Lipscomb v. Wise, 75-2605

• Decision Date: 09 May 1977
• Docket Number: No. 75-2605,75-2605
• Citation: 551 F.2d 1043
• Parties: Albert L. LIPSCOMB et al., Plaintiffs-Appellants Appellees, v. The Honorable Wes WISE, Mayor of the City of Dallas, et al., etc. Defendants-Appellees, v. Adelfa B. CALLEJO et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1043

551 F.2d 1043

Albert L. LIPSCOMB et al., Plaintiffs-Appellants Appellees, v. The Honorable Wes WISE, Mayor of the City of Dallas, et al., etc. Defendants-Appellees, v. Adelfa B. CALLEJO et al., Intervenors-Appellants.

No. 75-2605.

United States Court of Appeals, Fifth Circuit.

May 9, 1977.

Sylvia M. Demarest, Dallas, Tex., Dallas Legal Services Foundation, Inc., Edward B. Cloutman, III, James A. Johnston, Walter L. Irvin, Dallas, Tex., for plaintiffs-appellants.

George Solares, Frank P. Hernandez, Dallas, Tex., for A. B. Callejo et al.

N. Alex Bickley, City Atty., Lee E. Holt, Joseph G. Werner, Lois C. Bacon, Dallas, Tex., for defendants-appellees.

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

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court held that the constitutional validity of legislative apportionment schemes was a justiciable question because "(j)udicial standards under the Equal Protection Clause are well developed and familiar," 369 U.S. at 226, 82 S.Ct. at 715. Subsequent decisions establishing the principle of individual electoral equality, see Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and applying the dilution doctrine, see White v. Regester, 412 U.S. 755, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), have confirmed the Court's sanguine assessment of the judiciary's capacity to eliminate unfair treatment of voters as individuals and to enhance the prospects for effective political participation by formerly disenfranchised racial minorities. A necessary concomitant to the formulation of constitutional principles governing the legality of particular types of apportionment plans has been the development of a federal common law of voting rights remedies. This appeal concerns such a remedy.

I. DALLAS CITY COUNCIL ELECTIONS

Three major racial groups make up the population of Dallas, Texas. Sixty five percent of Dallas' citizens are white; twenty five percent are black; and ten percent are Mexican-American ¹ or chicano. Prior to the 1975 elections, the Dallas City Council was selected in the following manner. The City was divided into eight residential districts; eight "places" on the council ballot were reserved for candidates who resided in each of the respective districts; three additional Council members, including the mayor, ran without regard to the residency requirement; but voting for all eleven seats was on an at-large basis. The result of the residency requirement plus at-large voting for all seats was that even though candidates carried black districts by huge majorities they were regularly defeated by opponents who carried the majority white vote city-wide.

Candidates for the Dallas City Council have traditionally been nonpartisan. No party primaries have ever been held, although a majority-vote requirement has necessitated run-off elections whenever a candidate for a particular "place" obtains only a plurality of the popular vote. Crucial to success in the Council elections has been the endorsement of the Citizens' Charter Association (CCA); approximately eighty percent of the candidates supported by this slating group have been victorious. Since 1969, the CCA has endorsed at least one minority group candidate for a City Council position in the biennial elections. At the time the case was tried by the district court, two blacks and one Mexican-American were serving on the eleven-person City Council. All three had been supported by the CCA. No black or chicano had ever won a Council seat without CCA backing; few whites had, although Mayor Wise did win as an independent.

The district court has held that the at-large system of electing all Dallas City Council members unconstitutionally dilutes the voting strength of the black community of Dallas. Lipscomb v. Wise, 399 F.Supp. 782 (N.D.Tex.1975). Mexican-Americans have also been recognized as an identifiable racial group for purposes of the fourteenth amendment, see e. g., Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). But the district court's judgment here appealed from did not attempt to determine the constitutionality of the Dallas elections system with respect to chicanos, because all Mexican-American plaintiffs had been dismissed from the lawsuit for failure to comply with discovery orders. 399 F.Supp. at 784. Thus, for purposes of this appeal only, we must assume that no constitutional violation of the rights of Mexican-American citizens occurred under the at-large scheme.

II. PARAMETERS OF THE DISPUTE

The City of Dallas does not challenge the district court's holding that the all at-large system unconstitutionally diminishes the voting strength of Dallas' black citizens. The problem, instead is the selection of an appropriate remedy. The district court approved the City's plan for relief, which was enacted as a city ordinance following the court's decision that the prior system was unconstitutional. That plan, known as the "eight/three" plan, provides for the establishment of eight single-member districts corresponding to the eight residential districts under the all at-large system. The additional Council members are to be elected at-large, with one of the at-large seats being designated as mayor. The plaintiff-appellants contend that the district court's decision must be reversed because (1) it employs at-large voting to fill three Council seats; and (2) the district lines have allegedly been drawn so as to concentrate black voters in an impermissibly small number of districts, resulting in "cluster dilution." Representatives of the Mexican-American community, whom the district court permitted to intervene at the remedy stage of the lawsuit, also appeal and ask that we remand for findings concerning alleged unconstitutional dilution of the voting strength of Dallas' chicano citizens and for the development of an election plan that would remedy that alleged violation.

We note at the outset two limits on our decision here. First, if the election plan proposed and formally adopted by the City Council is (1) constitutional and (2) otherwise in accordance with the federal common law of voting rights remedies, it should be approved. See Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Wallace v. House, 515 F.2d 619, 634-35 (5th Cir. 1975) (Wallace I ), vacated and remanded on other grounds, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976), on remand538 F.2d 1138 (5th Cir. 1976) (Wallace II ). Second, it is concededly impossible that an eleven-member plan of any sort could be drawn for the city of Dallas which would create a "safe" single-member district for the Mexican-American community unless some form of cumulative voting, proportional representation, or crazy-quilt district boundaries were employed. Mexican-American citizens are so dispersed throughout Dallas that a safe single-member chicano district could be established only by increasing the size of the Council to twenty or twenty-two members. The largest concentration of Mexican-Americans in the City's plan for eight single-member districts is twenty percent of one district's population. Under the two alternate plans proposed by the plaintiffs, no more than thirty one percent of any district's population would be chicano. The Mexican-American intervenors themselves offered no proposed plans. This Court, on the facts of this case, has no authority to order the City of Dallas to double the size of its City Council. Therefore, as far as the effects of reapportionment on the Mexican-American community are concerned, we are limited to the consideration of plans for an eleven-member Council.

III. THE PREFERENCE FOR SINGLE-MEMBER DISTRICTS

We have previously recognized Dallas' longstanding public policy in favor of at-large voting. See Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir. 1973) (en banc). It comes as no surprise, therefore, that the reapportionment plan proposed by the City is a "mixed" plan, containing eight single-member districts and three at-large seats. It cannot, however, be successfully maintained that the use of at-large voting to select three Council members is in itself constitutionally defective. White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973) (multi-member districts are not per se unconstitutional); Chapman v. Meier, 420 U.S. 1, 15, 95 S.Ct. 751, 760, 42 L.Ed.2d 766 (1975) (Court "has upheld numerous state-initiated apportionment schemes using multi-member districts").

Appellants contend that the district court's approval of the City's proposed reapportionment plan must be reversed as an abuse of discretion. This contention is founded on the Supreme Court's recent decision in East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam). In East Carroll, the district court had approved a municipal plan calling for the at-large election of all members of a parish police jury and school board. This Court reversed on constitutional grounds, holding that the all at-large system unconstitutionally diluted the voting power of black citizens. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). The Supreme Court, however, expressly avoided disposition of the case on constitutional grounds. 424 U.S. at 639, 96 S.Ct. 1083. Rather, the Court affirmed our decision on the basis of

the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances. . . .

As the en banc opinion of the Court of Appeals amply demonstrates, no special circumstances here dictate the use of multimember districts. Thus we hold that in shaping...