Edge v. Sumter County School Dist.

• Citation: 775 F.2d 1509
• Decision Date: 14 November 1985
• Docket Number: No. 84-8489,84-8489
• Parties: 28 Ed. Law Rep. 366 Judson EDGE, Ronald J. Foust, Georgia L. Deriso, David W. Tietjen, and Arthur Watts, Plaintiffs-Appellants, v. SUMTER COUNTY SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1509

775 F.2d 1509

28 Ed. Law Rep. 366

Judson EDGE, Ronald J. Foust, Georgia L. Deriso, David W Tietjen, and Arthur Watts, Plaintiffs-Appellants, v. SUMTER COUNTY SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 84-8489.

United States Court of Appeals Eleventh Circuit.

Nov. 14, 1985.

Laughlin McDonald, Atlanta, Ga., for plaintiffs-appellants.

Warren Plowden, Jr., Macon, Ga., Henry L. Crisp, Americus, Ga., for defendants-appellees.

George M. Peagler, Jr., Americus, Ga., for Sue Smith.

Mark L. Gross, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., Wm. Bradford Reynolds, Charles J. Cooper, Washington, D.C., amicus.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and HILL, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

In this Voting Rights Act case, five residents of Sumter County, Georgia, challenge a court-ordered reapportionment plan for the election of county school board members. We vacate and remand on the ground that the district court failed to properly follow the controlling cases and misapplied Sections 2 and 5 of the Voting Rights Act of 1965. 42 U.S.C.A. Sec. 1973. Following the guide of the Supreme Court, however, we specifically provide that the persons elected under the plan can remain in office until the next election, November, 1986, by which time a valid plan can be adopted.

Sumter County has a population of about 12,500, forty-four percent of whom are black. No black person has ever served on the county school board. In 1964, prior to the Voting Rights Act, Georgia law provided that the Sumter County grand jury appoint school board members. In 1968, a legislative decision was made that school board members should be elected. Several attempts have been made to adopt a legal electoral system, but all have failed. The history of litigation that led to the court-ordered plan under review reflects that failure.

The plan initially adopted by the Georgia State Legislature in Georgia Laws of 1968 was held to be unconstitutional under the one-person, one-vote principle. Carter v. Crenshaw, No. 768 (M.D.Ga. July 12, 1972). The district court in that case entered an order allowing the Board to seek a legislative remedy.

In 1973, Georgia State Legislature then enacted legislation abolishing the district system and requiring that all members of the Board be elected at-large. The new election scheme was submitted for pre-clearance under Section 5 of the Voting Rights Act and the Attorney General objected to the at-large plan on the ground that "we are unable to conclude, as we must under the Voting Rights Act, that the use of at-large election system you have submitted will not have a racially discriminatory effect." Proceeding, however, on the theory that the 1973 plan resulted from a federal court order and thus, did not need Section 5 approval, the Board continued to hold at-large elections, until a three-judge district court held that the plan was subject to Section 5, and enjoined use of the statute on December 1, 1981. Edge v. Sumter County School District, 541 F.Supp. 55 (M.D.Ga.1981).

The Board appealed the panel decision and the Supreme Court affirmed, sub nom. Sumter County School District v. Edge, 456 U.S. 1002, 102 S.Ct. 2287, 73 L.Ed.2d 1297 (1982).

The three-judge court remanded the case to a single judge "for supervision and development of a new election plan which satisfies legal requirements." Edge, 541 F.Supp. at 58. Upon remand, pursuant to an order of the single judge, the Board in 1982 and 1983 submitted two different reapportionment plans to the Attorney General for preclearance under Section 5. Both plans provided for one at-large member and six single-member districts and both were rejected on the ground that they did not fairly reflect black voting strengths.

The district court then decided that judicial intervention was appropriate and designed a new apportionment plan. It is from this Court-ordered plan that plaintiffs now appeal.

We agree with both the appellants and the submission of the United States as amicus curiae that the district court could not validly adopt a reapportionment plan without determining whether the plan complied with Section 2 of the Voting Rights Act, as amended, 42 U.S.C.A. Sec. 1973. Jordan v. Winter, 541 F.Supp. 1135 (N.D.Miss.1982), vacated and remanded, sub nom. Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983); United States v. Marengo County Comm'n., 731 F.2d 1546 (11th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). The cases and the legislative history well document the factors that need to be considered to determine compliance with Section 2, and it is not necessary to repeat them here. Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir.1973) (en banc ), aff'd per curium sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Senate Rep. No. 97-417, 97th Cong. 2d Sess. 28-29 (1982). See also United States v. Dallas County Comm'n, 739 F.2d 1529, 1534-35 (11th Cir.1984); Ketchums v. Byrne, 740 F.2d 1398, 1403-06 (7th Cir.1984); Velasquez v. City of Abilene, 725 F.2d 1017, 1020-23 (5th Cir.1984).

A hearing must be held to permit the parties to submit evidence on the Section 2 issues. Although appellants submitted documentary evidence on some of the relevant factors, the district court held no hearing before adopting the plan and made no analysis in its decision of the factors that may indicate that the plan results in prohibited discrimination. Accordingly, a hearing is necessary to determine whether the court's plan complies with Section 2.

Although the appellant invites this Court to decide that the evidence in the record at this time demonstrates that the court-ordered plan results in discrimination within the meaning of Section 2, it is not appropriate that we consider that argument. Where the district court misapplied legal standards in making findings concerning discrimination, the proper course for this Court is to remand the case for reconsideration under the correct standards. Pullman-Standard v. Swint, 456 U.S. 273, 291-93, 102 S.Ct. 1781, 1791-92, 72 L.Ed.2d 66 (1982).

There are two principles which, in our judgment, the district court misapplied. First, the court decided that the court-ordered plan need not be too tailored to deal with the specific objection raised by the Attorney General to the plans submitted, on the theory that the Section 5 objections were limited to the so-called "no retrogression rule" dealt with in Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1975). The district court said "That rule has no application in which a political subdivision is converting from at-large elections to single-member districts because there was no retrogression to measure." The court's analysis is flawed in two respects. First, that proposition assumes there was a valid at-large system in place and the proposed plan would change that system. But the three-judge court held that "there is now no legally enforceable election system for the school district," Edge v. Sumter County, 541 F.Supp. at 57. The Attorney General's Section 5 objection, itself, states that, although normally a proposed plan must be compared with the one presently in effect, where no legal plan is in effect "it is appropriate in measuring the effect of the voting changes to compare the voting changes with options for properly apportioned single-member district plans." Wilkes County, Georgia v. United States, 450 F.Supp. 1171, 1178 (1978). The principle of the Wilkes County case appears to be sound, and especially applicable in a situation such as this where there has never been a legally valid plan for the election of school board members in effect. Therefore, the district court should have evaluated any proposed plan in connection with other proposed plans to address the requirement in Section 2 that members of a protected class do not have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Second, the Beer court, in discussing the no-retrogression rule, said that reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise cannot violate Section 5, "unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." (emphasis added). Ordinarily, a change from at-large elections to single-member districts would appear to enhance the position of racial minorities. However, in this case the December 17, 1982 letter of the Attorney General, objecting to the first Board submitted plan, said:

Our analysis suggests that, with the annexations taken into account, the present proposal fails to offer black voters a realistic opportunity to elect candidates of their choice.

Thus, the Attorney General's objections appear to be based partially in constitutional as well as statutory concepts.

The second principle misapplied by the district court involves the single-member, at-large problem in electoral cases. The court thought it could not delve into the Attorney General's objections lodged against a six single-member district and one at-large seat "because of the mandate of Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), the court is required to adopt an election scheme composed solely of single-member districts." In Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 726 (1982), the Supreme Court clearly stated that although Connor suggested single-member districts are preferable to multi-member districts, at-large districts that do not offend either the constitution or the statute should not be rejected in the court-ordered remedy.

It is true that this Court has held that court-ordered reapportionment plans are subject in some...