United States v. Dallas County Com'n, Civ. A. No. 78-0578-H.

• Decision Date: 16 June 1986
• Docket Number: Civ. A. No. 78-0578-H.
• Parties: UNITED STATES of America, Plaintiff, v. DALLAS COUNTY COMMISSION, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

636 F. Supp. 704

UNITED STATES of America, Plaintiff, v. DALLAS COUNTY COMMISSION, et al., Defendants.

Civ. A. No. 78-0578-H.

United States District Court, S.D. Alabama, S.D.

June 16, 1986.

Jefferson B. Sessions, III, U.S. Atty., Mobile, Ala., J. Gerald Hebert, Ellen M. Weber, Paul Hancock, Policarpio A. Marmolejos, Voting Section, Civil Rights Div., Dept. of Justice, Washington, D.C., for plaintiff.

John E. Pilcher, Cartledge W. Blackwell, Jr., Philip Henry Pitts, William T. Faile, Selma, Ala., Edward S. Allen, Birmingham, Ala., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAND, Chief Judge.

This cause was originally filed by the United States on October 19, 1978. In this litigation, the United States has challenged the at-large method of electing the Dallas County Commission and the Dallas County Board of Education as violative of § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1971 and 1973, and the Fourteenth and Fifteenth Amendments. The Government alleges essentially that the at-large electoral system unconstitutionally dilutes or cancels the voting strength of the black population of Dallas County. The plaintiff and the defendants entered into a joint Pretrial Order which was approved by the Court and which constituted a final statement of the issues involved, governed the conduct of the trial and constituted the basis for any relief afforded by the Court. 548 F.Supp. at 796-98 and 878-80. On November 26, 1979, this action came on for trial before the Court, without a jury. Trial proceedings were held on November 26-30, 1979 as well as March 10-19, 1980. By order of this Court entered on September 3, 1982, the Court granted the Dallas County Board of Education's Rule 41 motion and determined that final judgment on the merits should be rendered in favor of the School Board defendants and against the plaintiff. United States v. Dallas County Commission, 548 F.Supp. 794 (S.D.Ala.1982). On September 10, 1982, this Court issued an opinion and entered judgment for the Dallas County Commission defendants. United States v. Dallas County Commission, 548 F.Supp. 875 (S.D.Ala.1982).

Pursuant to the Government's appeal in this action, the United States Court of Appeals for the Eleventh Circuit affirmed in part, reversed in part and remanded the case directing this Court to reconsider certain of its Findings of Fact. United States v. Dallas County Commission, 739 F.2d 1529 (11th Cir.1984). The Court of Appeals concluded that this Court had wrongly decided two of eight principle factors necessary to the analysis of the Governments' claim under amended § 2 of the Voting Rights Act — racial polarization in voting and the structure of the election system. The Court of Appeals also concluded that with respect to a third factor — the existence of past discrimination and its limiting effects — some of this Court's subsidiary factors were correct while others were erroneous. 739 F.2d at 1535.

The Court of Appeals issued no directive requiring this Court to hold post-remand evidentiary hearings to supplement the record or requiring this Court to review other than the existing record at the time of remand. The United States and the Dallas County Commission,¹ however, desired to offer additional evidence. The Government specifically sought an evidentiary hearing "limited to post-1980 events that might tend to affect the findings of racially discriminatory results by the court of appeals." (Government's Brief in Support of Motion for Hearing at 10). The Court, based on its prior experience in United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.1984), agreed to accommodate these parties and testimony was taken for the better part of a week, from February 24-28, 1986.

It was evident at the hearing that Government's counsel orchestrated its presentation of additional testimony so as to specifically address and support the Eleventh Circuit's findings and did so principally through the offices of the expert Dr. Lichtman. Accordingly, the Court now enters the following Findings of Fact and Conclusions of Law based upon the evidence produced at the hearing, the briefs and arguments of counsel and the record as a whole.

FINDINGS OF FACT

1. Racial Polarization

In relation to the factor identified as "racially polarized voting", this Court had originally found evidence of polarization in the voting of both white and black voters in Dallas County, but had concluded that such polarization "did not constitute the only reason for the failure of blacks to win elections." 548 F.Supp. at 905. The Court of Appeals took issue with this conclusion, specifically finding that:

1. The record does not contain evidence supporting the district court's finding that apathy was a prime cause of black defeat ...

2. The record also does not support the district court's conclusion that campaigns of blacks as candidates of fringe parties and against incumbents helped to explain the polarized voting occurring in Dallas County ...

3. The failure of blacks to solicit white votes may be caused by the effects of past discrimination, an issue that we direct be reconsidered on remand ...

739 F.2d at 1536. In support of the Eleventh Circuit's position, the Government relied principally upon the highly theoretical analysis of Dr. Allan J. Lichtman, identified by the witness as "ecological regression, the standard method for inferring the behavior of population groups from data collected for political units." (Government's Exhibit B-3 at p. 4).² Dr. Lichtman emphatically concludes that, based on his analysis of several black-white election contests subsequent to 1978, there existed "extreme racial bloc voting in Dallas County elections since 1978." (Government's Exhibit B-3 at p. 13).³ Dr. Lichtman also concluded that in the face of what he found to be extreme polarization, other factors such as the tendency to vote for candidates perceived to be the "better qualified" or to vote for incumbent candidates, are irrelevant.⁴ In addition, Dr. Lichtman examined the influence of "housing values" and also concluded that "race far overshadows socio-economic standing as an influence on voter choice in white vs. black contests." (Government's Exhibit B-8).

In contrast, the defendant's expert, Dr. James Voyles, testified that he addressed the issue of racial polarization primarily in light of the definition of "racially polarized voting" propounded by Dr. Timothy G. O'Rourke and adopted by the Eastern District Court of Virginia in Collins v. City of Norfolk, Virginia 605 F. Supp. 377 (E.D. Va. 1984) which involved the examination of three factors delineated as follows:

First, the presence or absence of "white backlash", that is, whether white voters turn out in greater numbers than usual in response to the potential election of black candidates. Second, the voting patterns of black and white voters over a period of years. Finally, whether whites attempt to limit the field of candidates.

605 F.Supp. at 386. Dr. Voyles' testimony indicated that, in relation to the first factor, he would restrict the analysis of white backlash to the appearance of a surge of white voters to defeat a black candidate in a runoff election.⁵ Dr. Voyles concluded that no white backlash was evident in the 1982 primary runoff election for Associate Justice, Alabama Supreme Court or in the 1984 runoff and general election for Dallas County Tax Collector, both including black candidates, inasmuch as black voters turned out in greater numbers than white voters.

In relation to the second factor, voting patterns of black and white voters, Dr. Voyles utilized a technique identified as "correlation analysis" or "Pierson product", a method which examines the relationship between two variables: 1) the percentage of black registered voters per precinct; and 2) the percentage of votes received by the winning candidate per precinct. The statistical result of this analysis is reflected in a "squared correlation coefficient" figure identified as "R2". Dr. Voyles testified that to be significant, that is, to indicate a positive correlation between race and voting pattern, the R2 figure must reach a level of .7.⁶ According to the summary of Dr. Voyles' findings, submitted as Defendant's Exhibit 2, a positive correlation was reached in the following election contests: 1982 primary elections for County Commission, West District and City District and Board of Education, Place 5; 1982 run-off election for County Commission, City District; and 1984 primary, run-off and general election for Tax Collector.

In relation to the third factor, slating or whites attempting to limit the field of candidates, Dr. Voyles testified that inasmuch as an abundance of white candidates ran in each election, no evidence existed to indicate that a white political structure in Dallas County limited the field to a single white candidate to prevent white dilution. Dr. Voyles further opined that no evidence exists to indicate that blacks were prohibited from running for any office.

Based on his analysis of the aforementioned factors, Dr. Voyles concluded that no patterns of racial bloc voting existed with respect to the Associate Justice, Alabama Supreme Court race or with respect to those county elections without black candidates. Dr. Voyles further concluded that, with respect to those county elections with black candidates, some patterns of racial bloc voting appeared to be present but that little significance ought to be attributed to such a finding in light of the possible effect of "cross pressure" on black voter turnout, which, according to the witness, can only be measured by personal interviews with registered voters to determine why they chose not to vote.⁷ Dr. Voyles defined "cross-pressure" as a case in which the voter finds himself pressured on two fronts and, therefore, opts not to vote. Dr. Voyles also concluded that racial polarization was evident in the 1984 Tax...