Houston v. Lafayette County MS , 51 F.3d 547 ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 93-7750
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BEATRICE HOUSTON, ET AL.,
Plaintiffs-Appellants,
versus
LAFAYETTE COUNTY, MISSISSIPPI, ET AL.,
Defendants-Appellees.
__________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
__________________________________________________
ON SUGGESTION FOR REHEARING EN BANC
(Opinion May 4, 1995, 5 Cir., 51 F.3d 547)
(June 16, 1995)
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Treating the Suggestion for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
No member of the panel nor Judge in regular active service of the
Court having requested that the Court be polled on rehearing en
banc (FRAP and Local Rule 35), the Suggestion for Rehearing En Banc
is DENIED. However, in the interest of clarity, we withdraw our
prior opinion, Houston v. Lafayette County, 51 F.3d 547 (5th Cir.
1995), and substitute the following:
Residents of Lafayette County, Mississippi, appeal from the
district court's dismissal of their vote dilution challenge under
§ 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988), to the
redistricting plan for county supervisor elections as submitted by
the County to the United States Department of Justice for
preclearance. The district court found that the plaintiff
residents had failed to prove that the black population was
geographically compact, that black voters exhibited political
cohesion, and that white voters voted in bloc to defeat minority
candidates. We vacate the district court's judgment and remand for
clarification.
I
County supervisors in Lafayette County are elected from five
single-member election districts. Black residents constitute
approximately one-quarter of the voting-age population and
currently reside throughout the five districts. No black resident
has ever been elected to the office of county supervisor. Black
residents have been elected to sub-county positions such as
constable and board of education member.
At trial, plaintiff residents used expert testimony and
reports to prove their vote-dilution case. Plaintiffs' expert,
Victoria Caridas, testified that black residents in Lafayette
County could be placed in a majority-minority district, that is, a
district where minority residents constituted a majority of the
eligible voters. To demonstrate the feasibility of such placement,
2
she submitted two alternative plans that would achieve a 54-56%
black voting-age majority in one district.
Plaintiffs' expert Dr. Allan Lichtman testified that black
residents of Lafayette County exhibit political cohesion and that
white residents of Lafayette County vote as a bloc to defeat
minority candidates. In support of these conclusions, Dr. Lichtman
testified that he used two statistical methods to analyze Lafayette
County election data: bivariate ecological regression and extreme
case analysis.1 Dr. Lichtman analyzed fourteen primary elections
using ecological regression and five primary elections using
extreme case analysis.
The County's expert, Dr. Ronald Weber, also performed
ecological regression and extreme case analysis on Lafayette County
election data, although he did not analyze the same elections as
Dr. Lichtman had. Based on his analysis, Dr. Weber concluded that
racial polarization))that is, that black residents vote for black
candidates and white residents vote for white candidates))does not
occur in Lafayette County.
The district court found that the plaintiff residents had not
shown that black residents were sufficiently geographically compact
1
Bivariate ecological regression generates predictions of the
correlation between election results and the race of the residents voting in the
election. Statisticians use the correlations to estimate the percentages of
black residents' and white residents' support for particular candidates. Extreme
case analysis evaluates the actual election choices of voters in precincts whose
residents are predominantly))80-90%-plus))of one race. Both methods of analysis
utilize correlation coefficients and measures of statistical significance to
determine the degree of confidence with which to view the estimates and
predictions produced by the methods.
3
to allow formation of a majority-minority district.2 The court
also found that black residents did not exhibit political cohesion
and that white residents did not vote as a bloc to defeat minority
candidates. Alternatively, the district court found that, even if
the plaintiff residents had proved geographical compactness, black
political cohesion, and white bloc voting, they had failed
nonetheless to prove that the totality of the circumstances showed
that the County's plan diluted minority voting strength. Plaintiff
residents appeal the district court's decision, challenging each of
the above findings.
II
Section 2 of the Voting Rights Act provides that: "No voting
qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political
subdivision in a manner which results in a denial or abridgement of
the right of any citizen of the United States to vote on account of
race or color . . . ." 42 U.S.C. § 1973; see also Thornburg v.
Gingles, 478 U.S. 30, 47, 106 S. Ct. 2752, 2764, 92 L. Ed. 2d 25(1986) ("The essence of a § 2 claim is that a certain electoral
law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives.").
In order to prove a § 2 violation, a plaintiff must
2
The district court described the plaintiff residents' plan as a
"geographic game of gymnastics."
4
demonstrate three preconditions:
First, the minority group must be able to demonstrate
that it is sufficiently large and geographically compact
to constitute a majority in a single-member district.
. . . Second, the minority group must be able to show
that it is politically cohesive. . . . Third, the
minority group must be able to demonstrate that the white
majority votes sufficiently as a bloc to enable it))in
the absence of special circumstances, such as the
minority candidate running unopposed . . .))usually to
defeat the minority's preferred candidate.
Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766-67. Although
Gingles concerned at-large election districts, these preconditions
also apply to challenges to single-member districting schemes.
Growe v. Emison, ___ U.S. ___, ___, 113 S. Ct. 1075, 1084, 122 L.
Ed. 2d 388 (1993) (extending Gingles preconditions to single-member
district cases). If a plaintiff demonstrates the Gingles
preconditions, the district court determines whether, under the
totality of the circumstances, the plaintiff has proven the
existence of vote dilution under the challenged plan. In doing so,
the district court applies factors identified by the Senate
Judiciary Committee Report accompanying the 1982 amendments to § 2.
Gingles, 478 U.S. at 36-37, 106 S. Ct. at 2759.3
3
These factors are:
1. the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in the
democratic process;
2. the extent to which voting in the elections of the state or
political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements, anti-
single shot provisions, or other voting practices or procedures that may
enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the
minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or
5
We review the district court's findings with respect to the
Gingles preconditions and the totality of the circumstances factors
for clear error. See Westwego Citizens for Better Government v.
City of Westwego, 946 F.2d 1109, 1118 (5th Cir. 1991) (Westwego
III) (reviewing findings in § 2 case for clear error); Campos v.
City of Baytown, Tex., 840 F.2d 1240, 1243 (5th Cir. 1988) (same),
cert. denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed. 2d 564(1989). "[A] finding is ``clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been made." Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct.
525, 542, 92 L. Ed. 2d 746 (1948)).
political subdivision bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability to
participate effectively in the political process;
6. whether political campaigns have been characterized by overt or
subtle racial appeals;
7. the extent to which members of the minority group have been elected
to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of
plaintiffs' evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of
elected officials to the particularized needs of the members of the
minority group.
whether the policy underlying the state or political subdivision's use of
such voting qualification, prerequisite to voting, or standard, practice
or procedure is tenuous.
S. Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.C.C.A.N. 177,
206-07, quoted in Gingles, 478 U.S. at 36-37, 106 S. Ct. at 2759.
6
A
Plaintiff residents contend that the district court clearly
erred in concluding that the black population of Lafayette County
was not sufficiently geographically compact to allow the formation
of a majority-minority district. They argue that our decision in
Clark v. Calhoun County, Miss., 21 F.3d 92 (5th Cir. 1994),
mandates reversal.
Plaintiff residents challenge the district court's reasoning
that "[t]he potential for increased minority influence that a
majority composition of blacks within one district may afford is
necessarily offset by the significantly diminished power of those
left behind in the overwhelmingly white supervisor districts." We
agree with the plaintiff's contention. As we stated in Clark:
[T]he district court's suggestion that the formation of
plaintiffs' proposed district would dilute the voting
strength of black citizens in the remaining districts
does not support its conclusion that the black population
in [the county] is not sufficiently geographically
compact. Whenever a majority-black district is created
to remedy a § 2 violation, the number of black voters in
the other districts must necessarily be reduced. Indeed,
without this phenomenon, no majority-black districts
would ever be created. Because the record in this case
reflects no loss of influence that is not found in every
§ 2 case, the district court erred in finding that the
loss of influence supported its conclusion that the black
population in [the county] was not sufficiently
geographically compact.
Clark, 21 F.3d at 95; see also Campos, 840 F.2d at 1244 ("The fact
that there are members of the minority group outside the minority
district is immaterial. . . . Just because not all of the
minorities in [the city] are in the district does not mean that
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Gingles' first part is not satisfied."). Accordingly, the district
court's reasoning cannot support its finding that the black
population is not geographically compact.
In Clark, as in this case, the district court rejected the
plaintiffs' proffered districting plan as being too oddly shaped.
Compactness, however, is not as narrow a standard as the district
court construed it to be. "The first Gingles precondition does not
require some aesthetic ideal of compactness, but simply that the
black population be sufficiently compact to constitute a majority
in a single-member district." Id. at 95. Moreover, the question
is not whether the plaintiff residents' proposed district was oddly
shaped, but whether the proposal demonstrated that a geographically
compact district could be drawn. See id. ("[P]laintiffs' proposed
district is not cast in stone. It was simply presented to
demonstrate that a majority-black district is feasible in [the]
county. If a § 2 violation is found, the county will be given the
first opportunity to develop a remedial plan." (citations
omitted)). Thus, although the edges of the plaintiff residents'
proposed district look ragged in places, this does not
automatically mean failure to meet the first Gingles precondition.4
As in Clark, the plaintiff residents' proposed district is not
nearly as "bizarre" as those rejected in Shaw v. Reno, ___ U.S.
___, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993), criticized in
4
Plaintiff residents explain in their brief that their proposed plans
used existing census block lines, which "lend themselves to irregular shapes."
8
Growe, ___ U.S. at ___, 113 S. Ct. at 1085-85, or invalidated in
Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. Tex. 1994) (three-
judge panel), appeal filed, 63 U.S.L.W. 3388 (U.S. Oct. 31, 1994).
See Shaw, ___ U.S. at ___, 113 S. Ct. at 2826 (disapproving of
reapportionment plan "so highly irregular that, on its face, it
rationally cannot be understood as [being] anything other than
[race-based]."). Indeed, the compactness of the district in the
plaintiff residents' proposed plan resembles that of many districts
considered constitutionally acceptable by other courts. See, e.g.,
Vera, 861 F. Supp. at 1345 (approving districts the shape of which
was "at least not highly irregular apart from the small racially
distinct appendages"); see also Richard G. Pildes & Richard G.
Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election District Appearances After Shaw v. Reno, 92
Mich. L. Rev. 483, 542 fig. 2(d), 544 fig. 2(e), 545 fig. 3(a), 547
fig. 3(d) (1993) (explaining that districts of similar compactness
to that proposed in this case satisfy the first Gingles
precondition). Lastly, the district in the plaintiff residents'
proposed plan is not substantially less compact than districts--
which the County asserts are compact--in the County's 1982 and 1991
plans. See Defendants' Exhibits 1(a), 1(b), 10, 16 (1982 and 1991
County redistricting maps). The district court should have focused
on the size and concentration of the minority population, rather
than only on the shape of the districts in the plaintiff residents'
specific proposals. Accordingly, we hold that the district court
9
clearly erred in finding that the black population of Lafayette
County was not sufficiently geographically compact, based on its
articulated rationale. Accordingly, we reverse and remand to the
district court for further findings on this precondition.
B
Plaintiff residents further contend that the district court
clearly erred in concluding that they had failed to satisfy the
second and third Gingles preconditions because voting in Lafayette
County does not exhibit signs of racial polarization. The
plaintiffs' expert, Dr. Lichtman, used both bivariate ecological
regression and extreme case analysis to show black political
cohesion and white bloc voting. The district court, however,
viewed the plaintiff residents' proof on these elements as limited
to the extreme case analysis, stating that "[t]o determine voter
preference, . . . Lichtman relied on extreme case analysis."
The district court criticized Lichtman's analysis because
Lichtman could use extreme case analysis only on 80%-plus white-
majority precincts.5 In the district court's view, "[w]ithout
containing any heavily black precincts, Plaintiffs' analysis is
incomplete: it sheds no light on and offers little proof of either
black political cohesiveness or the preferred candidate of blacks."
The district court's commentary on Lichtman's ecological regression
consists merely of a statement that such studies are
"nondemonstrative of a minority vote dilution claim" and "did not
5
Lafayette County has no 80%-plus black-majority precincts.
10
encompass other factors and variables that provide further insight
to voting behaviors and patterns." The district court favored the
statistics of Dr. Weber, the defendants' expert, because he
"incorporated other acceptable research methods associated with
history, and the political and social sciences."
Plaintiff residents correctly state that we vacated this
district court's similar approach in Teague v. Attala County, 17
F.3d 796 (5th Cir. 1994). In Teague, the district court rejected
the plaintiffs' statistics summarily, and we vacated the judgment
because the district court had neither addressed the statistical
evidence nor provided this court with sufficiently particularized
findings such that we could conduct a proper appellate review.
"[I]n making its intensely fact-specific inquiry here, the district
court ought to have discussed appellants' statistical evidence more
thoroughly because that was the principal evidence they offered and
because their statistics had at least surface plausibility." Id.
at 798.
We conclude that the district court's findings in this case
suffer the same flaws as its findings in Teague. First, the
district court should have considered Lichtman's ecological
regression probative of the issues of black political cohesion and
white bloc voting. See Gingles, 478 U.S. at 52-53, 106 S. Ct. at
2767 (approving of use of extreme case analysis and bivariate
ecological regression analysis to prove racially polarized voting).
Second, the district court should not have rejected summarily the
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plaintiff residents' statistics on the grounds that they "look[ed]
strictly at how, rather than why, people vote the way they do."
While "evidence that divergent voting patterns are attributable to
partisan affiliation or perceived interests rather than race [is]
quite probative on the question of a minority group's future
success at the polls," League of United Latin Am. Citizens v.
Clements, 999 F.2d 831, 859 (5th Cir. 1993), evidence that lacks
such evaluation of the voters' possible motivations still carries
probative value. The statistics the plaintiff residents offered
have facial plausibility, and therefore the district court should
have considered them. Teague, 17 F.3d at 798.6
Moreover, as in Teague, the district court's findings are too
general to allow us to conduct our appellate review. Id. at 798("This court is unable to discharge our appellate function in
voting rights cases without more guidance by the trial court
concerning its credibility choices on the welter of evidence before
6
See also Clark, 21 F.3d at 96 ("The district court, of course, is not
obliged to accept plaintiffs' statistical evidence as conclusive on the question
of whether racially polarized voting exists in [the county]. . . . However, when
the statistics are the principal evidence offered by plaintiffs and when the
statistics have at least surface plausibility, the district court must ensure
that it thoroughly discusses its reasons for rejecting that evidence."); Monroe
v. City of Woodville, 897 F.2d 763, 764 (5th Cir.) ("Statistical proof of
political cohesion is likely to be the most persuasive form of evidence, although
other evidence may also establish this phenomenon. . . . Nevertheless, courts
must carefully examine statistical evidence of racial bloc voting to determine
its relevance and probativeness [sic] to a finding of political cohesiveness."
(citation omitted)), cert. denied, 498 U.S. 822, 111 S. Ct. 71, 112 L. Ed. 2d 45(1990); Westwego Citizens for Better Gov't v. Westwego, 872 F.2d 1201, 1203-04
(5th Cir. 1989) (Westwego I) (criticizing district court for failing to note
substantial contrary evidence and failing to "specify on which evidence it relied
in support of its conclusions"); Velasquez v. City of Abilene, 725 F.2d 1017,
1020 (5th Cir. 1984) ("Although the trial court is not required to recount and
discuss every bit of evidence offered to it, it is required to discuss all the
substantial evidence contrary to its opinion.").
12
it.").7 Although the district court may ultimately decide that the
defendants' evidence wins this battle of statistics, the district
court must at the very least thoroughly discuss its choices with
specific references to the evidence proffered. See Teague, 17 F.3d
at 798 (remanding for further clarification because "the district
court findings on the subjects of racial polarization and minority
political cohesion are broad and general and not explicitly tied to
the testimony, although many witnesses were called in the case").8
Accordingly, we vacate the district court's decision and remand for
clarification of the racial-polarization and bloc-voting issues.9
C
Given that we remand for further findings on the second and
third Gingles preconditions, we also vacate the district court's
alternative holding that the plaintiff residents did not show that,
under the totality of the circumstances, the districting scheme in
Lafayette County diluted minority votes. See Clark, 21 F.3d at 97(vacating and remanding alternative holding because findings on
underlying preconditions were vacated). On remand, if the district
7
Indeed, at least half of the analysis section of the district court's
opinion in this case is identical to that in Teague.
8
See also Westwego I, 872 F.2d at 1204 ("The district court's findings
are stated in a conclusory fashion, with virtually no reference to the evidence
presented at trial. While the district court may in fact have evaluated the
evidence critically, the court's assessment of the evidence cannot be discerned
from the record before us."); Velasquez, 725 F.2d at 1021 ("It may be that the
court below did not consider such evidence substantial or did not credit its
validity, but we are unable to determine from a silent record the thought
processes of the court below.").
9
Because we remand for additional findings, we do not address
plaintiffs' challenges to the district court's comments on multiple minority
candidate races and crossover voting.
13
court determines that the plaintiff residents satisfy the Gingles
preconditions, it should then evaluate their claim under the
totality of the circumstances. See Johnson v. DeGrandy, ___ U.S.
___, ___, 114 S. Ct. 2647, 2657, 129 L. Ed. 2d 775 (1994)
(explaining that proof of Gingles preconditions is necessary but
not sufficient to establish a § 2 violation). We note that a
totality of the circumstances discussion must contain more than the
analysis provided in the opinion we have reviewed here.
Specifically, the district court must consider and analyze each of
the Senate Report factors and incorporated in Gingles. East
Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson,
926 F.2d 487, 491 (5th Cir. 1991) ("In evaluating the totality of
the circumstances, the court should consider the [Senate Report]
factors listed . . . ."); see also supra note 1 and accompanying
text (explaining and enumerating Senate Report factors).
III
For the foregoing reasons, we VACATE the judgment of the
district court with respect to the Gingles preconditions and the
totality of the circumstances factors. We therefore REMAND for
additional findings consistent with this opinion.
ENTERED FOR THE COURT:
________________________________________
United States Circuit Judge
14