Ferguson v. Winn Parish Police Jury, 74--3408

• Decision Date: 10 March 1976
• Docket Number: No. 74--3408,74--3408
• Parties: Cassius C. FERGUSON a/k/a C. C. Ferguson, Plaintiff-Appellant. v. WINN PARISH POLICE JURY and Winn Parish School Board et al., Defendants-Appellees, v. Elijah MALLORY, Intervenor-Appellant, United States of America, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 592

528 F.2d 592

Cassius C. FERGUSON a/k/a C. C. Ferguson, Plaintiff-Appellant. v. WINN PARISH POLICE JURY and Winn Parish School Board et al., Defendants-Appellees, v. Elijah MALLORY, Intervenor-Appellant, United States of America, Intervenor.

No. 74--3408.

United States Court of Appeals Fifth Circuit.

March 10, 1976.

Bobby L. Culpepper, Wm. H. Baker, Donald C. Brown, Jonesboro, La., for Ferguson & Mallory.

Charles B. Bice, Dist. Atty., 8th Jud. Dist., Kermit M. Simmons, Asst. Dist Atty., W. Scott Maxwell, Winnfield, La., for defendants-appellees.

Gerald W. Jones, Chief, Voting & Public Accommodations, U.S. Dept. of Justice, Washington, D.C., for the United States.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

MORGAN, Circuit Judge:

Plaintiff appeals from a district court approved plan of reapportionment for the Winn Parish School Board and Winn Parish Police Jury. Plaintiff argues that the apportionment of the School Board violates the 'one man-one vote' maxim of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and progeny in that the total variation between the highest represented and lowest represented district is 37.71%. Plaintiff also contends that the apportionment plan of the Police Jury, which utilizes both single and multi-member districts, results in a dilution of black votes in violation of the Fifteenth Amendment. In addition, plaintiff argues that the award of $500 attorney's fees was excessively low.

I. School Board

Plaintiff below, attacked a 1970 court ordered apportionment of the School Board. ¹ That plan called for five election districts, with District 1 electing five at-large members, District 2 electing two at-large members with no more than one member from any one of the three wards constituting District 2, and Districts 3, 4, and 5 electing one member each for a total school board membership of ten persons. The district court, below, held that this 1970 plan did not offend Fourteenth Amendment 'one man-one vote' requirements, but did violate the Fifteenth Amendment in its apportionment of District 1 into a five-person, multi-member district. Accordingly, the court approved a plan adopted by the school board that called for ten election districts, with District 1 divided into five single-member districts, with three other single-member districts, and with two voting districts combined to elect two members at-large. ²

Plaintiff argues that the population variation of 37.71% between the most over-represented and the most under-represented district is too great to withstand constitutional scrutiny. We agree. While mathematical exactitude is not required in state and local reapportionment plans, Reynolds v. Sims, supra, and while small variations from the ideal are insufficient to establish invidious discrimination, Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), a deviation of 37.71% is certainly beyond the de minimus range. In Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), the Supreme Court reversed a Florida legislative reapportionment plan that provided for a total variation from the ideal of 25% in the state senate and of 33% in the state house, basing its reversal on failure of the state or of the district court to articulate acceptable reasons for these substantial variations. Id. at 443--44, 87 S.Ct. 569. Likewise, in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), the Court reversed a plan allowing total variations of 28% and 25% in each house of the Indiana legislature. Finally, in Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771, reh. den., 386 U.S. 999, 87 S.Ct. 1300, 18 L.Ed.2d 352 (1967), the Court disapproved a 26% variation, noting that it was unsure that any policy considerations could justify such variations, although it did not have to reach that question since the plan did not achieve announced policy objectives.

In the present case, the District court did not articulate any reasons for allowing such a large variation among voting districts. The defendants now argue that such deviations are required to achieve their objective of restricting school board election districts to traditional school attendance zones; that is, only voters within high school district 1 would vote for a school board member in the corresponding election district. Besides the fact that the approved plan does not even achieve this goal, ³ we have recently held that such an objective cannot justify these significant variations. Panior v. Iberville Parish School Board, 498 F.2d 1232 (5th Cir. 1974). In Panior, the district court had approved a plan that created four school board election districts to conform to four high school sub-systems and that resulted in a 37.45% total variation among school board election districts. In reversing, we held:

The Board acts as a unit. The Board as a whole has the responsibility for

Each voter is, therefore, entitled, so far as practicable, to an equal voice in the ultimate responsibility for such action whether the brick and mortar are to go to East Bank or to Metropolitan Plaquemine. Whether any set of conceivable circumstances could justify a situation such as this where two voters in two districts all but equal three voters in two others, we simply hold this case falls far short of that mark. Id. at 1236. (Emphasis added.)

Accordingly, we reverse and remand that portion of the judgment setting up school board election districts and direct the district court to establish or approve a plan resulting in acceptable total variations in population among school board districts.

II. Police Jury

In the 1970 apportionment plan, the Police Jury was divided into two voting districts--districts A and B--with six representatives allotted to each district for a total Police Jury membership of twelve. ⁴ The district court, below, holding that the apportionment of Ward A into a six multi-member district offended the requirements of the Fifteenth Amendment, adopted a plan proposed by the Police Jury that called for a ten member Police Jury with District A divided into five single-member districts (election districts one--five) and with District B maintained as a five person multi-member district (election districts six--ten). ⁵ Plaintiffs challenge the retention of this 'at-large' system of representation in Districts Six--Ten on Fifteenth Amendment grounds. ⁶

It is difficult for us to determine from plaintiff's brief, whether plaintiff argues that multi-member districts are per se unconstitutional or argues that the maintenance of District B (6--10) as a multi-member district unconstitutionally dilutes black votes. Certainly, multimember election districts are not per se unconstitutional. Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). In analyzing the constitutionality of the use of such a scheme in the present case, we are cognizant that the Supreme Court has classified cases involving multi-member districts into two groups, with the classification dependent on whether the multimember election plan originated solely from the court or from a legislative body. In Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), the Court held:

'(W)hen district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter.' (Connor v. Johnson, 402 U.S.) at 690 (91 S.Ct. 1760) 29 L.Ed.2d 268. . . .

The standards for evaluating the use of multimember districts thus clearly differ depending on whether a federal court or state legislature has initiated the use . . .

Appellants do not contend that any racial or political group has been discriminated against by the multimember districting order by the District Court. They only suggest that the District Court has not followed our mandate in Connor v. Johnson, and that the court has failed to articulate any reasons for this departure. We agree. Absent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State. Id. 95 S.Ct. at 761, 42 L.Ed.2d at 779--80.

Therefore, if this case were governed by Chapman, we would remand it back for failure of this district court to articulate compelling reasons for use of a multi-member plan. Consistent with our holding in Wallace v. House,515 F.2d 619 (5th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3399 (U.S. Dec. 26, 1975) (No. 75--914), however, we do not believe the present case to be governed by Chapman, and, accordingly, we do not base our remand on the district court's failure to articulate justifications for its plan. In Wallace, we held that when a district court, in invalidating an all atlarge aldermanic election plan, is forced to formulate a new apportionment plan, it can properly choose the local legislative body's proposed plan, utilizing some multi-member representation, rather than adopt a total single district plan, as long as that body's plan is constitutional. Id. at 635--36. Interpreting the Supreme Court's determinations in Connor and Chapman to be based on its supervisory powers over federal courts, as opposed to constitutional considerations, we distinguished these cases on the basis of the unusual facts operative in each of them: in Connor, the parties in the litigation had proposed plans utilizing single-member districts exclusively, but the district court, in its order reapportioning the Mississippi Legislature, had employed some multi-member districts; in Chapman, the use of multi-member districts had originated solely from the district court and had never been proposed or sanctioned by the North Dakota legislature. Noting that...