Badillo v. City of Stockton, Cal., s. 89-15987

• Decision Date: 27 April 1992
• Docket Number: 89-16124,Nos. 89-15987,s. 89-15987
• Citation: 956 F.2d 884
• Parties: Rudy BADILLO; Carmen Fernandez; Joe Villapando; Edward Alston, on behalf of themselves and as representatives of others similarly situated, Plaintiffs-Appellants, v. CITY OF STOCKTON, CALIFORNIA, Defendant-Appellee. Rudy BADILLO, et al., Plaintiffs, and Carrie Durham, Plaintiff-Appellant, v. CITY OF STOCKTON, CALIFORNIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 884

956 F.2d 884

60 USLW 2550

Rudy BADILLO; Carmen Fernandez; Joe Villapando; Edward

Alston, on behalf of themselves and as

representatives of others similarly

situated, Plaintiffs-Appellants, v. CITY OF STOCKTON, CALIFORNIA, Defendant-Appellee.

Rudy BADILLO, et al., Plaintiffs, and Carrie Durham, Plaintiff-Appellant, v. CITY OF STOCKTON, CALIFORNIA, Defendant-Appellee.

Nos. 89-15987, 89-16124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 1991.

Decided Feb. 10, 1992.

As Amended April 27, 1992.

Joaquin Avila, Milpitas, Cal., for plaintiffs-appellants.

James C. Craven, Springfield, Ill., for plaintiff-appellant Carrie Durham.

John E. McDermott, Cadwalader, Wickersham & Taft, Los Angeles, Cal., and Erich R. Luschei, McDermott, Will & Emery, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, CANBY and NOONAN, Circuit Judges.

SCHROEDER, Circuit Judge:

This is a challenge under the Voting Rights Act of 1965, 42 U.S.C. §§ 1971 et seq., to a new system of conducting city council elections adopted by the City of Stockton, California, in 1986. The new electoral system implements, among other features, a change from district to at-large voting in the general election. We are called upon to decide whether plaintiffs' claim, challenging the adoption of this new electoral system on the ground that it reduces the ability of minorities to elect representatives of their choice, may be maintained under section 2 of the Voting Rights Act, 42 U.S.C. § 1973(a). That section prohibits the imposition of any voting practice or procedure which results in "a denial or abridgement of the right of any citizen of the United States to vote on account of race...." Plaintiffs, a group of hispanic and black residents of Stockton, seek a return to the former single-member district electoral system.

The district court held that such a challenge to a new electoral system on the ground that, compared to the previous system, the new system reduced the minority's ability to elect representatives, could be maintained only under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. That section requires certain jurisdictions to obtain federal authorization (or "preclearance") before implementing any change in electoral systems, and prohibits any change that results in a reduction or "retrogression" of the ability of protected minority groups to elect representatives as compared with the previous system. See Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). The district court held that because the City of Stockton is not covered by the preclearance provisions of section 5, which apply only to about 38% of the country, the plaintiffs' dilution claim is not maintainable under that section.

The district court also held that in order to prevail under section 2 of the Voting Rights Act, the plaintiffs must make the same evidentiary showing that the Supreme Court required in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The plaintiffs in Gingles did not challenge the institution of a new system and request a return to the former system. They instead challenged a long-established at-large electoral system. They asked the district court to create a single-member districting system. In order to justify imposition of a new single-member district system, the Supreme Court required plaintiffs to show that a bloc voting majority was usually able to defeat candidates supported by a politically cohesive, geographically insular minority group. 478 U.S. at 49, 106 S.Ct. at 2766. In applying the Gingles analysis to this case, the district court held that while plaintiffs' evidence clearly established that hispanics and blacks together could form a majority in a single-member district, the evidence failed to establish that such a combined group of blacks and hispanics would vote in a politically cohesive manner that would guarantee election of a minority representative. It also found that plaintiffs had failed to establish that white bloc voting would defeat the candidate supported by minorities. It further found that plaintiffs failed to show either blacks or hispanics, when viewed as separate groups, voted cohesively.

We do not reject any of the district court's findings concerning the plaintiffs' inability to satisfy the standards applied in Gingles. The City's new electoral system does, however, embody many of the classic devices for reducing a minority's ability to elect representatives. We conclude that under section 2 as interpreted by the Supreme Court in Gingles, minority plaintiffs must at the very least establish that under the system they wish reinstituted under section 2, minorities exhibited sufficient cohesion to cause the election of their preferred candidates. In this case, because the minority plaintiffs have not demonstrated that minority voters have voted for minority representatives in a cohesive pattern, that condition is not satisfied. We therefore affirm.

I. BACKGROUND

The City of Stockton adopted the challenged electoral system, known as "Measure C," by referendum in November of 1986. Under the previous system, adopted in 1971, the city was divided into nine districts for purposes of municipal elections. To represent a district on the City Council, a candidate had to reside in that district and receive a plurality of votes from that district. The mayor was elected at-large from sitting council members. Recalls of city council members were based upon a recall election conducted solely within the affected district. From the time of its adoption in 1971 until the adoption of Measure C in 1986, the district system resulted in consistent representation of minority members on the City Council in greater proportion than in the city's population.

Measure C changed the preexisting district system in several material respects. Measure C reduced the number of districts from nine to six, and established a two-step election process. Under Measure C, a primary election is held within each of the six districts. The two candidates receiving the most votes in each district then run in a general election. This general election is conducted at-large, with all voters in the city choosing which of the two nominees from each district will serve on the Council. The mayor is also elected at-large in the general election, without a district nomination process. Unlike the former district system, where vacancies created by recall were filled by an election within the district, under Measure C any vacancy created by a recall election is filled by a person appointed by remaining City Council members.

According to 1980 census data, 10.4% of the population of Stockton is black; 22.1% is hispanic; and 9% are Asian and other minority groups. The 1980 census data indicate that the black and hispanic communities are concentrated in south Stockton, while north Stockton is predominantly white. At the time Measure C was adopted, of the three blacks on the council elected under the 1971 system, two were elected from predominantly white districts. There was one hispanic member. ¹

Plaintiffs, a group of hispanic and black voters residing in Stockton, filed this action in December of 1987. The action was originally certified as a class action, but the class was later decertified. Plaintiffs claimed that Measure C violates section 2 of the Voting Rights Act, and sought a return to the previous electoral system.

The district court held a bench trial in June of 1989. At the close of plaintiffs' case-in-chief, the district court granted Stockton's motion for dismissal pursuant to Fed.R.Civ.P. 41(b). The district court held that the plaintiffs had failed to make out a valid section 2 claim. See 42 U.S.C. § 1973c; 28 C.F.R. pt. 51 app. (1989). The district court applied the section 2 analysis employed in Thornburg v. Gingles, in which the plaintiff class prevailed by showing that the minority group in question could form a voting majority in a single member district, that the group was politically cohesive, and that a white majority consistently voted as a bloc to defeat any candidates preferred by the minority group. See Thornburg v. Gingles, 478 U.S. at 49-51, 106 S.Ct. at 2766-67. The district court found that the plaintiffs had not presented sufficient evidence to establish that blacks and hispanics would vote together or separately as a politically cohesive group or that the white majority would vote as a bloc, overshadowing minority voting strength. This appeal followed.

II. SECTION 2 OF THE VOTING RIGHTS ACT

Section 2 of the Voting Rights Act prohibits a state or political subdivision from imposing any voting "practice[ ] or procedure ... which results in a denial or abridgment of the right ... to vote on account of race." 42 U.S.C. § 1973(a). ² A violation of section 2 occurs where the "totality of the circumstances" reveal that "the political processes leading to nomination or election ... are not equally open to participation by members of a [protected class] ... 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." 42 U.S.C. § 1973(b).

During the years following the original enactment of section 2, many actions were filed challenging the constitutionality of allegedly discriminatory practices which had the effect of diluting minority voting strength. Such practices included multi-member, at-large voting systems which in many cases were alleged to have had the effect of making it unfairly difficult for minorities to elect representatives of their own choice. See, e.g., Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (challenging a multi-member districting plan); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) (...