Smith v. Salt River Project Agr. Imp. and Power Dist., 95-16951
| Decision Date | 24 March 1997 |
| Docket Number | No. 95-16951,95-16951 |
| Citation | 1997 WL 129035,109 F.3d 586 |
| Parties | 97 Cal. Daily Op. Serv. 2091, 97 Cal. Daily Op. Serv. 2621, 97 Daily Journal D.A.R. 3858 Nichet SMITH and Renaldo Fowler, Plaintiffs-Appellants, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT; Board of Directors, of Salt River Project Agricultural Improvement and Power District; James L. Diller; Howard W. Lydic; Eldon Rudd; Gilbert R. Rogers; Clarence C. Pendergast, Jr.; Fred J. Ash; James R. Marshall; Dwayne E. Dobson; Bruce B. Brooks; William W. Arnett; Mark W. Pace; Emil M. Rovey; sued in their official capacity as members of the council of Salt River Project Agricultural Improvement and Power District; Roy W. Cheatham; Clarence J. Duncan; Lester Mowry; Lawrence P. Schrader; Mario J. Herrera; Wayne A. Marietta; Kevin J. Johnson; Byron G. Williams; John E. Anderson; Lee Tregaskes; John A. Vanderwey; C. Dale Willis; Orland R. Hatch; Ben Butler; Elvin E. Fleming; Larry D. Rovey; Charles D. Copperinger; Robert L. Cook; Lloyd Lee Banning; David Rousseau; Dan C. McKinney, Jr.; Wayne A. Hart; Michael K. Gantzel; Dale Riggins; W. Curtis Dana; Edmund Navarro; Ann M. Burton; Mario J. Herrera; William P. Schrader; Robert G. Kempton; Wayne A. Weiler sued in their official capacity as members of the Council of Salt River Project Agricultural Improvement and Power District; Members of the Board of Salt River Project Agricultural Improvement and Power District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy M. Hogan, Arizona Center for Law in the Public Interest, Phoenix, Arizona, for the plaintiffs-appellants.
Neil Vincent Wake, Bryan Cave, Phoenix, Arizona, for the defendants-appellees.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-94-00118-SMM.
Before: FLETCHER, FARRIS, and HALL, Circuit Judges.
Nichet Smith and Renaldo Fowler ("Appellants") are African-Americans who reside within the boundaries of the Salt River Project Agricultural Improvement and Power District ("District") but do not own real property within the District. Appellants claim that the criterion of land ownership for eligibility to vote in District elections violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (" § 2"), because only forty percent of African-American heads-of-household within the District own homes, compared with sixty percent of white heads-of-household. The district court held that the District is not a political subdivision within the scope of § 2 and that, even if § 2 does apply, Appellants failed to demonstrate that the District's voting system violates § 2. We have jurisdiction under 28 U.S.C. § 1291. While we reject portions of the district court's decision, we affirm its judgment that Appellants have not proved their § 2 claim against the District.
The District comprises 260,188 acres of land located in Maricopa County, Arizona. Together with the Salt River Valley Water Users' Association ("Association"), the District operates the Salt River Project, a federal reclamation project. The District is organized as an agricultural improvement district under A.R.S. §§ 48-2301 through 48-2475 and is a political subdivision and municipal corporation under Arizona Law. Ariz. Const. Art. 13, § 7; A.R.S. § 48-2302.
The Association was formed in 1903 to represent the landowners for whose benefit the Salt River Project was established and to develop, store, and distribute water for subscribed land. The Association is an Arizona corporation whose shareholders are the subscribing landowners. In the 1930s, the federal government and the Association developed hydroelectric generating capacity in order to subsidize with electricity revenues the cost of providing water to Association lands.
In 1937, the Association decided to take advantage of Arizona's Agricultural Improvement District Act, Ariz.Rev.Code of 1928, §§ 3467-3514; 1922 Laws Ch. 23, by organizing a district which would issue tax-exempt bonds at a low interest rate. The District's bonds would be used to refund the Association's outstanding bonds and reduce annual interest costs to the Association's shareholders.
The Association successfully lobbied the Arizona legislature to amend the Agricultural Improvement District Act to give districts the option of acreage-based voting and to include among the districts' purposes the reduction of irrigation, drainage, and power costs to district landowners through the sale of surplus power. The Association then organized the District, encompassing within its boundaries all subscribed land. Today, the Association and District operate as alter egos. The District operates the Salt River Project's power function; the Association acts as the District's agent to operate the water delivery system.
The District provides water to 238,399.55 acres of land, including eight municipalities. Its geographical boundaries include another 74,808 acres of non-irrigable land or lands that were not subscribed into the Association. Since 1982, approximately 82 percent of the District's water system costs are financed with electricity revenues. As of April 30, 1994, the District provides power to 572,225 customers, of whom 90 percent are residential customers and 75 percent reside within the District's geographical boundaries. By subsidizing its water operations with electricity revenues, the District is able to provide water at an average charge of $75.00 for five acre-feet. The unsubsidized cost of that amount of water would be $288.75.
The District is governed by a fourteen-member Board of Directors and a thirty-member Council. A.R.S. §§ 48-2361 to -2368. The District is divided into ten electoral divisions, each of which elects one Director and three Council members. The President and Vice-President of the Board and four additional Directors are elected at large. The District's electoral divisions and governing structure are virtually identical to those of the Association.
The Board's powers are set by statute. The Board may, inter alia, establish and enforce laws, rules, and regulations necessary to carry on the District's business, construct works for irrigation, drainage, and power, levy taxes on real property within the District, sell tax-exempt bonds, and exercise the power of eminent domain. A.R.S. §§ 48-2335, -2336, -2340, -2341(B), -2411 to -2415.
To qualify to vote in District elections, electors must own real property within the boundaries of the District as of sixty days preceding the election and possess the qualifications required of electors for state officers in Arizona. A.R.S. § 48-2309. Each elector is entitled to cast one vote per acre of land he or she owns. Id. § 48-2383(B). Since 1969, owners of fractional acreage are entitled to cast corresponding fractional votes. Id. § 48-2383(C). The at-large directors are elected on a one-person, one-vote basis by qualifying electors. Id. § 48-2365(D). Because electors must meet Arizona's general voter eligibility requirements, corporations, trusts, and estates are not eligible to vote. Over one-half of the District's acreage is owned by such entities; as of January 1994, only 99,863 of the District's 238,399.55 total acres can be voted. Electors need not reside within the District to vote their land in District elections. Board and Council members must own real property within the District at the time they are elected. Id. §§ 48-2362 to -2363.
In 1990, African-Americans comprised 3.5 percent of the population of Maricopa County. Forty-point-one percent of African-American heads-of-household owned their homes, while 60.3 percent of non-Hispanic white heads-of-household owned their homes. When home ownership (used as a proxy for land ownership due to data availability) is broken down by electoral division within the District, African-American home ownership ranges from a low of 14.9 percent to a high of 55.5 percent. Home ownership for non-Hispanic whites ranges from 51.2 percent to 73.9 percent. In no division does a greater percentage of African-Americans than whites own homes. In each biennial election since 1980, fewer than 1 percent of eligible voters have voted in District elections.
The District has no history of racial politics and its operations do not involve racially-differentiated interests. African-Americans are represented in the District's work force in roughly identical proportion to their representation in Arizona's work force.
Appellants are African-Americans and are registered voters in Arizona. Neither Appellant owns any real property located within the District. Appellant Fowler lives on District lands. Both Appellants purchase electric power from the District.
In Appellants' First Amended Complaint for declaratory and injunctive relief against the District, they allege that because proportionately fewer African-Americans than non-Hispanic whites residing in the District live in owner-occupied homes, the District's land ownership voting prerequisite denies African-Americans the opportunity to participate in the District's political processes and to elect representatives of their choice, and therefore violates § 2.
The District answered the complaint, but the parties then entered into a lengthy joint stipulation of facts, reserving as a question for trial only "[t]he extent, if any, and statistical significance, if any, of African-Americans within the district having a lower incidence of home ownership than non-Hispanic Whites."
The bench trial that ensued consisted primarily of expert testimony by Appellants' statistical expert, Dr. Ronald G. Faich, and the District's statistical expert, Dr. Michael A. Maggiotto, regarding the relationship, or lack thereof, between race and home ownership in the...
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