Jeffers v. Tucker , 847 F. Supp. 655 ( 1994 )

RICHARD S. ARNOLD, Chief Circuit Judge.

In 1989, this Court found that portions of Arkansas’s 1981 state-legislative-redistricting plan violated Section 2 of the Voting Rights Act. Jeffers v. Clinton, 730 F.Supp. 196 (E.D.Ark.1989), aff'd mem., 498 U.S. 1019, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991). In 1990, the Court ordered the State to remedy these violations by creating additional black-majority legislative districts. 740 F.Supp. 585 (E.D.Ark.1990), appeal dismissed on motion of appellants, 498 U.S. 1129, 111 S.Ct. 1096, 112 L.Ed.2d 1200 (1991). Later that year, we approved, with modifications to some districts, the remedial redistrieting scheme proposed by the Arkansas Board of Apportionment. 756 F.Supp. 1195 (E.D.Ark.1990), aff'd mem., 498 U.S. 1019, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991). It was this scheme which was used in the 1990 elections, under which a total of twelve black persons were elected to the 1991 Arkansas General Assembly — as compared with four in 1980.

Although we gave our approval to the Board’s plan for 1990, we retained jurisdiction over the case to enable the plaintiffs to lodge objections concerning modifications made following the 1990 census. 740 F.Supp. at 602. Some of the plaintiffs did make timely objections to the Board’s new plan, which was completed in 1991. Since then, the Pulaski County plaintiffs have settled with the State. We are left with the claims of a group of plaintiffs from East Arkansas, residents of the Mississippi Delta. Their objection is that, in fashioning its 1991 plan, the Board of Apportionment did not go far enough in its efforts to remedy past discrimination. The plaintiffs charge that the Board’s plan for the Delta provided for only four House of Representatives districts in which a majority of the voting-age population is black, when five could have been drawn, and created only one such Senate district, when two were possible. Our task is to determine whether the State’s redistrieting plan violates § 2 of the Voting Rights Act because it fails to create additional black-majority districts. For the following reasons, we uphold the State’s plan.

I.

Under the Voting Rights Act, as amended in 1982, no “standard, practice, or procedure shall be imposed or applied by any State ... in a manner which 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). In order to prove a violation of the Act, members of the protected class must demonstrate that, as a result of the challenged practice or structure, they “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section 1973(b); Thornburg v. Gingles, 478 U.S. 30, 44, 106 S.Ct. 2752, 2763, 92 L.Ed.2d 25 (1986). “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id. at 47, 106 S.Ct. at 2764.

As a preliminary matter, we note that the plaintiffs have broadly claimed that the law requires the State to maximize a minority group’s representation. However, “[t]he Voting Rights Act does not require, invariably and in every instance, that districts be drawn so as to maximize minority political power. Such a result would be akin to a requirement of proportional representation, which the Voting Rights Act itself rejects.” West v. Clinton, 786 F.Supp. 803, 806 (W.D.Ark.1992) (three-judge court).¹ Likewise, we reject the defendants’ claim that it is an absolute defense to a vote-dilution claim that, under the Board’s plan, blacks have achieved representation in the legislature which is approximately proportionate to their numbers in the upper Delta. Gingles indicates that persistent proportional representation is inconsistent with allegations that minority voters have an unequal ability to elect the representatives of their choice. 478 U.S. at 77, 106 S.Ct. at 2780. We doubt whether one election under the Board’s existing plan, coupled with one election under the Board’s first remedial (pre-census) plan, can be considered the basis for a finding of “persistent” proportionality. Instead, we tend to agree that, although “[i]t is not our goal ... to draw as many minority districts as possible ... we should draw as many as can be reasonably done.” DeGrandy v. Wetherell, 794 F.Supp. 1076, 1091 (N.D.Fla.1992) (Vinson, J., specially concurring), probable jurisdiction noted, 113 S.Ct. 1249 (1993).

In evaluating claims of vote dilution, the reviewing court is to examine “the impact of the contested structure ... on minority electoral opportunities on the basis of objective factors.” Gingles, supra, 478 U.S. at 44, 106 S.Ct. at 2768 (citations omitted). The court should consider the factors contained in the Senate Judiciary Committee Report which accompanied passage of the 1982 Amendments. They include:

1. [T]he extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

Additional factors that in some cases have had probative value as a part of plaintiffs’ evidence to establish a violation are:

whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.

whether the policy underlying the state or political subdivision’s -use of such voting qualification, prerequisite to voting, or standard, practice, or procedure is tenuous.

S.Rep. No. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong, and Admin.News 177, 206-07.

While many or all of the Senate Report factors may be relevant to a claim of vote dilution under the Act, at a minimum, a plaintiff seeking to establish a violation of § 2 must satisfy three preconditions set out in Gingles:

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.

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Second, the minority group must be able to show that it is politically cohesive.

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Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed ... — usually to defeat the minority’s preferred candidate.

478 U.S. at 50-51, 106 S.Ct. at 2766-67. The plaintiffs bear the initial burden of proving these preconditions. Voinovich v. Quilter, - U.S. -, -, 113 S.Ct. 1149, 1156, 122 L.Ed.2d 500 (1993). In order to assess their claims, the existing plan must be compared to “an ideal electoral system which does not contain the challenged structure.” Brewer v. Ham, 876 F.2d 448, 455 (5th Cir.1989); see also Gingles, 478 U.S. at 88, 106 S.Ct. at 2785 (O’Connor, J., concurring). We must bear in mind, however, that where, as here, a political jurisdiction has responded to a previous judicial finding of vote dilution with a proposed remedy, we may not “simply substitute [our] judgment of a more equitable remedy for that of the legislative body; [we] may only consider whether the proffered remedial plan is legally unacceptable because it violates anew constitutional or statutory voting rights — that is, whether it fails to meet the same standards applicable to an original challenge of a legislative plan in place.” McGhee v. Granville County, 860 F.2d 110, 115 (4th Cir.1988) (county’s plan for electing board of commissioners) citing Upham v. Seaman, 456 U.S. 37, 42, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1982).

II.

The parties have submitted this dispute for resolution based on the factual record already established in the case and on several stipulations.² These stipulations include maps of the existing Board plan as well as the plaintiffs’ proposed plan — the latter representing the plaintiffs’ conception of the “ideal” plan. With respect to the Senate Report factors, and the Gingles factors, the parties stipulate that this Court has already found that:

A. Arkansas has a long history of official discrimination in voting;

B. Racial discrimination still exists today in the Delta area of Arkansas; it has not completely disappeared.

C. Housing discrimination existed in the State of Arkansas in the past.

D. Neighborhoods in the cities of Eastern Arkansas are generally identifiable as “black” or “white.”

E. At least to some extent, voting in Mississippi, Crittenden, St. Francis, Phillips, Monroe, and Lee Counties is racially polarized, i.e., with whites generally voting for whites and blacks generally voting for blacks when white and black candidates run against each other.

F. Historically, blacks have had lower economic status in the state and especially in the Delta area of the state.

G. From Reconstruction through 1972, no blacks were ever members of the Arkansas General Assembly.

H. Not since Reconstruction has a black person been elected to the Arkansas General Assembly except from a district with a majority black voting age population.

I. Overt racial appeals have occurred in campaigns in which a white candidate is running against a black candidate.

J. African Americans are a politically cohesive group in eastern Arkansas.

K. White voters in eastern Arkansas usually vote sufficiently as a bloc to defeat the African American community’s choice except when the candidate of choice runs in a district in which African Americans are a voting majority.

Stipulation and Proposed Procedure, 3-4. Of particular significance, in light of the Gingles preconditions, are items J. and K., which acknowledge prior findings by this Court that blacks in East Arkansas are a politically cohesive group and bloc voting is prevalent in that part of the State. We see no reason not to accept these two aspects of the plaintiffs’ prima facie case as established under Gingles. Defendants argue that the plaintiffs should be required to prove anew the presence of bloc voting that usually defeats minority-preferred candidates under the Board’s current plan. We reject the Board’s contention that the long history of bloc voting resulting in white electoral domination, established earlier in this case, must be proved afresh under the new scheme. The Board’s approach to this factor relies on an unduly cramped reading of the parties’ stipulations, as well as an overly broad understanding of the requirement that any § 2 violation must be proved anew. Hence, we find that the plaintiffs have met their burden with respect to the second and third Gingles factors.

III.

An additional Gingles precondition remains, however: compactness. As Justice O’Connor stated in her concurring opinion, “a court should calculate minority voting strength by assuming that the minority group is concentrated in a single-member district in which it constitutes a voting majority. Where the minority group is not large enough, geographically concentrated enough, or politically cohesive enough for this to be possible, the minority group’s claim fails.” 478 U.S. at 90, 106 S.Ct. at 2787 (emphasis supplied). In this case, the parties have stipulated that “[t]he African American population in the upper Delta is sufficiently large to constitute a majority in one additional single-member state house district and one additional single-member state senate district.”³ However, we must further inquire whether such districts can be drawn consistently with applicable requirements.

One aspect of compactness is the percentage of minorities in the districts formed by the competing plans. We agree with the plaintiffs that creation of districts in which the minority group comprises a majority of the voting-age population constitutes the preferred remedy under the Act. As another court recently stated, “the language of § 2 and its legislative purposes strongly favor the creation of majority black districts and visible black representation, instead of ‘influence’ districts, when block voting is racially polarized and there is a history of racial discrimination.” Rural West Tennessee African-American Affairs Council, Inc. v. McWherter, 836 F.Supp. 453, 466 (W.D.Tenn.1993) (three-judge court). In the eyes of the plaintiffs, the Board has impermissibly chosen to establish influence districts where majority districts were possible.

However, in the past this Court has ruled that, in fashioning remedies for Voting Rights Act violations, the creation of districts with bare majorities is not • enough for a complete remedy. In order to compensate for historically low rates of voter registration and turnout, “minorities must have something more than a mere majority even of voting age population in order to have a reasonable opportunity to elect a representative of their choice.” Smith v. Clinton, 687 F.Supp. 1361, 1362-63 (E.D.Ark.) (three-judge court), aff'd mem., 488 U.S. 988, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988), quoting Ketchum v. Byrne, 740 F.2d 1398, 1413 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985). When voting-age-population figures are used, we have found that creating a district with a 60% nonwhite majority provides a sufficient cushion for an effective remedy. Smith, 687 F.Supp. at 1363; Jeffers, 756 F.Supp. at 1198-99. We have also said that “a 58% BVAP [black-voting-age population] district with no white incumbent is the equivalent in practical political terms” of a 60.55% BVAP district with an incumbent. Id. at 1200. To the Board, then, the “influence” districts about which the plaintiff complains, at least in the House, are merely the price of drawing supermajority districts elsewhere.

Comparing the two plans in this case,⁴ we note that, for the House, the Board’s 1991 blueprint created four majority-black districts in the Delta. Three of those districts are supermajority districts, with 60% or more black-voting-age population (“BVAP”); the fourth district is 56.32% black. For the Senate, the Board created one supermajority district. Altogether, the Board’s plan establishes four supermajority districts. The House plan promoted by plaintiffs creates five majority-black districts, but only one of these is a supermajority district. The plaintiffs’ Senate plan includes two majority-black districts, one of which is a supermajority district. The plaintiffs’ plan, then, creates a total of two supermajority districts, compared with the Board’s four.⁵

With respect to the House, the plaintiffs argue that 60% supermajorities are no longer necessary in certain districts, including some now represented by black incumbents. They argue that a majority of 55%-56% is enough where there is no white incumbent. The defendants point out, though, that this represents a change of position. What once was urged, during the first round of this litigation, as essential to allowing blacks to compete in Delta districts (the supermajority district) is now characterized as dilutive of black voting strength. Moreover, the Board adds, when this Court approved the pre-1990~census plan, we actually required the State to modify its plan in order to add additional supermajority districts. It would be perverse, the State contends, for this Court to find that the existing plan violates § 2 when it was prepared in good faith with the intention of complying with our clear supermajority requirements. We agree. Furthermore, just as we think that one election (two, if we include the election under the 1990 plan) is not enough to warrant a conclusion that bloc voting is no longer a significant problem, neither do we think that we have sufficient experience to say that supermajorities are no longer required in the Delta.

The plaintiffs’ proposed Senate plan is a different matter. First, the plaintiffs envision a northern senatorial district in Eastern Arkansas with a 61% BVAP, which would encompass the residence of an incumbent black senator. Second, in a southern senatorial district, the BVAP would be 59%. In this district, the plaintiffs point out, there is no incumbent. Therefore, the plaintiffs reason, the below-60% figure is justified. Defendants do not appear to attack the plaintiffs’ proposed Senate district on supermajority grounds, as such. Rather, they express concern that, in order to construct the additional Delta senatorial district, the plaintiffs actually withdraw a substantial number of black voters from a third district (existing SD 8), which is also majority-black. Not only would this reduce the percentage majority in the affected district, but, the Board suggests, also would reduce the size of the affected district so much that it would exceed the maximum variance allowable by the Board’s plan under the principle of one person, one vote. These problems, while not fatal in and of themselves, are significant. And the plaintiffs’ Senate plan raises other concerns.

The recent Supreme Court case of Shaw v. Reno made clear that “reapportionment is one area in which appearances do matter.” — U.S. -, -, 113 S.Ct. 2816, 2827, 125 L.Ed.2d 511 (1993). Shaw held that plaintiffs stated a cognizable claim when they challenged, on equal-protection grounds, North Carolina congressional redistricting “so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification.” Id. at -, 113 S.Ct. at 2824.⁶ Shaw stated that redistricting legislation which is “so bizarre” that it is “unexplainable on grounds other than race,” is subject to strict scrutiny under the Equal Protection Clause. Id. at -, 113 S.Ct. at 2825. An example of such a case, Shaw stated, would be where “a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions.” Id. at -, 113 5.Ct. at 2827.

There is no equal-protection challenge involved in the present case. However, it is clear that any plan which the Court would adopt as preferable to the Board’s existing plan — a plan which has been structured largely in response to this Court’s previous orders — would have to be consistent with the spirit of Shaw. We agree with the defendants that several of the plaintiffs’ proposed districts are troubling in this regard.⁷ Perhaps the most troubling are the plaintiffs’ Senate districts. While they are nowhere nearly so unusual in shape as the 1-85 district at issue in Shaw, the Senate districts are anything but compact, especially striking when compared with the existing SD 22. The plaintiffs’ proposed SD 22, the northern district, simply hugs the Mississippi, while the southern district, SD 7, extends a series of long, slender fingers deeply to the west from the River. Both cut across numerous communities and political boundaries. The peculiar shape of these districts, as well as that of some of plaintiffs’ House districts, is precisely due to the lack of the compact minority population required by Gingles. Because the plaintiffs have failed to satisfy the compactness precondition, with respect to both the House and Senate, we must reject their claim.

IV.

We conclude that plaintiffs have failed to prove that the Board of Apportionment’s post-1990-census redistricting plan results in less opportunity for black Arkansans who reside in the Delta “to participate in the political process and to elect representatives of their choice.” The bottom line is that the black population in this area is simply too widely dispersed for us to hold that the Board has violated § 2 by refusing to draw the additional House and Senate districts which the plaintiffs have requested. We hold that the Board’s 1991 redistricting plan satisfies the requirements of § 2 of the Voting Rights Act with respect to the East Arkansas areas which are the subject of the instant challenge. The plaintiffs’ objections are dismissed, and judgment will be entered accordingly.

It is so ordered.

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1 . The Act states that "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. § 1973(b).

2 . We commend the parties for taking this step. Given the exhaustive factfinding which has already taken place in this case, an additional trial would have been a poor use of time. By presenting us with stipulations, the parties have allowed us to focus on the significant legal issues raised by the case.

3 . We are prepared to accept this stipulation as fact. The parties also attempted to stipulate that plaintiffs' proposed remedy districts are contiguous. We consider this a question of law, and hence are unwilling to make such a finding based solely on a stipulation. Further inspection confirms that the districts are indeed contiguous in the narrowest sense; whether they are sufficiently contiguous to satisfy Shaw v. Reno, - U.S. -, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), will be discussed later.

4 . The parties' plans include the following majority-black districts, each listed with their respective black-voting-age populations as a percentage of the total population. In addition, we have indicated whether there is an incumbent legislator, by race.

Board — House: HD 94: 56.32% (black incumbent); HD 95: 63.06% (black incumbent); HD 97: 61.95% (white incumbent); HD 99: 60.10% (black incumbent).

Plaintiffs — House: HD 38: 59.31%; HD 48: 62.-67%; HD 72: 55.04%; HD 74: 58.61%; HD 75: 55.24% (black incumbent). Plaintiffs also indicate that in none of the proposed districts is there a white incumbent.

Board — Senate: SD 22: 61.91% (black incumbent).

Plaintiffs — Senate: SD 7: 58.05% (no incumbent); SD 22: 60.18% (black incumbent).

Maps of the parties' plans are contained in an appendix to this opinion.

5 . The discrepancy may not be quite so large as these numbers suggest, though. Plaintiffs also include in their plans a few districts with BVAP’s between 58% and 60%; to the extent which these districts lack white incumbents, they are the functional equivalent of 60%-plus supermajority districts.

6 . The suit arose when North Carolina, which is subject to preclearance procedures under § 5 of the Act, redrew congressional districts under orders from the U.S. Department of Justice. North Carolina created a second majority-black district, one stretching hundreds of miles along an interstate-highway corridor, which was the subject of plaintiffs’ challenge.

7 . This remark is not intended to cast doubt on the validity of the districts in the Board’s existing plan. These districts are the result of a judicial decree which has become final, and no one has claimed that they violate the Equal Protection Clause.