664 F.2d 913 (4th Cir. 1981), 80-1277, Washington v. Finlay

Docket Nº:80-1277.
Citation:664 F.2d 913
Party Name:Frank WASHINGTON, Alvin Hinkle, Gloria James, Rosa Bell Jones, Walter Storrs, Appellants, v. Kirkman FINLAY, Jr., individually and as Mayor of the City of Columbia, South Carolina; William C. Ouzts, Paul Z. Bennett, Rudolph C. Barnes, Jr., and T. Patton Adams, individually and as members of the City Council of Columbia, South Carolina; Mrs. John T.
Case Date:November 17, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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664 F.2d 913 (4th Cir. 1981)

Frank WASHINGTON, Alvin Hinkle, Gloria James, Rosa Bell

Jones, Walter Storrs, Appellants,

v.

Kirkman FINLAY, Jr., individually and as Mayor of the City

of Columbia, South Carolina; William C. Ouzts, Paul Z.

Bennett, Rudolph C. Barnes, Jr., and T. Patton Adams,

individually and as members of the City Council of Columbia,

South Carolina; Mrs. John T. (Marcia) Duffy, individually

and as chairman of the Municipal Election Commission of the

City of Columbia, South Carolina; and Wilhelmina J. Hallman

and John C. B. Smith, Jr., individually and as members of

the Municipal Election Commission of the City of Columbia,

South Carolina, Appellees.

No. 80-1277.

United States Court of Appeals, Fourth Circuit

November 17, 1981

Argued Feb. 4, 1981.

Rehearing and Rehearing En Banc Denied Dec. 23, 1981.

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Laughlin McDonald, Atlanta, Ga. (Neil Bradley, Columbia, S. C., Christopher Coates, Atlanta, Ga., Herbert E. Buhl, III, John R. Harper, II, I. S. Leevy Johnson, Columbia, S. C., on brief), for appellants.

Danny C. Crowe, Columbia, S. C. (Roy D. Bates, Columbia, S. C., on brief), for appellees.

Before BRYAN, Senior Circuit Judge, and PHILLIPS and SPROUSE, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

This is a vote dilution case in which the plaintiffs, asserting rights under the first, thirteenth, fourteenth and fifteenth amendments and 42 U.S.C. §§ 1971, 1973, and 1983, allege that the purpose and effect of the at-large election system for constituting the City Council in Columbia, South Carolina, is to dilute the voting rights of black citizens. The district court held against the plaintiffs on the merits, expressly determining that the at-large system did not violate the fourteenth or fifteenth amendments, and, without specifically addressing them, also necessarily rejecting the plaintiffs' other constitutional and statutory claims. After the district court's decision, the Supreme Court decided City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). On appeal, the plaintiffs seek reversal of the court's fourteenth and fifteenth amendment determinations and press their other constitutional and statutory claims. Alternatively, they seek a remand allowing them to present additional evidence of discriminatory purpose in light of Mobile.

We find no reversible error in the district court's ultimate determination that the at-large system violates none of plaintiffs' constitutional or statutory rights. We decline to order a remand for the presentation

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of further evidence, for in our view City of Mobile v. Bolden, while admittedly not altogether clear in its ultimate implications, did not change the law to the extent requiring reconsideration of the claims on a reopened record. We therefore affirm the district court's dismissal of the plaintiffs' individual claims, but we find reversible error in its certification of the action as a class action at the time of its dismissal of the individual claims on the merits.

I

Columbia has a council-manager form of government, adopted pursuant to the South Carolina Home Rule Act in 1975. The present plan includes four councilmen and a mayor, elected at large from the City of Columbia. This general form of government has been in existence since 1910, when Columbia adopted a commission form of government to replace a system under which the City was governed by an intendant and wardens or aldermen elected from districts.

Prior to 1975, nominations for the office of mayor and councilmen were made through political parties by use of a primary, convention or petition. In September 1975, the Columbia City Council adopted a non-partisan format for election. The present system, in part adopted in 1977, provides that the election process is open to any registered elector who is a resident of the City. Candidates may campaign on particular party platforms or for a particular party, but there is no indication of party affiliation on the ballot. Any candidate who receives a majority of the votes in the election is elected, while those who receive less than a majority must participate in a run-off between one more than the number of candidates necessary to fill the offices. Those receiving the highest number of votes in the run-off election are elected.

After this suit was filed, the City Council adopted a resolution proposing a change in the election process and in the number of councilmen. The proposal would have increased the number of council members to six, with three elected at large and three from single-member districts, plus the mayor elected at large. This plan was to be adopted if it had been approved by the voters in a referendum. There was no support either in the white community or the black community for this plan, and it was rejected. Black leaders apparently thought that it did not go far enough.

The 1970 census figures show that Columbia has a population of 113,542, of which 39,998 (35%) are black. In 1978, the date of the last city election, there were 11,464 black registered voters and 22,296 white registered voters. During the 1978 primary election for City Council, 36.8% of the blacks voted and 41.5% of whites voted. Blacks have been running regularly for the City Council for the past ten to twelve years, but no black has been elected to City Council within living memory.

As expressly found by the district court, there has been a long history of de facto and de jure discrimination in Columbia. It has touched all areas of life. Until 1948 blacks were excluded from voting by a variety of methods, including poll taxes, literacy tests and membership restrictions imposed by the Democratic Party. Schools were racially segregated from the first grade through college, and public accommodations and transportation within the city were operated on a similar basis. Although the court found this kind of overt discrimination no longer existent, it found that in the areas of "income, education, housing and employment blacks in the City of Columbia, on the average, exist at a lower socio-economic level, and there are many residential areas in the City which are racially identifiable."

As also found by the court, however, many of the techniques which had been used in the past to discourage black voters from voting or which have been found to contribute to dilution of black persons' votes have been eliminated. South Carolina no longer has an anti-single shot voting law. This law was found unconstitutional in 1972. Further, there is no longer a poll tax, literacy test, or any other restriction which could be applied in a discriminatory

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manner. Both major political parties are open to blacks and actively solicit their membership and support. Registration officials now visit various parts of the cities and counties in order to facilitate registration, no longer requiring voters to come to the courthouse or office of the Registration Board to register. Any registered voter may run for office by paying a small filing fee, which is waived on the filing of an affidavit declaring inability to pay. There is no primary and no requirement for party affiliation.

Voting is racially identifiable because of the racial identity of certain neighborhoods. In recent elections polarization on racial lines has remained significant, but does not approach totality. White and black candidates alike seek support from all areas of the city and receive support along non-racial lines. A black candidate has not yet been elected to City Council, but in the 1978 city election black candidates received approximately 25% of the vote in predominantly white areas and white candidates received 7% of the vote in predominantly black areas.

In terms of public employment, service on appointive governmental bodies, and receipt of essential and special governmental services, black citizens-while arguably not yet fairly served-are not on the other hand simply ignored by elected city officials. Forty-three percent of the city's work force is black. Blacks serve by appointment on a significant number of city boards and commissions; there are two black city judges, two black city clerks, and several black supervisors and division heads in various departments. Columbia recently has applied over 90% of the Community Development Block Grant Funds to benefit low to moderate income families, including many blacks, and has employed a Community Development Director to work with HUD in an effort to provide more housing and rental units for low income groups.

Addressing directly only the fourteenth and fifteenth amendment claims, the district court made detailed findings of evidentiary and ultimate fact to which it applied the vote dilution principles set out in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), as articulated 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). The court concluded that the plaintiffs had failed under White v. Regester's standards to prove a discriminatory effect traceable to the at-large voting system. Further, it concluded that there had been a failure to prove any racially discriminatory intent or purpose, as required by Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), to establish or maintain the system. Having found no discriminatory effect or purpose in violation of the fourteenth or fifteenth amendment, and by necessary implication having rejected all other...

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