522 F.Supp. 350 (E.D.Va. 1981), Civ. A. 81-0492, Cosner v. Dalton

Docket NºCiv. A. 81-0492
Citation522 F.Supp. 350
Party NameCosner v. Dalton
Case DateAugust 25, 1981
CourtUnited States District Courts, 4th Circuit, United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

Page 350

522 F.Supp. 350 (E.D.Va. 1981)

Hugh C. COSNER, individually and in his official capacity as Chairman of the Board of Supervisors of Spotsylvania County, Virginia, et al., Plaintiffs.

Board of Supervisors of Hanover County, Virginia; Plaintiff-Intervenor. Board of Supervisors of Chesterfield County, Virginia; Plaintiff-Intervenor,

v.

John N. DALTON, Governor of Virginia, et al., Defendants.

Kathleen K. Seefeldt, individually and in her official capacity as Chairman of the Board of County Supervisors of Prince William County, Virginia, et al., Defendants-Intervenors.

Consolidated Republican Committee of Prince William County, the City of Manassas, and the City of Manassas Park; League of Women Voters of Virginia, Amici Curiae.

James H. ELAM, Jr., Patricia Forbes, Lillie Mae Williams, Layton R. Fairchild, Jr., Barbara Cunningham, Mary T. Jones, and Lesia Annette Dobson, individually and on behalf of others similarly situated, Plaintiffs,

v.

John N. DALTON, Governor of Virginia, et al., Defendants.

COMMON CAUSE, a non-profit membership corporation suing on behalf of its members, et al., Plaintiffs,

Howard E. Copeland, Plaintiff-Intervenor,

v.

Wayne LUSTIG, Chairman, State Board of Elections, et al., Defendants.

Jack W. GRAVELY, Amanda L. Thomas, Thomas E. Jarratt, John R. Mason, Lillie Mae Powell, Roger Perry, Juanita Parker, Alton O. Snead, James F. Gay, Michael A. Battle, Josephine E. Jones, Joseph E. Adams, and Mary Speight, individually and on behalf of others similarly situated, Plaintiffs,

v.

John N. DALTON, Governor of Virginia, et al., Defendants.

Norborne P. BEVILLE, Jr., et al., Plaintiffs,

v.

John N. DALTON, Governor of Virginia, et al., Defendants.

Paula A. FARADAY, et al., Plaintiffs,

v.

John N. DALTON, Governor of Virginia, et al., Defendants.

ELY, Albert L., III, Plaintiff,

v.

Willis M. ANDERSON, Member, State Board of Elections, et al., Defendants.

Civ. A. Nos. 81-0492-R, 81-0516-R, 81-0530-R, 81-0552-R, 81-591-A, 81-0636-A, 81-0145-Roanoke.

United States District Court, E. D. Virginia, Richmond Division.

Aug. 25, 1981

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[Copyrighted Material Omitted]

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Robert F. Brooks, Richmond, Va. (Robert W. Ackerman, Robert M. Rolfe, Hunton & Williams, Richmond, Va., on brief), for Hugh C. Cosner et al.

Peter L. Trible, County Atty., Ashland, Va., for Bd. of Sup'rs of Hanover County, plaintiffs-intervenors.

Steven L. Micas, County Atty., Richmond, Va., for Bd. of Sup'rs of Chesterfield County, plaintiffs-intervenors.

David T. Stitt, County Atty., Fairfax, Va. (Linda Eichelbaum Collier, Asst. County Atty., Fairfax, Va., on brief), for Fairfax County, defendant-intervenor.

Anthony F. Troy, Richmond, Va. (Carter Glass, IV, Kenneth F. Ledford, Mays, Valentine, Davenport & Moore, Richmond, Va., T. A. Emerson, Prince William County

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Atty., Richmond, Va., Norborne P. Beville, Jr., Beville & Eakin, Manassas, Va., G. Richard Pfitzner & Morley, Woodbridge, Va., on brief), for Virginia Beach, Prince William and Manassas defendants-intervenors.

William G. Broaddus, County Atty., Richmond, Va. (Joseph P. Rapisarda, Jr., Michael K. Jackson, Asst. County Attys., Richmond, Va., on brief), for Bd. of County Sup'rs of Henrico County defendants-intervenors.

Alvin J. Schilling, Crossland and Schilling, Woodbridge, Va., on brief for amicus curiae Consolidated Republican Committee.

Nancy A. McBride, Richmond, Va., on brief for amicus curiae League of Women Voters of Va. in No. 81-0492-R.

Frank R. Parker, Washington, D.C. (Stephen W. Bricker, Richmond, Va., William L. Robinson, Barbara Y. Phillips, Lawyer's Committee for Civil Rights Under Law, Washington, D.C. on brief), for plaintiffs James H. Elam, Jr., et al.

William J. Kolasky, Jr., Washington, D. C. (Thomas Rawles Jones, Jr., Judith Barry Wish, Lynne E. Prymas, William D. Brighton, Fern B. Kaplan, Wilmer, Cutler & Pickering, Washington, D. C., on brief), for plaintiffs.

Howard E. Copeland, pro se.

Henry L. Marsh, III, S.W. Tucker, Richmond, Va. (Hill, Tucker & Marsh, Richmond, Va., Thomas I. Atkins, Gen. Counsel, New York City, Michael H. Sussman, Asst. Gen. Counsel, NAACP Sp. Contribution Fund, Washington, D. C., on brief), for Jack W. Gravely et al.

Norborne P. Beville, Jr., pro se (Beville & Eakin, G. Richard Pfitzner, Pfitzner & Morley, Manassas, Va., on brief), for Norborne P. Beville, Jr., et al.

Ervan E. Kuhnke, Dumfries, Va., on brief for Paula A. Faraday et al.

Robert R. Robrecht, Salem, Va., for Albert L. Ely, III, et al.

Robert H. Patterson, Jr., Anne Marie Whittimore, James L. Sanderlin, Richmond, Va. (John S. Battle, Jr., Joseph L. S. St. Amant, McGuire, Woods & Battle, Richmond, Va., on brief), for defendants.

Before BUTZNER, Circuit Judge, and WARRINER, and GLEN M. WILLIAMS, District Judges.

BUTZNER, Circuit Judge:

In these consolidated cases, several counties, organizations, and individuals challenge Virginia Acts of Assembly, 1981 Special Session, Chapter 12, August 11, 1981 (hereafter referred to as the Act of August 11), which reapportioned the electoral districts for the House of Delegates. 1

The defendants are a number of Virginia officials, including those who have responsibility for conducting the State's elections. Various intervenors join the defendants in supporting the entire Act or specific provisions pertaining to their counties and cities.

The plaintiffs and their supporting intervenors attack the Act on one or more of the following grounds:

It violates the Equal Protection Clause of the Fourteenth Amendment because it does not provide for substantial population equality in electoral districts;

It violates the Fourteenth and Fifteenth Amendments because it invidiously discriminates against Virginia's black citizens;

It violates Article IV, s 4 of the United States Constitution by denying Virginians their right to a republican form of government;

It violates the Equal Protection Clause of the Fourteenth Amendment because neither the Census Bureau nor the General Assembly counted as residents of Norfolk, the home port of their fleet, approximately 9,000 naval personnel deployed at sea.

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It violates Article II, s 6 of the Virginia Constitution which provides: "Every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district."

One or more of the plaintiffs and intervenors seek the following relief:

A declaration that the Act of August 11, 1981, is unconstitutional;

An injunction prohibiting the State Board of Elections from conducting an election in 1981 for members of the House of Delegates on the basis of the August 11 Act;

An order requiring the 1981 elections to be conducted on the basis of the 1971 apportionment Act;

An order reapportioning the State into single-member districts;

An injunction requiring the State to include in the population of Norfolk approximately 9,000 naval personnel deployed at sea.

Several parties have recommended alternative redistricting plans. Several intervenors request redistricting of specific counties, leaving the remainder of the August 11 Act intact.

Because we conclude that the Act violates the Equal Protection Clause of the Fourteenth Amendment and we have afforded appropriate relief, we find it unnecessary to discuss in detail each specific complaint.

I

Article II, s 6 of the Virginia Constitution requires the boundaries of its Senate and House of Delegates electoral districts to be redrawn every ten years. The House Privileges and Elections Committee had primary responsibility for the development of a redistricting plan. After receipt of the 1980 census figures in February, 1981, the Committee scheduled a series of public hearings on redistricting throughout the state. Starting on March 20, the Committee considered at least a dozen redistricting plans, including some that proposed a more even distribution of population in each district than the plan eventually enacted.

On April 7, 1981, the Committee reported a plan to the House of Delegates. During the floor debate on April 8, objections were raised charging departures from the one-person, one-vote ideal and dilution of minority voting strength. Nonetheless, the bill was passed by the House. Following Senate approval, the Governor signed the bill on April 10, 1981. 2

The Act then was submitted to the Attorney General of the United States on April 30 for the preclearance required by s 5 of the Voting Rights Act of 1965. 3 On August 1, the Attorney General notified the State that the Act could not be given clearance because some districts in Southside Virginia, 4 "appear(ed) to dilute and fragment black voting strength unnecessarily." 5

The leadership of the House of Delegates and representatives of various interested parties promptly held a series of meetings with Justice Department officials. Eventually, the State and the Department reached an informal understanding of the changes necessary for approval, and the Department agreed to review expeditiously any new enactment of the General Assembly.

On August 11, the Committee held another public hearing at which plans likely to increase the black membership of the House of Delegates through the use of single-member districts were presented. The Committee rejected these plans and approved one incorporating the changes discussed with the Department of Justice. Later

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the same day, the House also rejected a single-member plan and adopted the Committee plan. The Senate promptly approved the House bill and the Governor signed it. 6

The Act of August 11, 1981, was reviewed by the Department of Justice on August 12. Late that afternoon, the Department notified the State that "the Attorney...

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