Quilter v. Voinovich

OPINION AND ORDER

JOHN W. PECK, Senior Circuit Judge.

This three-judge district court was convened to hear Plaintiffs’ constitutional and statutory challenges to the 1991 Apportionment Plan for the Ohio General Assembly (the Plan). Plaintiff Barney Quilter, a state representative and designee of the Speaker of the Ohio House of Representatives, and Plaintiff Thomas Ferguson, Ohio’s Auditor, were the Democratic members of the 1991 Apportionment Board (the Board). The remaining Plaintiffs are Democratic electors and state legislators, some of whom are members of a protected class under the Voting Rights Act. Plaintiffs *696allege that the Plan impermissibly uses race to draw districts and dilutes minority voting strength in violation of § 2 of the Voting Rights Act, 42 U.S.C. § 1973, and the fourteenth and fifteenth amendments to the United States Constitution. Additionally, Plaintiffs assert a pendant state claim that the Plan violates Article XI the Ohio Constitution which provides specific apportionment guidelines.

Defendants George Voinovich, Governor of the State of Ohio, Robert Taft, II, Ohio’s Secretary of State, and Stanley Aronoff, President of the Ohio Senate, were the Republican members of the 1991 Apportionment Board. Defendant James Tilling drafted the Plan. Defendants contend that the Voting Rights Act, as amended in 1982, and federal case law required that, wherever possible, they create majority-minority districts, i.e., legislative districts in which members of a minority group comprise the majority.

For reasons which more fully appear hereinafter, we conclude that the Voting Rights Act and federal precedent do not dictate such a per se requirement. While creation of such districts may be an appropriate remedy under certain circumstances, Defendants here failed to make the requisite findings which demonstrate a violation of the Voting Rights Act, thereby permitting such a remedy.

APPLICABLE LAW

In order to understand the rationale by which the Plan was developed, it is necessary to review § 2 of the Voting Rights Act, as amended, and Armour v. Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991). In 1982, the Voting Rights Act was amended. The legislative history of the amendment stated that its purpose was “to prohibit any voting practice[ ] or procedure [that] results in discrimination” and “to make clear that proof of discriminatory intent is not required to establish a violation of Section 2.” S.Rep. No. 417, 97th Cong., 2d Sess. 2 (1982) U.S.Code Cong. & Admin.News 1982, pp. 177, 179.

Section 2 of the Voting Rights Act, as amended, provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision 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, or in contravention of the guarantees set forth in section 4(f)(2) [42 U.S.C. § 1973b(f)(2) ], as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, 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.

Thus, the statute does not focus on the purpose or motivation behind the challenged practice or procedure, but the results of such practice or procedure. A violation is to be determined by a review of the totality of the circumstances.

The following is a nonexhaustive list of factors relevant to a totality of the circumstances assessment that may be used to establish an unequal opportunity to participate in the political process and elect a candidate of choice:

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;
*6973. 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 (footnote omitted);
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 (footnote omitted).

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982) U.S.Code Cong. & AdmimNews. 1982, pp. 177, 205-207. Additional factors that could have probative value in establishing 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 (footnote omitted).
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 (footnote omitted).

Id. at 29.

The Senate Committee noted that “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.” Id. Whether a § 2 violation has occurred is “based on the totality of the circumstances and guided by those relevant factors in the particular case_” Id. at 29 n. 118 U.S.Code Cong. & AdmimNews pp. 177, 207. The ultimate “question whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the ‘past and present reality.’ ” Id. at 30.

One month before the Board published the Plan challenged here, the Armour court filed its decision. In Armour, the plaintiffs alleged that a voting district boundary in Mahoning County drawn under the 1981 apportionment plan which split a large, cohesive Black population between two districts deliberately and effectively diluted the minority vote in violation of § 2 of the Voting Rights Act and the fifteenth amendment. The Armour court conducted a “searching practical investigation of the past and present reality” in Mahoning County by applying the totality of the circumstances factors and concluded that the boundary was indeed violative of § 2 of the Voting Rights Act and the fifteenth amendment. Significantly, the Black population divided by the illegal boundary was not large enough to form the majority of a single-member district. Thus, the court in Armour recognized that a cohesive group of minority voters could influence an election even though they did not comprise a majority in the district. Armour, 775 F.Supp. at 1052, 1059-60.

FACTUAL BACKGROUND

Under the Ohio Constitution, beginning in 1971 and every tenth year thereafter, a five-member apportionment board is to assemble and publish an apportionment plan for the General Assembly. Ohio Const, art. XI, § 1. In accordance with this provision, an apportionment plan was published and became effective in 1981, prior to the 1982 amendment of the Voting Rights Act. Tilling, as author of the 1991 Plan, testified that he tried “to make the necessary changes to bring this current apportionment plan into conformity with the 1982 amendments.” (Tilling Dep., Vol. I, at 168). During the end of August 1991 and the beginning of September 1991, Tilling conducted fourteen public meetings throughout Ohio for the purpose of obtaining public comment and minority input on the 1991 Plan.

*698In his comments at these public hearings, Tilling repeatedly stated that his interpretation of the Voting Rights Act and related federal case law required the creation of a majority-minority district wherever possible. Joint Trial Exhibits, passim. For example, at the public hearing in Columbus, Ohio, on August 27, 1991, Tilling stated that to comply with United States Supreme Court guidelines, the Apportionment Board was “under a mandate that wherever a majority-minority district can be created, that must be done.” Joint Trial Exhibits, Tab 2, at 12. Tilling also stated that the Board needed to “establish for the record the totality of the circumstances in each urban area” to comply with the Voting Rights Act and the recent decision in Armour, supra. (Joint Trial Exhibits, Tab 13, at 33). Black community leaders and other interested persons spoke at the public meetings. The Plan was adopted by the Republican majority on the Board on October 1, 1991, amended on October 3, and published on October 5. Plaintiffs Quilter and Ferguson dissented.

In this action, Plaintiffs allege that under the guise of protecting minority rights by creating majority-minority districts, Defendants have actually packed minorities into certain districts where minorities historically were able to elect representatives of choice with crossover votes. Plaintiffs contend that the packing results in wasting minority votes in the packed districts and diluting minority voting strength in surrounding areas where the “packed” voters could possibly influence elections. Specifically, Plaintiffs allege minority vote dilution resulting from the revision of nine districts which have been represented by either a minority legislator or a white legislator with a 90% to 100% voting record on bills related to minority issues.

With regard to the black legislators, each has been elected to between six and thirteen terms. For the elections between 1984 and 1990, each was elected with an average plurality ranging between 68.27% and 72.64%. Under the 1981 apportionment plan, the black population in their districts ranged from 38.5% to 53.19%. Under the 1991 Plan, the black population in each district was increased between 7.7% and 13.68%. Plaintiffs assert that these increases impermissibly pack black voters in districts where their votes are wasted because there exists substantial crossover voting which allows blacks to elect candidates of choice. Plaintiffs also allege that where these districts were revised, segments of the former district having small minority populations were combined with other districts resulting in the fragmentation and dilution of minority voting strength. Similarly, Plaintiffs allege that the districts represented by the white legislators with responsive voting records on black issues were divided so that portions of the black population were packed into districts with a high percentage of black population or fragmented into districts with such a small percentage of black population that the minority voting strength would be diminished. As justification for these configurations, Defendants assert that the Voting Rights Act and federal case law mandate the drawing of majority-minority districts. We cannot agree.

ANALYSIS

A. Justification for majority-minority districts

The language of § 2 of the Voting Rights Act contains no requirement for majority-minority districts. Rather it prohibits any “standard, practice, or procedure ... 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....” It is directed against certain results, regardless of how they are produced. Thus, where the creation of majority-minority districts wastes minority votes by packing and dilutes minority influence by fragmenting, the result is an “abridgement of the right ... to vote on account of race or color” which violates the Voting Rights Act. The United States Supreme Court has recognized this principle:

Dilution of racial minority group voting strength may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters *699or from the concentration of blacks into districts where they constitute an excessive majority. (Citations omitted).

Thornburg v. Gingles, 478 U.S. 30, 46 n. 11, 106 S.Ct. 2752, 2764 n. 11, 92 L.Ed.2d 25 (1986). Thus, we can find no per se requirement for the creation of majority-minority districts in § 2 of the Voting Rights Act.

Tilling also makes reference to Gingles, supra, in justifying his configuration of districts. In Gingles, the United States Supreme Court considered a challenge under § 2 of the Voting Rights Act to North Carolina’s multimember districting scheme. The Court set forth three preconditions to a § 2 challenge alleging that multimember districts impair minority voters’ ability to elect representatives of their choice:

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. If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters’ inability to elect its candidates. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. 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.

Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67 (emphasis in original) (footnotes and citations omitted).

Apparently, Tilling read the first precondition to require the creation of majority-minority districts wherever possible. However, the Supreme Court in Gingles limited these preconditions to challenges to multi-member districts:

The claim we address in this opinion is one in which the plaintiffs alleged and attempted to prove that their ability to elect the representatives of their choice was impaired by the selection of a multi-member electoral structure. We have no occasion to consider whether § 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections.
We note also that we have no occasion to consider whether the standards we apply to respondents’ claim that multi-member districts operate to dilute the vote of geographically cohesive minority groups, that are large enough to constitute majorities in single-member districts and that are contained within the boundaries of the challenged multimember districts, are fully pertinent to other sorts of vote dilution claims, such as a claim alleging that the splitting of a large and geographically cohesive minority between two or more multimember or single-member districts resulted in the dilution of the minority vote.

Id. at 46, n. 12, 106 S.Ct. at 2764, n. 12. Thus, Gingles’ preconditions are not applicable to the apportionment of single-member districts and claims of dilution of minority influence districts at issue here. Accord, Armour, 775 F.Supp. at 1052. Therefore, we can find nothing in Gingles which establishes a per se requirement for the creation of majority-minority districts.

Finally, Defendants suggest that Armour, supra, mandates the creation of majority-minority districts. It is true that the court in Armour concluded that the division of a cohesive concentration of Black voters between two districts in Mahoning County was violative of § 2 of the Voting Rights Act and the fifteenth amendment. These determinations were made after the court conducted a detailed examination of the totality of the circumstances factors outlined in the legislative history with regard to Mahoning County and Youngstown. While the aggregation of Black voters into one district is an appropriate reme*700dy under certain circumstances, Armour does not stand for the proposition that persons responsible for apportionment should create majority-minority districts wherever possible. Thus, we conclude that nothing in § 2 of the Voting Rights Act, Gingles, supra, or Armour, supra, mandates the drawing of majority-minority districts wherever there is a concentration of Black voters.

B. Inadequacy of Defendants’ totality of circumstances analysis

In addition to Tilling’s contention that federal statute and case law mandated the creation of majority-minority districts, he justified the Plan by stating that revised districts were necessary “to bring [the 1981] apportionment plan into conformity with the 1982 amendments.” Tilling Dep., Vol. 1, at 168. Thus, in essence, Tilling is asserting that the majority-minority configuration was necessary to remedy violations of the Voting Rights Act under the 1981 plan. However, violations of the Voting Rights Act are not to be assumed. The finding of a violation requires an in-depth analysis of the totality of the circumstances in the locality at issue. S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982) U.S.Code Cong. & Admin.News pp. 177, 205-207; Armour, 775 F.Supp. at 1053 (our inquiry does not focus on the black experience in the entire state but rather on the political and social reality local to the Mahoning Valley). Although Tilling stated that one of the reasons for the public hearings was to “establish for the record the totality of the circumstances in each urban area ...” Joint Trial Exhibits, Tab 13, at 33, we find the information in the record grossly inadequate in this regard.

Key determinations in a totality of the circumstances analysis are whether racially polarized voting exists and the closely related issue of the extent to which minority candidates are elected in the jurisdiction. Gingles, 478 U.S. at 55, 106 S.Ct. at 2768-69. The Supreme Court in Gingles provided guidance on determining the whether racially polarized voting1 is present in a case. The Court noted that the district court relied principally on expert statistical evidence derived through extreme case analysis and bivariate ecological regression analysis on data from three different election years in the challenged districts. Id. at 52-53, 106 S.Ct. at 2767-68. These methods are standard in the literature for the analysis of racially polarized voting. Id. at 53, n. 20, 106 S.Ct. at 2767, n. 20. The degree of bloc voting which constitutes the threshold of legal significance varies from district to district. Id. at 55-56, 106 S.Ct. at 2768-69. However, a showing that a significant number of minority group members vote for the same candidates can establish minority bloc voting within the context of § 2. Id. at 56, 106 S.Ct. at 2769. Generally, white voting patterns that normally will defeat the combined strength of minority support and white “crossover” votes is legally significant white bloc voting. Id.

In the present case, Tilling “concluded that there was significant racial bloc voting throughout the State of Ohio.... ” Tilling Dep., Def.Exh. 96, at 93. However, Tilling arrived at this conclusion without the benefit of regression analysis. Id. at 92. Instead, Tilling examined the votes for the minority representatives to the General Assembly in past elections to try to ascertain racial patterns of voting. Tilling Dep., Vol. I, at 37-39. Tilling admits that he did the analysis using 1990 census data which does not correspond directly to the 1981 districts. Id. at 38. Tilling did not reduce his calculations or conclusions to writing. Id. at 39. Tilling also examined the results of the primary in which Jesse Jackson ran. Tilling Dep., Vol. II, at 6. Again, he did not subject the data to any statistical analysis. Id. at 9.

Tilling further contended that racial bloc voting existed in the districts in which black legislators were being elected with white crossover votes from districts with *701less than a majority of black voters. Tilling Dep., Vol. I, at 39. When asked specifically if the racial bloc voting in these districts was legally significant, Tilling could not give an unequivocal answer, stating merely that “given the opportunity there is a much higher percentage of black vote for black candidates than white vote for black candidates.” Id. at 40-41. However, Tilling acknowledged that blacks were elected from districts with as low as 35% black population. Id. at 177-78. Ultimately, Tilling increased the black voters in these districts despite the successful election of black legislators with substantial crossover white vote.

It is disturbing that Tilling based his conclusions that there was racial bloc voting and subsequent revisions in the apportionment of voters on such a casual analysis of voting returns. He did not subject his data to statistical analysis or even memorialize his calculations and “findings” in writing. Given the guidance of the Supreme Court in Gingles with regard to legally significant racially polarized voting, we conclude that Tilling’s analysis does not rise to the level of proof of racially polarized voting.

Another relevant factor is whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the minority community. However, Tilling stated that he did not examine the voting record of any single representative to determine his responsiveness to the minority community. Id. at 185. Tilling’s information on this factor involved his review of legislators’ voting records in preparation for previous Senate campaigns. Id. at 179-181. He observed that the information was “part of my mental equipment as I began this process.” Id. at 180-81.

Review of social and historical factors are also appropriate under a totality of the circumstances review. However, Tilling admitted that he did no studies of the communities at issue except to hold the public hearings. Tilling Dep., Vol. II, at 39. While a few relevant items can be sifted from the voluminous transcripts of the public meetings, there is a paucity of information on these factors in the record. Of the information available, much is anecdotal and seems to be culled from Tilling’s personal experience rather than from community sources. For example, when deposed on factors he took into account in his totality of the circumstances analysis, Tilling stated that “in the course of my years in the Senate I have had occasion to talk to many of the minority representatives about various practices that have influenced their ability to fully participate in the process_” Tilling Deposition, Def.Exh. 96, at 97-98. With respect to discrimination in education, Tilling stated that he had spent a year in the late 70’s on the Ohio General Assembly’s Joint Select Committee on School Desegregation and noted that schools in several of the urban areas in Ohio are under desegregation orders. Id. at 97. Tilling also testified that he was aware of the differences in employment figures for minorities and whites in Ohio. Id. While Tilling’s input on some of these issues could be useful in a totality of the circumstances review, we find that it, even in combination with a series of public meeting compressed into a two and a half week period, falls far short of the “searching practical evaluation of past and present reality” mandated by the legislative history-

Accordingly, we find that no adequate totality of the circumstances analysis was performed by the Board. In the absence of such an analysis, there can be no reliable finding of a violation. In the absence of a violation, there was no legal justification for the Board’s “remedy” in the form of the wholesale creation of majority-minority districts. Without such a justification, the Board’s plan packs minority voters, with dilutive effects that violate the Voting Rights Act.

CONCLUSION

For the foregoing reasons, we conclude that there is no legal mandate or finding of a Voting Rights Act violation to justify Defendants’ creation of majority-minority districts wherever possible in the 1991 Apportionment Plan. Accordingly, the Board is ORDERED to reconsider the Plan. Un*702less it can show justification under the totality of the circumstances test for the present configuration, the Board must submit a revised plan to this court within 20 days of the date of this order. In the event that a revised plan is not received by this court within the time limit, further action will be taken by this court sua sponte.

Because our analysis under the Voting Rights Act requires the Plan to be revised, we decline to address Plaintiffs’ claims under the United States Constitution at this time. This is consistent with the judicial preference for deciding cases without reference to questions arising under the Federal Constitution whenever possible. Hagans v. Lavine, 415 U.S. 528, 546, 94 S.Ct. 1372, 1383-84, 39 L.Ed.2d 577 (1974) (citing Siler v. Louisville & Nashville R. Co. q, 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909)).

With regard to Plaintiffs’ claims under the Ohio Constitution, we note that these claims are before the Ohio Supreme Court in the case of Ferguson v. Voinovich, No. 91-1882. While this court is not required to abstain from these issues, Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447-48, 12 L.Ed.2d 609 (1964), where parallel litigation is instituted in the state and federal courts, it is appropriate for the federal courts to deal with the federal issues and leave the state issues to the state court. We do note, however, that the Board majority claims adherence to the alleged federal mandate to create majority-minority districts wherever possible. Given that we now hold that there is no such mandate, we remove this as a possible defense in any subsequent or concurrent state proceedings.2

. The Supreme Court used the terms "racially polarized voting" and "racial bloc voting” interchangeably in Gingles. 478 U.S. at 52, n. 18, 106 S.Ct. at 2767, n. 18. The terms are also used interchangeably here.

. The exigencies of the situation, which include satisfying deadlines, have required counsel for the parties to formulate and present their positions with commendable speed, and have similarly imposed upon this panel a mandate to record the conclusions reached as rapidly as possible. The opportunity of offering an analysis in depth of the thoughtful dissent (which, in fact, we have only seen in outline form) not being available, we refrain from offering a detailed reaction, observing simply that in our view such an analysis only becomes appropriate after an apportionment plan has been shown to have been prepared according to law. The present record is devoid of such a showing.

Some response might, however, be helpful to the parties. First, we must caution against accepting some of the characterizations of the majority opinion by the dissent. For example, it observes, "My colleagues have ruled that the 1991 reapportionment of Ohio for the purposes of electing the Ohio General Assembly violates § 2 of the Voting Rights Act because the majority members of the apportionment created additional majority-minority voting districts in Ohio_” The dissent goes on to state, "Presumably, the Court holds that increasing the minority population in a district where a minority group is already able to elect a minority representative is per se packing and wasting minority votes.” The dissent further observes that "the majority apparently holds that the districts must be drawn in such a way that the black vote is maximized.’’ We made no such holdings. The thrust of the opinion is not to outlaw majority-minority districts nor to create "a favored race for voting purposes,” as the dissent suggests. Rather, the guiding lights are that there is no legal mandate under § 2 of the Voting Rights Act, Gingles, supra, or Armour, supra, to create majority-minority districts wherever possible. Furthermore, in the absence of a reliable finding of a violation of the Voting Rights Act, it cannot be used as justification for the wholesale creation of majority-minority districts. This highlights the divergent directions from which the majority opinion and dissent proceed. The dissent focuses only on the untested end result, whereas the majority opinion recognizes the vital importance of the process and the pitfalls which arise from a per se application of majority-minority districting, i.e., minority vote dilution can result from the concentration of minorities in districts.

Proceeding from their respective approaches, the narrow holding of the majority opinion requires the resubmission of a plan properly premised, while the dissent would put this court in the position of a super-apportionment board — a status which on the basis of abundant authority we decline to occupy. Unlike the dissent, we purposely have not compared and contrasted the plan submitted by the Plaintiffs to the plan adopted by the majority of the Board. The function of this court at this stage of the proceedings is not to choose between two plans, but to measure the plan as adopted against federal law. As stated above, federal law cannot serve as the justification for the present plan. Unless, the Board can show such justification, it must proceed to develop a revised plan which complies with federal and state constitutional law.

Figures represent the number of districts each county is entitled to based on the ideal district population of 109,567.

Based on 1990 census information.

Based on 1990 census information.

. See Article XI, Section 2 of the Ohio Constitution.

. Section 1 of Article XI of the Ohio Constitution provides that both major political parties will be represented by two General Assembly members participating in the apportionment process. The issue of which political party controls the process is then determined by the outcome of the last state election for the office of Governor, Auditor of State and Secretary of State conducted prior to the constitutional mandate to apportion the state in every year ending in the number one. In 1990 the last such state election, Governor George Voinovich and Secretary of State Robert A. Taft, both members of the Republican party, and State Auditor Thomas Ferguson, a member of the Democratic party, were elected. Thus, the Republican party has a majority involved in the apportionment process as dictated by the Ohio Constitution.

.See Article XI, Section 2 of the Ohio Constitution.