Latino Political Action Committee, Inc. v. City of Boston

• Decision Date: 19 February 1986
• Docket Number: No. 85-1484,85-1484
• Citation: 784 F.2d 409
• Parties: 30 Ed. Law Rep. 1045 LATINO POLITICAL ACTION COMMITTEE, INC., et al., Plaintiffs, Appellants, v. CITY OF BOSTON, Raymond Flynn, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 409

784 F.2d 409

30 Ed. Law Rep. 1045

LATINO POLITICAL ACTION COMMITTEE, INC., et al., Plaintiffs Appellants, v. CITY OF BOSTON, Raymond Flynn, et al., Defendants, Appellees.

No. 85-1484.

United States Court of Appeals First Circuit.

Argued Oct. 8, 1985.

Decided Feb. 19, 1986.

Joseph L. Kociubes, with whom John R. Snyder, Bingham, Dana & Gould, and Alan Jay Rom, Boston, Mass., were on brief, for plaintiffs, appellants.

Steven P. Perlmutter, Asst. Corp. Counsel, City of Boston Law Dept., with whom Mary-Ellen Nolan, Asst. Corp. Counsel, Boston, Mass., was on brief, for defendants, appellees.

Before COFFIN and BREYER, Circuit Judges, and TIMBERS, ^* Senior Circuit Judge.

BREYER, Circuit Judge.

In this case four nonprofit organizations (at least three of which represent Blacks, Hispanics and Asians) and twelve individuals challenge the City of Boston's new (1983) districting plan for the election of members of the City Council and of the School Committee. In their view the plan violates the federal Voting Rights Act of 1982, which forbids

political processes leading to ... election ... [which] are not equally open to participation by members of [a racial or language minority] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. Sec. 1973(b) (1982). They also allege related violations of the state and federal constitutions and federal civil rights acts (42 U.S.C. Secs. 1981, 1983 and 1985(3)). They now appeal from a district court judgment rejecting their claims. After examining the detailed record with care, we conclude that it adequately supports the district court's findings, and we affirm its decision.

I

This appeal represents the tail end of plaintiffs' partly successful efforts challenging Boston's districting system. The present system was created as a result of a 1981 referendum in which Boston residents voted to change the structure of the at-large nine member City Council and five member School Committee, so that each of these bodies would contain nine members elected from single member districts along with several members elected at large. (In 1982 the legislature set the number of "at large" members at four for each body.)

After the referendum, the City Council created a Special Committee to develop a specific districting plan. The Committee made it a priority to create two "minority" districts--an overriding concern of those who had testified before it (Report of the Special Committee on Electoral Districts, February 23, 1982). The Committee also sought to satisfy the following guideline:

Each such district shall be compact and shall contain, as nearly as may be, an equal number of inhabitants, shall be composed of contiguous existing precincts, and shall be drawn with a view toward preserving the integrity of existing neighborhoods.

Mass.Gen.Laws ch. 43, Sec. 131 (1977). The Committee reported a plan to the Council in early 1982, which then adopted it.

Several of the present plaintiffs (and others) then sued, claiming both that the plan violated constitutionally mandated "apportionment" requirements, see Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and that it impermissibly "diluted" minority voting strength. The district court agreed with the first ("one man/one vote") claim primarily because the Committee had relied on old (1975), rather than new (1980), census data. The court--without reaching the "minority vote dilution" claim--enjoined use of the plan. Latino Political Action Committee v. City of Boston, 568 F.Supp. 1012 (D.Mass.1983), stays denied, Latino Political Action Committee v. City of Boston, 716 F.2d 68 (1st Cir.), sub nom. Bellotti v. Latino Political Action Committee, 463 U.S. 1319, 104 S.Ct. 5, 77 L.Ed.2d 1421 (1983) (Brennan, Circuit Justice).

The Special Committee then went back to work using 1980 census data. It drew a map with fairly compact districts and boundaries that placed much of the city's Black population (22.42 percent of Boston's 562,994 total population) in districts 4 and 7. These boundaries spread Hispanic population (6.41 percent of the city's total) more evenly throughout the city than Blacks, but still a large percentage of the Hispanic population was placed in district 7. The plan also placed most of the city's Asians (which constitute 2.69 percent of Boston's population) in district 2. (We have included the specific breakdown of the nine districts by population and racial composition in an Appendix.)

The City Council adopted this second, Committee recommended, plan in August 1983. The City of Boston held its November 1983 election in accordance with the plan, electing two Black members of the City Council, and one Black and one Hispanic member of the School Committee (along with two other Black School Committee members elected at large).

Plaintiffs, not satisfied with the new plan, went back to the court. They claimed that the new plan unlawfully "packed" minorities into a few districts, which fact, along with the spreading of the Hispanic voters, "diluted" minority vote strength, thereby depriving minorities of the "equal access" to the electoral process that section 2 of the Federal Voting Rights Act of 1982 guaranteed them. The district court held an evidentiary hearing. It then measured the effects of the plan against the several factors set forth as relevant in the legislative history of the 1982 Voting Rights Act. S.Rep. No. 417, 97th Cong., 2d Sess. 27, reprinted in 1982 U.S.Code Cong. & Ad.News 206-07. These factors include:

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 THE 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, STANDARD, PRACTICE OR PROCEDURE IS TENUOUS.

The district court, 609 F.Supp. 739, essentially found a history of economic, social and other forms of discrimination against minority groups in Boston. It also found that Boston's history of discrimination in the area of voting rights was less egregious than in certain other parts of the country, in the sense that Boston had never used formal rules (poll taxes, literacy tests, etc.) aimed at keeping minority voters from the polls. In fact, Boston's minority citizens had long actively participated in the electoral process. The court further found that Boston does not now follow practices (such as candidate slating processes) that tend to minimize the impact of minority votes; it follows some practices (such as permitting 'bullet' voting) that may increase minority influence; and Boston has recently changed its voting system to one of 'district selection,' a fact that should help increase minority voter influence. The court noted that racial issues still play a role in Boston's elections. It also found voting by racial blocs to a "significant" degree; it characterized such "racial polarization" as "moderate." It added that plaintiffs failed to show that Blacks and other minorities voted together as a single racial bloc. Finally, the court noted the recent electoral successes of Black and Hispanic candidates.

On the basis of these findings, the court concluded that plaintiffs had failed to show that the Council's districting plan deprived minorities of "equal access" to the "political process." The plaintiffs now appeal.

II

In 1982 Congress amended section 2 of the Voting Rights Act partly in reaction to a Supreme Court case holding that proof that an electoral practice unlawfully discriminated against a minority required proof that state or local officials had a discriminatory intent. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Sponsors of the legislation said that proof of actual "intent" is often difficult to obtain; moreover, often a practice with a discriminatory "effect" would cause harm regardless of the "intent" that lies behind it. 1982 U.S.Code Cong. & Ad.News at 214-15. Consequently, Congress wrote into the statute a standard taken almost verbatim from the earlier Supreme Court case of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), a case in which the court based its results on "the totality of circumstances." The Court wrote that

The plaintiffs' burden is to produce...