Shirley M. Harvell v. Blytheville School ( 1997 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    __________
    No. 97-1364
    ___________
    Shirley M. Harvell; Emmanuel Lofton,     *
    Reverend; Hattie Middlebrook; Mary       *
    Alice Jones; Jacquelin Henton,           *
    *
    Appellees,                 *
    *
    v.                         *
    *
    Blytheville School District No. 5, a     *
    Public Body Corporate; William           *
    Tomlinson, Individually and as Board     *
    Member; Norvell Moore, Individually *
    and as Board Member; William Sullivan, *     Appeals from the United States
    Individually and as Board Member;        *   District Court for the
    Harold Sudbury, Jr., Individually and    *   Eastern District of Arkansas
    as Board Member; Helen Nunn, Dr.,        *
    Individually and as Board Member;        *
    Karen Fraser, Individually and as Board *
    Member; Steve Littrell, Individually and *
    as Board Member; William Stovall, III, *
    Individually and as Board Member;        *
    Blytheville School District No. 5,       *
    Board of Directors, also known as Bill *
    Stovall; Frank Ladd, Dr., Individually   *
    and in his official capacity as          *
    Superintendent of Blytheville School     *
    District No. 5,                          *
    *
    Appellants.                *
    __________
    No. 97-1448
    ___________
    Shirley M. Harvell; Emmanuel Lofton,     *
    Reverend; Hattie Middlebrook; Mary       *
    Alice Jones; Jacquelin Henton,           *
    *
    Appellants,                *
    *
    v.                         *
    *
    Blytheville School District No. 5, a     *
    Public Body Corporate; William           *
    Tomlinson, Individually and as Board     *
    Member; Norvell Moore, Individually *
    and as Board Member; William Sullivan, *
    Individually and as Board Member;        *
    Harold Sudbury, Jr., Individually and    *
    as Board Member; Helen Nunn, Dr.,        *
    Individually and as Board Member;        *
    Karen Fraser, Individually and as Board *
    Member; Steve Littrell, Individually and *
    as Board Member; William Stovall, III, *
    also known as Bill Stovall, Individually *
    and as Board Member; Blytheville         *
    School District No. 5, Board of          *
    Directors; Frank Ladd, Dr., Individually *
    and in his official capacity as          *
    Superintendent of Blytheville School     *
    District No. 5,                          *
    *
    Appellees.                 *
    -2-
    ___________
    Submitted: June 9, 1997
    Filed: September 25, 1997
    ___________
    Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
    WOLLMAN, Circuit Judge.
    ___________
    WOLLMAN, Circuit Judge.
    In Harvell v. Blytheville School District #5, 
    71 F.3d 1382
    (8th Cir. 1995) (en
    banc), cert. denied, 
    116 S. Ct. 1876
    (1996), we held that the plaintiffs had proved that
    the at-large majority-vote electoral scheme implemented in 1987 for the Blytheville
    school board violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (the Act).
    We remanded the case to the district court1 for entry of an appropriate remedial decree.
    
    Id. at 1391.
    The school district appeals from the decree entered on remand. The
    plaintiffs have cross-appealed from the district court’s refusal to order a special
    election. We affirm.
    On remand, the plaintiffs and the school district each proposed remedial
    redistricting plans. According to 1990 census data, blacks account for 37.5% of
    Blytheville’s population; the total black voting age population (BVAP) of the district
    is 31.04%. The school district proposed the “5-2 plan,” which called for a seven-
    member school board consisting of five representatives elected from single-member
    1
    The Honorable Steven M. Reasoner, Chief Judge, United States District Court
    for the Eastern District of Arkansas.
    -3-
    districts and two members elected at-large.2 Under the 5-2 plan, two of the single-
    member zones would have a BVAP of greater than 60%. The plaintiffs proposed the
    “Lynch plan,”3 which called for an eight-member school board consisting of
    representatives elected from eight single-member districts. Under the Lynch plan, three
    of the districts would be majority-minority districts, having a BVAP of 57.3% or
    higher.
    We concluded our en banc opinion by cautioning that the district court should
    “steer clear of the type of racial gerrymandering proscribed in Miller [v. Johnson, 
    115 S. Ct. 2475
    (1995)], while keeping in mind the need to vindicate the rights of the
    minority 
    voters,” 71 F.3d at 1391
    . Referring to this admonition, the district court
    indicated that it felt compelled to implement the Lynch plan. The district court
    expressed its concern that race was the only reason for the redrawing of the districts.
    The court also stated that it read our en banc opinion as prohibiting the adoption of any
    election scheme composed in whole or in part of an at-large voting component. The
    court went on to conclude, however, that the Lynch plan did not represent an exercise
    in racial gerrymandering, finding that the districts created thereunder were compact in
    nature and followed natural boundaries, streets, and neighborhoods. Accordingly, the
    court ordered that the Lynch plan be implemented as soon as practicable.
    A state’s redistricting responsibility “should be accorded primacy to the extent
    possible when a federal court exercises remedial power.” Lawyer v. Department of
    Justice, 
    117 S. Ct. 2186
    , 2192-93 (1997). See also Abrams v. Johnson, 
    117 S. Ct. 1925
    , 1933 (1997); Upham v. Seamon, 
    456 U.S. 37
    , 42-43 (1982). The district court
    need not defer to a state-proposed remedial plan, however, if the plan does not
    2
    This plan was prepared in accordance with Ark. Code Ann. § 6-13-
    631(b)(1)(A). See 
    Harvell, 71 F.3d at 1390
    n.10.
    3
    Named for James Lynch, who prepared the eight-member plan on behalf of the
    plaintiffs.
    -4-
    completely remedy the violation or if the plan itself violates section 2 of the Act.
    Williams v. City of Texarkana, Ark., 
    32 F.3d 1265
    , 1268 (8th Cir. 1994).
    Although we agree with the school district that the district court erred in reading
    our en banc opinion as foreclosing any election plan that included an at-large voting
    component, we do not agree that this misapprehension vitiates the district court’s
    decision to adopt the Lynch plan. The district court acknowledged its duty to adopt a
    plan that would steer clear of racial gerrymandering and yet would vindicate the rights
    of the minority voters within the Blytheville School District. Given the history of
    voting practices within the school district, we cannot say that the district court erred in
    finding that the adoption of the Lynch plan was necessary to accomplish both goals.
    The school district acknowledges that proportionality is not a safe harbor, see
    Johnson v. De Grandy, 
    512 U.S. 997
    , 1017-1021 (1994), but argues that the
    proportionality created by the two majority-minority districts in its proposed 5-2 plan
    alters the totality of the circumstances to such an extent that the inclusion of two at-
    large districts does not violate Section 2 of the Act. The two majority-minority districts
    would represent 28.5% of the school board, which is less than the BVAP of 31.04%
    and the total black population of 37.5%. Even assuming that 28.5% of the school
    board is relatively proportional to 31.04% BVAP, such proportionality does not
    preclude a finding of a Section 2 violation. See 
    Harvell, 71 F.3d at 1388
    . We
    previously found racially polarized voting in Blytheville and the lack of a legally
    significant white cross-over vote, and we noted that the previous at-large election
    scheme removed the potential for minority-preferred candidates winning on the basis
    of a split white vote. See 
    id. at 1387,
    1389-90. The inability of black voters to affect
    the at-large elections under the 5-2 plan is no different from what it was under the
    previous electoral scheme. The 5-2 plan thus creates an inequality in opportunity for
    black voters to “participate in the political process and to elect representatives of their
    choice.” 42 U.S.C. §1973(b); see Thornburg v. Gingles, 
    478 U.S. 30
    , 47 (1986);
    
    Harvell, 71 F.3d at 1389-91
    .
    -5-
    The school district alleges that the Lynch plan violates the Equal Protection
    Clause because race was the overriding criterion used in drawing the eight district
    boundaries. See Shaw v. Reno, 
    509 U.S. 630
    , 649 (1993).
    To prove such a claim, it must be shown “either through circumstantial evidence
    of a district’s shape and demographics or more direct evidence going to legislative
    purpose, that race was the predominant factor” motivating the placement of “a
    significant number of voters within or without a particular district.” 
    Miller, 115 S. Ct. at 2488
    . Strict scrutiny does not apply, however, merely because majority-minority
    districts were intentionally created or the district lines were drawn with consciousness
    of race. See Bush v. Vera, 
    116 S. Ct. 1941
    , 1951 (1996) (plurality opinion). There is
    a distinction between “being aware of racial considerations and being motivated by
    them,” and the awareness of race does not mean that it predominated in the redistricting
    process. 
    Miller, 115 S. Ct. at 2488
    . Where traditional districting principles such as
    compactness, contiguity, and respect for political subdivisions or communities with
    actual shared interests have not been subordinated to race, there is no equal protection
    violation. See id..
    As indicated above, the district court found that the districts created under the
    Lynch plan had not been “drawn in such a bizarre manner as to constitute the type of
    racial gerrymandering proscribed in Miller . . . .” The court found that the districts “are
    generally compact in nature and follow natural boundaries, streets, and neighborhoods.”
    Our review of the district boundaries established by the Lynch plan satisfies us
    that the district court did not err in making these findings. The districts do not resemble
    the bizarre shapes that were present in other cases. See 
    Shaw, 509 U.S. at 635-36
    ;
    
    Miller, 115 S. Ct. at 2484
    , 2496; 
    Bush, 116 S. Ct. at 1965-67
    . The districts do not split
    voting precincts or other political units. Cf. 
    Bush, 116 S. Ct. at 1959
    ; 
    Miller, 115 S. Ct. at 2484
    ; 
    Shaw, 509 U.S. at 636
    . The Lynch plan was drawn against a background of
    no pre-existing boundary lines, because there never before had been districts in
    -6-
    Blytheville. Lynch testified that there were “four or five criteria that I try to make fit
    in any kind of plan, and it’s tedious work, but it can be done.” He testified that those
    criteria included developing majority black districts and avoiding dilution of the black
    vote, complying with the one-person one-vote requirement, maintaining compactness
    in districts, using existing natural and political boundaries, and districting voters in
    accordance with the organization of the county clerk’s voter registration records.
    It is clear beyond question that the Lynch plan takes race into account. The plan
    does not reject traditional, non-racial districting criteria, however. The circumstances
    surrounding the drawing of the Lynch plan are not akin to the situations in Miller and
    Shaw v. Hunt, 
    116 S. Ct. 1894
    (1996), where the pressure from the Department of
    Justice to maximize majority-minority districts (i.e. race) was the sole reason for
    drawing the boundary lines as they were, or the situation in Bush, where, although
    mixed motives were involved, race predominated over traditional districting criteria.
    See 
    Miller, 115 S. Ct. at 2489-90
    ; 
    Shaw, 116 S. Ct. at 1901
    ; 
    Bush, 116 S. Ct. at 1952
    -
    60. This case is also unlike Abrams, in which the district court, in the course of
    devising a remedial plan, found that a second majority-minority district could not be
    drawn unless race was the only factor used in drawing district lines. See 
    Abrams, 117 S. Ct. at 1934
    . As we pointed out in our en banc opinion, the black community in
    Blytheville is compact and politically cohesive and the minority voters vote as a bloc.
    See 
    Harvell, 71 F.3d at 1386-87
    . In creating majority-minority districts, the Lynch plan
    thus preserves communities with actual shared interests. Cf. 
    Miller, 115 S. Ct. at 2490
    (lack of actual shared interests).
    We conclude, therefore, that the district court did not err in adopting the Lynch
    plan and in rejecting the school district’s 5-2 plan.
    The plaintiffs have cross-appealed, challenging the district court’s refusal to order
    a special election and generally challenging the pace of implementation. Because no
    stay of the district court’s order has been issued, the September 1997 school board
    -7-
    elections will be held under the terms of the district court’s order. Thus the cross-
    appeal is essentially moot.
    The judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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