528 F.2d 536 | 5th Cir. | 1976
Lead Opinion
Plaintiffs appeal from the decree of the district court adopting and promulgating a redistricting plan for the election of county supervisors and others
History of this Litigation
In 1969, pursuant to court order, the county was reapportioned to comply with the equal vote requirements of Avery v. Midland County.
The following June, the supervisors filed their recommended plan
Before us plaintiffs challenge these actions of the district court and seek attorneys’ fees.
The Court’s Findings
The court’s findings of fact are extensive and are, in the main, not disputed
Hinds County is described in them as demographically and economically similar to many other areas of the South:
Next, the court examines the parties’ proposed plans for reapportionment and finds both clearly acceptable, the largest population variance between districts in either being less than four percent. Considering first the defendant supervisors’ plan, the court found it
does achieve the primary goal of a reapportionment plan of equality of population within constitutional guidelines, while at the same time equalizing as nearly as practical under the circumstances the important subsidiary factors of road and bridge mileage and land area, assigning to each district substantial numbers of both urban and rural residents. This result is accomplished under the Board plan with a minimal disturbance or change of existing election districts and voting places.
Noting that “[t]he plaintiffs are critical of the [supervisors’] proposed plan’s utilization of long corridors into the City of Jackson from the rural land mass in order to achieve the required equalization of population,” the court observed that “it is absolutely impossible to draw five districts without splitting the urban area of Jackson into five parts and still realize the other desirable planning objectives of equalization of road and bridge maintenance responsibilities and the substantial equalization of areas between the districts.”
The court next considered expert testimony by the architect of the supervisors’
The court next discussed testimony offered by an expert witness for plaintiffs about voting-age (as contrasted with general) population proportions in the county and, by extrapolation only, in the districts. By this analysis, because of the systematic departure of adult blacks from Hinds County, the black/white voting-age proportions in the county were calculated at roughly 34/66. Admittedly extrapolating on the assumption that this county-wide proportion would hold roughly true for each district, the expert indicated that, as is obvious, the already commanding white majorities in Districts 1, 3 and 4 would be increased, and that the black majorities in Districts 2 and 5 would become voting-age minorities of 48% and 48.6%, respectively. The court thought that these conclusions, though subject to an uncertainty of 1 to 2% inherent in the extrapolation, were “to some extent” confirmed by calculations from census data made by another of plaintiffs’ expert witnesses.
Next reviewed by the court was a considerable list of discriminatory actions taken in the past against black voters in Hinds County and in the state generally. These include such matters as the total lack of any success by black candidates in county elections, past poll tax, literacy and property qualifications on the franchise, and so on, as well as past behavior of Hinds County supervisors indicating unresponsiveness to the black citizen: systematic exclusion of blacks from jury rolls, maintenance of discriminatory educational facilities in the county, etc., some of which had been removed by past orders of the court itself in earlier cases.
Section 5 Approval
Section 5 of the Voting Rights Act of 1965, as amended by 42 U.S.C. § 1973c (Supp.1976), requires clearance from the District Court for the District of Columbia or the United States Attorney General before a state or one of its political subdivisions covered by the Act implements any standard, practice, or procedure with respect to voting different from that in effect on November 1, 1964. According to the Supreme Court in Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), as interpreted by this circuit in Zimmer v. McKeithan, 467 F.2d 1381 (5th Cir. 1972), rev’d on other grounds on rehearing en banc, 485 F.2d 1297 (1973), section 5 applies to plans produced by political subdivisions reapportioning themselves but not to “court ordered plans resulting from equitable jurisdiction over adversary proceedings.” Id. at 1383 (emphasis in original).
Amicus argues, however, that section 5 applies to court-approved plans unless they are court-formulated. Thus, amicus’ rule would subject to section 5’s pri- or-approval requirement those proposed plans that the court adopts as submitted but not those prepared by the court itself or those adapted from a party’s suggestions with minor changes. The suggested rule is not a practical one. Under it, for example, a party is penalized
For we think it the true rule that application of section 5 turns on the source from which a plan derives its legal force: if from a state instrumentality, section 5 applies; if from a court, it does not. Here the district court instructed the county Board to develop a plan, found the plan constitutionally acceptable, and ordered its implementation.
Validity of the Plan Adopted
One who would offer to a district court a suggested electoral redistricting of such a county as Hinds must walk a narrow line. To begin with, the physical situation presented is inherently difficult: a rural county containing one significant metropolis, which itself encompasses a racial enclave, and a black population that must not be “ ‘designedly or otherwise’ ” treated so as to minimize its
Nevertheless, it is not. We recognize that it is of the essence of a court’s duty to articulate the law in such a form that it can be followed. A failure to do so— especially in an area so vexed as this— leaves those who must plan and act without guidance. Worse, enunciation of impractical or conflicting principles leaves them paralyzed, unsure of the criteria by which their conduct will, be measured in the event. Our most recent statement or synthesis of the principles governing this case is that of Judge Rives, quoting Judge Hill in part, to be found in his opinion for the panel majority in Gilbert v. Sterrett:
The constitutional test actually applied by the district court was stated in its opinion as follows:
It is well established that to prove the existence of a constitutionally impermissible redisricting [sic] plan in the absence of malapportionment, plaintiffs must show (1) a racially motivated gerrymander, or a plan drawn along racial lines,3 or (2) the apportionment plan would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.4 An apportionment scheme is not constitutionally impermissible merely because its lines are not carefully drawn to ensure representation to sizable racial, ethnic, economic or religious groups.5
Though stated in different language, that standard of law does not differ materially from the standard as variously stated by this Court in Zimmer v. McKeithen (en banc), 5 Cir. 1973, 485 F.2d 1297, 1303; Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191,*542 193-197; Moore v. Leflore County-Board of Election Commissioners, 5 Cir. 1974, 502 F.2d 621, 623, 624; Robinson v. Commissioners Court, Anderson County, 5 Cir. 1974, 505 F.2d 674.
509 F.2d at 1390-91.
Applying these principles to this case, the rule against racial gerrymanders and plans drawn along racial lines is satisfied by the supervisors’ plan. Its draftsman testified that, as instructed, he drew it without reference to race. His evidence is not disputed, and its weight is not overcome by the facial appearance of the plan. On this evidence the district court found it was drawn without reference to race, and its finding is not clearly erroneous. Plaintiffs’ plan, to the contrary, obviously runs afoul of the rule and is unacceptable. As noted above, it creates two voting districts, neither with significant road or bridge mileage or rural population, out of the core of the black population concentration in Jackson. Whether or not it is, as the court below found, a racial gerrymander, it is plainly drawn along racial lines alone and is obviously designed to secure two of five seats for the minority enclave while conceding three “safe” seats to the white majority.
It remains to determine whether the supervisors’ plan approved by the court below, though not by design, otherwise —that is, unintentionally — operates to minimize minority voting power in an impermissible way. To determine whether that power is minimized, we must first ascertain its proper or natural magnitude, its expectable effect under normal conditions when neither weakened nor enhanced. And this is simply stated: in an infinite series of elections, any 35% of the electorate should elect 35% of the candidates whom it favors or, in other words, it should receive proportionate representation. As applied to any hypothetical five-man board, then, our 35% voting bloc should be represented by two out of five officials favored by it about three-fourths of the time and by only one of the other fourth. This model illustrates its normal voting strength.
Plaintiffs are correct when they insist that we consider whether the impact of the black vote in Hinds County is diminished by the proposed plan. Where they err is in their selected model against which diminishment is to be measured. Plaintiffs focus on preserving intact the black geographical cluster in northern and central Jackson and would have us determine diminishment by inquiring merely whether the proposed district lines divide it. But of course they do. Any likely division of the county would do so except one drawn on racial lines with the purpose of securing safe “black” or “white” seats on the board of supervisors. Plaintiffs’ focus is too narrow, their approach too mechanical, at this stage of the inquiry. There being no intended gerrymander, the proper present focus of inquiry is not a map area
So tested, the conclusion of the district court stands firm that
the black voting strength in Hinds County is not minimized or cancelled out by the 1973 Board plan, but on the contrary, the Board plan offers black residents of Hinds County, who constitute less than 40% of the total population thereof, a realistic opportunity to elect officials of their choice, whether they be white or black, in two supervi*543 sor’s districts and significantly affect the election of county officials in the three remaining supervisors’ districts20
In so holding, we are especially mindful of the unusual deference our court has been accustomed to accord the trial court’s local perspective in such matters
Plaintiffs not having prevailed, they are not entitled to attorneys’ fees. See Sapp v. Renfroe, 511 F.2d 172, 178 (5th Cir. 1975).
Affirmed.
. The supervisors’ duties comprise, in main, maintenance of county roads and bridges, care of the needy, levy of county taxes, maintenance of the county courthouse and jail, planning and zoning in unincorporated county areas, and providing for public health and welfare in the county. The supervisors’ districts also serve as election districts for members of the county board of education, justices of the peace and constables.
. 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed. 45 (1968).
. Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970), as amended, 42 U.S.C. § 1973c (Supp. 1976).
. Finding, also, however, that it was a good-faith effort to comply with the court’s order and had resulted in substantial equality in districts as of December 1969, when it was implemented.
. Prepared by independent consultants who followed, as they testified and the lower court found, • the court’s instruction to disregard race, etc.
. Plaintiffs’ factual attack is limited mainly, if not entirely, to one on ultimate facts or legal conclusions of the district court:
[T]he District Court concluded — erroneously we believe — that plaintiffs have failed to prove that their voting strength is minimized or cancelled out “in any way” by the Board’s plan, and that the Board’s plan offers Hinds County Blacks a “realistic opportunity to elect officials of their choice, whether white or black, in two supervisors’ districts ...” (Mem.Op., pp. 26-27). The dispersal of the heavy Black population concentration in Jackson was justified as “necessary ... in order to achieve equalization of population with approximate equalization of road mileage and land area” (id., p. 13). Past denials to Hinds County Blacks of equal access to the political process were considered irrelevant (id., p. 33). The court sustained the Board’s 1973 redistricting plan as meeting all constitutional requirements, and rejected plaintiffs’ alternative plan, based on Census tracts, as “intentional gerrymandering” to create two safe Black majority districts (id., p. 34).
These latter findings, we contend, are completely inconsistent with the District Court’s own findings on fragmentation of Black voting strength, are contrary to the uncontradicted and undisputed evidence in this case, are unsupported by substantial evidence, and are clearly erroneous. Rule 52(a), F.R.Civ.P.
. See Moore v. Leflore County Bd., 502 F.2d 621 (5th Cir. 1974) (Greenwood, Miss.), noted in the district court’s findings, and Howard v. Adams County Bd., 453 F.2d 455 (5th Cir. 1972) (Nachez, Miss.).
. The court also found that these considerations had “always” been a legitimate concern of the supervisors. Cf. note 1 supra.
. One of them contained less than six thousand people and the other less than eight thousand, while another district exceeded one hundred thousand in population — the ideal being about forty-three thousand.
. Though not so severe as under the pre-1969 plan: the largest 1969-plan district included just over 51,000 souls and the smallest, 33,336, as compared to the 43,000 ideal.
District Number: 1 2 3 4 5
White %: 70.5 46.6 72.3 68.0 46.0
Nonwhite %: 29.5 53.4 27.7 32.0 54,0
. Recognized by the court as an expert generally in political science, especially as to political behavior and attitudes, but not in county redistricting. These calculations indicated a black voting-age population in each of the two districts of about 47%.
. E. g., Love v. McGee, 297 F.Supp. 1314 (S.D.Miss.1968) (jury service).
. In the sense that the plan must pass additional scrutiny before it can become effective.
. Unlike Connor v. Waller, 421 U.S. 656, 95 j S.Ct. 2003, 44 L.Ed.2d 486 (1975) (per curiam), where the Court required section 5 clearance of a court-approved plan voluntarily enacted by a state legislature. The D.C. Circuit recognized a similar distinction in Harper v. Levi, 520 F.2d 53, 72 & nn. 161, 164, 165 (D.C.Cir. 1975), which required section 5 approval of a court-ordered substitute plan adopted by a state legislature after litigation had successfully challenged the legislature’s prior, voluntarily enacted plan.
Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972).
Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972).
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).
. See cases cited note 7 supra.
. Gilbert v. Sterrett, 509 F.2d 1389, 1394 (5th Cir. 1975), quoting Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir. 1973). See generally Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858. 29 L.Ed.2d 363 (1971).
, Perhaps “must” here also, for to favor one of two raciaI groups seems necessarily to disfavor the other, and each presumably has e9ual constitutional rights in the franchise.
. See note 1 supra.
. Of course, the unusual shapes of the proposed districts are important. But the shapes are chiefly relevant to the question of whether the plan is a racial gerrymander. Once we accept the district court’s unchallenged findings that the plan was drawn without reference to race and that the districts reasonably follow natural boundaries, see p. 538 supra, the significance of the geographic shapes is almost exhausted. They may, for example, indicate nothing more than a political gerrymander, an inhabitant of the thicket at present out of season to courts. See Jimenez v. Hidalgo County Water Imp. Dist. No. 2, 68 F.R.D. 668, 672-75 (S.D.Tex.1975).
. This is not to say that other arrangements giving fair effect to a 35% share of the electoral power might not be equally acceptable. As we noted in Turner v. McKeithen, 490 F.2d 191, 197 n. 24 (5th Cir. 1973):
There is no agreement on whether the political interests of a minority group are best maximized by an overwhelming majority in a single district, bare majorities in more than one district or a substantial proportion of the voters in a number of districts. See, e. g., Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512.
. Robinson v. Commissioner’s Court, 505 F.2d 674, 679 (1974); cf. White v. Regester, 412 U.S. 755, 769; 93 S.Ct. 2332, 2341; 37 L.Ed.2d 314, 326 (1973).
Rehearing
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
IT IS ORDERED that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.