McMillan v. Escambia County, Fla., 78-3507

Decision Date19 February 1981
Docket NumberNo. 78-3507,78-3507
Citation638 F.2d 1239
PartiesHenry T. McMILLAN et al., Plaintiffs-Appellees, v. ESCAMBIA COUNTY, FLORIDA et al., Defendants-Appellants. Elmer JENKINS et al., Plaintiffs-Appellees, v. CITY OF PENSACOLA et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Richard I. Lott, County Atty., John W. Flemming, Asst. County Atty., Pensacola, Fla., for Escambia County.

Ray, Patterson & Kievit, Pensacola, Fla., for School Board.

Charles S. Rhyne, William S. Rhyne, Washington, D.C., for all defendants-appellants.

Don J. Canton, City Atty., Pensacola, Fla., for City of Pensacola.

J. U. Blacksher, Larry Menefee, Mobile, Ala., Kent Spriggs, Tallahassee, Fla., Jack Greenberg, Eric Schnapper, New York City, Edward Still, Birmingham, Ala., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Florida.

Before COLEMAN, PECK * and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

These consolidated cases arise from an attack on the forms of government in the City of Pensacola and Escambia County, Florida. The County Commission, City Council and School Board are all defendants. The district court, after extensive hearings, found that the at-large election systems used to elect each of the three defendant bodies are unconstitutional. 1 We affirm in part and reverse in part.

I. Overview of Plaintiffs' Claim

These class actions were filed simultaneously on March 18, 1977, by black voters of Pensacola and Escambia County. The plaintiffs alleged that the at-large systems for electing members of the area's three major governing bodies are unconstitutional as violative of their rights under the First, Thirteenth, Fourteenth and Fifteenth Amendments and are in violation of the Civil Rights Act of 1957, 42 U.S.C. § 1971(a)(1), the Voting Rights Act of 1965, as amended in 1975, 42 U.S.C. § 1973, and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

The essence of the plaintiffs' complaints is that the at-large systems operate to preclude the black population, which comprises one-third of the city population 2 and one-fifth of the county population, 3 from electing a member of its own race to any of the three governing bodies.

The Board of County Commissioners is composed of five members who serve staggered four-year terms. Although they must run for numbered places corresponding to the districts in which they live, they are elected at-large by the voters of the entire county. Each major party is required to hold a primary in which only party members may vote. Candidates run at-large for numbered places in the primaries, and a majority vote is required for the party nomination. There is no majority vote requirement in the general election.

The School Board of Escambia County is composed of seven members who serve staggered four-year terms. Five of the members must reside in residential districts but two may reside anywhere in the county. 4 Otherwise, the election process for the School Board is the same as that for the County Commission.

The Pensacola City Council has ten members. Candidates must run for numbered places corresponding to the five wards, and must live in the corresponding ward. The election, however, is at-large. There are no primaries, but there is a majority vote requirement.

Since 1955, blacks have been candidates for the County Commission four times, for the School Board five times and for the City Council nineteen times. As of the date of trial, no black had ever been elected to either the County Commission or the School Board, 5 and only two blacks had been elected to the City Council. The two black City Council members had initially been appointed to the Council to fill vacant seats and were then successful in their bids for re-election.

The plaintiffs argue that because of racially polarized voting, 6 and because of the at-large system of elections, the votes of blacks in Pensacola and Escambia County are being diluted. In essence, their argument is that although blacks comprise a significant minority of the area, they will never be able to elect members of their race to the governing bodies, and hence, their votes are worth less than those of their white counterparts. This claim has been presented to this court previously; see, e. g., Cross v. Baxter, 604 F.2d 875 (5th Cir. 1979); Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978); Blacks United for Lasting Leadership v. Shreveport, 571 F.2d 248 (5th Cir. 1978); NAACP v. Thomas County, Georgia, 571 F.2d 257 (5th Cir. 1978); 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), and, more recently, to the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).

It should be noted that there is no allegation of any actual impediment to blacks voting, such as a poll tax or racially motivated gerrymandering of municipal boundaries. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). 7 Rather, the issue here is limited to a claim of vote dilution.

II. City of Mobile v. Bolden

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), was pending before the Supreme Court when these cases were argued; accordingly, we postponed decision in these cases pending the Bolden decision. After Bolden was announced, we requested supplemental briefs from the parties. As Justice White predicted, however, we still are somewhat "adrift on uncharted seas with respect to how to proceed." 446 U.S. at 103, 100 S.Ct. at 1519.

No view by the Supreme Court Justices commanded a clear majority. Mr. Justice Stewart, who authored the plurality opinion, joined by Justices Burger, Powell and Rehnquist, was of the view that a vote dilution claim, as opposed to an actual denial of the right to vote, is not a Fifteenth Amendment 8 claim at all, and that a Fourteenth Amendment claim had not been proven because the plaintiffs had not adduced adequate proof that the at-large election system constituted intentional discrimination against blacks, either in its inception or operation.

Although Justice Stevens considered a vote dilution claim to be a proper Fifteenth Amendment claim, he would require a plaintiff to prove that the system complained of is either "totally irrational or entirely motivated by a desire to curtail the political strength of the minority." 446 U.S. at 90, 100 S.Ct. at 1512.

In dissent, Justices Brennan, White and Marshall, for different reasons and in varying levels of vehemence, disagreed with the plurality that discriminatory purpose had not been shown in this case. Justice Marshall, joined by Justice Brennan, went further, arguing that an approach based on motivation is unworkable, and that proof of discriminatory impact alone should be sufficient. Justices White and Marshall both viewed the Bolden claim as a legitimate Fifteenth Amendment claim. Justice Brennan took no position on this.

Justice Blackmun assumed that if Justice Stewart is correct that discriminatory purpose must be shown, the evidence would support a finding of intent. He concurred in the result, however, because he disagreed with the remedy ordered by the district court.

Because no one analysis captured five Justices, we must determine the view with which a majority of the Court could agree. There were five clear votes (Stewart, Burger, Powell, Rehnquist and Stevens, JJ.) against the proposition that discriminatory impact alone is sufficient in vote dilution cases. Accordingly, to win a majority of the Court, in addition to impact, discriminatory purpose of some sort must be proven. Justice Stevens articulated the most conservative opinion on the extent to which such purpose must be shown. Because no other Justice concurred in his opinion, that discriminatory purpose must be the only purpose, we reject that analysis. Instead, we adopt Justice Stewart's opinion, though it commanded only four votes. If, in addition to impact, a discriminatory purpose exists in the enactment or operation of a given electoral system, all members of the Court save Justice Stevens agree that that system is unconstitutional. 9

III. Do the At-Large Electoral Systems Here Exist Because of Purposeful Discrimination?

Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), teaches us that an inquiry into legislative purpose is not an easy one. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." 429 U.S. at 266, 97 S.Ct. at 564. The Court suggests several possible evidentiary sources for such a determination. Among them are: (1) the historical background of the action, particularly if a series of actions have been taken for invidious purposes; (2) the specific sequence of events leading up to the challenged action; (3) any procedural departures from the normal procedural sequence; (4) any substantive departures from normal procedure, i. e., whether factors normally considered important by the decisionmaker strongly favor a decision contrary to the one reached; and (5) the legislative history, especially where contemporary statements by members of the decisionmaking body exist. 429 U.S. at 267-68, 97 S.Ct. at 564.

The Stewart opinion in Bolden held that the so-called Zimmer factors regarding discriminatory impact (see 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)) were insufficient, standing alone, to support a finding of discriminatory purpose. Fortunately, the district court below correctly anticipated that the Arlington Heights requirement of purposeful discrimination must be met, and thus made explicit findings concerning intent...

To continue reading

Request your trial
42 cases
  • Brown v. BOARD OF SCH. COM'RS OF MOBILE CTY., ALA., Civ. A. No. 75-298-P.
    • United States
    • U.S. District Court — Southern District of Alabama
    • April 15, 1982
    ...more direct. See the analysis of Bolden in, e.g., Lodge v. Buxton, 639 F.2d 1358, 1369-75 (5th Cir. 1981); McMillan v. Escambia County, 638 F.2d 1239, 1242-43 (5th Cir. 1981). This court has viewed its obligation on remand as proper to take additional evidence and evaluate that evidence and......
  • Jones v. City of Lubbock
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 5, 1984
    ...v. Kirksey, 639 F.2d 1191 (5th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 1253, 75 L.Ed.2d 482 (1983); McMillan v. Escambia County, 638 F.2d 1239 (5th Cir.1981), vacated on rehearing, 688 F.2d 960 (5th Cir.1981), probable jurisdiction noted, --- U.S. ----, 103 S.Ct. 1766, 76 L.Ed.2d ......
  • Ammons v. DADE CITY, FLA.
    • United States
    • U.S. District Court — Middle District of Florida
    • September 21, 1984
    ..."ancient documents" are admissible and probative to show how the events of the day were being recorded. See, McMillan v. Escambia County, Florida, 638 F.2d 1239, 1248 (5th Cir.1981) (probative 1957 9 Upon O.K. Mickens' death, his widow, Christine Mickens, was appointed to fill his unexpired......
  • Williams v. City of Dothan, Ala.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 5, 1984
    ...discrimination cases), aff'd sub nom. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982); McMillan v. Escambia County, 638 F.2d 1239, 1246 n. 15 (5th Cir.1981). The Supreme Court recognized these realities in its decision in Arlington Heights, where it noted that discrimi......
  • Request a trial to view additional results
2 books & journal articles
  • Felon disenfranchisement: law, history, policy, and politics.
    • United States
    • Fordham Urban Law Journal Vol. 32 No. 5, September 2005
    • September 1, 2005
    ...542 F. Supp. 1078 (S.D. Ala. 1982), aff'd, 706 F.2d 1103 (11th Cir. 1983), aff'd, 464 U.S. 807 (1983); and McMillan v. Escambia County, 638 F.2d 1239 (5th Cir. 1981)). These cases can be distinguished on a number of grounds. For example, Kirksey, Irby, and Brown all imply "neutral" action o......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...(1877), Form 7-17 McLendon v. Continental Group , 749 F.Supp. 582, 612 (D. New Jersey 989), §1:25.3 McMillan v. Escambia County, Fla . 638 F.2d 1239, 1249 (5th Cir. 1981), vacated by 688 F.2d 960 (5th Cir. 1982), Form 7-26 McMorgan v. First Cal. Mortg. , 931 F.Supp. 703 (N.D. Cal. 1996), §4......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT