509 F.2d 1389 (5th Cir. 1975), 74--1467, Gilbert v. Sterrett

Docket Nº:74--1467.
Citation:509 F.2d 1389
Party Name:Ethelyn GILBERT et al., Plaintiffs-Appellants, v. W. L. STERRETT, Dallas County Judge, et al., etc., Defendants-Appellees.
Case Date:March 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1389

509 F.2d 1389 (5th Cir. 1975)

Ethelyn GILBERT et al., Plaintiffs-Appellants,

v.

W. L. STERRETT, Dallas County Judge, et al., etc.,

Defendants-Appellees.

No. 74--1467.

United States Court of Appeals, Fifth Circuit

March 24, 1975

        Rehearing and Rehearing En Banc

        Denied June 16, 1975.

Page 1390

        Edward B. Cloutman, III, Walter Irvin, John F. Jordan, Dallas, Tex., for plaintiffs-appellants.

        Mel Price, pro se.

        John Whittington, pro se.

        Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Earl Luna, Thomas V. Murto, III, Dallas, Tex., for Sterrett, Tyson, Orr.

        Appeal from the United States District Court for the Northern District of Texas.

        Before RIVES, GODBOLD and INGRAHAM, Circuit Judges.

        RIVES, Circuit Judge:

        This class action, filed on May 5, 1972, challenged the apportionment in 1971 of County Commissioners' precincts or districts of Dallas County, Texas, alleging racial gerrymander or, alternatively, the effect of diluting the vote of black citizens. The named plaintiffs are black voters in Commissioners' Precincts 3 and 4. The defendants are the County Judge and the four County Commissioners. At a pretrial conference on April 16, 1973, it was agreed that the case would be passed until the Commission redistricted itself in August, 1973. A new plan was adopted which plaintiffs alleged failed to cure the defects in the 1971 plan. The case was tried, beginning January 15, 1974. The district court entered its judgment on January 30, 1974, denying relief to the plaintiffs. This appeal ensued.

        On appeal the plaintiffs-appellants contend that the district court either applied the wrong standard of law or was clearly erroneous in its findings of fact. We affirm.

        The constitutional test actually applied by the district court was stated in its opinion as follows:

'It is well established that to prove the existence of a constitutionally impermissible redisricting (sic) plan in the absence of malapportionment, plaintiffs must show (1) a racially motivated gerrymander, or a plan drawn

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along racial lines,3 or (2) the apportionment

plan would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.4 An apportionment

scheme is not constitutionally impermissible merely because its lines are not carefully drawn to ensure representation to sizable racial, ethnic, economic or religious groups.5

        (App. p. 102.)

        Though stated in different language, that standard of law does not differ materially from the standard as variously stated by this Court in Zimmer v. McKeithen (en banc), 5 Cir. 1973, 485 F.2d 1297, 1303; Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191, 193--197; Moore v. Leflore County Board of Election Commissioners, 5 Cir. 1974, 502 F.2d 621, 623, 624; Robinson v. Commissioners Court, Anderson County, 5 Cir. 1974, 505 F.2d 674.

        Dallas County contains several incorporated municipalities, the largest being the City of Dallas. According to the 1970 Census, the population of the County was 1,327,321, of which 72.59% were white, 16.61% black, 6.26% Mexican-American, and 4.54% unknown. Approximately 90% of the black population lived in the City of Dallas and were nearly all concentrated in one part of the City.

        The Commissioners' Court is the governing and legislative body for the County, charged with the County's 'general operation,' with the approval of the budget of county departments and of elected county officials, and with the appointment of members of the boards of the County Hospital and of the County Welfare Department. The Commissioners' Court is comprised of four commissioners, elected from precincts or districts, and the County Judge, elected from the County-at-large. Historically, the precincts or districts have been formed by dividing the County into quadrants: district one-northwest quadrant, district two-northeast quadrant, district three-southeast quadrant, district four-southwest quadrant. The Commissioners' Court has authority in odd-numbered years to revise boundaries of the districts. Every even-numbered year two commissioners are elected for four-year terms. Commissioners from districts 1 and 3 run in presidential election years, while those from districts 2 and 4 run in other even-numbered years.

        In the 1971 plan, the Commissioners' Court satisfied the constitutional requirement of 'one man, one vote,' but was challenged as being racially discriminatory. Specifically the complaint charged that the north-south boundary line between districts 3 and 4 was a gerrymander which had the effect of removing a square-shaped area, densely populated with black citizens, out of district 3 and placing it in district 4, thus preventing the election of a black resident of district 3 and diluting 'the black vote that existed in old Precinct District Three.'

        In the 1973 plan, the Commissioners' Court substantially straightened the 1971 peculiarly shaped boundary line between districts 3 and 4 without creating inequality of population between the two districts. While the 1971 plan had shifted black voters out of district 3 into district 4, the 1973 plan had the opposite effect. The district court found '(u)nder the 1971 plan, 26.9% of the population in district three and 29.0% in district four were black. Under the 1973 plan 38.6% and 16.9% in districts three and four, respectively, were black. The overall effect of the 1973 plan was to shift approximately one-fourth of the black population from district four to district three.' (App. 104.)

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        The district court found no substantial evidence that the adoption of either plan was racially motivated, and that finding is not seriously contested. Certainly that finding is not clearly erroneous.

        The plaintiffs-appellants no longer claim any constitutional infirmity in the 1971 plan. Their expert political analyst testified that, in his opinion, the 1971 plan did not dilute, minimize or cancel out the voting strength of any minority group in district 3 or 4. The 1973 plan is now the target of the attack.

        In our opinion the district court adequately answered that attack as follows:

'Plaintiffs' contention that the 1973 plan dilutes and cancels out the black vote is principally based on the testimony of political analyst Dan Weiser's projection of black population growth in Dallas County. According to Weiser the 1973 plan assures that there would not be a possibility of a black majority in any commissioner district until 1985. This forecast is based on two assumptions: (1) that 80% of the black growth from the present until 1985 will be in district four, which under the 1973 plan, has 16.9% of the black population and (2) that the total population growth in Dallas County would be uniform in each district so that the county would not have to be reapportioned again until 1985. While there is some probative evidence to support Weiser's first assumption, and no evidence to support the second, this court is of the opinion that an apportionment plan that presently passes constitutional muster but which may dilute black voting strength ten years hence, does not compel a determination that the existing plan is constitutionally impermissible.

'The 1973 plan increased the percentage of black voters in district three from 26.9% to 38.6% when the total black population in Dallas County is 16.6%. Also the percentage of minority voters in district three was increased from 36.6% to 46.5% when the total minority population in Dallas County is 23.5%. Further, the existing black and minority composition in commissioner district three is more favorable to blacks and minorities than Congressional and state senatorial districts located in the Dallas County area.

'This court is of the opinion that the 1973 plan does not dilute the voting strength of black voters. Even assuming that 80% of the black population growth between the present and 1985 will be in district four there is no evidence that the 1973 plan will be the same plan utilized in 1985. The past history of Dallas County reflects that there has not been uniform population growth in the commissioner's (sic) districts and that commissioners court has had to periodically redistrict to satisfy the constitutional requirement of 'one-man, one-vote.' There has been no showing that uneven population growth among the districts and periodical redistricting will not occur in the future.

'This court is of the opinion that to require the Commissioners Court of Dallas County to reapportion commissioners districts in 1973 based on projected 1985 population statistics is beyond the constitutional mandate of Burns v. Richardson (384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 876 (1966)), supra. Such a requirement in this case would result in mathmatical (sic) inaccuracies and the adoption of a plan which would presently dilute the voting strength of blacks in the commissioners districts of Dallas County.

'There is no evidence that in the elections to be held in 1974 or...

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