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May 20, 1988

Sam Whitfield, Jr., Linda Whitfield, P.L. Perkins, Julious McGruder, Georgia M. Varner, Annie Sykes, Ollie Jennings, Sam Bennett, Plaintiffs
The Democratic Party Of the State Of Arkansas, The State of Arkansas Democratic Central Committee, The Phillips County Democratic Central Committee, Defendants

The opinion of the court was delivered by: EISELE


 This case involves a challenge to Ark. Stat. Ann. § 7-7-202, which requires that a candidate receive a majority of the votes cast in a political party's primary election in order to obtain the nomination of that political party. That section provides in pertinent part:

Whenever any political party shall, by primary election, select party nominees as candidates . . . for any United States, state, district, county, township, or municipal office, the party shall hold a preferential primary election and a general primary election on the respective dates provided in section 7-7-202(a) and (b).

 Without spelling it out the plaintiffs are actually attacking Amendment 29, Section 5 of the Constitution of Arkansas (adopted November 8, 1938) which provides:

Only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petition of electors as provided by law shall be placed on the ballots of any election. (Emphasis Supplied)

 The majority vote requirement is established by Amendment 29 and the mechanisms for carrying it out are set forth in section 7-7-202.

 Plaintiffs are proceeding under two distinct theories. First, they contend that section 7-7-202 and Amendment 29 result in their being less able than white citizens to participate in the political process and elect the candidates of their choice. This cause of action arises, they state, entirely under section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. See Plaintiffs' Pretrial Brief, p.2. Secondly, plaintiffs allege that section 7-7-202 and Amendment 29 were enacted and have been maintained for racially discriminatory reasons and, therefore, violate the fourteenth and fifteenth Amendments to the Constitution. The Court will deal with the latter contention first, i.e., plaintiffs' "intent" claims.

 Plaintiffs' Constitutional Claims.

 Plaintiffs rely upon the City of Mobile v. Bolden, 446 U.S. 55, 64 L. Ed. 2d 47, 100 S. Ct. 1490 (1980) and Rogers v. Lodge, 458 U.S. 613, 73 L. Ed. 2d 1012, 102 S. Ct. 3272 (1982). Under this theory, plaintiffs must establish that section 7-7-202 and Amendment 29 were enacted, or has been maintained, for a discriminatory purpose. As stated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977):

Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence as may be available."

 In making this determination, the Court may consider the factors identified in the Senate Report along with all the other facts and circumstances. See infra discussion of section 2 of the Voting Rights Act of 1965. As the Court understands the law in this area, if legislation was motivated or maintained out of a desire to discriminate against blacks on account of their race and if, indeed, such legislation in fact has that effect, it would violate the Equal Protection clause. With these legal principles in mind, the Court will discuss the history of Amendment 29 and section 7-7-202.

 Arkansas has had such a majority-vote requirement since 1933. Prior to that time, at least two counties in Arkansas followed the practice without the benefit of any act of the Legislature.

 Mr. Henry Alexander, in his article, "The Double Primary" in Volume 3 of the Arkansas Historical Orderly (1944) (cited by all parties and also by several of the witnesses) explained the overwhelming vote as follows:

In view of the potent opposition in the legislature to earlier bills providing a double primary, passage of Act 38 with only three negative votes is difficult to understand. The hectic Democratic primaries of 1932 may in some measure explain revival of agitation for the double primary system. The primary ballot of that year in Pulaski County, described as being "as long as your arm," contained seventy-six names exclusive of candidates for nomination to township offices and for election to party office. The ballot listed seven candidates for the gubernatorial nomination, a like number for the United States senatorial nomination. Six entrants sought the nomination for lieutenant governor and twenty candidates filed for seven other contested nominations to state office. Winners in several races failed to poll a majority of the votes case. J. M. Futrell, nominee for governor, polled less than forty-five per cent; Lee Cazort, nominee for lieutenant governor, less than thirty-one per cent. Converted to the principle of majority nominations by numerous minority nominations in the primaries of this and former years, a small group of influential citizens organized a Run-Off Primary Association. This short-lived organization was formed to advocate enactment of a double primary law at the 1933 session of the General Assembly. The organization, its headquarters in Little Rock, chose J. Bruce Streett, president, and Grady Forgy, secretary. Its officers had a hand in drafting Act 38 and its influence counted for much in obtaining passage of the statute.

 During the 1935 legislative session, Act 38 was repealed. This prompted a movement to embody the majority-vote double primary system into the Arkansas Constitution where it would be beyond legislative power.

 According to Mr. Alexander, in 1928, Mr. Brooks Hayes was runner-up in a seven-man race for the gubernatorial nomination which was won by Harvey Parnell with a plurality of less than 42%. Two years later, Mr. Hayes urged adoption of the double primary system in the form of an initiated amendment to the Constitution. Mr. Collins was at that time president of the Arkansas Bar Association. This effort culminated in the adoption of Amendment 29 to the Arkansas Constitution. The amendment covers a variety of "good government" election principles. For our purposes, the most important is found in Section 5, which reads:

Only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petition of electors as provided by law, shall be placed on the ballots in any election.

 As stated by Alexander:

Sponsors of the proposed amendment were moved, primarily, by hostility to committee nominations and special elections and, secondarily, by hostility to plurality nominations. The latter, however, should not be minimized. The section of Amendment 29 requiring the double primary was included in earliest drafts of the proposal. Suggestions, at one time considered, to incorporate provision for a double primary in a separate amendment were discarded. Writing on August 31, 1937, Abe Collins stated, with reference to the section of the proposed amendment requiring the double primary, "I think it is the most important part of it (draft of Amendment 29)." Opposition to minority nominations was strengthened in some quarters when, in the primary of August 11, 1936, Carl E. Bailey won the gubernatorial nomination in a five-man race by a plurality of less than thirty-two percent of the votes cast.

 Dr. Leflar and Dr. Waterman are recognized nationally as legal scholars.

 Over 18,000 signatures were needed in order to initiate Amendment 29. The effort was successful. According to Mr. Alexander:

The press of Arkansas vigorously and almost without exception supported ratification of Amendment 29 at the general election in November, 1938. No organized opposition appeared and, on November 8, the measure was approved by narrow margin of 63,414 to 56,947. Opposition to ratification was somewhat centered in so-called "machine" counties. In eleven counties often so characterized ratification was opposed by a popular majority of 61.5 per cent of votes cast in these counties.

 Two temporary enabling acts were then passed.

 In 1939, the Legislature proposed Amendment 30 to the Constitution which would have abolished the double primary. That proposal was defeated by a vote of 96,628 to 70,131, indicating, according to Alexander, a strengthening of public sentiment for the double primary system.

 The first of the enabling acts under Amendment 29, Act 372 of 1939, required that uncontested nominations and nominations with only two contestants be voted on at the second primary. This provision was intended to lessen the opportunity for interference in the second race by winners or losers in the first, the preferential, race and to counteract lack of voter-interest and non-voting in the runoff primary. Since Act 372 expired by its own terms, it was necessary for the 1941 session of the General Assembly to reenact such enabling legislation. This was done and became Act 90 of 1941. This act also expired by its own terms causing the enactment of permanent enabling legislation in 1943, to wit:

 Act 328 of 1943. Mr. Alexander's comments are pertinent:

The double primary system in Arkansas has had a checkered and stormy history. Opposition to the system is outspoken and lacks neither leadership nor strength. This writer ventures to predict, however, that this opposition will grow weaker; that the principle of majority nominations will become more secure.
Political parties in Arkansas in the state, district, county or city may nominate candidates either by party primary or by party convention. Optional use of the primary, authorized in 1895, was retained by authors of Amendment 29 to accommodate the Republican Party. Expense of a primary is unwarranted by the limited voting strength of the minority party. Optional use of the primary was retained also to allow Democratic nominations to be made by convention to fill vacancies in nominations and to select candidates to run in special elections. Direct nominations in these circumstances would not be feasible in all cases.
Should a political party choose to nominate its candidates by primary such nominations, by provision of Amendment 29, must be made by majority vote. The wisdom of incorporating the mandate of majority nominations in the state's fundamental law, beyond reach of the General Assembly, is questionable. Objections stems from the likelihood that Arkansas may not remain a one-party state, as some authors of Amendment 29 tacitly assumed. Some profess to see national trends toward an alignment that may divide the electorate along political lines definitely liberal and conservative. Should this trend, or current frictions within ranks of the majority party in the southern states, usher in a two-party system in Arkansas, the constitutional requirement of majority nominations would invoke criticism. Meanwhile, the Republican Party, or any minority, is forced by Amendment 29 to select nominees either at party convention or to incur expense of two primaries.

 Plaintiffs maintain, as pointed out above, that the primary runoff laws of Arkansas "were enacted and have been maintained for racially discriminatory reasons." Plaintiffs' Pretrial Brief, p.2. Plaintiffs acknowledge, as they must, that during the period discussed above, when such laws came into being in Arkansas, black citizens had already been essentially disenfranchised and removed from any participation in Democratic primaries. And, since nomination in Democratic primaries at that time was tantamount to election, blacks were essentially excluded from any meaningful participation in the entire political life of the state. "All white" primaries and the poll tax had reduced black voter registration, according to one authority, to 1.5 per cent in 1940. See, "Runoff Primaries and Black Political Influence," by Harold W. Stanley, p.270.

 The Court is convinced that there was no racially discriminatory purpose or intent in the primary runoff enactments. Nor could those laws at that time have had any discriminatory racial effect since blacks could not run for office, vote, or otherwise participate in Democratic primaries. But plaintiffs go on to argue that such laws have been maintained for racially discriminatory purposes. After hearing all of the evidence, the Court is convinced that this is simply not so. The actual purpose was the stated purpose, to wit: to insure that no one was nominated as a candidate of the Democratic Party who had not received a majority of the votes cast. This is not a tenuous policy to conceal some racial animus but, rather, a "bedrock ingredient of democratic political philosophy." See discussion of Section 2 of the Civil Rights Act of 1965, infra.

 Plaintiffs rely principally upon the circumstances surrounding the enactment in 1983 of Section 7-5-106, Ark.Stat. (1987) (which establishes the runoff requirement for candidates for municipal and county offices in general elections) as evidence of legislative intent to maintain the runoff requirement in primary elections for racially discriminatory reasons. They point out that this enactment followed directly upon the election of a black as mayor of West Memphis in a plurality election. Their reliance upon such evidence is misplaced for several reasons. First, that evidence falls far short of convincing the Court that the overall legislative intent for the enactment of Section 7-5-106 was tainted by racially discriminatory motives. Second, the "nature of the beast" is quite different in the two cases: section 7-7-202 applies to party conducted primary elections across the board, that is, in all cases where a political party chooses to nominate by the use of that vehicle instead of by party conventions; section 7-5-106 applies to state-conducted general elections for two specific type of offices only, i.e., municipal and local offices. Section 7-7-202 deals with one of the methods political parties may use to determine who their nominees will be in the general election. Section 7-5-106 deals with the manner in which persons are elected to certain municipal and local offices. Different motives and intents obviously may come into play in these two differing situations. *fn1" Third, plaintiffs fail to accept that the majority vote requirement in cases where primaries are used by political parties to nominate their candidates is embodied in the Constitution of the State of Arkansas.

 Amendment 29 was adopted by vote of the people in 1938. That amendment, it should be recalled, was initiated by the people through petitions-- not by the legislature. An effort to repeal it, Amendment 30 in 1940, as proposed by the Arkansas legislature, was resoundly defeated by the popular vote. So far as the Court is aware the issue has not been put to a popular vote since the defeat of Amendment 30. Therefore, the issue is beyond direct legislative reach. And the intent of the legislature is not in all cases the same as the intent of the people, as has been frequently demonstrated, and as was in fact demonstrated in this particular case when the legislature proposed Amendment 30 which, if enacted, would have abolished the runoff requirement in primary elections.

 Indeed, it must be recalled that the repeal of the run-off statute in 1935 is what prompted the movement to embody the majority vote requirement in the Constitution where it would be beyond legislative control. And there is absolutely nothing in this record to suggest that the voters who caused the adoption of Amendment 29 and later rejected an amendment which would have repealed Amendment 29 had any racial animus in mind. The history is clear: race was not a factor. In fact, it has been suggested that fear of the power of the Ku Klux Klan may have been a motivating factor for some. But the perceived perversion of democratic principles (where plurality elections were permitted) was the overriding motivating factor.

 Subsequent to the enactment of Amendment 29 and the failure of proposed Amendment 30 (to repeal Amendment 29), the people have had no further voting opportunity to reconsider the issue. So the majority vote runoff system in primary elections has been the settled practice in this state for over 50 years. The legislature, by its own actions, has no power to repeal Amendment 29. It cannot thus be contended that the General Assembly has retained or maintained the majority-vote runoff requirement for discriminatory reasons. And, although the legislature has recently endorsed the runoff principle for use in connection with certain general election contests, its motive, as discussed above, was not, overall, tainted by racial considerations. The fact that a handful of legislators, in 1983 may have been motivated by such considerations is beside the point. We are to deal with the overall legislative intent.

 It is interesting to compare the evidence pertaining to legislative intent in this case with that in Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985). There, the runoff proposal opponents argued in the legislature that the proposal would have the effect of preventing blacks and Hispanics from ever electing their own candidates. And it was argued that the 40% threshold was chosen because it was just above the combined population of blacks and Hispanics. On the basis of such evidence and arguments, U. S. District Judge Brieant concluded that the act was passed for the purpose of diminishing minority participation in the political process. The Court of Appeals held that Judge Brieant's finding of discriminatory intent was clearly erroneous. A portion of the Circuit Court's analysis and reasoning is pertinent here:

Judge Brieant placed particular emphasis on the remarks of two black Senators, Galiber and Stewart. Senator Galiber argued that the run-off bill would prevent a minority candidate from winning a city-wide election through a plurality and, consequently, from ever winning such an office. Senator Stewart opposed the law on the same grounds, arguing that the run-off was bound to degenerate into a race-based choice, and would thus extinguish the possibility of a black/Hispanic coalition candidate winning by plurality. He added that, in his view, the 40% threshold had been chosen because the black and Hispanic combined population then comprised 30% of New York City, and thus the higher figure shielded the offices from a minority coalition candidate.
The members of the Senate overwhelmingly passed the bill. The results in the Assembly--where the bill was virtually uncontested--were the same, with all 5 minority Assemblymen present voting in favor of the law. The district court, oddly, found this support probative of racial animus in light of the evidence before the legislature that the law would be costly and logistically difficult to implement. The district court made no mention of the support that the bill received from Senator Garcia (a Hispanic), and Garcia's statement during the debate that Badillo supported the bill, even though this evidence strongly undercuts the notion that § 6-162 was intended as an "anti-Badillo" measure. The court cited the "alacrity" with which the bill moved through the Assembly and Senate (two months), and Governor Rockefeller's quick approval, as somehow probative of the discriminatory intent behind the bill.
It is venerable principle that the legislature is presumed to act constitutionally. See, e.g., Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209, 55 S. Ct. 187, 191, 79 L. Ed. 281 (1934); Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 135-42 (1893). This rule was recently reaffirmed in Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983), where the Court noted that courts should be "reluctant to attribute unconstitutional motives to the state, particularly where a plausible [constitutional] purpose may be discovered from the face of the statute." Id. at 394-95, 103 S. Ct. at 3066. Despite this, in analyzing § 6-162, the district court minimized evidence probative of the legitimacy of the law, and as a result drew all inferences against its constitutionality.
The events leading up to passage of the bill clearly support an inference of legitimate motive. The Proccacino nomination badly hurt the Democratic Party in New York City, and such fluke results were likely to recur as the party system further deteriorated and a broader field of candidates emerged. The application of § 6-162 solely to citywide offices in New York speaks primarily to the ideological diversity within the City and the importance of those offices. The 40% threshold, which Judge Brieant called "diabolic," was obviously chosen because Proccacino received 33% of the vote in 1969, not because of the minority population figures in New York. Finally, the speed with which the bill passed both houses demonstrates its broad-based support rather than any "nefarious" motives; this broad support is also evident from the strong minority legislative vote in favor of the bill.
At its core, the district court's holding seems to rest primarily on the statements in debate, of the bill's opponents. The Supreme Court has, however, repeatedly cautioned--in the analogous context of statutory construction--against placing too much emphasis on the contemporaneous views of a bill's opponents. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n.24, 96 S. Ct. 1375, 1386 n.24, 47 L. Ed. 2d 668 (1976); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95, 71 S. Ct. 745, 750-51, 95 L. Ed. 1035 (1951). Rather, "it is the sponsors that we look to when the meaning of the statutory words is in doubt." Schwegmann Bros., 341 U.S. at 394-95, 71 S. Ct. at 750-51; see N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S. 58, 66, 84 S. Ct. 1063, 1068, 12 L. Ed. 2d 129 (1964). And, in fact, the legislative debates surrounding § 6-162 are filled with lengthy speeches by the law's proponents attesting to its legitimate ideological purpose; there is not a single remark by any proponent of the legislation that so much as hints at any improper purpose. We conclude that the speculations and accusations of the run-off law's few opponents simply do not support an inference of the kind of racial animus discussed in, for example, Arlington Heights, supra, 429 U.S. at 265-68, 97 S. Ct. at 563-65.
Accordingly, we hold that the finding of discriminatory intent in the passage of § 6-162 is clearly erroneous. New York City's run-off law does not violate the Equal Protection Clause.

 So here the Court must start with the presumption that the legislature acts properly and constitutionally. And it should be reluctant to attribute unconstitutional motives to the state, "particularly where plausible [constitutional] purpose may be discovered from the face of the statute." And we are cautioned against placing too much emphasis upon the contemporaneous views of the bill's opponents. Rather, we should look to the statements of the sponsors if the meaning or intent is in doubt. Following such guidance here, we can only conclude that the plaintiffs' have completely failed in their attempt to show that the challenged primary runoff provisions were enacted or maintained for any racially discriminatory purpose.

 The Court has already described the racial balance in the 75 Arkansas counties. Only 16 of those counties have black populations in excess of 30%. Statewide, the black population is 16%. One can see that in a great majority of the counties the thought or idea that a runoff mechanism might have racial significance or consequences would simply not occur to anyone. And likewise it would have no such significance to the legislators representing such counties.

 The evidence in this case and the literature on the subject reveal that the absence of runoff requirements in the law has not generally come to the citizen's or legislator's attention until some bizarre result occurs in an election. Most often it has occurred when some candidate getting 30 to 40 percent of the vote has ended up "nominated" or "elected." See, e.g., the discussion of Mr. Henry Alexander's article, "The Double Primary," supra.2 Whenever a person is elected by a plurality vote in this country, there appears to be a tendency for the citizenry, and their legislative representatives, to become agitated and concerned. This is understandable because Americans have traditionally been schooled in the notion of majority rule. ...

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