965. The origin and meaning of Section 5 were eloquently and thoroughly set forth by Judge Robinson in Beer v. United States, D.D.C., 374 F. Supp. 363 (1974). Judge Robinson's exposition, as well as several previous opinions of the Supreme Court, *fn3" make clear that our responsibility is no less than to ensure realization of the Fifteenth Amendment's promise of equal participation in our electoral process. *fn4" Although we need not retrace all of Judge Robinson's comprehensive analysis of the historical evolution of Section 5, in order to gain a full appreciation of our responsibility it is necessary to consider briefly the section's significance, especially as relevant to the expansion of urban boundaries in those states covered by the section.

 In language tracked by Section 5, Section 1 of the Fifteenth Amendment proclaims that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Since the post-Civil War enactment of the amendment, this language has been invoked to invalidate a host of devices and procedures designed by certain Southern states to deny the franchise to our nation's black citizens. *fn5" However, state legislatures desirous of abridging the voting rights of blacks proved themselves resilient and ingenious in erecting new obstructions to black voting. In 1957 Congress, employing the power vested in it by Section 2 of the Fifteenth Amendment "to enforce this [amendment] by appropriate legislation," authorized the Attorney General to seek injunctions against interference with the right to vote on racial grounds. *fn6" But the persistent state legislatures seemed able to avert even this power by delaying litigation and by turning to discriminatory devices not covered by the injunctions obtained. *fn7" Though Congress made further efforts in 1960 and 1964 to make accessible the electoral process to all Americans regardless of race, the impact on black voter registration was still not substantial. *fn8" In 1965 Congress acted again, this time with a "firm intention to rid the country of racial discrimination in voting" by "a complex scheme of stringent remedies." *fn9"

 Section 5 of the 1965 Act, working in tandem with Section 4, is a central part of that scheme. Section 4 suspended use of any test or device *fn10" in determining eligibility to vote in states which were using a test or device in 1964 and where voter participation was below a minimum 50 per cent level in that year. *fn11" Section 5 protects the effectiveness of Section 4. To ensure that the covered states would not resort to the "stratagem of contriving new rules" *fn12" to evade efforts to secure blacks their rights to equal participation in the electoral process, this section effectively "freezes the election laws" *fn13" of states covered by Section 4. Before one of these states can administer any new "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," it must obtain the approval of the Attorney General or a declaratory judgment from a three-judge District Court for the District of Columbia that the new practice or procedure (1) does not have the purpose and (2) will not have the effect of denying or abridging the right to vote on account of race or color. *fn14" As the Supreme Court has repeatedly made clear, Congress thus shifted the burden of proof in voting rights litigation on to the states, *fn15" requiring them to prove both the absence of a discriminatory purpose and the absence of a discriminatory effect before instituting new procedures which have any potential for abridging or denying voting rights of blacks. *fn16"

 In Allen v. State Board of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969), the Supreme Court determined that the "Voting Rights Act was aimed at the subtle, as well as the obvious," state schemes for denying voting rights and that Congress thus intended that the Act be given its "broadest possible scope." *fn17" In its next decision involving Section 5, Perkins v. Matthews, 400 U.S. 379, 91 S. Ct. 431, 27 L. Ed. 2d 476 (1971), the Court held that a change in a city's boundary lines "which enlarges the city's number of eligible voters also constitutes the change of a 'standard, practice, or procedure with respect to voting,'" and thus is covered by Section 5. *fn18" The Perkins Court reasoned that when a city expands its boundaries and adds new citizens to its voting rolls the votes of its old citizens are inevitably diluted. Quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d 506 (1964), it stressed that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." *fn19" Perkins left implicit the obvious: If the proportion of blacks in the new citizenry from the annexed area is appreciably less than the proportion of blacks living within the city's old boundaries, and particularly if there is a history of racial bloc voting in the city, the voting power of black citizens as a class is diluted and thus abridged. *fn20"

 In August 1965 it was determined that Virginia was one of the states covered by Section 4 and thus by Section 5. *fn21" It is therefore our responsibility under Section 5 to deny approval to Richmond's annexation of new voters unless Richmond can carry the burden of proving that the annexation, as modified by the ward plan, (1) does not have the purpose of abridging black voting power and (2) will not have such an effect. "This is a heavy burden for a community in a state with Virginia's history of past racial discrimination." City of Petersburg, Va. v. United States, D.D.C., 354 F. Supp. 1021, 1027 (1972), affirmed, 410 U.S. 962, 93 S. Ct. 1441, 35 L. Ed. 2d 698 (1973).


 With Richmond's burden of proof in mind, we turn to an examination of the Master's report and the facts of this case. The parties stipulated to the record in Holt v. City of Richmond, E.D.Va., 334 F. Supp. 228 (1971), reversed, 4 Cir., 459 F.2d 1093, cert. denied, 408 U.S. 931, 92 S. Ct. 2570, 33 L. Ed. 2d 343 (1972), a previous Fifteenth Amendment suit brought against the annexation, *fn22" and the Master based his findings on this record as well as on the three days of testimony before him. Most of the primary findings of fact from which the Master derived his ultimate finding that Richmond had failed to carry its burden of proving the annexation, as amended, was without discriminatory purpose and effect were not challenged by any of the parties. *fn23" We are thus able to set forth most of the history of the annexation for which Richmond seeks approval without direct reference to the record.

 This history began in 1962 when the City filed an annexation suit against contiguous Chesterfield County seeking to obtain 51 square miles of territory. *fn24" This suit lay dormant for several years, during which time Richmond unsuccessfully attempted to annex land from another adjacent county. *fn25" It was settled in 1969 by compromise resulting in the annexation in suit of approximately 23 of the originally sought 51 square miles. *fn26" The period of the suit's dormancy witnessed a significant growth in black voting strength in Richmond. Blacks were rapidly becoming a majority of the population, and "while in 1968 there were more whites than Negroes registered to vote, about 50% of the registered Negroes voted as against approximately 30% of the white registered voters." *fn27" Racial bloc voting was evident and a black civic organization -- intervenor Crusade for Voters -- had gained substantial electoral power, rivaling its white counterpart -- Richmond Forward. In the 1968 at-large City Council elections, Crusade-endorsed candidates won three of the nine Council seats from Richmond Forward endorsees. *fn28" The Master's findings indicate that these developments caused the Richmond white political leadership great concern that the black voting bloc would be able to elect a majority to the City Council in the 1970 elections. The Richmond mayor, white incumbent city councilmen, the city attorney, and other representatives of the City and its white political leadership expressed their sentiments to Chesterfield County officials, to a state commission studying Richmond's expansion, and to residents of the City. These expressions reflected a conviction that annexation of part of Chesterfield County was necessary to keep the black population from gaining control of the city in the 1970 elections. *fn29"

 Richmond's focus in the negotiations was upon the number of new white voters it could obtain by annexation; it expressed no interest in economic or geographic considerations such as tax revenues, vacant land, utilities, or schools. *fn31" The mayor required assurances from Chesterfield County officials that at least 44,000 additional white citizens would be obtained by the City before he would agree upon settlement of the annexation suit. *fn32" And the mayor and one of the city councilmen conditioned final acceptance of the settlement agreement on the annexation going into effect in sufficient time to make citizens in the annexed area eligible to vote in the City Council elections of 1970. *fn33" The annexation suit settlement to which the six Richmond Forward-backed members of the City Council agreed obtained for Richmond 60 per cent of the total population and 59 per cent of the school-age children, but only 51 per cent of the value of tax assessable property and 46 per cent of the total land area, of the original portion of Chesterfield County for which annexation was sought. *fn34"

 The annexation seemed to have the impact the Richmond officials who supported it desired. The 1970 census revealed that the black population within the old boundaries of Richmond was 52 per cent, but within the expanded boundaries it was only 42 per cent. *fn35" The white citizenry was increased by the annexation by 45,705, while the black citizenry was increased by only 1,557. *fn36" The 1970 councilmanic elections were held on an at-large basis with the annexed Chesterfield County citizens participating. Candidates endorsed by the white citizens organization maintained their 6-3 majority on the City Council and only one black councilman was elected. None of ...

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