Moore v. Itawamba County MS

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT November 17, 2005

Charles R. Fulbruge III

Clerk

No. 05-60060

Summary Calendar

CHARLES MOORE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED, GEORGE E. “JACK” BROWN, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

Plaintiffs - Appellants,

versus

ITAWAMBA COUNTY, MISSISSIPPI, THE ITAWAMBA COUNTY, MISSISSIPPI

SUPERINTENDENT OF EDUCATION, ITAWAMBA COUNTY MISSISSIPPI SCHOOL

BOARD,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi, Eastern Division

USDC No. 1:03-CV-162-D-D

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:

Responding to the 2000 census which found a maximum population

deviation of 20.09%, Itawamba County sought to reapportion its five

supervisor and school board voting districts. The new plan redrew

the boundaries of five districts: two districts on the Western side

of the Tennessee-Tombigbee Waterway and three smaller districts on

the Eastern side of the Waterway.

I

The Itawamba County Board of Supervisors approved the plan in

July, 2002, by a 4-1 margin, and the Department of Justice pre-

cleared it in February, 2003. Moore, plaintiff-appellant, then

filed the present action in April, 2003, alleging a violation of

the one-person, one-vote principle attributed to the equal

protection clause of the Fourteenth Amendment.1 After a bench

trial in December, 2004, the district court rendered judgment in

favor of Itawamba County, concluding that Moore had not met his

burden of proof on the claim of vote dilution.

Moore urges that the undisputed 9.38% population deviation

among the new voting districts denies equal protection and that the

district court misapplied applicable law in faulting his effort to

rebut the presumption that a deviation of less than ten percent

will not support a finding of constitutionally impermissible

discrimination.2

We ask afresh whether the district court correctly applied the

standard enunciated in Brown v. Thompson,3 reviewing the findings

of fact under the clearly erroneous standard.4

1

As adduced on cross examination, the plaintiffs in this case, though

arguing on behalf of both Western districts, are only from one of the five

districts. There is no claim of discrimination based on race or any other

suspect classification, requiring heightened scrutiny. See Cox v. Larios, 124

S.Ct. 2806, 2809 (2004) (SCALIA, J., dissenting).

2

See Brown v. Thompson, 462 U.S. 835, 842 (1938).

3

Id.

4

FED.R.CIV.P. 52(a); Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 75 F.3d

1048, 1051 (5th Cir. 1996).

II

The district court concluded “that the Plaintiffs have failed

to meet their burden of proof and cannot prove that the present

voting districts in Itawamba are discriminatory.” The district

court appears to focus on the percentage of population deviation as

the determinative obstacle to Moore’s discrimination claim: “Thus,

if the maximum population deviation between districts is less than

10%, no discrimination has taken place and any deviations are

considered minor,” and “[a]s noted above, when the maximum

deviation is less than 10%, Brown holds that no one-person/one-vote

violation has occurred.” Moore quarrels with the application of

this standard. The County replies that it was properly applied and

that Moore mischaracterizes the district court’s opinion.

The formulaic threshold is not an absolute determinant.

Rather, it effectively allocates the burden of proof. Population

deviation less than ten percent, for example, is not per se

nondiscriminatory and is not an absolute bar to a claim of vote

dilution.5 At the same time, a deviation in population equality

5

See Chen v. City of Houston, 205 F.3d 502, 523 n.15 (5th Cir. 2000)

(stating “[a]nd even if the ten percent de minimis threshold is not viewed as an

absolute bar....”) (citing Daly v. Hunt, 93 F.3d 1212, 1220 (4th Cir. 1996)

(stating “if the maximum deviation is less than 10%, the population disparity is

considered de minimis and the plaintiff cannot rely on it alone to prove

invidious discrimination or arbitrariness. ...the plaintiff would have to

produce further evidence to show that the apportionment process had a ‘taint of

arbitrariness or discrimination’)); see also Roman v. Sincock, 377 U.S. 695

(1964) (“In our view the problem does not lend itself to any such uniform

formula, and it is neither practicable nor desirable to establish rigid

mathematical standards for evaluating the constitutional validity of a state

legislative apportionment scheme under the Equal Protection Clause. Rather, the

proper judicial approach is to ascertain whether, under the particular

circumstances existing in the individual State whose legislative apportionment

is at issue, there has been a faithful adherence to a plan of population-based

greater than ten percent establishes a prima facie case of

discrimination and shifts the evidentiary burden to the state,

requiring justification for the deviation.6 With a deviation less

than ten percent, a plaintiff must prove that the redistricting

process was tainted by arbitrariness or discrimination.7 That is,

a deviation less than ten percent is not a safe harbor, barring any

claim of discrimination, as the district court’s order suggests.8

Brown, itself, prefaces the applicable standard with the phrase,

“as a general matter.”9 That is, minor deviations do not amount to

a prima facie case of discrimination under the Fourteenth

Amendment, but they do not foreclose the possibility of success

altogether; there may be other evidence.

III

Moore argues that there was such evidence of bad faith,

arbitrariness, and discrimination in the apportionment of the five

representation, with such minor deviations only as may occur in recognizing

certain factors that are free from any taint of arbitrariness or

discrimination.”), cited in, Brown, 462 U.S. at 843.

6

Brown, 462 U.S. at 842-43.

7

See supra n.7.

8

See Cox, 124 S.Ct. 2806 (summarily affirming a finding of discriminatory

vote dilution in contravention of the equal protection clause of the Fourteenth

Amendment, where the maximum population deviation among the districts remained

below ten percent). “[A]ppellant invites us to weaken the one-person, one-vote

standard by creating a safe harbor for population deviations of less than ten

percent, within which districting decisions could be made for any reason

whatsoever. The Court properly rejects that invitation.” Id. at 2808 (STEVENS,

J., concurring).

9

“Our decisions have established, as a general matter, that an

apportionment plan with a maximum population deviation under 10% falls within the

category of minor deviations.” Brown, 462 U.S. at 842 (emphasis added).

districts–the rigid adherence to geographic borders and the

disproportionate allotment of education resources in the County.

The district court, in its opinion, did not pause to address the

legal possibility of rebutting a presumption of nondiscrimination

arising from the sub-standard deviation in district population and

did not elaborate on the related facts. Perhaps it was because the

proof did not amount to much. Ultimately, it is of no matter

because, “we cannot say on this sparse record that a reasonable

fact finder could find that the [County’s] decisions here evidenced

the bad faith, arbitrariness, or invidious discrimination courts

have required in cases involving variations under ten percent.”10

Moore contends that the redistricting committee knew or should

have known that strictly maintaining natural geographic boundaries,

here the Waterway dividing the county, would disadvantage the two

districts on its Western side. This knowledge, Moore argues,

evidences discrimination, arbitrariness, and a lack of good faith

in developing the redistricting plan, sufficient to fall within the

type of prohibited conduct barred by the Fourteenth Amendment’s

equal protection clause.

Moore’s assertion lacks merit. It is true that conforming to

geographic boundaries will no longer justify a more than de minimis

population deviation; 11 it is equally true that abiding by a list

10

Chen, 205 F.3d at 523 n.15 (internal quotations omitted).

11

“Modern developments and improvements in transportation and

communications make rather hollow...most claims that deviations from population-

based representation can validly be based solely on geographical considerations.”

Reynolds v. Sims, 377 U.S. 533, 580 (1964).

of desired criteria that includes adherence to such an instruction

does not support a finding of bad faith or, otherwise, invalidate

a redistricting plan.12 The redistricting committee followed a ten

point list of criteria in developing its plan. Moore alleges that

the committee impermissibly sacrificed some of the other criteria

in order to meet Board demands and keep the Waterway boundary

intact, but he provides no evidence to support this contention.13

No reasonable fact-finder could hold, on this record, that such

action by the committee was arbitrary, discriminatory, or in bad

faith.14

To strengthen his argument, Moore argues that the

redistricting plan perpetuates pervasive discrimination against the

Western districts of the County, a practice engaged in since the

building of the Waterway some eighteen years ago. Moore points to

the unequal allocation of education resources, allegedly a $600-

$1000 disparity in spending per student per year, between the

12

Natural borders can be instructive in drawing districts, due to the

potential commonality of interests among sub-populations, such multiple interests

created by the geographic diversity within a state or county.

13

Moreover, the existence of a plan with better population equality,

alone, is insufficient to find a redistricting scheme unconstitutional. See

Swann v. Adams, 385 U.S. 440, 445-46 (1967).

14

Likewise, Moore also points to the fact that the three districts on the

Eastern side of the Waterway have three votes and that the two Western districts

only have two votes on the Board. Moore laments that this will never change due

to “the ‘politics’ of Itawamba County.” Though there has been contention over

whether partisan motivation is sufficient to justify population deviations among

districts (See Cox v. Larios, 124 S.Ct. at 2809 (SCALIA, J., dissenting)), Moore

admits that the population of the Eastern districts exceeds that of the Western

districts. Simply, being in the minority is not actionable without evidence of

discrimination. That the redistricting committee only met once and that some of

the members were absent from the meeting does not establish bad faith, arbitrary,

or discriminatory partisan bias.

schools on different sides of the Waterway. The unchallenged

evidence of the School Board estimates the allocation of funds to

the six County schools for the 2003-2004 fiscal year at no greater

than a $361.75 difference in expenditures per student, per year;

two schools in the Eastern districts receive less money per

student, per year than the schools in the Western districts.

A simple deviation in the average expenditures is neither

necessarily the result of discrimination nor inherently

discriminatory. Testimony adduced on cross examination reveals

that the Dorsey Attendance Center, a school on the Western side of

the waterway, has the highest accreditation of any school in the

County. Moreover, additional cross examination testimony adduced

at trial revealed that the County School District is an open school

district, and many of the students from the Western districts

attend schools on the East side of the Waterway because there is

only one high school located in the two Western districts. Though

the latter two arguments do not necessarily controvert the funding

disparity, they undercut Moore’s contention that any discrimination

has disadvantaged the students of the Western districts. In short,

Moore is unable to rebut the presumption that the County’s

redistricting plan is a legitimate exercise of its power.

IV

Even though “a State [must] make an honest and good faith

effort to construct districts...as nearly of equal population as is

practicable...it is a practical impossibility to arrange

legislative districts so that each one has an identical number of

residents, or citizens, or voters.”15 Of course, mathematical

exactitude is made possible by the computer, but that comes with

the price of fractured communities of interest and other

impractical outcomes that frustrate the remedial goals of the

inquiry.

AFFIRMED.

15

Reynolds, 377 U.S. at 577.