The Fight for Political Representation: The Use of the Voting Rights Act and the Federal Court System by Black Plaintiffs

in Henrico County, Virginia Thomas Shields

University of Richmond

There has been an abundance of written work on the historic fight for black political equality in southern urban areas. However, almost no scholarly work exists on thefightfor black political equality in the rapidly expanding southern suburbs. This article analyzes the rise of the black population and its fight for political representation on the local governing board in Henrico County, a large suburb of Richmond, firginia. The article details the increase in the black population in Henrico County from 1950 to 2000 and provides a descriptive analysis how black plaintiffs used the Voting Rights Acf in a redistricting suit against the county in 1988. Many arguments made by the &fendants and the plaintiffs are similar to the fierce civil right battles, that occurred during the Massive Resistance era in the 1950s and 1960s in Krginia. However; what is unique about this case is that it occurred in the late- 1980s and early- 1990s in an expanding suburb.

Although much has been written about the historic fight for black political equality in southern urban areas, almost no scholarly work exists on the fight for black political equality in the rapidly expanding southern suburban areas. Some articles have presented case studies of the black population in suburbs across the country, but their focus concerned settlement patterns and housing (Orser 1990; Wiese 1993a and 1993b). No recent research has addressed how the African-American population in a suburb tried to achieve equality in political representation. This article analyzes the rise of the black population and its fight for political representation on the local governing board in Henrico County, a large suburb of Richmond, Virginia.

The article details the increase in the black population in the suburban county of Henrico from 1950 to 2000 and provides a descriptive analysis of a redistricting suit by black plaintiffs against the county in 1988. The plaintiffs argued that in 198 1 the county had excluded the black population in redistricting for the Board of Supervisors, the local governing entity. The plaintiffs claimed

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there was a sufficient black population for the county to create a majority- minority district that could elect a black representative to the Board. The county denied any wrongdoing in redistricting and vigorously fought the suit and any efforts to create a majority-minority district. Many arguments made by the defendants and the plaintiffs are similar to the fierce civil right battles that occurred during the Massive Resistance era in the 1950s and 1960s in Virginia. During the Massive Resistance era, the white establishment in local jurisdictions would shutter school systems for years rather than integrate the races and would use all means possible to stop African Americans from voting. The African American population was forced to go to the federal court system to integrate the schools and have a voice at the ballot box.

Black Suburbanization

Initially, researchers described African-American settlements in suburbs as not part of the traditional view of the white, middle-class suburb (Connolly 1973; Rose 1965). Wiese ( 1993a) corrected this misinterpretation by stating that “suburban black towns were unquestionably surburban” (34). By the late 1960s and early 1970s, there was no question that black suburbanization began to take root and was not just an expansion of the “ghetto” (Clay 1979). Other researchers noted the significant shift in the black population to the suburbs (Frey 1985; Guest 1979; Palen 1995; Stahura 1988 and 1989- 1990; Stahura and Hollinger 1987). The 1980s and 1990s continued to witness large increases in black suburbanization (Frey and OHare 1992; Galster 1991; Garreau 199 1 ; Hatchett 1995; Kain 1985; Lake 198 1 ; Long and DeAre I98 1 ; Palen 1995; Schneider and Phelan 1993; Wiese 1993b). African Americans were moving to the suburbs for the same reasons as whites: apprehension about crime, escaping overcrowded housing conditions, and taking advantage of better employment opportunities (Hatchett 1995). By the late 1980s and early 1990s, African Americans had concentrated in the suburbs of medium- sized southern metropolitan areas such as Fayetteville, North Carolina; Columbia, South Carolina; and Norfolk-Virginia Beach-Newport News, Virginia (Frey and O’Hare 1992). Some suburbs in the metro areas of the South, such as Atlanta, Washington, DC, Orlando, and Richmond-Petersburg, witnessed the greatest black population growth in the country (Frey and O’Hare 1992). The 2000 Census showed that African Americans and other minorities had moved to the suburbs in sizable numbers and were now affluent and integral members of southern suburbs (Whelan 2001).

Limited literature exists on the racial political dynamic in American suburbs. Southern suburban politics has not received attention, with early works focused

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on the white population. Stahura (1986) discussed how the process of black suburbanization in the late 1960s and early 1970s occurred in response to the Civil Rights atmosphere and to legislation, such as the 1965 Voting Rights Act, and stated that though a causal connection may not exist, there is a possible relationship between the Civil Rights movement and the impact on black suburbanization. This article analyzes how the black plaintiffs used the Voting Rights Act in its amended form and the tactics of the Civil Rights movement to fight for representation in a southern suburban county.

The Use of the Voting Rights Act

Several authors discussed Massive Resistance and the use of the federal court system to achieve desegregation in Virginia (Buni 1967; Gates 1964; Muse 1961). These works served as a historic guide to examine what occurred in Henrico County 30 years later. Several pieces of literature describe the Voting Rights Act (VRA) and the use of the federal courts as a catalyst for increasing the number of black registrants and black representatives in public offices in Virginia (Clemons and Jones 2000; Holsworth 1998; Morris 1990; Morris and Bradley 1994). With the necessary federal review of redistricting plans, the VRA has produced considerable gains in achieving black political involvement at all levels of political office in Virginia (Morris and Bradley 1994).

The VRA has made an impact on the configuration of Virginia’s voting districts. The most noteworthy recent use of the VRA in Virginia, as in other southern states, was the creation of majority-minority congressional districts. Less noteworthy, but just as important, have been cases were the VRA was applied at the local levels to create majority-minority districts. No research has been published concerning the use ofthe VRA by a black population in a southern suburb to achieve a majority-minority district.

Black Suburbanization in Henrico County, Virginia

To begin an analysis, it is necessary to show the development of an increase in the black population in the county. Table 1 displays how the suburban county of Henrico had apredominantly white population in the 1960s. During this period, the county experienced a white population surge because of intense white flight from the City of Richmond. The black population in the 1960s was small. The 1980 Census showed an increase in Henrico’s black population-the slow trickle of black suburbanization began in the late 1970s. The 1990 Census displayed significant increase in the county’s black population

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Table 1. Population by Race in Metropolitan Richmond, 1950-2000 ~ ~~

Henrico Henrico Chesterfield Chesterfield Richmond Richmond County County County County City City

Race Number Percent Number Percent Number Percent

1950 Total 57340 40,400 230,310 White 51,663 90 3 1,956 79 157,302 68 Nonwhite 5,677 10 8,444 21 73,008 32

1%0 Total 1 17,339 71,197 219,958 White 111,269 95 6 1,762 87 127,627 58 Black 5,989 5 9,403 13 91,972 42

1970 Total 154,364 76,855 249,62 1 White 143,812 93 68,O I 2 88 143,857 58 Black 10,106 7 8,65 1 11 104,766 42

1 980 Total 180,735 141,372 219214 White 151,187 84 125,841 89 104,743 48 Black 27,096 15 13,910 10 112,357 51

1990 Total 2 17,88 1 209274 203,056 White 168,423 77 1773% 85 87,928 43 Black 43,919 20 27,067 13 112,406 55

2000 Total 262,300 259,903 197,790 White 180,761 69 199,447 78 75,744 38 Black 64,805 25 45,195 18 113,108 57

in the 1980s. As shown in Table 1, the 2000 Census showed a tremendous increase in the black population of the county. This increase was detailed in several articles in the Richmond Times-Dispatch, one of which said, "like other traditionally white suburbs across Virginia, [Richmond suburbs] became a racial and ethnic melting pot" (Martz and Jones 2001, A lo).'

With the increase in the black population, demands were made by the black population for greater representation and accountability of the white

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county government structure. The next sections of the article discuss how the black plaintiffs in the suburb tried to achieve representation through the application of the Voting Rights Act and the federal court system.

The Suit

In July 1986, the American Civil Liberties Union (ACLU) announced that within the next year it would begin filing suits against Virginia counties that did not have black representation on their Board of Supervisors. Counties that had a significant black population, meaning over 30 percent, but no black supervisors would be sued. The ACLU also considered filing suits against counties with smaller black populations of around 15 percent, and no black representation. These suits would be filed under Section 5 ofthe Voting Rights Act. The Act had been amended in 1982 to allow minority plaintiffs a lower threshold in proving the presence of voter dilution in drawing legislative districts. The 1982 amendments provided the ACLU with an opportunity to get tough with Virginia localities that had not elected minorities or had not created minority friendly redistricting after the 1980 census.

The ACLU used lawsuits against small counties in Virginia as a testing ground before they pursued the larger, wealthier counties. When the ACLU filed suit against Henrico County it had sued 13 smaller counties and had settled nine of the cases. In each settlement new voting districts were drawn with little resistance. The suit against Henrico, however, proved to be different from the others.

Since 1981, the Henrico County Civic League, a local black political organization, and the Henrico chapter of the NAACP had reviewed the possibility of suing the county under Section 5 of the Voting Rights Act. On January 19, 1988, lawyers from the ACLU filed a lawsuit on behalf of 17 black individuals, the Henrico County Civic League, the Montezuma Oak-Hill Civic Association, and the Henrico Political Task Force. The defendants were the five Board of Supervisors members, the three members of the Electoral Board of Henrico County, and the County Registrar.

The Complaint and Pre-Trial Motions The complaint alleged, “The purpose and result of the current method of

election of the members of the Board of Supervisors is to dilute, minimize and cancel out the voting strength of blacks and to deny or abridge the right of blacks to vote on account of race or color” and went on to state, “The political processes leading to nomination or election in Henrico County are

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not equally open to Plaintiffs in that they have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” (MeDaniel v. Mehfoud 1988, 2-3). Another reason for the suit was the historical racial discrimination in the voting and registering process in both the county and the state. Plaintiffs argued that they continued ‘To bear the effects of discrimination in such areas as education, employment, housing and health, which hindered their ability to participate effectively in the political process’’ (3). The complaint finally argued that no blacks were on the Board of Supervisors and that voting was racially polarized with practices that enhanced discrimination against minorities. The suit requested that the court declare that the method ofelecting supervisors violated the constitutional rights of the plaintiffs and that a new redistricting plan be enacted as a remedy. The ACLU and the plaintiffs wanted amajority-minority district or an increase in the number of magisterial districts from five to seven.

The negative reaction to the suit by members ofthe Board of Supervisors meant that these objectives were unlikely to be met. John Waldrop, an outspoken member of the Board of Supervisors who represented the district with the highest black population, said, “I think the black community is represented on the supervisors. We handle county issues, and that means all citizens. I can’t see where having a black just because he or she is black would help Henrico” (Potter 1988, 19).

The newspapers in Richmond also had different perspectives of the suit. The Richmond Afio-American, a black weekly newspaper, supported the plaintiffs and the ACLU. The Richmond News Leader and the Richmond Times-Dispatch, daily newspapers, were adamantly against the suit. In a scathing editorial piece, the Richmond News Leader lambasted the ACLU and its use of the federal court system to have blacks elected to political office. The editorial read, “The ACLU hates democracy. That’s a possible conclusion one can draw from its suit challenging the district lines for Henrico’s Board of Supervisors” (Editorial 1988% 10).

On February 17, 1988, almost one month after the ACLU filed the complaint, lawyers for the County of Henrico urged that the suit be dismissed. In the response, Henrico denied any wrongdoing in drawing the magisterial districts in 198 1 or any racial discrimination in education, employment, housing, and health policies. The county’s response acknowledged that no black had been elected to the Board of Supervisors and that the state had discriminated against blacks in the past (Green 1988, 1 ; Editorial 1988b).

The defendants were represented by Joseph P. Rapisarda, Henrico’s county attorney, and R. Harvey Chappell from Christian, Barton, Epps, Brent,

~~ ~

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and Chappell, one of the oldest and most established law firms in Richmond. The plaintiffs were represented by the ACLU and Henry Marsh from the law firm of Hill, Tucker, and Marsh, which had an established history of representing African Americans and handling civil rights cases. U.S. District Judge Robert Merhige presided over the case. Judge Merhige was known for his decision to consolidate the school systems of the City of Richmond, the County of Henrico, and the County of Chesterfield in 197 1. Although this controversial decision was eventually rejected by the Supreme Court, Merhige had gained a reputation as a supporter of judicial remedies for racial discrimination.

Satisfied that there was no legitimate case, the defendants filed a motion for summary judgement on April 8, 1988, claiming that plaintiffs did not meet the threshold test required by the Supreme Court in Thornburg v. Gingles (1986). Under the Supreme Court ruling in Gingles, three prongs need to be met to establish a violation of Section 2 of the Voting Rights Act. Gingles (1 986) requires that the minority be sufficiently large and geographically compact to make a majority in a single member district, the minority be politically cohesive, and the majority votes sufficiently as a block to enable it-absent special circumstances-usually to defeat the minority’s choice candidate. The county claimed that the plaintiffs could not meet the first prong of compactness. The county’s attorneys argued that plaintiffs had produced a map with a proposed five-member district that was over 24 miles long and in one place 1,000 feet wide.

In addition, the county claimed the black population could not fit into a district that was compact. At the time of redistricting, in 1981, black citizens of the county comprised 14.99 percent of the total population and 13.4 percent of the voting age population. The county planning office, in following major boundaries and keeping neighborhoods intact, claimed they had created a district that maximized the effective voting age population of blacks in the county. The county was pleased that redistricting in 198 1 had increased the total black percentage in Fairfield from 39.6 percent to 42.8 percent, and had increased the black voting age population from approximately 35 percent to 39 percent. The county also claimed a majority black district had to be 65 percent black. They argued this percentage was established in case law as the threshold requirement to achieve an effective black voting majority. If there was an attempt to draw a 65 percent district, it would have to violate all the tenets of redistricting.

The other argument that the county made concerned creating a black “safe seat.” The county argued that creating a safe seat for a population that was below 20 percent went against case law and was not proportionate

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to the voting age population percentage in the county. The current magisterial district provided blacks with over three times the influence as compared to what the general population received in other districts.

On May 25, both sides were before Judge Merhige on the issue of summary judgement (Goode 1988b; McAllister 1988a). At the hearing, R. Harvey Chappell, Jr. said the plaintiffs map was a “salamander” or ”hot dog” with an “effective voting majority that was white” (McAllister 1988a). Chappell continued to argue that a district with a black voting age population over 65 percent was not possible in Henrico County. The black plaintiffs attorney said blacks were not able to elect a black representative under the current plan and should not have to wait until the 1990 census for redistricting to occur. They argued that no court had issued a decision that defendants needed to wait until the nearest census. The plaintiffs admitted the proposed district was ”long and narrow,” but that all residents lived near a polling station. At the end of the hearing, Judge Merhige said he was inclined to allow the case to proceed with the discovery stage, denying the defendant’s motion for summary judgement on June 7, 1988.

The county filed another motion for summary judgement in late August 1988 at the end of discovery, arguing that the ACLU’s map plucked black residents from scattered integrated neighborhoods and, therefore, was not compact. The county claimed the ACLU map sliced through three supervisor districts and had an arm that was 25 feet wide and six blocks long. They argued that case law stated the need for district cohesion and a safe black seat, which were impossibilities because of low black percentages in the county.

The plaintiffs filed an opposition to the renewed motion for summary judgement, arguing that the proposed district was sufficiently compact and met the Gingles requirement, but the voting percentage did not need to ensure a safe seat. The plaintiffs brief in opposition repeated that the black community in Fairfield District was cohesive and would enthusiastically support a black candidate. The brief also emphasized that white crossover voting occurred in Henrico and could assist in electing a black candidate. Additionally, the brief argued that the Gingles decision did not require a safe seat for a black candidate. Plaintiffs argued that the intent ofthe Voting Rights Act was that a competitive seat be created in which blacks have equal access, not guarantee that a district elect a black. The creation of a safe seat was not a prerequisite to finding liability under the Voting Rights Act.

At a hearing on August 23, 1988, Merhige questioned Chappell’s interpretation of case law concerning the safe district rule. Chappell stated it could only be accomplished with a 65 percent black population, which was

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unattainable without violating Gingles and without having a large black voting age base. Merhige denied the second motion for summary judgement, saying, “I don’t think you can guarantee a safe seat. I don’t see how you can ever do that” (McAllister 1988c, 5) .

The Trial The bench trial began on September 19, 1988 with both sides questioning

each map of the Fairfield District, where the black population of the county lived. The ACLU lawyers drilled Cheryl P. Evans, the county planner in charge of redistricting in 198 I , on her reasons for not creating a majority black district. Evans admitted that she started in the eastern section of the county and worked west in forming the supervisor districts. She counted the population in census tracts, and when she reached 36,000 people she formed a district. After a magisterial district was formed, people not included in the 36,000 were placed in the next district. She testified that she was looking for‘matural features, really obviously natural features” by which to divide districts and did not want to split neighborhoods and that race was not a factor, except that she knew she “could not dilute the black vote” (McAllister 1988b, 3). She “felt good that the black vote was increased” to 43 percent in the 1981 redistricting (3). She further testified that she did not speak to anyone in the affected areas when she formed the districts and did not see the need to form districts with majority black representation.

R. Harvey Chappell and county attorneys attacked the ACLU’s proposed map. Chappell restated that the ACLU map was a “pink salamander,’’ which did not meet the “compact” guidelines under the Gingles (1986) decision. He said it was an “attempt to maximize (black) voting potential,” which the Voting Rights Act did not advocate, and said, “blacks are neither sufficiently numerous or geographically compact to constitute an effective voting majority in a properly drawn district” (McAllister 1988d, I ) . The plaintiffs expert testified that Henrico County whites voted for the white candidate four out five times, while blacks voted for the black candidate all the time and referred to the situation as“. . . a classic case of racially polarized voting”(McAl1ister 1988b, I ) . The defendant’s experts refuted this analysis.

On the first day, the ACLU brought to the stand black activists, black residents, and black candidates to testify about the difficulty of electing a black to the Board of Supervisors and the lack of supervisor responsiveness to black issues. A perception of insensitivity by the white county supervisors pervaded the proceedings when they testified they could not recall an issue of concern to the black community and did not know the black percentage of their constituencies. On the second day of the trial, the plaintiffs presented a

Political Representation 23 1

case ofcontinued discrimination among supervisors and county administration in Henrico County. The plaintiffs attorney called John Waldrop to the stand. Waldrop, who represented the area where the majority black population resided, became defensive when plaintiffs attorney questioned his effectiveness and practices in office, testifying that it was false that blacks in the Fairfield District did not have equal access to parks, recreation facilities, traffic lights, library services, and utilities (Goode 1988a). Henry Marsh questioned why Waldrop had placed pictures of his black opponents on his 1983 and 1987 campaign literature. Waldrop replied, “Been kind of stupid not to use visual aids. I’d do it again” (Goode 1988a, 11). Waldrop also testified that the Fairfield District was the most integrated in Henrico County and that he believed the suit would ”turn a portion of Henrico County into the city of Richmond and I won’t want to see that” ( 1 1).

Judge Merhige ended the two-day trial by stating, “I’m satisfied for the moment, [though] I’m not makinga ruling [yet], that there is racial polarization in voting in Henrico County ... But that’s not the end of it ... There are other problems that are disturbing” (McAllister 1988d, 1). He was not ready to rule that the county had violated Section 2 ofthe Voting Rights Act and wanted to hear final arguments in the case on October 1 1 .

The day before Merhige was to hear final arguments, the Richmond Times-Dispatch printed a large editorial with the heading “Voting Wrongs.” Next to the editorial was a picture of the ACLU’s proposed Fairfield District for Henrico County. The editorial chastised the ACLU for suing Henrico and supported the county for defending itself. The editorial said the ACLU suits against Virginia counties were not in the spirit of the Civil Rights Movement, and opined, “Somehow we don’t think this is quite what civil rights leaders who once advocated a colorblind society had in mind” (Editorial 1988~).

The Ruling At the hearing on Tuesday, October 1 I , Judge Merhige suggested he was

going to rule partially on the side of the ACLU. He said, “I think there has been a violation ... but I’m not sure what the remedy is” (McAllister 1988e, I ; Sauder 1988a, 1). Merhige did not rule against the county, but declared ”something must be done” to have black representation in Henrico (Sauder 1988a. 1 ). He suggested that Henrico had violated the Voting Rights Act in not drawing adistrict with a higher black population and votingage population in 1981.

Judge Merhige had four options. He could adopt the ACLU’s proposed district of 55.4 percent black population, 39.6 percent voting age population, and expected white crossover voting; adopt the ACLU’s proposal for a

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seven member Board of Supervisors, which would have a 61 percent black district; delay action on redistricting until after the 1990 census; or have the county redraw the lines in compliance with his interpretation of the law (McAllister 1988e, I ) . At the hearing Merhige asked Chappell which choices Henrico would prefer. Chappell replied that the county did nothing wrong and, if those were the options, the county would appeal. On December 30, 1988, Judge Merhige rendered a decision in favor of the plaintiffs:

The Court finds from the evidence at trial that the county’s electoral districting scheme violates Section 2 of the Voting Rights Act. Because the Court finds the current plan invalid under Section 2, it is unnecessary to reach the constitutional issues. The Court will grant the defendants seventy five (75) days to submit an acceptable remedial plan. (McDuniels v. Mehfoud 1988)

The memorandum that accompanied the order outlined Merhige’s reasons for accepting plaintiffs arguments. Plaintiffs proved that the black population was “sufficiently large and geographically compact” to form a majority minority district. Merhige believed plaintiffs had submitted two redistricting plans that met the Gingles requirement of a black majority voting age population. Merhige wrote that plaintiffs need not construct a “safe seat,” but black voters needed a reasonable chance of electing a representative. He stated that plaintiffs lay and expert testimony had established the second and third parts of the Gingles test. Merhige found that Henrico elections exhibited a “severe and persistent pattern of racially polarized voting” and wrote, “84% of white voters voted for the white candidate in the 1983 supervisory election, 80% in the 1987 supervisory race, 64% in the 1985 lieutenant governor’s election and 67% in the 1985 delegates election” (McDuniels v. Mehfoud 1988, 12). Merhige finished by stating that recent black political campaigns for the Board of Supervisors and the formation of the Henrico County Civic League, a black political organization, showed a political cohesiveness of the black community.

In his memorandum, Merhige also cited evidence that fulfilled nine factors outlined in a U.S. Senate Report produced by the Senate Judiciary Committee to aid federal courts in evaluating Section 2 violations. Some factors were stipulated by both parties: a history of discrimination in Virginia and Henrico County; past prejudicial voting practices and procedures; and a history of discrimination in education, employment, and health. Merhige stated, ”these differences adversely affect the ability of black citizens to participate in and

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influence the political process in Henrico County” (McDuniels v. Mehfoud 1988, 15). In addition, he found evidence in two other factors that qualified the case as a Section 2 violation. Under the racial appeals factor, he found that Waldrop, in 1983 and 1987, had targeted a campaign mailer with a picture of his black opponent to white neighborhoods but not black neighborhoods; he also found that Waldrop had not used the same flyer format in his campaign for election to the U.S. House of Representatives. The second factor was that Henrico supervisors had disregarded the concerns of the black community and in fact could not name an issue that was of importance to blacks in the county. Merhige wrote:

The Court was most struck, however, by the simple fact that when asked, none of the five sitting members of the Henrico Board of Supervisors could identify a single issue of unique concern to the black community-despite notable publicity of, among other things, black efforts to have a black appointed to the school board. In fact, two of the five Supervisors had no idea what percentage of their constituencies are black. (McDaniels v. Mehfoud, 17)

Merhige was obviously surprised at the lack of concern that the supervisors had shown for not only members of the black community of Henrico, but more specifically for black voters. This lack of concern for the black voter was what drove the plaintiffs to file suit and what drove Merhige to issue his order.

Reactions to the Ruling The parties reacted differently to Merhige’s order. The plaintiffs and

their attorneys were extremely happy with the ruling. One plaintiff, Mattie S. McDaniels, stated, ”I’m ecstatic. I’m jubilant . . . I don’t know all the details, but I’m bubbling with joy” (Potter and Sauder 1989, I ) . Henrico County supervisors were unhappy. John Waldrop, who would lose his seat in the ACLU proposed district, said, “I strongly disagree with the judge’s opinion that we discriminated against blacks . . . I favor going all the way to have the decision reversed” (Sauder 1989c, 1).

With Merhige’s affirmative ruling, the ACLU had won or settled 15 of the 19 voting rights suits against Virginia counties and was extremely pleased. After the ruling, the executive director of the Virginia branch of the ACLU said the case”had been the longest and most difficult with regard to resources- but, this was as clear as any of the other cases. We found more evidence of

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racism in this case than in others” (Potter and Sauder 1989, 1 I ) . Richmond’s two main newspapers, the Richmond News Leader and

the Richmond Zlmes-Dispatch, panned the decision on their editorial pages. The headline in the Richmond News Leader read “Judicial Interposition,” hearkening back to the Massive Resistance term for those who were against federal integration orders.* The editorial stated, “Surprise, surprise ... Merhige has ruled that Henrico has violated the voting rights of its black residents” (Editorial 1989b, 10). The editorial continued, “But the legal barriers to black participation in elections vanished long ago. Blacks in Henrico enjoy the same rights to run for office and to vote for candidates as whites do” (10). The Richmond Zlmes-Dispatch also had an editorial titled, “Colorblind Bias,” which urged Henrico to appeal Merhige’s decision.

A weekly newspaper in Henrico, the Henrico County Line, was more positive and supportive of Merhige’s decision. The editorial in the County Line stated, “What is at issue is that over many years one group of Henrico citizens has believed theirs was a second class citizenship” (Editorial 1989c, 6) . Next to the editorial was a cartoon with Judge Merhige holding a tuba and a black person blowing into it. On the tuba were the words, “Call for Black Representation.” In front ofthe tuba were two elderly men with buttons that read, “County Board.” One of the men was saying, “Did you hear something?’ County residents disagreed among themselves over the effectiveness of the suit. An article in the Henrico Counfy Line contained viewpoints of black and white county residents. Most black residents interviewed were happy with the decision, while white residents either did not have a comment or were against it (Pierce 1989).

Immediately afier the decision, County Attorney Joseph P. Rapisarda, Jr. disclosed that the county had spent $272,000 defending the magisterial districts, making it the costliest legal bill ever incurred by the county (Sauder 1989b, 15). With a favorable decision in hand, the ACLU was expected to petition the Court to have its legal fees paid. The organization’s legal cost was estimated to range from $215,000 to $230,000-the highest of all the cases the ACLU filed against Virginia counties. If ordered to pay, it would double the county’s total expense to nearly $500,000 (Sauder 1989b, 15).

The County Stalls

Three days after the decision, on Friday, January 5 , 1989, the Henrico Board of Supervisors listened to their attorneys for over an hour in an executive session. When they emerged, they had not decided whether to appeal or

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make changes to the districts. Henrico took the first step toward an appeal when it petitioned Merhige on January 12 to suspend his order during the appeal process. This would allow the county to appeal without submitting a redistricting plan within 75 days of the decision. If Merhige approved it, the county could continue with an intermediate appeal to the 4th Circuit Court of Appeals.

In late January 1989, the ACLU petitioned Judge Merhige to have Henrico County cover plaintiffs legal and other costs, which totaled $208,000 (Sauder I989a, 15). The motion argued that the fees and expenses should be paid to stop the defendants from committing ”an economic war of attrition against the plaintiffs” (15). In mid-February 1989, Henry L. Marsh and R. Harvey Chappell, Jr. met twice to discuss a settlement. The proposed settlement would have the ACLU drop the case, yet allow it to participate in the county’s 1990 redistricting. The plaintiffs would not demand redistricting before the census was issued or request a special election. Later that day, at the hearing on Henrico County’s motion to appeal to the 4th Circuit, it was evident that Judge Merhige wanted the settlement issue addressed. However, the Henrico supervisors were not as amicable to a settlement and were not ready to concede the legal fight.

The ACLU, their attorneys, and the black plaintiffs were surprised that the county turned down the settlement and continued to waste taxpayer’s money. However, editors at the Richmond Times-Dispatch agreed with the county’s decision to appeal, writing that, “It should, if necessary, carry its fight on to that legal battleground where all such contests are finally won or lost, the U.S. Supreme Court itself. The issue is that important . . . Such a decision should not go unchallenged. even for the sake of saving taxpayers’ money” (Editorial 1989% A 14).

On February 23, Merhige issued an order that allowed the county to proceed with an appeal and suspended the deadline for submitting the redistricting plan. He ordered the county to reimburse the ACLU $1 76,409 in legal fees, less than the figure the ACLU originally had requested (Sauder, 1989d). One month later, on March 21, Merhige issued another order with a new deadline for the county to submit a redistricting plan. The deadline was shorter than the expected 75 days, but was intended to penalize Henrico after the county refused to participate in a settlement process and continued to take steps toward an appeal. Merhige stated, “it has become painfully apparent that the parties have not been able to settle their differences” (Sauder 1989e, 15). The new deadline denied Henrico County the opportunity to begin an intermediate appeal.

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Five days prior to the new April 10 deadline the Board of Supervisors entered a closed door session to determine which redistricting plan to submit to Judge Merhige. During the executive session, the Board reviewed four new maps provided by the planning staff and examined the ACLU proposed plan. The Board voted to submit the existing plan to Merhige as the best possible configuration. The ACLU and their attorneys were mystified when the county submitted the existing district plan to Merhige. The attorney for the plaintiffs, Henry Marsh, was astonished at the audacity shown by the supervisors. He said, “It’s incredible to me that any jurisdiction can assert in 1989 that the preservation of existing neighborhoods is more important than the participation of blacks in the political process’’ (Sauder 1989f, I ) .

After Henrico County decided to submit the existing plan, Judge Merhige looked to an outsider, Dr. William O’Hare, to provide a remedy. O’Hare was Director of Policy Studies at the Population Reference Bureau in Washington, DC and an expert at drawing voting districts based on sociological criteria. The reaction of the Henrico County Board of Supervisors to O’Hare’s appointment was mixed. The supervisors were particularly upset with having to pay for the special master’s research and report. The ACLU attorneys were pleased but tepid in their response to O’Hare’s appointment.

In the Preliminary Report, issued August 29, 1989, O’Hare found “none of the proposed plans would provide a remedy for the voting rights violation found in this case” (O’Hare 1989, 6). He tried unsuccessfully to draw a five member plan, before producing a seven-member plan that had one 61 percent black district and two other districts that were 13.7 percent and 15.9 percent black. The report was criticized by both the defendants and the plaintiffs. The black plaintiffs believed the seven-member configuration would dilute black voting strength on the Board of Supervisors. Henrico County officials were critical because they believed the county had presented the best plan. The county’s attorney argued that Henrico had not committed any wrongdoing in its redistricting of a five member plan and that Merhige had no authority to increase the number of supervisors from five to seven. Complicating matters, O’Hare had placed a prominent black activist outside the majority black district and had separated two supervisors by only a few hundred feet (Sauder I989h).

Judge Merhige set a hearing on October 12, for both sides to present their objections to O’Hare’s Preliminary Report, after which he directed O’Hare to prepare a plan consistent with his judgement order in December 1988. O’Hare, in his final report, decided that a five-member district was more appropriate than a seven-member district; however, he urged a delay until data from the 1990 Census was available. He believed that constructing

Political Representation 237

a redistricting plan at that point was fraught with uncertainties because of reliance on 1980 Census data. O’Hare also found data that showed the black population in Henrico County had increased by an estimated 50 percent during the 1980s. The evidence showed the black population had increased more rapidly than the white population during the decade. O’Hare admitted his new plan was “very similar to the five-member plan submitted by the plaintiffs” (O’Hare 1990,7). In the revised majority black district, the black population was 18,757 and the percentage black was 54.6 (O’Hare 1990).

Both sides tried to claim victory in O’Hare’s revised report. On Friday, March 16, Judge Merhige met with attorneys for each side and asked them to submit objections to Dr. O’Hare’s revised report. Henrico County filed a petition on March 22 with several objections, among which was that the County should not be held accountable for not using data unavailable to it in 1981, O’Hare used updated Census information in his revised report to draw a five-member plan with a black majority district. The ACLU filed a one page objection on March 29, stating that 13 of the 14 census tracts added to O’Hare’s black majority district were majority white, which diluted the black voting strength (Kelly 1990a).

During the first week of April 1990, attorneys with the ACLU filed a petition requesting that Merhige stay the case for another year to allow for more current census data and allow the group to participate in redistricting. At the same time, Henrico’s attorneys entered a petition that requested Merhige issue a final order that no remedy could be found, thus freeing Henrico to conduct redistricting without intervention from the ACLU.

On April 16, 1990 Merhige held a hearing in which he read aloud an order from the bench that was premised on the assumption that the 1990 Census data would be available in approximately one year. Merhige stayed further action on O’Hare’s revised report pending receipt of the 1990 Census, ordered the county to provide the ACLU with copies of the 1990 Census within 24 hours of receipt and submit a remedial redistricting plan to him within 20 days after the ACLU received the data prohibited implementation of any redistricting plan without his approval, provided for the deadlines for supervisor elections to be postponed if redistricting took longer than expected, and removed the requirement that the ACLU had to post a bond with security in collection ofthe $176,409 in legal fees from Henrico. The ACLU considered Merhige’s order a significant victory because it had a role in the redistricting process based on the 1990 Census data. The county notified Merhige of their intent to appeal because they objected to the requirement that they submit Census figures to the ACLU. Merhige told Harvey Chappell that an appeal would be wasteful judicial energies.

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The County’s Appeal

The long awaited appeal by Henrico occurred on May 2,1990-almost a year and a half after Merhige’s decision. The 38-page petition submitted to the 4th Circuit Court ofAppeals argued that Merhige erred when he declared the county had violated Section 2 of the Voting Rights Act. Henrico asked the 4th Circuit to remove the stay that Merhige had issued on April 16, 1990 requiring the county to involve the ACLU in redistricting. The appeal also requested the county’s check for $1 76,408.78, mailed the previous day, be returned from the ACLU. Dr. O’Hare’s revised report was criticized and the county asked how it could have foreseen the increase in black population in 1981. The ACLU believed the appeal was improper because Judge Merhige had never issued a final order.

Three weeks after Henrico County filed the appeal, the 4th Circuit Court of Appeals issued a stay of Judge Merhige’s order and ordered the ACLU to return the check of $1 76,408.78 to Henrico County (Kelly 1990b). The 4th Circuit agreed to hear oral arguments on whether an appeal should be granted. County representatives were upbeat about the first favorable decision in the case; the ACLU viewed the order to return the funds as a small setback.

Oral arguments for both sides were held on October 30. Attorneys stood in front of the three appellate judges and each had thirty minutes to present its case. R. Harvey Chappell argued that Henrico County could not have drawn a majority black district in 198 1 without relying on significant white crossover voting. He stated that less than 50 percent of blacks would vote in the proposed district and 10 to 20 percent of the white vote was needed to elect a black candidate. Chappell said the county should not have to implement the ACLU’s ”pink salamander” district because it was not “compact” (Green 1990, 3). The ACLU attorney replied that Henrico County was an oddly shaped county and that the magisterial districts would be oddly shaped as well. The attorney admitted that black voters would not constitute 50 percent of the turnout. However, he argued the ACLU had submitted a proposal with a black voting age population ofover 50 percent, but that the county was against it. The ACLU argued that the county’s appeal was frivolous because Merhige had not determined a plan in the case.

Two months later, on December 28, the 4th Circuit Court of Appeals issued an order suspending U.S. District Judge Merhige’s April 16 decision. That meant that the county, after receiving Census data, would not have to submit aredistricting plan for review by Merhige and the ACLU. The attorneys and members of the Board of Supervisors for Henrico County were extremely happy with the ruling; however, both sides agreed that the case was still very

Political Representation 239

active and viewed the order as a temporary measure.

The Result

When the U.S. Census figures came out in February 1991, the Fairfield District of Henrico County had a majority black population. The District had grown by five percent from 35,732 in 1980 to 38,667 in 1990. The black population was 23,028, or 60 percent of the population in the District. In response to these figures, the vice chairman of the Board of Supervisors said, “The blacks will get a district that’s majority black” (Kelly 1991, I) .

On February 27, the day the county was to host the first public hearing on redistricting, the 4th Circuit Court ofAppeals issued an opinion that dismissed Henrico County’s appeal. The three-judge panel ruled the appeal was premature and the Court lacked jurisdiction to rule because Judge Merhige had not issued a final decision in the case. The panel wrote that Merhige’s rulings “do not amount to a final order from which an appeal may be taken” and found that Merhige had “failed to make a final ruling on the matter of an appropriate remedy” for the violation of Section 2 of the Voting Rights Act (Williamsand Kelly 1991,14).

Henry L. Marsh, attorney for the black plaintiffs, believed the ruling showed that the county’s appeal “bordered on frivolous” (Williams and Kelly 1991, 14). He believed the ruling by the 4th Circuit assured a majority black district would be drawn. Lawyers for the county and members of the Board of Supervisors believed the decision was not negative. The chairman of the Board of Supervisors said, “All I was informed was that we didn’t win, we didn’t lose, but the appeal was premature” (Williams and Kelly 1991, 14).

The Board of Supervisors had a vote on a new redistricting map on April 24. Under the new plan, the total black population of Fairfield District increased to 60.6 percent and the black voting age population increased to 55.84 percent. Most sides were pleased with the new plan.

In early January 1992, nearly four years after Judge Merhige had issued the order that Henrico violated Section 2 of the Voting Rights Act, he dismissed the case. The county had agreed to pay a $200,000 settlement toward the legal fees of the ACLU. Through November 1991, the county had spent $729,675 for retaining Christian, Barton, Epps, Brent, and Chappell. In addition, the county owed $200,000 to the ACLU, $30,199 for expert fees during the 1988 trial, $1 1,592 for paralegal fees, and $25,000 for a final bill from Christian, Barton, Epps, Brent, and Chappell. The total amount the county spent on defending the 1981 magisterial districts was over $1 million, not including the cost or time the county attorneys had spent on the case (Kelly 1992).

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John Waldrop, the white supervisor, won reelection in 1991 by three votes in the new Fairfield District. His African-American opponent, Frank Thomton, tried to contest the election, but was not successful. Waldrop said his reelection in 1991 was “100 percent vindication ofthe county’s position” (Kelly 1992, 1 ).

Conclusion

Like other suburban counties in the South, the County of Henrico in Virginia has experienced a transformation of its population. Henrico experienced a strong influx of whites in the 1960s and 1970s. The trickle of black settlement in the late-l970s, turned into a heavy tide of black suburbanization in the 1980s and 1990s. By the 2000 census, the county was 25 percent African American. African Americans settled in southern suburban areas, such as Henrico County, for many of the same reasons whites had settled there in the past. However, established white public officials created public policies that did not represent the voice of the black population and the black community felt it was not represented.

This article analyzed how the black community in Hennco County desired the opportunity to elect a candidate that would represent their interests. Through a redistricting suit, which made use of the Voting Rights Act, black plaintiffs and a black political organization took on the white establishment of the suburban county in the federal courts. The black community knew that it had a sufficient black population to challenge the status quo. The white Board of Supervisors and the white county government structure fought the black plaintiffs at every step. They viewed the redistricting suit as an infringement upon their ability to govern. In the end, the black population received amajority black district, but at the cost ofdivision between the white and black population in the county and thousands of taxpayer’s dollars. An article in the Richmond Times-Dispatch summarized the conclusion of the suit-’% ends without a clear winner, and with neither side admitting error” (Kelly 1992, 8). Both sides were adamantly divided over the accomplishments of the suit and who should have received credit for the creation of a black majority district.

The analysis of this voting rights suit could stop here: a growing black population in a suburban area trying to gain representation through the federal court system. This sounds familiar to the struggles of the Civil Rights era in Virginia; however, this suit occurred in the late 1980s and into the early 1990s. The Metropolitan Richmond region has suffered from strained racial relationships for many decades. When Henrico was under attack by the ACLU

Political Representation 24 1

and the black plaintiffs, i t reverted to arguments that were typical of the Massive Resistance era in Virginia in the 1950s and 1960s. The black population reverted to Civil Rights era fighting mechanisms. During Massive Resistance, laws were passed by the General Assembly to control and stem the rise of integration and black political incorporation. In particular, members of the General Assembly wanted to stop the initiation and financingof lawsuits. Much like the case brought forward by the black plaintiffs in Henrico County, the African American population in various locations across the state had to use the federal court system to integrate school systems and achieve fair political representation.

Another factor to consider is that the late- 1980s was a period of racial change at the state political level in Virginia. In 1989, L. Douglas Wilder became the first African-American governor in Virginia, and to this day he is the only African-American who has been elected governor in the United States. His election provided the African-American population in Virginia and across the country with a reason to believe that it could break other barriers at the state and local political levels. This occurred in the black community in Henrico where a renewed demand for public resources, political representation, and inclusion in suburban politics and public policies led up to the redistricting suit.

Finally, the analysis of the growing black population in the suburb of Henrico County paralleled some factors discussed in Moeser and Silver (1994) and Silver and Moeser (1 995). These two works discussed the black struggle for power in the southern urban areas of Atlanta, Memphis, and Richmond and posit that the black population in these three urban areas developed separate and distinct mechanisms outside the white establishment to achieve political power. The fight to achieve political representation and equality in public policies was spurred forward by a younger generation of black activists using different techniques and eschewing different ideas. Obviously other southern suburban counties need to be examined before generalizations can be made, but as the black population continues to increase in southern suburbs, the question remains as to whether or not southern suburbs will become the new battlegrounds for civil rights and if this does occur, whether the fight for equal rights and representation will follow the path of the Civil Rights movement or take on new mobilization mechanisms entirely different than those that occurred in Henrico.

242 Politics 63 Policy Vol.32 No. 2

Appendix

Cases

McDaniel v. Mehfoud, 702 F. Supp. 588 (1988)

Thornburgh v. Gingles, 478 U.S. 30 (1986)

Notes

I For more information about the increase in the black population of the county as detailed in the 2000 Census, see Farmer (2001) and Martz (2001).

In the 1950s, James J. Kilpatrick, the News Leader's editor during Massive Resistance, used the term interposition repeatedly in editorials.

Political Representation 243

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