KEITH STARRETT, District Judge.
For the reasons provided below, the Court finds that Hattiesburg, Mississippi's current ward plan does not dilute the voting or political power of African-American citizens in violation of Section 2 of the Voting Rights Act.
Hattiesburg, Mississippi, has a "mayor-council" form of municipal government, as provided in MISS.CODE ANN. §§ 21-8-1 et seq. The mayor is elected at-large and wields Hattiesburg's executive power. MISS.CODE ANN. § 21-8-15. A five-person city council wields the City's legislative power. MISS.CODE ANN. § 21-8-9. Each council member is elected from a ward, and each ward must "contain, as nearly as possible," a fifth of the City's population, "as shown by the most recent decennial census ...." MISS.CODE ANN. § 21-8-7(4)(a)-(b). The City Council has the authority and obligation to redistrict the municipality when necessary, and its decision "may not be vetoed by the mayor." MISS. CODE ANN. § 21-8-7(c)(i).
Plaintiffs are African-American citizens of Hattiesburg. They contend that the Council Plan violates § 2 of the Voting Rights Act by diluting the voting power of Hattiesburg's African-American citizens such that they have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.
Candidate Office Year(s) Johnny Dupree Mayor 1997, 2001, 2005, 2009, 2013 Lajuana S. Richardson City Council Ward 1 2005 Derrick Ware City Council Ward 1 2013 Deborah Delgado City Council Ward 2 2001, 2005, 2009, 2013 C. Jerome Brown City Council Ward 4 2005 Petra Arnold Wingo City Council Ward 4 2013 Therah Nathaniel City Council Ward 4 2009 Shrona Taylor City Council Ward 1 2001 Henry Naylor City Council Ward 5 2001, 2005, 2009, 2013 Kavji S. Beverly City Council Ward 5 2013 James Douglas Sullivan City Council Ward 5 2013 Ray Coleman Jr. City Council Ward 5 2009 Rose Harrell City Council Ward 5 2009
Plaintiffs argue that the redistricting plan adopted by the City Council in July 2012 (the "Council Plan") violates Section 2 of the Voting Rights Act ("VRA") by impermissibly diluting the voting power of Hattiesburg's African-American citizens. Section 2 of the VRA prohibits any "standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color...." 52 U.S.C. § 10301(a). A municipality violates Section 2 where, "based on the totality of the circumstances, it is shown that the political processes leading to ... election in the ... political subdivision are not equally open to participation by members of [a racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b). "The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representative." Thornburg
To establish a Section 2 violation on a vote dilution theory, a plaintiff must first establish three threshold conditions: "(1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." LULAC v. Perry, 548 U.S. 399, 425, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (punctuation omitted); see also Rodriguez v. Bexar County, Texas, 385 F.3d 853, 859-60 (5th Cir.2004).
If the plaintiff establishes the three threshold requirements, the Court must "consider the totality of the circumstances to determine whether members of a racial group have less opportunity than do other members of the electorate." LULAC, 548 U.S. at 425-26, 126 S.Ct. 2594. The following factors are relevant: (1) the history of voting-related discrimination in the political subdivision; (2) the extent to which voting in the elections of the political subdivision is racially polarized; (3) the extent to which the political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group; (4) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (5) the use of overt or subtle racial appeals in political campaigns; (6) the extent to which members of the minority group have been elected to public office in the jurisdiction; (7) evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group; (8) evidence that the policy underlying the political subdivision's use of the contested practice or structure is tenuous; and (9) whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area. Id. at 426, 126 S.Ct. 2594; see also Fairley, 584 F.3d at 672-73.
The "most important" factors are "the extent to which minority group members have been elected to public office in the jurisdiction and the extent to which voting in the elections of the state or political subdivision is racially polarized." Gingles, 478 U.S. at 51 n. 15, 106 S.Ct. 2752. "If present, the other factors ... are supportive of, but not essential to, a minority voter's claim." Id.
The list of factors "is neither comprehensive nor exclusive," and "there is no requirement that any particular number of factors be proven, or that a majority of them point one way or the other." Id. at 45, 106 S.Ct. 2752. "Rather, ... the question whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality, and on a functional view of the political process." Id. (punctuation omitted). "[P]roper assessment of vote dilution claims is peculiarly dependent upon the facts of each case and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms." Rodriguez, 385 F.3d at 860. "[T]he ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts," Johnson v. De Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). "Although the district court is not required to recount every bit of evidence adduced at trial, it must discuss all `substantive' evidence contrary to its opinion." Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1221 (5th Cir.1996).
Teague v. Attala County, 92 F.3d 283, 293 (5th Cir.1996). However, the Court may not view the totality of the circumstances "less critically" because the Gingles preconditions have been met. NAACP v. Fordice, 252 F.3d 361, 373-74 (5th Cir. 2001).
"That Mississippi has a long and dubious history of discriminating against blacks is indisputable." Teague, 92 F.3d at 293-94. It is not necessary to provide a full lesson in Mississippi history. The Court took judicial notice of facts [36] regarding Mississippi's history of racial discrimination against African-Americans. The parties also stipulated that Hattiesburg once used disenfranchising mechanisms required by Mississippi law, such as poll taxes and literacy tests. Until 1985, Hattiesburg used a commission form of government and elected its commissioners at-large.
However, as the Court noted in a previous opinion, "these discriminatory practices ceased long ago ...." Fairley, 2008 WL 3287200 at *9, 2008 U.S. Dist. LEXIS 106354 at *28. The question for the Court is whether "the effects of past discrimination impede the ability of blacks in [Hattiesburg] to participate in the political process." Teague, 92 F.3d at 294. "[T]o support a favorable finding on these factors," Plaintiffs must demonstrate that "African-American citizens of [Hattiesburg] do not in fact participate to the same extent as other citizens." N.A.A.C.P. v. Fordice, 252 F.3d 361, 368 (5th Cir.2001). "[P]roof of socioeconomic disparities and a history of discrimination without more" is not sufficient to demonstrate that Hattiesburg's African-American citizens have less opportunity to participate in the political process than its other citizens. Clark v. Calhoun County, 88 F.3d 1393, 1399 (5th Cir.1996).
According to the testimony and report of Plaintiff's expert, Dr. Allan Lichtman, there is a substantial disparity between the socioeconomic circumstances of Hattiesburg's black and white citizens. Dr. Lichtman's analysis provided the following undisputed facts:
Accordingly, Dr. Lichtman concluded that there exists a substantial socioeconomic disparity between Hattiesburg's African-American citizens and its white citizens in the areas of income, employment rate, educational attainment, home ownership, and vehicle availability.
Despite these socioeconomic disparities, Hattiesburg's African-American citizens have historically registered and voted in greater numbers than its white citizens. Plaintiff's witness, Councilwoman Deborah Delgado admitted that a majority of Hattiesburg's registered voters are African-American, and that African-American turnout is higher than white turnout in most elections. According to an analysis by Plaintiff's expert, Dr. Allan Lichtman, 45% of registered African-American voters participated in the 2001 mayoral election, while only 29% of white registered voters participated; and 55% of registered African-American voters participated in the 2005 mayoral election, while only 26% of white registered voters participated. In the 2013 mayoral election, participation of black and white voters was essentially equal; whites had a slightly higher turnout in the 2013 general election, while African-Americans had a slightly higher turnout in the 2013 special election. Lichtman acknowledged, therefore, that African-Americans have traditionally enjoyed a substantially higher turnout than whites, but that turnout was essentially equal between black and white voters in the most recent election year.
The political participation of Hattiesburg's African-American citizens is not limited to voting. Plaintiffs introduced DVD's of public hearings held on May 17, May 29, June 12, and June 28 to discuss proposed redistricting plans, and of the July 3, 2012, City Council meeting in which the final vote occurred. The audience at the May 17 public hearing was mostly African-American, and most of the citizens who commented were African-American, including members of black community organizations and churches. One of the community organizations — CPAC — created its own proposed redistricting plan, which it presented at each public hearing. The audiences and speakers at the May 29, June 12, and June 28 public hearings were evenly split between African-Americans and whites, and the audience at the July 3 City Council meeting was also evenly split between African-Americans and whites. Councilwoman Delgado acknowledged in her comments at the July 3, 2012, City
Johnny Dupree, an African-American, has been elected mayor of Hattiesburg four consecutive times — in 2001, 2005, 2009, and 2013. The parties stipulated that Hattiesburg's African-American citizens are politically cohesive, and the record contains evidence (discussed in more detail below) that Hattiesburg experiences a high level of racial polarization in voting. Therefore, although African-American citizens did not comprise a majority of Hattiesburg's population until 2010, they were able to elect an African-American as mayor in four consecutive citywide elections. For the past thirty years, the City Council has had two African-American members, elected from Wards 2 and 5. African-American candidates ran for City Council in Ward 1, a majority-white district, in 2001 (Shrona Taylor), 2005 (Lajuana S. Richardson), and 2013 (Derrick Ware). African-Americans ran for City Council in Ward 4, another majority-white district, in 2005 (C. Jerome Brown), 2009 (Therah Nathaniel), and 2013 (Petra Arnold Wingo).
Despite this evidence of African-Americans' robust participation in Hattiesburg's democratic process, Dr. Lichtman concluded in his report that socioeconomic circumstances "diminish[] the opportunity for minorities to participate equally with whites in the political process." At trial, he elaborated: "If you're dealing with populations that are low in income, low in education, it's harder to find candidates with the wherewithal and the qualifications to stand for public office. If you're dealing with a group that has high levels of poverty, low levels of income, it's difficult to fund campaigns." He asserted that these factors are "independent of turnout." He also testified that although "turnout ... has been higher for African Americans, [and] today is about equal, [that] does not erase the fact that socioeconomic differences are a barrier to turnout. It just shows that other factors have been operating in the City of Hattiesburg as well."
In the Court's opinion, Dr. Lichtman's analysis of this issue is wholly disconnected from the local facts. He dismissed African-Americans' higher turnout, ascribing it to "other factors," but he failed to identify or analyze those factors. His opinion as to the political effect of socioeconomic disparity is largely abstract and admittedly "based upon [his] experience as a political analyst, political historian, and expert in voting rights cases" — rather than upon local facts. This type of "armchair speculation" is not grounded in "an intensely local appraisal of [Hattiesburg's] social and political climate," and, therefore, can not establish that Hattiesburg's African-American citizens do not "participate equally in the political processes." Clark, 88 F.3d at 1399.
The question before the Court is not whether socioeconomic disparity limits political participation in the abstract, or even in most cases. Rather, the question is whether socioeconomic disparity has prevented Hattiesburg's African-American citizens from participating in the political process to the same extent as the City's other citizens. Fordice, 252 F.3d at 368. The evidence demonstrates that although Hattiesburg's African-American citizens have lower incomes, educational levels, and standards of living than its white citizens, they participate in the political process at the same or higher levels.
"[T]he extent to which voting in the elections of the ... political subdivision is racially polarized is relevant to a
The parties stipulated that legally significant racial bloc voting occurred in white versus African-American city elections in 2001, 2005, 2009, and 2013. Defendants also admitted that the Gingles preconditions were met, including the precondition that "the majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." LULAC, 548 U.S. at 425, 126 S.Ct. 2594.
The evidence presented at trial was consistent with these stipulations. Dr. Lichtman testified that voting in Hattiesburg's 2001 and 2005 city elections was "polarized at the mathematical maximum." In his Preliminary Report, analyzing the same data, he stated that "[b]lack voters invariably backed black candidates at the mathematical maximum," while "white voters united behind white candidates at close to the mathematical maximum." In his Supplemental Report, he examined the results of the 1997 mayoral election and found that "black voters overwhelmingly supported the black candidate and white voters overwhelmingly supported the white candidates." Finally, in Dr. Lichtman's Second Supplemental Report, he examined the results of Hattiesburg's 2013 general and special mayoral elections. Once again, he found an "extreme pattern of racially polarized voting within the City of Hattiesburg." African-American voters were "invariably cohesive behind the African-American candidate," while white voters "invariably bloc vote against the African-American candidate." Dr. Lichtman summarized his findings by describing Hattiesburg's racial polarization as "the highest [he's] seen."
Defendants argue, though, that Hattiesburg's voting is not racially polarized to the mathematical maximum, and that African-American citizens in majority-white wards have a reasonable opportunity to elect candidates of their choice. Defendant's redistricting expert, Chris Watson, testified that an African-American candidate could win an election in one of Hattiesburg's majority-white districts. Watson looked at election results in three county voting precincts (Sigler Center, Camp School, and Kamper Park) which lie within the geographical footprint of Hattiesburg's Ward 4.
Watson also testified that an African-American candidate could win a City Council election in Ward 1 under the right circumstances. Ward 1 has a white voting-age population of 52.7%, and an African-American voting-age population of 41.8%. Ward 1 experiences substantially lower turnout than the other wards because it contains the University of Southern Mississippi, and a substantial portion of Ward 1's registered voters are USM students. Elections are held in the summer when most students have left town, and students generally tend to vote less often than other registered voters. In the 2013 election, 947 total votes were cast in Ward 1. The white incumbent (Kim Bradley) received 570 votes. One African-American challenger (Derrick Ware) received 212 votes, while a second African-American challenger (J.C. Herrington) received 165 votes. The parties agree that USM students are mostly white, and that Hattiesburg's African-Americans have historically turned out to vote in higher numbers than whites. Watson testified that under these circumstances, an African-American candidate could win a City Council election in Ward 1 with a modest amount of racial crossover.
Dr. Lichtmann strenuously disagreed with Watson's conclusion. He noted that Watson's analysis rests on numerous assumptions and contingencies — all of which must fall into place before his prediction could come to fruition. Dr. Lichtmann also testified that Ward 1's gap in voting-age population was simply too much for African-Americans to overcome, particularly in light of the equal turnout numbers in the most recent city election.
The Court agrees that Watson's analysis on this issue is tenuous. There are simply too many contingencies to predict with any certainty that an African-American would win an election in Ward 1. However, Dr. Lichtmann discounts African-Americans' historic turnout advantage, relying heavily on the equal turnout in the 2013 city election. At this point, it remains to be seen whether the 2013 mayoral election — a controversial and highly contentious contest
Watson also noted at trial that Dupree, an incumbent African-American mayor, received 706 votes from Ward 4 in the 2013 city election, while Petra Arnold Wingo, Ward 4's African-American candidate
Dr. Lichtmann provided several criticisms of Watson's racial polarization analysis. First, he criticized Watson's use of data from "exogenous elections" and maintained that Watson failed to analyze the most probative data available. He admitted that Watson's data was not "entirely irrelevant," but he maintained that it was, "at best, marginally probative ...."
Dr. Lichtmann is correct that "exogenous elections — those not involving the particular office at issue — are less probative than elections involving the specific office that is the subject of the litigation." Clark, 88 F.3d at 1397. Watson's use of two exogenous elections does not render his analysis wholly irrelevant, though. In fact, Lichtmann heavily relied on the 2013 mayoral race — an exogenous election, albeit one conducted under the city redistricting plan at issue, rather than the county precincts used in statewide elections.
Watson tried to account for the differences between county districts and city wards by using county precincts that fell within the geographical footprint of a single city ward. But Watson's analysis required certain assumptions and analytical shortcuts, decreasing its probative value. Its most obvious defect is Watson's failure to acknowledge that the two statewide elections he analyzed could have been out-liers because of other factors. Johnny Dupree, Hattiesburg's incumbent African-American mayor, was a candidate in the 2011 governor's race. Barack Obama, an incumbent African-American President, was up for reelection in 2012. Watson also failed to provide any hard numbers for voter turnout by race in each district, assuming that whites and blacks turned out at approximately equal levels.
Lichtmann also testified that Watson did not use "standard methods in social science," such as "ecological regression analysis or any comparable methodology." But in the course of examining the evidence, it has become clear to the Court that any methodology is only as good as the underlying data. A sound methodology can be corrupted if a party chooses the data set with an eye toward a particular result or if a party fails to acknowledge the influence of unquantifiable factors. Watson only analyzed two statewide elections involving African-American incumbents. Lichtmann relied more heavily on the 2013 mayoral elections than past City Council elections, and he was wholly unwilling to acknowledge the probative value of any methodology but his own. The Court does not imply that either Lichtmann or Watson were dishonest, but voting rights litigation does not lend itself to detached, objective social science. Hired experts are constrained by the data provided to them by the parties, and any expert who admitted the inherent uncertainty in the process or acknowledged that the opposing expert has a point would not get any repeat business. As Mark Twain famously wrote: "Figures often beguile me, particularly when I have the arranging of them myself .... There are three kinds of lies: lies, damned lies and statistics." Mark Twain, Chapters from My Autobiography, 180 (Amazon Digital Services, Inc. 2011) (originally published 1906).
In summary, the parties agree and the evidence demonstrates that there is a high level of racial polarization among Hattiesburg's voters. Whites most often vote for whites, and blacks most often vote for blacks. However, the Court does not accept Plaintiffs' argument that voters are polarized at the "mathematical maximum" level. Although Dr. Lichtmann's analysis has more probative value than Mr. Watson's,
Plaintiffs note that Mississippi's majority-vote requirement for party primaries applies in Hattiesburg's city elections. See MISS.CODE ANN. § 23-15-305. "[U]nder certain circumstances, the majority vote requirement can operate to the detriment of minority voters and negate their political strength." Clark, 88 F.3d at 1398. However, Plaintiffs presented no evidence that the majority-vote requirement has had any effect on African-Americans' ability to elect candidates of their choice in Hattiesburg's City Council elections, or that African-American candidates had been defeated in primary runoffs. Rather, the focus of the evidence was on African-American candidates' ability to win a general election in majority-white districts.
Plaintiffs admitted in briefing that other electoral practices and procedures., such as the size of the election districts, place requirements, and candidate slating processes, were not an issue in this case.
Plaintiffs admitted in briefing that there is no evidence of racial appeals in Hattiesburg's City Council political campaigns.
The Court takes an "analytical yet pragmatic approach to determining how the success of African-American candidates affects the vote dilution analysis." Fordice, 252 F.3d at 369. The "success of African-American candidates at the polls" does not "necessarily foreclose[] the possibility of dilution of the African-American vote." Id. It is, however, "presumptively inconsistent with such a claim." Id. at 371. Likewise, "[l]ack of electoral success is evidence of vote dilution," but the Court "must also examine other evidence in the totality of the circumstances, including the extent of the opportunities minority voters enjoy to participate in the political processes." De Grandy, 512 U.S. at 1011-12, 114 S.Ct. 2647. "[E]xogenous elections are less probative than elections for the particular office at issue," but "the exogenous character of ... elections does not render them nonprobative ...." Fordice, 252 F.3d at 370.
The most probative evidence here is the election results in Wards 1, 3, and 4 — Hattiesburg's majority-white districts. It is undisputed that no African-American candidate has ever been elected to the Hattiesburg City Council from those wards.
For the past thirty years, though, the City Council members from Wards 2 and 5 have been African-American. Likewise, Johnny Dupree won Hattiesburg's mayoral elections in 2001, 2005, 2009,
The Court also notes that, as mayor, Dupree wields considerable power. He
In summary, no African-American has ever been elected to the City Council from Wards 1, 3, or 4, which tilts this factor in Plaintiffs' favor. However, that fact is mitigated by Mayor Dupree's success in citywide elections and the considerable power he wields as mayor.
This factor "concerns legislative responsiveness to the particularized needs of the minority group." David v. Garrison, 553 F.2d 923, 929 (5th Cir.1977). There are two facets of the inquiry: 1) "the provisions of municipal services to neighborhoods populated by minority group members," and 2) "the distribution of municipal jobs and appointments to various boards and commissions." Id. Responsiveness plays a "diminished role" in the totality-of-the-circumstances analysis. Jones v. City of Lubbock, 727 F.2d 364, 382 (5th Cir.1984); see also Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109, 1122 (5th Cir.1991) (describing responsiveness as "of limited relevance"). Therefore, it "is not an essential part of plaintiff's case." Clark, 88 F.3d at 1400.
Plaintiffs argue that the City Council's failure to adopt a redistricting plan with three majority-black districts is proof of their lack of responsiveness to the needs of Hattiesburg's African-American citizens.
The City presented a report from its expert, Chris Watson, who "examined city services in search of a disparity in the delivery of services to the citizens of Hattiesburg...." He interviewed city department heads and examined the city's infrastructure and facilities. In short, he found no racial disparity in the provision or funding of city services. Department heads did not report any disparity in budgeting practices, and city facilities in black and
At trial, Councilman Kim Bradley described a "Comprehensive Sewer and Water Enhancement Program" that began around 2010. In the first phase of the program, $5,000,000 was allocated to newly annexed portions of west Hattiesburg along Highway 98, while $7,500,000 was allocated to the older parts of the City in Wards 2, 4, and 5 — which includes the City's predominately African-American neighborhoods. Bradley testified that the City had allocated $22,000,000 for the second phase of the program, and that "most of the money" was for infrastructure projects in Wards 2, 4, and 5. He specifically noted that approximately $400,000 had been spent on repaving Seventh Street from North Main to where it terminated on Fourth Street — a project that touched three different wards, including African-American neighborhoods.
In his March 2014 report, Defendants' expert, Chris Watson, stated that the City employs 686 people, that 57.7% of City employees were African-American, and that 58.8% of the City's management-level employees are African-American. At trial, he testified that Hattiesburg employed 676 people, and that 426 of the City's employees were African-American (63%), while only 244 were white (36.1%). He testified that 410 of the 645 non-director positions were occupied by African-Americans (63.6%), while only 229 were occupied by whites (35.5%). Finally, he testified that African-Americans held 16 of 31 director positions (51.6%), while whites held 15 director positions (48.4%).
Councilwoman Deborah Delgado testified that she did not believe the Council had hired enough minority contractors in the past, but she admitted that she had never proposed for the City to adopt a minority set-aside program. Councilman Kim Bradley testified that although the City Council had never adopted a comprehensive minority set-aside plan, it had adopted minority set-asides for specific contracts. He said that the City Council had difficulty finding minority contractors in the Pine Belt, and that his preference was to keep the City's spending local, rather than having to look out of state.
The parties presented evidence concerning two City development projects. First, Councilwoman Delgado described "Twin Forks Rising" as an "urban overlay district" for the revitalization of Ward 2, a majority-black district. According to Delgado, most of Ward 2's residents live below the poverty line, and the Ward has few development opportunities because much of it lies in a flood zone between two rivers. She said that "[i]t was difficult through the years to get the council to allow funding for the study that was conducted," but that the Mayor set aside $160,000 of Community Development Block Grant funds — federal funds allocated to the City — to pay for the study. Both Delgado and Dupree testified that another $25,000 of city funds had been allocated to the Twin Forks project, but that the City Council voted to eliminate it from the budget.
Councilwoman Delgado compared the Twin Forks project to the "Midtown Project," a development project in Ward 3, a
Councilwoman Delgado testified that the three white City Council members generally form agreements among themselves before Council meetings, and that she only finds out what they will decide in the meetings. She testified that they never agree with her on issues that she believes are in the best interest of her community, and that at least 90% of the City Council's votes are 3-2 along racial lines. However, at the July 3, 2012, City Council meeting, Ms. Delgado prefaced her comments on the Council Plan by asserting that she and her white colleagues agreed on most issues that they confronted in the course of city governance.
At trial, Councilman Kim Bradley strongly disagreed with Delgado's description of the Council's voting patterns. He testified that 3-2 votes are a "very small percentage" of the Council's decisions, and that 97-98% of the Council's decisions are unanimous.
The City Council's minutes from October 2011 through September 2014 demonstrate that Bradley's recollection is more accurate than Delgado's. According to the minutes, the City Council took 205 votes between October 2011 and September 2014, and 187 of them (91.2%) were unanimous. Five votes (2.4%) were split 3-2, and only four (2.0%) of those were along racial lines.
Plaintiffs presented a variety of testimony indicating that the white members of the City Council have disagreed with Mayor Dupree on several issues in recent years. Dupree himself described his relationship with the City Council as "very contentious, at best." First, he testified that the Council reduced the City's budget to eliminate some positions. He noted that the City had approximately 850 employees when he first became mayor, but that the number had been cut to less than 700.
According to Councilman Kim Bradley, a number of City positions had been unfilled, but they remained in their department's budget to keep the cash available for the next budget year. Bradley testified that Mayor Dupree requested a tax increase to fund a paving project. Rather than raise taxes, Bradley believed it more prudent to eliminate the unfilled positions and use the leftover funds to pay for the paving project. He said that the City Council assured Mayor Dupree and affected department heads that they could request refunding of the eliminated positions on a case-by-case basis.
Finally, Councilwoman Delgado testified that the white members of the City Council had asked the superintendent and school board for the Hattiesburg Public School District to not increase their budget request. After the school board refused, the City Council voted along racial lines to not increase property taxes to meet the school board's funding request. The school board sued the City and won. The white City Council members later declined to ratify the Mayor's reappointment of the school members who had disagreed with the Council and requested the property tax increase.
Since at least 2005, Hattiesburg's City Council held a weekly "Citizens Forum," in which citizens were permitted to speak to the City Council about any topic they desired. Most of the citizens who attended the weekly forum were African-American. The City Council suspended the practice in the fall of 2013 by a 4-1 vote. Councilwoman Delgado was the lone dissenter. In the fall of 2014, the City Council declined to reinstate the Citizens Forum by a vote of 3-2 along racial lines.
In summary, there is no racial disparity in the provision or funding of city services or facilities. In fact, the evidence shows that the City has committed a substantial amount of resources to infrastructure improvements in its African-American neighborhoods. A majority of Hattiesburg's employees are African-American, and at least half of its supervisory or "director" positions are held by African-Americans. Although Hattiesburg has never adopted a comprehensive minority set-aside policy, it has provided for minority set-asides in specific contracts. On most issues, the white members of the City Council agree with the African-American members. Over the course of the four years preceding this trial, the City Council split 3-2 along racial lines in only 2.0% of its votes. Finally, the City spent considerably more of its own money on Councilwoman Delgado's Twin Forks Rising project than it did on a comparable project in a majority-white district.
The evidence overwhelmingly demonstrates that the City Council is responsive to the needs of the African-American community. The Court declines to interpret every disagreement with Mayor Dupree or Councilwoman Delgado as an example of unresponsiveness to the needs of the African-American community. Councilman Bradley provided reasonable explanations for the Council's actions that were not
Plaintiffs argue that there is no state policy or interest requiring municipalities to create a ward plan with a majority of white districts when African-Americans comprise a majority of the total population. In response, Defendants argue that the Council Plan furthers a number of legitimate state interests. "[T]he weight, as well as tenuousness, of the state's interest is a legitimate factor in analyzing the totality of circumstances." Clark, 88 F.3d at 1401. "[P]roof of a merely non-tenous state interest discounts one ... factor, but cannot defeat liability." Id.
Councilman Carroll and Councilman Bradley both testified that, based on the advice of counsel, their primary goal was to correct the deviation in the wards' populations and bring the City's districts in line with the one person/one vote requirement with as little change to the existing district lines as possible. The Council's expert, Chris Watson, testified at trial and stated in his public presentations that he drew the current plan with the specific goals of correcting the population deviations to bring the wards in line with the one person/one vote principle, causing as little change to the existing ward lines as possible, causing as few voters to change voting precincts as possible, maintaining all of the communities of interest, and respecting traditional geographical boundaries.
These are all legitimate state interests. Courts and legislative bodies must consider traditional redistricting concerns such as communities of interest, traditional geographical boundaries, the one person-one vote principle, the protection of political incumbents, compactness, and the maintenance of voting precincts. See Fairley, 584 F.3d at 670; Chen v. City of Houston, 206 F.3d 502, 512 (5th Cir.2000). Indeed, the Fifth Circuit previously ruled that "[a]ny plan that split USM into multiple wards ... would be highly suspect on its face." Id. Here, the plan promoted by Councilwoman Delgado and Plaintiffs during the public hearings — the CPAC plan — would have split USM and multiple historic neighborhood associations. It is also undisputed that the CPAC plan would have displaced approximately 12,000 voters — a third of the voting-age population of Hattiesburg — and sent them to new voting precincts.
In summary, Defendants articulated and presented evidence of legitimate, non-tenuous state interests furthered by the Council Plan. Councilman Carroll, Councilman Bradley, and the City Council's redistricting consultant all testified that race played no factor in their decision-making. Plaintiffs presented no evidence to contradict this testimony beyond unsupported speculation. Accordingly, Plaintiffs failed to demonstrate that the City Council's interest in the current plan is tenuous.
Finally, Plaintiffs' chief argument is that the Council Plan does not accurately reflect Hattiesburg's population. Plaintiffs contend that three of the five City Council wards must have a majority African-American population because African-Americans are a majority of Hattiesburg's total population. In response, Defendants argue that the Council Plan is roughly proportional to the City's racial composition.
"Proportionality," as the term is used here, "links the number of majority-minority voting districts to minority members' share of the relevant population."
According to the 2010 census, Hattiesburg has a total population of 45,989. The City's African-American population is 24,391 (53.04%), and its non-Hispanic white population is 18,615 (40.48%). Hattiesburg has a voting-age population of 36,293. The City's African-American voting-age population is 17,402 (47.95%), and its non-Hispanic white voting-age population is 16,689 (45.98%). Therefore, African-Americans are a majority of the total population, and a slight plurality of the voting-age population.
In the Court's opinion, the Council Plan provides African-Americans with electoral opportunity that is roughly proportional to their share of the City's population. Strict proportionality is impossible. Regardless of the result, one side of this dispute will get forty percent of the voting power (2 out of 5 Council positions), while the other will get sixty percent (3 out of 5). With the current population numbers, there is no way to apportion five seats and achieve strict proportionality. There will necessarily be an imbalance in one direction or the other. It may be the case that either scenario — the Council Plan or Plaintiffs' CPAC plan — would provide African-Americans with electoral opportunity in rough proportion to their share of the population. When presented with several redistricting plans that provide roughly proportional electoral opportunity, the Court is not required to determine which one is the most fair. In other words, the Court need not reject one roughly proportional plan because there exists another which may be slightly more roughly proportional.
In any case, Plaintiffs do not seek "roughly proportional" electoral opportunity. Rather, they want to maximize African-American electoral opportunity. According to the City Council's minutes, Councilwoman Delgado
In summary, the Court resolves each of the "totality of the circumstances" factors
Therefore, six of the nine factors weigh in favor of Defendants, but the two most important factors — racial polarization and the extent of African-American electoral success
As noted above, a municipality violates Section 2 where, "based on the totality of the circumstances, it is shown that the political processes leading to ... election in the ... political subdivision are not equally open to participation by members of [a racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b). "The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representative." Gingles, 478 U.S. at 47, 106 S.Ct. 2752. The parties
Plaintiffs would have the Court reduce the Section 2 analysis to a crude quota system, in which majority districts are rigidly apportioned on the basis of racial proportions in the population. The law requires a more searching, thorough analysis. After spending a great deal of time considering the evidence, the Court concludes that Hattiesburg's current ward plan does not practically hinder African-Americans' opportunity to participate in the political process and elect representatives of their choice. The evidence demonstrates that African-Americans in Hattiesburg enjoy political power in rough proportion to their share of the voting-age population, and that they actively exercise such power through the political process.
For these reasons, the Court finds that Hattiesburg, Mississippi's current ward plan does not dilute the voting or political power of African-American citizens in violation of Section 2 of the Voting Rights Act. The Court will enter a separate Final Judgment consistent with this opinion.
