Kirksey v. Board of Sup'rs of Hinds County, Mississippi

• Decision Date: 24 February 1976
• Docket Number: No. 75--2212,75--2212
• Citation: 528 F.2d 536
• Parties: Henry J. KIRKSEY et al., Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 536

528 F.2d 536

Henry J. KIRKSEY et al., Individually and on behalf of all

others similarly situated, Plaintiffs-Appellants, v. BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI et al.,

Defendants-Appellees.

No. 75--2212.

United States Court of Appeals,

Fifth Circuit.

Feb. 24, 1976.

Rehearing En Banc Granted

May 12, 1976.

Frank R. Parker, Herman Wilson, Lawyers' Comm. for Civil Rights Under

Law, Jackson, Miss., for plaintiff-appellants.

Jessica Dunsay Silver, Atty., Appellate Section, U.S. Dept. of Justice, Civil Rights Div., Appellate Division, Washington, D.C., amicus curiae.

Thomas H. Watkins, John M. Putnam, William Allain, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BELL, COLEMAN and GEE, Circuit Judges.

GEE, Circuit Judge:

Plaintiffs appeal from the decree of the district court adopting and promulgating a redistricting plan for the election of county supervisors and others ¹ in Hinds County, Mississippi, a central-Mississippi county and the seat of the state capital. They properly represent a class: all black registered voters of Hinds County qualified to vote for county officers elected from its districts. Their basic complaint is that the court's plan dilutes and cancels out black voting strength for these offices. We affirm.

History of this Litigation

In 1969, pursuant to court order, the county was reapportioned to comply with the equal vote requirements of Avery v. Midland County. ² In mid-1971 this suit attacked that plan as wanting section 5 ³ clearance by the Attorney General, as diluting the black franchise, and as malapportioning the county under Avery. A three-judge court, convened at plaintiffs' request to consider the section 5 count, was dissolved when plaintiffs nonsuited that count. In late 1972, the district court, acting on stipulated 1970 census data and after conferring with counsel, found that in light of the 1970 data the 1969 plan clearly malapportioned the county, ⁴ and it ordered the defendant supervisors to submit a new plan correcting the population discrepancies, 'formulated without regard to the race, creed, sex or national origin of any citizen of Hinds County . . ..'

The following June, the supervisors filed their recommended plan ⁵ with the district court. Plaintiffs filed timely objections and their own suggested plan, which essentially created two districts out of the black residential bloc in Jackson and joined the remainder of the bloc to three rural districts covering the rest of the county. After a lengthy delay--slightly over a year--trial on the merits was had, and an opinion and judgment followed in April 1975. The opinion incorporated many findings of fact, summarized in significant part hereinafter, a few of which are attacked as erroneous. On the basis of these findings and its conclusions of law, the court approved the supervisors' plan, authorized and directed the supervisors to put it into effect, and rejected plaintiffs' plan.

Before us plaintiffs challenge these actions of the district court and seek attorneys' fees.

The Court's Findings

The court's findings of fact are extensive and are, in the main, not disputed by plaintiffs. ⁶ They commence with matters relating to the background and history of this litigation, such as the bona fide nature of the 1969 redistricting attempt, the court's directing the defendant supervisors to prepare a new plan, and the requirement that this plan be formulated without reference to race, etc. as criteria.

Hinds County is described in them as demographically and economically similar to many other areas of the South: ⁷ a main town or city, in and around which population is concentrated, surrounded by a less-developed and sparsely-populated hinterland. The population figures for Hinds County, by the 1970 census, are noted to be 214,973, of whom 130,590 (60.75%) are white, 84,064 (39.10%) are black, and the remaining 317 (0.15%) are of other races. For the City of Jackson, the proportions are similar: 60.1% (92,651) of its residents are white, 39.7% (61,063) are black, and 0.1% (254) are of other races.

Next, the court examines the parties' proposed plans for reapportionment and finds both clearly acceptable, the largest population variance between districts in either being less than four percent. Considering first the defendant supervisors' plan, the court found it

does achieve the primary goal of a reapportionment plan of equality of population within constitutional guidelines, while at the same time equalizing as nearly as practical under the circumstances the important subsidiary factors of road and bridge mileage and land area, assigning to each district substantial numbers of both urban and rural residents. This result is accomplished under the Board plan with a minimal disturbance or change of existing election districts and voting places.

Noting that '(t)he plaintiffs are critical of the (supervisors') proposed plan's utilization of long corridors into the City of Jackson from the rural land mass in order to achieve the required equalization of population,' the court observed that 'it is absolutely impossible to draw five districts without splitting the urban area of Jackson into five parts and still realize the other desirable planning objectives of equalization of road and bridge maintenance responsibilities and the substantial equalization of areas between the districts.' ⁸ And though 'the utilization of the long corridors into an urban area does create rather unusual looking supervisors' districts,' the court found that the boundary lines of the districts 'do follow, so far as possible, natural boundaries such as rivers, highways, railways, and other landmarks traditionally used to designate district boundaries.'

The court next considered expert testimony by the architect of the supervisors' plan that he compiled no racial data concerning the plan before drawing it and, as ordered, gave no consideration to race in his drafting of it. The court found as a fact--a finding that is not assigned as error to us--that race was 'wholly disregarded' in preparation of that plan. Finally, the court set out raw population tables for the pre-1969 districts, for districts under the 1969 plan, and for the supervisors' proposed plan. These show that under the pre-1969 plan blacks held great majorities (about 76% and 68%) in two of the five districts but that these were each egregiously malapportioned under the Avery rule. ⁹ As to the 1969 plan, the figures indicate white majorities in each of its five districts, some probably decisive (68/32) and some perhaps not (54/46), as well as serious, doubtless-invalidating malapportionment. ¹⁰ The 1973 or proposed supervisors' plan reflected proper apportionment and the following racial proportions in the general population:

The court next discussed testimony offered by an expert witness for plaintiffs about voting-age (as contrasted with general) population proportions in the county and, by extrapolation only, in the districts. By this analysis, because of the systematic departure of adult blacks from Hinds County, the black/white voting-age proportions in the county were calculated at roughly 34/66. Admittedly extrapolating on the assumption that this county-wide proportion would hold roughly true for each district, the expert indicated that, as is obvious, the already commanding white majorities in Districts 1, 3 and 4 would be increased, and that the black majorities in Districts 2 and 5 would become voting-age minorities of 48% and 48.6%, respectively. The court thought that these conclusions, though subject to an uncertainty of 1 to 2% inherent in the extrapolation, were 'to some extent' confirmed by calculations from census data made by another of plaintiffs' expert witnesses. ¹¹ An offer of proof made by plaintiffs' first expert about registered black voters in Districts 2 and 5 placed the percentages of registered blacks at about 41% for each, though the evidence was excluded because the study from which it was drawn was not offered in evidence, a ruling to which no error is assigned.

Next reviewed by the court was a considerable list of discriminatory actions taken in the past against black voters in Hinds County and in the state generally. These include such matters as the total lack of any success by black candidates in county elections, past poll tax, literacy and property qualifications on the franchise, and so on, as well as past behavior of Hinds County supervisors indicating unresponsiveness to the black citizen: systematic exclusion of blacks from jury rolls, maintenance of discriminatory educational facilities in the county, etc., some of which had been removed by past orders of the court itself in earlier cases. ¹² In this connection, however, the court noted that these practices had decreased rapidly in number and severity in recent years, and that no evidence of denial of registration on racial grounds since enactment of the 1965 Voting Rights Act appeared in the record. In view of this and of testimony about the registration of thousands of eligible blacks since 1965, the court ascribed the failure of Hinds County blacks to register to lack of interest rather than to official discouragement. On these and other considerations detailed in the record, the court found that past abuses have no current significant effect in Hinds County on black access to the political process. So concluding, the court approved the supervisors' plan as offering the 40% black segment of Hinds County's populace a realistic opportunity to elect officials of its choice in two districts and a significant voice in the other three. Plaintiffs' plan was found deliberately to create two 'safe' black districts (66/33 and 68/31), both entirely urban with no significant road or bridge mileage, and thus to fail both on constitutional and practical grounds. Having so found the...