Cane v. Worcester County, Md.

• Decision Date: 16 September 1994
• Docket Number: No. 94-1579,94-1579
• Citation: 35 F.3d 921
• Parties: Honiss W. CANE, Jr., Plaintiff-Appellee, v. WORCESTER COUNTY, MARYLAND; George M. Hurley; John E. Bloxom; Reginald T. Hancock; Floyd F. Bassett; Jeanne Lynch, Members, Worcester County Board of Commissioners, Defendants-Appellants, and George H. Dryden; Hinson Finney; Mark Frostrom, Defendants. Washington Legal Foundation; Center for Voting and Democracy; United States of America, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 921

35 F.3d 921

63 USLW 2171

Honiss W. CANE, Jr., Plaintiff-Appellee, v. WORCESTER COUNTY, MARYLAND; George M. Hurley; John E Bloxom; Reginald T. Hancock; Floyd F. Bassett Jeanne Lynch, Members, Worcester County Board of Commissioners Defendants-Appellants and George H. Dryden; Hinson Finney; Mark Frostrom, Defendants. Washington Legal Foundation; Center for Voting and Democracy; United States of America, Amici Curiae.

No. 94-1579.

United States Court of Appeals, Fourth Circuit.

Argued July 21, 1994.

Decided Sept. 16, 1994.

ARGUED: Benjamin E. Griffith, Griffith & Griffith, Cleveland, MS, for appellants. Charles Christopher Brown, Brown, Goldstein & Levy, Baltimore, MD, for appellee. ON BRIEF: Edward H. Hammond, Jr., Williams, Hammond, Moore, Shockley & Harrison, P.A., Ocean City, MD, for appellants. Deborah A. Jeon, American Civ. Liberties Union Foundation of Maryland, Centreville, MD, for appellee. Pamela Karlan, Charlottesville, VA; Edward Still, Birmingham, AL, for amicus curiae Center for Voting and Democracy; Deval L. Patrick, Asst. Atty. Gen., Jessica Dunsay Silver, Mark L. Gross, U.S. Dept. of Justice, Washington, DC, for amicus curiae U.S.

Before WILKINS and WILLIAMS, Circuit Judges, and ANDERSON, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINS wrote the opinion, in which Judge WILLIAMS and Judge GEORGE ROSS ANDERSON joined.

OPINION

WILKINS, Circuit Judge:

Honiss W. Cane, Jr. and others ¹ brought this action on behalf of all African-American residents of Worcester County, Maryland (collectively "Plaintiffs"), claiming that the at-large system used to elect members of the County Board of Commissioners ("the Board") diluted the voting strength of African-Americans in violation of Sec. 2 of the Voting Rights Act of 1965, as amended June 29, 1982. ² See 42 U.S.C.A. Sec. 1973 (West Supp.1994) (Voting Rights Act). The district court found that the at-large electoral system violated Sec. 2 and ordered the County to implement a cumulative voting system within 60 days. The County appeals, arguing that the district court erred in finding that the electoral scheme violated Sec. 2 and in adopting a cumulative voting plan as a remedy. We conclude that the findings of the district court regarding the Sec. 2 violation are not clearly erroneous, but that the court abused its discretion by ordering the County to implement the cumulative voting scheme proposed by Plaintiffs. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

I.

Worcester County is a predominantly rural county on the southeastern shore of Maryland bordering Delaware and Virginia. According to the 1990 Census, the County's total population is 35,028, of which 7,448 (or 21.26%) are African-American. The voting age population of the County is 27,331, of which 5,237 (or 19.16%) are African-American. The County's African-American population is concentrated in the communities of Pocomoke, Stockton, Snow Hill, and Berlin.

The Board is composed of five commissioners and serves as the legislative and executive body of the County. When this action was filed in November 1992, County law provided that the commissioners of the Board be elected at large under a residency district system. The County was divided into four residency districts, and four commissioners were required to reside in the residency district corresponding to the Board seat for which they were elected. The fifth member was a commissioner-at-large, who was required to be a resident of the County but was not required to reside in any particular district.

In May 1993, after this action was filed but before the first hearing was held, the Board passed Bill 93-6, which amended the voting scheme for electing commissioners to the Board. The revised plan maintained the at-large electoral scheme, but divided the County into five residency districts, eliminating the commissioner-at-large position and establishing a fifth designated post. The legislative findings accompanying Bill 93-6 indicate that the Board determined that a fifth population center had developed and that this change in population patterns warranted the creation of the fifth residency district.

After conducting a bench trial on the merits, the district court issued a memorandum opinion dated January 7, 1994, containing its findings of fact and conclusions of law. Cane v. Worcester County, Md., 840 F.Supp. 1081 (D.Md.1994). The district court concluded that the County's former electoral scheme violated Sec. 2 of the Voting Rights Act and ordered the County to submit a remedial plan within 60 days. Id. at 1091. The County advised the district court that it believed that its then current plan, embodied in Bill 93-6, met all constitutional and statutory voting rights requirements.

Plaintiffs submitted two proposed remedial plans and moved for the district court to adopt one of them. The first plan proposed by Plaintiffs, Plan A, provided for a single-member district system composed of five districts with one of the five districts being a majority African-American district. Voters would cast one vote for a candidate running in the district in which they reside. The candidate receiving the most votes in each of the five districts would be declared the winner. ³ The second plan, Plan B, proposed a cumulative voting system pursuant to which all candidates would run in a countywide at-large election. Each voter would be allowed to cast five votes and to allocate all of them to one candidate or divide them among several candidates. The five candidates receiving the most votes among all of those offering for election would win a seat on the Board. ⁴

The district court concluded that the County's current plan, embodied in Bill 93-6, was legally unacceptable because it failed to remedy the established Sec. 2 violation. Cane v. Worcester County, Md., 847 F.Supp. 369, 371-72 (D.Md.1994). Relying on the County's preference for an at-large electoral scheme expressed in the legislative findings of Bill 93-6, the court then ordered the County to implement Plan B, the cumulative voting scheme proposed by Plaintiffs. Id. at 373-74. ⁵

II.

Section 2 of the Voting Rights Act prohibits any "qualification or prerequisite to voting or standard, 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 or color" or membership in a language minority group. 42 U.S.C.A. Sec. 1973(a). A denial or abridgement of the right to vote in violation of Sec. 2 is established when:

[B]ased 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.

42 U.S.C.A. Sec. 1973(b).

In order to prove that the use of a multimember district dilutes their votes in violation of Sec. 2, members of a protected minority group must establish three "necessary preconditions." Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2d 25 (1986). "First, the minority group must be ... sufficiently large and geographically compact to constitute a majority in a single-member district." Id. at 50, 106 S.Ct. at 2766. "Second, the minority group must be ... politically cohesive." Id. at 51, 106 S.Ct. at 2766. And third, the majority must vote "sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Id.

Once the three preconditions set forth in Gingles are established, the trier of fact must determine whether, based on a totality of circumstances, the use of a multimember district violates Sec. 2. See Johnson v. De Grandy, --- U.S. ----, ----, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994). The essence of this inquiry is whether the "electoral ... structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and [majority] voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. at 2764. Factors relevant to the analysis include, but are not limited to: (1) a history in the state or political subdivision of official voting-related discrimination against the minority group; (2) the extent of racial polarization in the elections of the state or political subdivision; (3) the extent to which the state or political subdivision has used voting practices or procedures that enhanced the opportunity for discrimination against the minority group; (4) the exclusion of minority group members from the candidate slating processes; (5) the extent to which past discrimination in areas such as education, employment, and health hinder the ability of members of the minority group to participate effectively in the political processes; (6) the use of racial appeals in political campaigns; (7) the extent to which minority group members have been elected to public office in the relevant jurisdiction; (8) whether elected officials exhibit a significant lack of responsiveness to the particularized needs of minority group members; and (9) whether the policies offered to justify the challenged voting practice are tenuous. Id. at 44-45, 106 S.Ct. at 2763-64 (citing S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07). While each of these...