489 F2d 273 Cherry v. County of New Hanover

489 F.2d 273

Charles CHERRY and Chester Reddrick, Appellants,
COUNTY OF NEW HANOVER et al., Appellees.

No. 73-1633.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 8, 1973.
Decided Dec. 19, 1973.

Frank Cherry, Greensboro, N.C., for appellants.

David A. Nash, Charlotte, N.C. (William L. Hill, II, and Hogue, Hill & Jones, Wilmington, N.C., on Brief) for appellee New Hanover County Bd. of Ed.

Lionel L. Yow, Wilmington, N.C. (Cicero P. Yow and Yow & Yow, Wilmington, N.C., on Brief) for appellee City of Wilmington.

James C. Fox, Wilmington, N.C. (Murchison, Fox & Newton, Wilmington, N.C., on Brief) for appellee New Hanover County.

Before CLARK, Associate Justice, Supreme Court, Retired,* and CRAVEN and WIDENER, Circuit Judges.


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Plaintiffs brought this action in district court challenging the staggered-term voting system1 used to elect members of the City Council, County Board of Commissioners, and the Board of Education. In their complaint below appellants urged that such a system violated their 'constitutional right to elect members of their race to public office' under the fourteenth and fifteenth amendments because it was one method by which appellees 'dilute the voting power of the plaintiffs and other Negro citizens . . ..' To support this allegation plaintiffs stated that 25 percent of the population of the city of Wilmington and 20 percent of the population of New Hanover County is black yet no black has ever been elected to office. The district judge found (1) that the staggered voting system does not violate the Constitution of the United States or the civil rights of plaintiffs and (2) that the complaint failed to state a claim upon which relief could be granted. We affirm.


Construing the allegations of the pleadings in their most favorable light, no valid claim for relief is stated under the fourteenth or fifteenth amendments. Appellants do not have a constitutional right to elect members of their race to public office, see Whitcomb v. Chavis, 403 U.S. 124, 156-160, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), and, absent other allegations infringing their right to vote, they have presented no cognizable claim. We find nothing in the complaint indicating interference with Negroes' rights to register to vote, to choose a political party, or otherwise to participate in local elections. Nor do plaintiffs challenge the system of atlarge voting within the single multimember district as designed 'to minimize or cancel out the voting strength of racial or political elements of the voting population.' Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). See Zimmer v. McKeithan, 485 F.2d 1297 (5th Cir., 1973) (en banc), rev'g 467 F.2d 1381. Rather their complaint is aimed solely at the staggered-term voting system. There is no allegation that this system was adopted purposefully as a device to further historically engrained racial discrimination. See White v. Register, 412 U.S. 755, 766-770, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). With the district judge, we are unable to perceive invidious discrimination in a staggered-term voting system.




Sitting by Designation


The staggered-term voting system adopted by New Hanover County with respect to the election of the Board of County Commissioners and by the city of Wilmington in the election of its City Council is one of several options made available to local governmental units under the terms of N.C.G.S. 153-16 and N.C.G.S. 160A-101, respectively. The staggered system for election of County Boards of Education is obligatory under N.C.G.S. 115-19

The system works as follows: the Board of Commissioners and City Council each have five seats; the Board of Education, six. All offices are for a term of four years. At one election three seats on each body are filled; at the next election two years later two seats on the City Council and Board of Commissioners and three seats on the Board of Education are filled. The voting is at-large rather than according to districts, i.e. there is a single multi-member district composed of either the county (Board of Commissioners and Board of Education) or the city (City Council).