Rogers v. Lodge

LOCATION: Burke County

DOCKET NO.: 80-2100
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 458 US 613 (1982)
ARGUED: Feb 23, 1982
DECIDED: Jul 01, 1982

David F. Walbert - Argued the cause for the appellees
E. Freeman Leverett - Argued the cause for the appellants

Facts of the case

Eight black citizens of Burke County, Georgia, challenged the at-large system of elections within the county. Although a substantial number of blacks lived within the county, no minority candidate had ever been elected to the Burke County Board of Commissioners, the chief governing body. To be elected, candidates had to receive a majority of the votes cast in the primary or general election.


Did the system of elections violate the Fourteenth Amendment rights of Burke County's black citizens?

Media for Rogers v. Lodge

Audio Transcription for Oral Argument - February 23, 1982 in Rogers v. Lodge

Warren E. Burger:

We will hear arguments next in Rogers against Lodge.

Mr. Leverett, you may proceed whenever you're ready.

E. Freeman Leverett:

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

The question in this case is whether the Court of Appeals for the Fifth Circuit duly followed this Court's decision in City of Mobile versus Bolden, in holding that the effect of that decision was to still retain the so... called Zimmer criteria of voting dilution as being sufficient to establish an inference rather than simply requiring a presumption.

The appellants in this case respectfully submit that the court of appeals did not follow this Court's decision.

This case was filed in 1976 and attacked as an unconstitutional dilution of Black voting rights the at-large method of electing the five county commissioners of Burke County, Georgia, which had been in effect continuously since 1911.

According to the 1970 census, Burke County has a population, or had a population of 18,235, 60.91 % of which were Black.

This case was tried subsequent to the court of appeals' 1978 decision in Nevett v. Sides, holding that while discriminatory purpose must now be shown in a voting dilution case, that it could still be proven by the four discriminatory impact factors which had been identified in Zimmer versus McKeithen.

However, the trial was before this Court's decision in Mobile holding that the Zimmer criteria were no longer sufficient.

The trial court below specifically held that the 1911 law had not been enacted with a discriminatory purpose, and that Blacks had not been able to show a denial of specific voting processes.

The court concluded, however, based upon the socio-economic factors of Zimmer which the court of appeals previously had resuscitated in Nevett II that the system, quote,

"is being maintained for invidious purposes. "

Prior to the decision in the court of appeals on the appeal, this Court decided Mobile versus Bolden.

Nevertheless, the court of appeals affirmed the district court, concluding that the Zimmer criteria or factors were still sufficient to establish an inference of discriminatory intent, but that the only effect of this Court's decision in Mobile had been that they were no longer sufficient to establish a presumption.

And that secondly, a finding of responsiveness was now of major consideration in that without a finding of responsiveness, the Court said, there could be no establishment of dilution.

This apparently was based upon the fact that in the Zimmer case, there had been no showing of lack of responsiveness.

In this case, the courts below relied upon the same three Zimmer factors which had been found insufficient in Mobile... slating, unresponsiveness and past discrimination.

The added factor relied upon here, which was socio-economic status that had been depressed, was also present in Mobile, although not denominated or articulated as such.

In fact, we submit that the evidence in this case was even stronger than it was in Mobile, for here, unlike Mobile, there was no evidence that there had been efforts to change the system, which as pointed out in Justice White's dissent in Mobile, had been done in such a manner as to indicate the possible inference of discrimination by the timetable or the manner in which the attempted repeal was made, as well as the effort to come in and bolster the system by in 1965 conferring executive responsibilities upon the three city commissioners in Mobile.

Notwithstanding this, the court of appeals adhered to the socio-economic disparity impact analysis of the Zimmer.

In the companion case involving Thomas County, Georgia, the court specifically reversed a holding of the district court which said that Zimmer is no longer sufficient after the Supreme Court's decision in the Mobile case.

We submit that the court of appeals erred in its evaluation of this Court's decision in Mobile, and we say that even assuming that the Zimmer analysis is still sufficient to establish purposeful discrimination, that the plaintiffs in this case failed to carry the burden, and the decision below is clearly erroneous.

Firstly, we submit that under no reading of this Court's decision in the Mobile case, can this distinction between presumption versus inference that the court of appeals read into it be sustained.

Both in Nevett, which is a 1978 decision, as well as in its companion case of Mobile which later was decided by this Court, the court of appeals below stated the Zimmer test in terms of an inference, and applied it as simply one form of circumstantial evidence subject to the clearly erroneous standard of Rule 52 of the Federal Rules of Civil Procedure.

It is significant I think that the plaintiffs do not make any belated or any great effort to support or to defend the decision of the court of appeals on this distinction.

The court's decision continuing to treat the Zimmer criteria as being sufficient is contrary to that court's own decision less than a month earlier--

Warren E. Burger:

We will resume there at 1:00 o'clock, Mr. Leverett.

Counsel, you may continue.

E. Freeman Leverett:

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

I think I was simply commenting when we recessed that the decision of the Fifth Circuit in this case was contrary to a decision of another panel of the same court less than a month earlier in the Escambia County, Florida case, and also, it is contrary to a recent decision of the Fourth Circuit which was decided about a month or so ago.