Dillard v. Town of Fort Deposit Recommendation of the Magistrate Judge; Order to File

    IN THE DISTRICT COURT OF THE UNITED STATES ; gal A 

FOR THE MIDDLE DISTRICT OF ALABAMA SEP 3 0 vv) 

NORTHERN DIVISION = 

  

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§ Cm Bom Bod! 

JOHN DILLARD, et al., 

Plaintiffs, 

VY. CIVIL ACTION NO. 87-T-1214-N 

TOWN OF FORT DEPOSIT, 

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Defendants. 

RECOMMENDATION OF THE MAGISTRATE JUDGE 

I. Introduction and Procedural History 
  

On April 29, 1988, this court entered a final order 

approving a consent decree under which city council elections in 

Fort Deposit, Alabama were conducted in the summer of 1988. 

Under the plan approved by the court, members of the city council 

were elected from five single-member districts. This plan of 

election was found to remedy violations of § 2 of the Voting 

Rights Act of 1965 as amended, 42 U.S.C. § 1973. On January 27, 

1992, plaintiffs filed a motion for additional relief with 

respect to redistricting and the 1992 elections. In part this 

motion alleged that conducting 1992 elections using the plan 

previously approved by this court would violate the "one-person, 

one-vote rights of the plaintiff class (and all citizens) 

guaranteed by the Equal Protection Clause...and the equal voting 

rights guaranteed the plaintiff class by the Voting Rights Act 

and the fourteenth and fifteenth amendments." In short, 

plaintiffs asserted that 1992 elections would be conducted from 

election districts which were seriously malapportioned because 

they had not been redistricted according to 1990 census data. 

On February 26, 1992, the town filed a response to the 

 



  

plaintiffs' motion for further relief. The town stated that it 

was reviewing 1990 census data and the existing election plan. 

The town stated it was prepared to redistrict if needisary and 

that adoption of an ordinance and preclearance could be 

accomplished in time for deadlines for the 1992 elections. 

Thereafter, on May 18, 1992, the town filed a pleading in which 

it stated that the 1990 census data was erroneous, that it had 

"counted the areas where the census data was deficient and has 

used the corrected census data to determine that its existing 

Court Order plan is in full compliance with the Constitution and 

laws of the United States." On June 11, 1992, the plaintiffs 

filed objections to the town's failure to redistrict asserting 

that the town's current redistricting plan "is malapportioned and 

dilutes black voting strength." Over the objections of the 

plaintiff, the town conducted its 1992 elections according to the 

election plan approved by this court in 1988. On July 7, 1992, 

the court held a hearing in this case. 

II. The Present Plan 
  

Under 1990 census data for Fort Deposit, an ideal district 

in a five member, single district, city council election plan has 

248 persons. The 1990 census data shows that Fort Deposit has a 

total population of 1240.! Application of 1990 census block data 

to the current districting plan reflects the following: 

  

The Hispanic population is 0.73%. For ease of 
presentation, the tables in the body of this recommendation do 
not show figures for the Hispanic population. 

2 

 



District Total Population Deviation From Ideal 

District 190 -23.38% 

District 215 -13.30% 

District 358 +44.35% 

District 264 +06.45% 

District 5 213 -14.11% 

The boundaries of the present districting plan split three 

1990 census blocks. Block 230A with 138 persons splits districts 

1 and 2. The table uses figures which assign block 230A to 

district 2. Block 424 with 24 persons splits district 1 and 2. 

This block is assigned in the table to district 2. Block 216A 

with three persons splits districts 3 and 5. This block is 

assigned in the table to district 5. Assignment of blocks 424 

and 216A to a particular district has no effect of any 

consequence on the deviations shown on the table. If block 230A 

were assigned to district 1 rather than district 2, the 

deviations would change as follows: 

District 1 328 +32.26% 

District 2 77 -68.95% 

If block 230A were split evenly between districts 1 and 2 

the following would result: 

District 1 259 +04.43% 

District 2 146 -41.13% 

The foregoing demonstrates that under any circumstances the 

present plan is seriously malapportioned according to the 1990 

census data.? 

  

2see Defendant's Objection To Plaintiff's Evidence, filed 
July 22, 1993, 
   



  

The defendants agree that the present plan is malapportioned 

according to the 1990 census data. However, the defendants argue 

that the 1990 census itself is so flawed that this court must 

reject use of its data. The plaintiffs agree with the defendants 

that the census does contain some flaws. The plaintiffs admit 

that the census data places persons living in a public housing 

project in the wrong census block. The parties also agree that 

persons living along Forrest Drive in Fort Deposit are 

erroneously placed in block 247 rather than block 230A. 

The sharp disagreement between the parties is not over 

misplacement of persons in the correct census block. Rather, the 
  

disagreement centers on whether the census count is correct. On 

this issue, the defendants presented evidence which they assert 

casts substantial doubt on the validity of the count. For 

example, the defendants note that according to the 1990 census 

block 216A has 3 persons in it. The defendants assert that this 

cannot be correct because in the geographic area comprising this 

block there are at least "half a dozen" houses. In further 

support of their position about the count, the defendants 

presented the testimony of the editor of The lowndes Signal, a 
  

local newspaper. The editor testified that after the results of 

the 1990 census were published she spearheaded a "new count." 

This count was taken during the late summer and early fall of 

1992. She and other persons involved divided the town into small 

sections and "went house-to-house" counting residents. This 

count indicated deficiencies in the 1990 census data. For 

example, the 1990 census data shows block 216A has 3 persons. 

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The editor's count indicated 161 persons living in this block. 

The 1990 census shows block 240 having 0 persons. The editor's 

count identified 10 persons. 

Defendants do not contend that this "new count" is one on 

which the court or the parties should rely in framing a new plan 

of election. Rather, defendants contend that this "new count" 

casts such substantial doubt on the census that the court should 

require the conduct of a special census and thereafter order 

preparation of an election plan based on this census. 

The court cannot conclude that the "new count" casts such 

doubt on the 1990 census that the census figures must be 

rejected. As pointed out by the plaintiffs, a local governing 

body must use total population figures from the 1990 decennial 

federal census unless the governing body can demonstrate "with a 

high degree of accuracy" that different data is more reliable. 

Kirkpatrick v. Preisler, 394 U.S. 526, 535 (1969). The "new 
  

count" data does not cast doubt on the 1990 census data. The 

defendant offered no proof that the persons who conducted the 

"new count" were qualified or had any necessary training or 

experience to conduct a count. No evidence was offered which 

shows that the process used in the "new count" was designed to or 

did insure the accuracy of the data. Indeed, the editor 

testified that if she "knew" who lived in a house she merely 

wrote down this figure without further inquiry. As discussed 

further below, the court concludes that any election plan for 

Fort Deposit's City Council must be based on the 1990 decennial 

census. 

 



    

i 4 

  

III. Proposed Plan 
  

The defendants do not propose a plan adopted by the 

jurisdiction.? The plaintiffs have presented a two district, 

multi-member city council election plan to the court. The 

defendant admitted at the hearing that using the 1990 census data 

the plaintiffs' plan is a "solution to the problem." The court 

understands the defendant's comment about "the problem" as a 

reference to the 1990 census' misplacement of persons in the 

wrong census blocks. Under the plaintiffs' plan, members of the 

city council will be elected from two, multi-member districts* as 

follows: 

District Total Black White Deviation 
Pop Pop Pop From Ideal 

District 1 744 670 (90.05%) 73 (09.81%) 00.00% 

District 2 496 166 (33.47%) 330 (66.53%) 00.00% 

Under this plan persons eligible to vote in district 1 would 

elect three members of the city council. Persons eligible to 

vote in district 2 would elect two city council members. 

DISCUSSION 

The equal protection clause requires that electoral districts be 

"of nearly equal population, so that each person's vote may be 

  

3In its post-trial brief filed July 22, 1993, the defendant 
through counsel for the first time suggests an alternative plan 
under which there would be one multi-member district electing two 
members of the city council and three single-member districts. 
This proposal is not properly before the court. Defendant's 
counsel has presented nothing to the court indicating that the 
city council has approved the presentation of such a plan. In 
the absence of proof that the city council has adopted the 

alternative plan, the court may not consider it. 

‘See Plaintiffs' Exhibits 6 and 7, July 7, 1993, hearing. 

6 

 



    

given equal weight in the election of representatives." Connor 

v. Finch, 431 U.S. 407, 416 (1977). Thus, deviations of greater 
  

than 10% from the ideal population of an election district are 

  

presumptively unconstitutional. Id. at 418; White v. Regester, 

412: U.8. 755, 763 (1973). 

[M]inor deviations from mathematical equality 
among...districts are insufficient to make out a prima 
facia case of invidious discrimination under the 
Fourteenth Amendment so as to require 
justification...Our decisions have established...that a 
plan with a maximum population deviation under 10% 
falls within this category of minor deviations. A plan 
with larger disparities...must be justified... 

Brown v. Thomson, 462 U.S. 835, 842-843 (1983) (citations 
  

omitted). 

Deviations exceeding 10% are constitutionally permitted only 

if based on "legitimate considerations incident to the 

effectuation of a rational state policy." Reynolds v. Sims, 377 
  

U.S. 533, 579 (1964). See also Mahan v. Howell, 410 U.S. 315 
  

(1973). The city's present plan plainly is unconstitutional. 

only District 4 of the town's present plan has a deviation 

which is less than 10% from the ideal. The deviations in the 

other four districts range from a low of -13.30% to a high of 

+44.35%. The city offers no justification for these deviations. 

The present plan is constitutionally unacceptable. 

Since the city has not presented to the court an alternate 

plan approved by the jurisdiction, the only plan before the court 

is the two district, multi-member plan suggested by the 

plaintiffs. As shown in the table above, this plan has no 

deviation from the ideal size of the two multimember districts. 

 



  

The plan creates one district with a majority black population 

comprising 90.05% of the total population. Three council members 

will be elected in this district. The other district from which 

two council members will be elected has a black population 

comprising 33.47%. Plainly, the plaintiffs' plan is consistent 

with § 2 of the Voting Rights Act because it is likely to afford 

black citizens of the city a reasonable opportunity to elect 

candidates of their choice.’ Thus, the court concludes that new 

elections should be held as soon as practicable under a schedule 

to be devised by the parties. 

Accordingly, it is the RECOMMENDATION of the Magistrate 

Judge as follows: 

1. That the plan proposed by the plaintiffs be approved and 

adopted; 

2. That the court enjoin and restrain the defendants, its 

agents, its attorneys, officers, employees and all persons acting 

in concert with them or at their direction as follows: 

a. From failing to conduct elections for the Town of Fort 

Deposit under the plan as approved and adopted by the court. 

b. From failing to conduct as soon as practicable new 

elections for members of the city council of the Town of Fort 

Deposit. 

  

‘The court recognizes that single-member district plans are 
preferable. Growe v. Secretary of State, U.S. ___ , 113 S.Ct. 
1075 (1993); Conner Vv. Finch, 431 U.S. 407, 415 (1977). However, 
in cases involving small jurisdictions this court previously has 
approved multi-member districts. Dillard v. Town of Cuba, 708 
F.Supp. 1244 (M.D. Ala. 1988); Dillard v. Chilton County Bd. of 
Educ., 699 F.Supp. 870 (M.D. Ala. 1988). 

  

  

  

  

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It is further the RECOMMENDATION of the Magistrate Judge 

that upon adoption of this Recommendation, the defendants be 
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ordered to submit to the court within 15 days a schedule and plan 

for the conduct of the new elections. 

  

did 

Done this &% day of September, 1 

  

CHARLES 8S. 
S MAGISTRATE JUDGE 

 



  

CIVIL ACTION NO. 89-T-1214-N 

ORDER 

The Clerk of the Court is ORDERED to file the Recommendation 

of the Magistrate Judge and to serve by mail a copy thereof on the 

parties to this action. The parties are DIRECTED to file any 

objections to the said Recommendation within a period of 13 days 

from the date of mailing to then. Any objections filed must 

specifically identify the findings in the Magistrate Judge's 

Recommendation objected to. Frivolous, conclusive or general 

objections will not be considered by the District Court. 

Failure to file written objections to the proposed findings 

and recommendations in the Magistrate Judge's report shall bar the 

party from a de novo determination by the District Court of issues 

covered in the report and shall bar the party from attacking on 

appeal factual findings in the report accepted or adopted by the 

District Court except upon grounds of plain error or manifest 

injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982).   

See Stein v. Reynolds Securities. Inc., 667 F.24 33 (11th Cir. 
  

1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th 
  

Cir. 1981, en banc), adopting as binding precedent all of the   

decisions of the former Fifth Circuit handed down prior to the 

close of business on September 30, 1981. 

Done this I ae ot September, IQ 

  

CH S. £00DY 
NITE TES MAGISTRATE JUDGE 

 



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