Baird v. Consolidated City of Indianapolis

• Decision Date: 30 September 1992
• Docket Number: No. 91-3700,91-3700
• Citation: 976 F.2d 357
• Parties: David BAIRD, et al., Plaintiffs-Appellants, v. The CONSOLIDATED CITY OF INDIANAPOLIS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 357

976 F.2d 357

David BAIRD, et al., Plaintiffs-Appellants, v. The CONSOLIDATED CITY OF INDIANAPOLIS, et al., Defendants-Appellees.

No. 91-3700.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 1992.

Decided Sept. 30, 1992.

William R. Groth (argued), Fillenwarth, Dennerline, Groth & Towe, Stephen Laudig, Indianapolis, Ind., for plaintiffs-appellants.

Alan W. Becker, George T. Patton, Wayne C. Ponader (argued), Jeffrey S. Koehlinger, Bose, McKinney & Evans, Margo Barber, Marion County Legal Div., Susan L. Williams, David L. Rimstidt, Rimstidt, Yackey & Ladd, Gary R. Landau, Indianapolis, Ind., for defendants-appellees.

Before CUDAHY and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

There are 29 seats in the City-County Council of Marion County in Indiana, a consolidated government comprising metropolitan Indianapolis. State law requires Marion County to elect 25 persons from single-member districts and the other 4 at large. Ind.Code §§ 36-3-4-2(a), 36-3-4-3(b). Until recently only four of the single-member districts (13.8% of the 29 seats) had majorities of black voters, although 21.28% of the county's population (and 19.28% of its voting-age population) is black. Five registered black voters in Marion County (three of whom sit on the Council) filed this suit in 1987 under the Voting Rights Act, contending that both "packing" minorities into 4 districts and electing 4 seats at large undermined the influence of black voters. In 1991 the Council adopted a new plan establishing 7 districts in which the black population approximates 60%. Plaintiffs conceded that these single-member districts comply with the Voting Rights Act, because they give black voters dominating influence over 28% of the single-seat districts and 24.14% of all 29 seats. No greater number of minority-dominated districts could have been created, according to data from the 1990 census. Candidates favored by black voters carried all 7 districts in the 1991 elections. Nonetheless the plaintiffs contend that the 4 at-large seats violate § 2 of the Voting Rights Act, 42 U.S.C. § 1973, because it is possible to draw 4 large single-member districts in such a way that blacks would make up a majority in 1. Maintaining multi-member districts when minorities could do better with single-member districts, plaintiffs contend, violates § 2 even if the plan as a whole ensures proportional representation for black voters. The district court disagreed, granting summary judgment for the defendants.

Section 2(a) of the Voting Rights Act makes it illegal to deny or abridge, on account of race, any person's right to vote. Section 2(b), as amended in 1982, adds that a violation of § 2(a) occurs

if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... 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.

Section 2(b) grew out of a fierce political fight and bears the marks of compromise. Congress wanted to define violations in terms of outcome, not intent, and in so doing to reject the view taken by a plurality in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that § 2 required a showing of racially discriminatory intent. See Thornburg v. Gingles, 478 U.S. 30, 71, 106 S.Ct. 2752, 2777, 92 L.Ed.2d 25 (1986); McNeil v. Springfield Park District, 851 F.2d 937, 940 (7th Cir.1988); Ketchum v. Byrne, 740 F.2d 1398, 1403 (7th Cir.1984). But an unvarnished "results" approach can be satisfied only by proportional representation, which would offend the norm that the electoral process ensures equality of opportunity and not equality of outcome. If specified groups are entitled to "their" members in the legislature, why bother with elections? (Minorities may disagree among themselves, but then why not elections in which only members of the specified groups can vote, after the fashion of elections among registered members of Indian tribes?) Concern about the potential for subversion of universal suffrage, coupled with the substantial support in Congress for retaining Bolden, produced both the phrasing of § 2(b) requiring equal rights of "participation" (inputs rather than outputs) and the proviso disclaiming entitlement to proportional representation.

Any compromise that seeks to have things both ways, as this one did, produces nightmares in implementation. The Justices divided three ways in Gingles on the interpretation of the language. Justice Brennan, writing for a majority in this respect, concluded that plaintiffs seeking to attack a multi-member district must show at least that the minority group is sufficiently large to make up a majority in a single-member district, that the minority is politically cohesive, and that the majority usually votes as a bloc to defeat the minority's preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766. Plaintiffs contend, and we assume, that they can prove these things. Proof along these lines is not enough, however, if other considerations show that the minority has an undiminished right to participate in the political process. The district judge concluded that black voters' strength in seven districts is such a consideration. If these voters are politically cohesive, they will elect candidates of their choice and obtain representation in the Council exceeding their numbers in the electorate; and if they are not cohesive, they cannot satisfy the requirements for relief under Gingles.

Plaintiffs challenge the district court's use of their predicted (now, actual) success. We agree with them that proportional representation does not automatically defeat claims under the Voting Rights Act--not only because Justice Brennan's opinion says so, 478 U.S. at 74-76, 106 S.Ct. at 2778-2779, but also because the statute gives each person the right to political participation. Congress did not disagree with Bolden to the extent it held that intentional discrimination violates both the Act and the Constitution. Having drawn seven districts with secure black majorities, Marion County could not prevent black citizens from voting in the election for the four at-large seats or otherwise discriminate against any class of citizens. A balanced bottom line does not foreclose proof of discrimination along the way. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). Just as the proviso to § 2(b) ensures that white candidates are free to compete for electoral success that exceeds the ratio of white voters, so blacks must be free to compete for favor; the Voting Rights Act neither sets nor tolerates a cap on their achievements.

Nothing in this record suggests intentional discrimination against black persons, however, and plaintiffs therefore pin their hopes on the outcome approach of § 2(b). Any approach that depends on outcomes supposes the need to consider multiple electoral contests--the same position over many years, many positions during the same year, or both. States attempt to comply with the Voting Rights Act by creating conditions conducive to success by minorities throughout the jurisdiction as a whole. E.g., Prosser v. Elections Board, 793 F.Supp. 859 (W.D.Wis.1992) (three-judge court). That it why it does not violate the Act to have some districts in which black voters form a minority and are unlikely to elect candidates of their choice, Gomez v. Watsonville, 863 F.2d 1407, 1414 (9th Cir.1988); Campos v. Baytown, 840 F.2d 1240, 1244 (5th Cir.1988), any more than it violates the Act to have districts (such as the seven black-majority districts in Marion County) in which white voters are unlikely to be influential at the polls. See United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). Considerations of this kind persuaded the district court to measure black voters' likely success by reference to all 29 seats rather than just the 4 at-large seats.

Aggregation, according to plaintiffs, offends the majority's statement in Gingles that "[t]he inquiry into the existence of vote dilution caused by submergence in a multimember district is district specific." 478 U.S. at 59 n. 28, 106 S.Ct. at 2771 n. 28. See also id. at 101, 106 S.Ct. at 2792 (O'Connor, J., concurring in judgment) ("racial voting statistics from one district are ordinarily irrelevant in assessing the totality of the circumstances in another district"). Yet the Justices cannot have meant to foreclose examination of electoral patterns in multiple districts--for it is only by looking across multiple districts and elections that we can see patterns of success or failure. See, e.g., McGhee v. Granville County, 860 F.2d 110, 118-19 & n. 9 (4th Cir.1988). Every plan that has ever been devised to comply with the statute measures opportunities for electoral success across multiple seats. Section 2(b) expressly requires a court to consider the "totality of circumstances". Cf. Board of Estimate v. Morris, 489 U.S. 688, 701 & n. 8, 109 S.Ct. 1433, 1442 & n. 8, 103 L.Ed.2d 717 (1989) (district and at-large representatives must be considered together in determining constitutionality of apportionment scheme). All of the Justices in Gingles considered how black candidates fared in multiple elections spread over many districts and many years. References in Gingles to district-specific inquiries assume that each multi-member...