Quilter v. Voinovich

• Decision Date: 31 January 1992
• Docket Number: No. 5:91 CV 2219.,5:91 CV 2219.
• Parties: Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

794 F. Supp. 695

Barney QUILTER, et al., Plaintiffs, v. George V. VOINOVICH, et al., Defendants.

No. 5:91 CV 2219.

United States District Court, N.D. Ohio, E.D.

January 31, 1992.

Timothy F. Scanlon, Scanlon & Gearinger, Akron, Ohio, Armistead W. Gilliam, Jr., Ann Wightman, Faruki, Gilliam & Ireland, Dayton, Ohio, for plaintiffs.

Timothy F. Scanlon, Scanlon & Gearinger, Akron, Ohio, Thomas I. Atkins, Sr., Brooklyn, N.Y., Armistead W. Gilliam, Jr., Ann Wightman, Laura A. Sanom, Faruki, Gilliam & Ireland, Dayton, Ohio, for plaintiff William L. Mallory.

Orla Ellis Collier, III, Norton Victor Goodman, James F. DeLeone, Mark D. Tucker, Benesch, Friedlander, Coplan & Aronoff, Columbus, Ohio, Charles M. Rosenberg, Maynard A. Buck, III, Jeremy Gilman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for defendants.

Before JONES, Circuit Judge, PECK, Senior Circuit Judge, and DOWD, District Judge.

OPINION AND ORDER

JOHN W. PECK, Senior Circuit Judge.

This three-judge district court was convened to hear Plaintiffs' constitutional and statutory challenges to the 1991 Apportionment Plan for the Ohio General Assembly (the Plan). Plaintiff Barney Quilter, a state representative and designee of the Speaker of the Ohio House of Representatives, and Plaintiff Thomas Ferguson, Ohio's Auditor, were the Democratic members of the 1991 Apportionment Board (the Board). The remaining Plaintiffs are Democratic electors and state legislators, some of whom are members of a protected class under the Voting Rights Act. Plaintiffs allege that the Plan impermissibly uses race to draw districts and dilutes minority voting strength in violation of § 2 of the Voting Rights Act, 42 U.S.C. § 1973, and the fourteenth and fifteenth amendments to the United States Constitution. Additionally, Plaintiffs assert a pendant state claim that the Plan violates Article XI the Ohio Constitution which provides specific apportionment guidelines.

Defendants George Voinovich, Governor of the State of Ohio, Robert Taft, II, Ohio's Secretary of State, and Stanley Aronoff, President of the Ohio Senate, were the Republican members of the 1991 Apportionment Board. Defendant James Tilling drafted the Plan. Defendants contend that the Voting Rights Act, as amended in 1982, and federal case law required that, wherever possible, they create majority-minority districts, i.e., legislative districts in which members of a minority group comprise the majority.

For reasons which more fully appear hereinafter, we conclude that the Voting Rights Act and federal precedent do not dictate such a per se requirement. While creation of such districts may be an appropriate remedy under certain circumstances, Defendants here failed to make the requisite findings which demonstrate a violation of the Voting Rights Act, thereby permitting such a remedy.

APPLICABLE LAW

In order to understand the rationale by which the Plan was developed, it is necessary to review § 2 of the Voting Rights Act, as amended, and Armour v. Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991). In 1982, the Voting Rights Act was amended. The legislative history of the amendment stated that its purpose was "to prohibit any voting practice or procedure that results in discrimination" and "to make clear that proof of discriminatory intent is not required to establish a violation of Section 2." S.Rep. No. 417, 97th Cong., 2d Sess. 2 (1982) U.S.Code Cong. & Admin.News 1982, pp. 177, 179.

Section 2 of the Voting Rights Act, as amended, provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2) 42 U.S.C. § 1973b(f)(2), as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of the 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) 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.

Thus, the statute does not focus on the purpose or motivation behind the challenged practice or procedure, but the results of such practice or procedure. A violation is to be determined by a review of the totality of the circumstances.

The following is a nonexhaustive list of factors relevant to a totality of the circumstances assessment that may be used to establish an unequal opportunity to participate in the political process and elect a candidate of choice:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process (footnote omitted);

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the jurisdiction (footnote omitted).

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982) U.S.Code Cong. & Admin.News. 1982, pp. 177, 205-207. Additional factors that could have probative value in establishing a violation are:

whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group (footnote omitted).

whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous (footnote omitted).

Id. at 29.

The Senate Committee noted that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. Whether a § 2 violation has occurred is "based on the totality of the circumstances and guided by those relevant factors in the particular case...." Id. at 29 n. 118 U.S.Code Cong. & Admin.News pp. 177, 207. The ultimate "question whether the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality.'" Id. at 30.

One month before the Board published the Plan challenged here, the Armour court filed its decision. In Armour, the plaintiffs alleged that a voting district boundary in Mahoning County drawn under the 1981 apportionment plan which split a large, cohesive Black population between two districts deliberately and effectively diluted the minority vote in violation of § 2 of the Voting Rights Act and the fifteenth amendment. The Armour court conducted a "searching practical investigation of the past and present reality" in Mahoning County by applying the totality of the circumstances factors and concluded that the boundary was indeed violative of § 2 of the Voting Rights Act and the fifteenth amendment. Significantly, the Black population divided by the illegal boundary was not large enough to form the majority of a single-member district. Thus, the court in Armour recognized that a cohesive group of minority voters could influence an election even though they did not comprise a majority in the district. Armour, 775 F.Supp. at 1052, 1059-60.

FACTUAL BACKGROUND

Under the Ohio Constitution, beginning in 1971 and every tenth year thereafter, a five-member apportionment board is to assemble and publish an apportionment plan for the General Assembly. Ohio Const. art. XI, § 1. In accordance with this provision, an apportionment plan was published and became effective in 1981, prior to the 1982 amendment of the Voting Rights Act. Tilling, as author of the 1991 Plan, testified that he tried "to make the necessary changes to bring this current apportionment plan into conformity with the 1982 amendments." (Tilling Dep., Vol. I, at 168). During the end of August 1991 and the beginning of September 1991, Tilling conducted fourteen public meetings throughout Ohio for the purpose of obtaining public comment and minority input on the 1991 Plan.

In his comments at these public hearings, Tilling repeatedly stated that his interpretation of the Voting Rights Act and related federal case law required the creation of a majority-minority district wherever possible. Joint Trial Exhibits, passim. For example, at the public hearing in Columbus, Ohio, on August 27, 1991, Tilling stated that to comply with United States Supreme Court guidelines, the Apportionment Board was "under a mandate that wherever a majority-minority district can be created, that must be done." Joint Trial Exhibits, Tab 2, at 12. Tilling also stated that the Board needed...