Windy Boy v. County of Big Horn, CV 83-225-BLG-ER.

• Citation: 647 F. Supp. 1002
• Decision Date: 13 June 1986
• Docket Number: No. CV 83-225-BLG-ER.,CV 83-225-BLG-ER.
• Court: U.S. District Court — District of Montana
• Parties: Janine WINDY BOY, Gary Howey, Norma Bixby, Carlene Old Elk, Dale Old Horn, James Ruegamer Mark Small, Clo Small, Plaintiffs, v. COUNTY OF BIG HORN, Dick Gregory, John Lind, John Koebbe, Donald Beary, Lambert Vandersloot, Harvey Pitsch, Michael Downing, James Herbel, Roberta Snively, Rod Svee, Defendants.

647 F. Supp. 1002

Janine WINDY BOY, Gary Howey, Norma Bixby, Carlene Old Elk, Dale Old Horn, James Ruegamer Mark Small, Clo Small, Plaintiffs, v. COUNTY OF BIG HORN, Dick Gregory, John Lind, John Koebbe, Donald Beary, Lambert Vandersloot, Harvey Pitsch, Michael Downing, James Herbel, Roberta Snively, Rod Svee, Defendants.

No. CV 83-225-BLG-ER.

United States District Court, D. Montana, Billings Division.

June 13, 1986.

COPYRIGHT MATERIAL OMITTED

Jeffrey Renz, Billings, Mont., Laughlin MacDonald, Atlanta, Ga., for plaintiffs.

John W. Ross, Michael P. Heringer, Anderson, Brown, Gerbase, Cebull & Jones, P.C., Billings, Mont., for defendants.

MEMORANDUM OPINION

RAFEEDIE, District Judge, Sitting by Designation.

I. INTRODUCTION

Plaintiffs are American Indians and others who challenge the at-large system of voting for Board of Commissioners and school board in Big Horn County, Montana. Their claims arise under Section 2 et seq. of the Voting Rights Act, 42 U.S.C. § 1973 et seq., the Fourteenth and Fifteenth Amendments to the Constitution, and 42 U.S.C. § 1983. Plaintiffs claim at-large voting denies them the equal opportunity to participate in the political process and to elect representatives of their choice.

Big Horn County, Montana is 5,023 square miles, larger than the State of Connecticut. According to the 1980 census, 11,096 people live in the county. Fifty-two and one-tenth (52.1) percent are white, 46.2 percent are American Indian, and 1.7 percent are of other races. There are 7,308 residents of voting age of whom 59 percent are white and 41 percent are Indian and current registration figures reflect a similar breakdown among registered voters. The Indians are members of the Crow and Northern Cheyenne tribes and ninety percent of them live on tribal reservations. The largest town in the county and the county seat is Hardin. According to the census, 83.6 percent of Hardin's residents are white and 13.2 percent are Indian. Nearly half of the white residents of the county live in Hardin.

Big Horn County is governed by a three-member Board of Commissioners. The county is divided into three districts and one commissioner resides in each district. Elections are held at-large with all county voters eligible to vote in each Board of Commissioners' election. Commissioners serve for six year staggered terms so that in November of every even numbered year one Commissioner is elected. The elections are partisan with open party primaries held in June before the November election. No Indian has ever been elected to the Board of Commissioners.

The school boards at issue in this case are those for Elementary School District 17H and High School District 1. These school districts are smaller geographically than the county as a whole. Both districts include the town of Hardin. District 17H is governed by a five-member Board of Trustees. Trustees are elected at-large and may live anywhere in the district. The terms are for three year staggered terms with school board elections held every year in April. The five trustees for District 17H, together with an elected sixth trustee, comprise the Board of Trustees for District 1. One Indian has been elected to the Board of Trustees of District 17H.

Plaintiffs in this case are two members of the Crow tribe, three members of the Northern Cheyenne tribe, two wives of tribe members, and a white member of the Board of Commissioners. Defendants are the county, members of the Board of Commissioners, the Boards of Trustees of Districts 17H and 1, and the Superintendents of Schools for the county and Districts 17H and 1. The individual defendants are being sued in their official capacities. Subject matter jurisdiction exists pursuant to 42 U.S.C. § 1973 and 28 U.S.C. §§ 1331 and 1343. Venue is proper in the district of Montana.

II. AT-LARGE ELECTIONS AND THE VOTING RIGHTS ACT

The impact that an at-large voting system has on groups that do not constitute a voting majority of a jurisdiction has long been recognized:

At-large voting schemes ... tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single member districts.

Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (emphasis supplied). Despite this aspect of at-large systems of voting, at-large elections are neither per se unconstitutional nor per se a violation of the Voting Rights Act. Id.; U.S. v. Marengo County Com'n, 731 F.2d 1546, 1564 (11th Cir.), appeal dismissed, cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). Only when at-large elections dilute minority votes so that minorities do not have an equal opportunity to participate in the political process is the Voting Rights Act violated. Only when at-large voting systems are purposefully established or maintained to dilute minority voting strength are at-large systems unconstitutional. The statutory issues in this case must be considered first. Escambia County, Florida v. McMillan, 466 U.S. 48, 104 S.Ct. 1577, 1579, 80 L.Ed.2d 36 (1984).

The statutory language of Section 2 of the Voting Rights Act, as amended in 1982, states in pertinent part:

(a) No voting ... procedure shall be imposed ... in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color or status as a language minority.

(b) A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by minorities in that minorities have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office ... is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973.

When determining whether a voting system results in the dilution of minority votes, courts do not consider the statutory language in a vacuum. The legislative history of the 1982 amendments to the Voting Rights Act discusses seven objective factors a court must review in Section 2 cases. They are:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which the members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

1982 U.S.Code Cong. & Ad.News at 177, 206-07 (footnotes omitted). These factors were articulated by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (examining at-large elections), aff'd on other grounds sub nom. East Caroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam), based on the framework established by the Supreme Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Congress' intent in amending the Voting Rights Act in 1982 was to require courts to consider these Zimmer factors in voting rights cases to determine whether vote dilution is occurring.

Congress also cited two other factors that might have limited relevance:

8. whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and

9. whether the policy underlying the ... voting procedure is tenuous.

1982 U.S.Code Cong. & Ad.News at 207 (footnotes omitted); see Jones v. City of Lubbock, 727 F.2d 364, 379, rehearing denied, 730 F.2d 233 (5th Cir.1984).

While specifying these nine factors for consideration, Congress did not limit courts to consideration of only these factors nor did Congress require that plaintiffs prove a certain number of factors to prevail. The legislative history states: "While these enumerated factors will often be the most relevant ones, in some cases other factors will be indicative of the alleged dilution. The cases demonstrate, and the Committee intends that there is no requirement that any particular number of factors be proved, or that a majority of them point one way or another." 1982 U.S.Code Cong. & Ad.News at 207 (footnote omitted); see generally U.S. v. Marengo County Com'n., 731 F.2d 1546, 1563-66 (11th Cir. 1984); Major v. Treen, 574 F.Supp. 325, 350-51 (E.D.La.1983) (three-judge court).

III. APPLICABILITY OF SECTION 2 TO AMERICAN INDIANS

Although this is apparently only the second time that American Indians have challenged a voting system under Section 2 of the Voting Rights Act, Buckanaga v. Sisseton Independent School...