Kirksey v. Allain

• Decision Date: 21 May 1986
• Docket Number: Civ. A. No. J85-0960.
• Citation: 635 F. Supp. 347
• Parties: Henry KIRKSEY, John Q. Adams, Edward Blackmon, Jr., Alvin E. Boyce, Edgar Bridges, Owen H. Brooks, Ben F. Burckett, Obie Clark, Eugene Daniels, James Davis, Arwilla Davison, André Deberry, Evan Doss, Jr., William Fleming, Roy Garth, Carsie A. Hall, Jim Davis Hull, Edward K. Jackson, Frank Mingo, Jessie Pendleton, Rev. Robert L. Seals, Sr., Janette Self, Nausead Stewart, Monzell Stowers, and Denise Walls, on behalf of themselves and all others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi; Edwin L. Pittman, Attorney General of Mississippi; Dick Molpus, 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; State of Mississippi Democratic Party Executive Committee, by and through its Chairman, Steve Patterson, and State of Mississippi Republican Party Executive Committee, by and through its Chairperson, Ebie Spivey, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

635 F. Supp. 347

Henry KIRKSEY, John Q. Adams, Edward Blackmon, Jr., Alvin E. Boyce, Edgar Bridges, Owen H. Brooks, Ben F. Burckett, Obie Clark, Eugene Daniels, James Davis, Arwilla Davison, André Deberry, Evan Doss, Jr., William Fleming, Roy Garth, Carsie A. Hall, Jim Davis Hull, Edward K. Jackson, Frank Mingo, Jessie Pendleton, Rev. Robert L. Seals, Sr., Janette Self, Nausead Stewart, Monzell Stowers, and Denise Walls, on behalf of themselves and all others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi; Edwin L. Pittman, Attorney General of Mississippi; Dick Molpus, 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; State of Mississippi Democratic Party Executive Committee, by and through its Chairman, Steve Patterson, and State of Mississippi Republican Party Executive Committee, by and through its Chairperson, Ebie Spivey, Defendants.

Civ. A. No. J85-0960.

United States District Court, S.D. Mississippi, Jackson Division.

May 21, 1986.

Carroll Rhodes, Hazlehurst, Miss., Johnnie L. Walls, Jr., Greenville, Miss., William L. Robingon, Samuel Issacharoff, Patricia M. Hanrahan, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Lynda C. Robinson, Jackson, Miss., for plaintiffs.

Robert M. Arenston, Steven J. Kirchmayr, Deputy Attys. Gen., Hubbard T. Saunders, IV, Sp. Counsel, Jackson, Miss., for defendants.

Before CLARK, Circuit Judge, and BARBOUR and WINGATE, District Judges.

MEMORANDUM OPINION AND ORDER

Plaintiffs, a class consisting of 25 black, registered voters in Mississippi, filed suit alleging Defendants¹ violated the Fourteenth and Fifteenth Amendments and §§ 2 and 5 of the Voting Rights Act of 1965, as amended, by failing to: (1) submit for preclearance under § 5 of the Voting Rights Act certain Mississippi statutes pertaining to judicial elections; (2) adhere to the "one-person, one-vote" principle in the creation of chancery and circuit court districts in Mississippi; and (3) draw district lines for judicial elections which do not dilute black voting strength. Plaintiffs also claim that the use of multi-member judicial districts for the election of some judges dilutes black voting strength in violation of § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. This matter is presently before the Court on Plaintiffs' Motion for a Temporary Restraining Order and a Preliminary or Permanent Injunction and/or a Declaratory Judgment, requesting the three-judge court², convened pursuant to 28 U.S.C. § 2284 and 42 U.S.C. § 1973c, to: (1) declare that certain Mississippi statutes pertaining to state judicial elections are subject to § 5 of the Voting Rights Act; and (2) enjoin enforcement of those statutes which have not been precleared pending compliance with § 5 of the Voting Rights Act.

Following oral argument on Plaintiffs' Motion, the three-judge court delivered a bench opinion, holding that: (1) § 5 of the Voting Rights Act applies to Mississippi legislative and executive action which establishes or seeks to administer any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting for judicial elections; (2) enforcement or implementation of any Mississippi legislative or executive action which establishes or seeks to administer any voting qualification or prerequisite to voting, or standard, practice or procedure pertaining to the conduct of judicial elections which is different from that in force and effect on November 1, 1964, the effective date of the Voting Rights Act, or which is different from a statute that has been precleared pursuant to § 5 should be enjoined; and (3) legislative recodification of Mississippi statutes which do not change the voting qualifications or prerequisites to voting, or standards, practices or procedures with respect to voting for judicial elections as they existed on November 1, 1964, or as precleared by the United States Attorney General should not be enjoined. This Opinion states the reasons for the ruling of the three-judge court.

Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, requires a State to submit "any voting qualification or prerequisite to voting, or standard, practice or procedure ... different from that in force and effect on November 1, 1964" to the Attorney General for preclearance or institute an action in the United States District Court for the District of Columbia for a declaratory judgment that any such qualification, prerequisite to voting, or standard, practice or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. The United States Supreme Court, "after canvassing the legislative history of the Voting Rights Act," concluded that Congress, by enacting the Voting Rights Act, meant "to reach any state enactment which altered the election law of a covered State in even a minor way." Dougherty County, Georgia Board of Education v. White, 439 U.S. 32, 37, 99 S.Ct. 368, 372, 58 L.Ed.2d 269 (1978) (quoting Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)). Indeed, the Supreme Court in Allen stated that Congress intended § 5 to reach "all changes, no matter how small...." 393 U.S. at 568, 89 S.Ct. at 833.

In cases following Allen which interpreted § 5, the Supreme Court has "consistently adhered to the principles of broad construction set forth in Allen." Dougherty County, Georgia Board of Education v. White, 439 U.S. at 38, 99 S.Ct. at 372. This principle of broad construction recently led the United States District Court for the Eastern District of North Carolina, in Haith v. Martin, 618 F.Supp. 410, 413 (E.D.N.C.1985), pet. for cert. filed, 54 U.S. L.W. 3463 (Dec. 6, 1985), to hold that "... the fact that an election law deals with the election of the judiciary does not remove it from the ambit of § 5." Given the expansive interpretation of the Voting Rights Act and § 5, this Court is compelled to agree with the pronouncement in Haith v. Martin.

Defendants urge us to reject the holding in Haith v. Martin and exempt judicial elections from the scope of § 5 because: (1) § 2(b) of the Voting Rights Act demonstrates that the Act applies only to "representatives"; (2) the Voting Rights Act and its dilution concept do not apply to judicial elections; and (3) the State relied upon the interpretation of the United States Department of Justice that the Act excludes judicial elections.

Section 2(b) of the Voting Rights Act, 42 U.S.C. § 1973(b), states that:

A violation of the Act ... is established if ... it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by the Act 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. Emphasis added.

Defendants argue that since the term "representative" does not include judges, see, e.g., Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C.1971), aff'd., 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), then the Voting Rights Act does not apply to judicial elections. However, § 5 of the Voting Rights Act does not contain such a limitation. Section 5 states that any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964, must be submitted for preclearance to the Attorney...