U.S. v. City of Euclid, 1:06CV1652.

• Citation: 523 F.Supp.2d 641
• Decision Date: 29 October 2007
• Docket Number: No. 1:06CV1652.,1:06CV1652.
• Parties: UNITED STATES of America, Plaintiff(s), v. CITY OF EUCLID, et al., Defendant(s).
• Court: U.S. District Court — Northern District of Ohio

523 F.Supp.2d 641

UNITED STATES of America, Plaintiff(s), v. CITY OF EUCLID, et al., Defendant(s).

No. 1:06CV1652.

United States District Court, N.D. Ohio, Eastern Division.

October 29, 2007.

COPYRIGHT MATERIAL OMITTED

Abel Gomez, Sean W. O'Donnell, Sonya L. Sacks, Wan J. Kim, U.S. Department of Justice, Washington, DC, for Plaintiff.

Brian P. Riley, Hilary S. Taylor, John S. Kluznik, Sr., Warren M. Rosman, Weston Hurd, David G. Lambert, Frederick W. Whatley, Cleveland, OH, L. Christopher Frey, City of Euclid, Department of Law, Euclid, OH, Julius E. Trombetto, Mazanec, Raskin & Ryder, Solon, OH, for Defendants.

ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

I. BACKGROUND

On August 21, 2007, after a lengthy trial to the bench, the Court found that the City of Euclid's method of electing its city council violates Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1937, ("Section 2"). As part of its ruling, the Court stayed the City's upcoming councilmanic elections until March 4, 2008. The Court then ordered the City to produce a remedial plan by August 29, 2007, and the United States (the "government") to respond to the City's proposed remedial plan by September 4, 2007. Fortunately, rather than pursuing the more contentious approach, the City and the government were able to confer and to produce a mutually agreeable remedial plan. The parties jointly contend that, using 2000 Census data, they devised a remedial plan that complies with the requirements of the Voting Rights Act, the Constitution, and local districting principles.

On September 5, 2007, the parties submitted an initial joint position statement regarding their proposed remedial plan and the conduct of the upcoming councilmanic elections. The September 5, 2007 position statement included an eight-ward remedial plan which, according to the City and the government, cured the existing Voting Rights Act violation. (See Doc. 196, Exs. A-C, hereinafter "Plan 2a"). After hearing from the parties on September 5 and 6, 2007, however, it became clear to the Court that there remained the potential for additional refinements which would better serve community interests without interfering with the mandates of Section 2. Accordingly, the Court asked them to confer again and, utilizing the technology and resources available to the government, work to further refine the proposed remedial plan with a renewed focus on maintaining neighborhoods, local associations, and other community interests. In accordance with the Court's directives, the parties met, refined the remedial plan, and submitted it to the Court. (See Doc. 203, Exs. A-G, hereinafter "Plan 2b").

Plan 2b creates eight single-member districts within the City of Euclid while leaving intact the at-large office of council president. After agreeing upon a proposed remedial district plan, the City and the government then conferred with the Cuyahoga County Board of Elections ("BOE") to design a plan for conducting the next councilmanic elections in Euclid. The result aligns the City's next councilmanic elections with Ohio's 2008 presidential primary election. The details of the proposed plan for conducting Euclid's next councilmanic elections are set forth below.¹

II. REMEDIAL STANDARDS

If a district court finds a defendant's method of election violates Section 2, as the Court has here, then it is required to ensure that a legally-permissible remedy is devised. Bone Shirt v. Hazeltine, 461 F.3d 1011, 1022 (8th Cir.2006). Under such circumstances, the defendant is given the first opportunity to propose a remedial plan. See Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Cottier v. City of Martin, 445 F.3d 1113, 1123 (8th Cir.2006); McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4th Cir.1988). It is essential that the remedial plan correct the existing Section 2 violation and not create a new Section 2 violation. Bone Shirt, 461 F.3d at 1022-23 (holding that the foremost obligation of a remedial plan is to correct the Section 2 violation and that the remedial plan may not violate the Voting Rights Act anew) (citing Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1124 (5th Cir.1991)). A remedial plan, moreover, "should be narrowly tailored, and achieve population equality while avoiding, when possible, the use of multi-member districts." Bone Shirt, 461 F.3d at 1022-23. Finally, the remedial plan "should not `intrude on state policy any more than is necessary' to uphold the requirements of the Constitution." Id. at 1023 (quoting Upham v. Seamon, 456 U.S. 37, 41-42, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982) (per curiam)). "If the remedial plan meets those standards, a reviewing court must then accord great deference to legislative judgments about the exact nature and scope of the proposed remedy." McGhee, 860 F.2d at 115 (noting that legislative judgments reflect "a variety of political judgments about the dynamics of an overall electoral process that rightly pertain to the legislative prerogative of the state and its subdivisions.")

A. Section 2 of the Voting Rights Act

To rectify a violation of Section 2, a corrective minority-majority district within a remedial plan must generally contain more than, "a mere majority even of voting age population in order to have a reasonable opportunity to elect a representative of their choice." Ketchum v. Byrne, 740 F.2d 1398, 1413 (7th Cir.1984). To this end, a district gives minorities a reasonable opportunity to elect candidates of choice where it has a "sufficient cushion" of approximately 60% of the voting-age population. Cottier v. City of Martin, 475 F.Supp.2d 932, 938 (D.S.D.2007); see also id. at 1415; African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n. 4 (8th Cir.1995) (adding 5% for minorities' low voter-turnout and low voter-registration). Also, a remedial plan should provide opportunity districts in rough proportion to the minority's voting-age population. Wilson v. Jones, 130 F.Supp.2d 1315, 1324 (S.D.Ala.), aff'd 220 F.3d 1297 (11th Cir.2000) ("[A] prima facie remedy for dilution is provided when a districting plan includes minority controllable districts in numbers that roughly match the group's percentage of the electorate.").

Plan 2b creates opportunity districts in rough proportion to the percentage of African Americans of voting age in Euclid. By replacing the four "slotted at large" seats with four additional wards, Plan 2b allows two majority-minority districts with effective voting-age majorities of 60% or greater, while maintaining Euclid's previous nine-member council structure composed of eight council members and one council president. In District 1, African Americans represent 69.71% of the total population and 67.31% of the voting-age population. In District 3, African Americans represent 68.31% of the total population and 62.29% of the voting-age population. Importantly, the concentration of African Americans in these two opportunity districts is largely the result of the City's existing residential patterns rather than specific, purposeful plan-drawing. Second, the percentage of opportunity districts that Plan 2b creates on the nine-member council, (two of nine, or 22.22% of the seats), is roughly proportional to the overall percentage of Euclid's African-American voting-age population, 27.8%.

Maintaining the at large election of the City's council president does not perpetuate the City's Section 2 violation nor does it give rise to a new Voting Rights Act violation. As discussed above, the number of opportunity districts in the proposed remedial plan is roughly proportional to the percentage of Euclid's African-American voting-age population. See Hines v. Mayor & Town Council of Ahoskie, 998 F.2d 1266, 1272 (4th Cir.1993) ("Th[e] measure of vote dilution ... creates what amounts to a right to usual roughly proportional representation on the part of sizeable, compact, cohesive, minority groups.") (quoting Thornburg v. Gingles, 478 U.S. 30, 91, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (O'Connor, J., concurring)). The existence of an at large seat for council president already has been contemplated in this proportion.

Second, maintaining a council president elected from the City at large is not designed to dilute African-American voting strength but, rather, is consistent with the Euclid City Charter. See Euclid City Charter Art. II. Furthermore, maintaining a single at-large position intact in a system that includes two opportunity districts among eight single-member districts will not automatically give rise to a new Voting Rights Act claim. Because the proposed remedial plan remedies the existing. Section 2 violation and does not give rise to a new claim, the Court defers to the judgment of the Euclid City Council. Hines, 998 F.2d at 1273 (deferring to the defendant-municipality's judgment regarding a plan that creates two majority-minority districts from a proposed remedial plan of four single-member districts and one at-large position). The proposed remedial plan before the Court here is akin to the plan approved by the district court N.A.A.C.P. v. Kershaw County, 838 F.Supp. 237 (D.S.C.1993). In N.A.A.C.P., the court adopted a proposed remedial plan whereby six members would be elected from six single-member districts (two of which contained African American majorities) and the council chair would be elected at large. Id. at 239. In adopting the defendant's proposed remedial plan, the district court focused on whether the number of opportunity districts was roughly in proportion to the county's percentage of African-Americans, and whether the Voting Right's Act prohibited mixed plans. Id. at 241-42. The district court concluded that when, "the legislative body has offered a remedy by which the protected voting group has a voting opportunity that relates favorably to the group's population ... the Court must not only respect, but...