Brown v. Board of Com'rs of Chattanooga, Tenn.

• Decision Date: 08 August 1989
• Docket Number: No. CIV-1-87-388.,CIV-1-87-388.
• Citation: 722 F. Supp. 380
• Parties: Dr. Tommie BROWN; Leamon Pierce; Rev. Herbert H. Wright; J.K. Brown; Annie D. Thomas; Johnny W. Holloway; George A. Key; Lorenzo Ervin; Bobby Ward; Norma Crowder; Maxine B. Cousins; and Buford McElrath, Plaintiffs, v. BOARD OF COMMISSIONERS OF THE CITY OF CHATTANOOGA, TENNESSEE: Gene Roberts, Ervin Dinsmore, John Franklin, Pat Rose and Ron Littlefield, In Their Official Capacities as Members of the Board of Commissioners, Defendants, and State of Tennessee, Intervenor.
• Court: U.S. District Court — Eastern District of Tennessee

722 F. Supp. 380

Dr. Tommie BROWN; Leamon Pierce; Rev. Herbert H. Wright; J.K. Brown; Annie D. Thomas; Johnny W. Holloway; George A. Key; Lorenzo Ervin; Bobby Ward; Norma Crowder; Maxine B. Cousins; and Buford McElrath, Plaintiffs, v. BOARD OF COMMISSIONERS OF THE CITY OF CHATTANOOGA, TENNESSEE: Gene Roberts, Ervin Dinsmore,^* John Franklin, Pat Rose and Ron Littlefield, In Their Official Capacities as Members of the Board of Commissioners, Defendants and State of Tennessee, Intervenor.

No. CIV-1-87-388.

United States District Court, E.D. Tennessee, S.D.

August 8, 1989.

Margaret Carey and Charles Victor McTeer, Center for Constitutional Rights, McTeer & Bailey, P.A., Greenville, Miss., and Myron Bernard McClary, Chattanooga, Tenn., for plaintiffs Dr. Tommie Brown, Leamon Pierce, Rev. Herbert H. Wright, J.K. Brown, Johnny W. Holloway, George A. Key, Norma Crowder and Buford McElrath.

Laughlin McDonald, Neil Bradley and Derek Alphran, American Civil Liberties Union Foundation, Inc. and American Civil Liberties Union of Tennessee, Atlanta, Ga., and Richard Dinkins, Williams & Dinkins, Nashville, Tenn., for plaintiffs Annie D. Thomas, Lorenzo Ervin, Bobby Ward and Maxine B. Cousins.

Eugene N. Collins, City Atty., and Randall L. Nelson, Sp. Counsel, Chattanooga, Tenn., and Vincent R. Fontana, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, Steven M. Levine, Wilson, Elser, Moskowitz, Edelman & Dicker, Washington, D.C., for defendants.

Elizabeth P. McCarter, Asst. Atty. Gen., State of Tenn., Nashville, Tenn., for intervenor.

MEMORANDUM

EDGAR, District Judge.

Plaintiffs, who are black citizens of Chattanooga, Tennessee, have brought this action challenging the system for selecting members of the Board of Commissioners, Chattanooga's governing body. Plaintiffs allege that this system, which features atlarge elections for members of the Board of Commissioners, is in violation of section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, in that it (1) was adopted, and is being maintained, with the discriminatory purpose of diluting black voting strength; and (2) results in the denial or abridgment, on the basis of their race, of the right of black citizens to participate in the political process and elect representatives of their choice. Plaintiffs also claim that the method for electing members of the Board of Commissioners (herein the "Commission" or "City Commission") is violative of their rights under the First, Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution. Finally, plaintiffs assert that Tennessee Code Annotated Section 2-2-107(a) and section 5.1 of the Chattanooga charter, which permit nonresident "property qualification" as a basis for voting in municipal elections, violate the First, Ninth, Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, as well as section 2 of the Voting Rights Act. Plaintiffs seek declaratory and injunctive relief. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343(3), 2201, 2202 and 42 U.S.C. § 1973j(f).

For the reasons set forth below, the Court concludes that Chattanooga's method of electing members of its Board of Commissioners violates section 2 of the Voting Rights Act. This result makes it unnecessary for the Court to reach plaintiffs' constitutional claims which relate to the method of electing the City Commission.

The Court further concludes that section 5.1 of the Chattanooga's charter is in violation of the Fourteenth Amendment to the United States Constitution. Therefore, the plaintiffs' claim that property qualified voting in Chattanooga violates the Voting Rights Act need not be considered. The Court will grant appropriate declaratory and injunctive relief. Defendants will be granted seventy-five (75) days to submit to the Court a plan incorporating electoral procedures which comply with the Voting Rights Act.

I. General Factual Background

Since 1911 the City of Chattanooga has been governed by a five-member Commission elected from the city at-large. Terms of office are four years. Elections are nonpartisan. Candidates must run for designated posts and must win by a majority of votes cast. This often results in "runoffs." Nonresident property owners are permitted to vote in municipal elections by virtue of a state statute, Tennessee Code Annotated Section 2-2-107, and section 5.1 of Chattanooga's charter.

The designated Commission posts are Mayor; Commissioner of Fire and Police; Commissioner of Education and Health; Commissioner of Public Utilities, Grounds and Buildings; and Commissioner of Public Works, Streets and Airports. Each Commissioner, including the Mayor, has one vote. The Mayor is the ex-officio president of the board. He also has general supervision over the city's financial affairs. The other Commissioners serve as the administrative heads of their respective departments. The Commissioner of Education and Health is, by virtue of his office, Chairman of the Chattanooga Board of Education which has the responsibility of maintaining the city schools and which is comprised of representatives who are themselves elected from districts within the City of Chattanooga.

Blacks have always been a significant minority of the population of Chattanooga. In 1980, blacks made up 31.69% of the population. After the Commission was created in 1911, no black ran for a Commission post until 1955. Only one black candidate, John Franklin, has ever been elected to the Commission. He was elected in 1971 and has been reelected since. Since 1955 there have been 15 other black candidates for the Commission. None have been elected.

II. The Voting Rights Act — General

The Voting Rights Act was enacted in 1965 to achieve full participation for all Americans in our democracy. S.Rep. No. 417, 97th Cong., 2d Sess. 4, reprinted in 1982 U.S.Code Cong. & Admin.News 177, 181. See generally, H.R.Rep. No. 439, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Admin.News 2437. Initial efforts under the Voting Rights Act focused on voter registration. More than a million black citizens were registered from 1965 to 1972. S.Rep. No. 417, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News 177, 183. Despite registration gains, however, black voters still found themselves faced with various electoral practices which lessened the impact of, or "diluted," their votes.

Some of the electoral practices which have been identified as vote dilution devices are: elective posts made appointive, gerrymandered electoral boundaries, majority run-offs, and at-large elections. Id. Courts have identified other vote dilution methods. These include numbered or designated posts, Rogers v. Lodge, 458 U.S. 613, 627, 102 S.Ct. 3272, 3280, 73 L.Ed.2d 1012 (1982), discriminatory annexations, City of Port Arthur v. United States, 459 U.S. 159, 166-67, 103 S.Ct. 530, 534-35, 74 L.Ed.2d 334 (1982), and staggered terms, City of Rome v. United States, 446 U.S. 156, 183-85, 100 S.Ct. 1548, 1564-65, 64 L.Ed.2d 119 (1980). As early as 1969, the Supreme Court had determined that "the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot." Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833, 22 L.Ed.2d 1 (1969).¹

In the 1970's, particularly in the South, many cases were filed against governmental bodies by black and hispanic citizens claiming that one or more of the above electoral devices wrongfully diluted their votes in violation of the Voting Rights Act and the Constitution. Courts continued to grope for the proper legal standards, with which to evaluate alleged vote dilution.

Ultimately, the Supreme Court in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980),² determined that minority voters, to establish that their votes have been diluted in violation of section 2 of the Act, as well as violation of the Fourteenth and Fifteenth Amendments to the Constitution, must prove that the contested electoral practice was adopted or maintained by the governmental officials for a discriminatory purpose. 446 U.S. at 66, 100 S.Ct. at 1499. This touched off considerable congressional debate about the intent and desired effect of the Voting Rights Act. Those who wanted to change the result of Bolden prevailed, and in 1982, section 2 of the Act was amended to add a "results" test to the "intent" test. After 1982, a section 2 violation could be made out by proving intent or that the challenged system in the context of all the circumstances results in minorities being denied equal access to the political process. (Legislative History, p. 205).

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, as amended ("Section 2"), provides that:

(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 1973(b)(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

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