Jordan v. Winter, Civ. A. No. GC 82-80-WK-0

• Citation: 604 F. Supp. 807
• Decision Date: 16 April 1984
• Docket Number: Civ. A. No. GC 82-80-WK-0,GC 82-81-WK-0.
• Parties: David JORDAN and Sammie Chestnut, on behalf of the Greenwood Voters League, Individually and on behalf of others similarly situated, Plaintiffs, v. William WINTER, Governor of Mississippi; T.H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J.C. "Con" Maloney, Secretary, and their successors in office, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. "Buddie" Newman, Speaker of the House of Representatives, Defendants. Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on behalf of others similarly situated, Plaintiffs, v. William F. WINTER, Governor of Mississippi; Edwin L. Pittman, successor in office to William A. "Bill" Allain, Attorney General of Mississippi; Dick Molpus, successor in office to Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners; State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

604 F. Supp. 807

David JORDAN and Sammie Chestnut, on behalf of the Greenwood Voters League, Individually and on behalf of others similarly situated, Plaintiffs, v. William WINTER, Governor of Mississippi; T.H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J.C. "Con" Maloney, Secretary, and their successors in office, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. "Buddie" Newman, Speaker of the House of Representatives, Defendants.

Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on behalf of others similarly situated, Plaintiffs, v. William F. WINTER, Governor of Mississippi; Edwin L. Pittman, successor in office to William A. "Bill" Allain, Attorney General of Mississippi; Dick Molpus, successor in office to Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners; State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.

Civ. A. Nos. GC 82-80-WK-0, GC 82-81-WK-0.

United States District Court, N.D. Mississippi, Greenville Division.

April 16, 1984.

Frank R. Parker, Patricia Hanrahan, Sidney Bixler, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Johnnie E. Walls, Jr., Greenville, Miss., Robert B. McDuff, University, Miss., for plaintiff O.H. Brooks.

Alvin O. Chambliss, North Miss. Rural Legal Services, Oxford, Miss., Willie Perkins, North Miss. Rural Legal Services, Greenwood, Miss., for plaintiffs D. Jordan.

Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., Jerris Leonard, Kathleen Heenan McGuan, Washington, D.C., Hubbard T. Saunders, IV, Champ Terney, R. Scott Levanway, Jackson, Miss., for State defendants.

Danny E. Cupit, pro se.

Michael B. Wallace, Jackson, Miss., for Republican defendants.

Before CLARK, Chief Circuit Judge, SENTER, Chief District Judge, and KEADY, Senior District Judge.

ON REMAND FROM THE UNITED STATES SUPREME COURT

PER CURIAM.

On June 8, 1982, this court ordered into effect on an interim basis a congressional redistricting plan for the State of Mississippi. Jordan v. Winter, 541 F.Supp. 1135, 1144-45 (N.D.Miss.1982). On appeal, the United States Supreme Court vacated this court's judgment and remanded the case for further consideration in light of Section 2 of the Voting Rights Act of 1965, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983).

This court held an evidentiary hearing in December of 1983. On the basis of the evidence adduced at trial and the pleadings, briefs, and argument of counsel, we concluded that the court-ordered plan, or Simpson Plan, violated amended § 2. The court found that the structure of the Second Congressional District in particular unlawfully diluted black voting strength. Accordingly, on January 6, 1984, we entered judgment directing the use, until the Mississippi Legislature enacts a valid congressional redistricting plan, of an interim plan fashioned by the court with the aid of the parties. Pursuant to the reservation set out in that final judgment, we now enter Findings of Fact and Conclusions of Law in support of that judgment, in conformity with Fed.R.Civ.P. 52(a).

I. Procedural History

The history of the legislative and judicial efforts to secure a constitutional congressional redistricting plan for the State of Mississippi is set out in our prior decision in Jordan v. Winter, 541 F.Supp. 1135 (N.D. Miss.1982). Only a brief summary is required here.

The 1980 official census revealed a total population disparity in Mississippi's 1972 congressional districting plan of 17.6%. Recognizing the constitutional problem posed by such malapportionment, see U.S. Const. Art 1, § 2; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Mississippi Legislature in 1981 enacted S.B. 2001¹ for redistricting the state's five congressional districts. The Attorney General of the United States, after reviewing the plan pursuant to the preclearance provisions of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c,² interposed a timely objection on March 30, 1982. The Attorney General found the plan defective because it divided the concentration of black majority counties located in the northwest or "Delta" portion of the state among three districts rather than concentrating them in a single district.³ He concluded that this configuration constituted an unlawful dilution of minority voting strength.

The Mississippi Legislature did not attempt to enact another plan or otherwise to obtain preclearance from the Attorney General. On April 7, 1982, it filed a declaratory judgment action in the United States District Court for the District of Columbia seeking judicial preclearance of S.B. 2001. Mississippi v. Smith, No. 82-0956. That action has since been voluntarily dismissed.

The Jordan and Brooks plaintiffs then filed class actions to enjoin enforcement of S.B. 2001 until it was precleared, to prohibit further use of the 1972 plan because of population malapportionment, and to secure a court-ordered interim plan for the 1982 congressional elections and thereafter until changed by law. A three-judge district court was convened pursuant to 28 U.S.C. § 2284. Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1973j(f). This court declined to place the unprecleared S.B. 2001 into effect on an interim basis and concluded that the 1972 plan was unconstitutionally malapportioned and therefore also unsuitable for interim use. Jordan v. Winter, 541 F.Supp. at 1142. It thus limited its consideration to two plans advocated by the plaintiffs and one advocated by the AFL-CIO as amicus curiae.

Plaintiffs urged the court to order into effect either of two plans devised by Senator Henry J. Kirksey, a black state legislator. Both plans kept the Delta area intact and achieved black majority districts by combining the Delta area with predominantly black portions of Hinds County and the City of Jackson. 541 F.Supp. at 1140. Plaintiffs' preferred plan (Kirksey Plan 1) contained one district that was 64.37% black; the alternative plan (Kirksey Plan 2) contained one district that was 65.81% black. Id. The plan urged by the AFL-CIO, the "Simpson Plan," combined fifteen Delta and part-Delta counties with six predominantly white eastern rural counties to produce four majority white districts and one district with a black population majority of 53.77%. Id. at 1141. The Kirksey Plan 1 had a total population variance of .2150%; the Kirksey Plan 2 a variance of .230%, and the Simpson plan a variance of .2141%.

The court was bound by Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), to fashion an interim plan that adhered to the state's political policies to the extent those policies did not violate the Constitution or the Voting Rights Act. 541 F.Supp. at 1141. The court determined that the following political policies underlay the passage of S.B. 2001:

(1) Minimal change from 1972 district lines; (2) least possible population deviation; (3) preservation of the electoral base of incumbent congressmen; and (4) establishment of two districts with 40% or better black population.

Id. at 1143. Because the Simpson Plan most nearly accorded with the latter three policies, which the court found to be constitutionally and statutorily valid,⁴ we ordered it into effect on an interim basis. That plan was used for the 1982 congressional elections. It is depicted on a map appended to our prior decision, id. at 1146, and is statistically described as follows:

                            Total
                District  Population  Deviation  %Deviation  %Black
                ---------------------------------------------------
                   1       504,671      +543      +.1077     25.86
                   2       504,697      +569      +.1128     53.77
                   3       503,760      -368      -.0729     31.23
                   4       503,893      -235      -.0466     45.25
                   5       503,617      -511      -.1013     19.84
                

Although the Second District under the Simpson Plan was a majority black district (53.77%), it had a minority black voting age population of 48.05%.

Analysis of the Simpson Plan under the standard established is amended § 2 of the Voting Rights Act of 1965 reveals its invalidity.

II. Amended Section 2

Section 2 of the Voting Rights Act of 1965, as amended, presently reads:

Sec. 2(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b).

(b) a violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C.A. § 1973 (West Supp.1983). The amendment to Section 2 was designed to eliminate the requirement, prescribed in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d...