We are concerned that because this and related proceedings have been so protracted and, more recently, because of the "exigencies of judicial deliberation," Beer v. United States, 374 F. Supp. 357, 360 (D.D.C. 1974), elections have not been held in Sumter County for some time. Although this court is not yet ready to issue its full opinion and findings of fact, we have agreed upon a disposition. Rather than permit the current situation to continue, with no elections being held, we have decided to issue an order stating our agreed disposition, with opinions and findings to follow.
We conclude that plaintiffs have failed to carry their burden of proof under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1982), and have failed to prove that Act 371, 1967 S.C. Acts 371 ("Act 371"), as amended and supplemented, has neither the purpose nor effect of denying or abridging the right of black South Carolinians to vote.
The Supreme Court has said: "The fact that a covered jurisdiction adopted a new election practice after the effective date of the Voting Rights Act raises, in effect, a statutory inference that the practice may have been adopted for a discriminatory purpose or may have a discriminatory effect." McCain v. Lybrand, 465 U.S. 236, 104 S. Ct. 1037, 1049-50, 79 L. Ed. 2d 271 (1984). Plaintiffs have failed to rebut the inferences that can be drawn from the following facts. Their application for a declaratory judgment must therefore be denied.
1. South Carolina is a covered jurisdiction under the Voting Rights Act. The State has a history of segregation and pervasive racial discrimination which has been an important factor in detrimentally affecting the political participation of black South Carolinians. Until after the passage of the Voting Rights Act, South Carolina enacted and enforced a variety of laws that had the purpose and effect of denying the right to vote to its black citizens.
3. Racial segregation was, and in large measure remains, the way of life in much of the private sector of Sumter County. Voting in Sumter County is racially polarized.
4. Before Act 371 was passed in 1967, members of the Sumter County Board of Commissioners, the County's governing body, were appointed by the Governor on recommendation of the local delegation to the State General Assembly (the "Legislative Delegation"). This Legislative Delegation de facto governed Sumter County, although the General Assembly of South Carolina possessed the de jure authority to enact local laws for Sumter County and the Governor had the de jure authority to veto all such legislation. Both the Governor and the Legislative Delegation were elected at-large.
5. Prior to 1967, the Governor followed the Legislative Delegation's recommendations concerning appointments to the County governing body. As long as this appointive system was in effect, no black person was appointed to Sumter County's Board of Commissioners.
6. In mid-1967, the Governor began appointing blacks to various offices.
7. During 1966-67, the South Carolina Senate was compelled to alter its apportionment system after its apportionment was held to violate the fourteenth amendment. This created the possibility that a black senate district would be created and the person elected from that district might control appointments to the Sumter County governing body.
8. In 1967, the South Carolina legislature passed Act 371. Act 371, which was formulated without significant input from Sumter County's black community, creates a seven-member Sumter County Council. Under Act 371, each Council member is elected at-large. The winners are determined by majority vote and voting is without regard to geographic location of residency. Thus, under this Act, the citizens of Sumter County -- a majority of whom are white -- elect all of the Council members.
9. Since the adoption and implementation in 1967 of the at-large system, only one black person (Phillip Rembert in 1974) has been elected to the Sumter County governing body.
10. There are three gubernatorially appointed boards in Sumter County; each has more than one black. Although the number of persons representing the black community who would be appointed by the Governor today if that system were in place is to a degree ...