Collins v. City of Norfolk, Va.

• Decision Date: 09 April 1987
• Docket Number: No. 84-1819,84-1819
• Citation: 816 F.2d 932
• 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: U.S. Court of Appeals — Fourth Circuit

Page 932

816 F.2d 932

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 Dec. 9, 1986.

Decided April 9, 1987.

Frank R. Parker, Washington, D.C. (William L. Robinson, Samuel Issacharoff, Washington, D.C., Lawyers' Committee for Civil Rights Under Law, James F. Gay, Norfolk, Va., on brief) for appellants.

R. Harvey Chappell, Jr., Richmond, Va. (Paul W. Jacobs, II; Christian, Barton, Epps, Brent & Chappell, Richmond, Va., on brief), for appellees.

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

ERVIN, Circuit Judge:

This case is on remand from the United States Supreme Court. See Collins v. City of Norfolk, --- U.S. ----, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986) (vacating Collins v. City of Norfolk, 768 F.2d 572 (4th Cir.1985)). The Court remanded the case for consideration in light of Thornburg v. Gingles, --- U.S. ----, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ("Gingles "). ¹

The facts were developed succinctly in this court's first opinion, see 768 F.2d at 573-75, and fully in the trial court's opinion, see Collins v. City of Norfolk, 605 F.Supp. 377 (E.D.Va.1984). The case involves a challenge to the City of Norfolk's at-large system of voting for city council members. The plaintiffs allege that this system violates the requirements of Sec. 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973. ² The Senate Judiciary Committee Majority Report accompanying the bill that amended Sec. 2 in 1982 noted seven "typical factors" that were probative of a Sec. 2 violation. These factors were originally derived from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and they form the framework for Sec. 2 analysis under the amended statute. Interpretation of these factors and their application to the facts at hand are the central problems in this case:

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.

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Ad.News 177, 206-07 (emphasis added). The Report stresses that this list is neither comprehensive nor exclusive and that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29, 1982 U.S.Code Cong. & Ad.News at 207. The Report "espouses a flexible, fact-intensive test for Sec. 2 violations," Gingles, --- U.S. at ----, 106 S.Ct. at 2764, but it limits the proof of a Sec. 2 violation in three ways.

First, electoral devices, such as at-large elections, may not be considered per se violations of Sec. 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process.... Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation.... Third, the results test does not assume the existence of racial bloc voting; plaintiffs must prove it.

Id. The Gingles decision is essentially a gloss on these factors and limiting circumstances.

The essence of a Sec. 2 claim, as characterized in Gingles, is that some electoral characteristic interacts with social and historical conditions to create an inequality in minority and majority voters' ability to elect their preferred candidates. --- U.S. at ----, 106 S.Ct. at 2764. It is essential for plaintiffs to prove that minority and majority voters consistently prefer different candidates, and that the majority, by virtue of its numerical superiority, will usually defeat the choices of the minority. Id.

The minority must show three things as a threshold matter:

1. That it is sufficiently large and geographically compact enough to make a majority, if it were voting in a single-member district;

2. that it is politically cohesive; and

3. that the majority votes sufficiently as a bloc to enable it--in the absence of special circumstances, such as an unopposed minority candidate--usually to defeat the minority's preferred candidate. Id. at ---- - ----, 106 S.Ct. at 2766.

The implication of this gloss on Sec. 2 is that, of the seven primary factors on the Senate Report list, two are typically the most important: the existence of racially polarized voting, which establishes both cohesiveness of the minority group and the power of white bloc voting to defeat the minority's candidates, and the actual results of minority-preferred candidates in winning elections.

The opinions in Gingles, while not amounting to lucid explication of all features of the amended Sec. 2, make clear that certain legal errors were committed in trying this case below. We summarize those errors here, and remand to the district court for reconsideration in light of Gingles.

I. RACIALLY POLARIZED VOTING

The legal standard for the existence of racially polarized voting looks only to the difference between how majority votes and minority votes were cast; it does not ask why those votes were cast the way they were nor whether there were other factors present in contested elections, such as "white backlash." The court should inquire separately into minority and majority voting, to see whether members of the minority usually vote for the same candidates--if so, there is the requisite minority political cohesiveness--and to see whether the majority vote is sufficiently homogenous to cancel the minority vote plus the cross-over vote. These inquiries together determine whether there is a "pattern of racial bloc voting that extends over a period of time," a critical factor in a claim of vote dilution under Sec. 2.

The district court in this case used an erroneous definition of racially polarized voting. The plaintiffs' definition, offered to the court, was that "racially polarized voting occurs when the majority of one racial group votes contrary to the majority of another racial group." The court rejected this in favor of the defendants' definition, which contained three elements:

First, the presence or absence of "white backlash," that is, whether white voters turn out in greater numbers than usual in response to the potential election of black candidates. Second, the voting patterns of black and white voters over a period of years. Finally, whether whites attempt to limit the field of candidates.

605 F.Supp. at 386. This choice was wrong, as Gingles makes clear. The trial court should not inquire into the first and third elements in determining the existence of polarized voting.

There is no consensus in Gingles on the proper role of causation evidence concerning voting patterns, except that such evidence cannot be used to rebut the claim that there is racially polarized voting. ³ The district court's definitional use of the concept of "white backlash" and the lack of white attempts to limit the field of candidates cannot be defended on the basis of any of the Gingles opinions. On remand, the court should pursue the question solely through the analysis of voting patterns, without seeking to explain why those patterns exist.

The district court in this case also rejected plaintiffs' studies of voting patterns due to methodological problems. The problems included, but apparently were not limited to, the lack of data from the mostly white Norfolk naval station residents. See 605 F.Supp. at 387. It is unclear from the opinion whether these methodological problems, leading to rejection of the plaintiffs' polarization studies, also included the failure to isolate variables other than race in the voting behavior analysis. It is within the trial court's discretion to find that methodological flaws undercut the probative value of a study so deeply as to render it inadmissible. See, e.g., United States v. 25.406 Acres of Land, 172 F.2d 990, 993 (4th Cir.), cert. denied, 337 U.S. 931, 69 S.Ct. 1496, 93 L.Ed. 1738 (1949); Fed.R.Evid. 403. But the failure to include causative factors that purport to explain voting patterns cannot be a basis for rejecting plaintiffs' studies on the existence of polarized voting. And given that this case was tried before a judge, the studies should have been admitted unless their methodological flaws were so severe as to render them irrelevant or totally misleading.

The...