U.S. v. Blaine County, Montana, 02-35691.

• Decision Date: 07 April 2004
• Docket Number: No. 02-35691.,02-35691.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. BLAINE COUNTY, MONTANA; Don K. Swenson, in his official capacity as a member of the Blaine County Board of Commissioners; Arthur Kleinjan, in his official capacity as a member of the Blaine County Board of Commissioners; Victor J. Miller, in his official capacity as a member of the Blaine County Board of Commissioners; Sandra Boardman, in her official capacity as Clerk and Recorder and Superintendent of Elections for Blaine County, Montana, Defendants-Appellants, v. Joseph F. McConnell; Franklin R. Perez; Candace D. De Celles; Cheryl Sears; Wesley D. Cochran; Linda M. Buck; Donald L. Knife; Daniel Kinsey; Fort Belknap Community Council, Plaintiff-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.3d 897

UNITED STATES of America, Plaintiff-Appellee, v. BLAINE COUNTY, MONTANA; Don K. Swenson, in his official capacity as a member of the Blaine County Board of Commissioners; Arthur Kleinjan, in his official capacity as a member of the Blaine County Board of Commissioners; Victor J. Miller, in his official capacity as a member of the Blaine County Board of Commissioners; Sandra Boardman, in her official capacity as Clerk and Recorder and Superintendent of Elections for Blaine County, Montana, Defendants-Appellants, v. Joseph F. McConnell; Franklin R. Perez; Candace D. De Celles; Cheryl Sears; Wesley D. Cochran; Linda M. Buck; Donald L. Knife; Daniel Kinsey; Fort Belknap Community Council, Plaintiff-Intervenors-Appellees.

No. 02-35691.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2003.

Filed April 7, 2004.

COPYRIGHT MATERIAL OMITTED

J. Scott Detamore, Lakewood, Colorado, for the appellants.

Lisa Wilson Edwards, United States Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the District of Montana; Philip M. Pro, District Judge, Presiding. D.C. No. CV-99-00122-PMP.

Before: WARDLAW, GOULD, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge:

Section 2 of the Voting Rights Act prohibits any voting procedure that results in a denial of the right to vote. 42 U.S.C. § 1973. The United States brought this section 2 action against Blaine County alleging that the County's at-large voting system for electing members to the County Commission prevents American Indians from participating equally in the County's political process. The district court determined that section 2 was a constitutional exercise of Congress's powers under the Fourteenth and Fifteenth Amendments, and that Blaine County's at-large voting system violated section 2. In this appeal, Blaine County challenges both of those rulings.¹ We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Blaine County, located in north central Montana, is vast and sparsely populated. Its 7,009 residents are spread out over 4,638 square miles, which places the County in the top 5 percent of counties nationwide in terms of size. American Indians constitute 45.2 percent of the population and 38.8 percent of the voting age population, while whites make up 52.6 percent of the population and 59.4 percent of the voting age population. The American Indian population is geographically concentrated with 80 percent of the County's American Indians residing on the Fort Belknap Reservation. Despite their geographic concentration, no American Indian was ever elected to the Blaine County Commission under the at-large voting system.

That system worked as follows. The Blaine County Commission consists of three commissioners, each of whom must reside in one of three different residential districts. Each commissioner is elected by a majority vote of the entire county, not just by voters in the commissioner's residential district. The commissioners serve six-year staggered terms, such that each even-numbered year one commissioner stands for election.

The United States brought this action under section 2 and section 12(d) of the Voting Rights Act of 1965 challenging the County's at-large voting system. The United States sought a declaration that the existing at-large voting system violates section 2. The United States also sought an injunction to prevent the County from using at-large voting in future elections and to require the County to submit a new districting plan for the district court's approval.

The County moved for summary judgment on the ground that section 2 was unconstitutional because it exceeded the scope of Congress's powers to enforce the Fourteenth and Fifteenth Amendments. The district court ruled that section 2 did not exceed Congress's power and denied the motion. See United States v. Blaine County, 157 F.Supp.2d 1145 (D.Mont. 2001).

The case then proceeded to a court trial. In its post-trial Findings of Fact and Conclusions of Law and Order, the district court determined that Blaine County's system of staggered at-large elections for County Commissioner violated section 2. The court found that American Indian voters were sufficiently geographically compact and politically cohesive to elect a County Commissioner of their choice, but that Blaine County's white residents voted as a bloc to prevent American Indians from electing their preferred candidates. It then analyzed the totality of the local circumstances, and held that there was (1) a history of official discrimination against American Indians, (2) racially polarized voting, (3) voting procedures that enhanced the opportunities for discrimination against American Indians, (4) depressed socio-economic conditions for American Indians, and (5) a tenuous justification for the at-large voting system. Accordingly, the district court held that the totality of the circumstances weighed in favor of a section 2 violation.

The district court declared that the at-large voting system in Blaine County violated section 2, and enjoined the use of such an election system in the future. It also ordered the County to file an election plan that would remedy the section 2 violation. The district court subsequently adopted the County's proposed remedial plan, which provides for three single-member districts.² Blaine County does not appeal the remedy adopted by the district court. However, the County does appeal the district court's ruling that section 2 is constitutional and declaration that Blaine County's at-large voting scheme violated section 2.

II.

As originally enacted in the Voting Rights Act of 1965 ("VRA"), section 2 merely restated the prohibition contained in the Fifteenth Amendment.³ The VRA's most sweeping provision was section 5, which required "covered" jurisdictions with a history of voting discrimination⁴ to preclear any change in voting practices or procedures with the United States Department of Justice. 42 U.S.C. § 1973c (1965). The 1965 Act also banned literacy tests in covered jurisdictions, and permitted the federal government to appoint federal registrars and election observers. Shortly after the VRA's enactment, the Supreme Court held in South Carolina v. Katzenbach that Congress constitutionally enacted section 5, the limited ban on literacy tests, and the appointment of federal monitors pursuant to its power under the Fifteenth Amendment. 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

The VRA was first amended in 1970 when Congress made the ban on literacy tests nationwide for a five-year period. Although the Supreme Court had held in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), that literacy tests were not unconstitutional per se, it upheld Congress's power to enact the five-year nationwide ban on literacy tests. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Congress again amended the VRA in 1975, making the nationwide literacy test ban permanent and extending the VRA's protections to language minorities.

During the 1970s, voting rights lawsuits increasingly relied on section 2 to remedy voting discrimination. In a series of cases, the Supreme Court and lower courts interpreted section 2 to require plaintiffs to show under the totality of the circumstances that the challenged system operated "to cancel out or minimize the voting strength of racial groups." White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); see also Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973).

However, in 1980, the Court held in City of Mobile v. Bolden that Congress intended section 2 to regulate only conduct prohibited by the Fifteenth Amendment. 446 U.S. 55, 60-61, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Because the Fifteenth Amendment only prohibited intentional discrimination, a violation of section 2 required a showing that the challenged procedure was adopted with the intent to discriminate. Id. at 62, 100 S.Ct. 1490. That same day, however, the Supreme Court held in City of Rome v. United States that section 5's "ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting." 446 U.S. 156, 177, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Thus, although the Court interpreted section 2 of the VRA to prohibit only purposeful discrimination, the Court recognized Congress's power to enact legislation that prevented voting procedures that had discriminatory results.

In response to Bolden and pursuant to its Fourteenth and Fifteenth Amendment enforcement powers, Congress amended section 2 to clarify that it was a results test. S.Rep. No. 97-417, at 15-16, 39 (1982), U.S.Code Cong. & Admin.News at 177, 192-93. Section 2, as amended by the 1982 Voting Rights Act, provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973(b), as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice....