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United States of America v. Euclid City School Board

July 13, 2009


The opinion of the court was delivered by: Judge Kathleen O'malley



The Court today considers what appears to be a matter of first impression within this circuit. The parties before it have stipulated that Defendant Euclid City School Board (the "Board") has violated § 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 ("Section 2"). It is uncontroverted that minorities in Euclid have been systematically denied the opportunity to elect their preferred candidates to the Board. So, too, the parties agree that the Board must be given an opportunity to propose a legally acceptable remedy for this past discrimination before this Court may consider alternatives. There, however, agreement ends: the parties suggest sharply different approaches to evaluating whether a remedy is "legally acceptable" and propose starkly different changes to the Board's electoral mechanism for selecting its membership.

The United States argues that a remedy is not legally acceptable unless it is reasonably expected to result in the election of minority-preferred candidates based on past minority voting patterns. In particular, the United States argues that a legally acceptable remedy is one that will necessarily result in roughly proportional representation, even if minority turnout is substantially lower than non-minority turnout. Because the United States argues that the Board's proposed remedies (noted below) do not satisfy this standard, the United States argues that the Court should fashion an acceptable remedy of its own, which, it asserts, is one that would cease use of the Board's current at-large election system. In particular, the United States has proposed that the Board be divided into five single-member districts, with one of those single-member districts designed so as to contain a large enough African-American population to ensure the election of an African-American candidate.*fn1

The Board, for its part, counters that a legally acceptable remedy need only provide the opportunity for meaningful participation. The Board asserts that historical turnout patterns are of no moment, and argues that a remedy is legally acceptable even when it requires that minority turnout increase substantially from historical norms for minorities to achieve actual representation in the political process. They argue that a plan is legally acceptable so long as it would provide representation were minorities to vote at the same rate as non-minorities. To that end, the Board proposes two different possible systems: cumulative and limited voting. In both proposals, the Board seeks to maintain its current size, the current at-large voting structure, and the current system of using staggered terms (i.e., in alternating odd years, electing three members and then two members for four year staggered terms to the five seat Board).

After careful consideration, while, for reasons explained below, the Court ultimately rejects both parties' legal theories, it orders implementation of one of the Board's alternative remedies: limited voting. In sum, the Court finds the Board's suggestion that the Court ignore historical turnout rates in its evaluation of a proposed remedy under Section 2 unpersuasive. Minority voters in Euclid have historically turned out to vote at only a fraction of the rate of non-minorities, in part due to the longstanding absence of a meaningful opportunity to participate in the political process. A legally acceptable plan must accommodate this reality; a remedial plan cannot ignore historical reduced minority turnout resulting from the very discriminatory practices that violated the Voting Rights Act in the first instance. This Court also finds, however, that the United States is mistaken as well. The province of a court is to ensure genuine opportunity for all citizens, not to guarantee particular electoral results. Applying what it believes to be an appropriate and considered approach to the remedial analysis required in this context, the Court concludes that the Board's limited voting proposal is an acceptable and appropriate remedy for the Section 2 violation at issue here. Thus, the Court concludes that the DEFENDANT has proposed a legally acceptable remedy and ORDERS the Board and the Cuyahoga County Board of Elections to implement LIMITED VOTING for the Euclid City School Board elections, as described below.


The Board has conceded that its current method of elections denies minorities the opportunity to participate meaningfully in the political process, in violation of Section 2. (Stipulation of December 2, 2008 ("Stip.") (Doc. 2).) This stipulation is based in part on the conclusions reached by this Court during prior litigation (see id. at ¶ 12), which considered the very same electoral population before the Court today, see United States v. City of Euclid ("Euclid I"), 580 F. Supp. 2d 584 (N.D. Ohio 2008); United States v. City of Euclid ("Euclid II"), 523 F. Supp. 2d 641 (N.D. Ohio 2007).*fn2 Findings from that litigation are thus incorporated into this record.

A.Euclid's Demographics

The City of Euclid is experiencing rapid demographic changes. While African-Americans represented a mere one-half of one percent of Euclid's total population during the 1970's, this figure increased to 7.8% during the 1980s. Id. at 587. By the 1990 Census, 16.2% of Euclid's total population was African-American and, over the next ten years, the percentage of African-Americans nearly doubled again, to 30.5%. Id. The proportionate growth of African-Americans has continued to increase rapidly to this day, and African-Americans now compose 44.6% of the total population according to the American Community Survey ("ACS") for 2005-2007.*fn3

Indeed, the population of Euclid is shifting so rapidly that this Court considers meaningfully different demographic data in this case than it did in Euclid I and Euclid II. Those cases relied upon the 2000 Census, the most reliable information available at the time of those decisions. See Euclid I, 580 F. Supp. 2d at 594 ("The government's demographic information is derived from the 2000 Census. While the City has attacked the use of this data as outdated, despite an opportunity to do so, the City has never provided reliable updated data which would give the Court an alternative benchmark against which to measure the issues presented."). This case, conversely, relies upon the more current ACS data. Of particular relevance, African-Americans comprised only 27.8% of the Voting Age Population ("VAP") during the 2000 Census, id. at 612, but now compose 40.2% of the VAP. (Euclid Br. of March 2, 2009, Ex. 3 at 8 (Doc. 20-4).) A comparison of either total population or VAP reveals that African-Americans have increased as a percentage of the population by approximately 50% since the 2000 Census, a significant increase by any measure.

B.The Current Method of Electing Euclid's School Board

In Euclid, Board members are currently elected on an at-large basis. (Stip. ¶ 6.) The Board consists of five members, each of whom are each elected in odd-numbered years to four-year staggered terms. (Id.) Euclid voters, consequently, elect either two or three Board members every other year. (Id.) Three Board members will be elected in 2009, and two will be elected in 2011. (Id.)

This method of election is, to some extent, governed by state law. In particular, the State of Ohio mandates both staggered and four-year terms. See O.R.C. §§ 3313.08 -- 3313.09. The Board does have some control over its size, which can range from between 2 and 7 members. See O.R.C. § 3313.02. Should the population of Euclid fall below 50,000 in the next decennial Census, however, State law would cap the Board at its current membership level. See id.

C.Summary of African-American Participation in Euclid Politics

Until last year, no African-American had ever been elected to serve as mayor, Council Member, or Board Member in the City of Euclid. Euclid I, 580 F. Supp. 2d at 589. Indeed, the first African-American to win an election in the City of Euclid, Kandace Jones, was elected only after this Court ordered redistricting and a special election. Id. at 587. She is, however, the only African-American to be elected to any of the aforementioned positions, even though, for example, three African-Americans have run for school board since 1987 and ten have run for city council since 1981.*fn4

Likely both a cause and effect of the above, historical African-American turnout in Euclid has been extraordinarily low. See Euclid I, 580 F. Supp. 2d at 604 ("[L]ow voter turnout has often been considered the result of the minority's inability to effectively participate in the political process." (citation omitted)). The United States estimates, and the Board does not dispute, that only 7.4% of the African-American VAP participated in the 5 city-council elections between 1995 and 2003, compared to 32.0% of the non-minority VAP. (Plaintiff's Br. of April 17, 2009, Ex. A at 4.)*fn5 Both parties, moreover, seem to accept that African-American participation in Board elections during that time period were likely very similar. It is noteworthy, however, that African-American turnout for the individual races including an African-American candidate was markedly higher, ranging from 7.9% in one 1995 contest to 17.0% in a 2001 race. (Id. at 11.)*fn6

It is also notable that the parties were not able to make more recent turnout estimates available to the Court. For example, no evidence was presented to the Court about whether the rapidly shifting demographics in Euclid, this Court's Euclid I and Euclid II orders, the fact that an African-American was elected to city council in March of 2008, or the last presidential election have had any impact on African-American voter turnout in Euclid. The parties simply do not provide any turnout estimates for the past 5 years. While this may be a fairly short period of time in other circumstances, as noted below, it is meaningful here.


A.Liability under Section 2 of the Voting Rights Act

The Voting Rights Act prohibits any State or political subdivision from imposing or applying "any qualification or prerequisite" to voting or "any standard, practice, or procedure" 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 membership in a language minority group. 42 U.S.C. § 1973. A court should inquire only as to whether a "standard, practice, or procedure" has the effect of denying minority voters the same opportunity to "participate in all phases of the political process as other citizens enjoy." S. Rep. No. 97-417 at 28. It is, therefore, unnecessary to show discriminatory intent to establish a violation of Section 2. Euclid I, 580 F. Supp. 2d at 590; see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482 (1997) ("[P]roof of discriminatory intent is not required to establish a violation of Section 2. . . . The Voting Rights Act is the best example of Congress' power to enact implementing legislation that goes beyond the direct prohibitions of the Constitution itself." (citation omitted)).*fn7

It is appropriate for a district court to credit stipulations when determining the existence of a Section 2 violation. See Dillard v. Crenshaw County ("Dillard I"), 649 F. Supp. 289, 291 (M.D. Ala. 1986). Nevertheless, a court must confirm that the parties before it have indeed stipulated to all of the elements establishing liability. See Brooks v. State Bd. of Elections, 848 F. Supp. 1548, 1559-1560 (S.D. Ga. 1994) ("[T]he factual record is deficient for the purpose of evaluating the merits of this case under Section 2. . . . [Because] the Proponents' stipulations are not unconditional or undisputed.").

Liability under Section 2 is established when a plaintiff can demonstrate the existence of racial bloc voting and a court then finds that, based on a totality of the circumstances, minorities have been denied equal opportunity to participate in the political process. Euclid I, 580 F. Supp. 2d at 593. The Supreme Court has explained that a plaintiff must show the existence of three preconditions to establish racial bloc voting:

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters' inability to elect its candidates. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it -- in the absence of special circumstances, such as the minority candidate running unopposed -- usually to defeat the minority's preferred candidate.

Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). These three preconditions have come to be known as the "Gingles preconditions."

The establishment of racial bloc voting under Gingles gives rise to a presumption of liability and "it would be the 'unusual case in which the plaintiffs can establish the existence of [racial bloc voting] but still have failed to establish a violation of [Section] 2 under the totality of the circumstances.'" Euclid I, 80 F. Supp. 2d at 593 (quoting Teague v. Attala County, 92 F.3d 283, 293 (5th Cir. 1996)).*fn8 This Court explained the framework for the totality of the circumstances analysis in Euclid I:

[T]here are no limits on the circumstances a Court may consider when making this inquiry, [but] guidance does exist in the form of a non-exhaustive list of factors found in the Senate Report that accompanied the 1982 amendments to the Voting Rights Act (the "Senate Factors"). While not prerequisites themselves, and not the exclusive inquiries, courts regularly employ these factors as the first lines of inquiry in assessing the totality of the circumstances surrounding the voting practices and patterns in the relevant district or subdivision. The seven Senate Factors are:

1. 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;

2. The extent to which voting in the elections of the state or political subdivision is racially polarized;

3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. If there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

6. Whether political campaigns have been characterized by overt or subtle racial appeals;

7. The extent to which members of the minority group have been elected to public office in the jurisdiction.

See S. Rep. No. 97-417, at 28-29 (footnotes omitted). The Senate Report recognized two further factors that, in some cases, warrant consideration as part of plaintiffs' evidence to establish a violation: (1) "whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;" and (2) whether "the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous." Id. at 29 (footnotes omitted).

The Senate Report observed that, while all of the factors "assist the court in determining whether, in the totality of the circumstances, vote dilution exists," it is not necessary that "any particular number of factors be proved, or that a majority of them point one way or the other." Id.

Since the 1982 amendments, courts have recognized two additional factors that are probative of the existence of vote dilution. The first additional factor, proportionality, compares the number of existing majority-minority districts to the minority population percentage. See De Grandy, 512 U.S. at 1014 n.11. Unlike Senate Factor Seven, which looks to the "political or electoral" success of minority candidates, proportionality looks to "the political or electoral power of minority voters." Old Person v. Brown, 312 F.3d 1036, 1042 (9th Cir. 2002) (quoting De Grandy, 512 U.S. at 1014 n.11). The second additional factor is racial separation. "[O]n-going racial separation . . . -- socially, economically, religiously, in housing and business patterns -- makes it especially difficult for [minority] candidates seeking county-wide office to reach out to and communicate with the predominantly white electorate from whom they must obtain substantial support to win . . . at-large elections." United States v. Charleston County, 316 F. Supp. 2d 268, 291 (D.S.C. 2003), aff'd, 365 F.3d 341 (4th Cir. 2004); see McMillan v. Escambia County, 688 F.2d 960, 967-68 (5th Cir. 1982), factual findings adopted by 748 F.2d 1037 (5th Cir. 1984). This factor differs from Senate Factor Five in that racial separation serves as a barrier to minority candidates while socioeconomic disparities serve as a barrier to minority voters.

Euclid I, 80 F. Supp. 2d at 591-93 (select citations omitted). Ultimately, "[t]he central and dispositive question is 'whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.'" Charleston County, 316 F. Supp. 2d at 298 (quoting Gingles, 478 U.S. at 63) (emphasis added). In this case, the Court answers this question in the affirmative, with ...

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