Turner v. McKeithen

• Decision Date: 28 December 1973
• Docket Number: No. 71-2221.,71-2221.
• Citation: 490 F.2d 191
• Parties: Sam Ulysses TURNER, Plaintiff-Appellee, v. John J. McKEITHEN et al., Defendants, Ouachita Parish Police Jury, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

490 F.2d 191 (1973)

Sam Ulysses TURNER, Plaintiff-Appellee, v. John J. McKEITHEN et al., Defendants, Ouachita Parish Police Jury, Defendant-Appellant.

No. 71-2221.

United States Court of Appeals, Fifth Circuit.

December 28, 1973.

J. Carl Parkerson, Dist. Atty., Gilbert Brown, Jr., Asst. Dist. Atty., Monroe, La., for defendant-appellant.

Paul Henry Kidd, Robert P. McLeod, Monroe, La., for plaintiff-appellee.

Before BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

John R. BROWN, Chief Judge:

We have held this 1971 Ouachita Parish Police Jury reapportionment case in abeyance pending the Supreme Court's decision in White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, affirming in part, reversing in part, Graves v. Barnes, W.D.Tex., 1972, 343 F.Supp. 704 (three-judge court) and our own en banc decision in Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, reversing 5 Cir., 1972, 467 F.2d 1381. On the basis of the highly beneficial guidance provided by these cases, we affirm the District Court's determination that the Police Jury's proposed multi-member reapportionment plan unconstitutionally dilutes the potential for political participation by the black community of Ouachita Parish.

The History

This class action, brought by the Challengers on behalf of the registered voters of former Ward 10 of Ouachita Parish, attacking the apportionment of the Parish Police Jury was instituted in February 1970.¹ Under Louisiana law, the Parish Police Jury is charged with the maintenance of roads and drainage, regulation of taverns, levy of taxes and a variety of other responsibilities relating to the health and welfare of the public.²

At the commencement of this litigation, Quachita Parish was divided into ten wards. Seven of the wards each elected a single member to the Police Jury while wards 3, 5 and 10 each elected four members.

As of the 1970 census, blacks constituted 27.4% of the population of Ouachita Parish. The great majority of blacks were concentrated within wards 3 and 10—two of the multi-member wards. Under the existing apportionment scheme, blacks constituted 42.5% of the total population of ward 3 and 37% of the total population of ward 10.

Prior to trial, the parties stipulated that the existing apportionment scheme was unconstitutional due to significant deviations³ from the "one man—one vote" principle.

The District Court requested that the parties submit reapportionment plans. On May 12, 1971 before the plans were submitted, a hearing was held at which time the Challenger injected the issue of "dilution" of the minority vote into the case. On June 12, 1971, a week before the case was scheduled for trial, the Supreme Court decided Whitcomb v. Chavis, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363, in which the question of dilution of the minority vote was discussed in far greater detail than it had been up to that time.

The Police Jury proposed a plan under which the 10 existing wards would be consolidated into three new multi-member districts without splitting any of the former wards.⁴ The Challengers submitted two single-member district plans, one of which provided for six districts, the other for nine.

At a hearing held before the District Court on June 18, the parties presented witnesses and offered evidence in support of their respective plans. The Court found that the Police Jury's proposed plan was constitutionally defective for two separate reasons.

First, the Court held that the Police Jury had not carried the burden of justifying the 6.1% maximum population variance (per juror) between the largest and the smallest districts considering that the plan submitted by the Challenger and adopted by the Court, provided for a maximum variance of only 3.5%. As a result the plan did not satisfy the "one man—one vote" principle.

Secondly, the District Court found that the Police Jury's plan was constitutionally defective because the multimember districts "would tend to dilute and cancel out the present voting strength of either one or both of the two large identifiable black areas in Ouachita Parish" and would therefore result in "invidious discrimination."

The District Court found that the Challenger's six district single-member plan complied with constitutional requirements and implemented that plan prior to the 1971 election. The Parish's first black police juror has been elected pursuant to the plan.⁵

On appeal, the Police Jury urges that (1) the deviations from the "one man— one vote" principle inherent in its proposal were constitutionally justified by legitimate state interests; (2) that its multi-member plan did not unconstitutionally dilute the black voting strength of the Parish; (3) that the District Court did not allow it a sufficient opportunity to prepare its own plans and study Challenger's.

Since we agree that the District Court correctly concluded that the multi-member plan submitted by the Police Jury unconstitutionally diluted the black vote, we find it unnecessary to determine whether the District Court's conclusion on the "population variance" question is consonant with Mahan v. Howell, 1973, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; and Gaffney v. Cummings, 1973, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. We turn then to dilution—a question on which the controlling authority is still warm from the presses.

The Standard

Last term in White v. Regester, supra, a Texas case, the Supreme Court sustained a three-judge District Court finding that multi-member districting plans tended to minimize or cancel out the voting strength of blacks in Dallas County and Mexican-Americans in Bexar County.⁶ Shortly after the decision in White v. Regester, this Court sitting en banc in Zimmer v. McKeithen, supra, held that the at-large voting scheme employed for electing Police Jurors and School Board members in East Carroll Parish, Louisiana unconstitutionally diluted the voting strength of the black residents of the Parish.

White v. Regester and Zimmer recognized that "access to the political process * * * is * * * the barometer of dilution of minority voting strength." Zimmer, supra, at 1303. Therefore, "the plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324.

Both White v. Regester and Zimmer set forth a number of factors which are relevant in determining whether a minority group in fact lacks meaningful access to the political process. Among the factors entitled to consideration are the continuing effects of past discrimination on the minority group's ability to participate in the political process, the opportunity for the minority group to participate in the candidate selection process, the responsiveness of elected officials to the particular concerns of the minority group, and the strength of the state interest in multi-member or at-large voting.⁷

Furthermore, both White v. Regester and Zimmer recognized that the presence of various structural voting devices such as a majority vote requirement, anti-single shot voting, large districts, and lack of residency requirements in a district or its geographical subdivisions may increase the potential for dilution under a multi-member or at-large arrangement.⁸ Dilution, as with so many complex factual determinations turns on an aggregation of the circumstances.

The Circumstances

Measured against these guidelines, the District Court correctly concluded that the Police Jury's multi-member plan was constitutionally unacceptable because it tended to dilute the potential for minority participation in the political process.

In evaluating the opportunities for meaningful access to the political process of the black community in East Carroll Parish, Zimmer recognized the presence of the continuing debilitating effects of the pervasive statewide history of racial discrimination in Louisiana, 485 F.2d at 1306.⁹ Open, flagrant, unsophisticated, purposeful discrimination against blacks has been the long time pattern in Ouachita Parish. United States v. Louisiana, note 9, supra, 225 F.Supp. at 379-382.¹⁰ A dual school system in Ouachita Parish was only abandoned under Federal Court order.¹¹

And the ballot box was opened only to those who satisfied the unconstitutional statewide interpretation test invalidated by United States v. Louisiana.¹²

No contradiction is made of the Challenger's supplemental brief which tells us that Ouachita Parish was one of eight Louisiana parishes to which Federal Voting Registrars were sent to register black voters pursuant to the Voting Rights Act of 1965. And, as of January 1971, 4,117 Ouachita Parish blacks were listed upon the federal voter registration rolls as contrasted with 2,952 blacks on the state registration roll.¹³ Prior to October 3, 1964, 73.6% of the white voting age population of Ouachita Parish was registered as opposed to 10.6% of the black voting age population.¹⁴ As in White v. Regester and Zimmer, so here we recognize that despite recent progress, the inhibiting effects of such blantant and pervasive discrimination have not yet been erased.

Unlike White v. Regester and Zimmer where at least a few minority members had been elected, the District Court found as a fact that at the time of trial no black had ever been elected to public office in Ouachita Parish since reconstruction although a number of blacks had run.¹⁵

The record entitled the District Court to consider the failure to include the black community in the candidate slanting process—perhaps the most important stage of the political process in Ouachita Parish which has been dominated in the past by one political party....