Dillard v. Chilton County Bd. of Educ., Civ. A. No. 87-T-1178-N

• Decision Date: 23 June 1988
• Docket Number: Civ. A. No. 87-T-1178-N,87-T-1179-N.
• Citation: 699 F. Supp. 870
• Parties: John DILLARD, et al., Plaintiffs, v. CHILTON COUNTY BOARD OF EDUCATION, Defendant. John DILLARD, et al., Plaintiffs, v. CHILTON COUNTY COMMISSION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

699 F. Supp. 870

John DILLARD, et al., Plaintiffs, v. CHILTON COUNTY BOARD OF EDUCATION, Defendant.

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

Civ. A. Nos. 87-T-1178-N, 87-T-1179-N.

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

June 23, 1988.

James U. Blacksher, Edward Still, Reeves & Still, Birmingham, Ala., Julius L. Chambers, Scherlyn Ifill, NAACP Legal Defense Fund, New York City, for plaintiffs.

Don Siegelman, Alabama Atty. Gen., Susan Russ, Asst. Atty. Gen., Office of Atty. Gen., David Boyd, Balch & Bingham, Montgomery, Ala., John Hollis Jackson, Jr., Clanton, Ala., for defendant.

ORDER

MYRON H. THOMPSON, District Judge.

The plaintiffs have brought these two lawsuits on behalf of all black citizens in Chilton County, Alabama.¹ They charge that the "at-large" system used to elect the Chilton County Commission and Board of Education violates § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973.² The commission and the school board have admitted that their at-large system violates § 2. The issue before the court is whether a settlement proposed by the parties, incorporating a "cumulative voting" scheme for the county's commission and school board, is acceptable. Several members of the plaintiff class have objected to the settlement, claiming that it does not adequately remedy the § 2 violation. After conducting a hearing, in which the objectors as well as plaintiff class members favoring the settlement testified, the special master in this case, United States Magistrate John L. Carroll, recommended in each of these two cases that the court approve the settlement. For the reasons that follow, the court concludes that the magistrate's recommendations should be adopted.

I.

According to the 1980 census, Chilton County has a total population of 30,610. Of that number, 11.86% are black. The black population is dispersed throughout the county.

Chilton County and its school system are currently governed by a five-member commission and a five-member board, respectively. The system used to elect the county commission and the school board has three structural features particularly relevant here. First, a candidate 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 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. 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.

To remedy the admitted § 2 violation, the plaintiffs, the commission and the school board have proposed a seven-member commission and a seven-member board of education elected by cumulative voting. Under this system, each voter has seven votes to cast among the candidates. However, a voter may distribute his or her votes in any way he or she desires. See Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 Yale L.J. 144, 153 (1982). For example, a voter could vote all seven votes for one candidate, four votes for one candidate and three for another, one vote for each of the seven different candidates, or in various other combinations. There are no majority-vote or numbered-post requirements.

Several members of the plaintiff class argue that the proposed settlement does not cure the § 2 violation, and they have proposed a single-member districting plan in its place.

II.

Courts have often expressed a judicial policy favoring settlement as the means of resolving class-action lawsuits. See, e.g., Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984); Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983). However, a district judge has a heavy obligation to ensure that any settlement is "fair, reasonable and adequate." Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986). The district judge also has a duty to ensure that the settlement is not illegal or against public policy. United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980). The settlement here is fair, reasonable and adequate.

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 plaintiffs here have travelled on both theories against the Chilton County Commission and Board of Education.

A.

As this court explained in some detail in its recent opinion in Dillard v. Baldwin County Board of Education, 686 F.Supp. 1459 (M.D.Ala.1988), the Supreme Court recently set forth in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the manner in which a trial court should assess a § 2 results claim. The claim is established where the "totality of the circumstances," 42 U.S.C.A. § 1973(b), reveals that "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Id. at 44, 106 S.Ct. at 2763, quoting S.Rep. No. 417, 97th Cong., 2d Sess. 28, reprinted in 1982 U.S. Code Cong. & Admin.News, 177, 206.

The Thornburg Court went on to list nine Congressional factors typically considered in evaluating a results claim.³ The Court observed that the compilation of these factors is premised on the notion "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." Id. at 47, 106 S.Ct. at 2764-65.

The Court further observed that there is one significant limit on a results claim. A minority group has no right under § 2 to proportional representation; "the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation." Id. at 46, 106 S.Ct. at 2764. Rather, as stated, the plaintiffs must show that, under the totality of circumstances, the challenged electoral scheme results in an unequal access to the electoral process.

The Thornburg Court then refined the above general observations. The court held that, while all nine of the Congressional factors typically considered remain relevant, two circumstances are more important, and indeed are essential, to success on a § 2 results challenge. Id. at 47-52 & ns. 15 & 16, 106 S.Ct. at 2765-67 & ns. 15 & 16.

The Court required, as a first "precondition" to such a challenge, that the minority must be able to show that it experiences substantial difficulty electing representatives of its choice. To do this, it must show the existence of "racially polarized voting": that is, that the minority group constitutes a politically cohesive unit and that the white majority votes sufficiently as a block, usually to defeat the minority's preferred candidate. Id. at 52, 55, 106 S.Ct. at 2767, 2769. If the minority group is not politically cohesive, it cannot be said that distinctive minority group interests are being thwarted, id.; and without significant white bloc voting, usually to defeat minority preferences, it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters. Id. at 49 n. 15, 106 S.Ct. at 2766 n. 15. Indeed, for these reasons, racially polarized voting is viewed as the key element of a vote dilution claim. Id. at 54, 106 S.Ct. at 2769.⁴

The Court required, as a second precondition, that the minority be able to demonstrate that its difficulty in electing candidates of its choice is in some measure attributable to the challenged election feature, id. at 48, 106 S.Ct. at 2765, or, to put it another way, that the minority has the potential to elect representatives in the absence of the challenged feature. Id. at 50-51 & n. 17, 106 S.Ct. at 2766-67 & n. 17. Because the questioned choice here is between the county's present at-large system and a proposed cumulative voting system, the issue posed in this lawsuit is whether, under the proposed system, the black citizens of Chilton County have the potential to elect candidates of their choice.⁵

The parties admit that there is racially polarized voting in Chilton County. Therefore, the critical issue for the court, in its assessment of the settlement proposed by the parties, is whether the black voters in the county have under the settlement the potential to elect representatives of their choice, even in the face of such voting patterns. In determining whether the settlement offers such, the court will apply a concept known as "threshold of exclusion."

The threshold of exclusion "is the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances." Lijphart, Pinter & Sone, The Limited Vote and the Single Nontransferable Vote: Lessons from the Japanese and Spanish Examples, in Electoral Law and Their Political Consequences 154, 157 (B. Grofman & A. Lijphart eds. 1986). The worst case scenario that defines the threshold of exclusion is based on two assumptions. The first is that the majority sponsor only as many candidates as there are seats to be filled; for example, in a seven-seat jurisdiction, only seven majority-preferred candidates would run. The second is that the majority spread its votes evenly among its candidates, with no "crossover voting" for the minority-preferred...