U.S. v. Brown, Civil Action No. 4:05CV33TSL-LRA.

• Decision Date: 29 June 2007
• Docket Number: Civil Action No. 4:05CV33TSL-LRA.
• Citation: 494 F.Supp.2d 440
• Parties: UNITED STATES of America, Plaintiff v. Ike BROWN, Noxubee County Democratic Executive Committee; Noxubee County Election Commission, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

494 F.Supp.2d 440

UNITED STATES of America, Plaintiff v. Ike BROWN, Noxubee County Democratic Executive Committee; Noxubee County Election Commission, Defendants.

Civil Action No. 4:05CV33TSL-LRA.

United States District Court, S.D. Mississippi, Eastern Division.

June 29, 2007.

COPYRIGHT MATERIAL OMITTED

Christopher Coates, J. Christian Adams, Joshua L. Rogers, U.S. Department of Justice, Washington, DC, Dunn Lampton, U.S. Attorney's Office, Jackson, MS, for Plaintiff.

Edward L. Pleasants, III, Wilbur O. Colom, The Colom Law Firm, Christopher D. Hemphill, Dunn, Webb & Hemphill, PA, Columbus, MS, Ellis Turnage, Cleveland, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

The United States of America brought this action against the Noxubee County Democratic Executive Committee and its chairman, Ike Brown, and the Noxubee County Election Commission¹ alleging claims under Section 2 of the Voting Rights Act, and also asserting claims against Brown and the Noxubee Democratic Executive Committee under Section 11 of the Voting Rights Act. The case was tried to the court from January 16 to January 31, 2007, following which the parties submitted post-trial briefs presenting what they contend are the factual and legal issues pertinent to the court's decision. Having considered the evidence presented and the parties' memoranda, the court makes the following findings and conclusions.

The Parties:

The plaintiff is the United States Department of Justice (the Government) which brought this action pursuant to the authority granted by 42 U.S.C. § 1973j(d), which states,

Whenever any person has engaged ... in any act or practice prohibited by Section [2 or 11] ..., the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief, including an application for a temporary or permanent injunction ... or other order.

The defendants are the Noxubee County Democratic Executive Committee, its chairman Ike Brown, and the Noxubee County Election Commission. Under state law, the Noxubee County Democratic Executive Committee (NDEC) is responsible for "performing all duties that relate to qualifications of candidates for (Democratic) primary elections" and for conducting Democratic primary elections in Noxubee County. See Miss.Code Ann. § 23-15-263. Ike Brown has been chairman of the NDEC since 2000, having been elected to the position at the county convention in 1999. The Noxubee County Election Commission is responsible for conducting general elections, as well as for maintaining the county's voter registration rolls. See Miss.Code Ann. § 23-15-213. The defendants, together with the registrar, who in Noxubee County is the circuit clerk, have control over every electoral activity "from voter registration, to voter roll maintenance, to voting itself, and to canvassing returns and certifying election results." Jeffrey Jackson and Mary Miller, Mississippi Practice Series: Encyclopedia of Mississippi Law § 6 (2003). Their authority is thus said to be "superior to that of any other players in the process." Id. ("the local parties' role in the conduct of the primaries is all encompassing").

The Government's Claims:

When the Voting Rights Act was passed in 1965, the population of Noxubee County was approximately 70% black and 30% white, but 100% of the elected officials in the county were white. Now, forty years later, the population of Noxubee County is still about 70% black and 30% white, but 93% of elected officials are black.² Four of five members of the Board of Supervisors are black; five of five members of the Election Commission are black; five of five members of the Board of Education are black; and with the exception of the county prosecuting attorney, all countywide elected officials are black, including the circuit clerk, chancery clerk, sheriff, tax assessor, superintendent of education, coroner, two justice court judges and two constables. Moreover, the Democratic party in Noxubee County, once dominated by whites, is now majority black; and Democratic party officials in Noxubee County, including NDEC Chairman Ike Brown and all but one of the 30 current members of the NDEC, are black. Thus, whereas whites were historically in power in this majority black county, the tables have turned, and, as the Government's expert Dr. Theodore Arrington has put it, "You now have a situation in which whites are the minority and blacks are in a position to discriminate against them very much in the same way as whites discriminated against blacks in the history further back." As the Government sees it, that is precisely what has occurred and is occurring in Noxubee County. Accordingly, in what is an unconventional, if not unprecedented use of the Voting Rights Act, the Government filed this suit claiming that Noxubee County Democratic party officials have engaged in conduct that has infringed the voting rights of white voters, the minority group, and has denied white voters equal access to the electoral process.

In broad terms, the Government charges that defendants have administered the Democratic primary in Noxubee County in such a way as to discriminate against white voters and white-preferred candidates; that the racially discriminatory way the elections are conducted is with the purpose of diluting the voting strength of white voters and reducing the opportunities for white voter-preferred candidates to be elected to local office; and that the result of this discriminatory administration of the Democratic primary is the dilution of white voting strength, thereby denying white voters the opportunity to elect candidates of their choice and ensuring that the black candidates preferred by defendants will be elected. In short, the Government claims that defendants have intentionally practiced racial discrimination and that their actions have had the racially discriminatory result of reducing the electoral opportunities of white voters and white voter-preferred candidates.

Section 2:

Section 2 of the Voting Rights Act protects against discrimination in voting on account of race, and is the "major statutory prohibition of all voting rights discrimination." S.Rep. No. 97-417, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207. Section 2 prohibits states from applying any "voting qualification or prerequisite to voting or standard, practice or procedures ... which results in a denial or abridgment of the right of any citizens of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). A violation of Section 2 is established where, "based on the totality of the circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of [a] class of citizens ... 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." 42 U.S.C. § 1973(b).

This is an atypical Section 2 case in a number of ways, principal among which is the fact that the case involves alleged discrimination against white voters. Yet Section 2 provides no less protection to white voters than any other class of voters.³ Any doubt as to this conclusion is allayed by a review of the history of Section 2.

As originally enacted, Section 2 was not considered controversial because it was viewed essentially as a restatement of the Fifteenth Amendment, which provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race," U.S. Const. amend. XV, § 1.⁴ See Mobile v. Bolden, 446 U.S. 55, 61, 100 S.Ct. 1490, 1496-97, 64 L.Ed.2d 47 (1980) (plurality opinion). The Fifteenth Amendment had been enacted in the wake of the Civil War "to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom." Rice v. Cayetano, 528 U.S. 495, 512, 120 S.Ct. 1044, 1054, 145 L.Ed.2d 1007 (2000). Yet as the Supreme Court acknowledged in Rice, the amendment goes beyond this vital objective:

Consistent with the design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment. The Amendment grants protection to all persons, not just members of a particular race.

The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command as it was comprehensive in reach. Fundamental in purpose and effect and self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race ... The Court has acknowledged the Amendment's mandate of neutrality in straightforward terms: "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is." United States v. Reese, 92 U.S. 214, 218, 23 L.Ed. 563 (1875).

Rice, 528 U.S. at 512, 120 S.Ct. at 1054 (emphasis added). Consistent with Rice, the court in United Jewish Organizations of Williamsburgh, Inc. v. Wilson concluded that white voters had standing to bring a vote dilution claim under the fifteenth amendment, reasoning,

[T]here is no reason ... that a white voter may not have standing, just as a nonwhite voter, to allege a denial of equal protection as well as an abridgement of his right to vote on account of race or color, regardless of the fact that the fourteenth and fifteenth amendments were adopted for the purpose of ensuring equal protection to the black person. While we generally tend to think of...