Hattie KENDRICK et al., Plaintiffs-Appellants, v. James WALDER, Individually and as Mayor of the City of Cairo, Illinois et al., Defendants-Appellees, 527 F.2d 44

SWYGERT, Circuit Judge. The question in this appeal concerns pervasive racial discrimination in Cairo, Illinois, allegedly resulting from the use of at-large elections under a commission form of municipal government. Plaintiffs-appellants, black residents of the City of Cairo, filed a class action seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983. Defendants are officials responsible for conducting city council elections in Cairo. Plaintiffs challenge the actions of these officials taken under the authorization of Illinois Revised Statutes,

Chapter 24, §§ 4-3-2, 4-3-5, alleging that these provisions as they operate in Cairo have the effect of depriving them and members of their class of certain rights in violation of the equal protection clause of the Fourteenth Amendment and the provisions of the Fifteenth Amendment which prohibit the denial or abridgment of voting rights on account of race, color, or previous condition of servitude. Defendants moved to dismiss the complaint in November of 1973.

Nearly fourteen months later the lower court entered its judgment, dismissing plaintiffs’ complaint and stating that “beyond a doubt . . . there is no set of facts that could be proven in support of plaintiffs’ claim that would entitle them to relief.” The question for resolution on this appeal is whether plaintiffs have stated a claim upon which relief could be granted under the Constitution of the United States and the Civil Rights Act. We believe they have.

In essence, the plaintiffs contend that, as implemented in Cairo, the provisions of the Illinois statutes permitting communities to adopt a city commission form of government and conduct at-large elections instead of retaining an aldermanic system in which elections are conducted from single-member wards, minimizes, dilutes, and cancels out their voting strength as a group.

Plaintiffs further allege that as a result of this dilution, the election of blacks to the Cairo City Council is precluded; the nomination and election of white residents unresponsive to plaintiffs’ need and interests are guaranteed; blacks are excluded from appointive positions in the local government; and racial discrimination in the community is enhanced. Plaintiffs have alleged sufficient facts to constitute a cause of action under the equal protection clause of the Fourteenth Amendment to the United States Constitution.

While on its face the use of at-large elections appears to be a neutral system for the election of representatives, its maintenance and use may in fact represent a subtle form of discrimination which operates to disadvantage certain Cairo voters. In ternas of the question of population equality and apportionment, the at-large system is the fairest, with each voter’s vote weighed equally with that of all other persons in the election area. There are no ward lines drawn so as to create an imbalance — the'population deviation is zero.

A facially neutral system may operate, however, to dilute, minimize, or cancel out minority voting strength. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), rev’g, 467 F.2d 1381 (5th Cir. 1972). The courts have examined multimember districts for their discriminatory potential under the theory that such a system might dilute the votes of a minority group.

The analysis in this line of equal protection cases does not stop with a consideration of whether the one-man, one-vote ideal has been achieved, but reaches beyond mathematical equality to see if the group in question can obtain effective representation within the electoral system as it operates.

This is not to suggest that the designation of seats for minority representatives in proportion to their voting strength is compelled (or even permitted) by the equal protection clause, but if, as a result of the method of apportionment, the group is disadvantaged in its use of the ballot, an equal protection claim may exist. White v. Regester, supra; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965).

Where, as here, no official distinctions have been drawn between voters, plaintiffs may still demonstrate that they have been disadvantaged by the system. The inquiry is not conducted in a vacuum, nor in the abstract.

The total situation as it exists in the particular locality is considered and an actual impact on voters’ rights must be demonstrated: [t]he plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. White v. Regester, supra at 766, 93 S.Ct. at 2339 citing Whitcomb v. Chavis, supra at 149-50, 91 S.Ct. 1858.

Plaintiffs in this case have sought the opportunity to make such a demonstration. Without considering the merits of plaintiffs’ claim, it may be beneficial to relate the factual allegations contained in their complaint to the charge that their votes and political effectiveness as a group have been diluted or cancelled out through the use of the at-large system of voting in Cairo. Whether the allegations truly reflect conditions as they exist in that city is a question which must be reserved until after trial in the district court. Lipscomb v. Jonsson, 459 F.2d 335 (1972).

In addition to pointing out that since the institution of the at-large system no black has been elected to the city council, a fact which may in itself indicate that minorities have been denied an equal influence in,the political process, plaintiffs have set forth allegations in their complaint which indicate that Cairo has been and continues to be a racially polarized community.

Plaintiffs state that the continuance of the at-large system furthers polarization and discrimination since the dilution of their voting power permits, and perhaps encourages, resort by white candidates to campaign tactics which make race a factor in the elections in Cairo in order to appeal to the white majority.

Among the examples which plaintiffs offer to demonstrate that there is a legacy of discrimination in Cairo operating today to disadvantage blacks are: the maintenance until 1952 of a dual school system; the segregation in the schools which continued even after the two systems were consolidated and culminated in the establishment of an all-white, tax-exempt, private school in the 1960’s; the division of the city’s park into “black” and “white” sections which was maintained until 1952; and the continuing discrimination evidence by the labor unions and the employers in Cairo.

These, and other nonpolitical factors bolster and give depth to plaintiffs’ assertion that the electoral process discriminates against members of their class — the residue of discrimination also encompasses the quality of political life for blacks in Cairo. The use of an at-large system of voting, not in itself unfair to any individual voter, when imposed on a community with a history and legacy of discrimination against an identifiable group may operate to deny that group an opportunity for effective participation in the electoral system.

The portions of plaintiffs’ complaint which relate specifically to the operation of the political machinery in Cairo (some of which if isolated might appear neutral or equivocal), take on a new dimension viewed against such a pattern of discrimination.

It would, for example, not be inconceivable that plaintiffs could show, as they assert here, that blacks are discouraged from running for office, that any effective political coalitions are impossible between whites and blacks, that whites will not vote for black candidates, and that the election is virtually given to the candidates listed on all-white slates compiled by informal all-white groups. These allegations and others made by plaintiffs, in view of the level of residual discrimination, would support the conclusion that blacks are excluded from the political process.

Plaintiffs also contend that the council is not responsive to their interests or needs and is, in fact, hostile to them and members of their class. This fact, if proved, also lends weight to the claim that plaintiffs are denied effective representation by the operation of an at-large voting system in Cairo. The inquiry the district court must undertake in cases of this nature should focus on the type of facts plaintiffs here have alleged. The central element in their claim is that in this particular set of circumstances they are denied equal protection due to the operation of the electoral system.

As the Supreme Court recognized a decade ago in connection with multimember districts: [designedly or otherwise, a multimember constituency apportionment scheme, under the circumstances of a particular case [might] operate to minimize or cancel out the voting strength of racial or political elements of the voting population. Fortson v. Dorsey, supra at 439, 85 S.Ct. at 501.

Illuminated by findings of fact that support the allegations here, the fact that few blacks have ever been appointed to positions in local government and that none have been elected to the city council in the sixty-two years since the use of ward districting was abandoned take on additional significance. We emphasize that plaintiffs’ complaint is not that their candidates were not chosen in a fair and neutral political contest; rather they claim that the system contains a built-in bias against them.

If proved, their allegations would indicate that in Cairo the election process does more than simply provide a method by which a candidate is selected from among other contenders. Cf. Whitcomb v. Chavis, supra at 153, 91 S.Ct. 1858. Plaintiffs do not complain merely because their candidate has lost in the political arena, but they allege that the process by which the elections are run invidiously discriminates against them. It is to remedy this wrong that we must apply the equal protection clause to see if plaintiffs are denied effective representation.

We realize that the contours of the dilution doctrine are not yet well defined. (Cf. Zimmer v. McKeithen, supra, which lists a “panoply” of factors the Fifth Circuit thought were relevant.) The Supreme Court did not until 1973 and the case of White v. Regester, supra, find an electoral system violated equal protection standards under the theory that the votes of a group were diluted, minimized, or cancelled out, though it had recognized such a possibility much earlier. Fortson v. Dorsey, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966).

We realize that there are distinctions between the instant case and White v. Regester. That case involved the multimember districting for state legislative representatives in an apportionment system which also included single member districts, and the number of voters was larger than that involved in this case. It is also true, as noted by the district court, that a state representative body was involved in Regester while the at-large system in the instant case is confined to a local governing body. We fail to see that this presents any significant basis for distinction.

In state legislative bodies the problems confronted often extend beyond the individual districts and require compromise and concession. The representatives have a responsibility to bring the unique views of their districts to the attention of the legislature and the legitimacy of the legislative process may be increased when the uniform use of single member districts ensures equal representation for voters of one district vis-a-vis the voters of another.

It may be more rational therefore to use an at-large system when the responsibility of the representatives so chosen extends only to the area covered by such a system as it does in the city council situation. Although this may generally be true, the need for citywide solutions to the problems in Cairo is counter-balanced by the plaintiffs’ allegations that their interests are not synonymous with those of the white majority in Cairo and are frustrated by the use of at-large elections which guarantee the election of those who are unresponsive to their needs.

Moreover, the fact that numbers of voters involved in this case are less than those in Regester does not minimize the plaintiffs’ complaint. Although the size does have implications, e. g., the expense involved in campaigning increases with the size of the constituency as does the need for resort to forms of mass communication to reach voters; and the potential for dilution appears to increase as the size of the constituency increases, plaintiffs should have the opportunity to show that they have suffered a disadvantage even though the size of the electorate is small.

The city council is the primary organ of local government and its decisions affect plaintiffs’ daily lives. If they are prohibited from achieving effective representation in that body, they should be afforded relief. The district court’s opinion also evidenced concern because the at-large system was not imposed by the governing body but was the result of a referendum vote by the people of Cairo. The fact that it was the voters and not the council which chose the form of election cannot defeat the plaintiffs’ equal protection claim.

A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be the fact that a challenged legislative apportionment plan was approved by the electorate is without federal constitutional significance . . . . Lucas v. Colorado General Assembly, 377 U.S. 713, 736-7, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632 (1964). (citations omitted.) The citizens of Cairo cannot, therefore, by adopting the commission form of government dilute the plaintiffs’ votes.

Nor, does the fact that plaintiffs could appeal to those same voters by initiating a referendum to abolish the commission form of government and the at-large elections attached to it, offer a refuge against suit for the defendants. Plaintiffs’ resort to remedy the wrong is not to the electorate but to the courts. Plaintiffs have asked the court to dismantle the at-large system and to oversee the institution of a ward system in Cairo similar to those used in other cities in Illinois.

If after trial the plaintiffs establish the truth of their allegations and demonstrate that their votes are diluted, minimized, or cancelled out by the electoral system in Cairo, the district court should explore the relief appropriate under the circumstances of the case.

The decision of the district court is reversed and the case is remanded for trial. . 28 U.S.C. § 2201 reads: In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2202 reads: Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. 42 U.S.C. § 1983 reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Jurisdiction is alleged under 28 U.S.C. § 1343. . These sections require that communities adopting the commission form of government discontinue their division into wards and institute an at-large system of elections and in the event that a primary election is necessary (when there are more than two candidates per council seat) that it also be conducted on an at-large basis. Illinois Revised Statutes,

chapter 24, § 4-1-1 et seq. allow a community to adopt a commission form of government which is vested with all legislative, administrative and executive powers. . Defendants set forth seven grounds in support of their motion, including the ground that it was necessary to convene a three-judge court in order to declare a state statute unconstitutional. The district court judge concluded that since plaintiffs’ claim was purely local in nature and did not challenge the statewide application of the statute, the case did not require a three-judge court.

The need for such a court is a jurisdictional requirement and if it was error for a single judge to act in this case, the appropriate action for this court to take would be to remand the case for trial by a three-judge court. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). A three-judge court is not necessary, however, if an injunction is sought against local officials, Wilentz v.

Sovereign Camp, W.O.W., 306 U.S. 573, 59 S.Ct. 709, 83 L.Ed. 994 (1939), unless those officials are performing a state function and enforcing a policy of statewide concern which applies generally to all such bodies within the state. Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). While the State of Illinois offers certain communities the option of selecting a commission form of government, it is not the validity of the statute which authorizes the choice that is in issue in this case.

Plaintiffs’ complaint focuses only on the choice made by Cairo in view of the alleged racial discrimination and polarization particular to that city. If the plaintiffs succeed after trial, there would be no impact beyond the City of Cairo.

As the Supreme Court noted in Ex Parte Bransford: [i]t is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court. In such a case the attack is aimed at an allegedly erroneous administrative action. 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1939).

From the complaint involved in this case, it is clear that plaintiffs’ allegations fall into the latter category. Their attack is centered on the result obtained in Cairo through the use of the Illinois statute and they seek to enjoin only local Cairo officials from conducting further at-large elections in that city. An administrative order which misinterprets or distorts a valid state law can result in a denial of equal protection where there is design or intent to discriminate or a suspect classification results. Snowden v. Hughes, 321 U.S. 1, 7-8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

Political rights in local elections are within the protection of the clause. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959). . Kendrick v. Waider, No. CV 73-19-C (E.D. Ill., Jan. 29, 1975) mem. pp. 6-7. . A showing that there was a denial or an abridgement of the right to vote on account of race would also violate the Fifteenth Amendment. While there are indications in Fifteenth Amendment cases that both the purpose and effect of the practice will be considered when distinctions are drawn between black and white voters, Gomillion v.

Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), plaintiffs in this case have alleged their votes are diluted as a result of the at-large system of election. This allegation fits neatly into a Fourteenth Amendment equal protection analysis. We need not, therefore, consider if it is necessary to show “purpose” in a Fifteenth Amendment complaint — the “effect” of a system which discriminates against minorities is subject to scrutiny under the Fourteenth as well as the Fifteenth Amendment. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). .

For the purposes of deciding the questions in this case, at-large electoral schemes are analytically the same as multimember districts. The multimember district differs from the use of an at-large system in a city only by the extent of the geographical area covered by the election. In both instances, several representatives are chosen from one area, mandating that voters select more than one candidate, instead of the voters of several divisions selecting one representative whose constituency is defined by ward or district boundaries. .

The census figures for 1970 indicate that the population of the City of Cairo is 6,227. In Regester, by contrast, the population of the multimember districts was 1,300,000 and 800,-000. Graves v. Barnes, 343 F.Supp. 704, 720 (W.D.Tex.1972), aff'd in part and rev’d in part sub nom., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). . The court also suggested that a distinction could be made between this case and Regester because in that case multimember districts were involved and in this case the entire city was the area.

As noted supra n. 6 for the purposes of our discussion, multimember districts are analytically the same as a city-wide at-large system.