Jeffers v. Clinton

740 F. Supp. 585, 1990 U.S. Dist. LEXIS 5977, 1990 WL 64195

Opinions

ARNOLD, Circuit Judge.

On December 4, 1989, we filed our first opinion in this voting-rights ease. We held that the plan of apportionment then in effect for the Arkansas General Assembly— the plan adopted by the State Board of Apportionment in 1981 — diluted the votes of black citizens in violation of Section 2 of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. §§ 1973 et seq. We directed the defendants to submit a new, lawful plan in time for use in the 1990 elections. The questions whether the defendants had also violated the Constitution, and whether, if so, the remedy of preclearance under Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c), should be applied, were left to be decided in another opinion. This is that opinion.

We hold that the State of Arkansas has committed a number of constitutional violations of the voting rights of black citizens. Some violations are distant in time, and their effects are in large part no longer with us. Others have already been remedied by judicial action. Still others are not of the type curable by preclearance. But a limited preclearance remedy is still required by this record. The State has systematically and deliberately enacted new majority-vote requirements for municipal offices, in an effort to frustrate black political success in elections traditionally requiring only a plurality to win. We therefore direct that any future laws, standards, or practices designed to enforce or enhance a majority-vote requirement not take effect until the preclearance process has run its course. We further direct that the plan of apportionment for the State Legislature to be adopted by the Board of Apportionment after the 1990 census not take effect until the plaintiffs have had a chance to inspect it and to challenge it in this Court.

I.

We begin by setting out Section 3(c) of the Voting Rights Act, the statute that principally governs this part of the case. It reads as follows:

(c) If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.

Obviously this' case is one in which this statute at least potentially applies. It is a proceeding instituted by aggrieved persons under a statute (the Voting Rights Act), and the purpose of both the statute and the proceeding is to enforce the voting guarantees of the Equal Protection Clause of the Fourteenth Amendment and of Section 1 of the Fifteenth Amendment. Other provisions of the Voting Rights Act automatically apply the preclearance remedy (the requirement of advance federal approval of changes in election laws and practices) to certain states and' political subdivisions. Section 3(c) empowers a court, in a proper case, to impose this remedy on States or political subdivisions not originally covered. Arkansas did not have a literacy test for voting in 1965, when the Voting Rights Act originally became law, and so it was not among those jurisdictions subject to preclearance by the statute. Plaintiffs ask us to subject the State to preclearance in this case. In order to decide this claim, we must determine (1) whether violations of the Fourteenth or Fifteenth Amendments justifying equitable- relief have occurred within the State or any of its political subdivisions; and (2) whether, if so, the remedy of preclearance should be imposed. To those issues we now turn.

II.

A.

Before discussing the proof, we must decide what legal standard applies to the question whether constitutional violations have occurred. All parties agree that intentional racial discrimination is an essential element of plaintiffs’ claim under the Equal Protection Clause of the Fourteenth Amendment. They disagree, however, with respect to the Fifteenth Amendment. Plaintiffs take the position that a discriminatory impact on black voters is sufficient to establish a Fifteenth Amendment claim. This is essentially the same legal standard as the “results test” enacted as a matter of statute by the 1982 amendments to the Voting Rights Act. Defendants, on the other hand, argue that" intentional racial discrimination must be shown.

We think defendants have the better of the argument on this point. We look first to the text of Section 1 of the Fifteenth Amendment. It reads:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

For purposes of comparison, we also set out here the text of the Equal Protection Clause of the Fourteenth Amendment:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

If the language of the Fifteenth Amendment cuts either way on this issue, it points towards requiring proof of racial animus. The Fourteenth Amendment, which concededly requires such proof, speaks only in terms of action and result. It might have been (though it has not been) rather easily construed to forbid discriminatory impact, without regard to the intention of the defendants. But the Fifteenth Amendment speaks not merely in terms of action and result (denial or abridgement of the right to vote), but specifies as well that the prohibited denial or abridgement must be “on account of” race. The phrase “on account of,” we think, is naturally read as referring to the reason for the action taken, the intention behind it. We do not pretend, however, that this textual argument is conclusive: “on account of” could also refer strictly to causation. In this sense, if a racial minority is disproportionately affected by, say, a poll tax, one might say that the poll tax abridges the right to vote on account of, that is, as a result of, race.

So, as usually happens, the words of the Constitution do not themselves conclusively answer the question. Nor do the parties cite any evidence of context, of the intention of the Framers, on this point. We look, therefore, to constitutional tradition, to precedent, and here we find a rather clear answer. It seems to have been generally accepted, up until about ten years ago, anyway, that invidious motivation is an essential element of a Fifteenth Amendment claim. An early case, Guinn v. United States, 238 U.S. 347, 363-65, 35 S.Ct. 926, 930-31, 59 L.Ed. 1340 (1915) (invalidating the “grandfather clause”), clearly says so. One of the last major Supreme Court opinions on voting rights before the enactment of the Voting Rights Act is, in our opinion, to the same effect. In Lassiter v. Northampton Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), a unanimous opinion written by Justice Douglas, the Court upheld North Carolina’s literacy test for voting. In doing so, it used language indicating that deliberate racial discrimination was an essential element of proof for those attacking the literacy-test statute: the law evidenced a legitimate concern for an informed electorate, and was “not a calculated scheme to lay springes for the citizen.” Id. at 54, 79 S.Ct. at 991. This language comes at the end of the Court’s opinion, in a sort of peroration, and seems clearly intended to summarize the essential reason for its holding. And if discriminatory impact alone had been sufficient to show a constitutional violation, it is hard to see how the literacy test could have survived.

In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), however, the question was squarely presented, and neither side mustered a clear majority of the Court. A plurality of four Justices, speaking through Justice Stewart’s lead opinion, firmly advocated the intent standard. Id. at 61-65, 100 S.Ct. at 1496-1499. Justices Marshall and Brennan, in dissent, argued for its rejection. Id. at 129-35, 100 S.Ct. at 1533-36. Justice Stevens took an intermediate position. Id. at 90, 100 S.Ct. at 1511. Justices White and Blackmun, writing separately, seemed to assume that intent was a requirement, but did not say so unequivocally. Id. at 94-103, 80, 100 S.Ct. at 1513-1518, 1506.

In the face of this uncertain guidance, what is a lower court to do? We read the signs as pointing rather firmly towards a requirement that intent be proved. Mere numbers, short of a majority, are not conclusive, but it is of some relevance that more Members of the Court thought intent was required in City of Mobile, than took the opposite position. More importantly, we find the reasoning of the plurality opinion persuasive. And pre-Mobile authority, as we read it, is strongly in accord. This reading of the Constitution has the virtue of distinguishing between constitutional claims, which require a showing of intent, and statutory claims, which, after the 1982 amendments, do not. Under Section 2 of the Fifteenth Amendment, Congress has the power, which it has exercised in the Voting Rights Act, to prohibit practices which would not have been proscribed by Section 1 of the Amendment ex proprio vigore.

We hold that the same proof of conscious racial discrimination required to show a violation of the Equal Protection Clause of the Fourteenth Amendment is also required in Fifteenth Amendment cases. Accord, Nevett v. Sides, 571 F.2d 209, 220-21 (5th Cir.1978). This does not mean that racial discrimination must be the sole motive behind the action challenged. It need only be one of the motivating factors but for which the action would not have been taken. In addition, there will rarely be direct proof of the forbidden motive. Courts must be sensitive to circumstantial evidence from which a reasonable inference of discriminatory intent may be drawn. That a given action has a disparate impact, and that State officials knew that it would, can in a proper ease, depending on the other proof in the record, be an important part of such circumstantial evidence— especially if there is no reasonable nondiscriminatory justification for what has been done. Finally, we should not allow a natural reluctance to attribute illicit motives to high State officials to deter us from our duty. The burden of proof is not artificially high. It is only the ordinary civil burden of a preponderance of the evidence.

B.

Plaintiffs’ first claim of intentionally discriminatory action is the 1981 plan of apportionment itself. The evidence supporting plaintiffs’ position is substantial. The Board of Apportionment had adopted a set of guidelines that included an admonition against dilution of minority votes. The Board was thoroughly familiar with the political and demographic situation obtaining in the various parts of the State, ■and it had available to it census figures on the racial breakdown of each township or smaller census unit. Although questions of minority representation were brought before the Board repeatedly, it took no affirmative action to ensure that any districts with a majority-black voting-age population were created, apart from one Senate district, one three-member House district in Pulaski County, and one House district in Jefferson County. Yet, the Board must have known that a significant number of additional majority-black districts could have been created. Although voting-age numbers were not before the Board as such, they could easily have been developed. Further, the Board must have known that a majority-black district could have been created in Crittenden, County, but it chose, instead, to create a two-member district in which the population would not be majority black. And district 100, including almost all of Chicot County, part of Ashley County, and two townships in Desha County, could easily have been made majority black. Wilmot Township in Ashley County could have been substituted for the two Desha County townships, and this would have done the trick.

These and similar concerns were definitely brought to the attention of the Board. At the Board’s public hearings, both black and white citizens strongly advocated single-member districts. At the public hearing in Pine Bluff, Mr. Elijah Coleman, a leading black citizen, urged that single-member majority-black districts be created, over and above the one such district already in existence. A coalition led by Ms. Brownie Ledbetter, called the Arkansas Committee for Fair Representation, took a similar position. This coalition, which included various citizens’ groups like the NAACP, the National Organization of Women, the Arkansas Education Association, the AFL-CIO, and the Urban League, asked for a postponement in the final adoption of the plan, in order to allow it to gather information to address the problem of minority representation. This request was denied. The same group, with the support of Governor White, appeared at the final meeting of the Board of Apportionment and asked to speak. This request was also denied. The Board went' ahead and adopted its plan, over the dissent of Governor White, who voiced many of the same concerns, among others.

There -is, however, strong evidence on the other side of the question as well. The factor uppermost in the Board’s mind was that the districts created had to be substantially equal in population. Data on the racial makeup of each area were available, but they were not in the form of voting-age statistics, nor is it apparent that anyone provided the Board with information in this form. In addition to population equality, the Board was also concerned with natural boundaries, political boundaries, and stability of representation. It took the 1971 apportionment map as a starting point, considered the residence of incumbent legislators, especially those who were politically powerful and had seniority, and tried to come up with a plan that would disturb the existing allocation of political power as little as possible, all while complying with the over-arching requirement of one person, one vote. The Board did not specifically calculate the minority population of each of its proposed districts before adopting them, as it could well have done, but the law in effect at the time, represented most recently by the City of Mobile decision, did not, in the Board’s view, require it to make such calculations. When the Board refused an extension of time and adopted its final plan at the end of June 1981, it felt itself under some time pressure: the time deadline set by the State Constitution, Article VIII, § 4 (February 1, 1981), had long since passed. Political pressure was building daily, and the Board thought it desirable to bring the matter to a swift conclusion. It refused to give floor time to the Arkansas Committee for Fair Representation, even though the rule against allowing individual citizens to address the Board was not uniformly followed, but members of the Board had already been approached individually by members of the Committee, and it can fairly be assumed that the Board was familiar with the Committee’s position.

The rejection of Governor White’s views by the two Democratic members of the Board, Attorney General Steve Clark and Secretary of State Paul Riviere, was due in large part to the natural political antagonism between the parties. Frank White was only the second Republican to take part in the deliberations of the Board of Apportionment since the adoption of the Constitution of 1874. It is perhaps unfortunate, but it is nevertheless true, that one political party will often automatically oppose what another one proposes, and we think this factor accounted for much of what happened here. The two Democrats on the Board thought that Governor White was primarily motivated by a desire to improve Republican chances of electing members of the Legislature, and this is something they wanted to avoid.

The stickiest aspect of the case from the defendants’ point of view is the decision to create a multi-member district in Crittenden County. The Board had decided, in general, that multi-member districts were not desirable. Creation of two single-member districts in Crittenden County would have required that the City of West Memphis be split, but other cities, including Little Rock, Pine Bluff, and El Dorado, were split. (On the other hand, multi-member districts were used to avoid splitting Fayetteville, Hot Springs, and Jonesboro.) Plaintiffs offer Union County, in which El Dorado is located, as a particular contrast to Crittenden County. Why, they say, were two single-member districts created in Union County, but not in Crittenden County? General Clark’s explanation for this seeming disparity is that there was a strong community of interest throughout Crittenden County, and that Union County is the largest county in the State in geographic area. It is true, in addition, that Crittenden County had traditionally been given multi-member representation. Under the 1971 plan, Crittenden County made up a three-member district.

We have pondered this question of fact in the context of the entire record, including the live testimony of Attorney General Clark and Governor White, the deposition of Secretary of State Paul Riviere, and the proof as to the Senate Report or Zimmer factors detailed in our first opinion in this case. We are not persuaded that plaintiffs' proof is any stronger than defendants’ on the point. Whether there is a greater community of interest in Crittenden County as a whole than in Union County as a whole is certainly debatable, but Attorney General Clark, who comes from Eastern Arkansas, could well have thought so. Eastern Arkansas probably is more homogeneous economically and culturally than South Arkansas. Both Governor White and Attorney General Clark explicitly denied any intention to discriminate on the basis of race. These denials cannot, of course, be given controlling weight. But neither can they be ignored. We are not persuaded that the Board was motivated by an affirmative intention to harm black voting rights. Its attitude, instead, can best be described as indifference. It took no action to enhance minority voting rights, but neither did it move in any positive way to dilute them. The result, as explained in our first opinion, was in fact to dilute them, but result is not the same as intention. We find that plaintiffs have not carried their burden on this issue.

Plaintiffs argue, in addition, that deliberate indifference to black voting rights, in the form of a knowing failure to correct dilution, is the legal equivalent of intentional discrimination. In support of this position they cite Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), a voting case under the Equal Protection Clause of the Fourteenth Amendment. We do not so read the case. Rogers is written from the point of view of an appellate court reviewing a finding of fact that intentional discrimination has occurred. The Supreme Court, in the course of an opinion holding that this finding was not clearly erroneous, referred to evidence that defendants knowingly maintained an electoral plan that failed to redress acknowledged vote dilution. We do not read Rogers as creating a new legal standard. Rather, it simply describes one kind of evidence that can support an ultimate finding of intentional discrimination. Here, of course, we function as a trial court, as the triers of fact. It is our task to consider all the evidence, including evidence of a deliberate failure to correct vote dilution, and decide whether intentional discrimination has been proved. For reasons we have attempted to explain, we do not believe that it has been. We therefore hold that the 1981 plan of apportionment did not violate either the Fourteenth or the Fifteenth Amendments.

C.

In defendants’ view, this should be the end of the case. The complaint was brought to challenge, under the Voting Rights Act and the Constitution, the 1981 plan of apportionment. If that plan was not unconstitutionally adopted, there are no violations of the Constitution justifying equitable relief, and preclearance would not be appropriate under Section 3(c) of the Act. Other alleged constitutional violations with respect to election laws and practices are beside the point, because, the argument runs, they were not pleaded in the complaint. We reject this view of the law. At least since the time of the pretrial conference, which was held in open court, and at which all sides freely discussed all of the legal and factual issues, it has been clear that plaintiffs would attempt to prove a pattern of statutory and constitutional violations of their voting rights. All of the issues were on the table before trial, defendants had a full and adequate opportunity to offer proof on them, and, if in fact the complaint is not broad enough to encompass them, the pleadings should now be deemed amended to conform with the proof. See Fed.R.Civ.P. 15(c).

It is also possible to argue, entirely aside from the state of pleading and proof, that Section 3(c) does not apply at all unless a violation of the Constitution is shown with respect to the very election law or practice that is the principal focus of the complaint. This case was brought to enforce the voting guarantees of the statute and the Constitution with respect to the plan of apportionment adopted in 1981. The argument is that proof with respect to other election laws and practices is certainly relevant under the Senate Report and the Zimmer principles, but it comes in only to bolster or rebut either side’s case on the main issue: such proof cannot itself be the basis of preclearance. We do not agree with this reading of the statute. The phrase “violations of the fourteenth or fifteenth amendment justifying equitable relief,” which the statute uses as the triggering condition for preclearance, is not limited at all. If, in the course of their attack on the 1981 plan of apportionment, plaintiffs have succeeded in showing other constitutional violations, and if those violations, under equitable principles to be discussed later in this opinion, are sufficiently serious and widespread to justify the drastic remedy of preclearance, we do not think the statute should be read in such a crabbed way as to rule out such relief as a matter of law. Certainly the words of the statute do not require such a reading, and it would be inconsistent with its broad remedial purpose.

III.

We therefore now propose to discuss each of the other constitutional violations asserted by the plaintiffs. In each instance, it will be our duty to make a finding whether the challenged law or practice was motivated by a racially discriminatory purpose, because, as we have explained above, that is an essential element of a constitutional violation in this context. A number of the claims need be discussed only briefly, because they have already been fully addressed in court opinions, either in our previous opinion in this case, or in opinions in other cases. We have, for example, already found that the statutory regulations affecting the absentee ballot enacted in 1987 were not the result of a racially discriminatory purpose. Therefore, no constitutional violation occurred in connection with the enactment of this law. On the other hand, our previous opinion also found certain local violations, including a racially motivated prosecution in Lee County against Roy Lewellen and racial intimidation in Desha County in 1976 against Carol Willis, a candidate for county judge. (Defendants, incidentally, argue that the acts of local officials cannot be attributed to the State, and that something done by, say, an incumbent county judge is not relevant to the decision whether to impose the preelearance remedy in this case. We reject this argument. Cities, counties, and other local subdivisions are mere creatures of the State. Only the State is sovereign, and it can create or abolish local subdivisions at will. For purposes of the Fourteenth and Fifteenth Amendments, at least in the voting context, it is our opinion that no legal distinction exists between State and local officials.)

Previous cases have resulted in findings of other constitutional violations. We briefly refer to these cases, which are cited and discussed in our previous opinion. Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.), aff'd mem., 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982), held invalid as racially motivated the at-large system of election of aldermen in West Helena, a city in Phillips County. And Sherpell v. Humnoke School Dist. No. 5, 619 F.Supp. 670, 680-81 (E.D.Ark.1985), appeal dismissed, 814 F.2d 538 (8th Cir.1987), reached a similar conclusion with respect to the at-large election of school-board members in the Humnoke School District of Lonoke County.

Plaintiffs also claim a number of constitutional violations that we did not discuss in our first opinion. They may be conveniently divided into two groups: (1) state laws requiring a majority vote for nomination or election to public office; and (2) a variety of local incidents and practices in the area of the State known as the Delta which, plaintiffs say, were intended to and have had the effect of suppressing black political activity.

1. Majority-Vote Requirements. The principal majority-vote requirement now in effect in Arkansas has to do with party nominations, rather than elections proper. Under Section 5 of Amendment 29 of the Constitution of Arkansas, candidates may get on the ballot at a general election in one of three ways: by nomination by a party convention; by nomination by a party primary election; or by petition. If a party chooses (and they commonly do) to select its nominees in a primary election, the nominee must receive a majority of all the votes cast at the primary election. So, if there are more than two candidates, and no one receives an absolute majority of all the votes cast in the first, or preferential, primary, another primary election, known as the run-off or the general primary, must be held. The two top candidates run in this second primary, and the winner becomes the nominee. The statute carrying into effect this constitutional provision is now codified as Ark. Code Ann. § 7-7-202 (1987).

In recent years, such majority-vote requirements have become an issue in the context of minority voting rights. Two kinds of attacks are made. First, it is claimed that such requirements have the effect of reducing minority political opportunity, in violation of Section 2 of the Voting Rights Act. No such claim is before us in this case.¹ Second, it is claimed that majority-vote requirements were either adopted or maintained for the unconstitutional purpose of suppressing or discouraging black political activity. A substantial body of opinion takes the position that “[t]he majority vote requirement has its roots in nineteenth century southern white racism____” McDonald, The Majority Vote Requirement: Its Use and Abuse in the South, 17 The Urban Lawyer 429, 429 (1985).²

There is no substantial reason to believe that the majority-vote requirement in Arkansas was originally enacted to prevent black political success. In many Southern states, majority-vote requirements were instituted at the turn of the century as part of a package of measures designed to disenfranchise black voters. See McDonald, supra, at 430-32. This was not the case in Arkansas. Amendment 29 was adopted by a vote of the people in 1938, after the nomination of Carl Bailey for Governor in 1936 with less than 32% of the votes in the Democratic Primary. (At that time, the Democratic nomination for Governor was the practical equivalent of election, and it still is for some offices.) Blacks had already been effectively disenfranchised by the whites-only Democratic Party primary, then thought to be legal under federal law. The majority-vote requirement was wholly unnecessary for this purpose. We find that Section 5 of Amendment 29 and its implementing statutes were not enacted for racially invidious purposes.³

Plaintiff also argue that the general majority-vote requirement for party primaries was maintained for a discriminatory purpose. After white primaries became unlawful, they say, the State turned to other devices to suppress black political activity, including the poll tax and the run-off primary. We do not so find. The majority-vote requirement is in the state Constitution. The Legislature could not then and cannot now change it. So the argument must be that, after 1944, the people. of Arkansas, but for their desire to thwart black political opportunity, would have voted to repeal Section 5 of Amendment 29 and go back to the pre-1938 system of nomination by plurality. We disagree. This argument evinces a fundamental misunderstanding of the history and nature of Arkansas politics. The run-off primary has become a permanent fixture of party politics in this State. It reflects a deep-seated attachment to the principle of majority rule, one of the cardinal pillars of democracy. It was neither instituted nor maintained for racial reasons. As a rule, county, district, and State offices are filled by partisan elections, and for most of them the Democratic nomination is still a virtual assurance of election in November. The run-off primary system ensures that the election will not be determined by a mere plurality of those who vote in a party primary. A similar rule is unnecessary for general elections, because there are almost never more than two substantial candidates in the general election for offices contested by party nominees. . We reject plaintiffs’ constitutional attack on the run-off system for party nominees.

The result is otherwise, however, as to other run-off statutes now on the books, Ark. Code Ann. §§ 7-5-106, 14-42-206, (1987), which apply to general elections for municipal and county offices.⁴ Traditionally, municipal offices, including mayor, council member, and municipal judge, were filled by nonpartisan election, conducted at the general election in November. The person receiving the highest number of votes won. A majority was not required. This situation began to change in 1973. In November 1972 P.A. (Les) Hollingsworth, a black lawyer who later served as an Associate Justice of the Supreme Court of Arkansas, was elected to the Little Rock City Board of Directors by a plurality. The General Assembly responded in its next session, enacting Act 168 of 1973, requiring a majority vote for such offices.⁵

In 1975, a vacancy occurred in the office of Mayor of Pine Bluff, and Robert Handley announced his candidacy. The Rev. Mr. Handley, a black man, appeared to be a strong contender. The Legislature acted promptly. In advance of the special election for Mayor of Pine Bluff, it passed Act 269 of 1975, requiring a majority vote.⁶ Mr. Handley was defeated in a run-off.

In November of 1982, Leo Chitman became the first black person to be elected Mayor of West Memphis. He ran first among five candidates but did not get a majority of the votes. He unseated a white incumbent. White candidates had won by a plurality in the past, and no legislative reaction occurred. But when Mr. Chitman was elected Mayor in the same way, the Legislature promptly responded. It passed Act 909 of 1983, now codified as Ark.Code Ann. § 7-5-106, to require a majority vote for election to both county and municipal offices.

And finally, in 1988 the Rev. Marion Humphrey, a black lawyer, was elected Municipal Judge of Little Rock by a plurality. Little Rock, see p. 594 n. 4 supra, had not been subject to a majority-vote requirement. But after Judge Humphrey’s election, the Legislature reacted quickly. It passed Act 905 of 1989, subjecting municipal offices in all cities and towns to a majority-vote requirement. See Ark.Code Ann. § 14-42-206.

We cannot ignore the pattern formed by these enactments. Devotion to majority rule for local offices lay dormant as long as the plurality system produced white officeholders. But whenever black candidates used this system successfully — and victory by a plurality has been virtually- their only chance at success in at-large elections in majority-white cities — the response was swift and certain. Laws were passed in an attempt to close off this avenue of black political victory. This series of laws represents a systematic and deliberate attempt to reduce black political opportunity. Such an attempt is plainly unconstitutional. It replaces a system in which blacks could and did succeed, with one in which they almost certainly cannot. The inference of racial motivation is inescapable.⁷

2. Local Violations. Finally, plaintiffs argue, citing a large amount of anecdotal and other evidence, that local officials have taken numerous actions for the purpose of thwarting black political opportunity. We have already referred to the 1976 race for County Judge in Desha County and to the 1985-86 Lewellen case in Lee County. A number of other situations and incidents need to be examined.

The most convenient way of discussing the evidence with respect to the claimed local violations is to consider the testimony with regard to each county in the affected area of the State. This method of analysis will prolong this opinion, but the questions are important, and the parties and the public are entitled to detailed findings of fact.

At the outset, we put to one side Pulaski, Jefferson, and Ouachita Counties. No substantial evidence of manipulation of the electoral system by local officials with the purpose of thwarting black political activity was presented with respect to any of these three counties. The evidence with respect to nine other counties deserves discussion, however, and we now describe that evidence.

Phillips County. Within two weeks of the 1986 primary election, a polling place for a very large black ward was moved. No personal notice of the move was given to voters. The polling place had been at the Catholic Church, but no notice was placed on the door of the church to indicate the new polling place, the Arkansas Street Fire Station. On the other hand, the move was only a distance of one and one-half blocks, and notice of the move was published in the newspaper. This move confused some voters, and this effect was likely more pronounced among' black voters, a group in which the illiteracy rate is higher, but we are not persuaded that the polling places were moved for the deliberate purpose of reducing the black vote. There is no evidence that any different procedures have ever been followed with respect to the moving of polling places, and we believe the incident represents insensitivity to the problems of poor voters, rather than a conscious effort to impede black participation in the political process.

There was also testimony of confusion in the general election of 1986 with respect to “voter aids.” This phrase refers to written material, such as sample ballots, that are customarily handed out to some voters immediately before they go to the polls. The use of such “aids” is legal, but it is not legal to electioneer in a polling place, so if voters are observed showing the “aids” to other voters in a polling place, an arguable violation of election laws takes place. In one instance, the Chairman of the Election Commission had instructed an election official to take away the voter aids, claiming that they were being flashed around. After a protest, this instruction was withdrawn. Again, we find no persuasive evidence of discriminatory intent. We note that there are now eleven black members on the Democratic Central Committee for Phillips County, and this is significant, because the Democratic Party runs its own primaries, and also controls two out of the three seats on the County Election Commission, which runs the general elections. There are 20 to 25 volunteer deputy voter registrars in Phillips County, they are permitted to go anywhere in the County to register voters, and none of them has ever been terminated. Nor has anyone ever requested to be made a volunteer deputy and been refused. The volunteer deputies are split almost evenly by race. Although litigation was necessary to produce the volunteer-deputy system, it now seems to be working well.

Lee County. At one time, discriminatory interference with black voters in Lee County was widespread. In evidence before us is the report of the Arkansas State Advisory Committee to the United States Commission on Civil Rights, published in March of 1974. PX.59. The report concludes, among other things, as follows:

[Bjlacks in Lee County were discriminated against through the following means:

1. the interference of black poll watchers by local law enforcement officials and election officials;

2. the tampering of ballot boxes;

3. the harassment and intimidation of black voters; and

4. the failure of the election commission to provide for adequate accommodations.

PX 59, p. 34.

In an order filed before the trial of this case, we overruled plaintiffs’ motion that we take judicial notice of the conclusions contained in the report. The report is in evidence, however, as a report of an official body charged by statute with the responsibility of making findings. See Fed.R.Evid. 803(8); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). We find the report persuasive evidence. Similar events, including the attempt to intimidate Roy Lewellen in his race for the Senate, have continued to occur. But there is no doubt that the situation is changing for the better. The prosecuting attorney who was involved in the harassment against Mr. Lewellen is no longer in office. His successor is one of the few white public officials in the State who have publicly endorsed a black candidate for office, and he has appointed a black lawyer, Oily Neal, as deputy prosecuting attorney for Lee County. Another black lawyer, Kathleen Bell, has become a Circuit and Chancery Judge, exercising juvenile jurisdiction. Places that blacks (and some whites) consider inhospitable — for example, a country-and-western nightclub— have been used as polling places, but, as in the case of Phillips County, we are not persuaded that this choice was deliberately designed to reduce the black vote. On the whole, though the question is close, we are not persuaded that there now exist constitutional violations justifying equitable relief. The report of the Advisory Committee describes a situation that is more than 15 years old, and the most recent constitutional violation, the Lewellen case, has been remedied both by a preliminary injunction issued by this Court and by the subsequent withdrawal of the charges.

Crittenden County. We heard a great deal of testimony about political conflict in this County, some of it breaking down, in practice, along racial lines because of the prevalence of block voting by both whites and blacks. The conflict revolves around details of election practices, including appointment of election officials, the technicalities of voter registration, purging of voter lists to eliminate voters who have died, moved away, or simply have not voted, and the like. One incident in dispute involved the mailing out of absentee ballots shortly before an election. Some of them were mailed out with insufficient postage, and the charge was made that Sally Brady, the County Clerk (the official in charge of voter registration and related matters), deliberately left off the postage, in order to ensure that the ballots would not be delivered. This incident is a good example of the high level of distrust in political matters between the races in Crittenden County. Each side is willing to believe the worst about the other. In this particular case, we find no deliberate violation by the County Clerk. She testified that the proper postage was left off by mistake, not deliberately, and we believe her. All of the voters in question eventually got their ballots, and the County Clerk told voters that if they had to pay postage due, she would reimburse them. A black deputy voter registrar was terminated, but Mrs. Brady believed, perhaps wrongly, that she had good cause. A white deputy voter registrar has also been terminated.

Politics in Crittenden County is serious, often rough. Fierce battles between entrenched forces, known to the opposition as a “machine,” and challengers are frequent. Some of these battles, but by no means all of them, are racially polarized. Those who are in office defend themselves vigorously. Perhaps they have used the election laws as tools in this fight. Perhaps they have interpreted these laws strictly in order to make political insurgency difficult. We do not believe, however, that this activity is especially keyed to race. White candidates and groups challenging the political establishment face the same hurdles. While we could wish for more trust among citizens, we do not find any present violations of the Fifteenth Amendment justifying equitable relief in Crittenden County.

Chicot County. Problems with respect to the location of polling places are similar to those described above in connection with Phillips County. Some polling places have been moved on short notice, and some of them are in places inconvenient to black voters. In this regard, however, we credit the testimony of Kathy Johnson, County Clerk of Chicot County. In her view, good reasons existed, reasons having nothing to do with race, for each change that was made. Greater efforts could be made to locate polling places in areas where black people live, and public officials have a duty to become familiar with all parts of their constituency, so that all parts can be properly served. But we are not persuaded that problems with polling places in Chicot County have been due to intentional racial discrimination.

There were also complaints that the political life of the County is dominated by one white family, the Gibsons. Charles Sidney Gibson is Chairman of the Democratic Central Committee and City Attorney of Dermott. He also serves as Chairman of the County Election Commission, traditionally a position assumed by whoever is Chairman of the Democratic Central Committee. The State Senator, Jack Gibson, sponsored a bill in the Legislature to locate a landfill in the area. The bill was not popular with black citizens, who objected to the landfill’s location. We see no constitutional violation, with respect to voting or otherwise, in this incident. In the end, the bill did not pass, in large part because of the efforts of Bynum Gibson, a State Representative. The Gibsons, it seems, like many families, are not so monolithic as they appear to others. In fact, one of the plaintiffs’ witnesses praised Representative Bynum Gibson for his responsiveness to voters, including black voters.

Finally, difficulties with regard to “voting booths” were discussed at the trial. Voting in Chicot County is by paper ballot. In some precincts, voters receive their ballots and sit at tables to mark them. It is possible for election officials to look over the shoulders of voters during this process. At some times and at some precincts there are booths that give a measure of privacy, or “frames,” apparently some sort of divider between portions of the table at which votes are cast, for the same purpose. The absence of these booths or frames has caused some black voters to feel intimidated, lest their votes should become known. We do not doubt that this can be a serious problem, and election officials should do their utmost to see that the privacy of the ballot is respected. We are not persuaded, however, that these problems are more prevalent in predominantly black precincts than in predominantly white precincts, or that they are the result of an intentional effort to intimidate black voters.

We note also that deputy registrars are now being freely appointed in Chicot County, and this is a development of great significance for the future. There are 12 volunteer deputies, ten of whom are black. Their ability to register voters is in no way restricted. The County Clerk has never refused to appoint any person who volunteered, nor has she ever terminated any volunteer deputy.

In sum, we conclude that no present constitutional violations with respect to voting rights, justifying equitable relief, have been proved in Chicot County.

Mississippi County. Polling places have been moved, and this causes confusion among voters, probably more confusion among black voters than among whites. Some election officials are employers of some voters, and voters fear a lack of privacy. As Lonnie Middlebrook, Jr., a member of the Blytheville City Council, testified, such fear is in itself a form of intimidation. On the other hand, Mr. Middlebrook knew of no instance in which anyone’s vote actually became known. This sort of apprehension, resulting from natural fears on the part of those in a position of economic dependence, can be a serious problem, but it seems to us more in the nature of disparate impact than of deliberate discrimination. There was no testimony of any actual threat against a voter.

Many blacks have served as election officials, but they tend not to be appointed to serve at white boxes, while white people are represented as officials at all boxes. But according to JoAnn Morgan, County Clerk of Mississippi County, there is actually a shortage of election officials, and she is seeking volunteers for this purpose. She has never received a complaint from a black person concerning the conduct of a white poll worker. Polling places have been changed, but a list of the changes is printed in the newspaper, and the County Clerk has written many letters to individual voters explaining to them where they should vote. The polling places have also been consolidated for some elections, but this occurs in school elections and special elections conducted on a single issue, when the turnout is traditionally low, so there is a legitimate reason for this consolidation. There are 46 active volunteer deputy registrars, 18 of whom are black. Their movements are not restricted at all, except that the County is divided into two districts, Osceola and Chickasawba, which means that there are two separate sets of voter-registration books. A deputy registrar is on call at all times in the Social Services office. Ms. Morgan has never turned down any qualified elector who wanted to be a deputy registrar, and she has asked publicly numerous times for volunteers. We find no present constitutional violations with respect to the right to vote in Mississippi County.

St. Francis County. Larry S. Bryant, a former member of the City Council of Forrest City, testified about problems experienced in his political races. In 1984, when he was re-elected by a close margin against a white opponent, a 50-vote error was made in the initial count. After Mr. Bryant complained, though, the error was corrected. In 1986, he ran for Mayor and lost. During this campaign, his life 'was threatened, and he received phone calls using racial epithets and threatening to “blow him away.”

These incidents do not amount to constitutional violations. There is no evidence that the telephone calls or threats came from any public official, or anyone acting in concert with or with the knowledge of a public official. Threats of this kind, we agree, are extremely serious, and their significance should not be minimized. They amount to criminal violations of federal statutes designed to protect the right to vote. But in the absence of a showing of state action, they are not violations of the Fifteenth Amendment.

Desha County. We have already referred to the campaign of Carol Willis for county judge. We note, in addition, the testimony of his brother, Andrew James Willis. Andrew Willis described an incident at a polling place on election day in 1976. A white election official pulled a knife on him and had to be restrained by others who were present. The police were there, but they made no attempt to investigate the incident. Mr. Willis tried to press charges, but the deputy prosecuting attorney, who was the son-in-law of the incumbent county judge (Carol Willis’s opponent), threatened to charge Andrew Willis with criminal trespass instead. After the election, the family business suffered, partly because of official retaliation by the County-

There have unquestionably been serious constitutional violations with respect to the right to vote in Desha County. There is, however, no evidence of any specific incident more recent than 1976. The county judge who defeated Carol Willis retired early in the 1980s. Registrars have now been appointed, and some of them are black, though this appears to be a relatively recent development. The issue is whether the constitutional violations proved justify equitable relief in the present-day situation. One relevant indication is the improved atmosphere in which Carol Willis’s race for circuit clerk occurred, in 1978. This race was free of the racial abuse and flare-ups that characterized the 1976 race. Mr. Willis’s white opponent ran a good campaign. The voting patterns were essentially the same as in 1976. We conclude that the need for equitable relief in 1990 has not been proved.

Ashley County. We heard the testimony of Clinton Harris, who has been Mayor of Wilmot for three years. In 1976, when Mr. Harris first ran for the Wilmot City Council, his white opponent withdrew because he did not live within the city limits. The town was then rezoned in order to enable another white man to run against Mr. Harris, and this white opponent was elected. Then, in 1986, a group of blacks, acting on their understanding of the law, were helping voters in a polling place. A large gathering of whites began to disrupt the voting. They announced that they were changing the laws at this polling place only, to prevent voters from getting help in this manner. One member of this group physically prevented Mayor Harris from re-entering the polling place. Mayor Harris has also experienced serious difficulties in receiving an appointment as a deputy registrar. He was refused at least eight times, finally obtaining the appointment in September of 1986. He was then able to register 60 people in two days, all black, and he credits his election victory to that fact.

Mayor Harris’s testimony was not rebutted. We found him believable. We therefore find that there have been constitutional violations of the right to vote in Ashley County. Many of the people who took part in the 1986 incident described above were private citizens, but the Sheriff of the County apparently cooperated with them, as did the Election Commission, which is all white. Whether this is the sort of proof that would justify the remedy of preclearance, is a question we shall discuss later in this opinion.

Columbia County. The Reverend Ellihue Gaylord, Sr., State President of the NAACP and a member of the organization’s national board, testified about political conditions in Columbia County. Before 1982, he said, “we tried” to be appointed deputy registrars, but the County Clerk “turned us down.” Suit'was filed, and as a result the Reverend Mr. Gaylord and two other black people were deputized. There are now 12 deputy registrars in the County, 11 of whom are black, and their efforts have registered over -3,000 voters since 1982. There is no real evidence in this testimony of any constitutional violation, and we find none.

IV.

The facts we have found in this and our prior opinion set the stage for the question we must now answer: Should the State or any part of it be subjected to preclearance? The governing words of the statute, 42 U.S.C. § 1973a(e), are these: if “the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to' such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standardj practice, or procedure with respect to voting” may be changed without preclearance. “Preclearance” means either a finding by this- Court that the qualification, etc., does not have the purpose and will not have the effect of denying the right to vote on account of race or color, or in contravention of . the Voting Rights Act, or a failure by the Attorney General of the United States to object to, the qualification, etc., within 60 days.

We agree with plaintiffs that both State and local violations of the voting guarantees of the Fourteenth and Fifteenth Amendments must be taken into account. The statute does not say that the State or its officials must be-guilty of the violations, but only that the violations must “have occurred within the territory” of the State. (Emphasis ours.) And besides, as we have already held, officials of local governments are State officials for present purposes; local governments are arms of the State and exist only at its sufferance. We also think that more than one violation must be shown. The statute uses the plural (“violations”), and it would be strange if a single infringement could subject a State to such strong medicine.

Beyond that, authority is scant. We are aware of no reported case discussing the standards for imposing preclearance. Indeed, there seems to be no case in which a court has subjected an entire State to preclearance (which is what plaintiffs request here, at least as their first choice), with the exception of Sanchez v. Anaya, Civ. No. 82-0067M (D.N.M.) (three-judge court) (decree entered December 17, 1984). There, the Court found the State’s legislative apportionment in violation of the Voting Rights Act and required preclearance of any new redistricting plan for a period of ten years. Preclearance was not required as to any other voting laws or practices, so the case seems to indicate that preclearance, if it is to be imposed at all, need not be an all-or-nothing proposition. On the other hand, the final judgment was entered by stipulation, a circumstance which reduces its weight as a precedent.

There have unquestionably been some constitutional violations (plural) in Arkansas, even if the inquiry is limited to recent times. The series of four majority-vote statutes passed to convert to a run-off system those plurality elections in which blacks were succeeding, establishes this beyond a doubt. Is preclearance then mandatory under the statute? It could be read that way. It says that if violations justifying equitable relief have been shown, the court “shall” retain jurisdiction, and preclearance shall apply during the period for which jurisdiction is retained. Plaintiffs have not requested equitable relief with respect to these particular majority-vote statutes, except for preclearance itself, but equitable relief in the nature of an injunction or a declaratory judgment would clearly be justified, especially to prevent the statutes from being used in the future to deprive a black candidate receiving a plurality of the office for which he or-she was running.

We do not think that the word “shall” should be read to strip us of all discretion.⁸ It is standard doctrine that statutes stating that courts “shall” grant equitable relief upon the occurrence of a certain state of affairs are not literally construed. Rather, such statutes are interpreted against “a background of several hundred years of history.” The Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944) (Section 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 23, providing that an injunction “shall be granted” if someone has engaged in or is about to engage in a violation of the statute, held not to override traditional principles of equitable discretion.)

The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied.

Id. at 329-30, 64 S.Ct. at 591-92. Section 3(c) of the Voting Rights Act, moreover, does not establish “violations” simpliciter as the predicate for preclearance, but “violations justifying equitable relief.” (Emphasis ours.) It is at least a permissible construction of this language, if not a required one, that whatever relief is granted, including preclearance, must be measured against traditional equitable remedial principles. So “we resolve the ambiguities of Section [3(c) ] in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings under this ... legislation in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect." The Hecht Co. v. Bowles, supra, 321 U.S. at 330, 64 S.Ct. at 592.

What criteria should guide us in the exercise of this discretion? Without meaning to exhaust the universe of possibly relevant factors that might be shown in future cases, the present record suggests the following: Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that would likely be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to recur? Do political developments, independent of this litigation, make recurrence more or less likely? Throughout the weighing process, we have in mind the strong interests on both sides: the interest of the plaintiffs in vindication of their constitutional right to vote, perhaps the most precious of all political rights except that of free speech itself, and the interest of the defendants in maintaining the sovereignty of the State, which is itself an important part of the constitutional balance against the exercise of arbitrary power by any portion of government, national or state. Above all, we are mindful that both the Constitution and the Voting Rights Act require that if violations have been found, and if prospective relief in the form of preclearance is indicated by the other factors in the case, the rights of the plaintiffs must prevail. The whole purpose of the Fourteenth and Fifteenth Amendments and of the Voting Rights Act is to override state action, and undue deference to state sovereignty cannot be permitted to thwart this purpose.

Having fully considered all of these factors in the light of the entire record, we conclude that a limited preclearance remedy is required. Certain of the constitutional violations found, including those shown by the Perkins, Humnoke, and Lewellen cases, have already been remedied by judicial action. A consent decree now requires the ready appointment of deputy voting registrars, and black people are amply represented in these appointments. There have been no violations of this consent decree. The widespread violations found to exist in Lee County in the 1974 report of the Advisory Committee to the Civil Rights Commission are, at least in large part, a thing of the past. The same is true, to some degree, of the local violations we have found in Ashley and Desha Counties. Moreover, these violations consist, in the main, not of explicit elections laws or practices, but rather of individual actions by officials charged with administering laws and practices neutral on their face. This kind of violation would not be affected by a preclearance requirement and therefore furnishes no strong basis for imposing it. The series of majority-vote statutes passed for the purpose of suppressing black political success, however, demands strong action. We therefore hold that any further statutes, ordinances, regulations, practices, or standards imposing or relating to a majority-vote requirement in general elections in this State must be subjected to the preclearance process. (The majority-vote requirement for nomination in party primaries is not affected by this holding.) In all other respects, plaintiffs’ request for statutory preclearance under Section 3(c) will be denied. It would perhaps be within our discretion to impose statutory preelearance on a broader basis,, but for the reasons given we have chosen not to, at least for the time being. In making this choice, we take into account, in addition to the other factors mentioned, that the pace of political change in this State is quickening. We credit, in this regard, the testimony of Governor Clinton at the trial. We also note an increasing trend, taking place in many areas of the State, of conversion of at-large election systems to single-member systems. This trend is evident in litigation affecting school-board elections and municipal elections. It was already positive law with respect to elections for quorum courts, the legislative bodies of counties.

We deem it appropriate to impose one further item of relief in the nature of preclearance, not as a matter of statute, but as a matter of inherent equitable power. After the 1990 Census, the Board of Apportionment will face once again the task of drawing district lines for the House and Senate. We direct that no plan of apportionment so adopted may go into effect until 60 days have elapsed from the date of its final adoption by the Board. This Court will retain jurisdiction, within that time period, for the purpose of entertaining any challenge by the plaintiffs in this case to such plan. If no such challenge is forthcoming, the plan may go into effect, subject, however, to the right of any aggrieved citizen to challenge it in an appropriate action at a later time. This retention of jurisdiction is not required by Section 3(c) of the Act, but plaintiffs have requested it, in the alternative, and we believe it is appropriate under the facts of this case. In fact, such a period of vulnerability, so to speak, should work to the advantage of the State, because if the plan adopted in 1991 survives this hurdle, the chances of its being allowed to govern undisturbed until the Census of 2000, will be, as a practical matter, greatly enhanced.

An appropriate decree is being entered today to carry out the findings and conclusions expressed in this opinion.

It is so ordered.

1 . In Whitfield v. Democratic Party of Arkansas, 890 F.2d 1423 (8th Cir.1989), a divided panel of the Court of Appeals for this Circuit held that the system of majority-vote party primaries in Phillips County, Arkansas, violates Section 2. A petition for rehearing en banc was granted, thus vacating the panel opinion. The case was argued before the Court en banc on April 10, 1990. On May 4, 1990, the Court of Appeals en banc affirmed the judgment of the District Court, 686 F.Supp. 1365 (E.D.Ark.1988), by an equally divided vote. Thus, the Whitfield case itself has resulted (so far) in a holding that the majority-vote requirement does not violate the Voting Rights Act.

2 . Mr. McDonald's excellent article also concludes that "abolition of the requirement would likely have very little beneficial impact on minorities seeking office in majority white jurisdictions, while it could actually work against the election of blacks in many majority black jurisdictions.’’ Ibid. This is a question of policy or political effect which is irrelevant to our present inquiry into motivation.

3 . For detailed reasoning supporting this finding, see Whitfield v. Democratic Party of Arkansas, 686 F.Supp. 1365, 1367-71 (E.D.Ark. 1988), aff'd in relevant part, 890 F.2d 1423, 1425-27 (8th Cir.1989). This Court’s opinion in Whitfield also carefully describes the pre-1938 statutory history of the run-off primary in Arkansas. The first statute requiring a majority vote was passed in 1933 and had nothing to do with racial matters.

4 . Section 7-5-106 does not apply to cities having the city-manager form of government. Little Rock is such a city. Under Act 905 of 1989, however, much the same result will occur. Section 14-42-206 of the Arkansas Code, the codification of §§ 1-5 and 8 of Act 905, requires all cities and towns to hold a "municipal primary election." If no one receives a majority at this election, which is to be held on the sixth Tuesday before the general election, the names of the two candidates receiving the highest number of votes will go on the ballot at the general election. Thus, all city offices in Arkansas are now subject to some form of a majority-vote requirement. Act 905 is further discussed at p. 594, infra.

5 . This Act was later invalidated by the Supreme Court of Arkansas on state constitutional grounds. Mears v. City of Little Rock, 256 Ark. 359, 508 S.W.2d 750 (1974).

6 . This Act was later amended to apply only to first-class cities with populations within a narrow limit set by the amendment. Act 175 of 1977. The amended Act was later invalidated by the Supreme Court of Arkansas on state constitutional grounds. Ferguson v. Brick, 279 Ark. 288, 652 S.W.2d 1 (1983).

7 . This does not mean that our decree in this case will enjoin the enforcement of the existing run-off statutes for county and municipal offices. For one thing, the evidence of illicit motivation applies only to municipal elections in portions of the State with substantial minority populations. And for another, plaintiffs at the oral argument at the close of the trial in this case disclaimed any desire for such relief. They bring up the series of municipal run-off statutes only as constitutional violations justifying preclearance under Section 3(c). Whether and to what extent these statutes may continue to be validly applied must be left to a case-by-case determination in the future. At least this much, though, can be said: If a black candidate leads in the first election and then is defeated in a run-off required by either Ark.Code Ann. § 7-5-106 or § 14-42-206, the election will be vulnerable to a strong constitutional challenge.

8 . Counsel for plaintiffs, if we understood them correctly, disclaimed in open court the position that the word '‘shall” has the effect of removing all discretion. They took the same position in their post-trial brief, p. 75: "a State as a whole may be placed under preclearance if” constitutional violations are found. (Emphasis ours.) They also indicated a willingness to accept the exception from preclearance of local changes in jurisdictions without a substantial minority population. Id. at 75, 77-78.