Emison v. Growe

¶1concurring as to those parts of this decision relating to congressional reapportionment, and dissenting as to the parts of this decision relating to legislative reapportionment.

¶2Since I believe neither the law nor the facts justify the majority opinion regarding legislative reapportionment, I dissent. On December 5, 1991, a majority of this Court enjoined the Minnesota state district court from any further proceedings in Cotlow v. Growe, No. C8-91-985 (Minn.Sp.Redistricting Panel), a case pending before the state court on the issue of legislative and congressional redistricting. That injunction was summarily and unanimously vacated by the Supreme Court of the United States on January 10, 1992. I dissented from the issuance of the injunction and stated, in part, as follows:

I do not agree that the state court should be enjoined from proceeding with its plan of reapportionment. I see no reason why that court is not fully able to consider and decide the reapportionment issues presented to it.

In addition, [the order of the state court] seems completely appropriate both as to the law and as to the reapportionment plan it proposes. Clearly Chapter 246 represents state policy which,- in my judgment, must be the cornerstone of any new reapportionment plan. The amendments made to Chapter 246 by the state court ... are an attempt by the state court to follow the state policy provided in Chapter 246.

¶3(Footnotes omitted.)

¶4The majority now makes a last-minute attempt to thwart legitimate state policy and to prevent the state court plan from being implemented. I continue to strongly believe that the unvetoed law enacted by the Minnesota Legislature, that is, Chapter 246, must be the starting point for any reapportionment plan, and that the majority opinion clearly ignores the law in its failure to recognize that state policy.

¶5The role of courts in reapportionment cases is narrowly circumscribed. The United States Supreme Court has made clear that reapportionment is primarily an issue for the political branches, and that “[i]n fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor ‘intrude upon state policy any more than necessary.’ ” Upham v. Seamon, 456 U.S. 37, 41-42, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1983) (citing White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354, 37 L.Ed.2d 335 (1973)). A court-ordered reapportionment plan must reconcile the requirements of the federal constitution with the goals of state policy; “[a]n appropriate reconciliation ... can only be reached if the district *450court’s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect.” Id.456 U.S. at 43,102 S.Ct. at 1522. The Supreme Court has therefore held that a district court impermissibly intrudes on state policy when, in choosing between two possible court-ordered redistricting plans, it fails to choose the plan that most closely approximates the state-proposed plan. Id. at 42, 102 S.Ct. at 1521 (citing Weiser, supra).

¶6In the instant case, this Court has before it a lawfully enacted reapportionment plan, a plan that embodies the state policy of Minnesota regarding the apportionment of Minnesota’s own legislative districts. Faced with choosing between a plan based on Minnesota’s reapportionment legislation and plans unrelated to that legislation, this Court’s obligation is clear: it errs if it does not choose the plan that is modeled on, and most closely approximates, the state policy as evidenced by the legislation. See id.The plan of the Minnesota state district court is based upon Chapter 246.1 Chapter 246 is not perfect, but neither is it fatally flawed. Indeed, the Minnesota court properly found that constitutional defects in Chapter 246 could be cured and, in accordance with the mandate of the United States Supreme Court, made the adjustments necessary to render the plan constitutionally sound.2Cotlow v. Growe, No. C8-91-985 (Minn.Sp.Redistricting Panel, Dec. 9, 1991). Under these circumstances, in my opinion, the proper role of this Court is to either stay its hand and allow the state court plan to proceed or to defer to Minnesota’s legislative reapportionment policy by adopting the state court plan as our own.

¶7I. The Alleged Voting Rights Violations

¶8The majority, in an extraordinary act of reaching out, concludes that voting rights violations exist and that it is therefore justified in brushing aside state policy in favor of its own reapportionment preferences.3 This Court is of course obligated to ensure that any plan it adopts safeguards voting rights; as the United States Supreme Court has noted, the sole limitations on judicial deference to state apportionment policy are the substantive constitutional and statutory standards to which reapportionment plans are subject. Upham, 456 U.S. at 42, 102 S.Ct. at 1521. For several reasons, however, I cannot agree that voting rights violations have been proven in this case.

¶9First and foremost, as far as voting rights are concerned,4 the plaintiffs’ allega*451tion is that because of population shifts, the apportionment plan established by court order in 1982 now dilutes minority voting rights in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The 1982 court-ordered apportionment, however, was superseded when the legislature passed Chapter 246 and the state court declared Chapter 246 to be validly enacted law. When Chapter 246 became law, plaintiffs’ allegations of voting rights violations in the 1982 apportionment were rendered irrelevant. Significantly, no party to this suit has alleged, much less proved, that Chapter 246 violates section 2 of the Voting Rights Act; rather, plaintiffs have asserted only that their proposed plan “better” preserves the political power of minorities. There is no requirement, however, that a lawfully enacted reapportionment plan that complies with the Voting Rights Act be set aside in favor of an allegedly “better” plan.5

¶10Secondly, there is in my opinion simply no evidence in the record to support the majority’s determination that an unlawful dilution of minority voting rights has been proven. As an initial matter, I am not persuaded by the majority’s conclusion that this court is not bound to follow the three-part Gingles test in determining whether dilution has occurred. Reasoning that there are no salient differences between challenges to multi-member districting schemes and challenges to single-member districting schemes, numerous courts have concluded that the Gingles test applies to both types of voting rights challenges. See, e.g., Jeffers v. Clinton, 730 F.Supp. 196, 205 (E.D.Ark.1989), aff'd, — U.S. -, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991); McDaniels v. Mehfoud, 702 F.Supp. 588, 591 (E.D.Va.1988), app. dismissed, 927 F.2d 596 (4th Cir.1991); Hastert v. State Board of Elections, 111 F.Supp. 634, 655 (N.D.Ill.1991); Neal v. Coleburn, 689 F.Supp. 1426, 1435 (E.D.Va.1988); Williams v. City of Dallas, 734 F.Supp. 1317, 1413 (N.D.Texas 1990); see also Romero v. City of Pomona, 883 F.2d 1418, 1423 (9th Cir.1989) (concluding that the three-part Gingles test merely explains which of the indicia of dilution are most relevant in proving a section 2 violation). There has been, in this case, no effort to establish that the Gingles requirements can be met.

¶11Even if the three-part Gingles test does not apply in this case, however, I cannot agree with the majority that the record establishes that voting rights violations exist. Before addressing the precise standard to be applied to section 2 challenges to multi-member districting plans, the Gingles Court reiterated the basic principles that must guide courts considering voting rights cases. The Court noted that although the legislative history accompanying section 2 sets forth a flexible, fact-intensive test for section 2 violations, it also places three limitations on the circumstances in which section 2 violations may be proved:

First, electoral devices ... may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral *452process____ Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation____ Third, the results test [set forth in § 2 and its legislative history] does not assume the existence of racial bloc voting; plaintiffs must prove it----

¶12Gingles, 106 S.Ct. at 2764 (citations omitted). I believe that in concluding that voting rights violations have been established in this case, the majority disregards each of these three basic principles of voting rights jurisprudence.

¶13The majority’s holding is, in effect, a conclusion that a redistricting plan that does not contain a super-majority minority senate district in Minneapolis is an electoral device that is per se violative of section 2.6 In an effort to establish that the totality of the circumstances show that a plan without a super-majority minority district results in unequal access to the electoral process, the majority searches far beyond the record, ultimately coming to rest upon four supposed indicia of unequal electoral access: a provision of the Minnesota Constitution (repealed more than a century ago) limiting voting rights to white persons, two school desegregation cases from the 1970s, a newspaper article reflecting performance gaps between minority and non-minority students in Minneapolis, and the fact that Chapter 246 pits no incumbent Minneapolis senators against each other. Problems such as school segregation and academic performance gaps, as well as past instances of discriminatory voting practices, are undeniably matters of concern for our society; from the record before this Court, however, I am unable to conclude that the problems reflect or result from minority vote dilution at the legislative level. The majority’s reliance on these indicia to augment a silent record strains credulity.

¶14Having concluded that a districting plan without a super-majority minority senate district in Minneapolis is a dilutive electoral mechanism, the majority violates the second basic principle of voting rights jurisprudence by concluding that the conjunction of that device and a lack of proportional representation in Minneapolis establishes a violation of section 2. The number of minority legislators from Minneapolis is not proportional to the percentage of minorities who live in Minneapolis. The only minority representative from Minneapolis currently serving in the Minnesota Legislature was elected from a super-majority minority district.7 Therefore, the majority reasons, the lack of proportional representation flows from the absence of sufficient super-majority minority districts in Minneapolis. Section 2, however, specifically cautions against resting findings of voting rights violations on the lack of proportional representation. See 42 U.S.C. § 1973(b) (“nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population”).

¶15Finally, rather than requiring the plaintiffs in this case to prove the existence of racial bloc voting,8 the majority assumes its existence. As the Gingles court recognized, “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim.” Id.106 S.Ct. at 2769 (citations omitted). The existence of racial bloc voting is typically proven by statistics that correlate voting patterns with the race *453of the voter and the candidate. As the majority acknowledges, no such statistics have been advanced in this case; the majority attempts to sidestep this lack of proof by relying on a law review article stating that “racial block voting [is] all but inevitable in the vast majority of cases.” Maj. Op. at 436 n. 30 (citing Howard & Howard, The Dilemma of the Voting Rights Act— Recognizing the Emerging Political Equality Norm, 8 Colum.L.Rev. 1615,1625 (1983)). The majority’s assumption that racial bloc voting is “all but inevitable” in this case, however, is precisely the assumption that the Supreme Court and the legislative history accompanying section 2 forbid. The broad, generalized statements of commentators cannot substitute for evidence of racially polarized voting.

¶16The majority’s assumption of racially polarized voting appears again in its conclusion that super-majority minority districts are necessary for minorities to exercise their political rights in Minneapolis. The majority reasons that because the 1982 senate district containing the highest concentration of minorities failed to elect a minority representative in the last election, higher concentrations of minorities are a requisite part of a valid redistricting plan. Significantly absent from the record, however, are facts demonstrating that less than super-majority concentrations of minorities have resulted in limited access to the electoral process. In short, the record simply does not support a finding of voting rights violations.

¶17II. The Necessity of Following State Policy

¶18However, it is immensely important to recognize that, even if the record did support a finding of voting rights violations, the majority’s wholesale rejection of the state plan would be unwarranted. Correcting voting rights violations does not require this Court to jettison Minnesota’s validly enacted reapportionment plan; any voting rights defects may — indeed, under Uphamand Weisermust — be remedied by modifying the state plan.

¶19To justify abdicating its obligation to follow the state policy embodied in Chapter 246, the majority attempts to distinguish the facts of this case from those in Weiserand Upham. The majority asserts that this Court, unlike those in Weiserand Up-ham, has before it not only the state’s redistricting plan, but the state policies reflected in Minnesota’s constitutional requirement of equal apportionment and in the legislature’s bipartisan resolution establishing the criteria for its redistricting plan. This, however, is a distinction without a difference, because in my opinion, Chapter 246 conflicts with neither of those statements of state policy. Moreover, if Chapter 246 did conflict with other state policies, Uphamand Weiserwould require this Court to reconcile the conflicts.

¶20The majority also suggests that it need not follow the state policy expressed in Chapter 246 because it would be difficult to do so. In my opinion, the majority exaggerates the difficulties inherent in basing a court-ordered plan on Chapter 246; the state court, after all, found it possible to correct Chapter 246’s constitutional defects.9 The fact that the majority finds defects based on the Voting Rights Act, and not the U.S. Constitution, does not alter this Court’s obligation to limit its remedial measures to correcting those defects; Upham, too, involved voting rights challenges. Moreover, the sole voting rights defect identified by the majority is the lack of a super-majority minority senate district in Minneapolis. Surely a defect in a single district does not require this Court to discard the legislative plan in its entirety.10 Finally, I see nothing in Weiser or Upham limiting the obligation to follow state policy to instances in which it can be accomplished with ease.

¶21*454In substituting its own plan for that of the state, the majority defies the Supreme Court’s mandate that reapportionment remedies be limited by the scope and nature of the violation. Upham, 456 U.S. at 42, 102 S.Ct. at 1521 (citing Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971)). More fundamentally, the majority defies the policy of judicial deference to legislative action that underlies the Supreme Court’s mandate. This Court attempted, in its injunction, to prohibit the Minnesota court from finalizing its reapportionment plan. The United States Supreme Court rejected that approach. Having failed to successfully enjoin the state court’s reapportionment plan, the majority, instead of staying its hand and allowing the state plan to proceed, reaches out in an invalid and transparent second attempt to accomplish the same purpose.

¶22The people of Minnesota are the real losers in this unprecedented battle between two courts. Hopefully, the United States Supreme Court, upon appropriate application, will quickly move to resolve these issues.

¶23I respectfully dissent.