639 F.2d 1358 (5th Cir. 1981), 78-3241, Lodge v. Buxton

Docket Nº:78-3241.
Citation:639 F.2d 1358
Party Name:Herman LODGE et al., Plaintiffs-Appellees, v. J. F. BUXTON et al., Defendants, Ray DeLaigle et al., Defendants-Appellants.
Case Date:March 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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639 F.2d 1358 (5th Cir. 1981)

Herman LODGE et al., Plaintiffs-Appellees,


J. F. BUXTON et al., Defendants,

Ray DeLaigle et al., Defendants-Appellants.

No. 78-3241.

Unit B

United States Court of Appeals, Fifth Circuit

March 20, 1981

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[Copyrighted Material Omitted]

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E. Freeman Leverett, Elberton, Ga., Preston B. Lewis, Jr., Waynesboro, Ga., for defendants-appellants.

David F. Walbert, Atlanta, Ga., Robert W. Cullen, Augusta, Ga., Laughlin McDonald, Neil Bradley, H. Christopher Coates, Atlanta, Ga., for plaintiffs-appellees.

Thomas M. Keeling, J. Gerald Hebert, Attys., Dept. of Justice, Washington, D. C., for amicus curiae U. S. A.

Appeal from the United States District Court for the Southern District of Georgia.

Before JONES, FAY and HENDERSON, Circuit Judges.

FAY, Circuit Judge:

Plaintiff class, consisting of all Black residents of Burke County, Georgia, brought this action to have that county's system of at-large elections declared invalid as violative of the First, Fourteenth and Fifteenth Amendments to the United States Constitution and Title 42 U.S.C. §§ 1971 and 1973. The District Court for the Southern District of Georgia held for the plaintiffs, on the grounds that the at-large election process was maintained for the purpose of limiting Black access to the political system in violation of their Fourteenth and Fifteenth Amendment rights. Accordingly, the District Court ordered that the existing system of at-large elections be abandoned and that the county be divided into five districts with each district electing one county commissioner. We affirm the judgment of the District Court in all respects.


This case arose in Burke County, a large and predominantly rural county in southern

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Georgia. In fact Burke County is the second largest of Georgia's 159 counties in terms of the area it encompasses. 1 Burke is similar to many rural counties in Georgia in that its economic base is predominantly agricultural. The county's population is somewhat over 10,000 people, a slight majority of whom are Black. 2 No Black has ever been elected to the county commission in Burke County.

This suit was filed in 1976 by various named plaintiffs as representatives of the class of all Black residents of Burke County. 3 It alleged that the county's system of at-large elections violated plaintiff's First, Fourteenth and Fifteenth Amendment rights, as well as their rights under Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, and the Reconstruction Act, 42 U.S.C. § 1971, by diluting the significance of the Black vote, thereby unconstitutionally restricting their right to meaningful access to and participation in the electoral process.

After a trial, during which both parties offered voluminous evidence in support of their respective positions, the District Court held for plaintiff. The court concluded that the at-large system had been maintained for the purpose of limiting Black participation in the electoral process. The court entered an order, setting forth the findings of fact and conclusions of law, requiring Burke County to elect five county commissioners, one from each of five districts into which the county was to be divided. 4 The court's order of October 26, 1978 was to be effectuated by the time of the general election

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on November 8, 1978. The District Court denied defendant's motion for a stay of that order pending the outcome on appeal. On October 27, 1978, this Court also denied defendant's motion for a stay pending appeal. On November 3, 1978, Justice Powell granted defendant's motion for a stay pending final disposition of the appeal by this Court.


Appellant asserts that the District Court erred by applying an incorrect legal standard in assessing appellee's constitutional rights. Appellant contends that the District Court did not and could not find that the at-large electoral system was created or maintained for the purpose of limiting Black participation in that system, as required by the Supreme Court in the recent decision of City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Appellant contends that, while the operation of the system may have had the affect of limiting Black participation, the system was not designed or maintained to so operate.

In response, appellee offers various bases for affirming the District Court's judgment. They contend that the trial court correctly found the requisite degree of purposeful or intentional maintenance of a discriminatory system within the meaning of the Supreme Court's decision in Bolden and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1972). They assert, alternatively, that inability to meaningfully participate in the electoral system violates a fundamental liberty interest within the meaning of the First Amendment. They contend that Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 and the Reconstruction Act, 42 U.S.C. § 1971(a)(1) proscribe at-large voting systems having a discriminatory effect, without regard to the purpose or intent of that system.


We believe this case turns on the interpretation of the proscriptions of the Fourteenth and Fifteenth Amendments. Therefore, we begin with a review of the application of those constitutional principles to voting dilution cases. 5 There are certain truisms that can be set out from the beginning. At-large voting is not per se unconstitutional. Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). No group, whether racially or ethnically identifiable has a right to elect representatives proportionate to its voting power in the community. White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 2339 (1973); Whitcomb v. Chavis, 403 U.S. 124, 149-50, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971). Even consistent defeat at the polls by a racial minority does not, in and of itself, give rise to constitutional claims. Whitcomb, 403 U.S., at

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152-53, 91 S.Ct. 1874. In order to find a law, racially neutral on its face, unconstitutional, the plaintiff must prove that it was conceived or maintained with the intent or purpose of promoting invidious discrimination. Id., at 149, 91 S.Ct. 1872. As this applies to voting dilution cases such as this, plaintiff must establish that the racially neutral at-large system was created or maintained for the purpose of preventing minority groups from effectively participating in the electoral process. 6

It is one thing to say that the plaintiff must establish proof that the purpose for creating or maintaining a system was to unconstitutionally restrict the access of a group to the political process, it is quite another to say what evidence will suffice to establish that discriminatory purpose or intent. Cases involving literacy tests or poll taxes, or property ownership requirements are, by comparison, easy to decide. The most obvious purpose for the creation or maintenance of such systems is clearly discrimination.

In a voting dilution case in which the challenged system was created at a time when discrimination may or may not have been its purpose, 7 it is unlikely that plaintiffs could ever uncover direct proof that such system was being maintained for the purpose of discrimination. 8 Neither the Supreme Court nor this Court, however, has denied relief when the weight of the evidence proved a plan to intentionally discriminate, even when its true purpose was cleverly cloaked in the guise of propriety. The existence of a right to redress does not turn on the degree of subtlety with which a discriminatory plan is effectuated. Circumstantial evidence, of necessity, must suffice, so long as the inference of discriminatory intent is clear.

The question then becomes, from what type of circumstantial evidence may an inference of intent be drawn, and how much of it is required? The answer to that question may be contained in the Supreme Court's recent decision in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).

Appellant contends that Bolden represents a radical shift from and rejection of the law of this Circuit rendered prior to that decision. Appellee, as might be expected, denies that Bolden represents any such radical change. We believe it fair to say that Bolden contains certain ambiguities, 9 requiring this Court to attempt to construe it in a manner consistent with

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other precedents of the Supreme Court, with the expressed and implied intent of that Court and with decisions of this Court. To that end, we will begin with a review of the Supreme Court decisions and decisions of this Court prior to the Supreme Court's ruling in Bolden. 10 Next, we will set out in detail the positions taken by the Justices in their various opinions in Bolden. At that point we will attempt to reconcile Bolden with prior decisions, and establish a workable rule to follow. 11 Only at that point will we consider the facts of this case and the various legal theories of each party.


In Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), the Supreme Court held, among other things, that the Equal Protection Clause of the Fourteenth Amendment was not violated, although the challenged multi-member district electoral system used in Marion County, Indiana resulted in the election of disproportionately few of that county's Black ghetto citizens. The Court concluded that the results were an inevitable political reality, because the Blacks, voting solidly as Democrats, were outvoted by the Republicans in most elections. In rejecting plaintiff's claim for relief, however, the Court noted several areas which, if factually proven, could have strengthened plaintiff's case. At one point the Court said,

But we have deemed the validity of...

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