Department of Commerce v. New York Brief of Amicus Curiae in Support of Respondents

    UNIl'ED STATES DIS?RICT COURT
SOU'IHERN DISTRICT OF FLORIi)A

CASE NO. 83-5I82-Civ-Roettger

ALLIE K. McCORD; JOSEPH
PO|^JELL, JR. ; ROSE MARI E SAULSBY ;
I LI',1A I\1. J AIV1ES ; I,IAIIGARET HARDE}] ;
ALZEN F. FLOYD, SR.; and the
SOUTI{ERN CI.IRISTIAN LEADERSHIP
CONFERENCE ( SCLC ) OF BROWAP.D COUN"CY,
FLORIDA, on betralf of themselves and
alI others similarly situated,

frECAvEDilAp 2 s sss

PIainEiffs, OPINION

CITY OF FORT LAUDEiIDALE, FLORIDA;
:?OtsliRT A. DRESSLEP., Mayor of Fort
Lauderdale; ROBERT t). COX, Vice-tdayor ;
VIRGINIA S. YOUNG, Mayor Pro-Tem;
Commission I'tembers of the City of
Fort Lauderdale, FIorida, RICHARD A.
MILLS, JR.; and JOHN B. RODSTROM, JP..;
their successors and agents, aIl in
iheir official capacities,

Defendants.

Plaintifis sued the city of Fort Lauderdale, claimino
,;iolation of the Voting Rights Act, 42 U.S.C. S 1973 in the
.;ity's at-Iarge elections f or city commissioner.

It is important to bear in mind that an atternpt to
discriminate or a discriminatory motive is not required under the

act follorving the L982 amendment. Now, a sufficient violation is
siro',,'n if a discriminatory purpose or result may be inferred from

rir,= r,r-'LLng pract.ices .

fcilows:

The exact. word i ng of the s t,atute , as amended , is as



.t
f I t.

S 1973. Denial or abridgement of right to vot.e on
account of race or color through voting qualifications
or prerequisites; establishment of violation

(a ) No voLing qual j.'ication or prerequisite to
voting or standard, practice, or procedure sha1l be
imposed or applied bi,any State or political
subdivision in a manner which results in a denial or
abridgement of the right of dny citizen of the United
States to vote on account of race or colorr or in
cont-ravention of the guaranLees set forth in section
1973b( f ) ( 2 ) of this titler ds provided in subsection
(b) of this section..

(b) A violation of subsection (a) of this section
i s estab I i. shed if , based on the total i ty of
circumstances, it is shown that the political processes
leading to nomination or election in the State or
political subdivision are not equally open to
participatior: b), members of a class of citizens
protected by subsection (a) of this section in that its
members have Ir:ss opportunity than other members of the
elect.orate to participate in the political process and
to elect representatives of their choice. The extent
to which members of a protected class have been elected
to off ice in the Stat.e or political subdivision is one
circurnstance which may be considered: Provided, That
nothing in this section establishes a right to have
members of a protected cl-ass elected in numbers equal
to their proportion in tire population. (As amended
Pub. L. 97-205, S 3, June 29, L982,96 Stat. I34.)

The trial evidence focused on Lhe elections held since

I970, primarily because the serious efforts in a black candidacl,

i>egan about that time. The candidacies pr ior to about 19 70 on

the 1>art of black candidates appeared obviously to be a "testing
)t t'he wateES," wnile the candidacies beginning about 1970 have

5e.:n def ini.te ef f orts on the part of alI candidates, with perhaps

lrre exCeption.

Eotir sid,:s treated 12/0 as if it were t.he important.

';tarttng date for our cricical examination although the matters
pr l-or l-o then were covered in the evi.dence by both sides possibly



I
.l . a

1..
. for historical completeness. E. g. , plainti ffs' exhibit 1 (Px1 )t

qives exhaustive detail of the elections since 1970.

Since 1970 there has been an election in 197I, L973,

1915, L977, and in both L979 and 1982 for three-year terns. A1I

of the comnissioners have been white throughout this period,

except. Fort- Lauderdale elected a city commissioner, who was

black, in the at-Iarge elections in 1973, L975, and L977. That

candidate was tire same person, Andrew De Graffenreidt.

Key Facts for a.Frame of Reference

?here is no dispute l-retween the parties as to the

following:

1. There have been four "open seats"--no incumbent

running--since 1970. The part-i.es agree that open seats are the

l:ey races to demonstrate electability.

2. Twenty-one percent of the city's present population

is blacl<.

3. One open seat was won by l4r. De Graffenreidt, r.rho

is black, in L973, and he was re-elected in 1975 and L977.

4. In 1975 and 1977 Mr. De Graffenreidt received

enougir votes in identi f iable white precincts to r.;in election as

commissioner witho-ut any votes from black precincts.

5. Arthur Kennedy, also b1ack, Iost b), a narrow margin

in the last election in 1982.

6. Black voter turnout has equaled (within one percentaoe

r-.o,-nt) or exceede,:1 white voter turnout (of ten substantially) ,

Lercentageivise, in every election since I970 but one.



," ' ,"
r , 7 . Since the city's f oundl.ng in I9II, commissioners

tformerll, council members) have been elected at large.
And , aI t.hough not conceded by pla i nt i f f , Fort

Lauderdale is noL a pari of the "OId South"; j.nstead, most of its
rshite citizens come f::om tire t'iortheast or Midwest.

I'hese facts and others relevant to this decision will
be treated in more detail throughout this opinion.

Historical Backqround of Citv's EIectoral Svstem

The city of Fort Lauderdale was incorporated by the

Fiorida state Leg isl.-.ture in 191r. From 19Ir to L925, Fort

L,auderdaie was governed by a t,layor-CounciI forrn of government;

and since L925 the city ltas maintained a Mayor-Commission form of
government. Since I9I1 there have been five members on the Fort
Lauderdale City Council or Comnrj.ssion ( the term Comrnission has

been utilized since 1925 ).
From r 9 r r to 19 r 7 the mayor ser ved one year ancl the

council members for two years wit,h staggered terms. rn 1917 and

c:ontinuing to L92L, the mayor and the council served two

i'qrars, wit.h the council serving staggered terms. of the five
council metnbers eLected in L92?, the two candidates receiving the

highest number of _votes served two years, and the two candrdates

receiving the lowest number of votes served one year. rn lg23

the mayor and council were elected for one year; two years with
roncurrent terms in L925; two years with staggered terms from

i929 to 1947. From L947 to I95I, commissioners were elected for
It,'ur-year staggered terms, and from r95r to L979 they served



't
\

li

' Lwo-year concurrenL terms. Since L979, the ma)ror and

cornrrlissioners have served !hree-year concurrent terms.

Electi on of Council Members and Comrnissroners
by Ward, Distr:ets, or At-Larqe

Since 1911 council members or commissioners have been

r:Iected a!-1arge. From l913 to I923, four of five commission

:n(jrnbers werd elected at-1arge, but they ran f rom districts in

which they resided. One of five ran at-Iarge, but not from any

disbrict. The residency requirement was deleted from 1923 to

'.929. From L929 to 1947, the f our and one split was aga in

instituted, but frorn L947 to the present, the system has been

that all commissioners are elected at-Iarge, but with no

r',?S idency requirements .I,/ In the 1979 election, only f our

conrmiss ioners were elected at-Iarge with the f if t.h running

separately as mayor, also at-Iarge, but in 1982 the separate

rn.:yoralty race was abolished with alI five commissioners being

elected aL large, as usual. City commissioners are elected by

plurality vote in both the primary and general elections. in the

pr imary election , the I0 canc'lidales who receive the highest

n,rrnber of votes become candida*-es in the general election; and in

:-he g,3neraI election, the f ive candidates who receive the highest

n,tmber of votes become city commissioners.

L/However, plaint.if f s in this case reject.ed this solution of
a residence disErict reguirernent from five districts in the city
"'- rir at-large voting f or the elections of persons f rom the
i,'air-ous districts, despiee the fact this would almost guarantee
r-li€ eiection of a black commissioner. This proposal was made by
Lhe coul't in an effort to resolve the situation without extensive
irtisaticn.



t

Since 19I3 the candidaues elect-ed to office were Lhose

receiving a plurality of voies. Tlre one receiving the highest

number of votes was declared to be the mayor-commissioner, and

the one receiving the second highest was declared to be

u i ce-mayor -comm i ss i oner .

There is no wh i t.e or segregated pr imary i n the ci iy

Fort Lauderdale. There is no prohibition against single-shot

vcting. There is no requirement for majority vote and there

;rever has been except f rom Lg23 t.o Lg25. During that period, the

rnajori',y vote.requirement was used when there were only two

i:andidates. Ln those elecLions during this period, where there

w-Jre more than two candidates for a position, only a plurality of

..'oLes was required Eo be elected. Thereforer &s a practical

riiatter , there never has been a requirement f or a ma jor ity vote ,

.iven during those two years.

Population and Demoqraphi.c SLatistics for the Citv

The population of Fort Lauderdale in the t9B0 census

was a total of 153,?79, of whc'm 32t225 (21t) were black. Fifcy

i'ears earlier, the 1930 census showed a total population of

B ,656 , of whotn I, 994 ( 23t ) were black.

The ciiy produced expert test rnunyz/ that Fort

Lauierdale has only 23t native Floridians, a much lower figure
t-iren f or several other cities in Florida. An examination of the

,r.emographic patterns of immigration from L975 to 1980 indicaies
+-hai 451 of Fort Lauderdale's residents came from the

2/protessor Susan A. MaciLlanus, CIeveIand State University,
Cl,:'re.land, Ohio.

of



, northeasLern parl of ti:e United States, 18t from the t-lidwest, ancl

only 17t from other southern conmuniEies. ?his demographic

pattern is similar to pr: ior deracAraphic patterns.

The evidence rel'eals that Fort Lauderdale is a part of
"N*eiv FIor i-da" with a more tolerant and unbiased racial attit urdt-:

while some oLl'rer comparative communities in Ceniral and North

F'rorida reflect "ord Frorida," which itself is rike the "ord

South. "

Black Candidates for the lort Lauderdale Citv Commission

The black candidates prior to about 1970 appeared to be

largely a testing of the porir-icar waters and began with
I'iathanial Wilkerson in I957; almost no evidence was introduced as

to his campaign. rn 1963, Thomas Reddick, a lawyer, ran for city
commission, and in L967 a full slate of five candidates, arr of

rvhom were black, ran f or city commission: Horace Lewis, Helen

l.1orris, Edison !'Jheerer, Tom Redcick, and walter Sutrivan. The

announced purpose of the campaign, according to Commissioner De

Graffenreidt, was to see if brack voters would go to the polls.
rn i959 and 1971, AJ-cee Hastinos, a rawyer and presentry a unired

Star--es District Judge, ran, but f inished seventh.

rn r973,- Andrew De Graif enreidt ran f or the city
commission and was elected; Ccmunissioner De Graffenreidt was

re-elected in both I975 and L977. In 1979, Commissioner De

iiraffenrejdt ran for re-election as a city commissioner and was

r.arrowly defeated, for reasons to be discussed at more Iength

la:er. rn 1982, two black candidates ran: Arthur Kennedy,

ir:esident of the Broward crassroon Teacher's Association,



It

. , nirrowly lost, and a young college student, Louis AIston, ran

with a rather unsubstantial shcwing.

The cornments of the candidates about their own races

1re insEructive as to their respectir,'e defeats. Tom Reddick, who

ran in 1963 and I957, analyzed that Repurblicans were gett,ing

,:Iected in his campaigns ancl he was a Democrat. Horace Lewis,

r.'ho ran in 1967, spent less than $I00 and took out no ads. Helen

i,lorris, who also ran in L967, took out only one ad and limit-ed

her campaigning to one street. Neither Morris nor Lewis had been

active in cit.y affairs beiore t.hen, althourgh tlorris has since

!>een appointed to serve on an advisory board.

Alcee Hastings, a candidat.e in 1969 and L97L,

attributes his election difficulties to many things: Someone

qlve him 5,000 bumper stickers iut because they did not have the

:.!rlion "brrg" on them, Lhe unions v.'ere mad at him. He attributes

his drop from fifth or sixth in 1969 to seventh in the general

election to the fact that more people knew he was black, he

furtirer felt that black Democrats support white Democrats but not

,.'ir:e versa .

In 1973, L975, and L977, Andrew De Graffenreidt was

elected, but then after two races for ot.her positions lost in
't979. (His successor, Bert Frazer, ran but was defeated in

1.982.) The matter that seemed largest to Commissioner De

Graffenreidt for his defeat was "because I resigned to run Ifor
rlre county commission in I9781 and was reappointed tby his fellow

''rerrt ers on the Fort Lauderdale City Comrni ss ion L the press was

uri:-r':ppertive." The Fort Lauderdale News did nct endorse him in



'I979 because of that, dltirough he had enjoyed the endorsement of

1'ne Fort Laudercl.r Ie News i n previous campaigns . The Stat,e of

l:'lorida requires ihat one must resign to run for a stat.e off ice.

Ccnsequently, in 1976 when Commissioner De Graffenreidt ran for
:':,na rses , he drd not res ign, but when he t:an f or the county

corunission in 1978, he had t-o resign his city of Fort Lauderdale

City Commission post. ?he ot.her city commissioners--al1

white--deliberately kept. the position vacant untii they saw what

the results of the countl, commission race would be. t^liren

Commissioner De Graffenreidt l.ost, he was reappointed by his

i :Ilow members of Ehe city commission to his old seat.

AdditionaIIy, Commissioner De Graffenreidt felt the

..,oters were unhappy because he had opposed buying the Bartlett

Estate (the Iast Iarge available undeveloped tract on Fort

Lauderdale Beach), and he blames tirat for a drop in his vote

totals. Not only did he oppcse it, but Commissioners Young and

i.lills also opposed iL and their vote totals dropped, too i

hcwever, the city's overall vote totals dropped 3r546 I'otes from

i r-re 1977 election to the L979 election, with the totals f or i4ayor

Slraw--running specif ically f or mayor this time--clropping by 2,L34

i'ol-es. Corunissicrlers De Graf f enreidt, Young, and irliIIs dropped

lheir vote totals by 2, L65 , l, 950, and L, 47 4 , respective j-y, but

Corunissioner Cox dropped only 195 votes. Commissioner

i-r'-'Graffenreidt testified he "lost Iuster" in the black cofirmunity

aitd the voter turnout ebbed (confirmed by election statistics).
Arthur Kennedy, who narrowly lost by about 3t of the

tc'-aI votes cast in 1982, felt that a big turnout was importanL



for him because Lhe more peopie who vo;ed, the l>etter off he

wou Id be as a canclidate. Hovrever, the Lurnout was low at

election. Clearly, the matter that bothered I,4r. Kennedy the most

was the fact that three povrer brokers ( as he describes then) whom

l'r= avoiried and also did not s<:l icit money from, were unhappy with

Itim, and he feels tv.'c of thern were behind a letter mailed out on

t.he Saturday bef ore the electicn. His staf f advised him not to

respond Lo it, but he wishes Lre had done so.

The court asked to see the letter and it was received

as a court exhibit. The lett,:r is on the letterhead of the

tsroward County Republican Party, reminding the voters of Fort

Lauderdale that the property taxes in the county had doubled

since the Broward County Commission was "taken over by Democrats"

f cur years earlier. The lette: went on to poi'nt out that the

conservative Republican majority on the Fort Lauderdale cit.y
:

conrrrissj.on had con[rolled spending and kepti the city taxes in
line. Then the retter specificarly sounds the bugle for the

Republican party faithful, pointing out that a majoritl, of the

top five finishers in the primary were Democrats, one a

21-year-old candidate running for the first time, and Arthur
(ennedy, rf escribeQ as "a Iabor Ieader that has a direct interesr-

in 'noE rocking the boat, but sinking it,' if he gets erected."
'l'he- j et ter then urged that Republ ican party members--presumably

ihe only addressees of the Ietter--eIect a conservative majority
to the city commission and recorTrrTrended four candidates:
r n,:umbents tsob Cox, Richard l,til-1s, and newcomer candidates Rob

I):'-:ssrer and John Rodst.rom. The fact F_hat Art Kennedy was a



.'forrner mer.nber of the Democratic Executive Committee was a matter

undoubtedl,,,not lost on the persons berhind this election eve

1 etter.

The letter was successful: The four persons

:ecommenced !.,,ere all elected Ln the I982 general election. The

ci:i, also elici-ted from I'1r. I(ennedir that he used up half or nore

than half of his campaion funds in the primarl'campaign rather
than holdinq thern f or r-he general election, despite the existence
cf onll' 11 candidates and the orj.mary vrould only reduce the f iel d

to I0 c.trrdidates.

Arthur F.enne<1y canCidly observed that nearly all the

t'ontrtissioners in t.he last two decades have been Republicans-- a1l-

s:xcept for Mayor Young and ConrmiFsioner De Graf fenreidt. tle also
acknor'rl-edged that Itlayor Young is. regarded in the rvhite cornmunitl,

as basically eonservative, but that her support among ',voters in
tlre Northwesr- area. .. Iis] almost a given, "

Neither rawyer had seen the letter referred to by Mr.

Kennedy (court exhibit r), and there was no other evidence of

!'artisan activity in past city elections. The evidence does snor,'l

tire exclusive preference of the Broward Citizens Committee for
Itepublican candidates.

The Nine Factors

The first factor indicated in the Senate repcrt an,r

U.S. v. DaIlas County Cor,rnission, 739 F.2d L'>29, 1534 (11th Cir.
1984), is the extent of any history of official discriminatj-on
"tilat touched the right of minority groups to...participate in
he democratic process." Turning to it at this time, this court
+,l:ntitteC introducti.on of evidence of discrinination durincr the



:"
. posc-Civil War L'rq-Eiod jn enact.ments b1't-he St.atr: of Florida in,f

during the reconsLruction throrrghout tlre remainder of the l9th

cerrLury and early 20th crlntury. The relevance of this evidence

*.,r :he ei F,1' of i'ort L..rucierdale is dubious because of the f act

t.ira"- Fort I,aud,-,rdaIe r.rAS nt>t even a trading post at tl-re t j rne oI

[{econstruction; Lire court. can take judicial notice of the

iristorical fact that Frank Stranahan's t.rading post on the i.lew

River was Lhe nucleus around which Fort Lauderdale began, and a

',.iLIago b,:gran to take slrape at the turn of the century, dssisLed

J reatly by the construction of ilenry FIagIer' s railroad, whici'r

SinaIIy pushed down the Atlantic coast to itlianri in 1896. As

ncted earlier, Fort Laud:rdale did not becorne a city until 19ll.

Vinar-eve"r may have been the situaE.ion in the state of F'lorida in

lire l9th century, and the first half of the 20th century, there

ha,.'e been almosr- none of the usual badgres of bias against

'niri,..rrities parLicipating in the political prrocess: There has

becn no white or segregated primary in the city; there has been

nlr proh j bition against si ngle-sl"rot voting, and no Eeqrliremerrt f or

ir rna jor i ty vcte . A pol I tax rres required to be paid f or two

t'ear:s f rcm I9tl t-o I9i7; f rom I9I7 to 1919 no poII tax was

:.3cluire,l . In 191?, wornen's suf f rage was ob[ained and poIL Laxes

',.'-:re reinstated, buF- sirrce L929 there have been nc poll tax":s

:.nqLlired. The elections are officially nonpartisan.

llowever, there was evidence of discrimj.naiion against

blacks in the city of Fort Latrderdale in the past.

In L922 an ordinance was enacted which created a legal

"cr;ior Iine" seqreqatinq blacks into the northwest area of thc.



a,

, t'Lr-'!, w::st of tlre railroad tracks. A violation of this oriinance

c:rried a penalr-1, of both a fine and imprisgnment. The ordinanct.2

:-.Jrnained basicalty in ef f ect f.or 25 years.

In L925 an ordinance tras created which provided for the

,"r:eation of a "Negro dj.strict" and "no residence or apartment

house could b*: used to house ilr:gro families with the exception of

:icirV&nts' quarters. " Action t:as taken in L929 to enf orce the

ordinance. In 1936 the boundarl, of the "Negro district" was

redcfined, and in 1939 the planning and zoning commission

r,-.commended an increase in tho size of the "Negro district. " A

[,,'w monLhs Iater, t.he ordinance was repealed with an ordinance.

rr--,.storing the "Negro district" to it,s earlier boundaries in L942.

The advisory board recommended the acquisition of land

for a buffer area around the "Negro districtr" and during the war

l)i IIar:d School , the black high school, would be closed

1,le:riodi,:aIIy so black children could vrork in the vegetable f ields .

'l'iraL was challenged ( unsr-rccessf uIIy ) in I945 in f ederal court.

See i.lalker Civil Leaque v. Scaool Board, I54 F.2d 726 ( 5th Cir.

19{6 ) .



The segrega'riorr ordinance ab,:ut the "i,legro distr ie'"
das repealeC in 1948.3 i

Plaint.iffs claim that Fort Lauderdal,:'s abandonment oi

r districL residencl, requiremenr- in 1947 simpiy was a Icck sten

or shadow effect to ernulaLe the SLate oi Florid.r in ge-,Iing

aroutrd@,32IrJ.S.649(1944),andthestriking

tlowrt of t.iie white prirnary in Davis v. St.ate ex rel. Cromwell, 15fi

5'la. 181, 23 So.2d 85 (I945). However, the court cannot agree

..'tr-lt pLaintif f s' assertions because the simple f act of the natLer

j s that Fort Lauder:i--:aIe has had at- Iarge elect ions of i ts ..--i ty
,'orruTlissioners frorn the very beginning in 1911. Addi*"ionalI!',
Firere has been no white primary, ds such. There have been some

:-.quirements from tirne to tirne in the city's history Lhat

:<;m,-nissioners reside in certain districts but tirey still ran

,rt -1.rr _le .

Ther:e is no reason to conclude f rom the evidence i n

i.his case that tl"re otficial discrimination, either in the Starte

,;f Florida or in Fort Lauderdale, has adversely affected the

r iglrt .ri t[re rnemlrers of the plaintif f minority group eirher Lo

reg ister or to rtote or otherwise to parLicipate in the ciernc-'r.-rat ic

3 zThere are other exampl.es seE f orth in the evidence of
,iis:riminaticn, some tenuous to the point of being erroneous,
sijc,t as newsi-)aper clippings as to the Ku Klux Klan rallies in
Ceirtral Florida. Hcwever, there have been some instances of
'lis,crimination in Fort Laudercla.'l-e; for example, the pelition b),
:ioi:r3 blac< residenLs to use the municipally-owned golf course'luriag the 1950's. A. cit.y resolution (6247) expressed fear of
arcir.'erse tourist reaction if the peti.tion was granted. ?he United
SLat':s Disrict CcurE ordered integration of the golf course and
tlre ciLl'soid the r;oIf course. There were also various peEitions
r-.r llire btack pol-ice officers';o patrol in the black residential
areas.



. [':ocess. 'Ihis is particularly true wh+r: \.r.3 consider thc]t 7

g,lnerally speakinq, blacil r,,oters since I970 have voted,

percentagewise, as much as or more than whit.e voters in every

:lection but one.

14o..'i jlg on to the ser-.orrd mat:er pesented by the Senat.e

reporF,, the extent to which v'oiing in ?ort, Lauderdale is r:aciaIli'

r.rolar ized r w3 f ind a bat,tle of expert rvitnesses with widely

diverger:t. concrusions. Praintiff presented Dr. de ra Garza, a

prcf essor at the Llniversif y of T(:xas, while def endant relied on

l:. BuIlock, a prof essor at- the University of Georgia.

Dr. de Ia Garza relias on a bivariate statistical
analysis; that is, he checks only the issue of race in
de:termi ni ng what f acto.r:s af f ecied thr: votes cast f or a candidate,

'ihereas Bu1'!-ock ci:ecked tl're voting patterns f rom a number of

i ndep.end.:'nt variables, incruding, br:t not limited to, incumbency

c;f the cand idate, campaign f unds spent, whether inale or f emaIe,

v,'irether ourwspdp€E endorsements were r€cr3ived, \,oter turnout
,ri t.her in the black or white comrnunity, the proportion of the.

i:qistered \.,oters who were bIack, and parLy--"in sorne insLances"

( a1 Ehough Lhe ccurt- does not believe this lvas f ully explored or
,rLi Ii ze'i. )

A1+-hough t.here has br'en some judicial considerat ion of
l-,ivariate vis-a-'.,is murti-variate analysis ( and ilrat wiI.I be

i i scussed Iater i n t.h is order ) , the court wanted to comi)are tite

tnal-'vses when tes':ed against some.actual evenCs and realicies in
croer to deter:mine which theory seemed r-o be more sound and of
rrrcre assistance to the court in determining whether the at-Iarge



. e1?,:tion si'st-ern in Fort Laurlerdale impacted iIIegaIJ.y on the

rigirts oI t,ire black citizL5ns oI Lhe citl'.

Dr. de Ia Garza's analysis was fairly simple in that

ire ccunteo every rrote cast by a voter and then used raw scores of

t-he number of votes f or black candidat.es vis-a-vi s the number ,:f

irlacks registe'red in the precincts, coming up with a regression

figure ranging from.AI to .99, with I3 of 18 elections over.90
(De La Garza calculat.ed all elections with a black candidate witlt

ihe apparenL except-ion of the 1953 primary and the L979

':iections ) .

Itis second regression reElects the percentage of votes

received bi'a black candidate as a function of turnout ratio
(number of vot,es cast by a pr€r:inct as a f unction of a number of

','o1-es they could lrave cast ) . Tr. 255. Tire regressions ranged

from.5I to .99. When the two analyses are combined, the p2

j:arrgL)s f rc',rn .82 to .99 , with most over . 9l .

Dr. de Ia Garza counts vote totals rather than voters
( at Ieast he clot:s so with the rvirite precincts ) , and therein 1i,:s

I he siatistical problem when methodology more suited fcr
:-''ead-to-head elections is applied to t.his particular at-1arqe

svsi:ern.

.;ince I97C

By eomparison, Dr. BuIIock examined the L2 eIect.ions

a priinary and a general in I971 , L973, 1975 , L917 ,

'q79 (on1y four corrunissioners elected), and I982. There was 3l-

1<:ast one black candidate in each of these elections, and these

er. tire r:I,f ctions the parties have f ocused on. (He apparentJ-y

;:lso compared the 1969 elections. ) Dr. BuIIock considered



,
a

several i ndependent rrlr iables : newsL)aper endorsements , camlta ign

spending, incumbency, ievel of turnout in the black or white

communit!,, gender, as weIl as race, among others.4/ He noted

f irai, in t.hree of th,: 14 elections, a black candidate received 401

,-ir more of the support of the v;hi-te voters . Note: There has

been at least one black u-andidate in each of the 14 electiorrs.

Tn seven other elections, a b.Iack candidate received between 30t

and 39.9t support of the white voters.

Dr. BuII<.rck also examined I5 oLher elections in which

Fort Lauderdale citizens could vote which had black candidates

r--c)mp€ti ng againsi white candidat-e.s. In those I5, a ma jority of

i'ort Lauderdale citizens preferred bLack candidates in four

elections: the Florida Supreme Court election in L976 (then

lustice Hatcirett , now Judge Ha;:chett of the U . S. Court of Appeals

tcr the Eleventh Circuit), Alcee Hastings in the 1971 PubIic

Service Comrnission primary, City Commissioner De Graffenreidt

running for the tsroward County Commission, plus another race.

addition, in other elections, four of the black candidates

received 40t to 49.9t of the white vote.

In only two of the :-4 Fort Lauderdale elections lr.-rs a

l'rLack canclidate ( AIston, in boLh inscances ) received Iess than

201+ of the whit.e vot.e; only tltose iwo races would indicate racial-

polarization unCer the Loewen st.andard (80t-20t polarization

benchmark). Alston also ran less strongly in black precincts

thcrn had other black candidates.

47or. de Ia Garza agrees these factors, and more, do affect
elections.

In



Dr. Bullock also concluded that whites more generai1y,

,.'ote f or blaci:s than b,Iacl.. voters for white candidates. Dr.

Bullock's conclusion \^/as t-hat the variable of race is not one of

ihe inportant variables. IIis conclusions were that the imlrortanr

'.'ariables are like r-his: The candidate is more likely to rvin a

seat on the Fort Lauderdale Citi' Commission if:

I. The candidate is an incumbent.

2. The candidate spends more.

3. Tire candidate rece j-ves ner{spaper endorsernents.

4. l{hite voter turnout is lower.

!lr- concludes that race is not a statistically significant
','ariable, in considering race along wi-th the other four just

listed, it only changes the result 6/10 of leo. Dr. Bullock adds

that being a female increases the likelihood of finishinq better'

--nlore so than the ef fect of race.

Newspaper Endorsements

Dr. Bullock concluded that with one of the two naior

rre',rspaper endorsements, the candidate would finish I.4 places

hi.-;her; rvith both of them, the candidate can expect to finish

2.'7) places higher. The two newspapers involved were The Fort

L.auclerdale I'Jews and the Broward County edition of The l{iani ueralri.

Proble-rns r.,ith Professor de 1a Garza's Approagh

Dr. BuIlock sets forth three reasons why Professor

42 la Garza's theori, is wrong: First, it has an artif icj-a1 llpPer

iinit. E. g. , Lf er./eri' white voter in the city voted for

3:mmissioner De Graffenreidt, the only black candidate in the

rc.tce , but also exercised his option to vote for four other

t"



..:
. candidaEes who necessarily wer-e white, then the white voters

could noL be any more ciisposed favorably towards a black

candidate than to cas: a vote for that black candidate. yet

it nder De La Gar zar s theor.; r f ou wou ld have a polar i zat ion score

oE 80 wh j ch v;culd inclieaF-e rac-'iaI polarization e'.ren under the

Lcewen theory. That would be racial polarization under the De La

Garza theory, even though SJS_II white voter in the city had voted

for the only black candidaEe.

The secon<1 reason BulLock concludes that De La Garza's

theorf is wrong is it ciepencis on the number of minority
candidates in the electj.on, evr)n if the voter attitude remains

constant. Example: Assurne tlrere are 100 white voters and of

that. 100, 25 will vote f or a bl-ack candidate ever)/ opportunity
thei' have. The remaining 75 w:11- never vote for a black
r-aodidate. Each voter can cu=t five barrots, and there wilr

t-,resumably be a total of 500 ballots cast. If one black

candidate is running, the black candidate gets 25 votes of the

l-C)C vrhite voters, and that would be 25 votes of a total of 500

,.'otes cast which, under the De La Garza approach, gives a

polarization score of 951. If there are two black candidates

r''r rrrli;rg , the black cand idates vrould get two times 25 , or 50 votes -
oLlL of the 500 vot.es cast, which would give a polarization score

according to De La Garza of 90. SimilarIy, three black

ca.iCiCates would attract 75 out of 500 votes and the polarization

-cc3re v.'ould be 85. t^iith f our black candidates, the pclarization
sc,):e falls to 80, and with five black candidates, they get L25

r;otesr resurting in a porarization score of 75, according to



De Ld Garza. Consequently, the attitudes in the white cornrnunitl'

in this ill.ustration remain constan'.. The polarization score

'raries tremendousry simpry because of the number of options

.:vai labl-e Lo vote f or black ca::didates.

In the third illustr.ttion, we assume the sarTle voting

attitudes of ro0 whil-e voters wj-th 25 of Lhern who will aiwa1,'s

r.'oLe f or a black candidate. l'Jhat will vary is the number of

candidates the voter can vote f or in a raL-e, but only one black

candidate is in each election contest. If you have a

)rr:a<1-to-hearJ race f or the U . S. Congress wi th a black cand idat.e

,:ornpe[ing wj. Eh a white candidate, the 25 votes would end up wi:h

a De La Garza score of 752 polarization. However, in a

h1'pothetical race for state representative (and the voters in

this preeinct can vote for two candidates for staE,e

r.ipresentat j.ve ) , again, there is only one black candidate

iunr)i;rg, then 100 white voters would cast 200 ballots with 25 for
r-he black candidate and the polarization score has noer r isen to
'r7 .5t. If in the same election there are three members of Ehe

local school board running at-Iarge, in the same precinct of I00

'.vhite voters, the black candidate would get 25 of those,

prociucing a polarLzation score of 93.758. Eventuaily you get to

five slots to be firred, such'as in the Fort Lauderdale city
Ccmnnission. The same situation now produces a polarization score

rf 95t.

Dr. de Ia Garza does concede certain problems with his
,rpproach in attempting to determj-ne voter polarization in Fort

l,audercare with his conment that "you can't translate voter



.polarization in a coltventiona.l- sense inio this kind of elr:etion
s),Stein, " and "EhiS lrarticular l.ype of at-Iarge election is not

reradily quantifiable by political science.,'

Dr. de Ia Garza also could not explain, using the

ac'-ual exa:rple from the r973 erection where there were 31

candidal-es, only one of whom was black, an,C if a white voter cast

a vote for the black candidate and four votes for white

candidates, how those votes and that voter are not racially

i.',oIarizeC under his bivariate theory. The nearest thing he could

eive as a reason for this apparent flaw in his theory was that
the white voter should have single-shot (bu11et voted) his vote

ior Lhe one black candidate if he really wanted the candidate to
',:Ln.5 / Comp.ar in9 the i*o approaches, the court is Ief t with
very little conf idence in the approach of Dr. de Ia Garza in view

of. its apparent ignoring of factors which plainly affect election
resu It.s .

The Supreme Court in Teamsters v. U.S. , 431 U.S. 234

(L977), cautioned that ".
come in infinite variety
r-lter' may be rebutted. In

cf the surrounding facts

The Fif th Circu

?.2d 383 ( 5th Cir. l98I ),
i 961 ) , repear-ed i ts panel

5/single-shot or bu
L-i::. hap's tivo-- cand i dates
'.'cr,e for that candidat.e.

..statistics are not irrefutable; they

and, Iike any other kind of evidence,

shorL, their usefulness depends on a]1

and circumstances. " Id. at 340.

it in tvilkins v. Univ. of Houston, 654

reh'q denied, 662 F.2d 1156 (Sth Cir

opinion statement on rehearing:

IIet voting
in order to

is to
give

vote for only one--or
maximurn effect to your



. "muItiple regression analysis is a Iargely sophjsticated means of
r.letertnining the effect that any number of different factors have

on a particular variable." IEmphasis supplied.] 654 F.2d at

402, 652 F.2d at I157. Only one expert testified in the Wilkins

case and introduced a series cf independent variables affecting
salary in a discrimination case. These various independent

"'ar 
iables shcwed that when se>: was added as the ninth independent

variable, sex (gender) as a factor explains only.8 of It more of

the variation around the average salary (the dependent variable).
In the instant case, Dr. BuIlock's model shows that

:hen race is added to the other indepenCent r.rariables he applied
to Ehe vot.ing statistics for past city commission races, the

factor of race explains only .6 of lt of Lhe dependent variables
of candidate success. Consequently, a totality of the evidence,

including Dr. de la Garza's adrnitted difficulties in applying his

b,ivariate analysis to the city's at-rarge election system,



. compels t.he cor:clusion there has been no racial polarization
slrov:i ng a violation of t.he VoL:.ng Rights Act. 67

A Voting Rights Act case, Jones v. City of Lubbock, 72,-

F.2d 364 (5rh cir. l984), reh,g denied,730 F.2d 233 (5th cir.
i9ll,i), revears Ehat tl're city of Lubbock, Texas, has a total
popurati.on onry slightry rarger than Fort Lauderdare, with a

itlexican-American population of 17.9t, about halfway between Fort
Lauclerdale's 1970 black population percentage of r4.6t and its
1980 black population percentage of 2LN; addit.ionally, there is
an 8.2?, black population in Lubbock which, unlike Fort
Lauderdaie, had never elected a m:.nority group member to the city
council, probably because of its majority vote requirement, again

unrike Fort Lauderdare. , The dernography in Lubbock bears

consirlerable resernblan."' ao E'ort Lauderdale.

serdom does this court- quote at length f rom any ju<ige,s

analysis or opinion, part.icularly a concurring opinion, but,Judge

67tn many ways the instant case bears a striking statisticat
r,-.semblance--at Ieast i.n its development--to a case irom the pay
di scr imi natioT -f ield , Boylan, et . aI . v. The New york Times. tt-,e
liovlan plaintif f s were women employees of rhe-ltEw-Gifrl'lfies, bur-
the heart of the plaintiffs' classes were the female reporters.
Titel'u-laimed t.hey were discriminated against pal,wise because of
Lheir gender, and the bit,ariate anarysis based on sex arone
supported their claim dramatically, much Iike Dr. de Ia Garza's
bivariate regression anarys.i.s on race in the instanc case.

However, as other valid independent variables were tested,
sitch a.s the number of PuI i Lzer prizes won, years of college, work
experience prior to coming to rvork for The New york Times,
seniority and tenure, etc., the disparity in pay,s strong
-;"-atisticar sLrpport had diminished dramaticalry from whaI ii
appeared to have been at first. Aras, for purposes of this
c'>urt ' s citations, the case se'ctred a f ew days prior to trial i n
the United States District Court for the Southern District of New/ork.



Pa+.r ick Higg inboLham's opinion is most ap6.,IicabIe t.o Lhe instant
,:ase, ds f oll0ws:

Care must be taken in the factual development of the
exisLence of polarized voting because whether polartzee)
voting is present can pivot the legality of at-Iarge
votin'J dist-ricts. The inquiry is whether race or
ethnicit-y was such a determinant of voting preference
in the rejection of black or brown candidates by a
whit.e majority that the at-Iarge district, with its
components, denied rninority voters effective voting
opportunity. In answering the inquiry there is a risk
that a seerningly polarized voting pattern in fact is
only the presence of mathematical correspondence of
race to loss inevitable in such defeats of minority
candidates. The point j.s that there wilI almost always
be a raw correlation with race in any failing candidacl,
of a minority whose racial or eEhnic group is as small
a percentage of the total voting population as here.
Yet , raw correspondence, e\/en at li igh IeveIs , must
accommodate the legar principle that the amended VoEing
Rights Act does not Iegislate proportional
represenEation. Ilore ccrmplex regression study or
multi-variate mathematical inquiry will often be
essen:ial to gauge the explanatory power of the
variables necessarily present in a political race. Nor
wi Il rnath models always f urni sh an answer. A healthy
dose of corrunon sense and intuitive assessment remain
powerful components to t,his critical factual inquiry.
F'or example, a token candidacy of a minority unknown
outside his minority voting area may attract little
non-minority support and produce a high statistical
correspondence of race to 1oss. Yet, one on the scen,3
may know that race played little role at all. In sum,
detailed findings are required to support any
cor)clusions of polarized voting. These f indings must
make plain tlrat they are supported by more than the
inevitable by-product of a losing candidacy in a
predcminately whit-e voting population. Failure to do
so presents an unacceptable risk of requiring
proportional representation, contrary to congressiona''l
will.

riC F.2d at 234.

For the third factor considered by the Senate report
enc the eourt in Dallas county, the city has not had a majority

'.'oLe requirement or anti-singre-shot provisions or any ot.her



. 
"oEing pracLices or procedures traditionally used to enhance the

,)l)Dortunity for discriminatioa against minority groups or its
l-,1ack citizens. The city has used at-large elect.ions from the

!'*ry beginning of the city, and it was nct something ihat was

i nct'rrporated Lo evade or e-ircumvent the law of the Iand. As

at-- l arge elecEions are not prohibited per se by the Vot ing il:.ght.;

t.,:t- .7 / United sLates v. Darlas countv com{nission , 739 t .2d

at 1534 (IIth Cir. 1984), this court finds no error in the

continued use of t-l'te at-large system.

The fourth factor is whether there is a candidate

slating process. There is not one in the city and no ev j.dence

Itas been adduced to that effect. Plaintiffs made an effort Eo

j.ntimate t-hat the Broward citi zens committee was a slati ng

l-'rocess under this f actor. Ttre Broward Citizens Committee is a

lroup t.hat interviews candidates but it recommends only

itepublicans, even though the ciCy election is officially
nonpartisan. This court cannot conclude from Ehe evidence that

it- is necessary Eor a candidate to receive approval f rorn the

Broward Citizens Committee before success is enhanced or assured

in the city elections. The evidence does not show t,hat even one

cI tire black canCidates who has run for tire Fort Lauderda]-e Cit.y

Com;nission is a ilepublican. Inasmuch as former Mayor and

7 /tn f act, court af ter court has explicit-Iy avoided such a
lrording: united states v. Darras countv commission, 739 F.2d at
I:)34 (1tth Cir. I984 ) ; United States ".Com.m.ission , 73I F.2d at Rogers
lr_--lg@e, qSe U.S. 613 (1982); Brown v. Bd. of Scngff mffiF
ui!i@,705 F.2d a
Iri.ir.A.C.P. v. Gadsen County Schoo1 Board , 69I F.2d at 98I ( lIth-F-



l,:ng-time Commissioner Virginj.a Young does not receive the

reccmmendation of the Broward Cicizens Comrnittee--despite her

generally being regarded as a conserrraLive in

noliticsBi--one must conclude that this unoff icial

org3nizazLan9/ simply furthers Ehe int.erest of candidates wiro

are Republicans. There are and have been prominent black

citizens of Fort Lauderdale who are RepublicanS, but no evidence

has been offered to indicate they ever sought the recommendation

o€ E,he BrowarC Citizens Comrnittee.

The fifth factor is the extent of the effects, if dD!',

cf discr irnination in areas such as education, ernployment, and

health on minority group members, "which hinder their ability to

parr-icipate ef f ectively in the political process. "

Dr. de Ia Garzar plaintiffs' expert, testified that in

i:i;re of the twelve elections f rom 1971 to L982, inclusive, black

"Lurnout is equal to or higher than white turnout." In the other

t-hree elections, white turnout exceeded black turnout by less

i han It in tv,ro of them, and in only one election did whit.e voter

:urncut e.xceed that of the black voters by as much as 2\ (222 F-o

:0i,). llowever, in f ive straight elections black voter turnout

v.'as larger by more than 8t, occasionally as much as 178.

irrns:qiJeflr-l!', although t.he court reeeived evidence presented by

i-.iaint.if f in t'hese areas, the gualif ication in the Senate report

3r'See, 2.e.t Eestimony' of A:thur Xennedy.

9 /fnu testimony as to whether
crganizat ion was inconclusive.

it is a registered political



'rI effects "wiricit hinder their abilit-), to participate effectivel;'
in the politicar process" makes such evidence irrerevant as a

oractical matter.

Ne','ertheless, the court has considered whethe:: any

:ffecis of discrimination--or Iir:gering eIfects--in the fieid,:f
ed,tcat.ion wourd adversery affeci: pclit-icar participation.l0,z
Tire star-isEics ref erred to in Prof essor de 1a Garza' s testimoni'
indieate it did not affect the turnout of the brack voters.

The courE has even ccntemplated whether any lingering
:ffects of educat-ion discrimination would affect the quality of
the brack candidates. That does not appear to have been the

case: Alcee Hastings was a lawyer at the time of his capdidacy;

Conunissioner De Graffenreid'. rdas an experienced educator anci past
(-'lassroom Teacher of the year; Art Kennedy was a high schoor

ccach and president of the counEy's classroom Teachers

;rssociation, while Louis Alston was a college student at the time

of his candidacy.

Io7'rhe school system is nct maintainetl on a citywide basis.'l i-* is operated by a countlz school board so the Cit.y of Fort
Lrurlerdar,: has no control or voice in the operation of the
::'jhcri)1s, i ncluding assignment cf students or gquali.ty of
insr--ructi,>n. There have been no schoors built in the white
:e .:icen*-iar areas of Fort Lauderdale since the 1950's, rarget.y
De lause r-he popuraEion centers--particurarly f or young
fainiiies--have moved to the western portion of the county, excepL
f --r the largely childless condominium dwellers along the beach
.eno r ntracoastal . A second f actor troubred i.he couit about
;:J-aintif f s' experL testimonir on education: he had not included
ti:e high school sitting immediately outside the city Iimits of
Foi:t Lauderdale (Northeast High schoor), which high schoor
!;3I'vices a Iarge population area of Fort Lauderdale. However, in
i:is stal-istics, he included several other schools not located in
:'lro ^i i-,r

- r L j .



There was one area which might conceivably affect the

!)articipation in Ehe political process, and that is a disparity

Lr^, income among white residents vis-a-vis black residents. 1n

I969, the median income was S7 ,674 f or white f a.milies anC $4,626

for black. In L979, the figures were SI5,41O and Sg,76L,

respectil,ely.

This differential conceivably could affect

conEributions, dlt.hough Art Kennedy had virtually no trouble

securing contributions .

The matter of employment listed in the Senate report

seems subsumed in incorne.

Again, except as indicated above, there seems no effect

in ability to parLicipate equalIy.

Sixth, wheLher past political campaigns have been

characterized by overt or subtle racial appeals. No evidence has

been introduced in this trial which would begin to suggest there

has been any such tactic in political campaigns in the past. On

the contrary, there',{as evidence that tl-re commissioners in the

riid-70s ran as a "Leam" and that Commissioner De Graffenreidt was

,1 r,nember of the team. In addition, in the 1982 election, Arthur

Kennedy testified -that he and the present mayor, Robert DressIer,

.:rg':d vcters to vote for both of them.

The seventh factor is the extent to which minority
(:!:1Lr'.) mernlrerS hcrv€ been elected to public office in the city. In

''i.e'.,' of. the parti,:s' concentration on the six elections since

,l-c?0, the courE has largely limited its consideration of

e1r-,.-t j.ons to Ehat period as weII. There has been a black



.,-'anciioate in every election, anl1 two in I982. In the elections

.;ith "open seats"--there have been four "open seatsr" one in

197I, two in I973, and one in 1982--there has been one black

:andidate, Andrew De Graf f enreidt, elected, and anot,her wl-,o

narrowly lost, ArL Kennedy in 1982. Kennedy lost by 568 votes

r:uL of 17,151 cast, f or a margin of def eat amounting to 3.292.

This f au-tor was covered in great.er detail earlier.

Af ter all, Lhe proof is in the pudding. Thi.s court dealt with

r-iris factor at the beginning because it feels this factor is by

far the mcst important of the nine listed by t.he Senate and Court

af Appea).s. E.g. , Lf the other eight f actors show no reason even

to suspect a violative conCition under the Voting Rights Act, but

nrinority candidates have had little or no chance of election

despite numbers to indicate electoral strength, the minority

lroup rna), well be able to show a violation. Conversely, Lf tlre

riiinority group is ha,.ring success at the polls--especially if

the success exceeds iEs statistical electoral strength--then a

sE.rcng showing in aII the other factors could scarcely justify

r=lief to that group.

The two additional factors set forth in the Senate

report may deal more exclusively with the issue of intent bui

;;r 1I be addr:essed by this court anyway, despite the amendmenL of

thc Voting RigirLs Act. The eighth factor is whether there is a

sr..l: i f ic;:nt lack of responsiveness on the part of elected

cffici.'Irr tc the rreeds of the minority group mernbers. Most of
ilie evidence on Ehis factor was introduced by the city. For

:;<ampls, the city carred the city recruiting of f icer, who is in



.,:harge of Ehe minor:ity recruitinq prograrn, particularly for
p,oLice and f ire department po.sitions. llot only do they use radio

ad',,ertis'ing, but he, along with a police of f icer, goes to various
,-:orrununity f unctions, communitir colleges around the state and

r-:ountr), in recruiti.ng eiforts.

The city has been operating under a 1980 consent deer:e,,

t.o achieve II.25t black fire fighters and police officers. By

1982, the ciey had achieved a L2.9t figure of its fire fighters

';ho were black. The same goal rvas set f or the police department

(baseC on the 1970 census), but in L982 the city was only at a 5t

nianning level.

The city had validated its police entrance examination

in 1977 and it was considered valid. A neh, recruit.ing officer
adopted a new test in 1982 to increase the passing rate for
;rinorit-ies from 18t to ?5*, and currently it is in excess of 501.

The e:<planation f or being below 11 .25t in poJ.ice of f icers results
largely because I5 minority police officers left. Apparently a

number of cities are under the stimulrrs of a consent decree irr

niriority hiring and are raiding each other's police departments

in the sense of offering attractive benefits to minority officers

Fort LauCerdale's -salary and benef its program becarne competitive,

p=rhaps attracEive, in mid-I984.

The city has been engaged in a recruiting prograrn

rtLempting to aCd minorities to the police and fire departments

f cr several years prior to the consent decree in 1980,

r.'lrti cul a.rly in the area of public service aides who then moved

i:rt; the police deparEments or fire departments.



Unforr-unal:.eIy, a reverse discrirnination suit- was f iled
!-'i'white police officers in federal court, and that has resulted

in an injunction against any further prornotional testing for the

rank of police sergeant, tlrereby freezrng Ehe situation as of a

.Drevious promotion Iist.

In L9'79, Commissioner De Graf enreidt was reported in

1'he Miami Herald t.o have said that t,he city has done everything

possible with respect to minority hiring.

The city also called Assistant City l"lanager James HiII,
u;iro happens to be black and has been the assistant city manager

since 1970. He is the af f irmative action of f j.cer f or the city j rr

.addition to his other duties.

The ciCy engineer testified that, Fort Lauderdale stilI
does noL have sanit,ary sel{ers in aII of the afeas within the citl'
li:nits. Because of Fort Lauderoale's sandy soils and low

pcpulation in the past, sanitary sewers were not- the compelling

need they may become in the future. A program was developed and

!-nstituted to install sanitary sewersr g€oeraIly working frorn the

()ce,1n westward. In I970, a consultant per'rormed a master pJ_an

i()i: sewers f or the city of Fort Lauderdale, and the city
It,t icipated havinq_ aIl of the city f urnished with sanitary sewer-c

L,1r sonetime in 1975 or L9'16. However, about the time of the

"r't:ast-er plan, " EPA came into existence and ordered the cessatiorr

,-i g:av:.ty saniEary sewers, ch.rnging the entire treatment

1r -rr-ess, iieatrnerrt plant locatlon.s in Fort Lauderdale, and doing
a^'.ii'with arl treatment plants which contributeo effluence
j-nt-o the rvaterways . ( The court can take notice that more than



.l
,- t.

ql

'200 miles of canals and waterwa.vs exist in the city of t''ort

Lauderdale. ) These sanitary sewer-deficient areas are in both

ihe black and white seetions of the cit.y, primarily in the

southwest section (largeil'white), with some in Ihe northwest,

but only very -enaII portions in the northeast or southeasE

g,:adral:Ls of the city.

The city engineer fr-rrther testified that procedure for

iastalling sanitary sewers is that a petition is filed by the

residenEs of a neighborhood requesting installation of sewers anC

installaEion recommendations depend on certain engineering

faetors, such as hydraulic desLgn, etc. The city commission

receives various technical dar-a from the engineering department

and then holds public hearings in passing a resolution declaring

tll.-. necessi.ty of installation, and the cost of the assessment is

rn,rcle aga i nst the i nd i.ridual property owners . A procedure has

l::en implemented whereby the payments can be spread over several

years at simple interest in order to accommodate the Iow income

horneowner. However, septic tanks work fairly well in Fort

l.luderdale's sandy soil; none of Ehe predominantly black areas,

which are sti Il unsewered, have petitioned f or sanitary se!.rers .

The last unpaved street. in Fort Lauderdale was paved

ciDoUt six months prior to the hearing and i'" was in a whiLe

rr..' i g il L-ro r ir ood .

The city also called its deputy personnel director who

outlined the efforts made by tire city to recruit minority
e:rr-:loyees inLo the cityrs work f orce. They are spending about

s100,000 to sr50,000 a year in that area arone: up to $20,000 a



')'e3r for advertising, and t.he balance on recruiting trips tc:

other cities attempting to recruit personnel.

Evidence $ras also received as t.o promotion of black

:iry emproyees vis-a-vis white city emproyees. rn 19Br, althou,f,h

Ll.tere were more white employees promoted, the percentage of

':IigibIe whiles promoted was 48t while the percenLage of eligible
l..rLacks promoted was 95t. Similar situations continued on into
both L982 and 1983, €rS weII as the first part of 1984.

There stiII is an average income disparity, but this
ntat|-er was naIurally not the subject of statistical treatment by

,:iEher side. There were fewer blacks, for example, in Ehe

engineering department and no breakdown was given as to the

effect of seniority and tenure on compensation. consequen,tly,

tire compensation matter seems to have some similarity to t5e

:'ifth circuit case of wi1kins,,'. univ. of Houston, supra.

since the year before the consent decree, the city has

hired 2,000 employees, 22t of them black.
The city also presented evidence as to code compliance

,*,i t:h the minimum housing codes.

Without the impetus of a consent decree, the city
cornrnission ordered a part of the northwest section of the city
(ra:;eri'biack) in october of 1982 to be upgraded and an

eq'-l i.varent of one inspector asslgned on a full-time basis to
.- -i.,.:errt.ra:--e On tliai: area.

'r.'rr'" diI:dceor of parka ancr r6ereation for the city
t-'::':l'-ified that 550 acres of parks exist in Fort Lauderdare,
r':).i: ing f rom smalr "vest-pccket parks', to Fort Lauderdare Beach.



a. ( , ..

. t 'I'here is no line of hotels or rnotels separating the public from

Fort Lauderdale's beaches as exists in many other Florida cities.
There has been no question the city's beach has been inEegrated,

at. least since 195I. Of Ihe 550 total acres, ]90 acres (322 of

the tctal) of the parks are si:uated in the northwest sect.ion

(IarEely black). However, a portion of that 190 acres was

acrluired several years ago by the city for a park but has not

)'et been developed. The parks in the white neighborhood areas of

the eity are not only integrated, but are freely used by black

o,3rsons. The ma jor parks in +-he city have f uII-time recreat.ion

i..rograrn st-aff members .

The city also introduced evidence as to the use of the

Community Developm.ent Grant f urnds, which have been receivd by the

cicy basically since L971. In this l0-year peiiod, Fort

i,auderdale has received almost $21,400,000. Of that f i_oure, 901

r-o 95'i of the f unds have been spent in the northwest secLor. The

funds have been used for matters such as construction of the Dr.

Jon Mizell Center, rehabilitation and modernization of publie

lrousing, renovation of their 1ow-income housing, rental

r-ehabilitation program, etc.

The totality of evidence indicates that the

lesponsiveness of the ciCy is hardly perfect, but most of the

:. nequities that exist are f rom dif f iculties in recruiting
.rluDetition in the police department area. There the city has

r: a,i. bona f ide and intensive ef f orts to overcome the problems of
reuruiting or ret,ention. Another area of difficulty is the

'irscarity in income of city employees, much of which result.s f rorn



seniority factor of employees who have been with the city for up

to 20 or 30 years. The evidence does persuade the coure that the

city has made intensive efforts, certainly in the last Io to 15

-\'ears, to correct any imbalances and has been overcompensating

iuring that period of time in many prograrns in an effort to
imorove and correct any imbalance.

The ninth factor deals rvith the tenuousness, if doy, e.

lhe pr:Iicy underlying the use of any voting qualification

[)ractic-e or procedure. There is no questionabre voting

l,rareeuisite or procedure invorved in this case. The only
..Iur3stion has been whether the city's at-rarge system itserf
i-iorates the voting Rights Act. The city has had the at-rarge
system since its creation in l9)1I, and this court does not find
from the totality of evidence indications thaL its elect.ion
pclicy either was adopted or has been maintained to discriminate
against minority citizens.

Sunrmarv

This court has gone t.hrough the nine factors indicated
,rs being relevant by the senate as weII as the court of Appeals.
r. ite totality of the evidence does not warrant a f inding that Forr-

r,auderdale's aL-Iarge system of electing commissioners, with r-he

l-'i ohest vote-getter becoming the mayor, violates the \ioting
P r.3nts Act., as amended.

Fort Lauderdale sirnply has very rittre resemblance to
:r1an!'cases which have held a violation of the voting Rights

. Fort Lauderdale, with a brack population of 14.ot in 1970

ch had climbed to 2rt by 1980 because of a prateauing of the

'; ir :'

'*'l-r .i



'r'hite population, has ele,cted a black commissior:er three times in
the six recent elections. The leading cases are decidedly

cifferent by comparison: Roqers v. Lodqe, 458 u.s. 5r3 (L992),

v"here the brack populalion of Burke county, Georgia, was 53.6t
while only 384 of Ehe registered voters comprised black voters

anC no black hacl ever been elected to the board of county

comrnissioners; United States v. Marengo Countv Commission , 73L

?.2C at 1553 (IIth Cir. I984), had a black population in the

county of 55.21 and 44t of t.he registered voters were black, but

"Lle only bLack ever elected to county office was a county coroner.

tn l.i.A.A.C.P. v. Gadsden Countv (FIorida) School Board, 69I F.2d

at 981 (11th Cir. 1982), the county populaE,ion was 59t black with

19.35t regisEered voters being black, but only one black had ever

been elected to the schoor board. rn united states v. Dalras

gountv Cortrnlssion , 739 F.2d 1529 ( llth Cir. 1984 ) , the population

of Dalras county, Arabama, was 52.3t brack, whire 43.8i of the

registered voters were black, but no bl.acks in recent history had

ever been elected to any county office.
The equal opportunity to participate in a political

ilrocess and to elect representatives of their choice is best

sirown at the poIIs- AII parties, lawyers, experts, witnesses, eL

i1., aqree thal an "open seat" affords the besL chance for a

candidate to be elected. There have been four open seats since

ll70 (on.l-y one since 1973), and a brack candidate won one of



" ,,-' -t 
' l:

( -' r . '

.''-hem.LL/ considering the minority percentage population in
1970 of 14.51, one out of four would be comfortably above a

L'roportional representation figure--even if that were not

specif icaIly proscribed by Congress. If 1.1r. Kennedy had won in
1982, this lawsuit would be iIlogical and would be virtually
frivol-ous under these circumstances. As it turns out, he lost b1'

a Inere 3.2q and attributes his defeat to an election eve leLter
on the let.terhead of the county Republican party urging Fort

Lauderdale citizens to vote for four Republicans and his failure
Eo respond to it.

r f one exami nes it another wdy, tl':e resurt does not
vary: since I970 (counting the lg79 mayoralty race), there have

lreen 75 whi te candidacies f or city comrnission, 9f which 27 were

successful in being elected, for a percentage of 36t, while there

!rave been seven brack candidacies, of which three were

successf r:I, f or a percentage of 431.

t'lhat has emerged from the evidence is that the bulk of
ForL Lauderdale citizens are conservative, largely Republican.

Alti:ough the city races are officiarry nonpart,isan, the city
i-omrnissicn has been Republican f or approximately two decades.

illct one of the blagk candidates has been a Republican according

Lo '-he ev idence .

what has arso emerged from the evidence is that the

wiriie voiers of this city are more than willing to vote for black

IITi'lith two "open seats " in 1973 and only one black
e.rndidate, it would have been impossible for black candidates Eo
i{r- n nlore than tirree.



r\ ' ;-

S 1973. Denial or abridgement of right t.o vo-ue on
account of race or color t.hrough voting qualifications
or prerequisites; establrshment of violation

(a) No voting qual:.'ication or prerequisite t.o
voting or standard, practiee, or procedure shaII be
imposed or applied by any State or political
subdivision in a manner which results in a denial or
abridgemen'u of the right of doy citizen of the United
States to vote on account of race or color r or in
conLravention of t.he guaranLees set forth in section
1973b(f)(2) of this titler &s provided in subsection
(b) of this section. ,

(b) A violation of subsection (a) of this section
is established if, based on the totality of
circumstances, it is shown that the political processes
Ieading to nomination or election in the StaLe or
political subdivision are not. equally open to
participation by members of a class of citizens
protected by subsection (a) of this seciion in that its
members have Iess opportunity than other members of the
electorat.e to participate in the political process and
t.o elect representat ives of the ir choice. ?he extent
to which members of a protected class have been elected
to office in the State or political subdivision is one
circumstance which may be considered: Provided, That
nothing in this section establishes a right to have
mernbers of a protected class elected in numbers equal
to their proportion in ti:e population. (As amended
Pub. L. 97-205, S 3, June 29, L982,96 Stat. I34.)

The trial evidence focused on the elections held since

1970, primarily because the serious efforts in a black candidacy

Degan about that time. The candidacies prior to about 1970 on

t-he part of black candidates appeared obviously to be a "testing
,-rI the waters, " while the candidacies beginning about I970 have

l're:-:n def inite ef f orts on the part of aI1 candidates, with perhaps

lne exception.

Botlr siC.:s treated 19r0 as if it were the important
staL'Erng date lor our crit.icai examination although t5e matters
prlor Lo then were covered in the evidence by both sides possibiy



a Yt a ,.f

- Ji i

v-<'r..t. '

- candidates. For example, Commissioner De Graffenreidt would hai,e

hron re-election in 1975 and 1977 on votes from white precinct,s

al-one. rn addition, in t5 non-city races, €.g. r f or Florida
Supreme Court .lustice, Florida PubIic Service Commission, and t)re

eounty commissicn, t,he white voters of Fort Lauderdale in four
different races have given a rnajority vole to a black candidaE.e

wlto was competing with a white candidate, and in f our ot.her

elections, black candidates received 40t to 49.9t of the whiEe

vote.

'Ihe evidence fails to show a violation
RighLs Act in Fort Lauderdale's at-Iarge system

commission.

Order to be entereC accordingly.

rlay of March , 19 B 5 .

tlo!-:ies tc:

of

for

the Voting

its city

DONE AND ORDERED at Fort Lauderdale, Florida, *ir/Zh

NORMA
UNITED

C. ROETTGER, JR.
STATES DISTRICT JUDGE