Whitfield v. Democratic Party of State of Ark., 88-1953
| Decision Date | 07 December 1989 |
| Docket Number | No. 88-1953,88-1953 |
| Citation | 890 F.2d 1423 |
| Parties | Sam WHITFIELD, Jr., and Linda Whitfield, P.L. Perkins, Julious McGruder, Georgia M. Varner, Annie Sykes, Ollie Jennings, Sam Bennett, Appellants, v. The DEMOCRATIC PARTY OF the STATE OF ARKANSAS, The State of Arkansas Democratic Central Committee, The Phillips County Democratic Central Committee, Phillips County Republican Party Committee, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Carol Lani Guinier, Philadelphia, Pa., for appellants.
Tim Humphries, Little Rock, Ark., for appellees.
Before BEAM, Circuit Judge, BRIGHT, Senior Circuit Judge and HANSON, * District Judge.
Whitfield and other appellants, black voters in Phillips County, Arkansas, challenge the district court's dismissal of their complaint. Whitfield sued the Democratic Party of Arkansas and others, alleging that a state statute which requires a general (runoff) primary election if one candidate does not receive a majority of the vote is both unconstitutional and in violation of section 2 et seq. of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq. (1982). We affirm in part and reverse in part.
The population of Arkansas is approximately 16.3 percent black. Approximately 47 of the 75 counties in Arkansas have black populations below this statewide percentage, and twenty-one counties are less than one percent black. Twenty-two counties have a black population over twenty-five percent.
The state has a history of official discrimination in its electoral process. Arkansas has used racially discriminatory voting practices such as statutory restrictions on the rights of blacks to vote, discriminatory literacy tests, poll taxes, a "whites only" Democratic primary, segregated polling places, and at-large elections. Perkins v. City of West Helena, Arkansas, 675 F.2d 201, 211 (8th Cir.), aff'd mem., 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982). See also Smith v. Clinton, 687 F.Supp. 1310, 1317 (E.D.Ark.) (taking judicial notice of the history of electoral racial discrimination in Arkansas), aff'd mem., --- U.S. ----, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988).
The focus here is not only on the State of Arkansas, but also on Phillips County. While over fifty percent of the residents of Phillips County are black, black residents of legal voting age number less than fifty percent. 1 Statistics on education and income, indicators closely correlated with political participation, see Perkins, 675 F.2d at 211, reveal that blacks in Phillips County are on the average much less educated and far poorer than whites.
No black candidate has been nominated for or elected to a county-wide or city-wide office or to a state legislative position from Phillips County since the turn of the century. In the past two years, four black candidates have come in first in preferential primary elections in Phillips County, yet all four were subsequently unable to obtain the Democratic nomination because they were defeated by white candidates in general (runoff) primaries.
Racially polarized (bloc) voting is the norm in Phillips County. Whitfield's expert, who performed both extreme case analyses and bivariate ecological regression analyses on the fifteen county-wide, city-wide, and state legislative elections since 1984, testified that in all fifteen elections, voting was racially polarized as shown by the fact that black candidates were supported by an average of over ninety-four percent of black voters and, in most county-wide races, virtually no white voters supported black candidates.
The Arkansas Code sets forth the procedures for primary elections, Ark.Code Ann. Secs. 7-7-201 to -311 (1987), pursuant to amendment 29 of the Arkansas Constitution. Amendment 29 states:
Only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petition of electors as provided by law, shall be placed on the ballots in any election.
Ark. Const. amend. 29, Sec. 5 (emphasis added).
Whitfield is challenging section 7-7-202, which states:
(a) Whenever any political party shall, by primary election, select party nominees as candidates at any general election for any United States, state, district, county, township, or municipal office, the party shall hold a preferential primary election and a general primary election on the respective dates provided in Sec. 7-7-203(a) and (b).
(b) A general primary election shall not be held if there are no races where three (3) or more candidates qualify for the same office or position as provided in subsection (c) of this section, unless a general primary election is necessary to break a tie vote for the same office or position at the preferential primary.
(c) If there are no races where three (3) or more candidates qualify for the same office or position, only the preferential primary election shall be held. If all nominations have been determined at the preferential primary election, or by withdrawal of candidates as provided in Sec. 7-7-304(a) and (b), the general primary election shall not be held.
Ark.Code Ann. Sec. 7-7-202 (1987).
Under the current system, candidates for a particular party nomination run in preferential party primary elections. If three or more candidates run in the preferential primary, and none receives a majority of the votes, the top two candidates are required to run in a subsequent general (runoff) primary election. Both appellants and appellees acknowledge that, in Arkansas, the Democratic nomination is tantamount to election for most local and state offices.
The district court dismissed Whitfield's constitutional challenge to section 7-7-202 because the court found no racially discriminatory purpose or intent underlying the primary runoff enactments. The court also rejected Whitfield's argument that the runoff had been maintained for racially discriminatory purposes. Whitfield, 686 F.Supp. at 1370.
The district court denied relief under the Voting Rights Act, stating that the plaintiffs failed to convince the court that section 2 applies to runoff provisions such as those found in section 7-7-202, given the demographics of the area and the manner in which the runoffs operate. The court also concluded that, even if section 2 does apply, the plaintiffs failed to sustain their burden of proof that section 7-7-202 results in blacks having less opportunity than whites to participate in the political process or to elect candidates of their choice. Id. at 1387.
Whitfield argues that section 7-7-202 was enacted and has been maintained with discriminatory intent and thus violates the Equal Protection Clause of the fourteenth amendment. "[I]n order for the Equal Protection Clause to be violated, 'the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.' " Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (quoting Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976)). "The ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the [voting scheme] under attack exists because it was intended to diminish or dilute the political efficacy of that group." Rogers, 458 U.S. at 621, 102 S.Ct. at 3277-78 (quoting Nevett v. Sides, 571 F.2d 209, 226 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980)).
A plaintiff challenging the constitutionality of a discriminatory electoral system must prove, by a preponderance of the evidence, that the defendant had racially motivated discriminatory intent in enacting or maintaining a voting practice. Perkins, 675 F.2d at 207; Nevett, 571 F.2d at 219. See also City of Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547, 1549 (11th Cir.1987), cert. denied sub nom. Duncan v. City of Carrollton, Georgia, Branch of the NAACP, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988); Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir.1986) (citations omitted). The trial court must consider "the totality of the circumstances" surrounding the alleged discriminatory practice in order to "determine whether the [challenged voting practice] was created or maintained to accord the members of the allegedly injured group less opportunity than other voters to participate meaningfully in the political process and elect [candidates] of their choice." Perkins, 675 F.2d at 209. "Because a finding of intentional discrimination is a finding of fact, the standard governing appellate review of a district court's finding of discrimination is [the clearly erroneous standard]." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
Whitfield provided the following evidence of racially discriminatory purpose. First, in 1939, at the time the primary runoff statute was adopted in its original form, Arkansas was a one-party state and the Democratic white primary was the only election that mattered. At the same time, an amendment to repeal a poll tax, which effectively disenfranchised blacks, failed. Second, after the white primary was held unconstitutional by the Supreme Court in the 1940s, the majority runoff system was retained to diminish black electoral influence. Third, the recodification of the Election Code in 1969 maintained the use of runoffs in primary elections. Fourth, in 1975 and 1983, attempts were made to also impose general election runoffs in response to the presence of black candidates in multi-candidate municipal contests. Finally, the current version of the statute was passed in 1983; two members of the legislature who served...
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