Collins v. City of Norfolk, Va., 84-1819

• Citation: 768 F.2d 572
• Decision Date: 22 July 1985
• Docket Number: No. 84-1819,84-1819
• Parties: Herbert M. COLLINS; Dr. H. Marks S. Richard; Barbara C. Parham; William E. Swindell, Jr.; Dr. Milton A. Reid; Norfolk Branch, National Association for the Advancement of Colored People; George Banks; and Julian Hazel, Appellants, v. CITY OF NORFOLK, VIRGINIA, a municipal corporation; Vincent J. Thomas, Mayor; Dr. Mason C. Andrews; Joseph A. Leafe; Rev. Joseph N. Green, Jr.; Claude J. Staylor, Jr.; Robert E. Summers; and Mrs. Elizabeth M. Howell, members of the Norfolk City Council; City of Norfolk Electoral Board; Paul D. Fraim, Martha H. Boone, and Paul M. Lipkin, members of the City of Norfolk Electoral Board, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 572

768 F.2d 572

Herbert M. COLLINS; Dr. H. Marks S. Richard; Barbara C.

Parham; William E. Swindell, Jr.; Dr. Milton A. Reid;

Norfolk Branch, National Association for the Advancement of

Colored People; George Banks; and Julian Hazel, Appellants, v. CITY OF NORFOLK, VIRGINIA, a municipal corporation; Vincent

J. Thomas, Mayor; Dr. Mason C. Andrews; Joseph A. Leafe;

Rev. Joseph N. Green, Jr.; Claude J. Staylor, Jr.; Robert

E. Summers; and Mrs. Elizabeth M. Howell, members of the

Norfolk City Council; City of Norfolk Electoral Board;

Paul D. Fraim, Martha H. Boone, and Paul M. Lipkin, members

of the City of Norfolk Electoral Board, Appellees.

No. 84-1819.

United States Court of Appeals, Fourth Circuit.

Argued April 1, 1985.

Decided July 22, 1985.

Frank R. Parker, Washington, D.C. (William L. Robinson, Washington, D.C., Patricia M. Hanrahan; James F. Gay, on brief) for appellants.

R. Harvey Chappell, Jr., Richmond, Va. (Paul W. Jacobs, II, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., Philip R. Trapani, Harold P. Juren, Lydia C. Taylor, Norfolk, Va., on brief) for appellees.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge.

Maintenance by the City of Norfolk, Virginia, of an at-large election procedure covering members of the City Council has led to a suit by the National Association for the Advancement of Colored People and seven black Norfolk voters contending that Section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973 ¹ had been violated. The suit also claimed infringement of the Fourteenth and Fifteenth Amendments through adoption in 1918 of the at-large election as a means to promote racially discriminatory objectives.

The relief sought was replacement with a plan establishing seven single member districts, each with one representative in the City Council, together with a declaration of the illegality of and an injunction prohibiting the at-large system due to an unlawful dilution of black voting strength.

A bench trial lasting ten days and producing over 2100 pages of transcript and more than 590 exhibits resulted in a judgment in favor of the City of Norfolk and its officials joined as defendants, 605 F.Supp. 377. The issues raised, though sporting various guises, were essentially factual and, in the end, amounted to the assertion that the district judge, in his findings, was clearly erroneous. Manifestly, a heavy burden has been assumed on appeal by the parties who were unsuccessful in the district court. Anderson v. City of Bessemer, North Carolina, --- U.S. ----, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). ² Accordingly, we must examine the factual record "in light of the appropriately deferential standard" afforded the district court's findings. Id. at ----, 105 S.Ct. at 1514.

Historically, in 1918, provision was made for a five-member City Council, each to be elected at-large. Each was to have a term of four years, with terms to be staggered, presumably to minimize the possible ill-effects of a 100% turnover, all at the same time. Between 1949 and 1952, the number of councilmen rose to seven. In 1968 a nine-member Advisory Study Commission, one of whose members was black, was created by the City Council to study and evaluate the 1918 Charter. Its report and recommendations appeared in 1971. It unanimously recommended retention of staggered terms and at-large elections, agreeing that "councilmen should be elected by and be responsive to the entire community rather than a portion of it." The Commission also expressed a wish to avoid parochialism, which is another way of saying the same thing.

Since 1968, one member of the City Council has been black, Joseph A. Jordan, Jr. from 1968 to 1977, and Joseph Green from 1977 to the present. Jordan was vice mayor during his terms beginning in 1972 and 1976. Green has been vice mayor since 1982. In 1984, John Foster, another black, was elected to the City Council. ³

Plurality voting governs in Norfolk. Single-shot voting is not prohibited, i.e., casting votes for a full slate is not required. ⁴ The Norfolk rules impose no numbered place or residency requirements. ⁵ Since the passage of the Voting Rights Act in 1965, the black voter registration rate and turnout rate, based on a percentage of the black voting age population, have increased to the point that today they exceed those of Norfolk's white population. White registration is 51.2% of the white voting age population as against 52.9% for the black voting age population. Those figures developed by regression analysis are comparable to 53.1% white and 55.3% black on the homogeneous precinct analysis. Black voter turnout exceeded white voter turnout in the 1984 election. The black turnout rate was 11% higher. ⁶

Norfolk's efforts to increase voter registration have been exemplary. In the 1984 election, six staff positions were equally divided, three and three in the main registration office. Of the 371 election officers, 102 were black.

The Concerned Citizens of Norfolk, a black political organization, endorses both black and white candidates and wields considerable clout. From 1972 through 1984, it had endorsed twenty-one candidates for the City Council. Thirteen (62%) have been elected, of whom five were black and eight white.

The municipal work force was 36.16% black in 1973, 41.31% black in 1983. Representation on major boards and commissions appointed by the City Council has been reasonably good. The parties stipulated that programs and services of the fire department, the library department and the Department of Human Resources did not discriminate against blacks and have been responsive to their needs.

There are other statistics which generally show improvement in the status and circumstances of blacks in Norfolk. The median income disparity ($17,548 for whites, $10,250 for blacks), an endemic problem for the entire United States, has not been demonstrated to be related in any way to the procedures for election to the Norfolk City Council.

In amending in 1982 the Voting Rights Act, Congress called for consideration, in probing the totality of the circumstances, of the following factors:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the jurisdiction;

[8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.

[9.] whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Ad.News 177, 206-207. Those factors, while generally the most probative, are not exclusive. Congress, through the Senate Committee on the Judiciary, has made clear that at-large elections need not be eliminated. Id. p. 211. The test established by the 1982 amendments merely codified pre-existing law. See, e.g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); 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).

Looking at the facts, as established by the record as a whole, and measuring the question presented by "the totality of the circumstances," we simply are not left with a firm conviction that an error has been committed by the district judge. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Perhaps, in such detailed and lengthy findings as the district judge made here it is inevitable that a phrase sprinkled here or there might occasion regret, ⁷ but the question is not whether we could have done better--a matter necessarily of some uncertainty--but whether the district judge to whom the resolution of factual disputes is finally allocated was clearly erroneous. We cannot say that he was. Accordingly, we affirm.

AFFIRMED.

BUTZNER, Senior Circuit Judge, dissenting.

The principal issues the appellants raise address errors of law to which the clearly erroneous rule does not apply. Pullman Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Because these assignments of error are meritorious, I would vacate the judgment of the district court and remand the case for consideration of the evidence in accordance with correct legal standards.

The appellants complain that the district judge denied them a fair trial because of his expressed antipathy to the conversion of an at-large electoral system to a ward system in which some wards would have a predominately black population. In support of their complaint, the appellants emphasize the following comments of the district court during the proceedings:

Well,...