554 F.2d 139 (5th Cir. 1977), 75-2212, Kirksey v. Board of Sup'rs of Hinds County, Miss.

Docket Nº:75-2212.
Citation:554 F.2d 139
Party Name:Henry J. KIRKSEY et al., Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI, et al., Defendants- Appellees.
Case Date:May 31, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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554 F.2d 139 (5th Cir. 1977)

Henry J. KIRKSEY et al., Individually and on behalf of all

others similarly situated, Plaintiffs-Appellants,



Defendants- Appellees.

No. 75-2212.

United States Court of Appeals, Fifth Circuit

May 31, 1977

Rehearing Denied July 25, 1977.

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Frank R. Parker, Lawyers' Comm. for Civil Rights Under Law, Herman Wilson, Jackson, Miss., for plaintiffs-appellants.

Jessica Dunsay Silver, Atty., App. Section, U. S. Dept. of Justice, Washington, D. C., for amicus curiae.

Thomas H. Watkins, John M. Putnam, William A. Allain, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.


GODBOLD, Circuit Judge:

This case concerns the establishment by a court-ordered plan of voting districts for the election of county officers elected by single-member districts in Hinds County, Mississippi. 1 Hinds County is the situs of Jackson, the state capital.

In 1975 the district court approved and adopted a redistricting plan proposed by the county Board of Supervisors. 2 Plaintiffs appealed, and this court affirmed. 3 We granted the petition of plaintiffs for rehearing en banc and heard oral arguments. The court en banc reverses the panel decision, reverses the district court, and remands the case for further consideration.

The facts are extensively discussed in the opinions of the district court and the panel of this court. Only a summary is necessary.

In 1969 Hinds County's electoral districts were reapportioned under court order to bring them in line with the "one-man, one-vote" requirements of Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In 1971 this suit was filed as a class action on behalf of black registered voters qualified to vote for the county officers elected by districts. Plaintiffs challenged the 1969 apportionment plan on the grounds that it lacked Justice Department preclearance required by § 5 of

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the Voting Rights Act, 4 unconstitutionally diluted the voting strength of black citizens of Hinds County and malapportioned the county in terms of one-man, one-vote requirements. 5

The results of the 1970 census became available and they revealed that the 1969 plan malapportioned the county. The district judge ordered the county supervisors to submit a plan of reapportionment, drawn up without regard to race, which created districts equal in population. In 1973 the supervisors submitted a plan prepared by a firm which provides services to public bodies in the field of political redistricting and reapportionment. The plan divided the county into five single-member supervisors' districts of almost equal population. Each district was a long corridor radiating outward from the City of Jackson, broader in the rural land mass perimeter, narrower in the Jackson urban area.

The rural district lines of the 1969 plan were retained, and redistricting was carried out by altering lines within the City. The black community of Hinds County is largely concentrated in the central city area of Jackson. Each corridor cuts into this concentrated black area. Under the plan there would be two Districts, 2 and 5, with black population majorities of 53.4% and 54%, but with smaller percentages of blacks considered on the basis of voting age population.

The general population of the county is 214,973 persons, 60.75% white, 39.10% black. Sixty-nine per cent of the blacks in the county reside in the central city area of Jackson in 48 contiguous census enumeration districts. Of the 63,267 persons residing in these census districts, 58,198, or 92%, are black. The racial distribution of general population and voting age population of the county is:

District General population Voting age population White Black White Black 1 70.5% 29.5% 74.7% 25.3% 2 46.6% 53.4% 52% 48% 3 72.3% 27.7% 76.5% 23.5% 4 68% 32% 72.5% 27.5% 5 46% 54% 51.4% 48.6% These voting age population figures are from the testimony of witness Dr. Loewen. Another witness, Dr. Henderson, approximated the percentage of black voting age population in District 2 to be 45% and District 5 to be 46%.

The plaintiffs challenged the plan, objecting to both its purpose and its effect, and offered their own plan as a substitute. 6 The district court required that it be furnished statistical data showing the racial composition of the districts. After receiving this data the court conducted an evidentiary hearing in August 1974. The vice-president of the firm which prepared the supervisors' plan testified that pursuant to the order of the court requiring the supervisors to present a plan and in accordance with specific instructions of the supervisors to his firm, the plan was drawn in a racially neutral manner. 402 F.Supp. 666-67. The court found that:

The plan . . . was devised in order to achieve population equality and approximate equalization of road and bridge mileage and land area. This Court further finds that this was accomplished without regard to race or political affiliation of the residents of the county, race being wholly disregarded as a factor in fashioning the district lines for both the 1969 plan and the 1973 plan.

Id. at 667. In its conclusions of law the district court held that plaintiffs had failed to meet the burden of proving that the new

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district boundaries were drawn by or for the defendants on racial lines or of proving that the defendants or the draftsman of the plan was motivated by considerations of race, creed, or national origin in creating the new districts.

The court approved and adopted the supervisors' plan and directed that it be put into effect. It rejected plaintiffs' alternate plan. On appeal this court, through its panel decision, 528 F.2d 536, affirmed the district court. The court en banc reverses the district court on both constitutional and non-constitutional grounds and remands the case to the district court for the fashioning of a remedy.

I. The law of unconstitutional reapportionment

American citizens are entitled to participate fully and effectively in the political processes of state legislative bodies.

(R)epresentative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.

Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506, 529 (1964). The same principles apply to county bodies. As the Supreme Court said in Avery v. Midland County, supra :

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population.

390 U.S. at 480, 88 S.Ct. at 1118, 20 L.Ed.2d at 51.

However, redistricting done to comply with one-man, one-vote requirements may impinge upon the right of members of minorities to legal access to the processes of democracy. A redistricting plan is constitutionally impermissible as racially discriminatory if it is a racially motivated gerrymander or if it perpetuates an existent denial of access by the racial minority to the political process. 7 With respect to whether in the affected area a racial minority is denied full and effective access to the democratic process:

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.

White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2338, 37 L.Ed.2d 314, 324 (1973). As a matter of pure semantics it can be argued that a minority is denied equality of access to the political process if it does not have representation in proportion to its voting strength. With anything less its strength is minimized, cancelled out, or "diluted."

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The Supreme Court and this circuit have consistently eschewed such a mechanistic approach. 8 "(C)learly it is not enough to prove mere disparity between the number of minority residents and the number of minority representatives." Zimmer v. McKeithen, 485 F.2d 1297 at 1305 (CA5, 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School...

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