Gause v. Brunswick County

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THURMAN GAUSE; JOHN R. FRINK;
WILLIE SLOAN; HENRY J. BRYANT;
EDWARD THOMAS; ROSCOE BUTLER;
WILLIE FULLWOOD,
Plaintiffs-Appellants,

v.

BRUNSWICK COUNTY, NORTH
CAROLINA; BRUNSWICK COUNTY
BOARD OF COUNTY COMMISSIONERS;
No. 95-3028
DONALD WARREN; JERRY JONES;
WAYLAND VEREEN; TOM RAYBON;
DONALD SHAW, Members of the
Brunswick County Board of County
Commissioners; BRUNSWICK COUNTY
BOARD OF ELECTIONS; ORRIE GORE;
MARION D. DAVIS; BILLY BENTON,
Members of the Brunswick County
Board of Elections,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Franklin T. Dupree, Jr., Senior District Judge.
(CA-93-80-7-D)

Argued: July 9, 1996

Decided: August 13, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anita Sue Hodgkiss, FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina,
for Appellant. Michael Crowell, THARRINGTON SMITH, Raleigh,
North Carolina, for Appellees. ON BRIEF: James J. Wall, LEGAL
SERVICES OF THE LOWER CAPE FEAR, INC., Wilmington,
North Carolina, for Appellant. E. Hardy Lewis, THARRINGTON
SMITH, Raleigh, North Carolina; Michael R. Ramos, Brunswick
County Attorney, RAMOS & LEWIS, Shallotte, North Carolina, for
Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The plaintiffs, seven African-American voters and politicians, sued
Brunswick County (North Carolina) and County officials, alleging
that the method by which members of the County's Board of Com-
missioners are elected dilutes minority votes in violation of § 2 of the
Voting Rights Act, 42 U.S.C. § 1973. The district court granted sum-
mary judgment to the defendants. We affirm because the lack of elec-
toral success, if any, by the candidates of African-Americans' choice
is due to the small number of African-American voters and their geo-
graphical dispersion throughout the County.

I.

Brunswick County's African-American population today is rela-
tively small. According to the 1990 Census, 50,985 people live in

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Brunswick County, 38,960 of whom are of voting age. The popula-
tion has increased dramatically since 1960, when 20,278 people lived
there. Much of the population growth is due to an influx of white
retirees from colder climates. As a result of this demographic shift,
the total percentage of African-Americans living in the County fell
from 35 percent in 1960 to 18 percent in 1990. In 1990 the County's
voting-age population was 83 percent white, 16 percent African-
American, and 1 percent other ethnic groups. Fourteen percent of reg-
istered voters are African-American. Of the County's 22 election pre-
cincts, African-Americans constitute a majority in only one. In seven
precincts, more than 90 percent of the registered voters are white.
African-Americans constitute a majority in less than 6 percent of the
County's Census blocks. They constitute a majority in none of the
County's six townships.

The County uses a modified at-large election system to choose its
Board of Commissioners. The Board has five members, and elections
for two-year terms are held every other year, with all seats up for
grabs. The County is divided into five residency districts, and the can-
didate from each district who receives the most votes, compared only
to other candidates living in the same district, serves. Voters, how-
ever, may vote for any candidate, regardless of where they or the can-
didate live. No African-American has been elected to the Board of
Commissioners since 1982. African-Americans have run for Board of
Commissioners in 9 elections since 1972, and have been elected 3 times.1
The parties do not dispute the above facts, but do dispute their mean-
ing.

The plaintiffs claim that African-Americans have been unable to
elect their preferred candidates to the Board and that the County's
election structure is responsible. The plaintiffs propose that a majority
African-American voting district be created to ensure that African-
Americans are adequately represented on the Board of Commission-
ers. We believe that because African-Americans in Brunswick County
are too few and too dispersed, the plaintiffs have failed to establish
a prima facie case of vote dilution.
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1 African-Americans sought to be elected to the Board in 1972, 1974,
1976, 1978, 1980, 1982, 1984, 1990, and 1994. African-Americans were
elected in 1974, 1976, and 1982.

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II.

Section 2(b) of the Voting Rights Act, 42 U.S.C.§ 1973(b), pro-
vides that an election system improperly dilutes the vote of minorities
if

based on the totality of circumstances, it is shown that the
political processes leading to nomination or election in the
State or political subdivision are not equally open to partici-
pation by [minorities] in that [they] 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 [minorities] 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 [minorities] elected in
numbers equal to their proportion in the population.

A vote dilution challenge to a multimember election system may
not proceed unless the plaintiff first establishes the following precon-
ditions ("Gingles preconditions"): (1) that the minority population "is
sufficiently large and geographically compact to constitute a majority
in a single-member district"; (2) that the minority group "is politically
cohesive"; and (3) "that the white majority votes sufficiently as a bloc
to enable it . . . usually to defeat the minority's preferred candidate."
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); see also Shaw v.
Hunt, 64 U.S.L.W. 4437, 4442 (U.S. June 13, 1996); Johnson v.
DeGrandy, 114 S. Ct. 2647, 2654-55 (1994); Growe v. Emison, 113
S. Ct. 1075, 1084 (1993). Failure of proof on even one precondition
defeats a vote dilution claim. Gingles, 478 U.S. at 50-51 n.17;
McGhee v. Granville County, 860 F.2d 110, 116-17 (4th Cir. 1988);
McNeill v. Springfield Park Dist., 851 F.2d 937, 942 (7th Cir. 1988),
cert. denied, 490 U.S. 1031 (1989).

We believe the district court correctly concluded that the plaintiffs
failed to establish the first Gingles precondition: geographic
compactness.2
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2 The district court also found that the plaintiffs failed to satisfy the
third Gingles precondition: that majority bloc voting usually defeats the
minority's preferred candidate. Because we find that the plaintiffs have
failed to establish compactness, we need not consider whether they have
forecast sufficient evidence of majority bloc voting.

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 The reason that a minority group making a [vote dilution]
challenge must show, as a threshold matter, that it is suffi-
ciently large and geographically compact to constitute a
majority in a single-member district is this: Unless minority
voters possess the potential to elect representatives in the
absence of the challenged structure or practice, they cannot
claim to have been injured by that structure or practice.

Gingles, 478 U.S. at 50-51 n.17 (emphasis in original). In other
words, minority voters must show that their votes have been diluted
by discriminatory elements of the election process, and not simply
that their votes are dilute. See DeGrandy, 114 S. Ct. at 2659-60;
McNeil, 851 F.2d at 946. "[T]he adverse`result' for which [Section
2] seeks a remedy must be traceable ultimately to the impact of `a
certain electoral law, practice, or structure interact[ing] with social
and historical conditions.'" McGhee, 860 F.2d at 117 (quoting
Gingles, 478 U.S. at 47) (emphasis supplied).

The evidence here shows that the African-American population is
dispersed throughout the County, constituting a majority in no single
township and a majority in only one election precinct, the County's
smallest. The plaintiffs' vote dilution claim fails because the African-
American population "is spread evenly throughout" the County.
Gingles, 478 U.S. at 51 n.17; accord Bush v. Vera, 64 U.S.L.W. 4452,
4460 (U.S. June 13, 1996) (plurality opinion of O'Connor, J., joined
by Rehnquist, C.J., and Kennedy, J.); Smith v. Brunswick County,
Virginia, 984 F.2d 1393, 1399 (4th Cir. 1992).

The plaintiffs make two attempts to prove that a reasonably com-
pact majority African-American voting district may be constructed.
Both attempts fail. The first proposed district sweeps through five of
the County's six townships and is 75 miles from tip to toe. We believe
the defendants' description of the proposed district is accurate:

[The plaintiffs propose] a 75 mile-long boomerang-shaped
district that meanders, seemingly aimlessly, around the
[southern] and eastern legs of the triangle.[Brunswick
County is roughly triangular.] From the vertex in Southport
[in the southeast] extend two "arms" which themselves are
irregular, especially the southern appendage extending from

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 Southport westward to Calabash. The path of this arm
roughly follows highways 211 and 17, but it juts randomly
northward and southward from the highway to capture pock-
ets of minority population. At one point a boot-like tentacle
steps southward toward Holden Beach. At several other
points, the district is only one census block wide. Befitting
its tortured path, the lower arm ends near Calabash with a
flourish -- hooking westward and then eastward, almost
falling back on itself. Ironically, as positioned on the page
in the joint appendix [JA 68A], this narrow, winding district
looks like a 75 mile-long question mark.

Br. of Appellee, at 14 (footnote omitted). Because the first proposed
district is "unreasonably irregular, bizarre,[and] uncouth," it does not
establish that the African-American population of Brunswick County
is sufficiently large and geographically compact to support a claim for
relief under § 2 of the Voting Rights Act. Cane v. Worcester County,
35 F.3d 921, 925 (4th Cir. 1994) (quoting Cane v. Worcester County,
840 F. Supp. 1081, 1087 (D. Md. 1994)), cert. denied, 115 S. Ct.
1097 (1995); accord Jeffers v. Tucker, 847 F. Supp. 655, 661-62
(E.D. Ark. 1994). Furthermore, the plaintiffs have not shown that in
developing their proposal they "adhered to [ ] traditional districting
principles." Cane, 35 F.3d at 927 n.6.

The second proposed majority African-American district is signifi-
cantly more compact, having omitted the first proposed district's east-
ern arm and having smoothed out some of the irregularity at the
western end of the southern arm. The second proposal, however, has
an even more serious flaw: it violates the one-person/one-vote rule
compelled by the Equal Protection Clause of the Fourteenth Amend-
ment.

To comply with the Equal Protection Clause, each voting district
should contain the same approximate number of voters. Voinovich v.
Quilter, 113 S. Ct. 1149, 1159 (1993); Brown v. Thomson, 462 U.S.
835, 842 (1983); Connor v. Finch, 431 U.S. 407, 416 (1977);
Reynolds v. Sims, 377 U.S. 533, 568 (1964). Equality of district size
is necessary to ensure "that each person's vote may be given equal
weight." Connor, 431 U.S. at 416.

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Brunswick County has a total population of 50,985. Thus, if all five
districts were of equal size, each would contain 10,197 people. The
second proposed majority African-American district would contain
9,080 people, or 11 percent below the ideal size of 10,197. Under this
proposal, the white district with the largest total population would
contain 10,527 people, or 3 percent above ideal. Thus, in terms of
total population, the plaintiffs' second proposal would result in a size
deviation of 14 percent between the largest and smallest districts.

When voting-age population is compared, the deviation is more
dramatic. The County's total voting-age population is 38,960, so ide-
ally each district would contain 7,792 persons of voting age. Under
the plaintiffs' second proposal, though, the majority African-
American district would contain 6,464 persons of voting age, or 17
percent fewer than the ideal district would contain. The white district
with the largest voting-age population would contain 8,537 persons of
voting age, or 10 percent greater than ideal. The total deviation in
terms of voting-age population, then, would be 27 percent under the
plaintiffs' proposal.

A total deviation of greater than 10 percent presumptively violates
the Equal Protection Clause. Brown, 462 U.S. at 842-43. Neverthe-
less, such a deviation may be upheld if "supported by substantial and
legitimate state concerns," such as allowing district lines to track nat-
ural geographic barriers, significant topological features, or long-
standing political boundaries. Id. The plaintiffs' second proposal
cannot be justified on the basis of these traditional concerns. Like the
first proposed district, albeit to a lesser extent, the second proposed
district respects neither township nor precinct lines, nor are its bound-
aries mandated by geography.

The plaintiffs have come forward with only one rationale in sup-
port of such a large population deviation: to allow creation of a major-
ity African-American voting district. The Supreme Court has recently
instructed us, however, that race-conscious districting may be allowed
only if doing so would be a narrowly tailored method of furthering
a compelling state interest. Shaw, 64 U.S.L.W. at 4440; Bush, 64
U.S.L.W. at 4458-59 (plurality opinion) & 4466-67 (Thomas, J., con-
curring, joined by Scalia, J.).

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The plaintiffs' asserted rationale does not justify drawing districts
whose populations deviate so dramatically. The plaintiffs claim that
the extreme deviation must be allowed in order to redress the dilution
of minority votes. This argument, however, is fatally circular because
no dilution has yet been proven, nor can dilution be proven absent an
independent showing of geographical compactness. The plaintiff can-
not show a compelling interest in redressing vote dilution without first
proving compactness. Compactness is an essential element of a vote
dilution claim, and that element must be satisfied by showing that a
minority representation district can be drawn in a manner that com-
plies "with the overriding demands of the Equal Protection Clause."
Sanchez v. Colorado, 861 F. Supp. 1516, 1523 (D. Colo. 1994).

[A] plaintiff seeking to meet its burden of showing compact-
ness under the first Gingles precondition should not be per-
mitted to rely on a plan which, if subsequently adopted by
the Court after a finding of a Section 2 violation, would
have no chance of being found to be narrowly tailored to
redress the violation.

Reed v. Town of Babylon, 914 F. Supp. 843, 871 (E.D.N.Y. 1996). If
we were to accept the plaintiffs' argument, every§ 2 plaintiff could
bootstrap his way out of Gingles' compactness requirement by claim-
ing that some unconstitutionally small district is"compact." This we
cannot allow. See McNeil, 851 F.2d at 946. 3
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3 At oral argument the plaintiffs suggested (for the first time) that even
if the African-American population is insufficiently compact to support
creation of a majority African-American district, the population is suffi-
ciently compact to allow creation of an African-American influenced dis-
trict, in other words, a district with a significant (although minority)
African-American presence. Because the plaintiffs did not raise this
argument below, we decline to consider it. See Growe, 113 S. Ct. at 1084
n.5; Bakker v. Grutman, 942 F.2d 236, 242 (4th Cir. 1991). Nor do we
accept the plaintiffs' suggestion that we remand the case to the district
court for reconsideration in light of the Supreme Court's recent decisions
in Shaw and Bush. We believe the district court's approach to the ques-
tion of compactness presented here was consistent with the two recent
Supreme Court cases.

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The judgment is affirmed.

AFFIRMED

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