527 F.2d 44 (7th Cir. 1975), 75--1291, Kendrick v. Walder

Docket Nº:75--1291.
Citation:527 F.2d 44
Party Name:Hattie KENDRICK et al., Plaintiffs-Appellants, v. James WALDER, Individually and as Mayor of the City of Cairo, Illinois et al., Defendants-Appellees.
Case Date:December 16, 1975
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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527 F.2d 44 (7th Cir. 1975)

Hattie KENDRICK et al., Plaintiffs-Appellants,

v.

James WALDER, Individually and as Mayor of the City of

Cairo, Illinois et al., Defendants-Appellees.

No. 75--1291.

United States Court of Appeals, Seventh Circuit

December 16, 1975

Argued Sept. 8, 1975.

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James C. Munson, Keith C. McDole, Philip C. Stahl, John E. Angle, Chicago, Ill., Michael P. Seng, Cairo, Ill., Gerald J. Muller, Chicago, Ill., for plaintiffs-appellants.

John G. Holland, Cairo, Ill., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and SWYGERT and PELL, Circuit Judges.

SWYGERT, Circuit Judge.

The question in this appeal concerns pervasive racial discrimination in Cairo, Illinois, allegedly resulting from the use of at-large elections under a commission form of municipal government. Plaintiffs-appellants, black residents of the City of Cairo, filed a class action seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983. 1 Defendants are officials responsible for conducting city council elections in Cairo. Plaintiffs challenge the actions of these officials taken under the authorization of Illinois Revised Statutes, Chapter 24, §§ 4--3--2, 4--3--5, 2 alleging that these provisions as they operate in Cairo have the effect of depriving them and members of their class of certain rights in violation of the equal protection clause of the Fourteenth Amendment and the provisions of the Fifteenth Amendment which prohibit the denial or abridgment of voting rights on account of race, color, or previous condition of servitude.

Defendants moved to dismiss the complaint in November of 1973. 3Nearly

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fourteen months later the lower court entered its judgment, dismissing plaintiffs' complaint and stating that 'beyond a doubt . . . there is no set of facts that could be proven in support of plaintiffs' claim that would entitle them to relief.' 4 The question for resolution on this appeal is whether plaintiffs have stated a claim upon which relief could be granted under the Constitution of the United States and the Civil Rights Act. We believe they have.

In essence, the plaintiffs contend that, as implemented in Cairo, the provisions of the Illinois statutes permitting communities to adopt a city commission form of government and conduct at-large elections instead of retaining an aldermanic system in which elections are conducted from single-member wards, minimizes, dilutes, and cancels out their voting strength as a group. Plaintiffs further allege that as a result of this dilution, the election of blacks to the Cairo City Council is precluded; the nomination and election of white residents unresponsive to plaintiffs' need and interests are guaranteed; blacks are excluded from appointive positions in the local government; and racial discrimination in the community is enhanced.

Plaintiffs have alleged sufficient facts to constitute a cause of action under the equal protection clause of the Fourteenth Amendment to the United States Constitution. 5 While on its face the use of at-large elections appears to be a neutral system for the election of representatives, its maintenance and use may in fact represent a subtle form of discrimination which operates to disadvantage

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certain Cairo voters. In terms of the question of population equality and apportionment, the at-large system is the fairest, with each voter's vote weighed equally with that of all other persons in the election area. There are no ward lines drawn so as to create an imbalance--the population deviation is zero.

A facially neutral system may operate, however, to dilute, minimize, or cancel out minority voting strength. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), rev'g, 467 F.2d 1381 (5th Cir. 1972). The courts have examined multimember districts for their discriminatory potential under the theory that such a system might dilute the votes of a minority group. 6 The analysis in this line of equal protection cases does not stop with a consideration of whether the one-man, one-vote ideal has been achieved, but reaches beyond mathematical equality to see if the group in question can obtain effective representation within the electoral system as it operates. This is not to suggest that the designation of seats for minority representatives in proportion to their voting strength is compelled (or even permitted) by the equal protection clause, but if, as a result of the method of apportionment, the group is disadvantaged in its use of the ballot, an equal protection claim may exist. White v. Regester, supra; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965).

Where, as here, no official distinctions have been drawn between voters, plaintiffs may still demonstrate that they have been disadvantaged by the system. The inquiry is not conducted in a vacuum, nor in the abstract. The total situation as it exists in the particular locality is considered and an actual impact on voters' rights must be demonstrated:

(t)he plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question--that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. White v. Regester, supra at 766, 93 S.Ct. at 2339 citing Whitcomb v. Chavis, supra at 149--50, 91 S.Ct. 1858.

Plaintiffs in this case have sought the opportunity to make such a demonstration.

Without considering the merits of plaintiffs' claim, it may be beneficial to relate the factual allegations contained in their complaint to the charge that their votes and political effectiveness as a group have been diluted or cancelled out through the use of the at-large system of voting in Cairo. Whether the allegations truly reflect conditions as they exist in that city is a question which must be reserved until after trial in the district court. Lipscomb v. Jonson, 459 F.2d 335 (1972).

In addition to pointing out that since the institution of the at-large system no black has been elected to the city council, a fact which may in itself indicate that minorities have been denied an equal influence in the political process, plaintiffs have set forth allegations in their complaint which indicate that Cairo has been and continues to be a racially polarized community. Plaintiffs state that the continuance of the at-large system furthers polarization and discrimination

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since the dilution of their voting power permits, and perhaps encourages, resort by white candidates to campaign tactics which make race a factor in the elections in Cairo in order to appeal to the white majority. Among the examples which plaintiffs offer to demonstrate that there is a legacy of discrimination in Cairo operating today to disadvantage blacks are: the maintenance until 1952 of a dual school system; the segregation in the schools which continued even after the two systems were consolidated and culminated in the establishment of an all-white, tax-exempt, private school in the 1960's; the division of the city's park into 'black' and 'white' sections which was maintained until 1952; and the continuing discrimination evidence by the labor unions and the employers in Cairo. These, and other nonpolitical factors bolster and give depth to plaintiffs' assertion that the electoral process discriminates against members of their class--the residue of discrimination also encompasses the quality of political life for blacks in Cairo.

The use of an at-large system of voting, not in itself unfair to any individual voter, when imposed on a community with a history and legacy of discrimination against an identifiable group may operate to deny that group an opportunity for effective participation in the electoral system. The portions of plaintiffs' complaint which relate specifically to the operation of the political machinery in Cairo (some of which if isolated might appear neutral or equivocal), take on a new dimension viewed against such a pattern of discrimination. It would, for example, not be inconceivable that plaintiffs could show, as they assert here, that blacks are discouraged from running for office, that any effective political coalitions are impossible between whites and blacks, that whites will not vote for black candidates, and that the election is virtually given to the candidates listed on all-white slates compiled by informal all-white groups. These allegations and others made by plaintiffs, in view of the level of residual discrimination, would support the conclusion that blacks are excluded from the political process. Plaintiffs also contend that the council is not responsive to their interests or needs and is, in fact, hostile to them and members of their class. This fact, if proved, also lends weight to the claim that plaintiffs are denied effective representation by the operation of an at-large voting system in Cairo.

The inquiry the district court must undertake in cases of this nature should focus on the type of facts plaintiffs here have alleged. The central element in their claim is that in this particular set of circumstances they are denied equal protection due to the operation of the electoral system. As the Supreme Court recognized a decade ago in connection with multimember districts:

(d)esignedly or otherwise, a multimember constituency apportionment scheme, under the circumstances of...

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