*1 1488 indеmnity arising out of the (citing paragraphs bution 63-64
began. Compl. H These agreement). cleaning According to up lease the site. 9 and 16 of the costs im- arguably provisions at least defendants, contractual or claims for contribution the to not the defendants pose duty upon lia- upon must common indemnity be based on hazardous wastes then leave dump and Dep’t bility. United Green v. States the site. Cir.1985). Labor, (8th F.2d Where liability principal no on the there can be respect negligence the to With claims, alleges corporation claim contribution or indemni- claim, that Soo Line corpo duty to conduct However, argument owed Soo Line cannot stand. ty due property on operations rate that all other presumes the Court dismisses law, ¶ At common Compl. 78-79. care. proper- Soo Line has claims in action. generally land owed possessor against ly pleaded several claims each to care and duty reasonable to exercise defendants; Court, therefore, will protect to visi so as premises maintain dismiss the claims for contribution not harm. risk of tors from an unreasonable indemnity. 328, 362 N.W.2d Congdon, v. Pietila Cf. Accordingly, foregoing, based law (Minn.1985) (noting common 332-33 files, proceedings upon all the records and action). The criminal duty in the context of herein, site on the discharge of hazardous wastes duty. Be a breach of could constitute mo- IT that defendants’ IS ORDERED alleged obli Line seems to cause Soo to state a claim tion dismiss for failure to through contract gations thаt arise may granted is upoh which relief denied. applica tort, opposed to retroactive statutes, the Court tion of environmental claims breach will let Soo Line's stand. negligence
contract Trespass, Liability, 3. Strict Pitts, NASH, Alvin Earl African Ameri Nuisance & Fund, Voting Legal Rights can Defense argue complaint that The defendants Inc., Troupe, Theodore Hos Charles liability, for strict to set forth claims fails kins, Hill, Plaintiffs, Ada Although par and nuisance. trespass, v. dis arguments, ties raise other BLUNT, Roy capacity official in his com puted issue seems be whether Secretary of of the State of State adjacent alleges property plaint that Defendant, Missouri, claim damaged. The defendants site was alleges only that site was Line Soo Stoff, Molloy, Neil Patrick Thomas adjacent to the damaged, property not Brady, Dougherty, Henry Buf Francis According to damaged. the defen site was kins, O’Neill, Chatfield, Matt Gail dants, permit the common does not law Auer, Dooley, Ron Melvin Charles bring actions property successors Paris, Lodwick, Weems, Myron John against landholders under previous DeCoster, Jr., Holland, Richard Jack Red E.g., v. these theories. Wiltse Childers, Carpenter, Pau David Sharon 255, 114, N.W. 99 Minn. Wing, Goward, Carter, Richard la Russell (1906); Realty v. Mo WellesleyHills Trust Dorsey, Intervenor-Defendants. (D.Mass. Corp., F.Supp. bil Oil 1990). assuming the defendants No. 91-0840-CV-W-2. correct, allege dam complaint does Court, United States District adjacent age property site. See Missouri, W.D. W.D. Court, 1172-73, 93. The there Compl. July fore, claims. will dismiss these Indemnity 4. Contribution or
Finally, allege the Court defendants contri- dismiss Line’s claims for
must Soo *3 GIBSON,
Before
Senior
Judge,
Circuit
SACHS,
Judge,
Chief District
GAITAN,
Judge.
District
GIBSON, Senior
Judge.
Circuit
September
23, 1991,
On
20 and
lawsuits
challenging the Missouri House Redistrict
(hereinafter
ing Commission’s
“the Com
mission”)
redistricting
house
plan1 were
filed
the Eastern and Western Districts
Missouri,
respectively. On December
*4
18, the two cases were consolidated before
Pendleton,
Mo.,
City,
three-judge
Edward L.
Kansas
court in the Western Dis
trict
plaintiffs
for
Alvin Nash
Earl
of Missouri. The
Pitts.
and defen
dants entered into a proposed settlement
Walton, Jr.,
Walton,
Elbert A.
A.
Elbert
and asked this court to set aside the Com
P.C.,
Jr.,
Louis, Mo.,
plaintiff
St.
for
Afri-
duly
mission’s
promulgated plan and re
Voting Rights Legal
can American
Defense
place
parties’
it with the
plan.
settlement
Fund, Inc.
time,
At that
we allowed certain interested
parties to participate in
proceedings
as
Jongenelen,
McKay,
Veronica
&
Benson
Blunt,
intervenor-defendants.
Nash
See
v.
Mo.,
City,
Kansas
for intervenors Melvin
(W.D.Mo.1992)(memoran
The census showed: Following elections, the 1990 there were a total of representatives. thirteen black The Missouri total was Two came from districts with 4,916,766. Consequently, popula- ideal age populations less than 50%—Carson 30,164. tion for House was each Ross, 49,6 from district and Ronnie White (10.5%) 514,276 of Missouri’s citizens from district 63. were black. Eleven of the twelve districts with black voting age population of Missouri voting age populations greater than 60% 3,554,203. 331,303(9.3%) of the were represented by representatives; age population was black. (district 79) the twelfth was represented by 629,266 people County; lived in Jackson representative. 125,780 of them were black. parties’ two Commission members 452,801 people City; lived St. Louis divided the for drawing proposed task 206,170 approximately of them were black. maps differently. Republican Commis- 974,180 people County; lived St. Louis sioners primarily supplied relied on a staff 109,140 approximatеly them black. by Republican Party provide them 80,735 (17.6%) voting age popula- statistics, with maps, plans. and proposed tion in Jackson black. The Democratic Commissioners divided by Congressional district; their work each 134,750(40.3%) voting age popula- Democratic pri- Commissioner was to have tion St. Louis was black. *6 mary responsibility drawing the dis- 68,114 (9.6%) voting age popula- Congressional tricts in the district he or tion in Louis St. was black. input she lived in. In order to obtain from approved plan following in 1981 public, hearings the Commission in held created: census throughout various locations the state. hearings Witnesses at held in the St. Louis County. these, in districts Jackson Of area testified it would be undesirable populations exceeding four had black 65% city/county districts to cross line be- voting and age populations greater black cause the and needs concerns of St. Louis than 60%. County and City St. Louis were different City. these, 15 districts St. Louis Of and, times, mutually During exclusive. populations exceeding seven had black 65% held, period hearings were the Com- voting age populations greater and black amongst mission also them- members met than 60%. problems selves to discuss and concerns. County. in St. Louis Of caucuses, These meetings included these, had populations none black exceed- partisan meetings, were “breakout” 65%, ing (though popula- one had a black sessions, bipartisan meetings which were 60%), tion of approximately none had between Commissioners from various re- age populations greater voting black than gions. par- The Democratic caucuses 60%, (though voting one did have a black because, ticularly important individ- as the 51.3%). age population of ual need to Commissioners discovered the 1990, By population changes signifi- Congressional had cross district into another cantly makeup “capture” population the racial of only altered or “surrender” 79, district, required a one district. District located would not fit into County, voting age popu- opportunity had a black an discuss with the Louis matters Congres- initially neighboring lation of when it from drawn Commissioners 51.3% the 1990 census revealed the sional but districts. Ross, represent- geographic 6. Carson unlike the other black most black voters the three areas (and discussion) opinion Republican. under is a atives discussed unlike Jones, voting age populations districts had Democratic Com black Dr. Charlene 50%, Congressional though none greater the First than exceeded from missioner District, black Commissioner. 60%. supplied her materials consulted She plan for St. Louis drew 7 Dr. Jones’ (including the variety of sources from a voting age populations districts with black Apportionment Commission Missouri greater populations than and black 60% Handbook, the Missouri Office supplied by eighth Additionally, an greater than 65%. Administration), as as various laws well population had a black 42.5%. voting relating rights. regulations for St. Louis Dr. Jones’ these materials interpreted
Dr. Jones populations drew two districts with black legal had a obli indicating the Commission A district had a greater than third plan that created the 65%. gation to draw a and a had population of districts with black fourth possible number 64.9% maximum Dr. greater population than All four of populations 65%. black black 64.8%. to other Com expressed voting age popula- her views had Jones these districts black missioners, informally and at Commit both greater tions than 60%. support meetings, pledged to but none tee September the Commission On 15, 1991, August On Dr. Jones her efforts. approved plan a 14-4 vote.8 Dr. Jones presented the Committee with formally dissenting cast one of the votes. County, St. plan for proposed Jackson cre- County, Commission City that she and St. Louis 20 districts. Four of them had black ated optimally maximized believed greater populations than and black 65% strength in Dr. Jones did those areas. age greater populations than 60%. Committee members other
work with partial map, though she drawing this even Commission created St. Louis Second, Third, Fifth, Sev drew lines districts, popula five of which had black enth, Congressional Dis Ninth Eighth, and voting age popula tions over presented pro the time she her tricts. At Additionally, greater tions than 60%. ap any map Dr. insisted that posal, Jones had a sixth district by the had to include proved Committee voting age population and black 59.1% *7 satisfy to drawn order districts she had 51.2%.9 Act, formally the Committee asked In Commission cre- agree she had drawn to to use the districts popula- ated districts. had a black 32 One a starting efforts to draw point as a all 65%, greater tion than one had a black a died for lack of map. Dr. Jones’ motion 64.7%, popu- population of one had black thеreafter, par second; Dr. Jones did not 61%, popula- had a black lation of one meetings, or ticipate in caucus breakout tion of Two them had black 58.5%. to leaving Commissioners other Democratic greater 60%, voting age than populations Congressional in the First draw the lines voting age population had a one District.7 56.1%, voting age and one had a black plan had Dr. Jones’ population of 54.3%. population greater with a black one district eight plan contained voting age population and a black than Commission’s legis districts which a white incumbent Additionally, four other greater than 60%. 64.2%, paired inc against lator was another white populations of had black 62.6%, 63.7%, All of these umbent.10 It also contained one four and 62.1%. unavoidable, configura- given incorporated, partial map er. This was Dr. Jones' 7. deviation, map. city. very demographics into settlement little tion and approved Republican Commissioners pairing from the 70th 10. We discount ninth ap- plan Commissioners The Democratic 9-0. district, matching Brady Robert Francis proved the 5-4. incumbents) (both Quinn Quinn because and Dr. Jones’ In both the Commission’s already he would not seek re- had announced high- actually plans, percentages much
1495
(district 61)
in which a
incumbent
35,
a violation of the Act. Id. at
legislator
against
paired
another black
Court,
S.Ct. at 2758. The
in considering a
incumbent.11
to a
challenge
series of multimember dist
ricts,12
following
identified the
“necessary
II. DISCUSSION
preconditions” to a
2 claim:
§
A.
of a
Elements
Section Two Claim
First,
minority
group must be ablе to
provides
Act
Section of the
as follows:
demonstrate that it
sufficiently
large
voting qualification
prerequisite
No
or
and geographically compact to constitute
standard,
practice,
proce-
or
or
single-member
dis-
imposed
trict____
dure
applied
any
shall be
or
Second,
minority
group
State ...
in a manner which results
must
able
be
to show
it is politically
that
abridgement
denial
right
any
or
of the
Third,
cohesive----
must
citizen
United
of the
States to vote on
able
demonstrate that
the white
____
color,
account
or
of race
majority votes sufficiently as a bloc to
1973(a)(1988).
determining
U.S.C.
§
it—in
enable
of special
absence
cir-
standard,
practice,
pro-
whether a
cumstances, such
as the
candi-
prohibition, Congress
cedure
violates
running
date
unopposed—usually to de-
instructed the courts to
total-
examine “the
minority’s
feat the
preferred candidate.
ity of the circumstances” to ascertain
50-51,
Gingles,
1497 claim, though single four such member districts tive of a but rather is § determina possible. at 216-18. were Id. tive of claim. § plaintiffs’ argument We also believe 5 of requires Section the Act certain very by defeated existence preclear states and localities to any Supreme holding in As Gingles. Court’s changes in their voting procedures (includ II.A., supra, Gingles discussed in Part ing reapportionment) with the Attorney appropriate analytical Court identified the changes may General before those be uti analysis framework 2 claim. for a That § lized in an election. 42 U.S.C. 1973c § suggest requires does not the Act maxi (1988).16 purpose The provisions of these possible minority mum representation, nor has been by Supreme identified Court proving minority- does it suggest that more thusly: dominated could have been drawn “Section 5 response was a to a common will Gingles analysis. substitute practice in jurisdictions some staying Thus, plaintiffs though proven step one ahead of the by federal courts more districts could be drawn sacrific passing discriminatory new voting laws ing degree compactness, a certain soon the old had ones been struck prove plan fact does not the Commission’s practice That possible down. had been violates the Act.13 because each new law remained in effect until the Justice Department private or Retrogression C. plaintiffs were able to sustain the burden plaintiffs they The also contend can law, of proving too, that the new simply by proving a 2 violation discriminatory____ Congress therefore retrogression. Retrogression existence of decided, Supreme as the Court held it impo can occur through redistricting or the could, advantage to shift the of time and diluting plain sition vote devices. The from perpetrators inertia of the evil plan tiffs contend new retrogressive victim, by freezing proce- its election because it less creates controlled dures in covered areas unless the City (five) districts in St. Louis than there changes can be shown to be nondiscrimi- (seven).14 also natory.” abnormally high contend an percentage of States, 130, 140, legislators paired together in Beer v. United 425 U.S. 1357, 1363, (1976) plan, Commission’s which is another indica S.Ct. L.Ed.2d 94-196, retrogression may (quoting H.R.Rep. tor that Cong., have occurred.15 No. 94th (1975) retrogression (internal quotations is not 57-58 determina 1st Sess. 13. There has rela- been much discussion of the and that some of the districts that had black compactness plan majorities significantly underpop- tive of Dr. Jones’ 1990 were plan. inspection population. A Commission’s visual of that ulated because loss in plans plan by arguing percentage two Dr. demonstrates Jones' less counter however, compact plan; than the Commission’s blacks overall increased. Because of the nature passing regarding retrogression, we are not on the issue Dr. of whether of our decision we will lacking plan compactness dispute. Jones’ is so that it this factual resolve pass could not Constitutional muster. earlier, agree 15. As we do not with the noted also Jones’ defendants have attacked Dr. plaintiffs' regarding the calculation number of First, plan on two other fronts. contend Nonetheless, holding paired our incumbents. despite percentages in her of blacks obviates the to discuss the on this issue need districts, supposed minority controlled detail; greater paired effect of however, incumbents really voters will not control the Sec- elections. paired number of incum- ond, they her contend is undesirable underpopu- be due to the resultant bents could unpop- that it divides communities in a series of past the black ten- lation in districts over ular and Given absurd manners. the nature year period. today, our decision we do not make find- ings legal about these the truth effеct of *10 Missouri, any of the 16. nor locales at Neither claims. suit, required pre- this to obtain issue in changes prior argue enacting to defendants loss of districts clearance procedures. due to the loss of in St. Louis 1498 resentation, a this fact serves as de purpose
omitted)).17
other words
“In
plaintiffs’
no
The defen
to
to the
suit.
always been
insure
fense
5 has
of §
partially
Gingles
made
held
changes
be
correct.
would
dants
voting-procedure
minority
in the
retrogression
a
some
candidates
“proof
to
that would lead
respect to
with
2
minorities
foreclose a
position of racial
elected does not
§
been
of the electoral
75,
effective exercise
at 2779.
their
claim.”
1499 77, choice, 478 U.S. at at 2780.19 There select the S.Ct. candidate their we will fore, prior begin our analysis we will consider success of by assuming of the 60% voting regard age population black candidates without to whether is the appropriate target predominately percentage. were elected from black districts. Finally, pro contend portional representation meaningless is un dispute regarding
There is a also less percentage representa of black how to measure black voters whether approximates tives percentage a fair elect the opportunity to candidate of living blacks disagrеe. state. We their choice. insist the anal 85,200 (or Approximately 15.5%) of Mis ysis begin by assuming must of the 65% souri’s black residents live outside the population district’s total must be black. three areas at issue in this case. It valid, this is agree defendants but con undisputed that portion of Missouri’s starting superior assumption tend a is that population black geograph is too small and age population of the must be 60% ically disbursed to a majority constitute Byrne, v. In Ketchum black. F.2d district,20 and there is no authority to denied, (7th Cir.1984), cert. U.S. suggest inability these citizens’ to be 1135, 2673, (1985), 105 S.Ct. L.Ed.2d 692 together included in one or more districts prac court commented that the usual should be up” increasing “made simple tice “augment[] was to number of minority controlled districts in young with an for population, additional 5% those areas of the state where black citi registration for low voter 5% 5% zens are most concentrated. Because the turn-out, low voter for a total increment of starting point of requires claim Id. at 1415. population.” of total 15% the minority population be sufficiently nu These are to corrective estimates be used compact merous and majori to constitute a unavailable, id. when the actual data district, ty in a appropriate think it we 1416, if, instance, “voting age popu but focus our analysis attention and on those used, lation drop statistics are would 5% portions of the state where this condition formula, leaving something out of the exists. Consequently, we will endeavor to voting age the vicinity population 60% ascertain propor whеther there has been Id. at 1415. target percentage.” as the representation tional in Jackson 1980, recently Until as reliable census County. and St. Louis relating age populations data recorded, there was hence a need to County Jackson rely equalize on some estimate 1980s, factor. Throughout percent census data regarding voting age age contained living County statistics of blacks in Jackson Ketchum, populations. Following approximately the su Until the districts 20%. perior analysis consider were would redrawn in had 60% voting age population relying twenty-one instead of districts.21 which was historically the additional needed the first election after 1981 districts factor. See id. at 1413. went equalize age effect, representatives into 4 black Therefore, determining representatives whether elected. Four black an likely opportunity voters are to have to were elected in 1984 1986 as well. often, categories always, enough 19. The two but not could not do so there were not because case, thing. In this majority, describe stance, same for in- black residents to form a much less a Ross, we would Carson include supermajority. representative predomi- elected from a who was (district 49), nately white district but would not roughly corresponds 21. This to the number of Brady, representative include a white Francis to, County was entitled districts Jackson predominately who was elected from by dividing of Jack- calculated (district 79). district County by son size. This calcu- the ideal district lation indicates Jackson was entitled to attempted 20. Dr. Jones testified she to form a 20.86 districts. Springfield, minority-controlled but *12 1500 repre representatives reapportionment, 1981 seven black black five
1988 Thus, past rep during the dec- elected. Seven black sentatives were were elected. legislators ade, of black proportion the in 1984 and were also elected resentatives ex- County has been almost Jackson legisla from eight In black 1988 of citi- equal proportion to the black actly Thus, throughout the tors were elected. County. in living zens Jackson 1980s, proportion legislators of black the nearly City approximat St. has from Louis 20 in plan created districts The 1991 living citizens proportion ed the of black of one district County. The loss Jackson County City. Louis to the fact Jackson St. was attributed of portions other the population while lost Commission contains 13 1991 fact, if the population. gained state City; as was the case districts in St. Louis County by is divided Jackson population of the decrease districts size, one would discover district the ideal population. due a substantial loss of ap County was entitled that Jackson size and Based on the ideal district the of districts. Four the proximately 20.17 approxi- city’s population, there should be voting age popu twenty districts had mately City. 12.63 districts St. Louis Of districts greater than These lations 60%. districts, voting age five have black range sug permissible fit well within the greater than A sixth dis- 60%. Ketchum, by and we believe these gested voting age population has of trict a black districts; minority effectivе districts are Though signifi- this district is 51.2%. latter is, minority will have a fair voters suggested cantly benchmark below 60% representatives opportunity to elect Ketchum, by we it to be an effec- believe holding is bolstered not Our their choice. First, minority tive district. experts, but also only by the defendants’ incumbent—Representa- will have a black plaintiffs’ expert, who testified that previously Ronnie White—who was strong political organization tive unusually would elected from a district with voters in Jackson true, probably of effective minori If it age population allow creation is as 36.1%. ty percentages less than contend, districts with plaintiffs White was Finally, we suggested candidate, in Ketchum. those preferred his of effective percentage note prospects for reelection have been en- nearly (20%) is the same districts by increasing percentage of mi- hanced percentage residents in Jackson of black from norities in his district 36% 51%. Thus, (21.4%). conclude that we fact, understanding it our that White history ten-year has at least there been (presumably practical politician) is satis- representation,22 well as proportional Secondly, with his new district. fied there will be certain likelihood that near parties key winning elec- concede the representation for the next proportional winning City tions St. Louis lies Therefore, find the defendants we decade. primary primary. The can be democratic successfully proved the elements of have vote, by a effec- plurality won defense, affirmative tively pеrcentage lowers the of votes need- City Louis St. all Nearly ed to win. black voters 90% democratic, giving the thus black vot- 1980s,
Throughout the black citi political weight if there greater ers than approximately constituted zens requirement. Fur- were a vote population. During the last City’s thermore, City pre- as a whole St. Louis decade, in St. Louis there were democratic, following dominately so winner of In the first election the- City.23 history sary analyze proportion representation provided year than 1982. political ten earlier in Missouri in blacks in office present. increments from 1900 the factor, Gittgles go discussing supra did described in note 21 23. The calculation nearly Gingles, at entitled to 15.01 so far. U.S. S.Ct. indicates St. Louis reapportionment plan. do it neces- districts in 2780. We therefore not believe primary the democratic an campaign stands excellent financing. winning general
chance of
election.
*13
also
it
contend
has been judicially estab-
us
These two factors convince
that all six lished that a black population of 66% is
districts,
of
the
these
of
total dis-
46%
necessary in
County
St. Louis
in order to
tricts,
minority
oppor-
will allow
voters an
insure minorities a fair opportunity
par-
tunity
fairly participate
political
in the
ticipate in
process.
the electoral
reject
We
process,
very
percentage
which is
near the
of
arguments.
each
these
in
City.
black residents
St. Louis
Given
As Ketchum makes abundantly
of,
past history
the
and
prospects
future
clear, the
figures
and
only
60%
65%
for,
representation in
proportional
St. Louis
guidelines
toas
what constitute effective
City, we find the
have
defendants
met their
precise
districts. The
number is a
regard
burden with
to this defense insofar
question of
that may
fact
differ depending
as
Louis
St.
concerned.
upon the circumstances. Fletcher v. Gold
County
3.
Louis
St.
er,
(8th
959 F.2d
Cir.1992). Using
redistricting plan
thirty-
The 1981
drew
both homogeneous precinct analysis25 and
County.24
one districts
in St. Louis
ecological
bivariate
regression,26 the defen
decade,
Throughout the
percentage
the
experts
dants’
the percentage
calculated
living
blacks
in St. Louis
rose from
actually
black and white voters who
cast
approximately
approximately
11%
14%.
in
votes
the last three elections. This was
However, only
legislator
one black
by
done
applying the above-described sta
County during
elected from St. Louis
the
tistical techniques to the number of votes
1980s,
he
in
and
was defeated
highest
for
cast
the
in
office
the election
The 1991
creates thirty-two districts
and the
results
local elections. This
County.
in
Louis
St.
The increase in dis-
equalize
would
for all three factors for
tricts can
attributed to an increase in
suggests
which Ketchum
enhance
5%
county.
in the
Based on the ment; the experts’ analysis, by calculating
population,
expect
one would
St. Louis
percentages
the
of whites and non-whites
County to
approximately
have
dis-
31.65
votes,
actually casting
takes into account
districts,
Of
tricts.
these
two have black age, registration, and turn-out rate. This
60%;
voting age populations greater than
experts
the
enabled
tо calculate the true
age
voting
two other districts have black
equalizing percentage, obviating the need
54.3%,
populations
respective-
56.1%
rely
on the estimates from Ketchum.
ly.
contend
will not
representation
analysis sug
The results of
proportional
assure
gests the
equalizing percentage
future because
fall
true
St.
two
districts
mark,
Though
below the
Louis is
is inade-
somewhere around
60%
60%
55%.
quate
accuracy
event because it does not
we have some
take
doubts about
incumbency
into account such factors
percentage,27
testimony
we think the
According
to the calculation described in
drawn that minimizes the distance between
line;
supra,
graph
note
points
entitled to
each of the
on the
and the
32.29 districts.
represents
relationship
this line
between
by
race and the votes received
the candidate.
Homogeneous
analysis
precinct
compares
voting patterns
voting
districts that are at
First,
primary
27. We have two
concerns.
voting
patterns
least 90% white with the
by using
highest
data starts
the votes cast for the
districts that are at least 90% black. This allows
ballot,
opposed
on
office
to the votes cast
preferences
approximate
one to
of the black
particular
being
race
studied. This dis-
voters.
crepancy
that Mis-
is necessitated
fact
souri does not tabulate the votes cast for each
ecological regression
26. Bivariate
considers
office;
only
for the
it tabulates
the votes cast
voting
voting
by plotting
all
Thus,
highest
wаy to
office.
there is no
mea-
graph.
represents
The X
results on
axis
is,
off;”
“drop
voting age
sure the
number of
populations, by percentage,
highest
voting
represents
people who
vote
for the
office
each
The Y axis
district.
opportunity
by particular
ballot
eschew
to vote
of votes
number
received
candi-
each
line
There is
no indication how
date in
district. A
is then
others.
also
per-
compensate
for the additional factors
equalizing
suggesting
useful for
plaintiffs.
age
suggested by the
than
centage is less
60%
Therefore,
conclude it
we
population.
Finally, the
contend
voting age popula-
not fatal that the black
already
federal court has
ruled a
that a
minority controlled districts
tion
all four
County must
district in St. Louis
two
the districts
is less than
when
60%
population of at least
order to
other two
and the
56.1%
are over 60%
be an effective
district. See
*14
54.3%, respectively.
Golder,
91-2314C(7), slip
v.
No.
Fletcher
15-17,
(E.D.Mo.),
op.
WL 105910
we must
plaintiffs’
claims that
(8th Cir.1992).
aff'd,
15Q3 case, we have no idea how the districts ferred candidate.29 We will examine this compare age popu- terms of black issue in each of the issue, three locales at lation, already which we have indicated is though even proven defendants have superior comparison. basis for In their affirmative defense respect short, the differences in evidence and two of them. judicial our roles indicates we are not 1. Jackson County by Fletcher, were, bound and even if we key battleground in Jackson ap- we are not convinced that we (as County elections is the case in St. Louis proved anything truly that is a radical de- elections) is the Primary. Democratic parture from Fletcher. particularly portions those Logically, finding our likely there is within City city limits, the Kansas consists proportional to be representation during primarily democrats; whichever candi the next decade should save the St. Louis date primary, regardless survives the County districts from an attack under the *15 race, likely general to win the election. However, Act. under the current status of primaries, These like those in St. Louis the Gingles, law as contained in the defen- City, can by plurality be won a of the vote. may obligated prove prior pro- dants to contrast, In municipal elections in Kansas portional representation, they have City30 partisan are non and must be won not respect County. done with to St. Louis by majority of the vote. Therefore, we hold the defendants have failed to their affirmative defense regard specific With elections in Jack respect St. Louis because son County, plaintiffs’ the expert did not history persistent there has not been a analysis conduct a statistical of the proportional representation. patterns in County, Jackson but she did study discuss the results of another involv Application E. Gingles of the Precondi- ing three County-area political Jackson tions to the Present Case races: the 1979 mayoral and 1991 races in disagreement among There is little the City Congressional Kansas and the 1982 parties that the is suffi black race for the Fifth District.31 In ciently large geographically compact and to Bruce Watkins received of the black 80% majorities single-member constitute mayoral primary, dis vote in the and finished geographic tricts areas at issue in general first overall. in the elec tion, Similarly, (58.1% this case. we decisively find that black Watkins lost to 41.- politically 9%), voters in these despite garnering areas cohes of the black 90% parties ive.28 The have focused vote and of the white In the 20% vote. third Primary Congress element: whether the white voters 1982 Democratic for man, together have voted as a block sufficient Alan Wheat received of the black 95% usually minority vote, vote, pre- numbers to defeat the of the overall 31.4% Though it is true there have been some in- views to black citizens as a whole. Absent some split among particular stances in which the black vote has indication that a white candidate was candidates, majority truly two or more in the vast preferred despite receiving not over 65% solidly vote, elections black voters were behind a particular of the black or that a single viable, candidate. candidate was not we will not assume particular political that the voters in a contest have, purposes opinion, 29. We for of this arbi- would have voted for someone other than the trarily any receiving deemed candidate more for, person they voted nor will we assume that a "minority preferred.” than black vote 65% receiving white over of the black candidate testimony some There was to the effect that preferred by vote was not voters. voters, choice, given would vote for candidates, black receiving majority and that a white candidate Most, all, but not of Kansas is located in prob- black vote was (but all) of Jack- and most not ably preference. not "true” There was also City. son is located Kansas testimony indicating person if a white re- vote, ceived a of the black encompasses probably Congressional 31. The Fifth District candidates were not viable candidates. most, all, County. impart We refuse to these individual witnesses’ but not of Jackson 1504 allowing escape pri- Primary over seven black candidates to Democratic
won the
pluralities.
plaintiffs fur-
on to win maries with
Wheat went
other candidates.
pre-
(57.9% 40.2%)
contend that unless the
general
ther
decisively
a majority
ob
ferred candidate receives
Emanuel Cleaver
election.32
vote,
have satisfied
the vote—over twice
overall
tained 36.7% of
mayoral
disagree.
purpose
competitor—in
burden. We
of his nearest
their
general
primary,
inquiry
on to win the
determine whether the
went
of our
presence
spite
minority’s
of a tradi
“submergence
election in
in a white ...
mechanism,
majori
vote-diluting
impedes
ability
cho-
tional
its
to elect its
ty
requiremеnt. Cleaver received 78%
representative,”
vote
at
Gingles,
sen
U.S.
primary
and 90% 51,
Thus,
inquiry
the black vote
our
S.Ct.
general
election.
capable
of vot-
not whether
whites
minority pre-
ing as a block
defeat the
experts analyzed a vari
The defendants’
ferred candidate—it is whether
elections,
ety
county
as well as some
impose
a mini-
done so. The act does
county
City.
from Kansas
elections
degree
support
mum standard
analyzed
races
included33
minority preferred
offer
voters must
county execu
primary
democratic
fact,
Supreme
Court ex-
candidate.
tive,
primary
coun
democratic
recognized
polar-
pressly
degree
two),
(district
ty
the 1988 democrat
council
necessary
viola-
ization
to establish
*16
primary
prosecuting attorney, and
ic
for
may vary
depend-
from locale
locale
tion
general
county council
the 1986
election for
factors,
ing upon variety
including the
a
of
2).
races,
(district
the
In two of these
diluting
presence of vote
factors.
Id. at
lost.
In two
minority preferred candidate
permit
ruling
in St. Louis
blacks
analytical
to be a statistical
error of
(or
metropolitan
in the St. Louis
whole)
magnitude
ignore
considerable
likely
area as a
to be under
represented
the new districts.1 We can
factor.
To the extent
the 65-60 rule is
possible
panel opinion places
simple logic,
1. It is
that the
an
3. This conclusion is based on
if the
by requiring
excessive burden on defendants
Republican
materiаlly higher
has
vote
history
propor-
them to show an extensive
vote,
percentage
Republican
than the black
representation.
Gingles
tional
test is one of
entirely likely.
seems
Judicial notice
two
persistence.
mary in that black voters selection Additionally, judge panel. I concur three of the 32 would be able control 9.4% paragraph Judge with Sachs in numbered County, while legislative districts in the concurring opinion. I voting age population, one of his will having of the 12.6% undispersed. the content of either here. How- generally This would create restate me; ever, I compelled current law I to state questions for under feel the obvious. might county-line defense fully acknowledges conclude here evidence duty to avoid a to cross into patterns po- is insufficient American African City pick up of the excess some opinion This should not leave the larized. voting strength there order to black impression that the white American vote four in the establish at least districts Coun polarized. be That considered to less by ty normally controlled the black vote.4 might ap- improperly by inferred what be has pears to be a cushion of comfort which however, record, present I am On the lowering supermajority resulted in the the white unable to conclude that proposed by majority both the restrictions (46%) likely District population of concurring opinion. historical general sufficient exercise control be supports data results reached in these primary in that dis- over the Democratic Voting in both cases. districts trict, acquiescence voter absent black with less than and Jackson representative, popular choice of a white voting age popula- African American Molloy. par- currently Representative elect the vote, tion have been able to candidates of the ty polarization lack years during choice reviewed their polarization of proof of similar always We that was not vote, these cases. know apparent sufficiency of 51.2% hope it will we voting age majority to control the case. party primary in District 63 continue to be the case. Democratic however, (The note, ing. accomplish- an unusual This means it is I that the Seventh Circuit circuit) prevail has introduced distinction Ketchum ment for black candidates liability stage remedial minority, particu- between where find themselves superma- litigation, avoid state of which would my minority. perception larly It is a decided analysis jority case. Dickinson v. here in that a law and current realism Missouri Board, Election 933 F.2d Indiana State voting age dis- district or a 55% (7th Cir.1991). concurring opinion in In his relatively easy control trict should case, Judge Gaitan discomfort indicates (with only temporary or intermit- black voters supermajority "lowering any general primary—and exceptions) in Democratic *20 tent expresses restrictions” and concern about thereafter, label, Democratic with the polarized be- vote. I have no reason to white general election. lieve politan white vote in the Missouri metro- that the racially polarized is less than the areas according unopposed, to the reelection His pride of racial black vote. The element 1992, Post-Dispatch April thus St. Louis vote is more admirable trait affects the black intimidating strength. suggesting continuing prejudice es- than and sense of trangement frequently affects vot- that too majority opinion points out the elec- Congressman Mayor tions of Wheat and Ricky HISEL, Lee S. James Cello- Cleaver to show how far we have come. Jr., Whitney, and James M. congression- The initial election the fifth Shuff, Plaintiffs, Congressman al district of Alan Wheat v. mayor 1982 and of Emanuel Cleaver II as UPCHURCH, R. James City, Kansas Missouri al., et Defendants. merely plurality that a of voters were able racially polarized to overcome the voters. (MM). No. CIV 89-1666-PHX-EHC Had the white voters not been divided Court, United States District among candidates, polar- two or more their D. Arizona. ized could have defeated the minori- ty candidate. Had there been two April elections, candidates each of these one American, white and one African neither
public likely official would serving to-
day. Congressman Wheat has been re-
elected four consecutive terms. He was
given opportunity an to show his constitu- interest, represent
ents he could their race
notwithstanding. Mayor Cleaver has a year
four term. While he runs in non-
partisan election, historically the Kansas
City, mayoral Missouri election has been
very partisan.
What does this mean? That the voters and Kansas Mis
souri while racially polarized willing
manner are at least to consider a primary
candidate who survives the regardless
serves their interest of race. long ago it has not been so
racial attitudes were different.1 We should begin lowering
be mindful that when we rights
restrictions on such valuable I opinion unique
these. believe this has
application to these facts. city,
1. The Bruce Watkins defeat a reminder but was African American and cratic surviving primary guarantee victory. soundly White voters voted race and does not defeated. heavily party Mr. Watkins was a Democrat in a Demo- affiliation.