United States v. Dallas County Commission

HILL, Circuit Judge,

concurring specially:

In our system of the administration of justice it is necessary that this court and its judges be bound by the judgments of the Supreme Court. It is also very important that there be adherence to the doctrine of stare decisis so that this panel is bound by the opinions of earlier panels of our court. For these reasons, although I find Judge Gibson’s dissent persuasive, I feel compelled to concur in the judgment.

I have previously expressed my view that the approach we are taking to the right of each of us to vote is, in these cases, ill-advised. See Kirksey v. Board of Sup’rs of Hinds Cty., Miss., 554 F.2d 139, 159 (5th Cir.1977) (Hill, J., dissenting). See also Edge v. Sumter County School Dist., 775 F.2d 1509, 1514 (11th Cir.1985) (Hill, J., specially concurring); Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1483 (11th Cir.1984) (Hill, J., specially concurring). At the risk of redundancy, I write separately because I perceive it to be important that we state simply and straightforwardly just what it is that we are doing.

*1444Simply put, we are “rigging” elections. The cases are said to be brought by or on behalf of voters, but our judicial political science is aimed at giving relief, not to voters, but to candidates. In the various political subdivisions of the states in our circuit we have gone about setting aside certain seats for black candidates to win and certain seats for white candidates to win. A prerequisite to our grant of relief is that it be found, as a matter of fact, that in these political subdivisions white voters vote as a bloc for white candidates and black voters vote as a bloc1 for black candidates. By gerrymandering the political area so as to produce a quota of white majority districts and a quota of black majority districts, we undertake to insure, in these regrettably bloc voting places, that there will be a certain number of white officials and a certain number of black officials.

Now, it is said that this is a method of insuring that each voter has equal access to the political process, “equal access” apparently being interpreted as equal opportunity to elect the candidate of his or her choice. However, we overshoot that goal when we leave an impotent black minority in the white majority districts, and an impotent white minority in the black majority districts. Those minorities, upon the premise from which we have been judicially legislating, have utterly no access to the political process.

We are bent upon polarizing political subdivisions by race. The arrangement we construct makes it unnecessary, and probably unwise, for an elected official from a white majority district to be responsive at all to the wishes of black citizens; similarly, it is politically unwise for a black official from a black majority district to be responsive at all to white citizens. When the Voting Rights Act was passed, in those parts of the country where black citizens had been effectively disenfranchised, a fear arose among some segregationist white people that black citizens would begin to vote and, as a consequence, elected officials who hoped to be reelected might have to begin to respond to the wishes of black citizens. Such compelled responsiveness was viewed as a threat. The work of the federal judiciary in this area has removed that “threat.” Under our arrangement, white citizens can elect their own candidates who do not need to give consideration to the wishes of blacks. The black voters are gerrymandered into their own districts where they can vote for their own candidates. Had this arrangement been devised by white segregationists it could not have been a more effective segregationist response to the inevitable enforcement of the Voting Rights Act.

As I stated, we resolve these cases, brought by or on behalf of voters, by creating racially “safe boroughs” for candidates. What we do serves those who would be candidates very well, but it dis-serves the voters, who lose the opportunity to have a political impact upon and obtain political responsiveness from all candidates and elected officeholders.

This impact and its resulting responsiveness has been demonstrated. The message of the Voting Rights Act did not create that responsiveness, but its firm and unyielding enforcement did. Governors are elected statewide, as are senators. Over the years of our republic, each of these officeholders has, by and large, represented his or her constituency. When each had a constituency that did not include blacks, there was little, if any, response to the needs and wishes of blacks. The enforcement of the Voting Rights Act worked a remarkable change in constituencies and it has been said that those who are elected to office or who hope to be reelected have “learned to count.” That is the way representative government works. It is politically unsafe for an officeholder to ignore the legitimate needs and wishes of any people who have the opportunity to vote *1445for the officeholder. If, however, by oppression or by gerrymandering, a certain group can be prevented from voting for a particular office, then the holder of that office will have no political reason to pay attention to the needs of that group. We go about cleverly accomplishing that result.

At the risk of hypocrisy we do our “rigging” disguised as geography. We segregate the races politically, by drawing district lines which divide the geography of the county based upon the race of those residing there. Kace determines the geography, not the other way around.

It is not good that we engage in pretense. It is even worse when this system perpetuates racial separation. We have a Fair Housing Law, 42 U.S.C. §§ 3601-3631; yet by creating these separate, but presumably equal, political units, we say to the voters of the county: “if you wish to participate in the political process, reside with your race in your district.” Indeed, it might constitute a violation of the court decree to construct a residential project, subdivision, apartment complex, or the like which appears to be attractive to the members of one race but which is located in the district reserved for the other race. I should rather that we not discourage people from living wherever they please regardless of race.

Finally, I record here my total disagreement with the implication of Dr. Lichtman, a witness produced by the plaintiff and whose theory was accepted by the court, that in Dallas County, Alabama, or anywhere else it requires 61.03 percent black citizens to equal 38.07 percent white.

Justice Douglas expressed prophetic concern in his dissent in Wright v. Rockefeller, 376 U.S. 52, 59, 84 S.Ct. 603, 606, 11 L.Ed.2d 512 (1964). In that opinion he noted that several countries in fact segregate voting and elected positions, allocating seats to racial, ethnic and religious groups, but he voiced his belief that such separation was inappropriate in our country. Justice Douglas cited Lebanon, among others, as an example of a country which had adopted proportionate representation by religion. Id. 84 S.Ct. at 610 & n. 11. That unhappy land does not bear witness to the aspiration that these sorts of political allocations will produce harmony among a people.

I envision a paper prepared, some years from now, by a social scientist. It will report on political processes in the three states of our circuit. Assuming that we have dealt with arrangements for electing city council members, school board members and county commissioners along the lines of our precedent, the paper will accurately report that blacks are effectively excluded from voting in the majority of elections to such offices. I anticipate the paper’s title being something like: “The Political Resegregation of the South.” I write today so that the author may note, if he or she will, that not all of us agreed.

With regret, I concur.

. These bloc voters are sometimes referred to as a "politically cohesive” group. See Thornburg v. Gingles, 478 U.S. 30, 51, 106 S.Ct. 2752, 2767, 92 L.Ed.2d 25 (1986).