U.S. v. Euclid City School Bd., Case No. 08-CV-2832.

• Citation: 632 F.Supp.2d 740
• Decision Date: 13 July 2009
• Docket Number: Case No. 08-CV-2832.
• Parties: UNITED STATES of America, Plaintiff, v. EUCLID CITY SCHOOL BOARD, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

632 F.Supp.2d 740

UNITED STATES of America, Plaintiff, v. EUCLID CITY SCHOOL BOARD, et al., Defendants.

Case No. 08-CV-2832.

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

July 13, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sonya L. Sacks, Steven H. Wright, Jr., U.S. Department of Justice, Washington, DC, for Plaintiff.

David Kane Smith, Krista K. Keim, Lindsay F. Gingo, Britton, Smith, Peters & Kalail, Independence, OH, David G. Lambert, Frederick W. Whatley, Office of the Prosecuting Attorney, Cleveland, OH, Gregory B. Scott, Kathleen V. Davis, Scott, Scriven & Wahoff, Columbus, OH, for Defendants.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

I. INTRODUCTION

The Court today considers what appears to be a matter of first impression within this circuit. The parties before it have stipulated that Defendant Euclid City School Board (the "Board") has violated § 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 ("Section 2"). It is uncontroverted that minorities in Euclid have been systematically denied the opportunity to elect their preferred candidates to the Board. So, too, the parties agree that the Board must be given an opportunity to propose a legally acceptable remedy for this past discrimination before this Court may consider alternatives. There, however, agreement ends: the parties suggest sharply different approaches to evaluating whether a remedy is "legally acceptable" and propose starkly different changes to the Board's electoral mechanism for selecting its membership.

The United States argues that a remedy is not legally acceptable unless it is reasonably expected to result in the election of minority-preferred candidates based on past minority voting patterns. In particular, the United States argues that a legally acceptable remedy is one that will necessarily result in roughly proportional representation, even if minority turnout is substantially lower than non-minority turnout. Because the United States argues that the Board's proposed remedies (noted below) do not satisfy this standard, the United States argues that the Court should fashion an acceptable remedy of its own, which, it asserts, is one that would cease use of the Board's current at-large election system. In particular, the United States has proposed that the Board be divided into five single-member districts, with one of those single-member districts designed so as to contain a large enough African-American population to ensure the election of an African-American candidate.¹

The Board, for its part, counters that a legally acceptable remedy need only provide the opportunity for meaningful participation. The Board asserts that historical turnout patterns are of no moment, and argues that a remedy is legally acceptable even when it requires that minority turnout increase substantially from historical norms for minorities to achieve actual representation in the political process. They argue that a plan is legally acceptable so long as it would provide representation were minorities to vote at the same rate as non-minorities. To that end, the Board proposes two different possible systems: cumulative and limited voting. In both proposals, the Board seeks to maintain its current size, the current at-large voting structure, and the current system of using staggered terms (i.e., in alternating odd years, electing three members and then two members for four year staggered terms to the five seat Board).

After careful consideration, while, for reasons explained below, the Court ultimately rejects both parties' legal theories, it orders implementation of one of the Board's alternative remedies: limited voting. In sum, the Court finds the Board's suggestion that the Court ignore historical turnout rates in its evaluation of a proposed remedy under Section 2 unpersuasive. Minority voters in Euclid have historically turned out to vote at only a fraction of the rate of non-minorities, in part due to the longstanding absence of a meaningful opportunity to participate in the political process. A legally acceptable plan must accommodate this reality; a remedial plan cannot ignore historical reduced minority turnout resulting from the very discriminatory practices that violated the Voting Rights Act in the first instance. This Court also finds, however, that the United States is mistaken as well. The province of a court is to ensure genuine opportunity for all citizens, not to guarantee particular electoral results. Applying what it believes to be an appropriate and considered approach to the remedial analysis required in this context, the Court concludes that the Board's limited voting proposal is an acceptable and appropriate remedy for the Section 2 violation at issue here. Thus, the Court concludes that the DEFENDANT has proposed a legally acceptable remedy and ORDERS the Board and the Cuyahoga County Board of Elections to implement LIMITED VOTING for the Euclid City School Board elections, as described below.

II. BACKGROUND

The Board has conceded that its current method of elections denies minorities the opportunity to participate meaningfully in the political process, in violation of Section 2. (Stipulation of December 2, 2008 ("Stip.") (Doc. 2).) This stipulation is based in part on the conclusions reached by this Court during prior litigation (see id. at ¶ 12), which considered the very same electoral population before the Court today, see United States v. City of Euclid ("Euclid I"), 580 F.Supp.2d 584 (N.D.Ohio 2008); United States v. City of Euclid ("Euclid II"), 523 F.Supp.2d 641 (N.D.Ohio 2007).² Findings from that litigation are thus incorporated into this record.

A. Euclid's Demographics

The City of Euclid is experiencing rapid demographic changes. While African-Americans represented a mere one-half of one percent of Euclid's total population during the 1970's, this figure increased to 7.8% during the 1980s. Id. at 587. By the 1990 Census, 16.2% of Euclid's total population was African-American and, over the next ten years, the percentage of African-Americans nearly doubled again, to 30.5%. Id. The proportionate growth of African-Americans has continued to increase rapidly to this day, and African-Americans now compose 44.6% of the total population according to the American Community Survey ("ACS") for 2005-2007.³

Indeed, the population of Euclid is shifting so rapidly that this Court considers meaningfully different demographic data in this case than it did in Euclid I and Euclid II. Those cases relied upon the 2000 Census, the most reliable information available at the time of those decisions. See Euclid I, 580 F.Supp.2d at 594 ("The government's demographic information is derived from the 2000 Census. While the City has attacked the use of this data as outdated, despite an opportunity to do so, the City has never provided reliable updated data which would give the Court an alternative benchmark against which to measure the issues presented."). This case, conversely, relies upon the more current ACS data. Of particular relevance, African-Americans comprised only 27.8% of the Voting Age Population ("VAP") during the 2000 Census, id. at 612, but now compose 40.2% of the VAP. (Euclid Br. of March 2, 2009, Ex. 3 at 8 (Doc. 20-4).) A comparison of either total population or VAP reveals that African-Americans have increased as a percentage of the population by approximately 50% since the 2000 Census, a significant increase by any measure.

B. The Current Method of Electing Euclid's School Board

In Euclid, Board members are currently elected on an at-large basis. (Stip. ¶ 6.) The Board consists of five members, each of whom are each elected in odd-numbered years to four-year staggered terms. (Id.) Euclid voters, consequently, elect either two or three Board members every other year. (Id.) Three Board members will be elected in 2009, and two will be elected in 2011. (Id.)

This method of election is, to some extent, governed by state law. In particular, the State of Ohio mandates both staggered and four-year terms. See O.R.C. §§ 3313.08-3313.09. The Board does have some control over its size, which can range from between 2 and 7 members. See O.R.C. § 3313.02. Should the population of Euclid fall below 50,000 in the next decennial Census, however, State law would cap the Board at its current membership level. See id.

C. Summary of African-American Participation in Euclid Politics

Until last year, no African-American had ever been elected to serve as mayor, Council Member, or Board Member in the City of Euclid. Euclid I, 580 F.Supp.2d at 589. Indeed, the first African-American to win an election in the City of Euclid, Kandace Jones, was elected only after this Court ordered redistricting and a special election. Id. at 587. She is, however, the only African-American to be elected to any of the aforementioned positions, even though, for example, three African-Americans have run for school board since 1987 and ten have run for city council since 1981.⁴

Likely both a cause and effect of the above, historical African-American turnout in Euclid has been extraordinarily low. See Euclid I, 580 F.Supp.2d at 604 ("[L]ow voter turnout has often been considered the result of the minority's inability to effectively participate in the political process." (citation omitted)). The United States estimates, and the Board does not dispute, that only 7.4% of the African-American VAP participated in the 5 city-council elections between 1995 and 2003, compared to 32.0% of the non-minority VAP. (Plaintiff's Br. of April 17, 2009, Ex. A at 4.)⁵ Both parties, moreover, seem to accept that African-American participation in Board elections during that time period were likely very similar. It is noteworthy, however, that African-American turnout for the individual races including an African-American candidate was markedly higher, ranging from 7.9% in one 1995 contest to 17.0% in a 2001 race. (Id....