Stabler v. County of Thurston, Neb., s. 96-2964
| Decision Date | 01 December 1997 |
| Docket Number | 96-3111,Nos. 96-2964,s. 96-2964 |
| Citation | 129 F.3d 1015 |
| Parties | Hollis D. STABLER, Jr.; Sharon Freemont; Omaha Tribal Historical Project, Inc.; Red Feather Family Services, Inc., Plaintiffs-Appellees, v. COUNTY OF THURSTON, NEBRASKA; Mark Casey, in his official capacity as Chair of the Board of Supervisors of Thurston County, Nebraska, Defendants-Appellants. Thurston County School District 13, Thurston County, Nebraska; Village of Walthill, Nebraska; Steve Dunn, in his official capacity as Chair of the Village of Walthill Board of Trustees; Patricia Higgins, in her official capacity as County Clerk of Thurston County, Nebraska; Keith Mahaney, in his official capacity as President of Thurston County School District 13, Defendants. Hollis D. STABLER, Jr.; Sharon Freemont; Omaha Tribal Historical Project, Inc.; Red Feather Family Services, Inc., Plaintiffs-Appellants, v. COUNTY OF THURSTON, NEBRASKA; Mark Casey, in his official capacity as Chair of the Board of Supervisors of Thurston County, Nebraska, Thurston County School District 13, Thurston County, Nebraska; Village of Walthill, Nebraska; Steve Dunn, in his official capacity as Chair of the Village of Walthill Board of Trustees; Patricia Higgins, in her official capacity as County Clerk of Thurston County, Nebraska; Keith Mahaney, in his official capacity as President of Thurston County School District 13, Defendant--Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Neal E. Stenberg, Lincoln, NE, argued, for appellant.
Neal Bradley, Atlanta, GA, argued (Lauglin McDonald, Maha Zaki, Christina Correia, Mary Wyckoff, on the brief), for appellee.
Before McMILLIAN, ROSS and FAGG, Circuit Judges.
Defendant County of Thurston, Nebraska (Thurston County), appeals from a final order entered in the United States District Court 1 for the District of Nebraska holding that the districting plan for the election of the Thurston County Board of Supervisors (the County Board) violates section 2 of the Voting Rights Act of 1965(§ 2), as amended, 42 U.S.C. § 1973, and ordering Thurston County to create a third majority-minority district for such elections. Stabler v. County of Thurston, No. 8:CV93-00394 (D.Neb. Aug. 29, 1995). For reversal, Thurston County argues that the district court erred in: (1) considering total population and voting age population to determine proportionality; (2) applying the totality of the circumstances test; and (3) finding that the districting plan violated § 2. Plaintiffs Hollis D. Stabler, Jr., Sharon Freemont, Omaha Tribal Historical Project, Inc., and Red Feather Family Services (collectively, "plaintiffs") cross-appeal from that part of the order entered in favor of defendants Thurston County School District 13 (School District 13) and Village of Walthill (the Village) holding that the districting plan used to elect both the District's school board (the School Board) and the Village's Board of Trustees (the Village Board) does not violate § 2 or the First, Thirteenth, Fourteenth, or Fifteenth Amendments to the United States Constitution. Id. On cross-appeal, plaintiffs argue that the district court erred in holding that plaintiffs failed to satisfy the three Gingles 2 preconditions for a § 2 claim. For the reasons discussed below, we affirm the order of the district court.
Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1343(a)(4), and 2201. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notices of appeal and cross-appeal were timely filed under Fed.R.Civ.P. 4(a).
The following facts are taken from the district court's memorandum opinion. Slip op. at 1-2, 6-8, 19-20. The Omaha and Winnebago Indian Reservations are located in eastern Thurston County, which lies in northeast Nebraska. Accordingly, Thurston County has a substantial Native American population concentrated in the eastern half of the county. The Village is a small community located in eastern Thurston County. School District 13, which serves the Village and the surrounding area, has a student body population which, during the 1994-1995 school year, was 80% Native American. 3 The individual plaintiffs, Hollis Stabler, Jr., and Sharon Freemont, are Native American citizens and voters in Thurston County, School District 13, and the Village. The organizational plaintiffs, Omaha Tribal Historical Project, Inc., and Red Feather Family Services, are located in Thurston County.
In 1979, the County Board entered into a consent decree which created its current method of election. The County Board is composed of seven members elected from single-member districts, with each member holding a four-year term. Members are nominated in partisan primary elections and elected in general elections in even numbered years. Four members (Districts 1, 3, 5, and 7) are elected in gubernatorial election years, while three members (Districts 2, 4, and 6) are elected in presidential election years. The County Board drew the district lines to create two Native American majority districts, providing Native Americans in Thurston County with representation on the County Board in proportion to their 28.5% share of the total population in 1979. (Two of seven County Board seats = 28.57%.) Following the 1980 census, the County Board redistricted and again created two Native American majority districts. At that time, non-whites made up 33.8% of Thurston County's total population. 4 According to the 1990 census, of Thurston County's total population, 43.92% are Native Americans and 55.67% are whites. Of Thurston County's voting age population (VAP), 35.9% are Native Americans and 63.54% are whites.
Following the 1990 census, the County Board created the districting scheme challenged by plaintiffs. In Districts 4 and 6, which are the majority-minority districts, Native Americans constitute a majority of the total population (87.9% and 96.9%, respectively) and the VAP (82.8% and 94.5%, respectively). Whites constitute a majority of the total population and the VAP in the other five districts. However, in Districts 2, 3, and 5, Native Americans represent a substantial portion of the total population (41.2%, 30.9%, and 46.3%, respectively) and the VAP (36.9%, 22.7%, and 36.4%, respectively). Only Districts 1 and 7 contain nominal Native American populations.
The School Board is composed of six members, each elected at-large to a four-year term. Three members are elected every two years in a non-partisan primary election in May and a non-partisan general election in November. The winners in each primary election are the top six finishers determined by a plurality vote method, and the winners of the general election are the top three finishers by plurality vote.
The Village Board is composed of five members, each elected at-large to a four-year term. Three members are elected in a non-partisan general election held in May of the gubernatorial election year, and two members are elected in a general election held in May of the presidential election year. The winners in each general election are the top three (or two) finishers determined by a plurality vote method.
Plaintiffs filed suit against Thurston County, School District 13, and the Village, alleging that the districting plan used to elect the County Board and the at-large method used to elect the School Board and the Village Board violate § 2 of the Voting Rights Act of 1965 and the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution by diluting the voting strength of Native Americans in Thurston County and in the Village. Plaintiffs alleged that the current districting system used to elect the County Board packs most of Thurston County's Native American population into Districts 4 and 6 and fragments the remaining Native American population among Districts 2, 3, and 5. Because the Native American population in Thurston County has increased, as a percentage, from 28.5% in 1979 to 43.92% in 1990, plaintiffs sought the creation of a third Native American majority district for the election of the County Board. Plaintiffs also sought to implement single-member or multi-member districting plans for the election of the School Board and the Village Board. Regarding the School Board, plaintiffs offered two alternative districting plans: one plan features two three-member districts; the other plan features six single-member districts. Regarding the Village Board, plaintiffs offered a plan featuring two single-member districts and one three-member district.
The district court conducted a bench trial on the issues from May 30, 1995, until June 2, 1995. With respect to the County Board, the district court found that it is possible to create another majority-minority district because: the minority group (Native Americans) is sufficiently large and geographically compact; the minority group is politically cohesive; and the white majority votes sufficiently as a bloc to enable it to defeat the minority's preferred candidate. Slip op. at 13-15. The district court then examined the totality of the circumstances, determined that the County Board's districting plan does not provide Native American voters representation on the County Board which is "roughly proportional" to their total and voting age populations, and concluded that the challenged plan violates § 2 by diluting the voting strength of Native American voters. Id. at 18. The district court ordered the County Board to submit a districting plan to create a third Native American majority single-member district. Id. The County Board timely submitted a plan and subsequently submitted an amended plan to correct some mathematical errors. The amended remedial plan was approved by the district court on June 26, 1996, and is scheduled to be phased into place beginning with the 1998 elections.
With respect to the School Board and the Village Board, the...
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