David v. Garrison

• Decision Date: 10 June 1977
• Docket Number: No. 75-1731,75-1731
• Citation: 553 F.2d 923
• Parties: Kirkley DAVID, L. Little, J. E. Clark, et al., Plaintiffs-Appellees, v. Pitser GARRISON and Ed Wareing et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

553 F.2d 923

Kirkley DAVID, L. Little, J. E. Clark, et al., Plaintiffs-Appellees, v. Pitser GARRISON and Ed Wareing et al., Defendants-Appellants.

No. 75-1731.

United States Court of Appeals Fifth Circuit.

June 10, 1977.

Rehearing and Rehearing En Banc Denied Sept. 2, 1977.

Robert L. Flournoy, City Atty., Zeleskey, Cornelius, Rogers, Berry & Hallmark, James R. Cornelius, Jr., Lufkin, Tex., for defendants-appellants.

David R. Richards, Austin, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, Chief Judge, and TUTTLE and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case involves the narrow question of whether an at-large election system in Lufkin, Texas, population 23,049, 72% white and 28% black, works an unconstitutional dilution of votes for the City Commission election. The district court held the at-large plan unconstitutional and ordered an election with one at-large and six single member districts. Because the district court's factual findings are not adequate to support the finding of unconstitutionality, we vacate and remand.

Plaintiffs are black residents and registered voters in the City of Lufkin, Texas. They brought this suit in 1973 alleging violation of the Fourteenth and Fifteenth Amendments, as well as their civil rights under 42 U.S.C.A. § 1983. The defendants are members of the City Commission, the governing body of Lufkin.

Lufkin, in Angelina County, is a small town situated in eastern Texas near the Louisiana border. According to the 1970 census, Lufkin had a population of 23,049, of whom 6,604 were black, or about 28%. The city is governed by a City Commission of seven members, one of whom acts as Mayor. All seven commissioners are elected at-large, however, four of the commissioners are required by law to reside in designated wards. There are no primaries. The elections are nonpartisan. In order to be elected, a candidate must carry a majority of those residents voting. This plan of government has been in effect, without substantial change, since 1919.

About 85% of the city's black residents live in the northern part of the city. The City Commission has never had a black commissioner, although a local black community leader, Inez Tims, did become the first black candidate for the City Commission in 1971. Tims received a plurality but not a majority of the votes cast in his election race, and was forced into a runoff, which he lost. His opponent was white.

The district court concluded that the system of municipal elections used by Lufkin operated "to minimize and dilute the voting strength of black citizens, and to prevent them from participating equally with white citizens in the political process relative to selection of the City Commission."

The consideration of a dilution claim requires a clear understanding of the plaintiffs' precise argument. Dilution is an elusive concept because, unlike a one person-one vote attack on an election scheme, it cannot be proven by mathematics alone. Conceptually, protesting dilution conflicts with the political theory of majority control. It reflects a challenge to the usual election system where the candidate of the majority of the voters wins an election. But the courts have held that when a majority of voters, and the successful governing authority elected by that majority, simply ignore the governmental needs of a substantial minority of the voters and remains arrogantly unresponsive to the voting strength of that minority, there has been a dilution of those votes that violates the United States Constitution. Amendment Fifteen to the Constitution provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The Courts have interpreted this amendment to require that the protected persons be given some meaningful participation in the political process, not just the right to cast a vote that can be completely ignored in the provision of governmental protection and governmental services merely because an election system is so operated as to make that vote meaningless in the election outcome.

Although generally found in multimember or at-large voting systems where the same voting majority controls the balance of governmental power, the evil is not necessarily cured by single member districts. And with the cure uncertain, the Courts must be careful to upset the legislative plan adopted by the people only when the Constitution clearly dictates that such plan is unlawful.

With this sketchy introduction to the problem, a brief review of the decisions is necessary to determine the present state of the law against which this case must be assessed.

Historically, the initial constitutional concern with state and local election schemes was whether the system, by apportionment of the elected representatives among districts with unequal numbers of voters, made one person's vote unequal to the other as to the final matters upon which the elected representatives, casting equal ballots among themselves, voted. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). A totally at-large system of voting eliminates any defect in the system viewed as a one person-one vote matter.

If each person's vote, assuming 100% turnout, has perfect mathematical equality, however, the second constitutional concern is whether the system minimizes or cancels out the voting strength of a segment of the voting population in actual practice. Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). This infirmity is called "dilution." This defect in the system gets away from pure mathematics, and concerns the sociological realities of the election process. See Reese v. Dallas County, 505 F.2d 879, 882 (5th Cir. 1974) (en banc), rev'd, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975).

The law has become clear that mathematical disparity renders a system unconstitutional. Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). This defect in the system can be demonstrated by figures and the only question is how much variance from an absolute equality will be permitted. Compare Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), with Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). Needless to say, an all at-large system, where every voter gets to vote for every representative who is making the decisions in government provides mathematical perfection.

But, as illustrated above, mathematical perfection is not the sole criterion to be used in deciding whether an election system is constitutional. If a class of voters can prove that their voice in the government, their access to the political system, is diluted because of facts at work not reflected by the figures, they are entitled to a remedy. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). So far, this Court has relied on Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd per curiam on other grounds sub nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), as setting forth the factors which must be addressed in considering the constitutional infirmity based on dilution.

We should not, however, confuse the standard by which to judge a legislatively-enacted scheme of election for dilution with the standard by which to judge a court-ordered scheme which is to be substituted for a constitutionally infirm system.

In the court-ordered remedy, single member districts are almost mandated by the United States Supreme Court. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 639, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Chapman v. Meier, 420 U.S. 1, 18, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Connor v. Williams, 404 U.S. 549, 551, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972); Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). Even though a legislative preference is shown for a court-imposed at-large plan which would not be unconstitutional under either the "one person-one vote" standard, or the "dilution" standard, the federal court is not permitted to favor such an at-large legislative plan submitted as a cure to a constitutionally infirm system merely because it expresses the will of the elected representatives of the people, but must follow a preferred single member district remedy. This strong preference apparently derives from the supervisory power of the Supreme Court over the remedies to be given for a constitutional infirmity. Chapman v. Meier, 420 U.S. 1, 18, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). By invoking this preference in East Carroll Parish School Board, supra, the Supreme Court has indicated that no attention should be given to the size of the electorate in a proposed court-imposed at-large system. In that case, the at-large district would have had a population of only 12,884. Yet single member districts were required notwithstanding the statement in Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) that "single-member districts are preferable to large multi-member districts". 402 U.S. at 692, 91 S.Ct. at 1762 (emphasis supplied).

When it comes to the constitutionality of the at-large system, however, the size of the electorate would seem to be important. The number of people involved must logically be considered. For a voter to know the candidates, for the candidates to get the attention of the voter, the commitment of time, money, and other resources to an election process must vary widely with the size of the electorate.

This Court has held, in cases which...