Under § 5 of the Voting Rights Act of 1965, a covered State or
political subdivision, such as appellant city of Port Arthur, must
obtain federal preclearance of a change in its voting practices or
procedures either from the Attorney General or by obtaining a
declaratory judgment from the District Court for the District of
Columbia that the proposed change has neither the purpose nor the
effect of denying the right to vote on account of race. In 1977 and
1978, Port Arthur was consolidated with two neighboring cities and
annexed an incorporated area, with the result that the percentage
of the black population within Port Arthur's borders decreased from
45.21% to 40.56%. Appellant ultimately filed a § 5 suit in the
District Court, seeking approval of the consolidations and the
annexation, and of a proposed expansion of its City Council from
seven members (including a mayor), who had been previously elected
at large by majority vote, to a nine-member Council. After the
rejection of earlier electoral plans, appellant submitted a plan
involving election of councilmen from four single-member districts,
two of which included black majorities; election of two members
from two other districts, each of which consisted of two of the
four single-member districts, and one of which had a black
majority; and at-large election of two other members from the
latter two districts and of the mayor. All Council seats would be
governed by a majority vote rule, requiring runoffs if none of the
candidates received a majority of the votes cast. Although
concluding that the expansion of Port Arthur's borders could not be
denied preclearance as being discriminatory in purpose, the
District Court held that the electoral plan could not be approved
under § 5 because it insufficiently neutralized the adverse impact
upon minority voting strength that resulted from the expansion.
However, the court stated that, if the plan were modified to
eliminate the majority vote requirement with respect to the two
nonmayoral, at-large candidates, and to permit election to those
two seats to be made by a plurality vote, the court would consider
the defect remedied, and would offer its approval.
Held: The District Court did not exceed its authority
in conditioning clearance of the electoral plan on the elimination
of the majority vote requirement. Pp.
459 U. S.
165-168.
Page 459 U. S. 160
(a) Section 5 does not forbid all expansion of municipal borders
that dilute the voting power of particular groups in the community.
However, such an expansion can be approved only if modifications in
the electoral plan, calculated to neutralize to the extent possible
any adverse effect on the political participation of minority
groups, are adopted. Pp.
459 U. S.
165-166.
(b) The District Court did not err in holding that the majority
vote requirement as to the nonmayoral, at-large council seats must
be eliminated in order to sufficiently dispel the impact of Port
Arthur's expansion on the relative political strength of the black
community. Whether the plan adequately reflected black political
strength in the enlarged city is not an issue that is determinable
with mathematical precision. Since the plan undervalued to some
extent the political strength of the black community, eliminating
the majority vote requirement was an understandable adjustment.
And, even if the electoral scheme might otherwise be said to
reflect the political strength of the minority community,
elimination of the majority vote element was a reasonable hedge
against the possibility that the scheme contained a purposefully
discriminatory element. Pp.
459 U. S.
166-168.
Affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
POWELL, J., filed a dissenting opinion, in which REHNQUIST and
O'CONNOR, JJ., joined,
post, p.
459 U. S.
169.
JUSTICE WHITE delivered the opinion of the Court.
Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, as
amended, 42 U.S.C. § 1973c, requires that, when a State or
Page 459 U. S. 161
political subdivision covered by the Act [
Footnote 1] adopts or seeks to administer any
change in its standards, practices, or procedures with respect to
voting, it must obtain a preclearance either from the Attorney
General of the United States or by obtaining a declaratory judgment
from the District Court for the District of Columbia that the
proposed change has neither the purpose nor the effect of denying
or abridging the right to vote on account of race. [
Footnote 2]
Perkins v. Matthews,
400 U. S. 379
(1971), held that changes in the boundary lines of a city by
annexations that enlarge the number of eligible voters are events
covered by § 5. The question in this case is whether the District
Court for the District of Columbia correctly
Page 459 U. S. 162
held that the electoral plan for the Port Arthur, Tex., City
Council could not be approved under § 5 because it insufficiently
neutralized the adverse impact upon minority voting strength that
resulted from the expansion of the city's borders by two
consolidations and an annexation.
I
In December, 1977, the city of Port Arthur, Tex., consolidated
with the neighboring cities of Pear Ridge and Lake View. Six months
later, the city annexed Sabine Pass, an incorporated area. As a
result of these expansions of the city's borders, the percentage of
the black population in Port Arthur decreased from 45.21% to
40.56%. Blacks of voting age constituted 35% of the population of
the enlarged city. [
Footnote
3]
Prior to the expansions, the city was governed by a seven-member
Council, including a mayor, each member being elected at large by
majority vote. Each member except the mayor was required to reside
in a specific district of the city. Members were elected for
staggered terms. Following the two consolidations, the City Council
passed an ordinance adding an eighth member to the Council, while
retaining the at-large system with residency requirements. After
the annexation of Sabine Pass, the city further proposed that the
Council be expanded to nine members, with at-large elections as
before. The two consolidations and the annexation, together with
the proposed changes in the governing system, were submitted to the
Attorney General for preclearance
Page 459 U. S. 163
pursuant to § 5 of the Voting Rights Act. The Attorney General
refused preclearance, suggesting, however, that he would reconsider
if the Council members were elected from fairly drawn single-member
districts.
As § 5 permitted it to do, the city then filed suit in the
United States District Court for the District of Columbia seeking a
declaratory judgment that the expansions and the nine-member plan
did not have the purpose or effect of denying or abridging the
right to vote on account of color or race within the meaning of §
5. While that suit was pending, the city approved by referendum the
"4-4-1" plan, calling for four members to be elected from
single-member districts, four to be elected at large from residency
districts identical to the single-member districts, and the ninth
member, the mayor, to be elected at large without any residency
requirement. [
Footnote 4] That
plan, like the previous plans, required a majority vote to elect
each Council member. The city then moved to amend its complaint so
as to seek a declaratory judgment as to the legality of the 4-4-1
plan.
The District Court concluded that, because there were legitimate
purposes behind the annexation and the consolidations, those
actions, under
City of Richmond v. United States,
422 U. S. 358
(1975), could not be denied preclearance as discriminatory in
purpose.
517 F.
Supp. 987 (1981). Because the expansions had substantially
reduced the relative political strength of the black population,
however, it was necessary for preclearance that the post-expansion
electoral system be found to satisfy the requirements of § 5. The
District Court held that neither the first nine-member plan nor the
4-1-1 plan measured up, not only because each was adopted with a
discriminatory purpose but also because, in the context of the
severe racial bloc voting characteristic of the recent past in the
city, neither plan adequately reflected
Page 459 U. S. 164
the minority's potential political strength in the enlarged
community, as required under
City of Rome v. United
States, 446 U. S. 156
(1980);
City of Richmond v. United States, supra; and
City of Petersburg v. United States, 354 F.
Supp. 1021 (DC 1972),
summarily aff'd, 410 U.S. 962
(1973).
Soon after this decision, the city and the United States jointly
submitted to the court for approval the "4-2-3" electoral plan.
Under this scheme, the city would be divided into four
single-member districts, Districts 1 through 4. District 5,
comprising Districts 1 and 4, would elect another member, as would
District 6, which combined Districts 2 and 3. Three additional
members would be elected at large, one each from Districts 5 and 6,
the third at-large seat to be occupied by the mayor, and to have no
residency requirement. All Council seats would be governed by the
majority vote rule, that is, runoffs would be required if none of
the candidates voted on received a majority of the votes cast.
Blacks constituted a majority in Districts 1 and 4, 79% and 62.78%
respectively, as well as a 70.83% majority of the fifth district
combining the two majority black districts. The sixth district was
10.98% black. Although the United States expressed reservations
about the at-large and majority vote features, its position was
that neither of these aspects of the plan warranted a denial of
preclearance.
After response to and oral argument upon the submission, the
District Court concluded
"that the proposed plan insufficiently neutralizes the adverse
impact upon minority voting strength which resulted from the
expansion of Port Arthur's borders."
App. 87a. The court added, however, that, if the plan were
modified to eliminate the majority vote requirement with respect to
the two nonmayoral, at-large candidates, and to permit election to
these two seats to be made by a plurality vote, the court "would
consider the defect remedied, and offer our approval."
Id.
at 87a-88a. This appeal followed, the basic submission being that,
under § 5 and the controlling cases the District Court exceeded its
authority in
Page 459 U. S. 165
conditioning clearance of the 4-2-3 plan on the elimination of
the majority vote requirement. [
Footnote 5] We noted probable jurisdiction. 455 U.S. 917
(1982).
II
Perkins v. Matthews, 400 U. S. 379
(1971), held that annexations by a city are subject to § 5
preclearance because increasing the number of eligible voters
dilutes the weight of the votes of those to whom the franchise was
limited before the annexation, and because the right to vote may be
denied by dilution or debasement just as effectively as by wholly
prohibiting the franchise. It soon became clear, however, that § 5
was not intended to forbid all expansions of municipal borders that
could be said to have diluted the voting power of particular groups
in the community. In
City of Petersburg v. United States,
supra, the annexation of an area with a heavy white majority
resulted in reducing the black community from majority to minority
status. The District Court held that the annexation could
nevertheless be approved, but
"only on the condition that modifications [in the electoral
plan] calculated to neutralize to the extent possible any adverse
effect upon the political participation of black voters are
adopted,
i.e., that the [city] shift from an at-large to a
ward system of electing its city councilmen."
354 F. Supp. at 1031. We affirmed summarily. 410 U.S. 962
(1973).
Later, in
City of Richmond v. United States, supra, we
expressly reaffirmed
Petersburg, recognizing that the
Petersburg annexation enhanced the power of the white majority
to
Page 459 U. S. 166
exclude Negroes from the city council, but stating that such a
consequence "would be satisfactorily obviated if at-large elections
were replaced by a ward system of choosing councilmen." 422 U.S. at
422 U. S. 370.
It was our view that a fairly designed ward plan
"would not only prevent the total exclusion of Negroes from
membership on the council, but would afford them representation
reasonably equivalent to their political strength in the enlarged
community."
Ibid. We applied these principles in
City of
Richmond. There, the annexation of a heavily white area
reduced the black population of the city from 52% to 42%, and the
electoral proposal submitted for preclearance replaced the prior
system of at-large elections with a single-member plan under which
blacks would be in a substantial majority in four of the nine
councilmanic districts. We held that, as long as the ward system
fairly reflected the strength of the Negro community as it existed
after the annexation, preclearance under § 5 should be granted.
Under such a plan, "Negro power in the new city [would not be]
undervalued, and Negroes [would] not be underrepresented on the
council."
Id. at
422 U. S. 371.
The annexation could not, therefore, be said to have the effect of
denying or abridging the right to vote on account of race within
the meaning of § 5.
In the case before us, Port Arthur was a party to two
consolidations and an annexation. Because the areas taken into the
city were predominantly white, the relative percentage of blacks in
the enlarged city was substantially less than it was before the
expansions. The District Court refused preclearance because, in its
view, the post-expansion electoral system did not sufficiently
dispel the adverse impact of the expansions on the relative
political strength of the black community in Port Arthur. The city
submits that this judgment was in error under
Petersburg
and
Richmond.
Richmond, however, involved a fairly drawn,
single-member district system that adequately reflected the
political strength of the black community in the enlarged city.
The
Page 459 U. S. 167
plan was consequently an acceptable response to the annexation's
adverse impact on minority voting potential. It does not
necessarily follow that the mixed single-member and at-large system
at issue in this case sufficiently dispelled the impact of Port
Arthur's expansions on the relative political strength of the black
community. The District Court concluded that, although the 4-2-3
system provided a black majority in three councilmanic districts,
it was necessary also to eliminate the majority vote requirement
with respect to the two nonmayoral at-large council positions. For
several reasons, we cannot say that the District Court erred in
this respect.
First, whether the 4-2-3 plan adequately reflected the political
strength of the black minority in the enlarged city is not an issue
that is determinable with mathematical precision. Because
reasonable minds could differ on the question, and because the
District Court was sitting as a court of equity seeking to devise a
remedy for what otherwise might be a statutory violation, we should
not rush to overturn its judgment.
Cf. Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S.
1,
402 U. S. 15
(1971).
Second, the 4-2-3 plan undervalued to some extent the political
strength of the black community: one-third of the Council seats was
to be elected from black majority districts, but blacks constituted
40.56% of the population of the enlarged city and 35% of the voting
age population. In light of this fact, eliminating the majority
vote requirement was an understandable adjustment. As the District
Court well understood, the majority vote rule, which forbade
election by a plurality, would always require the black candidate
in an at-large election, if he survived the initial round, to run
against one white candidate. In the context of racial bloc voting
prevalent in Port Arthur, the rule would permanently foreclose a
black candidate from being elected to an at-large seat. Removal of
the requirement, on the other hand, might enhance the chances of
blacks to be elected to the two at-large
Page 459 U. S. 168
seats affected by the District Court's conditional order, but
surely would not guarantee that result. Only if there were two or
more white candidates running in a district would a black have any
chance of winning election under a plurality system. We cannot say
that insisting on eliminating the majority vote rule in the two
at-large districts would either overvalue black voting strength in
Port Arthur or be inconsistent with
Richmond.
Third, even if the 4-3 electoral scheme might otherwise be said
to reflect the political strength of the minority community, the
plan would nevertheless be invalid if adopted for racially
discriminatory purposes,
i.e., if the majority vote
requirement in the two at-large districts had been imposed for the
purpose of excluding blacks from any realistic opportunity to
represent those districts or to exercise any influence on Council
members elected to those positions.
City of Richmond v. United
States, 422 U.S. at
422 U. S.
378-379. The District Court made no finding that the
4-2-3 plan was tainted by an impermissible purpose, but it had
found that the two preceding plans, the first nine-member plan and
the 4-1-1 plan, had been adopted for the illicit purpose of
preventing black candidates from winning election. The court had
also found that the majority vote requirement was a major means of
effectuating this discriminatory end. When it was then presented
with the 4-2-3 plan retaining the requirement for the two
nonmayoral at-large seats, the Court conditioned approval on
eliminating the majority vote element. It seems to us that, in
light of the prior findings of discriminatory purpose, such action
was a reasonable hedge against the possibility that the 4-2-3
scheme contained a purposefully discriminatory element. On balance,
we cannot fault the judgment of the District Court.
The judgment of the District Court is accordingly
Affirmed.
Page 459 U. S. 169
[
Footnote 1]
It is undisputed that the city of Port Arthur is a political
subdivision to which § 5 is applicable.
See 28 CFR, p.
461, Appendix (1982).
[
Footnote 2]
Section 5, as set forth in 42 U.S.C. § 1973c, in relevant part
provides as follows:
"Whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title based
upon determinations made under the first sentence of section
1973b(b) of this title are in effect shall enact or seek to
administer any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting different
from that in force or effect . . . such State or subdivision may
institute an action in the United States District Court for the
District of Columbia for a declaratory judgment that such
qualification, prerequisite, standard, practice, or procedure does
not have the purpose and will not have the effect of denying or
abridging the right to vote on account of race or color, or in
contravention of the guarantees set forth in section 1973b(f)(2) of
this title, and unless and until the court enters such judgment no
person shall be denied the right to vote for failure to comply with
such qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such proceeding if
the qualification, prerequisite, standard, practice, or procedure
has been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made."
[
Footnote 3]
The pre-annexation and post-annexation percentages are based on
the 1980 census. The figure for the percentage of blacks in the
voting age population is an estimate, which the District Court
derived by extrapolating from the 1970 census data. The 1970 census
showed that, at that time, 34.6% of the voting age population was
black, while 40.01% of the general population was black. The
District Court itself noted the dangers of extrapolation, but
explained that both parties had suggested the procedure for
determining the percentage of the current voting age population
that is black. Port Arthur also has a Hispanic community, which
comprises 6.30% of the enlarged city's population.
[
Footnote 4]
The United States unsuccessfully sought to enjoin the referendum
election before a three-judge court in the Eastern District of
Texas.
United States v. City of Port Arthur, No. 80-21CA
(Sept. 5, 1980).
[
Footnote 5]
The city argues that the District Court was required to approve
a plan jointly submitted by the city and the Attorney General. The
Voting Rights Act, however, assigns primary responsibility to the
District Court to determine whether a change in voting procedures
violates § 5. Preclearance by the Attorney General may obviate a
court suit, but here the Attorney General was acting in the
capacity of a litigant when he joined the city in submitting a plan
for the court's consideration. In that posture, neither the
Attorney General, the city, nor both of them together could dictate
the court's conclusion as to the acceptability of the plan under §
5.
JUSTICE POWELL, with whom JUSTICE REHNQUIST and JUSTICE O'CONNOR
join, dissenting.
The Court affirms the District Court's order, concluding that,
although the 4-2-3 plan ensures proportional representation for the
black voting age population, a district court nevertheless is free
under § 5 -- in the exercise of a newly perceived equitable
jurisdiction -- to require a city to "enhance" the chances of
increased minority representation on a city's governing body. In
this case, the perceived enhancement would be that a plurality,
rather than a majority election requirement, would give black
citizens a better chance of capturing -- in addition to the three
district seats assured them -- the two at-large seats.
Ante at
459 U. S.
167-168. [
Footnote 2/1]
Because the Court's decision is irreconcilable with
City of
Richmond v. United States, 422 U. S. 358
(1975), and authorizes a standardless equitable jurisdiction in
district courts, I dissent.
I
In
City of Richmond, the city annexed territory,
reducing the percentage of the city's black population from 52% to
42%. After the Attorney General refused to preclear submitted
election plans, he and the city came to an agreement and jointly
submitted a plan for approval to the District Court for the
District of Columbia. The District Court rejected this plan because
the city had failed to "minimiz[e] the dilution of black voting
power to the greatest possible extent."
Id. at
422 U. S. 367.
This Court, in an opinion by JUSTICE WHITE, vacated the District
Court's order, holding that a district court must accept a new
electoral plan for the enlarged municipality as long as it "fairly
reflects the strength of the Negro community as it exists after the
annexation" and
Page 459 U. S. 170
"would afford [it] representation reasonably equivalent to [its]
political strength in the enlarged community."
Id. at
422 U. S.
370-371.
See City of Rome v. United States,
446 U. S. 156,
446 U. S. 187
(1980),
aff'g 472 F.
Supp. 221, 245 (DC 1979);
City of Rome, supra, at
446 U. S. 188
(BLACKMUN, J., concurring);
United Jewish Organizations v.
Carey, 430 U. S. 144,
430 U. S. 160
(1977) (opinion of WHITE, J.);
Beer v. United States,
425 U. S. 130,
425 U. S. 139,
n. 11 (1976). In dissent, JUSTICE BRENNAN stated that he would find
the dilutive effect of an annexation cured only by an election plan
"calculated to neutralize to the extent possible any adverse effect
upon the political participation of black voters." 422 U.S. at
422 U. S.
389.
In this case, the city expanded its boundaries by annexation and
consolidation. [
Footnote 2/2] This
resulted in reducing the percentage of its black population from
45.21% to 40.56%. The electoral plan for the enlarged city,
submitted to the Attorney General under § 5 of the Voting Rights
Act of 1965, was disapproved both by the Attorney General and then
by the District Court for the District of Columbia. Following
negotiations, the Attorney General and the city reached
agreement
Page 459 U. S. 171
that the 4-2-3 electoral plan -- at issue in this case --
complied with the requirements of the Voting Rights Act.
Accordingly, the plan was jointly submitted by the Attorney General
and the city to the District Court for its approval. Under this
plan, the city's 35% black voting age population was assured of 33%
of the City Council positions,
i.e., three of nine
members.
The District Court rejected the agreed-upon plan in a brief
order because, in words reminiscent of JUSTICE BRENNAN's dissent in
City of Richmond, it "insufficiently neutralizes the
adverse impact upon minority voting strength." App. 87a. The court
added, however, that it would approve the plan were it modified "so
as to provide for the election of the two non-mayoral, at-large
representatives by plurality vote,"
ibid., a condition to
approval that the Attorney General had expressly considered and
found not to be required by the Act.
I find the Court's decision in
City of Richmond and in
this case fundamentally inconsistent, because the proportional
representation assured by the 4-2-3 plan must, by definition,
"afford [blacks] representation reasonably equivalent to their
political strength in the enlarged community." 422 U.S. at
422 U. S.
370-371.
Cf. United Jewish Organizations,
supra, at
430 U. S. 169
(BRENNAN, J., concurring in part) ("[T]he very definition of
proportional representation precludes either underrepresentation or
overrepresentation . . ."). Apparently in an effort to justify its
decision, the Court states that the agreed 2-3 plan "undervalued to
some extent the political strength of the black community."
Ante at
459 U. S. 167.
No support for this statement is cited, and none is found in the
record. [
Footnote 2/3] The
District
Page 459 U. S. 172
Court made no such finding, and the Government, in its
submission to the District Court, expressly asserted that the
city's plan
"would appear to provide the minority community with a fair
opportunity to obtain 'representation reasonably equivalent to
their political strength in the enlarged community.'
City of
Richmond v. United States, 422 U. S. 358,
422 U. S.
370 (1975)."
App. 79a-80a. The black intervenors also agreed at the time of
the submission that "the plan does approach affording blacks
representation reasonably equivalent to their voting strength in
the at-large community. . . ."
Id. at 83a.
II
Furthermore, the Court's decision finds no support in any prior
decision of this Court. The theory that political
Page 459 U. S. 173
strength should be enhanced, rather than preserved, is new
doctrine. It is a view Congress has never embraced, and indeed one
that the 1982 extension of the Voting Rights Act fairly can be
viewed as rejecting. [
Footnote 2/4]
Moreover, although I do not question the power of a district court
to disagree with the Attorney General's construction of the Act, it
does not follow that the District Court was "sitting as a court of
equity,"
ante at
459 U. S. 167,
and had the power to require political enhancement. We are
interpreting and applying a statute that vests no such open-ended
jurisdiction in
any court.
In the first six months of this year, the Department of Justice
received approximately 8,709 applications for preclearance of
voting changes under § 5, an average of 66 per working day.
[
Footnote 2/5] Congress, with the
approval of the President, has recently reaffirmed the authority of
Department of Justice personnel to exercise this extensive control
over state and local
political decisions. The sheer volume
of applications for preclearance makes imperative the prescribing
of predictable standards. Proportional representation, whatever its
theoretical and practical limitations may be in a nation with
populations as diverse and mobile as that of the United States, is
at least an objective standard, and when it
Page 459 U. S. 174
is found to exist in a § 5 case -- whether deemed necessary
under the Act or not -- it should be dispositive. The Court today,
however, finds for the first time a standardless equitable
discretion in the District Court for the District of Columbia to
impose requirements in addition to proportional representation.
This leaves the responsible authorities in the State and
communities under the Act -- as well as the Attorney General --
without guidance as to the requirements of § 5.
III
The Court's discussion of discriminatory purpose as providing
some support for the District Court's "effects" determination is
disquieting for a number of reasons. First, as the Court notes, the
District Court made no finding that the 4-2-3 plan was tainted by
an impermissible purpose. Second, the District Court expressly
found that no discriminatory motive prompted the city's annexation
of the three jurisdictions involved.
517 F.
Supp. 987, 1019-1021 (DC 1981). Third, the factors that led the
District Court to conclude that the earlier 8-0-1 and 4-4-1 plans
had been adopted for a discriminatory purpose have no bearing on
the question whether the city was similarly motivated when it
adopted the 4-2-3 plan at a later time and pursuant to good faith
negotiations with the Attorney General. Finally, the Government
concedes that purpose is not a factor in this case. [
Footnote 2/6] Indeed, the Court fails to
explain -- nor can it explain satisfactorily -- how a plan
negotiated with and acceptable to the Attorney General was adopted
for a discriminatory purpose.
Page 459 U. S. 175
In my opinion, the city has shown that its 4-2-3 plan has
satisfied fully § 5's effect-and-purpose test and the standard
adopted in
City of Richmond. We now should demand no more.
I would reverse the District Court's order.
[
Footnote 2/1]
The Court has recognized that a majority vote requirement in
at-large elections, unless adopted as a change for discriminatory
purposes, is a valid and long-accepted practice "that is followed
by literally thousands of municipalities and other local
governmental units throughout the Nation."
See City of Mobile
v. Bolden, 446 U. S. 55,
446 U. S. 60
(1980) (plurality opinion).
[
Footnote 2/2]
The District Court acknowledged benefits for the entire
population from consolidation:
"Port Arthur . . . was extremely interested in maintaining a
population in excess of 50,000 so as to remain entitled as a matter
of right to funds from federal agencies, including the Department
of Housing and Urban Development ('HUD'). Were the population to
decrease below the 50,000 level, HUD would diminish the amount of
the direct grant by one-third each year; in the fourth year, the
City would have to [compete] with other applicants for
discretionary awards. Since 1975, . . . there was evidence that the
municipal population was [declining towards] the 50,000 mark. . . .
Having already annexed all of the adjacent black communities, the
City turned to Pear Ridge, Lakeview and Griffing Park."
". . . Although the City would be required to provide services
to the new residents, it was anticipated that the additional cost
would be minimal and greatly outweighed by the increased tax
revenue. . . . Furthermore, Port Arthur hoped that the increased
visibility resulting from consolidation would attract new
businesses, and thereby create new jobs."
517 F.
Supp. 987, 999 (1981) (footnote omitted).
[
Footnote 2/3]
In interim elections held in 1981, the city's electorate chose
three black Council members. In fact, the city notes that it is now
governed by a Council consisting of four blacks and five whites.
Reply Brief for Appellant 6.
The Court seems to rely on two factors for its conclusion: a
slight differential between the percentage of black seats and the
percentage of black voting age population; and a larger
differential between the percentage of black seats and the
percentage of the black population. There is a preference for
voting age population statistics,
see United Jewish
Organizations v. Carey, 430 U. S. 144,
430 U. S. 164,
n. 23 (1977) (opinion of WHITE, J.), because they are more
"probative" of the "electoral potential of the minority community,"
City of Rome v. United States, 446 U.
S. 156,
446 U. S. 186,
n. 22 (1980), than population statistics. Even if the Court were to
rely on population statistics here, this Court's formulations
reflect the recognition that it would be unreasonable, if not
impossible, to require cities to devise voting plans that afford
minorities representation precisely proportional to their political
strength in the jurisdiction. Indeed, the Court has indicated that
proportional representation would be found in circumstances quite
similar to those presented here.
See Beer v. United
States, 425 U. S. 130,
425 U. S. 159,
n.19 (1976) (MARSHALL, J., dissenting) (approving
representation/voting age population differential of 6%).
Moreover, the Court's conclusion that the 4-2-3 plan will
"permanently foreclose" blacks from being elected to either of the
at-large seats,
ante at
459 U. S. 167,
ignores the dynamics of the region, to which the facts of this case
attest. With 35% of the voting age population composed of black
citizens, it is politically naive to think that these citizens will
not have significant -- and indeed often decisive -- influence in
the election of at-large Council members. The results in numerous
state and local elections demonstrate the political power of such a
large and cohesive segment of the electorate.
See J.
Wilkinson, Harry Byrd and the Changing Face of Virginia Politics,
1945-1966, p. 346 (1968) ("By the middle of the 1960's . . .
Negroes provided balance-of-power ballots [in Virginia and]
elsewhere in the South . . .").
[
Footnote 2/4]
Section 3 of the Voting Rights Act Amendments of 1982, Pub.L.
97-205, 96 Stat. 131, 42 U.S.C. § 1973b (1982 ed.), states that a
violation has been established if it is shown, "based on the
totality of circumstances," that the political processes "are not
equally open to [blacks]." The amendment expressly provides that
"[t]he extent to which members of a protected class have been
elected to office . . . is one circumstance which may be
considered. . . ." The Senate Committee Report stated:
"Electoral devices, including at-large elections,
per
se would not be subject to attack under Section 2. They would
only be vulnerable if, in the totality of circumstances, they
resulted in the denial of equal access to the electoral process.
[T]he presence of minority elected officials is a recognized
indicator of access to the process. . . ."
S.Rep. No. 97-417, p. 16 (1982).
[
Footnote 2/5]
See U.S. Dept. of Justice, Civil Rights Division,
Voting Rights Section, Number of Changes Submitted under Section 5
and Reviewed by the Department of Justice, By State and Year, 1965
-- June 30, 1982 (unpublished).
[
Footnote 2/6]
The following exchange took place at oral argument:
"[The Court]: And may I get clear, is purpose still in this case
at this level?"
"[The Government]: Not in terms of the submission to this Court,
no, Your Honor."
"[The Court]: So we consider only the effect?"
"[The Government]: Yes, Your Honor. I don't believe that the
district court's opinion or order can fairly be read to cast any
doubt on the purpose of the plan as adopted."
Tr. of Oral Arg. 30.