Dillard v. Crenshaw County
| Decision Date | 28 May 1986 |
| Docket Number | Civ. A. No. 85-T-1332-N. |
| Citation | 640 F. Supp. 1347 |
| Parties | John DILLARD, et al., Plaintiffs, v. CRENSHAW COUNTY, etc., et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
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Larry T. Menefee, James U. Blacksher, Wanda J. Cochran, Blacksher, Menefee & Stein, P.A., Mobile, Ala., Terry G. Davis, Seay & Davis, Montgomery, Ala., Deborah Fins, Julius L. Chambers, NAACP Legal Defense Fund, New York City, for plaintiffs.
Alton L. Turner, Turner & Jones, Luverne, Ala., for Crenshaw Co. defendants.
D.L. Martin, Moulton, Ala., and David R. Boyd, Balch & Bingham, Montgomery, Ala., for Lawrence Co. defendants Co and Clerk.
Edward Still, Reeves & Still, Birmingham, Ala., Reo Kirkland, Jr., Brewton, Ala., for plaintiffs.
Barry D. Vaughn, Proctor & Vaughan, Sylacauga, Ala., for Talladega Co. defendants.
Yetta G. Samford, Jr., Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, Ala., for Lee Co. defendants.
W.O. Kirk, Jr., Carrollton, Ala., for Pickens Co. defendants.
Jack Floyd, Floyd, Keener & Cusimano, Gadsden, Ala., for Etowah Co. defendants.
J.G. Speake, Speake, Speake & Reich, Moulton, Ala., for Probate Judge Lawrence Co.
Warren Rowe, Rowe, Rowe & Sawyer, Enterprise, Ala., for Coffee Co. defendants.
Herbert D. Jones, Jr., H.R. Burnham, Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, Ala., for Calhoun Co. defendants.
James W. Webb, Webb, Crumpton, McGregor, Schmaeling & Wilson, Montgomery, Ala., and Lee M. Otts, Otts & Moore, Brewton, Ala., for Escambia Co. defendants.
This lawsuit is a challenge to the at-large systems used to elect county commissioners in nine Alabama counties with significant black populations. The court understands that these counties are the last such counties that still use at-large systems not already the subjects of federal lawsuits.
The plaintiffs are a number of black citizens in the nine counties, and the defendants are the nine counties and a number of their officials. The plaintiffs have brought this lawsuit under section 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C.A. § 1973.1 The court's jurisdiction has been properly invoked pursuant to 28 U.S. C.A. §§ 1331, 1343.
Since the filing of this lawsuit, the plaintiffs have entered into settlements with three of the nine counties. This lawsuit is now before the court on several motions filed by the plaintiffs and the six remaining counties and their officials. The significant issues raised by the motions are whether the plaintiffs are entitled to preliminary injunctive relief; whether the claims against three of the counties are barred by res judicata; whether the claims against five of the counties should be severed and transferred to another district; and whether plaintiff classes should be certified.
For reasons that follow, the court concludes that preliminary injunctive relief is warranted in part against five of the six counties; that a claim against one county is barred by res judicata; that the remaining claims against all six counties should be tried in this district; and that plaintiff classes should be certified.
The six counties remaining in this lawsuit are Calhoun County, Coffee County, Etowah County, Lawrence County, Pickens County, and Talladega County.2 They each have majority white populations and significant black populations, ranging from approximately 13% to 42%.3
Five of the six counties are each governed by a board of commissioners elected under at-large systems in both primary and general elections. Not all at-large systems are alike, however, and the ones used by the five counties have three structural features particularly relevant here. The first feature is obvious. A candidate for commissioner must run at-large, or county-wide, with all voters in the county allowed to vote for the candidate. The second feature is that 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. The third feature is that 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 sixth county, Pickens County, is also governed by a board of commissioners, but the commissioners are elected under a "dual system." Primary elections are held from four "single-member" districts, with the voters in each district restricted to voting only for candidates for the commissioner representing that district; whereas, general elections are conducted at-large in the same manner the other five counties conduct their general elections for commissioners.
The six counties have a clear history of racially polarized elections for both state and county officials, and no black person has ever been elected commissioner under the at-large systems used by the counties.
It is now generally undisputed that, where there is a history of elections polarized along racial or other group lines, atlarge systems containing features similar to three described above tend "to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district." Rogers v. Lodge, 458 U.S. 613, 616, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (emphasis in original). By contrast, a minority might be able to elect one or more representatives, even in an at-large system, if the election is by a plurality without numbered places. For example, a black candidate could have a fair opportunity to be elected by a plurality of the vote if the black voters concentrate their vote behind one candidate or a limited number of candidates, while the white voters divide theirs among a number of candidates. City of Rome v. United States, 446 U.S. 156, 183-84 & n. 19, 100 S.Ct. 1548, 1565 & n. 19, 64 L.Ed.2d 119 (1980). See also Rogers, 458 U.S. at 627, 102 S.Ct. at 3280 (); H.R.Rep. No. 227, 97th Cong., 1st Sess. 18 () Similarly, a minority might be able to elect one or more representatives if, first, the political unit were divided into single-member districts, with the voters in each district restricted to voting only for candidates for the commissioner representing that district; and, second, one or more districts had a sufficient number of black voters to elect a black candidate. Rogers, 458 U.S. at 616, 102 S.Ct. at 3275.
Nevertheless, the Supreme Court has held that, even though such at-large systems have a "winner-take-all" aspect and a "tendency to submerge minorities and to overrepresent the winning party," Whitcomb v. Chavis, 403 U.S. 124, 158-159, 91 S.Ct. 1858, 1877, 29 L.Ed.2d 363 (1971), they are not illegal per se. Rogers, 458 U.S. at 616-17, 102 S.Ct. at 3275.
The plaintiffs claim that the atlarge election systems used in the six counties violate section 2 of the Voting Rights Act of 1965, as an ended, 42 U.S.C.A. § 1973. A violation of section 2 as recently amended in 1982 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.4McMillan v. Escambia County (Escambia II), 748 F.2d 1037, 1046 (5th Cir.1984) (Former Fifth); Buskey v. Oliver, 565 F.Supp. 1473, 1481 & n. 18 (M.D. Ala.1983). In this case, the plaintiffs contend both that the at-large systems used by the six counties were created with a racially discriminatory intent and that the systems have racially discriminatory results. They have, however, informed the counties and the court that they intend to pursue their intent claims first and that they will pursue a results claim against a county only if their intent claim against the county fails.
The plaintiffs request preliminary injunctive relief against continued use of at-large systems in the six counties. Adhering to their announced trial strategy, they limit the premise of their request to their section 2 intent claims.
To obtain a preliminary injunction, the plaintiffs must show that "(1) there is a substantial likelihood that they will prevail on the merits at trial; (2) they will suffer irreparable harm if they are not granted the injunctive relief; (3) the benefits the injunction will provide them outweigh the harm it will cause the defendants; and (4) the issuance of the injunction will not harm public interests." Callaway v. Block, 763 F.2d 1283, 1287 (11th Cir.1985). The plaintiffs have met these requirements as to all defendant counties except Pickens County. Pickens County's affirmative defense of res judicata precludes preliminary relief, as the court explains in part IV of this opinion.
There are, at least, two methods of establishing a section 2 intent claim. The plaintiffs have shown a substantial likelihood of success under both methods.
One method by which a plaintiff may establish a prima facie case of discriminatory intent under section 2 is by showing, first, that racial discrimination was a "substantial" or "motivating" factor behind the enactment or maintenance of the electoral system and, second, that the system continues today to have some adverse racial impact.5Hunter v. Underwood, 471 U.S. 222, ___, 105 S.Ct. 1916, 1920, 1923, 85 L.Ed.2d 222 (1985) (...
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