Cross v. Baxter, 77-3286

• Citation: 604 F.2d 875
• Decision Date: 16 October 1979
• Docket Number: No. 77-3286,77-3286
• Parties: John W. CROSS et al., Plaintiffs-Appellants, v. Lloyd BAXTER et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 875

604 F.2d 875

John W. CROSS et al., Plaintiffs-Appellants, v. Lloyd BAXTER et al., Defendants-Appellees.

No. 77-3286.

United States Court of Appeals, Fifth Circuit.

Oct. 16, 1979.

Laughlin McDonald, Neil Bradley, H. Christopher Coates, Atlanta, Ga., for plaintiffs-appellants.

Hoyt H. Whelchel, Jr., James C. Whelchel, Moultrie, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

GODBOLD, Circuit Judge:

Members of the Moultrie (Georgia) City Council are elected to staggered terms from the town at-large by a plurality of votes cast. ¹ Plaintiffs, black residents of Moultrie, allege that use of the at-large multimember district ² rather than single-member districts unconstitutionally dilutes their votes and the votes of all black citizens in Moultrie, who make up about 35% Of the city's population. The district court held that plaintiffs had failed in their burden of proving dilution and dismissed. We reverse and remand.

An appointment plan is not constitutionally infirm merely because it includes multimember or at-large districts. The burden is on the plaintiff to prove that such an electoral scheme unconstitutionally dilutes the votes of minority group members. See White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973); Zimmer v. McKeithen, 485 F.2d 1297, 1304-05 (CA5, 1973) (en banc), Aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). In a number of cases this court has explained the content of the plaintiff's burden of proving dilution of a minority's votes. We have indicated that four specific areas of inquiry are particularly important: (1) equality of access of minority group members to the political process; (2) whether past discrimination has the present effect of discouraging minority members' participation in the electoral process; ³ (3) whether the governmental policy underlying the use of multimember districts is tenuous; and (4) the responsiveness of the government body in question to the needs of the minority community. See, e. g., Corder v. Kirksey, 585 F.2d 708, 712 n.8 (CA5, 1978); Nevett v. Sides, 571 F.2d 209, 217 (CA5, 1978), Petition for cert. filed, 47 U.S.L.W. 3247 (Sept. 22, 1978) (No. 78-492); Kirksey v. Board of Supervisors, 554 F.2d 139, 143 (CA5) (en banc), Cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977); Zimmer, 485 F.2d at 1305.

The purpose of inquiry into these areas is to determine whether an electoral system that is unobjectionable in the abstract, nevertheless, on the specific facts presented, has the effect of diluting the impact of a minority's voting power, and whether it is intended to have such an effect. See Nevett v. Sides, 571 F.2d at 221-25. ⁴ These four areas of inquiry are not exclusive, and a plaintiff need not prove that all four inquiries produce results tending to show unconstitutional discrimination. Id. at 224; Zimmer, 485 F.2d at 1305. ⁵ The district court correctly identified the relevant primary areas of inquiry, but, for the reasons that we now discuss, its decision cannot stand.

I. Adequacy of findings of fact

F.R.C.P. 52(a) requires the district court to make findings of fact and conclusions of law in deciding all cases tried without a jury, and these must be sufficiently detailed that the court of appeals can ascertain the factual and legal basis for the district court's ultimate conclusion. See, e. g., Hydrospace Challenger, Inc. v. Tracor/MAS, Inc., 520 F.2d 1030, 1034 (CA5, 1975). Because the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, See Corder v. Kirksey, 585 F.2d at 712-13, and because the decision of such a case has the potential for serious interference with state functions, See Hendrix v. Joseph, 559 F.2d 1265, 1271 (CA5, 1977), we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have required district courts to explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning. "(C)onclusory findings as to each of the Zimmer criteria are no more helpful than an overall conclusory finding of dilution. The factual predicates for such conclusions must be clearly stated by the trial court." David v. Garrison, 553 F.2d 923, 929 (CA5, 1977). ⁶ Perhaps in no other area of the law is as much specificity in reasoning and fact finding required, as shown by our frequent remands of voting dilution cases to district courts. See, e. g., Corder v. Kirksey, supra; Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 571 F.2d 248 (CA5, 1978); Hendrix v. Joseph, supra; David v. Garrison, supra; Nevett v. Sides, 533 F.2d 1361 (CA5, 1976). As a general rule, if the district court reaches a conclusion on one of the Zimmer inquiries without discussing substantial relevant contrary evidence, the requirements of rule 52 have not been met and a remand may be called for if the court's conclusions on the other Zimmer inquiries are not sufficient to support a judgment.

II. District court's evaluation of the evidence

The district court held that the political process in Moultrie is equally open to participation by blacks, that past discrimination does not preclude present effective participation by blacks in Moultrie's electoral system, that the Moultrie city government is "not unresponsive" to the needs of the black community, and that the policy underlying Moultrie's choice of at-large elections was not one of racial discrimination. We examine each of these areas to see whether the court made full nonconclusory findings of fact and conclusions of law and used correct legal standards in evaluating the evidence.

A. Denial of access to the electoral process

A key issue in a voting dilution case is whether the minority group of which the plaintiff is a member is denied equal access to the various phases of the political process, including nomination, campaigning, voter registration, and voting. If lack of minority input into the electoral process can be demonstrated then the plaintiff has gone far toward proving that the at-large electoral system has the effect of diluting minority votes. A denial of equal access may take any of several forms, ranging from such direct governmentally-sanctioned exclusions as the poll tax or the white primary, to the existence of a private slating organization that uses racist tactics and does not seek minority votes (as in White v. Regester, supra ), to less concrete but no less effective barriers to participation such as cultural and language differences between the majority and minority, See White v. Regester, 412 U.S. at 768, 93 S.Ct. at 2340, 37 L.Ed.2d at 325, or a disproportion between the levels of education, income, employment, and living conditions of the majority and minority. See Kirksey, 554 F.2d at 144 & 145.

The district court found no current legal barriers (that is, barriers imposed by law) to full black participation in the Moultrie electoral process. The white primary was abolished in Georgia over 30 years ago, and blacks are currently allowed to register and vote in all elections. Elections in Moultrie are non-partisan, and a person who wishes to run for office in Moultrie need only file an intention to run and pay a filing fee in order to be placed on the ballot. The district court found affirmative evidence of blacks' equal access to the Moultrie political process in the recent election of a black candidate to the City Council ⁷ and in the fact that other, but unsuccessful, black candidates apparently had received some white votes. The court concluded that the plaintiffs had failed to prove that the Moultrie political process was not equally open to participation by blacks. ⁸

The district court's conclusion of no denial of access cannot stand, first because the court did not make findings concerning evidence tending to show that Official discrimination that deters political participation by blacks has not yet ended in Moultrie. Plaintiffs introduced evidence that the all-white Lions Club supervises Moutrie City Council elections. They put in other evidence that after substantial numbers of blacks had begun to register and vote the City moved a polling place from a location convenient to residents of black neighborhoods to a less convenient location farther away. Under the rule 52(a) standard, as strictly applied in voting dilution cases, this seemingly relevant contrary evidence was required to be discussed and considered.

Moreover, the inquiry into equality of access should not come to a halt simply because the evidence shows that there are no longer any barriers imposed by law to minority access. Non-legal barriers may also preclude full black participation in the political process, ⁹ and plaintiffs introduced substantial evidence, not discussed by the district court, tending to show the existence of such non-legal barriers: evidence that black candidates had encountered difficulties in campaigning in white neighborhoods and evidence that housing conditions, employment rates, income, and educational levels are considerably less advantageous for Moultrie blacks than for Moultrie whites. As we held in Kirksey, evidence of socioeconomic inequities gives rise to a presumption that the disadvantaged minority group does not enjoy access to the political process on an equal basis with the majority. "Inequality of access is an inference which flows from the existence of economic and educational inequalities." Kirksey, 554 F.2d at 145. This substantial evidence tending to show inequality of access must be considered and the Kirksey presumption applied to it.

B. Effect of past discrimination on present participation in

political process

We have recognized that past policies of racial discrimination may have present...