Dillard v. Chilton County Com'n.

• Decision Date: 14 August 2006
• Docket Number: Civil Action No. 2:87cv1179-MHT.
• Citation: 447 F.Supp.2d 1273
• Court: U.S. District Court — Middle District of Alabama
• Parties: John DILLARD, et al., Plaintiffs, v. Robert R. Binion, et al., Plaintiffs-Intervenors, Gilbert Green, Calvin Jones, Jr., Plaintiff-Intervenors, v. CHILTON COUNTY COMMISSION, et al., Defendants.

Page 1273

447 F.Supp.2d 1273

John DILLARD, et al., Plaintiffs, v. Robert R. Binion, et al., Plaintiffs-Intervenors, Gilbert Green, Calvin Jones, Jr., Plaintiff-Intervenors, v. CHILTON COUNTY COMMISSION, et al., Defendants.

Civil Action No. 2:87cv1179-MHT.

United States District Court, M.D. Alabama, Northern Division.

August 14, 2006.

Edward Still, Edward Still Law Firm, for Plaintiffs.

James U. Blacksher, Birmingham, AL, Janai S. Nelson, New York, NY, Norman J. Chachkin, NAACP Legal Defense & Educ'l Fund, Inc., New York, NY, for Plaintiffs/Intervenor Plaintiffs.

Algert Swanson Agricola, Jr., Slaten & O'Connor, PC, Montgomery, AL, for Intervenor Plaintiffs.

David R. Boyd, Dorman Walker, Balch & Bingham, Montgomery, AL, John Hollis Jackson, Jr., Jackson & Jackson, LLP, Clanton, AL, John J. Park, Jr., Office of

the Attorney General, Montgomery, AL, for Defendants.

OPINION

MYRON H. THOMPSON, District Judge.

This is another Dillard case in which persons who were not parties to the original proceedings now challenge a final judgment affording relief under § 2 of the Voting Rights Act of 1965, as amended (42 U.S.C. § 1973), and the Fourteenth Amendment to the United States Constitution (as enforced through 42 U.S.C. § 1983) to African—American citizens of the city or county at issue. Unless and until applicable precedent from the Eleventh Circuit Court of Appeals is overruled by that court en banc or by the United States Supreme Court, this court has no choice but to uphold that challenge.

I. BACKGROUND

The history of this case began 20 years ago as an outgrowth of proceedings in another case initiated in 1985 by plaintiff John Dillard and other plaintiff African— American citizens of Alabama in order to challenge the at-large, numbered-post election schemes employed by nine Alabama counties under § 2 and the Fourteenth Amendment. Dillard v. Crenshaw County, 640 F.Supp. 1347 (M.D.Ala.1986). This court made a state-wide finding that these election schemes were the product of, or tainted by, racially inspired enactments of the Alabama legislature, id. at 1357-60, and subsequently allowed the plaintiffs to expand their complaint to include 183 cities, counties, and county school boards that were using similar voting systems. Dillard v. Baldwin County Bd. of Educ., 686 F.Supp. 1459 (M.D.Ala.1988).

The Chilton County Commission was among the entities added to the Dillard v. Crenshaw County litigation after this court made its initial findings. According to the 1980 census, Chilton County at that time had a total population of 30,610, and, of that number, 11.86% were black; the black population was dispersed throughout the county. Chilton County was governed by a five-member commission, one of whom was the probate judge and with the others elected as follows: First, a candidate ran at-large, or countywide, with all voters in the county allowed to vote for the candidate. Second, the candidate ran for a "numbered post" or separate place; each position carried a separate number, and each candidate qualified for a specific number and place, with each voter allowed to vote for only one candidate in each place. And third, the candidate had to receive a majority of votes cast in the primary to win the nomination of a political party; if no candidate received a majority of votes, a run-off primary election was held. The majority-vote requirement did not apply to general elections.

The commission admitted the § 2 and Fourteenth Amendment violation, and the parties proposed a seven-member commission elected by "cumulative voting." Under this system, each voter has as many votes as there are positions to be filled and may either divide her votes between candidates or concentrate her votes on a single candidate. Holder v. Hall, 512 U.S. 874, 910 n. 15, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring). "The system thus allows a numerical minority to concentrate its voting power behind a given candidate without requiring that the minority voters themselves be concentrated into a single district." Id. There are thus no majority-vote or numbered-post requirements.

Over objections from several members of the plaintiff class, this court approved and implemented the settlement, Dillard v. Chilton Cty., 699 F.Supp. 870 (M.D.Ala. 1988), and the Eleventh Circuit affirmed this court's action. Dillard v. Chilton Cty., 868 F.2d 1274 (11th Cir.1989) (table).

Later, in Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994), a Supreme Court plurality held that a federal court cannot modify the size of an elected governing body in order to remedy a § 2 violation because "[t]here is no principled reason why one size should be picked over another as the benchmark for [determining whether vote dilution has occurred]." Id. at 881, 114 S.Ct. 2581. Subsequently, in Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc), the Eleventh Circuit held that, "under Holder, federal courts may not mandate as a § 2 remedy that a state or political subdivision alter the size of its elected bodies." Id. at 1532; see also White v. Alabama, 74 F.3d 1058, 1072 (11th Cir.1996) (holding that, under Holder and Nipper, the federal courts lacked the authority under § 2 to require even as part of an alleged settlement that the State of Alabama increase the size of its appellate courts).

In the wake of Holder, Nipper, and White, a challenge was leveled by intervening parties in one of the Dillard cases, Dillard v. Baldwin County Comm'n, to a court-ordered remedy (imposed based on this court's earlier state-wide finding of intentional discrimination) that, among other things, increased the size of the at-large elected commission from four to seven commissioners elected from single-member districts, thereby creating a majority-black district. 694 F.Supp. 836, 839-40 (M.D.Ala.), amended by, 701 F.Supp. 808 (M.D.Ala.), aff'd, 862 F.2d 878 (11th Cir.1988) (tables) (Baldwin County Comm'n I). In a critical decision, reversing the decision of this court in Dillard v. Baldwin County Comm'n, 53 F.Supp.2d 1266, 1272 (M.D.Ala.1999) (Baldwin County Comm'n II), the Eleventh Circuit held, first, that persons not parties to original proceedings had standing to challenge the court-ordered relief and, second, that they stated a cognizable challenge under § 2 to the relief, Dillard v. Baldwin County Commissioners, 225 F.3d 1271 (11th Cir. 2000) (Baldwin County Comm'n III).

After a trial on remand, this court sustained the § 2 challenge and vacated the original relief, Dillard v. Baldwin County Comm'n, 222 F.Supp.2d 1283 (M.D.Ala. 2002), extended, 282 F.Supp.2d 1302 (M.D.Ala.2003) (Baldwin County Comm'n IV), and the Eleventh Circuit upheld that decision, agreeing that the original court-ordered relief was inappropriate in light of the teaching in Holder, Dillard v. Baldwin County Comm'n, 376 F.3d 1260 (11th Cir. 2004) (Baldwin County Comm'n V); the appellate court also held that cumulative voting was not an appropriate current remedy in the place of the now-inappropriate original remedy. Id.

In March 2003, taking their cue from the challenge to the court-ordered relief in the Baldwin County Comm'n proceedings, Gilbert Green and Calvin Jones, Jr. intervened in this case claiming that, among other things, the 1988 relief afforded by this court for the § 2 and Fourteenth Amendment challenge to the election scheme for the Chilton County Commission violated Holder, Nipper, and White.

In March 2006, after the trial of this case, the State of Alabama enacted legislation, Act No. 2006-252, which provides state law authority for all local government election systems that are now operating under federal-court orders and that are not subject to a pending court challenge. Because the Chilton County Commission's cumulative-voting scheme is under a court challenge, Act No. 2006-252 does not apply to it.

II. DISCUSSION

The above background suggests, at least at first blush, that this case is squarely by controlled by what happened in the Baldwin County Comm'n litigation. The plaintiffs here seek to distinguish that case on a number of grounds. Unfortunately for them, their efforts simply cannot succeed without a change in appellate law.

First, Holder, Nipper, White, and now Baldwin County Comm'n make clear that changing from an at-large election system to cumulative voting is not an appropriate § 2 remedy because, simply put, "there is no objective and workable standard for choosing [it as a] reasonable benchmark[] over the many forms of government." Baldwin County Comm'n v, 376 F.3d at 1264 (internal quotations omitted). The plaintiffs respond that the holdings, and the language explaining these holdings, are essentially beside the point because the court's power here to impose cumulative voting "proceeds not from the Voting Rights Act but from the consent decree Chilton County agreed to." Plaintiffs' brief (Doc. No. 151), at 18; see also id. at 27 ("The district court's power and duty to enforce the consent decree arise from the contractual obligations it establishes between the plaintiff class, the State and its political subdivision, not from the court's remedial authority under the Voting Rights Act.").

At issue here, the plaintiffs contend, is a simple contractual agreement between them and the Chilton County Commission; as long as that agreement does not violate the Voting Rights Act, that is the end of the inquiry. The sole question is whether the consent decree violates the Voting Rights Act, not whether it is authorized by the Act. Plaintiffs' brief (Doc. No. 151), at 31 ("an agreed upon remedy that exceeds the scope of the Court's authority in an adjudicated case must be distinguished from settlement provisions that are `inconsistent' with the Act, that incorporate practices that themselves are prohibited by the Act").

And, as the plaintiffs explain, "Neither seven seats nor cumulative voting rules are inconsistent with the Voting Rights Act[an]...