U.S. v. Charleston County | Cases | Westlaw

In pursuit of a decision that is not only objective in fact, but objective by all appearances, the Court has given thoughtful consideration to the appropriate way to identify the respective races. Unfortunately, labels are inherently pregnant of connotation, and generally inadequate in their ability to characterize an entire group of people whose cultural, physical, and progenital commonality are a spectrum of attributes rather than a discrete set of qualities. The United States Census Bureau uses both the terms “black” and “African–American.” Although the phrase “African–American” is likely under-representative for its failure to encompass fully the heritage of each member in the relevant community, it is seemingly preferable to the increasingly arcane pairing of “black and white,” which generally fails to be either accurate or discreet. The Court will therefore predominately employ the phrase African–American going forward.

As amended in 1982, Section 2 of the Voting Rights Act of 1965, provides:

Section 2 contains both a “results” standard and a prohibition against intentional racial discrimination in voting. Claims of intentional discrimination under Section 2 are assessed according to the standards applied to constitutional claims of intentional racial discrimination in voting. See Garza v. County of Los Angeles, 918 F.2d 763, 766 (9th Cir.1990) (“[T]he Voting Rights Act can be violated by both intentional discrimination in the drawing of district lines and facially neutral apportionment schemes that have the effect of diluting minority votes.”).

It is important to the analysis to remember that the Voting Rights Act does not require nor allow the Court to examine the merits or demerits of at-large voting versus single-member districts except as to how they may effect minority voting rights.

The figures for the white and African–American total population and voting age population in this paragraph do not include Hispanics, who may be of any race, and people who are of two or more races. The persons in the other category include those of Hispanic, American Indian or Alaska Native, Asian, Hawaiian or Pacific Islander, and other descent, and persons of two or more races.

James Island's status as a town is presently in litigation.

The Attorney General granted administrative preclearance to Charleston County's at-large method of election some four years after Section 5 was first enacted and before any at-large elections were held under that 1969 law. On its face, Section 5 of the Voting Rights Act specifically provides that a subsequent civil action can be filed challenging a voting standard, practice or procedure that has been precleared under Section 5: “Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.” 42 U.S.C. § 1973c. Thus, the United States may bring a Section 2 claim against a precleared voting practice alleging discriminatory intent or result. See Reno v. Bossier Parish School Bd., 528 U.S. 320, 334, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). However, in this action, the United States, unlike the private Plaintiffs, does not allege that the at-large method of election was enacted in 1969 with a discriminatory intent.

In Chisom, the Supreme Court explained that “[u]nder the amended statute, proof of intent is no longer required to prove a Section 2 violation. Now plaintiffs can prevail under Section 2 by demonstrating that a challenged election practice has resulted in the denial or abridgment of the right to vote based on color or race.” Chisom, 501 U.S. at 394, 111 S.Ct. 2354.

Accord Vecinos De Barrio Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir.1995); see Sanchez v. State of Colo., 97 F.3d 1303, 1310 (10th Cir.1996) (noting that establishment of Gingles preconditions “creates the inference the challenged practice is discriminatory”); Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1390 (8th Cir.1995) (en banc) (“Satisfaction of the necessary Gingles preconditions carries a plaintiff a long way towards showing a Section 2 violation”); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116 (3d Cir.1993) (holding that “it would be a highly unusual case in which a plaintiff successfully proved the existence of the three Gingles factors and still failed to establish a violation”); cf. De Grandy, 512 U.S. at 1012 n. 10, 114 S.Ct. 2647 (noting that Section 2 challenges to multimember districts, as is the case here, are likely to be easier plaintiffs' cases than challenges to electoral practices in single-member districts).

A number of discrepancies exist in Dr. Weber's various reports concerning polarization in Charleston County Council elections. Importantly, however, Dr. Weber has universally found severe and legally significant voting polarization, notwithstanding any conclusions he may have concerning the cause of such polarization. Ultimately, the Court is particularly compelled by the careful report prepared by Dr. Arrington.

The Fourth Circuit, in dicta, has suggested that contests involving African–American candidates may in fact be more probative of racial polarization than elections without an African–American candidate. Lewis v. Alamance County, 99 F.3d 600, 610 n. 8 (4th Cir.1996). The Fourth Circuit, however, has clearly cautioned that such elections cannot necessarily be afforded greater weight when considering whether “because of that polarization, minority-preferred candidates are usually defeated.” Id. The holding in Alamance is predicated on the obvious understanding that white candidates may in fact represent the candidate of choice of the minority community. To that end, this Court has remained guarded, and only focuses particularly on elections involving African–American candidates for the issue of voting polarization.

No African Americans were elected to the Charleston County Council before 1970.

It should be noted that Hamilton won 6 elections between 1974 and 1990. Amos–Frazier won in both 1974 and 1978. Notwithstanding the tenure of both Hamilton and Amos–Frazier, their successes remain the exception rather than the rule. First, as readily conceded by Dr. Weber, courts have found recent elections to be the most probative. (Joint Ex. 2A at 9–10); see also Ruiz v. City of Santa Maria, 160 F.3d 543, 555 (9th Cir.1998); Uno v. City of Holyoke, 72 F.3d 973, 990 (1st Cir.1995); Meek v. Metro. Dade County, Fla., 985 F.2d 1471, 1482–83 (11th Cir.1993). The question of vote dilution must be measured in the present, not the past, tense. Uno, 72 F.3d at 990. For example, if there was no racially polarized voting in a jurisdiction since 1984, the existence of racially polarized voting in the 1970s would not be relevant. Indeed, Dr. Weber specifically declined to analyze pre–1988 elections in his reports because of their negligible relevance. (Joint Ex. 2A at 9–10.) Accordingly, whatever successes Hamilton and Amos–Frazier had in the 1970s and 1980s is of marginal relevance to whether African Americans presently enjoy equal access to the electoral process.

According to Dr. Weber, Scott has never been preferred by minority voters in any of his three elections to Charleston County Council. Indeed, according to Dr. Weber, Scott received an estimated 30.7% support from nonwhite voters in a 1995 special election. Thereafter, Scott's African–American support tumbled. Just two years later, Scott received an estimated 7.0% support from nonwhite voters in a 1997 special election, and he fared even worse in the 2000 general election, when he received an estimated 2.8% of the votes cast by nonwhite voters. (Joint Ex. 2A, Ex. E thereto, at 13, 23; Joint Ex. 2C, Ex. A thereto, at 4.) Scott ran as a Republican.

Although African–American persons have been elected to the South Carolina House and Senate, the City of Charleston City Council, and other local offices, virtually all were elected from single-member, majority-African-American voting districts. Indeed, none of the statistical experts analyzed these exogenous elections.

Because the School Board elections are non-partisan, Defendants have attempted to use them as a “control” for “race” in identifying the cause of polarization in Charleston County voting. They contend that the success of African–American candidates in the non-partisan school board elections demonstrates that partisanship, and not race, explains the County's polarized voting patterns, because without the partisan “cues” of the county council elections African Americans experience greater success in school board elections. However, Dr. Arrington testified that polarization in school board races, in fact, closely mirrors that found in the county council elections, (Tr. at 412 (testifying that whites had never “favored” an African–American candidate and vice versa, and describing the voting as being along “racial lines”)), and to the extent such polarization results in fewer defeats of minority-preferred candidates than in county council elections, the special circumstances discussed infra adequately account for such discrepancies. (But see Joint Ex. 2B at Figure 15) (finding, by Dr. Weber, that polarization occurred in School Board races only 12% of the time.)

Defendants' expert Dr. Moore testified that the election of five African Americans to the County's nine member school board demonstrates the ability of the African American community to impact the electoral process and select candidates. (Tr. at 2890.) On cross-examination, however, Dr. Moore conceded that comparing School Board elections and County Council elections are like comparing “apples and oranges,” (Tr. at 2988), and that he could not know how much significance, if any, to attach in this case to school board elections without analyzing the election data, which he did not do, (Tr. at 2994–96.)

The United States Supreme Court has recognized the following description of single-shot (“bullet”) voting:

The parent/teacher associations remained racially segregated until the late 1960s. (Tr. at 558, 1359–61.)

Data from the prior decennial census is presumed accurate unless contradicted by clear, cogent, and convincing evidence. Johnson v. De Soto County Bd. of Comm'rs, 204 F.3d 1335, 1341 (11th Cir.2000); Valdespino v. Alamo Heights Ind. Sch. Dist., 168 F.3d 848, 853 (5th Cir.1999).

After this case was tried, much of the relevant 2000 Census data relating to socio-economic disparities was released. Plaintiffs have requested that the Court take judicial notice of this 2000 socio-economic data. The 2000 Census data demonstrates that the socio-economic differences between African Americans and whites in Charleston County have persisted. However, such evidence was unavailable for full adversarial treatment at trial and, therefore, will be infrequently employed.

According to 1990 Census, 86.1% of the African–American residents of Charleston County were born in South Carolina. (U.S.Ex. 68D.)

In order to view fully the history of discrimination in Charleston County and its effect on present political participation, it is appropriate here, in conjunction with the fifth Senate factor, to also consider the first Senate factor: “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the Democratic process.” (Senate Report at 28.) It is undisputed, that there has been a long history of official discrimination touching the right of African Americans to register, to vote, or otherwise to participate in the democratic process. Indeed, the County concedes that there has been a long history of official discrimination in Charleston County, touching the right of African Americans to vote. (See Defs.' Judicial Stip., filed March 5, 2002; Tr. at 2215–16.) By way of example, the South Carolina Constitution of 1895 included a literacy test, a poll tax, disfranchisement for certain enumerated crimes, and long residency requirements. South Carolina v. Katzenbach, 383 U.S. 301, 310–11 n. 9, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Certainly, such institutional discrimination contemporaneously resulted in significant disparities in the voter registration totals for African–American and white residents of Charleston County. In November 1964, the percentage of South Carolina white persons of voting age who were registered to vote was 75.7%, but only 37.3% of the African–American voting age population was registered to vote, a disparity of 38.4 percentage points. (U.S. Ex. 11 at 5.) In September 1967, according to an estimate published by the United States Commission on Civil Rights, the number of white persons registered to vote in South Carolina equaled 81.7% of the 1960 voting age population, as compared with only 51.2% among African Americans, a disparity of 30.5 percentage points. (U.S. Ex. 11 at 8.) However, unlike the effect of past discrimination in areas of education, employment, and income, as considered under Senate factor 5, the Court cannot conclude that there remain lingering effects from past discrimination touching the right of African Americans to vote.

For these purposes, it is not important whether this racial separation is the result of acts that violate law, or whether they result from private behavior that is not regulated by law. What is important is the fact that members of the Charleston County community live social, economic and religious lives that many times do not result in members of one race having the opportunity to know members of another race, and the impact this racial separation has as a practical matter on the “past and present reality” of political life in Charleston County. Senate Report at 30 (quoting White v. Regester, 412 U.S. 755, 769–70, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)). This racial separation evidence is an additional indication of the importance of race in Charleston County Council elections.

For instance, Councilmember Stavrinakis stated that about $49,000 of the approximately $50,000 he raised for his 1998 County Council campaign came from personal contacts. (Tr. at 1491.)

Judge Fielding is the one African–American candidate who had substantial campaign funds for a countywide race. In his 1994 race for probate judge, he spent approximately $70,000, half of which came from his own funds. (Tr. at 106.) He was nevertheless defeated. Judge Fielding testified that he believes that “the primary reason I was defeated [in the 1994 probate judge's race] was because I was black.” (Tr. at 152.)

Dr. Weber necessarily conceded as much, (Tr. at 2022–23), but discounted its materiality and testified that he had never before heard an expert testify to such an “in-effect” majority-vote requirement, (Tr. at 2024).

A majority vote requirement would require a prevailing candidate to receive not simply a plurality of the votes cast in an election but a mathematical majority. (Tr. at 2022 (testifying that under a majority vote requirement, “a candidate to win the nomination of either political party must get—either in the first primary or in the second runoff primary, must get 50% plus 1 of the vote”).) Although no such majority vote requirement exists in Charleston County, (id.), when only a single county council seat is at issue in a two-party system (Democrats and Republicans) the winner will almost certainly garner a majority of the votes. (Tr. at 303.)

For a definition of single-shot voting, see supra footnote 18.

It should be noted that McKinley Washington was later elected to the South Carolina House and Senate and enjoyed lengthy tenures.

During this 1988 primary race, literature was distributed containing a caricature of Ford. This campaign literature contains wording that indicates that it was produced by the Bailey campaign, but the testimonial evidence is silent as to which campaign actually distributed this document. (Defs.' Ex. 30.) Even if this literature was distributed by the Ford campaign, it further illustrates the salience of race in the political process.

The United States has not asserted that the fourth Senate Factor, denied access to a candidate slating, is an element of their case.

On the basis of both Gingles and the Fourth Circuit's decision in Lewis v. Alamance County, 99 F.3d 600, 615 (4th Cir.1996), the Court has already rejected Defendants' argument at summary judgment that issues of “causation” had any place in the Court's consideration of the three Gingles preconditions.

Section 2 is divided into two subsections, 2(a) and 2(b). 42 U.S.C. § 1973. Subsection 2(a) forbids any voting practice “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, or in contravention of the guarantees in section 4(f)(2), as provided in subsection (b)”. 42 U.S.C. § 1973(a) (emphasis added). Plaintiffs, therefore, contend that what constitutes voting discrimination “on account of race or color” is defined in subsection 2(b). Id. Specifically, Plaintiffs argue that Subsection 2(b) makes it clear that a violation exists when it is shown that a racial group lacks equal opportunities and equal results which constitute a violation, regardless of the reasons why such inequality exists: “A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the [jurisdiction] are not equally open to participation by members of a class [protected by subsection 2(a) ] 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.” 42 U.S.C. § 1973(b).

To the extent LULAC, Nipper, or Uno might suggest that “on account of race or color” narrowly concerns the cause of divergence in majority and minority voting preferences and requires some proof that the white majority votes differently because of racial animus, the Court disagrees. As the Senate factors plainly suggest, “on account of race or color” is a more far-reaching requirement that the Court consider the totality of pressure points which racial discrimination and disadvantage might aggravate, including, for example, the present effect of past discrimination on socio-economic status and, therefore, on political participation. Depressed socio-economic status from past discrimination which results in severely diminished political participation could constitute a “denial or abridgement of the right to vote ... on account of race or color,” without regard to any present racial animus of the white electorate in their voting preferences.

In statistical analysis, multi-colinearity is a correlation between two independent variables that is so strong that it is impossible “statistically to separate them out and tell which of those two effects the dependent variable; which of those two is the cause.” (Tr. at 310.)

A multivariate analysis attempts to measure the effect of two or more independent variables on the dependent variable as opposed to a more traditional analysis, which would control for only a single independent variable.

It should be noted that much of Dr. Weber's research concerning behavioral partisanship was submitted in an untimely declaration properly rejected by the Magistrate Judge.

The Court cannot identify any evidence that Mayor Summey lost the support of African Americans upon his re-affiliation with the Republican party.

Defendants also contend that pervasive use by African Americans of the Master Lever on the Shouptronic voting machines contributes to the polarization of voting and proves that party and not race is the cause of such polarization. First, there is no evidence of the extent to which the Master Lever is exercised by the African–American community. Second, even if African Americans consistently use the Master Lever, it still cannot be understood whether this strong affiliation with the Democratic party, manifested through exercise of the Master Lever, is for racial or non-racial reasons.

As stated, claims of intentional discrimination under Section 2 are assessed according to the standards applied to constitutional claims of intentional racial discrimination in voting. See Garza v. County of Los Angeles, 918 F.2d 763, 766 (9th Cir.1990) (“[T]he Voting Rights Act can be violated by both intentional discrimination in the drawing of district lines and facially neutral apportionment schemes that have the effect of diluting minority votes.”)

The Senate report expressly incorporates the considerations in Arlington Heights for purposes of analyzing a Section 2 intent standard claim. S.Rep. No. 417 at 27 n. 108.

The Court primarily received evidence of discriminatory intent through the lengthy examination of Dr. Vernon Burton. (Tr. 1127—1253.) While the Court received further credible testimony, which it considered probative of a lack of discriminatory intent, from Lenny Krawcheck, a very credible member of the legislative delegation at the time of the adoption of the at-large system, the Court remains mindful of the Supreme Court's warning in Arlington Heights, that testimony of original decision-makers should be cautiously considered only under extraordinary circumstances. For that reason, his testimony bears little on the decision of the Court.

The private Plaintiffs counter that the South Carolina Attorney General advised the County that the Supreme Court's decision in Avery did not require at-large voting for the County Council. This evidence alone does not, however, disprove that it was not in fact adopted for such reason.