Cottier v. City of Martin, CIV 02-5021-KES.

• Decision Date: 09 February 2007
• Docket Number: No. CIV 02-5021-KES.,CIV 02-5021-KES.
• Citation: 475 F.Supp.2d 932
• Parties: Pearl COTTIER and Rebecca Three Stars, Plaintiffs, v. CITY OF MARTIN; Todd Alexander; Rod Anderson; Scott Larson; Don Moore: Brad Otte; and Molly Risse, in their official capacities as members of Martin City Council; and Janet Speidel, in her official capacity as Finance Officer of City of Martin, Defendants.
• Court: U.S. District Court — District of South Dakota

475 F.Supp.2d 932

Pearl COTTIER and Rebecca Three Stars, Plaintiffs, v. CITY OF MARTIN; Todd Alexander; Rod Anderson; Scott Larson; Don Moore: Brad Otte; and Molly Risse, in their official capacities as members of Martin City Council; and Janet Speidel, in her official capacity as Finance Officer of City of Martin, Defendants.

No. CIV 02-5021-KES.

United States District Court, D. South Dakota, Western Division.

February 9, 2007.

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Donald P. Knudsen, James S. Nelson, Sara Frankenstein, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD, for Defendants.

REMEDIAL ORDER

SCHREIER, Chief Judge.

Plaintiffs filed suit alleging that Martin Ordinance 122 dilutes the voting strength of Indians by fragmenting the Indian voters into three wards, which has the result and effect of denying the rights of Indians to vote on account of race in violation of § 2 of the Voting Rights Act of 1965(VRA). On remand from the Eighth Circuit Court of Appeals, the court found that Ordinance 122 violated § 2 of the VRA. Cottier v. City of Martin, 466 F.Supp.2d 1175 (D.S.D.2006). The court gave defendants, acting on behalf of the City of Martin, the first opportunity to propose a districting plan that would remedy the § 2 violation. Defendants failed to propose a remedial plan, instead arguing that there is no possible remedy for the violation.

"When a Section 2 violation is found, the district court is responsible for developing a constitutional remedy." Bone Shirt v. Hazeltine, 461 F.3d 1011, 1022 (8th Cir.2006). The defendant-municipality should receive the first opportunity to propose a remedial districting plan. See Cottier v. City of Martin, 445 F.3d 1113, 1123 (8th Cir.2006). If defendant refuses to propose a plan, then the court must fashion its own remedy. Williams v. City of Texarkana, Ark., 32 F.3d 1265, 1268 (8th Cir.1994).

Here, defendants refused to propose a remedy, and thus, the court must fashion its own. The court may fashion its own remedy or use a remedy proposed by plaintiffs. See Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1124 (5th Cir.1991). "In formulating a remedial plan, the first and foremost obligation of the district court is to correct the Section 2 violation." Bone Shirt, 461 F.3d at 1022. Second, the court's remedy should "achieve population equality while avoiding, when possible, the use of multi-member districts." Id. Third, the remedial plan must not violate § 2 or § 5 of the VRA. McDaniel v. Sanchez, 452 U.S. 130, 148, 101 S.Ct. 2224, 2235, 68 L.Ed.2d 724 (1981); see also Bone Shirt, 461 F.3d at 1023. Finally, to the extent that an existing plan does not violate the Constitution or federal law, the court's remedial plan must adhere to the legislative judgments reflected in the existing plan. Upham v. Seamon, 456 U.S. 37, 41-42, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1982).

1. Correct the Violation

For the reasons discussed below, the court adopts plaintiffs' Plan C as described herein. In Plan C, Martin is not divided into aldermanic wards. Instead, Plan C adopts an at-large voting scheme using cumulative voting. (Docket 413-4). Martin will still have six city council members, elections for which will be held in a 3-3 staggered cycle. Elections will be held in 2007 for the three seats whose current members' terms expire in 2007. Elections will be held in 2008 for the remaining three seats. Candidates shall run as a field without designation of positions or number posts. Candidates can be from any part of Martin. Pursuant to the cumulative voting scheme, each voter will receive three votes. Each voter can cast one, all, or any whole number of his or her votes for any one or more of the candidates. No voter shall be required, however, to cast one vote, or any other minimum number of votes, for any candidate. Nor shall any voter be required to cast all of the votes available to that voter in a particular election. The winners of the election will be the three candidates that receive the highest number of votes.

Plan C remedies the § 2 violation in this case because it gives Indians in Martin a strong chance to elect one member of the Martin City Council in each election cycle. In analyzing Plan C's ability to give Indian voters in Martin an opportunity to elect a candidate of their choice, the court employs a common political science theory called the "threshold of exclusion." See Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870, 874 (M.D.Ala.1988), aff'd, 868 F.2d 1274 (11th Cir.1989). "The threshold of exclusion is the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances." Id. (internal quotation omitted); see also Michael E. Lewyn, When is Cumulative Voting Preferable to Single-Member Districting?, 25 N.M. L.R ev. 197, 203-04 (1995) ("The threshold of exclusion is the fraction of the electorate that a group must exceed in order to elect the candidate of its choice, regardless of how the rest of the electorate votes." (internal quotation omitted)). In the cumulative voting context, the threshold of exclusion is calculated according to the following formula: 1/(1 + number of seats available). See Cousin v. Sundquist, 145 F.3d 818, 830 (6th Cir.1998). Members of a cohesive minority will have an opportunity to elect the candidate of their choice so long as their percentage of the electorate population is greater than the threshold of exclusion. See Cane v. Worcester County, Md., 847 F.Supp. 369, 372 & n. 5 (D.Md.1994), reed on other grounds by 35 F.3d 921 (4th Cir.1994).

Under Plan C, there will be three seats available in each election. As a result, the threshold of exclusion will be 25 percent. Ex. 180, at 19-20; T.VI, p. 1188-89.¹ The court previously found, and the Eighth Circuit affirmed, that Indians in Martin are politically cohesive. As a cohesive group, Indians in Martin should be able to elect a member of the Martin city council per election cycle because they compose over 36 percent of the voting age population (VAP) in Martin. Ex. 181. Additionally, poll results from the June 2003 aldermanic election indicate that Indians constituted over 31 percent of the persons who actually voted. Ex. 184. Similarly, Indians turned out well in excess of 25 percent in the 2002 general election. T.VI., p. 1190. Because Indian voters in Martin represent more than 25 percent of the electorate, they exceed the threshold of exclusion and should be able to elect one candidate of their choice per election cycle. Plan C thus remedies the § 2 violation caused by Ordinance 122, whereby Indians are cracked among three wards to prevent them from electing their preferred candidate.²

Defendants argue that South Dakota law prohibits the court from adopting Plan C. Specifically, defendants argue that Martin uses the common council form of municipal government, and that state law permits neither at-large districts nor cumulative voting in the common council structure. See SDCL 9-8-4. Defendants also argue that only the voters of Martin, not the court, can change Martin's form of government.

The court disagrees that South Dakota law prevents the court from adopting Plan C. Indeed, the Eighth Circuit explicitly held that the court had the power to adopt Plan C: "If, at the remedy stage, a redistricting of Martin's wards appears unworkable, it appears that [Plan C] would be a viable option." Cottier, 445 F.3d at 1123 n. 7. The Eighth Circuit's decision on this matter is the law of the case, and this court is bound to follow it. See Mosley v. City of Northwoods, Mo., 415 F.3d 908, 911 (8th Cir.2005). The court thus concludes that it has the power to adopt Plan C.

The more difficult issue is whether the court should adopt Plan C even though it is not a municipal government structure authorized by South Dakota law. The decision by the Court of Appeals for the Seventh Circuit in Harper v. City of Chicago Heights, 223 F.3d 593 (7th Cir.2000), provides guidance. In Harper, the district court found that the city's at-large voting system violated § 2 of the VRA. At the remedy stage, the city proposed a 6-1 plan, whereby six city council members were elected in single-member districts and the mayor was elected at-large. The district court found that the city's proposal did not remedy the § 2 violation. The district court then fashioned an at-large, cumulative voting scheme as its remedy.

On appeal, the Seventh Circuit affirmed the district court's finding that the city's proposal did not remedy the § 2 violation. Id. at 600. The Seventh Circuit reversed the district court's remedial plan, however, because the district court changed the city's governmental structure without either complying with the statutory change mechanism or "making a judicial finding that it was necessary to make these changes to comply with federal law." Id. at 601. The Seventh Circuit limited its decision to the facts of the case and refused to eliminate cumulative voting as a potential remedy for § 2 violations. See id.

According to Harper, the court must determine whether a form of municipal government authorized by South Dakota law would remedy the violation in this case. Plaintiffs' Plan A continues Martin's current common council structure but attempts to redraw the lines in order to create one majority-Indian ward (Ward 1). (Docket 413-2). Defendants argue that Plan A is not an appropriate remedy because it does not provide Indians an effective majority in Ward 1. The court agrees.

In fashioning a remedy, "the creation of districts with bare majorities is not enough for a complete remedy." Jeffers v. Tucker, 847 F.Supp. 655, 660 (E.D.Ark.1994) (three-judge district court). Instead, the remedy should provide sufficient cushion to give minorities "a reasonable opportunity to elect a representative of their choice." Smith v. Clinton, 687 F.Supp. 1361, 1362-63 (E.D.Ark.1988) (internal quotation...