Full opinion text
MEMORANDUM OPINION AND ORDER DAVIDSON, District Judge. Invoking this court’s federal question and civil rights subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1973j(f), the eight named individual plaintiffs and two organizational plaintiffs brought this voting rights action individually and on behalf of two plaintiff classes which have previously been certified in this action as: (1) all black citizens of Mississippi who are eligible to vote but are not registered to vote, and (2) all black registered voters in Mississippi. Fed.R. Civ.P. 23(b)(2). The plaintiffs challenge Mississippi’s dual registration requirement and prohibition on satellite or off-site voter registration under the Fourteenth and Fifteenth Amendments to the United States Constitution, Section 2 of the Voting Rights Act of 1965, as amended, (42 U.S.C. § 1973), and under 42 U.S.C. §§ 1971 and 1983. The plaintiffs seek declaratory and injunctive relief against the continued enforcement of several Mississippi statutes which regulate voter registration in the above indicated manner. This action was filed on March 1, 1984. At that time there was already legislation pending in the Mississippi Legislature which would amend a number of the challenged statutes. Some of the bills had been reported out of committee at that point in time. Eventually, the challenged statutes were amended in the 1984 session of the Legislature and were submitted to the United States Attorney General for pre-clearance under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c. After the amended statutes were passed, the defendants moved to dismiss this action for mootness/ In denying defendants’ motion to dismiss, the court recognized that the amended statutes did not completely eliminate either dual registration or the prohibitions on satellite or off-site voter registration. This action, therefore, challenges the continued restrictions and limitations on free and equal voter registration, as well as other obstacles to voter registration purportedly created by the Mississippi statutes, including the uncontrolled discretion given county voting registrars. Plaintiffs contend that the retention of unguided discretion and a statutory scheme that has been historically used to disenfranchise black citizens of Mississippi unnecessarily burdens the participation of black citizens in the political process and that, in the application of this statute, registrars have used this discretionary authority in a racially discriminatory manner. Following extensive discovery, a pretrial conference, and the entry of a pretrial order, this action was tried before the undersigned United States District Judge, sitting without a jury, in Oxford, Mississippi. Having considered the oral and documentary proof received at trial and the parties’ pretrial memoranda, proposed findings of fact and conclusions of law, and supplements thereto, the court makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a) and in accordance with the Fifth Circuit’s requirement of detailed findings of fact in voting rights cases. Velasquez v. City of Abilene, Texas, 725 F.2d 1017, 1020-1021 (5th Cir.1984). FINDINGS OF FACT I.GENERAL BACKGROUND A. The Parties. 1. The named plaintiffs, Charles Green, Eugene Pressley, L.C. Felix, Bessie Tucker, Lawrence Diggs, and Randy Curtis, are all black citizens residing in various counties in the State of Mississippi eligible to register to vote but who, as of the time of filing the complaint in this action, not registered to vote. Named plaintiffs Sam McCray, Robert Jackson, and Leslie McLe-more are black citizens residing in various counties in the State of Mississippi who are registered voters in Mississippi. Plaintiff Sam McCray and Robert Jackson both lost their respective bids in 1983 to be elected chancery clerk and supervisor in District 2 in Quitman County, Mississippi. Plaintiffs Quitman County Voters League and Mississippi State Chapter Operation Push, Inc., are non-profit organizations that engage in voter registration drives and other activities designed to increase black opportunities to participate in the political process. 2. The defendants in this action are Governor William A. Allain, Attorney General Edwin Lloyd Pittman, and Secretary of State Dick Molpus, named in their official capacities and as members of the State Board of Election Commissioners. Pursuant to Mississippi Code Annotated, § 23-15-223 (Spec. Pamph. 1986), the State Board of Election Commissioners is responsible for appointing the registrars of elections in each Mississippi county. Additional named defendants are Lillie B. Brown, Circuit Clerk and County Registrar of Quitman County; Robert Carter, Circuit Clerk and County Registrar of Panola County; Martha Sellers, City Clerk and City Registrar of Crenshaw, Mississippi; Billy Jones, City Clerk and City Registrar of Sledge, Mississippi; Royliene Griffin, City Clerk and City Registrar of Crowder, Mississippi. Defendants Brown, Carter, Jones, Sellers, and Griffin are sued in their official capacities and as representatives of the two defendant classes certified by the court in its orders of January 17 and 23, 1985, as: (1) all Mississippi Circuit Clerks/County Registrars and (2) all Mississippi City Clerks/City Registrars, including, but not limited to, any individual serving in such capacity in any Mississippi municipality, as that term is defined in Mississippi Code Annotated, § 21-1-1 (1972). 3. At all relevant times in this action the defendants were and have been acting under color of the statutes, ordinances, regulations, customs, and usages of the State of Mississippi. 4. Since 1965, the State of Mississippi, and all of its political subdivisions have been covered by the suspension of tests, provisions (Section 4), and the federal pre-clearance of voting law changes provision (Section 5) of the Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1973b and 1973c. B. Pre-1984 Statutes. 5. At the time this lawsuit was filed, to be a qualified elector for all municipal elections, a resident of a municipality was required to register with the municipal clerk after having registered at the office of the county registrar. Miss. Code Ann. § 21-11-1 (1972). This practice was known as “dual registration”. 6. Then, as now, the circuit clerks functioned as the county registrars pursuant to appointment by the Mississippi State Board of Election Commissioners. The county registrars have the power to appoint deputy registrars with the consent of the Mississippi Board of Election Commissioners. Compare Miss. Code Ann. § 23-5-7 (1972) with Miss. Code Ann. § 23-15-223 (Spec. Pamph.1986). 7. The names of electors (voters) were placed into registration books (or poll books), which were required to be maintained by municipal and county registrars. Miss. Code Ann. §§ 21-11-3, 23-5-25, 23-5-29 (1972). 8. Prior to 1984, the county registrar was not permitted to remove the registration books containing the names of county electors from his offices; however, under certain circumstances the county board of supervisors could order the registrar to spend no more than one day at any precinct in the county. Miss. Code Ann. § 23-5-29 (1972). C. 1984 Amendments to Mississippi Election Law. 9. In the 1984 legislative session, the Mississippi Legislature enacted 1984 Mississippi Laws, chs. 457 and 460. On August 3,1984, these amendments to the election laws took effect after having been pre-cleared by the U.S. Attorney General on that date. Subsequently, in the 1986 legislative session, the Mississippi Legislature recodified all statutes relating to registration and voting and reissued them in an “election code”, enacted as 1986 Mississippi Laws, ch. 495 and published as a Special Pamphlet. 10. The offices of the Secretary of State and the Attorney General of the State of Mississippi promulgated a document entitled, “Guidelines for the Implementation of Voter Registration Procedures Under House Bills 713 and 596,1984 Regular Session”, which was distributed to the circuit clerks in the State of Mississippi on or about August 19, 1984. A meeting was held on that date for all circuit clerks and their deputies to advise them of the amendments to the voter registration and election statutes and the effects thereof on their voter registration activities. (1) Dual Registration After 1984 Amendments 11. Pursuant to the amended statutes, particularly Mississippi Code Annotated § 23-15-223 (Spec.Pamph.1986), the clerk of every municipality with a population of 500 or more is required to be appointed as a deputy registrar, provided that such clerk is employed by the municipality on a full-time basis and that the clerk’s office is opened for regular hours each day. In order to meet the statutory requirements for mandatory deputization, the city clerk’s office must be open every business day, Monday through Friday each week. Municipal clerks not meeting the statutory requirements for mandatory appointment may nevertheless be appointed deputy registrars at the discretion of the circuit clerk. 12. Notwithstanding the 1984 amendments, residents of some municipalities remain subject to two types of continued “dual registration” requirements. In areas where the municipal clerk has not been appointed as a deputy county registrar, registration with the municipal clerk only entitles residents to vote in municipal elections. Furthermore, to register with the municipal clerk, one must be duly registered with an officer of the state (i.e., a circuit clerk or duly appointed deputy registrar). Miss. Code Ann. § 23-15-11 (Spec. Pamph.1986). In some municipalities, therefore, to become eligible to vote in county, state, and federal elections, residents must first register with the county registrar or a duly appointed deputy registrar. Dual registration thus persists for residents of many municipalities under 500 in population, and for residents of municipalities over 500 in population where the municipal clerk either is not full-time, does not keep regular daily office hours, Miss. Code Ann. § 23-15-223 (Spec. Pamph. 1986), or the municipal clerk has not been otherwise deputized in the State of Mississippi. In the State of Mississippi, there are at least 83 municipalities with a population under 500. Exhibit P-120. 13. Although the statute now provides for the clerk of the municipality to be authorized to act as a deputy county registrar upon appointment by the circuit clerk, the operation of § 23-15-223 is not retroactive. See Miss. Code Ann. § 23-15-39(8) (Spec. Pamph.1986). Thus, municipal residents who registered with the county registrar prior to August 3, 1984, but who have never registered with the municipality are required to register with their city clerk as a municipal elector and may not be administratively placed on the city voter rolls. Pri- or to 1984, as testified at trial by several witnesses, the standard registration form did not reflect whether a voter resided within the corporate limits of a municipality within the county. See Miss. Code Ann. § 23-5-17 (1972). This is understandable since the voter was required to register separately with his municipal registrar. The current application for registration is a triplicate form, a sample of which is set forth in Mississippi Code Annotated § 23-15-39 (Spec. Pamph. 1986). The application now reflects, inter alia, a prospective voter’s name, address, telephone, prior residence addresses, whether the voter resides within the corporate limits of a municipality within the county, and the voter’s social security number. (2) Satellite Registration After 1984 Amendments 14. Under the amended statute, the county registrar may request an order authorizing the removal of the registration forms from the office of the county registrar in order to “visit and spend such time as [the registrar] may deem necessary at any regular voting precinct in his county, or if such polling place is not available, at an alternate place selected by the registrar and approved by the Board of Supervisors.” Miss. Code Ann. § 23-15-37 (Spec. Pamph.1986). Registration that is conducted outside of the offices of the registrars in this manner is referred to as “off-site” or “satellite” registration. The current statutes also do not limit the number of applications which may be taken from the clerks’ offices for the purpose of conducting such off-site or satellite registration. 15. Satellite registration, however, is permitted only at the request of the circuit clerk, with approval by the board of supervisors. Once approval is given, off-site registration may then be conducted in accordance with an approved plan devised by the clerk, and upon publication of notice in advance of the registration. Miss. Code Ann. § 23-15-37 (Spec. Pamph.1986). The original House Bill, as drafted by the House-Senate Conference Committee, provided that off-site registration must be held at least once a year. The original bill also contained a provision allowing circuit clerks to register voters anywhere within the geographic area of a precinct. Stipulations 177 and 178, Pretrial Order. 16. The district court in Jordan v. Winter, 604 F.Supp. 807 (N.D.Miss.1984) (three-judge court) aff'd. sub nom. Mississippi Republican Executive Committee v. Brooks, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984), made certain findings of fact regarding past discrimination in the State of Mississippi. The court takes judicial notice of those findings as quoted below. That Mississippi has a long history of de jure and de facto race discrimination is not contested. That history has been often recounted in judicial decisions and includes the use of such discriminatory devices as poll taxes, literacy tests, residency requirements, white primaries, and the use of violence to intimidate blacks from registering for the vote. The State is a covered jurisdiction under the Voting Rights Act of 1965. The Attorney General has designated 42 of the counties in Mississippi for federal registrar enforcement of the right to vote. We find that the effects of the historical official discrimination in Mississippi presently impede black voter registration and turnout. Black registration in the Delta area is still disproportionately lower than white registration.... Blacks hold less than 10 percent of all elective offices in Mississippi, though they constitute 35 percent of the state’s population and a majority of the population of 22 counties. 604 F.Supp. at 811-812. 17. Mississippi’s original dual registration requirement was enacted as part of the “Mississippi plan” to deny blacks the right to vote following the Constitutional Convention of 1890. Exhibit P-137. 18. Because the Fifteenth Amendment to the U.S. Constitution prohibited an express denial of the right to vote to black citizens, the 1890 Constitutional Convention adopted instead indirect voter qualifications and procedures to deny black citizens the right to vote. These included: (1) a poll tax; (2) a literacy test for voter registration, which required the applicant for registration to be able either to read a section of the Mississippi Constitution or to give a reasonable interpretation thereof; (3) a durational residency requirement of two years in the state and one year in the election district; and, (4) a disenfranchising crimes provision, all designed to exclude black citizens from participation in the electoral process. Miss. Const. Art. 12, §§ 241, 243, 244 (1890); V.L. Wharton, The Negro in Mississippi, 1865-1890 213-14 (1947); A.D. Kirwan, Revolt of the Rednecks: Mississippi Politics: 1876-1925 68-72 (1951); Ratliff v. Bealle, 74 Miss. 247, 266-68, 20 So. 865, 868-69 (1896); Exhibit P-137. 19. In 1892, in its next regular session following the Constitutional Convention of 1890, the Mississippi Legislature adopted a series of statutes to codify and implement the voter qualification provisions of the Constitution of 1890. Mississippi Code of 1892, ch. 113, §§ 3612, 3613, 3614, and 3631. Along with these statutes, the Legislature also adopted the dual registration requirement providing for separate voter registration for municipal elections and for the appointment of municipal registrars of voters to register voters to vote in municipal elections. Mississippi Code of 1892, ch. 93, §§ 3028, 3029. 20. Under the new voter registration requirements, by 1892 only an estimated 5.7 percent of the black voting age population of Mississippi was registered to vote. Wharton, The Negro in Mississippi at 215; Exhibit P-137. 21. In 1955, Mississippi enacted a series of statutes with the obvious intent of preventing or inhibiting black voter participation, including a statutory prohibition bn satellite registration designed to strengthen the existing literacy test and to prevent blacks from voting. Exhibit P-137. Previously, Mississippi law had required county registrars in each county election year to “visit and spend one whole day at each voting precinct in his county, not less than four months before said election, for the purpose of registering voters, after having given notice by publication for three consecutive weeks of the times and places of such visits.” Miss. Code Ann., § 3211 (1942). 22. In an extraordinary session of the Mississippi Legislature in 1955, the Legislature enacted a statute, Miss. Laws, 1955 Extra Sess., ch. 103, which prohibited the removal of the voter registration book from the county registrar’s office. This statute, along with other legislation of the extraordinary session, was apparently enacted for the purpose of racial discrimination against prospective black voters. Exhibit P-137. 23. The 1955 statute amended existing law by providing that “the registration books shall not be removed from the office of the county registrar” except by order of the board of supervisors. The statute stated: Provided, however, during the year of the regular county and general election, or in the event a new registration be ordered by the Board of Supervisors as provided by law, the Board of Supervisors, by proper order entered upon the minutes, may order the registrar to visit and spend not exceeding one day at any voting precinct in his county, not less than four months before said election, for the purpose of registering voters, after having given notice by publication of the times and places of such visits. Mississippi Laws, 1955 Extra. Sess., ch. 103. This prohibition on removing the voter registration books from the county registrar’s offices, first enacted in 1955, is still contained in the present statute, § 23-15-37 (Spec. Pamph.1986), with some modifications enacted in the 1984 amendments. All legislative amendments to the Mississippi registration laws, however, have retained the prohibition: “The registration books shall not be removed from the office of the county registrar”. Id. 24. The impact of the statutes enacted in 1955 was swift. Black voter registration declined to almost half of its previous level. Exhibit P-137; United States Commission on Civil Rights, Voting in Mississippi 8 (1965). 25. In 1960, the Mississippi Constitution was amended to require “good moral character” as a qualification for voting. Mississippi Constitution, Article 12, § 241-A. In 1962, the Mississippi legislature enacted an additional series of statutes, including the “good moral character” test, to impede black registration, including a prohibition on any assistance in filling out voter registration forms, a ban on registrars providing applicants any reasons for rejecting their applications for registration, a requirement that the names and addresses of all applicants for registration be published in a local newspaper, and a procedure for challenging the good moral character of any applicant for registration. 1962 Mississippi Laws, chs. 570-574; Exhibit P-137. 26. In 1984, Mississippi was apparently the only state which maintained statutes explicitly requiring dual registration statewide and prohibiting county registrars from removing the registration books from their offices to conduct registration. Note, Eradicating Racial Discrimination in Voter Registration: Rights and Remedies Under the Voting Rights Act Amendments of 1982, 52 Fordham Law Review 93 n. 7, 103 n. 51 (1983). 27. As Dr. Steven Hahn, a history professor at the University of California at San Diego testified, Mississippi’s statutory dual registration requirement and prohibition on removing the voter registration books from the offices of the county registrars were adopted for a racially discriminatory purpose. II. DISCRIMINATORY RESULT OF THE CHALLENGED STATUTES 28. The remaining features of Mississippi’s dual registration requirement and the prohibition on satellite registration have a discriminatory result and deny black voters equal access to the political process. 29. Recent federal court decisions of which this court takes judicial notice have made statewide findings that are applicable to this case. These courts have found: (1) that there is an extensive past history of purposeful official discrimination in Mississippi that has touched on the right of black citizens to register, to vote, and otherwise to participate in the democratic process; (2) that racially polarized voting has prevailed in Mississippi elections, resulting in the defeat of black preferred candidates by white bloc voting and in black voters being unable to elect candidates of their choice; (3) that there continue to exist socio-economic disparities between whites and blacks in Mississippi that impair equal access to the political process in Mississippi; (4) that there is evidence of racial campaign tactics still being used in Mississippi; and (5) that the percentage of elected officials who are black remains disproportionately low. Martin v. Allain, 658 F. Supp. 1183 (S.D.Miss.1987); Jordan v. Winter, supra. 30. The findings of these other courts are also supported by the evidence in this case. 31. Dr. Allan J. Lichtman, Dean of the College of Arts and Sciences at American University in Washington, D.C., testified extensively as an expert on behalf of plaintiffs and submitted a report in support of his conclusion that blacks continued to be registered to vote in substantially lower numbers than whites. Exhibit P-130. 32. Dr. William P. O’Hare, a demographer with the non-profit corporation known as Population Reference Bureau, testified concerning the remaining substantial socioeconomic disparities between blacks and whites in Mississippi. In his report presented to the court, Dr. O’Hare concluded that the lower availability of automobiles to blacks and the restrictions on satellite registration and restricted registration hours have all had and continue to have a disparate impact on blacks. Exhibit P-133. Dr. O’Hare also testified that the unavailability of telephones to some 30 percent of black households in Mississippi makes it more difficult for blacks to obtain information about procedures for registering to vote. Exhibit P-133. 33. The court notes that these various factors of automobile unavailability and restricted registration sites and hours would presumably also have an adverse impact on poor whites in Mississippi. It is highly improbable, in the court’s estimation, that all poor persons in Mississippi are black. Indeed, State Senator Henry Kirksey testified that the 1984 amendments to Mississippi’s election laws have had a discriminatory impact on all “poor people”, but especially on blacks. The court is bound, however, by the record made at trial and the record is devoid of any probative evidence from defendants regarding the effect, if any, of the 1984 amendments on poor whites in Mississippi. 34. Based on the totality of the circumstances, proof presented in this case shows by a preponderance of the evidence that Mississippi’s current dual registration requirement and current statutory prohibition on removing the voter registration books from the circuit clerk’s office, Miss. Code Ann. §§ 23-15-39, 23-15-37, 23-15-223 (Spec. Pamph.1986) result in a denial or abridgement of the right of black citizens in Mississippi to vote and participate in the electoral process. A. Voter Participation Rates for Blacks. \ 35. According to a recent analysis of returned jury summons performed by plaintiff’s expert Dr. Lichtman, approximately 54 percent of voting age blacks (“VAP”) are registered to vote while 79 percent of the white voting age population (“VAP”) are registered to vote. Exhibit P-130. However, the 1984 census survey results indicate 85.6 percent of Mississippi’s black VAP report that they are registered to vote and 81.4 percent of Mississippi’s white VAP report that they are registered. 36. In order to arrive at a reliable estimate of voter registration rates, by race in Mississippi, Dr. Lichtman studied the returned jury questionnaires/summonses for the United States District Court for the Northern District of Mississippi. The questionnaires ask for, inter alia, racial identification of the voter, and are sent to a random sample of registered voters. The returned questionnaires for the years 1981-85 analyzed by Dr. Lichtman constitute a sample of all eligible persons, since this sample excluded those who had become ineligible as a result of address changes or death. Exhibit P-130. 37. Analysis of 19 mailings from the four divisions of the Northern District of Mississippi disclosed a lower rate of registration for blacks than for whites at three postulated rates of registration. Independent tests meeting stringent statistical criteria ruled out the possibility that random error in sampling black over-representation among the returned questionnaires is responsible for the finding that the white registration rate exceeds the corresponding rate for blacks. Exhibit P-130. 38. Results gained from this analysis of the jury selection process were also used to estimate the actual rates of valid registration for blacks and whites in the entire state. Two independent estimation procedures indicated that probably only 71 percent of the state’s overall VAP was validly registered to vote in 1984. Exhibit P-130. When the white versus black differentials for the Northern District were applied to this overall registration rate, the result for 1981 to 1985 shows that the valid registration rate for whites is approximately 25 percentage points above that rate for blacks. Id. 39. Census data notwithstanding, it is clear that black registration lags behind that of whites in Mississippi. Both the standard sources of information on voter registration — census data and Mississippi’s official registration statistics — have been shown to be unreliable. The census data concerning registration are based on self-reporting, which research has shown to be inaccurate when the self-reported data on registration and voter turn-out are compared to actual registration and voting records. J. P. Katosh and M. W. Traugott, The Consequences of Validated and Self-Reported Voting Measures, 45 Public Opinion Quarterly, 519 (1981); Exhibit P-130. The 1984 census T.gures are also based on a survey of a very small sample of Mississippians, which may or may not reflect their proportion in Mississippi’s population, and an even smaller group of black respondents. The parties also stipulated that the figures presented in this census survey are “weighted”, are self-reported, and are not validated in any manner by the Bureau of the Census. 40. Dr. Lichtman testified that while substantial disparities for all states exist between the actual vote cast and the vote expected based on the census survey, for Mississippi the percentage of discrepancy, or over-estimation of voting, was 32.75 percent, which was considerably larger than the average discrepancy for other states. Exhibit P-130. 41. According to Dr. Lichtman, there are a number of reasons for the inaccuracy in self-reported registration and turnout rates. First, responses to questions that require recollection of past events are not likely to be as accurate as questions on items of present fact. Second, answers to questions that require simply a yes or no answer, rather than questions that require specific information, require less thought Moreover, respondents are more likely to give a yes answer to a question asking whether they have registered or voted because it is likely that the respondent will view an affirmative answer as a better answer, even though not necessarily the correct answer. D. Cahalan, Correlates of Respondent Validity in the Denver Validity Survey, 41 Public Opinion Quarterly 621 (1968). Additionally, a number of studies have clearly indicated that blacks tend to over-report registration and turn-out in a far greater proportion than do whites, even when the differences in socio-economic status and other factors are controlled for in a regression analysis. P.R. Abramson and W. Claggett, Race-Related Differences in Self-Reported and Validated Turnout, 46 Journal of Politics 719 (1984); R.D. Shingles, Black Consciousness and Political Participation: The Missing Link, 75 American Political Science Review 76 (1981). 42.Dr. Lichtman explained that the unreliability of the official Mississippi registration statistics stems from inconsistent purging of the registration rolls and the absence of consistent race-specific data. In many counties, the number of persons reported and recorded as registered exceeds either the population as a whole or the voting age population of the county. The likelihood that the official statistics are incorrect is bolstered by a comparison between the number of individuals listed on the registration rolls and the voter turn-out in elections. While official records indicate that in 1984, 92.2 percent of the VAP was registered, making Mississippi’s registration rate the highest in the nation, only 56.4 percent of the registered voters actually turned out to vote. Dr. Cloward, another of plaintiffs’ experts testified that there is a strong, positive correlation between voter turn-out and voter registration. Thus, a large percentage of registered voters should have been mirrored by a large voter turnout in Mississippi. 43. Defendants have provided no expert testimony on the question of registration rates or any other subject in this dispute, but instead have relied on the clearly unreliable official state statistics and the unvalidated 1984 census data. 44. Neither the official state registration statistics nor the 1984 census data can be relied upon to give an accurate count of registered voters by race, for the reasons detailed above. Plaintiffs have shown by a preponderance of the evidence that black citizens of Mississippi are more likely than not registered at a rate of approximately 54 percent of the black VAP, while whites are more likely than not registered at a rate of approximately 79 percent of the white VAP. Thus, the black registration rate is approximately 25 percentage points below the white registration rate. B. Current Discriminatory Results. 45. Since 1984 the dual registration requirement has continued to have a discriminatory impact on blacks. More black citizens than white have been denied the right to vote in municipal elections, because their names could not be found on municipal voter registration rolls, and this has probably resulted in the defeat of black candidates. 46.According to reports of federal observers and as stipulated by the parties, in the following municipal elections, the following numbers of persons, by race, were not permitted to vote in the municipal elections listed below, because their names could not be found on the city voter rolls: CITY YEAR TOTAL WHITE BLACK Holly Springs 1985 888 48 835 Moorhead 1985 47 8 44 Clarksdale 1986 208 15 198 Marks 1987 148 7 141 Tutwiler 1987 78 8 70 47.In the March 10, 1987 municipal Democratic primary election in the City of Marks, Mississippi, 56 voters who had registered to vote with the Quitman County Circuit Clerk prior to August 3, 1984, but who had not registered with the Marks Municipal Clerk, were required to cast affidavit ballots by election officials. These affidavit ballots were later rejected and not counted by the Marks Municipal Democratic Committee. All 56 of these voters were black. In that election, two black candidates for the board of aldermen lost by voter margins less than the number of affidavit ballots that were rejected. A black candidate running for an at-large position lost by 40 votes. In Ward 3, a black candidate lost by only one vote. At least 15 of the affidavit ballots rejected were cast in Ward 3. A black was, however, later elected as Mayor of Marks on April 7, 1987 and a black was elected to one of five aldermen positions in the City of Marks. C. Socio-Economic Disparities. 48. Disparities exist between white and black citizens throughout Mississippi in the areas of education, income, employment, housing and other socio-economic categories. For example, the median income of black families in Mississippi in 1979 was only 51.1 percent of that of white families, while the percentage of black citizens living below the poverty level was almost four times the percentage of whites living below the poverty level in Mississippi. Of white Mississippi residents age 25 and older in 1980, 63.9 percent had finished high school and 14.4 percent had completed four or more years of college, while the comparable figures for black residents were 33.2 percent and 7.1 percent, respectively. Exhibit P-133. The unemployment rate for blacks 16 years of age and over was 17.9 percent, according to the 1986 estimate compiled by the Mississippi Employment Security Commission, while for whites the corresponding figure was only 6.7 percent. 49. The continued statutory prohibition on satellite registration and the remaining vestiges of the dual registration requirement have a disparate impact on the opportunities of black citizens in Mississippi to register to vote because of their socio-eco-nomic and occupational status. Again, the court notes that a similar impact is in all probability suffered by whites of low socioeconomic status, however, no proof on this fact was offered by defendants. 50. Dr. O’Hare testified and the court finds that black workers in Mississippi predominate in blue-collar and service worker positions in which they are likely to be working for an hourly wage and are less likely to be able to take off from work to register to vote during the regular office hours that the circuit clerk’s and municipal clerk’s offices normally are opened. 51. As explained in Dr. O’Hare’s report and testimony, black citizens also are much less able than whites to travel to the county courthouse, or other centralized voter registration locations to register to vote. According to the 1980 census, 27.8 percent of all black-occupied households have no vehicle available at home for household use, as compared to 6.76 percent of white-occupied households. This disparity is particularly severe in the Delta area of the state which includes most of the black majority counties of Mississippi. There are 27 counties in Mississippi where the ratio of black households without a vehicle to white households without a vehicle is 4.0 or more, and a disproportionately high number of these are the black majority counties in the Delta area. Lay witnesses testifying for plaintiffs corroborated Dr. O’Hare’s findings, stating that many of their volunteer voter registration drives conducted were dependent on the provision of transportation to prospective voter registrants. In addition, a disproportionately high percentage of black households do not have a telephone available for household use. Exhibit P-133. 52. Dual registration, compounded by limited hours for registration, was and is particularly onerous on poor persons in Mississippi. As previously noted, a disproportionate number of the poor persons in Mississippi are black. D. Current Barriers to Registration. 53. Difficulty in registration is the main reason for not voting. As Dr. Cloward testified, studies have shown that once registered, about 85 percent of registered voters do in fact turn out to vote in presidential elections. 54. Thus, while Mississippi’s registration laws no longer contain provisions that allow registrars to administer explicit tests to citizens, the fact remains that the statutes permit administrative barriers. These administrative barriers are harder to overcome for persons of lower socio-economic status and persons of lower educational attainment, a group that is disproportionately black. Again, this court is prevented from reaching any finding as to the effect of these income and administrative barriers on whites of lower socio-economic status as a result of the defendant’s failure to offer proof as to the effect of income and administrative barriers on poor whites in Mississippi. (1) Failure to Mandate Deputization of all Municipal Clerks 55. As noted above, only municipal clerks who have been appointed as deputy registrars are authorized to register county electors, i.e., voters who are eligible to vote in county, state and federal elections. Miss. Code Ann. § 23-15-35 (2) (Spec. Pamph.1986). In counties with only one municipality, persons who wish to register to vote are required to come into the county seat to register if no off-site plan for satellite registration has been requested and approved. A few examples demonstrate the effect of this limitation on appointment of deputy registrars. 56. Panola County residents of the towns of Crowder, Crenshaw, Pope and Courtland who desire to be eligible to vote in a county or national election are required to travel to Sardis or Batesville, a distance ranging from 5 miles to more than 15 miles one way. 57. Up until January 1987, Quitman County residents of the municipality of Falcon who wished to register to vote in non-municipal elections were required to travel to Marks, Lambert, or Sledge. Up until April 1987, Quitman County residents of the municipality of Crenshaw who wished to register to vote in non-municipal elections were also required to travel to Marks, Lambert, or Sledge, or, after January 1987, to Falcon. 58. The following Bolivar County municipalities have populations under 500: Alligator, Benoit, Beulah, and Winstonville. The parties stipulated that while the Bolivar County municipalities of Duncan and Renova have populations of over 500, the clerks in those municipalities do not qualify for mandatory appointment as deputy registrars, and as of December 5, 1984, no persons had been appointed as deputy registrar for those municipalities. Thus, residents of the Bolivar County towns of Alligator, Benoit, Beulah, Winstonville, Duncan and Renova were not able to simply register with the municipal clerk located in those respective towns in order to be eligible to vote in non-municipal elections, but were required to travel to a county courthouse or the location of a deputy registrar. 59. Persons who reside in the LeFlore County municipality of Schlater or Sidon may only register for non-municipal elections on those days when a qualified deputy registrar might be present or when those persons travel to Greenwood or Itta Bena, a distance of approximately 15 miles since the clerks of the Leflore County municipalities of Schlater and Sidon have not been appointed deputy registrars. 60. The Yazoo County municipalities of Eden and Satartia are approximately 10 miles and 15 miles, respectively, from the closest deputy registrar who is located in Yazoo City. Thus, a round trip of at least 20 to 30 miles would be required to accomplish registration for non-municipal elections for residents of the Yazoo County towns of Eden or Satartia since the clerks of Eden and Satartia do not qualify for mandatory appointment pursuant to Mississippi Code § 23-15-223 (Spec.Pamph.1986). 61. Additional examples were presented at trial. Clay County, for example, has only one municipality, the county seat of West Point. These above-noted instances are indicative of the burden of the continuing requirement of dual registration on many residents of municipalities under 500 in population. (2) The Discretion Granted by Mississippi to the Registrars 62. As discussed earlier in these findings, Mississippi has in the past used practices that impede the right to vote, and numerous courts have found certain practices discriminatory. Even now, the challenged statutes still contain a residual dual registration requirement, as well as a limitation on satellite registration. In addition, the circuit clerks retain a great deal of discretion under the amended statutes. See Stipulations 105, 180-188, Pretrial Order. 63. A survey of 81 circuit clerks in the State of Mississippi, conducted by plaintiffs through their first set of interrogatories to the circuit clerks, revealed that the clerks had conducted satellite registration, held evening or non-mandatory Saturday registration, or appointed deputy registrars other than regular office deputies only on a limited basis, if at all. (a) Satellite Registration 64. Under § 23-15-37, the circuit clerks may decide when and whether to make a request to the board of supervisors for approval of a satellite registration plan. A request to the board of supervisors need not be in writing, need not be made in person, nor even be made at regularly scheduled meetings of the board. These requests may be made to individual board members. Despite this fact, only 20 out of 81 clerks surveyed have made such a request. Exhibits P-72, P-73 and P-74. 65. Once the decision is made to request the authorization, subject to the approval of the board of supervisors, and providing that there is an unavailability of polling places, Miss.Code Ann. § 23-15-37 (Spec. Pamph.1986), circuit clerks then have the discretion to decide where to conduct off-site registration. The dearth of satellite registration was not for lack of requests. In Panola County, no off-site registration was conducted during the years 1975 through 1984. A request made in October 1984 to conduct registration at the Panola High School was denied. In Bolivar County, off-site registration, as of December 19, 1984, had occurred on only three occasions (in 1976, 1979, and 1983), and then such registration was conducted only at the polling places. Plaintiff class members Viola Legette, Chairman of the Bolivar County Democratic Executive Committee, and Victor McTeer, a black attorney made two requests for precinct registration of the Bolivar County Circuit Clerk in 1984. These two requests were not presented to the board of supervisors. 66. Requests were also made to the Quitman County Circuit Clerk to visit polling places but no action was taken. Additionally, plaintiff class members David Jordan, James Singleton, Don Miller, Solomon Osborne, and Edward Florence requested the Leflore County Circuit Clerk to conduct off-site registration in Leflore County at a number of polling places and other sites. The circuit clerk never acted on these requests. Additional requests for satellite registration were denied by circuit clerks who indicated that they perceived no need for such off-site registration. See Exhibits P-72, P-73, P-74, P-86, P-89 and P-90. (b) Evening/Weekend Registration 67. The majority of the circuit clerks maintain office hours of Monday through Friday, 8:00 a.m. to 5:00 p.m., with many closed during the noon hour for lunch. See Exhibit P-73. Of 81 circuit clerks surveyed, only 43 had ever conducted registration after 5:00 p.m. (“evening” registration) and only a few had conducted Saturday registration in addition to that mandated by law. Exhibits P-73 and P-74. In Bolivar County, between 1976 and 1984, Saturday registration in addition to that mandated by law took place on only one occasion, when federal registrars were present. Neither non-mandatory Saturday registration nor any evening registration had taken place in any Leflore County precincts. Additionally, requests for Saturday and/or evening registration in the Leflore County towns of Sidon and Schlater were not acted upon. The Humphreys County Clerk has held no evening registration since at least 1976. See Stipulations 121-131, Pretrial Order. 68. The effect and the inconsistency of the registrars’ varying practices was recognized by a task force convened by Secretary of State Dick Molpus, one of the defendants in this case. The task force noted in 1984: Many counties engaged in off-site registration this fall, while other counties decided against such satellite registration. Some rural counties without municipalities whose clerks qualify as deputy registrars had much of the same difficulties in registration that had prevailed previously. The failure to request or approve off-site registration still results in inconvenience for the applicant. Registration is more accessible in counties which permit off-site plans to go into effect or which have several municipalities whose clerks are deputy registrars, thereby providing effective satellite registration. (c) Appointment of Deputy Registrars 69. Pursuant to Mississippi Code Annotated § 23-15-223 (Spec.Pamph.1986), the registrar may “appoint deputy registrars, with the consent of the Board of Election Commissioners, who may discharge the duties of the registrar.” Pursuant to this appointment authority, municipal clerks, other than those meeting the statutory criteria, as well as volunteers from the community, may be appointed deputy county registrars by the circuit clerk. Yet few deputy registrars have been appointed since the amended law took effect. Indeed, in at least two instances the mandatory appointments had not been made several months after the effective date of the 1984 amendment. Stipulations 108, 112-113, Pretrial Order. As of December 1984, the municipal clerk in Crowder, Mississippi, which has a population of greater than 500, had not been appointed a deputy registrar. Id. Similarly, in Quitman County, despite a letter dated August 8, 1984 notifying the circuit clerk that the Crenshaw Municipal Clerk qualified for appointment under the new law, the appointment had not been made as of the year end. Id. In April 1987, the Crenshaw Clerk was finally appointed as a deputy Quitman County registrar. 70.Numerous requests for appointment of volunteer deputy registrars were denied. For example, in 1984 named plaintiff Samuel McCray, who resides in Marks, Mississippi, submitted a list of some 20 proposed volunteer deputy registrars to the Quitman County Circuit Clerk. Exhibit P-96. McCray testified that the circuit clerk in presenting his request to the board of supervisors noted that there was “no basis for” volunteer deputy registrars under the current law, and that such deputy registrars were not required. Accordingly, none of the individuals whose names were suggested as deputy registrars were deputized by the Quitman County Circuit Clerk. Mr. David Jordan, a black male resident of Greenwood, Mississippi and president of the Greenwood Voters League, testified that a request for deputization of volunteer registrars made to the Leflore County Circuit Clerk was denied in 1984. Mrs. Myrtis Foster, a black female resident of Belzoni, Mississippi in Humphreys County, testified that she was a member of the Humphreys County Union for Progress, an organization which supports political and economic development. As part of her duties in the Humphreys County Union for Progress, Mrs. Foster testified that she participates in voter education and voter registration activities. Mrs. Foster further testified that in May 1985 the Humphreys County Union for Progress requested that the circuit clerk for Humphreys County deputize municipal clerks in towns of less than 500 in population and that satellite and/or precinct registration be conducted at these places. The Humphreys County Circuit Clerk appointed four municipal clerks. Exhibit P-89. 71. The current statutes do not specify any criteria for the appointment of deputy registrars, and the practice of at least some of the circuit clerks is merely to rely on word-of-mouth recruitment and to use subjective criteria and qualifications for the hiring of deputy clerks. The result is that very few of those appointed as deputy registrars have been black. In January 1986, of some 278 employees authorized to register voters, only 53 were black; and of a total of 23 deputized under the amended law, including two volunteers, only six were black. Stipulations 106 and 109. Pretrial Order. III. JUSTIFICATIONS OFFERED FOR CONTINUANCE OF THE RESTRICTIONS ON REGISTRATION 72. Each of the defendant members of the Mississippi State Board of Election Commissioners has suggested that the distinction between municipalities based on population may be unnecessary. Exhibits P-116, P-117, P-118. 73. The rationale offered by defendants for limiting mandatory deputization to certain full-time municipal clerks was that those clerks might be more likely to be available on a regular basis for registration than are municipal clerks in small communities whose positions are part-time and who may not have occasion to conduct clerking duties more than once or twice a month. As Representative Tim Ford, the House of Representatives author of the 1984 law, testified for the defendants, he had “no problem” with deputization of all municipal clerks. Ford testified, however, that that provision simply did not get through the Legislature. On inquiry from the court, Ford conceded that all governing bodies of municipalities, regardless of size of the municipality, are statutorily required to have a meeting on the second Tuesday or some other designated day of each month. See Miss.Code Ann. §§ 21-5-13, 21-7-9 (1972); § 21-8-11 (Supp.1986). 74. The rationale offered by defendants for the requirement that the registrar obtain authorization from the board of supervisors before conducting off-site registration, is that the board is responsible for expenditures that might result from such registration and that the circuit clerks and boards of supervisors are familiar with local voter registration needs and are therefore more capable of determining when, where, and how often satellite registration would be necessary. 75. The proposed legislation would have mandated that off-site registration be held at least once a year and that the county registrar be permitted to register voters at any location within the geographic area of a precinct. The amended law as enacted, however, does not mandate that off-site registration be done for any minimum number of times per year and it limits such registration to polling places unless those places are unavailable. The rationale offered by defendants for the preference of polling places is, as explained by Representative Ford, that since the polling place is where the prospective voter will ultimately vote, it was considered appropriate to prefer conducting registration there in order to familiarize new registrants with such polling places. Representative Ford further testified that some polling places are mobile or rented locations; therefore, these sites are not available on a regular basis for registration but are only made available at election time. This explains the language in the law referring to the unavailability of the polling place. The so-called “preference” for the polling place does not appear to have been implemented by the practices of circuit clerks. As some circuit clerks testified, particularly Ms. Barbara Dunn, Circuit Clerk of Hinds County and Mr. Joe W. Martin, Jr., Circuit Clerk of Jackson County, when they conducted polling place registration voters did not necessarily register at the precincts where they would later vote. Rather, the circuit clerks chose a precinct or a number of precincts in those general areas in the county where they perceived a need, allowing persons from all precincts in those areas to register and a limited number of precinct or polling place sites selected for registration. Thus, persons were permitted to register at polling places who would not later vote at those precincts. This practice, although not necessarily practiced on a statewide basis, does indicate an apparent frustration of the legislature’s intent to prefer registration of voters at the precincts where they would vote in order to familiarize them with the location of the polling places. 76. The rationale offered by defendants Secretary of State, Governor and Attorney General for permitting registrars to conduct satellite registration at their discretion rather than on mandatory occasions, is that registrars and county boards of supervisors were presumed to be more familiar with voter registration needs and therefore capable of determining where, when, and how often satellite registration would be necessary. 77. The rationale offered by defendants for the requirement that the application be signed in front of the registrar or deputy registrar is the prevention of fraudulent registration. This apprehension of fraud was not supported by any evidence offered by the defendants. 78. The challenged statutes were not enacted for a racially discriminatory purpose but have had a discriminatory impact on the plaintiff class certified herein. More specifically, the challenged statutes have a disparate impact on the voter registration of black citizens in the State of Mississippi. 79. The challenged statutes, particularly § 23-15-223 which arbitrarily sets municipalities of less than 500 apart for special consideration do not advance any substantial or legitimate governmental interest and are not rationally related to any substantial governmental interest. CONCLUSIONS OF LAW 1. The court has subject matter jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 2201 and 42 U.S.C. § 1973j(f). 2. The action has been properly certified as a class action under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 3. Article III of the United States Constitution limits the judicial power of federal courts to cases or controversies where the party invoking the court’s subject matter jurisdiction can “show that he personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant”, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the injury “fairly can be traced to the challenged action.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Inasmuch as the plaintiffs have shown that the challenged statutes either impinge upon their protected rights to register to vote or burden their organizational efforts to assist prospective voters in registering, the court finds that all of the plaintiffs have standing to sue, See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), to challenge the remaining features of Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights, and the rights of all persons similarly situated, under Section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973, 42 U.S.C. §§ 1971 and 1983, and the First, Fourteenth and Fifteenth Amendments of the United States Constitution. 4. The plaintiffs assert both statutory and constitutional claims in their challenge to Mississippi’s voter registration laws. In an action presenting both statutory and constitutional claims, the court is obliged to decide the case on statutory grounds, if possible, and to avoid reaching the constitutional issues in the absence of a necessity for doing so. See Escambia County, Fla. v. McMillan, 466 U.S. 48, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) and Velasquez v. City of Abilene, Tex., 725 F.2d 1017 (5th Cir.1984). Accordingly, the court must first consider the plaintiffs’ claims under Section 2 of the Voting Rights Act and 42 U.S.C. §§ 1971 and 1983. I. SECTION 5 PRECLEARANCE AND SECTION 2 CHALLENGES 5. The defendants argue that Section 5 preclearance of the statutes involved herein precludes plaintiffs from challenging the statutes under Section 2 of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973. The court does not agree. As recently held by Judge Barbour in the case of Martin v. Allain, 658 F.Supp. 1183 (S.D.Miss.1987), Section 5 pre-clearance does not preclude plaintiffs’ Section 2 challenge. Id. at 1200. In explaining the reasons why Section 5 preclearance is not dispositive, the court in Martin wrote: This Court accepts as proper the reasoning of Judge Phillips in Gingles v. Edmisten, 590 F.Supp. 345, 375-76 (E.D.N.C.1984), aff'd in part and rev’d in part sub nom Thornburg v. Gingles, 478 U.S. -, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), which held that Section 5 preclearance does not preclude plaintiffs’ Section 2 challenge. The standards by which the United States Attorney General assesses voting changes under Section 5 are different from those by which judicial claims under Section 2 are to be assessed by the judiciary. 590 F.Supp. at 376, citing S.Rep. 97-417 No. 10 at 68, 138— 39. Also, because the standards for Section 5 preclearance were applied in a non-adversarial administrative proceeding, the Attorney General’s preclearance determination has no issue preclusive effect to this action and private plaintiffs can challenge a plan or procedure even after Section 5 preclearance. This court also takes judicial notice of the fact that the Attorney General has recently filed an action in the Southern District of Mississippi which challenges some of the statutes plaintiffs have attacked in this case, i.e., the registration procedures in Mississippi. Thus, the court finds that the earlier preclearance by the Attorney General does not preclude the plaintiffs’ action in the case sub judice. II. PLAINTIFFS’ SECTION 2 CHALLENGE 6. Congress, in enacting the 1982 amendments to Section 2 of the Voting Rights Act, intended that Section 2 should cover challenges to allegedly discriminatory voter registration practices and procedures. See S.Rep. No. 97-417, 10 n. 22, 12, 52 n. 180 (1982), reprinted in 1982 U.S. Code Cong. & Ad.News 177, 187 n. 22, 189, 231 n. 180; United States v. Dallas County Commission, 739 F.2d 1529, 1538 (11th Cir.1984). The statutes attacked herein appear to come within the language of Section 2, as amended, 42 U.S.C. § 1973(a): No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in the denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in § 1973b(f)(2). Mississippi’s voter registration laws are clearly a “voting qualification” or “prerequisites to voting”: no voter is qualified as an elector until he has first registered. Miss.Code Ann. § 23-15-11 (Spec.Pamph. 1986). 7. The 1982 amendment to Section 2 was intended to eliminate the necessity of proving a discriminatory intent in order to prove a statutory violation. The 1982 amendment replaces the discriminatory purpose test with a “results” test. See Thornburg v. Cingles, 478 U.S.-, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Velasquez, supra; Sierra v. El Paso Independent School District, 591 F.Supp. 802 (W.D.Tex.1984). The amended Section 2 sets forth the test for establishing a violation of the Act: A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to p