The opinion of the court was delivered by: ARNOLD
In 1981 the Arkansas Board of Apportionment, consisting of the then Governor, Secretary of State, and Attorney General, placed into effect a plan of apportionment for the General Assembly. Seventeen black electors
bring this suit, claiming the plan violates Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. They ask us to hold the existing arrangement of Senate and House districts unlawful, order a new plan into effect for the 1990 elections, and place the State of Arkansas under the preclearance procedure laid out in Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c).
We heard evidence for twelve days. Numerous exhibits are before us. We have carefully considered the proof with due regard to the intensely practical nature of the political process. We now hold that the plaintiffs have demonstrated a violation of their rights under federal law. The 1981 apportionment plan created only five legislative positions, one in the Senate and four in the House, representing districts in which a majority of the voting-age population was black. We find that a total of 16 such districts, three in the Senate and 13
in the House, could have been created, and that these districts would have been reasonably contiguous and compact. We further find that voting in the areas of the State in question is markedly polarized by race. Both black and white voters usually prefer candidates of their own race. Black voters are far from powerless. They exercise significant, sometimes decisive influence. But they can elect a candidate of their choice, in a district in which the voting-age population is majority white, only if that candidate is white. For the foreseeable future, the present location of legislative district lines will make it very difficult to elect more than six black legislators, out of a total in both houses of 135 members. And this is so even though black people make up about 16 per cent. of the total population of the State of Arkansas.
In this situation, black citizens have less opportunity than other members of the electorate to elect representatives of their choice. This is a violation of Section 2(b) of the Voting Rights Act, 42 U.S.C. § 1973(b). For reasons we shall explain in this opinion, plaintiffs have proved a violation of the law in all of the areas of the State called in question by this suit, except for Pulaski County. We hold that no more elections may be held under the unlawful 1981 apportionment plan. The defendants will be enjoined from giving any further force or effect to that plan. A new, lawful plan must be drafted, in time to be in place for next year's elections; the filing period for these elections will begin on the third Tuesday in March -- March 20, 1990. See Ark. Code Ann. § 7-7-203(c) (1987). The parties are directed to submit plans for compliance to this Court on or before January 15, 1990. We especially emphasize the duty of the defendants, the present members of the Board of Apportionment, to submit a plan. The responsibility of complying with the law is primarily theirs. Promptly after January 15, 1990, we will convene an evidentiary hearing on the remedy, if necessary, and thereafter enter an order embodying a new plan and directing that it be used for the 1990 legislative elections.
The opinion we file today decides only plaintiffs' statutory claim under Section 2 of the Voting Rights Act. Plaintiffs' constitutional claim and their request for preclearance as a remedy for constitutional violations remain under advisement. We will decide these questions in a second written opinion in due course. Our ruling on the statutory claim will require substantial adjustments in the existing apportionment plan. If relief is to be effective for next year's elections, time is of the essence. We therefore think it proper to file this opinion, which will start the process of re-drawing the lines, promptly. We need time, however, to consider the hard issues of intent and remedy that plaintiffs' constitutional claim raises, and we do not wish to delay the whole case while we take that time.
The Board of Apportionment is created by Article VIII, Section 1 of the Constitution of Arkansas. Its present members are Governor Bill Clinton, Secretary of State Bill McCuen, and Attorney General Steve Clark. They are defendants in this case. The Board's members in 1981 were Governor Frank White, Secretary of State Paul Riviere, and Attorney General Clark. The plan presently in effect (except as modified as to Crittenden County by Smith v. Clinton, supra) was adopted on June 28, 1981, by a vote of two to one. Governor White dissented. The plan created 35 single-member districts for the Senate. Of the 100 members of the House, the plan called for 74 to be elected from single-member districts and 26 from multi-member districts.
(We note, parenthetically, that only two of the multi-member districts in the House are in the area of the State towards which this suit is primarily addressed: the two-member district in Crittenden County, which no longer exists because of Smith, and a three-member district in Pulaski County. This three-member district has a majority-black voting-age population, and all three of its State Representatives are black. This lawsuit, however, is not primarily about single-member versus multi-member districts. It is about dilution of black voting strength. We see no reason why the multi-member districts in other parts of the State would be affected by the relief we are granting.)
Under the plan adopted in 1981, only two House districts had a voting-age population that was majority black -- one of the three-member districts in Pulaski County and a single-member district in Jefferson County. (We use voting-age-population (VAP) percentages because they are the numbers relevant for purposes of voting, which is what this case is about. Under the one-person, one-vote principle, of course, which requires that legislative districts be substantially equal
in population, it is total population that counts, regardless of age or eligibility to vote. But this case is about effective use of the elective franchise, not equality of population. Black VAP numbers run consistently lower than total-population numbers in the areas affected by this suit.) We insert at this point in the opinion a map of Arkansas (Map 1)
showing each of the House districts in the affected areas, including black VAPs for districts located along the Mississippi River (an area referred to as the Delta).
[SEE ILLUSTRATION IN ORIGINAL]
[SEE ILLUSTRATION IN ORIGINAL]
Before we get to the substance of the case, we must deal with defendants' argument that the suit is barred by laches,
that it was filed too late. The apportionment plan challenged was adopted in 1981, but suit was not filed until January 22, 1989. Only one election, that of 1990, remains to be run before the State must be reapportioned anyway, because of the 1990 Census. So this case, defendants say, should be dismissed. If plaintiffs are still unhappy after the 1991 reapportionment, they can file suit then. This Court rejected a similar contention in Smith v. Clinton, 687 F. Supp. at 1312-13. But defendants earnestly press the argument and claim that Smith can be distinguished. We therefore address the point at some length.
Laches is an equitable defense. It means essentially this: if suit is unreasonably delayed, and this delay causes prejudice to the defendants, a court of equity may dismiss the complaint. The greater the delay, or the more unreasonable, the less prejudice need be shown; and vice versa. The Court must weigh the facts and interests on both sides, summon up the discretion of a chancellor, remember that it is a court of conscience and not of legal stricture, and come as close as it can to a fair result. Frequently there are some good arguments on both sides, and that is the case here. We start by quoting our discussion of the issue in Smith v. Clinton :
First, the injury alleged by the plaintiffs is continuing, suffered anew each time a State Representative election is held under the [illegal] structure. Second, there have been significant developments since the 1981 Arkansas reapportionment. The Voting Rights Act was amended in 1982, and the Supreme Court's interpretation of the statute in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), lays down a rather uncompromising structure for the application of the law in vote-dilution cases. Third, we note that the plaintiffs are required to prove that, as a result of the challenged structure, a white majority bloc is usually able to defeat the preferred candidates of the minority. Of course, evidence of this circumstance would be unavailable unless the structure had been in place for some time.
All of these factors are present here, but defendants claim Smith was different. See Defendants' Post-Trial Brief, 2 n. 1. There, we dealt only with the dilutive effect of one two-member district. The relief affected only that district. There was no ripple effect. No other district's boundaries were disturbed. See Smith, 687 F. Supp. at 1313 n. 4. But here there would be some ripple effect. Plaintiffs claim that there should be as many as 16 (13 in the House, 3 in the Senate) majority-black districts. Relief cannot be accomplished simply by dividing up one or more existing multi-member districts. If the single-member districts requested, or any of them, are created, the boundaries of some adjacent districts will necessarily shift to some extent. Plaintiffs assert that the ripple effect will be confined to 26 of the State's 75 counties, all of them south and east of a diagonal line roughly splitting the State from northeast to southwest, but even as so limited the necessary changes would be substantially greater than those occasioned by Smith.
With this argument in mind, we compare plaintiffs' delay to defendants' prejudice. It is reasonable to start the clock running on June 30, 1986, when the Supreme Court handed down Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986). This case is the pole star of the law in this area. Only with this decision can the law be said to have jelled. The present plaintiffs moved for leave to intervene in Smith v. Clinton on June 1, 1988, less than two years later. This motion was denied on July 1, 1988. The order denying the motion suggested plaintiffs could bring a separate suit, which they did about six months later. Suit was filed about 14 months before the filing deadline for the 1990 elections. (Compare Smith, 687 F. Supp. at 1312, in which candidates had filed and begun to campaign in the challenged district at the time of the hearing on plaintiffs' motion for preliminary injunction.) This sort of case takes an enormous amount of preparation, and it is to plaintiffs' credit that they took time to prepare it thoroughly before coming to court. This sequence of events does contain some delay, but most if not all of it was reasonable.
What about prejudice to defendants? As noted, the expense, trouble, and disruption of compliance (assuming, as we must at this stage of the analysis, that the complaint has some merit) will be substantial, and more so than in Smith. But the expense, trouble, and disruption are not a consequence of plaintiffs' delay in filing. They would have occurred whenever the suit was filed -- even if it had been filed, say, right after passage of the 1982 amendments to the Voting Rights Act. There is some additional increment of public confusion that will be caused by changing district lines less than two months before filing opens, and less than four months before the first primary election. It is also true that the census data relied on by both sides -- and that presumably will be the basis of any remedial plan -- become increasingly stale as time passes after the 1980 census. But it is by no means clear that these data, however inaccurate they may become in terms of absolute numbers, will also be inaccurate in relative terms. On the contrary, what evidence we have on the subject indicates that, although population as a whole has declined in the affected areas of the State, the proportions of blacks and whites have remained virtually constant. See Testimony of Dr. Engstrom, Dr. Morrison, Senator Benham, Representative McGinnis, and Representative Cunningham. And in any ...