Mallory v. Eyrich

Decision Date12 February 1988
Docket NumberNo. 87-3838,87-3838
Citation839 F.2d 275
PartiesWilliam MALLORY, et al., Plaintiffs-Appellants, v. George C. EYRICH, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas I. Atkins (argued), Brooklyn, N.Y., for plaintiffs-appellants.

Andrew I. Sutter (argued), William J. Steele, Asst. Atty. Gen., Columbus, Ohio, James W. Harper (argued), Asst. Pros. Atty., Cincinnati, Ohio, for defendants-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and McRAE, District Judge. *

LIVELY, Chief Judge.

The principal question in this case is whether section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973 (1982), applies to judicial elections. Section 2, as amended in 1982, provides:

Sec. 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section 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.

I.
A.

The plaintiffs are black residents of Cincinnati who are qualified to vote in judicial elections. The defendants are the governor and secretary of state of Ohio and the chairman and members of the Hamilton County Board of Elections. In 1965 the Ohio legislature merged the formerly separate Municipal Court of Cincinnati and Hamilton County Court into the Hamilton County Municipal Court. The judges of this consolidated court are elected at large for six-year terms, on a staggered basis, at elections held every two years simultaneously with elections for the Cincinnati city council and school board.

According to the 1980 census the black population of Cincinnati was 33.85% and that of Hamilton County as a whole was 19.01%. The complaint alleges that in the elections for municipal judges held since the merger of the two courts, every black candidate for municipal judge has received a significantly smaller percentage of the vote in the overwhelmingly white areas of the county outside Cincinnati than in Cincinnati itself. These sharp differences cannot be explained, according to the complaint, by factors other than the racial make-up of the areas. No black candidate has won a contested race for municipal judge against a white opponent when the electorate consisted of all the qualified voters of Hamilton County.

The plaintiffs sought certification of a class action and a declaration that the countywide election system violates the Equal Protection Clause of the Fourteenth Amendment, the guarantees of enfranchisement contained in the Fifteenth Amendment, the Civil Rights Act of 1871 (42 U.S.C. Sec. 1983), the Voting Rights Act of 1965, as amended, and the Equal Protection Clause of the Ohio Constitution. In addition, the complaint requested the district court to enter preliminary and permanent injunctions prohibiting the further use of the present procedures for electing judges of the Hamilton County Municipal Court, and an order "requiring the development and adoption of Cincinnati and Hamilton County judicial election plans and procedures which are free of racial bias and exclusivity."

B.

The parties filed cross-motions for summary judgment addressing the Voting Rights Act and constitutional claims and each filed memoranda in support and opposition. Following a hearing where counsel argued the motions, the court granted the defendants' motion for summary judgment and entered an order containing findings of fact and conclusions of law. After reviewing the language of section 2 of the Act and the purpose of the 1982 amendment, the district court stated in its order that there was sufficient evidence in the record to find in favor of the plaintiffs on the basis of the results of recent elections. However, the court concluded that section 2 does not apply to judicial elections, and granted judgment for the defendants on this basis.

The district court recognized that the 1982 amendment to section 2 was designed to broaden its coverage. Prior to the enactment of that amendment, section 2 prohibited the imposition or application of any voting qualification or prerequisite to voting or standard, practice, or procedure to "deny or abridge the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. Sec. 1973 (1976). The Supreme Court had construed this language as requiring a showing of intent to deny or abridge the right to vote. See City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The amended version prohibits the imposition or application of any such incidence of voting "which results in a denial or abridgement of the right ... to vote." 42 U.S.C. Sec. 1973(a) (1982) (emphasis added). The purpose of the amendment was to eliminate any "intent" requirement and make it clear that a violation can be established by proof of discriminatory results alone. Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 2763, 92 L.Ed.2d 25 (1986).

C.

The district court based its determination that section 2 does not apply to judicial elections on two grounds. First, the court ascribed great significance to use of the word "representatives" in the 1982 amendment in describing how a violation of section 2 is established in a case claiming dilution of voting power. The amendment refers to members of a protected class having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. Sec. 1973(b) (1982). The court pointed to judicial statements that judges are not representatives of constituents in the same sense as legislators. E.g., Buchanan v. Rhodes, 249 F.Supp. 860 (N.D. Ohio 1966). The district court also relied on a one-man, one-vote case in holding that courts do not attempt to equalize the population of districts in judicial elections. Buchanan v. Gilligan, 349 F.Supp. 569 (N.D. Ohio 1972).

II.

Although the district court did not discuss the one-man, one-vote principle, the defendants have cited a number of cases for the proposition that the principle does not apply to judicial elections. We conclude that the one-man, one-vote cases do not control cases brought under the Voting Rights Act. The one-man, one-vote principle was enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), a case seeking an end to the malapportionment of state legislatures. The point of contention in Reynolds v. Sims was the population of different voting districts, not their racial composition. By permitting the same number of officials to be chosen by the voters in voting districts having significantly different populations, the states involved in Reynolds v. Sims had diluted the votes of those voters living in the more heavily populated areas. The racial makeup of the districts was not an issue, and that is the sole issue in section 2 cases. Further, the one-man, one-vote cases address an equal protection problem directly under the Fourteenth Amendment. The plaintiffs' section 2 claim involves the construction of an Act of Congress, a different task from construing and applying a provision of the Constitution.

III.

The district court relied principally upon the use of the word "representatives" in amended section 2. In doing so it overlooked many indications that such a restrictive reading is not warranted. The language of the original section 2 was absolute: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed...." 42 U.S.C. Sec. 1973 (1976) (emphasis added). No exceptions were expressed or implied. The 1965 Act also defined the terms "vote" and "voting" very broadly.

The terms "vote" and "voting" shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.

Section 14, 42 U.S.C. Sec. 1973l (c)(1). Candidates for elective judicial positions are unquestionably "candidates for public ... office." Thus, sections 2 and 14, taken together, strongly suggest that Congress intended to reach all voting and electoral practices that could be used to deny or abridge the right to vote in any election on the basis of race.

A.

In upholding the constitutionality of the Voting Rights Act, the Supreme Court described the purpose of the Act in broad terms. "The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has...

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