Opinion
Cause No. 4:03-cv-0002 DFH
February 19, 2003
ENTRY ON PENDING MOTIONS AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Reverend Cleveland Williams, Reverend Douglass L. Motley, and Jerry H. Wilder reside in Jeffersonville, Indiana. They allege that the five voting districts of Jeffersonville are malapportioned in violation of the Equal Protection Clause of the Fourteenth Amendment. Pursuant to 42 U.S.C. § 1983, plaintiffs have sued the City of Jeffersonville; the Jeffersonville City Council; and City Council members Denny Frantz, Les Merkley, Ron Ellis, Rob Waiz, Barbara Wilson, Ron Grooms, and Vicki Conlin in their official capacities as members of the Jeffersonville City Council. As relief from the constitutional violation, plaintiffs request that this court redraw Jeffersonville's voting districts and extend the filing deadlines for candidates for the City Council. This case has come before the court on an expedited basis due to the nature of the constitutional violation at issue and the municipal primary election scheduled for May 6, 2003. The court heard evidence and argument on the merits and on all pending motions on February 12, 2003.
After the 2000 federal decennial census, the Jeffersonville City Council was unable to muster a majority vote in favor of a new ordinance establishing new election districts. The total population deviation in the existing districts is 69.9 percent, using the most and least populous districts to make that determination. As a result, the uncontested facts establish a constitutional violation of the one person/one vote principle recognized in Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964).
In deciding upon relief from the constitutional violation, the court has considered the parties' various proposals, as well as some alternatives the court has devised. The court is issuing a permanent injunction establishing five districts based on plaintiffs' proposal. Among all the proposals before the court, that proposal creates districts that are as nearly equal in population as possible without crossing precinct boundaries. The court is also extending the filing deadline for all candidates for the Jeffersonville City Council until noon on Friday, March 7, 2003. This extension applies to both at-large and district candidates.
Procedural Matters
Before turning to the merits and the remedy for the constitutional violation, several procedural matters must be addressed. In its answer, the City of Jeffersonville admitted all allegations in the complaint. The City also moved to be realigned as a party plaintiff. The City Council has opposed that motion. Realignment is proper here because the City of Jeffersonville supports plaintiffs and their request for relief. See American Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 149 (7th Cir. 1981) ("Realignment is proper when the court finds that no actual, substantial controversy exists between parties on one side of the dispute and their named opponents. . . ."), citing Indianapolis v. Chase National Bank, 314 U.S. 63 (1941). The City Council has opposed the realignment by citing several cases dealing with attorney conflicts of interests, apparently on the theory that the city attorney, who advises both the city executive and the legislative body, should not oppose the legislative body in this case. That argument aimed at the city attorney is beside the point of the realignment motion. In any event, legal conflicts between branches of a government are expected and do not disqualify an attorney where a similar conflict between private clients would require disqualification. See generally Anderson v. Long, slip op., No. IP 94-1447-C (S.D. Ind. March 6, 1998) (in redistricting litigation, denying motion to disqualify plaintiffs' attorney who was party county chairman who controlled one seat on defendant county election board). The court grants the motion of the City of Jeffersonville to be realigned as a party plaintiff. The caption has been amended to reflect that change.
With their answer to the complaint, defendants Jeffersonville City Council and its members filed a third party complaint against the Clark County Commissioners, the Clark County Election Board, and the National Association for the Advancement of Colored People (NAACP). The third party complaint alleges that the Clark County Commissioners refused to redraw precincts with smaller populations in Jeffersonville in violation of Ind. Code § 3-11-1.5-3. The City Council named the Clark County Election Board as a third party defendant so that the Board may protect its ability to conduct the May 2003 primary election pursuant to Ind. Code § 3-6-5-14. The City Council named the NAACP as a third party defendant so that it could defend a redistricting plan that had been proposed before the City Council.
The parties have agreed to the dismissal of the NAACP as a third party defendant. It appears the NAACP was mistakenly, but understandably, identified as a party in this matter. Gary Leavell, who is a local officer of the NAACP, attended City Council meetings about redistricting in his capacity as a Jeffersonville voter. During one of these meetings, Mr. Leavell submitted a proposed redistricting plan that has been mistakenly identified as the NAACP plan. On February 12, 2003, Mr. Leavell and the parties and the court also agreed that Mr. Leavell should be allowed to intervene as a defendant pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. Mr. Leavell has a particular interest in the effect that any redistricting plan may have on the political influence of African American voters in Jeffersonville.
Based on the City Council's original answer, which failed to deny many of the allegations in the complaint, plaintiffs filed a motion for judgment on the pleadings. The City Council and its members responded with a motion for leave to file an amended answer, which has been granted. The amended answer admitted all the allegations in the complaint except the conclusion that the existing districts violated the Equal Protection Clause and the allegation that the violation threatens irreparable harm and poses an emergency requiring immediate relief. The parties have also stipulated to the facts concerning the populations of all existing precincts and the existing City Council districts, as well as the minority populations of those precincts and districts.
Plaintiffs also moved to dismiss the City Council and council members' third party complaint against the Clark County Commissioners, arguing that the court lacks subject matter jurisdiction over the third party claim, that the third party complaint fails to state a claim upon which relief can be granted, and that the court should exercise its discretion and relinquish any supplemental jurisdiction over the claim. The commissioners later joined in that motion.
All parties and the court agree that the third party claim against the Clark County Election Board is properly before the court. An effective remedy requires the court to order the Election Board to extend the filing deadline for candidates in the May 2003 municipal primary election.
As the county executive for Clark County, the county commissioners are responsible under Indiana law for drawing precinct boundaries for the county. Ind. Code § 3-11-1.5-3. The Jeffersonville City Council, as part of an effort to explain its failure to enact a redistricting plan, alleges that many of the voting precincts in Jeffersonville are larger than allowed by Indiana law, and that the Clark County Commissioners failed to comply with Indiana law and did not redraw the precinct lines of Jeffersonville precincts at the City Council's request. The City Council's third party complaint asks the court to delay any remedy for the existing malapportionment and to order that precincts be redrawn so that it would be easier to draw City Council districts that do not cross precinct lines. Indiana law provides that a precinct ordinarily should have no more than 1,200 "active voters," though there are several exceptions. See Ind. Code § 3-11-1.5-3(a). Even if no statutory exception applies, the 1,200 maximum size can be waived with permission of the State Election Division. Ind. Code § 3-11-1.5-3.2.
The third party complaint does not present any question that arises under federal law. Where there is no independent basis for federal jurisdiction over a third party complaint, supplemental jurisdiction may be available under 28 U.S.C. § 1367. In federal question cases, supplemental jurisdiction requires that the claim in question be "so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). This supplemental jurisdiction extends to the constitutional limits of federal courts' jurisdiction. Baer v. First Options of Chicago, Inc., 72 F.3 1294, 1299 (7th Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181-82 (7th Cir. 1993).
A claim is part of the same case or controversy if it arises out of "a common nucleus of operative facts. A loose factual connection between the claims is generally sufficient." Baer, 72 F.3d at 1299 (holding that fee dispute between plaintiff's attorneys was within same case or controversy as the underlying litigation), citing Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995) (holding that state law claim against sexual harasser for assault and battery was part of same case as Title VII claim against employer for failure to stop harassment). Nevertheless, there are limits to the reach of this principle, lest it become a mechanism for having a federal court take jurisdiction over independent or only tangentially related claims. In the seminal case in the field, the Supreme Court taught that a federal court has jurisdiction over an entire action, including state-law claims, whenever the federal-law claims and state-law claims in the case "derive from a common nucleus of operative fact" and are "such that [a party] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
To evaluate the relationship between the third party claim and plaintiff's underlying claim of malapportionment, the court must assume the third party plaintiffs' factual allegations are true, see Molina v. Mallah Organization, Inc., 817 F. Supp. 419, 421 (S.D.N.Y. 1993) (dismissing third party claim), but must also look preliminarily at the merits and at relevant Indiana law to understand the claim and its relationship to plaintiffs' claims. See Oak Park Trust and Savings Bank v. Therkildsen, 209 F.3d 648, 651 (7th Cir. 2000) (affirming dismissal of unrelated counterclaims).
The Indiana statute governing the City Council's duty to redistrict provides on its face that the City Council is not required to follow existing precinct boundaries if necessary to achieve substantially equal populations: "The boundary of a city legislative body district may cross a precinct line if the districts would not otherwise contain, as nearly as is possible, equal population." Ind. Code § 36-4-6-4(d). In light of this provision of Indiana law, if the City Council had truly felt it needed to split precincts to draw districts with nearly equal populations, it was authorized to do so. The City Council's professed unhappiness with the County Commissioners' precinct boundaries simply does not arise out of the same "nucleus of operative facts" as plaintiffs' malapportionment claim. Nor would one expect the third party claim about precinct boundaries to be tried together with plaintiffs' claims of malapportioned City Council districts.
The court is aware of the irony in this statement because the court actually spent a few minutes hearing the limited evidence on the third party claim at the trial on February 12, 2003. The evidence was heard, however, because the need for a speedy resolution of the case did not leave the court time to rule on the motion to dismiss in advance of trial on the merits on the plaintiffs' underlying claim.
Even where supplemental jurisdiction is available, a district court may exercise its sound discretion to relinquish such jurisdiction based upon considerations of "judicial economy, convenience, fairness and comity. . . ." Wright v. Associated Insurance Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994), quoted in Wenner v. C.G. Bretting Mfg. Co., Inc., 917 F. Supp. 640, 649 (W.D.Wis. 1995). The supplemental jurisdiction statute provides some exceptions, one of which is for "exceptional circumstances" that provide "other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c)(4). In this case, such exceptional and compelling circumstances exist because of the great interest that state and local governments have in administering their election laws. When remedying constitutional violations such as the one proved here, the court should try to avoid or minimize any intrusions into such state and local matters. The court can grant effective constitutional relief to plaintiffs without addressing the lawfulness of the existing precincts in Jeffersonville. Accordingly, the court grants the motion to dismiss the third party complaint against the Clark County Commissioners for lack of subject matter jurisdiction.
The uncontested evidence presented at the February 12, 2003 trial also appears to undermine the third party claim on the merits. The City Council's third party complaint seems to have confused the total population of each precinct with the number of "active voters" in each precinct. Under Indiana law, county executives ordinarily must "establish precincts so that a precinct contains no more than one thousand two hundred (1,200) active voters." Ind. Code § 3-11-1.5-3(a). "Active voters" are defined in terms of recent voting and the results of efforts to confirm their addresses. See Ind. Code § 3-5-2-1.7. Although several precincts exceed 1,200 in total population, trial exhibits 201 and 202 show that no Jeffersonville precinct exceeds 1,200 active voters. In fact, no Jeffersonville precinct contains more than 1,000 active voters.
Findings of Fact and Conclusions of Law
According to the 2000 census, the City of Jeffersonville has a population of 27,632 persons. The City Council is the legislative body of Jeffersonville and is comprised of five members who are elected by district and two members who are elected at-large. The City consists of 21 election precincts, numbered 1 through 19, plus 11A and 16A. The existing five election districts were adopted after the 1980 census. The districts were not redrawn after the 1990 census, though apparently there was no litigation to challenge the districts at that time.The ideal population for each of the five districts is 5,526 (27,632/5). According to the 2000 census, the population of Jeffersonville's five City Council districts ranged from 4,239 persons to 8,100 persons.
Current Districts
District Precincts in Precinct Total Number District Population District Population 1 1,034 1 2 1,016 4,934 4 1,483 5 1,401 3 2,028 2 6 1,601 4,903 14 1,274 7 1,318 3 8 1,358 4,239 9 1,563 12 1,306 15 829 4 16 1,705 8,100 16A 39 17 2,021 18 2,200 10 1,189 5 11 1,630 5,456 11A 56 13 2,521 19 60 Pursuant to Ind. Code § 36-4-6-4(b) (g) and § 36-11-1.5-32, the City Council was required to adopt an ordinance that would establish new districts by November 8, 2002. State law further requires that such newly drawn districts: (1) be composed of contiguous territory, except for territory that is not contiguous to any other part of the city; (2) be reasonably compact; (3) not cross precinct boundary lines, except under certain circumstances; and (4) contain, as nearly as possible, equal populations. Ind. Code § 36-4-6-4(b).Before the November 8, 2002 deadline, the City Council considered several proposed redistricting plans: the Merkley plan, the Ellis/Grooms plan, the Leavell plan, and the Frantz plan. No plan received a majority vote in the City Council. The existing population disparities, and the City Council's failure to agree on a plan before the state law deadline for City Council action, made a court-drawn remedy virtually inevitable.
The evidence demonstrates that the City Council has entered into an agreement with the United States government to annex land adjacent to Jeffersonville. The City Council is awaiting final approval from the United States Army before the annexation becomes final. The land to be annexed is north and east of the existing city boundaries. The court has no evidence before it showing whether or when the annexation might become final, let alone the number and locations of residents in the land to be annexed. If and when the annexation occurs, some adjustments in precinct lines and/or City Council district lines might become necessary, but the court cannot make allowances for these unknown contingencies in drawing district boundaries for the current election cycle. See Ind. Code § 3-11-1.5-33 (rules for voting in municipal elections when annexation occurs more than 30 days before an election).
Under Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533, 579 (1964), the Equal Protection Clause of the Fourteenth Amendment requires that the vote of any citizen be approximately equal in weight to that of any other citizen. These requirements apply to districts for local legislative bodies. Avery v. Midland County, Tex., 390 U.S. 474, 481-85 (1968). Plaintiffs are not required to prove that malapportioned districts reflect a deliberate effort to dilute any group's voting power. "It is enough that the state's electoral districts are malapportioned." Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411, 1414 (7th Cir. 1992) (emphasis in original).
One standard measure for equality of population among election districts is "total deviation," which is measured by determining the "ideal" population of each district if all districts were exactly equal. The difference between the ideal population and the population of the largest district is converted to a percentage of the ideal population. The difference between the ideal population and the population of the smallest district is also calculated in terms of a percentage of the ideal population. Then the two percentages are added together. See, e.g., Kirkpatrick v. Preisler, 394 U.S. 526, 529 n. 1 (1969) (examining deviation of most populous and least populous districts from the ideal district population); Wells v. Rockefeller, 394 U.S. 542, 547 app. (1969) (same).
Under this measure, the total deviation for the existing districts is a whopping 69.9 percent. Thus, the existing Jeffersonville City Council districts plainly violate the one person/one vote standard. See Brown v. Thomson, 462 U.S. 835, 843 (1983) ("Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. . . . A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State.") (internal citations omitted); Swann v. Adams, 385 U.S. 440, 444 (1967) ("De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be accepted, without a satisfactory explanation grounded on acceptable state policy"; finding 25.65 percent deviation unconstitutional). Plaintiff Wilder is a resident and voter of City Council District 4, which means that the existing districts give substantially less weight to his vote than to the votes of residents of the other four districts.
The defendants have not offered any ground that could justify such a large total deviation in the existing districts. Cf. Sutton v. Dunne, 681 F.2d 484, 487 (7th Cir. 1982) (after plaintiffs prove a substantial deviation from equality, the burden shifts to defendants to show either that the deviation is unavoidable or is justified by attempt to implement a rational state policy). Accordingly, at least plaintiff Wilder has shown that the existing districts violate his rights under the Equal Protection Clause and the one person/one vote standard.
The next question is the court's remedy for the constitutional violation. The dominant consideration must be equality of population among the districts. The court should also seek to comply with state policies favoring contiguous and compact districts, and districts that do not cross precinct boundaries unless otherwise necessary. See Ind. Code § 36-4-6-4(b) (standards for city council districts). A district court "should not pre-empt the legislative task nor `intrude upon state policy any more than necessary.'" White v. Weiser, 412 U.S. 783, 795 (1973), quoting Whitcomb v. Chavis, 403 U.S. 124, 160 (1971); accord, Harper v. City of Chicago Heights, 223 F.3d 593, 601-02 (7th Cir. 2000) (setting aside district court's novel remedy that provided for cumulative voting).
When a legislative body adopts a redistricting plan, total population deviations greater than 10 percent may be justified. See Voinovich v. Quilter, 507 U.S. 146, 161-62 (1993) (remanding state legislative redistricting case to consider whether state policy that favored preserving county boundaries justified total deviation greater than 10 percent); Mahan v. Howell, 410 U.S. 315, 325-30 (1973) (upholding legislative plan with total deviation of 16 percent; deviation "may well approach tolerable limits" but was justified based on state's consistent policy of preserving political subdivision lines).
When a court is called upon to draw districts itself, however, it has less latitude than a legislative body might have. "Court-ordered districts are held to higher standards of population equality than legislative ones. A court-ordered plan should `ordinarily achieve the goal of population equality with little more than de minimis variation.'" Abrams v. Johnson, 521 U.S. 74, 98 (1997) (affirming district court's congressional redistricting plan with total deviation of 0.35 percent), quoting Chapman v. Meier, 420 U.S. 1, 26-27 (1975) (state legislative redistricting), and citing Connor v. Finch, 431 U.S. 407, 414 (1977) (same).
In Connor, the Supreme Court explained this different treatment of court-ordered plans:
These high standards reflect the unusual position of federal courts as draftsmen of reapportionment plans. We have repeatedly emphasized that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S., at 586, for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name. In the wake of a legislature's failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, the court's task is inevitably an exposed and sensitive one that must be accomplished circumspectly, and in a manner "free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U.S. 695, 710.
Connor v. Finch, 431 U.S. at 414-15 (some internal citations omitted).
As a result, population deviations that might survive scrutiny if adopted by a legislative body are less likely to be acceptable if adopted by a court. See Chapman v. Meier, 420 U.S. at 24 (20 percent deviation in legislative districting plan ordered by federal court is "constitutionally impermissible in the absence of significant state policies or other acceptable considerations that require adoption of a plan with so great a variance"; burden was on court to explain need for such large variance from goal of population equality); Connor, 431 U.S. 419-20 (16.5 percent deviation in court-ordered legislative districting plan not supported by state policy in favor of maintaining integrity of counties).
Similarly, a legislative body may consider political consequences and the interests of incumbent members when drawing districts. See White v. Weiser, 412 U.S. 783, 797 (1973); Burns v. Richardson, 384 U.S. 73, 89 n. 16 (1966); see also Gaffney v. Cummings, 412 U.S. 735, 753 (1973) ("[p]olitics and political considerations are inseparable from districting and apportionment. . . . The reality is that districting inevitably has and is intended to have substantial political consequences"). Such considerations are not appropriate for a court when the court must select or craft a redistricting plan. E.g., Wyche v. Madison Parish Police Jury, 769 F.2d 265, 268 (5th Cir. 1985); Burling v. Chandler, 804 A.2d 471, 483 (N.H. 2002) ("While political considerations are tolerated in legislatively-implemented redistricting plans, they have no place in a court-ordered plan."); In re Legislative Districting of State, 805 A.2d 292, 317 (Md. 2002) ("It is different, however, when the judiciary is required to undertake to promulgate a districting plan. In that circumstance, politics or political considerations have no role to play."); see also White v. Weiser, 412 U.S. at 799 (Marshall, J., concurring) (district court should not consider "the apparent desires of the controlling state political powers" and its role should be "a fastidiously neutral and objective one, free of all political considerations and guided only by the controlling constitutional principle of strict accuracy in representative apportionment").
White v. Weiser shows how legally powerful the mathematics of equal population can be. The district court found in White that the state legislature's plan for redistricting congressional seats was unconstitutional. The district court then chose between two proposed plans: one had a total deviation of 0.149 percent, and the second had a total deviation of 0.284 percent. 412 U.S. at 786-89. The district court chose the second plan. The Supreme Court reversed, holding that the greater total deviation was not justified by any countervailing considerations. 412 U.S. at 795-97. Requirements for equal population of congressional districts are considerably more demanding than those for state or local legislative districts. See, e.g., Mahan v. Howell, 410 U.S. 315, 323-25 (1973). Nevertheless, even with the larger total deviations that are tolerated with state and local districts, White shows that a court must still offer a substantial basis for choosing a plan with greater deviations than necessary.
The Jeffersonville City Council considered four different redistricting plans, but none of the four ever garnered a majority of votes. Council member Les Merkley proposed a redistricting plan with district populations ranging from 4,934 to 5,965, with a total deviation of 18.9 percent from the ideal population of 5,526. Council members Ellis and Grooms proposed a plan with the district populations ranging from 5,165 to 5,965, with a total deviation of 14.4 percent. Council member Frantz proposed a plan with district populations ranging from 5,548 to 5,640, with a total deviation of 3.4 percent. Intervenor Leavell proposed a plan, initially known as the NAACP plan, with district populations ranging from 5,056 to 5,965, with a total deviation of 16 percent. (Details of each plan are set forth in the Appendix to this entry.)
Plaintiffs and the City of Jeffersonville here urge the court to adopt the Frantz plan. They argue that the Frantz plan produces the lowest total deviation of any proposed plan (3.4 percent) while providing reasonably compact and contiguous districts that follow existing precinct lines. The City Council and intervenor Leavell oppose the Frantz plan but have not endorsed any particular plan. The court is not bound by the parties' proposals, of course, and the court has considered some other possibilities of its own devising, though all of those had total deviations of 10 percent or more.
The City Council and intervenor Leavell argue that the court should adopt one of the plans with total deviations much larger than the 3.4 percent total deviation under the Frantz plan. At trial they based their argument primarily on the effect the Frantz plan would have on District 2 and the voting power of African American voters.
District 2 is currently comprised of precincts 3, 6, and 14. It has elected a series of African American members to the City Council since the early 1970s. Council member and defendant Ron Ellis currently represents District 2. Though the population of District 2 is only 24 percent minority, Mr. Ellis testified that the citizens of these three precincts share many common characteristics. Under the Frantz plan, precinct 3 would be moved from District 2 (Ellis's current district) to District 1. One of the wealthiest precincts in Jeffersonville (Precinct 15) would then be added to District 2. The end result would be to decrease District 2's minority population to 10 percent and to increase District 1's minority population to 26 percent. Council members Waiz and Merkley testified that this change would make it difficult for District 2 to elect a minority representative, including the incumbent Mr. Ellis.
This argument against the Frantz plan does not withstand scrutiny. The arguments against the Frantz plan, which offers by far the smallest total deviation among the plans before the court, ultimately distill into an argument in favor of protecting one incumbent member of the City Council. That is not a proper consideration for the court in structuring a remedy for the existing constitutional violation.
First, there is no evidence in this record of racially polarized voting in Jeffersonville. The evidence shows that District 2 has elected African American representatives, while at least through the 1980s and 1990s, if the 2000 census is a reliable indicator, District 2 was roughly 24 percent minority. Also, the testimony indicated that over the past 30 years or so, African Americans have repeatedly won election to the City Council from at-large seats. Finally, the record here indicates a relatively integrated distribution of residents by race. The parties' stipulation shows minority populations of 200 or more in ten of the 21 precincts, and only one sizable precinct has a minority population higher than 27 percent.
Precinct 3 has a total population of 2,028 and a minority population of 924, or 46 percent. Precinct 16A has a population of only 39, of whom 24 (or 62 percent) are classified as minority.
There simply is no evidence that the Frantz plan would have an adverse effect on African American voters overall. In fact, District 1 under the Frantz plan would have a minority population of 26 percent, which is slightly higher than the current minority population of District 2. Thus, one could not justify adoption of the Ellis/Grooms plan, with its substantially greater total deviation, on the theory that it would better protect the interests of minority voters (as distinct from the interests of one particular incumbent). Cf. Kilgarlin v. Hill, 386 U.S. 120, 124 (1967) (district court did not "demonstrate why or how respect for the integrity of county lines required the particular deviations" or "articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations").
The court also heard arguments to the effect that precincts 3, 6, and 14 (which now make up all of District 2) should be kept together to protect the integrity of the neighborhood. The Frantz plan splits precinct 3 apart from precincts 6 and 14, which are kept together. Weakening the power of these arguments is the fact that even the Ellis/Grooms plan advocated by defendants would split precinct 6 from precincts 3 and 14. In addition, none of the plans before the court provide any district with a minority population as high as the 26 percent that the Frantz plan would create in District 1.
The record contains a calculation that District 1 under the Frantz plan would have a minority population of 53 percent. See City Council Answer and Third Party Complaint, Ex. B. The calculation is wrong. The numbers in the minority column simply do not add up to the total. The stipulated figures precinct-by-precinct show a minority population of 26 percent in District 1 of the Frantz plan.
The court finds that there is no substantial reason that would justify adoption of a redistricting plan with total population deviations four or more times greater than the total deviation under the Frantz plan. See Vigo County Republican Central Committee v. Vigo County Comm'rs, 834 F. Supp. 1080, 1088 (S.D.Ind. 1993) (adopting plaintiffs' proposed plan with total deviation of 0.41 percent, instead of defendants' proposed plan with total deviation of 3.8 percent); cf. Corbett v. Sullivan, 202 F. Supp.2d 972, 981-82 (E.D.Mo. 2002) (disregarding statistically insignificant population differences in parties' proposed redistricting plans; differences were less than 0.1 percent, and census data had at least a one percent error rate). Also, the court has not been able to devise a better plan with more equal district populations or one that even approaches the Frantz plan in that regard. Accordingly, the Frantz plan best fulfills the one person/one vote mandate and best remedies the constitutional violation that resulted from the City Council's inability to agree on a new redistricting plan. The court is issuing today a permanent injunction establishing new City Council districts consistent with the Frantz plan.
Under Indiana law, the deadline for candidates to file for election to the Jeffersonville City Council is noon on Monday, February 24, 2003. This litigation has caused significant uncertainty, of course. The parties all agree that a brief extension of the filing deadline is necessary to give candidates a fair opportunity to weigh their options — such as a choice between running at-large or in one of the new districts — under the new districting plan adopted by the court. The Clark County Election Board has urged the court to keep the extension brief so as to allow adequate time to prepare ballots, including absentee ballots that must be available by April 4, 2003. Accordingly, the court's permanent injunction extends the filing deadline for candidates for all City Council seats, at-large and by district, until noon on Friday, March 7, 2003.
APPENDIX
The Merkley Plan
Council member Les Merkley proposed a redistricting plan with district populations ranging from 4,934 to 5,965, with a total deviation of 18.9 percent from the ideal population of 5,526.
District Precincts in Precinct Total Number District Population District Population 1 1,034 1 2 1,016 4,934 4 1,483 5 1,401 3 2,028 2 6 1,601 5,732 14 1,274 7 1,318 3 8 1,358 5,545 9 1,563 12 1,306 16 1,705 4 16A 39 5,965 17 2,021 18 2,200 10 1,189 5 11 1,630 5,456 11A 56 13 2,521 19 60 The Ellis/Grooms PlanCouncil members Ellis and Grooms proposed the Ellis/Grooms plan with district populations ranging from 5,165 to 5,965, with a total deviation of 14.4 percent. The Leavell Plan
Intervenor Leavell proposed a plan with district populations ranging from 5,056 to 5,965, with a total deviation of 16 percent.
District Precincts in Precinct Total Number District Population District Population 2 1,016 1 4 1,483 5,218 5 1,401 6 1,318 1 1,034 2 3 2,028 5,937 14 1,601 15 1,274 7 1,358 3 8 1,563 5,056 9 1,563 12 829 16 1,705 4 16A 39 5,965 17 2,021 18 2,200 10 1,189 5 11 1,630 5,456 11A 56 13 2,521 19 60 Frantz PlanCouncil member Frantz proposed a plan with district populations ranging from 5,548 to 5,640, with a total deviation of 3.4 percent.
District Precincts in Precinct Total Number District Population District Population 1 1,034 1 2 1,016 5,561 3 2,028 4 1,483 6 1,601 14 1,274 2 15 829 5,448 16 1,705 16A 39 5 1,401 3 7 1,318 5,640 8 1,358 9 1,563 12 1,306 4 17 2,021 5,527 18 2,200 10 1,189 5 11 1,630 5,456 11A 56 13 2,521 19 60