Dillard v. City of Greensboro , 74 F.3d 230 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-7089.
John DILLARD, Damascus Crittenden, Jr., Earwen Ferrell, Clarence
J. Jarrells, Ullysses McBride, Louis Hall, Jr., Plaintiffs-
Appellees,
Bobby Singleton, Teresa Burroughs, J.S. Thomas, Mamie Kennedy,
Intervenors-Plaintiffs-Appellees,
v.
CITY OF GREENSBORO, Defendant-Appellant.
Jan. 3, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV 87-T-1223-N), Myron H. Thompson, Chief
Judge.
Before BIRCH, Circuit Judge, and CLARK and WEIS*, Senior Circuit
Judges.
BIRCH, Circuit Judge:
This case presents our circuit's first opportunity to
reexamine the drawing of voting districts following the Supreme
Court's decision in Miller v. Johnson, --- U.S. ----, 115 S. Ct.
2475, 132 L. Ed. 2d 762 (1995). Because the district court did not
have the benefit of Miller when it adopted the challenged
redistricting plan, we remand the case to allow the district court
to reevaluate the plan under Miller.
I. BACKGROUND
Over a decade ago, this case originated as a class-action
brought by black citizens of Alabama ("Dillard") to challenge the
*
Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge
for the Third Circuit, sitting by designation.
at-large voting systems1 used to elect county commissioners in nine
Alabama counties.2 In 1987, Dillard amended the complaint by
adding the City of Greensboro, Alabama ("Greensboro"),3 among other
cities, counties and county school boards, as a defendant and
alleging that the at-large system used to elect the Greensboro city
council violated section 2 of the Voting Rights Act of 1965, as
amended, 42 U.S.C. § 1973 (1994). Section 2 provides that no state
or political subdivision may impose or apply a voting qualification
or prerequisite to voting or any standard, practice, or procedure
that "results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color."
42 U.S.C. § 1973(a). Dillard claims that, under the at-large
system, "the political processes ... are not equally open to
participation by [blacks] ... in that [blacks] have less
opportunity than other members of the electorate to participate in
the political process and to elect representatives of their
choice." 42 U.S.C. § 1973(b).
1
At-large voting systems use multimember voting districts
where constituents vote for more than one candidate, and all
elected candidates represent the same district rather than their
individual districts. This system often makes it difficult for
minority groups to elect candidates of their choice because they
do not make up a majority of the population. Such a procedure
also is known to result in a dilution of voting power. See
Rogers v. Lodge, 458 U.S. 613, 616-17, 102 S. Ct. 3272, 3275, 73
L. Ed. 2d 1012 (1982).
2
For a synopsis of the procedural history of this action,
see Dillard v. Baldwin County Board of Education, 686 F. Supp.
1459 (M.D.Ala.1988).
3
Greensboro is located in Hale County in western Alabama.
According to the 1990 census, Greensboro has a total population
of 3,047. Blacks comprise 62% of the population and 56% of the
voting age population.
Pursuant to a 1987 consent decree, Greensboro conceded that
its at-large system violated section 2 of the Voting Rights Act. 4
To remedy this violation, Greensboro and Dillard submitted
competing redistricting plans. R1-1-1; Supp. R1-492. The
district court referred the case to a United States magistrate
judge to serve as a special master in the case. Two evidentiary
hearings were conducted by the magistrate judge in 1988, but no
redistricting plan was adopted. In May 1992, the parties agreed
that the plans that had been submitted to the court in 1988 could
no longer be used because of demographic changes identified in the
1990 census. Consequently, new plans were submitted by Dillard and
Greensboro. The court adopted Greensboro's single-member
districting plan on an interim basis.5
Greensboro conducted municipal elections in 1992 pursuant to
this interim plan.
The 1992 plan had five districts; in three of them, African-
Americans were a majority of the voting age population.
District 1 contained a black voting age population of 83%;
District 2 contained a black voting age population of 58%;
and District 3 contained a black voting age population of 75%.
Districts 1 and 3 elected black councilmembers in 1992, and
District 2 elected a white candidate over a black candidate.
Dillard v. City of Greensboro, 865 F. Supp. 773, 774 (M.D.Ala.1994).
4
The parties in the amended class action agreed for the
district court to treat 165 out of the 183 jurisdictions
challenged as individual lawsuits, with separate files and civil
action numbers. Greensboro is one of those 165 jurisdictions.
Dillard v. Baldwin County Bd. of Edu., 686 F. Supp. at 1461.
5
Section 5 of the Voting Rights Act requires that the United
States Attorney General preclear any plan proposed by a State or
political subdivision that is subject to 42 U.S.C. § 1973b. 42
U.S.C. § 1973c. The Code of Federal Regulations, however,
provides that a federal court may authorize the emergency interim
use of a redistricting plan without first getting approval of the
Attorney General. 28 C.F.R. § 51.18(c) (1995).
In December 1992, the Attorney General concluded that the 1992 plan
improperly "fragmented black population concentrations in order to
lower the black percentage in District 2," and refused to preclear
the plan. R2-66-2 (emphasis added). The Attorney General pointed
to the fact that "a black-supported candidate in District 2 was
defeated" as evidence of racial gerrymandering. Id.
In August 1993, Greensboro submitted a new plan to the
Attorney General for preclearance. The 1993 plan created three
majority-black districts. District 1 contained a black voting age
population of 83%; District 2 contained a black voting age
population of 63%; and District 3 contained a black voting age
population of 73%. Once again, the Attorney General refused to
preclear the plan under section 5. The Attorney General found
that, although the black voting age population of District 2 had
been increased from 58% to 63%, the 1993 plan still improperly
hindered blacks from electing candidates of their choice. The
Attorney General made the following observations:
[T]he opportunity for black voters to elect a representative
of their choice in [District 2] appears to have been
constrained deliberately, taking into account the continued
fragmentation of black population concentrations, the pattern
of racially polarized voting and the reduced electoral
participation by black persons, which is traceable to a
history of discrimination.
The city has provided no satisfactory explanation for
limiting black electoral opportunities in this manner.
Indeed, the city was aware of several alternative plans that
created three districts in which black voters constituted a
greater majority of the voting age population in a third
district than in proposed District 2. While the city was not
required under the Voting Rights Act to adopt any specific
alternative plan, it is not free to adopt a districting plan
which, as would appear here, is calculated to limit black
voting strength.
R2-90-Attach. at 2.
In January 1994, Dillard filed a renewed motion for further
relief and requested that the magistrate judge recommend adopting
Dillard's plan, submitted twice previously, in 1991 and 1993. On
October 11, 1994, the district court approved the magistrate
judge's recommendation, adopted the single-member redistricting
plan proposed by Dillard, and ordered immediate new elections.6
The plan adopted by the district court in 1994 and currently at
issue in this appeal has three majority-black districts containing
black voting age populations in the respective districts of 85%,
80% and 76%. Greensboro claims that the district court erred in
adopting Dillard's plan because it allegedly is a race-conscious
effort to guarantee direct proportionality of representation by
manipulating district lines.7
II. ANALYSIS
The issue before this court is whether the redistricting plan
proposed by Dillard and approved by the district court in 1994
6
A plan prepared and adopted by a federal court to remedy a
section 2 violation is not subject to the preclearance
requirements of section 5. McDaniel v. Sanchez, 452 U.S. 130,
138, 101 S. Ct. 2224, 2230, 68 L. Ed. 2d 724 (1981).
Greensboro moved for a stay of the district court's
order pending the outcome of this appeal. That stay was
denied by the district court. Dillard v. City of
Greensboro, 870 F. Supp. 1031 (M.D.Ala.1994).
7
Dillard cites United States v. Hays, --- U.S. ----, 115
S. Ct. 2431, 132 L. Ed. 2d 635 (1995), in support of his contention
that Greensboro has no standing to challenge the district court's
decision. In Hayes, the Court held that plaintiffs, who were not
residents of the district that was the focus of their racial
gerrymandering claim and could not demonstrate that they had been
subjected to racial classification, did not have standing to
challenge Louisiana's congressional redistricting plan. Id. at -
---, 115 S. Ct. at 2437. Here, Greensboro is a defendant in the
action and properly appeals the final decision of the district
court pursuant to 28 U.S.C. § 1291.
constitutes a violation of section 2 of the Voting Rights Act or
fails to correct Greensboro's violation of section 2. We examine
the findings of the district court under the "clearly erroneous"
standard. Rogers v. Lodge, 458 U.S. at 627, 102 S.Ct. at 3281;
Dillard v. Crenshaw County, 831 F.2d 246, 248 (11th Cir.1987).
When evaluating whether Dillard's proposed plan provides an
adequate remedy for the section 2 violation, the district court
must determine that the remedy itself satisfies section 2. Dillard
v. Crenshaw County, 831 F.2d at 249 (citing Edge v. Sumter County
Sch. Dist., 775 F.2d 1509, 1510 (11th Cir.1985) (stating that a
"district court could not validly adopt a reapportionment plan
without determining whether the plan complied with Section 2 of the
Voting Rights Act, as amended, 42 U.S.C. § 1973")).
A. Application of Miller
The Supreme Court's decision in Miller governs our analysis of
this case. At the heart of Miller is the Court's determination
that, when those drawing voting district lines use race as the
"predominant" factor or place more value on race than on other
traditional considerations, such as compactness and contiguity, the
voting districts must satisfy strict scrutiny, "our most rigorous
and exacting standard of constitutional review." Id. at ----, 115
S.Ct. at 2490. At issue in Miller was Georgia's congressional
redistricting plan; specifically, "whether Georgia's new Eleventh
District gives rise to a valid equal protection claim ... and, if
so, whether it can be sustained nonetheless as narrowly tailored to
serve a compelling governmental interest." Id. at ----, 115 S.Ct.
at 2482. In 1991, the Georgia General Assembly submitted a
congressional redistricting plan to the Attorney General for
preclearance as required by section 5 of the Voting Rights Act.
Id. at ----, 115 S.Ct. at 2483. The plan called for an increase in
the number of majority-black districts from one to two. Id. The
Attorney General refused preclearance, however, and "noted a
concern that Georgia had created only two majority-minority
districts, and that the proposed plan did not "recognize' certain
minority populations by placing them in a majority-black district."
Id. at ----, 115 S.Ct. at 2483-84 (citation omitted). The General
Assembly then submitted a second plan to the Attorney General for
preclearance, but the Justice Department, concluding "that Georgia
had "failed to explain adequately' its failure to create a third
majority-minority district," again refused preclearance. Id. at --
--, 115 S. Ct. at 2484 (citation omitted). For the third time, the
General Assembly attempted to create a plan that would be
acceptable to the Attorney General. It created three
majority-minority districts using as a model the "max-black" plan
proffered by the American Civil Liberties Union. Id. This final
plan formed an Eleventh District that was drawn predominantly based
on race. Id. at ----, 115 S.Ct. at 2485.
The Court began its analysis of the Georgia plan by
summarizing its holding in a previous redistricting case, Shaw v.
Reno, --- U.S. ----, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993). In
Shaw, the Court applied the Equal Protection Clause of the
Fourteenth Amendment in the voting rights context and held that
"redistricting legislation that is so bizarre on its face that it
is "unexplainable on grounds other than race' ... demands the same
close scrutiny that we give other state laws that classify citizens
by race." Id. at ----, 115 S.Ct. at 2825 (quoting Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 97
S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977)). In Miller, the Court
clarified Shaw: "Just as the State may not, absent extraordinary
justification, segregate citizens on the basis of race in its
public parks ... so did we recognize in Shaw that it may not
separate its citizens into different voting districts on the basis
of race." Miller, --- U.S. at ----, 115 S. Ct. at 2486 (citations
omitted). In Miller, the Court warned federal courts that
reviewing redistricting legislation "represents a serious intrusion
on the most vital of local functions." Id. at ----, 115 S.Ct. at
2488. The Court also noted that it is often difficult for a court
to distinguish "between being aware of racial considerations and
being motivated by them." Id.
B. District Court's Analysis of the Plan
Dillard attempts to distinguish this case from Miller by
arguing in his supplemental brief that, unlike Miller, the
Greensboro plan was adopted by a federal district court, not a
legislature. We do not find any merit in this distinction.
Whether a redistricting plan is adopted by a court or a legislature
does not affect a party's right to challenge the plan. Admittedly,
we are faced with an unusual factual situation here. In most
voting rights cases, the redistricting plan that is challenged is
one developed by a legislature. Here, the plan was developed by
Dillard, adopted by the district court, and is now challenged by
Greensboro. Despite the unusual posture of the case, however, we
find that Greensboro has equal standing with Dillard to challenge
the district court's plan.
If the district court determines on remand that racial
gerrymandering exists, then the redistricting plan will be the
subject of strict scrutiny. Under the strict scrutiny test, the
plan must be shown to be narrowly tailored to achieve a compelling
state interest. This test will be satisfied if evidence of past
discrimination is shown and there is a sufficient evidentiary basis
to establish that the plan is narrowly tailored to remedy that
discrimination. Id. at ----, 115 S.Ct. at 2491.
The Supreme Court requires that district courts evaluate
redistricting plans in terms of "traditional race-neutral
districting principles, including but not limited to compactness,
contiguity, respect for political subdivisions or communities
defined by actual shared interests." Id. at ----, 115 S.Ct. at
2488. Our review of the record, particularly the hearings
conducted by the magistrate judge in 1988, 1992 and 1993, show an
overwhelming emphasis on race with little or no examination of
race-neutral districting principles. Particularly disturbing is
the testimony regarding the propensity of black voters allegedly to
vote only for black candidates:
Q: Mr. Gray, you are taking it as a given that in a black
majority district, the voters, if you endorse a black
candidate because of his race, that the voters should likewise
favor the black candidate simply because he is black?
A: That's probably a fair assessment.
....
Q: [The COURT]: Under your plan [the plan ultimately adopted
by the district court], you're guaranteed three black council
persons.
A: [Jerome GRAY]: Yes.
R6-60; R6-72.
Q: [Def. Counsel]: Well, do you agree or disagree that your
plan you favor is certainly a form of gerrymandering, with the
view of achieving very high majorities of black voters?
A: [Singleton, resident of Greensboro]: I would disagree with
you.
Q: Well, isn't that its purpose, to achieve and to obtain very
high majorities of black voters, in excess of 80 percent, in
at least three of the council districts?
A: Sure, it is.
Q: And to do that, you've drawn very specific lines to achieve
that purpose?
A: Yes.
R7-36.
Q [The Court]: What is it about this plan that the City has
proposed that leads you to believe that in District 2,
African-Americans would not have an opportunity to elect a
candidate of their choice?
A [Singleton]: Well, I think that in District 2, that the
City has not really looked at the majority voting age in that
community, and based on the lives [sic] in which it was drawn,
we feel that there was not enough people, African-Americans,
in that district based on their lines, to successfully elect
an African-American in that district.
R7-48-49. This testimony reflects precisely the racially pejorative
predisposition that the Supreme Court sought to eradicate in
Miller:
When the State assigns voters on the basis of race, it engages
in the offensive and demeaning assumption that voters of a
particular race, because of their race, "think alike, share
the same political interests, and will prefer the same
candidates at the polls." ... Race-based assignments "embody
stereotypes that treat individuals as the product of their
race, evaluating their thoughts and efforts—their very worth
as citizens—according to a criterion barred to the Government
by history and the Constitution."
Miller, --- U.S. at ----, 115 S. Ct. at 2486 (citations omitted).
The district judge's order adopting Dillard's plan in its
entirety also seems to focus on race. The judge reasons as
follows:
Unlike the city's plans, however, the plaintiffs' plan does
everything reasonably possible to maximize black voting
strength. If the plaintiffs' plan does not conform to § 2 in
providing a complete remedy for minority vote dilution and an
equal opportunity for minorities to elect candidates of their
choice, it is hard to know what would.
....
[T]he court notes that it does not base its decision to adopt
the plaintiffs' plan on a finding that the Voting Rights Act
can only be complied with if black voters choose black
candidates. The purpose of § 2 of the Voting Rights Act is
not to assure the election of black candidates.
Dillard v. Greensboro, 865 F. Supp. at 778. The judge also
expresses a troubling reluctance to draw his own plan or tailor
Dillard's plan at all: "Notwithstanding its preference to avoid
drawing a new plan, the court would have to undertake that task if
the plan proposed by the plaintiffs was invalid for some reason."
Id. at 777. The court's determination that Dillard's redistricting
plan is not invalid is manifestly conclusory.
The judge emphasized that the Attorney General remarked that
a "black-supported candidate," not a "black candidate," was
defeated in District 2. Under Miller, this distinction is not
valid because it assumes that all blacks will support the same
candidate.8 Neither the magistrate judge's reports and
8
We acknowledge that the magistrate judge did express some
concern over the issue of compactness and respect for political
subdivisions during the 1993 hearing and contiguity was discussed
to some extent in the 1992 hearing. See, e.g., R6-17-18, 46, R7-
76. In his final order, the district judge concluded that "the
plaintiffs' plan does not violate constitutional or statutory
standards," but he did not make satisfactory evidentiary findings
on this issue. Dillard, 865 F. Supp. at 777.
recommendations nor the district court's orders reflect an adequate
analysis of the testimony or plans with regard to traditional
districting principles. The redistricting plan must be reevaluated
by the district court in light of Miller.9
C. Department of Justice Preclearance
The Supreme Court in Miller also criticized the Justice
Department's preclearance procedures and found it "inappropriate
for a court engaged in constitutional scrutiny to accord deference
to the Justice Department's interpretation of the Act." Miller, --
- U.S. at ----, 115 S. Ct. at 2491. The Court found that the
Justice Department had been driven by the objectionable policy of
maximizing the number of majority black districts rather than
"grounding its objections [to proposed plans] on evidence of a
discriminatory purpose." Id. at ----, 115 S.Ct. at 2492. "In
utilizing § 5 to require States to create majority-minority
districts wherever possible, the Department of Justice expanded its
authority under the statute beyond what Congress intended and we
have upheld." Id. at ----, 115 S.Ct. at 2493.
When a federal court reviews a redistricting plan, it intrudes
"on the most vital of local functions" and must accord legislatures
9
While neither the magistrate judge nor the district court
had the benefit of Miller when evaluating the redistricting
plans, the Supreme Court's decision in Shaw was available and
should have guided the court's reasoning.
We note that the Supreme Court granted certiorari and
heard oral argument in two cases that also may prove to be
relevant in the district court's reevaluation of the plan.
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C.1994), cert. granted
--- U.S. ----, 115 S. Ct. 2639, 132 L. Ed. 2d 878 (1995); Vera
v. Richards, 861 F. Supp. 1304 (S.D.Tex.1994), cert. granted
sub. nom., Bush v. Vera, --- U.S. ----, 115 S. Ct. 2639, 132
L. Ed. 2d 877 (1995).
the presumption of good faith "until a claimant makes a showing
sufficient to support [its] allegation" that the legislature's
decisionmaking is race-based. Id. at ----, 115 S.Ct. at 2488. The
district court made every attempt to defer to the legislature when
approving the 1992 and 1993 plans, but the court found itself
thwarted at each turn by the Attorney General's rejection of those
plans.
Although we acknowledge that the district court in this case
must have been frustrated by the Attorney General's rejection of
two plans that the court believed to be adequate remedies, the
district court's heavy reliance on finding a plan that will satisfy
the concerns of the Attorney General conflicts with the admonition
of Miller:
[O]rdinarily the court would take seriously concerns about
packing minorities into districts. In this situation,
however, the Attorney General objected to a district with a
black voting age population of 63% because of, among other
factors, "the reduced electoral participation by black
persons, which is traceable to a history of discrimination";
therefore, any plan the court adopts to cure that objection
will necessarily contain districts with a great many blacks.
Dillard, 865 F. Supp. at 778. From the district court's order, it
is difficult to infer anything other than that the purpose of
adopting Dillard's plan was to satisfy the Attorney General.
III. CONCLUSION
In this appeal, Greensboro challenges the district court's
adoption of Dillard's redistricting plan, which it contends is
racially configured to guarantee the election of black-supported
candidates. If the district court determines that race was the
predominant factor in Dillard's redistricting plan, then Miller
requires that the plan be subjected to strict scrutiny. For a
redistricting plan to withstand strict scrutiny under the Voting
Rights Act, the racially gerrymandered districts must be found to
be narrowly tailored to achieve a compelling interest. Miller, ---
U.S. at ----, 115 S. Ct. at 2491. We emphasize that we are not
expressing any opinion as to whether the Dillard plan ultimately
will meet the requirements of the Equal Protection Clause. Our
decision is limited to the conclusion that because neither the
magistrate judge nor the district court had the benefit of Miller
with its reiteration of the importance of examining principles of
compactness, contiguity, and respect for political subdivisions in
analyzing the redistricting plan, it is necessary to remand the
case.
We VACATE the decision of the district court and REMAND this
case for a reevaluation of the proposed redistricting plans in
light of Miller.