Wyche v. Madison Parish Police Jury

Decision Date02 February 1981
Docket NumberNo. 79-1830,79-1830
Citation635 F.2d 1151
PartiesZelma C. WYCHE et al., Plaintiffs-Appellants, v. The MADISON PARISH POLICE JURY et al., Defendants-Appellees. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

George M. Strickler, Jr., New Orleans, La., Raymond L. Cannon, Tallulah, La., for plaintiffs-appellants.

James D. Caldwell, Dist. Atty., Tallulah, La., for defendants-appellees.

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

Before COLEMAN, RUBIN and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge.

The reapportionment of legislative bodies to accord one person one vote assures equal protection of voters as electors. Even when voters are afforded numerical equality as members of the polity, racial discrimination may prompt a subtle form of gerrymandering that in effect makes a vote by the voter of one race less important than the ballot of the voter of another race, and thus violates the fourteenth amendment by denying one group of voters equal protection because of their race even where their ballots have the same apparent weight. Yet it is fundamental that the Constitution does not require proportional representation of voters by race or any other characteristic. We here consider both the extent to which, and the manner in which, the race of the population of a Louisiana parish can or must be considered by a court that is reapportioning the parish's governmental bodies.

I.

Madison Parish is located on the Mississippi River in northeast Louisiana. The Police Jury is its parochial governing body. The School Board has the usual responsibilities implied by its name. These two public bodies are elected by the voters of the Parish. According to a special census conducted before the 1980 decennial census, it has a total population of 14,472, 58% of whom are black. The parish is essentially rural but 66% of the total population lives in the town of Tallulah or its immediate environs. This town area is heavily black, while the more sparsely populated rural area is preponderantly white.

For almost a century prior to 1963 no black person had been registered to vote in the parish. In that year, a federal court order required the parish officials to permit black persons to register by applying to them the same qualifications used for white applicants. United States v. Ward, 222 F.Supp. 617 (W.D.La.1963), rev'd, 349 F.2d 795 (5th Cir. 1965), modified on rehearing, 352 F.2d 329 (5th Cir. 1965). Thereafter several elections for municipal and parochial offices were set aside and new elections ordered on the ground that black voters and candidates had been illegally deprived of their right to exercise the franchise. See Brown v. Post, 279 F.Supp. 60 (W.D.La.1968); United States v. Post, 297 F.Supp. 46 (W.D.La.1969); Toney v. White, 348 F.Supp. 188 (W.D.La.1972), aff'd in part and rev'd in part, 476 F.2d 203, modified on rehearing, 488 F.2d 310 (5th Cir. 1973) (en banc). See generally E. Kaplan & J. Stanzler, Voting Rights: A Case Study of Madison Parish, Louisiana, 38 U.Chi.L.Rev. 726 (1971). Nonetheless, no black person was elected to parochial office until 1971.

In July, 1971, the parish was reapportioned under a court order. The districting plan required the creation of four wards from which eight persons would be elected to the Police Jury and eight to the School Board. Three were multi-member districts and one was a single-member district. In elections held pursuant to that plan, three black persons were elected to the Police Jury and three to the School Board.

After the court drew its plan and the 1971 elections were held, two low income housing projects, Madison Community Apartments and Starr Lodge Apartments, were built outside of the town limits of Tallulah. More than 700 persons, about five percent of the total parish population, live in these projects. In July, 1972, the town of Tallulah annexed the area in which the projects are located. The extension of the town boundaries was treated by the registrar of voters as an extension of the boundary lines of Ward I of the parish districting plan. Thus, while the two low income projects were physically located in what had been a predominantly rural ward, the residents of those projects and the surrounding area were registered to vote and in fact voted in a town ward. This de facto change of the district lines was made without either court approval or submission to the United States Department of Justice as required by Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. The result was to increase the population of the town ward in relation to the other districts, thus creating underrepresentation for the residents of that ward on the Police Jury and School Board. The plaintiffs, therefore, petitioned the federal court for a new redistricting.

The court appointed a qualified demographer, Kenneth Selle, to make a parish census and, after consulting with the two parochial bodies and their counsel, to draft a plan of reapportionment composed of single-member districts. In the eight year interim, the total parish population had declined slightly, and the percentage of black population had fallen from 60% in 1970 to 58% in 1978. Mr. Selle prepared three proposed plans, one of which, Plan 2, is not urged by either party. The first plan (Plan 1) proposed eight districts. Two are rural, lying east and west of Tallulah. The remaining six each include portions of Tallulah and the area immediately surrounding the town. A more complete description of the proposal is set forth in the footnote. 1 Its essential features are that four districts, the two rural districts and two of the town districts, have white population majorities, while the population of the four remaining town districts is almost exclusively black. This was a preliminary plan and Mr. Selle never refined it. He testified, however, that, with slight modification, the deviation factor (plus 8.4% added to minus 3.3%, a total of 11.7%) could be substantially reduced. As the population figures indicate, in the event of block voting along racial lines, Plan 1 would result in the election of four black and four white representatives to each public body.

Plan 3, recommended to the court by Mr. Selle and endorsed by the Police Jury and School Board, also proposes eight districts. It differs from Plan 1 chiefly in that the rural area of the parish is divided into three districts instead of two, leaving five town districts. The details of this plan are set forth in the footnote. 2 The plan suggests five districts with black majority population. However, district 1 would have a black population of 53% and district 3 would have a black population of 62% while in Plan 1, no majority black district would have less than 93% black population. Therefore, it would be easier for a white candidate to be elected in the two districts in Plan 3 having only 53% and 62% black population. The deviation factor of this plan is 4.11%.

Plan 3 represents a conscious effort by the demographer to devise a plan containing three rural districts. To accomplish this goal and conform to one person, one vote standards, Selle had to "borrow" portions of the northern area of Tallulah to increase the populations of districts 1 and 3, bringing the number of persons in those districts closer to the median number. Those town areas include the public housing projects and are all black in population.

Mr. Selle testified that, in his opinion, the two plans are essentially equal and that either plan would satisfy the basic criteria for constitutional adequacy. He recommended Plan 3 because Madison Parish is an agricultural area and its economy is based on agriculture. The governing bodies must concern themselves with activities that affect the agricultural areas. Therefore, Plan 3 considers the orientation and interests of the parochial population.

The plaintiffs contend that, while Plan 3 proposes five districts with a majority black population, black candidates could be elected from only three of those districts because the black population figures in districts 1 (53%) and 3 (62%) do not reflect voting strength. They urge this court to adopt a rule that, to remedy demonstrated discrimination against black voters a court must adopt the plan most likely to result in proportionate election of black representatives.

To buttress their objection to Plan 3, the plaintiffs sought to introduce evidence to prove that this plan would in fact result in the election of only three black persons, but the Court ruled the evidence inadmissible. In an offer of proof, the plaintiffs took the testimony of a black police juror who is also the manager of one of the low income housing projects on the northern edge of Tallulah. He testified that, if Plan 3 were adopted, the apartments and his residence would be in district 3, and there were not enough black residents of voting age in the district to form even a potential black majority of voters. This testimony was confirmed by voter registration statistics which showed that 59% of the registered voters in district 3 as of December 31, 1978, were white while only 41% of those registered were black. 3 The excluded voter registration data also showed that 8,590 voters are registered in the parish and 52% of these are white. Thus, while the parish population is 58% black, only 48% of the registered voters are black.

Having excluded evidence of the plan's effect at the polls, the district judge followed the demographer's recommendation and adopted Plan 3, stating that he did so because Plan 1 would tend to dilute the voting strength of the rural areas of the parish. In addition, the district judge noted that Plan 1, even had it been modified as proposed by Mr. Selle, would have a relatively high deviation factor. 4

Thereafter, the district judge who had adopted Plan 3 retired. The Police Jury election was scheduled for 1979. An appeal having been...

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