Jeffers v. Clinton

EISELE, Chief District Judge,

dissenting. (Eisele # 1)

Filed Dec. 7, 1989.

The majority opinion dealing with Section 2 of the Voting Rights Act was filed herein on December 4, 1989. In that opinion, the majority concluded that the claims of the plaintiffs were not barred by the doctrine of laches. I dissent. 1

I agree with Judge Arnold that laches is an equitable defense which means essentially that if there is unreasonable and unjustified delay in the filing of a lawsuit, and this delay causes prejudice, the court of equity may dismiss the complaint. As stated by Judge Arnold:

The greater the delay, or the more unreasonable, the less prejudice need be shown; and vice versa. The Court must weigh the facts and interests on both sides, summon up the discretion of a chancellor, remember that it is a court of conscience and not of legal stricture, and come as close as it can to a fair result. Frequently there are some good argu *220 ments on both sides, and that is the case here.

Again I agree.

It is important to first note how legislative redistricting fits into our constitutional schemes for a representative democracy.

Regular, periodic legislative redistricting is indeed unique in the election law area. It is absolutely essential if we are to have fair and equal representation and if we are to give meaning to the one-person, one-vote concept. Yet, since our nation was formed, most legislative redistricting has, for practical reasons, been done on a decennial basis, keyed as it is to our national census procedures. The willingness to “let things alone” for such a long period (ten years) reflects the practical manner in which we carry out the democratic principle of proportional representation. 2 We are all aware that within such a span of years, there can be dramatic changes in the populations of the various legislative districts. It is generally conceded that the farther one gets from the last census the more unreliable are the population figures as a measure of the current weight actually reflected in each legislator’s vote. And we know that the number of black and white residents may also change dramatically and not necessarily proportionately. For example, in Rybicki v. State Board of Elections, 574 F.Supp. 1082 (N.D.Ill.1982), evidence adduced at trial showed that between the 1970 and 1980 census, the number of senate districts in which blacks constituted a majority had increased from five to six. Id. at 1092 . In one district alone, the racial composition had changed from 21.6 percent black in 1970 to 57.7 percent black in 1980. Id. at 1109 . Still society accepts the utility of a decennial system and implicitly accepts that as time passes the apportionment may no longer comport with constitutional requirements. This necessarily detracts from the conclusion in Smith v. Clinton, 687 F.Supp. 1310 , (E.D.Ark.), aff'd, — U.S. -, 109 S.Ct. 548 , 102 L.Ed.2d 576 (1988) that the recurring harm (assumedly occurring at each new election) justifies greater leniency in imposing time limits on the commencement of a voting rights challenge to redistricting plans. Population changes since the last regular redistricting may have corrected or mooted the original vice {ergo, no recurring harm) or, indeed, may have exacerbated such vice or created new constitutional infirmities which will have to be corrected at the next decennial redistricting. We simply do not know. For the most part, we are left to guess at the realities of the current situation. Because of the seven-year delay, we are left standing in sand.

The 1980 census data shows that several of the House districts drawn by the defendant Board in 1981 (in addition to those in Pulaski and Jefferson Counties) had majority-black populations even though the voting-age-black populations were less than 50 percent. District 74 has 52 percent black total population but 47 percent black-voting-age population. District 75 had 51 percent black total population but only 45 percent black-voting-age population. And District 100 had 52 percent and 47 percent, respectively. Indeed, one Senate district— District 30 — had a 51 percent black total population but only 43 percent black-voting-age population. What inference can be drawn from these figures? One is that in 1981 blacks had a higher percentage of their total population in the “under-18” category than did whites. This means that, if all other factors (including in-and-out migrations and death rates) remained constant, more blacks than whites, proportionately, would reach the age of 18 during the period between 1980 and 1989. All persons nine years of age or older by a certain date in 1980 would be over 18 by that same date in 1989. The predictable consequence would be that the percentage of black-voting-age population would increase and the percentage of white-voting-age population would decrease in those districts during *221 that nine-year period. But we do not know the relative migration rates of blacks and whites during that period and we do not have a handle on the relative relevant mortality rates. Nevertheless, this exercise is instructive because it suggests how different might be the 1989 data (if it were available) from the 1980 census figures.

Assuming that plaintiffs knew, or should have known, of the factual and legal bases for their dilution claim back in 1981 when the reapportionment was adopted, or in 1982 when the Voting Rights Act was amended, and nevertheless allowed over seven years to pass before objecting, then it is not unreasonable to say that the strong practical reasons underlying our decennial reapportionment system also require the conclusion that they delayed entirely too long. Stability and continuity require redistricting plans, once in place for a substantial period of time, to remain in force and effect until the next decennial redistricting, unless a plaintiff can show some strong legitimate reason or excuse for postponing or delaying a challenge.

Was information available to plaintiffs and other citizens back in 1981 upon which to base their dilution claim? The answer is: Yes.

First, the 1981 reapportionment of Arkansas’ General Assembly generated ample publicity and public debate before and after the Board of Apportionment adopted its plan for state House and Senate districts. Numerous public hearings were conducted throughout the state. Attorney General Clark testified that for a period of several months he received comments, suggestions and criticisms of various proposed district-ing plans almost daily.

It is interesting also to note that plaintiffs have in this lawsuit complained bitterly that a majority of the defendant Board members refused to grant even a 30-day extension back in late June of 1981 to enable interested parties to present information on adequate minority representation. However, this series of events is also relevant to the question of whether plaintiffs’ delay in commencing the present action was reasonable. It is relevant because it shows that during this period of time in 1981 there existed a well-informed and highly-organized advocacy group represen-tating the same interests as are championed by the plaintiffs here. Its work more than amply laid the groundwork for the present challenge. But that work, and the evidence developed then inexplicably lay unused for nearly eight years, only to be dusted off when this suit was filed near the close of the decade and only fifteen months before the commencement of the 1990 census.

As the apportionment process began, Ms. Brownie Ledbetter testified that she was appointed to serve as co-chairperson of the Committee for Fair Representation, a coalition of some eighteen national and local organizations concerned with various aspects of the reapportionment — including its effect on black voters. The coalition, which included the Arkansas Education Association, the Arkansas AFL-CIO, Common Cause, the state chapter of the National Organization of Women, the NAACP and the Urban League, organized public forums and called for additional public hearings in an effort to bring to the attention of the Board of Apportionment the need to insure adequate minority representation in both the House and Senate.

More importantly, the committee obtained copies of computer tapes which held census data for the state of Arkansas — the same tapes used by the Board of Apportionment. With the help of a technical support staff, the committee was able to analyze this data to determine the effect various districting proposals would have on blacks and other minorities, and then develop alternative proposals. And these tapes, or copies of them, were again used many years later by plaintiffs’ expert Dr. Jerry Wilson to analyze the existing apportionment and develop alternate maps showing that a number of majority black House and Senate districts could have been drawn back in 1981. The information needed to mount an attack on the plan was as available to the plaintiffs here as it was to Ms. Ledbetter and the organizations involved with the Committee for Fair Representa *222 tion. And evidence concerning polarized voting and other issues was also available. This is obvious if one simply examines the evidence introduced in this case. Much of that evidence arose out of elections and events occurring before 1982. And almost all of the evidence used in this case was available by 1986. 3

The decennial legislative redistricting process contemplated by Article VIII, Section 1 of the Constitution of Arkansas provides an opportunity for the Board of Apportionment to obtain and consider the views of all affected persons and groups before settling upon an apportionment plan. The whole process may be extended (as was done in 1981) 4 and there is little time pressure anyway because that process ordinarily occurs in off-election years. But the majority’s order entered December 4, 1989, directs the defendants to come up with a new plan by January 15, 1990, that is, within a period of 41 days which embraces the Christmas and New Year holidays. The Court chose this early date because it recognized that the “election season” for 1990 will begin soon thereafter. (Indeed, it notes that the filing period will begin on March 20, 1990.) Once the new plan is adopted and filed with the Court, there should be an opportunity for interested parties to object to the plan. If objections are filed, a hearing will probably be required, and, after this Court acts, there is the possibility of appeals. The prospect that this Court may have to interfere with the state’s election schedule is a real one. And if election sequences are not altered or enjoined, there is at least the probability that legislative races will be held under the cloud of one or more appeals. Under certain circumstances such prospects of difficulty, expense, and confusion could be accepted as reasonable and essentially unavoidable. But here?

The defendants have a Hobson’s choice: (1) whether to spend a large amount of money in an effort to obtain updated current census figures, or (2) to simply rely on the stale, outdated 1981 census figures. Whether the first alternative is even available in the short period provided by the Court is questionable. If such information can be and is obtained, it is possible that it will send all parties “back to the drawing board,” invite further controversy, and require new hearings. If the Board simply relies on the 1981 figures, it will have no assurance that its decisions will have any current validity. And, all for what purpose? To create legislative districts for use in only one election. Then, in 1991, the new Board will redistrict on the basis of the 1990 census figures. It is open to question whether it is fair or reasonable to require such immense expenditures of time and money to create, for one election, districts whose lines will probably be changed again within another year. And, if the Board uses the 1981 census data, it will be creating, for one election, essentially hypothetical legislative districts as to whose validity no one can even guess prior to the 1990 census.

*223 It may be said that the expenditure of such time and effort would have been required if the attack had been made in 1981 or 1982. But the data then would then have been relatively current and the resulting redistricting would have been in effect to control the elections for the following seven or eight years.

I note that the majority in rejecting the defendants’ argument that the present lawsuit should be barred by the equitable doctrine of laches relies principally upon Smith . I have thought long and hard as to the effect to be accorded this ruling and the Supreme Court’s affirmance. I conclude that the application of laches is not foreclosed by the ruling in Smith . It is clear that relief in voting rights cases is to be “fashioned in the light of well-known principles of equity.” Baker v. Carr, 369 U.S. 186, 250 , 82 S.Ct. 691, 727 , 7 L.Ed.2d 663 (1962) (Douglas, J. concurring). These principles are by their nature case-specific. Thus, while Smith held that laches did not bar the plaintiffs in that case in their challenge to the election scheme for a single multi-member legislative district, its ruling should be limited to the specific facts of that case. It ought not be read to permanently enjoin a district court’s exercise of equitable judgment in all redistricting voting rights cases forevermore.

As the majority points out, laches requires a finding of two key elements: inexcusable delay in commencing a suit resulting in undue prejudice to the defendant. However, the majority also takes the position that plaintiffs’ delay in commencing their challenge to the 1981 apportionment should date from the decision in Thornburg v. Gingles, 478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986). In other words, the majority suggests that even if adequate evidence of a “Section 2” violation was available to the plaintiffs back in the 1981-1984 period, the pertinent law was so unclear and confusing that plaintiffs should be excused for any delay before Gingles cleared the air in 1986. And using this decision as the “pole star” of the law in this area, it is. argued that plaintiffs waited only two years thereafter to commence this action, and that such a delay is not unreasonable. But I do not agree that this is the appropriate moment from which to measure plaintiffs’ delay. To say that plaintiffs’ “clock” began to run only after the Gingles decision had been rendered is to ignore a much broader sweep of recent history in the development of the law with respect to voting rights.

Specifically, the majority ignores that Congress amended Section 2 of the Voting Rights Act in 1982 by clearly prohibiting the use of any voting structure “which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color....” 42 U.S.C. § 1973 (a) (Emphasis applied). The amendment also added a new subdivision that stated that a violation of Section 2 could be established upon showing of such results “based on the totality of circumstances.” Id. § 1973(b). The amendment was an unambiguous rebuke to the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980), which held that a violation of the Voting Rights Act required a showing of discriminatory purpose.

Moreover, by amending the statute’s language so that a violation of Section 2 could be established using a “results” analysis, Congress did not write on a clean slate or establish a new rule of law. It was reaffirming what it believed to have been the standard prior to Bolden . And note plaintiffs’ contention in their pretrial brief that “[pjrior to the decision in Bolden , plaintiffs could prevail in a vote dilution case by showing either discriminatory results or intent.” See Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at 53, citing, 1982 U.S.Code Cong. & Admin.News at 192-201.

The so-called Senate Report factors, which accompanied the 1982 amendment and which arguably must now be applied to the present case, were also not new. These factors were instead derived from the analytic framework first articulated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), affd on other grounds sub nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636 , 96 *224 S.Ct. 1083 , 47 L.Ed.2d 296 (1976). Thornburg v. Gingles, supra, 478 U.S. at 36 n. 4, 106 S.Ct. at 2759 n. 4. And only days after passage of the amendments, the Supreme Court rejected a portion of the plurality’s ruling in Bolden and held that the Zimmer factors are to be used to determine whether an election scheme purposefully discriminates against minority voters in violation of the Fourteenth Amendment. Rogers v. Lodge, 458 U.S. 613, 623-24 , 102 S.Ct. 3272, 3278-79 , 73 L.Ed.2d 1012 (1982). It is also interesting to note that these factors were known to the defendants back in 1981 as they prepared to develop a reapportionment plan.

After its initial meeting, the Board of Apportionment commissioned Professor Albert Witte of the University of Arkansas School of Law to prepare a lengthy legal memorandum on the current state of the law with rspect to legislative redistricting. Among its conclusions the memorandum noted that a challenge to an apportionment on vote dilution grounds could be supported with such evidence as “an historical pattern of underrepresentation, the current effects of past discrimination which hindered effective participation in the electoral process and the group’s depressed economic and social status which further impeded their participation.” Plaintiffs’ Exhibit 14B, p. 27. The point is: The law was adequately clear to lawyers and legal scholars without Gingles .

While Gingles perhaps clarified the weight to be accorded the various Senate or Zimmer factors, it does not provide plaintiffs an excuse for waiting until January 1989 to commence this lawsuit. To say plaintiffs could do nothing without the benefit of Gingles is to say that the 1982 amendments to the Voting Rights Act were meaningless and without practical effect, indecipherable to anyone interested in voting rights issues. There simply is no basis for such a conclusion. Moreover, it is contrary to the experience of numerous other litigants, who in the absence of Gingles , still managed to challenge similar reapportionment schemes much earlier in this decade, and most immediately after the reap-portionments took effect. See e.g., Ket-chum v. Byrne, 740 F.2d 1398, 1401 (7th Cir.1984, cert. denied sub nom., City Council of Chicago v. Ketchum 471 U.S. 1135 , 105 S.Ct. 2673 , 86 L.Ed.2d 692 (1985)); Gingles v. Edmisten, 590 F.Supp. 345, 350 (E.D.N.C.1984), aff'd in part and rev’d in part, Thornburg v. Gingles, 478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986). (Complaint filed within two months after challenged apportionment adopted by the state; Major v. Treen, 574 F.Supp. 325, 327 (E.D.La.1983) (Trial in suit challenging 1981 congressional redistricting commenced in March 1983); Rybicki v. State Board of Elections of Illinois, 574 F.Supp. 1082, 1088 (N.D.Ill.1982) (State legislative redistricting plan adopted October 1981; district court opinion rendered four months later). Furthermore, prior challenges to Arkansas reapportionments were also brought soon after the adoption of the challenged plan. See Yancey v. Faubus, 251 F.Supp. 998 (E.D.Ark.1965), aff'd sub nom., Crawford County Bar Ass’n v. Faubus, 383 U.S. 271 , 86 S.Ct. 933 , 15 L.Ed.2d 750 (1966), Kelly v. Bumpers, 340 F.Supp. 568 (E.D.Ark.1972), aff'd 413 U.S. 901 , 93 S.Ct. 3047 , 37 L.Ed.2d 1019 (1973). The bases of these many attacks differ, of course, but all of the plaintiffs involved recognized the need to move promptly with their challenges.

Clearly then, plaintiffs should have been able to determine that a cause of action existed at least some time shortly after the 1982 amendment to the Voting Rights Act took effect, and also should have been aware of enough relevant evidence that could have been used in an effort to establish a violation of Section 2. Viewed in this context, plaintiffs’ delay is more on the order of seven years rather than the two years suggested by the majority.

It is true, as Judge Arnold states, that this is a suit in equity. It is therefore not governed by any statute of limitations. Still, it is important to remember that in Owens v. Okure, — U.S. -, -, 109 S.Ct. 573, 583 , 102 L.Ed.2d 594 (1989), the Supreme Court held that a state’s general or residual statute of limitations should be applied to Section 1983 claims. Arkansas’ residual statute of limitations is three *225 years. Ark.Code.Ann. § 16-56-105. While this statute of limitations does not control here, it can provide a rough guide for the application of laches. See Dobbs, Remedies, § 2.3, p. 43-44 (1973).

Even if a case is not dismissed for laches, should not injunctive relief be denied where the time strictures caused by the tardy filing undermine the integrity or effectiveness of such relief? In Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), Justice Warren, writing for the Court stated:

[OJnce a State’s legislative apportionment scheme is found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances such as where an impending elections is imminent and a State’s election scheme is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state elections laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a state in adjusting to the requirements of the court’s decree.

Id., 377 U.S. at 585 , 84 S.Ct. at 1393 . I recognize that the majority is trying to avoid “disruption of the election process” but it is nevertheless my view that the order entered herein on December 4, 1989, will, because of the foreseeable time limitations, make “unreasonable or embarrassing demands” upon the state of Arkansas.

In MacGovern v. Connolly, 637 F.Supp. 111 (D.Mass.1986) the three-judge district court panel dismissed plaintiffs’ complaint attacking a 1977 state legislature’s apportionment plan where the suit was not filed until 1986 just prior to the commencement of the next reapportionment. The court interpreted Reynolds as allowing dismissal of an apportionment claim as well as the staying of equitable relief. Id. at 114-16. The court also held that laches required dismissal because plaintiffs’ delay in commencing the action was inexcusable, and because going forward would result in undue prejudice to the defendant. Id. at 116.

In Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir.1970), the court of appeals upheld a district court’s refusal to convene a three-judge panel and subsequent dismissal of a suit challenging the state’s apportionment of the general assembly. The court found that in passing upon the motion to convene a three-judge panel, the district court was required to determine whether the suit made out a “substantial claim” and further reasoned that Reynolds supported the conclusion that a claim could not meet this test where injunctive relief was unavailable. Id. at 610-11 .

Similarly, the court in Simkins v. Gres-sette, 631 F.2d 287 (4th Cir.1980), upheld the district court’s dismissal of an apportionment challenge that was filed two days before the opening of the filing period for the 1980 election. Id. at 289 . Significantly, Simkins involved a challenge to the South Carolina Senate apportionment plan on the grounds that it diluted black voting strength in violation of Section 2 of the Voting Rights Act, as well as the First, Thirteenth, Fourteenth and Fifteenth Amendments. Id. at 289 . Nothing that the last election for the state senate had been held in 1976, the court stated:

Instead of bringing suit then, they chose to wait for more than three years until the eve of the 1980 elections. The record reflects no good reason for the delay. Such a delayed suit, if maintained, would clearly cause a major disruption in the election momentarily to begin in South Carolina. This disruption, coupled with the fact that 1980 is also the year of a *226 national census which will likely require reapportionment in South Carolina, places this case squarely within our holding in Maryland Citizens.

Filed Jan. 19, 1990.

Simkins v. Gressette, supra, 631 F.2d at 296 .

Admittedly, dismissal of a voting rights challenge because of delay in filing represents a substantial step not necessarily supported by the language quoted above from Reynolds . However, these cases do make that very sound point that, although the judiciary may be called upon to enter the “political thicket,” equity “demands that a federal court stay its hand when judicial relief makes no sense.” MacGo-vern v. Connolly, supra, 637 F.Supp. at 116 .

The time frames here are such that I see no way that a reasonable and fair remedy — commensurate with the complexity and difficulty of the task — could be crafted and properly implemented before the next “election season” begins.

The proximity of the next election as well as the next reapportionment, the mechanics and cost of attempting a remedy that will last only one election, the staleness and unreliability of the essential data, the likelihood of confusion to voters and loss of continuity of representation caused by these events, firmly weigh in favor of dismissal or at least in favor of denying any remedy beyond declaratory relief. Relief beyond that in the circumstances of this case should be denied as a matter of law. And, on balance, I conclude that dismissal would be more appropriate under the facts of this case.

The majority concludes that any disruption caused by implementing a remedy is outweighed by the fundamental importance of vindicating the right of equal participation in the political process. Consequently, the majority believes it would be unreasonable to say to the plaintiffs that they should “[wjait for another census. The time is not yet ripe.” supra at 203. But the principle at stake here is not ripeness. If anything, this suit is overripe. The critical facts presented at trial, and which control much of the court’s determination, are admittedly stale. The equitable principle implicit in withholding a grant of relief is predicated not upon the theory that the plaintiffs should wait, but upon the theory that they waited entirely too long.

EISELE, Chief District Judge,

. This opinion deals only with the issue of lach-es. I will, at a later date, file an opinion setting forth my views of "Section 2” violations. And, as pointed out in Judge Arnold’s opinion, page 199, plaintiffs’ constitutional claims and their request for preclearance as a remedy for constitutional violations remain under advisement.

. As research develops new and reliable methods and technologies for accurately fixing population figures within legislative districts on a current, or more current, basis, we may decide that more frequent redistricting is called for. On the other hand, even where accurate current data is available, we may opt for some fixed period between redistricting in the interest of stability and continuity.

. The most important evidence in this case is that which established black and white voting age populations in the legislative districts in question. This evidence is derived from the 1980 census, which became available in 1981. This evidence reveals that in 1981 there were geographically compact concentrations of minority voters that were split or fractured among the various districts. The census data is also the source of information concerning the comparative socioeconomic conditions of blacks and whites. A majority of the Court then simply took judicial notice of the fact that these conditions discouraged blacks from participating in the political process, thereby establishing one of the so-called Senate factors. See Order of October 2, 1989 citing Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.) aff'd mem., 459 U.S. 801 , 103 S.Ct. 33 , 74 L.Ed.2d 47 (1982). Similarly, the Court was able to take judicial notice of Arkansas’ history of official discrimination with respect to voting. Id. The evidence of racial polarization was largely derived from the report of Dr. Richard Engstrom, who analyzed some 46 Arkansas elections in which black candidates opposed white candidates. Of these elections, thirty-two occurred in 1986 or earlier. See Plaintiffs’ Exhibit 3 and Tables 1 and 2 herein.

. The state plan constitution mandates that the Board adopt a new reapportionment no later than February 1st of the year following each decennial census. However, because of delays in obtaining final census figures and'the need to conduct public hearings, the Board continued to draft and revise various proposed redistricting plans until well into the summer of 1981.