Jeffers v. Tucker

Plaintiffs' brief focuses on the relative poverty of blacks in the Delta. It reports census data on the relative socio-economic standing of blacks and whites in the area, and contends that nothing more is required to show unequal ability to participate in the electoral process than to establish a disparity in this realm. Plaintiffs do not contend, though, and they have not proved, that blacks are prevented from registering or voting for the candidates they choose. There is no allegation or proof that black voter turnout is any less than white, or that black voters are hindered in any way from exercising their right to vote. Nor do plaintiffs contend or prove that black voters are unable to elect candidates of their choice under the 1991 plan. Indeed, plaintiffs have not shown the results of a single election under the Board's plan where a black voter-preferred candidate was defeated by a white voter-preferred candidate.

This court has previously held that "[b]lack voters are far from powerless. They exerciseWest Page 668significant, sometimes decisive, influence."Jeffers v. Clinton,730 F. Supp. 196,198(E.D.Ark. 1989). The Court went on to note that "there are no presently existing legal barriers to voting by black citizens in Arkansas."Id.at 204. The only circumstance that has changed since that time, as reflected in the current record, is that blacks now elect a proportionate number of representatives in the Delta from solid majority BVAP districts. Evidence of poverty among blacks in the region begs the question of whether blacks are able to participate on an equal basis with whites there. Indeed, the evidence shows that there isequalaccess, because black voters elect representatives of their choice in proportion to their population in the area. In short, there is absolutely no evidence in this case that black voters cannot participate in the electoral process on an equal basis with white voters. Furthermore, nothing indicates that black voters cannot elect representatives of their choice — in fact, the evidence shows just the opposite. Plaintiffs also assert that the Board has impermissibly created influence districts when it could have created majority black districts. Plaintiffs' brief, p. 14-15. They define the area where an additional majority BVAP senate district could be created as the area included in the Board's senate districts 1, 7, 8, 21, 22, 23 and 28. Of these seven districts, two (29%) are majority BVAP — SD 8 and SD 22. The total VAP in these seven districts is 336,944; the BVAP is 107,569 or 32%. See, attachment 1 (a list of the Board's districts and their population breakdowns which the parties have previously submitted as part of the Board's plan). Thus, the Board's plan gives the area represented by these districts 29% of the representation. Black voters represent 32% of the population, but plaintiffs ask for an additional majority BVAP district, or 43% of the representation. Plaintiffs are not entitled to maximization of representation beyond proportionality.Nash v. Blunt,797 F. Supp. 1488(W.D.Mo. 1992).

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.

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

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.

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.

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 Section 2 violation must be proved anew.

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.

Before reaching my more fundamental disagreement with the majority's contention that a state is under some duty by virtue of the Voting Rights Act to create super-majority black districts, it must be mentioned briefly that the plaintiffs' proposed remedial plan cannot be accurately characterized as a simple expansion of district boundaries which are as compact and contiguous as those districts proposed by the Board of Apportionment.

Plaintiffs' alternative plan creates a number of oddly-shaped House districts, the worst being the inverted-"S" configuration of the boundaries for HD 74. If one were to travel in a perfectly straight line he or she could enter and exit this district no less than eight times as the district cuts through townships and municipal boundaries across three counties in an awkward effort to capture sufficient black residents to comprise a supermajority of 63% black VAP.

A proposed district is sufficiently compact if it retains a natural sense of community, and is not so convoluted that its representatives could not easily tell who actually lives within the district.East Jefferson coalition v. JeffersonParish,691 F. Supp. 991(E.D.La. 1988). That standard has not been met here. It would be difficult to envision a more bizarre and confusing district than the one proposed by plaintiffs (and adopted by the majority of the judges on this court) for HD 74 and the resulting adjacent districts. For this reason alone, this part of plaintiffs' proposed remedy should be rejected.

A legislature creates a racially-gerrymandered districting plan when itintentionallydraws one or more districts along racial lines or otherwise intentionally segregates citizens into voting districts based on their race. Thus, "racial gerrymandering" refers to theintentional,not the accidental, segregation of voters on the basis of race.

We have already noted the narrow holding ofShaw:a plaintiff may state a claim under the Equal Protection Clause by alleging that the reapportionment scheme adopted by his state is so irrational on its face "that it can only be understood as an effort to segregate voters into separate voting districts because of their race. . . ."Shawprimarily deals with the problem of proving racial gerrymanderingindirectlyorinferentially.Racial gerrymandering —West Page 672says the Court inShaw— can be inferred when districts are so bizarrely shaped that they presumptively bespeak an impermissible purpose.

But racial gerrymandering may —a fortiori— also be proved bydirectevidence that a legislature enacted a districting plan with the specific intent of segregating citizens into voting districts based on their race. If everyone — or nearly everyone — involved in the design and passage of a redistricting plan asserts or concedes that design of the plan was driven by race, then racial gerrymandering may be found without resorting to the inferential approach approved by the Court inShaw.The Court recognized inShawthat "[n]o inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute." The same is equally true when virtually unanimous, essentially uncontroverteddirecttrial evidence establishes racial classification, as it did here. In this case, we find overwhelming evidence — bothindirectanddirect— that the Plan is a product of racial gerrymandering.

When racial . . . lines are drawn by the State, the multiracial . . . communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race . . . rather than to political issues are generated; communities seek not the best representative but the best racial . . . partisan.

Thus, even if benign or benevolent motives underlie a legislature's decision to racially gerrymander a redistricting plan, that plan is still subject to strict judicial scrutiny. As discussed below, good motives may allow a plan to survive strict scrutiny, if they rise to the level of a compelling state interest, and if the plan is narrowly tailored to further such an interest. But such motives — however unspotted — do not automatically exempt the plan from what amounts to a presumption of unconstitutionality.

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 super-majority districts. It would be perverse, the State contends, for this Court to find that the existing plan violates Section 2 when it was prepared in good faith with the intention of complying with our clear supermajority requirements. We agree.

While they are nowhere nearly so unusual in shape as the I-85 district at issue inShaw,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. This 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 byGingles.Because the plaintiffs have failed to satisfy the compactness precondition, with respect to both the House and Senate, we must reject their claim.

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."

We hold that the Board's 1991 redistricting plan satisfies the requirements of Section 2 of the Voting Rights Act with respect to the East Arkansas areas which are the subject of the instant challenge.

We do not solve the problem of discrimination against one group by discriminating against another group. And, yet, is it not clear that that is exactly what the majorityWest Page 674is doing in this case with its "supermajority" theories?

We do not "get beyond racism" in the political sphere by creating conditions which tend to perpetuate racial separateness. If unintentional violations of Section 2 require the creating of majority VAP black legislative districts, then any increment beyond simple majority status must, in my opinion, be justified. . . . This "equilibrium remedy" would have the additional merit of necessitating, or at least not foreclosing, coalition building, which, in turn, would reduce the significance of racial politics over time. But when black VAP figures of over 60% are required — as the majority has done here — there will be no need, and therefore no incentive, for the black majority to reach out to their white fellow citizens, that is, to "get beyond racism."

One expects the response, "So what is new? Whites have held such majority status over blacks for years and still do almost everywhere in this nation. Why is that situation all right and this all wrong?" The answer is simple. Until racial polarization occurs, race is not central in the political processes of America. Neither is religion or language. We may be Democrats, Republicans, members of "Third Parties," or Independents. Rational political controversy is shaped by ideas, issues, self-interest, and the perceived merits of the candidates. Black makes no more difference than German or Irish; white than Asian; Christian than Jew or Atheist. Yes our backgrounds (including our racial identities), economic circumstances, political philosophies, and even religious beliefs may affect our politics but, overall, the emphasis is on rational politics. The influence of minority viewpoints in such a mix can be dramatic. And the racial politics that remain — and I recognize that our nation, despite much progress, is not yet beyond the evil and sickness of racism — tend to be submerged over time by the more compelling interests that characterize rational political dispute. Most important, it is not the law that is creating or supporting the racial politics that continues to exist. The law should help us get beyond race. The Congress has done its part by mandating equal opportunity in the political arena. It is wrong for the courts to go beyond Congress' mandate by forcefully creating conditions that reward racial polarization and encourage its perpetuation.

A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.

The message that such districting sends to elected representatives in equally pernicious. When a district is obviously created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy."Id.at ___,113 S.Ct. at 2827.