Yelverton v. Driggers

• Citation: 370 F. Supp. 612
• Decision Date: 07 February 1974
• Docket Number: Civ. A. No. 1305-S.
• Parties: Wylie C. YELVERTON et al., Plaintiffs, v. Roy DRIGGERS, Individually, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

370 F. Supp. 612

Wylie C. YELVERTON et al., Plaintiffs, v. Roy DRIGGERS, Individually, et al., Defendants.

Civ. A. No. 1305-S.

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

February 7, 1974.

COPYRIGHT MATERIAL OMITTED

Howard A. Mandell, Montgomery, Ala., for the plaintiffs.

William G. Hause, Hardwick, Hause & Segrest, Dothan, Ala., and Oakley Melton, Jr., and Joseph C. Espy, III, Montgomery, Ala., for the defendants.

OPINION

JOHNSON, Chief Judge.

Plaintiffs,¹ individually and on behalf of the class which they represent,² brought suit in this Court³ asserting that a reapportionment plan for the City of Dothan, Alabama,⁴ was unconstitutional on account of the effects and operation of those facets of the plan involving numerical apportionment and multi-member districting. Plaintiffs claim that their constitutional rights under the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution have been violated. Jurisdiction in this Court is predicated upon 28 U.S.C. §§ 1331. 1343(3)-(4), 2201 and 2202, and suit is brought pursuant to 42 U.S.C. § 1983.

I. Malapportionment

It has been clear for more than a decade that the United States Constitution requires that political representation must be equally apportioned on the basis of population. States must make "an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable." Mahan v. Howell, 410 U.S. 315, 324, 93 S.Ct. 979, 985, 35 L.Ed.2d 320 (1973). However, in reapportionment cases as in other civil cases, plaintiffs must present a prima facie case if they are to prevail on the merits. White v. Regester, 412 U.S. 755, 764, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 741, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).

Plaintiffs in this case seek to establish their case on the malapportionment issue by showing a disparity between the number of registered voters in the several wards of the City of Dothan. Plaintiffs have introduced no population figures showing racial distribution in the Dothan City wards, except old census data from 1930 and 1940. Thirty-year-old census data is, for present-day cases, an inherently unreliable and misleading data source. No prima facie case of malapportionment can be premised upon population data three decades old.

Furthermore, it is clear that in this case this Court may not properly base its consideration of the malapportionment issue upon registered voter statistics. Data based upon factors other than mere population may be used only if they yield a distribution of legislators not substantially different from that produced by use of population figures. Burns v. Richardson, 384 U.S. 73, 92, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Zimmer v. McKeithen, 485 F.2d 1297, 1303 n.11 (5th Cir. 1972) (en banc); Brodhead v. Ezell, 348 F.Supp. 1244, 1251-1252 (S.D.Ala.1972). It is evident that the use of registered voter statistics as a base for the one man-one vote portion of this case would result in a pattern wildly disproportionate to the population. Plaintiffs point out in their brief that only 43 percent of Dothan's age-eligible blacks are registered voters, as compared with 72 percent of the ageeligible whites in Dothan. Here, population statistics must be used.

At the close of plaintiffs' evidence, defendants moved for a directed verdict upon the apportionment issue, for failure by plaintiffs to prove a prima facie case of malapportionment. Since plaintiffs did not introduce evidence containing viable and recent population figures in the Dothan wards, a prima facie case of malapportionment has not been established. Therefore, defendants' motion for directed verdict on the malapportionment issue will be granted.

II. Multi-Member Districting

A multi-member district is any single electoral district from which more than one political representative is elected. It is clear that a multi-member district is not per se unconstitutional. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). Nevertheless, multi-member districts may at times result in the submersion of a minority element within the district in some instances in which that minority, in a single district situation, would ordinarily be expected to be able to elect representation. Therefore, when a federal court draws a reapportionment plan, "single-member districts are preferable to large multi-member districts as a general matter." Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971). Even federal courts, however, are free to adopt multi-member district plans in certain highly unusual situations. See Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

When a state adopts a multi-member districting plan, the plan may be

subject to challenge where the circumstances of a particular case may `operate to minimize or cancel out the voting strength of racial or political elements of the voting population.'

Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971). The challenger must carry the burden of proving dilution or cancellation of the voting strength of a racial or political minority. Id. at 144, 91 S.Ct. 1858. This may be accomplished by proving that the members of the minority in question have less opportunity than do other residents "to participate in the political process and to elect legislators of their choice." White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973); Turner v. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc).

Several factors have been pointed out by courts as factors which may be indicia⁵ that a multi-member district system operates to minimize or cancel the voting power of a minority.

First, plaintiff must show that "the political processes leading to nomination and election were not equally open to participation by the group in question . . .." White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973). Accord, Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc). This lack of openness of the political processes may be shown to exist in a system which gives blacks little power in the selection of candidates, even if it seeks their vote at the general election. Turner v. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973). Lack of openness is also strongly indicated by the fact that no blacks have ever been elected before. Id. at 195. Even if blacks had been nominated or had run, if the interests which supported their election did not "exhibit good faith concern for the political and other needs and aspirations of the Negro community," the presence on the ticket of such token blacks may be discounted as an indicium of political openness. White v. Regester, 412 U.S. 755, 767, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973). While election of a black is some evidence of political openness and access, it is certainly not conclusive on the issue:

Such success might, on occasion, be attributable to the work of politicians, who, apprehending that the support of a black candidate would be politically expedient, campaign to insure his election. Or such success might be attributable to political support motivated by different considerations—namely that election of a black candidate will thwart successful challenges to electoral schemes on dilution grounds. In either situation, a candidate could be elected despite the relative political backwardness of black residents in the electoral district.

Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir. 1973) (en banc).

Second, a history of racial discrimination is a factor tending to indicate dilution of the political power of a racial minority. White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973). The history of racial discrimination is especially instructive on this point if it "touched the right of Negroes to register and vote and to participate in the democratic processes." Id. at 766, 93 S.Ct. at 1339. Racially discriminatory facets of evidentiary weight include (a) formerly segregated schools, Turner v. MeKeithen, 490 F.2d 191, 194 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir. 1973) (en banc), (b) state-required literacy tests, Turner v. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973), (c) complete lack of registered black voters during some past period, Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir. 1973) (en banc), (d) the past necessity for the presence of federal voting registrars, Turner v. McKeithen, 490 F.2d 191, 195 (5th Cir. 1973), (e) statistics showing that more black voting registrants registered with the federal voting registrars than with the state registrars in a comparable period, Turner v. McKeithen, 490 F.2d 191, 195 (5th Cir. 1973), and (f) statistics showing a larger percentage of registered white voters than black voters, in proportion to their population in the community. Turner v. McKeithen, 490 F.2d 191, 195 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir. 1973) (en banc).

Third, one factor showing that the political power of blacks has been diluted is a past lack of responsiveness by the governmental entity to black needs and aspirations. Turner v. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc).

A fourth factor indicating dilution of minority political power is the existence of a state policy generally in favor of single-member districts, indicating that the use of multi-member districts is an infrequent occurrence. Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir. 1973) (en banc).

Where the existence of these four factors can be demonstrated, "a strong case is made," Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc), although the existence of all need not be proved. Id. Over and above...