Allie K. McCord v. City of Fort Lauderdale, Florida , 787 F.2d 1528 ( 1986 )

SWYGERT, Senior Circuit Judge,

dissenting:

In essence, plaintiffs’ case is that Fort Lauderdale’s blacks have been denied access to the political processes of Fort Lauderdale in violation of Section 2 of the Voting Rights Act through a history of discrimination resulting in present socio-economic disadvantages, an absence of elected black officials, and the existence of racially-polarized voting. I believe that plaintiffs have proved their case, and I would reverse the district court’s decision holding that they have not.

I

The majority begins by observing that: “Fort Lauderdale does not have and has never had a segregated primary.” Ante at 1529. Presumably, this statement is intended to show that Fort Lauderdale is a different, better community from those whose history of racial discrimination has justified federal intervention into their electoral processes.

The majority does not mention that from 1922 to 1948 the City segregated blacks, by law, into the northwest area of the City— the so-called “Negro district.” The majority also does not mention that for years Fort Lauderdale required its citizens to pay a poll tax before permitting them to vote, that blacks were long forced to use separate health facilities, and that blacks were forbidden until well into the 1960’s from using the City’s parks, beaches and municipally-owned golf and country club.

Federal courts have been forced to act to remedy some of the most flagrant instances of discrimination. In 1957 the United States Court of Appeals for the Fifth Circuit ruled that the systematic exclusion of blacks from municipal golf courses was unconstitutional. Fort Lauderdale v. Moorhead, 248 F.2d 544 (5th Cir.1957). The City sold its golf course. In 1980 the United States District Court for the Southern District of Florida ordered the City to increase employment opportunities for blacks in the police and fire departments. United States v. City of Fort Lauderdale, No. 80-6289-CIY-ALH (S.D.Fla.1980). In Allen v. Board of Public Instruction of Broward County, 432 F.2d 362 (5th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1609, 29 L.Ed.2d 123 (1971), the Fifth Circuit ordered the desegregation of Fort Lauderdale’s public schools.

The majority concedes “that evidence of past discrimination in Fort Lauderdale does exist.” Ante at 1531. The district court also recognized that “there was evidence of discrimination againt blacks in the City of Ft. Lauderdale in the past.” Rec. at 36. Fort Lauderdale is a city where the most critical aspects of life were historically segregated by race, and where “vestiges of racism encompass the totality of life.” Lodge v. Buxton, 639 F.2d 1358, 1381 (5th Cir. 1981), aff'd sub. nom. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Jim Crow was alive and well in Fort Lauderdale and his only effective enemy has been the federal courts. Fort Lauderdale never had a segregated primary because it never needed one. Blacks no longer drink from separate fountains. But no one has suggested that race is still not a critical factor in whether one succeeds or fails in Fort Lauderdale society. “[T]he continuing effects of past discrimination are still with us.” United States v. Marengo County Commission, 731 F.2d 1546, 1571 (11th Cir.), cert. denied, — U.S. -, 105 St.Ct. 375, 83 L.Ed.2d 311 (1984). “When the more blatant obstacles to black access are struck down ... an at-large plan may [nevertheless] operate to devalue black participation.” Jones v. City of Lubbock, 727 F.2d 364, 386 (5th Cir.1984).

Almost ninety percent of blacks live within or immediately adjacent to the old Negro district. By the City’s admission these blacks live in what can only be described as “slum” conditions. The average income for all Fort Lauderdale families is $15,410. The average income for black families is $9,760. One out of every three black adults has an eighth grade education or less. Blacks lag behind whites in every commonly accepted indicator of socio-economic progress. Between 1911 and 1986 only one black has been elected to the Fort Lauderdale City Commission. The law is clear: “When there is clear evidence of present socio-economic or political disadvantage resulting from past discrimination, the burden is on defendants to show that reduced political participation is the result of something besides this discrimination.” McMillan v. Escambia County, 748 F.2d 1037, 1044 (5th Cir.1984). “Once [the] lower socio-economic status of blacks has been shown there is no need to show the causal link of this lower status on political participation.” United States v. Dallas County Commission, 739 F.2d 1529, 1537 (11th Cir.1984). See also Lodge v. Buxton, 639 F.2d at 1378-79.

In its assessment of the success rate of black candidates for the City Commission, the district court considered only elections between 1971 and 1982 because “serious efforts in a black candidacy began about that time.” Rec. at 26. This merely begs the question. The reason no “serious” black candidacies emerged before 1971 is because any reasonable person, black or white, would have considered the prospects for success of such a candidacy virtually nil. “[T]he lack of black candidates is a likely result of a racially discriminatory system.” McMillan v. Escambia County, 748 F.2d at 1045. The quixotic character of pre-1971 black candidacies should operate in plaintiffs’ favor. The district court instead used it to arbitrarily and artificially limit their case.

The majority states that “a black commissioner has been elected three times.” Ante at 1529. This is true, but misleading. The parties have agreed that open seats— seats with no incumbent running — are the key races in determining electability. Rec. at 27. In any event, this court has previously noted that “... the election of one or a small number of minority elected officials will not compel a finding of no dilution.” Marengo County, 731 F.2d at 1572. See also Velasquez v. City of Abilene, 725 F.2d 1017, 1022 n. 1 (5th Cir.1984).

I am loathe to enter the debate over the proper means of measuring racial polarization. Compare NAACP v. Gadsden County School Board, 691 F.2d 978, 983 (11th Cir.1982), with Lee County Branch of the NAACP v. City of Opelika, 748 F.2d 1473, 1482 (11th Cir.1984). I agree that the proper inquiry “is whether race or ethnicity was such a determinant of voting preference in the rejection of black or brown candidates by a white majority that the at-large district, with its components, denied minority voters effective voting opportunity.” Jones v. City of Lubbock, 730 F.2d 233, 234 (5th Cir.1984) (Higginbotham, J., specially concurring). I also agree that neither bi-variate or multivariate analysis will always be appropriate for all vote dilution cases. See ante at 10. There is no question, however, that some form of bivariate analysis has been the preferred statistical method of evaluating claims of racial polarization. See, e.g., McMillen v. Escambia County, 748 F.2d at 1043 n. 12; Jones v. City of Lubbock, 727 F.2d at 380-81; Gingles v. Edminsten, 590 F.Supp. 345, 367-68 n. 32 (E.D.N.C.1984); Major v. Treen, 574 F.Supp. 325, 337-39 (E.D.La.1983). Moreover, at least in Fort Lauderdale, the additional factors that must be examined under a multivariate analysis — campaign expenditure, identification, income, media advertising, religion, name recognition, position on key issues — are also closely correlated to race. It is a fair bet that blacks spend less on their campaigns and on media advertising because the overwhelming majority of their contributors are black and poor. This court has previously stated that bloc voting may be indicated by a showing of past discrimination in general including “the consistent lack of success of qualified black candidates.” Marengo County, 731 F.2d at 1567 n. 34. Irrespective of the relative utility of bivariate and multivariate analysis the truth is that if the members of the Fort Lauderdale City Commission were elected by five single-member districts, there would be four white commissioners and one black. Racial polarization exists if “whenever a black challenges a white for countywide office, a consistent majority of the whites who vote will consistently vote for the black’s opponent.” McMillan v. Escambia County, 748 F.2d at 1043. These are the facts of political life in Fort Lauderdale. The “day has not come” when elections in Fort Lauderdale “are conducted without regard to the race of the candidates.” Marengo County, 731 F.2d at 1567. Plaintiffs need not prove with absolute mathematical precision the existence of racially-polarized voting patterns in a city which has a long and irrefutable history of racial discrimination. “Racial polarization need not be perfect to be persuasive.” Political Civil Voters Organization v. City of Terrell, 565 F.Supp. 338, 349 (N.D.Tex.1983). Even if plaintiffs had not clearly established the existence of racially-polarized voting, I would have employed the procedure utilized in Lee County Branch of the NAACP v. City of Opelika and remanded to the district court to permit the parties to introduce evidence concerning the degree of racially-polarized voting. 748 F.2d at 1482-83.

II

In Fort Lauderdale black voter turnout is higher than that of whites. Ante at 1531; Rec. at 38-39. In that respect Fort Lauderdale does not quite exhibit the pattern we have come to expect from cities charged with voting rights violations. Nevertheless, I believe the majority has exaggerated the importance of high black voter turnouts, and that a finding of comparatively low black voter turnouts is not a necessary prerequisite to a Section 2 violation.

We are called upon in this case to determine whether a right of participation in the political process guarantees nothing more than a right to east a vote. We must decide whether it can ever be said that blácks have been denied access to the political process when it is established that they register and vote in numbers proportionately greater than that of whites. Without quite saying so the majority today decides that evidence that blacks actually succeed in voting as often as whites constitutes prima facie proof that the political process is working and that no violation of the Voting Rights Act has occurred. I believe the majority would have found a violation of the Voting Rights Act and reversed the district court but for the voting patterns of Fort Lauderdale’s blacks. Thus, in essence, this court penalizes the City’s black citizens for doing nothing more than exercising perhaps the most fundamental of all constitutional rights: the right to vote. This cannot be the law.

There is no question that the underlying purpose of the 1982 Voting Rights Act Amendments is to insure that “political processes are equally open to minority voters.” S.Rep. No. 417, 97th Cong., 2d Sess. 2, reprinted in 1982 U.S.Code Cong. & Ad.News 179 (hereinafter Senate Report). Equal access to the political process is not established, however, merely by the fact that blacks succeed in registering themselves to vote in the same degree as whites. “Inequality of access is an inference which flows from the existence of economic and educational inequalities.” Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 189, 145 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). The legislative history of the 1982 Amendments suggests that the focus ought not to be confined to registration and voting statistics.

The initial effort to implement the Voting Rights Act focused on registration. More than a million black citizens were added to the voting rolls from 1965 to 1972. It is not surprising, therefore, that to many Americans, the Act is synonymous with achieving minority registration. But registration is only the first hurdle to full effective participation in the political process. As the Supreme Court said in its interpretation of the Act:

“The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.”

Quoting Allen v. Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833, 22 L.Ed.2d 1 (1969).

Senate Report at 6, reprinted in 1982 U.S. Code Cong. & Ad.News at 183 (emphasis added). The right to vote was never intended to be an exercise in futility. The legislative history notes that “there still are some communities in our Nation where racial politics do dominate the electoral process. In the context of such racial bloc voting ... a particular election method can deny minority voters equal opportunity to participate meaningfully in elections.” Id. at 33, reprinted in 1982 U.S.Code Cong. & Ad.News at 211 (emphasis added). It seems clear that the Voting Rights Act Amendments were intended to do more than establish an abstract right to participate in the political process — a right measured in isolation from the results of that participation. The right of access guaranteed by the Voting Rights Act must be meaningful and it must be effective.

This court has previously recognized the importance of giving practical effect to the underlying purpose of the Act. In the leading case interpreting the 1982 Amendments, a case relied on heavily by the majority, the court endorsed the view that “access” under the Act must be more than formal.

The defendants contend that it is “abundantly clear” that section 2 protects only “access to the political processes.” We reject any assertion that the statute as amended applies only to formal barriers to access such as literacy or residency tests. The goal of the Voting Rights Act has always been to ensure an effective right of participation. That this continues to be the case is made “abundantly clear” by the words of the amended statute and its history. The statute is violated if a protected class has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

Marengo County, 731 F.2d at 1556 (emphasis added).

The extent to which blacks have actually been elected to office may thus unquestionably be considered in determining whether a violation of the Act has occurred. 42 U.S.C. § 1973(b). Their success is an important measure of whether meaningful black access to the political process has been achieved.

Until today courts had never viewed black voter turnout or registration rates as dispositive of a claim under the Voting Rights Act. In United States v. Dallas County Commission, this court upheld a district court finding “that blacks are now registered in substantially equal numbers with whites,” but nevertheless found that a violation of the Act had occurred. 739 F.2d at 1538. In McMillan v. Escambia County, a Florida case, the court observed “no significant difference currently existing between black and white voter registration,” 784 F.2d at 1045, but nevertheless held that the record established a clear violation of Section 2. In Political Civil Voters Organization v. City of Terrell, despite evidence that blacks in Terrell, Texas were registered to vote in significantly higher proportions than whites, the court found that the city’s at-large election system violated the fourteenth and fifteenth amendments. 565 F.Supp. at 342. In Marengo County this court stated that past discrimination leading to present socio-economic disadvantages “can reduce participation and influence in political affairs.” 731 F.2d at 1567. The socio-economic situation was evaluated independently of registration rate and voter turnout statistics. Id. Moreover, we have no right to assume that black voter registration rates in Fort Lauderdale would not be higher but for the lingering effects of past discrimination. The interest of whites in the democratic process may not necessarily represent the upper limit of black interest in the process.

In analyzing a claim of vote dilution under Section 2 courts must consider a list of nine “typical factors” derived from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973), aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Marengo County, 731 F.2d at 1565 n. 32. One of those factors is the extent to which a history of official discrimination affects the right of a minority group to register or vote. Senate Report at 28, reprinted in 1982 U.S.Code Cong. & Ad. News at 206. But the rate of minority registration and voting is only one factor that must be considered in determining whether there has been a denial of access to the political process. As the majority notes a denial of the participatory rights protected by the Act must be proved by a “totality of circumstances.” Ante at 1530. No single factor, standing alone, is dispositive. Today’s decision, however, strongly suggests that unless plaintiffs in a Voting Rights Act case can prove that an election system has reduced black voter registration and turnout no violation of the Act is possible. There is no support for this proposition in the language of the Act or in the legislative history.

For authority the majority and the defendants rely on Collins v. City of Norfolk, 768 F.2d 572 (4th Cir.1985). In Collins, however, the Fourth Circuit viewed relatively high black voter turnout as one of many facts “which generally show[ed] improvement in the status and circumstances of blacks in Norfolk.” 768 F.2d at 575. Unlike the majority in this case, the Fourth Circuit did not seek to establish poor black voter turnout as the sine qua non of a Section 2 violation. I am not prepared to say that conditions in Fort Lauderdale approximate those in the Norfolk merely because in both cities black voter turnout exceeds that of whites. Nevertheless, if the Fourth Circuit in Collins viewed high black voter turnout as dispositive of the issue of black access to the political process then I must respectfully disagree with that court’s view of the law.

At the same time, I cannot deny that both Collins and McCord raise important questions about the direction of the civil rights movement and, for that matter, about the nature of the right to vote. Can the political process be said to be open to blacks only if they actually succeed in electing black candidates? Are blacks alone qualified to represent other blacks? The logic of the NAACP Legal Defense Fund in this case, and of the Lawyer’s Committee for Civil Rights Under Law in Collins, suggests that the answer to both those questions ought to be a resounding “yes.” Yet, there is something disturbing about the position the civil rights bar has taken in these two cases. There is an inherent tension in the voting rights cases between the desire to insure that minority interests are adequately represented and the reluctance to institute a judicially-imposed system of de facto proportional rep-, resentation. “A district judge adopting districting plans to replace an invalidated at-large system must adhere to a middle road. While a court must avoid drafting a plan as a device for installing proportional representation, so also, the court cannot blind itself to the effect of its districting plan on racial groups.” Jones v. City of Lubbock, 727 F.2d at 386. “[T]he tension between an impact-based test of lawfulness and a rejection of a right to proportional representation defies easy resolution.” Velasquez v. City of Abilene, 725 F.2d at 1024 (Higginbotham, J., specially concurring). See also Marengo County, 731 F.2d at 1565 nn. 30-31. In a closely related context, one commentator has observed that “[t]wo fundamental values underlie the Supreme Court’s debate about constitutional rights in voting: majority rule and minority representation.” Note, The Constitutional Imperative of Proportional Representation, 94 Yale L.J. 163 (1984).

The Voting Rights Act tiptoes along the razor’s edge demarcating these two conflicting principles. It is not for us to alter the line drawn by Congress. Under the Voting Rights Act an at-large election plan is unlawful if there is a history of discrimination, if there is. racially-polarized voting, and if minority groups are consistently underrepresented.

I would reverse the district court and remand with instructions to devise a remedy.