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MCNEIL v. CITY OF SPRINGFIELD

January 12, 1987

FRANK MCNEIL, WILLIAM H. WASHINGTON, SR., RUDOLPH
v.
DAVENPORT, HOWARD VEAL, SR., AND ARCHIE LAWRENCE, INDIVIDUALLY AND REPRESENTING ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. CITY OF SPRINGFIELD, ILLINOIS, J. MICHAEL HOUSTON, FRANK MADONIA, JAMES NORRIS, OSSIE LANGFELDER, AND J. PATRICK WARD, AS MAYOR AND COMMISSIONERS OF THE CITY OF SPRINGFIELD, ILLINOIS, DEFENDANTS COUNTERPLAINTIFFS, V. FRANK MCNEIL, WILLIAM H. WASHINGTON, SR., RUDOLPH V. DAVENPORT, ARCHIE LAWRENCE, AND HOWARD VEAL, SR., COUNTERDEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

MEMORANDUM OPINION

I. NATURE OF THE CASE

Jurisdiction is given to the court by 28 U.S.C. § 1331, 1343(3) and (4). There is no dispute as to jurisdiction.

The case was filed on April 2, 1985. After extensive discovery by the parties and a series of hearings pursuant to Fed.R.Civ.P. 16, the case concluded with eleven days of trial in December, 1986.

The issue presented for decision is: considering the totality of the circumstances, do the plaintiffs have an equal opportunity to participate in the political processes of the City of Springfield and to elect candidates of their choice to the city commission?

II. THE APPLICABLE LAW

The plaintiffs have brought suit under Section 2 of the Voting Rights Act of 1965, as amended June 29, 1982, 42 U.S.C. § 1973. That Act, as amended, reads as follows:

    (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 the denial or
  abridgement of the right of any citizens 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), as provided in subsection (b).
    (b) A violation of subsection (a) is established
  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 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.

42 U.S.C. § 1973.

To understand amended Section 2, the events leading up to its enactment should be noted. As originally enacted, Section 2 was a restatement of the Fifteenth Amendment and added little to the constitutional protections of the Fourteenth and Fifteenth Amendments. See S.Rep. No. 417, 97th Cong., 2d Sess. 19 (1982), U.S.Code Cong. & Admin.News 1982, pp. 177, 196 (hereinafter S.Rep. No. 417). Vote dilution challenges were generally made upon constitutional grounds. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The case law, in particular White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd sub. nom, East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam), announced that the test in a vote dilution case, whether brought on a statutory or constitutional basis, was one of "results," looking at the totality of the circumstances. Proof of discriminatory intent was not a prerequisite to a finding that an election system was unlawful. The test changed, however, when the Supreme Court, in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), held that proof of discriminatory intent was a necessary element of a vote dilution claim. The impact of Bolden was immediate. See S.Rep. No. 417, pp. 203-204.

Two years after the Bolden decision, Congress passed the amendments to Section 2. In Thornburg v. Gingles, ___ U.S. ___, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), four years later, the Supreme Court had its first opportunity to interpret amended Section 2. In a case arising under amended Section 2 not only are the observations of the Supreme Court in Gingles pertinent, but also the observations of the three-judge district court whose opinion was accepted and affirmed by the Supreme Court. Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), aff'd sub. nom, Thornburg v. Gingles, ___ U.S. ___, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

The legislative history of the amendment to Section 2 clearly shows the statute's purpose. First, the amendment was in direct response to Bolden — the fundamental aim of the amendment was to eliminate intent to discriminate as an element of a statutory vote dilution claim. The Senate Judiciary Committee Report on the amendment states, "The amendment to the language of Section 2 is designed to make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenged system of [sic] practice in order to establish a violation." S.Rep. No. 417, p. 205.

Section 2, as amended, adopted a results test which, irrespective of intent, requires assessment of the totality of the circumstances of the electoral process and a determination of whether that process resulted in cancelling out or minimizing the voting strength of racial groups. Gingles v. Edmisten, 590 F. Supp. at 353-54.

Second, the Congress intended that courts, in assessing the totality of the circumstances, should look to the interaction of the challenged mechanism with those historical social and political factors generally suggested as probative of dilution. Id. at 354. The Senate Report accompanying Section 2 lists those factors as:

    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;
    3. 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;
    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.
    Additional factors that in some cases have had
  probative value as part of plaintiffs' evidence
  to establish 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.
      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.

S.Rep. No. 417, pp. 206-207 (footnotes omitted).

Third, Congress intended that amended Section 2 should be interpreted in conformity with the statutory constructions of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and its progeny. In that sense, the essence of racial vote dilution is this:

  because of the interaction of substantial and
  persistent racial polarization in voting patterns . .
  . a racial minority with distinctive group interests
  that are capable of aid or amelioration by government
  is effectively denied the political power to further
  those interests that numbers alone would presumptively
  . . . give it in a voting constituency not racially
  polarized in its voting behavior. . . . Vote dilution
  in this sense can exist not withstanding the relative
  absence of structural barriers to exercise of the
  electoral franchise.

Gingles, 590 F. Supp. at 355.

Under this line of reasoning, vote dilution may result "from the submergence in one multi-member district of black voter concentrations sufficient, if not `fractured' or `submerged,' to constitute an effective single-member district voting majority." Id.

Finally, as the Gingles trial court observed, Congress, in enacting amended Section 2,

  made a deliberate political judgment that the
  time had come to apply the statute's remedial
  measures to present conditions of racial vote
  dilution. . . .
    In making that political judgment, Congress
  necessarily took into account and rejected as
  unfounded, or assumed as outweighed, several risks to
  fundamental political values that opponents of the
  amendment urged in committee deliberations and floor
  debate. Among these were the risk that the judicial
  remedy might actually be at odds with the judgment of
  significant elements in the racial minority; the risk
  that creating "safe" black-majority single-member
  districts would perpetuate racial ghettos and racial
  polarization in voting behavior; the risk that
  reliance upon the judicial remedy would supplant the
  normal, more healthy processes of acquiring political
  power by registration, voting and coalition building;
  and the fundamental risk that the recognition of
  "group voting rights" and the imposing of affirmative
  obligation upon government to secure those rights by
  race-conscious electoral mechanisms was alien to the
  American political tradition.
    For courts applying Section 2, the significance
  of Congress's general rejection or assumption of
  these risks as a matter of political judgment is
  that they are not among the circumstances to be
  considered in determining whether a challenged
  electoral mechanism presently "results" in racial
  vote dilution, either as a new or perpetuated
  condition.

Id. at 356-57 (emphasis in original) (footnotes omitted).

Although Congress expanded Section 2 liability by eliminating the intent requirement, it limited the circumstances under which a Section 2 violation may be proved in three ways: (1) electoral devices, such as at-large elections, are not per se violations of the statute; the totality of the circumstances must show unequal access to the political process; (2) allegedly dilutive mechanisms and lack of proportional representation in and of themselves do not establish a violation of Section 2; and (3) racial bloc voting will not be assumed to exist; the plaintiffs must prove it exists. Gingles, 106 S.Ct. at 2764.

In Gingles, the Supreme Court held that "[t]he essence of a Section 2 claim is that a certain electoral . . . structure interacts with the social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Id. at 2764-65. The Supreme Court expressly noted that such an inequality exists when at-large voting schemes operate to cancel out the voting strength of racial minorities. Id.

To prove that an at-large system cancels out the voting strength of a racial minority, the minority must establish the existence of three conditions: (1) that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) that it is politically cohesive; and (3) that the white majority voting bloc usually defeats the minority's preferred candidate. Id. at 2766-67.

Without establishing the first condition, the minority group cannot show that it has even the potential to elect the candidate of its choice in the absence of the alleged discriminatory practice. Id. at 2766, n. 17. The final two requirements comprise the foundation for a finding that racial vote polarization exists. Establishment of these two conditions demonstrates that the black minority usually votes for one candidate, and the white majority votes for and elects a different candidate. If this racial vote polarization exists, then the minority voters have shown that "submergence in a white multi-member district impedes its ability to elect its chosen representatives." Id. at 2767.

It is important to remember that the term racially polarized voting merely "refers to the situation where different races vote in blocs for different candidates." Id. at 2773. The Supreme Court stressed that "[r]acially polarized voting refers only to the existence of a correlation between the race of voters and the selection of certain candidates. . . . Defendants may not rebut that case with evidence of causation [e.g., multivariate analysis] or intent." Id. at 2779.

III. FINDINGS OF FACT*fn1

         A. THE NATURE AND HISTORY OF THE GOVERNMENT OF THE CITY OF
                                SPRINGFIELD

1. The City of Springfield is a municipality as that term is defined by the Illinois Constitution of 1970, Article VII, § 1, and the Illinois Municipal Code, Ill.Rev.Stat. ch. 24, ¶ 1-1-2 (1985). It is also a home rule unit as defined by the Illinois Constitution of 1970, Article VII, § 6(a).

2. The City of Springfield utilizes the commission form of government, as that system is defined in Ill.Rev.Stat. ch. 24, Article 4 (1985).

3. Springfield was incorporated, first as a town in 1832, and then as a city in 1840.

4. In 1854, a consolidated charter provided for a mayor/aldermanic form of government, with the aldermen elected from wards within the city. This form of government continued until 1911. In 1911, the city's government provided for 14 aldermen, two each elected from seven wards.

5. In 1911, Springfield adopted the commission form of government by referendum, and that form of government continues to the present day.

6. Under the commission form of government, Springfield is governed by a five-member city council consisting of a mayor and four commissioners, elected at-large, with each council member also serving in an executive capacity as the head of one of the five executive departments of city government.

7. The executive offices of the commissioners are as follows: Commissioner of Accounts and Finances, Commissioner of Public Health and Safety, Commissioner of Streets and Public Improvements, and Commissioner of Public Property. The mayor serves as the Commissioner of Public Affairs.

8. Prior to 1966, except for the mayor, the commissioners were not elected to a particular executive department; the executive departments were assigned at the first city council meeting after the election of commissioners, as then provided in Ill. Rev.Stat. ch. 24, ¶ 4-5-3 (1965).

9. Pursuant to Ill.Rev.Stat. ch. 24, ¶ 4-3-19 (1965), which was added to the Municipal Code in 1965, a referendum was approved in 1966, requiring each candidate for commissioner to run for a specific executive office.

10. The forms of municipal government available in Illinois by statute are:

a. Commission Form:

The current form of government is established pursuant to Article 4 of the Illinois Municipal Code. Section 4-3-2 requires that there shall be a mayor and four commissioners elected at-large and expressly prohibits the division of the city into wards.

b. Mayor-Aldermanic:

Under Sections 3-4-7 and 3-4-9 of the Illinois Municipal Code, a mayor/aldermanic system has a number of aldermen set by an arithmetic formula derived from the city's population. For a city the size of Springfield, there would be 10 wards with either 10 or 20 aldermen.

c. Strong Mayor-Aldermanic:

For purposes of districting in a strong mayor/aldermanic system, Section 6-3-3 of the Municipal Code provides for 20 aldermen for a city the size of Springfield with two aldermen representing each ward. Section 6-3-5 requires that the city be districted with one-half as many wards as the total number of aldermen to which the city is entitled.

d. Council-Manager:

Under Sections 5-2-2 and 5-2-4, the council-manager system would have the same districting requirement as the mayor-aldermanic system, resulting in the division of Springfield into ten wards with one or two aldermen per ward. Under Section 5-2-12, however, the aldermen can be elected at-large, and a city the size of Springfield would have eight aldermen.

e. Home Rule:

Pursuant to the City's home rule power, the City, with voter approval, may vary from the statutory forms of government and their requirements as to council size.

11. Under the commission form, candidates for mayor and for commissioner are nominated from the municipality at-large in a non-partisan primary election, as provided in Ill.Rev.Stat. ch. 24, ¶¶ 4-3-2, 4-3-5, 4-3-10, and 4-3-10.1 (1985).

12. Under the commission form of government there are no requirements or limitations on the residences of the mayor and the commissioners; each may reside anywhere within the city limits.

13. Pursuant to Ill.Rev.Stat. ch. 24, ¶ 4-3-13 (1985), only the names of the two candidates receiving the highest number of votes for mayor in the primary election are placed on the ballot for mayor at the general election; only the names of the two candidates with the highest number of votes in the primary election for each of the commissioner offices are placed on the ballot for each office in the general election.

14. Neither the Illinois Municipal Code nor the Illinois Election Code contains any majority vote requirement for the election of mayor or commissioner in a general election. The Illinois Election Code allows the use of write-in votes for candidates whose names do not appear upon the ballot. Ill.Rev.Stat. ch. 46, ¶¶ 16-3 and 18-9.1 (1985).

15. Single-shot voting, as that term is defined in Thornburg v. Gingles, ___ U.S. ___, 106 S.Ct. 2752, 2760, n. 5, 92 L.Ed.2d 25 (1986), for commissioners is precluded by the requirement that each commissioner run for a specific office.

B. ELECTION RESULTS AND POLITICAL PARTY LEADERSHIP

1. No black has been elected to the Springfield City Council since 1911.

2. In the 1963 primary election for City Council in Springfield, Illinois, there were 28 candidates. Nick Renfrow, a black candidate, finished 21st out of 28 candidates. The parties are not aware of any other black candidate who has run for election to the City Council of the City of Springfield from 1963 until 1971.

3. In the February, 1971, primary for Commissioner of Accounts and Finance, conducted at-large, the vote totals and race of the candidates were as follows: (1) James Dunham, white, 15,962 votes; (2) Gary Tumulty, white, 5,851 votes; (3) N.F.N. Evans, white, 3,728 votes; (4) Charles Nelson, black, 1,807 votes.

4. In the February, 1971, primary for mayor, the vote totals and race of the candidates were as follows: (1) William Telford, white, 11,988 votes; (2) Denney Kelley, white, 6,704 votes; (3) James Henneberry, white, 4,983 votes; (4) Farries Morrison, black, 2,063 votes; (5) Fritz O'Hara, white, 1,215 votes; (6) Skip Dunkirk, white, 501 votes.

5. In the February, 1983, primary for mayor, the vote total and the race of the candidates were as follows: (1) J. Michael Houston, white, 12,760 votes; (2) James Dunham, white, 7,565 votes; (3) James Bolt, white, 2,949 votes; (4) Ida Jackson, black, 1,945 votes; (5) Virgil Gochanour, white, 184 votes.

6. In the April, 1985, special general election for Commissioner of Accounts and Finances, James Norris, a white, defeated Willis Logan, a black. No primary was necessary; Logan and Norris were the only two candidates.

7. In 1982, Carol Dew, a black woman, was the Republican candidate for Sangamon County Clerk. She unsuccessfully opposed Gary Tumulty, a white man.

8. There were no black officers of either the Democratic or Republican County Central Committee for Sangamon County prior to 1984.

9. The current officers of the Democratic County Central Committee for Sangamon County and their race are as follows:

Chairman — Peter Dixon, white

Secretary — Genevieve Giganti, white

Treasurer — Nick Bussone, white

10. The current officers of the Republican County Central Committee for Sangamon County and their race are as follows:

Chairman — Irv Smith, white

Secretary — Bruce Stratton, white

Treasurer — William ...


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