Moore v. LEFLORE COUNTY BOARD OF ELECTION COM'RS

• Decision Date: 18 October 1971
• Docket Number: No. GC 71-84.,GC 71-84.
• Citation: 351 F. Supp. 848
• Parties: James MOORE et al., Plaintiffs, v. LEFLORE COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

351 F. Supp. 848

James MOORE et al., Plaintiffs, v. LEFLORE COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants.

No. GC 71-84.

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

October 18, 1971.

John C. Brittain, Jr., Jackson, Miss., Johnnie E. Walls, Jr., Greenwood, Miss., David M. Lipman, Oxford, Miss., for plaintiffs.

R. C. McBee, James W. Burgoon, Greenwood, Miss., for defendants.

Before COLEMAN, Circuit Judge, and KEADY and SMITH, District Judges.

KEADY, District Judge:

Plaintiffs, who are black voters of Leflore County, Mississippi, bring this suit in equity against the Board of Election Commissioners and Board of Supervisors of Leflore County, seeking declaratory and injunctive relief against defendants to prevent them from applying Miss.Code Ann. § 2870 as amended in 1966 so as to provide for election of supervisors from the county at large rather than by districts.¹ Claiming a violation of § 5 of the Voting Rights Act of 1965, plaintiffs invoke federal court jurisdiction under 28 U.S.C. §§ 1343(3) and (4), 2201 and 2202 and 42 U.S.C. § 1971(d); and a three-judge district court, constituted pursuant to 28 U.S.C. § 2284 and 42 U.S.C. § 1973c, has been duly convened to determine the issues.

The essential facts are stipulated, and at the hearing plaintiffs moved for judgment on the pleadings. In the November 1964 general election and all previous elections, supervisors of each of the five districts in Leflore County were elected on a district basis, whereby each supervisor was a resident of the district which he served and was elected by the voters of the district. At its September 1966 meeting the board adopted an order providing that all qualified electors of the county shall be eligible to vote for each member of the board of supervisors, but that each candidate shall be a resident of the district which he proposes to represent. This order, adopted pursuant to the aforementioned 1966 amendment, was duly published in the required manner and made final in January 1967. County supervisors were elected in primary and general elections held in 1967 by at-large elections for four-year terms of office beginning January 1, 1968. The incumbent supervisors are presently holding office pursuant to that election.

In July and September 1967, Ramsay Clark, Attorney General of the United States, directed letters to the County Election Commissioners, discussing their respective responsibilities under the Voting Rights Act of 1965. Later, federal observers were sent into the county to determine firsthand whether persons entitled to vote were allowed to do so and whether the votes were properly counted and tabulated. The at-large method of electing supervisors was a fact well known to the federal observers, who did not object to the procedure. The board, however, did not submit its order for the alternate method of at-large election of supervisors for approval to either the United States Attorney General or the United States District Court for the District of Columbia, as required by § 5 of the Voting Rights Act of 1965.² We know judicially that the United States Attorney General has refused to approve the 1966 and subsequent amendments to Miss.Code Ann. § 2870.

This year candidates for the post of supervisor in Leflore County ran on an at-large basis, and successful party nominees in the August 1971 primary as well as independent candidates will have their names placed on the ballot at the November 1971 general election to be voted upon by the county at large. No black person ran as a candidate in the August primary or has qualified as an independent candidate in the forthcoming general election.

According to the 1970 official census, 42,111 persons reside in Leflore County. Of this number 24,373 are black, 17,550 are white and 188 are of other races. There is no data before the court showing by race the number of qualified electors in the county as a whole or in each of the supervisors' districts. There can be no doubt, however, that the county's population is seriously malapportioned among the five districts as follows:

                Beat No. 1               2,536
                         2               2,999
                         3              27,651
                         4               5,515
                         5               3,4103
                

The more populous Beat 3, which includes the City of Greenwood (22,400 according to 1970 census), has a population almost twice as great as the other four districts combined, thus diluting the voting strength of 65.6% of the county's population to not more than one-fifth representation on the board. A vote for supervisor in any of the other districts would have a value significantly greater than a vote in Beat 3. The votes in Beat 1 as presently constituted would have a value more than ten times greater than those in Beat 3; the votes in Beat 2 would have a value almost ten times greater; the votes in Beat 4 would have a value five times greater; and the votes in Beat 5 would have a value eight times greater.

We agree with plaintiffs' basic contention that the board's 1966 order providing for at-large elections amounts to a voting standard, practice, or procedure different from that in force on November 1, 1964, and hence ineffective and unenforceable until the requisite approval has been secured from either the Attorney General of the United States or the United States District Court for the District of Columbia as required by § 5 of the Voting Rights Act of 1965 as amended. This proposition was settled by the Supreme Court in Allen v. Board of Electors, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), which held that § 5 approval had to be secured before the 1966 amendment to Miss.Code § 2870 could be implemented. In a majority opinion authored by Chief Justice Warren, the Court stated:

No. 25⁴ involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 84 S.Ct. 1362, 12 L.Ed.2d 506 523 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting. . . . We are of the opinion that . . . the balance of legislative history . . . indicates that § 5 applies to these cases district to at-large voting. 393 U.S. 569-571, 89 S.Ct. 833.

Allen's teaching has been applied in this district, Dyer v. Love, 307 F.Supp. 974 (N.D.Miss.1969), to preclude at-large election of county supervisors, upon the board's failure to obtain requisite federal approval. Absent such approval, the Leflore County Board of Supervisors "is disabled by federal law from using the post-1964 statutory scheme of at-large elections," Sheffield v. Itawamba County Board of Supervisors, 439 F.2d 35 (5 Cir. 1971), and the operation of the underlying statute, § 2870 as amended, and the board's order thereon, while not void, are in a state of suspended animation.

Defendants argue that the failure of the Attorney General of the United States to object to the at-large elections in 1967, when his office sent federal observers into Leflore County to observe the elections firsthand and they did not object to changed procedure, constitutes acquiescence tantamount to an implied § 5 approval. We reject this argument as untenable for two reasons: first, the reach of § 5 to an at-large election of county supervisors in Mississippi under § 2870 as amended was not clearly established until the Allen decision, which was handed down on March 3, 1969; second, § 5 requires an affirmative determination by the Attorney General on whether a covered change submitted to his office has the purpose or effect of denying or abridging the right to vote on account of race, and his mere failure to object does not satisfy the requirement of the Voting Rights Act. Evers v. Board of Election Commissioners, 327 F.Supp. 640 (3-judge court, S.D.Miss.1971).

We thus hold that the board's order constitutes a change in the voting standard, practice or procedure for electing supervisors requiring § 5 approval and under the admitted facts the change has not been subjected to the required federal scrutiny and approval by either the United States Attorney General or the Washington, D. C. federal district court. By the authority of Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L. Ed.2d 476 (1971), the function of the three-judge court convened under 42 U. S.C. § 1973c is limited to the foregoing dual determination. Necessarily, we are required to declare that the board's order adopted in September 1966 providing for at-large election of supervisors is without effect and will remain suspended until §...