| City of Mobile v. Bolden
(No. 77-1844)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Blackmun ] | Concurrence
[ Stevens ] | Dissent
[ Brennan ] | Dissent
[ White ] | Dissent
[ Marshall ] |
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City of Mobile v. Bolden
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MR. JUSTICE WHITE, dissenting.
In White v. Regester, 412 U.S. 755 (1973), this Court unanimously held the use of multimember districts for the election of state legislators in two counties in Texas violated the Equal Protection Clause of the Fourteenth Amendment because, based on a careful assessment of the totality of the circumstances, they were found to exclude Negroes and Mexican-Americans from effective participation in the political processes in the counties. Without questioning the vitality of White v. Regester and our other decisions dealing with challenges to multimember districts by racial or ethnic groups, the Court today inexplicably rejects a similar holding based on meticulous factual findings and scrupulous application of the principles of these cases by both the District Court and the Court of Appeals. The Court's decision is flatly inconsistent with White v. Regester, and it cannot be understood to flow from our recognition, in Washington v. Davis, 426 U.S. 229 (1976), that the Equal Protection Clause forbids only purposeful discrimination. Both the District Court and the [p95] Court of Appeals properly found that an invidious discriminatory purpose could be inferred from the totality of facts in this case. The Court's cryptic rejection of their conclusions ignores the principles that an invidious discriminatory purpose can be inferred from objective factors of the kind relied on in White v. Regester, and that the trial courts are in a special position to make such intensely local appraisals.
I
Prior to our decision in White v. Regester, we upheld a number of multimember districting schemes against constitutional challenges, but we consistently recognized that such apportionment schemes could constitute invidious discrimination
where the circumstances of a particular case may "operate to minimize or cancel out the voting strength of racial or political elements of the voting population."
Whitcomb v. Chavis, 403 U.S. 124, 143 (1971), quoting from Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 73, 88 (1966). In Whitcomb v. Chavis, supra, we noted that the fact that the number of members of a particular group who were legislators was not in proportion to the population of the group did not prove invidious discrimination absent evidence and findings that the members of the group had less opportunity than did other persons "to participate in the political processes and to elect legislators of their choice." 403 U.S. at 149.
Relying on this principle, in White v. Regester, we unanimously upheld a District Court's conclusion that the use of multimember districts in Dallas and Bexar Counties in Texas violated the Equal Protection Clause in the face of findings that they excluded Negroes and Mexican-Americans from effective participation in the political processes. With respect to the exclusion of Negroes in Dallas County,
the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic [p96] processes.
412 U.S. at 766. The District Court also referred to Texas' majority vote requirement and "place" rule, "neither in themselves improper nor invidious," but which "enhanced the opportunity for racial discrimination" by reducing legislative elections from the multimember district to "a head-to-head contest for each position." Ibid. We deemed more fundamental the District Court's findings that only two Negro state representatives had been elected from Dallas County since Reconstruction, and that these were the only two Negroes ever slated by an organization that effectively controlled Democratic Party candidate slating. Id. at 766-767. We also noted the District Court's findings that the Democratic Party slating organization was insensitive to the needs and aspirations of the Negro community and that, at times, it had employed racial campaign tactics to defeat candidates supported by the black community. Based on this evidence, the District Court concluded that the black community generally was "not permitted to enter into the political process in a reliable and meaningful manner." Id. at 767. We held that
[t]hese findings and conclusions are sufficient to sustain the District Court's judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them.
Ibid.
With respect to the exclusion of Mexican-Americans from the political process in Bexar County, the District Court referred to the continuing effects of a long history of invidious discrimination against Mexican-Americans in education, employment, economics, health, politics, and other fields. Id. at 768. The impact of this discrimination, coupled with a cultural and language barrier, made Mexican-American participation in the political life of Bexar County extremely difficult. Only five Mexican-Americans had represented Bexar County in the Texas Legislature since 1880, and the county's legislative delegation "was insufficiently responsive to Mexican-American interests." Id. at 769.
Based on the totality of the circumstances, the District Court evolved its [p97] ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county.
Ibid. "[F]rom its own special vantage point," the District Court concluded that the multimember district invidiously excluded Mexican-Americans from effective participation in the election of state representatives. We affirmed, noting that we were
not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.
Id. at 769-770.
II
In the instant case, the District Court and the Court of Appeals faithfully applied the principles of White v. Regester in assessing whether the maintenance of a system of at-large elections for the selection of Mobile City Commissioners denied Mobile Negroes their Fourteenth and Fifteenth Amendment rights. Scrupulously adhering to our admonition that
[t]he plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question,
id. at 766, the District Court conducted a detailed factual inquiry into the openness of the candidate selection process to black. The court noted that "Mobile blacks were subjected to massive official and private racial discrimination until the Voting Rights Act of 1965," and that "[t]he pervasive effects of past discrimination still substantially affec[t] black political participation." 423 F.Supp. 384, 387 (SD Ala.1976). Although the District Court noted that, "[s]ince the Voting Rights Act of 1965, blacks register and vote without hindrance," the court found that "local political processes are not equally open" to blacks. Despite the fact that Negroes constitute more than 35% of the population of Mobile, no Negro has ever been elected to the Mobile [p98] City Commission. The plaintiffs introduced extensive evidence of severe racial polarization in voting patterns during the 1960's and 1970's with "white voting for white and black for black if a white is opposed to a black," resulting in the defeat of the black candidate, or, if two whites are running, the defeat of the white candidate most identified with blacks. Id. at 388. Regression analyses covering every City Commission race in 1965, 1969, and 1973, both the primary and general election of the county commission in 1968 and 1972, selected school board races in 1962, 1966, 1970, 1972, and 1974, city referendums in 1963 and 1973, and a countywide legislative race in 1969 confirmed the existence of severe bloc voting. Id. at 388-389. Nearly every active candidate for public office testified that, because of racial polarization "it is highly unlikely that anytime in the foreseeable future, under the at-large system, . . . a black can be elected against a white." Id. at 388. After single-member districts were created in Mobile County for state legislative elections, "three blacks of the present fourteen member Mobile County delegation have been elected." Id. at 389. Based on the foregoing evidence, the District Court found
that the structure of the at-large election of city commissioners, combined with strong racial polarization of Mobile's electorate, continues to effectively discourage qualified black citizens from seeking office or being elected, thereby denying blacks equal access to the slating or candidate selection process.
Ibid.
The District Court also reviewed extensive evidence that the City Commissioners elected under the at-large system have not been responsive to the needs of the Negro community. The court found that city officials have been unresponsive to the interests of Mobile Negroes in municipal employment, appointments to boards and committees, and the provision of municipal services in part because of "the political fear of a white backlash vote when black citizens' needs are at stake." Id. at 392. The court also found that there is no clear-cut state policy preference for at-large elections, and that past discrimination [p99] affecting the ability of Negroes to register and to vote "has helped preclude the effective participation of blacks in the election system today." Id. at 393. The adverse impact of the at-large election system on minorities was found to be enhanced by the large size of the city-wide election district, the majority vote requirement, the provision that candidates run for positions by place or number, and the lack of any provision for at-large candidates to run from particular geographical subdistricts.
After concluding its extensive findings of fact, the District Court addressed the question of the effect of Washington v. Davis, 426 U.S. 229 (1976), on the White v. Regester standards. The court concluded that the requirement that a facially neutral statute involve purposeful discrimination before a violation of the Equal Protection Clause can be established was not inconsistent with White v. Regester in light of the recognition in Washington v. Davis, supra at 241-242, that the discriminatory purpose may often be inferred from the totality of the relevant facts, including the discriminatory impact of the statute. 423 F.Supp. at 398. After noting that,
whenever a redistricting bill of any type is proposed by a county delegation member, a major concern has centered around how many, if any, blacks would be elected,
id. at 397, the District Court concluded that there was "a present purpose to dilute the black vote . . . resulting from intentional state legislative inaction. . . ." Id. at 398. Based on an "exhaustive analysis of the evidence in the record," the court held that "[t]he plaintiffs have met the burden cast in White and Whitcomb," and that "the multi-member at-large election of Mobile City Commissioners . . . results in an unconstitutional dilution of black voting strength." Id. at 402.
The Court of Appeals affirmed the District Court's judgment in one of four consolidated "dilution" cases decided on the same day. Bolden v. Mobile, 571 F.2d 238 (CA5 1978); Nevett v. Sides, 571 F.2d 209 (CA5 1978) (Nevett II); Blacks United for lasting leadership, Inc. v. Shreveport, 571 [p100] F.2d 248 (CA5 1978); Thomasville Branch of NAACP v. Thomas County, Georgia, 571 F.2d 257 (CA5 1978). In the lead case of Nevett II, supra, the Court of Appeals held that, under Washington v. Davis, supra, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), "a showing of racially motivated discrimination is a necessary element" for a successful claim of unconstitutional voting dilution under either the Fourteenth or Fifteenth Amendment. 571 F.2d at 219. The court concluded that the standards for proving unconstitutional voting dilution outlined in White v. Regester were consistent with the requirement that purposeful discrimination be shown because they focus on factors that go beyond a simple showing that minorities are not represented in proportion to their numbers in the general population. 571 F.2d at 219-220, n. 13, 222-224.
In its decision in the instant case, the Court of Appeals reviewed the District Court's findings of fact, found them not to be clearly erroneous, and held that they
compel the inference that [Mobile's at-large] system has been maintained with the purpose of diluting the black vote, thus supplying the element of intent necessary to establish a violation of the fourteenth amendment, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 . . . (1976), and the fifteenth amendment, Wright v. Rockefeller, 376 U.S. 52 . . . (1964).
Id. at 245. The court observed that the District Court's "finding that the legislature was acutely conscious of the racial consequences of its districting policies," coupled with the attempt to assign different functions to each of the three City Commissioners "to lock in the at-large feature of the scheme," constituted "direct evidence of the intent behind the maintenance of the at-large plan." Id. at 246. The Court of Appeals concluded that
the district court has properly conducted the "sensitive inquiry into such circumstantial and direct evidence of intent as may be available" that a court must undertake in "[d]etermining whether invidious discriminatory [p101] purpose was a motivating factor" in the maintenance or enactment of a districting plan.
Ibid., quoting Arlington Heights v. Metropolitan Housing Dev. Corp., supra at 266.
III
A plurality of the Court today agrees with the courts below that maintenance of Mobile's at-large system for election of City Commissioners violates the Fourteenth and Fifteenth Amendments only if it is motivated by a racially discriminatory purpose. The plurality also apparently reaffirms the vitality of White v. Regester and Whitcomb v. Chavis, which established the standards for determining whether at-large election systems are unconstitutionally discriminatory. The plurality nonetheless casts aside the meticulous application of the principles of these cases by both the District Court and the Court of Appeals by concluding that the evidence they relied upon "fell far short of showing" purposeful discrimination.
The plurality erroneously suggests that the District Court erred by considering the factors articulated by the Court of Appeals in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), to determine whether purposeful discrimination has been shown. This remarkable suggestion ignores the facts that Zimmer articulated the very factors deemed relevant by White v. Regester and Whitcomb v. Chavis -- a lack of minority access to the candidate selection process, unresponsiveness of elected officials to minority interests, a history of discrimination, majority vote requirements, provisions that candidates run for positions by place or number, the lack of any provision for at-large candidates to run from particular geographical subdistricts -- and that both the District Court and the Court of Appeals considered these factors with the recognition that they are relevant only with respect to the question whether purposeful discrimination can be inferred.
Although the plurality does acknowledge that "the presence of the indicia relied on in Zimmer may afford some evidence [p102] of a discriminatory purpose," it concludes that the evidence relied upon by the court below was "most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case." The plurality apparently bases this conclusion on the fact that there are no official obstacles barring Negroes from registering, voting, and running for office, coupled with its conclusion that none of the factors relied upon by the courts below would, alone, be sufficient to support an inference of purposeful discrimination. The absence of official obstacles to registration, voting, and running for office heretofore has never been deemed to insulate an electoral system from attack under the Fourteenth and Fifteenth Amendments. In White v. Regester, 412 U.S. 755 (1973), there was no evidence that Negroes faced official obstacles to registration, voting, and running for office, yet we upheld a finding that they had been excluded from effective participation in the political process in violation of the Equal Protection Clause because a multimember districting scheme, in the context of racial voting at the polls, was being used invidiously to prevent Negroes from being elected to public office. In Gomillion v. Lightfoot, 364 U.S. 339 (1960), and Terry v. Adams, 345 U.S. 461 (1953), we invalidated electoral systems under the Fifteenth Amendment not because they erected official obstacles in the path of Negroes registering, voting, or running for office, but because they were used effectively to deprive the Negro vote of any value. Thus, even though Mobile's Negro community may register and vote without hindrance, the system of at-large election of City Commissioners may violate the Fourteenth and Fifteenth Amendments if it is used purposefully to exclude Negroes from the political process.
In conducting "an intensely local appraisal of the design and impact" of the at-large election scheme, White v. Regester, supra, at 769, the District Court's decision was fully consistent with our recognition in Washington v. Davis, 426 U.S. at 242, that
an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, [p103] including the fact, if it is true, that the law bears more heavily on one race than another.
Although the totality of the facts relied upon by the District Court to support is inference of purposeful discrimination is even more compelling than that present in White v. Regester, the plurality today rejects the inference of purposeful discrimination, apparently because each of the factors relied upon by the courts below is, alone, insufficient to support the inference. The plurality states that the "fact [that Negro candidates have been defeated], alone, does not work a constitutional deprivation," that evidence of the unresponsiveness of elected officials "is relevant only as the most tenuous and circumstantial evidence," that "the substantial history of official racial discrimination . . [is] of limited help," and that the features of the electoral system that enhance the disadvantages faced by a voting minority "are far from proof that the at-large electoral scheme represents purposeful discrimination." By viewing each of the factors relied upon below in isolation, and ignoring the fact that racial bloc voting at the polls makes it impossible to elect a black commissioner under the at-large system, the plurality rejects the "totality of the circumstances" approach we endorsed in White v. Regester, supra at 766-770, Washington v. Davis, supra at 241-242, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 266, and leaves the courts below adrift on uncharted seas with respect to how to proceed on remand.
Because I believe that the findings of the District Court amply support an inference of purposeful discrimination in violation of the Fourteenth and Fifteenth Amendments, I respectfully dissent.