the referendum, despite the objections of, among others, the Sumter County League of Women Voters, the Sumter County Republican Party, and the only black councilman, was "that they knew more or less what was best for the community." Plaintiffs have not effectively rebutted evidence that racial considerations influenced the Council's decision not to hold a referendum.
15. The white members of the Sumter County Council have at all times taken public positions favoring at-large elections. In an advisory referendum held in November 1978 on at-large elections, all the organizations in Sumter County that took a position on the referendum question favored single-member districts. The white councilmen continued to favor at-large districts and issued a position paper warning against "fragment[ing] county government into special interest groups." The white councilmembers also secretly prepared a full-page advertisement endorsing at-large elections which appeared in the Sumter Daily Item on the eve of the referendum. Plaintiffs have not effectively rebutted evidence that the advertisement was intended to make clear that the referendum question (at-large versus single-member districts) was essentially a racial one.
16. In the referendum election, the at-large system was preferred by the slight majority of 787 votes out of approximately 12,700 votes cast. Whites are estimated to have voted for at-large elections by a four to one margin; blacks are estimated to have voted nine to one against at-large elections.
17. Plaintiffs have failed to carry their burden of proving that the legislature did not pass Act 371 in 1967 for a racially discriminatory purpose at the insistence of the white majority in Sumter County, because the at-large method of voting may have diluted the value of the then-increasing voting strength of the black minority, may have prevented formation of a black majority senate district, and probably prevented appointment by the Governor of blacks to the Sumter County Council.
18. Plaintiffs have failed to carry their burden of proving that the at-large system was not maintained after 1967 for racially discriminatory purposes and with racially discriminatory effect.
Conclusions of Law
1. Although it may seem anomalous to some to apply a statute prohibiting any actions denying or abridging the "right to vote" where an appointive system has been replaced by an elective one, we are convinced that section 5 of the Voting Rights Act does apply to this case. We reach that conclusion for two reasons. First, the Supreme Court has strongly implied in Blanding v. DuBose, 454 U.S. 393, 102 S. Ct. 715, 70 L. Ed. 2d 576 (1982), that the Voting Rights Act applies to this case. Second, in McCain v. Lybrand, 465 U.S. 236, 104 S. Ct. 1037, 79 L. Ed. 2d 271 (1984), the Supreme Court applied the Voting Rights Act in a case like this, where an appointive system was replaced by an elective system. Also, in that decision the Supreme Court defined section 5 of the Voting Rights Act to cover "any election practices different from those in effect on November 1, 1964." McCain v. Lybrand, 104 S. Ct. at 1044.
2. In Blanding v. DuBose, the Supreme Court held that a letter the South Carolina Attorney General sent to the United States Justice Department reporting that the 1978 referendum had approved at-large council elections for Sumter County did not constitute a request for preclearance. The Supreme Court viewed the 1979 letter as a request for reconsideration. Thus, the Court held that the Attorney General's failure to respond within 60 days as required by the Act did not constitute preclearance of the change by default. If the Voting Rights Act does not apply to Sumter County's change to at-large council elections, the Supreme Court need not have decided whether the 1979 letter was a request for preclearance: preclearance would not be necessary.
3. In McCain v. Lybrand, the Supreme Court accepted a stipulation that an Act which replaced a Board of County Commissioners that had two appointed members with a three-member County Council elected at-large was required to be submitted for preclearance. 104 S. Ct. at 1046 n.17. The Court could not have accepted such a stipulation had the Voting Rights Act not applied, as the Act's applicability goes to the Court's subject matter jurisdiction, and parties cannot waive a defect in subject matter jurisdiction. Moreover, in McCain the Court expressly and repeatedly defined section 5 of the Voting Rights Act as follows:
Section 5 of the Voting Rights Act of 1965 . . . required a covered State or political subdivision desiring to implement any election practices different from those in effect on November 1, 1964 to obtain a declaratory judgment from a three-judge panel of the United States District Court for the District of Columbia holding that the change "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" before the new practice could be implemented.
McCain v. Lybrand, 104 S. Ct. at 1044. It is beyond question that the change here is an election practice different from that in effect on November 1, 1964.
4. In order to rebut the inference of discriminatory effect, plaintiffs here were required to prove that the at-large election system in Sumter County will not "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, 140, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976). They have not done this. Neither have they carried the heavy burden they bear as to the purpose of this change. Plaintiffs are required to demonstrate the absence of discriminatory purpose; and section 5 preclearance must be denied if the evidence fails to disprove that a discriminatory purpose was present as a motivating factor among other legitimate non-discriminatory ones. City of Richmond v. United States, 422 U.S. 358, 378, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975). The evidence plaintiffs have adduced does not do this.
5. Since we find that section 5 of the Voting Rights Act applies, and that plaintiffs have failed to prove that the proposed change is not retrogressive, we need not reach the section 2 issues in this case.
6. Defendant-intervenors have moved that this court order interim elections pending our decision on the merits of plaintiffs' case. They ask that we divide the County into seven single-member districts and that we modify the election schedule to allow for implementation of this interim plan. This motion is mooted by the order we issue today unless this order is stayed by the Supreme Court. There will be time enough to address the need for emergency relief if such a stay is granted. We therefore deny defendant-intervenors' motion for interim elections.
Nothing we say or do in this memorandum or the accompanying order is intended to preclude any party from seeking in another jurisdiction the relief sought by the emergency motion filed here by defendant-intervenors.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 596 F. Supp.]
For reasons more fully stated in an accompanying memorandum, and on the basis of the documentary and testimonial evidence, the briefs of the parties, and upon the entire record, it is this 25th day of May, 1984, hereby
DECLARED AND ADJUDGED: that plaintiffs have failed to prove that Act No. 371 of the South Carolina General Assembly was neither enacted in 1967 nor maintained thereafter in violation of section 5 of the Voting Rights Act of 1965; and it is further
ORDERED AND ADJUDGED: that plaintiffs' request for a declaratory judgment should be, and is hereby, DENIED; and it is further
ORDERED: that defendant-intervenors' motion for interim relief is dismissed as moot, and it is further
ORDERED: that defendants and defendant-intervenors shall have JUDGMENT against plaintiffs.
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