Corder v. Kirksey

• Decision Date: 16 March 1981
• Docket Number: No. 76-3601,76-3601
• Citation: 639 F.2d 1191
• Parties: James H. CORDER, and Harry W. Western on behalf of themselves and all other similarly situated, Plaintiffs-Appellants, v. Robert H. KIRKSEY, Individually and as Probate Judge of Pickens County et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1191

639 F.2d 1191

James H. CORDER, and Harry W. Western on behalf of themselves and all other similarly situated, Plaintiffs-Appellants, v. Robert H. KIRKSEY, Individually and as Probate Judge of

Pickens County et al., Defendants-Appellees.

No. 76-3601.

United States Court of Appeals, Fifth Circuit.

March 16, 1981.

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

W. O. Kirk, Jr., Carrollton, Ala., Martin Ray, Tuscaloosa, Ala., for defendants-appellees.

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

Before TJOFLAT, HILL and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us following the district court's compliance with our last remand order. Corder v. Kirksey, 625 F.2d 520 (5th Cir. 1980) (Corder II). We affirm the findings and conclusions of the district court.

Because an understanding of the procedural posture of this case is important for an adequate perspective on our opinion, we shall discuss briefly the history of this litigation. For a more complete exposition of the history of this case, reference should be had to our opinion in Corder v. Kirksey, 585 F.2d 708 (5th Cir. 1978) (Corder I).

I

In 1973 the black residents of Pickens County, Alabama brought this action to challenge the constitutionality of the procedures used to elect the Pickens County Commission, the Pickens County Democratic Executive Committee ¹, and the Pickens County Board of Education. This action was based upon allegations that the relevant election districts were impermissibly malapportioned, see generally Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and that the at-large components of the electoral schemes unconstitutionally diluted the votes of blacks. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

Before this action was commenced, the procedure for election of Pickens's five county commissioners was as follows: each of four districts nominated Commission candidates. These nominees then stood for election at large, all voters in the county voting for a candidate for each vacant Commission seat. This resulted in the election of four commissioners, each representing one district. The County Probate Judge filled the fifth Commission seat. Before this suit, the five members of the Board of Education were elected in the following manner: each of four members of the Board were required to reside in one of four districts, thus assuring each district's representation on the Board. Each of these candidates, however, was nominated on a county-wide basis. The fifth Board member was not required to reside in a particular district, and was also nominated at-large. All five members were elected on a county-wide or at large basis.

On the plaintiffs' motion, the district court invalidated the district apportionment scheme employed in both the Commission and Board of Education elections as violative of the "one man, one vote" mandate of Reynolds, supra. The court enjoined the election of Commissioners until the Alabama Legislature corrected the constitutional defects in the scheme. Alabama promptly redrew the Commission district lines, but did not alter the at-large feature of the Commission election plan. The plan was submitted to the court and approved. On this appeal, the plaintiffs do not contest the validity of the new district lines. Rather, they argue that the at-large feature of the election of county commissioners is constitutionally offensive.

In regard to the Board of Education, the district court found the time constraints imposed by an impending election to mandate a court-fashioned, rather than state-legislated, remedy. Accordingly, the court provided that the Board of Education would be elected according to the following plan: the Board would remain a five-member board. Four members were to be nominated and elected from four single-member districts corresponding to the constitutionally reapportioned Commission election districts. The fifth member, and Chairman, of the Board was to be elected at large. The plaintiffs readily accepted the district apportionment scheme and, also, the provision that four single-member districts would each elect a single representative. The plaintiffs contested, however, the at-large election of the fifth Board member.

When initially faced with this appeal, we remanded the case to the district court for further findings in regard to both the court's approval of the at-large feature of the Commission election plan and the court's decision to fashion a Board of Education electoral scheme that included an at-large component. We instructed the district court to make findings on the former issue in light of our decision in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), and on the later issue in light of the requirement that "it is the reapportioning court's responsibility to articulate precisely why a plan of single-member districts with minimal population variance (as opposed to a multimember district or at-large scheme) cannot be adopted." Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766 (1975). See also Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465 (1977); Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 989, 35 L.Ed.2d 320 (1973); Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971); Wallace v. House, 538 F.2d 1138, 1144 (5th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977).

On remand, the district court made findings and concluded that neither the Commission nor the Board of Education at-large schemes were constitutionally offensive. Record, vol. 1 at 214. When the case was resubmitted to us, however, we found that an intervening Supreme Court decision, Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), had cast doubt on the vitality of this circuit's approach, as articulated in Zimmer, supra, to the constitutional adequacy of legislatively enacted at-large schemes of election. Thus, we remanded the case again to the district court for further findings on the Commission election plan in light of the Supreme Court's mandate in Bolden. The district court has complied with our request, and has once again found the at-large plan constitutional. Record, vol. 1 at 225. The case is now in a posture that permits the resolution of plaintiffs' appeal.

II

A.

Plaintiffs first contend that the district court erred in approving the legislative decision to implement a scheme calling for the at-large election of county commissioners. The plaintiffs argue that the at-large system of election dilutes the votes of blacks, and thus violates the fourteenth and fifteenth amendments to the Constitution.

It is clear that an at-large election is not a per se unconstitutional dilution of minority votes. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 142, 91 S.Ct. 1858, 1868, 29 L.Ed.2d 363 (1971). Prior to Bolden, the law of this circuit required "a showing of racially motivated discrimination" for successful prosecution of a claim of constitutionally impermissible vote dilution under the fourteenth or fifteenth amendments. Nevett v. Sides, 571 F.2d 209, 219, 220 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). See also Bolden, supra, 446 U.S. at 99, 100 S.Ct. at 1517 (1980) (White, J., dissenting). That showing, however, could be made through recourse to inference; inference compelled by "such circumstantial and direct evidence of intent as may be available." Bolden v. Mobile, 571 F.2d 238, 246 (5th Cir. 1978) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977)), reversed, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).

A plurality of the Supreme Court has held that this circuit's previous standards for reaching an inferential determination of discriminatory intent are inadequate. Bolden, supra, 446 U.S. at 72, 100 S.Ct. at 1503 (per Stewart, J.). Our failure, however, appears to have turned on the quantum of evidence required for such a finding, rather than upon the substance of the approach itself:

(T)he Court of Appeals acknowledged that the Equal Protection Clause of the Fourteenth Amendment reaches only purposeful discrimination, but held that one way a plaintiff may establish this illicit purpose is by adducing evidence that satisfies the criteria of its decision in Zimmer v. McKeithen .... That approach, however, is inconsistent with our decisions in Washington v. Davis ... and Arlington Heights .... Although the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose, satisfaction of those criteria is not of itself sufficient proof of such a purpose.

Id. (footnote omitted).

This statement, coupled with the plurality's apparent reaffirmation of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), see id., 446 U.S. at 69, 100 S.Ct. at 1501, indicates the plurality held that we must apply a more rigorous test when drawing the inference of racially discriminatory purpose from facts, yet may indeed must, continue to reach such a determination by recourse to facts inferentially referable to a discriminatory purpose, albeit facts perhaps almost conclusively referable to that offensive purpose. Moreover, after examining Justice White's dissent in Bolden, as well as Justice Blackmun's concurrence in the same case, we believe a clear majority of the Supreme Court would endorse the constitutional validity of recourse to a factually based inferential determination of the existence of racially discriminatory purpose. The problem,...