Paige v. Gray

• Decision Date: 24 August 1977
• Docket Number: Civ. A. No. 74-50-ALB.
• Citation: 437 F. Supp. 137
• Parties: Fanny PAIGE et al., Plaintiffs, v. James GRAY et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

437 F. Supp. 137

Fanny PAIGE et al., Plaintiffs, v. James GRAY et al., Defendants.

Civ. A. No. 74-50-ALB.

United States District Court, M. D. Georgia, Albany Division.

August 24, 1977.

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Mary M. Young, Albany, Ga., David F. Walbert, Atlanta, Ga., Alfred O. Bragg, III, Macon, Ga., for plaintiffs.

Frederick J. McGrath, Dept. of Justice, Washington, D. C., for United States. James V. Davis, Albany, Ga., for defendants.

OWENS, District Judge:

Article III of the Constitution of the United States vests the judicial power of the United States in the Supreme Court of the United States and "in such inferior Courts as the Congress may from time to time ordain and establish." Congress pursuant to that authority established our present lower federal court system —

(a) United States District Courts are trial courts in which all cases generally begin and are tried either before a jury or before just a judge. There are presently 94 such courts in our 50 states and various territories and possessions; this court is one of those 94.

(b) United States Courts of Appeals are appellate courts to which those who are dissatisfied with the judgment of a district court have the right to appeal. There are presently eleven such courts of appeal.

The judicial power of the United States according to Article III of the Constitution "shall extend to all Cases, in Law and Equity arising under this Constitution, the Laws of the United States . . .; — to Controversies to which the United States shall be a Party . . .." Congress has specified by laws to what extent and under what circumstances this judicial power is to be exercised by each of our federal courts. 28 U.S.C. § 1251, et seq.

Following the end of the Civil War between 1865 and 1870, the Constitution of the United States which was then 78 years old and had been amended on only three¹ occasions, was further amended to outlaw slavery — Amendment XIII; to make all persons citizens of these United States and command each State to afford citizens their constitutional rights including due process and equal protection of the law — Amendment XIV; and to prohibit denial or abridgement of the right to vote on account of race, color or previous condition of servitude — Amendment XV.

This public controversy concerns the manner in which two of these three amendments — XIV and XV — as they have been interpreted and applied by the Supreme Court and lower federal courts require the revision of Albany, Georgia's legislatively created at-large, multi-member system of electing its governing body of seven city commissioners under which (a) two of those commissioners run for the posts of mayor and mayor pro tem and are voted upon by all the voters and (b) five of those commissioners are respectively required to reside in one of five wards but are voted upon by all the voters of the city.

THE FOURTEENTH AMENDMENT

The Fourteenth Amendment as it is here applicable provides:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added).

The "primary concern of the framers of this amendment was the establishment of equality in the enjoyment of basic civic and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. As early as 1873 the Supreme Court announced that the provisions of the Amendment are to be construed with this in mind." Shelley v. Kraemer, 334 U.S. 1, 23, 68 S.Ct. 836, 847, 92 L.Ed. 1161 (1947).

Among the basic civic and political rights that have been found to be protected and preserved from discriminatory action on the part of states is the right of suffrage — the right or privilege of casting a vote at public elections. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

The election process equality established by this Amendment, includes not only the famous "one-person, one-vote" rule of Baker v. Carr, supra; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), but also includes as to state created multi-member election district schemes, the prohibition that such districts may not "operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971).

To sustain a challenge that multi-member election districts are unconstitutional because they operate to minimize or cancel out the voting strength of racial or political elements of the voting population, the challengers must carry the "burden of proving that multi-member districts operate to dilute or cancel the voting strength of racial or political elements." Such proof "focuses not on population-based apportionment "one-man, one-vote" rule but on the quality of representation afforded the challengers by the multi-member district arrangement as compared with single-member districts." Id. at 142, 91 S.Ct. at 1868.

When challengers factually prove that multi-member districts operate to dilute or cancel the voting strength of racial or political elements, they thereby establish that such a scheme denies them the inalienable right — derived from the Equal Protection Clause of the Fourteenth Amendment — that each and every citizen has full and effective participation in the political processes of his State's legislative bodies. Reynolds v. Sims, 377 U.S. at 565, 84 S.Ct. 1362.

Multi-member districts even though they have certain undesirable features,² are not per se³ illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). In the absence of factual proof of dilution or cancellation multi-member districts therefore do afford citizens the equal protection of the law that comes from the Fourteenth Amendment and are not unconstitutional under the Equal Protection Clause. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975). The Constitution simply does not demand "that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district." Whitcomb, supra, 403 U.S. at 156, 91 S.Ct. at 1875.

Factual proof of dilution or cancellation is derived from an examination of the manner in which the multi-member system has performed or actually worked in past years — "the real-life impact of multi-member districts on individual voting power . . .." Whitcomb, supra, at 146, 91 S.Ct. at 1870. It is not derived from a theoretical projection of the effect that a multi-member system will have in years to come. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).

The sufficiency of the required proof of dilution or cancellation of the voting strength of racial or political elements is demonstrated by White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the first decision of the Supreme Court of the United States finding that the facts proven before the district court did establish dilution or cancellation violative of the Equal Protection Clause and setting forth those facts as the Supreme Court perceived them to be.

IN WHITE v. REGESTER

The Court considered the constitutional validity of multi-member legislative election districts created by the State of Texas' reapportionment plan for Dallas and Bexar counties and found by the district court to be constitutionally invalid because of being invidiously⁴ discriminatory against Negroes in Dallas county and Mexican-Americans in Bexar county.

Note the language of the Supreme Court:

"We affirm the District Court's judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. (citations omitted). But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, 403 U.S. at 149-150, 91 S.Ct. at 1872, 29 L.Ed.2d 363.

"With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes.

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