Lee County Branch of NAACP v. City of Opelika, 83-7275

• Decision Date: 17 December 1984
• Docket Number: No. 83-7275,83-7275
• Citation: 748 F.2d 1473
• Parties: LEE COUNTY BRANCH OF the NAACP, et al., Plaintiffs-Appellants, v. The CITY OF OPELIKA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1473

748 F.2d 1473

LEE COUNTY BRANCH OF the NAACP, et al., Plaintiffs-Appellants, v. The CITY OF OPELIKA, et al., Defendants-Appellees.

No. 83-7275.

United States Court of Appeals,

Eleventh Circuit.

Dec. 17, 1984.

Stephen J. Ellmann, Ira A. Burnim, Montgomery, Ala., for plaintiffs-appellants.

Guy F. Gunter, III, Opelika, Ala., Thomas S. Lawson, Jr., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama

Before HILL and HENDERSON, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

WISDOM, Senior Circuit Judge:

The plaintiffs in this case allege that the at-large scheme for electing the municipal government for the city of Opelika, Alabama violates the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. Sec. 1973 (West Supp.1984). The case was tried under the law as pronounced in Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807. After trial but before the district court had issued its decision in this case, the Supreme Court issued two decisions affecting the standard of proof in constitutional discrimination cases. Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012; City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Moreover, in 1982 Congress amended section 2 of the Voting Rights Act, in effect overruling Mobile and restoring the legal standard in the Fifth andEleventh Circuits governing voter discrimination decisions before that case was decided. ¹ The district court deferred its ruling pending the decision in Mobile, then issued an opinion denying relief to the plaintiffs under the principles stated in that case. In a later brief opinion, the court denied the plaintiffs' motion to alter or amend the judgment, or for a new trial, and held that the plaintiffs were not entitled to relief under either section 2 of the Voting Rights Act or under the factors enumerated by the Supreme Court in Rogers. While this case was on appeal, two decisions were issued that affect our disposition of this case. In Escambia County v. McMillan, 1984, --- U.S. ----, 104 S.Ct. 1577, 80 L.Ed.2d 36, the Supreme Court vacated a finding that an at-large election scheme violated the Fourteenth Amendment and remanded the case for consideration of whether the scheme was unlawful under section 2 of the Voting Rights Act. In United States v. Marengo County Commission, 11 Cir.1984, 731 F.2d 1546, this Court explained in detail how the "results" test of section 2 is to be applied to an allegation that an at-large system unlawfully dilutes minority votes.

We hold that Escambia requires that the plaintiffs' section 2 claim be decided first and that Marengo sets forth the legal standard governing that claim. We remand this case to the district court to allow the parties an opportunity to update the record and to present evidence on the question whether Opelika city elections have exhibited racially polarized voting, a key consideration under the Marengo standard.

I. FACTS

Opelika, Alabama is a city of approximately 22,000, of which about 31 percent are black. The city is governed by a three-person commission whose members are elected at-large for a three-year term. The elections are staggered; one new commissioner is elected each summer. If no candidate receives a majority of votes, the two candidates receiving the most votes participate in a run-off election. After each election, the city commissioners select from among themselves a president who serves as mayor.

Although pervasive de jure discrimination in Opelika ended in about 1970, residential patterns in the city at the time of trial were segregated. As of 1978, Opelika was divided into six voting wards or "boxes". Witnesses at trial testified that the majority of the population in boxes 1, 2, and 6 were white and the majority of those in boxes 3 and 5 were black. The remaining box was generally considered a "white" box. There was no direct evidence in the record of voter registration by race in Opelika. ² The plaintiffs introduced evidence suggesting that a disparity existed between levels of voter registration among blacks and whites.

No black has ever been elected to Opelika's city commission. On five occasions between 1969 and 1978, a black candidate ran for and lost election to the commission. In 1970, no blacks were employed by the city in either managerial or clerical positions. In 1978, three of thirty-three clerical positions were filled by blacks. Three of the eleven administrative positions with the City Water Works Board and four of the forty-four city managerial positions were filled by blacks. Since 1972 the Opelika school system has been fully integrated at a ratio of approximately 60 percent white and 40 percent black in each school throughout the system.

On January 25, 1978, the Lee County Branch of the NAACP, the Lee County Voters League, and several of the members of these organizations filed suit against the City of Opelika and the three members of its city commission, alleging that the at-large commission form of government impermissibly dilutes the votes of black citizens in violation of the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act, as amended, 42 U.S.C. Sec. 1973 (1976). The case was tried before the district court in the summer of 1978 under the law as set forth in Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807. Nevett held that a claim of unconstitutional voting dilution could be established by proof of the factors outlined in Zimmer v. McKeithen, 5 Cir.1973, 485 F.2d 1297 (en banc), aff'd per curiam sub nom. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. Proof of these factors "raises an inference of intentional discrimination". Nevett, 571 F.2d at 225. The focus of the evidence at trial was on the two Zimmer factors that the Nevett Court stated were of special relevance in voting dilution cases--whether the plaintiffs had access to the political process and whether government officials were responsive to the interests of the plaintiff racial group. ³ Nevett, 571 F.2d at 223 n. 19.

After trial, but before a decision in this case had been rendered, the Supreme Court decided City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. A plurality of the Court held that intentional discrimination must be shown to establish a claim of unconstitutional voting dilution. The plurality rejected the holding of Nevett that proof of an aggregate of the Zimmer factors is sufficient to establish such a claim. 446 U.S. at 73, 100 S.Ct. at 1502- 1503. Five justices in Mobile also ruled that section 2 of the Voting Rights Act incorporates the constitutional intent standard. Id. at 60-61, 105 n. 2, 100 S.Ct. at 1495-1496, 1520 n. 2. After the decision in Mobile, the plaintiffs moved to reopen the record in this case to submit evidence bearing more directly upon intent. The district court denied the plaintiffs' offers of additional evidence.

In August 1982, the district court issued a memorandum opinion denying the plaintiffs' relief. Memorandum Opinion, M.D.Ala. Aug. 31, 1982, Record at 273. The court concluded that the Zimmer factors are relevant to a showing of discriminatory purpose under Mobile, although Mobile made proof of those factors alone insufficient to establish the necessary intent. The court ruled that the plaintiffs had "not proved by a preponderance of the evidence the existence of an aggregate of the factors which the Zimmer Court said would make out 'a strong case' ". Record at 308. The court's opinion emphasized evidence that Opelika's government had been responsive to black needs and that all formal barriers to black political participation had been eliminated.

The court's opinion made no mention either of Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012--decided two months before the district court issued its opinion--or of the Voting Rights Act Amendments of 1982, P.L. No. 97-205, 96 Stat. 131 (codified at 42 U.S.C. Secs. 1971-1974e), effective June 29, 1982. Rogers confirmed the vitality of the Zimmer factors and held that these factors can be used to support an inference of intentional discrimination. Rogers, 458 U.S. at 620-22, 624, 102 S.Ct. at 3277-78, 3279. The 1982 Amendments changed section 2 of the Voting Rights Act to prohibit any practice or procedure "imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote on account of race or color ...." 42 U.S.C.A. Sec. 1973(a) (West Supp.1984) (emphasis added). The statute further provides:

A violation of subsection (a) of this section 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) of this section 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. Sec. 1973(b) (West Supp.1984).

On September 10, 1982, the plaintiffs moved to amend the judgment or for a new trial in the light of Rogers and amended section 2. They also asserted that Rogers reflected a renewed emphasis on certain evidentiary factors outlined in Zimmer that would further support their right to relief. In March 1983...