Gause v. Brunswick County ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    THURMAN GAUSE; JOHN R. FRINK;
    WILLIE SLOAN; HENRY J. BRYANT;
    EDWARD THOMAS; ROSCOE BUTLER;
    WILLIE FULLWOOD,
    Plaintiffs-Appellants,
    v.
    BRUNSWICK COUNTY, NORTH
    CAROLINA; BRUNSWICK COUNTY
    BOARD OF COUNTY COMMISSIONERS;
    No. 95-3028
    DONALD WARREN; JERRY JONES;
    WAYLAND VEREEN; TOM RAYBON;
    DONALD SHAW, Members of the
    Brunswick County Board of County
    Commissioners; BRUNSWICK COUNTY
    BOARD OF ELECTIONS; ORRIE GORE;
    MARION D. DAVIS; BILLY BENTON,
    Members of the Brunswick County
    Board of Elections,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of North Carolina, at Wilmington.
    Franklin T. Dupree, Jr., Senior District Judge.
    (CA-93-80-7-D)
    Argued: July 9, 1996
    Decided: August 13, 1996
    Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Anita Sue Hodgkiss, FERGUSON, STEIN, WALLAS,
    ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina,
    for Appellant. Michael Crowell, THARRINGTON SMITH, Raleigh,
    North Carolina, for Appellees. ON BRIEF: James J. Wall, LEGAL
    SERVICES OF THE LOWER CAPE FEAR, INC., Wilmington,
    North Carolina, for Appellant. E. Hardy Lewis, THARRINGTON
    SMITH, Raleigh, North Carolina; Michael R. Ramos, Brunswick
    County Attorney, RAMOS & LEWIS, Shallotte, North Carolina, for
    Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    The plaintiffs, seven African-American voters and politicians, sued
    Brunswick County (North Carolina) and County officials, alleging
    that the method by which members of the County's Board of Com-
    missioners are elected dilutes minority votes in violation of § 2 of the
    Voting Rights Act, 
    42 U.S.C. § 1973
    . The district court granted sum-
    mary judgment to the defendants. We affirm because the lack of elec-
    toral success, if any, by the candidates of African-Americans' choice
    is due to the small number of African-American voters and their geo-
    graphical dispersion throughout the County.
    I.
    Brunswick County's African-American population today is rela-
    tively small. According to the 1990 Census, 50,985 people live in
    2
    Brunswick County, 38,960 of whom are of voting age. The popula-
    tion has increased dramatically since 1960, when 20,278 people lived
    there. Much of the population growth is due to an influx of white
    retirees from colder climates. As a result of this demographic shift,
    the total percentage of African-Americans living in the County fell
    from 35 percent in 1960 to 18 percent in 1990. In 1990 the County's
    voting-age population was 83 percent white, 16 percent African-
    American, and 1 percent other ethnic groups. Fourteen percent of reg-
    istered voters are African-American. Of the County's 22 election pre-
    cincts, African-Americans constitute a majority in only one. In seven
    precincts, more than 90 percent of the registered voters are white.
    African-Americans constitute a majority in less than 6 percent of the
    County's Census blocks. They constitute a majority in none of the
    County's six townships.
    The County uses a modified at-large election system to choose its
    Board of Commissioners. The Board has five members, and elections
    for two-year terms are held every other year, with all seats up for
    grabs. The County is divided into five residency districts, and the can-
    didate from each district who receives the most votes, compared only
    to other candidates living in the same district, serves. Voters, how-
    ever, may vote for any candidate, regardless of where they or the can-
    didate live. No African-American has been elected to the Board of
    Commissioners since 1982. African-Americans have run for Board of
    Commissioners in 9 elections since 1972, and have been elected 3 times.1
    The parties do not dispute the above facts, but do dispute their mean-
    ing.
    The plaintiffs claim that African-Americans have been unable to
    elect their preferred candidates to the Board and that the County's
    election structure is responsible. The plaintiffs propose that a majority
    African-American voting district be created to ensure that African-
    Americans are adequately represented on the Board of Commission-
    ers. We believe that because African-Americans in Brunswick County
    are too few and too dispersed, the plaintiffs have failed to establish
    a prima facie case of vote dilution.
    _________________________________________________________________
    1 African-Americans sought to be elected to the Board in 1972, 1974,
    1976, 1978, 1980, 1982, 1984, 1990, and 1994. African-Americans were
    elected in 1974, 1976, and 1982.
    3
    II.
    Section 2(b) of the Voting Rights Act, 42 U.S.C.§ 1973(b), pro-
    vides that an election system improperly dilutes the vote of minorities
    if
    based on the totality of circumstances, it is shown that the
    political processes leading to nomination or election in the
    State or political subdivision are not equally open to partici-
    pation by [minorities] in that [they] 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 [minorities] have been elected to office
    in the State or political subdivision is one circumstance
    which may be considered: Provided, That nothing in this
    section establishes a right to have [minorities] elected in
    numbers equal to their proportion in the population.
    A vote dilution challenge to a multimember election system may
    not proceed unless the plaintiff first establishes the following precon-
    ditions ("Gingles preconditions"): (1) that the minority population "is
    sufficiently large and geographically compact to constitute a majority
    in a single-member district"; (2) that the minority group "is politically
    cohesive"; and (3) "that the white majority votes sufficiently as a bloc
    to enable it . . . usually to defeat the minority's preferred candidate."
    Thornburg v. Gingles, 
    478 U.S. 30
    , 50-51 (1986); see also Shaw v.
    Hunt, 
    64 U.S.L.W. 4437
    , 4442 (U.S. June 13, 1996); Johnson v.
    DeGrandy, 
    114 S. Ct. 2647
    , 2654-55 (1994); Growe v. Emison, 
    113 S. Ct. 1075
    , 1084 (1993). Failure of proof on even one precondition
    defeats a vote dilution claim. Gingles, 
    478 U.S. at
    50-51 n.17;
    McGhee v. Granville County, 
    860 F.2d 110
    , 116-17 (4th Cir. 1988);
    McNeill v. Springfield Park Dist., 
    851 F.2d 937
    , 942 (7th Cir. 1988),
    cert. denied, 
    490 U.S. 1031
     (1989).
    We believe the district court correctly concluded that the plaintiffs
    failed to establish the first Gingles precondition: geographic
    compactness.2
    _________________________________________________________________
    2 The district court also found that the plaintiffs failed to satisfy the
    third Gingles precondition: that majority bloc voting usually defeats the
    minority's preferred candidate. Because we find that the plaintiffs have
    failed to establish compactness, we need not consider whether they have
    forecast sufficient evidence of majority bloc voting.
    4
    The reason that a minority group making a [vote dilution]
    challenge must show, as a threshold matter, that it is suffi-
    ciently large and geographically compact to constitute a
    majority in a single-member district is this: Unless minority
    voters possess the potential to elect representatives in the
    absence of the challenged structure or practice, they cannot
    claim to have been injured by that structure or practice.
    Gingles, 
    478 U.S. at
    50-51 n.17 (emphasis in original). In other
    words, minority voters must show that their votes have been diluted
    by discriminatory elements of the election process, and not simply
    that their votes are dilute. See DeGrandy, 
    114 S. Ct. at 2659-60
    ;
    McNeil, 
    851 F.2d at 946
    . "[T]he adverse``result' for which [Section
    2] seeks a remedy must be traceable ultimately to the impact of ``a
    certain electoral law, practice, or structure interact[ing] with social
    and historical conditions.'" McGhee, 
    860 F.2d at 117
     (quoting
    Gingles, 
    478 U.S. at 47
    ) (emphasis supplied).
    The evidence here shows that the African-American population is
    dispersed throughout the County, constituting a majority in no single
    township and a majority in only one election precinct, the County's
    smallest. The plaintiffs' vote dilution claim fails because the African-
    American population "is spread evenly throughout" the County.
    Gingles, 
    478 U.S. at
    51 n.17; accord Bush v. Vera, 
    64 U.S.L.W. 4452
    ,
    4460 (U.S. June 13, 1996) (plurality opinion of O'Connor, J., joined
    by Rehnquist, C.J., and Kennedy, J.); Smith v. Brunswick County,
    Virginia, 
    984 F.2d 1393
    , 1399 (4th Cir. 1992).
    The plaintiffs make two attempts to prove that a reasonably com-
    pact majority African-American voting district may be constructed.
    Both attempts fail. The first proposed district sweeps through five of
    the County's six townships and is 75 miles from tip to toe. We believe
    the defendants' description of the proposed district is accurate:
    [The plaintiffs propose] a 75 mile-long boomerang-shaped
    district that meanders, seemingly aimlessly, around the
    [southern] and eastern legs of the triangle.[Brunswick
    County is roughly triangular.] From the vertex in Southport
    [in the southeast] extend two "arms" which themselves are
    irregular, especially the southern appendage extending from
    5
    Southport westward to Calabash. The path of this arm
    roughly follows highways 211 and 17, but it juts randomly
    northward and southward from the highway to capture pock-
    ets of minority population. At one point a boot-like tentacle
    steps southward toward Holden Beach. At several other
    points, the district is only one census block wide. Befitting
    its tortured path, the lower arm ends near Calabash with a
    flourish -- hooking westward and then eastward, almost
    falling back on itself. Ironically, as positioned on the page
    in the joint appendix [JA 68A], this narrow, winding district
    looks like a 75 mile-long question mark.
    Br. of Appellee, at 14 (footnote omitted). Because the first proposed
    district is "unreasonably irregular, bizarre,[and] uncouth," it does not
    establish that the African-American population of Brunswick County
    is sufficiently large and geographically compact to support a claim for
    relief under § 2 of the Voting Rights Act. Cane v. Worcester County,
    
    35 F.3d 921
    , 925 (4th Cir. 1994) (quoting Cane v. Worcester County,
    
    840 F. Supp. 1081
    , 1087 (D. Md. 1994)), cert. denied, 
    115 S. Ct. 1097
     (1995); accord Jeffers v. Tucker, 
    847 F. Supp. 655
    , 661-62
    (E.D. Ark. 1994). Furthermore, the plaintiffs have not shown that in
    developing their proposal they "adhered to [ ] traditional districting
    principles." Cane, 
    35 F.3d at
    927 n.6.
    The second proposed majority African-American district is signifi-
    cantly more compact, having omitted the first proposed district's east-
    ern arm and having smoothed out some of the irregularity at the
    western end of the southern arm. The second proposal, however, has
    an even more serious flaw: it violates the one-person/one-vote rule
    compelled by the Equal Protection Clause of the Fourteenth Amend-
    ment.
    To comply with the Equal Protection Clause, each voting district
    should contain the same approximate number of voters. Voinovich v.
    Quilter, 
    113 S. Ct. 1149
    , 1159 (1993); Brown v. Thomson, 
    462 U.S. 835
    , 842 (1983); Connor v. Finch, 
    431 U.S. 407
    , 416 (1977);
    Reynolds v. Sims, 
    377 U.S. 533
    , 568 (1964). Equality of district size
    is necessary to ensure "that each person's vote may be given equal
    weight." Connor, 
    431 U.S. at 416
    .
    6
    Brunswick County has a total population of 50,985. Thus, if all five
    districts were of equal size, each would contain 10,197 people. The
    second proposed majority African-American district would contain
    9,080 people, or 11 percent below the ideal size of 10,197. Under this
    proposal, the white district with the largest total population would
    contain 10,527 people, or 3 percent above ideal. Thus, in terms of
    total population, the plaintiffs' second proposal would result in a size
    deviation of 14 percent between the largest and smallest districts.
    When voting-age population is compared, the deviation is more
    dramatic. The County's total voting-age population is 38,960, so ide-
    ally each district would contain 7,792 persons of voting age. Under
    the plaintiffs' second proposal, though, the majority African-
    American district would contain 6,464 persons of voting age, or 17
    percent fewer than the ideal district would contain. The white district
    with the largest voting-age population would contain 8,537 persons of
    voting age, or 10 percent greater than ideal. The total deviation in
    terms of voting-age population, then, would be 27 percent under the
    plaintiffs' proposal.
    A total deviation of greater than 10 percent presumptively violates
    the Equal Protection Clause. Brown, 
    462 U.S. at 842-43
    . Neverthe-
    less, such a deviation may be upheld if "supported by substantial and
    legitimate state concerns," such as allowing district lines to track nat-
    ural geographic barriers, significant topological features, or long-
    standing political boundaries. 
    Id.
     The plaintiffs' second proposal
    cannot be justified on the basis of these traditional concerns. Like the
    first proposed district, albeit to a lesser extent, the second proposed
    district respects neither township nor precinct lines, nor are its bound-
    aries mandated by geography.
    The plaintiffs have come forward with only one rationale in sup-
    port of such a large population deviation: to allow creation of a major-
    ity African-American voting district. The Supreme Court has recently
    instructed us, however, that race-conscious districting may be allowed
    only if doing so would be a narrowly tailored method of furthering
    a compelling state interest. Shaw, 64 U.S.L.W. at 4440; Bush, 64
    U.S.L.W. at 4458-59 (plurality opinion) & 4466-67 (Thomas, J., con-
    curring, joined by Scalia, J.).
    7
    The plaintiffs' asserted rationale does not justify drawing districts
    whose populations deviate so dramatically. The plaintiffs claim that
    the extreme deviation must be allowed in order to redress the dilution
    of minority votes. This argument, however, is fatally circular because
    no dilution has yet been proven, nor can dilution be proven absent an
    independent showing of geographical compactness. The plaintiff can-
    not show a compelling interest in redressing vote dilution without first
    proving compactness. Compactness is an essential element of a vote
    dilution claim, and that element must be satisfied by showing that a
    minority representation district can be drawn in a manner that com-
    plies "with the overriding demands of the Equal Protection Clause."
    Sanchez v. Colorado, 
    861 F. Supp. 1516
    , 1523 (D. Colo. 1994).
    [A] plaintiff seeking to meet its burden of showing compact-
    ness under the first Gingles precondition should not be per-
    mitted to rely on a plan which, if subsequently adopted by
    the Court after a finding of a Section 2 violation, would
    have no chance of being found to be narrowly tailored to
    redress the violation.
    Reed v. Town of Babylon, 
    914 F. Supp. 843
    , 871 (E.D.N.Y. 1996). If
    we were to accept the plaintiffs' argument, every§ 2 plaintiff could
    bootstrap his way out of Gingles' compactness requirement by claim-
    ing that some unconstitutionally small district is"compact." This we
    cannot allow. See McNeil, 
    851 F.2d at 946
    . 3
    _________________________________________________________________
    3 At oral argument the plaintiffs suggested (for the first time) that even
    if the African-American population is insufficiently compact to support
    creation of a majority African-American district, the population is suffi-
    ciently compact to allow creation of an African-American influenced dis-
    trict, in other words, a district with a significant (although minority)
    African-American presence. Because the plaintiffs did not raise this
    argument below, we decline to consider it. See Growe, 
    113 S. Ct. at
    1084
    n.5; Bakker v. Grutman, 
    942 F.2d 236
    , 242 (4th Cir. 1991). Nor do we
    accept the plaintiffs' suggestion that we remand the case to the district
    court for reconsideration in light of the Supreme Court's recent decisions
    in Shaw and Bush. We believe the district court's approach to the ques-
    tion of compactness presented here was consistent with the two recent
    Supreme Court cases.
    8
    The judgment is affirmed.
    AFFIRMED
    9