Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.
No. 5:91CV-2219
United States District Court, N.D. Ohio, Eastern Division.
Aug. 22, 1997.
121 F. Supp. 2d 1032
In sum, this court finds that petitioner‘s motion to vacate, set aside, or correct her sentence should be denied for the reasons stated above. This court further finds that no evidentiary hearing is warranted because petitioner raises no facts, which, if proven, would entitle her to relief. See e.g., Rule 8(a) of the Rules Governing Section 2255 Proceedings, Pittman v. Warden, Pontiac Correctional Center, 960 F.2d 688 (7th Cir.1992).
ORDER
IT IS HEREBY ORDERED that petitioner BEVERLY POWELL‘s motion pursuant to
SO ORDERED.
Timothy F. Scanlon, Scanlon & Gearinger, Akron, OH, Thomas I. Atkins, Sr., Brooklyn, NY, Armistead W. Gilliam, Jr., Ann Wightman, Laura A. Sanom, Faruki, Gilliam & Ireland, Dayton, OH, for William L. Mallory.
Orla Ellis Collier, III, Norton Victor Goodman, James F. DeLeone, Mark D. Tucker, Benesch, Friedlander, Coplan & Aronoff, Columbus, OH, Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for George V. Voinovich, Stanley J. Aronoff, Robert A. Taft, II.
Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for James R. Tilling.
Jack Gregg Haught, Benesch, Friedlander, Coplan & Aronoff, Columbus, OH, Andrew S. Bergman, Office of Atty. Gen., Columbus, OH, for State of Ohio, party in interest.
Elizabeth Johnson, Rebecca J. Wertz, Daniel H. Claman, Dept. of Justice, Civil Rights Div., for U.S.
Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, OH, for Paul Mechling, Mary Abel, Ronald Gerberry, Richard Cordray.
Before JONES and MOORE, Circuit Judges, and DOWD, District Judge.
MOORE, Circuit Judge.
The question before this court is whether the Ohio Apportionment Board‘s consideration of race in its 1992 redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment. We hold that because the plaintiffs have failed to make a threshold showing that the defendants subordinated traditional districting principles to consideration of race, strict scrutiny of the challenged districts is not applicable. Applying rational basis scrutiny, we conclude that the plan does not violate the Equal Protection Clause.
I. BACKGROUND AND PROCEDURAL HISTORY
This case is before this court on remand from the United States Supreme Court. Because we focus on application of the legal analysis outlined by the Supreme Court in recent cases, we will not revisit the facts and procedural history of this case in detail. The tortuous history of this litigation, which first came to this court in the form of a suit based on vote dilution and population deviation, was more thoroughly recounted in a previous opinion of this court. See Quilter v. Voinovich, 912 F.Supp. 1006, 1011-14 (N.D.Ohio 1995).
This litigation arose from the reapportionment of Ohio‘s electoral districts following the 1990 federal census. The plaintiffs include the Democratic members of the Republican-dominated Apportionment Board; the defendants are the Republican members of the Board and James R. Tilling, who drew the majority‘s plan. After the Supreme Court reversed this court‘s judgment for the plaintiffs on claims of vote dilution and remanded for further proceedings on a Fourteenth Amendment claim involving population deviation, see Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993), this court permitted the plaintiffs to amend the complaint in light of the then-recent decision in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (“Shaw I“) which recognized an equal protection claim of racial gerrymandering. Quilter v. Voinovich, 157 F.R.D. 36 (N.D.Ohio 1994). This court held in favor of the defendants on the population deviation issue, Quilter v. Voinovich, 857 F.Supp. 579 (N.D.Ohio 1994), but held in favor of the plaintiffs on the Shaw claims. Quilter v. Voinovich, 912 F.Supp. 1006 (N.D.Ohio 1995). The Supreme Court vacated the latter opinion and remanded for further consideration in light of the recent opinions in Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (“Shaw II“). Voinovich v. Quilter, --- U.S. ---, 116 S.Ct. 2542, 135 L.Ed.2d 1064 (1996).
On remand, we have limited our consideration to the effect of Bush and Shaw II on our previous analysis and holding. We have not considered any new evidence; we therefore readopt our previous factual findings, as outlined in the vacated opinion, to the extent that they are findings of fact and not conclusions of law regarding the “predominant factor” analysis, and to the extent that they are relevant to the threshold analysis. Specifically, we readopt paragraphs 2, 3, and 5-10. See 912 F.Supp. at 1023-25. As to paragraph 11, we readopt the description of Tilling‘s notes and the finding that they are “probative” of the defendants’ consideration of race, but we do not adopt the characterization of that consideration as “predominant” under the now-relevant Supreme Court standards. We need not readopt our previous findings of fact or conclusions of law as to the analysis under strict scrutiny, in which we held that the defendants did not have a compelling state interest to justify race-based redistricting. See 912 F.Supp. at 1027-30 (paragraphs 15-22). We see nothing in Bush or Shaw II that would change our previous analysis of compelling interest, but our holding that strict scrutiny is not applicable to the plan renders the compelling interest analysis unnecessary.
II. STANDING
Although we did not previously address the plaintiffs’ standing to challenge the apportionment plan or certain districts, the Supreme Court‘s clear and limited definition of standing in Shaw II prompts us to consider not only whether the plaintiffs have standing, but also the scope of that standing. Federal courts have “an independent obligation to examine their own jurisdiction, and
The Supreme Court‘s treatment of standing in Shaw claim cases has not been entirely consistent. Shaw I itself appeared to be based on broadly conceptualized harms, focusing on the stigmatization of individuals because of their race and on potential “representational harms” resulting from representation only of members of the majority racial group in a district.1 See Hays, 515 U.S. at 744-45; Shaw I, 509 U.S. at 643, 648; Mark S. Nagel, Recent Developments, 19 HARV.J.L. & PUB. POL‘Y 188, 196 (1995). See also Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L.REV. 483, 515-16 (1993) (commenting on “just how nonindividualized the expressive harm central to Shaw” was, and noting the Court‘s failure in Shaw I to address issues of standing); Pamela S. Karlan, Still Hazy After All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287, 290 (1995-1996) (noting Shaw‘s “‘complete disregard for standing requirements‘“) (citation omitted); Jeffrey L. Fisher, Note, The Unwelcome Judicial Obligation to Respect Politics in Racial Gerrymandering Remedies, 95 MICH.L.REV. 1404, 1416 (1997) (“[S]uch a speculative view of harm [as Shaw‘s representational harm], however, has never been enough to satisfy Article III‘s standing requirement.“). In Hays, the Court rejected the argument that “anybody in the State” could challenge an allegedly racially gerrymandered district, holding instead that a plaintiff who does not reside in the challenged district must present “specific evidence” that he or she “has personally been subjected to a racial classification.” 515 U.S. at 745. The Court explained that “[v]oters in [racially gerrymandered] districts may suffer the special representational harms racial classifications can cause in the voting context. On the other hand, where a plaintiff does not live in such a district, he or she does not suffer those special harms....” Id.
In another decision issued on the same day as Hays, however, the Court appeared to focus not on the representational harms to the white plaintiffs who challenged a majority-minority district, but on the general, expressive harms that result from government use of racial classifications. See Miller v. Johnson, 515 U.S. 900, 911-13, 115 S.Ct. 2475, 2486, 132 L.Ed.2d 762 (1995) (emphasizing the offensiveness of such use); see also Karlan, supra, at 288 (commenting on “Miller‘s apparent abandonment of any requirement that plaintiffs prove ‘representational harms.’ “).
In Shaw II, the Shaw I suit that spawned this line of cases returned to the Supreme Court, which then applied the Hays rule and cemented the test of standing to bring a Shaw claim: a plaintiff who resides in a particular district has standing to challenge the legislation that created that district; a plaintiff from outside the district does not have standing to challenge the legislation without specific evidence that he or she “personally has been subjected to a racial classification.” 517 U.S. at ---, 116 S.Ct. at
Two appellants, Ruth Shaw and Melvin Shimm, live in District 12 and thus have standing to challenge that part of Chapter 7 which defines District 12. The remaining appellants do not reside in District 1 [the other challenged district], however, and they have not provided specific evidence that they personally were assigned to their voting districts on the basis of race. Therefore, we conclude that only Shaw and Shimm have standing and only with respect to District 12.
Id. (citation and footnote omitted).2
In the present case, the plaintiffs have purported to challenge the Ohio Apportionment Board‘s plan as a whole; the previous, vacated opinion of this court held eight specific districts unconstitutional: House Districts (“HD“) 21, 22, 30, 31, 38, 39, 44, and 49. The defendants concede that at least one plaintiff resides in HD 31, HD 39, HD 44, and HD 49, and challenge plaintiffs’ standing only as to HD 21, HD 22, HD 30, and HD 38. The plaintiffs have not presented specific evidence that any of them have personally been subjected to a racial classification in relation to these latter four districts, and they do not argue that basis for standing. Instead, they attempt to base their standing on alternative grounds which we hold are meritless.
First, the plaintiffs contend that the plaintiffs who were members of the Appor
Second, the Board member plaintiffs contend that they have standing under the doctrine of jus tertii. Pls.’ Mem. at 13. This argument also fails, because the justification for third-party standing is not present here. Generally speaking, a plaintiff is permitted to assert the rights of a third party where the plaintiff has suffered his or her own injury-in-fact, there is a nexus between the right asserted and the relationship between the party and the third party, and the litigation will have a material impact on those third-party interests. See generally United States Department of Labor v. Triplett, 494 U.S. 715, 720-21, 110 S.Ct. 1428, 1431-32, 108 L.Ed.2d 701 (1990); Caplin & Drysdale v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 2651 n. 3, 105 L.Ed.2d 528 (1989); Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 1033-34, 31 L.Ed.2d 349 (1972). In this case, there is no “special” relationship between the Board members and the voters of Ohio that is comparable to the direct relationships between doctors and patients or lawyers and clients, or even vendors and customers (see Craig v. Boren, 429 U.S. 190, 194-97, 97 S.Ct. 451, 455-57, 50 L.Ed.2d 397 (1976)). Any relationship between Board members and voters is too vague and general—and the defendants include the other Board members, who presumably have the same relationship with the voters, rather than some external entity that is impinging upon the asserted relationship. Furthermore, there is no obstacle to prevent the third parties from bringing their own claims; the question presented here could be raised by any voter from one of the contested districts.
In the alternative, plaintiffs request that this court “proceed to certify this action as a class action with respect to a subclass of voters who reside in the eight districts [at issue].” Pls.’ Mem. at 14. The plaintiffs make no attempt to show that they can meet the prerequisites stated in
We therefore hold that the plaintiffs have standing to challenge only HD 31, HD 39, HD 44, and HD 49.
though skillful and sophisticated, cannot be allowed to overwhelm the long line of precedents aimed at removing the barriers to minority voting and designed to remedy the effects of those barriers. See Gomillion v. Lightfoot, 364 U.S. 339, 342, 81 S.Ct. 125, 127-28, 5 L.Ed.2d 110 (1960) (holding that courts must strike down the “sophisticated” as well as “simple-minded” schemes that offend the Constitution); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).
The way in which the Apportionment Board used black voters in drawing the legislative districts at issue, without first showing polarized or bloc voting, was nothing short of doing a dance on the graves of Medger Evers, Harry T. Moore, Michael Schwerner, Andrew Goodman, James Chaney, and the hosts of others who died in an effort to bring about the enactment of the Voting Rights Act. I write in dissent to further express my profound disagreement with this court‘s effort, even in good faith, to make constitutional sense out of the Ohio reapportionment officials’ paternalistic exploitation of a civil rights remedial statute in order to achieve a dubious political objective. I am astonished at the way the state reapportionment officials dared to act under color of the Voting Rights Act in districts where the very objectives of that Act are already being fulfilled by rational voter conduct. Therefore, I feel obligated to set out with some specificity the reasons I part company with my distinguished colleagues.
I. Background
Pursuant to the Ohio Constitution, the State Apportionment Board, comprised of five members, must reapportion State House2 and Senate electoral districts for the state legislature every ten years.3 Following the 1990 federal census, a majority of the Apportionment Board appointed James R. Tilling to draft an apportionment plan on behalf of the Board. After conducting public hearings throughout the state, including meeting with some members of minority organizations, Tilling drafted a plan that included eight majority-minority districts, districts in which a majority of the population is a member of a specific minority group. Voinovich v. Quilter, 507 U.S. 146, 149, 113 S.Ct. 1149, 1153, 122 L.Ed.2d 500 (1993).
Robert T. Bennett, the chairman of the Ohio Republican Party, then submitted the apportionment plan to the Board. He also attached a letter to the plan, which stated in pertinent part:
[W]e have made every possible effort to achieve maximum possible compliance with federal and state law and constitutions, especially the Voting Rights Act. It was not always possible to reconcile these laws however, and sometimes we were forced to make a choice. There were several occasions when we had to make elections between blind adherence to the Ohio Constitution‘s dictate regarding population density and preservation of artificial boundary lines on the one hand, and the clear duty to reach out for all reasonably cohesive groups of minority voters. On each occasion, we opted to comply with the Voting Rights Act.
We have therefore sometimes departed from the Ohio Constitution‘s rigid geographical requirements and mandatory population deviations....4
On November 1, 1991, Barney Quilter and Thomas Ferguson, the two Board members who voted against the plan, and various other officials and legislators filed suit against the other members of the Apportionment Board and Tilling. Seeking invalidation of the plan, the Plaintiffs alleged that the redistricting plan violated
On January 31, 1992, a majority of this three judge panel held that there was “no legal mandate or finding of a Voting Rights Act violation to justify Defendants’ creation of majority-minority districts wherever possible in the 1991 Apportionment Plan.” Id. at 701. Thus, the panel ordered the Board to
This court was not faced with mere race-conscious redistricting that sought to avoid the division of contiguous, cohesive concentrations of minorities. This Court was also not faced with a plan that simply created a substantial number of majority-minority districts without explanation. Finally, this Court was not faced with a state subject to § 5 of the Voting Rights Act, in which case the historical violation of minority has been conclusively established. Rather, this Court addressed an Apportionment Board that applied a rule mandating the creation of majority-minority districts wherever possible. The Board did not purport to devise this rule based on Ohio policy and law; rather, it contended that such a per se rule is mandated by federal law.
Quilter v. Voinovich, 1992 WL 677145, *2 (N.D.Ohio March 19, 1992) (emphasis added). The earlier finding of this Court squares with the spirit and letter of Robert Bennett, whose plan we previously found to have heavily influenced the ultimate Tilling plan. “Tilling states that, in the most populous counties, he drew boundaries in accordance with his understanding of the requirements of the Voting Rights Act first. Deposition of Tilling, 11/21/91, at 49, 199-206. There were times when he would cross Ohio political boundaries in order to comply with his understanding of the Voting Rights Act. If there had been no Voting Rights Act requirement to create majority-minority districts, he understood that he would not have had to cross Ohio political boundaries.... Tilling had the ‘Republican Opportunities’ document prior to his submission of the plan and while he was drawing the plan. Deposition of Tilling, 1/22/91, at 17-19.” Quilter, 1992 WL 677145, *10 n. 8-9. Thus, the Bennett letter says in an outward manner what we found to be the state of affairs based on testimony of the major players, including James Tilling. There were also other influential players and documents. The “Republican Opportunities” documents referred to above discussed 19 ways in which the Republican Party could advantage itself in the redistricting process. The document lists several counties as “opportunities” to “pack as many Demos as possible into 2 Black-majority inner-city [House Districts].” Deposition of Horn, 12/10/91, Ex. 1. The document concludes with a final shot: “Make good on 12 of these opportunities and you know the consequences.” Id. There were other documents and testimony relied upon by this court to make its factual determination that a racial containment strategy had been followed. Tilling himself—after initially characterizing deposition questioning as a “gross misrepresentation of his actions“—was forced to concede that he had changed districts in every instance in which blacks had been elected with white cross over support. Deposition of Tilling, 11/20/91, at 198-202; See also Plaintiff‘s Proposed Findings of Fact, 12/17/91, ¶¶ 445-545; Deposition of David Horn, 12/10/91, at 44-58. At bottom, we found that, based upon this and other evidence, the engine of race motivated the containment districting strategy used here. Given the record of the case, my position is that strict scrutiny must apply.
The Apportionment Board responded by establishing and adopting a record on February 18, 1992, that, in its view, justified the Board‘s creation of minority-controlled state legislative districts. Furthermore at its February 18 meeting, the Board amended the 1991 plan to eliminate a series of technical errors in the plan that the Ohio Supreme Court had identified in its separate review of the plan, Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (Ohio 1992) (per curiam). The resulting 1992 plan, “Amendment D,” created only five majority-minority districts, which constituted a reduction from the eight majority-minority districts in the 1991 plan, “Amendment C.”
On March 10, 1992, after the Board submitted its findings and conclusions, along with the new 1992 plan, this court held that the Board “fail[ed] once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965.” Quilter v. Voinovich, 794 F.Supp. 756, 757 (N.D.Ohio 1992) (order). Furthermore, this court held that the 1992 plan also violated the
The Defendants appealed to the United States Supreme Court. In Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993), the Supreme Court reversed this court‘s Quilter decisions. Denying two of the Plaintiffs’ claims, the Court held that the reapportionment plan at issue did not violate
Upon remand, this court held that the Ohio reapportionment plan survived scrutiny under the one-person-one-vote guarantee of the Equal Protection Clause because (1) the Defendants advanced a genuine, rational state policy to justify the deviations from population equality among the state legislative districts; (2) their plan reasonably furthered the rational state policy; and (3) the 13.81% and 10.54% total deviations fell within constitutional limits. Quilter v. Voinovich, 857 F.Supp. 579, 587 (N.D.Ohio 1994). Accordingly, judgment was entered for the Defendants on this issue.
While the latter decision was pending, however, the Plaintiffs moved this court for permission to amend their complaint in light of the Supreme Court‘s recent decision in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). As a lower court, this court is bound to follow the Supreme Court‘s decision in Reno, where the Court held for the first time that a plaintiff could state a claim under the Equal Protection Clause by alleging that a districting plan, “though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.” Id. at 649-50, 113 S.Ct. at 2828. Thus, this court granted the Plaintiffs’ motion, and their complaint was accordingly amended.6 Quilter v.
On August 11, 1995, this court found that the 1992 redistricting plan violated the Equal Protection Clause. Quilter v. Voinovich, 912 F.Supp. 1006 (N.D.Ohio 1995) (per curiam). Specifically, the panel found that when the legislature subordinates traditional race-neutral districting principles to racial considerations strict scrutiny applies. Id. at 1019. Thus, if the Plaintiffs offer proof “substantiating that race was the predominant factor motivating the state‘s apportionment process, then this gives rise to a presumption that the plan is unconstitutional, and the burden shifts to the Defendants to demonstrate that their use of race in redistricting was narrowly tailored to meet a compelling state interest....” Id. (citations omitted).
Having said this, the court then focused on the eight Ohio districts that were allegedly racially gerrymandered. The Defendants admitted that they considered race when redistricting, but argued that such considerations were mandatory under
52.... The reapportionment plan adopted by the Defendants on February 18, 1992 intentionally separated Ohio voters on the basis of race without regard for the traditional redistricting principles set forth in the Ohio Constitution and otherwise without any compelling governmental justification. To justify the creation of race-based districts in the urban centers of Ohio, Defendants asserted that there was widespread racial bloc voting throughout Ohio. The trial court specifically found, and the Supreme Court of the United States confirmed, that Ohio did not suffer from legally cognizable racially polarized voting....
53. The Defendants deliberately created race-based legislative districts in urban centers initially and then used the purported, but sham, necessity of creating such districts as the basis for ignoring the traditional anti-gerrymandering provisions of the Ohio Constitution throughout the state of Ohio. Absent the ripple effect of the racial gerrymandering in the urban centers of the state of Ohio, the Defendants would not have been forced to ignore on a wholesale basis the directives of Article XI, Section 7, of the Ohio Constitution to follow existing political and legislative boundaries wherever possible.
54. ... The decision to abandon the traditional districting mandates contained within the Ohio Constitution is neither compelled by the doctrine of federal supremacy, nor based on any lawful, organized, or rational districting criteria....
55. The Defendants have articulated no compelling governmental interest for the wholesale abandonment of the provisions of the Ohio Constitution. As a result, the Defendants have drawn irregular districts in numerous places throughout the state, districts which have no explanation other than the ripple effects caused by the racially drawn districts in the urban centers. In some instances, the racially drawn districts themselves have irregular shapes not required by the Ohio Constitution.
56. The districts which have been modified solely on the basis of race include House Districts 31, 30, 22, 21, 38, 39, 44, and 49. No evidence has been presented to the trial court that either legally cognizable remedial action was necessary to draw these racially gerrymandered districts, or that the creation of such districts was narrowly tailored to further any compelling governmental need.
Pls.’ Second Am. Compl. ¶¶ 52-56.
plan because traditional districting principles were subordinated to or given less weight in the reapportionment process than racial considerations.” Id. at 1027. Thus, the court subjected the 1992 plan to strict scrutiny.
All of the foregoing were defended on the basis that the State had a compelling interest. The Defendants argue that they met strict scrutiny because a compelling interest existed—compliance with
II. The Convergence of Race and Precedent
I take pains to write at this length and to place the issue of voting rights and race in a broader framework, because of the confusion that is obvious over the appropriate use of race in civil rights remedial contexts generally and in voting rights cases in particular. See Shaw v. Reno, 509 U.S. at 656, 113 S.Ct. at 2831-32 (1993). The confusion is based on the extent to which such remedies must be race sensitive. This confusion may grow from a mistaken notion that Justice John Marshall Harlan‘s dissenting opinion in Plessy v. Ferguson, 163 U.S. 537, 552-564, 16 S.Ct. 1138, 1143-48, 41 L.Ed. 256 (1896), with respect to the Constitution being colorblind, carried the day in 1896. However, Justice Harlan stood alone as the Supreme Court majority rejected his view. Justice Henry Billings Brown, writing for seven of his colleagues, asserted that the
Conceding that the ground has shifted somewhat in civil rights jurisprudence, this court can conclude, with no need for specific authority, that the harmful impact of Plessy misshaped America‘s institutions. It was 58 years later, in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that the Supreme Court got around to overturning that decision. Since Brown, through a series of decisions and statutory enactments, including the
III. Analysis
It is the aforementioned that derails the train from the compelling purpose track. The majority erroneously concludes that strict scrutiny does not apply to the reapportionment plan in this case. The majority holds that in order for strict scrutiny to be triggered race must be the “substantial factor in the drawing of the challenged districts ... to which traditional districting principles were subordinated....” Maj. Op. at 1051. “[W]e will not apply strict scrutiny without the ‘necessary showing by the plaintiffs that the defendants neglected traditional districting criteria and that neglect is predominantly due to the misuse of race.” Id. at 1044. It is of course, unfortunate, in my view, to be required in cases seeking to remedy ages-old discrimination, to prove the obvious about race. Under our prior jurisprudence, this plan would not even meet the intermediate scrutiny test due to its limiting effect on minority voting. Conceding what is required to be shown, I, nevertheless, do not believe that the majority‘s position accurately states the law with respect to a plan that negatively impacts minority political potential. The recent cases require that even under the majority‘s test, strict scrutiny applies to the state‘s reapportionment containment plan.
A. The Test
In Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (Shaw I), the Supreme Court first ruled actionable an equal protection claim that challenged districts which were drawn based on the race of the voters. Since then the Court has attempted to further define when states violate the Equal Protection Clause in redrawing their districts.
Of course, redistricting legislatures are always conscious of racial demographics; “but it does not follow that race predominates in the redistricting process.” Miller, 515 U.S. at 915-16, 115 S.Ct. at 2488. Because it is difficult to distinguish between a legislature merely taking account of race and a legislature that is motivated by race, courts must exercise “extraordinary caution” in adjudicating such claims. Id.; see also Shaw v. Hunt, 517 U.S. 899, —, 116 S.Ct. 1894, 1900, 135 L.Ed.2d 207 (1996) (Shaw II). If race, however, is the predominant factor motivating a legislature to place a significant number of voters within or without a particular district, then this court must apply strict scrutiny to the redistricting plan. Abrams v. Johnson, 521 U.S. 74, —, 117 S.Ct. 1925, 1936, 138 L.Ed.2d 285 (1997) (“If race is the predominant motive in creating districts, strict scrutiny applies ....“) (emphasis added); Shaw II, 517 U.S. at —, 116 S.Ct. at 1900 (holding that the constitutional wrong occurs when race becomes the “dominant and controlling” consideration); Miller, 515 U.S. at 913-16, 115 S.Ct. at 2487-88.
Consequently, the court does not need to look at whether race trumped other districting principles, but instead must determine whether race was the main factor the legislature considered when drawing its district lines. I do not dispute that the districts are compact and contiguous in this case, but that should not allow a legislature to shield its plan from review, especially where irrespective of the shape of the districts race remained the primary motivation. Compare Miller, 515 U.S. at 915-16, 115 S.Ct. at 2488 (holding that in order for strict scrutiny to apply race must be the “predominant factor motivating the legislature‘s [redistricting] decision“) with Bush, 517 U.S. at —, 116 S.Ct. at 1973-74 (Thomas, J., concurring) (stating that strict scrutiny should apply when race is a motivation for the drawing of districts). Indeed, the line of recent Supreme Court cases do not seem to abandon altogether benign considerations of race in the redistricting process. See Shaw II, 517 U.S. at —, 116 S.Ct. at 1902 (“A State‘s interest in remedying the effects of past or present racial discrimination may in the proper case justify a government‘s use of racial distinctions“); Bush, 517 U.S. at —, 116 S.Ct. at 1969 (“so long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy, States may otherwise take race into consideration, without coming under strict scrutiny“) (O‘Connor, J., concurring); Bush,
Taken together, the sum of the Supreme Court‘s decisions leads me to conclude that a plaintiff may satisfy the predominant factor test and prove that traditional districting principles were a subordinate motivation not only when a state violates or abandons traditional districting principles in favor of racial motivations, but also when a state substantially complies with traditional districting principles and there is nevertheless a strong discriminatory motivation.
B. Application
In the case at bar, the record is replete with evidence that race was the predominant motivation of the state officials when they drew the districts at issue. In fact, there is substantial evidence in the record indicating that back room decisions such as those outlawed in Gomillion v. Lightfoot have made a mockery of the substantial racial progress with respect to voting patterns in the districts at issue.
When the plan was submitted as a whole to the Board, the letter attached stated, “There are several occasions when we had to make election between blind adherence to the Ohio Constitution‘s dictate regarding population density and preservation of artificial boundary lines on the one hand, and the clear duty to reach out for all reasonably cohesive groups of minority voters. On each occasion, we opted to comply with the Voting Rights Act.” Robert T. Bennett Letter (September 26, 1991). This letter declares in clear terms that when the districting board had to choose between race and traditional districting principles, they chose race. Were minorities shown to lack meaningful cross over support, such action by the Board would have been laudable. In the face of cross over voter evidence on the record, it stands to reason that the districting board made the wrong choice. Abrams, 521 U.S. at —, 117 S.Ct. at 1937.
James Tilling‘s (the state expert who drew up the plan) actions in developing the plan are direct evidence of the apportionment board predominantly using race. The record clearly establishes that Tilling first set out to draw minority districts. He testified, without equivocation, that his first goal was to gather data on his computer on black populations and black voting age population by district, ward, or precinct. He then drew the black districts first by aggregating black populations on his computer and drawing lines around those populations. Deposition of James Tilling, Docket #102, at *84-91, *97-106 (11/20/91). He further admitted that the black population was needlessly added to districts already represented by black legislators. This was to “ensure that black persons would be elected in the future.”
All of these tactics are further buttressed by Tilling‘s hand-written notes. Finally, throughout his report Tilling relies upon the untenable and prejudicial presumption that all blacks have similar income, education, housing values, health, and criminal justice concerns. Tilling‘s Report at 170. Tilling never advanced a claim, statistical evidence or a mere guess that discriminatory voting patterns necessitated his actions. Evidence of black candidates being rejected by white
The Board‘s justification for the districts in question highlight that race was not only the primary motivation, but the only motivation in drawing these districts. Again, I emphasize that race was used here in a way to contain, not enhance, black political empowerment. Racial voting patterns in the following four legislative districts powerfully demonstrate the cynical restraint placed on the ability to strengthen and broaden minority political potential and also show an absence of an appropriate predicate for invoking the Voting Rights Act remedies.
1. House District 31 (House District 23 in 1981)—Hamilton County
Board Finding ¶ 182 states that this district‘s black population was increased to insure a black candidate was elected when Representative Mallory retired. Furthermore, the Board Findings indicate that Floyd Johnson, the man purporting to represent the NAACP, gave his approval for these racially gerrymandered districts. Id. at ¶ 8.8 A cursory glance at the Board Findings exemplifies that race was the most important factor in redrawing the districts. These Findings were adopted in support of the 1992 Plan now at issue.
Tilling‘s notes further indicate that prior to drawing this district he displayed the minority population on his computer screen and he drew this district first to emphasize a heavily populated black district. While this relates to a draft of the finished version, it indicates Tilling‘s and the Board‘s intent when drawing this district.
The Board should not have taken race into account at all in this district. In 1990, 50.66% of the white voters voted for the black representative. Quilter, 1992 WL 677145, at *10 n. 2. Furthermore, 28.23% of the white voting age population voted, while only 12.63% of the black population did so. Board Finding at ¶ 168. The black voting age population was only 39% of the popula-
tion in this district. Therefore, the black representative could have run in an all white district and won.
2. House District 39 (House District 37 in 1981)—Montgomery County
Paragraphs 191 to 193 of the Board‘s findings indicate that their primary concern in drawing new House District 39 was to circumscribe black voters. In fact, these findings seem to indicate that race was the Board‘s only concern.
The Board considered Old Districts 36 and 37 simultaneously, when they attempted to redraw the districts in Montgomery Country. Board Findings at ¶¶ 191-93. Both of these districts had minority representatives, and in both districts minorities had been elected with less than a majority-minority population. Id. at ¶ 191. Yet, the Board found it imperative to increase the minority population in these districts. Id. at ¶ 193 (“But in order to barely give her the majority black voting age population, 50.7, which is, we felt, the least that we needed to do ... if we didn‘t increase it now, it would fall dangerously low and possibly jeopardize her chances for reelection.“). The Board did this and ignored the fact that in Old House District 37, 45.98% of the white voters crossed-over and voted for the black candidate. Quilter, 1992 WL 677145 at *10 n. 2.
3. House District 44 (House District 42 in 1981)—Summit County
Again, the Board found it necessary to first consider race in District 44. In fact, both Floyd Johnson and the Black Elected Democrats of Ohio (“BEDO“) participated in reconfiguring this district. Board Findings at ¶ 194. The Board, Floyd Johnson, and BEDO all agreed that the district needed to be reconfigured so as to have a larger black voting age population. Id. This was their sole and primary purpose in drawing District 44.
Once again, however, in Old District 42, the black representative received 48.76% of the white population‘s votes. Quilter, 1992
4. House District 49 (Old House District 45)—Lucas County
Mr. Tilling testified to the Board that in this district they did not need to increase the minority population to protect the incumbent black representative, “but because down the road in this decade whoever is his successor needs the opportunity to give minorities a clear chance to elect a candidate of their choice.” Board Findings at ¶ 177. There obviously was a strategy to increase percentages based on race with no predicate existing for doing so. Id. at ¶ 195.
In 1990, the black representative received 44.46% of the white vote in Old District 45. Quilter, 1992 WL 677145, at *10 n. 2. Blacks only made up 37.61% of the voting age population. Board Findings at ¶ 168. Finally, this district had very little shift in population. Tilling‘s Report at ¶ 49. The only reason it was changed was to increase the number of minority voters.
C. Strict Scrutiny
The record establishes a simple fact: Ohio voters in these state legislative contexts have demonstrated a “general willingness” to look beyond race in electing public officials. Abrams, 521 U.S. at —, 117 S.Ct. at 1937. With a well-established record of non-polarized voting in the challenged districts, the Apportionment Board‘s drawing of racially-packed legislative districts can only be the result of a predominant motivation to do so. Consequently, I would subject the plan to strict scrutiny.
Under strict scrutiny, the Defendants must show “not only that its redistricting plan was in pursuit of a compelling state interest, but also that ‘its districting legislation is narrowly tailored to achieve [that] compelling state interest.‘” Shaw II, 517 U.S. at —, 116 S.Ct. at 1902 (quoting Miller, 515 U.S. at —, 115 S.Ct. at 2490). In this case, the state asserts that compliance with
However,
Generally, to establish a prima facie case that a single-member redistricting plan violates section 2, three things must be shown: (1) that the minority group “is sufficiently large and geographically compact to constitute a majority in a single-member district“; (2) that the minority group “is politically cohesive“; and (3) “that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority‘s preferred candidate.” Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2767, 92 L.Ed.2d 25 (1986) (referred to hereinafter as ”Gingles
In this case, even if the court were to assume that the Defendants possessed information suggesting that a minority group could satisfy the first two Gingles factors, the Defendants could not satisfy the racial-bloc voting prong in the relevant districts. In fact, both this court and the Supreme Court previously held that on the basis of all the evidence that racially polarized voting generally did not exist in Ohio‘s legislative elections. The Court noted the following:
[Appellees [Plaintiffs in this case] have failed to demonstrate Gingles’ third precondition—sufficient white majority bloc voting to frustrate the election of the minority group‘s candidate of choice. The District Court specifically found that Ohio does not suffer from “racially polarized voting.” Even appellees agree. Here, as in Gingles, “in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters.”
Voinovich v. Quilter, 507 U.S. 146, 158, 113 S.Ct. 1149, 1157-58, 122 L.Ed.2d 500 (1993) (internal citations omitted); see also Quilter, 1992 WL 677145, at *4, *8 & n. 2, n. 3 (holding that Ohio has coalitional voting, where whites cross over and vote for black candidates, and not polarized voting, where whites only vote for white candidates and blacks vote for black candidates). By relying on these precedents, I am not saying that the Apportionment Board could not take race into account unless and until it had been proven in a court that a violation of section 2
of the Voting Rights Act had occurred. A state is not required to await a judicial finding that it has committed past or present discrimination before it voluntarily takes remedial action to eradicate the discrimination, so long as it has a “strong basis in evidence for its conclusion that remedial action was necessary.” Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 725, 102 L.Ed.2d 854 (1989) (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1848-49, 90 L.Ed.2d 260 (1986)). My point, however, is to emphasize that which should have been reasonably apparent to the Defendants: racially polarized voting does not exist in the contested districts. In the four districts at issue, between 45% and 51% of the white voters voted for the black candidate. See Quilter, 1992 WL 677145, at *10 n. 2; see id. at *10 n. 3 (finding that in 1984 56.7% of white voters voted for the black incumbent, in 1988 60.2% of white voters voted for the black incumbent, and in 1988 67.8% of white voters voted for the black incumbent). Given the overwhelming evidence of coalitional voting in the challenged districts under the existing plan and given the fact that the Defendants had this information available to them before they adopted the 1992 plan, the Defendants could not reasonably conclude that the relevant minority group could establish a prima facie case of a violation of
IV. Conclusion
The policy of racial political containment in this case removes the plan from the same category of remedial attempts present in jurisdictions where white voters continue in their refusal to vote on an interracial coalitional basis for non-white candidates. Because of that difference, and the lack of an
Notes
The governor, auditor of state, secretary of state, one person chosen by the speaker of the house of representatives and the leader in the senate of the political party of which the speaker is a member, and one person chosen by the legislative leaders in the two houses of the major political party of which the speaker is not a member shall be the persons responsible for the apportionment of this state for members of the general assembly.
Such persons, or a majority of their number, shall meet and establish in the manner prescribed in this Article the boundaries for each of ninety-nine house of representatives districts and thirty-three senate districts. Such meeting shall convene on a date designated by the governor between August 1 and October 1 in the year [1971] and every tenth year thereafter....