Morris W. MILTON, Charles Shorter, S. Curtis Kiser, Lorraine Quinn, and Pamela A. Meacomes, Petitioners, v. Bruce M. SMATHERS, as Secretary of State of Florida; and Charles J. Kaniss, as Supervisor of Elections of Pinellas County, Florida, Respondents, 389 So. 2d 978

ALDERMAN, Justice. Pursuant to the procedures established by In re Apportionment Law, Senate Joint Resolution 1305, 263 So.2d 797, 822 (Fla.1972), in an original proceeding, petitioners, Morris Milton and Charles Shorter, challenged the constitutional validity of Senate Joint Resolution 1305 as it applied to them in multimember House Districts 57-61 on its effective date.

We found that their petition stated sufficient allegations to come within the retained jurisdiction of this Court as set forth in In re Apportionment Law, Senate Joint Resolution 1305, and we appointed Circuit Judge Victor Cawthon as our commissioner to make factual findings and recommendations. Milton v. Smathers, 351 So.2d 24 (Fla.1979). Commissioner Cawthon made findings of fact and concluded that the efforts of petitioners to prove the creation of the district unconstitutional were unsuccessful.

He determined that the resolution at its inception did not operate so as to unconstitutionally minimize or cancel out the voting strength of the black members of the population by denying members of the black minority an opportunity equal to that of other residents of the district to participate in the political process and to elect legislators of their choice.

We approve the following findings of fact and recommendations of the commissioner: In the general terms of this Court’s Opinion filed herein on June 30,1977, and of the Commissioner’s procedural guidelines approved by the Court on February 8,1978, the Petitioners are not entitled to relief unless Senate Joint Resolution 2305, 1972 Regular Session is determined to have operated at its inception to unconstitutionally minimize or cancel out the voting strength of black members of the voting population of Florida House Districts 57-61 by denying to the members of the black minority in that district an opportunity equal to that of other residents in the district to participate in the political processes and to elect legislators of their choice.

This determination depends somewhat on the answers found to the following questions: 1. Are the blacks in this district an identifiable class for Fourteenth Amendment purposes? 2. Is a majority vote in the primary election required to nomination? 3. Must candidates qualify for a certain “place” on the ticket? 4. Is cumulative voting prohibited? 5. Are candidates allowed to reside anywhere in the district? 6. Have members of this class historically suffered from discrimination in this geographic area as evidenced by: (

a) Segregated schools, (

b) Poll tax, (

c) Literacy tests, (

d) Cultural and language barriers, (

e) White primaries. 7. Is some other group in control of the majority party slate? 8. Are racial campaign tactics used against black candidates? 9. Is the district a large one as compared to Bexar and Dallas Counties in Texas? 10. Is there a one-party system? 11. Is The District multi-membered for both houses of the legislature? 12. Is a substantial portion of the House elected from this District? 13. Is the multi-member scheme rooted in racial discrimination? 14. Do blacks register as large a percentage of their eligible voters as do whites? 15.

Are the representatives who are elected responsive to the interests of the blacks? 16. Are the candidates of either party in need of the black vote? No analysis of the evidence is required to determine that questions 1-5 must be answered affirmatively and these answers are favorable to the position of the petitioners. Likewise, although poll taxes, white primaries and literacy tests have not been a part of the Florida electoral process for at least forty years, there is no question that blacks have been, in much more recent history, discriminated against.

On the other hand, it is equally as obvious that questions 7-13 must be answered in the negative and that these answers would be unfavorable to the position of the petitioners. Although black registration in The District was mentioned in the testimony of Frederick James Hicks, Carolyn C. Murphy and Frank Pierce, all witnesses for the petitioners, and although Charles D.

Shorter, Jr., another witness for the petitioners, testified the area in The District most heavily populated by blacks “probably has the lowest voter registration,” none of this evidence nor all of it approaches what a fact finder would need to determine what percentage of the blacks in The District eligible to vote-as distinguished from population-registered and how this percentage would compare with the percentage of non-blacks in The District eligible to vote who registered. For this reason no answer can be given to question # 14.

The petitioners’ witnesses generally testified that the representatives from The District were not responsive to the interests of the black minority but three of those representatives who were called by the respondents testified that they were. This apparent conflict in testimony was not real.

The petitioners’ witnesses seemed to be referring to a lack of responsiveness on the part of the representatives to the collective problems of the black community such as housing, health care, welfare, employment and education as evidenced by their failure to sponsor or initiate legislation designed to benefit the black minority in these areas. The representatives themselves were testifying as to their practice of treating black and white constituents the same when asked by members of either race for help, and of their efforts to determine in what ways they could help.

With a few exceptions, witnesses for both sides testified that the leaders of the black community had not asked the representatives from The District to support, oppose, or introduce any specific legislation. It is apparent from the testimony and from the nature of multimember districts like this one in which a minority of blacks and a majority of whites both live, that its representatives are not as responsive to the interests of blacks as they would be if they represented a constituency which was largely or completely black.

It would certainly seem from the record that the Democratic candidates in The District need the black vote to win. Although the majority of blacks in The District register and presumably vote democratic, the party lost all five seats in the general elections in 1972 and 1974. In 1976 the only Democrat to win was Don Poindexter, and his success was partially due to the strong showing which he made in black precincts.

Since some of the answers to the sixteen questions initially posed are favorable to the position of the petitioners and some are unfavorable, and since no appellate court has to date favored us with any indication as to what weight should be given each criteria or what number of favorable answers would be required for the petitioners’ case to achieve a passing grade, it is the Commissioner’s recommendation that the Court test the constitutionality of the creation of The District by the extent of the opportunity blacks have to participate in the electoral processes.

From the record black Democrats have an opportunity equal to that of white Democrats to participate in the political processes in The District. They participated in Democratic party functions on a local and state level, had input in the formulation of the party’s platform, formed a caucus which endorsed candidates in The District, some of whom were successful, served on the Democratic Executive Committee and were nominated as candidates in the party primaries without opposition.

From the foregoing, it would appear that the petitioners’ efforts to prove the creation of The District to have been unconstitutional were unsuccessful. An examination of the record reveals that the reason black candidates have not been elected is not because of racial discrimination but rather because they run as Democratic candidates in a Republican area of the state.

Our decision to approve the commissioner’s findings and recommendation and our holding that multimember districts 57-61 do not violate the fourteenth or fifteenth amendments to the United States Constitution are buttressed by the recent pronouncements of the Supreme Court of the United States in City of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The Supreme Court held that Mobile’s at-large electoral system of electing its governing commissioners did not violate the fourteenth or fifteenth amendment rights of the city’s black minority population.

The commissioners elected at large jointly exercised all legislative, executive, and administrative power in the city. A class action was brought on behalf of the black citizens on the basis that the at-large election process diluted the voting strength of the blacks.

Explaining that racially discriminatory motivation is a necessary ingredient of a fifteenth amendment violation, the Court held that this amendment “prohibits only purposefully discriminatory denial or abridgement by government of the freedom to vote ‘on account of race, color, or previous condition of servitude.’ ” 446 U.S. at 60, 100 S.Ct. at 1497 (emphasis added). The Court emphasized that the fifteenth amendment does not entail the right to have black candidates elected.

Finding no purposeful discrimination and that the blacks in Mobile registered and voted without hindrance, the Court concluded that there was no fifteenth amendment violation. Evaluating the fourteenth amendment equal protection challenge to the Mobile election scheme, the Supreme Court initially reiterated that multimember districts are not unconstitutional per se but that they could violate the fourteenth amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities.

This invidious intent or purpose of racial discrimination, the Supreme Court explained, cannot be proved by merely showing that the group discriminated against has not elected representatives in proportion to its numbers. Disproportionate effects alone will not establish a claim of unconstitutional racial vote dilution. Rather, “[a] plaintiff must prove that the disputed plan was ‘conceived or operated as a purposeful device to further racial discrimination.’ [Whitcomb v. Chavis, 403 U.S. 124, 149 [91 S.Ct. 1858, 1872, 29 L.Ed.2d 363] (1971)].” 446 U.S. at 66, 100 S.Ct. at 1499.

Proof of a discriminatory effect is not sufficient. Reversing the lower courts on the basis that no discriminatory purpose had been proved, the Supreme Court stated that the district court had based its determination of unconstitutionality primarily on the fact that no black had ever been elected to the city commission and the fact that the city officials had not been as responsive to the interests of blacks as to those of white persons but that the lower court had also seemingly inconsistently found that there were no inhibitions against blacks becoming candidates or registering to vote.

The Supreme Court further said: But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question. Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out.

But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester, supra. They are far from proof that the at-large electoral scheme represents purposeful discrimination against Negro voters. 446 U.S. at 74, 100 S.Ct. at 1503. In refutation of Justice Marshall’s dissenting opinion, the Supreme Court held: The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.

The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States. It is true, as the dissenting opinion states, that the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters. See Dunn v. Blumstein, 405 U.S. 330, 336 [92 S.Ct. 995, 999, 31 L.Ed.2d 274]; Reynolds v. Sims, 377 U.S. 533, 576 [, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506]. But this right to equal participation in the electoral process does not protect any “political group,” however defined, from electoral defeat.

The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them.

Reversing the trial court, this Court said: “The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district.

This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas.

Indeed, it would be difficult for a great many, if not most, multi-mem-ber districts to survive analysis under the District Court’s view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.” Whitcomb v. Chavis, supra, [403 U.S.] at 156-157 [91 S.Ct. at 1875-1876] (footnotes omitted). 446 U.S. at 75-80,100 S.Ct. at 1503-1507. 1507.

In the present case, petitioners have failed to allege or prove that the disputed election plan was conceived or operated as a purposeful device to further racial discrimination. Accordingly, the relief requested by petitioners is denied. It is so ordered. BOYD, OVERTON and McDONALD, JJ., concur. OVERTON, J., concurs specially with an opinion. SUNDBERG, C. J., dissents in part with an opinion, with which ENGLAND, J., concurs. ADKINS, J., dissents with an opinion. .

In In re Apportionment Law, Senate Joint Resolution 1305, we held that variable multi-member districts are not per se invalid, but we went on to explain that a multimember district, under the facts of a particular case, may operate to minimize or cancel out the voting strength of racial or political elements of the voting population. . References to page numbers of the transcript contained in the findings have been omitted. The Commissioner accepted Dr. Manning J.

Dauer’s testimony as conclusive evidence from the individual who was the most influential in Florida reapportionment from 1955 to the present that the multimember District in Florida was not “rooted in racial discrimination.”