Dillard v. Baldwin County Com'n, Civ. A. No. 87-T-1159-N.

• Decision Date: 06 June 1988
• Docket Number: Civ. A. No. 87-T-1159-N.
• Parties: John DILLARD, et al., Plaintiffs, v. BALDWIN COUNTY COMMISSION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

694 F. Supp. 836

John DILLARD, et al., Plaintiffs, v. BALDWIN COUNTY COMMISSION, Defendant.

Civ. A. No. 87-T-1159-N.

United States District Court, M.D. Alabama, N.D.

June 6, 1988.

James U. Blacksher, Mobile, Ala., Larry Menefee, Edward Still, Reeves & Still, Birmingham, Ala., Julius L. Chambers, Lani Guinier, Pamela Karlan, NAACP Legal Defense Fund, New York City, Allan R. Chason, Chason & Chason, Bay Minette, Ala., for plaintiffs.

Don Siegelman, Alabama Atty. Gen., Susan Russ, Asst. Atty. Gen., David Boyd, Balch & Bingham, Montgomery, Ala., Taylor D. Wilkins, Jr., Claude E. Bankester, Wilkins, Bankester & Biles, P.A., Bay Minette, Ala., for defendant.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

The plaintiffs have brought this lawsuit on behalf of all black citizens in Baldwin County, Alabama.¹ They charge that the at-large system used to elect the Baldwin County Commission violates § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973.² A violation of § 2 is established if official action was taken or maintained with a racially discriminatory "intent" or the action has racially discriminatory "results," determined according to certain Congressionally approved criteria. McMillan v. Escambia County, 748 F.2d 1037, 1046 (5th Cir.1984) (Former Fifth); Buskey v. Oliver, 565 F.Supp. 1473, 1481 & n. 18 (M.D.Ala.1983).

The Baldwin County Commission has conceded that its at-large election system violates § 2, and thus the only issue before the court is what measures are necessary to remedy the violation. The special master in this case, United States Magistrate John L. Carroll, has recommended that the court adopt the plaintiffs' proposed plan of seven single-member districts, rather than the county commission's proposed plan of a "pure" at-large system. For reasons that follow, the court concludes that the magistrate's recommendation should be adopted.

I.

Baldwin County is located in southwest Alabama. According to the 1980 census, there are 78,556 people in the county of whom 12,047, or 15.34%, are black, and 65,840, or 83.81%, are white.³ Most of the black population is concentrated in neighborhoods on a strip along the county's western border.

Baldwin County is currently governed by a board of four commissioners. The system used to elect the commission has three structural features particularly relevant here. First, a candidate for commissioner must run at-large, or countywide, with all voters in the county allowed to vote for the candidate. Second a candidate must run for a "numbered post" or separate place. Each commissioner position carries a separate number, and each candidate qualifies for a specific number and place, with each voter allowed to vote for only one candidate in each place.⁴ And third, a candidate must receive a majority of votes cast in the primary to win the nomination of a political party. If no candidate receives a majority of votes, a run-off primary election is held. The majority-vote requirement does not apply to general elections.

The Baldwin County Commission has proposed a "pure" at-large election system to cure the § 2 violation in its current system. Under the commission's plan, elections would continue to be at-large, but the numbered-place and majority-vote components would be abandoned. The size of the commission would be increased to five.

The plaintiffs contend that the county commission's plan does not remedy the § 2 violation, and, indeed, violates § 2. They have proposed a remedy of their own, of seven single-member districts, one of which would have a substantial majority of black voters.

II.

Congress has made clear that in determining a remedy for a § 2 violation, a

court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice.

S.Rep. No. 417, 97th Cong.2nd Sess. 31, reprinted in 1982 U.S.Code Cong. & Ad. News, 177, 208 (emphasis added). Thus, in the appeal of another Dillard case, the Eleventh Circuit Court of Appeals instructed that this court could not adopt any remedy that itself violates § 2, or that does not itself "completely" and "with certitude" remedy the § 2 violation. Dillard v. Crenshaw County, 831 F.2d 246, 249, 252 (11th Cir.1987). However, in exercising this broad equitable authority, a court must, whenever practicable, afford the jurisdiction an opportunity to remedy the violation first, Wise v. Liscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978), with deference accorded the jurisdiction's plan if it provides a full, legally acceptable remedy. Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1438-40 (11th Cir.1987). But if the jurisdiction fails to remedy completely the violation or if its proposed remedial plan itself violates § 2, the court must itself take measures to remedy the violation, but any court remedy must be narrowly tailored to include only those measures necessary to cure the defect. Upham v. Seamon, 456 U.S. 37, 42-43, 102 S.Ct. 1518, 1521-22, 71 L.Ed.2d 725 (1982) (per curiam).

Because the nature and scope of a required remedy depends on the nature and scope of the violation, the first issue for the court is, What exactly is the § 2 violation here? Although the Baldwin County Commission conceded liability, it did not reach an agreement with plaintiffs as to how its present election system violates § 2. Fortunately, the at-large system used by the commission is the same as the one used by the county school board, and this court recently addressed in some detail in another, companion case involving the school board, just how the system violates § 2.⁵ Dillard v. Baldwin County Board of Education, 686 F.Supp. 1459 (M.D.Ala. 1988).⁶

Much abridged, the holdings and findings of the court in the school board case were as follows. First, the court held that the at-large scheme was a product of "intentional" racial discrimination. The evidence reflected that, for the purpose of minimizing black voting strength, the Alabama legislature reshaped local at-large election schemes by enacting "anti-single shot" laws in the 1950's and by replacing those laws in 1961 with "numbered place" laws. The evidence also established that the legislature engaged in a century-long pattern and practice of switching between local at-large election systems and local single-member district systems as needed to diminish black voting strength. Baldwin County Board of Education, 686 F.Supp. at 1467-69; see also Dillard v. Crenshaw County, 640 F.Supp. 1347 (M.D.Ala.1986). The court went on to conclude that the at-large system used by the school board was a product of both invidious schemes and that the at-large system was still having its intended racist effect. Baldwin County Board of Education, 686 F.Supp. at 1468.

Second, the court held that § 2 was violated because, as a "result" of the county's at-large system, black voters in Baldwin County do not have an opportunity equal to that of whites to participate in the political process and to elect candidates of their choice. This holding was based on two significant findings. First, the court found extensive "racially polarized voting" in the county: that is, that black citizens in the county constitute a politically cohesive unit, but that the white majority usually votes as a block to defeat the preferred candidate of the black voters. Because of this polarization, it is difficult, if not impossible, for black electors to elect candidates of their choice. Baldwin County Board of Education, 686 F.Supp. at 1464-67. Second, the court found that this difficulty is for the most part attributable to the at-large election system used by the county, or, to put it another way, that black electors would have the potential to elect representatives in the absence of the system. The plaintiffs demonstrated that a system of seven single-member districts would allow them to elect a candidate of their choice, even with a majority-vote requirement and even in the context of intensively racially polarized voting. The evidence reflected that, if the county were divided into at least seven districts, the county's black citizens are sufficiently large and geographically compact to constitute a substantial voting-age majority in one of these districts.⁷Id. This second finding of the court was also premised on evidence that, by 1990, the county population will have increased to 98,820, with the white population having increased by 19,280 to 85,120 or 86.14% of the population, but with black population having increased by less than a thousand and with a percentage point decrease from 15.34% to less than 14%.

Based on these findings and others, the court concluded that

the Baldwin County Board of Education's at-large election system, including in particular its majority-vote and numbered-post features, has interacted with the extensive racial polarization in the county to render the ability of the black voters to elect their representative substantially inferior to that of whites. Indeed, the court is convinced that the black citizens of Baldwin County have been effectively left unrepresented because the school board representatives in the county may for the most part ignore the interests of blacks in the county without fear of political consequences. The court is also convinced that this dilution of the black vote—or more appropriately annihilation of it—is not only exacerbated by the depressed social and economic conditions for most blacks in the county, it is perpetuating these conditions. Moreover, and perhaps most sadly, because these depressed conditions are due to this state's long and immoral history of treating its own black citizens as second class, this dilution of the black vote is also effectively perpetuating this discrimination, such that each black

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