Taylor v. McKeithen

• Decision Date: 21 August 1974
• Docket Number: No. 71-2783.,71-2783.
• Citation: 499 F.2d 893
• Parties: Dorothy TAYLOR et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Governor of Louisiana, et al., Defendants-Appellants-Appellees. Victor BUSSIE et al., Plaintiffs-Appellees-Appellants, v. The GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees (two cases). Emmitt J. DOUGLAS et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Individually and as Governor of Louisiana, et al., Defendants-Appellants-Appellees. Carroll G. MILLER et al., Plaintiffs-Appellees-Appellants, v. GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

499 F.2d 893 (1974)

Dorothy TAYLOR et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Governor of Louisiana, et al., Defendants-Appellants-Appellees.

Victor BUSSIE et al., Plaintiffs-Appellees-Appellants, v. The GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees (two cases).

Emmitt J. DOUGLAS et al., Plaintiffs-Appellees-Appellants, v. John J. McKEITHEN, Individually and as Governor of Louisiana, et al., Defendants-Appellants-Appellees.

Carroll G. MILLER et al., Plaintiffs-Appellees-Appellants, v. GOVERNOR OF LOUISIANA et al., Defendants-Appellants-Appellees.

No. 71-2783.

United States Court of Appeals, Fifth Circuit.

August 21, 1974.

Thomas W. McFerrin, Asst. Atty. Gen., Baton Rouge, La., Adrian G. Duplantier, Nat G. Kiefer, Michael H. O'Keefe, New Orleans, La., for defendants-appellants.

Claude Berwick Duval, Houma, La., amicus curiae.

Stanley A. Halpin, Jr., New Orleans, La., Camille F. Gravel, Jr., Alexandria, La., Sam A. LeBlanc, III, New Orleans, La., Murphy W. Bell, Baton Rouge, La., Martin L. Feldman, Robert F. Collins, George M. Strickler, Jr., New Orleans, La., for plaintiffs-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

This case involves a racial gerrymander not by a state legislature but by a federal district court. The trial judge was well intentioned, of course, but his plan for drawing the boundaries of four state senate voting districts in New Orleans cannot be considered "benign districting" as the Supreme Court used that term in remanding this case to the Court of Appeals.

This litigation started as a frontal attack on the self-reapportionment of the Louisiana legislature under Acts 107 and 108 of 1970. In 1971, in five suits the plaintiffs attacked the legislative reapportionment plan as violative of the one man, one vote principle and as racially discriminatory. The trial judge, the Honorable E. Gordon West, consolidated the cases and appointed a special master, Edward J. Steimel, to recommend a plan that would comply with legal standards for legislative apportionment.¹ The trial judge approved the Steimel plan without any deviation. 333 F.Supp. 452. This Court affirmed the judgment, except with respect to four senatorial districts in Orleans and three in East Baton Rouge Parishes.² As to these seven senatorial districts, we approved alternate plans submitted by interested state senators. The judgments of both courts represented an almost total defeat for the Louisiana Attorney General, who had defended the statutory reapportionment and had attacked the Steimel plan largely on the ground that it contained all single-member districts in both Houses, in disregard of state policy allowing multi-member districts.

The litigation has now narrowed to a dispute over senate districts 2, 3, 4, and 5, four of the seven senate districts in Orleans Parish. (The parish is coterminous with the City of New Orleans.) This Court approved a plan for these districts proposed by incumbent State Senators Adrian G. Duplantier, Ignatz G. Kiefer, Michael H. O'Keefe, and Theodore H. Hickey. The first three of these senators, all attorneys, were associated by the Attorney General as cocounsel for the State after we had remanded the case to the district court for a hearing on the special master's plan; the district court first approved the plan without a hearing. The real adversaries here are these senators³ and Mrs. Dorothy Taylor, a black member of the Louisiana House of Representatives, who brought one of the class actions attacking Acts 107 and 108.

The United States Supreme Court, on Mrs. Taylor's petition for writ of certiorari, remanded the case to our Court, 407 U.S. 191, 92 S.Ct. 1980, 32 L.Ed.2d 648, "because this record does not fully inform the Supreme Court of the precise nature of the litigation and because the Supreme Court has not had the benefit of the insight of the `Court of Appeals'." The Supreme Court stated that the Court of Appeals "without opinion ... adopted the Attorney General's alternative division of New Orleans".⁴ The Supreme Court, in its per curiam opinion, said:

An examination of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional "safe" white districts. If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 91 S.Ct. 1267, 28 L.Ed.2d 554, are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U.S. 339 81 S.Ct. 125, 5 L.Ed.2d 110, and Wright v. Rockefeller, 376 U.S. 52, 57, 67 84 S.Ct. 603, 11 L. Ed.2d 512.

In this Court's short, earlier decision we did not reach the important federal question that concerned the majority of the Supreme Court.

The district court, in effect, admittedly approved Steimel's structuring of the four districts for the purpose of maximizing the black voting strength in two districts to ensure two safe black senate seats. But this racial gerrymander rested on a premise that was patently erroneous. It is true that the Senators' plan relies heavily on historical boundaries, wards in the City of New Orleans. It is also true that the trial judge said: "as brought out in the evidence, it was this policy and these `historical' boundaries that produced but two negro legislators ... during the Twentieth Century". He concluded: "`Historical' boundaries of voting districts in Louisiana reflected a history of racial discrimination. Adherence to the historical boundaries alluded to by objectors had been the prime reason why only two negroes had been allowed to sit in the Louisiana Legislature in the last 75 years." The Supreme Court quoted this language in its opinion. It is understandable that this language should (unintentionally, of course) mislead the Supreme Court.

There is absolutely nothing in the record to support such a "finding". As a statement of Louisiana history, it is an error of monumental magnitude.

The heavy concentration of black votes in Steimel districts 2 and 4 could be accomplished only by diluting the black vote to negligible effectiveness in districts 3 and 5 which would then become super-safe white districts. The Steimel districts disregarded historical boundaries and were as multi-sided as the "uncouth" gerrymandered district in Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. The Senators' plan observed historical ward boundaries as nearly as possible, but differs as radically from the statutory plan embodied in Act 108 as it differs from the Steimel plan.⁵ In contrast to the latter, the districts are compact, contiguous, mini-sided; and, considering the shrinking white population, the increasing black population, and the accelerating black registration in New Orleans, the Senators' plan gave black voters in the four districts better access to participation in the election of state legislators than the Steimel plan. We did not and do not think that "the only alternative to the Steimel plan was to leave intact the traditional `safe' white districts".

Historically, there has never been any nexus whatever in Louisiana between the establishment of traditional political boundaries and the denial of access of blacks to the state legislature.⁶ In this century, until this Court compelled parish registrars of voters to register blacks and until the Voting Rights Act of 1965 was enacted and enforced, blacks could not be elected to the Louisiana legislature—to be blunt—because there were no black voters. It is as simple as that. Since adoption of the Louisiana Constitution of 1898 and until recently, the legislature disfranchised blacks overtly; it was never necessary for the legislature to resort to covert disenfranchisement of blacks by manipulating the boundaries of legislative voting districts.

This case, therefore, was not one of benign districting to overcome the residual effects of discriminatory districting. And the Senators' alternative plan was, in our opinion, more effective than the district court's gerrymander in allowing blacks access to the political processes involved in electing lawmakers responsive to the needs of their constituents. Instead of the case presenting the important constitutional and federal questions the Supreme Court raised, the case presented the question whether the district court's purposeful, racial gerrymander was an abuse of judicial discretion.

On remand, this Court requested and received additional briefs. The New Orleans Senators, still in their capacity as co-counsel for the State, and Mrs. Taylor were, of course, the only parties to file briefs on the remand. We have fully reconsidered the case. With due deference to the Supreme Court, we must say that the record and Louisiana history compel us to adhere to our earlier decision. We see no purpose to be served by remanding the case for the district court to construct a "less drastic alternative"; for one black has already been elected from the Senators' district 4, one of the districts the trial judge characterized as a "safe" white district from which it would be "impossible" to elect a black. The population and registration figures suggest that a black senator may also be elected from district 2; and in districts 2, 3, and 5 blacks have sufficient population and registration to have the balance of power.

A month after the Supreme Court remanded the case to this Court, Act 457 of 1972 became law. In this statute the Louisiana Legislature reapportioned itself in accordance with the district court's plan as modified by the Court of Appeals.

We proceed now from this...