Dillard v. Chilton County Com'n, Civil Action No. 2:87CV1179-MHT.

• Decision Date: 21 September 2006
• Docket Number: Civil Action No. 2:87CV1179-MHT.
• Parties: John DILLARD, et al., Plaintiffs, Robert R. Binion, et al., Plaintiffs-Intervenors, Gilbert Green and Calvin Jones, Jr., Plaintiff-Intervenors, v. CHILTON COUNTY COMMISSION, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

452 F.Supp.2d 1193

John DILLARD, et al., Plaintiffs Robert R. Binion, et al., Plaintiffs-Intervenors Gilbert Green and 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.

September 21, 2006.

Edward Still, Edward Still Law Firm & Mediation Center, Birmingham, AL, for Plaintiffs.

Janai S. Nelson, Norman J. Chachkin, NAACP Legal Defense & Educ'L Fund, Inc., New York, NY, James U. Blacksher, Birmingham, AL, Algert Swanson Agricola, Jr., Slaten & O'Connor, PC, Montgomery, AL, for Plaintiffs/Plaintiff-Intervenors.

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

OPINION

MYRON H. THOMPSON, District Judge.

This suit is before the court on the issue of how to undo the 1988 injunction it vacated on August 14, 2006, in Dillard v. Chilton County Comm'n, 447 F.Supp.2d 1273 (M.D.Ala.2006). The court must determine how to restore Chilton County, Alabama to an election scheme completely free of the 1988 injunction in a way that is feasible, equitable, and constitutional. For the reasons that follow, the court agrees to the suggestion of the commission and the county probate judge that the undoing of the 1988 injunction conform to the regular election cycle of the county commission.

I. BACKGROUND

This case arises from a related action initiated over 20 years ago by plaintiff John Dillard and other plaintiff African-American citizens of Alabama. That action challenged election schemes employed by nine Alabama counties under § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, 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. The commission admitted the Voting Rights Act and Fourteenth Amendment violations, Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870, 871 (M.D.Ala.1988), and, in 1988, this court approved and implemented a consent decree providing for an injunction expanding the size of the commission and requiring that commissioners be elected by cumulative voting, id. at 876. The Eleventh Circuit affirmed this court's action. Dillard v. Chilton County Comm'n, 868 F.2d 1274 (11th Cir.1989) (table). Pursuant to the 1988 injunction, the Chilton County Commission has operated under this election scheme.

In the wake of subsequent holdings of the Supreme Court and the Eleventh Circuit, a challenge was leveled by intervening parties in one of the Dillard cases, Dillard v. Baldwin County Commission, to a court-ordered remedy imposed based on this court's earlier state-wide finding of intentional discrimination. Several appeals were taken, the end result being that the intervenors were successful in their collateral challenge. See Dillard v. Baldwin County Comm'n, 53 F.Supp.2d 1266, 1272 (M.D.Ala.1999), rev'd, 225 F.3d 1271 (11th Cir.2000), on remand, 222 F.Supp.2d 1283 (M.D.Ala.2002), extended, 282 F.Supp.2d 1302 (M.D.Ala.2003), aff'd, Dillard v. Baldwin"County Comm'n, 376 F.3d 1260 (11th Cir.2004).

In March 2003, taking their cue from the challenge to the court-ordered relief in the Baldwin County proceedings, Gilbert Green and Calvin Jones, Jr. intervened in this case to challenge the consent decree approved by this court in 1988. Reasoning from the outcome of the Baldwin Comfy litigation, this court, on August 14, 2006, sustained the intervenors' challenge and vacated the 1988 injunction. Dillard v. Chilton County Comm'n, 447 F.Supp.2d at 1274, 2006 WL 2355470 at *1 ("Unless and until applicable precedent from the Eleventh Circuit Court of Appeals is overruled by that court en bane or by the United States Supreme Court, this court has no choice but to uphold that challenge.").

The court's final task in this case, as it was in Dillard v. Baldwin County Commission, 289 F.Supp.2d 1315 (M.D.Ala. 2003), is to oversee the transition to a proper county commission election scheme not governed by the 1988 consent decree. To that end, the court ordered the defendants to submit a plan providing, as soon as is feasible, for the election of county commissioners under an election scheme that is completely free of the 1988 injunction. Dillard v. Chilton County Comm'n, 447 F.Supp.2d at 1279-80.

The Chilton County Commission and its probate judge propose a plan that entails the election of a new commission at the next regularly scheduled election in November. 2008. The intervenors, by contrast, urge the court to revert to Ala. Act 1951-872 (the 1951 Act), the law governing the composition and election of the commission prior to 1988, and order a special election early next year. Alternatively, the intervenors suggest that the court deem the commissioners' seats vacant and allow the Governor of Alabama to fill those vacancies by appointment. It has also come to the court's attention that Ala. Act 2003-217 (the 2003 Act), not yet precleared under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, purports to govern the composition and election of the commission.

II. FINDINGS OF FACT

The court held an evidentiary hearing on September 14, 2006, to consider the various plans and proposals offered by the parties. Cf. Clark v. Roemer, 500 U.S. 646, 659-60, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991) (grounding the district court's authority to fashion relief on its ability to hear evidence). During the hearing, two issues consistently arose: the feasibility of calling a special election as the intervenors have proposed, and the role of the county's probate judge in the various alternatives before the court.

A. Evidence Regarding a Special Election

Although the commission currently in place was elected pursuant to an injunction that has now been vacated, ordering a special election as a means of undoing that injunction is a remedy that should only be undertaken after careful consideration of the equities involved. See Taylor v. Monroe County Bd. of Supervisors, 421 F.2d 1038 (5th Cir.1970).¹ The court therefore heard testimony regarding the implications of various alternatives put forward by the parties, particularly the intervenors' proposal for a special election.² Based on that testimony, the court finds the facts to be as follows.

First, a special election would cost the county approximately $ 120,000. The county is already operating in an emergency spending mode on a line of credit extended by a local bank, and the financing for a special election would also have to be borrowed.

Second, if the court were to order an election plan according to the intervenors' schedule—with a primary election on Election Day in November 2006 and a special commission election in January 2007 or soon thereafter—compliance with state and federal election rules, such as those regulating absentee 'and military voting, would be nearly impossible.

Third, the typical candidate for Chilton County Commission spends between $ 5,000 and $ 30,000 per election for a job that pays only $ 18,000 per year. Consequently, candidates would be discouraged from running for the special election.

Fourth, voter turnout in Chilton County can be as high as 68% in a presidential election year, but as low as 5% for a special election. A special election would yield a far lower voter turnout than the 2008 election, which is a presidential election year.

B. Evidence Regarding the Office of the Probate Judge

The court also heard testimony regarding the office of the probate judge, who would also serve ex officio as chair of the commission under the intervenors' proposals. That testimony leads the court to find the facts as follows.

First, the amount of business in probate court has expanded steadily since 1988. Because the county population has increased from less than 30,000 in 1988 to more than 40,000 in 2006, and because of changes in federal and state law, probate business has increased substantially. These changes have doubled the caseload of the probate judge in Chilton County over the past 18 years.

Second, the county's population growth since 1988 has been accompanied by significant economic development, which has significantly increased the demands upon the commission in terms of road maintenance, utilities, police, and other vital public services.

Third, due to the substantially increased demands upon both the county commission and the office of the probate judge since 1988, it is no longer reasonable to expect that the same individual could serve the county effectively both as probate judge and chair of the commission.

III. DISCUSSION

In determining how to restore the Chilton County Commission to elections completely free of the 1988 injunction, this court has at least four alternatives before it First, as the intervenors have proposed as their preferred remedy, the court could order the defendants to hold a special election within the next six months and return to the election scheme as laid out by the 1951 Act, the state law governing the commission's elections immediately prior to the 1988 injunction. That act provides for a commission composed of four commissioners, elected at large from residency districts to serve staggered terms of office, and chaired by the probate judge.

Second, as the intervenors have proposed in the alternative, the court could deem the 1951 Act controlling,...