HOLDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER FOR BLECKLEY COUNTY, GEORGIA v. HALL

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Argument of R. Napier Murphy

Chief Justice Rehnquist: We'll hear argument next in Number 91-2012, Jackie Holder v. E. K. Hall.

Mr. Murphy, you may proceed.

Mr. Murphy: Mr. Chief Justice and may it please the Court:

This case involves a claim that section 2 of the Voting Rights Act requires Bleckley County, Georgia, to enlarge its current, single-member county commission to a five-person commission.

Our position is that the act cannot be read as authorizing Federal courts to alter the size of governing bodies.

Instead, the existing structure of State and local governments, the number, and types of offices, must be taken as a given, a basic assumption.

Thus, while the method of election may be a cognizable claim, changing the size of a government to prove a voting rights violation is not.

Unknown Speaker: Well now, that means that if, for instance, we had a situation where some counties had three-member commissions and others had five-member commissions, that if minority voters in a three-member commission county sued under section 2 seeking a five-member commission, you would say that, as in this case, section 2 just doesn't cover it.

Mr. Murphy: Your Honor, our position is not that section 2 doesn't cover a claim.

Our argument is that section 2 cannot be read as authorizing Federal courts to change the size of the government.

The courts must look at the existing structure when analyzing a section 2 claim.

Unknown Speaker: Suppose there were a commission, a county commission of five commissioners, and it was shrunk to three, allegedly causing a dilution, would there be a section 2 remedy for the court in that instance?

Mr. Murphy: There would be a remedy under section 5.

That change--

Unknown Speaker: No... no, I said section 2.

Mr. Murphy: --If there were a lawsuit seeking to change the size of the government from five--

Unknown Speaker: No.

No, my hypothetical is that the commission, as constituted, has five commissioners.

It is then reduced to three.

Is there a section 2 violation if it can be shown that there is a dilution?

Mr. Murphy: --If there was an intentional reason to dilute minority voting strength because of the reduction, yes, there would be a violation.

It would in my opinion be a section 5 claim instead--

Unknown Speaker: No, but--

Mr. Murphy: --of a section 2 claim.

Unknown Speaker: --It's not intentional.

Suppose it's not intentional and it's not covered by section 5.

Suppose it's not a section 5 jurisdiction.

Mr. Murphy: If there has been a retrogression of minority voting strength and minority votes are diluted by virtue of that change by county government, then there would be a section 2 claim, but the county--

Unknown Speaker: So that the overarching proposition that section 2 does not apply to changes in the size of a governing body has at least one exception in the case that I put.

Mr. Murphy: --No, sir.

The county has not tried to change the size of the local governing body here.

There has been a group of private plaintiffs who have filed a lawsuit seeking to change the size of the local governing body.

Our position is that the intent of Congress in writing section 2 was not to guarantee election to office, not to guarantee proportional representation, but simply to question whether the existing size, or the existing system dilutes minority--

Unknown Speaker: But I just want to make sure what your proposition is.

I thought that you'd stated at the outset that section 2 is not applicable to changes in the size of governmental entities, and I put this hypothetical designed to test that, and I'm still not sure of your answer.

Mr. Murphy: --Your Honor, section 2 has not... section 2 addresses the method of electing persons to office.

If there were a change by the government from five to three, and it could be proven that there was a dilution of minority voting strength as a result of that, then there would be a claim under section 2.

Unknown Speaker: All right, then the courts are, in that instance, interfering with a governmental decision as to what the size of the governing body ought to be.

Mr. Murphy: That is because the governing body has made a change in the size.

In our case, the governing body has made no change in the size.

Unknown Speaker: It's just a difference between an act of omission and of commission?

Mr. Murphy: No, sir, I don't agree with that.

I don't think an act of omission is the same as an act of commission.

There was one case from Carroll County, Georgia, in which there was a change in the size of the county commission from three to one, and in that case the plaintiffs were able to prove an intent to discriminate and to dilute minority voting strength as a result of that.

That is not the situation in our case.

Unknown Speaker: Is it your position that in a multiofficial district, if the lines were not redrawn, let's say, that there never could be a dilution claim?

Let's assume you had a county with... that elected three commissioners, its population had been static for the last 50 years.

Is it your position there could never be a dilution claim brought against that county?

Mr. Murphy: Under the preconditions set forth by this Court in Gingles, in order to bring a vote dilution claim, you must meet three preconditions.

Unknown Speaker: Well, I... let me interrupt you, if I may.

Maybe I don't understand you.

I thought you were taking a position that there could be a challenge only if there had been some change by the county in the manner in which the electoral district was established.

Was I wrong on that?

Mr. Murphy: There can be a change... there can be a challenge, regardless of whether there has been a change or not.

Unknown Speaker: All right.

Mr. Murphy: Our position in this case--

Unknown Speaker: Well, why is the case different in a multiofficial district than it is from the district before us, where there's only one commissioner?

Mr. Murphy: --Well, in the district before us we're talking about a single-member district--

Unknown Speaker: Yeah.

Mr. Murphy: --which is the smallest political unit from which any elected person can--

Unknown Speaker: Well, I grant you that, but if change by the government in the manner of disposing of its authority is not a precondition in non-single-member districts, why should it be a precondition in a single-member district?

Mr. Murphy: --There's nothing magical about this being a single-member district.

The question is--

Unknown Speaker: Well, if there isn't, don't you lose?

Mr. Murphy: --No, sir.

The question here is whether Congress intended, under section 2, to authorize Federal courts to judge the governmental structure not as it presently is constituted, but as it might be in a hypothetical model, and if we have three, or five, or seven, or one, it doesn't matter how many members you are electing to office, minority members could always come in and say, in our five-member commission we are in a minority, we can't get elected, but if you increase the commission to 10, then we have a chance to have proportional representation.

Unknown Speaker: Mr. Murphy--

--I thought you said that you could compel a change from three to five, that there had been a certain change in the demographics.

Mr. Murphy: Our position is, the court, when it is analyzing a section 2 claim, must analyze the claim according to the existing governmental structure.

It presupposes--

Unknown Speaker: But since you've conceded that you can look to the way it was... let's say you go from five and shrink it to three, or even to one, you concede there could be a dilution case that plaintiffs could win by showing the way it was when it was five, and the way it is when it's three or one.

So you can compare what was to what is, but you can't compare what is to what will be?

Is that--

Mr. Murphy: --Exactly, Your Honor.

In order to--

Unknown Speaker: --But why--

--Why?

--why not?

Mr. Murphy: --Because the statute... when you talk about changing government structure, you're talking about local voters voting to change the way their county is operated, whether it be by one, three, five, and in the cases thus far, there have been changes in the size of the local governing body, and the courts have looked to see whether there was an attempt to discriminate because of the change in the local governing body.

Unknown Speaker: Well, there wasn't a change in the--

--Well--

--Houston Lawyers case.

That was a case of voters seeking a change.

That was judges elected county-wide--

Mr. Murphy: In the--

Unknown Speaker: --for each judge--

Mr. Murphy: --Your Honor--

Unknown Speaker: --and this case appeared, at least, in Houston Lawyers, to reject the kind of blanket exclusion from section 2 that you're urging.

Mr. Murphy: --Houston Lawyers I do not believe involved a challenge to any district that had only one judge.

I believe all of the judges in Houston Lawyers were from multimember districts, so to speak.

Unknown Speaker: Well, there were a number of judges elected by the voters county-wide.

Each judge was voted on county-wide by the voters, right?

Mr. Murphy: Some of those counties... all of those counties had more than one judge.

There were three--

Unknown Speaker: Yes.

Mr. Murphy: --3 up to 59, and--

Unknown Speaker: Each one elected county-wide, right?

Mr. Murphy: --That's correct.

Unknown Speaker: Yes.

What's the distinction?

What is the principle for your distinction?

I don't get it.

Mr. Murphy: The distinction here is not that a sole commissioner form of government is not subject to section 2.

Our argument here is that a section... that the sole commissioner form of government does not dilute minority voting strength.

Everyone in this county votes for one representative for the entire political jurisdiction.

Every person's vote counts equally.

Unknown Speaker: You can state that whenever the government, for example, goes from a multimember district to a single-member district.

If that's true, you'll never have a dilution claim in those cases, either.

Mr. Murphy: Our case--

Unknown Speaker: Will you?

You'll never have a dilution claim in those cases on your reasoning, will you?

Mr. Murphy: --Would you repeat the question, Your Honor?

Unknown Speaker: Well, if the county, for example, decided to go from a multimember district to three single-member districts, and it did it in a carefully crafted way that would exclude any minority election, on your theory, there never would be a dilution claim in that kind of case.

Mr. Murphy: In that kind of case, you would have a section 5 preclearance--

Unknown Speaker: Let's assume that somebody is asleep under section 5.

The question is whether you have got a section 2 claim, and on your reasoning, you would not have, isn't that true?

Mr. Murphy: --If the method of electing judges violates or dilutes... or electing any representative, dilutes minority voting strength, then you do have a claim--

Unknown Speaker: But on your reasoning, you never would have a dilution claim, isn't that true?

Mr. Murphy: --My reasoning... my argument here is that when you analyze a section 2 claim, you don't look to... you look at the existing structure.

You cannot look at what might be.

You cannot look--

Unknown Speaker: Well, this just goes back to Justice Ginsburg's question.

Why not?

Isn't that what we usually do, and if so, why don't we do it here?

Mr. Murphy: --Your Honor, the reason we don't do that here, number 1, in this case we are looking at a single-member district itself, which is the basic political unit.

We're not looking at a multimember structure here.

We're looking at a single-member district.

Unknown Speaker: But you conceded that if you went... if you had a system of five, and you went to a system of one, even though it was only one, there might be a section 2 claim of voter dilution.

Mr. Murphy: If minority voting strength is diluted.

By the same--

Unknown Speaker: Even though you end up with one, and you conceded that you... the test of the "if" is to compare what was to what is, and so we're now back... since you can make some comparison, why can't you compare what will be?

Mr. Murphy: --Because I think we're talking about two separate events here.

Simply because you might be prevented from going from five to one doesn't mean that if you already have one in place, the court can require you to go to five.

The proviso in section 2 is that it is not designed to ensure proportional representation.

If you have 25, and you reduce to 5, and you dilute minority voting strength, that would be a section 5 violation.

That doesn't mean, on the other hand, that you... the court can take 5 and require a county to go to 25 in order to assure an Asian district, a Hispanic district, or a black district, simply because--

Unknown Speaker: How many counties are left that have this system?

It's dwindling, isn't it?

Mr. Murphy: --I believe it's 14.

Unknown Speaker: Fourteen are left, and is it so that Georgia's the only State that has a single commissioner?

Mr. Murphy: Yes, Your Honor.

Unknown Speaker: How many have recently changed, do you know, from--

Mr. Murphy: I think from the time we filed the petition until today, five have changed, either by settlement of voting rights litigation or by county election to change.

Unknown Speaker: --May I ask another, sort of more basic... let's assume you have a history with just one commissioner, as you have, you never had anything else, but assume that... and contrary to the facts in this case, assume that there was overwhelming evidence that the reason that they had maintained the single-member district, or single commissioner form of government, was to prevent the black voters from having an opportunity to elect a representative.

Just say there's abundant evidence of intent, and that's why they lost the last election when they tried to change it, and so forth and so on.

Would that be a violation, or not?

Mr. Murphy: Your Honor, that hypothetical question probably would go more toward a constitutional claim than it would a section 2 claim.

Unknown Speaker: Oh, I understand it might violate the Constitution.

I'm asking if it violates section 2 of the Voting Rights Act.

Mr. Murphy: Section 2 of the Voting Rights Act does not address difficulty to elect.

It addresses an equal opportunity--

Unknown Speaker: It seems to me that you could tell me in very short... two different words, yes or no, probably, I'd find out what your position was.

Mr. Murphy: --If you can prove that during the time that this sole commissioner--

Unknown Speaker: Prove it from 1865 to today.

They had this government for that very reason and no other reason, and that was the purpose of doing it.

Section 2 violation, or not?

Mr. Murphy: --Yes, but that is not our argument here.

Our argument is that you--

Unknown Speaker: Your answer is yes, that would be a violation.

Mr. Murphy: --By virtue of the method of electing.

I'm not saying that simply because you have a sole commissioner you are violating section 2.

Unknown Speaker: No, I understand, but you do seem to be willing to acknowledge that if it were motivated solely by racial animus and discriminatory intent and all the invidious language we can put into it, that situation would constitute a violation of section 2.

Mr. Murphy: Your Honor--

Unknown Speaker: If you also prove the three Gingles factors.

Mr. Murphy: --If you also prove the three Gingles factors.

Unknown Speaker: Sure, you have to prove those.

Mr. Murphy: Which is my argument exactly, in this--

Unknown Speaker: Which is impossible, you say.

Mr. Murphy: --It is impossible--

Unknown Speaker: So therefore, it would not be a violation of section 2--

Mr. Murphy: --Simply because it exists--

Unknown Speaker: --Right?

Isn't that your position?

Mr. Murphy: --it is not diluted.

Unknown Speaker: So why don't you say it would not be a violation?

It's perfectly awful, it's horrible, there may be a constitutional remedy, but it's not a violation of section 2.

Isn't that your position?

Otherwise, I haven't understood your briefs.

Mr. Murphy: Yes, sir, that is our position.

Having one person elected from one jurisdiction would not violate section 2 of the Voting Rights Act.

Unknown Speaker: Even with the kind of intent I've described.

Mr. Murphy: Yes.

Unknown Speaker: You've changed... Justice Scalia has persuaded you to change your position.

[Laughter]

That's correct, isn't it?

Mr. Murphy: I have changed my answer, yes.

Unknown Speaker: You did make that concession before you had a little help.

Mr. Murphy: Yes, sir.

Unknown Speaker: Not... if you've always had it, it can never be a violation, but if you changed to get a one-member district, then you could have a violation.

Mr. Murphy: The change could be a violation.

Simply having a one-member district is not a violation, but I agree that changing, if you have intent, could be a violation.

Unknown Speaker: Well, how can you satisfy the Gingles factors after a change but not be able to satisfy the Gingles factors before a change?

Mr. Murphy: I think--

Unknown Speaker: One-member district, same factors.

What's the difference?

Mr. Murphy: --Okay, because in our case there has not been a change, number 1, and number 2--

Unknown Speaker: No, but that... that doesn't respond to the question.

I thought you said you can never satisfy the Gingles factors when you're dealing with a dilution claim on a single-member district, and you just said yes, you can do that if there's been a change to a single-member district, and I don't see why that's consistent with your position that Gingles can never be satisfied in single-member cases.

Mr. Murphy: --Well, Gingles... Gingles' three preconditions require that you have compactness and numerosity in a single-member district, that you have political cohesion, and racial polarization--

Unknown Speaker: Okay--

Mr. Murphy: --both.

Unknown Speaker: --can you satisfy that first factor in a single-member district which is new, as opposed to one which is old?

Mr. Murphy: You cannot satisfy that in an existing single-member district.

All you--

Unknown Speaker: Why can you satisfy it in a new single-member district?

What's the difference?

Mr. Murphy: --Well, the difference is because you have made a change.

You have made a change.

Simply because there might be a violation because of a change--

Unknown Speaker: Well, the change may... the change may go to your intent.

The change may go to the measurement of the dilution which you make after the Gingles factors are satisfied, but I don't see what it's got to do with the question whether you can satisfy the factors, and in particular the first one, any better or any worse whether it's a new single-member district or an old single-member district.

Mr. Murphy: --If you have one person... I agree with you, judge, if you are looking at either a new or an--

Unknown Speaker: Well, if you agree with me, then don't you also have to go back to your concession that there can be the possibility of a dilution claim in an existing single-member district?

Don't you have to go back to your first answer to Justice Stevens?

Mr. Murphy: --No, sir, because I'm looking at this as an intent to discriminate when you make a change.

Unknown Speaker: Yeah, but the intent to discriminate is not the essence of section 2.

This isn't a Fourteenth Amendment claim.

Mr. Murphy: That's correct.

That's correct.

The question here is whether the courts should take an existing single-member district or a commission of three or a commission of five and judge that by an assumed model, which is what the Eleventh Circuit has done here.

Unknown Speaker: Well, you may have a very different... I mean, you do, it seems to me, have a very different argument when you in effect say, well, where are you going to stop, are you going to impose a 100-member commission, and so on and on, but that's a very different argument.

Mr. Murphy: There are no workable standards if... regardless of whether you have one or three or five, if courts start coming in and trying to determine a vote dilution not by the existing model but by some assumed commission of--

Unknown Speaker: But it's not some assumed, and I think the concession is made that you just couldn't pick a number that would happen to give you proportional representation.

The number that has been picked here that's allegedly the benchmark is the most frequent form, the five-member commission, so it's not just a number that is pulled out of a hat.

Mr. Murphy: --The sole county commissioner form in Georgia is the third most popular form in Georgia.

It's true that five is the most common form, but that doesn't mean that it's the only form or the--

Unknown Speaker: But at least it's an answer to your argument that where do you stop?

I mean, you can have 20 members, just as long as you come up with the number that happens to give you a representative.

Mr. Murphy: --Well, assume that we have a commission of 10 members, should the... and that's the situation in Clarke County, Georgia.

Should we be required to go up to 25 in order to assure a certain number--

Unknown Speaker: I think the answer is the only position taken in this case is that where you have what they call benchmarks, five or three, that you could use those, not that you could use anything other than those, but that you must have solid precedent for those.

Mr. Murphy: --Your Honor, I disagree that that is a benchmark in Georgia.

There are counties with all different sizes.

It's a question of local and State interest in determining the size, because every county is different.

They have different geographies, different ideologies, different needs, and simply because most counties have five doesn't mean that the citizens in one county or another must have five or must have three simply because that's the most popular form.

Unknown Speaker: When the State proposed changing this single commissioner system for this county, they did propose... wasn't it a five-member board that was proposed--

Mr. Murphy: Yes, Your Honor.

Unknown Speaker: --was it '85 or '86?

Mr. Murphy: Five plus one at large.

It was a referendum.

The General Assembly passed legislation authorizing a referendum to go to a six-member commission, five from districts and one at large.

There was very little interest in the black community in that referendum.

It was a tax issue.

There had been an ad valorem tax change in the county by the commissioner, voters were unhappy with it, the referendum was held whether to change the commission, and the voters in the county, only 25 percent of whom voted, voted in favor of keeping their sole commissioner.

In School Board District Number 2, which is the majority black school board district, the measure passed by only 2 votes, and there was very little organized interest in the black community at all in that referendum.

Unknown Speaker: Were those... those were not... were they at the same time, the school board and the commissioner?

Mr. Murphy: No, Your Honor.

Four years earlier, the county had decided to go to five single-member districts for the school board, so it's not a question of whether the county is racist or polarized.

The county voters decided they preferred five single-member districts for the school board.

As far as their county governing authority is concerned, one is what the citizens there prefer.

Unknown Speaker: Who pays the county commissioners?

Mr. Murphy: The county commissioner is paid by taxpayers.

He has regular office hours in the Bleckley County Courthouse, he conducts regular monthly meetings, if he has to make a policy decision he advertises it in the local newspaper, he makes $32,500 a year, and it's--

Unknown Speaker: Have you made the argument that it would cost more to have a five-member commission?

Mr. Murphy: --Yes.

That is the reason... that is the primary reason local voters like what they have.

If you need your roads scraped, if you need anything that the county commissioner has authority to do, you walk into his office, and you talk to him about it.

It is a very efficient, economical, workable system, and he's immediately responsive to the voters.

Unknown Speaker: How is his salary determined?

Is that fixed by State law, or--

Mr. Murphy: Yes.

Yes.

Unknown Speaker: --It is.

In these five-member commission districts, are the salaries of the commissioners fixed by State law, too.

Mr. Murphy: They would be, yes.

Unknown Speaker: They would.

Mr. Murphy: Yes.

Unknown Speaker: And would it cost the county five times as much to have five commissioners instead of one, or are they a lesser salary because they only have legislative duties?

Mr. Murphy: If they were only part-time, which I assume they would be, then they would make less money, but then the county would be required to hire a county administrator to manage the day-to-day functions of the office.

Unknown Speaker: I'm just wondering if your financial concern might be met by hiring your one administrator to do most of the work and then have these five commissioners on a part-time, low-salaried basis.

All you'd have is the small amount of additional salary for the part-time.

Mr. Murphy: It might be met, Your Honor, but the point I want to make here is that the single county commissioner is what the government... the local citizens in that body desired.

Simply because there's one person to fill that office doesn't make it magical.

The question here is whether, under the Gingles test, the court has the authority or should take on the responsibility--

Unknown Speaker: Would you take the same position if the evidence showed that it wouldn't cost a penny more, you'd get volunteers, and there wouldn't be any interference with the efficiency of the government, it's just an absolute rule regardless of how trivial the State justification might be?

Mr. Murphy: --I would take the same position that the existing single-member form of government in Bleckley County--

Unknown Speaker: Is outside the coverage of the act.

Mr. Murphy: --Is not subject to challenge as dilutive--

Unknown Speaker: As dilutive, right.

Mr. Murphy: --of minority voting strength, and I would like to reserve the remainder of my time, please.

Unknown Speaker: Very well, Mr. Murphy.

Mr. Coates, we'll hear now from you.

Argument of Christopher Coates

Mr. Coates: Mr. Chief Justice and may it please the Court:

The district court judge, after he heard all of the evidence in this case, announced from the bench that having run for public office himself, I guarantee you under these circumstances I wouldn't run if I were black in Bleckley County.

You're going to put your hard-earned time and shoe leather campaigning through this county under these circumstances.

The court of appeals found that voting in Bleckley County is along racial lines.

At present, the only polling place in this county, which consists of 219 square miles, is an all-white private club.

Between 1978 and 1986, 224 persons were appointed to serve as poll managers in Bleckley County, and not one of the 224 appointees were black persons.

Unknown Speaker: Do you think perhaps the same statement could have been made at least 20 years ago with respect to the President of the United States... if I were a black person, I wouldn't run for President of the United States?

Mr. Coates: Yes, sir.

Unknown Speaker: Because you don't stand a chance of getting elected?

Mr. Coates: Yes, sir.

Unknown Speaker: And does that render that unlawful?

Mr. Coates: No, sir.

Unknown Speaker: That system of government, one elected President?

Mr. Coates: No, sir, because the President of the United States has traditionally been a true single-member office in this country.

He's a member of the executive branch.

There must be one decisionmaker as President of the United States.

The governing body that we're talking about here today is a body, the Bleckley County Commission, that carries out legislative functions as well as executive functions.

Unknown Speaker: What about the governorship of some States?

If you could make the same statement about the governorship, do you think that would be a violation of the Voting Rights Act?

Mr. Coates: No, sir, because I think, again, the governorship of the State is a true, single-member office.

Unknown Speaker: This is not a statute that talks about intent.

I don't see how whether it's a true single-member or non-single-member has anything to do with it.

There's nothing like that in the statute.

Mr. Coates: Well, the courts--

Unknown Speaker: I mean, you know, when we say, it's not a true single-member, that implies, you know, this has been done... made a single-member with the intent of disadvantaging blacks, but this is not an intent statute.

Mr. Coates: --Well, section 2--

Unknown Speaker: It just looks to the consequence, whatever the intent was, doesn't it?

Mr. Coates: --No, sir.

Section 2 has both an intent and result component.

Unknown Speaker: What is the intent component?

Which one is that?

Mr. Coates: Section 2 has been construed to prohibit racially motivated voting procedures, which would be the same as prohibited by the Fourteenth Amendment.

Unknown Speaker: It requires intent.

Mr. Coates: No, sir, it does not.

It has a double standard.

Unknown Speaker: Then my question stands.

You don't need intent to make it invalid, so why would it make any difference whether this was a natural one-person district or not a natural one?

The only thing that goes to show is that somebody had a bad intent, but you don't need a bad intent to show a violation here.

Mr. Coates: Yes, sir.

I think that... Your Honor, the response to that question would be that one would have to look at what the Congress was intending to prohibit or to address enacting section 2 in 1982, and if you look--

Unknown Speaker: Well, do you think that Congress really did intend in section 2 to authorize dilution claims to the various single-member offices found around the country--

Mr. Coates: --My position--

Unknown Speaker: --County sheriff, county treasurer, county attorney, so forth and so on?

Mr. Coates: --No, I do not.

I do not think if it's a true single-member office that carries out legislative functions... it carries out executive functions and not legislative functions, that I think the Congress did not intend to reach those offices.

Unknown Speaker: But it certainly didn't in language in the statute draw a legislative or executive distinction, did it?

Mr. Coates: That's correct, Your Honor, but looking at the legislative history, the principal problem that the Congress was addressing in enacting the Voting Rights Act was the dilution of minority voting strength at the legislative body process, and I think that that's the distinction that should be drawn here with regards to true single-member offices and legislative offices--

Unknown Speaker: The statute doesn't apply to executive offices, is that it?

Section 2 does not address executive offices?

Mr. Coates: --It does... there was not an intent by Congress in enacting the statute to increase... to allow section 2 plaintiffs to increase the number of true... true single-member offices.

Unknown Speaker: You're talking about truly executive... I've spent much of my life in administrative law trying to figure out what's executive and what's legislative, but you very clearly see that some things are truly executive and other things truly legislative.

Mr. Coates: Yes, sir.

Unknown Speaker: This is truly legislative, this particular office.

Mr. Coates: The Bleckley County Commission--

Unknown Speaker: Right.

Mr. Coates: --is both... has all the legislative powers of the governing authority in Bleckley County as well as the executive powers, but a test can--

Unknown Speaker: What about Federal agencies that can issue regulations?

Are they executive agencies, or not?

Mr. Coates: --They... my understanding would be that they would be executive agencies.

Unknown Speaker: Even though they can make all sorts of rules just the way this county commission can.

Mr. Coates: But they would not be legislative bodies.

Unknown Speaker: Why?

Mr. Coates: Because they do not have the power to govern in the sense of passing ordinances that a local--

Unknown Speaker: They pass regulations.

It's the same things as ordinances.

You violate them, you go to jail.

Mr. Coates: --Yes, sir.

Well, in the traditional sense, they do not have the authority to legislatively enact laws or ordinances that a county commissioner or a city council or a general assembly of a State would.

Unknown Speaker: Well, you mean they're not responsible to... directly responsible to an electorate.

Mr. Coates: That's another distinction, Your Honor.

Unknown Speaker: Well, do you really have to rest your case on this distinction?

Why... I thought your argument rested at least equally well and, I guess I would suggest maybe more strongly, on your reference to tradition in effect as a source of benchmark, and if you do that, you don't have to get wrapped up in the question of whether someone is performing executive or legislative function, you in effect look to some historical basis, if you can find one, for your benchmark.

Mr. Coates: Yes, sir.

Well, your benchmark goes to the question that was raised by the county here concerning how and to what limit there would be a limitation on the expansion of representatives on the local government body.

Unknown Speaker: No, I realize that, but doesn't it equally address the question whether the office in issue is one which may be subject to a section 2 claim if it is, as in this particular case, a single-member office?

Mr. Coates: I think the benchmark test would go to that question, and you would look to tradition in this country of having a distinction between legislative offices, which are normally multimember boards, and executive offices, which are normally true, single-member offices.

Unknown Speaker: Why do you have to get executive and legislative in there at all?

Why don't you just look to the number of the office?

Mr. Coates: Yes, sir.

Well, in response to the question by Justice Scalia, I was responding in that manner, but the benchmark that... that--

Unknown Speaker: Do you concede that it is essential to make a legislative executive distinction in order to support your position in this case?

Mr. Coates: --Not for this particular case, but in response to his question I was answering it in that way.

Unknown Speaker: Mr. Coates, you said, I thought, in response to Justice Souter's question that you look all around the country for a benchmark so that even if all of the 250 or whatever it is counties they have in Georgia all had single commissioners, you might find a benchmark out in the State of Oregon, say, where perhaps they all had... the counties had five-member commissions?

Mr. Coates: No, sir.

I think that the first place you would look to a benchmark would be to the State, because that would determine the State's policy.

Unknown Speaker: So if you found all single commissioners in Georgia, could you look any further?

Mr. Coates: I think that that would be a much more difficult case, because if Georgia had a statute that provided that every county would have a sole commissioner, then there would be a strong argument in this case that the State policy required the sole-commissioner form of government, but I thought--

Unknown Speaker: It wouldn't be conclusive?

Mr. Coates: --It would not be... I think it would be a much more difficult case.

Whether or not some counsel could construct an argument that would say that you could look to Oregon, I just don't know, but in this case 159 counties exist in Georgia.

Only... my count's a little bit different... 11 counties have the sole commissioner form.

Unknown Speaker: I was thinking of Texas, I think.

Mr. Coates: Yes, sir.

There are only 11 counties in Georgia that have a sole commissioner form of government.

Unknown Speaker: It's 11... the number's 11, not 14?

Mr. Coates: Yes, ma'am, I think it is.

Unknown Speaker: The district court went with you, as I understand it, the first two steps of the way.

Where the district court and the court of appeals divided was on what has been called the second two Gingles factors.

Would you explain on what basis you think that your case meets those second two requirements, the cohesiveness on the part of the minority community and the bloc voting on the part of the majority community?

Mr. Coates: Well, the court of appeals held that the analysis applied to the issue of racial bloc voting by the district court judge was too narrow.

The district court held that in making that analysis, or determination, that he was limited to statistical analysis in determining the existence or nonexistence of racial bloc voting.

The court of appeals held that you could look to other, antidotal evidence in the case that addressed the issue of racial polarization, such as the fact that when black people go to vote in Bleckley County, that there would be in an 8-year period 224 black... white managers and no black managers, for example.

The court of appeals said that one could look at--

Unknown Speaker: Well, you wouldn't have to look at anything other than if you had a minority population that would always be the case.

Then no single-member system would be permissible.

There was no proof of any kind with respect to the division of the votes at the time of the referendum minority-majority votes for and against, was there?

Mr. Coates: --That's correct, because in 1986, the eight existing precincts that existed in 1984 had been consolidated into one precinct, and under a one-precinct situation regression analysis is not possible because you need at least two or more precincts to compare to do the regression analysis, so it was not a possibility for the plaintiffs in this case to offer a statistical showing concerning the 1986 referendum.

But the court of appeals pointed to footnote 25 of this Court's opinion in the Gingles case and read that footnote to say that the district court was incorrect in ruling that you looked at only statistical evidence, and allowed a broader look, and on that basis came to the conclusion that the district court had erred.

What is the broader look, other than that when you have a unit that has a majority population and a minority population, the chances are that you will have a representative from the majority group?

The broader look was the continuing racial segregation and polarization within the county which created an impediment for black candidates to solicit white voters, or for black voters to form coalitions with white voters, and that continuing polarization was evidence sufficient in addition to the statistical evidence that the plaintiffs offered to satisfy the racial polarization requirement in Gingles.

The court--

Unknown Speaker: If you have a jurisdiction in which, say, there are four races, and one race is 10 percent, and that race has had difficulty in electing its representative, I take it under your principle we would have to go to proportional representation and have, say, a 10-person commission?

Mr. Coates: --No, sir.

First of all, our position is that the increase in the number of representatives on the governing authority would first be determined by looking at the State law benchmark, and the State law benchmark in this case I believe is 5, it would not be 10.

Secondarily, this court held in 1972, in the Beens case... I think it's Sixty-seventh Minnesota v. Beens... that minor deviations are allowed from the State choice concerning the number of representatives.

If the deviation from the State benchmark were more than minor, then Beens would tend to teach that that alteration would not be allowed.

Unknown Speaker: Well, let me put it this way.

If there were a benchmark that permitted a governing body of a size which would give proportional representation to the excluded race, then it is your position that they would have to reconform the district accordingly, is it not, in the case that I put?

Mr. Coates: It might be, but the--

Unknown Speaker: So basically what you have is proportional representation in every case.

Mr. Coates: --No, sir.

No, because the increase there, Your Honor, would be not because of the claim of proportional representation, but because the expansion would be tied to the benchmark established by State law, as is the case here.

Unknown Speaker: But what is the objective?

The objective is to allow racial representation.

Mr. Coates: No, sir.

The... in this case, I would respectfully beg to differ.

The court did not say... the court of appeals did not say, in suggesting the use of the five single-member district plan, that that was done to effectuate proportional representation.

It chose the five single-member district plan because it would have been choosing an alternative system which was established by a benchmark of State policy.

Unknown Speaker: Which came the closest to giving proportional representation.

Mr. Coates: It had that incidental effect, yes, sir.

Unknown Speaker: Incidental?

That was the whole object of it, wasn't it?

Well, let me ask you this... let me ask you this: suppose the... we affirm the finding that there should be a five-member district.

Those districts would have to be drawn on a race-conscious basis to comply with your theory, would they not?

Mr. Coates: The... if the plan was drawn as the board of education... if the board of education plan was adopted, then I do not think it would be fair to say that that would be drawn on strictly a race-conscious basis, because that is the very plan adopted by the Georgia General Assembly in 1983 for school board elections, so what the court of appeals was suggesting--

Unknown Speaker: Suppose there were no... suppose there were no existing precincts, and this case goes back, is race a factor in drawing the new district lines?

Mr. Coates: --Yes, sir.

Unknown Speaker: It has to be, doesn't it, so there can be proportional representation?

Mr. Coates: No, it does not have to be because of proportional representation.

It would have to be because of the finding of vote dilution, Your Honor, is affirmed by this Court, then the district court, in determining the remedy, would have the responsibility of implementing a plan that would cure the vote dilution effect.

That would be the general standard.

Unknown Speaker: Mr. Coates, we said in Chisom v. Roemer... and I didn't agree with our saying it, but we said it, and maybe we said it in order to get around this problem of converting section 2 against its plain text into a provision that provides proportional representation.

We said that you have to show two things, not just inability to elect, but you have to show, in addition, lack of opportunity, equal opportunity to participate.

In other words, we read the two clauses of section 2 as being cumulative.

Now, has there... what lack of equal opportunity to participate does there exist in this situation?

Mr. Coates: To--

Unknown Speaker: Doesn't everybody in the county, when voting for this one member, participate in the electoral process equally?

Mr. Coates: --No, sir.

Unknown Speaker: No?

Mr. Coates: No, sir, and a system--

Unknown Speaker: I can understand how you say they can't elect by race with this much facility, but how do they participate unequally?

Mr. Coates: --Yes, they do not participate equally, black and white people in Bleckley County, because the fact that there would be 224 people appointed as poll managers over a 8-year period and not one of those people would be black, would show that participation in the voting process in this county is manifestly not equal.

Black people have to go to the polls, but they are run by white people.

There was testimony in the case that that deterred some black people from voting.

They have to go to the polls and vote in an all-white private club.

That's not equal participation.

Unknown Speaker: Do they have the same ballot?

Mr. Coates: Yes, sir, they do.

Unknown Speaker: They vote for the same people.

Mr. Coates: Yes, sir.

Unknown Speaker: They're not excluded from the polls, nobody excludes them from the polls.

Mr. Coates: The choice of having all-white managers--

Unknown Speaker: You're saying that they cannot elect a member of their own race and that affects the outcome, but that's the elect provision, not the participate provision.

Mr. Coates: --Yes, sir.

Well, the Congress said in section 2, and it's right in the face of the statute, that the failure of a minority group member to be elected is one factor to be taken into consideration in deciding whether the system is vote-dilutive.

There are many cases that come to this Court, such as Gingles, where there has been some success by minority candidates.

In this case, on a county-wide basis since 1912, there has been zero success.

Unknown Speaker: If the minority population were 12 percent, you would have no case, is that... are you recognizing that?

Mr. Coates: If the--

Unknown Speaker: Suppose, instead of being close to 20, it was 12 percent.

Mr. Coates: --If the benchmark for testing the sufficiency and size requirement were 5, as we maintain it is in this case, then if the minority population were 12, that would create severe problems for satisfying the size and compactness requirement of Gingles.

I haven't done that mathematically, I haven't done that hypothetical, Your Honor, but I would concede that it would create a problem in satisfying the sufficiency and size requirement under the benchmark--

Unknown Speaker: These practices of having all white commissioners, or poll-watchers, can that not be challenged separately under section 2, or under the Fourteenth Amendment?

Mr. Coates: --Yes, sir, and I have filed such a suit.

Unknown Speaker: If we were to change the facts that you've given us, and if the county had been from your standpoint perhaps more prudent, and had been careful to appoint a racial mixture among its poll-watchers, and if it had set up polling places in public schools, and so on, are you conceding that you would not have a case?

Mr. Coates: No, sir, I would not concede that I wouldn't have a case, but certainly that would take away the antidotal evidence, the nonstatistical evidence of racial polarization that the court of appeals pointed to.

Unknown Speaker: And you would be left simply with the... you would be left simply with the fact, under those circumstances, that there had never been a black commissioner.

Mr. Coates: Well, I wouldn't be left with just that fact.

For example, there was a--

Unknown Speaker: What else would you have?

Mr. Coates: --Well, for example, there was a finding by the district court, affirmed by the court of appeals, that black people in Bleckley County continue to suffer from the effects of racial discrimination in housing and employment and areas like that, and that--

Unknown Speaker: Well, what's that got to do with participation?

Mr. Coates: --Because--

Unknown Speaker: Under section 2?

Mr. Coates: --Because that's one of the factors that the Senate report pointed to as bearing upon the question of equal participation, and both the district court, I think, importantly, and the court of appeals, found that that present depressed socioeconomic status hindered the ability... and this is what the district court said, even though that judge ruled against us... hindered the ability of black people to vote and run for office.

Only 15 percent of the black people in Bleckley County have high school educations in a system--

Unknown Speaker: Mr. Coates, could you have another referendum?

The State proposed it in '85-'86, and it seemed that there wasn't much of an interest in either community in voting in that referendum, but if the preference, the strong minority preference is for a five-member commission, could you have another referendum?

Mr. Coates: --If the Georgia General Assembly authorized the holding of another referendum, yes, you could, Your Honor.

Unknown Speaker: Do you have any information in this record about what happened in the other counties, now we've got this number that's now dwindled to 11, and they went from one to a larger number?

Mr. Coates: Yes.

Yes, Your Honor.

There's a... in the appendix, there have been the consent orders in some of the cases which have been settled.

For example, in Webster County there was a sole commissioner, there was an expansion to a three-member commission elected from single-member districts, and an at-large commissioner who would serve as the county administrative official, so that's how in one of the counties the problem has been resolved.

There has... there's no evidence that in any of these counties have the cases been resolved on the basis of expanding the membership of a sole commissioner to 50 or 100 commissioners.

Unknown Speaker: Suppose that throughout Georgia the choice were between having either a one-commissioner system or a three-commissioner system, and suppose further that in Bleckley County the increment from one to three would not result in the election of any representatives of the black community.

What then would be your position as to the appropriate remedy?

Could the court then order five?

Mr. Coates: That would be a much more difficult case, because there would be a policy, a State policy applied across the board to counties that would establish either a one-person commission or a three-person commission.

Unknown Speaker: But if it's necessary to cure a violation, how can a State policy thwart a Federal statute?

Mr. Coates: Because in determining the benchmark for the increase, I believe that it would be appropriate for the Federal courts to give deference to the State policy established in that benchmark.

The Federal courts would not be at liberty to just create numbers so as to achieve some type of proportional representation, but they... but the--

Unknown Speaker: But not... could not give deference to the county policy.

I mean, you're willing to have us override the county voters, who want one, even though the State wants to defer to those county voters--

Mr. Coates: --Yes.

Unknown Speaker: --But somehow we can't override the State, just the county, is that it?

Mr. Coates: That's correct, Your Honor, because--

Unknown Speaker: I see.

Is there some principle of law that--

Mr. Coates: --Yes, sir.

It is mentioned in the legislative history of section 2, where it says that in determining whether or not a State's policy is tenuous, you look to how the State has treated other jurisdictions in a State.

The State policy is not established by what happens in Bleckley County.

The State policy is established by comparing how Bleckley County is treated with other counties in the State.

Unknown Speaker: --Well, Mr. Coates, I don't find anything, actually, in section 2 that says you defer to State policy.

If you find vote dilution then there's a violation and a Federal remedy is required.

Mr. Coates: The only place that it is referred to is not in the face of the statute, but in the seven Senate factors.

The tenuousness of the State policy is--

Unknown Speaker: In looking at the totality of the circumstances to determine the dilution question, right?

Mr. Coates: --Yes, ma'am.

That would be one of the factors that a court would appropriately look at.

Unknown Speaker: But if dilution is found, then I suppose a remedy is required.

Mr. Coates: Yes.

The only analysis that I'm saying, or presenting to the Court, is that the Federal court would not be permitted to completely disregard the State's policy, but that's not what happened in this case.

Unknown Speaker: Now, it's a little hard to read the limiting principle into the language of the statute.

Mr. Coates: Yes, ma'am.

Unknown Speaker: Well, isn't it the nub of your argument that dilution is in effect a question involving comparisons, and what the appropriate comparison may be, you assume, Congress intended to be established by looking to traditional practice within a State?

Mr. Coates: Yes, sir.

Unknown Speaker: Is that--

Mr. Coates: That's correct, a State practice establishes the benchmark, and it would be a different case--

Unknown Speaker: --So ultimately you're saying, what is an appropriate comparison is a question of congressional intent, and congressional intent was, look to what they have been doing within the State for other possible, reasonable comparisons.

Mr. Coates: --That's correct, because I think section 2 shows that there's a demonstrated Federal interest to cure the problem of vote dilution in the United States.

I mean, it's Nationwide, and so if there's vote dilution found, and there's a Federal interest in correcting that, then if you're going to give some special weight to the State's interest, it at least ought to be an interest that has been applied by the State in some type of systematic manner, not--

Unknown Speaker: You talk about vote dilution as though it's something objective, but you've told us it isn't objective, that there's no such thing as vote dilution if you've had a single-member office all along.

That isn't vote dilution, even though the same system set up somewhere else is vote dilution if... I don't now, if it hasn't been a uniform State policy.

Mr. Coates: --If I said there--

Unknown Speaker: I don't know what vote dilution means.

It's a meaningless term.

It's entirely relative, isn't it?

Mr. Coates: --Well, if I said that there wasn't vote dilution under the single commissioner form in Bleckley County, I did not intend to say that.

Unknown Speaker: No, no, but you said in another State there wouldn't be.

If another State had all single-member people, that wouldn't be vote dilution, even though the votes would be diluted to the same degree, but that wouldn't be "vote dilution" as you've been talking about, isn't that right?

Mr. Coates: It would depend upon the particular circumstances or evidence in that particular jurisdiction.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Coates.

Mr. Murphy, you have 3 minutes remaining.

Rebuttal of R. Napier Murphy

Mr. Murphy: Thank you, Mr. Chief Justice, and may it please the Court:

We have a county of 10,000 people.

70 percent of the registered voters, black and white, are registered.

Voter registration is equal for both blacks and whites.

They vote equally in all elections, the same percentages... 29 to 30 to 31 percent.

It's the same.

They have an equal opportunity to participate in that county, whether they are voting for one sole commissioner, one sheriff, or one school board district member.

We're not talking about benchmarking in order to prove a section 2 claim.

We're talking about bootstrapping.

In these other counties that went from one to three... one to three... why didn't they go one to five?

Because three guaranteed proportional representation.

If five is the benchmark, these other sole commissioner counties that have decided to change should have gone to five.

If we're talking about benchmarking, should the Texas legislature, which has only 31 members, be expanded to meet the modal size of State legislatures in this country?

There are no workable limits if we start changing or expanding the size of government to determine a vote dilution claim.

You look at the existing number of seats.

This Court refused, in the Beens case referred to by Mr. Coates, to order a reduction of 50 percent in the State Senate of Minnesota and 25 percent in the House of Representatives.

This Court refused that change even for a constitutional violation.

We are talking about a 500-percent change in the size of the governing body for this small county.

That is not a minor change.

Mr. Coates also referred to sheriffs as having executive authority, but sheriffs make many decisions which affect minorities.

Hiring minority deputies, enforcing the laws as to minorities, providing patrols for minority neighborhoods... all of those actions affect minority voters.

You cannot--

Unknown Speaker: Mr. Murphy, if we were to look at the district court decision and go that far, reject your argument as far as the district court did, what would your argument be about what it would take to satisfy the factors that the court of appeals found were not satisfied in this case, the bloc voting and cohesiveness?

Let's say that you lose on your main argument, and we're back in the district court, and the district court says, in my view, this case fails for lack of proof on those two items, what would be adequate proof?

Mr. Murphy: --Adequate proof of political cohesion would be proof that minorities get together to sponsor candidates, that they run a candidate.

No minority has ever run for any county-wide office in the 81-year history with the exception of one election for a probate judge in 1984, but as long as no minority runs for office in that county, then it's certain that no minority will win election.

Chief Justice Rehnquist: Thank you, Mr. Murphy.

Mr. Murphy: Thank you very much.

Chief Justice Rehnquist: The case is submitted.