Marshall v. Edwards

• Decision Date: 25 October 1978
• Docket Number: No. 76-3114,76-3114
• Citation: 582 F.2d 927
• Parties: Stewart MARSHALL, Plaintiff-Intervenor-Appellant-Appellee, v. Edwin W. EDWARDS et al., Defendants-Appellees, East Carroll Parish Police Jury and East Carroll Parish School Board, Defendants-Appellees-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 927

582 F.2d 927

Stewart MARSHALL, Plaintiff-Intervenor-Appellant-Appellee, v. Edwin W. EDWARDS et al., Defendants-Appellees East Carroll Parish Police Jury and East Carroll Parish School Board, Defendants-Appellees-Appellants.

No. 76-3114.

United States Court of Appeals Fifth Circuit.

Oct. 25, 1978.

Stanley A. Halpin, Jr., Charles E. DeWitt, Jr., New Orleans, La., Mason P. Gilfoil, Lake Providence, La., for plaintiff-intervenor-appellant-appellee.

J. T. Seale, Dist. Atty., 6th Jud. Dist., Tallulah, La., Thomas F. Wade, Asst. Dist. Atty., St. Joseph, La., for East Carroll Parish Police Jury, et al.

Appeals from the United States District Court for the Western District of Louisiana.

Before WISDOM, GOLDBERG and RUBIN, Circuit Judges.

WISDOM, Circuit Judge:

This reapportionment case is again before us. On July 12, 1968, Charles Zimmer sued various officials of Louisiana and East Carroll Parish, ¹ alleging that the apportionment of the police jury (governing body of the parish) and the school board violated the United States Constitution. On May 11, 1971, Stewart Marshall intervened on behalf of himself and all black voters in the parish, arguing that the at-large system approved as a remedy to Zimmer's complaint violated the rights of black residents of the parish, secured by the Fourteenth and Fifteenth Amendments. On behalf of all black residents in the parish, he sought a declaratory judgment and asked for a single-member district plan.

At this early point in the opinion we must refer, briefly, to the litigative background. The district court adopted a parish at-large election plan. A panel of this Court affirmed. Zimmer v. McKeithen, 1972, 467 F.2d 1381. The Court en banc reversed and remanded on constitutional grounds. 485 F.2d 1297 (1973). The United States Supreme Court affirmed, but on the alternative ground that the district court abused its discretion in approving multi-member districts absent exceptional circumstances. East Carroll Parish Sch. Bd. v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. On remand, the district court adopted the defendants' plan in preference to the plaintiff's plan. Each plan provides single-member districts. The districts in each plan appear to be drawn so as to ensure the election of white representatives from certain districts and black representatives from the remaining districts, although defendants' counsel insists that the districts in his plan were not drawn so as to minimize or dilute the voting strength of the blacks in the parish. The court-approved plan of the defendants would probably produce five white representatives and four black representatives- ; the plaintiff's proposed plan would probably produce five black representatives. Each appears to have been designed consciously to achieve that end, a kind of rough proportioned representation based on registered voting strength. The plaintiff contends that the defendants limited the number of districts in which there was a black majority by drawing jagged lines which gerrymander the districts in the town of Lake Providence, where the blacks are heavily concentrated. The case raises the question, touched on in Taylor v. McKeithen, 5 Cir. 1973, 499 F.2d 893, whether a district court may gerrymander apportionment to effect proportional racial representation.

I.

East Carroll Parish is a small, predominately rural parish in the northeast corner of Louisiana. Its 436 square miles are bounded on the east by the Mississippi River and on the north by Arkansas. In 1970 its population was 12,884. Nearly half that number lived in the parish seat, Lake Providence. At that time, about 55 percent of the registered voters in the parish were whites. A special census was taken in 1976 which revealed that about 60 percent of the parish population were blacks. ² Whites still constituted a slight majority of the registered voters, comprising 51.8 percent of the total. The blacks were concentrated in Lake Providence, where 68 percent of the population were blacks.

This suit was originally filed in the wake of the Supreme Court's one-man one-vote decisions. In 1968 there were nine members on the parish police jury and eight on the parish school district. These members were elected from districts composed of the traditional wards. Six of the seven wards elected one representative to each board; the third ward, which included the Town of Lake Providence, elected three police jurors and two school board members. ³ The population per representative in the various districts ranged from under 400 to nearly 4,000. In December 1968 a consent decree was entered which changed the elections to both bodies to an at-large system. The school board was expanded to nine members, and the traditional wards were used to provide residency requirements. One member of each body was to come from each ward except ward three, which would have three members. At-large voting solved the one-man one-vote problem: all votes had the same mathematical weight.

After the 1970 census results became available, the district court directed the parties to submit new plans. Marshall, the black intervenor, challenged the at-large plan on the ground that it unconstitutionally diluted the votes of the parish's large black voting minority. Zimmer, the original plaintiff, withdrew from the case.

The district court held a full trial on Marshall's contentions. It again approved the at-large plan, finding no evidence of racial dilution in the plan, which had been in effect for several years. This Court affirmed. Zimmer v. McKeithen, 5 Cir. 1972, 467 F.2d 1381. On rehearing en banc the Court disagreed with the panel and reversed the district court. Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d 1297 (en banc) (Zimmer ). Judge Gewin wrote, for a closely divided Court, the opinion which has guided this Circuit in later voting dilution cases. See Nevett v. Sides, 5 Cir. 1978, 571 F.2d 209, 216-17. The Court held that Marshall had proved that the at-large system unconstitutionally diluted the value of black votes.

The Supreme Court affirmed in a short per curiam opinion. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (Marshall ). The Supreme Court did not reach the constitutional issue considered by this Court. Instead, the Court held that the district court abused its discretion in not ordering single-member districts. ⁴ A court-ordered plan is held to equitable standards more strict than those governing legislative plans. ⁵ While legislatures may use multi-member districts, courts may order such a remedy only when special circumstances, absent in East Carroll Parish, are shown.

The Court en banc remanded the case to the district court, this time with instructions to approve a single-member district plan. In April 1976, after an abortive attempt to use a special master, ⁶ the district court required the parties to submit single-member district plans. The issue was argued in June 1976. Earl K. Selle, an expert the defendants employed, testified on behalf of the local bodies' plan; Stanley Halpin, counsel for Marshall, defended his alternative plan.

Each plan called for nine single-member districts. Because the population of the parish is concentrated in Lake Providence, each plan divided the town into at least five districts. Although the plans draw different lines for the rural districts, the controversy between the parties centered on the districts in Lake Providence. Marshall objected to the many-sided districts carved from the black areas of the town, and the inclusion of a predominately white suburban area in district five. Selle defended the lines as necessary for the plan's "fairness".

The fairness allegedly embodied in the defendants' plan rests on proportional racial representation. Because the black community was 48.2 percent of the total registered voters in 1976, the defendants drew district lines to guarantee the blacks four seats, and give them a good chance to capture a fifth. The expert's testimony makes this manifest.

"SELLE: The analysis indicated we have 40% White population and 60% Black.

The analysis of voter registration indicated we have 51.8% White in registration numbers and 48.2% Black. Therefore, 60% Of the population which is black acquits to the same geological (SIC) structure of 48.2% Of the registration of blacks. 60% Black population and 48.2% Black registration are conversely 40% Of your white population developed to 51.8% In your registration.

In the development of our structure, it appeared to me that we would be able to provide very closely the same representation to the blacks as they have actually in the parish, which politically is 48.2%. 48.2% Of a nine member board is 4.336 (4.338), I believe, or 41/3 of the seats of a nine member board.

Our plan does provide for four districts, basically six, seven, eight and nine with black majorities respectively 86%, 99%, 64% And 93%.

These four seats, by rule of thumb and practical application and knowledge, would be considered safe districts for the minority group in this parish.

We have District 3, which has a 51% Black majority, and if you utilize the same ration with the 51% Of population being of the black structure relates back to 40% Voting strength within District 3 and 40% Is greater than 33. (sic)

This basically, I think, was our fairness test.

If, in fact it is possible to develop a plan which gives each part of the structure or community its rightful justifiable representation if this is a possibility then I think it probably should be done."

Transcript, 34-35.

Selle testified that the odd shapes of some of the districts resulted from both population deviation requirements and racial considerations. Tr. 55. He made no great effort to follow precinct lines, tr. 18, but did, generally, attempt to use natural boundaries, tr. 19. His plan had a maximum population deviation of 6.2 percent; the plaintiff's plan...