or "communities defined by actual shared interests." Miller v. Johnson, 515 U.S. 900, 132 L. Ed. 2d 762, 115 S. Ct. 2475, 2486 (1995).
Plaintiffs overstate the holdings of Shaw I and II when they argue that race must, of necessity, be the "predominant factor" for any settlement of a case under Section 2 of the Voting Rights Act. The Shaw cases apply principally to redistricting cases, when "redistricting legislation . . . is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional distributing principles." Shaw I, 509 U.S. at 642. The Consent Decree did not involve any redistricting within Cleveland County, so Shaw I and II are not directly on point.
While the Election Plan was certainly race-conscious, race-consciousness alone does not necessarily trigger strict scrutiny. The Supreme Court has recognized that local governments could validly "attempt to prevent racial minorities from being repeatedly outvoted" by adopting methods to afford fair representation, so long as sound non-discriminatory principles were used to implement those methods. Shaw I, 113 S. Ct. at 2829 (quoting United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 168, 51 L. Ed. 2d 229, 97 S. Ct. 996 (1977)). It is the classification of individuals on the basis of race, not the mere motivation to facilitate equal opportunity for representatives of all races, that requires heightened scrutiny. Shaw I, 113 S. Ct. at 2828-29.
The Consent Decree does not contemplate any racial classifications among voters. It does not separate voters or distinguish among voters or candidates along racial lines. It treats all voters in the county - black or white - in precisely the same way. Voting occurs county-wide, with no separation of candidates or voters, geographic or otherwise, and each voter has the same number of votes.
The fact that limited voting provides a greater opportunity to elect minority candidates more readily does not render this election feature constitutionally suspect. A limited voting plan is not an unusual voting procedure at odds with traditional principles of voting.
In sum, the limited voting plan in the Consent Decree is constitutionally permissible. It does not guarantee any seats on the Board of Commissioners to blacks, nor does it give black voters any more voting power than other voters.
While the provision of the Consent Decree calling for the appointment of two additional commissioners "representative of the black community" has certain racial overtones, that provision is not a sufficient basis for concluding that the Consent Decree in its entirety should be subject to strict scrutiny. The provision is strictly an interim measure to facilitate the agreement to adopt a permanent racially neutral election process. It does not require on its face that any black commissioners be appointed. The Election Plan requires that, if the two appointed commissioners choose to seek a full term on the Board of Commissioners, they must run for election on an equal basis with all other candidates in 1998.
The Court is reluctant to tinker with the Consent Decree. The Consent Decree was only arrived at after extraordinary negotiations by the parties and the Mediator. When the Court queried the parties during oral argument as to whether a modification of the Consent Decree to deal with the interim appointment of commissioners would be an acceptable compromise, counsel for Plaintiffs and Defendant Board of Commissioners each declined to agree to any modification of the Consent Decree, stating that his client wanted the Consent Decree to be upheld or vacated in its entirety.
B. The Court Does Not Reach Analysis Under Strict Scrutiny
The Consent Decree, when viewed as a whole, is not a race-based measure subject to strict scrutiny, so the Court does not reach the issue of whether the election plan is narrowly tailored to serve a compelling government interest. The Consent Decree is constitutionally permissible.
Plaintiffs' Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment will be denied. Defendants' motion to dismiss will be granted. An appropriate order is attached hereto.
May 19 1997
United States District Judge
This matter is before the Court on (1) Plaintiffs' Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment; (2) Defendant Cleveland County Board of Commissioners' Motion to Dismiss; and (3) Defendant National Association for the Advancement of Colored People's Motion to Dismiss. For the reasons cited in the accompanying Memorandum Opinion, it is hereby
ORDERED that Plaintiffs' motion is denied; and it is
FURTHER ORDERED that Defendants' motion is granted.
United States District Judge