Allie K. McCord v. City of Fort Lauderdale, Florida

787 F.2d 1528, 1986 U.S. App. LEXIS 24755

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 29, 1986
• Docket: 85-5288
• Status: Published

Opinions

VANCE, Circuit Judge:

In this case plaintiffs, six black citizens of Fort Lauderdale and the Southern Christian Leadership Conference of Broward County, Florida, appeal the district court’s ruling that the at-large election system for electing city commissioners in Fort Lauder-dale does not violate the Voting Rights Act, 42 U.S.C. § 1973. 617 F.Supp. 1093. After reviewing the extensive factual record, we affirm.

I. FACTUAL BACKGROUND

The city of Fort Lauderdale, incorporated in 1911, has been governed throughout its existence by a mayor-council or mayor-commission form of government. The Fort Lauderdale City Commission has five members. Election of these members has been under an at-large system since 1911. Fort Lauderdale has a primary and then a general election, with plurality vote determining the winners in both of these phases. In the primary election, the ten candidates who receive the highest vote totals become candidates in the general election. The top five finishers in the general election become city commissioners, and currently they serve three-year concurrent terms.¹ Voters may vote for up to five candidates in both phases of the election. Fort Lauderdale does not have a district or ward residency requirement for commissioner candidates and has not had one since 1947. The election system does not prohibit single-shot voting, nor does it contain a requirement for majority vote. Fort Lauder-dale does not have and has never had a segregated primary.

Blacks in Fort Lauderdale comprise twenty-one percent of the city’s total population.² Since 1911 a black commissioner has been elected three times, with the same individual, Andrew De Graffenreidt, winning in 1973 and being re-elected in 1975 and 1977.³ In its analysis of black participation in Fort Lauderdale’s city commissioner election system, the district court focused its attention on elections held between 1970 and 1982 because in the court’s opinion black candidacies “prior to about 1970 appeared to be largely a testing of the political waters” rather than serious efforts at seeking election.⁴ In addition to Mr. De Graffenreidt’s success as a black candidate, the district court noted that in 1982 another black candidate, Arthur Kennedy, lost by a narrow margin of about three percent of the total votes cast.,

II. DISCUSSION

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, provides 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 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 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section 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) of this section 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.

The 1982 amendment to section 2 eliminated the requirement of showing discriminatory intent, and section 2 now provides a results test in vote dilution cases.

To determine whether blacks had been denied equal access to the political process in Fort Lauderdale the district court examined the plaintiffs’ racial vote dilution claim in the context of the totality of circumstances present in the city. The district court was aided in its efforts by the 1982 Senate Report accompanying the amendment to section 2, which provides a list of nine “typical” factors to be considered under the totality of circumstances approach. These factors have been adopted and applied in this circuit, see, e.g., United States v. Dallas County Commission, 739 F.2d 1529, 1534-35 (11th Cir.1984), and they are as follows:

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, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S. Code Cong. & Ad. News 177, 206-07 (footnotes omitted). The Senate Report further indicates, and this circuit has recognized, that this list of “typical” factors is not exclusive, and there is no requirement that any particular number of them be proved or that a majority of them point either way in a section 2 claim. Id. at 29, reprinted in 1982 U.S. Code Cong. & Ad. News at 207; Dallas County, 739 F.2d at 1534 n. 2.

The district court considered all nine factors and concluded that under the totality of circumstances standard the plaintiffs had failed to establish that Fort Lauder-dale’s at-large system of electing city commissioners violated section 2 of the Voting Rights Act, as amended. We are convinced that the district court applied the proper legal standards, and our task now is to review the district court’s findings of fact to determine whether they are clearly erroneous. See Pullman-Standard, v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Fed.R.Civ.P. 52(a).⁵

We begin our review by noting some guidelines set down by this court in United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984):

First, discriminatory intent need not be shown to establish a violation. Second, at-large elections are not prohibited per se, nor does a lack of proportional representation automatically require a finding of a violation. At the same time, however, the absence of minority elected officials may be considered as an indicium of violation, and an at-large system will violate the statute if it results in a denial of equal participation____ Third, section 2 focuses not on whether minority groups receive adequate public services but on whether minorities have an equal right to ;participate in the political process.

Id. at 1564-65 (footnotes omitted). With these principles in mind we turn to consideration of Fort Lauderdale’s at-large election system. Concerning the first Senate Report factor, the district court stated that “[t]here is no reason to conclude from the evidence in this case that the official discrimination, either in the State of Florida or in Fort Lauderdale, has adversely affected the right of the members of the plaintiff minority group either to register or to vote or otherwise to participate in the democratic process.” We conclude that this finding is not clearly erroneous, especially in light of the evidence presented that blacks in Fort Lauderdale since 1970 have turned out to vote in higher numbers on a percentage basis than white voters in every election but one. This case is unlike Marengo County, in which we held that the blacks’ political influence in that county was significantly hindered by their status of being poorer and less educated than whites. In Marengo County past discriminatory practices carried with them lingering effects on blacks’ ability to participate in the political process as evidenced by the fact that blacks in that county registered to vote and voted in substantially lower numbers than whites. See id. at 1568-69. This case is more analogous to Collins v. City of Norfolk, 605 F.Supp. 377 (E.D.Va.1984), aff'd, 768 F.2d 572 (4th Cir.1985), in which the court stated:

The Court has found that although there is a past history of official discrimination in Virginia affecting the right of blacks to participate in the electoral process, there are no lingering effects of that discrimination which prevent Norfolk’s black citizens from participating in the electoral process today. Norfolk’s black citizens register to vote and turn out to vote at rates equal to or greater than that of Norfolk’s white citizens when measured as a percentage of voting age population.

Id. at 402 (footnote omitted). We note that evidence of past discrimination in Fort Lauderdale does exist, but we conclude that the district court’s finding that such discrimination has not been a clear impediment to the ability of blacks in Fort Lauderdale to participate in the political process is not clearly erroneous.

After considering the second Senate Report factor and reviewing what it termed a “battle of expert witnesses with widely divergent conclusions,” the district court found that the plaintiffs had failed to show that voting in the elections in Fort Lauder-dale was racially polarized. The plaintiffs had presented various statistical theories which they asserted showed racially polarized voting, but had relied principally on a bivariate regression statistical analysis. This bivariate analysis produces an R2 coefficient which correlates the percentage of a particular racial group registered in a given precinct with the percentage of the precinct vote for the candidates of that racial group. The district court found that when “tested against some actual events and realities,” ⁶ the bivariate analysis was less useful in this case than a multi-variate analysis which examined the voting patterns in the context of a number of independent variables including incumbency of the candidate, campaign funds spent, newspaper endorsements, voter turnout either in the black or white community, the portion of the registered voters who were black, and the sex of the candidate. The defendants’ expert presented a multi-variate analysis which demonstrated that when race was added to other independent variables applied to voting statistics for past city commission races, the race factor explained only .6 of one percent of the dependent variables of candidate success, thus leading defendant’s expert and the district court to conclude that race was not a statistically significant variable.

The plaintiffs argue that because the bi-variate R2 coefficient analysis has been used in previous vote dilution cases in this circuit, see, e.g., NAACP v. Gadsden County School Board, 691 F.2d 978, 983 (11th Cir.1982), the district court improperly rejected it here, and they assert that the court erred when it applied a multi-variate analysis to Fort Lauderdale’s elections. We are not persuaded that the district court's findings concerning the lack of racially polarized voting in Fort Lauderdale are clearly erroneous. We have previously cautioned “against placing too much reliance solely on the R2 coefficients in ruling on the issue of racially polarized voting.” Lee County Branch of the NAACP v. City of Opelika, 748 F.2d 1473, 1482 (11th Cir.1984). In Lee County we quoted the following remarks from Judge Higginbotham which we find applicable to this case as well:

Care must be taken in the factual development of the existence of polarized voting because whether polarized voting is present can pivot the legality of at-large voting districts. The inquiry is whether race or ethnicity was such a determinant of voting preference in the rejection of black or brown candidates by a white majority that the at-large district, with its components, denied minority voters effective voting opportunity. In answering the inquiry, there is a risk that a seemingly polarized voting pattern in fact is only the presence of mathematical correspondence of race to loss inevitable in such defeats of minority candidates.

Jones v. City of Lubbock, 730 F.2d 233, 234 (5th Cir.1984) (Higginbotham, J., specially concurring), quoted in Lee County, 748 F.2d at 1482. When analyzing racial polarization in voting it is important to realize that no one statistical theory is appropriate for all vote dilution cases. Care must be taken to examine each case individually while keeping in mind the section 2 “totality of circumstances” approach. Statistics can be very useful analytically but they also can be quite deceiving if applied narrowly and automatically without the proper scope. We have previously stated that “[i]t will often be necessary to examine factors other than race that may also correlate highly with election outcomes — campaign expenditure, party identification, income, media advertising, religion, name recognition, position on key issues, and so forth.” Lee County, 748 F.2d at 1482. We have also recognized the potential usefulness of a multiple regression analysis such as that used in this case. See id. We accept the district court’s rejection of a bivariate analysis and application of a multi-variate analysis not because this is the proper analysis for all cases but because under the totality of the circumstances present in the Fort Lauderdale election system it was not clearly erroneous for the court to take this approach to determine whether voting in Fort Lauderdale was racially polarized.

We turn now to the other seven Senate Report factors considered by the district court and address them in summary fashion. Concerning these seven factors we hold that the district court’s findings of fact regarding them are not clearly erroneous, and we make the following observations. It is significant that Fort Lauder-dale has no anti-single shot voting policy, no residency requirements, and no segregated primaries. It is apparent also that black candidates have experienced some success in Fort Lauderdale considering Mr. De Graffenreidt’s three victories and Mr. Kennedy’s near miss. In four elections other than the city commission elections black candidates received a majority of the votes cast in the white precincts of Fort Lauderdale. These successful black candidates included Joseph Hatchett in the 1976 non-partisan primary for the Florida Supreme Court, Alcee Hastings in the 1974 Democratic primary for the Public Service Commission, and Andrew De Graffenreidt in the 1978 general election for the Bro-ward County Commission. Fort Lauder-dale presented evidence that the city was and is making efforts at alleviating the effects of discrimination in the areas of education, employment, housing, and health. The plaintiffs were unable to establish that any slating process in Fort Lauderdale existed that denied access to blacks. The evidence did not show that Fort Lauderdale’s elected officials were unresponsive to the needs of the black community. In sum, much of the evidence pointed to the validity of Fort Lauderdale’s election system. After an extensive review of the record we conclude that the district court’s findings of fact are not clearly erroneous. We therefore affirm the decision that under the totality of the circumstances blacks are not effectively denied the opportunity to participate in the political process in Fort Lauderdale and to elect the representatives of their choice.

AFFIRMED.

1 . The candidate receiving the highest number of votes is declared to be the mayor-commissioner. In the 1979 election the race for mayor was held at-large but separately from the at-large election of the other four commissioners. In 1982, however, Fort Lauderdale returned to its system of all five commissioners being elected at-large with no separate election for mayor.

2 . The population of Fort Lauderdale according to the 1980 census was 153,279, 32,225 of whom were black.

3 . City commissioners from 1951 to 1979 served two-year concurrent terms.

4 . The district court in its opinion reviewed the black candidates for city commissioner prior to 1970 and attributed their lack of success variously to limited campaigning, lack of experi- ' ence, and Democratic party affiliation in elections in which Republicans dominated. The court noted that according to Andrew De Graffenreidt the 1967 campaign by a full slate of five black candidates was directed at determining whether black voters would go to the polls.

The court also timed the release of its order so as not to affect the 1985 city elections nor be affected by the results of those elections.

5 . The fifth circuit has stated:

The district court’s factual findings in voting dilution cases represent "a blend of history and an intensely local appraisal of the design and impact of the ... multi-member district in the light of past and present reality, political and otherwise.” White v. Regester. 412 U.S. 755. 769-70. 93 S.Ct. 2332. 2341, 37 L.Ed.2d 314 (1973).... We have no doubt that the finding of discriminatory effect or result under the Voting Rights Act amendments of 1982 is ... governed by the clearly erroneous standard.

Velasquez v. City of Abilene, 725 F.2d 1017, 1020-21 (5th Cir. 1984).

6 . The district court criticized the plaintiffs’ expert’s bivariate analysis as a "methodology more suited for head-to-head elections” and cited problems with the theory in that it has an artificial upper limit and depends on the number of minority candidates in the election, even if the voter attitude remains the same.