The Color of Ballots

The following article contains anti-Black racial slurs.

In November 1987, 12 black citizens in Chattanooga filed a lawsuit in federal court alleging that at-large elections for city commissioners and the voting privileges of property owners dilute minority political power.

The city formed a charter commission to study forms of city government, and six months later a bickering commission voted 6 to 5 to recommend the broad changes sought in the lawsuit. City commissioners agreed to let voters decide the issue in a referendum, but made it clear that they personally opposed the recommendation. On election day, voters rejected the proposal by a nearly 2-to-l margin. The lawsuit went to trial on April 24, 1989.

Rawlins and Kopper, reporters at The Chattanooga Times, won a Southern Journalism Award for political reporting for their coverage of the trial.

 

 

April 19 Past and Present

Chattanooga, Tenn. — Six months after voters rejected a new form of city government, the question of fair representation remains as unresolved as ever. Next week, the debate moves before a federal judge. At issue is whether Chattanooga’s 78-year-old city commission, in which a mayor and four commissioners are chosen in citywide elections, unfairly dilutes the political power of minorities.

In a broader sense, the case reviews the city’s past and present race relations. Contrasting portraits of Chattanooga — one of a city racially divided, the other of a city of equal opportunity — will emerge in a costly legal battle as the city’s political and social history is played out on the federal-court stage.

How important is the case? “It can change the whole power-making calculus,” says University of Tennessee at Chattanooga political scientist Bob Swansbrough.

The 12 black citizens who filed the suit contend that Chattanooga’s government is discriminatory. Only one black has been elected to the city commission in the history of the city, although he is now in his fifth term. The plaintiffs seek to replace the current at-large system with district representatives, similar to the structure of county government. The plaintiffs represent a broad spectrum of Chattanooga’s black community, from traditional civil rights leaders to more outspoken current critics.

“Why is it necessary to bring the lawsuit?” plaintiff Lorenzo Ervin Jr., head of Concerned Citizens for Justice, a grassroots civil rights group, asked the city commission in 1987. “Because this government is racist and totally unresponsive to the black community. Instead of taking our claims seriously over the years of police brutality and racial discrimination, it has ignored the black community or paid lip service to our complaints.”

To build their case, lawyers for the plaintiffs have been combing city records for racially split voting patterns and have been interviewing city officials, present and past. The plaintiffs’ lawyers will seek to portray a city still racially segregated, a city controlled by an elite, white power structure, a city where tensions occasionally erupt into riots, as in 1981, after a jury acquitted two of three Klansmen in the shooting of black women.

The elections of Commissioner John Franklin and the 1969 election of City Judge Bennie Harris will likely be points of issue. Since 1955, when the first black declared his candidacy for citywide office, blacks have run in 26 elections. Black candidates have been victorious six times, but Franklin has chalked up five of those six victories. Now serving his fifth term, Franklin is the only black ever elected to the commission. In 1988, he was elected by a 79 percent majority, the largest mandate of any commissioner and one that gave him the honorary title of vice mayor. The other black elected was Harris.

Chattanooga’s city government has responded on two fronts — through the referendum that voters overwhelmingly rejected last November and in court. Lawyers defending the city will likely cite Franklin’s wide margins as well as the election of Harris as evidence that voters cross racial lines.

But the plaintiff s attorney may question how much real authority Franklin has. As commissioner of health and education, he heads a department that is largely directed by a board of education of which he is one member. Franklin chairs the elected board of education. And they may attribute Harris’ election to the power of incumbency, since he was elected after being appointed to fill an unexpired term.

A larger issue is the 1970s annexation of predominantly white suburbs that more than doubled the land area of the city and added 47,000 citizens, a population increase of42 percent. Was the underlying reason for the annexation to raise tax revenues to pay for services for poor and elderly inner-city residents, as the city may contend? Or was it to maintain a white majority amid suburban flight?

“Either way the court rules, there are going to be a lot of resentments,” says Swansbrough, the University of Tennessee political scientist. If the federal judge throws out the current system of government, many will argue he is ignoring the will of the majority that voted against city government, says Swansbrough. But if the judge allows the city to keep the current form of government, minorities are going to feel the court did not fairly consider their complaints.

 

April 25 Opening Arguments

Chattanooga’s city-commission government does not give black citizens a fair shake, a lawyer said in arguing that the system needs to be replaced. “It simply cannot be said that blacks in Chattanooga today have the same and equal opportunity with whites to elect the candidates of their choice,” said American Civil Liberties Union attorney Laughlin McDonald.

McDonald is one of a team of lawyers representing black citizens who are seeking to end the city-commission form of government that has existed here since 1911. He said the city-commission government was adopted with “discriminatory purpose.”

Among other acts the plaintiffs say were done to dilute black voting strength in Chattanooga were the massive annexations of largely white suburban areas into the city during the early 1970s. The plaintiffs note that 99.6 percent of the 28,142 citizens added to the city then were white. McDonald spoke during opening arguments before U.S. District Judge R. Allan Edgar.

Vincent Fontana, a New York attorney hired to defend the current system, said he was not denying that slavery and Jim Crow segregation laws once existed in the city. “But I submit that that part of American history has no impact on the ability of the black citizens to participate fully and effectively — and I emphasize effectively — in the political life of this city.”

Health and education commissioner John Franklin, the only black to be elected to the city commission since 1911, figured in both sides’ opening arguments. Lawyers for the black citizens contended that Franklin’s election was “an anomaly” and that he won office in a racially polarized election, in which he opposed busing for school desegregation. McDonald also argued that the budget of Franklin’s department is only a fraction of those of other city departments and that he has few responsibilities.

Fontana argued that Franklin could not be considered “a mere token.” The lawyer for the city argued that, as the holder of one of five votes on the city commission, Franklin has 20 percent of the commission’s votes, which is consistent with the fact that blacks make up about 28 percent of Chattanooga’s voting-age population. And he said Franklin has demonstrated “dramatic support” among the voters as a whole.

Lawyers for the plaintiffs argue that in 20 other tries to win a seat on the commission since 1955, blacks have failed every time. “With the exception of Franklin, black candidates have received remarkably little support from the white community. Stated differently, white voters, when given a racial choice, consistently vote overwhelmingly white,” the plaintiffs said.

McDonald noted that in 1987 Moses Freeman won a majority of the black vote but only 14 percent of the white vote when he was defeated by Charles “Pat” Rose in the race for public-utilities commissioner. Fontana suggested that result was simply because Rose is a very strong vote-getter. Fontana argued that in many cases the black candidates not only lacked support in the white community but had little in the black community as well.

Another example of the effort to keep blacks from being elected, the plaintiffs said, came after Rheubin Strickland nearly made it into a run-off for the commission in 1955. Strickland, Franklin’s business partner in the funeral home that bears their names, placed ninth. In those days, the top eight vote-getters went into run-offs and the top vote-getters in the second round won seats on the commission. But the system was changed in 1957, McDonald said, to provide for head-to-head races for individual seats on the commission with the requirement that the winner receive a majority.

 

April 25 Taking the Stand

Sitting beneath a mural depicting Chattanooga from its frontier days to the creation of TVA, an Indiana University professor painted the city’s history in stark terms of race relations and politics. Professor Lester Lamon said the city of Chattanooga and the state of Tennessee began changing voting laws during the 1880s to reverse the political gains of blacks during the Reconstruction era. The changes culminated in the switch to a city-commission government in 1911 that removed the last black elected official from the commission for 60 years.

“Blacks in Chattanooga had been far more successful than their counterparts in other Tennessee cities in using political clout to translate into patronage posts,” Lamon said. “This was viewed with increasing alarm in the 1880s by whites.” The author of two books on 19th century blacks in Tennessee contended the whites’ alarm vented itself in a legislative backlash to dilute blacks’ political power.

During five hours of testimony, Lamon said the turning point in the city’s race relations occurred when federal troops in 1863 seized Chattanooga, creating a haven for slaves seeking freedom. In 1860, Chattanooga’s population was 2,545, of whom about 12 percent was black. By 1866, the population had more than doubled to 5,776 and the black population had swelled to 46 percent, he said.

Blacks in Chattanooga from the 1860s through 1911 were closely aligned with the Republican Party, which had introduced the Reconstruction reforms, Lamon said. Seeking to maintain power in Tennessee, the Republican Party had extended voting rights to black males after the Civil War.

Over the next 20 years, blacks used their political clout to win patronage posts, such as school-board seats and police-force jobs. A particular source of irritation for whites was the presence of blacks on the police force with power to arrest or detain whites. By 1881, seven blacks worked on the 12-member police force. Lamon quoted a Chattanooga lawyer’s comments to the state legislature about the issue: “If any of you gentlemen will come over to Chattanooga and get on a little bender, we will furnish a nigger to arrest you, a nigger to lock you up, and a nigger to take care of you after you get to jail.”

To reestablish the social structure destroyed by the freeing of slaves and to put blacks back in their place, Lamon said, changes were made in 1883 to the city charter. They included a poll tax, special voting-registration procedures, at-large aldermanic elections with special residency requirements, and placement of the police force under state control.

However, through intensive organization efforts, blacks maintained seats on the city council and even a majority of registered voters in 1883. The stubborn resistance of blacks to proposals for municipal reform angered whites, Lamon testified. In 1889, the Democratic-controlled state legislature succeeded in disenfranchising large numbers of black Tennesseans through a series of voting laws and rearrangement of voting wards in Chattanooga that gave Democrats a virtual lock on the mayor’s office and city council.

 

April 29 Race and the Vote

Hamilton County’s first black legislator elected since 1884 described racial appeals in his first state House race. State Representative C.B. Robinson said he went to the legislature in 1974 after winning the general election and a Democratic primary marred by racial attacks.

“Basically, the white candidate ran a campaign based on race and segregation,” Robinson said, referring to Laban DeFriese. “He influenced three other blacks to run in order to dilute the vote. He put out cards. On the cards, there were five pictures. In each comer of the card was the picture of a black person. In the center of the card was his picture.”

Robinson, a retired school principal, said he had been nominated to fill a vacancy on the city commission in 1969. He said the commission deadlocked on his appointment and eventually selected Pat Rose, then a public works engineer, as a compromise.

Describing Rose as a friend, Robinson testified that in 1987 “the political power structure” again drafted Rose, who by then had served two terms as mayor and left politics, to run in the public utilities commissioner race against Moses Freeman Jr., a black candidate. Asked if he saw racial motivation in the drafting of Rose to oppose Freeman, Robinson said members of the “power structure” who had backed Rose’s previous races prevailed upon him to enter the race. “The financing necessary [for Freeman] to run a good campaign was shut off,” Robinson said.

 

May 2 “Highly Polarized”

A Yale University-trained expert said that Chattanooga’s elections are “highly racially polarized, particularly when they involve” races in which one candidate is black and the other is white. If Judge Edgar agrees that there has been massive voting along racial lines, the plaintiffs will have met one of the key tests to prove their case as established in a 1986 U.S. Supreme Court decision involving redrawing of North Carolina legislative districts.

A native of Lewisburg, Tennessee, J. Morgan Kousser did his senior thesis in history at Princeton University on “Tennessee Politics and the Negro 1948-64” and later earned a master’s degree and a doctorate from Yale. Kousser, who teaches at the California Institute of Technology and has also taught at Oxford University in Great Britain, referred to several similar cases in which he has testified for plaintiffs challenging at-large voting systems.

In testimony and in a report filed as an exhibit, Kousser said there is no precise line that separates a polarized from a nonpolarized election, but there is no doubt about elections here. Kousser analyzed 80 Chattanooga elections involving 258 candidates between 1969 and 1988. Of those, 75 percent showed significant degrees of racial polarization. Of 45 political contests between black and white candidates, only one, involving Franklin, did not show statistically significant racial polarization.

 

May 26 Closing Arguments

The case that could topple Chattanooga’s 78-year-old system of at-large city commission elections ended after 11 trial days, testimony from 29 witnesses, and the introduction of nearly 500 exhibits. Now it is up to Judge Edgar to decide whether to grant the 10 black plaintiffs’ request to abolish the system of electing city commissioners and judges in citywide elections.

The plaintiffs say that since blacks are only about 31 percent of Chattanooga’s population, they have little chance of winning citywide elections. They say that the setup dilutes the voting strength of blacks in violation of the federal Voting Rights Act of 1965. And they want Edgar to strike down the law allowing people who own property in Chattanooga to vote in city elections even though they don’t live inside city limits. They say that since most of those voters are white, the law dilutes black voting strength.

In closing arguments, the two sides presented starkly different accounts of how fairly blacks are represented in the present system and of race relations in general here.

Plaintiff attorney Laughlin McDonald said that historical evidence shows that the commission system was set up to lock out blacks, who had been elected before from single-member districts. “The at-large system did precisely what its framers intended it to do,” McDonald said. “There were no blacks elected to political office until 1971.” McDonald said the community has been marked by segregated housing patterns, schools, and Ku Klux Klan activity. “There has been a social, political, and economic subjugation — I don’t think the word is too strong — of the black population.”

McDonald said the discriminatory intent behind the government system has continued to manifest itself over the years. After black candidate Rheubin Strickland nearly made it into the runoff in 1955, the law was changed to require commissioners to run for individual posts and to win by an outright majority. “I don’t think that if you set out deliberately to set up the most discriminatory election system, you would find one very much different from the one you have here,” McDonald said.

Arguing that annexations in the 1970s were done partly to reduce black voting strength, McDonald pointed to a report by then-mayor Robert Kirk Walker. The report pointed out that the annexations had brought into the city middle-and upper-middle- class whites to add to the city’s “leadership base.”

But the city ’s lawyer, Vincent Fontana, said newspaper articles from the era show that keeping blacks off the commission was not the reason the system was adopted in 1911. Fontana said that in order to prevail, the plaintiffs have to show not only that there has been historical discrimination but that it continues to have impact. He pointed to statistics introduced by the city to show that 22 percent of Chattanooga’s blacks have incomes higher than the average of Chattanooga’s whites. And he quoted plaintiff Johnny Holloway as agreeing that there is a more affluent group of black people here.

The arguments focused on whether the plaintiffs had met three tests established by the U.S. Supreme Court in a 1986 North Carolina voting rights case.

One is whether the black population is sufficiently geographically compact and large enough that a single-member district with a black majority could be created. McDonald said plaintiff witnesses showed without question that this can be done. But Fontana said the real question is not just whether such districts have black majorities, but whether blacks can actually win elections. Edgar noted that has already been shown here in city school board and county commission elections where blacks have won. But Fontana argued that school board member Yussuf Hakeem runs unopposed, “so that doesn’t prove anything.”

Referring to another element of the test — whether whites usually vote as a bloc to defeat black-preferred candidates — McDonald noted that even when Franklin’s five wins are included, only 13 percent of whites crossed over to vote for black candidates. With Franklin wins left out, the crossover rate was 5 percent. “So you can see the enormous burden that a black candidate has,” McDonald said.

On another element of the test, McDonald said that of 37 elections examined here, racially polarized voting was found in 32 races or 86 percent of the time.

Arguing that Edgar should not strike down the provision allowing people to vote because they own property, Fontana said there is no evidence that it has actually worked to defeat black-preferred candidates. Edgar asked him whether there was not such evidence in the 46-vote, 1987 defeat of attorney Robert “Bob” Davis, despite his near 100 percent support among blacks. Fontana said property voting “may” have affected the race, “but there is no evidence to suggest that it, in fact, had an impact.”

But McDonald referred to the fact that in some instances large groups of non-residents buy tiny shares in small lots to vote on property. “I could buy a postage-size piece of land and deed it to my neighbor in Atlanta, and run the election here,” McDonald said. “That’s crazy.”

 

The city spent $760,000 defending itself, but in August the judge ruled in favor ofthe plaintiffs and ordered the city to change its system of at-large elections. A month later, city commissioners submitted a plan to elect nine council members by districts — including three which are predominantly black.

On December 2, plaintiffs rejected the city plan, saying it would leave real power in the hands of a mayor elected at-large. They say Chattanooga should be run by a city manager appointed by commissioners. The judge is expected to hand down a final ruling in early 1990.