US v. MARENGO COUNTY COM'N, Civ. A. No. 78-474-H.

• Decision Date: 08 August 1986
• Docket Number: Civ. A. No. 78-474-H.
• Citation: 643 F. Supp. 232
• Parties: UNITED STATES of America; James Clark, Jr., et al., Plaintiffs, v. MARENGO COUNTY COMMISSION, Marengo County, Alabama; Glass, Aubrey L., President; Holt, D.W.; Etheridge, Grey; Brame, Jimmie and Stephens, Wiley G., Commissioners; Marengo County Board of Education, Marengo County, Alabama; Miller, Thomas N., President; Mason, Joe C.; Tucker, Robert; Flowers, Wallace and Lofton, Moses, Members; Daniels, Sammie, Probate Judge; Camp, J.C., Chairman, Marengo County Democratic Executive Committee; and Armstead, Starkey, Chairman, Marengo County Republican Executive Committee; Smith, W.H. "Billy", Sheriff; Sealey, Dwaine, Clerk of the Circuit Court for Marengo County, Defendants.
• Court: U.S. District Court — Southern District of Alabama

643 F. Supp. 232

UNITED STATES of America; James Clark, Jr., et al., Plaintiffs, v. MARENGO COUNTY COMMISSION, Marengo County, Alabama; Glass, Aubrey L., President; Holt, D.W.; Etheridge, Grey; Brame, Jimmie and Stephens, Wiley G., Commissioners; Marengo County Board of Education, Marengo County, Alabama; Miller, Thomas N., President; Mason, Joe C.; Tucker, Robert; Flowers, Wallace and Lofton, Moses, Members; Daniels, Sammie, Probate Judge; Camp, J.C., Chairman, Marengo County Democratic Executive Committee; and Armstead, Starkey, Chairman, Marengo County Republican Executive Committee; Smith, W.H. "Billy", Sheriff; Sealey, Dwaine, Clerk of the Circuit Court for Marengo County, Defendants.

Civ. A. No. 78-474-H.

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

August 8, 1986.

Jefferson B. Sessions, III, W.A. Kimbrough, Jr., U.S. Attys., Mobile, Ala., J. Gerald Hebert, Voting Section, Civil Rights Div., Dept. of Justice, Washington, D.C., for U.S.

J.U. Blacksher, Larry T. Menefee, Mobile, Ala., for plaintiffs James Clark, Jr., et al.

Cartledge W. Blackwell, Jr., Selma, Ala., for Marengo County Com'n.

Hugh A. Lloyd, Demopolis, Ala., for Marengo County Bd. of Educ.

Cartledge W. Blackwell, for remaining defendants.

W.W. Dinning, Demopolis, Ala., for Joseph C. Camp.

PRELUSION

HAND, Chief Judge.

The Order that follows is entered by this Court pursuant to the Mandate of the Court of Appeals directing this Court to district Marengo County for election purposes as to the County Commission and the School Board. In complying with this Mandate, the Court does so because it legally must under our system, and not because it believes it is constitutionally required. The appellate courts have apparently concluded that the Constitution has been amended in proper form to authorize the federal government's intervention in the state election process. So be it.

The resolution of the perceived problem requiring the federal courts to district for election purposes so as to give an indentifiable minority the right to elect is, in the opinion of this Court, ill conceived and short sighted. The Court might concede the argument that in the short term it may serve as a quick fix to the problem of past discrimination, but, quick fixes are not always lasting solutions, nor the best solutions. This quick fix fixes in concrete the segregation of the races in Marengo County in the name of the election process, and requires that the County be partited for the purpose of establishing majority districts of the minority race so that they can elect. In so doing, it necessarily follows that some members of either race are thereby fixed in a minority position in other districts. By the logic of the argument advanced, which says that to deprive the minority of the right to elect transgresses their constitutional right to elect, it thus creates a disenfranchisement of the minority that remains locked in that capacity in such district. Otherwise stated, if there is a constitutional right vested in the members of an identifiable minority to elect, then if you take that right away from any individual member of that minority, you have denied him his constitutional right. There is no provision in our Constitution for a group franchise, so when you partite for election purposes you necessarily fix some minority elements into districts where this logic espoused dictates that they are unable to elect. It must follow then, by such argument, their constitutional right of access to the ballot for the purposes of electing has been abridged.¹

Not only does this approach suffer as stated, but it also suffers another vice. It indelibly brands any such minority as an identifiable minority and impedes its assimilation into the fabric of American society, as others have done. In order to elect, these minorities will be required to remain in their "Soweto's", otherwise referred to as ghettoes. This is contrary to the American ethic which presumes and encourages all people to believe they are equal before the law. But more important, it denies the dream Martin Luther King expressed when he opined that he longed for the day that you can look at the nation and not see black or white.²

It yet suffers another vice, and that is if an identifiable minority in this instance can be found to have a constitutional right to elect, then every cognizable minority will be entitled to the same consideration. Our constitutional fabric will thus be ripped asunder and our Nation so compartmentalized that the genius of our system will be destroyed.

For these reasons I dissent, but do my duty.

ORDER

This cause came on for hearing before the Court on July 29, 1986 for the purpose of addressing the parties' objections to the Court's June 23, 1986 districting plan and determining whether said plan complies with Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973.

Plaintiffs interpose no objection to the Court's plan of five single-member districts and concur in this Court's finding that:

The Court's presently proposed plan, which has the smallest maximum population deviation of all the plans proposed to date (5.13%), produces: two districts with substantial black voter majorities of 72.5% and 69.1%; one district with a substantial white voter majority of 73.6%; one district with a slight white voter majority of 57.0%; and one district with a slight black voter majority of 56.5%. This plan eliminates the at-large seat incorporated in the Court's earlier proposed plan. In contrast to the Clark Plaintiffs' plan of February 25, 1986 which split two enumeration districts and their alternate plan of April 17, 1986 which eliminated these split enumeration districts, but results in an unacceptable maximum total population deviation of nearly 13%, the Court's plan splits only one enumeration district in a readily definable manner and reduces the population deviation to a maximum of 5.13%.

This Court's order of June 23, 1986 (footnote omitted).

The defendants, Marengo County Commission (Commission) and Marengo County Board of Education (School Board), object to the Court's proposed plan on the sole ground that the plan "makes no provisions of any nature for the Chairmanship of the Commission or School Board" and "if the Chairman or President is to be selected from one of the five single-member district posts, the said President would not be elected by the qualified electors of the entire county." (Defendant's Response to Court's June 23, 1986 Order at p. 2). The defendants strenuously assert the existence of:

A State Legislative policy respecting both defendant entities which has consistently called for the provision of a chairman of the Marengo County governing body and the Board of Education of Marengo County who is elected by the qualified electors of the entire County.

Id. at p. 4. Defendants further assert, as the rationale for such policy that:

The duties of the chairman, both in presiding over the Board and with regard to Administrative duties involves the government of the entire County, or governance of the County public education system and not just the affairs of the operation of said governing body or school system in any one portion of the County.

Id.

Upon careful consideration of the defendants' objection, arguments of counsel and the record in this action, the Court concludes that the Court's June 23, 1986 districting plan, as hereinafter amended to provide for the selection of a chairman by the elected members of the respective defendants' entities, is due to be adopted and implemented by this Court.

The Court agrees with the defendants that, while single-member districts have been held to be preferable to multi-member districts, the Court is not mandated to order single-member districts in all instances. Recently, the Eleventh Circuit Court of Appeals clearly rejected such a premise in Edge v. Sumter County School District, 775 F.2d 1509 (11th Cir.1985) stating:

In Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), the Supreme Court clearly stated that although Conner v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) suggested single-member districts are preferable to multi-member districts, at-large districts that do not offend either the Constitution or the Voting Rights Act should not be rejected in the court-ordered remedy.

775 F.2d at 1511-12. The Court further agrees that judicial precedent directs this Court to consider and, if appropriate, to defer to state legislative policies, such as those promulgating at-large election schemes, when fashioning an election plan. Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982); Edge v. Sumter County School District, supra; Cook v. Luckett, 735 F.2d 912 (5th Cir.1984). The Supreme Court has previously qualified this directive, however, stating:

Among other requirements a court drawn plan should prefer single-member districts over multi-member districts, absent persuasive justification to the contrary.

Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411, 417 (1978). (Emphasis added) (Citations omitted).

Plaintiffs counter defendants' attack on the Court's plan by contending first that the Findings of Fact and Conclusions of Law entered in this action by the Eleventh Circuit, United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.); cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984), and subsequently by this Court on September 5, 1985 pursuant to remand, 623 F.Supp. 33, establish that the at-large election scheme employed in Marengo County unlawfully dilutes the voting strength of black citizens in violation of Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973. Plaintiffs next content that this liability ruling formed the basis of the Attorney General's February 10, 1986 refusal to preclear the defendants' proposed election plan as evidenced by the following objection specifically set forth...