505 F.2d 879 (5th Cir. 1974), 73-3756, Reese v. Dallas County, Alabama

Docket Nº:73-3756.
Citation:505 F.2d 879
Party Name:F. D. REESE et al., etc., Plaintiffs-Appellants, v. DALLAS COUNTY, ALABAMA et al., etc., Defendants-Appellees.
Case Date:December 30, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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505 F.2d 879 (5th Cir. 1974)

F. D. REESE et al., etc., Plaintiffs-Appellants,

v.

DALLAS COUNTY, ALABAMA et al., etc., Defendants-Appellees.

No. 73-3756.

United States Court of Appeals, Fifth Circuit

December 30, 1974

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J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellants.

W. McLeon Pitts, T. G. Gayle, Cartledge W. Blackwell, Jr., Selma, Ala., for defendants-appellees.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

Plaintiffs appeal from an adverse summary judgment against their challenge to the constitutionality of the districting plan for elections to the County Commission of Dallas County, Alabama. They contend that Dallas County's at-large election system, which requires that candidates be residents of certain districts that are not equally populated, violates the Fourteenth Amendment. Relying on Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1964), the District Court reasoned that the at-large feature of the plan preserved it against constitutional attack. In our view the plan denies 'fair and effective representation' in violation of the Fourteenth Amendment, Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506 (1964), and so we reverse and remand.

I. The Dallas County Districting Plan

The Statement of Agreed Facts submitted to the trial court shows that the County Commission is the governing

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body of Dallas County. Its responsibilities include, among others, building roads and bridges, managing and disposing of county properties, providing sewerage improvements, enforcing state health laws, settling legal claims against the county, and raising and investing county revenues. 12 Ala.Code 11, 12 (1958, 1973 Cum.Supp.).

For the purpose of electing county commissioners Dallas County is divided into four districts (City, South, West, and Fork). Laws of Alabama No. 328 (Feb. 8, 1901) (as amended). 1 The City District, containing the City of Selma, has a population of 27,379-- approximately half of the total for the county. The West, South, and Fork Districts, which are rural areas, have populations of 6,209, 14,203, and 7,505 respectively. Four commissioners and a probate judge, who can vote only to break ties, are elected from these districts. Although all the voters of Dallas County vote for all four commissioners, only one of the candidates residing in each district may be elected. 2 The probate judge may reside in any of the districts.

II. Plaintiff's Prima Facie Case of Invidious Discrimination

A. One Man-- One Vote and Dilution

This case does not present the one man-- one vote issue in its conventional form. It is undisputed that the votes cast in Dallas County elections are of equal weight. Each voter can vote for four candidates, and the election is county-wide. Rather this case is an instance of dilution of equally weighted votes-- of 'minimiz(ing) or cancel(ling) out the voting strength' of a group that has an identifiable set of common interests. Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). The one man-- one vote principle is violated when some votes carry more weight than others. Dilution, in contrast, minimizes the impact of one group's votes, even though they are equal in weight to nondiluted votes. 3 Recent decisions have recognized that 'access to the political process and not population is the barometer of dilution of minority voting strength.' Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1303 & n. 14. See White v. Register, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973).

Dilution, or restriction of 'access to the political process,' is usually accomplished by drawing district lines either to disperse the votes of one faction so that they cannot influence the outcome of elections, or to concentrate those votes in as few districts as possible, thus wasting their strength. In this case none of the familiar devices of dilution,

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such as gerrymandering, is present. The dilution here is alleged to be accomplished by a method usually encountered in one man-- one vote cases: burdening the voters of a particular political unit with an explicit, numerical disadvantage.

B. Testing the Dallas County Plan for Dilution

Because of the explicit, numerical disparity created by the residency requirement, the injury this plan inflicts on Selma voters is apparent on its face. The citizens of Selma are forbidden to elect resident commissioners in proportion to their numbers. 4 They must select candidates who reside not in their subdistrict but who reside in the rural subdistricts to represent Selma's interests. It is to be expected that commissioners who are elected from rural subdistricts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma. Unlike the residents of Selma, the other voters in Dallas County can choose their proportional share of the representative body from among rural candidates who, by reason of their residence in rural areas, can be expected to share their interests.

The Supreme Court and this Court have repeatedly stated that 'lack of provision for at-large candidates running from particular geographical subdistricts' is a signal of unconstitutional dilution of one group's voting strength. Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1305. 'If districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district,' an important element of fair and effective presentation is sacrificed. Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). See White v. Regester, 412 U.S. 755, 766 n. 10, 93 S.Ct. 2332, 2340, 37 L.Ed.2d 314 (1973).

The clear implication of this conclusion is that having representatives who live among constituents is vital to maintain effective representation. Therefore, a districting scheme that inhibits the right of the residents of a subdistrict from electing representatives living in their own area is undeniably an injury. See Moore v. Leflore County Bd. of Election Com'rs, N.D.Miss., 1973, 361 F.Supp. 609, 613, aff'd, 5 Cir., 1974, 502 F.2d 621.

Dallas County has a subdistrict residency requirement, but it falls upon the four subdistricts unequally. The number of commissioners permitted to reside in Selma is less, in proportion to its population, than the number permitted to reside in the other three subdistricts. Selma-- the County's urban area, with half the total population-- is prohibited from having more than one resident commissioner, whereas the three remaining subdistricts-- all rural, with the other half of the population-- have three resident commissioners. Thus Selma, the urban community, is outvoted three to one by the rural areas, even though its population is virtually equal to their populations.

Dilution is established if a districting scheme works an invidious effect on an identifiable group. See, e.g., White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339. In this case identifying the disadvantaged group is simple, because it is described by the boundaries of Dallas County's City District. The discrimination, however, is not based on place of residence alone. The group of voters adversely affected by the plan is virtually coextensive with the group of city dwellers in Dallas County. The voters of Selma confront not only the common concerns that develop among residents of the same area, but also a perspective on local issues that the rural population, with its district social

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and economic interests, is unlikely to share. Defendants' expression of concern at the prospect of a city-dominated county government 5 clearly shows the divergence of interests. Thus the discriminatory effect of the Dallas County plan is political as well as geographical.

Finding an adverse effect on an identifiable group of voters is not sufficient in itself to establish dilution. The effect must be invidiously discriminatory. See Reynolds v. Sims, supra, 377 U.S. at 561, 84 S.Ct. at 1381. Multimember districts are not unconstitutional per se, but they are not constitutional per se either. See White v. Regester, supra, 412 U.S. 765, 93 S.Ct. at 2339. The circumstances of the present case differ significantly from most of the decisions involving multimember districts. The Supreme Court and this Court have upheld multimember districting schemes with residency requirements somewhat similar to the one challenged here. See Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Goldblatt v. City of Dallas, 5 Cir., 1969, 414 F.2d 774. 6 In these cases, however, the subdistricts were equally populated and thus did not cause the discrimination that appears in the present case. 7

The Supreme Court has reviewed a multimember plan with unequally populated residency subdistricts only once. In Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the statute under review provided for a county government of eleven representatives elected at large by the voters of the seven unequally populated boroughs of Virginia Beach, Virginia. That plan resembles the Dallas County arrangement in that residency requirements provided that seven of the representatives must live in different boroughs. The other four representatives, however, were elected without regard to residence. The Court held the plan constitutional. This Court has held, however, that the Dusch-type plan is not immune from constitutional attack. See Lipscomb v. Josson, 5 Cir., 1972, 459 F.2d 335. Like any other multimember plan, the Virginia Beach plan cannot be used to perpetrate a 'denial of effective participation in the political process.' Lipscomb v. Jonsson, supra,...

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