The opinion
WISDOM, Circuit Judge,
dissenting.
I respectfully dissent.
With deference, I submit that the majority’s decision in this case illustrates what is wrong with Nevett II. When there is no need for close weighing of diverse and conflicting criteria, because of the obvious effects of at-large voting in a multimember voting district, there is no need to genuflect to Zimmer and go through the formalistic ritual required by Nevett II.
Shreveport has a population of 182,000. Thirty-four percent are black; the percentage of registered black voters is smaller. 1 *256 It does not take a late model computer to tell us that in Shreveport no black has a chance to be elected to a city office when the officials are elected at large. Each of the five City Commissioners is head of a separate department, accentuating polarization and the effect of at-large voting. The only access a black voter has to the political process is to vote for a black candidate in the primary and in the run-off cast a worthless vote for that candidate or vote for one of two white candidates.
I have no trouble understanding the district judge’s statement, “Because blacks were disenfranchised [at the time of the passage of the districting act] we perceive no ‘tenuous policy’ underlying the use of at-large voting in the city”. The Court knew that the act was adopted and at-large voting instituted in 1910, when there was no possibility of imputing a racially discriminatory policy to the State or to the City of Shreveport — for no blacks voted in Louisiana. But, even before Nevett II and Kirksey were decided the district judge found that the inevitable effect of maintaining at-large voting for multi-members is to dilute the black vote in Shreveport. The district court specifically addressed the issue. After considering all of the facts, population statistics, past and present evidence of discrimination, the court held, 71 F.R.D. at 636:
“Assaying these facts and related circumstances peculiar to Shreveport, we must conclude that those portions of §§ 3.01 and 3.02 of the City Charter, which require only that the various Commissioners be residents of the city — from no particular neighborhood, district or section- — and by common consent and practice during the twenty-six years since the Charter’s adoption all elected Commissioners have run at-large, operate impermissibly to dilute the voting power of the city’s black electors in violation of the Equal Protection Clause of the Fourteenth Amendment. Black voters as a class are deprived of the opportunity meaningfully 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.”
This statement is no more conclusory than the holdings in Kirksey and Nevett II: maintenance (that is, failure to take affirmative curative action) of a system now having discriminatory effect, but initially not purposefully racially discriminatory, establishes an existing policy of racial discrimination. Indeed, I am surprised that the majority did not give Judge Ben Dawkins credit for anticipating the holdings in Kirksey and Nevett II.
The majority remands this case to the district judge for him to make new and more specific findings on the Zimmer criteria. I do not understand the majority opinion. The district court faithfully followed Zimmer. The remand is unnecessary, wasteful of judge-lawyer-witness time, and demeaning to the district court. This is not to belabor the effect of further delay in judicial recognition of minority voting rights. The district court will now have to hold another hearing. No doubt it can successfully paraphrase earlier findings in words more pleasant to the ear of the majority, but not necessarily more meaningful. Of course, it can only repeat its earlier conclusion.
The experienced district judge cut his eye-teeth on civil rights cases. In many of his earlier voting cases he was reversed when he decided against black complainants. Now he is reversed when he decides in their favor. He must feel that it is impossible to satisfy the Court of Appeals for the Fifth Circuit.
The curious anomaly of the situation is that the district judge did exactly what the majority in Nevett II exhorted him to do, before the opinion in that case was written. He wrote a well-reasoned opinion in twelve printed pages. He reviewed in detail all the facts in a record filled with exhibits and the testimony of experts. He made a specific finding on each of the Zimmer factors *257 and made other findings based on local conditions in Shreveport. He recognized that his “task [was] not to comb the record seeking the presence or absence of any particular fact or set of facts, for none alone is dispositive of the question before us. Instead, our considered opinion ‘must represent ... a blend of history and an intensely local appraisal of the design and impact . . . [a] multi-member district in light of past and present reality, political and otherwise”, citing White v. Regester, 71 F.R.D. at 634. The court’s findings are at least as specific and its conclusions are as free from error as those in Nevett II and Bolden, two of the three cases consolidated with this case, in each of which the majority affirmed the district court.
The district judge analyzed the voting system in Shreveport. He went into the history of voting in the city. He found that: “[Blacks] have suffered the stigma of segregated schools, separate public accommodations for food and lodging, separate public recreational facilities, segregated seating areas on public conveyances, and separate public restrooms and water fountains. In short, blacks have been subjected to legally imposed cultural deprivations among a white majority, the results of which, as shown infra, have not entirely vanished.” Blacks United, etc. v. City of Shreveport, La., 71 F.R.D. 623 at 629 . He examined and made findings on the racial and socioeconomic distribution of population and demographic patterns in the city. He considered and made findings on the lack of openness of the political process; the unresponsiveness of city government to the needs of blacks in school facilities, in appointments to local offices, boards and committees, in government services and facilities, in transportation, in housing, and city streets in black neighborhoods. He found “enhancing factors”: “The majority primary law, ‘place’ requirements, absence of residency requirements and racially polarized voting all have exacerbated the past almost total foreclosure of blacks from truly effective exercise of the ballot.” Blacks United, etc. v. City of Shreveport, La., 71 F.R.D. 623 at 636 . The findings should be sufficient to satisfy any court as to their specificity and to their adequacy to uphold the district court decision in this case as not clearly erroneous.
As for me, I would take judicial notice that a system of at-large voting for multimember officials is racially discriminatory — in a community having a heavy majority of white voters, a history of steel-hard, inflexible segregation, and a record (supported by a district court finding) of bloc voting. If, on top of this, a racially discriminatory purpose must be proved (inferred from non-action), I would hold that failure to take affirmative curative action constitutes a present, continuing racially discriminatory purpose under Nevett II and Kirksey.
. According to Nevett II, Fairfield has a black population of 48 percent, but more than 50 percent of the registered voters are blacks, allegedly because of the recent added registration of blacks by federal registers. If this is true, Fairfield must be the only community in the entire South where the percentage of registered eligible black voters exceeds the percentage of eligible white voters. This is not the place for a discussion of the. reasons for the relatively lower proportion of blacks registering to vote. I make the point, because the almost even division of black and white voters in Fairfield should call for a more careful consideration of all relevant factors than in Shreveport. In this case the district court has made a finding that there was polarization of the races resulting in bloc voting. The disparity in numbers between *256 blacks and whites makes it a foregone conclusion that at-large voting has discriminatory effects on the access of blacks to the political processes in the City of Shreveport.