boundaries than in a ward system operating within the expanded boundaries.
We note that, because past recent voting has only been roughly along racial lines, three councilmen who have predominantly appealed to black voters were elected in 1970 in the face of a black voting-age minority of 37.3 per cent.
If the black voting-age minority was increased by de-annexation to 44.8 per cent, two or more additional candidates who appealed to black voters might well be elected. The potential for this happening may be greater than the potential for election of a fifth black voting bloc-supported councilman from what the City has characterized as the "swing ward" in their ward system. For though the City stresses a 40.9 per cent overall black population percentage in this ward, the black voting-age population is only 38.5 per cent.
Since substantial doubt exists that the dilution of the black vote caused by the annexation was eliminated by adoption of the ward plan,
it appears that the white political leadership presently in control of Richmond adopted the ward system for the purpose of doing what they could to maintain the dilution of the black vote produced by annexation. Richmond did not carry the heavy burden we think must be imposed on a city which argues that adoption of a single-member district ward plan purges its discriminatory purpose in annexing white citizens.
In addition to a discriminatory purpose, the annexation also had a discriminatory effect under the Petersburg standard since the ward plan was not "calculated to neutralize to the extent possible any adverse effect upon the participation of black voters." The Master did not find, and indeed on the basis of the evidence before him could not find, that Richmond fashioned its ward plan "to neutralize to the extent possible" the dilution of black voting power caused by the annexation.
As found by the Master on the basis of undisputed testimony before him, Richmond's ward plan was drawn by Dallas H. Oslin, senior planner for the City, without reference to the racial living patterns in Richmond. Oslin, a lone-wolf worker, testified before the Master that the only direction he received from the City was to keep the wards within a four to five per cent variance from population equality
and that he did not even know, beyond rough impressions, the locations of Richmond's black population.
Oslin framed the ward plan on the basis of factors such as "compactness," "physical boundaries," and "likeness of area."
While Richmond could have legitimately taken these factors into account, they should have been accommodated to the goal of minimizing dilution of the black vote.
Our conclusion that the City's ward plan does not "to the extent possible" minimize dilution of the black vote is further buttressed by an alternative ward plan developed and submitted to the court by intervenor Crusade for Voters. The Crusade plan provides for four heavily white wards, four heavily black wards, and a "swing ward" with a 59 per cent black population.
Since this "swing ward," much more than the 40.9 per cent black "swing ward" in the City's plan, provides a candidate supported by blacks an opportunity to be elected to the critical fifth seat on the City Council, Crusade's plan suggests that the City could have done more to compensate for the dilution of black voting power caused by the annexation. Thus even if Richmond had placed this case in the posture of Petersburg by proving the absence of any discriminatory purpose, it would still be an abuse of the heavy responsibility placed upon us by Section 5 to grant the declaratory judgment the City seeks.
Our denial of Richmond's request for a declaratory judgment does not end this case for intervenor Holt, nor did it end the case for the Master. Holt requests and the Master recommends that this court enjoin Richmond to de-annex the land obtained from Chesterfield County in order that a new councilmanic election can be immediately held within the old boundaries of Richmond.
There are indeed strong equities in favor of such an injunction. Since those individuals who were annexed by Richmond must be permitted to be full voting citizens of the community in which they reside, a Richmond election which denied these individuals the vote would require a de-annexation.
Yet the citizens of Richmond living within the old boundaries can voice a strong claim for the immediate conduct of an election within the old boundaries to remove the present City Council. These citizens have not had an opportunity since 1968 to cast a ballot in an election which was not violative of the 1965 Voting Rights Act. The present City Council was elected in the 1970 elections and serves today several years after Richmond was notified that these elections were held in violation of Section 5. The 1970 elections were illegal because they were conducted pursuant to a change in a practice or procedure of voting without approval being obtained from this court or the Attorney General. Our denial of Richmond's request for ex post facto approval of its 1970 change in election practices underscores the illegality of these elections. The Supreme Court has stated that Section 5
essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in the District Court for the District of Columbia holding that a proposed change is without discriminatory purpose or effect. * * *
Georgia v. United States, 411 U.S. 526, 538, 93 S. Ct. 1702, 1709, 36 L. Ed. 2d 472 (1973).
For four years now Richmond has avoided this intended "freezing" effect; intervenor Holt asks only that we return Richmond to the position it would be in today had it followed the procedures of Section 5 in accordance with congressional intent.
The City of Richmond and the Attorney General argue that, whatever the equities, this court does not have jurisdiction to order de-annexation. We disagree. Richmond and the Attorney General base their argument on the first opinion in Beer v. United States, D.D.C., 374 F. Supp. 357 (1974) (hereinafter Beer I). The Beer I court was asked by the City of New Orleans, Louisiana to declare nondiscriminatory in purpose and effect a plan of redistricting for councilmanic elections. New Orleans had not held elections under the new plan for which it sought approval. Several nonincumbent candidates for the City Council in New Orleans petitioned the Beer I court, during its consideration of New Orleans' request, to establish a schedule for councilmanic elections. The court refused to consider the merits of the candidates' petition, stating that it was without power to grant the relief requested.
We think the Beer I case distinguishable on its facts. We are asked merely to employ our equitable power to enforce the mandate of Section 5 that election procedures be frozen in covered states until a declaratory judgment of approval has been obtained from this court. We are asked to declare void and remove the effects of those procedures and practices which were not to be implemented without the approval of this court -- an approval which we herein deny. The Beer I court, which was not presented as are we with the fait accompli of a past election held under illegal practices and procedures, itself enjoined future elections under New Orleans' unapproved redistricting plan.
The Beer I court only balked when it was asked to schedule local councilmanic elections and thus to probe issues "tangential"
to the command of Section 5 that election practices and procedures not be changed without prior approval.
We do not assent to any language in the Beer I opinion which does suggest that this court has jurisdiction only to grant or deny a declaratory judgment sought by a covered state or its subdivision. Such a limitation on our power would remove from us "the broad equitable jurisdiction that inheres in courts" to give effect to the policy of the legislature which they oversee, Porter v. Warner Holding Co., 328 U.S. 395, 403, 66 S. Ct. 1086, 90 L. Ed. 1332 (1946). The Supreme Court again made clear this year that a court is presumed to be able to wield "the inherent powers of an equity court" in implementing a congressional policy with which it is entrusted. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123, 42 U.S.L.Week. 4203, 4209 (February 19, 1974).
* * * Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction." Brown v. Swann, [35 U.S. 497] 10 Pet. 497, 503 [9 L. Ed. 508]. * * *
Porter v. Warner Holding Co., supra, 328 U.S. at 398.
We perceive no clear indication in the Voting Rights Act or its legislative history that Congress, when entrusting this court with responsibility under Section 5, meant to limit our power to enforce the section's direct command that voting practices and procedures not be changed without prior approval.
The Beer I court stressed that Allen v. State Board of Elections, supra, made clear that, while a local three-judge District Court can determine whether a given administrative change is covered by Section 5 and can enjoin its implementation prior to approval if it is covered, only a three-judge District Court in the District of Columbia can declare that a covered change does not have a discriminatory purpose or effect. But we do not think it evident that Section 5's limitation on the power of local three-judge District Courts by placing declaratory judgment authority exclusively in our hands limits our equitable jurisdiction by making this declaratory authority exclusive of all other power.
Though we believe we do have jurisdiction to enforce the direct command of Section 5 by enjoining the annexation in order that councilmanic elections within Richmond's old boundaries can be immediately held, we nonetheless refrain from doing so. Our restraint derives from the same considerations which we suspect ultimately underlay the Beer I court's decision: hesitancy "to become involved in the intricacies of local political redistricting * * * or * * * to take over the traditional responsibility of a local court to resolve questions more conveniently litigable before its bench." Beer I, supra, 374 F. Supp. at 362.
We are particularly influenced by the Supreme Court's handling of the remedial issue in Perkins v. Matthews, supra. Though the Perkins Court held that Canton, Mississippi had violated Section 5 by allowing annexed citizens to vote in its 1969 elections without obtaining prior approval from this court or the Attorney General, the Court refused to set aside the 1969 elections and order immediate new elections within Canton's old boundaries. The Court instead remanded the case to the local three-judge District Court, emphasizing that since the local court was "more familiar with the nuances of the local situation than are we," "the question of the appropriate remedy is for that court to determine, in the first instance * * *."
Perkins involved review of a local District Court's failure to require Canton to submit its changed procedures for approval, and the Supreme Court suggested that the case for ordering new elections under old procedures would be stronger if, as in our case, approval was sought and not obtained.
However, we think the local District Court's familiarity "with the nuances of the local situation" is as relevant here as in Perkins ; we are no more aware of these nuances in our case than was the Supreme Court in Perkins. The local District Court can better balance all relevant factors, including our refusal to grant Richmond a declaratory judgment, in deciding whether to order de-annexation.
As noted above, intervenor Holt has already filed in the District Court for the Eastern District of Virginia an action seeking a judgment that the annexation was without effect for lack of prior approval by the Attorney General or this court. Proceedings in that action have been stayed pending decision in this case. We perceive no reason why Holt cannot repair to the District Court in Virginia and obtain not only fair, but also more fully informed, consideration of his request for de-annexation.
It should be totally clear by this point, however, that our refusal to order de-annexation and immediate new elections does not mean that Richmond is free to hold more elections within its expanded boundaries. Because of our denial of the declaratory judgment it sought, Richmond continues to be restrained by Section 5 from holding elections in which individuals residing within the annexed area are permitted to participate.
The application for declaratory judgment is denied.