571 F.2d 209 (5th Cir. 1978), 76-2951, Nevett v. Sides

Docket Nº:76-2951.
Citation:571 F.2d 209
Party Name:Reverend Charles H. NEVETT et al., Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Lawrence G. SIDES, Individually and in his capacity as Mayor of Fairfield, Alabama, et al., etc., Defendants-Appellees.
Case Date:March 29, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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571 F.2d 209 (5th Cir. 1978)

Reverend Charles H. NEVETT et al., Individually and on

behalf of all others similarly situated,



Lawrence G. SIDES, Individually and in his capacity as Mayor

of Fairfield, Alabama, et al., etc., Defendants-Appellees.

No. 76-2951.

United States Court of Appeals, Fifth Circuit

March 29, 1978

Rehearing and Rehearing En Banc Denied May 25, 1978.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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William M. Dawson, Jr., Edward Still, Birmingham, Ala., Laughlin McDonald, ACLU Foundation, Neil Bradley, Atlanta, Ga., for plaintiffs-appellants.

Jim Ward, Asst. Atty. Gen., Montgomery, Ala., for Baxley, indiv. & as Atty. Gen.

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Reid B. Barnes, Birmingham, Ala., Frank B. Parsons, Fairfield, Ala., for Lawrence G. Sides & Grady Ellison.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, SIMPSON and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This is the first of four consolidated cases we decide today. 1 In all of them, black voters challenge municipal election schemes that provide for the at-large election of certain city officials. The gravamen of their claims is that the black vote in each of the municipalities is submerged in an unnecessarily large, city-wide electorate and consequently that they are unconstitutionally deprived of their right to effective political participation in each of these cities.

Black residents of Fairfield, an industrial suburb of Birmingham, Alabama, brought this action to strike down their city's municipal election system, which provides for the at-large selection of a city council president and city councilmen. 2 These plaintiffs (appellants here) claim that Fairfield's at-large system, as applied, acts to dilute their voting power in violation of the fourteenth and fifteenth amendments to the Constitution. 3

A council consisting of twelve aldermen and a president governs the City of Fairfield. State law allows cities the size of Fairfield, which had a population of 14,369 in 1970 (forty-eight percent of which was black), to divide themselves into wards for the purpose of city government. 4 Cities

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may choose the number of wards and thereby determine whether the aldermen (who must reside in their respective wards) are elected at-large or separately from their wards. Fairfield sectioned itself into six wards and was thus required to elect at-large two aldermen from each ward. 5

Prior to 1968, no black had been elected to the city council, but in that year six of the seven black candidates succeeded. In 1972, none of the eight black candidates were elected to the council. According to the district court, these disparate election results can be attributed to racially polarized voting by an electorate in close and changing racial balance. 6

The complaint in this action was filed on May 30, 1973, alleging that "such absolute control of the city government by one race" in an at-large setting worked an unconstitutional dilution of black votes. The case was tried on February 20, 1975, and, after the consideration of voluminous evidence, the district court ruled in favor of the plaintiffs, dictated into the record its findings of fact and conclusions of law, and ordered the parties to file reapportionment plans by May 1, 1975. The parties submitted plans and a hearing was held to consider them. The district court entered its final judgment on June 6, 1975, ordering the city divided into eight single-member council districts but allowing the at-large election of a city council president. 7 The judgment was appealed, and on June 8, 1976, a panel of this court vacated and remanded it, Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976), for failing to apply properly the voting dilution standards set forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), 8 where we enunciated a set of factors that when established in the aggregate, are probative of unconstitutional dilution.

The district court's error was that having found "the various standards and indicia prescribed by the appellate court (not) helpful one way or the other," it nevertheless held that the plan unintentionally "does act to inhibit and has inhibited voting strength" and that "in practice it has worked that way." We held this finding insufficient to support a conclusion of unconstitutional dilution. A finding of dilution, we noted,

must be based on the criteria that the Zimmer and Wallace (v. House, 515 F.2d 619 (5th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976)) courts distilled from White v. Regester, 412 U.S. 755, 765-767, 93 S.Ct. 2332, 2339-2340, 37 L.Ed.2d 314, 324-325 (1973) and in accordance with all later cases. Unless those criteria in the aggregate point to dilution, i. e., if the criteria 'don't really

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help', then plaintiffs have not met their burden, and their cause must fail.

Nevett v. Sides, 533 F.2d at 1365.

On remand, the district court carefully reexamined its findings of fact (no additional evidence was taken by the court) and considered the Zimmer criteria with specificity. 9 The court ultimately concluded that those findings did not demonstrate an unconstitutional dilution of the black vote in Fairfield. Judgment was entered for the defendants on June 11, 1976, and the plaintiffs took this appeal.

In this appeal, the parties present the following issues for our determination: (1) whether a finding of intentional discrimination is required in a voting dilution case brought by a racial group, (2) whether the district court's findings of fact under the Zimmer criteria are reversible, and (3) whether the district court as a matter of law correctly interpreted Zimmer and subsequent relevant precedents. Since these issues are complex and significant, we think it appropriate to outline briefly how our analysis will proceed.

In Part I we discuss the nature of voting dilution cases and the legal principles governing their determination. This discussion provides the necessary background for Part II, where we examine the first issue raised here, whether intentional discrimination need be shown to make out a case alleging dilution of the voting power of a cognizable racial element. We hold that a showing of intent is necessary to establish such a case.

Our holding is based on consideration of both the fourteenth and fifteenth amendments. We determine that the recent Supreme Court decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), requires a showing of intentional discrimination in racially based voting dilution claims founded on the fourteenth amendment. We conclude also that the case law requires the same showing in fifteenth amendment dilution claims. Moreover, we demonstrate that the dilution cases of this circuit are consistent with our holding in this case. In particular, we read Zimmer as impliedly recognizing the essentiality of intent in dilution cases by establishing certain categories of circumstantial evidence of intentional discrimination.

Having set out the relevant legal principles, the focus of our discussion shifts in Part III to the specifics of this case. There we address and dismiss appellants' contention that the district court's factual determinations are clearly erroneous. Finally, in Part IV we reject appellants' argument that the court below misinterpreted the dilution precedents of this circuit. Consequently, we affirm the judgment of the district court.

I. Voting Dilution

In describing voting dilution claims, it is imperative at the outset to distinguish the typical reapportionment case, which presents the traditional "one person, one vote" inquiry. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In such a case, there are a number of coordinate districts (e. g., state legislative districts), and voters in larger districts allege that their votes are devalued in comparison to those of voters in smaller ones. The issue in a typical reapportionment case, therefore, is whether population deviations from the average district are impermissibly large. See, e. g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). The comparison is one based purely on population figures; no showing of discrimination along racial, ethnic, or political lines need be shown.

A case alleging violation of the one person, one vote standard, based solely on a mathematical analysis, may properly be called a " quantitative" reapportionment case. That an apportionment scheme satisfies the quantitative standard does not, however, insure equality in all the aspects of political representation. The heterogeneity

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of our society manifests itself in an unequal distribution of interest groups; racial and ethnic groups tend to be compartmentalized. Thus, even a districting plan drawn without regard to the distribution of such groups may distort their relative voting strengths. And, of course, these underlying patterns present the opportunity for subtle discrimination by the manipulation of district lines. Such discrimination can occur even if perfect population equality exists. Cases alleging a distortion of group voting power of this type have been termed "qualitative" reapportionment cases because they focus "not on population-based apportionment but on the quality of representation." Whitcomb v. Chavis,403 U.S. 124, 142...

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