Wesch v. Hunt

• Decision Date: 18 May 1992
• Docket Number: Civ. A. No. 91-0787.
• Citation: 785 F. Supp. 1491
• Parties: Paul Charles WESCH, Plaintiff, Michael Figures, et al., Intervenors-Plaintiffs, v. Guy HUNT, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

785 F. Supp. 1491

Paul Charles WESCH, Plaintiff, Michael Figures, et al., Intervenors-Plaintiffs, v. Guy HUNT, et al., Defendants.

Civ. A. No. 91-0787.

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

March 9, 1992.

Judgment Affirmed May 18, 1992.

David A. Boyett, III and Ferrell S. Anders, Mobile, Ala., for plaintiff.

Ronnie L. Williams, Mobile, Ala. and John H. England, Jr., Tuscaloosa, Ala., for intervenors-plaintiffs.

Algert S. Agricola, Jr., Mark Montiel, Montgomery, Ala., Michael A. Carvin, Washington, D.C., Ronald C. Forehand, Asst. Atty. Gen., Robert M. Givhan, Walter S. Turner, Office of Atty. Gen., Montgomery, Ala., James C. Wood, Mobile, Ala., Taylor D. Wilkins, Jr., Bay Minette, Ala., Jack Booker Weaver, Windell C. Owens, Monroeville, Ala., George W. Fendley, III, Camden, Ala., Bruce N. Wilson, Grove Hill, Ala. and Michael Onderdonk, Chatom, Ala., for defendants.

Devon Wiggins, pro se.

Gregory B. Stein, Henry Brewster, Mobile, Ala.

Jack Drake, Tuscaloosa, Ala.

Before COX, Circuit Judge, HAND, Senior District Judge, and ALBRITTON, District Judge.

Judgment Affirmed May 18, 1992. See 112 S.Ct. 1926.

MEMORANDUM OPINION

BY THE COURT.

INTRODUCTION

On September 23, 1991, Plaintiff Paul Charles Wesch brought this action seeking declaratory and injunctive relief against the Governor of Alabama, as well as other state officials, contending, inter alia, that the present State law defining congressional districts in the State of Alabama violates Art. I, § 2 of the Constitution. Based on 1990 census data, Wesch specifically alleges that if the 1992 congressional elections were to be held under the present districting plan, it would violate his right to the constitutionally mandated "one-person, one-vote" scheme of representation.

Pursuant to 28 U.S.C. § 2284(a), this three-judge court was convened. On December 9, 1991, Michael Figures and others, who assert a claim under the Voting Rights Act, 42 U.S.C. § 1973 et seq., were granted leave to intervene. A two day trial was held.

Having considered the evidence and the post-trial submissions of the parties, the court enters the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Plaintiff Paul Charles Wesch is a citizen of the United States and is a resident and registered voter in the First Congressional District of Alabama as presently configured.

2. The Intervenor-Plaintiffs, Michael Figures and others, are African-American citizens of the United States and the State of Alabama. They have been allowed to intervene in this litigation both on their own behalf and on behalf of all African-American citizens of the State of Alabama.

3. It was agreed by all parties, including the Plaintiff-Intervenors, that the complaint of intervention would proceed on an allegation that § 2 of the Voting Rights Act has been violated, insofar as the class represented by the intervenors had been denied meaningful access to the voting process that would allow them to elect candidates of their choice.

4. The court notes that the original complaint was filed in September, a fact known to the Plaintiff-Intervenors who chose not to intervene until December 4, 1991. Therefore, the Plaintiff-Intervenors were permitted to intervene only after they agreed to comply with all procedures and deadlines in place.

5. The Defendant Guy Hunt is the Governor of Alabama. The Defendant Billy Joe Camp is the Secretary of State of Alabama. The Defendants Lionel W. Noonan, Harry D'Olive, Devon Wiggins, Otha Lee Biggs, Jerry Bogan, Clarence Watters, and Tom W. Turner are the Probate Judges of the seven counties which presently comprise the First Congressional District of Alabama. All Defendants are sued both in their individual and official capacities. All Defendants have significant duties in the administration of congressional elections in Alabama.

6. This court advised the parties of its intent to employ Professor Harold W. Stanley as the court's expert to assist in considering any and all plans for redistricting that might be submitted, and to advise the court on the statistical issues in regard to any possible redistricting. The court extended to the parties the opportunity to state if there were any objections to the court's selection of this expert. No objections were filed. After the trial, the parties were also given the opportunity to object to the statistical information relied on by Professor Stanley, the same information underlying this order. No objections were filed.

7. In 1981, the Alabama Legislature enacted the current version of Ala.Code § 17-20-1 (1987), which divided the state into seven congressional districts. During 1990, the Bureau of the Census of the United States Department of Commerce conducted a census of the United States, including the State of Alabama, pursuant to constitutional authority. On January 16, 1991, the Clerk of the United States House of Representatives notified Governor Hunt that Alabama would retain seven seats in the House of Representatives following the 1990 census. (Statement of Agreed Facts and Exhibit A thereto.)

8. According to the 1990 census, Alabama's total population is 4,040,587 persons. In order to achieve exact population equality among each of Alabama's seven congressional districts, the ideal population of each district would be 577,227 persons. (Statement of Agreed Facts and Exhibit B thereto.)

9. Alabama's most populous congressional district is District 5, which has 603,726 persons. Accordingly, District 5 varies from the "ideal" population by 26,499 persons, or 4.59%. Alabama's least populous congressional district is District 6, which has 532,748 persons. Accordingly, District 6 varies from the "ideal" population by 44,479 persons, or 7.71%. The difference between the populations of the most populous and least populous districts is 70,978 persons, which constitutes a relative overall variance from the ideal population of 12.3%. (Statement of Agreed Facts, Exhibit B.)

10. African-Americans do not constitute a majority in any of Alabama's existing congressional districts. (Statement of Agreed Facts, Exhibit C.) However, according to the 1990 census data, the African-American population in Alabama is sufficiently compact and contiguous to permit the creation of a congressional district in which 65% or more of the residents are African-Americans. The parties agree that such a district should be created. (Supplemental Stipulation filed January 3, 1992.)

11. On February 8, 1991, the Alabama Legislature received the 1990 census data on magnetic tape from the Bureau of Census, and this information was loaded, as received, into the computer system maintained by the Alabama Legislature's Permanent Joint Legislative Committee on Reapportionment ("Reapportionment Committee"). The population data in the Reapportionment Committee's computer data base is the official 1990 census data compiled and released by the Bureau of the Census and is accurate and reliable information for redistricting purposes. (Statement of Agreed Facts.) On July 15, 1991, the Secretary of Commerce advised that there would be no adjustment to the 1990 census figures as originally transmitted to the Alabama Legislature.

12. The total population of each existing congressional district is reflected in Appendix A to this opinion. The total population of each existing congressional district by race is reflected in Appendix B; the total population by race of each of Alabama's 67 counties is reflected in Appendix C; and the voting age population by race of each of the 67 counties is reflected in Appendix D. The names, dates when first elected, and home addresses of Alabama's incumbent congressmen are reflected in Appendix E.

13. On April 2, 1991, the Reapportionment Committee adopted a set of guidelines for redistricting. (Plaintiff's Exhibit 1; deposition of Marilyn Terry, pp. 24-25.) The Guidelines set forth a fair set of criteria for congressional redistricting. In addition to mandating compliance with population equality or the "one-person, one-vote" rule and the requirements of the Voting Rights Act, these guidelines included the following criteria:

3. All legislative and congressional districts will be composed of contiguous and reasonably compact geography.

4. Where possible, legislative and congressional districts should attempt to preserve communities of interest, including without limitation municipalities and concentrations of blacks and other ethnic minorities, where such efforts do not violate the other stated criteria.

5. Counties should be used as district building blocks where possible, and to the extent consistent with other aspects of these criteria.

a. Where county lines cannot be maintained, district boundaries should follow as closely as practicable the local voting precinct boundary lines in order to minimize voter confusion and cost of election administration.

b. Where voting precinct boundary lines cannot be followed and also meet the geographic guidelines as stated in this section, district lines must follow census block geography in order to maintain the integrity of the statistical analysis.

6. Efforts will be made to preserve cores of existing districts where such efforts are consistent with and do not violate the other criteria stated herein.

14. The Alabama Legislature adjourned its 1991 regular session on July 29, 1991, without enacting a congressional redistricting plan. (Statement of Agreed Facts, Paragraph 13.) It was argued that the Legislature might delay the primaries for congressional elections, allowing it time to adopt and have precleared a constitutional redistricting plan. If that were done, two primaries would have to be held, entailing added cost to the taxpayers.

15. By statute, Alabama's congressional primaries will be held June 2, 1992. The qualifying deadline for candidates is sixty days prior to the primary, or April 3, 1992.¹ In order for a legislatively-enacted congressional...