Lipscomb v. Jonsson, 71-1451.

• Decision Date: 27 April 1972
• Docket Number: No. 71-1451.,71-1451.
• Citation: 459 F.2d 335
• Parties: Albert L. LIPSCOMB et al., Plaintiffs-Appellants, v. The Honorable Erik JONSSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

459 F.2d 335 (1972)

Albert L. LIPSCOMB et al., Plaintiffs-Appellants, v. The Honorable Erik JONSSON et al., Defendants-Appellees.

No. 71-1451.

United States Court of Appeals, Fifth Circuit.

April 27, 1972.

Edward B. Cloutman, III, Dallas Legal Services Project, James A. Johnston, William L. Garrett, Walter L. Irvin, Robert L. Byrd, Dallas, Tex., for plaintiffs-appellants.

N. Alex Bickley, City Atty., Ted P. MacMaster, Thomas B. Thorpe, Charles C. Wells, Asst. City Attys., Dallas, Tex., for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiffs brought suit seeking to have declared unconstitutional the city-wide, at-large system for electing members of the Dallas, Texas City Council. The district court summarily dismissed the complaint. Because we have concluded that the plaintiffs may be able to prove facts in support of their complaint entitling them to relief, we vacate the judgment below and remand the case for trial.

The Dallas City Charter requires that the city be divided into eight residential districts of City Council elections. Any person seeking election for any of the "places" on the ballot (numbers 1 through 8) corresponding to the eight districts must reside in the district from which he seeks election; three members, elected for "places" 9 through 11, may run without regard to residence. Voting for all eleven Council positions is open to all Dallas residents regardless of the district where they may reside. A candidate from any district is elected only when he receives a majority of the votes cast for councilman for the place for which he is a candidate. If no candidate from a district wins on the first ballot, the charter provides for runoff elections. There are no primary elections, and candidates are listed on the ballot by name only. Every citizen who fulfills the appropriate residence requirement, pays a fee of fifty dollars, and produces a petition containing 300 signatures is entitled to a place on the ballot.

The plaintiffs, appellants here, alleged that they were residents of a geographically definable "Ghetto Area" of Dallas. Their complaint, filed on March 10, 1971, stated two objections to the Dallas City Council Election procedure. First, the plaintiffs contended that the Council had failed to redraw the residence districts for election to the Council. This failure, the complaint alleged, violated a provision of the City Charter requiring the districts to be redrawn every two years; in addition, the unadjusted districts resulted in "substantial disparity of population among the various districts," in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court disposed of this contention on the authority of our decision in Goldblatt v. City of Dallas, 5 Cir. 1969, 414 F.2d 774, and the plaintiffs have not urged it on this appeal.

The plaintiffs' second contention is the focal point of this appeal. The complaint alleged that "under the current system . . . voters in the Ghetto Voting Area have virtually no political force or control over Members of the City Council, because the effect of their vote is cancelled out by other well-established and hostile interest groups in other areas of the City of Dallas." The complaint went on to allege that permitting all Dallas residents to vote for candidates in places 1-8 and for at large places 9-11 "has the invidious effect of diluting the vote of the Ghetto residents living in the Ghetto Voting Area," in violation of the Equal Protection Clause, and the Fifteenth Amendment as well.

The plaintiffs sought a temporary restraining order to enjoin the City from holding elections on April 6, 1971, in accordance with the at-large voting plan. The district court denied the TRO on March 11, 1971. The plaintiffs repeated their request for interim relief by motion for preliminary injunction. It came on for hearing on March 27, 1971. At the conclusion of the hearing, the district court denied the preliminary injunction and, on its own motion, dismissed the plaintiffs' entire cause of action, presumably for failure to state a claim upon which relief could be granted. The court stated that

neither the pleadings nor tendered proof present specific facts in support of plaintiffs\' claim that the Dallas atlarge system has the invidious effect of diluting the racial minority voting strength depriving plaintiffs of equal protection; further, it is clear that plaintiffs cannot present facts necessary to support such a claim. (App. 109-110).

Following the dismissal below, the plaintiffs sought an injunction pending appeal and summary reversal in this Court to prevent the holding of the April 6 elections. A panel of this Court denied both requests, expressly without prejudice to the merits of the appeal.

We are fortunate enough to be able to consider this case in a light that was not available to the district court a year ago. After the district court decision, the Supreme Court handed down its decision in Whitcomb v. Chavis, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363. In Whitcomb, a black resident of the ghetto of Indianapolis, Indiana, sued to challenge a large multi-member district for selecting members of both houses of the Indiana legislature. Eight state Senators and fifteen state representatives were elected at large from Marion County, the county surrounding Indianapolis. The complaint in Whitcomb, like the complaint before us today, asserted a denial of effective respresentation to the ghetto minority. The case went to trial, and a three-judge district court ruled in the plaintiff's favor, ordering that Marion County be divided into single member districts. The district court found the residents of the ghetto area to be an identifiable group, with identifiable legislative interests, and found that ghetto residents were able to elect only a disproportionally small number of Marion County legislators. This underrepresentation, the district court concluded, resulted in an unconstitutional "dilution" of the voting power of ghetto residents.

The Supreme Court reversed the decision of the lower court. The Court began with the premise that, although not per se illegal, multi-member districts "may be subject to challenge where the circumstances of a particular case may `operate to minimize or cancel out the voting strength of racial or political elements of the voting population.'" Whitcomb, supra, 403 U.S. at 143, 91 S.Ct. at 1869, citing Fortson v. Dorsey, 1965, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401, and Burns v. Richardson, 1966, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376. However, a simple showing of disparity between the numbers of ghetto residents and the number of ghetto legislators was not, said the Court, sufficient to prove the invidious "cancelling out" foreseen in Fortson and Burns.

The Court carefully defined the scope of its holding in Whitcomb when it noted two factors not present in that record. First, there was no allegation that the multi-member district for Marion County was "conceived or operated as purposeful device . . . to further racial or economic discrimination." Whitcomb, supra, 403 U.S. at 149, 91 S.Ct. at 1872. Compare Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Sims v. Baggett, M.D.Ala.1965, 247 F.Supp. 96; Smith v. Paris, M.D.Ala.1965, 257 F.Supp. 901, aff'd, 5 Cir. 1967, 386 F.2d 979. Second, there were no "evidence and findings that ghetto residents had less opportunity than did other Marion County residents to participate in the political processes or to elect legislators of their choice." 403 U.S. at 149, 91 S. Ct. at 1872. There was nothing in the record to indicate that poor Negroes were "not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented on those occasions when legislative candidates were chosen." Id. Nor did the...