Collins v. City of Norfolk, Va.
| Decision Date | 27 September 1989 |
| Docket Number | No. 88-3950,88-3950 |
| Parties | Herbert M. COLLINS; H. Marks S. Richard; Barbara C. Parham; William E. Swindell, Jr.; Milton A. Reid; National Association for the Advancement of Colored People, Norfolk Branch; George Banks; Julian Hazel, Plaintiffs-Appellants, v. CITY OF NORFOLK, VIRGINIA, a municipal corporation; Mason C. Andrews; Joseph A. Leafe; Joseph N. Green, Jr.; Claude J. Staylor, Jr.; Robert E. Summers; Elizabeth M. Howell, members of the Norfolk City Council; City of Norfolk Electoral Board; Paul D. Fraim; Martha H. Boone; Paul M. Lipkin, members of the City of Norfolk Electoral Board; Vincent J. Thomas, Mayor of the City of Norfolk, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Frank Ruff Parker (William L. Robinson, Samuel Issacharoff, Lawyers' Committee for Civ. Rights Under Law, Washington, D.C., James F. Gay, Norfolk, Va., on brief), for plaintiffs-appellants.
Robert Harvey Chappell, Jr. (Paul W. Jacobs, II, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., Philip R. Trapani, Harold P. Juren, Office of City Atty., Norfolk, Va., on brief), for defendants-appellees.
Before MURNAGHAN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Seven black citizens of Norfolk, Virginia, and the Norfolk Branch of the National Association for the Advancement of Colored People appeal the district court's judgment denying their claim that the at-large system of voting for city council violates rights secured by the Voting Rights Act of 1965 as amended in 1982, 42 U.S.C. Sec. 1973. The principal issue is whether the complainants have less opportunity than other members of the electorate to elect more than one councilman as the "representatives of their choice." Sec. 1973(b). 1 The complainants assign error to the district court's construction of the Act with respect to the meaning of the statutory term "representatives of their choice." They also contend that the district court erred by giving undue weight to the election of a second black councilman after this action was filed. In accordance with the Supreme Court's mandate, we have reviewed the district court's judgment in the light of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). 2 Finding merit in the assignments of error, we reverse the district court's judgment and remand the case for further proceedings.
In Collins v. City of Norfolk, 605 F.Supp. 377, 382-85 (E.D.Va.1984) (Collins I ), the district court recounted the history of the government of the city from the grant of its royal charter in 1736 to the present. During the intervening years, there were various methods of electing the city council. Much of the time the common council was elected by wards, and the select council was chosen by members of the common council. In 1918, the city adopted a new charter, which provided for a city council of five members elected at-large. Since 1952 the council has consisted of seven members elected at-large. Council members serve four-year, staggered terms, so every two years three or four of the seven seats are contested, except on occasion when vacancies open more seats. All candidates compete for the open seats. The top three or four, as the case may be, are elected without any run-off. The elections are nonpartisan.
The district court also found that black voters in Norfolk were effectively disenfranchised by the Virginia Constitution of 1902. Among the devices used to limit black participation in elections were the literacy test, which remained in effect until the enactment of the Voting Rights Act of 1965, and the poll tax, which was declared unconstitutional in Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Prior to the passage of the Voting Rights Act, black voter registration was proportionately lower than that of whites. Now the facilities of the registrar's office are equally accessible to all citizens. The black voter registration rate and the turnout rate for council elections, based on the percentage of the black voting age population, are now greater than the registration and turnout rates of white voters. See Collins I, 605 F.Supp. at 384-85.
The 1980 census disclosed that Norfolk has a population of 266,979 persons of whom 60.8% (162,300) are white and 35.2% (93,987) are black. According to the census, the city's voting age population is 201,366 of whom 64.85% (130,595) are white and 31.48% (63,396) are black. Collins I, 605 F.Supp. at 382.
From 1918 until 1968, every member of Norfolk's city council was white. In 1968, Joseph A. Jordan, Jr., a black citizen, was elected to the council, and from that time until this action was filed the council had one black member. Jordan served until 1977 when he resigned, and Rev. Joseph Green, a black citizen, was appointed to fill the vacancy. Rev. Green was elected in 1978 and re-elected in 1982 and 1986. Although the city's population is 35% black and the rate of black participation in the electoral process is high, black citizens were unable to elect more than one black member (14%) to the seven-member council until after this case commenced. Then in 1984, Rev. John Foster, a black citizen, was elected, under circumstances that will be discussed in part VI of this opinion. Since 1984, two black members (28%) have sat on the council simultaneously.
The district court construed the statutory term "representatives of their choice" to include successful candidates who received more than 50% of the black vote, even though unsuccessful candidates received a much higher percentage of the black vote. It also held that the election of Rev. Foster in 1984, after this action was commenced, and the subsequent re-election of incumbent black councilmen demonstrated that Norfolk's black citizens can elect representatives of their choice. These conclusions of the district court are critical in determining the validity of the district court's judgment. They are the subject of the complainants' primary assignments of error.
Section 2 of the Voting Rights Act of 1965 as amended in 1982 was enacted to prohibit the "denial or abridgement of the right of any citizen of the United States to vote on account of race or color." The Act seeks to ensure that black citizens shall not "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. Sec. 1973(b). The Senate Report accompanying the 1982 amendments to the Act sets forth typical factors to be considered in determining whether the Act has been violated. 3 These factors are neither comprehensive nor exclusive, and complainants need not prove any particular number of them. Gingles, 478 U.S. at 45, 106 S.Ct. at 2763. Minority voters do not have to prove that the electoral system was created or is maintained for a discriminatory purpose. Congress intended that a violation could be proved by showing discriminatory effect alone. Gingles, 478 U.S. at 35, 43-44, 106 S.Ct. at 2758, 2762-63.
"The essence of a Sec. 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. at 2764. The Supreme Court has long recognized that at-large voting in a multimember political unit, such as Norfolk's city council, may prevent minorities from electing representatives of their choice by diluting their voting strength. See Gingles, 478 U.S. at 47-48, 106 S.Ct. at 2764-65. The potential for this type of discrimination may be enhanced by staggered terms. Cf. City of Rome v. United States, 446 U.S. 156, 185, 100 S.Ct. 1548, 1565, 64 L.Ed.2d 119 (1980). But at-large voting for multimember offices does not per se violate minority voters' rights. Minority voters who assert that at-large voting in multimember political units violates the Act must prove that this electoral system "operates to minimize or cancel out their ability to elect their preferred candidates." Gingles, 478 U.S. at 48, 106 S.Ct. at 2765. More specifically, when at-large voting is alleged to be the diluting device that violates the Act, complainants must prove three facts: 1) that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; 2) that the minority group is politically cohesive; and 3) that the white majority votes sufficiently as a bloc to enable it, in the absence of special circumstances, "usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766.
Racial bloc voting--or as it is sometimes called, racially polarized voting 4--is one of the factors the Senate Report identified as probative in determining whether the Act has been violated. 5 Gingles recognized it as a key element of a vote dilution claim. 478 U.S. at 55, 106 S.Ct. at 2768. Racially polarized voting is important for two reasons. First, it is a means of ascertaining whether minority groups constitute a politically cohesive unit. Gingles, 478 U.S. at 56, 106 S.Ct. at 2769. 6 The second purpose for inquiring about racially polarized voting is "to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates." Gingles, 478 U.S. at 56, 106 S.Ct. at 2769. It is in this aspect of the district court's analysis of racially polarized voting that we detect error.
Ascertaining whether legally significant white bloc voting exists begins with the identification of the minority members' "preferred candidates" or "representatives of their choice." 7 Then the court must inquire whether in general a white bloc vote normally will defeat the combined strength of...
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