*1 1044 Court, Shapiro tions Act. v. v. See Cook United Supreme DelCostello
The
Inc.,
(6th Cir.1985).
Teamsters,
F.2d
Brotherhood
International
of
2281,
151,103
apply in these
stated: Service, Inc. v. Mitch- United Parcel
ell,
S.Ct.
L.Ed.2d we held that a sim- 732] governed
ilar suit a state statute vacation of an of limitations for arbitra- ARMOUR, al., Plaintiffs, Ezell et award, tion rather than a state statute v. a contract. We left two for an action on OHIO, al., et STATE Defendants. First, holding our points open, however. employee’s to the claim was limited No. C88-1104Y. against employer; we did not address Court, United States District govern what state statute should Ohio, N.D. E.D. Second, against the union. ex- claim we pressly limited our consideration to a Sept. 1991. choice between state statutes of limi- two Dissenting Opinion of District tations, we did not address the conten- Judge Sept. Batchelder tion that we should instead borrow limitations, namely, federal statute 10(b) of the National Labor Relations
§
Act, 29 U.S.C. 1960. These cases §
present these two issues. We conclude 10(b) applicable should be the stat- suit, governing
ute of limitations against employer against
both
the union.
DelCostello, 462 U.S. at S.Ct. (footnotes (emphasis original) omit-
ted). Accordingly, the statute limita- applied in present
tions to be case is the provided by
six month statute of limitations 10(b)
section of the National Labor Rela- Note, (1981); Analysis Title I Limited Reach DelCostello v. ute Limitations in LMRDA Actions, (1987). International Brotherhood Fordham L.Rev. 227 Teamsters: A Stat-
I. BACKGROUND
Proceedings
A. Prior
This case was filed
the United States
*3
the Northern District of
District Court for
sought
May
The
Ohio
of 1988.
temporary restraining
preventing
order
a
May,
primary elec-
the results of the
being
tion for districts 52 and 53 from
preliminary injunction pro-
certified and a
hibiting further elections in those districts
brought
were
compliance
until
into
with federal law. The district court denied
order,
temporary restraining
ordered
injunction hearing
consolidated with
merits,
the trial on
and referred both to
magistrate.
magistrate
a
The
recom-
mended that relief be denied because
plaintiffs could not constitute a
district,
reconfigured
and the district
ap-
adopted
court
the recommendation. On
Bollas,
peal,
panel
J.
of the United States Court of
Percy Squire, Bernadette
Columbus, Ohio,
reversed,
Eckler,
Appeals for
Robert
Sixth Circuit
Bricker &
Sr.,
Ohio,
holding that the
Youngstown,
district court should have
Douglas,
A.
totality of
examined the
the circumstances
plaintiffs.
political process
consider whether the
Sutter,
Cola,
M.
Andrew I.
Catherine
equally open
the contested districts is
Schaefer,
Office,
Atty.
R.
Gen.’s
Theresa
However,
minority voters.
the Sixth Cir-
Ohio,
Columbus,
for defendants.
panel
cuit voted en banc to vacate the
arguments
opinion, and after additional
JONES,
PECK,
Judge,
Before
Circuit
subject
held that the
matter was ex-
court
BATCHELDER,
Judge,
Senior Circuit
and
clusively
jurisdiction
of a three-
within
Judge.
District
judge
court under 28 U.S.C.
district
§
Judge
The
of the Sixth
then
Chief
Circuit
the instant court.
convened
AND
OPINION
ORDER
B. Facts
PECK,
Judge.
W.
Senior
JOHN
Circuit
Assembly
composed
The
Ohio General
three-judge
This
district court was con-
senate,
bodies,
of two
a 33-member
and a
pursuant
to the en
vened
banc decision
representatives.
house of
The
99-member
Appeals
the United States Court of
for the
apportioning
method of
the districts of
Cir.1991),
Circuit,
(6th
tionality apportionment the Ohio 1967, previous plan after the was held Representatives. Plaintiffs al- House Rhodes, Nolan v. See unconstitutional. boundary lege that the between House Dis- 1906, 12 378 U.S. 84 S.Ct. L.Ed.2d 1034 Mahoning County tricts 52 delib- (1964). erately effectively dilutes the vote, Representatives is com- and therefore violates the Fifteenth The House of Voting Rights posed exclusively single-member Amendment Act dis- and the follow, substantially equal size. No dis- 1965. For the reasons that we find tricts of boundary population more than five plain- violates both the trict statutory rights per greater or less than the state’s tiffs’ constitutional and cent population except that appropriate and order relief. divided total, per approximately increased to ten cent if it one-ninth of the falls tolerance house district allow the creation of a will corporate outside the limits. That area is consisting single county. of a Ohio Const. occupied by Campbell City (formerly known XI, possible, 9. When house Art. § § Struthers, Youngstown), as East and Coits- to contain one or districts must be drawn Township. Mahoning ville River bi- 7(A). How- more whole counties. Id. § city, entering Youngstown sects the ever, possible, a district is when this is not winding way northwest corner and its counties, combining the areas of formed Campbell City southeast to before it wan- wards, municipalities, city townships, Pennsylvania. ders into giving preference the order named. Id. 7(B). governmental If units must be population Mahoning *4 substantially divided to create districts of 289,487. County The was ideal house dis- size, “only such equal one unit be 109,065, population trict was and therefore districts, giving pref- divided between two population the maximum for a house dis- erence the selection of a unit for division single county trict that was not a was ward, township, city city, a and a to a a 114,518. Consequently, Mahoning County 7(C). village in the order named.” Id. required to contain two whole house Mahoning County lies in northeastern districts and share one house district with a border, along Pennsylvania Ohio about neighboring county. Additionally, City miles Much sixty southeast of Cleveland. Youngstown, population which had a However, county is rural. the north- 115,427, among had to be divided two dis- quadrant county eastern is dominat- tricts. Youngs- by City Youngstown. ed populations and racial balances of roughly rectangular shape, town is tall, by Appor- the districts the 1981 established again except half as wide as it is about rectangle, that the southeast corner of the tionment Board are set forth below: 52 DISTRICT
Total Black Black % City Youngstown 16,597 10,341 (62.3%) 2Ward 17,485 (1.04%) 7Ward 1,173 (10.1%) Campbell City 11,619 10,881 (0.48%) (1.05%) Twp. (Part) Boardman 54,793 townships cities and Other 110,975 12,326 (11.11%)
Total DISTRICT 53 City Youngstown 16,667 9,791 (58.74%) 1Ward 16,761 16,168 7,528 (44.91%) ( 2.1%) (30.3%) 3Ward 4Ward 16,430 4,985 Ward 5 15,719 5,312 (33.79%) Ward 6 30,952 (Part) ( 0.56%) Twp.
Boardman 112,697 28,128 (24.96%)
Total boundary the two dis- voting age between plaintiffs, residents population at its 53, ap- the black 52 and assert that the tricts divides of Districts in ratio of greatest concentration point of portionment between these districts unlaw- reapportionment seek a They assert 35:65. Plaintiffs fully dilutes the black vote. (1980), ninety-nine per plaintiff that a allocate must plan which would show discrimi- natory intent County’s prevail black residents Mahoning on cent of a Fifteenth claim, Amendment do this allo- They Congress would amended to District 53. Sec- tion “to make Campbell 2Ward clear Youngstown cating need prove 52, assigned discriminatory purpose to District currently City, order to establish a exchange, as- S.Rep. would violation.” 53. No. 97- District p. Township Cong. District U.S.Code & sign of Boardman Admin.News all pp. 204, quoted configurations Chisom v. showing the Maps 52. — Roemer, -, -, U.S. proposed districts the current S.Ct. both 2354, 2364, 115 (1991). L.Ed.2d 348 Appendix I. may be found 2 as
Section
amended reads as follows:
II. DISCUSSION
abridgement
right
Denial or
to vote
account
through
on
of race or color
allege the bound
Plaintiffs
voting qualifications
prerequisites;
or
Fifteenth
ary
issue violates both the
establishment of violation
Voting Rights
and the
Act of
Amendment
(a)
voting qualification
No
Amendment claim
prerequi-
The Fifteenth
or
voting
standard,
practice,
site
or
three-judge
district
must be heard
*5
2284(a).
procedure shall
imposed
applied by
be
or
to 28 U.S.C.
pursuant
court
§
or
Ohio,
any
political
State
(6th
subdivision in a
v.
Admin.News — subdivision bear effects of discrimi- Roemer, supplied), quoted v. Chisom education, nation such areas as em- -, -, 2354, 2363, U.S. S.Ct. health, — ployment and hinder their which (1991). Chisom, L.Ed.2d 348 see But ability participate effectively at-, (Scalia, J., U.S. S.Ct. at 2369 political process;114 (“As written, dissenting) the stat- currently political campaigns 6. whether proscribes ute intentional discrimination effect, been characterized overt subtle ra- discriminatory if it has a but or appeal; cial proscribes practices discriminatory with ef- intentional.”) or not We
fects whether the extent to which members plaintiffs’ our attention first turn to the minority group pub- have been elected to under the claims results test. jurisdiction. lic office Voting Rights test The results under the recognized dispro- The courts have pre- Act as amended meant to restore [sic], portionate employment educational in- legal governed Mobile standard which living arising come level and conditions from challenging prac- past depress minority systems cases election discrimination tend to political participation. Where these conditions illegal tices as an dilution of the shown, partic- and where the level of black 97-417, S.Rep. p. quoted No. vote. ipation politics depressed, plaintiffs need *6 — Roemer, U.S.-,-, 111 v. Chisom prove any further not causal nexus between disparate their status and the socio-economic 2354, (1991). 2364 This test asks S.Ct. depressed political participation, level of [cita- challenged a result whether “as omitted]. tions structure, plaintiffs practice or do not have 97-417, 28-29, S.Rep. No. pp. U.S.Code equal opportunity participate an Admin.News, 1982, 177, 207, Cong. pp. & political process and to candidates of elect omitted, citing approval footnotes with requires choice.” This their determination 755, Regester, 412 93 White v. U.S. S.Ct. searching practical past a evaluation of 2332, (1973), 314 37 L.Ed.2d and Zimmer v. reality region the at issue. present McKeithen, (5th Cir.1973)(en F.2d 485 1297 Report typical several The Senate lists banc), Parish sub nom. East Carroll aff'd may that be to establish un- factors used 636, Marshall, v. 424 U.S. School Board political the equal processes: access to (1976). 47 L.Ed.2d also See S.Ct. 30, 46, Thornburg Cingles, v. 478 U.S. history official any the extent of of 1. 2752, 2764, (1986). L.Ed.2d S.Ct. political or discrimination the state cases noted that in some Senate Committee right the that touched the of subdivision following probative factors had the also reg- minority group to members vote, value: ister, participate or otherwise process;
in the democratic significant there is a lack of whether part on of elected of- responsiveness the voting in the extent to which 2. the particularized needs of the ficials to the of the state or subdivi- elections minority group; the members of racially polarized; is sion underlying the policy the whether polit- or to which the state extent 3. the of such political subdivision’s use state or large unusually has used ical subdivision to vot- voting qualification, prerequisite districts, require- majority vote election standard, is practice procedure ing, or or oth- ments, antisingle provisions, shot tenuous. that procedures voting practices or er 97-417, Cong. p. & S.Rep. U.S.Code discrim- No. opportunity for the may enhance Admin.News, 1982, pp. group; minority against the ination is Supreme stated that “unless there Court that these indicated Committee Finally, the following the exclusive, conjunction of circum- that there not factors stances, factors use districts any particular the multimember that requirement no of impede ability of point of them not the majority generally will or that a proven be Instead, representatives to elect minority Id. voters way or another. one totality of on Id. at at 2765 must decide based their choice.” 106 S.Ct. court voting (emphasis supplied). whether then set circumstances The Court is “minimized voters strength minority pre-conditions forth three to a Section 29, n. 118. Id. at out.” the use of dis- challenge or cancelled multi-member tricting: recent decision Supreme Court’s minority guidance First, group offers must demon- Gingles v. also Thornburg case, sufficiently large test. that it is results the use strate on Report compact the Senate to constitute a geographically concluded the Court on the circum- single-member limitations If places majority three in a district. 2 violation not, a Section stances under which it as would be the case proven: district, may substantially integrated be devices, the district can- First, at-large such as multi-member electoral form elections, responsible minority not for the vot- per be considered se not be inability must demon- ers’ to elect its candidates.17 2. Plaintiffs violative that, totality Second, minority group of the cir- must under the be able strate cumstances, unequal result in politically the devices that it is cohesive. If show Second, process. cohesive, group to the electoral access is not it allegedly conjunction of an dilutive selection of cannot be said pro- and the lack of electoral mechanism electoral structure multi-member thwarts representation alone portional does minority group interests. distinctive Third, the results a violation. establish Third, minority able to must be show does not assume existence test sufficiently votes the white prove voting; plaintiffs bloc must racial to enable it—in the absence a bloc it. circumstances, special as the minor- such running ity unopposed candidate 30, 46, Thornburg Gingles, v. 478 U.S. —usual- *7 can- ly minority’s preferred the to defeat (1986). 92 L.Ed.2d S.Ct. didate. case, “allegedly the dilu- In the instant placement is the tive electoral mechanism” single-member generally is district ... Therefore, boundary. apply- district of a against to appropriate the standard which mea- ing supplied the the Su- framework elect, minority group potential sure to because preme Report, the the Court and Senate rep- is which it the smallest unit from Thus, plaintiffs must that due minority establish to racial are elected. if the resentatives evenly spread throughout group the multi- voting totality and the past bloc the and district, if, geographically although member present circumstances of blacks in Mahon- minority group small compact, is so the County, ing boundary the mini- district surrounding population white relation to majority in voting or cancels that not constitute a a strength mizes out the it could district, single-member minority voters these minority population. cannot maintain that would been However, representatives choice able elect of their argue the defendants to struc- electoral absence of multimember case, in this there is no need to examine ture.
totality circumstances because the 50-51,106 (emphasis Id. S.Ct. 2765-67 plaintiffs large do not enough popu have a omitted). (citations original) majority lation to single- constitute a in a district, member They however drawn. as assert the Court’s rea- Defendants Supreme sert that the soning pre- Court these implicitly compels es the extension of pre-condition cases, tablished size as a adopting to all conditions to all results test challenges to configurations district three-judge court in logic of district Thornburg v. In Gingles. Gingles, the case: Gingles level, systems there is no such without the constant threat majority] Short [the gauging voting for principled time-consuming expensive litigation. basis and strength. strength, hence dilution of Furthermore, expressly the Court limited intuition could be Nothing raw but application pre-conditions of these to to determine in the upon by courts drawn challeng- situations which were of those smaller place the size first ing only districting.1 the multi-member In group having aggregations sufficient opinion, footnotes to its the Court noted capable of dilution voting strength to be implicated by there were issues its meaningful sense---- any legally interpretation Voting Rights Act size obviously must be some ... There which were not before the Court and which (as dispersion) limits on those well as the Court therefore would not address. the con- aggregations of voters to whom cept properly applied. be We do not example, can For the Court noted that: perceive the limit short of the readily ... We have no occasion to consider voting majority level that can effective does, permits, if whether it what applied. rationally be drawn and to, pertain should a claim standards Edmisten, F.Supp. v. Gingles brought by minority group, a that is not (1984). sufficiently large compact to consti- condi- argue Defendants also that these single-member tute a dis- challenges single- apply to to tions should trict, alleging that the use of a multi- govern- if the member districts because ability impairs member district its to in- forced to defend a lawsuit ment can be elections. fluence single-mem- configuration protesting We note also that we have no occasion group plaintiff when the ber districts to whether the standards we consider large enough bring suit would not to be apply respondents’ claims that multi- districting plan a multi-member due over operate member districts to dilute Gingles pre-conditions, then the geographically minority vote of cohesive government effectively being punished enough adopting districting groups, large form of that is that are to consti- for generally to be more favorable considered majorities single-member districts tute minority groups. within the bound- and that are contained challenged dis- aries of multi-member agree analy- with We do not defendants’ tricts, fully pertinent to other sorts establishing threshold conditions sis. claims, districts, claim of vote-dilution such as a challenges to multi-member Congress’ ex- responding the Court was splitting large alleging that press concern that multi-member districts geographically cohesive challenge any subject would time that *8 be or more multimember or between two propor- in direct minorities are not elected in the districts resulted single-member not- population. tion to their As the Court minority the vote. dilution of the multi-member form of Gingles, ed ease, for exam- In a different kind of ... infringes minority districting by on a itself case, might plaintiffs ple gerrymander a in the group’s opportunity participate to minority is group the that allege that and elect a candidate of its political process compact sufficiently large and to consti- be group choice if the would otherwise has single-member a district been tute at guaranteed opportunity the to control or more multi-member split between two single-member district. least one districts, ef- single with the member for threshold conditions Court established strength of diluting potential the fect of in or- challenges districts to multi-member minority vote. maintain governments to der to enable requirements Indeed, challenging nothing Gingles the latter that would tion from 1. is there large enough group to were not minority plaintiffs even if the prevent in a multi-member voting challenge form of district. the multi-member prohibited "bullet” or that district that Gingles, at U.S. at 106 S.Ct. prevail See 478 required majority in an elec- a vote to 1052 by 12; bright-line advocated at n. at test the defen- at 106 S.Ct. 2764
Id. 46 n. (emphasis n. 2767 16. simpler 50 n. 106 S.Ct. at be than case dants would indeed a added). totality of the cir- by analysis case cumstances, sug- has since
Additionally, the Court
minority
influence
gested that a dilution
be
applied
standard that should
[t]he
2
may
to sustain a Section
be sufficient
litigation
not at
under
is
issue here.
§
—
Roemer,
v.
results claim.
Chisom
if
problems
Even
lie
serious
ahead
2354, 115
U.S.-,
L.Ed.2d 348
111 S.Ct.
applying
totality of
circum-
(1991),
held
Supreme Court
that Section
2(b),
task,
stances
that
described
applied
Rights Act
elect-
Voting
2 of
to
be,
may prove
difficult
it
to
cannot
analysis,
judges.
ed
In the course
its
justify
judicially
a
created limitation on
that in order to establish a
the Court stated
coverage
broadly
stat-
of the
worded
claim,
plaintiffs
must show
Section
ute,
by
as enacted and amended
Con-
opportunity
less
to
they
both
have
that
gress.
process
participate
in the
repre-
they
opportunity
less
elect
have
—
Roemer,
U.S.-,-,
v.
Chisom
at-,
Id.
of their choice.
sentatives
2354, 2368,
(1991).
Armour, Rep. 4% 0.83 State 48% Hightower, 20% board 90% 0.93 school Pincham, 35% 80% 0.91 1987 school board Pres, Jackson, primary 0.95 98% _9% (Total/14) Average 72% 12% 0.80 12% 0.90 R 77% Without for which elections <0.50 black vot- campaign Democratic candidate. Since dorsed The result Armour's significant County identify Mahoning usually Representative particularly with State ers race, general candidate in that the black because candidate in a election Democratic general against en- running an in a election input do not seek representatives less their support dropped to of white The rate community. example, school board For percent when from the black than seven representatives Youngstown’s races were excluded. state one of legislature into the state introduced a bill data, Dr. Buss’s observa- From these Youngstown’s three mu- eliminate one of gen- Youngstown voters tion that black judgeship nicipal judgeships, ever candidate at erally the Democratic vote for black, only city-wide by a and the held cent, ninety per eighty and a rate between had ever been position to which political- constitute a we find that by majority vote.18 However, elected white ly voting unit. cohesive *14 support not black Youngstown in do voters State’s Interest Therefore, course in the usual candidates. Finally, Report suggests Senate voting result in will of events white bloc may this court find it useful to examine minority group’s candi- the defeat of of the policy underlying the state’s use dates. underlying challenged practice. Where the Responsiveness tenuous, practice policy challenged is is Report indicates that another The Senate likely In this more to violate Section in the total- sometimes useful factor is case, simply there is no defensible basis for analysis ity circumstances of the appor- the current boundaries. state’s plain- responsiveness of elected officials policies tionment established within its con- case, group. In this we find that tiffs’ require integrity politi- that the of stitution in Districts 52 and 53 representatives state respected pos- cal subdivisions be whenever to the needs of the have not been sensitive case, policies In this those were sible. First, community Youngstown. in black clearly Article XI of the state violated. representatives little we note that the that a house district constitution states to consider black voters. As dem- incentive by combining formed the areas should be above, community the black onstrated Const., governmental units. Art. of Ohio safely In the absence of a Democratic. XI, 7(B). a unit must in When be divided § candidate, eighty per cent of black over of order to create house districts substan- strictly along party black voters will vote size, “only such tially equal one unit However, Mahoning in lines. white voters be divided between two districts.” Id. at consistent, County are less and therefore case, 7(C). fully appears In this as more representatives cater to their must below, City B both the of Section re-election. The needs order to secure Township Youngstown and Boardman were suggests that this uncontradicted evidence divided between districts 52 and 53. Since practice Mahoning County: is in fact the configuration the current of the districts very campaigning repre- little for the state violates the state’s own constitutional re- positions has been directed to- sentative Furthermore, community. quirements, we find that the state has no ward the black maintaining configu- testified that black voters these districts interest in the current representatives responsive are not their ration. issues,
minority
surveys by
Dr. Buss
Conclusions
residents and leaders in the black
black
evidence,
totality of the above
From the
community
representatives
that the
show
segregation and racial
we conclude that
perceived
to the
are
as indifferent
needs
way of life in
community.
surveys
discrimination have been a
These
Mahoning County
also showed that black citizens feel that
since blacks settled
cent,
eighty
ninety per
representative
at a rate of
independent
for an
that the
had not consulted with
nearly
fifty per
community regarding
legislation
candidate to obtain
the black
this
showing.
cent of the black vote is a remarkable
although he had "a lot of contact with other
Although
people.”
the record shows that the
Armour,
18. Plaintiff Ezell
who was active in
legislation
pursued after the black com-
was not
many leading
community organizations
black
agree
munity protested,
Mr.
we
with the late
Institute,
including
NAACP,
Philip Randolph
the A.
very
Alliance,
Armour that “this was
insensitive.”
and the
testified
Ministerial
century.
per
simply
cent
the black vote
of the
One
virtue
the area at the turn
endorsement,
party
has been to fore- of his
and the
practices
Republi-
effect of these
residents from
can candidate can be assured that
close the area’s black
he will
leading
Therefore,
to nomination
less
political processes
per
receive
than ten
cent.
any
must,
parties
do,
of candidates
office
and election
candidates from both
Valley,
corresponding
with a
Mahoning
campaigns
their
winning
focus
on
registration
voting
depression in
“swing
black
in these
vote”—which
districts is
configura-
Additionally, the current
rates.
primarily composed
wealthy
suburban
Representatives’
tion of
House
the Ohio
totality
whites.
Given the
circum-
deprives
opportunity
districts
blacks
judicial
region,
stances
we can take
of their choice in either
to elect a candidate
expectations wealthy
notice that the
sub-
They
house
cannot elect a black
district.
qualitatively
urban voters
different
representative
white
will
because
voters
impoverished,
from those
urban
candidate,
not
whether
support a black
result,
community.
As a
we conclude
endorsement,
he
and blacks
party
has a
configurations,
that under the current
be-
*15
sufficiently
numerous
either dis-
not
strength
voting
cause
black
is divided
carry
trict
to
an election without white
into two districts each of which contains a
Therefore,
support.
white
bloc
race-based
large population
voters,
of white suburban
voting
conjunction
with the divi-
works
Mahoning county
black voters in
not
do
permit
in-
sion of
voters to
and
the black
equal opportunity
an
to elect a
have
candi-
parties
ignore
to
mi-
compel political
deed
representa-
date of their
for state
choice
candidates,
discourage
nority
and to
black tive.
seeking office. Defen-
candidates from
question
The next
that we
address
have not
argue
dants
that blacks
run
could elect a
whether black voters
candi-
elections,
they
that
primary
therefore
date of their
in a redrawn
choice
district.19
claiming
they
for
that
cannot
no basis
below,
For the reasons set forth
we find
However,
prevail
districts.
in the current
plaintiffs
pro-
that
have shown that
we can
notice of the tremendous ex-
take
to
posed
they
district
will
able
elect a
be
otherwise,
running
pense, monetary and
choosing.
candidate of their
office,
find that
the circum-
and we
stances in these two districts are such
lengths to
go
great
Defendants
dem-
reasonably
most
not
have be-
blacks could
upon
pat-
racial voting
onstrate that based
a
they
lieved
would have
chance of
plaintiffs
able to
a
terns
will not be
elect
showing,
making
much less of
a substantial
majority of
without a
black
black candidate
winning.
However,
voters
the redrawn district.
requirements
candidates,
misapprehend the
regard
With
white
defendants
The issue
encourage
Voting Rights
in of the
Act.
is not
reality
not
candidates
does
can elect a
configurations
plaintiffs
whether the
black
district
to take
current
candidate,
they
whether
can
positions
responsive to
needs
but rather
that are
choice. We
community. In the
elect a
their
be-
of the black
absence
candidate of
reconfigured
candidate,
they
lieve that
can. In a
dis-
a
the Democratic candi-
trict,
nearly
plaintiffs
constitute
one-
eighty
more
will
date can
assured of
than
be
district, alleging
Gingles,
that the use of a
plaintiffs, relying
ber
multi-
on
478 U.S.
The
ability
suggest
impairs
n.
2§
46 n.
V. CONCLUSION FEES IV. ATTORNEY’S above, find For the reasons stated we Fifteenth plaintiffs’ statutory Code 1973Í of United States Section merit, Amendment claims have and we or- provides: Title der the relief announced above. any action or (e) Attorney’s fees. voting guaran- jurisdiction to enforce the of this case
proceeding While we retain fifteenth plaintiffs’ request the fourteenth for an order tees to consider discretion, court, in its directing adopt plaintiffs’ pro- amendment the state prevailing party, other appor- allow the after the state posed districts until States, at- a reasonable publishes apportion- than the United a new tionment board part of the costs. torney’s plan fee as and to determine the amount ment fees, there is no attorney’s we find that statute, plaintiff prevailing Under this delay entry judg- just reason for attorney’s fees ordinarily recover an should enjoin- ordering declaratory relief and ment would render special unless circumstances using dis- ing future elections the current unjust. Hensley v. Ecker- such an award tricts, judg- and we therefore direct hart, n. S.Ct. 461 U.S. pursuant entered on those claims ment be (1983). 1933, 1936, 1939 n. 76 L.Ed.2d 54(b). to Rule there are no circumstances We find that unjust ordered. render an award of fees So that would
APPENDIX I *23 *
APPENDIX II following excerpted published data are from tables in the 1980 Popula- Census of Housing Report Youngstown-Warren, Metropolitan tion and for Ohio Standard Area. Statistical Occupancy, Housing Tables H-2 and H-3 Utilization and Financial Characteristics of Mahoning County Units White Black IN PERSONS UNIT person 18,849 1 3,051 ...................................................... persons...................................................... 2 27,780 3,484 persons...................................................... 15,629 3 2,581 persons...................................................... 13,980 4 2,071 persons...................................................... 7,135 5 1,259 persons...................................................... 6 2,867 626 persons...................................................... 7 1,094 376 persons............................................. or8 more 457 237 Median, occupied housing units................................. 2.40 2.62 Median, owner-occupied housing units........................... 2.67 2.87 Median, renter-occupied housing units........................... 1.70 2.33 VALUE Specified owner-occupied housing 58,276 6,707 units.................... $15,000 Less than 3,546 1,916 ............................................ $15,000 $19,999 to 3,204 1,366 ............................................ $20,000 $24,999 to 4,537 1,121 ............................................ $25,000 $29,999 to 5,703 ............................................ 695 $30,000 $34,999 to 6,535 ............................................ 548 $35,000 $39,999 to 6,018 ............................................ 308 $40,000 $49,999 to 10,467 ............................................ 379 $50,000 $59,999 to 7,153 ............................................ 169 $60,000 $79,999 7,490 ............................................ 162 $80,000 $99,999 2,293 ............................................ 34 $100,000 $149,999 1,038 .......................................... 6 $150,000 $199,999 .......................................... 198 2 $200,000 or more............................................. 94 1 39,700 20,200 Median....................................................... $ $ CONTRACT RENT Specified renter-occupied housing 20,498 5,595 units.................... Median....................................................... 107 $ $ P-12 Tables & P-14 Social and Labor Mahoning Force Characteristics for County: 1980 SCHOOL ENROLLMENT years Persons 3 61,122 old and over 12,625 enrolled school........... Nursery 2,699 School............................................... Kindergarten................................................. 3,022 (1 Elementary years).............................. School 28,083 6,436 High (1 years).................................... School 4to 16,121 3,236 College....................................................... 11,197 1,572 YEARS OF SCHOOL COMPLETED years age Persons 25 153,435 21,364 or older .......................... Elementary: years.................................... 0 to 4 3,564 1,518 years.................................... 5 to 7 7,813 2,076 years 10,996 1,353 ........................................ * tables, reports The Census Bureau include data showing only for each combined the the "Total” larger municipalities Mahoning within Mahoning County for each race. Addition- County and for the area which the source de- ally, catego- we have omitted some of the data "Remainder,” using separate scribes as tables provided by ries the census bureau. for data about blacks and whites. We have
White Black SCHOOL COMPLETED YEARS OF 27,279 5,443 years.................................... 1 to 3 High School: 65,766 7,527 years ........................................ 20,021 2,535 years.................................... 1 to 3 College: 17,996 years................................ 4 or more *24 LABOR FORCE STATUS 28,328 191,484 years and over................................. Persons 16 14,822 110,316 Labor force.................................................. 57.6 52.3 persons 16 and over......................... Percent of 11,229 99,320 Employed................................................ 10,923 3,583 Unemployed.............................................. 9.9 24.2 labor force........................... Percent of civilian IN 1979 STATUS LABOR FORCE 16,321 over, 119,214 years force in 1979.......... in labor Persons 16 62.3 57.6 persons 16 and over......................... Percent of 14,673 116,806 Worked 1979 .............................................. 9,607 86,678 40 or more weeks.......................................... 73,220 8,226 hrs/week..................... Usually worked 35 or more 70,106 7,067 to 52 weeks............................................. 50 60,844 6,179 35 or more hrs/week..................... Usually worked 25,307 6,112 unemployment in 1979................................... With 21.2 37.4 in 1979.................. those in labor force Percent of 9,176 3,225 Unemployed more weeks.............................. 15 or 14.5 20.6 unemployment.............................. weeks of Mean Poverty Occupation, Status 1979 for Income P-13 and P-15 Tables County: Mahoning 1980 Tracts Census [400 or More Persons and White Specified Racial 400 or More of Black White Group] IN 1979 INCOME 13,752 87,969 Households................................................ 3,922 10,352 $5,000 than ............................................. Less 5,993 1,386 $5,000 $7,499 .............................................. to 6,260 1,159 $9,999 $7,500 to .............................................. 12,167 1,797 $10,000 $14,999 ............................................ 13,312 1,691 $15,000 $19,999 ............................................ 1,407 13,570 $20,000 $24,999 ............................................ 1,509 15,889 $34,999 $25,000 ............................................ 7,351 $35,000 $49,999 ............................................ 3,075 $50,000 or more.............................................. $11,047 18,401 $ Median....................................................... 20,259 $14,118 $ Mean........................................................ 67,398 10,356 Families................................................... $13,552 21,245 $ Median income............................................... 23,176 $15,896 $ Mean income................................................. individuals Unrelated 4,450 24,394 years ......................................... and over 6,635 4,452 $ $ income............................................... Median 9,186 6,722 $ $ income................................................. Mean 4,696 7,323 $ $ capita income............................................ Per 87,969 13,752 Households................................................ earnings........................... n ..................... 9,338 69,349 With $16,436 21,099 $ earnings ............................................. Mean 3,761 27,184 Security income................................... Social With 4,427 4,131 $ $ income................................ Security Mean Social 5,465 4,112 income................................. assistance public With 2,515 2,546 $ $ income.............................. public assistance Mean
White Black LEVEL IN 1979 BELOW POVERTY INCOME 3,906 2,823 Families.................................... 5.8 27.3 poverty level................ Percent below 1,926 in 1979 ................... Householder worked INCOME IN 1979 BELOW POVERTY LEVEL 2,877 2,477 years........... related children under 18 With 1,663 2,073 householder, present....... Female no husband Householder worked With related 1979 ................. 1,482 1,941 years......... children under 18 1,141 yrs.......... related children under 6 784 462 With years and over................ Householder 65 individuals for whom Unrelated 5,285 1,860 poverty determined................ status is poverty level................ 22.0 42.3 Percent below *25 1,943 years 549 65 and over ............................. poverty Persons for whom status 18,818 12,238 is determined............................... poverty Percent level................ 7.8 30.2 below 6,418 5,828 years................ children under 18 Related 4,655 3,959 years............... Related children 5 to 17 3,850 2,799 1,311 years over ............................. years and over ........................... persons poverty whom Percent of status is determined percent poverty Below 75 level............ 5.4 25.0 35.6 51.7 percent percent poverty poverty
Below 125 Below 200 of of level........... level........... 10.9 23.3 Act, 42 Finally, U.S.C. 1973. I will ana- BATCHELDER, Judge, District lyze plaintiffs’ alleging claim an inten- dissenting.* tional violation both Fifteenth I. Introduction Amendment of the U.S. Constitution and in bring claims, Plaintiffs this case two Voting Rights Act. one for Voting violation of Section of the Rights amended, Act as 42 U.S.C. § Totality II. Analysis: of Circumstances and the other for violation of the Fifteenth Facts and Factors Amendment of the United States Constitu- A. Introduction I tion. conclude that neither of these claims can be established based on the evi- very significant With some exceptions, I presented here, dence construing and even do majority’s pre- not take issue with the the evidence it, as the construes sentation of the facts this case. Neither neither the statute nor the 15th Amend- disagree do I majority’s position with the ment can be found to by have been violated that a claim of a Section violation must challenged district line by plaintiffs in light be evaluated in totality of the this case. I respectfully therefore dissent. circumstances, including the factors set out do,
I will Report. however, first address the Senate I the facts of this case in the context of the strongly disagree factors set majority’s forth in the with the con- Report.1 Senate Next I will discuss the clusion totality that under the of the cir- plaintiffs’ statutory claim in the context of cumstances the proved the law of Section 2 Voting Rights Section violation. * opinion This amended has been filed to correct tion Voting with the 1982 amendments to the typographical error. Rights S.Rep. Cong., Act. No. 97th 2d Sess. Throughout 1. opinion, reprinted at 29 & n. text of 1982 U.S.C.C.A.N. I shall refer Report" to as the Report "Senate issued Judiciary the Senate Committee in connec- analysis correctly majority’s Report factors, *26 portionate employment, educational The majority analysis introduces its of [sic] in living come level and arising conditions from that, the facts with the statement “At first past depress minority discrimination tend to blush, plaintiffs appear do not have participation. Where these conditions partic shown and where the level of black case,” presented very strong a pro- and ipation politics depressed, plaintiffs is need ceeds from there to create a case for the prove any further causal nexus between plaintiffs the sup- which evidence does not disparate their socio-economic status and the depressed political participation. level of port. contrary majority’s And to the con- S.Rep. No. Cong., 97th 2d Sess. at 29 clusion, plaintiff’s closer examination of 114, reprinted & n. in 1982 U.S.C.C.A.N. case does not demonstrate some hidden (emphasis supplied). It is clear rather, strength, exposes but its overall plaintiffs that for to establish the existence weakness. prove of this factor separate must two majority begins analysis its They elements. must show first past evidence cursory with a admission that disparities discrimination has caused in ed- three of the Report first four Senate ucation, employment, income level and liv- entirely lacking factors are in this ease: ing conditions, second, partic- and allegations There are no laws in ipation in politics depressed. of blacks I
Mahoning County prohibited have ever majority’s would note that the discussion of the historical voting blacks from accounts of discrimination registering from goes single many to one factor of the iden- Additionally, vote. none of the election Report, namely tified the Senate factor procedures frequently used to discrimi- number 5. I shall discuss of both these against present nate minorities are here: paying particular elements attention to the single candidates are elected from mem- majority’s treatment of the evidence of districts, ber there majority is no vote record it as affects the elements. requirement and no slating pro- formal cess, only signatures are needed a. Evidence discrimination of place to obtain a on the ballot. The historical evidence of discrimination 1053). (Opinion Following at this conces- Youngstown presented by in the area the sion, majority length the discusses at the plaintiffs in primarily this case consists of history of Mahoning Valley, and other anecdotal evidence of oc- events which aspects of de discrimination in the por- curred before facto and substantial region, and concludes that tions of this evidence are from the 1920s proven, totality have under the cir- single and 1930s. From a incident or in very majori- cumstances as determined the Senate some cases a few incidents the distraction, fallacy encouraging about ty generalized to conclusions has its reader to conclude that there must be Youngstown con- discrimination historical tinuing discrimination because Klan agree major- I cannot either with area. politically Youngs- once involved in was ity’s or its conclusions approach overall politics, recognize town not to that the quarrel I with on this record. do not based Youngstown govern- Klan’s involvement in majority’s conclusion that this evidence extremely ment was short-lived4 and was discrimination, I racial but demonstrates ago. decades seven activity this has minimal believe much of present to the case. relevance example majority’s drawing One piece sweeping generalization single from a majority starting point, while the As of anecdotal evidence is its statement that spends discussing the ac- considerable time after the restrictive elimination of cove- Ku Klux in relation to tivities of the Klan blacks, against nants “black families were municipal in the Youngstown government purchase housing neigh- unable white 1053-1054, 1056), I early (Opinion at 1920s 1055) (footnote (Opinion borhoods.” difficulty discerning the relevance omitted). In the footnote that follows that legislative districting in activity to the statement sets forth sum- House 1971 and 1981 of State Ohio mary the testimony McCullogh Youngstown There is districts in the area. proof Williams that blacks could not testimony involving in the rac- some record purchase property neighborhoods. in white during activity ist Klan directed blacks (Opinion 8). at 1055 n. Mr. Williams’ testi- (Tr. 585-86).2 In the 1920s. Vol. II at however, mony, testimony addition, Jenkins testified on direct William attempts entire record regarding that one examination element purchase persons property, Ku Klux Youngstown platform Klan’s in that testimony nowhere is there an indi- supremacy white and that the Klan had period cation of the time in which he at- drawing lines been involved of ward purchase tempted property. residential examination, Youngstown.3 On cross *27 (Tr. 458-61). Vol. II at however, Jenkins that the Klan’s testified agenda primarily enforce- one of law Depressed Minority b. Political anti-corruption (Tr. II at ment and Vol. Participation 364-65), targets the Klan’s main were The second element of factor 5 is that and Southern Euro- Catholics and Eastern participation political process is pean (Tr. 365), immigrants and Vol. II at depressed. Once have demon- in prime forces behind their success history strated both a of discrimination and Youngstown were their stand on anti-cor- pro- levels of in depressed participation Laws, ruption Sunday not white Blue cess, Report footnote 114 of the Senate (Tr. 365). supremacy. Vol. II at presumption permits a of the causal rela- impact I do not mean to minimize tionship showing between the two. that the Ku Klux Klan had on the black depressed clearly levels of participation However, community. majority’s em- plaintiffs’ crucial to the in this claims case. phasis relationship on the Klan’s historical Thus, particularly troubling it is that the Youngstown government seems to me to opinion finding makes a without artificially add substance to their conclu- single any citation to a testimony exhibit or type argument sions. This is a classic “the record that establishes that blacks in sum, Throughout opinion, tempts regard. 2. this to the I will refer have been made in that In "Tr.", togeth- transcript testimony of the trial evidence there is no that it is relevant to the page er with a reference the volume and presented in issues this case. testimony appears. number where the By stipulation parties, this case was According testimony to the of William Jen- 4. three-judge panel before this on the tran- heard kins, the Klan office in administration took Jan- testimony, script of trial which was taken before (Tr. 343), uary Vol. II at and its control on Magistrate in with the addition of a Youngstown politics very rapidly "declined after exhibits. few 1924,” prac- the Niles Riot in November of Nothing why 3. in the record ward reflects (Tr. tically collapsed 351). in Vol. II at system changed has not been or whether at- black, in Mahoning County participate politi- what we call in social sciences process homogenous precincts at a lower rate than whites. cal to each other and indicat- previously the data discussed discovered in every From almost case income, education, and em- ing disparity participation blacks had a lower rate in and blacks in Ma- ployment voting whites, between whites than did lower honing County, conclude that the de- rates, we participation I mean the vote from minority political participation is pressed particular precincts those in the black (Opin- past result of discrimination.” precincts always percentage had lesser 1056). ion people participating than those votes precincts. in the white fact, the evidence of record does not Q Doctor, years you for what did deter- support the conclusion that blacks’ mine that this circumstance exists? participation “depressed.” After comb- ing any the record in an effort to find A I looked at primary the most recent majority might evidence on which the have election. conclusion, only this I found
based (Tr. 130-32). IVol. plaintiff’s expert, Terry Dr. statement There are at major problems least four Buss, “[wjhites appear would have using testimony supply the founda- higher participation rate than would tion for the conclusion that there is de- (Tr. 132). I at an blacks.” Vol. Such pressed participation among blacks in Ma- equivocal provides statement itself little honing First, County. the election data conclusion, support majority’s for the but upon which Dr. Buss based his conclusion when the basis for Dr. Buss’ statement is was not from a pre- broad cross-section of examined, accuracy of his conclusion is Mahoning County cincts or in the 52nd completely undermined. Dr. Buss testified Districts, and 53rd House but was as follows: City Thus, from the Youngstown. while Doctor, Q you engaged any may provide picture it an accurate of black type attempted of evaluation or to mea- levels, voting since as Dr. Buss testified sure the extent to which blacks in Ma- Mahoning is where most blacks honing County vote? reside, County necessarily pro- it does not A The extent to which vote? vide an accurate assessment of white vot- Q Yes. ing Mahoning County levels A Yes. Second, and 53rd Districts. 52nd testi- Q In you what manner did measure clearly mony indicates while Dr. Buss cate- *28 partic- I will what refer to as black voter gorized precincts ninety percent which had ipation Mahoning County? in precincts,” or more blacks as “black he precinct A I looked at the data for the categorized precincts only per- that had ten City Youngstown I which hasten to precincts.” more cent or whites “white add is all the so,5 where blacks live. So we clearly If that is his data could neither opportunity par- levels, have an to examine that accurately voting reflect nor white precinct ticular case. I do the data any compari- the reliable serve as basis for percent popula- where at least 90 voting levels the races.6 sons between precinct Third, tion of the was black which Dr. Buss drew his conclusion about means, purposes, for all it intents and is depressed voting levels on the basis black neighborhood. a black primary of a This cannot single election. provide proper a foundation on which to precincts I the in which also took ten any conclusion other than a conclusion percent population or more of the base only primary I to that election. It white which means that have white relative precincts. compared certainly provide any I the cannot foundation on white and the regard possibility conclusion in this is 5. I have considered the that this was 6. Dr. Buss’ own Buss, by high- misstatement but the equivocal, appear Dr. because "Whites would to have a upon ap- which he based this conclusion (Tr. data participation er rate than would blacks.” record, pears nothing is in nowhere in the there 132). Vol. I at the record that would indicate it is an error. County by Dr. and none has been successful drawn the conclusion which to base However, opin- countywide the by majority elections. upon Buss relied and fact that in Fourth, ion does mention the each nowhere his testimo- not this case. the extent of the the two most recent elections in which indicate ny did Dr. Buss repre- voting white levels. have run for state in black and black candidates difference information, (Benson) (Arm- sentative, conclusion and that Without participation our), is “de- political that candidate received less than black black pressed” (Opinion is invalid.7 at n. half of vote. black states, 17). Instead, majority “[W]e 114 to 5 in the footnote factor Although expense, can take notice of the tremendous presumption permits Report Senate otherwise, monetary running and connection between that is a causal there office, and that the circumstances we find and de- disparate status socioeconomic in these are such that most two districts participation political pressed levels reasonably have not believed blacks could existing past discrimination where both they making chance of that have a would political participation depressed levels of showing, much less substantial of win- evidence, absolutely it by are shown 1058-1059). ning.” (Opinion recog- I is the nexus clear that causal that nize that contains evidence that the record Report. Nothing presumed by the Senate only limited blacks have had success statute, in the the Senate language winning But as will be discussed elections. law, cited Report, anything case or else below, fully population more and elec- majority referred to in plaintiffs, that tion statistics demonstrate blacks opinion, I have been to find or that able clearly could have been elected the Dem- proposition plaintiffs if stands for elections, discrimination, history primary majori- the Court and the show a ocratic presume participation the level of ty’s to me to conclusion seems be boot- depressed. process strapped findings from other factual which simply support does record in this case not by the supported are also evidence. any finding participation that the level Minority 4. Factor 2: Polarization political process is de- of blacks in the Voter Cohesiveness thus, pressed, factor has not been agree majority appro- I with the established. questions priate relative factor Appeal Racial in Elections Factor 6: proven whether the have and the cites entire record unit, voting are a cohesive politically example po- contains but one show that candidates, support whether whites Mahoning campaigns County litical voting usually re- and whether white bloc been characterized overt subtle racial group’s sults the defeat of the appeal, of the factors in the sixth the Sen- Thornburg v. Gingles, candidates. See 1056). Report. (Opinion ate While an 2752, 2769, 30, 56, 478 U.S. 106 S.Ct. accumulation of such incidents would be (1986) (inquiring racially into L.Ed.2d 25 factor, helpful support for to show “to polarized voting is needed ascertain single pro- incident in one election does not *29 minority group whether members consti- support vide sufficient for a conclusion that politically tute a cohesive unit and to deter- present in this this factor is case. sufficiently mine as a whether whites vote Extent to 3. Factor 7: Which pre- usually minority’s to defeat the bloc Blacks Have Been Elected However, candidates”). I ferred cannot agree majority's conclusions that 7, with the majority Regarding factor *30 22-31). majority opinion at here states group sponsor has never been able to a testimony voting Dr. candidate, that Buss’s on black rely courts must on other patterns voting racially indicates that is prove unequal factors that tend to access process. Similarly, polarized politically to the electoral and blacks are a cohe- elections, why municipal 8. There are numerous reasons data for the issues and concerns dramatically elections besides state house elections should of voters differ from those in example, not be For in Presidential considered. state house elections. 1076 excluding data from all-white-candi they because vote for the voting unit
sive
(Opinion
contrary
is
to the
in
at
date elections
statute’s
elections.
black candidate
However,
1057-1058).
requirement
make a
no evidence
courts
determina
blacks,
patterns
totality
of
of the
presented
voting
on the
tion “from
circum
whites,
only stances,
in
in which
a
set
or of
elections
not from selected
of circum
ran.
Even
Similarly,
white candidates
stances.” Id.
the Eleventh Cir
shortcoming
this is a
admits that
cuit in
Branch
N.A.A.C.P.
v.
Carrollton
of
data,
“it
have been use-
stating
(11th Cir.1987),
would
829
Stallings,
F.2d 1547
proof
voting
of black
denied,
936,
1111,
ful to have statistical
cert.
485 U.S.
108 S.Ct.
a
patterns in the absence of
black candi-
(1988),adopted
272
of
99 L.Ed.2d
view
14).
at
(Opinion
date.”
1057 n.
plurality
Gingles plurality. “[A]s
said,
language
of the
has
of
Court
‘both
fact,
plurality
Gingles
in
stated
2
understanding
and a functional
of the
§
if
as a
that to determine
blacks vote
racial
dilution,
phenomenon of
vote
mandate
bloc,
key
not
black
is
whether
voters
that the race of the
conclusion
candidate
group,
vote for a black candidate as
but
per
voting
racial
se is irrelevant
bloc
particular
whether
vote for a
candi-
”
analysis.’
(quoting
Id. at
Gingles,
regardless of that
group,
date as a
candi-
2775).
opin
at
As the
68,
S.Ct.
withdrawn
at
Gingles,
date’s race.
478 U.S.
noted,
ion of the Sixth Circuit
this case
(plurality opinion).
S.Ct. at 2775
Justice
voting many
elections
influ
Brennan
“Under 2 it is the
“While
stated:
status
§
candidate,
representa-
enced
the race
of the candidate
the chosen
such
particular
group,
polarization
sig
not the
tive
racial
should not overshadow the
of
important____
race of the candidate that is
nificant number of
who
for
voters
vote
voter,
Only
race of the
not the race of
candidates who
not members of their
candidate,
race,
to vote dilution
relevant
represent
their
but who
interests.”
Thus,
analysis.”
(plurality opinion).
Id.
Ohio,
88-4040,
v.
No.
Armour
State of
plurality
believed that courts should
8710,
(6th
7, 1990)
*9
1990 WL
Cir. Feb.
examine
elections in which there were
withdrawn).
both
(opinion
Only the Fifth Cir-
candidates and
white candidates
determining
cuit
concluded
has
voter
only
there
those which
were
white candi-
requires
polarization and cohesiveness
an
(“all-white-candidate” elections).9
dates
examination of whether black voters as a
group vote for black candidates in elec-
adopted
At least two Circuits have
Jus
tions,
than an
of
rather
examination wheth-
reasoning
tice Brennan’s
and concluded
particular
er black voters vote for a
candi-
that the race of a candidate is irrelevant to
group,
date
regardless
as a
the candi-
polarization
voter
and that
the evidence
date’s race. East
v.
Coalition
voting pat
should include data as to black
Jefferson
487,
(5th
Jefferson,
Parish
926 F.2d
elections,
just
terns in
all
ones which
Cir.1991)(district
did not err in limit-
court
a black candidate runs. The Tenth Circuit
ing analysis to elections with black candi-
Bond,
(10th
v.
the additional
representatives
of their choice
elect
not demon-
Report, the evidence does
ate
impaired by
the election of a multi-
elected
responsiveness a lack of
strate
member electoral structure. We have no
group,
plaintiffs’
>f
to the needs
officials
permits,
occasion to consider whether §
plaintiffs have not established
and
does,
if it
standards should
and
what
simply
Finally,
the record
factor.
because
to,
pertain
brought by minority
a claim
a
finding that under the
support any
does not
group,
sufficiently large
that is not
factors,
line
the district
totality of all these
compact
majority
to constitute a
plaintiffs denies or
challenged by these
district, alleging
single-member
that the
vote,
right to
the second of
abridges their
impairs
of a multimember district
its
use
Report
factors in the Senate
the additional
ability
elections.
to influence
irrelevant.
is
We note also that we have no occasion
the standards
to consider whether
we
Respect
of the Law With
III. Discussion
apply
respondents’ claim that multi-
to Section Claims
operate
districts
to dilute the
member
A. Existence
an
Claim
Influence
geographically
vote of
cohesive
their claim on the
plaintiffs
base
large enough to consti-
groups, that are
a cause of action
premise that
single-member
majorities
tute
districts
impairment of their
2 for
under Section
contained within the bound-
and that are
influence the outcome of elections
ability to
challenged multimember dis-
aries of the
challenged
placement of the
because of the
tricts,
fully pertinent to other sorts
in a
majority
line. The
footnote
district
claims,
a claim
dilution
such as
of vote
opinion
that it need not reach
its
concludes
large
alleging
splitting
of a
such a cause of action
the issue of whether
minority be-
geographically cohesive
plain-
it has found that the
exists because
or sin-
or more multimember
tween two
showing the
have met their burden of
tiffs
in a dilu-
gle-member districts resulted
ability to elect a candidate of their choice.
minority vote.
tion of the
19).
(Opinion at 1059-1060 n.
2764 n. 12.
at 46 n.
ence” claim Any opportunity abridgement of the impairment there observed protected partic- class members of to opportunity minority group of a small political inevitably ipate process in the participate process impair in the would ability impairs to influence the out- their opportunity their influence the outcome is come of an election. As statute clear, however, It election. written, however, inability to elect the Court in did not decide what Chisom representatives of their choice is not suf- standard for Section violations. unless, ficient un- to establish a violation very opinion, At the outset its the Court circumstances, totality der the it it specifically identified the issue before can also said that the members of the be holding its on that issue: opportunity to protected class have less political presented by participate process. The in the The question this case protects separate and whether this “results test” statute does not create two (a) right judicial rights. distinct covers ev- to vote state elections. Subsection stan- tion 2 results claim. qualification, majority of a is not ery application dard, procedure suggesting plaintiffs that results practice, or here have a vote claim, abridgement right” of “the dilution such as that in a denial or found in Gin- singular form is also used gles contemplated by to vote. The itself or the second (b) referring to an paragraph in subsection when sug- of footnote 12. Nor is it class injury protected members of the gesting have a Section 2 “opportunity” than others have less impairment who claim ability of their process participate “to elections, influence type the outcome of representatives of their to elect of claim Supreme about which the Court plain It distort the mean- choice.” would speculated in paragraph the first of foot- ing of the sentence substitute note 12 in Gingles. here is for the word “and.” word “or” citing Gingles proposi- for the Chisom *35 a minority group tion that too small to Thus, Chisom, 111 at 2365. while the S.Ct. in majority single-member constitute a recognized the two explicitly Court district ahas cause of action for the failure prongs of 2 set out in subsection Section Reapportionment of the Board to draw the (b), opportunity impairment i.e. the legislative district process encompass lines so as to participate to minority group all of this impairment ability single- the to elect candi- within one the of dates, ability member district so that their in- are essential to establish Sec- to both violation, fluence the tion 2 it declined to set the stan- outcome of elections will be necessary only the elements to maximized. That possible dards or address is the meaning those two majority’s demonstrate the existence of term “dilution of light influence,” In prongs any given minority in case. of this my and it is belief that limitation, majority’s express I believe the simply support there is no proposi- for that Supreme claim that in the Court anywhere Chisom tion in the law. minority
“suggested” that a “dilution of
B.
in
Claim
the Context
may
influence
sufficient to sustain a
be
Influence
This Case
section 2 results claim” is incorrect.
importance
only
The
of this review of the
if
support
judicial-
Even
there were
for a
claim,
authority
ly
proposition
for the
that there is a
created influence
such a cause of
impair-
2
amorphous
vague
cause of action under Section for
action is
at best.
ability
majority’s holding
ment of the
to influence the outcome The
that the first Gin-
upon
gles precondition
apply
clear
a careful
in
of an election becomes
does not
this case
in
majority opinion
opens
by any
review of the
this case.
the door to Section 2 claims
size,
minority group, regardless
of the footnotes in
After its discussion
Gin-
whose
majority
aggregated by
here cites
have not
gles,
Chisom
numbers
been
minority
suggesting
apportionment
Skorepa
that a “dilution of
in-
authorities.11 See
Vista,
1384,
F.Supp.
City
fluence
be sufficient to sustain a See- v.
Chula
"[cjourts
recognizes
majority opinion
might
marginal
11. The
that some
be flooded
the most
plaintiffs
section 2
if
had to show
applied
preconditions
claims
courts have
in cases
practice
procedure
that an electoral
weak-
majority
required
in which a
vote was not
to
ability
ened their
947;
to influence elections."
Id. at
election,
distinguishes
but
them because
win the
Vista,
Skorepa
City
accord
v.
Chula
challenges to multi-mem-
those cases "involved
1384,
(S.D.Cal.1989).
F.Supp.
Similarly,
in
districting
are
ber
and therefore
not relevant
to
Ham,
Cir.1989),
(5th
Brewer v.
876 F.2d
presented
(Opinion
the issues
in this case.”
applied
numerosity precondi-
Fifth Circuit
2).
majority
explain,
does not
1052 n.
how-
challenge
at-large
tion to a
to an
feature of the
ever, why
analysis
should be different
in a
held,
system.
election
The court
"If the minori-
challenge
single-member
plan.
to a
district
ty group
dispersed throughout
is
electoral
regard.
in this
Several cases are relevant
In
proportion
district or is so small
to the
Dist.,
Springfield
McNeil v.
Park
candidates of their
Violation Under
of Intentional
IV. Claim
prefer the
ninety percent of black voters
and the
the 15th Amendment
Both
express
Democratic candidate
Voting Rights Act
voting Demo-
consistently by
preference
there has
concludes
win,
crat,
obviously,
candidates
and those
the Fifteenth Amend-
been a violation of
years in
years, and will be
there have been
Constitution
ment of
United States
future,
minority popula-
in which
prong
2. The Fif-
of the intent
of Section
if all of
will not win even
tion’s candidate
rights
“The
provides,
Amendment
teenth
polls,
unless there
voters come to
its
shall not be denied or
citizens to vote
vot-
degree of white cross-over
was some
by any
abridged by the United States or
LLL).
(Plaintiffs
AA
ing.
Exhibit
&
color,
race,
previous
State on account
minority voters cannot elect a
fact that
provision pro-
condition of servitude.” This
every year, how-
their choice
candidate of
on the
hibits intentional discrimination
ba-
ever,
minorities lack
does not mean that
relating
voting,
race in matters
sis of
candidates of their
potential
to elect
Bolden,
City Mobile v.
446 U.S.
61-
Gingles,
the test for
choice. As stated
1490, 1496-97,
choices evi- Plaintiffs have (emphasis at 2765 U.S. at 106 S.Ct. proving drafting that the dence case, added). majority’s present In the the boundary and Dis- between District 52 superiority” “numerical would not have First, racially trict 53 was motivated. minority’s candi- defeated the regularly Dykes, political a consultant hired Robert fact, in of the last date of choice. In three Party draft an by the Ohio Democratic since five Ohio House elections apportionment plan, testified that eligible voters could have defeated designed plan adopted by team that pri- all other candidates in the Democratic regard- sought out information state challenged mary in one of the two districts pop- ing the location of substantial black merely superi- numerical because their When the ulations within the state. (Plaintiff’s LLL). AA ority. Exhibits & determined that there was drafting team large enough population black to form sufficiently politi- If the black voters are district, for a shift- a black cally as a for their cohesive to vote bloc closely approxi- ed boundaries to more pri- of choice in the Democratic candidate if, contend, population. This was ac- this mate the black mary, and as the notwithstanding complished the mandate is tantamount to election because the Dem- only portion of Mr. tes- that “district Celebrezze’s Constitution the Ohio by preceding timony possibly that could be construed as established boundaries adopted to majority’s appears shall be to the discussion apportionment board related 15-18, reasonably consistent with pages reprinted and is in the extent below 3 of this article.” of section requirements entirety: its However, 7(D). if XI, the black
Art. Q. youDo know where the data that majori- constitute a could not population developed by Party was the Democratic district, that the Dykes in testified ty plan, you for its do know where that data attempt to conform did not drafters is located now? Fur- concentrations. boundaries to black No, I A. don’t. thermore, testified Secretary of State Q. Now, in the formulation of the was con- apportionment board that the proposal concerning the Democratic their wanted tacted incumbents who reapportionment, you do know whether Finally, the evi- “protected.” districts concerning compo- the racial information legisla- the incumbent dence showed that sition of the various locations around the white, were these incumbents tors were state, if that information was considered voters, voting in the supported white drawing in district lines? racially polarized, and the was districts safely Democratic. districts were directly IA. don’t know that it was evidence, find that the we I From considered. know that there was an dividing Youngstown incumbents, dis- protect minority line between effort to es- originally it was Cuyahoga County, drawing trict 52 and when in pecially it was left drawn in 1971 and when Cuyahoga County, the lines because split place in was intended something that discussed that was community order to dilute meetings I that was at. How that vote, effectiveness of the black potential physically drawing into translated of the incum- to the obvious benefits lines, just I don’t know. bents. Q. Now, this effort that was under- 1060-1061). Although the ma- (Opinion at Cuyahoga County, taken relation to opinion specific portions not cite
jority does concern, or who initiated that what was support its version of the record that would you say you when talked the source above, thorough quoted the facts after a about— I review of the record have determined only My understanding was not A. anywhere in this record evidence all minority incumbents but incumbents in- relate to which could be construed to process who are apportionment in an drawing lines to cumbency or the of district their, districts and very concerned about deposi- preserve is found incumbents happen. There going were what Celebrezze, Jr., Anthony who was tion of contacts fairly number of substantial *39 Secretary challenged the dis- of State when protect dis- try made to and incumbents’ reap- in the 1981 preserved trict line was possible. It’s a natural tricts whenever Ex- presented as Defendant’s portionment, to do. thing for an incumbent testimony trial of Rob- and the hibit Q. there my question But is: Was a to Dykes. Because it is inconceivable ert special protect to cer- concerted or effort testimony this could have been me that they were minority districts because tain opin- prove the construed to what by minority group members represented produced says plaintiffs have ion the —that they were incum- rather than because discriminatory strong intent—I evidence of bents? testimony of Messrs. shall set forth the Yes. length A. Dykes and at below.14 Celebrezze or maintain black majority’s in order to create passing reference drawn that the
14. I note in completely to these majorities irrelevant wholly a violation of the Ohio Constitution to dividing challenge the 52nd plaintiffs’ of the line presented in this case. irrelevant to the issues Districts. and were and 53rd districts other than 52 Whether This Q. the Constitution. whom did that concern bents follow And from that support cannot conclusion evidence emanate? lines were drawn with racial animus. the from incumbents. Mainly A. I aware only place that am That’s Dykes by the was hired Robert came from. the discussions that party Democratic as a technical consultant Q. Mr. asking Tipps I’m if Mr. Reapportionment to aid members that es- Lehy drawing plan or someone like that —was House Board the Ohio (Tr. high priority by the leader- II at 478- tablished as a and Senate Districts. Vol. Party? 79). plaintiff’s ship of the Democratic On direct examination counsel, line Mr. first noted that the Dykes priority A. It was established as a House between current 52nd and 53rd following the Con- the context of within actually Districts had been established an that stitution. There was awareness previous reapportionment if minority protected, should districts be (Tr. merely II followed Yol. possible. I a con- that was think it was 492). testimony continued as fol- at His try protect to scious decision to lows, that into incumbents. How translated Sir, Q recognize you Plaintiffs’ do plan, I actual I am not because aware Exhibit G? they doing the wasn’t there when were IA do. plan. actual Q Sir, you please what would state Q. point I’m interested this be- Plaintiffs’ G is? Exhibit trying I am to what cause determine rep- IA Plaintiffs’ G procedure could have been or what the believe Exhibit representation a graphic resents minority dis- objective was in relation to County in Mahoning House District lines tricts, distinguished as districts from today. exist at which Democratic officeholders Sir, Q you reapportionment time of encumbered. are these lines that drew trying I’m the initia- either followed or at the time to determine what you performed your work on behalf of Party at Democratic tive was level party? the Ohio Democratic provide your response previous to the — question suggests They there were some A are. that.
additional measures taken for Q Sir, you recall this was do whether pro- configuration you A. initial sub- There were measures taken which tect, protect minority Ma- party Be- mitted the Democratic for incumbents. that, guidance honing County? yond that was developing given plan as far as was to said, A As I I don’t with cer- recall Constitution, basically follow which tainty, but I do believe it was. whole, says that have to counties remain Sir, Q speak you any did possible. get townships, if You into legislators encumbent from Mahon- [sic] cities, wards, city villages. And our ing County you the time sub- that, guidance was to follow follow your plan Mahoning mitted initial mandate of the Ohio Constitution. County? this,
(Defendant's Again, An- Deposition Exhibit A I have tried to recall 15-18). did, Celebrezze, I’m I thony not certain. believe we positive. I’m but testimony simply one cannot From *40 Sir, Q you do recall who the encum- in the conclusion that 1981 the lines draw legislators were at the time? bent [sic] (or left accurately, were drawn more were A I do they were) not. with the to dis- where intent against fact, Sir, Q criminate blacks. Mr. Cele- you plan know the do whether nothing testimony brezze’s you establishes that to the Democratic submitted that, creating maintaining than in party Mahoning County plan more or was the districts, legislative reapportionment subsequently adopted by that was sought protect minority Apportionment incum- board Ohio Board? laid down rules we laid down that were was.
A I believe it Constitution, that, we would not do me, is the Excuse that THE COURT: doing I think. I don’t recall us don’t plan you drafted? not, that, certainly but if it did we would That is. THE WITNESS: population at the as a factor in look black accept- adopted or THE Was COURT: certainly in drawing the lines and draw- Democratic by your employers, the ed ing population in to concentrate black subsequently accepted by and then party, represented by legislators. districts black or Board? Apportionment Committee Q approach in Was there a different Yes, by the THE WITNESS: represented by a districts that were not the vote was strict- the Board because legislator? black in the Board. ly along party lines ap- A I think there was a different many Demo- Q you know how Do proach in districts that were in counties were on the Board? crats there that did not have or areas of state were, well, I can’t I there A believe population; black for exam- substantial or seven. if the Board was five remember ple, way I and the reason answered four to to two or It was either three Repre- we have a black State because three, way it was. whichever sentative from Akron. Sir, Q you time that drew at the Now, we did not have one then. There Mahoning County you fol- line for population in Ak- was substantial black line, you know the previous did lowed ron. It was all in one district before we of blacks composition racial and location lines, recall, really as I and we drew Mahoning County? adjustment. made no The lines Sum- A We did. extent, county adjusted mit were to some Sir, Q you calculate the total did I in that that we but don’t recall case Mahoning County? number blacks any adjustment, certainly we made but people A The total number black population at it to see if the black looked County every coun- Mahoning and indeed County basically in one Summit was provided to us ty in the State was district, did that and the reason we Census, had that number. so we U.S. County clearly there in Summit Sir, guidance, Q you testify what did enough population to form black any, you received from the Ohio if district, and, indeed, majority for a we concerning ap- party how Democratic representative today from have a black there were black portion counties where County. Summit populations? doctor, Now, you have used the Q Well, ear- A as I have mentioned population.” term “substantial black lier, eight sure we did for the I’m not you mean substantial black What do state, and for major cities population? state, really, major eight counties majority of A An area in which the characteristics of the look at the racial black. people in the district would be certainly and we had black populations, rely point on the Q Why you did and the Senate at members of the House majority of blacks de- demarcation of District, time, drawing we and in lines would be drawn? termining where cognizance to where the black paid some exactly why that was A I don’t recall was in those counties draw- population point of demarcation. ing those lines. you Q Was that a decision Sir, cognizance prompt
Q did that made? action in terms of course of particular honestly lines would be located? recall.
where the A I don’t degree. you decid- A To some whether Q You don’t recall not? ed that or Q Sir, degree? to what *41 can’t, not, I I cannot to, suspect I but Well, A clearly going not A we were answer. give you a conclusive violating meant on the if it would have population the of each ward of calculated you received you recall whether Q Do popula- the City, and we calculated the Ohio Democratic the from any guidance persons and white concerning persons of the black tion of treatment black party config- the In the case of in connection with in of those wards. each population Cuyahoga District. City of Coun- uration of Cleveland as we have a sub- ty, particularly, more In terms of Yes, I did. I’m sure A know, was, population black as you stantial suburban exactly it how specifics, well, cognizance after all some remember we did take difficult to put, it is population was said. was in the exactly what where the black years these City of Cleveland. 492-97). After a discussion (Tr. Vol. II at Mahoning County, in representatives tracts at that of the census had black We occurred, colloquy following time, certainly form a ma- and we could so, district, again, adher- sir, jority black Now, you went down Q County, rules that the Constitution set Mahoning ing did to the census tracts rules, instance, down, also those we know, and within for you [tract] popu- makeup paid cognizance of to the black you know the racial some did area? lation. A We did. 503-05). (Tr. II at Vol. you make of that Q use would What If, fact, relying on Mr. majority information? argument, testimony support its Dykes’ County, Mahoning of A In the case majority saying is that if in what the recollection, gathered my we the best drawing reapportionment district lines a data, specifically did not use we but population looks at breakdowns board majority not a there was it because blacks could consti- race in districts where county, majority population in the black looking at the majority, tute a then not of a district. composition in districts where blacks racial majority is intention- could not constitute a cognizance of Q you take So did interpreta- al discrimination. Under instance, lived, Ma- blacks where Constitution, any States tion of United one anoth- honing County in relation to attempts to reapportionment time a board er? black dis- maintain or create lived, they but A knew where We certainly would trict —which such boards Mahoning County and drawing the line in they obliged to do whenever believe City Youngstown, with the City in the enable population is sufficient kept particular, we Youngstown, fails to draw districts them to do so—but previous it line where voting strength of maximize the which pay spe- did not reapportionment. So we numbers are not suffi- blacks where their population; cognizance to the black cific permit drawing of a district cient to where it was. although we knew majority, the constitute a which could Q approach different than your Was Amendment. To board violates the 15th you previously referrred what [sic] that the actions put way, it another to find major metropolitan areas? to as the six in violation in this case were of the board Yes, approach was different in
A is to find that of the 15th Amendment areas. those geographi- race of taking into account the large Q you cally group did do in those areas? of blacks What cohesive legisla- majority in a enough to constitute a Well, say me correct A I should —let against small- tive district is to discriminate principally the myself say that it was race, to do so on the groups of that er there were differences. same but Or, maximizing their race. basis proce- was the part that was the same blacks, group regard- ability any matching geography census dure of size, intentionally discriminate less of is to In the case of political geography. them, race. I of their Cleveland, sitting, against on basis in which we are we
1089
non-minorities,
notion. The 15th
accept
were then moved into
cannot
require
to max-
up
does not
states
Amendment
these wards to make
the
deficit with
every
voting strength of
and
imize the
each
resulting sharp
propor-
reduction in the
voter;
imposition
prohibits the
it
tion of blacks in those wards.
the
voting practices
procedures
or
with
deny
abridge
right
to vote.
intent to
haveWe
discussed above several ex-
support
conclusion that there was
To
its
amples
minority voting
of the dilution of
by
discrimination
the defendant
intentional
strength through manipulation of ward
case,
majority
cites
v.
in this
Ketchum
in-
Appellants
alleged
boundaries.
(7th Cir.1984), cert.
Byrne,
other of the District Court shall be panel. appointed to serve on this V. Conclusion IT IS SO ORDERED. above, For the I re- reasons set forth spectfully majority’s opin- dissent from
ion.15 HILL, Plaintiff,
Mary R. v. ARMOUR, al., Plaintiffs,
Ezell et COMMUNITY, RETIREMENT JUDSON Defendant. v. No. C88-3956. OHIO, al., et Defendants. STATE Court, United States District No. 88CV1104Y. Ohio, N.D. E.D. Court, United States District Sept. 1991. Ohio, N.D. E.D.
Sept. Bollas,
Percy Squire, Bernadette J. Eckler, Columbus, Ohio,
Bricker & Robert Sr., Ohio, Douglas, Youngstown,
A.
plaintiffs. Sutter, Cola,
Andrew I. Catherine M. Schaefer, Office, Atty.
Theresa R. Gens.
Columbus, Ohio, for defendants. JONES,
Before NATHANIEL R. Circuit PECK,
Judge, JOHN W. Senior Circuit BATCHELDER,
Judge, Judge. District 15. Because I find that neither Section 2 nor the elect blacks could candidates of their violated, Fifteenth Amendment has been I have reconfigured choice in a district. majority’s no occasion to address conclusion notes that the Section 2 of the Voting Rights Report Acts has the Senate sets out seven been violated. The remaining Report Senate factors and the probative factors which of the issue be evidence in the record need to carefully be of whether a Section violation has oc- examined. curred, as well as two additional factors inmay prove which some cases useful in B. The Remaining Report Senate determination, that these factors are Factors exclusive, magic and that there is no 1. Factor 5: Effects of Discrimination number combination of these factors Report The Senate lists as one of the which must be demonstrated order to factors relevant to the totality of circum- prove important such a violation. It is test, stances out, point however, that as a matter of the extent to which members of the mi- logic, prove order to such a violation in nority group political the state or sub- light totality of the circumstances as division bear the effects of discrimination factors, determined these or other education, in such areas as employment clearly least some of them must be shown health, which hinder ability their present. perspective be It is from this participate effectively pro- that the record this case as well as the cess;114 majority opinion must be examined. recognized 114 The dispro courts have
Notes
notes
plaintiffs
politically
cohesive
these
are
only
that
one black candidate ever has been
unit,
Mahoning voting
support
do not
representative
elected
from
that whites
state
majority opinion
process.” S.Rep.
Although
417 at
1982 U.S.C.C.A.N.at
7.
concludes that
Mahoning County participate
simply
"blacks in
in the
opinion
The
does not address the
207.
political process at a lower rate
whites"
than
participate
question
can
effec-
of whether blacks
24),
(Opinion
that statement
at
does not answer
process.
tively
political
The
in
in the
record
question regarding
namely
the ultimate
factor
provides
support for a conclusion
this case
no
past
whether
discrimination
their
"hinder[s]
cannot.
ability
effectively
participate
political
in
candidates,
therefore,
minority
and that
“in
group
begun
where
has
sponsor
of events white bloc vot-
just recently,
the usual course
candidates
the fact
minority
ing
result in the defeat of the
only
will
statistics from
one or a few
(Opinion at 1057-
group’s candidates.”
elections are available for examination
1058).
simply
record in this case
will
The
does not foreclose a vote dilution claim.
support
these conclusions. The evi-
not