Lead Opinion
This case and a companion case, Perry v. City of Opelousas, 5 Cir. 1975,
I
Ferriday, Louisiana, is a town of 5,200 people in Concordia Parish, in the northeastern part of the state. As is common in other towns in the area, Ferriday’s population is closely divided between blacks аnd whites: the 1970 census counted about 3,000 blacks (58%) and 2,200 whites (42%). In March, 1972, the voters of Ferriday went to the polls to elect various local officials, including five aldermen, all of whom were to be elected at-large, with no residence requirements. It is fair to say that the town is both highly politicized and racially polarized, so that when the voters were faced with a choice of five white candidates and five black candidates, they apparently opted right down the line for racial solidarity, with whites voting for whites and blacks voting for blacks. Since whites enjoyed a very slight edge in voter registration over blacks (1,571 (50.5%) to 1,538 (49.5%)),
Even if they were not surprised, the defeated blacks were very unhappy with absolutely no black representation on a Board of Aldermen in a town with a black population majority. The black candidates accordingly filed this 42 U.S.C. § 1983 class action in federal district court on June 13, 1972j charging that Ferriday’s all-at-large voting scheme impermissibly diluted the votes of local blacks, and asking for appropriate declaratory and injunctive relief. The court ordered each party to submit alternative redistricting plans, and a bench trial was held on April 24 and 25, 1974, after which the district court concluded that only single-member alder-manic districts would sufficiently guarantee to the black voters the full efficacy of their right of suffrage.
II
There is no question that Ferri-day’s all-at-large aldermanic election scheme operated to dilute the votes of the black citizens of the town, in violation of the Fourteenth and Fifteenth Amendment rights of that near-majority of the local electorate. As this Court noted in Howard v. Adams County Bd. of Supervisors, 5 Cir. 1972,
The Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution. Clearly, it is not enough to prove a mere disparity between the number of minority residents and the numbеr of minority representatives. Where it is apparent that a minority is afforded the opportunity to participate in the slating of candidates to represent its area, that the representatives slated and elected provide representation responsive to minority’s needs, and that the use of a multi-member districting scheme is rooted in a strong state policy divorced from the maintenance of racial discrimination, Whitcomb v. Chavis [1971,403 U.S. 124 ,91 S.Ct. 1858 ,29 L.Ed.2d 363 ], would require a holding of no dilution. [Chavis] would not be controlling, however, where the state policy favoring multi-member or at-large district-ing schemes is rooted in racial discrimination. . . . [W]here a minority can demonstate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that existence of past discrimination in general precludes the effective participation [of the complaining group] in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court’s pronouncement in White v. Regester [1973,412 U.S. 755 ,93 S.Ct. 2332 ,37 L.Ed.2d 314 ], demonstrates, however, that all these factors need not be proved in order to obtain relief.
In this case, plaintiffs presented evidence that, with one recent and fortuitous exception,
A large part of the explanation for this inexcusable neglect of black inter
The district court was thus presented with a history of a dearth of black representation in Ferriday municipal government, with clear indications that white aldermen have not been in the habit of rendering effective representation for blacks, and with evidence that the past practice of disenfranchisement of blacks has combined with present provisions of Lousiana’s at-large election machinery to make it almost impossible for blacks in Ferriday to compel any alderman to consider their interests. The court decided that at-large government as practiced in Ferriday was not constitutionally representative government insofar as the Town’s black citizens were concerned, and that the plaintiffs had made out a prima facie dilution case under the Zim-mer guidelines. Although the Board attempted to rebut plaintiffs’ case at trial by arguing that Ferriday is a friendly small town where everyone knows everyone else and votes for the best man, the Board admitted to this Court at oral argument that plaintiff’s dilution case had not been rebutted with respect to the all-at-large aldermanic districting scheme, and that the traditional scheme is unconstitutional. The able trial judge properly found that the all-at-large plan is irremediably defective, and that he correctly ordered the Board to submit a constitutional plan for his approval. The problem on appeal is whether the district court made the proper choice between the Board’s alternative plans.
A
The Board submitted two redistricting plans to the district court.
The practical politics of the controversy are simple. The first plan will create two “safe” white seats and two “safe” black seats, while the critical fifth aldermanic slot will be filled by the votes of all the registered voters of Fer-riday. Since the whites have an over-all voting'majority, however slim, and since almost every voter in the community seems to vote for persons of his or her own color, the at-large alderman will almost certainly be white and the Board will thus continue to be controlled by the Town’s white residents. On the other hand, both parties agree that any fairly-drawn division of the community into five single-member districts will yield two “safe” white seats and three “safe” black seats, so that control of the Board will pass tо the black residents of Ferri-day if the second plan is adopted.
Plaintiffs argue that the first plan— the plan the Board prefers — is an illegal “institutional” gerrymander, for the use of the one at-large district enables the whites to retain the political control that they would surely lose under an all-single-member plan. Defendants rejoin that the all-single-member plan would
B
The Supreme Court first set a normative standard for the “one man, one vote” doctrine in Reynolds v. Sims, 1964,
Since Reynolds, the Supreme Court and the other federal courts have faced various problems connected with the “one man, one vote” principle,
For the first few years after Reynolds, the Supreme Court declined to analyze the problems presented by multi-member districts, aside from noting in Fortson v. Dorsey, 1965,
Then, in Whitcomb v. Chavis, 1971,
The Court began its discussion by stressing that multi-member districts may in some cases dilute minority voting rights in' an impermissible manner, particularly if the districts are large or if the election scheme lacks residence requirements (so that all of a district’s representatives might live in one area of the district), thus enhancing the prospects of majoritarian monopoly of representation. That said, thе Court noted that challengers of election schemes have the burden of demonstrating the unconstitutionality thereof, and concluded that
The Supreme Court held, however, that the disproportion between black residents and black legislators did not prove invidious discrimination absent evidence and findings that blacks in Marion County
had less opportunity than did other [citizens] to participate in the political processes and to elect legislators of their choice. We have discovered nothing in the record . . . indicating that [blacks] were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented оn those occasions when legislative candidates were chosen. Nor did the evidence show . . . that [blacks] were regularly excluded from the slates of both major parties, thus denying them the chance of occupying legislative seats.
The voting power of [blacks] may have been ‘cancelled out’, as the District Court held, but this seems a mere euphemism for political defeat at the polls . . . The mere fact that one interest group or another has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where . . there is no indication that this segment of the population is being denied access to the political system.
Although Chavis did not provide an opportunity for the Supreme Court to demonstrate precisely wherein multi-member plans may suffer from constitutional infirmities, a better occasion soon presented itself in White v. Regester, 1973,
The Supreme Court affirmed the judgment of the district court, and so held for the first time that a multi-member plan devised by a legislature was unconstitutional. The Court rejected the notion proposed by plaintiffs that “every racial or political group has a constitutional right to be represented in the state legislature,”
it is not enough that the group . . . has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.
The right to vote considered in Chavis and Regester implies that the voter have some reasonably meaningful participation in the choice of candidates and of policies. When the Court condemned political systems where substantial minority groups are effectively excluded from the nomination and election process, it, meant that to give a black voter a choice^ of voting for one of three white candidates who know nothing and care less about his or her interests is to render the vote nugatory and the right meaningless.^ Of course, such a situation could and does occur in single-member districts where the aggrieved minority may be so small as to command no consideration by elected public officials, although in such a case it might be argued that where a minority is sufficiently small, there can be no substantial dilution of its politically insignificant vote. The particular vice of multi-member districts, however, is their tendency to minimize minority representation even at the lowest political levels in a way that could not occur if single-member districts existed in their stead. Multi-member districts thus posé 7 a problem of degree of fair representation — “fair” not in the sense either of “considerable” or of “proportionate,” but rather in a general sense of equity. Chavis and Regester represent efforts to decide whether a particular political system is fair in this general equitable sense; the two cases make the dilution doctrine an intensely practical, factually-oriented rule against fundamental unfairness. It is for this reason that the] Court placed so great a reliance on the" records to support or refute plaintiffs’ contentions that their respective interest groups were precluded from exercising
on the record before us, we are not inclined to overturn [the finding of the district court that the multi-member system in San Antonio effectively negated the votes of local Mexican-Americans], representing as [it does] a blend of history and an intensely local appraisal of the design and impact of the [San Antonio] multimember district in the light of past and present reality, political and otherwise.
C
The federal district courts and courts of appeal have had many opportunities to apply the dilution doctrine to various fact situations and to distill from the Supreme Court’s cases additional guidelines for decision. Chavis and Re-ges ter hold explicitly that no racial or political group has a constitutional right to be represented in the legislature in proportion to its numbers,
This Court has decided several dilution cases in recent years, and although we have consistently adhered to the proposition that “access to the politi=v cal process and not population [is] the barometer of dilution of minority voting strength,” Bradas v. Rapides Parish Police Jury, 5 Cir. 1975,
In Turner v. McKeithen, supra, we dealt with another multi-member election scheme for a Louisiana parish police jury. The record in Turner contained the usual history and lingering effects of racial discrimination and revealed that although blacks constituted a substantial portion of the parish population, no black had ever been elected to the police jury. The evidence also showed that blacks were neither considered nor consulted in the candidate slating process, but that the black vote was instead solicited “at a stage when the actual candidate selection has already occurred and the possibility for meaningful influence is significantly diminished.”
Zimmer and Turner are good examples of the proper application of the principles of the dilution doctrine. The Court in both cases paid close attention to the facts of the particular situations at hand, to the history of studied neglect by elected representatives of the interests of a large number of their own constituents, to the practical effects of electoral schemes which were likely to perpetuate that shameful failure of representation and to the apparent absence of any rational state or local policy in support of
IV
With respect to the case at bar, we have already discussed the reasons why Ferriday’s traditional all-at-large alder-manic election system dilutes the voting rights of local blacks in a substantial and therefore unconstitutional fashion. The situation here is in many respects very like those of Zimmer and Turner. The long history and continuing effects of racial discrimination, the failure of the local political organizations to consult blacks regarding the slating of candidates, the unresponsiveness of the elected aldermen to the needs of the black community and the Louisiana anti-single shot and majority vote requirements have combined to give the white voting majority an absolute dominion over local politics by means of the all-at-large system.
We believe that the trial court was mistaken in adopting its per se rule in an area so factually-oriented and practically-based as this one, and we find that a thorough study of the Board’s mixed single-member-at-large-member plan requires the conclusion that the scheme is not unconstitutional. If the mixed plan were to be adopted, the political life of Ferriday would differ in several crucial respects from its present configuration. Of primary importance is the fact that the plan assures local blacks of at least two aldermen who will necessarily be accountable to the overwhelming black population of their single-member districts. The Board’s mixed plan is a great improvement over its predecessor for other reasons as well. Where there is only one at-large member to be selected in a given polity, neither the anti-single shot law nor the majority vote requirement can invidiously discriminate against minority voters. If there is only one at-large place to be filled and there are minority candidates, then minority voters can vote for minority candidates. If there are no minority candidates, the minority voter can refrain from voting for a majority candidate without voiding his other votes. In a one-party community such as Ferriday, the requirement that a candidate receive a majority of the votes cast in the first primary if he is to avoid a second primary has historically enabled the white majority in Ferriday to defeat in the se ond primary all black candidates for-tu iate enough to survive the first primary. If there is only one at-large seat, however, the majority vote requirement is no longer objectionable. Even if the voting in Ferriday continues to be along racial lines and a white candidate defeats a black candidate for the position, it would be difficult tо complain about such a result since a majority of the voters are white. Of course, the same thing could be said about the majority vote requirement in an all-at-large setting; however, the effects of this electoral device, standing alone, are not particularly discriminatory in any case and are minimized where there is only one at-large position effected by the rule. The majority vote requirement will no longer be fundamentally unfair to black voters if the Board’s mixed plan is implemented. Furthermore, in a community where there is a precarious balance between white and black voting strength and where black voters are in the habit of voting in their own interest, it is improbable that white candidates for the one at-large position will be so confident
Plaintiffs would urge that none of these practical considerations can refute the district court’s conclusion that the one at-large position renders the Board’s mixed plan unconstitutional, for no one denies that defendants’ insistence on the one at-large seat will almost certainly prevent blacks from gaining control of the Board of Aldermen. Plaintiffs contend that the effect of the plan is ample proof of its discriminatory purpose. These arguments might be entitled to great consideration if the governmental interest advanced in support of the at-large device were of the new and questionable sort found in Zimmer and Turner, for those cases show that a tenuous state policy underlying the preference for at-large districting is a good indication that the scheme is intended to dilute the vote of minority interests. But the situation here is very different from those of Zimmer and Turner in that respect.
At-large voting in aldermanic elections has been the state policy of Louisiana since 1898; the policy is presently codified as La.Rev.Stat. 33:381. The reason usually given in support of at-large elections for municipal offices is that at-large representatives will be free from possible ward parochialism and will keep the interests of the entire city in mind as they discharge their duties. While this theory does not always hold true in practice, as the experience of Ferriday’s black citizens attests, we cannot say that the rationale is so tenuous that it can be disregarded. Nor have plaintiffs demonstrated that the at-large device here was conceived as a tool of racial discrimination as appeared to be the case in Zim-mer and Turner. When the enabling legislation was passеd in 1898, and for the almost 70 years thereafter when the policy was in force across the state, there could have been no thought that the device was racially discriminatory, because very few blacks were allowed to vote in Louisiana during that period. As Judge Wisdom noted in. Taylor v. McKeithen, supra:
Historically, there has never been any nexus whatever in Louisiana between the [use of particular electoral devices] and the denial of access of blacks to [public office]. In this century, until this Court compelled parish registrars of voters to register blacks and until the Voting Rights Act of 1965 was enacted and enforced, blacks could not be elected to [public office] —to be blunt — because there were no black voters. It is as simple as that. Since adoption of the Louisiana Constitution of 1898 and until recently, the legislature disfranchised blacks overtly; it was never necessary for the legislature to resort to covert disenfranchisement of blacks by manipulating [apparently neutral electoral devices].
We would be callous indeed to tell plaintiffs that seventy years of illegality somehow legitimizes continued dilution of black voting rights, but that is not the thrust of our discussion. In order for there to be substantial — and thus illegal — impairment of minority voting rights, there must be some fundamental unfairness in the electoral system, some denial of fair representation to a pаrticular class. The seventy years of consistent state support of at-large elections for municipal offices strongly suggests that the broad political judgment upon which the policy is based is not racially-motivated, and the lack of racial motivation is at least some evidence of a lack of discriminatory effect. The only evidence that plaintiffs have produced to demonstrate that the Board’s plan will have an invidiously discriminatory effect is the suggestion that the very existence of the one at-large position will enable the white voters of Ferriday to control three aldermanic seats instead of two.
Under the mixed plan, the black citizens of Ferriday will certainly command the allegiance of forty percent of the Town’s aldermen, a share only slightly lower than the proportion of black voters in the entire electorate; such representation will give blacks that access to the political process which was denied to them under the all-at-large plans here, in Zimmer and in Turner. This new-found black political power is unlikely to permit the new Board to neglect black interests as former boards have done.
V
Since we have determined that both of the Board’s alternative reapportionment plans — the mixed plan and the all-single-member plan — were constitutional, we must now consider whether a federal district court which is presented with two constitutional redistricting plans should choose the one preferred by the governmental unit involved or whether the court should be. free to choose the “better” of the two plans. In other words, we must decide if the district court’s choice of the all-single-member plan is reviewable only under the abuse of discretion standard, as plaintiffs contend.
At the very beginning of judicial scrutiny of legislative apportionment plans, the Reynolds Court cautioned that “legislative apportionment is primarily a matter for legislative consideration and determination, and judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”
Even when an existing state or local election scheme is unconstitutional, the Supreme Court has consistently ruled that the legislative body involved ought, to be given a reasonable opportunity to devise a constitutional plan, and that if the legislature does so, its “freedom of choice to devise [constitutional] substitutes . . . should not be restricted beyond the clear commands of the Equal
As this Court pointed out in Reese v. Dallas County, supra, one reason for judicial deference in dilution cases is a “respect for the institutional limitations on the courts’ ability to gauge the ramifications of districting patterns. ... [In dilution cases,] the courts must evaluate evidence of the political alignments of allegedly disadvantaged factions and infer the intent of the legislature from actions that may have several plausible motives.”
We might therefore conclude that the district court was in error when it failed to adopt the Board’s constitutional mixed single-member-at-large-member electoral scheme. Plaintiffs contend, however, that even if the Board’s mixed plan is constitutional, the district court was within the bounds of reasoned discretion when it ordered the implementation of the all-single-member plan as the more equitable alternative. They base this equitable remedy standard on our Turner decision and on the Supreme Court’s recent decision in Chapman v. Meier, 1975,
A major defect in plaintiffs’ argument is that courts do not defer to
There is no legal basis for plain-' tiffs’ arguments in support of the district court’s choice of redistricting plans. We conclude that the trial court should have adopted the. mixed plan in deference to the Board of Aldermen’s considered preference for a plan incorporating one at-large place into the aldermanic election scheme.
VI
The district court awarded attorneys’ fees to plaintiffs on the basis of the “common benefit” and “private attorney general” rationales. The court reasoned that such an award was proper in that plaintiffs’ action has rid Ferriday of a blatantly unconstitutional aldermanic election system, thereby rendering a signal service to Ferriday’s black citizens— the full effectuation of their voting rights — and aiding the congressional intention embodied in 42 U.S.C. § 1983.
At the time of the district court’s decision, its award of attorneys’ fees on the private attorney general rationale was certainly justified by the general application of that rule by the lower federal courts. See, e. g., Fairley v. Patterson, 5 Cir. 1974,
It appears to us that the [private attorney general rule] would make major inroads on a policy matter that Congress has reserved for itself. Since the approach taken by Congress . has been to carve out specific exceptions to [the] general rule ., [federal courts] are not free to fashion drastic new rules with respect to the allowance of attorneys’ feеs to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases .
- U.S. at -,
The Alyeska Pipeline Court explicitly placed awards of attorneys’ fees in section 1983 actions within the prohibition of its decision and specifically disapproved our Fairley and Lee cases which had espoused the theory upon which the district court relied. We thus have no doubt that Alyeska Pipeline precludes any award of attorneys’ fees to plaintiffs on the theory that they have acted as private attorneys general.
However, the district court also found that “the Board of Aldermen’s steadfast adherence to a constitutionally unacceptable plan during the course of this litigation would amount to bad faith,”
VII
We hold today that pursuant to the rule of rational empiricism announced by Chavis and Regester, Ferriday’s traditional all-at-large aldermanic election system has operated to dilute the voting rights of the Town’s black citizens by depriving them of meaningful representation on the Board of Aldermen and thus denying them any hope of consideration in the affairs of the community in which they live. On the other hand, close scrutiny of the record convinces us
We do not write today concerning every election plan in every city and town in this Circuit for all time to come; we deal only with a particular proposed aldermanic election scheme in Ferriday, Louisiana. We sympathize with the position of the able trial judge who, when faced with overwhelming evidence of longstanding political injustice, perhaps leaned over backwards to ensure that the wrongs of many generations were righted by his order in this case. The Constitution, however, demands not racial representation by ratio but racial equity in the political process, and although the traditional aldermanic election plan in Ferriday has illegally abridged the voting rights of local blacks, there is nothing here to show that the Board’s new and very different plan will yield similarly unconstitutional results. See Dallas County v. Reese, 1975, - U.S. -,
Affirmed in part; reversed in part; vacated in part and remanded.
Notes
. This discrepancy between population and voting strength is apparently explained by plaintiffs’ admission that there are relatively more whites of voting age in Ferriday than there are blacks. As of April 24, 1974, whites continued to maintain a slight majority in voting strength in the town; the total number of registered voters has not changed very much since the completion of the great black voter registration campaigns in 1966.
. One of the plaintiffs, Henry Montgomery, won an aldermanic seat in the March, 1968, Democratic primary and served as alderman from 1968 until 1972, when he was defeated in his bid for reelection. Montgomery’s 1968 victory was apparently made possible because a popular white opponent withdrew from the race too late to have his name removed from the ballot, and so drained off sufficient white votes to enable Montgomery to win. The district court properly deemed Montgomery’s victory a “stroke of luck” which is not likely to be repeated under present conditions.
. The majority vote requirement can hardly be said to have been intentionally passed for the purpose of diluting the newly-created black vote, for' it has been the law of Louisiana since at least 1898. See Louisiana Acts of 1898, No. 136.
. The anti-single shot requirement has existed since at least 1922. See Louisiana Acts of 1922, No. 97.
. In the March, 1972, primary, Ferriday blacks fielded candidates for all five aldermanic positions; so that if we assume that the voting was done solely on the basis of race, we must also assume that blacks could have voted for blacks for all five seats and thus avoided the perils of the anti-single shot provision in that particular election.
. Plaintiffs submitted a plan for five single-member districts which did not differ significantly from the Board’s all-single-member plan, and plaintiffs .do not object to the district court’s choice of the latter plan.
The Board’s two plans are as follows:
FIRST PLAN
Council District Total Population Deviation from Mean Proportion Average of District Population of 1,310 White Black
A 1,249 -4.6% 99% 1%
B 1,318 +0.1% 7% 93%
C 1,341 +2.1% 0% 100%
D 1,331 +1.7% 64% 36%
At-large 5,239 42% 58%
SECOND PLAN
Council District Total Population Deviation from Mean Average of 1,048 Proportion of District Population White Black
A 1,072 +3.0% 99% 1%
B 1.045 -0.4% 98% 2%
C 1,035 -1.3% 2% 98%
D 1,049 0.0% 0% 100%
E 1.045 -0.4% 2% 98%
. We note that the mayor of a Louisiana municipality presides at meetings of the board of aldermen and casts the deciding vote in case of an equal division among the aldermen. La.Rev.Stat. 33:404. Since the mayor is elected at-large, La.Rev.Stat. 33:381, his limited voting power must be considered to some extent in deciding whether a particular aldermanic election scheme unconstitutionally abridges the voting rights of minority voters. In this case, it is probable that the mаyor of Ferriday will primarily represent the interests of the white voting majority, but plaintiffs do not argue and we cannot conclude that this additional factor is a significant one in the circumstances of this case.
. The rule of Reynolds was subsequently applied to local governments in Avery v. Midland County, 1968,
. For an analysis of the Supreme Court’s “one man, one vote” cases, see Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1.
. The Court implicitly approved the use of multi-member districts in Reynolds itself,
. An interesting application of this rule is found in Van Cleave v. Town of Gibsland, W.D.La.1974,
. Other recent dilution cases in this Circuit include Gilbert v. Sterrett, supra; Bradas v. Rapides Parish Police Jury, supra; Reese v. Dallas County, 5 Cir. (en banc) 1974,
. For a discussion of Zimmer, see 87 Harv.L. Rev. 1851 (1974).
. See the quotation from Zimmer at p. 623, supra.
. See n. 7, at p. 625, supra, for a discussion of the limited legislative role of the mayor in Ferriday.
. We do not imply that plaintiffs in dilution cases can never attack new, untried electoral schemes which are likely to produce unresponsive representatives. The potential that each such plan has for ending historic unconstitutionality of representation or for creating new illegality can be determined only by an examination of the facts of each case.
. Actions brought pursuant to the Voting Rights Act, 42 U.S.C. § 1973c, are constitutional in nature, for a court presented with such a case must decide whether the election plan involved has either the purpose or the effect of abridging the right to vote on account of race or color.
. It is for this reason that evidence of discriminatory legislative intent is so valuable in dilution cases, for where illegal discrimination is the legislative interest underlying the election scheme, such an “interest” deserves no judicial deference.
Concurrence Opinion
(specially concurring).
The appellants conceded before this Court that the all-at-large election scheme was unconstitutional. It seems to me that we should start with that concession and that we are relieved of any judicial necessity to decide the correctness of the district court’s decision in this regard. I would not voice an opinion one way or the other, then, as to the validity of the all-at-large election scheme in this town of 5,200 people.
With that concession, the only issue for us to decide is whether the appellant town’s mixed single-member-at-large-member electoral system is constitutional such to make erroneous the district court’s ordered implementation of appel-lee’s all-single-member plan. I fully concur in the decision that the Board of Aldermen’s plan is constitutional and in Judge Goldberg’s thorough and well-reasoned opinion dealing with this issue.
With respect to the district court’s award of attorney’s fees, I would vacate and remand for reconsideration by the district court in light of two factors: the demise of the private attorney general rationale in Alyeska Pipeline Service Co. v. Wilderness Society, - U.S. -,
First, it is impossible to tell to what extent the district court’s reliance on the attorney general rationale may have permeated its finding that bad faith likewise supported the attorney’s fee award. The award of attorney’s fees should be reconsidered by the district court on the issue of bad faith alone.
Second, the district court had decided that the plan proffered by the town was unconstitutional when it found that “the
The town briefed on appeal the issue as to the district court’s finding that the all-at-large plan was unconstitutional, but then conceded the point on oral argument. All of these facts should be remanded to the district court to reconsider anew the issue of bad faith. I would not indicate one way or the other which way that issue should be resolved.
Concurrence Opinion
I concur in Judge Goldberg’s opinion, except as to his position on the award of attorney’s fees. I concur in and adopt Judge Roney’s opinion on that issue.