Citizens for a Better Gretna, et al., Plaintiffs-appellees, v. City of Gretna, Louisiana, et al., Defendants-appellants, 834 F.2d 496 (5th Cir. 1987)

In this minority vote dilution case, the City of Gretna, Louisiana appeals the finding that at-large elections of Gretna aldermen violate Sec. 2 of the Voting Rights Act of 1965 as amended in 1982.¹  This Circuit set out guidelines for evaluating minority vote dilution claims in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc) aff'd on other ground sub nom., East Carrol Parish School Board v. Marshall, 424 U.S. 636, 96 S. Ct. 1083, 47 L. Ed. 2d 296 (1976) (per curiam). The district court followed Zimmer guidelines in finding a Sec. 2 violation within Gretna's at-large aldermanic election scheme.

Closely following after the district court's opinion of May 12, 1986, 636 F. Supp. 1113, is the Supreme Court's Sec. 2 minority vote dilution case, Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). Appellant City of Gretna claims Gingles replaces the pre-existing vote dilution analysis of Zimmer, and necessitates remand of this case. We disagree, and affirm the district court's decision.

At the heart of a Sec. 2 vote dilution claim lies the issue of whether minorities have an equal opportunity to elect their candidates of choice. Gingles set out a three-part foundation for proving a Sec. 2 vote dilution claim: first, that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; second, that the minority is politically cohesive; and third, that the majority votes sufficiently as a bloc usually to defeat the minority preferred candidate. Gingles, 106 S. Ct. at 2766-67. Based upon our reading of Gingles, we find the district court's analysis sufficient to establish a violation of Sec. 2 existing in the at-large elections of Gretna aldermen. We first address the effect of Gingles on the framework previously set out by Zimmer. Then we discuss Gingles' emphasis on racial bloc voting and its application to the situation in Gretna.I. Background

Appellees Citizens For a Better Gretna²  brought this class action on behalf of black registered voters in the City of Gretna. The class alleged violations of Sec. 2 of the Voting Rights Act of 1965 as amended in 1982, 42 U.S.C. § 1983, and the Fourteenth and Fifteenth Amendments of the United States Constitution. The district court upheld the class' claim for relief under Sec. 2 of the Voting Rights Act, and did not address the Sec. 1983 claim or the constitutional claims.

The trial court determined the Sec. 2 violation from factual findings structured along Zimmer guidelines.³  We find none of these determinations to be clearly erroneous.⁴  Hence, the issue presented is whether the factual findings support a Sec. 2 violation under Gingles.

Appellant urges this Court to reverse the district court opinion because it relies on Zimmer. We are asked to remand the case for consideration under Gingles. We cannot agree that the Supreme Court in Gingles made the Zimmer analysis obsolete. In fact, the Court relied substantially on Zimmer as a foundation for the analytical framework prescribed for Sec. 2 claims.⁵ 

Taken from the Senate Judiciary Committee Report accompanying the 1982 amendment of the Voting Rights Act, the factors to be considered in evaluating a Sec. 2 claim include the following:

(1) The 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 majority group;

(4) If there is a candidate slating process, whether the members of a 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.

The Gingles opinion traced the Senate Report guidelines (Zimmer factors)⁶  in evaluating the North Carolina legislative election scheme there at issue. The Court found a Sec. 2 violation based upon the totality of circumstances in North Carolina districts: "racially polarized voting, the legacy of official discrimination in voting, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multi-member districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice." Gingles, 106 S. Ct. at 2782.

The district court found similar conditions existing in Gretna by following virtually identical guidelines. We briefly summarize these factual findings: (1) No black person has ever been elected alderman in Gretna, despite its population being thirty percent black. (2) Only two black candidates have run for alderman in Gretna; these in three elections. (3) Of the three Gretna aldermanic elections with black candidates, only two were capable of being statistically analyzed. (4) The two elections involved black candidate Leo Jones. He received the support of a majority of Gretna's black voters but little or no support from white voters. (5) In the 1984 presidential primary and the 1979 race for Louisiana Secretary of State, Gretna's black voters overwhelmingly supported black candidates and white voters largely did not. (6) Statistical data presented to the trial court in a correlation and regression analysis and in a homogenous precinct analysis support the existence of racial polarization (racial bloc voting) in Gretna's elections. (7) A history of de jure and de facto discrimination contributes to depressed socio-economic conditions for Gretna's blacks and a low black voter turnout. (8) An unofficial slating system excludes black candidates from Gretna city elections. (9) The Gretna majority vote requirement combines with the at-large system to produce dilution of black voting power. These factual findings are amply supported by the record, so we next consider the district court's finding of legally significant racial bloc voting.

Racial bloc voting is the linchpin of a Sec. 2 vote dilution claim, and plaintiffs must prove it. Gingles, 106 S. Ct. at 2764. The district court found significant racial bloc voting in Gretna based upon statistical data presented in a correlation and regression analysis⁷  and a homogenous precinct analysis.⁸ 

Appellant claims the district court's finding of bloc voting fails to conform to the standards set out by the Supreme Court in Gingles. Appellant specifies three deficiencies in the district court's analysis: (1) the district court based its finding of bloc voting on the statistical methods of appellee's expert, which are not the same methods as those relied upon by the Supreme Court in Gingles; (2) the district court considered statistical evidence of racial bloc voting in non-aldermanic elections, specifically the 1984 presidential primary in which Jesse Jackson ran and the 1979 race for Louisiana Secretary of State featuring black candidate Ben Jeffers; (3) by looking only at elections in which blacks were candidates, the district court focused on the race of the candidate rather than the race of the voter, which is contrary to Gingles. We address these claims in turn.

The statistical methods applied in Gretna vary to some extent from those used in Gingles. The Supreme Court in Gingles stated the purpose of the bloc voting inquiry to be two-fold: "To ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates." 106 S. Ct. at 2769. The Court did not mandate any particular statistical method for evaluating vote dilution claims.⁹  It merely accepted the methods presented, noting them to be standard in the literature. Gingles, 106 S. Ct. at 2768 n. 20.

Appellants attack the validity of the regression analysis presented by appellee's expert and relied upon by the district court. This correlation and regression analysis correlates by precinct the race of the voter with votes received by a particular candidate.¹⁰  Appellant claims that its regression analysis is superior to that of appellee's expert. Resisting the obfuscation created by dueling statisticians, we address appellant's core criticism: Leo Jones, who was one of two blacks who ran for Gretna alderman and the only black aldermanic candidate whose election results could be analyzed statistically, was not the aldermanic preference of Gretna's black voters.

Jones ran for alderman in 1977 and in 1979. Appellee's expert concludes that in 1979, Jones received 60 to 65 percent of the black vote and 1 percent of the white vote; in 1977 he received 65 to 67 percent of the black vote and 11 to 12 percent of the white vote.¹¹  Appellant's expert, however, did his own bivariate regression analysis of the 1979 election and concluded that Jones only obtained about 49 percent of the black vote and 1.5 percent of the white vote.¹²  Appellant cites its analysis as proof that Jones was not the black preference.

According to the Supreme Court in Gingles, however, bloc voting can be proved in part by showing that a "significant number of minority group members usually vote for the same candidate...."¹³  Both appellant's and appellee's regression analyses reveal a "significant number" of blacks voting for Jones. This qualifies Jones as a black preferred candidate.

Appellant also claims that Jones was not the black preferred candidate in the 1979 aldermanic election because two white candidates received a higher percentage of the black vote than was garnered by Jones.¹⁴  This does not negate the district court's finding of racial bloc voting. Again, Gingles defines bloc voting as white majority bloc voting that defeats minority preferred candidates. 106 S. Ct. at 2767. In a multiple seat election such as Gretna's aldermanic race, the minority necessarily will have more than one preferred candidate. In the Gretna elections studied, blacks exercised their right to vote to fill all at-large positions, but only one available candidate was black. Thus, it was virtually unavoidable that certain white candidates would be supported by a large percentage of Gretna's black voters. Significance lies in the fact that the black candidate preferred by the minority was defeated by white bloc voting. That blacks also support white candidates acceptable to the majority does not negate instances in which white votes defeat a black preference.

Appellee's analyses of other elections in which Gretna citizens had the opportunity to vote for a black candidate support the finding of a pattern of racial bloc voting in Gretna.¹⁵  Although exogenous elections alone could not prove racially polarized voting in Gretna aldermanic elections, the district court properly considered them as additional evidence of bloc voting--particularly in light of the sparsity of available data.

Black candidates have entered Gretna aldermanic elections on only three occasions.¹⁶  Statistics are available for two of those elections, Jones in 1977 and Jones in 1979. Appellant claims that a showing of bloc voting cannot be premised solely on these two elections because the Gingles opinion requires "a searching practical evaluation of 'past and present reality.' " 106 S. Ct. at 2764. Two elections, it claims, do not reflect past and present reality.

Gingles, however, suggests flexibility in the face of sparse data: "where a minority group has begun to sponsor candidates just recently the fact that statistics from only one or a few elections are available for examination does not foreclose a vote dilution claim." 106 S. Ct. at 2770 n. 25. Justice Brennan speaking for the Court, explains the need to tailor a Sec. 2 analysis that will fit the issues of each particular vote dilution case. In this case, appellants would have us interpret Gingles rigidly so that the inability of Gretna's blacks to participate as aldermanic candidates would also function to deprive them of relief under Sec. 2. But the Supreme Court did not confine review of vote dilution claims to the factors enumerated in the opinion: "While the enumerated [Zimmer ] factors will often be pertinent to certain types of Sec. 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered." Gingles, 106 S. Ct. at 2764 (footnote omitted).

In light of the flexible standard advised by Gingles, the district court properly considered the two non-aldermanic elections, Jackson in 1984 and Jeffers in 1979. Because the district court had statistical data of only two Gretna aldermanic elections to consider, it properly looked to voting patterns in two additional elections in which Gretna voters had the opportunity to vote for a black candidate. This evidence is relevant to showing that blacks and whites in Gretna vote differently and in bloc. Further, we are persuaded by appellee that although the Jeffers and Jackson results are not those of Gretna aldermanic elections, they qualify as a local appraisal because they reflect local voting patterns.

We need not conclude that election results from outside the challenged electoral system are always appropriate for consideration under Sec. 2. In this case, however, with sparse relevant statistical data, the district court rightly considered exogenous elections.

We consider Jones to be an aldermanic candidate sponsored by Gretna's minority group because he received a significant portion of the black vote,¹⁷  and because he is black. Appellant claims that considering the race of the candidate is inconsistent with Gingles ' recommendation to consider only the race of the voter. Appellant claims the district court erred in determining racial bloc voting from only those elections in which blacks were candidates.

In a plurality section of the Gingles opinion, Justice Brennan notes that although the black minority preferred candidate is usually black, the race of the voter--rather than the race of the candidate--is the proper focus. Hence the black preferred candidate need not necessarily be black: "Under Sec. 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important." Gingles, 106 S. Ct. at 2776.

Justice Brennan does not, however, carry majority support for this statement. Justice White specifically disavows it as indicative of interest group politics. Gingles, 106 S. Ct. at 2783-84 (White, J., concurring). And Judge Higginbotham, in his dissent to this Circuit's recently vacated vote dilution case,¹⁸  shares Justice White's appraisal, warning of the potential chaos created by a lack of Supreme Court consensus on this aspect of racial bloc voting. Such forecasts properly raise concerns about the dangers in advancing interest group politics or enforcing proportional representation.¹⁹ 

Mindful of these concerns, we conclude that Gingles is properly interpreted to hold that the race of the candidate is in general of less significance than the race of the voter--but only within the context of an election that offers voters the choice of supporting a viable minority candidate. For although the Supreme Court plurality in Gingles emphasizes the race of the voter over the race of the candidate, it upholds the trial court finding of vote dilution based upon analyses of only those elections in which blacks ran. Justice Brennan's plurality opinion is careful not to state that a black candidate is tantamount to the black preference; but implicit in the Ginglesholding is the notion that black preference is determined from elections which offer the choice of a black candidate. The various Gingles concurring and dissenting opinions do not consider evidence of elections in which only whites were candidates. Hence, neither do we.

We conclude that the district court was not clearly erroneous in finding that Gretna's at-large aldermanic elections violate Sec. 2 of the Voting Rights Act. The district court decision was correctly based on a totality of the circumstances, delineated by Zimmer factors. Most notable among those factors is the presence of racial bloc voting in Gretna's aldermanic elections. We also note that in the entire history of Gretna, with a 30 percent black population, no black has ever been elected to municipal office. Further, we, like the Supreme Court in Gingles, recognize the district court's familiarity with political realities of the local area. 106 S. Ct. at 2782. We affirm the district court's finding that at-large elections of Gretna aldermen are violative of Sec. 2. We affirm its judgment enjoining the at-large system and approving the city's proposed redistricting plan.²⁰ 

AFFIRMED.