Hawthorne v. Baker

750 F. Supp. 1090, 1990 U.S. Dist. LEXIS 15700, 1990 WL 179018

• Court: District Court, M.D. Alabama
• Decided: August 20, 1990
• Docket: Civ. A. 89-T-381-S
• Status: Published

Opinions

ORDER

MYRON H. THOMPSON, District Judge:

Plaintiffs Thomas Hawthorne and Emory Newman, on behalf of themselves and other African-American Democrats in Alabama, claim in this lawsuit that recent changes in the way members of the State Democratic Executive Committee and members of 47 of the 67 County Democratic Executive Committees are selected must be precleared under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973c. This three-judge court has been convened to hear these claims pursuant to 28 U.S.C.A. § 2284 and 42 U.S.C.A. § 1973c. We conclude that the changes are subject to preclearance as to the state committee and as to 45 of the county committees.

I.

On April 17, 1989, the plaintiffs filed this lawsuit in the United States District Court for the Middle District of Alabama, claiming that the Democratic Party at its local, state, and national levels has denied them and other African-American citizens of Alabama an opportunity equal to that of white citizens for representation on party governing bodies. The plaintiffs rested their claims on § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973, and on the fourteenth and fifteenth amendments to the United States Constitution as enforced through 42 U.S.C.A. § 1983. The plaintiffs named as defendants the Democratic Party of the United States, the State Democratic Executive Committee of Alabama and its chair, and the Henry County Democratic Executive Committee and its chair. The single-judge district court certified a plaintiff class of all black Democrats in Alabama. The court also certified a defendant class of all 67 County Democratic Executive Committees in Alabama.

Under the State Democratic Executive Committee's existing plan for selecting its members, each of the state’s 105 House districts elects two persons, one male and one female, to serve four-year terms. The state committee then authorizes a number of other organizations to appoint additional persons to serve on the committee. One of these organizations is the Alabama Democratic Conference (“ADC”), a state-wide, predominantly black political organization. The ADC appoints 23 members to serve on the committee. The state committee’s existing plan, as last modified in 1983, was precleared by the United States Attorney General.

In April 1989, shortly before this lawsuit was filed, the state committee adopted a new plan for selecting its members. The committee proposed to change from a fixed requirement of 23 additional appointments to a formula designed to guarantee that the proportion of black persons on the committee would at least equal the proportion of blacks in the general population. Instead of allowing the ADC to fill the appointed seats from among all black Democrats, the state committee’s new plan called for additional members to be appointed only from among the unsuccessful black candidates, in descending order according to the number of votes each received in the committee election. The United States Attorney General refused to preclear this plan, noting his particular concern about the provision which allowed the appointed slots to be filled only from among blacks who ran unsuccessful campaigns.¹ The Attorney General wrote that this “change ... could result in selection of persons in majority black districts who had failed to attract local black support.” ²

In January 1990, in response to the Attorney General’s objection, the state committee modified its new plan for selecting members. This proposal, like the previous one, abolishes the right of the ADC and other groups to appoint additional members. The new plan, however, modifies the provision governing the number of blacks on the state committee; it requires that the proportion of black persons on the state committee must be at least equal to the proportion of blacks in the general population or the proportion of blacks voting in the Democratic gubernatorial primary, whichever is greatest. The plan also modifies the manner in which this requirement is to be met; it provides that the black members elected in the primary are to select the additional blacks, but only from the blacks who qualified but were not elected.³ In March 1990, the state committee submitted the new plan to the Attorney General, but he has yet to issue a decision.⁴ In that same month, the state committee began accepting qualification papers of candidates under the new plan for the June Democratic gubernatorial primary. Counsel for the state committee informed the court at oral argument, however, that, although the June primary election has now passed and committee members have now been elected, the state committee has not implemented the part of the new plan changing the method of appointing blacks to the committee.

Like the state committee, 45 of the County Democratic Executive Committees across the State of Alabama have altered their systems for selecting members, and many have implemented them without pre-clearance from the Attorney General. Seventeen of these committees adopted plans which merely provide for the appointment of members in addition to those who are elected. The plans for 16 of these counties, however, differ from the state committee’s plan in that they provide for the appointment of both black and white additional members.⁵ The seventeenth committee’s plan — the plan for the Autauga County Democratic Executive Committee — is similar to the state committee’s in that it provides for the appointment of blacks only. The other 28 county committees have altered the process by which members are elected; they have redrawn district lines, changed the nature of the units from which members are elected,⁶ or changed the number of members elected from a particular district.⁷

On March 22, 1990, the plaintiffs filed additional claims in this lawsuit alleging that the state committee and many, if not all, of the 67 county committees were proceeding to implement new plans for selecting their members, without having first secured preclearance under § 5 of the Voting Rights Act of 1965, as amended. After this three-judge court was convened to hear the plaintiffs’ § 5 claims, the plaintiffs dropped their claims against 20 of the county committees.

II.

Section 5 of the Voting Rights Act of 1965, as amended, requires that certain jurisdictions, including the State of Alabama and its subdivisions, preclear any change in a “standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964.” 42 U.S. C.A. § 1973c. A jurisdiction may obtain preclearance in either of two ways: by securing a determination from the United States District Court for the District of Columbia that the change “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,” id,.; or by submitting the change to the Attorney General of the United States and receiving no objection. Id.

Under § 5, the permissible scope of the three-judge court’s inquiry is limited to whether a change “is covered by § 5, but has not been subjected to the required federal scrutiny.”' Allen v. State Board of Elections, 393 U.S. 544, 561, 89 S.Ct. 817, 829, 22 L.Ed.2d 1 (1969). It is undisputed that the state committee’s and the county committees’ new plans have not been pre-cleared. The only point of inquiry for this court, therefore, is whether the plans are covered by § 5.

A.

We must address first the contention of the state and the county committees that they are not entities subject to the requirements of § 5. This court has previously held that political parties in this state, to the extent they are empowered by the state to conduct primary election s and to have their national convention delegates selected, are subject to § 5. MacGuire v. Amos, 343 F.Supp. 119 (M.D.Ala.1972) (three-judge court) (per curiam) (Rives, Johnson, and Varner, JJ.). “Where the political parties are given such head by a specific statutory grant of authority,” the court explained, “their actions rise to the level of actions by the State,” with the right to vote in their elections “specifically guaranteed in the 1965 Voting Rights Act.” Id. at 121. Cf. United States v. Board of Commissioners of Sheffield, 435 U.S. 110, 122, 98 S.Ct. 965, 974, 55 L.Ed.2d 148 (1978) (“§ 5 has to apply to all entities exercising control over the electoral processes within the covered States or subdivisions”).

The Attorney General’s regulations reflect a similarly inclusive reach for § 5. They provide that “Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are chosen are subject to the preclearance requirement of section 5.” 28 C.F.R. § 51.7. In fact, pursuant to this regulation, the Attorney General approved the state committee’s plan in 1983 and objected to a revised version in 1989, expressly noting in his objections that “the selection of officers and members of the [State Democratic Executive Committee] in this submission may not be implemented without meeting the preclearance requirements of Section 5.”⁸ “Given the central role of the Attorney General in formulating and implementing § 5, [his] interpretation of its scope is entitled to particular deference.” Dougherty County v. White, 439 U.S. 32, 39, 99 S.Ct. 368, 373, 58 L.Ed.2d 269 (1978).

Based on MacGuire, we therefore hold that, to the extent the State Democratic Party is empowered to conduct primary elections in which it selects members of its state committee and county committees, its actions, as well as those of its state and county committees, fall within the coverage of § 5.

B.

Whether a specific change adopted by a political party is covered by § 5 turns on whether the change is a “standard, practice, or procedure with respect to voting,” 42 U.S.C.A. § 1973c, which has the “potential for discrimination” against African-Americans. NAACP v. Hampton County Election Commission, 470 U.S. 166, 181, 105 S.Ct. 1128, 1137, 84 L.Ed.2d 124 (1985) (emphasis omitted). The Voting Rights Act of 1965 fails to define when a change relates to voting other than to define the term “voting” to “include all action necessary to make a vote effective.” § 1973l (c)(1). Supreme Court eases teach, however, that Congress intended the Act to reach any enactment which altered election procedures “in even a minor way,” Allen, 393 U.S. at 566, 89 S.Ct. at 832, and that the phrase “standard, practice, or procedure” must be given the “broadest possible scope.” Id. at 567, 89 S.Ct. at 832. See also, e.g., Dougherty County, 439 U.S. at 37-38, 99 S.Ct. at 372. These cases also teach that it is not the task of a three-judge court, such as ours, “to determine whether the changes at issue ... in fact resulted in impairment of the right to vote, or whether they were intended to have that effect,” Hampton County Election Commission, 470 U.S. at 181, 105 S.Ct. at 1137, but that “that task is reserved by statute to the Attorney General or to the District Court for the District of Columbia.” Id. Our task is to determine whether discrimination is a “plausible consequence” of the change. Turner v. Webster, 637 F.Supp. 1089, 1092 (N.D.Ala.1983) (three-judge court) (Vance, J.).

With the above principles in mind, we conclude that the state committee’s proposed new plan has the potential to discriminate with respect to voting for two reasons. First of all, the plan includes new provisions which require that the state committee's additional black members be selected from those blacks who qualified in the Democratic gubernatorial primary but lost. This “loser eligibility” provision effectively requires that persons qualify to run for the committee in order to be eligible for the appointed positions. This provision affects voting and has the potential to discriminate because it could conceivably encourage blacks to run against other blacks, or against whites who are the choices of blacks, and thus split and dilute the black vote.

Second, under the state committee’s new plan, the number of additional black appointments would no longer be a guaranteed 23 but would depend, in part, on the number of blacks elected: the more blacks elected, the fewer blacks who must be appointed to meet the plan’s racial proportion requirement. The plan’s provisions for election and appointment of blacks are thus inextricably linked. In fact, the state committee admits in its brief that the appointive provisions in its new plan are “aimed at remediating discrimination”;⁹ they are, according to the state committee, “meant to compensate” for the electoral system’s “failures.” ¹⁰ In the absence of the plan’s appointment provisions, the state committee would have to modify its elective procedures to achieve the same results. The proposed new plan’s provisions for election and appointment of blacks relate directly to voting; and they have the potential to discriminate because they could result in fewer blacks on the state committee than under the existing plan.

The state committee argues that appointments in general do not relate to voting under § 5. Whether § 5 covers appointments is an issue this court need not reach. Our narrow holding is that under the special circumstances presented here, where the appointment process is intended to ameliorate the elective process and thus is directly tied to it, the appointment process is covered by § 5. The state committee also argues that its appointment procedure is an affirmative action plan which should not fall within § 5’s coverage. Whether affirmative action plans, as such, should or should not fall within § 5’s coverage is again a matter we need not reach. Our concern is merely that, because certain features in the plan — however they are labeled — relate to voting and have the potential to discriminate, the plan must be pre-cleared under § 5.

C.

The plaintiffs claim that the new plans adopted by 47 of the county committees have several features which bring the plans within § 5’s coverage. We agree as to 45 of these committees. Twenty-eight of the county committees have in some manner altered the way they elect their members.¹¹ Some have redrawn district lines, some have changed the nature of the units from which members are selected, and others have changed the number of members elected from a particular district. It is well established that such changes affect voting and have the potential for discrimination, and as such are covered by the requirements of § 5. See City of Lockhart v. United States, 460 U.S. 125, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983) (increase in number of seats on city governing body subject to preclearance); Georgia v. United States, 411 U.S. 526, 531-32, 93 S.Ct. 1702, 1706, 36 L.Ed.2d 472 (1973) (changes in electoral boundaries and creation of multi-member districts subject to preclearance); Perkins v. Matthews, 400 U.S. 379, 391-92, 91 S.Ct. 431, 438, 27 L.Ed.2d 476 (1971) (changes in electoral boundaries and from ward to at-large elections both covered under § 5); Allen, 393 U.S. at 569, 89 S.Ct. at 833 (change from district to at-large voting covered under § 5); 28 C.F.R. § 51.13(e) (§ 5 covers “any change in the constituency of an official or the boundaries of a voting unit”).

Sixteen of the county committees have provisions for the appointment of both black and white members to supplement elected members.¹² We find that the provision for white appointments has the potential to discriminate as to voting. Should black electoral success in elections trigger the selection of additional white members, such appointments could dilute black voting strength by reducing the proportion of members who are chosen by and thus represent black voters. See Perkins, 400 U.S. at 388, 91 S.Ct. at 437 (“right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote”) (citation omitted).

The only change in the Autauga County Democratic Executive Committee’s plan is for the appointment of blacks. Counsel for the committee contends that such a plan has no potential to discriminate. Whether such a change, by itself, is subject to pre-clearance is an issue we need not reach.¹³ We understand from the committee’s counsel that the districts from which the county committee’s members are elected were adopted after November 1, 1964, the benchmark date for § 5 coverage,¹⁴ but were never submitted for preclearance for use in committee elections. The committee’s plan is therefore due to be submitted to the Attorney General for this reason.

We cannot reach similar conclusions as to the remaining two of the 47 county committees: the Greene and Monroe County Democratic Executive Committees. Plaintiffs have failed to submit any evidence that these two county committees have changed the way they select their members.

III.

The final issue for the court is an appropriate remedy. Because the purpose of § 5 is “to 'prevent the institution of changes which might have the purpose or effect of denying or abridging the right to vote on account of race or color,” Perkins, 400 U.S. at 385, 91 S.Ct. at 435 (emphasis added), this court is obligated, absent “unusual circumstances,” to enjoin enforcement of a change that should have been precleared but was not. Henderson v. Graddick, 641 F.Supp. 1192, 1202 (M.D.Ala.1986) (per curiam) (three-judge court) (Johnson, Hobbs, and Thompson, JJ.).¹⁵ The Supreme Court has indicated that special circumstances warranting an exception might be present where, because elections have already been held pursuant to an unprecleared voting requirement, it would be inequitable to return completely to the status quo ante pending submission of the change for preclearance. Under these circumstances, the Court explained, “it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming.” Perkins, 400 U.S. at 396-97, 91 S.Ct. at 441.

Counsel for the state committee informed this court at oral argument that its new plan has yet to be implemented in full and that the status quo is effectively still the 1983 plan. Under these circumstances, we conclude that we must enjoin enforcement of the new plan unless and until it is precleared.¹⁶ We understand, however, that the circumstances are quite different with regard to many of the 45 county committees whose plans, we conclude, must be precleared. Many committees have already enforced their new plans, and new members have been chosen under them. Plaintiffs and the county committees agree that the court should enjoin enforcement of the new plans in such circumstances only if the counties are unable to obtain preclearance after having been given a reasonable opportunity to do so. We cannot, however, determine on the present record which county committees fall within this category. We will therefore give the plaintiffs and the county committees 14 days to submit to the court proposed relief as to each of the 45 county committees.

It is so ORDERED.

1 . The 1989 plan also proposed to change the way in which the state committee’s Vice-Chairperson for Minority Affairs is selected and the way in which blacks are appointed to the state committee’s executive board. Under existing rules, the President of the ADC automatically serves as Vice-Chairperson for Minority Affairs, and the 23 committee members appointed by the ADC elect three of their number to serve on the executive board. Under the proposed 1989 plan, the Vice-Chairperson of Minority Affairs would be elected by the entire state committee, and the ADC's three executive board seats would be eliminated. The Attorney General objected as well to these provisions in the plan.

2 . Letter from James P. Turner, Acting Assistant Attorney General, to Albert W. LaPierre, Alabama Democratic Party, dated December 1, 1989.

4 . Since the state committee submitted its plan for preclearance, the Attorney General has requested additional information and thereby extended his time to render a decision. See 28 C.F.R. § 51.37.

5 . These 16 committees are from the following counties: Baldwin, Chilton, Clay, Dale, Dallas, Geneva, Jefferson, Lowndes, Marion, Randolph, Russell, Tallapoosa, Tuscaloosa, Walker, Wilcox, and Winston.

6 . Many propose to elect their members from county commission districts rather than from precincts or beats.

7 . These 28 committees are from the following counties: Barbour, Bibb, Chambers, Cherokee, Clarke, Coffee, Coosa, Crenshaw, DeKalb, El-more, Escambia, Fayette, Hale, Henry, Houston, Lamar, Lauderdale, Lawrence, Lee, Limestone, Marengo, Montgomery, Morgan, Perry, Pickens, Shelby, St. Clair, and Washington.

The plans for at least 22 of these committees also include the appointment of additional members, in most cases both black and white members, but in four cases black members only.

8 . Letter from James P. Turner, Acting Assistant Attorney General, to Albert W. LaPierre, Alabama Democratic Party, dated December 1, 1989.

9 . Defendants' brief filed on July 9, 1990, at 14.

10 . Id. at 21.

11 .See note 7, supra. As noted, some of these 28 committees have provisions in their new plans for the appointment of additional members, both black and white. For the reasons given later in this order, we conclude that, because these plans provide for the appointment of white members, they are subject to § 5 preclearance as well.

12 . See notes 5 & 7, supra.

13 . See 28 C.F.R. § 51.12 ("Any change affecting voting, even though it ... ostensibly expands voting rights ... must meet the section 5 pre-clearance requirement”).

14 .See 42 U.S.C.A. § 1973c.

15 . See also Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975) (per curiam) (acts covered by § 5 "are not now and will not be effective as laws until and unless precleared pursuant to § 5”); Georgia v. United States, 411 U.S. at 541, 93 S.Ct. at 1711 (future enforcement of reapportionment plan would be enjoined unless and until precleared).

16 . The state committee suggested at oral argument that, if this court should find that the proposed new plan is subject to preclearance, it should impose as an interim remedy a variation of the new plan, in which the elected black members of the state committee, rather than the ADC, would select the additional black members, but without the loser eligibility requirement. The state committee contends that the existing 1983 plan is unfair to black voters who are not members of the ADC. See note 3, supra. Whether the existing plan is unfair or illegal for reasons unconnected with § 5 and whether, for these reasons, the plan should not be continued in force are matters outside the jurisdiction of this three-judge court. See Henderson v. Graddick, 641 F.Supp. at 1209 (although a three-judge court has broad remedial powers under § 5, those powers do not extend beyond the relief necessary to vindicate the specific right at issue). These matters should be addressed instead, if anywhere in this on-going litigation, to the single-judge court which is currently considering a challenge to the existing plan under § 2 of the Voting Rights Act and the fourteenth and fifteenth amendments to the United States Constitution.