Charles F. Zimmer, Stewart Marshall, Intervenor-Appellant v. John J. McKeithen

485 F.2d 1297, 1973 U.S. App. LEXIS 7932

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 12, 1973
• Docket: 71-2649
• Status: Published

Opinions

GEWIN, Circuit Judge:

Aristotle has written:

If liberty and equality, as is thought by some, are chiefly to be founded in democracy, they will be best attained when all persons alike share in the government to the utmost.¹

This case evokes a consideration of the extent to which the Constitution of the United States compels adherence to this principle. Specifically, we are called upon to determine under what circumstances an apportionment scheme operates to minimize or cancel out the voting strength of racial or political elements of the voting population.² Appellant contends that the district court order, affirmed by a majority of a panel of this court, 467 F.2d 1381, requiring reapportionment for the school board and police juries in East Carroll Parish ³ under an at-large scheme of elections cannot pass muster under the aforementioned standard. Both the district court and a majority of a panel of this court held that an at-large scheme cannot work a dilution of black voting strength where blacks, though constituting a minority of registered voters, comprise a majority of the total population of the parish.⁴ Upon rehearing en banc, this court finds the aforementioned conclusion infirm, and therefore we vacate and remand the district court’s judgment.

I.

The panel opinion, recounting the facts which spawned this litigation and the protracted proceedings which it entailed, obviates the need for a full exposition of the present posture of this case. Consequently, we shall highlight only those facts particularly germane to our disposition.

East Carroll is a rural parish located in the extreme northeast corner of Louisiana. According to the 1970 census, it has a population of 12,884, of which. 7,568, or 58.7% are black. Until recently, blacks in the parish, like all blacks in Louisiana, suffered from the maintenance of dual school systems, and the interposition of an interpretation test which preconditioned qualification for voting. Additionally, from 1922 to 1962, no black resident of the Parish had been permitted to register to vote. With the removal of state and locally imposed impediments to voting, and through the efforts of federal registrars, registration statistics in the parish changed dramatically. As of October 6, 1971, there were 3,342 whites and 777 blacks registered on the East Carroll rolls and an additional 2,122 federally registered black voters in the parish.⁵ Concurrent with the increased registration of black voters, elections under the predecessor ward system produced two black members of the policy jury and one black school board member.

The change from ward to at-large j elections challenged herein was produced; by the entry in 1968 of a district court j order in a suit where petitioners sought! to insure fidelity to the one-man, one-vote principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Three years elapsed between the entry of this order and the renewal of proceedings precipitated by instructions issued by the district court that East Carroll submit a reapportionment plan in light of the 1970 census. Pursuant to these instructions, the Parish Police Jury resubmitted the 1968 at-large plan for approval. Subsequently, appellant Marshall was permitted to intervene on behalf of himself and all other similarly situated black voters in East Carroll, and challenge the propriety of the at-large plan as contravening the fourteenth and fifteenth amendments of the Constitution and Section 5 of the Voting Rights Act of 1965.⁶ After the hearing conducted on July 29, 1971, the district court found, inter alia, that since under the at-large plan, there was a zero population deviation, the at-large plan did not dilute the voting strength of the black population. Accordingly, the district court ordered that police jury and school board elections be conducted pursuant to an at-large scheme of voting under which the parish'was divided into 7 wards. Under this scheme, 6 of the wards were to elect 1 representative to the police jury and school board, and 1 ward was to elect 3 representatives. Although candidates were required to reside in the ward from which they sought election, they were to be voted upon by registered voters in the entire county.

Marshall urged several grounds for reversal on appeal: first, that the district court was without power to order at-large elections because under Section 5 of the Voting Rights Act of 1965, the Attorney General of the United States had tendered an objection to the Louisiana Statutes which prescribed at-large elections for police juries and school boards; ⁷ second, that the district court applied an improper legal standard in evaluating dilution; and third, that the district court was clearly erroneous in finding that at-large elections do not dilute the voting strength of black voters in the parish. All three contentions were rejected by the panel.⁸

On rehearing, Marshall challenged the panel’s disposition on all three grounds. Since we find his last two challenges meritorious, we need not consider his first contention concerning Section 5 of the Voting Rights Act of 1965.⁹

II.

Before proceeding further, we feel it is important to emphasize the posture in which the issues are presented in the instant case. The panel understood Marshall to contend that the district court abused its discretion in adopting a plan that did not comport with Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). We do not understand Marshall to make this contention. Consequently, we need not consider whether, absent an allegation that an at-large scheme unconstitutionally dilutes the voting strength of a minority, the district court’s approval of an at-large scheme would amount to an abuse of discretion under Connor.

Marshall’s contention here is that the judicially approved at-large plan is unconstitutional,¹⁰ not merely indiscrete. Having identified Marshall’s contention, we turn to a consideration of first, the proper standard for testing dilution, and second, whether the district court erred in finding that there was no dilution in the instant case.

We begin by noting that the concept of population in fair representation cases is not possessed of any talismanic quality. The Supreme Court recently affirmed this proposition in Gaffney v. Cummings, where it stated that “if it is the weight of a person’s vote that matters, total population — even if stable and accurately taken — may not actually reflect that body of voters whose votes must be counted and weighed for purposes of reapportionment, because ‘census persons’ are not voters.” ¹¹ Indeed, Reynolds v. Sims, supra and its progeny12 marked a departure from statistical niceties. Consequently, to rely upon population statistics, to the exclusion of all other factors, is to give these statistics greater sanctity than that which the law permits or requires.

More fundamentally, the application of the population measure to this case is premised upon a misunderstanding of the thrust of the dilution problem presented in this case. Inherent in the concept of fair representation are two propositions: first, that in apportionment schemes, one man’s vote should equal another man’s vote as nearly as practicable;¹³ and second, that assuming substantial equality, the scheme 9 must not operate to minimize or cancel / out the voting strength of racial elements of the voting population. Both the Supreme Court and this court have long differentiated between these two propositions.¹⁴ And although populations is the proper measure of equality in apportionment, in Whitcomb v. Chavis, 403 U.S. 124, 149-150, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339, 37 L.Ed.2d at 324, the Supreme Court announced that access to the political process and not population was the barometer of dilution of minority voting strength.

The district court applied a per i se rule that since blacks were a majority \ in East Carroll Parish, the at-large planj could not possibly submerge their vote. Since in White v. Regester, supra, the Supreme Court affirmed a district court’s finding of dilution in Bexar County even though Mexican-Amerieans comprised a numerical majority of the population in that county, the per se rule applied by the district court below cannot withstand scrutiny. The panel also relied upon the fact that blacks in East Carroll comprised a majority of population in reaching its conclusion, but pointing to the size of the parish’s population, it qualified the standard applied by the district court. We feel that this qualification, invoked to differentiate the instant case from Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) where the Supreme Court announced a preference for single-member districts in “large” districts, is of no moment where, as here, a showing of dilution has been made. The legal standards announced by the Supreme Court in Whitcomb v. Chavis, supra, and White v. Regester, supra in determining submergence admit of no distinction on the basis of size of population alone.

Concededly, in Whitcomb v. Chavis, supra, 403 U.S. at 143-144, 91 , the Supreme Court acknowledged that the aggregation of several districts into multi-member districts or an at-large scheme may enhance the potential for dilution when the population of such districts is large. But just as the magnitude of the districts did not obviate the need for petitioners to satisfy their burden of proof in Whitcomb, the minuteness of the population in the instant case cannot be invoked to pretermit further inquiry into the possibility of dilution in East Carroll Parish. The import attributed to population by the majority of the panel had this preclusive effect. However, we cannot sanction the view that minorities are to be exposed and subject to apportionment schemes otherwise constitutionally infirm because the equal protection clause can be watered down on the basis of population statistics alone.¹⁵

We also hold that the district court erred in finding that the at-large plan did not dilute the black vote in East Carroll. In Howard v. Adams County Board of Supervisors, supra, 453 F.2d at 457, this court stated that to establish the existence of a constitutionally impermissible redistricting plan, plaintiffs must maintain the burden of showing either first, a racially motivated gerrymander, or a plan drawn along racial lines, or second, that “. designedly or otherwise, a[n] {apportionment scheme, under the circumstances of a particular case, would /operate to minimize or cancel out the 'voting strength of racial or political elements of the voting population.” In view of our holding that Marshall satisfied the burden with respect to the second standard, we need not entertain his contention that the departure from the firmly entrenched state policy against at-large voting in elections in police juries and school boards comes within the first standard.¹⁶

It is axiomatic that at-large and multi-member districting schemes are not per se unconstitutional.¹⁷ Nevertheless, where the petitioner can demonstrate that “its members had less op-i portunity than did other residents in the 1 district to participate in the political processes and to elect legislators of their choice,” White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324, Whitcomb v. Chavis, supra, 403 U.S. at 149-150, 91 S.Ct. 1858, such districting schemes are constitutionally in firm.

The Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution. Clearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives.¹⁸ Where it is apparent that a minority is afforded the opportunity to participate in the slating of candidates to represent its area, that the representatives slated and elected provide representation responsive to minority’s needs, and that the use of a multimember districting scheme is rooted in a strong state policy divorced from the maintenance of racial discrimination, Whitcomb v. Chavis, supra, would require a holding of no dilution. Whit-comb would not be controlling, however, where the state policy favoring multimember or at-large districting schemes is rooted in racial discrimination.¹⁹ Conversely, where a minority can demonstrate a lack of access to the process of slating candidates,²⁰ the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong ease is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts.²¹ The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court’s recent pronouncement in White v. Regester, supra, demonstrates, however, that all these factors need not be proved in order to obtain relief.

In White, the Supreme Court sustained the district court’s invalidation of a multi-member districting scheme for the election of representatives to the Texas House of Representatives from Dallas and Bexar Counties. The Court held that the following findings of fact made by the district court concerning Dallas County were sufficient to warrant the relief fashioned: first, that the blacks had suffered a history of official racial discrimination which touched their right to participate in democratic processes; second, that the Texas requirements for majority vote as a prerequisite to nomination in a primary, though not themselves improper, enhanced the opportunity for racial discrimination; and third, that black candidates had merely nominal success in the past in electing Representatives due to the indifference of the Democratic Party which controlled candidate-slating in Dallas County. White v. Regester, supra, 412 U.S. at 766-767, 93 S.Ct. at 2339-2340, 37 L.Ed.2d at 324-325. With respect to Bexar County, the district court made similar findings concerning the history of discrimination against Mexican-Americans and the unresponsiveness of the Bexar County legislative delegation to the interests of Mexican-Americans. The Supreme Court held that the district court’s findings were sufficient to sustain the relief awarded in Bexar County. White v. Regester, supra, 412 U.S. at 767-769, 93 S.Ct. at 2340-2341, 37 L.Ed.2d at 325-326. While the instant case is not on all fours with White v. Regester, we hold that the record reveals facts sufficiently within its purview to warrant a repudiation of at-large elections in East Carroll Parish.

As in Dallas and Bexar Counties, minority residents in East Carroll Parish have suffered from a protracted history of racial discrimination which touched their ability to participate in the electoral process. Until 1957, they were compelled by a statute of statewide application to attend racially segregated schools until this court took action in Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir.), cert. denied, 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (1957). Less overt but equally invalid statewide schemes which fostered the maintenance of dual schools were operative until thwarted in 1960.²² Until 1965, voters in East Carroll were subject to a state-required interpretation test in order to qualify to vote.²³ Finally, from 1922 to 1962, no black had been permitted to register to vote in the Parish.²⁴ Concededly, these impediments to participation in the electoral process have since been removed. The district court concluded that their removal vitiated the significance of the showing of past discrimination. This conclusion is untenable, however, precisely because the debilitating effects of these impediments do persist. Cf. Graves v. Barnes, 343 F.Supp. 704, 733 (W.D.Texas 1972), aff’d sub nom. White v. Regester, supra. Their persistence is manifested, in part, by the fact that although blacks in East Garroll comprise a majority of the population, they constitute a minority of registered voters.

Similarly, as in Dallas and Bexar Counties, the electoral device of a majority voting requirement is operative in East Carroll Parish.²⁵ This device has been severely criticized as tending to submerge a political or racial minority. Graves v. Barnes, supra at 725, aff’d sub nom. White v. Regester, supra. See also Evers v. State Board of Election Com’rs, 327 F.Supp. 640, 643 (S.D. Miss.1971). This criticism is appropriate in the instant case.

The only distinction between the instant case and White v. Regester, supra, is that here, there is no proof that representatives of police juries and school boards in East Carroll were particularly insensitive to the interests of minority residents. While this distinction is significant, it is not decisive.²⁶ We feel that this deficiency in proof is compensated for by an additional distinction between the circumstances in the instant ease and White. In Dallas and Bexar Counties, there was a strong tradition of multi-member districting. In contrast, in East Carroll, the firmly1 entrenched state policy against at-large elections for police juries and school boards had persisted until as late as 1967. Moreover, although testimony elicited by the district court emphasized the fact that the problems confronting the police jury were parish-wide and hence could best be resolved by representatives sensitive to a parish-wide electorate, there is a dearth of evidence that would suggest that the police jury formerly elected by wards inadequately served parish-wide interests in the past. Indeed, we find it rather anomalous that appellees would contend that the parish is too small for there to be a dilution of minority votes under an at-large scheme, and yet too large for ward elected representatives to be responsive to parish-wide interests.

Thus, on the basis of the evidence adduced on the record, we feel constrained to find that the district court erred in rejecting Marshall’s contention that the at-large electoral scheme would work a diminution of the black voting strength in East Carroll Parish. The confluence of factors presented in the instant case bring it well within the Supreme Court’s holding in White v. Regester, supra.

Although the aforementioned analysis suffices to sustain our disposition, we are inclined to respond to an additional argument tendered by appellee in support of the panel’s ruling. While acknowledging that the instant facts might theoretically present a case of dilution, appellee argued that 1971 and 1972 elections under the at-large plan, with the attendant success of 3 black candidates, dictated a finding that the at-large scheme did not in fact dilute the black vote. The significance attached to success at the polls in the instant case is unavailing, however, for two reasons. First, these results were not before the district court when it rendered the opinion we are presently reviewing. It is axiomatic that an appellate court cannot take cognizance of matters not passed upon by the trial court. Second, we cannot endorse the. view that the success of black candidates/ at the polls necessarily forecloses the possibility of dilution of the black vote. Such success might, on occasion, be attributable to the work of politicians, who, apprehending that the support of a black candidate would be politically expedient, campaign to insure his election. Or such success might be attributable to political support motivated by different considerations — namely that election of a black candidate will thwart successful challenges to electoral schemes on dilution grounds. In either situation, a candidate could be elected despite the relative political backwardness of black residents in the electoral district. Were we to hold that a minority candidate’s success at the polls is conclusive proof of a minority group’s access to the political process, we would merely be inviting attempts to circumvent the Constitution. This we choose not to do. Instead, we shall continue to require an independent consideration of the record.

III.

We conclude our analysis in this case by returning to the point at which we began when we noted that this is not a case wherein a district court reapportionment plan approving at-large elections is challenged merely as an abuse of discretion. Where such a challenge is registered, our starting point would be Connor v. Johnson, supra, in which the Supreme Court announced that single-member districts are preferable to large multi-member districts. This preference is not, however, an unyielding one. As the Supreme Court admonished in Whitcomb v. Chavis, supra, 403 U.S. at 161, 91 S.Ct. at 1878, 29 L.Ed.2d 363, “[t]he remedial powers of an equity court must be adequate to the task, but they are not unlimited.” Lest our decision today be misconstrued to narrowly circumscribe the discretion of a district court in fashioning a reapportionment plan itself free from constitutional infirmity, we would note that the preference for single-member districts may yield in two situations.

Where a district court determines that significant interests would be advanced by the use of multi-member districts and the use of single-member districts would jeopardize constitutional requirements, it can employ multi-member districts. See Mahan v. Howell, supra, 410 U.S. at 334-335, 93 S.Ct. 979, 35 L.Ed.2d 320. But these significant interests must not themselves be rooted in racial discrimination. Cf. Taylor v. McKeithen, supra, 407 U.S. at 194, 92 S.Ct. at 1982, 32 L.Ed.2d at 650 n. 3; White v. Weiser, 412 U.S. 783, 796, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335, 347 (1973).

The preference may also yield where a district court determines that multimember districts afford minorities a greater opportunity for participation in the political processes than do single-member districts. In the process of making such a determination, a court need not be oblivious to the existence and location of minority voting strength.²⁷ While not required to formulate a plan that assures the success of a minority at the polls, a court may in its discretion opt for a multi-member plan which enhances the opportunity for participation in the political processes.

We acknowledge that the legal standards fashioned in this area of the law require federal courts to engage in a particularly exacting and hazardous inquiry in order to divine the proper remedial action to be taken. Justice Stewart presaged what we today acknowledge in his dissent in Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 204, 92 S.Ct. 1477, 1487, 32 L.Ed.2d 1, 14 (1972), when he noted that “the federal courts are often going to be faced with hard remedial problems” in reapportionment cases. Nevertheless, we are confident that federal courts can come to grips with such problems.

For the reasons set forth above, we reverse the decision of the panel of this court and vacate and remand the judgment of the district court for proceedings consistent with our disposition.

1 . Aristotle, Politics, Book II.

2 . White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973); Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Portson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966).

3 . In the absence of special legislative authority for school boards to apportion, the apportionment and reapportionment of parish school boards is dependent upon such apportionment of the police jury in the parish. Consequently, this case does not require a distinction between the reapportionment scheme as it affects either body.

4 . As shall be discussed infra, a majority of the panel refrained from announcing a per se rule. Rather, it qualified its application of the majority of population standards on the grounds proffered by appellees, namely the size of the parish.

5 . These figures are based on the 1962 findings of the district court in the voter registration suit brought in the Parish, United States v. Manning, 205 F.Supp. 172 (W.D.La.1962), and on the State of Louisiana Board of Registration, Report of Registered Voters, month ending October 6, 1971. See Brief of Appellant at 3, Zimmer v. McKeithen, No. 71-2649 (5th Cir. filed Dec. 1, 1971) ; Brief of Appellee at 1, id. (5th Cir. filed March 28, 1972).

6 . Although Marshall clearly raised the Voting Rights Act issue in his Complaint in Intervention, the district court in its order in 1971 did not rule on this issue. Since he preserved this contention on appeal, it was before a panel of this court.

7 . Until 1968, Louisiana law prohibited at-large elections for School Boards and Police Juries (the law required at least five wards from which the members of these bodies, were to be elected). By Louisiana Acts of 1968 No. 445 Section 1 (amending La.R.S. 33:1221) and No. 561 (adding La.R.S. 17:71.1 — 17:71.6), Louisiana Law was amended to allow at-large elections (or elections from less than five wards) for School Boards and Police Juries.

On April 29, 1969, Acts 445 and 561 were submitted to the Attorney General of the United States pursuant to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. On June 26, 1969, both Acts were rejected as having “the effect of discrimination against Negro voters on account of their race, and of denying to them an effective voice in the selection of Police Jury and School Board members.” On September 10, 1969 this rejection was reaffirmed by the Attorney General of the United States, citing as a specific example of racial discrimination, the at-large scheme of elections in East Carroll Parish.

8 . In all deference to the panel, we submit that they failed to give adequate consideration to Marshall’s contention that the district court’s finding of no dilution was clearly erroneous.

9 . Marshall contended that the rule of Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) and Sheffield v. Itawamba County Board of Supervisors, 439 F.2d 35 (5th Cir. 1971) that court ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by Section 5 is inapposite where such plans are adopted by a court in “sweetheart” lawsuits. Although there may be merit in his contention that the failure to qualify Connor and Sheffield may result in the circumvention of the Voting Rights Act, we would merely note that the dilution standard is a viable means of reconciling the disparate treatment of governmental body approved plans and court approved plans under Section 5. Furthermore, since Section 5, 42 U.S.C. § 1973c (1970), covers attempts to administer voting practices as well as attempts to enact them, see Roman, Section 5 Of The Voting Rights Act: The Formation of an Extraordinary Legal Remedy, 22 Am.U.L.Rev. 111, 124 (1972), the panel’s decision that Connor and Sheffield govern is quite appropriate.

10 . A similar contention was made in Gunderson v. Adams, 328 F.Supp. 584 (S.D.Fla. 1970) aff’d, 403 U.S. 913, 91 S.Ct. 2225, 29 L.Ed.2d 692 (1971) where a Florida plan, codifying a court ordered plan, was challenged and upheld.

11 . Gaffney v. Cummings, 412 U.S. 735-746, 93 S.Ct. 2321, 2328, 37 L.Ed.2d 298, 308 (1973). Thus, census figures include aliens, nonresident military personnel, nonresident students, all of whom may be ineligible to vote. The Supreme Court and lower courts have approved apportionment based not on population but on voter registration statistics on several occasions, where such data produces a distribution of legislators not differing substantially from the use of a permissible population basis. See, e. g., Burns v. Richardson, supra, 384 U.S. at 93, 86 S.Ct. 1286; Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Reynolds v. Gallion ex rel. Attorney General of Alabama, 308 F.Supp. 803 (M.D.Ala.1969); Pate v. El Paso County, Texas, 337 F.Supp. 95 (W.D. Tex.) aff’d, 400 U.S. 806, 91 S.Ct. 55, 27 L.E.2d 38 (1970).

12 . E. g., Gaffney v. Cummings, supra; White v. Regester, supra; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967).

13 . Reynolds v. Sims, supra, 377 U.S. at 577, 84 S.Ct., at 1389.

14 . See Gaffney v. Cummings, supra, 412 U.S. at 751, 93 S.Ct. at 2330, 37 L.Ed.2d at 311; White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339, 37 L.Ed.2d at 324; Whitcomb v. Chavis, supra, 403 U.S. at 142, 91 S.Ct. 1858, 29 L.Ed.2d 363; Abate v. Mundt, supra, 403 U.S. at 184 n.2, 91 S.Ct. 1904; Burns v. Richardson, supra, 384 U.S. at 88-89, 86 S.Ct. 1286; Howard v. Adams County Board of Supervisors, 453 F.2d 455, 457 (5th Cir. 1972) cert. denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972). See also Troxler v. St. John the Baptist Parish Police Jury, 331 F.Supp. 222 (E.D.La.1971), appeal dismissed, 452 F.2d 1388 (5th Cir. 1972).

15 . We acknowledge, however, that elections with respect to certain special governmental units of limited purpose are not subject to the fair representation mandates. See Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973); Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973).

16 . Similar contentions have met with varying degrees of success. For cases upholding the claim that a reapportionment plan was racially discriminatory, see Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Smith v. Paris, 257 F.Supp. 901, 904 (M.D.Ala.) modified and aff’d, 386 F.2d 979 (5th Cir. 1967) on remand, United States v. Democratic Executive Committee of Barbour County, Alabama, 288 F.Supp. 943 (M.D.Ala.1968); Sims v. Baggett, 247 F.Supp. 96, 110 (M.D.Ala.1965). For cases in which such a claim was rejected, see Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Holt v. Richmond, 459 F.2d 1093 (4th Cir.)., cert. denied, 408 U.S. 931, 92 S.Ct. 2510, 33 L.Ed.2d 343 (1972).

Neither the language quoted from Howard v. Adams County Board of Supervisors, supra, nor the aforementioned cases should be read to hold that a reapportionment plan ean be invalidated solely because of the racial motivations of those who fashioned it. In Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), the Supreme Court stated that although its past decisions contain language which suggests that motive or purpose behind a law is relevant to its constitutionality, these decisions, including Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) focused on the actual effect of the legislation being challenged, and not the reason why the legislation was enacted.

17 . White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339, 37 L.Ed.2d at 324; Mahan v. Howell, supra, 410 U.S. at 335, 93 S.Ct. 979; Ferrell v. Hall, 339 F.Supp. 73 (W.D. Okl.) aff’d, 406 U.S. 939, 92 S.Ct. 2045, 32 L.Ed.2d 328, petition for rehearing denied, 408 U.S. 932, 92 S.Ct. 2489, 33 L.Ed.2d 344 (1972); Gunderson v. Adams, 328 F.Supp. 584 (S.D.Fla.1970); aff’d, 403 U.S. 913, 91 S.Ct. 2225, 29 L.Ed.2d 692 (1971); Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Kilgarlin v. Hill, 386 U.S. 120, 121, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967); Burns v. Richardson, supra; Fortson v. Dorsey, supra; Lipscomb v. Jonsson 459 F.2d 335, 337 (5th Cir. 1972); Howard v. Adams County Board of Supervisors, supra, 453 F.2d at 457-458.

18 . E. g., Whitcomb v. Chavis, supra, at 149, 91 S.Ct. 1858; Lipscomb v. Johnson, supra, 459 F.2d at 337.

19 . Taylor v. McKeithen, 407 U.S. 191, at 194, 92 S.Ct. 1980, at 1982, 32 L.Ed.2d 648, at 650, n. 3. See Parker, County Redistricting in Mississippi: Case Studies in Racial Gerrymandering, 44 Miss.L.J. 391, 400 (1973).

20 . The Supreme Court’s focus in Whitcomb v. Chavis, supra, 403 U.S. at 149-150, 91 S.Ct. 1858, on the access of minorities to slating procedures in Marion County, Indiana, makes clear that the standards we enunciate today are applicable whether it is a specific law or a custom or practice which causes the diminution of minority voting strength.

21 . Compare Whitcomb v. Chavis, supra, 403 U.S. at 143-144, 91 S.Ct. 1858, 29 L.Ed.2d 363, with Graves v. Barnes, 343 F.Supp. 704, 725 (W.D.Tex.1972), aff’d sub nom. White v. Regester, supra. The existence and mode of operation of voting procedures which enhance dilution is outlined in Derfner, Racial Discrimination and the Right to Vote, 26 Vand.L.Rev. 523, 553-55 and accompanying notes (1973).

22 . See, e. g., Bush v. Orleans Parish School Board, 188 F.Supp. 910, 920 (E.D.La.1960) (documenting additional circumventive artifices) .

23 . Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965).

24 . United States v. Manning, supra.

25 . La.Rev.Stat.Ann. art. 18, § 18:358 (1969). In addition, voters in East Carroll are subject to anti-single shot voting requirements, the effects of which though mitigated as to wards 1, 2, 4, 5, 6 and 7 under the district court’s plan, are still egregious in ward 3 where 3 representatives to the police jury and school board are elected. See La.Rev. Stat.Ann. art. 18, § 18:351 (1969).

26 . It may be that the absence on the record of any criticism of the responsiveness of the police jury and school board is attributable to an omission of proof. If so, our decision should not be interpreted as acquiescing to such omissions. However, it may be that the particular functions of the police jury, for example, do not easily lend themselves to unresponsive representation. The record establishes that the primary function of the juries is the drainage of rural farmlands, maintenance of rural roads, and the overseeing of a prison farm. Were we to hold that the absence of a claim of representation unresponsive to a minority’s needs foreclosed constitutional attack, the voting strength of minorities could be freely diluted without fear of constitutional restraint. The absence of proof with respect to school boards could not be explained on such grounds.

27 . The Supreme Court has never ruled on the question of the extent to which the board equitable powers of a federal court in fashioning reapportionment decrees are limited by the colorblind concept of Gomillion v. Lightfoot, supra and Wright v. Rockefeller, supra. See Taylor v. McKeithen, supra, 407 U.S. at 194, 92 S.Ct. at 1982, 32 L.Ed.2d at 650. Several courts have intimated that the colorblind concept is in fact a limitation. See Mann v. Davis, 245 F.Supp. 241, 245 (E.D.Va.) aff’d sub nom. Burnette v. Davis, 382 U.S. 42, 86 S.Ct. 181, 15 L.Ed.2d 35 (1965); Ferrell v. Hall, 339 F.Supp. 73, 83 (W.D.Okla.) aff’d, 406 U.S. 939, 92 S.Ct. 2045, 32 L.Ed.2d 328; rehearing denied, 408 U.S. 932, 92 S.Ct. 2489, 33 L.Ed.2d 344 (1972).

In discussing the remedial power of federal courts to fashion reapportionment decrees, the Court has cited Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), see, e. g., Taylor v. McKeithen, supra, 407 U.S. at 194, 92 S.Ct. at 1982, 32 L.Ed.2d at 650; Sixty-Seventh Minnesota State Senate v. Beens, infra, 406 U.S. at 201, 92 S.Ct. at 1486, 32 L.Ed.2d at 12 (Stewart, J., dissenting), thereby suggesting that such powers in fashioning reapportionment decrees are coterminous with those in fashioning desegregation decrees. Since Swann noted that it was permissible for a federal court to consider race in the latter situation, Swann, supra, 402 U.S. at 25, 91 S.Ct. 1267, it would also be permissible to consider race in the former situation.

Our decision in Howard v. Adams County Board of Supervisors, supra is not inconsistent with the view maintained herein. In Howard, we observed that the district court was correct in noting that the organization commissioned by the legislature to draw up reapportionment plans did not consider race in its plan. Howard, supra, 453 F.2d at 458. We did not intimate any view as to the propriety of considering race in such circumstances.