Earl Old Person v. Cooney, MT Secretary of State, 98-361
| Decision Date | 27 October 2000 |
| Docket Number | No. 98-361,98-361 |
| Citation | 230 F.3d 1113 |
| Parties | (9th Cir. 2000) EARL OLD PERSON; CAROL JUNEAU; BILL WHITEHEAD; HERMAN RED ELK; RONALD WILLIAMS; MARGARET CAMPBELL; ANDREA MAIN; DONALD MEYERS; JOSEPH MACDONALD; JEANNINE PADILLA, Plaintiffs-Appellants, v. MIKE COONEY, Secretary of State for the State of Montana; MARC RACICOT, Governor for the State of Montana, Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Laughlin McDonald, American Civil Liberties Union Foundation, Inc., Atlanta, Georgia, for the plaintiffs-appellants.
Sarah A. Bond, Assistant Attorney General, Helena, Montana, for the defendants-appellees.
Appeal from the United States District Court for the District of Montana. Paul G. Hatfield, District Judge, Presiding. D.C. No. CV-96-00004-PGH
Before: William C. Canby, Jr., Melvin Brunetti, and Diarmuid F. O'Scannlain, Circuit Judges.
Eleven American Indian plaintiffs appeal the district court's judgment in favor of the defendants, the Governor and Secretary of State of Montana. The plaintiffs contend that the 1992 redistricting plan for Montana's State House of Representatives and Senate dilutes the voting strength of American Indians in violation of 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973. Plaintiffs further urge that Montana's Districting and Apportionment Commission adopted the 1992 redistricting plan with a discriminatory purpose, an action that would also violate 2 of the Voting Rights Act.
Following a bench trial, the district court rejected both of plaintiffs' claims. We agree with the district court that there was insufficient evidence of discriminatory purpose on the part of Commission members in adopting the plan, and affirm the court's ruling on that claim. We conclude, however, that the district court's finding that the 1992 redistricting plan did not dilute the voting strength of American Indians was based upon two errors that require its reversal. First, the district court erred in relying in part on the electoral success of Indian candidates in majority-Indian House Districts when it concluded that white bloc voting in majority-white House Districts was not legally significant. See Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).1 Second, the district court erred in concluding that, under Montana's 1992 redistricting plan, American Indians were proportionally represented. Because these two errors contributed to the district court's ultimate finding of no dilution, we reverse the district court's judgment and remand for further proceedings. In so ruling, we do not decide the ultimate question whether, in light of the totality of the circumstances, vote dilution has occurred; that is, whether under the 1992 redistricting plan American Indians in Montana have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973(b); see Johnson v. De Grandy, 512 U.S. 997, 1013-14 (1994). We leave that finding of fact to be made in the first instance by the district court, after correction of the two noted errors.
American Indians comprise approximately 6% of the total population of the State of Montana, according to the 1990 federal census. But the Indian population is relatively young, and comprises only 4.8% of the state's voting age population. Montana's American Indian population is also growing more quickly than the State's population as a whole. Between 1980 and 1990, the total population of the State increased by 1.6%, but the American Indian population of the state increased by 27.9%.
Montana's House of Representatives consists of 100 single member districts. Each member of the House serves for a two-year term. The Montana Senate consists of 50 single member districts; each Senate district is composed of two adjoining House districts. Members of the Senate are elected for four-year terms, with half of the Senate seats up for election every two years.
Under the redistricting plan adopted in 1982, Indians comprised a majority of the voting age population in 1 of the 100 House Districts. That district included the Blackfeet Reservation in Glacier County in the northwest part of the state. Indians did not represent a majority of the voting age population in any of the 50 Senate districts. By 1990, these demographics had changed with the growth of the Indian population. The 1990 census revealed that American Indians comprised a majority of the voting age population in 4 of 100 House districts and 1 of 50 Senate districts.
Since 1972, Montana's Constitution has granted the exclusive power to adopt a redistricting plan to a five-member Districting and Apportionment Commission. Although the Montana legislature can make recommendations to the Commission, it has no direct power over the geographic composition of legislative districts. The Commission itself is reconstituted every ten years in advance of the federal census. Commission members may not be public officials, although four of the five are appointed by majority and minority leaders of each house of the state legislature. The four Commission members select the fifth member.
The federal census in 1990 revealed that population changes in Montana between 1980 and 1990 had caused some legislative districts in Montana to become malapportioned, and potentially violative of the one-person one-vote requirement embodied in the Fourteenth Amendment. The 1992 Districting and Apportionment Commission therefore was required to draw a new redistricting plan. None of the five Commission members selected was an American Indian.
The Commission held twelve regional public hearings beginning on April 3, 1992. Nine of these regional hearings were preceded by planning meetings that were open to the public. All of these hearings and meetings were recorded on audio tape; portions of these tapes were summarized or transcribed in the official minutes of the Commission. Statements made by Commissioners at these hearings and meetings form the basis for plaintiffs' claim that Commission members acted with a discriminatory purpose. American Indians appearing before the Commission presented alternative districting plans. One of these plans, referred to as the "Blackfeet-Flathead Plan," contained an alternative districting proposal for the four challenged House districts that are the subject of this appeal.
After submitting its redistricting plan to the legislature for comment, the Commission filed its statewide redistricting plan with the Secretary of State on February 24, 1993. The plan (which we, like the district court, will continue to refer to as the "1992 redistricting plan") then became law, and the Commission dissolved.
The 1992 redistricting plan increased the number of majority-Indian House Districts ("HDs") from four to five (i.e., HDs 5, 6, 85, 92, and 98). See Appendix I ("1994 Montana Legislative Districts" appearing in Appellee's Supplemental Excerpts of Record [at 20]). One of these majorityIndian districts, House District 85, is included in the four districts challenged on appeal. House District 85 contains the Blackfeet Indian Reservation in Glacier County. Of the five majority-Indian districts in the state plan, HD 85 has by far the largest Indian voting age population: 66% for HD 85, as opposed to 55% in HD 98, 53% in HD 6, 52% in HD 92, and 50% in HD 5.
Table 1
House Districts by Percentage Indian Voting Age Population ("VAP")
(* indicates district lines are challenged on appeal)
House District Percentage Indian VAP
*HD 85 66%
HD 98 55%
HD 6 53%
HD 92 52%
HD 5 50%
*HD 73 28%
*HD 86 19%
*HD 74 14%
All others less than 11%
Of the remaining House Districts in the state, only three have an Indian voting age population of 11% or more: 28% in HD 73, 19% in HD 86, and 14% in HD 74. These three districts, HDs 73, 86 and 74, are the remaining three House Districts whose boundaries are challenged on appeal.
The 1992 redistricting plan contains one majority-Indian Senate District ("SD"). That district, SD 3, is located in the southeast portion of the state, and contains an Indian voting age population of 51%. SD 3 is not a subject of this appeal.
We review for clear error the district court's findings of fact, including its ultimate finding whether, in the totality of circumstances, vote dilution exists in violation ofS 2. Thornburg v. Gingles, 478 U.S. 30, 78-79 (1986); Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997). We retain the power, however, " `to correct errors of law, including those that may infect a socalled mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.' " Gingles, 478 U.S. at 79; Salt River, 109 F.3d at 591.
Before addressing the errors underlying the finding of no vote dilution, we address a threshold issue arising from the scope of appeal. At trial, plaintiffs alleged vote dilution in two separate geographic areas of the state, each involving four House Districts. The district court found no vote dilution in either area. On appeal, plaintiffs challenge the district court's finding only with regard to the first area, which includes HDs 73, 74, 85 and 86 in the northwest part of the state; plaintiffs offered the "Blackfeet-Flathead Plan" as an alternative to the 1992 redistricting plan for this area. Plaintiffs have not appealed the district court's finding with regard to the second area, which includes HDs 91, 92, 97 and 98 in the northeast part of the...
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