Cousin v. McWherter

• Decision Date: 28 September 1995
• Docket Number: No. CIV-1-90-339.,CIV-1-90-339.
• Citation: 904 F. Supp. 686
• Parties: Maxine B. COUSIN, et al. v. Ned McWHERTER, et al.
• Court: U.S. District Court — Eastern District of Tennessee

904 F. Supp. 686

Maxine B. COUSIN, et al. v. Ned McWHERTER, et al.

No. CIV-1-90-339.

United States District Court, E.D. Tennessee, at Chattanooga.

September 28, 1995.

J. Kenneth Porter, Newport, TN, pro se.

Myron B. McClary, Chattanooga, TN, Margaret Carey, Center for Constitutional Rights, Greenville, MS, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, American Civil Liberties Union Foundation, Atlanta, GA, Richard H. Dinkins, Williams & Dinkins, Nashville, TN, for Maxine B. Cousin, Lorenzo E. Ervin, Ezra B. Harris, Johnny B. Holloway, G.A. Key, Sr., Buford McElrath, Annie D. Thomas, Greg Walton, Bobby Ward, Ella Bryant.

Michael W. Catalano, State of Tennessee, Office of the Attorney General, Nashville, TN, for Ned Ray McWherter, Tennessee Election Commission, Will Burns, Hamilton County Election Commission, Steve Conrad.

ORDER

HULL, District Judge.

This voting rights action is before the Court on remand from the Sixth Circuit Court of Appeals for specific findings of fact and conclusions of law. Plaintiffs brought this action alleging violations of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 and the fifteenth amendment of the United States Constitution. Plaintiffs are black adult residents and voters in Hamilton County, Tennessee.

Plaintiffs instituted this action on August 31, 1990. Plaintiffs allege that Hamilton County's use of at-large elections for judges of the Eleventh Judicial Circuit of Hamilton County, Tennessee, and for the judges of the Court of General Sessions in Hamilton County, has a discriminatory result. The plaintiffs seek both declaratory and injunctive relief.

Plaintiffs Maxine B. Cousin, Lorenzo E. Ervin, Jr., Ezra B. Harris, George A. Key, Sr., Buford McElrath, Bobby Ward, Ella Bryant, and Johnny D. Holloway are African Americans, and are registered voters of Hamilton County, Tennessee.

Plaintiffs contend that the at-large, circuit-wide method of electing the nine judges of the Eleventh Judicial Circuit of Tennessee and the three judges of the Court of General Sessions of Hamilton County dilutes the voting strength of African-American residents of Hamilton County in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and the first, thirteenth, fourteenth, and fifteenth amendments of the Constitution of the United States. The defendants contend that the state interest in maintaining the method of electing judges with their jurisdiction being coextensive with the electorate outweighs any dilution, and that the plaintiffs are entitled to no relief.

Pursuant to T.C.A. § 16-2-506(11)(A), the Eleventh Judicial Circuit consists of "nine incumbent trial court judges and the district attorney currently residing in Hamilton County who shall continue to serve the Eleventh Judicial District in their respective capacities." Pursuant to T.C.A. § 16-2-502 "each trial judge shall continue to be officially known and designated as either a chancellor, circuit court judge, criminal court judge, or law and equity court judge depending upon the provision to which he or she was elected or appointed prior to June 1, 1984."

In Hamilton County there are four Circuit Court judges, three Criminal Court judges, and two Chancery Court judges of the Eleventh Judicial Circuit, and three General Sessions Court judges. All judges are elected at-large, county-wide to eight-year terms. Tenn. Const. Art. VI, § 4; T.C.A. § 17-1-103; 1941 Tenn. Priv. Acts, ch. 6. There is no district or ward residency requirement and candidates must designate the particular division or court to which they seek election. T.C.A. § 17-1-103; 1984 Tenn. Priv. Acts, ch. 176. Elections of these judges in Hamilton County are partisan.

ELEMENTS OF A SECTION 2 CLAIM

GINGLES FACTORS

In Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2d 25 (1978), the Court delineates preconditions to establish that multimember districts operate to impair minority voters' ability to elect representatives of their choice. These factors are

(1) The minority group is sufficiently large and geographically compact to constitute a majority in a single-member district;

(2) The minority group is politically cohesive; and

(3) The white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority's preferred candidate.

In addition, the Court must find a reasonable alternative practice as a benchmark against which to measure the voting practice. Holder v. Hall, ___ U.S. ___, ___, 114 S.Ct. 2581, 2586, 129 L.Ed.2d 687, 695 (1994). A voting practice cannot be challenged as dilutive under Section 2, where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice. Holder, supra at ___, 114 S.Ct. at 2586, 129 L.Ed.2d at 695.

According to the 1990 Census, the population of Hamilton County is 285,536 people, of whom 54,477 (19%) are black. The largest concentration of blacks in Hamilton County is in Chattanooga, the county seat. The population of Chattanooga is 152,466, of whom 51,338 (33.7%) are black. Only 3,139 (5.8%) of the county's blacks live outside Chattanooga. As of October, 1989 there were 140,164 registered voters in Hamilton County, 24,824 (17.7%) of whom were black, 97,306 (69.4%) of whom were white, and 18,034 (12.9%) whose race was unknown. Blacks were 20% and whites were 80% of the 122,130 registered voters whose race was known.

The Court finds that the population of blacks in Hamilton County is sufficiently large and geographically compact so that blacks would constitute a majority in one or more single member districts. The Court also finds that the three and four-seat district configurations submitted by the plaintiffs are "reasonable benchmarks" to evaluate the challenged voting practice in this case. Holder, supra at ___, 114 S.Ct. at 2586, 129 L.Ed.2d at 695.

Based upon a four-seat configuration, corresponding to the number of judges for the Circuit Court of the Eleventh Judicial Circuit, blacks would constitute both population and voting age population (VAP) majorities in one district, and the total deviation among districts would be less than 10%. Plaintiffs have filed a proposed plan for the four districts for the Circuit Court which is further evidence that blacks are geographically compact, because in order to create four districts, there was no need to divide a single existing precinct.

Plaintiffs' submitted plan for four districts is supported by the following chart with the districts shown on Draft 4 which also follows:

                                                     Hamilton County, TN
                                                  4 Districts      4 Members
                District     Total     Black     Total     Black     % Black     % Black     Dev.     % Dev.      # of
                                                  VAP       VAP                    VAP                           members
                   1         73222      3040     56615      2081       4.2%        3.7%       1838     2.57%        1
                   2         69839     45360     51486     30908      64.9%       60.0%      -1545    -2.16%        1
                   3         72055      4165     56195      2894       5.8%        5.1%        671     0.94%        1
                   4         70420      1912     52230      1312       2.7%        2.5%       -964    -1.35%        1
                TOTAL       285536     54477    216526     37195      19.1%       17.2%
                MAXIMUM DEVIATION =   4.74%
                IDEAL DISTRICT SIZE = 71384 Single-member
                  
                

Also, based upon a three-seat configuration, corresponding to the number of judges for the Criminal Court and Court of General Sessions, the Court finds that blacks would constitute a majority in regard to voting age population and population in one district, and the total deviation among districts would be less than 10%. Plaintiffs have filed a proposed plan for the three districts for the Criminal Court and Court of General Sessions which is again further evidence that blacks are geographically compact, because in order to create three districts, there was no need to divide a single existing precinct.

Plaintiffs' submitted plan for three districts is supported by the following chart with the districts shown on Draft 3 which also follows:

                                                          Hamilton County, TN
                                                       3 Districts    3 Members
                District     Total     Black     Total     Black     % Black     % Black     Dev.     % Dev.      # of
                                                  VAP       VAP                    VAP                           members
                   1         98735      2191     74722      1487       2.2%        2.0%       3556     3.74%        1
                   2         88289     48622     65733     33055      55.1%       50.3%      -6890    -7.24%        1
                   3         98512      3664     76071      2653       3.7%        3.5%       3333     3.50%        1
                TOTAL       285536     54477    216526     37195      19.1%       17.2%
                MAXIMUM DEVIATION =   10.98%
                IDEAL DISTRICT SIZE = 95179 Single-member
                  
                

Based upon a two-seat configuration, corresponding to the number of judges for the Chancery Court, blacks do not constitute a majority in a single-member district, but would constitute an influence district in one district which will be discussed further in this opinion.

The Court also finds the second Gingles precondition, because the Court finds that blacks in Hamilton County are politically cohesive in that they tend to vote as a bloc. The political cohesiveness of blacks in Hamilton County as well as the third Gingles precondition that the white majority votes sufficiently as a bloc to usually enable it to defeat the minority's preferred candidate is established in this case from the racial bloc voting analysis performed by the plaintiffs' expert Dr. Steven Cole. Dr. Cole, stipulated to be an expert in racial bloc voting, testified as follows:

Q. NOW, HAVE YOU IDENTIFIED PLAINTIFFS' EXHIBIT 313?

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