Wilеy L. BOLDEN et al., Plaintiffs-Appellees, v. CITY OF MOBILE, ALABAMA, et al., Defendants-Appellants.
Nos. 76-4210, 77-2042.
United States Court of Appeals, Fifth Circuit.
March 29, 1978.
571 F.2d 238
The Civil Rights Act of 1870, as amended,
42 U.S.C. § 1971(a)(1) , forbids any distinctions based on race in the voting process. And Section 2 of the Voting Rights Act of 1965,42 U.S.C. § 1973 , prohibits imposition of any practice or procedure which has the effect of denying or abridging the right of any citizen to vote on account of race or color. [emphasis added]
Id. at 207. This reasoning was affirmed by the Court, en banc, 5 Cir. 1973, 488 F.2d 310. Only one judge expressed any reservation about the adoption of a pure effect test. 488 F.2d at 316-17 (Judge Gee, concurring in the judgment). His concurrence makes it absolutely clear that the en banc decision of the Court was based on the conclusion that effect alone was sufficient to prove a violation of these statutes. See also Gremillion v. Rinaudo, E.D.La.1971, 325 F.Supp. 375, 377.
With due deference to my brothers on the panel, to me the proof is convincing in this case that the effect of the pertinent law was to reduce the value of each black‘s vote. To require the plaintiffs to prove an unconstitutional legislative motive is to burden the plaintiffs with the necessity of finding the authoritative meaning of an oracle that is Delphic only to the Court.
out without proof of a discriminatory intent. Metropolitan Housing Development Corp. v. Village of Arlington Heights, 7 Cir. 1977, 558 F.2d 1283. Accord, United States v. City of Black Jack, 8 Cir. 1974, 508 F.2d 1179, 1184-85.
Gregory B. Stein, J. U. Blacksher, Larry Menefee, Mobile, Ala., Edward Still, Birmingham, Ala., Jack Greenberg, James M. Nabrit, III, Charles E. Williams, III, Eric Schnapper, New York City, for plaintiffs-appellees.
Dennis J. Dimsey, Atty., Civil Rights Div., Appellate Sect., U. S. Dept. of Justice, Washington, D. C., for United States.
Miriam R. Eisenstein, Brian K. Landsberg, Walter W. Barnett, Attys., Drew S. Days, Asst. Atty. Gen., Appellate Section, Civil Rts. Div., Dept. of Justice, Washington, D. C., for amicus curiae.
Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
This is the second of four consolidated voting dilution cases we decide today. See Nevett v. Sides (Nevett II), 571 F.2d 209, 213 n.1 (5th Cir. 1978). Black citizens of Mobile, Alabama, brought this class action to challenge the constitutionality of their
The district court‘s opinion sets forth the factual background of this case in detail and at length. 423 F.Supp. at 386-94. Therefore, we will discuss only the salient findings below. We also incorporate the portions of our opinion of today in Nevett II that explicate the legal principles applicable to voting dilution cases.1
I
A city commission consisting of three members, all of whom are elected at-large, governs the City of Mobile. Government by commission of this type was established in 1911 by state law, 1911 Ala.Acts no. 281, which requires commission candidates to run for numbered positions and win by majority vote. Commission elections are nonpartisan, and therefore there are no primariеs. There is no requirement that commissioners reside in specified subdistricts.
In 1965, a specific city-wide function was assigned to each position by statute.2
On June 9, 1975, the appellees commenced this action to invalidate Mobile‘s city commissiоn. They claimed that the at-large feature of commission races combined with the various electoral devices set out above operated to dilute their votes in violation of the first, thirteenth, fourteenth, and fifteenth amendments to the Constitution, of the Civil Rights Act, and of the Voting Rights Act.3 The case went to trial in July of 1976, and the district court entered judgment for the appellees on October 22, 1976, ordering that the next city elections, scheduled for August, 1977, conform with a yet-to-be-determined mayor-council plan incorporating single-member council seats.4 The court entered a remedial order on March 9, 1977, abolishing the commission government and expounding a mayor-council plan. On April 7, 1977, however, the district court stayed its injunction that had ordered that the August elections conform to the mayor-council plan. We declined to dissolve this stay, and we stayed the holding of any city elections pending this appeal.
II
In concluding that Mobile‘s system of electing its city commissioners worked an unconstitutional dilution of the votes of black Mobilians, the district court relied upon the test set out in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff‘d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976).5 The court determined that the ap-
The district court gave careful consideration to each of the primary Zimmer criteria. It found a lack of black access to the political processes in Mobile. The court noted “massive official and private discrimination” prior to federal intervention in the form of the Voting Rights Act of 1965, 423 F.Supp. at 387, and found that although “[t]here are no formal prohibitions against blacks seeking office in Mobile . . . the local political processes are not equally open to blacks.” Id. No black had achieved election to the city commission due, in part, to racially polarized voting of an acute nature. Few blacks sought office because of the prospect of certain defeat in the at-large elections. Id. at 389. Although the failure of black candidates because of polarized voting is not sufficient to invalidate a plan, United Jewish Organizations v. Carey, 430 U.S. 144 (1977); McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976); Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975); Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974), it is an indication of lack of access to the political processes. It is one piece of the circumstantial evidence puzzle, whose successful completion supports the illation of dilution. See Nevett II, 571 F.2d at 224.
The district court determined that the city commissioners have been unresponsive to the needs of blacks in Mobile. The city has employed relatively few blacks in the higher levels of city service, and the city has been enjoined by federal court order to desegregate its fire and police departments and to open city facilities to allow equal accessibility to blacks. Various city committees whose members are appointed by the commission have evidenced a severe underrepresentation of blacks. As the court concluded, “[n]o effort has been made to bring blacks into the mainstream of the social and cultural life by appointing them in anything more than token numbers.” 423 F.Supp. at 390.
The court found not only that the city had been insensitive to the need for black participation in city government but also that the commission had been less responsive to black areas than white ones with respect to providing municipal services. These services included temporary relief from drainage problems, construction and resurfacing of roads, and construction of sidewalks. The court was careful to consider and weigh all the evidence. Although the city has not been totally neglectful, and the expense and problems
We think the evidence fairly supports a finding of unresponsiveness. The district court‘s task in considering evidence under the responsiveness criterion is a singularly factual one. Given the court‘s attentive consideration of the voluminous evidence on this issue, we cannot find its conclusion of unresponsiveness clearly erroneous. See Nevett II, 571 F.2d at 226.
As to the weight of the state policy behind at-large districting of city governments, the court fоund that the State of Alabama had no particular preference for such schemes.6 Given the longstanding at-large feature of Mobile‘s commission government, however, the court concluded that the “manifest policy of the City of Mobile has been to have at-large or multi-member districting.” 423 F.Supp. at 393. We appreciate the traditional deference the federal courts have accorded local governments, and we recognize “that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs.” Abate v. Mundt, 403 U.S. 182, 185 (1971). City-wide representation is a legitimate interest, and at-large districting is ordinarily an acceptable means of preserving that interest. See Wise v. Lipscomb, — U.S. —, 98 S.Ct. 15, 18 (1977), recalling mandate and staying judgment of 551 F.2d 1043 (5th Cir. 1977). But the longevity of Mobile‘s at-large commission government cannot insulate it from review.
When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960); accord, Robinson v. Commissioners Court, 505 F.2d 674, 680 (5th Cir. 1974). We think the district court was warranted in finding that the city‘s interests in its at-large plan did not outweigh the strong showings by the appellees under the other Zimmer criteria. The aggregate of the evidence controls. Zimmer, 485 F.2d at 1305. Indeed, that the at-large plan has existed for over sixty-five years is wholly consistent with the court‘s ultimate conclusion that the plan has been maintained with the purpose of debasing black political input.
The district court found that the evidence under the last of the primary factors enunciated in Zimmer, whether “the existence of past discrimination in general precludes the effective participation [by blacks] in the election system,” id., preponderated in favor of the appellees. Blacks were effectively disenfranchised prior to the enforcement of the Voting Rights Act of 1965. A catena of federal litigation was necessary to overcome official recalcitrance in maintaining various impediments to black political participation. Although blacks are able freely to register and vote in Mobile today, the district court found that the vestiges of past discrimination “preclude the effective participation of blacks in the election system today in the at-large system of electing city commissioners.” 423 F.Supp. at 393.
The district court was justified in resolving the issue of the effects of past discrimination against the appellants. It is not enough that the less subtle means of diminishing black participation have been re-
We need discuss only briefly the findings under the enhancing factors, since we have already outlined them. The electoral district, i. e., the City of Mobile, was found to be large; it is 142 square miles in area and had a population of 190,026 in 1970, 35.4% of which was black. The commissioners must be elected by majority vote, they run for numberеd positions,7 and they are not required to reside in subdistricts. Thus, the findings under all the enhancing criteria enumerated in Zimmer (or similar ones, see note 5 supra) have been in favor of the appellees. The only mitigating fact is the absence of primaries for the commission races. In the aggregate, the existence of these factors compounds what was already a strong showing of dilution under the primary criteria.
The bottom line of the Zimmer analysis in this case is that the black voters in Mobile have prevailed under each and every criterion, with the exception of a demonstration that Mobile‘s policy favoring at-large commission districts is a weak one. Moreover, the finding under the policy criterion, although perhaps not providing additional impetus to the appellees’ case, is consistent with the court‘s conclusion that the plan was maintained for discriminatory purposes.
We conclude that the district court‘s findings are not clearly erroneous and that these findings amply support the inference that Mobile‘s at-large system unconstitutionally depreciates the value of the black vote. Under our holding of today in Nevett II, thesе findings also compel the inference that the system has been maintained with the purpose of diluting the black vote, thus supplying the element of intent necessary to establish a violation of the fourteenth amendment, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976), and the fifteenth amendment, Wright v. Rockefeller, 376 U.S. 52 (1964). Although we have treated the subject of intent at length in Nevett II, a few additional remarks are appropriate.
III
The city ardently asserts that since the 1911 plan was enacted under “race-proof” circumstances, it is immune from constitutional attack. Blacks had been effectively disenfranchised by the Alabama constitution in 1901, and therefore the at-large plan is said to have been adopted in a context where racial considerations could not have been relevant. See Nevett II; McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976). The city would have us interpret Washington v. Davis and Arlington Heights to require a showing of intentional discrimination in the enactment of the plan. We squarely reject
The at-large scheme that has governed Mobile since 1911 is archetypal of the intentionally maintained plan we contemplated in Nevett II. The findings of the district court under Zimmer‘s circumstantial evidence test led the court to conclude that “[t]here is a ‘current’ condition of dilution of the black vote resulting from intentional state legislative inaction which is as effective as . . . intentional state action.” 423 F.Supp. at 398 (emphasis in original). This, the district court held, was sufficient to support a finding of unconstitutionality. We agree.
Several additional facts buttress the court‘s inference that the at-large plan has been maintained with discriminatory intent. We mentioned above the 1965 act that assigned specific functions to the commission positions, 1965 Ala.Acts no. 823. See note 2 supra and accompanying text. The Attorney General, pursuant to the authority vested in him by section 5 of the 1965 Voting Rights Act,
The enactment of Act 823 gains additional significance when combined with the court‘s finding that the legislature was acutely conscious of the racial consequеnces of its districting policies. As the court found, “[t]he evidence is clear that whenever a redistricting bill of any type is proposed by a county delegation member, a major concern has centered around how many, if any, blacks would be elected.” 423 F.Supp. at 397. This finding constitutes direct evidence of the intent behind the maintenance of the at-large plan. See Arlington Heights, 429 U.S. at 268. It coincides with the conclusion of intentional discrimination that flows from the circumstantial evidence adduced under the Zimmer criteria in this case. We think that the district court has properly conducted the “sensitive inquiry into such circumstantial and direct evidence of intent as may be available” that a court must undertake in “[d]etermining whether invidious discriminatory purpose was a motivating factor” in the maintenance or enactment of a districting plan. Arlington Heights, 429 U.S. at 266.
IV
The remaining issue is the appropriateness of the district court‘s remedy. The court ordered the implementation of a mayor-council plan that established nine single-member council districts. The appellants contend that the court‘s order is violative of the tenth amendment, which provides as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The essence of the appellants’ argument is that the district court, having found the city‘s at-large government unconstitutional, is powerless to remedy the violation. The city refused to come forward with a plan, forcing the district court to fashion a remedy. The district courts have been repeated-
The exercise of the equitable power of the district court in remedying the unconstitutional infirmity in Mobile‘s commission plan does not contravene the tenth amendment. We have recognized the importance of flexibility in the form of local government, but flexibility is not absolute license. The abuse of local governmental powеr, when of the constitutional magnitude in this case, is a power “denied the States” by the Constitution within the meaning of the tenth amendment. The power to remedy the unconstitutional wrong is one “delegated to the United States by the Constitution.” The Constitution expressly provides for federal court jurisdiction in claims “arising under this Constitution [or] Laws of the United States.”
Once a right аnd a violation have been shown, the scope of a district court‘s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. As with any equity case, the nature of the violation determines the scope of the remedy. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16 (1971).
The appellants refused to submit a plan; they cannot by their recalcitrance straight-jacket the district court. We think the remedial plan adopted by the court was within its equitable powers. The plan is a temporary measure. It will exist only until the state or the city adopts a constitutiоnal replacement.
Having found the district court‘s resolution of the constitutional issues in this case to be correct, and having approved its remedial measures, we find the disposition below proper in all respects. Therefore, the judgment of the district court is AFFIRMED. The injunction of the district court ordering that elections be held in conformance with its order is hereby REINSTATED, and our stay of the conducting of municipal elections is hereby DISSOLVED.
AFFIRMED.
WISDOM, Circuit Judge, specially concurring:
I concur specially for the reasons stated in my concurring opinion in Nevett v. Sides (Nevett II), 571 F.2d 209, with which this case is consolidated.