The opinion of the court was delivered by: MCGOWAN
This is a declaratory judgment action brought under the Voting Rights Act of 1965, 42 U.S.C. § 1973 Et seq. It is before the Court on pleadings styled cross-motions for summary judgment, based on evidence developed in a stipulated record. Although the parties recognize that the record presents genuine issues of material fact, they are willing for us to resolve these issues and reach final judgment. This we have done in the following opinion, which shall constitute the Court's Findings of Fact and Conclusions of Law as required by the Federal Rules.
Plaintiff City of Rome (Rome or the City) is a municipality situated in Floyd County, northwestern Georgia. Its 1970 population was 30,759, of whom 23,543, or 76.6%, were white and 7,216, or 23.4%, black. Of its total 1970 voting age population, 79.4% Were white and 20.6% Black; as of 1975, its 13,097 registered voters were 83.9% White and 15.5% Black. The City is administered by a council-manager form of government. Plaintiff Bruce Hamler is the Rome City Manager and plaintiff H. F. Hunter, Jr. is Chairman of the Rome City Commission.
The basic structure of the City's government was established by a Charter enacted in 1918 by the Georgia General Assembly. The charter provided for a Commission of seven members, one from each of seven wards, elected concurrently, at large, and by plurality vote. The same Charter established a Board of Education, consisting of five members elected concurrently, at large, and by plurality vote; unlike the City Commission, however, there was no residency requirement for the Board of Education. In 1929 two additional wards were annexed to the City, making a total of nine, and seats for these wards were provided in the City Commission. Election rules, however, remained substantially unchanged.
Beginning in 1966, and after the November 1, 1964 coverage date of the Voting Rights Act, the Georgia General Assembly through Charter amendment made a number of changes in Rome's election procedures. It enacted a majority vote requirement for Commission and Board of Education general and primary elections and provided for the conduct and timing of runoff elections;
reduced the number of wards from nine to three;
provided that the Commission was to consist of one Commissioner from one of three numbered posts in each of three wards;
increased the size of the Board of Education from five to six;
provided that the Board of Education was to consist of one member from one of two numbered posts in each of three wards and that each candidate had to be a resident of the ward in which he ran;
instituted staggered terms in the Commission and Board of Education;
eased restrictions on voter qualifications;
and transferred voter registration responsibility to the County.
In addition to these changes in voting procedures, some sixty annexations were effected after November 1, 1964 either by state law or by local ordinance.
The parties have developed voluminous evidence bearing on the history and present condition of black political affairs in the City of Rome. On the City's side of the balance sheet, we find that no literacy test or other device has been employed in Rome as a prerequisite to voter registration during the past seventeen years. While registrants were technically required to pass the state literacy or character tests, the affidavits of the City officials responsible for voter registration, supported by the unanimous testimony of black deponents, are to the effect that such tests have never been applied discriminatorily and have not been administered at all in recent years.
Similarly, the City has not employed other barriers to registration with respect to time and place, registration personnel, purging, or re-registration.
Also probative of the lack of discrimination in registration is the fact that black registration remained at a relatively high level throughout the period 1963-74.
Further, at least in recent years there have been no other direct barriers to black voting in Rome. Blacks have not been denied access to the ballot through the location of polling places, the actions of election officials, the treatment of illiterate voters or similar means. Nor is there any evidence of obstacles to black candidacy with respect to slating of candidates, filing fees, obstacles to qualifying, access to voters at polling places, or the like.
Indeed, whites, including City officials, have encouraged blacks to run for elective posts in Rome.
A black, Elgin Carmichael, was appointed to the Board of Education when a vacancy occurred in that body.
The white elected officials of Rome, together with the white appointed City Manager, are responsive to the needs and interests of the black community.
The City has not discriminated against blacks in the provision of services and has made an effort to upgrade some black neighborhoods.
The City transit department, with a predominantly black ridership, is operated through a continuing City subsidy.
And the racial composition of the City workforce approximates that of the population, with a number of blacks employed in skilled or supervisory positions.
In Rome politics, the black community, if it chooses to vote as a group, can probably determine the outcome of many if not most contests.
Thus, many white candidates vigorously pursue the support of black voters.
Several present Commissioners testified that they spent proportionally more time campaigning in the black community
because they "needed that vote to win."
On the other hand, most black voters would prefer to have a black official representing their interests.
Yet there has never been a black elected to political office in the City of Rome. Indeed, only four blacks have ever sought such office. Two of them, M. D. Whatley and Dr. John W. Houser, Jr., ran for the Board of Education in the 1950's and early 1960's, respectively; neither did well.
Another black, Samuel Stubbs, ran in the 1972 Republican primary election for City Commission, and received only 79 votes out of the 276 cast.
By far the strongest black candidate in Rome's history was Rev. Clyde Hill, who ran for the Board of Education in 1970 under the numbered-post, residency ward, majority-win system instituted in 1966.
Rev. Hill ran a vigorous campaign against three white opponents, and, with the strong support of the black community, received a plurality of the votes cast in the general election.
Because he did not receive a majority, however, he was forced into a runoff election with the runner-up and was defeated.
In the years since the failure of Rev. Hill's candidacy, the black community in Rome has been politically apathetic.
It is widely believed among blacks that a black will never be elected to public office in Rome as long as the present majority-win system remains in effect.
A number of qualified blacks will not run for office because in their judgment they could not get a majority of the votes.
Underlying this perception in the black community is a belief that bloc voting by race exists in the City of Rome. Racial bloc voting is a situation where, when candidates of different races are running for the same office, the voters will by and large vote for the candidate of their own race.
Unfortunately, a statistical demonstration of the existence Vel non of racial bloc voting is impossible in the present case.
There is, however, other evidence of record probative of the existence of racial bloc voting.
First, the virtually unanimous testimony of black deponents was that, given a choice, voters in Rome will tend to vote for the candidate of their own race.
However, some deponents also opined that a given black candidate could pick up significant white support, although not enough to win.
White officials, on the other hand, unanimously testified that racial bloc voting does not exist in Rome.
Much of this opinion testimony, of course, is based on inferences drawn from the results in previous elections, particularly that involving Rev. Hill facts which more effectively speak for themselves. However, the testimony would also appear to reflect inferences drawn from these long-time residents' knowledge of the racial atmosphere in Rome.
See Fed.R.Evid. 701. To this extent, the inference that bloc voting does exist is the more credible and rational one, because the white officials testifying to the contrary are "interested witness(es)," See City of Richmond v. United States, 422 U.S. 358, 377, 95 S. Ct. 2296, 45 L. Ed. 2d 245 (1975), because a belief in racial bloc voting was the predicate for decisions by a number of black deponents not to run for elective office, and because other relevant evidence interacts with and supports the conclusion that a substantial degree of racial bloc voting exists.
Rev. Hill's campaign is perhaps the clearest indication of the extent of racial bloc voting in Rome. With the solid support of the black community, Rev. Hill, as we have noted, achieved a plurality of the votes cast in the general election. In his losing runoff campaign, however, he picked up only 221 additional votes while his opponent gained 500. Moreover, although a lower turnout might have been expected for a runoff election involving a single Board of Education seat, 171 more votes were cast in the runoff than in the general election.
The most reasonable explanation for these results is that the white community, confronted with the imminent prospect of a black being elected, coalesced to defeat Rev. Hill. At the same time, it is probable that Rev. Hill did receive a sizable number of white votes. Even assuming that Rev. Hill's vigorous campaign impelled an unprecedented number of blacks to the polls, this factor alone probably cannot account for his 45% Runoff tally in a town of roughly 15% Black registration.
Finally, Dr. James W. Loewen, a political sociologist, testified as an expert witness that racial bloc voting existed in Floyd County during the 1968 Democratic United States Senate primary between Herman Talmadge and Maynard Jackson. Dr. Loewen concluded that at a minimum 88.9% Of the whites in Floyd County voted white and approximately 76.2% Of the blacks voted black.
The value of this testimony, of course, must be discounted by the fact that the Jackson-Talmadge race involved state and national rather than local issues, occurred more than a decade ago, and was analyzed on a county-wide rather than city-wide basis. Nevertheless, despite these cautionary factors, Dr. Loewen's testimony is probative of the existence of racial bloc voting in Rome. Taking these three strands of evidence together the testimony of black deponents, the results of Rev. Hill's campaign, and the conclusions of the expert witness we find that a substantial measure of racial bloc voting does exist in the City of Rome.
The present litigation was seeded on June 15, 1974, when the City submitted an annexation to the Attorney General for approval pursuant to section 5 of the Voting Rights Act.
As a result of his investigation,
the Attorney General discovered that the other annexations and voting changes described above, See text accompanying notes 3-11 Supra, had not been submitted for pre-clearance either to him or to this Court as required by section 5.
Eventually, Rome submitted all but one of these changes to the Attorney General for preclearance.
During the course of the administrative proceedings the Attorney General failed to object or withdrew his objections to, and thereby pre-cleared, the following: (1) 47 of the 60 annexations; (2) the reduction in wards from 9 to 3; (3) the increase in size of the Board of Education from 5 to 6; and (4) the easing of restrictions on voter qualifications. The Attorney General did object, however, to (1) 13 annexations, insofar as they relate to City Commission elections; (2) (a) majority vote, (b) runoff,
(c) numbered post, and (d) staggered term provisions for City Commission and Board of Education elections; and (3) the residency requirement for Board of Education elections.
After the Attorney General refused to reconsider his decision, plaintiffs filed the present lawsuit. During the course of the litigation, two of plaintiffs' claims (Counts I and V of their amended complaint) were eliminated,
and the remaining issues are essentially four in number. Plaintiffs contend that Rome is entitled to "bail-out" from coverage pursuant to section 4 of the Act (Count II); that some or all of the objected-to changes have already been administratively pre-cleared (Count III); that section 5 is unconstitutional (Count IV); and that the disputed changes have neither the purpose nor the effect of denying or abridging the right to vote on the basis of race or color (Count VI). The first three of these are either pure questions of law or issues as to which the facts are undisputed, and are therefore appropriately disposed of on summary judgment. The fourth question does involve genuine issues of material fact, but because, as we have noted, the parties are willing for us to reach a judgment based on the stipulated record, we make Findings of Fact and Conclusions of Law on this count also.
As an initial matter, the City seeks to "bail-out" from section 5's coverage by invoking the declaratory judgment procedure of section 4(a). Under the structure of the Act, the jurisdictions subject to section 5's preclearance procedures are those "with respect to which the prohibitions set forth in (section 4(a)) are in effect."
in turn, prohibits the use of tests or devices
as prerequisites to voting (1) "in any State" which the Attorney General has determined to fall within the coverage formulae of section 4(b)
or (2) in "any political subdivision with respect to which such determinations have been made as a separate unit." However, section 4(a) further provides that "such State or subdivision" may exempt itself or, as it is sometimes called, "bail-out" from these prohibitions by bringing a declaratory judgment action before this Court and establishing that "no such test or device has been used during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." The statutory circle is completed with reference back to section 5: if a jurisdiction succeeds in its bail-out action, the prohibitions of section 4(a) are no longer effective and therefore the jurisdiction is not subject to section 5 preclearance.
The issue of whether municipalities in covered states may independently seek to bail-out is apparently one of first impression.
In arguing its entitlement to such a remedy, the City lays great stress on the recent Sheffield decision, United States v. Board of Commissioners, 435 U.S. 110, 98 S. Ct. 965, 55 L. Ed. 2d 148 (1978), in which the Supreme Court held that when an entire state is subject to the Act, its political subunits must comply with section 5 even though they may not be "political subdivision(s)" as that term is defined in section 14(c)(2) of the Act.
The Supreme Court reaffirmed the Sheffield holding, after argument in the present case, in Dougherty County Board of Education v. White, 439 U.S. 32, 43-47, 99 S. Ct. 368, 375-77, 58 L. Ed. 2d 269 (1978). Rome argues that if municipalities are now to be subject to section 5, it would be anomalous and unfair if they are not permitted to bail-out from the Act's coverage under section 4(a).
In statutory terms, the issue is whether Rome is a "State" or "(political) subdivision" within the meaning of section 4(a). Rome argues that in light of Sheffield, it must be considered a "political subdivision" for purposes of section 5 and, by implication, section 4. We see little merit to this position. Sheffield did Not hold that municipalities within covered states are "political subdivision(s)"; quite to the contrary, the Court concluded that "(w)here . . . a State has been designated for coverage, the meaning of the term "political subdivision' has no operative significance in determining the reach of § 5: the only question is the meaning of "(designated) State' ". 435 U.S. at 126, 98 S. Ct. at 976. Moreover, even if Rome were considered a "political subdivision" its cause would not be furthered. The section 4(a) bail-out remedy applies, not to all subdivisions, but only to those the Attorney General has determined to be covered "As a separate unit " an event which has not occurred in Rome's case.
Although Rome is clearly not a "political subdivision" for purposes of section 4(a), a stronger argument can be made that, under Sheffield, it is a "State" within the meaning of that section. The Court in Sheffield interpreted section 4(a)"s prohibition of tests or devices "in any State" to import a geographical reach. It then inferred that in light of the close connection between sections 4 and 5, the "State(s)" required to seek judicial or administrative preclearance for voting changes under section 5 included not only covered States themselves but also all subsidiary political units within their borders. By like reasoning, it would seem that the "State(s)" entitled to bring section 4(a) bail-out actions should also include political subunits within covered states. Hence, it could be argued, Rome, considered as a "state," should be entitled to its bail-out action here.
Despite the abstract force of this approach, we are unwilling to use logic as a means of subverting congressional intent. See Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 44 L. Ed. 2d 525 (1975); United States v. American Trucking Associations, 310 U.S. 534, 542-44, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940). And the intent of Congress in the present case is crystal clear. The House Report on the bill that became the Voting Rights Act explicitly rejected Rome's theory: "(The) opportunity to obtain exemption is afforded only to those States or to those subdivisions as to which the formula has been determined to apply as a separate unit; Subdivisions within a State which is covered by the formula are not afforded the opportunity for separate exemption." H.R.Rep.No. 439, 89th Cong., 1st Sess. 14 (1965), U.S.Code Cong. & Admin.News 1965, pp. 2437, 2445 (emphasis added) (hereinafter cited as H.R.Rep.). The same point was made by 12 members of the Senate Committee expressing their joint individual views: "We are also of the view that an entire State covered by the test and device prohibition of section 4 must be able to lift the prohibition if any part of it is to be relieved from the requirements of section 4." S.Rep.No. 162, Pt. 3, 89th Cong., 1st Sess. 16 (1965) U.S.Code Cong. & Admin.News 1965, p. 2554 (hereinafter cited as S.Rep.); See also id. at 21.
Moreover, the construction urged upon us by the City could well lead to many of the same evils whose existence in 1965 prompted passage of the Voting Rights Act. Congress was aware that existing legislation had not succeeded in implementing the Fifteenth Amendment and eliminating the blight of racial discrimination in voting. Efforts to accomplish these goals through case-by-case adjudication had proved ineffective because they were "onerous to prepare" and "exceedingly slow" to produce results. South Carolina v. Katzenbach, 383 U.S. 301, 314, 86 S. Ct. 803, 811, 15 L. Ed. 2d 769 (1966). And even when litigation was successful, some of the affected jurisdictions "merely switched to discriminatory devices not covered by federal decrees." Id. To combat these twin evils of burdensome case-by-case litigation and persistent "obstructionist tactics" by the affected jurisdictions, Congress enacted a series of stern measures, including section 5, to "shift the advantage of time and inertia from the perpetrators of the evil to its victims." Id. at 328, 86 S. Ct. at 818.
Even more troublesome is the possibility that covered States could circumvent the purposes of the Act simply by causing their subjurisdictions that have successfully pursued a bail-out remedy to engage in discriminatory practices.
In the words of the Senate Committee members, "in most of the States affected by section 4 local boards of registration are so closely and directly controlled by and subject to the direction of State boards of election and, indeed, the State legislature that they would be required to misapply tests and devices, irrespective of their own inclinations, if this suited the general policy of the State government." S.Rep., supra, at 16, U.S.Code Cong. & Admin.News 1965, p. 2554. Similar considerations were a motivating factor in the Sheffield and Dougherty County cases. The Court observed that exempting municipalities from section 5 "would invite States to circumvent the Act . . . by allowing local entities that do not conduct voter registration to control critical aspects of the electoral process." Sheffield, Supra, 435 U.S. at 125, 98 S. Ct. at 976; Accord, Dougherty County, supra, 99 S. Ct. at 375.
In sum, then, we conclude that despite any logical inference that might be drawn from Sheffield, the reasoning of that case coupled with the legislative history and overarching purposes of the Voting Rights Act compel the conclusion that political subunits of a covered state cannot independently bring a section 4(a) bail-out action.
The City next argues that certain of its election rules, namely the majority vote, runoff election, and numbered post provisions, have in fact already been precleared by the Attorney General. As we have noted, See text accompanying notes 3-11 Supra, these provisions were adopted as part of Rome's Charter in 1966. In 1968, the State of Georgia enacted a comprehensive Municipal Election Code (1968 Code), submitted it to the Attorney General, and obtained preclearance thereof. Rome argues ...