City of Petersburg, Virginia v. United States, Civ. A. No. 509-72.

• Decision Date: 05 March 1973
• Docket Number: Civ. A. No. 509-72.
• Citation: 354 F. Supp. 1021
• Parties: CITY OF PETERSBURG, VIRGINIA, municipal building, Petersburg, Virginia, Plaintiff, v. UNITED STATES of America, and Richard G. Kleindienst, Attorney General of the United States, individually and in his official capacity, United States Department of Justice, Washington, D. C. 20530, Defendants, and Charles P. Royall et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

354 F. Supp. 1021

CITY OF PETERSBURG, VIRGINIA, municipal building, Petersburg, Virginia, Plaintiff, v. UNITED STATES of America, and Richard G. Kleindienst, Attorney General of the United States, individually and in his official capacity, United States Department of Justice, Washington, D. C. 20530, Defendants, and Charles P. Royall et al., Defendant-Intervenors.

Civ. A. No. 509-72.

United States District Court, District of Columbia.

October 24, 1972.

Judgment Affirmed March 5, 1973.

Mozart G. Ratner, Washington, D. C., John S. Davenport, III, Richmond, Va., for plaintiff.

Peter Mear, Atty., Department of Justice, Washington, D. C., for defendants.

W. H. C. Venable, Richmond, Va., for intervenors William Diamond et al.

Armand Derfner, Washington, D. C., for intervenors Royall et al.

Before MacKINNON, Circuit Judge, and GASCH and BRYANT, District Judges.

Judgment Affirmed March 5, 1973. See 93 S.Ct. 1441.

MEMORANDUM OPINION

PER CURIAM:

The City of Petersburg, like all political subdivisions of the Commonwealth of Virginia, is required to clear changes in its voting procedures in accordance with Section 5 of the Voting Rights Act of 1965 as amended, 79 Stat. 439; 42 U.S.C. § 1973c.¹ The Supreme Court has held that annexations and the changes resulting therefrom may be within the scope of that Section where they have a potential for diluting the votes of black citizens. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). Accordingly, the City seeks Section 5 clearance for an annexation which added a net of approximately 7,000 white persons to the City, increasing the white population by nearly half and eliminating a black population majority.

On December 21, 1971, the City submitted its annexation to the Attorney General for approval pursuant to the 60-day provision of Section 5. On February 22, 1972, the Attorney General, acting through the Assistant Attorney General, Civil Rights Division, objected to the annexation in a letter to the attorneys for the City of Petersburg which stated that in view of the facts relating to Petersburg, particularly the use of at-large elections for City Councilmen, it was concluded that the reduction in the proportional voting strength of blacks by the addition of a large number of white residents, diluting the votes of black citizens, amounts to a discriminatory effect on voting under the Voting Rights Act.²

In this suit, filed on March 17, 1972, the City, as plaintiff, prays for this court's declaratory judgment that the change in its election procedures resulting from the annexation to the City of parts of two adjacent counties while retaining the at-large method of electing City Councilmen, "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color."³

On motion of the plaintiff City, the court on April 5, 1972, enjoined plaintiff and the Election Board of the City of Petersburg from conducting any election under Sections 2-1 and 2-3 of Chapter 259 of the Acts of Assembly of Virginia 1961, as amended, until further order of the court. Subsequently the court entered orders allowing Charles P. Royall, et al., and William Diamond, et al., leave to intervene. Trial was had on July 20 and 21, 1972. The evidence consists of several stipulations, various exhibits and testimony of witnesses presented both live and by deposition, and out of it most of the facts emerge practically undisputed.

Petersburg is an independent city in Virginia covering an eight-square-mile area, whose 1970 population was 36,103. In 1971 the City completed steps which it had begun five years earlier to annex 14 square miles of land from adjacent Prince George and Dinwiddie Counties⁴ containing 7,323 persons, thus increasing the total population of the new city (as annexed) to 43,426. Before the annexation there were 19,701 (55%) black people, and 16,402 (45%) white people living in the City. Nearly all of the newly acquired group of persons are white and the new city limits include a population of 19,947 (46%) blacks and 23,447 (54%) whites. This amounts to an almost complete reversal percentage-wise in racial makeup.

Although the number of registered voters by race in the old City is not known, calculations based on 1970 census figures indicate that at that time blacks represented about 51% of the registered voters. The same calculations indicate that the annexed area will augment the number of white voters by about 4,800.

The annexation, whose effective date was midnight, December 31, 1971, had been generally supported by the citizens of Petersburg, black and white alike, since the mid-1960's, as a necessary measure to allow the City of expand its tax base and its potential for growth and development. The contours of the annexation were designed to bring in the territory which it was economically feasible to serve, and whose population shared a community of interest with the old City. Joseph H. Owens and Hermanze Fauntleroy, both black, were members of the City Council when it unanimously adopted the annexation ordinance in 1966. In fact, Owens originally introduced the ordinance. Fauntleroy, currently the only black Councilman, testified at the trial that he had no objection to the annexation as such, and regarded it as a feasible step for the City's development.

A map of the city and the surrounding areas is annexed.⁵ From this exhibit and the testimony at trial we conclude that the annexation as carried out was fairly intended to accomplish a legitimate governmental purpose. The city limits were expanded into those areas which were most reasonably available and which were the most desirable for accomplishing the legitimate purposes of annexation. The annexation did not include other areas which would have required leaping over the Appomattox River and those lands devoted to Fort Lee (a U. S. Army camp), a state hospital and the adjoining city of Colonial Heights. Because of these barriers annexation beyond those areas was substantially less desirable and even if it had been extended into those areas along with the existing annexation, the racial balance would not have been altered materially over the present result. We thus find nothing in the annexation which indicated that it had a racial purpose.

Petersburg is governed by a City Council of five members.⁶ Each member is elected to a four-year term; elections are at staggered intervals of two years, so that three members are elected in each presidential election year and two members are elected in each off year. In each off-year election the Council chooses one of its own members as mayor and also appoints the city manager. All Council members are chosen in at-large elections which are non-partisan, without political party identification, and the candidate must receive a majority of the votes cast to win. Run-off elections are not infrequent.⁷

As elsewhere in Virginia, there has been a long history of racial segregation and discrimination in the City of Petersburg. By various methods in the past blacks have been restricted in their ability to wield effective political influence in relation to their actual numerical strength by limitations on their voting and political participation which resulted from the operation of laws, customs, and official and individual behavior. Until recently, rigid patterns of segregation by law affected nearly every facet of life.

Although state-imposed segregation has been abated, its long continuance in the past caused a dramatic polarization of the races in Petersburg with respect to voting and this result has not been obliterated. An informal white political structure⁸ has wielded a controlling influence in city politics and runs only white candidates.⁹ Blacks have not been included in activities such as the slating of "tickets" of candidates for Council elections by community-wide groups or organizations and community-wide efforts in support of issues and programs. In recent years a black political structure has also arisen, and they likewise have run only black candidates. They have not sought to compose "slates" with white candidates.

The simple transformation of a potential black voting majority into a clear minority has no effect on relative racial voting strengths unless votes are cast along racial lines. Analysis of past election results clearly indicates that almost total bloc voting by race has been the well established pattern in Petersburg. In recent Council elections, in which both black and white candidates have participated, the vote in precincts which are racially identifiable as being almost completely black or white has been overwhelmingly along racial lines. This is clear from the following charts which reflect the results of the last four councilmanic elections.¹⁰

From this positive showing of racial bloc-voting in the wards which are identifiable as being almost totally black or white it may be inferred that the same type of voting occurs throughout the City of Petersburg in elections affecting local issues. There is no evidence which warrants a contrary conclusion.

It is noted, however, that Councilman Owens, a black, was elected in 1964, at a time when a majority of the registered voting strength of the city was white. In 1966, another black, Councilman Fauntleroy, was elected when the majority voting strength of the city was still white. In 1968, when there was a possibility that by re-electing Mr. Owens and electing another black candidate, the black members would control the council, there was an unusually large turnout of white voters in the white wards,¹¹ as a result of which Mr. Owens was defeated and the second black candidate also lost. From all the evidence, however, the conclusion is obvious that race has been a dominant factor in Petersburg elections where black candidates opposed white candidates.

The City Council of Petersburg, which has always had a majority of white...