Dove v. Moore

• Decision Date: 27 July 1976
• Docket Number: No. 75-1918,75-1918
• Citation: 539 F.2d 1152
• Parties: William DOVE, Sr., et al., Appellants, v. Charles E. MOORE et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1152

539 F.2d 1152

William DOVE, Sr., et al., Appellants, v. Charles E. MOORE et al., Appellees.

No. 75-1918.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1976.

Decided July 27, 1976.

Charles E. Williams, III, New York City, George Howard, Jr., Pine Bluff, Ark., for appellants; Jack Greenberg, New York City, on brief.

John A. Davis, Bridges, Young, Matthews & Davis, Michael R. Dennis, City Atty., Pine Bluff, Ark., for appellees.

Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH, Senior District Judge. ^*

BRIGHT, Circuit Judge.

In this class action brought by four black residents of Pine Bluff, Arkansas, on behalf of all black voters of that city, William Dove, Sr. and other plaintiffs-appellants attack Pine Bluff's system of electing all eight members of the city council at-large rather than from single-member wards. Plaintiffs-appellants allege that the at-large system operates to discriminate against blacks by diluting their voting power, and, thus, precluding blacks from achieving representation on the city council in proportion to their race. We reject the contentions of the plaintiffs-appellants and affirm the judgment of the district court which determined that Pine Bluff's at-large system meets constitutional standards.

This case has a convoluted history. ¹ The facts are detailed in the reported decisions cited in note 1 supra, and need not be set out at length here. Briefly, they may be stated as follows.

Pine Bluff's population of approximately 58,000 is 40 percent black and 60 percent white. A council composed of eight aldermen governs the city. Two aldermen are required to reside in each of the four wards into which the city is divided. ² However, the elections for each position are held at-large. Every eligible city resident may vote on the candidates for each position and a majority is required for election. Prior to the election a primary is held in the same manner. In both the primary and the general election, if no candidate for a position receives a majority a runoff is held between the two candidates with the greatest number of votes.

There are several "political realities" in Pine Bluff which must be recognized. First, Pine Bluff has a single-party political structure. Success in the Democratic primary is tantamount to election. No Independent or Republican candidate for the office of alderman has been successful for at least the last 50 years. Second, the voters of Pine Bluff have a strong affinity for incumbents. The only time within living memory that an incumbent alderman seeking re-election was defeated occurred in 1936. The record shows that prior to the initiation of this lawsuit in 1968, black candidates ran for the office of alderman on six occasions. All were defeated. However, all of these black candidates ran against incumbent Democratic opponents and on three occasions they ran as Republicans or Independents rather than competing in the Democratic primary.

In 1970, an alderman resigned. To fill this vacancy, the remaining aldermen appointed Mr. Chester Hynes, a black. Shortly thereafter, this appointed term expired. Mr. Hynes ran unopposed and was re-elected. In the 1974 election, Alderman Hynes faced white opposition. The voters adhered to Pine Bluff's "re-election" tradition and elected incumbent Hynes. He received substantial and crucial votes from white voters. For example, in Ward 3, which is 99.6 percent white and contains approximately 40 percent of the entire white population of Pine Bluff, he received 44.5 percent of the vote.

The record contains other evidence of the role of the black residents in city politics. Austin Franks, a white man who served Pine Bluff as mayor from 1964 until early 1975, testified that on his first election approximately 60 percent of the blacks voted for him. When re-elected in 1968, he received approximately 70 percent, and in 1972, 85-90 percent. In his opinion, the support of black voters was absolutely essential to his re-election.

Mayor Franks' resignation in April of 1975 necessitated a special election. Four white candidates and one black candidate sought to succeed Mr. Franks as mayor. All of the white candidates campaigned actively in black areas. One of the white candidates received substantial black support, including the active participation of local black leaders in his campaign. In a group of precincts identified as being from 90 percent to 100 percent black, the white candidates received 25 percent of the vote, and in one such precinct their support was as high as 44 percent. Yet, despite this "diversion" of black votes, the black candidate, Rev. Robert Hanley, received the second highest number of votes cast and thus was in the runoff election, which he lost.

The Pine Bluff primary allows "cross-over" voting. Any registered voter may vote in the Democratic primary and need not decide to do so until after entering the voting booth. Any individual is permitted to run in the Democratic primary. There is no central group or committee whose endorsement, as a practical matter, controls the outcome of the Democratic primary. Blacks can and do hold office in the Pine Bluff Democratic Party; three are members of the local Democratic Central Committee.

At oral argument counsel for plaintiffs conceded that "the electorate of Pine Bluff is the group which controls the democratic process * * * ." However, he argued that because of the tendency of Pine Bluff voters, white and black, to vote for candidates of their own race, the at-large primary unconstitutionally discriminates in favor of the white majority and against the black minority. He argued that because of the winner-take-all aspect of the primary and general election, the white majority occupies a position similar to the white-dominated Dallas Committee for Responsible Government which the Supreme Court found to have manipulated illegally a multi-member legislative district in White v. Regester, 412 U.S. 755, 766-67, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

It is true that at-large elections or multi-member districts have certain objectionable features which lead the federal courts strongly to prefer single-member districting. East Carroll Parish School Board v. Marshall, --- U.S. ----, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam ). ³ Nevertheless the Supreme Court has made it clear that these objectionable features do not render an at-large system unconstitutional per se. White v. Regester, supra; Whitcomb v. Chavis, supra. The constitutional touchstone is whether the system is open to full minority participation, not whether proportional representation is in fact achieved. In White v. Regester, relying primarily upon Whitcomb v. Chavis, the Supreme Court set out the law governing a claim that a multi-member district is racially discriminatory as follows:

(I)t is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The 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. (412 U.S. at 766, 93 S.Ct. at 2339.)

The district court determined that appellants here have not met this burden. That determination is supported by ample evidence which indicates that the black residents of Pine Bluff have full, open, and equal access to the city's political processes. The record demonstrates that they play an active and significant political role in city politics. ⁴ While the at-large system is not designed to maximize the number of minority candidates elected, it serves other values ⁵ and is not an unconstitutional means of implementing the democratic process.

In sum, the appellants' argument rests upon the contention that the at-large election of city officials invidiously discriminates against blacks because blacks vote substantially only for blacks and whites in greater number vote substantially for whites. The argument continues that if the city were divided into single-member wards, blacks would probably control more than one ward and could thus elect more than one black alderman. This change to single-member districts is said to be essential to allow Pine Bluff's black voters full and equal access...