Paige v. Gray, 75-3314

• Decision Date: 15 September 1976
• Docket Number: No. 75-3314,75-3314
• Parties: Fanny PAIGE et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, Cross-Appellants, v. James GRAY, Mayor of the City of Albany, Georgia, et al., Defendants-Appellants, Cross-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. CITY OF ALBANY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1108

538 F.2d 1108

Fanny PAIGE et al., on behalf of themselves and all others

similarly situated, Plaintiffs-Appellees, Cross-Appellants, v. James GRAY, Mayor of the City of Albany, Georgia, et al.,

Defendants-Appellants, Cross-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. CITY OF ALBANY et al., Defendants-Appellants.

No. 75-3314.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 1976.

James V. Davis, Albany, Ga., for defendants-appellants.

Ronald T. Knight, U. S. Atty., John D. Carey, Asst. U. S. Atty., Macon, Ga., J. Stanley Pottinger, Asst. Atty. Gen., Dennis Dimsey, Appellate Sec., Brian K. Landsberg, Civil Rights Div., Dept. of Justice, Washington, D. C., for United States.

Mary M. Young, Alfred O. Bragg, III, Albany, Ga., David F. Walbert, Atlanta, Ga., for Fanny Paige.

Appeals from the United States District Court for the Middle District of Georgia.

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Named black citizens of Albany, Georgia, joined by the United States, brought this class action to invalidate a 1947 law providing for at-large election of seven city officials. 1947 Ga.Laws p. 725. After finding that the at-large scheme had the inevitable effect of abridging the rights of black voters, the district court devised a plan calling for the election of five city commissioners from single member districts but preserving two positions (mayor and mayor pro tem.) to be chosen at-large. Paige v. Gray, 399 F.Supp. 459 (M.D.Ga.1975). Both sides (except for the United States) appeal. We vacate and remand for re-examination of the basis for the invalidation of the 1947 law and to provide the district court with an opportunity to reassess its adoption of a mixed single member and at-large plan in light of recent Supreme Court pronouncements.

The challenged at-large procedure was enacted by the Georgia Legislature in 1947 close on the heels of this court's eradication of all-white primaries. Chapman v. King, 154 F.2d 460 (5th Cir.), cert. denied, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025 (1946). Prior to 1947, five city commissioners had been elected on a ward basis. 1923 Ga.Laws p. 374. Since 1923, however, two commissioners had been elected at large, and since 1937, these posts have been specifically designated as mayor and mayor pro tem. 1937 Ga.Laws p. 1476.

The end of discriminatory primaries enabled black voters to participate meaningfully in the 1946 ward elections for the first time. The black-preferred candidate (a white) won in Ward 5 where blacks constituted a majority of registered voters. This new-found political strength was quickly eroded by the 1947 legislation which had the effect of transforming a black ward majority into an at-large minority. The legislators were apparently so worried about black voter control that specific provisions were enacted in the 1947 law to guard against filling vacancies in Ward 5. 1947 Ga.Laws p. 734. To compound the problem for blacks a majority vote requirement was instituted in 1959. 1959 Ga.Laws p. 2950. No black has ever been elected under the at-large plan although the population is approximately 40% black. Only seven blacks have run for office; four of these ran in primaries of the Democratic Party.

The district court's invalidation of the at-large scheme relied heavily upon Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the leading case prohibiting racial gerrymandering. Although expressly declining to rule on racial motivation or intent in the passage of the 1947 law, the court concluded that the harmful effect of the legislation caused a violation of the Fifteenth Amendment. 399 F.Supp. at 463-64. The analysis of the constitutionality of the voting statutes was halted at this point. The court refused to apply more recent Fourteenth Amendment precedents dealing with dilution of the black vote in multimember districts, stating that these cases should not be applied "retroactively" to election systems of long standing. Id. at 465-66.

The city and the private plaintiffs complain of the lower court's action. The city contests the ruling on the merits, specifically questioning the applicability of Gomillion to the facts of this case. The private plaintiffs cross-appeal solely on the issue of relief and urge adoption of a single-district plan for all seven city officials. The United States seeks an across-the-board affirmance of the district court's decision.

I. Validity of the 1947 Act

Gomillion involved an attempt by the City of Tuskegee to redraw its municipal boundaries to exclude virtually all black voters. The Gomillion holding has most often been cited as a prohibition against racial gerrymandering or plans drawn along racial lines. See Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Howard v. Adams County Board of Supervisors, 453 F.2d 455, 457 (5th Cir. 1973); Sims v. Baggett, 247 F.Supp. 96, 105 (M.D.Ala.1965) (three-judge court). Since the advent of the dilution decisions there has apparently been no need to resort to Gomillion to eliminate unconstitutional at-large plans. ¹ Moreover, Gomillion and its progeny have recently been interpreted to require proof of racial motivation or a showing that the election scheme was "conceived or operated as purposeful devices to further racial or economic discrimination." Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971). ²

Notwithstanding Gomillion's "inevitable effect" language, it is likely that the Supreme Court will require circumstantial proof of unlawful motive. See Washington v. Davis, --- U.S. ----, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). ³ Thus absent an express finding of discriminatory purpose, the application of Gomillion to the assessment of an at-large election plan's validity may be incomplete. Since we conclude that any evaluation of the 1947 law should be made under more recent and less ambiguous precedents, we do not reach the question of whether the sequence of events leading to the passage of the 1947 Act was sufficiently suspect to compel a finding of racial motivation.

The validity of Albany's change from a ward to an at-large system can best be handled by applying the multifactor test enunciated in the recent dilution decisions of the Supreme Court and this circuit, notably White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). ⁴

The district court's concern with the retroactive application of White and its progeny in this circuit is unwarranted. Prospectivity in the context of an election law challenge relates to the current and continuing use of the challenged enactment; it does not look to the date of enactment alone. The doctrine means no more than that the results of past elections will not be supplanted by special elections. ⁵ It does not constitute a bar against issuing injunctions as to future elections. See Allen v. State Board of Elections, 393 U.S. 544, 571-72, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969). More importantly, the Supreme Court has never indicated that its dilution principles should only be used to test recently enacted provisions. To the contrary, White struck down a multimember scheme which had been in operation since at least 1914, although the specific charter provisions at issue were of more recent vintage.

The dilution decisions recognize that where multimember or at-large schemes are employed, collective strength of black voters may be diluted and the chances of electing representatives who are responsive to minority interests correspondingly lessened. To establish that a plan impermissibly dilutes, the plaintiff must show more than a mere disparity between percentage of minority residents and percentage of minority representation. The proof must affirmatively demonstrate that the affected group has less opportunity to participate in the political process. Zimmer sets the basic standard in this circuit:

Where a minority can demonstrate lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court's recent pronouncement in White v. Regester, supra, demonstrates, however, that all these factors need not be proved in order to obtain relief.

485 F.2d at 1305.

Both the private plaintiffs and the United States seek to justify the district court's decision on the merits by applying the Zimmer factors. The weighing of these factors is ordinarily a trial court function which we will not undertake initially unless the record is so clear as to permit of only one resolution. We do not have to make this latter determination since the case must go back to the district court on the question of the propriety of providing for at-large elections as part of its remedial plan. Therefore, a remand for this inquiry also will not entail any significant increase in the chances for delay.

II. Relief

The United States Supreme Court has very recently emphasized the rule that "when district courts are forced to fashion apportionment plans, single-member districts are preferable to larger multi-member districts as a general matter." Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971). Absent a finding of special circumstances or insurmountable difficulties, the court should shape its...