United States v. Brown ( 2009 )

REVISED APRIL 1, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 27, 2009
No. 07-60588 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
IKE BROWN, Individually and in his official capacities as Chairman of
Noxubee County Democratic Executive Committee and Superintendent of
Democratic Primary Elections; NOXUBEE COUNTY DEMOCRATIC
EXECUTIVE COMMITTEE
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
Before KING, DENNIS, and ELROD, Circuit Judges.
KING, Circuit Judge:
Defendants–Appellants Noxubee County Democratic Executive Committee
and its chairman, Ike Brown, are tasked, among other things, with organizing
and orchestrating Noxubee County’s Democratic primary and runoff elections.
After investigating the methods by which defendants conducted the county’s
2003 elections, the United States brought this suit on behalf of the county’s
white voters—the minority in that county—for alleged violations of § 2 of the
Voting Rights Act. The district court considered the evidence presented during
a two-week bench trial and concluded that defendants indeed violated § 2 by
intentionally diluting the voting power of white Democrats. With the 2007
primary elections fast approaching, however, the court delayed announcing a
remedy. After that primary—and in large part due to the events of that
primary—the district court tailored a remedial order to prevent the recurrence
of electoral abuses. Defendants now challenge both the district court’s liability
holding and its remedial order.
I. FACTS AND PROCEEDINGS
Because the facts of this case are well set out in the district court’s
thorough opinion, United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007),
we do not here provide an exhaustive recital of the court’s findings; instead, we
summarize the key facts forming the foundation for the district court’s liability
holding. Additionally, we describe the events of the August 2007 primary
election preceding and precipitating that court’s remedial order. Before
discussing either the liability or remedial proceedings, however, we briefly set
forth Mississippi’s election law and process because, by abusing their authority
over this process, the Noxubee County Democratic Executive Committee
(“NDEC”) and Ike Brown, as the committee’s chair (collectively, “defendants”),
were found to have intentionally discriminated against the county’s white voters
in violation of § 2 of the Voting Rights Act.
A. Mississippi Electoral Processes
In addition to serving as the local governing body of the Democratic Party,
NDEC and its chair are responsible for conducting the county’s Democratic
primary elections. See MISS. CODE ANN. § 23-15-263(1).1 Such a task includes
1
Section 23-15-263(1) states that:
[T]he county executive committee at primary elections shall perform all duties
that relate to the qualification of candidates for primary elections, print ballots
for primary elections, appoint the primary election officers, resolve contests in
regard to primary elections, and perform all other duties required by law to be
performed by the county executive committee . . . .
2
qualifying candidates, printing absentee ballots, preparing ballots for the polls,
appointing and training poll managers and clerks to staff the polls on election
day, and generally supervising the primary election. See id. § 23-15-263(1).2
The district court’s determinations, in both the liability ruling and the remedial
order, focus specifically on the defendants’ failures with regard to observing
Mississippi’s absentee ballot requirements, applying Mississippi’s specific
method for counting absentee ballots, and preventing the illegal assistance of
voters.
Mississippi’s absentee voting provisions are “intended to ensure the
integrity of absentee ballots,” and, accordingly, the Mississippi Supreme Court
“requires strict compliance with the statutes concerning absentee ballots.” Lewis
v. Griffith, 664 So. 2d 177, 185 (Miss. 1995). In Mississippi, a voter may vote by
absentee ballot either by appearing in person at the county registrar’s office or
by requesting an absentee ballot by mail and mailing the ballot back. See MISS.
CODE ANN. § 23-15-715. To vote by mail, the voter must meet specific statutory
requirements: she must either be at least sixty-five years old; disabled;
temporarily residing outside the county; or staying with a spouse, parent, or
child who is hospitalized more than fifty miles away on election day. See id.
§ 23-15-715(b). After applying to vote by absentee ballot, the voter then receives
a ballot and its corresponding return envelope, on the back of which is printed
an affidavit for the voter to complete. See id. § 23-15-635. In the case of an
See also id. § 23-15-401 (“The term ‘officials in charge of the election’ shall mean . . . the county
executive committee . . . .”).
2
With specific regard to manning the polls, the executive committee must meet no later
than two weeks prior to a primary election in order to appoint managers and, where permitted,
clerks to work at each polling precinct. See id. § 23-15-265(1). The committee must name at
least three managers per precinct, see id. § 23-15-231, but it may designate up to an additional
three persons to serve either as managers or clerks, see id. § 23-15-235. Additional clerks may
be appointed if the voting precinct contains more than 500 registered voters. Id. The
committee must then sponsor training sessions for the election managers no less than five days
prior to the primary election. See id. § 23-15-239(1).
3
absentee voter who is not disabled, this affidavit must be completed in the
presence of an official authorized to administer oaths—i.e., a notary public. See
id. § 23-15-721. Finally, the voter must sign her name across the envelope’s flap.
See id. § 23-15-633.
On election day, the absentee ballots are inspected for compliance with the
above statutes and, if compliant, are counted. Candidates or their
representatives may observe this counting and may lodge challenges against a
ballot or a ballot’s affidavit. See id. §§ 23-15-577, -581, -643.3 The counting
process is set out by § 23-15-639(1): first, the manager must announce the name,
address, and precinct inscribed on each envelope; and second, the signature of
the voter’s absentee ballot application must be compared to the signature on the
absentee ballot’s envelope. See also id. § 23-15-643 (“If the officials are satisfied
that the affidavit is sufficient and that the absentee voter is otherwise qualified
to vote, an official shall announce the name of the voter and shall give any
person present an opportunity to challenge in like manner . . . .”). If the affidavit
is insufficient or the signatures fail to match, then the ballot must be marked
“REJECTED” and kept apart from the accepted ballots. See id. § 23-15-641.
Finally, Mississippi permits assisting voters while they cast their ballots
at the poll, but this permission is not without limit. Assistance may only be
provided after a voter requests it and if the voter is either blind, disabled, or
3
Section 23-15-577 states that the poll managers must publicly count the ballots and
that:
Each candidate shall have the right, either in person or by a representative to
be named by him, to be present at the polling place, and the managers shall
provide him and his representative with a suitable position from which he or his
representative may be able to carefully inspect the manner in which the election
is held. He or his representative shall be allowed to challenge the qualifications
of any person offering to vote, and his challenge shall be considered and acted
upon by the managers.
Regarding observation of the ballots, § 23-15-581 dictates that “[c]andidates or their duly
authorized representatives shall have the right to reasonably view and inspect the ballots as
and when they are taken from the box and counted.”
4
unable to read. See id. § 23-15-549 (“Any voter who declares to the managers of
the election that he requires assistance to vote by reason of blindness, disability
or inability to read or write may be given assistance by a person of the voter’s
choice . . . .” (emphasis added)); see also O’Neal v. Simpson, 350 So. 2d 998, 1009
(Miss. 1977) (“We hold that before any voter may receive assistance in marking
his ballot, he must first request assistance from the managers of the election
who must be satisfied that the voter is either blind, physically disabled or
illiterate and needs assistance in marking his ballot. . . . [A]ll voters are not
entitled to assistance in marking their ballots, but only the blind, physically
disabled or illiterate may receive assistance in marking their ballots.”).
With this picture of Mississippi’s election requirements in mind, we turn
to the district court’s findings regarding how defendants’ conduct abused this
process to the detriment of the county’s white voters.
B. The Liability Proceedings
Noxubee County’s voting population is 65.7% black and 32.5% white. Of
the county’s registered Democrats, 80% are black and 20% are white.4
Additionally, the parties concede and the government’s expert showed that the
county’s voting is racially polarized, meaning that “there is a consistent
relationship between [the] race of the voter and the way in which the voter
votes.” See Thornburg v. Gingles, 478 U.S. 30, 53 n.21 (1986).
The alleged violations of white voters’ rights occurred during the 2003
primary and subsequent runoff elections. The district court concluded that
during that time “defendants engaged in improper, and in some instances
fraudulent conduct, and committed blatant violations of state election laws[] for
the purpose of diluting white voting strength.” Brown, 494 F. Supp. 2d at 485.
White votes were diluted by defendants’ involvement in (1) obtaining large
4
All of the county’s Republicans at the time were white.
5
numbers of defective absentee ballots from black voters; (2) facilitating the
improper counting of absentee ballots in order to ensure that the defective
ballots were counted; and (3) permitting the improper assistance of black voters.
Evidence bearing on defendants’ intent included: a press release issued by
Brown that listed 174 white Democrats whom he intended to challenge were
they to vote in the 2003 Democratic primary; statements made by Brown before
and during his chairmanship of NDEC; the departure from the normal practice
of hiring poll workers in proportion to the party membership’s racial makeup;
and the lack of any legitimate explanation for defendants’ conduct.
The rate of absentee voting in Noxubee County is abnormally high relative
to that of its sister counties: the government’s expert reported that, while
roughly 20% of the ballots in Noxubee County are absentee ballots, other
Mississippi counties experience an absentee voter rate anywhere from 3% to 6%.
To maximize the number of absentee ballots, a common and legitimate practice
in Mississippi is for a candidate or her supporters to hire notaries and dispatch
them so that they may call on possible constituents who have applied to vote
absentee—Brown did no less, as the evidence showed that he financed the notary
fees of more than fifty notaries. But the district court found evidence
demonstrating that defendants went beyond any legitimate bounds of this
practice. First, the court heard testimony concerning the actions of Carrie Kate
Windham, an NDEC member whose notary fee was paid by Brown. In one
instance, Windham recruited Nikki Halbert, a black voter who did not qualify
to vote absentee, to vote by absentee ballot. Although Halbert did not apply to
vote absentee, she received an absentee ballot in the mail and completed it.
Windham returned to collect the ballot, which she carried away in its unsealed
and unsigned envelope. When shown the signatures on the application and
6
envelope at trial, Halbert maintained that neither was hers.5 Two additional
black voters testified that Windham recruited them to vote by absentee ballot
despite the fact that they did not meet the requirements and had not applied to
do so. More troubling, these two voters—who did not request voting
assistance—indicated that Windham selected candidates for the voters and
marked their ballots for them. Second, Mable Jamison, an independent notary,6
testified that Brown phoned her in an effort to dissuade her from collecting
absentee ballots from voters that “his people,” such as Windham, intended to
collect: “[h]e pretty much said that his people had did the initial leg work and I
shouldn’t be picking up his ballots.” Id. at 459. Finally, the court heard
testimony from Gwendolyn Spann, whom Brown recruited to serve as a notary.
After receiving her notary materials, paid for by Brown, Spann explained that
she would receive a list of voters to contact, all of whom were black, and that
Brown paid her based on the amount of work she did.
These examples illustrated defendants’ attempts to obtain a
disproportionate number of absentee ballots from black voters; nonetheless, “[a]n
absentee ballot can only be effective if it is counted.” Id. at 461. To that end, the
evidence illustrated defendants’ permitting the improper counting of absentee
ballots and defendants’—specifically, Brown’s—direct influence over poll
managers in counting the ballots. Defendants deviated from the state
Democratic party’s practice of employing a racially representative corps of poll
managers and clerks; instead, they raised a workforce of only 6% whites in a
5
Additionally, the court permitted Halbert to testify a second time at trial because,
after her initial testimony, Windham confronted Halbert about her testimony outside of court.
According to Halbert, Windham arrived at Halbert’s home, stated that “[w]e black people need
to stick together,” and suggested that Halbert should “tell them that you probably didn’t
understand what you was being asked, the reason you said what you said.” Id. at 460 n.34.
Despite this, Halbert’s testimony remained unchanged.
6
Jamison was “independent” in that she did not seek out absentee ballots for any
particular candidate. She aided absentee voters on her own as a form of community service.
7
county where 20% of registered Democrats are white. While counting the
absentee ballots, the workers failed to count the absentee ballots in accordance
with Mississippi law by neglecting to read each voter’s name aloud, preventing
candidates and their representatives from clearly observing the ballots as they
were counted, and ignoring challenges brought by candidates and their
representatives. NDEC members were involved in this conduct: at the
Shuqualak precinct, poll managers were directed by Gary Naylor, an NDEC
member, to continue briskly counting absentee ballots despite complaints from
a candidate’s representative that the speed at which the managers were
counting prevented the reasonable viewing and inspection of the ballots. At the
Title One precinct, NDEC members Dorothy McCoy, a poll manager, and
Windham, not a poll manager, ignored a challenge to an absentee ballot and
summarily counted the ballot. As for Brown, his involvement was particularly
pervasive. At the West Macon precinct, Octavia Stowers, a poll manager, called
Brown on a cell phone to tell him that challenges were being lodged against
absentee ballots; Stowers then announced, “Ain’t no ballots being challenged.
I was instructed by Ike not to—can’t no ballots be challenged,” and she
thereafter refused to consider further challenges. Id. at 464. At the East Macon
precinct, managers were unsure how to proceed when the absentee ballot of a
voter who later voted in person was mixed in with the remaining, uncounted
absentee ballots. Brown, according to witness testimony, entered the scene and
ordered the poll managers to “[c]ount every vote, count them every one right
now. Pick up those absentee ballots that are on that table and bring them over
here and put them in that machine right now.” Id. at 465. The poll managers
complied without any further examination of the absentee ballots. Finally, at
the Brooksville precinct during the 2003 primary runoff, testimony showed that
Brown inspected the absentee ballots the night before the runoff and placed
yellow post-it notes on select ballots that he wished to be rejected. On the note,
8
he indicated the reason why he considered the ballot deficient. The next day,
Brown told the poll managers “I’ve already went through these absentee ballots
and I put y’all’s stick-on stickers on the ballots that I want rejected and the rest
of them is all right to count.” Id. at 466. Brown’s directions were followed
without deviation. All of the marked ballots were rejected, including white
voters’ absentee ballots shown to possess the same deficiencies as black voters’
ballots that were counted. Although all of defendants’ witnesses who addressed
these issues denied that any step was skipped in the ballot-counting process,
that any candidate or representative was prevented from viewing the ballots,
that any challenge was ignored, and that Brown influenced any decision made
regarding whether to count or reject a ballot, the court found the detailed
accounts of the government’s witnesses more credible.
The district court also heard evidence concerning the illegal assistance of
black voters at the polling places. Witnesses recounted that both black poll
workers and unidentified black individuals repeatedly approached black voters,
who made no request for assistance, in order to solicit the provision of
assistance. This assistance involved marking the ballots for the voter without
consultation, and no such assistance was proffered to white voters. Defendants’
witnesses denied that such assistance was made and contended that voting
assistance was provided only when requested; again, the court considered the
government’s witnesses credible.
Finally, the district court considered evidence bearing on defendants’
intent. The government presented a press release issued by Brown prior to the
2003 primary election. In it, Brown named 174 Democratic voters, all white,
whom he intended to challenge were they to vote in the 2003 Democratic
primary. The press release purported to base this prospective challenge either
on asserting that the voter moved outside the county or on claiming that the
9
voter was not loyal to the Democratic party.7 As only white voters were listed,
the district court considered it “not credible in the least that Brown was only
aware of whites who had moved and were consequently no longer eligible to
vote.” Brown, 494 F. Supp. 2d at 477. Further, while all of the county’s
Republicans are white, the court noted that not all Democrats are black and that
Brown failed to identify any investigation done or reasons why he suspected the
named voters were in fact Republicans other than on the basis of their race.
Although no challenges were in fact brought, testimony revealed the effects of
this list: one voter was so intimidated that she did not vote; another was
intimidated to the point that she did not feel she could approach the polls alone.
The court considered statements made by Brown both during and before
his chairmanship of NDEC in which he referenced race as a means to garner
support for black candidates. In 1995, he urged voters to “Keep Hope Alive [and]
Vote Black in ’95” in an open letter to Noxubee County voters. As chair of the
NDEC, Brown voiced the opinion that all of the county’s elected officials should
be black; to that end, he baldly accused white elected officials of racism, without
support, in an effort to arouse black voters to vote against a white official and to
support a black challenger.8 He also recruited black individuals to run for office
even though he knew the individuals failed to meet the position’s qualifications.
For example, he recruited a black attorney to run for county prosecuting
attorney against the white incumbent notwithstanding the fact that the
7
The latter challenge relied on § 23-15-575, which states that “[n]o person shall be
eligible to participate in any primary election unless he intends to support the nominations
made in the primary in which he participates.” Mississippi’s Attorney General issued an
opinion addressing the enforceability of this provision and strongly cautioned against
challenging voters in this regard. See Op. Miss. Att’y Gen. (July 21, 2003), 2003 WL 21962318.
8
We emphasize that Brown is not being punished for the content of his speech. The
district court made clear that it considered Brown’s statements only insofar as they illuminated
his motive and intent in connection with the conduct that did violate § 2. See id. at 452
(stating that Brown’s statements “give context and meaning to his actions as NDEC
chairman”).
10
challenger did not meet the residency requirement for the position. When the
incumbent, Ricky Walker, attempted to contest his challenger’s qualifications
with the NDEC, Brown and NDEC refused to permit Walker to present his
argument and barred Walker from the remainder of the proceedings, which were
held at Brown’s home. Walker later successfully challenged the candidate’s
qualifications in state court.
Considering all of this evidence, the district court concluded that
defendants engaged in a “pattern of episodic behavior intended to deny white
voters equal participation in the political process.” Id. at 482. By soliciting large
numbers of defective black absentee ballots, wielding their authority to ensure
that these ballots were counted, and permitting the improper assistance of black
voters—all with the intent to dilute the voting power of white
Democrats—defendants were held to have violated § 2 of the Voting Rights Act.
C. The Remedial Proceedings
After concluding that defendants were liable under § 2, the court ordered
that each party submit a proposed remedy. To that end, the court considered
testimony at two evidentiary hearings: one held prior to the August 2007
primary election; the other, after the election. Upon considering the evidence,
the district court issued its remedial order.
On July 30, 2007, the district court conducted the first evidentiary
hearing. There, the court considered the respective remedies proffered by the
government and defendants. The government urged the district court to appoint
a Referee-Administrator to “carry out almost all aspects of Democratic Primary
elections, though the [d]efendants would otherwise be permitted to operate party
functions as usual.” The government further requested that the court delay the
county’s upcoming primary election. Additionally, the government sought to
limit defendants’ access to the Circuit Clerk’s office two weeks prior to each
election and their access to polling places on election day. In their response,
11
defendants asserted that they had undertaken various voluntary steps in an
effort to improve the county’s electoral process and that these steps had cured
the practices found violative of the Voting Rights Act. Defendants further
represented to the court that Brown would not participate in the absentee ballot
process, that absentee ballots would be properly counted, that candidates and
their representatives would be permitted to challenge absentee ballots, that
individuals would not be permitted to offer unsolicited assistance to voters, and
that poll managers would generally be instructed according to the MISSISSIPPI
POLL MANAGER GUIDE. During the hearing, Brown testified that the only part
he intended to play in the primary election was to certify the results. In view of
these representations, the parties jointly recommended that the court permit the
August 2007 primary election to go forward and to delay the subsequent runoff;
the district court acquiesced and issued an order accordingly. Federal observers
were authorized and, in August, the primary election took place.
At the second hearing, convened August 22, 2007, the district court was
presented with testimony concerning the events of the primary election. Despite
defendants’ representations, the election replayed many of the faulty
characteristics of the 2003 elections. First, Brown remained involved in the
electoral process: he had access to the absentee ballots the night before the
election; he was responsible for assigning and replacing poll managers; and he
interjected himself, yet again, into the ballot-counting process at two separate
precincts. At the Earl Nash precinct, Mildred Reed, a poll manager, received a
call from Brown in which he ordered her to “rush up” the counting process. At
the Macon Fire Station precinct, testimony showed that Brown called Samantha
Dixon, who then announced that Brown just called and that it was “time to wrap
things up and close down.” With Brown’s call to Dixon, the absentee ballot
review process prematurely ended with numerous ballots left unexamined.
Unwilling to yield his authority, Brown stated to a federal observer that “I don’t
12
care what the court says. I am still primarily responsible for running this
election.” Second, poll managers failed to properly count absentee ballots and
to address absentee-ballot challenges during the ballot counting. The
MISSISSIPPI POLL MANAGER GUIDE contains, inter alia, a list of the steps to be
followed when counting absentee ballots,9 but the evidence indicates such
guidance was ignored. Catherine Johnson, a poll manager at the Earl Nash
precinct, was trained to believe she possessed the ultimate decisionmaking
authority—or veto power—for all absentee-ballot challenges; she was heard
stating that “I don’t care what the poll managers vote, I don’t care what their
vote is. I’m going to veto it and we’ll count the ballot.” At this news, the poll
managers who had earlier sustained a number of challenges no longer
considered challenges. At the Macon Fire House precinct, a federal observer
noted that Stowers, a poll manager, ordered the absentee-ballot counting closed
before any of the ballots were examined for irregularities. Similarly, no
challenges were entertained at the Shuqualak precinct because candidates and
their representatives were not permitted to sit close enough to challenge the
ballots. And third, federal observers recorded numerous instances of improper
voter assistance that poll managers permitted. At the Macon Fire House, federal
observers reported that fifteen black individuals, who refused to identify
themselves, remained immediately outside the polling place and proceeded to
escort many black voters directly into the voting booth where they told the voter
for whom to vote. Federal observers tallied as many as 180 instances of such
assistance despite efforts by poll manager Stowers to interfere with the
observers’ duties.
9
For example, the GUIDE instructs poll managers, among other things, to “[a]nnounce
the name, address, and precinct as shown on each absentee ballot envelope”; to “make sure the
affidavit . . . on the envelope and the application is sufficient”; and to “[g]ive anyone present
the opportunity to challenge any absentee ballot.” MISS. SEC’Y STATE, MISSISSIPPI POLL
MANAGER GUIDE 28 (2008), available at http://www.sos.state.ms.us/elections/
Mississippi%20TSX%20Poll%20Managers%20Guide.pdf.
13
Having heard the above evidence, the district court issued its remedial
order on August 27, 2007. See United States v. Brown, No. 4:05-CV-33TSL-LRA,
2007 WL 2461965 (S.D. Miss. Aug. 27, 2007). In it, the court appointed a
Referee-Administrator to organize the county’s Democratic primary elections
and to serve until November 20, 2011; limited the role that defendants may play
in supervising future primary elections; and directed poll managers to apply
Mississippi’s election laws in counting ballots and preventing improper voter
assistance.
Defendants now appeal both the court’s finding of liability and order
remedying § 2’s violation.
II. DISCUSSION
A. The Liability Holding
1. Standard Of Review
We review a finding of intentional discrimination in a § 2 vote dilution
case for clear error under Rule 52 of the Federal Rules of Civil Procedure. See
Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (applying Rule 52 and stating “[t]he
fact that amended § 2 and its legislative history provide legal standards which
a court must apply to the facts in order to determine whether § 2 has been
violated does not alter the standard of review”); Velasquez v. City of Abilene, 725
F.2d 1017, 1021 (5th Cir. 1984) (“The clearly erroneous standard is applicable
in . . . statutory voting dilution cases.”); see also Sensley v. Albritton, 385 F.3d
591, 595 (5th Cir. 2004) (“[W]e review the district court’s . . . ultimate findings
on vote dilution for clear error.”). This standard dictates that “[i]f the district
court’s account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985); see
14
also FED. R. CIV. P. 52(a)(6) (stating that a reviewing court “must give due regard
to the trial court’s opportunity to judge the witnesses’ credibility”).
2. Section 2’s Standards
Section 2 of the Voting Rights Act prohibits a state or political subdivision
from employing any “standard, practice, or procedure . . . in a manner which
results in a denial or abridgment of the right of any citizen of the United States
to vote on account of race or color.” 42 U.S.C. § 1973(a). The statute is violated
if “under the totality of the circumstances, it is shown that the political processes
leading to nomination or election . . . are not equally open to participation by
members of a class of citizens.” Id. § 1973(b). Episodic practices, such as one-
sided absentee-ballot counting, constitute a “practice” under § 2. See Welch v.
McKenzie, 765 F.2d 1311, 1315 (5th Cir. 1985) (“[T]he statute covers episodic
practices, as well as structural barriers, that result in discrimination in voting.”);
Goodloe v. Madison County Bd. of Election Comm’rs, 610 F. Supp. 240, 243 (S.D.
Miss. 1985) (“Section 2 on its face is broad enough to cover practices which are
not permanent structures of the electoral system but nevertheless operate to
dilute or diminish the vote of [minorities].”); see, e.g., Toney v. White, 488 F.2d
310, 311–12 (5th Cir. 1973) (affirming that a violation of § 2 occurred when white
voters were not purged from absentee voter rolls in conjunction with the zealous
purging of the black voter rolls); Brown v. Post, 279 F. Supp. 60, 64–65 (W.D. La.
1968) (holding that defendant electoral officials violated § 2 by soliciting
absentee ballots from white voters without making the same opportunity
available to black voters). To violate the statute, however, these practices must
be undertaken with an intent to discriminate or must produce discriminatory
results. See McMillan v. Escambia County, 748 F.2d 1037, 1046 (Former 5th
Cir. 1984) (“Moreover, Congress intended that fulfilling either the more
restrictive intent test or the results test would be sufficient to show a violation
of section 2.”); S. REP. NO. 97-417, at 27 (1982) (accompanying the 1982
15
amendments to the Voting Rights Act and stating that “[p]laintiffs must either
prove such intent, or, alternatively, must show that the challenged system or
practice . . . results in minorities being denied equal access to the political
process”); see also Seastrunk v. Burns, 772 F.2d 143, 149 n.15 (5th Cir. 1985)
(“Likewise, discriminatory intent of itself will normally render a plan illegal.”).
Under the intent-based approach, “[r]acial discrimination need only be one
purpose, and not even a primary purpose, of an official act” for a violation to
occur. Velasquez, 725 F.2d at 1022. To find discriminatory intent, “‘direct or
indirect circumstantial evidence, including the normal inferences to be drawn
from the foreseeability of defendant’s actions’” may be considered. McMillan,
748 F.2d at 1047 (quoting S. REP. NO. 97-417, at 27 n.108). The factors set forth
in Senate Report No. 97-417, oftentimes referred to as the “Zimmer factors,”
supply a source of circumstantial evidence regarding discriminatory intent.10
See McCarty v. Henson, 749 F.2d 1134, 1136 (5th Cir. 1984) (“[T]he existence of
the Zimmer factors might be indicative, though not conclusive, of discriminatory
purpose.”). Additional circumstantial evidence of discriminatory intent may
include the impact of an action “bear[ing] more heavily on one race than
another,” “the historical background of the decision,” the “specific sequence of
events leading up to the challenged decision,” “[d]epartures from the normal
10
These factors include in pertinent part:
b. the extent to which voting in the elections of the state or political subdivision
is racially polarized;
* * *
f. whether political campaigns have been characterized by overt or subtle racial
appeals;
* * *
i. 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.
Magnolia Bar Ass’n v. Lee, 994 F.2d 1143, 1147 (5th Cir. 1993) (citing S. REP. NO. 97-417, at
28–29).
16
procedural sequence,” and “statements by members of the decisionmaking body.”
See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977)
(internal quotation marks omitted).
3. The District Court Did Not Clearly Err
Considering the above standards, we find no clear error in the district
court’s conclusion. The district court held that defendants “administered and
manipulated the political process in ways specifically intended and designed to
impair and impede participation of white voters and to dilute their votes.”
Brown, 494 F. Supp. 2d at 485. Defendants’ chief argument invites this court to
reconsider the district court’s findings individually and contends that these
findings constitute clear error; however, the record amply supports the district
court’s findings and demonstrates that defendants engaged in a series of episodic
practices—in obtaining a large number of black absentee ballots, in preventing
the proper challenges to absentee ballots, and in permitting numerous instances
of improper voter assistance—that diluted the votes of white Democrats.
Additionally, the court was permitted to infer that this conduct was undertaken
with discriminatory intent: Brown’s statements indicate that he was primarily
motivated by race;11 Brown’s promise to challenge only white Democrats
illuminated his racial motivation; defendants’ departure from the state party’s
normal practice of hiring poll managers in proportion to the racial makeup of the
local political subdivision suggests racial underpinnings; the tenuousness of
defendants’ conduct reflects that no other, legitimate purpose explains
defendants’ obtaining large numbers of defective absentee ballots and preventing
the proper screening of such ballots; and the racial polarization of elections in
Noxubee County indicates that the goal of placing more black candidates in
elected positions may be accomplished by obtaining additional black votes and
11
We reiterate that Brown’s statements are not, in themselves, at odds with § 2. His
statements, however, bear on the nature of his intent in performing the conduct at issue here.
17
invalidating white votes. The sum of these facts supports the district court’s
finding. Thus, the district court did not clearly err in concluding that defendants
violated § 2 by abusing their authority over the election process—the absentee-
ballot process, in particular—in order to intentionally dilute white voting power.
In addition to questioning the district court’s findings, defendants
challenge the court’s credibility determinations and come dangerously close to
suggesting, without support, that the court’s decision to credit the testimony of
the government’s witnesses over that of the defendants’ was racially motivated.
But other than complain of this credibility determination, defendants fail to
point to any contradictory evidence or internal inconsistency in the district
court’s finding. See Anderson, 470 U.S. at 575 (“[F]indings [that] are based on
determinations regarding the credibility of witnesses . . . demand[] even greater
deference. . . . [W]hen a trial judge’s finding is based on his decision to credit the
testimony of one of two or more witnesses . . . that finding, if not internally
inconsistent, can virtually never be clear error.”). We find no such evidence or
inconsistency and decline to reverse the district court’s decision in this regard.
Next, defendants incorrectly claim that the district court’s findings
impermissibly burden them with demonstrating they did not violate § 2. This
argument misconstrues the district court’s actual considerations here. It is true
that the government, as the plaintiff, bears the initial burden of proving that § 2
has been violated. See Voinovich v. Quilter, 507 U.S. 146, 155 (1993) (“Section
2 . . . places at least the initial burden of proving [a challenged practice’s]
invalidity squarely on the plaintiff’s shoulders.”). Once the government has
presented its evidence, however, the court may draw reasonable inferences from
this evidence unless defendants explain these inferences away. See United
States v. Chagra, 669 F.2d 241, 258 (5th Cir. 1982) (“The possibility that the
evidence in a particular case may be sufficiently persuasive to convince [the
factfinder] to draw [one] inference rather than another unless the defendant
18
offers an alternative explanation does not constitute a shift in the burden of
persuasion . . . .”), overruled on other grounds by Garrett v. United States, 471
U.S. 773 (1985). Here, the court was permitted to draw the inference of
defendants’ intentional dilution of white votes from the government’s evidence,
and the defendants’ evidence failed to persuade the court otherwise.
Finally, we recognize that the Voting Rights Act does not “guarantee
minority success at the polls,” but it does require that “minorities not have ‘less
opportunity than other[s] . . . to participate in the political processes and to elect
representatives of their choice.’” Seastrunk, 772 F.2d at 154 (alteration and
omission in original, emphasis removed) (quoting 42 U.S.C. § 1973(b)).
Defendants, through abusing their supervisory role over the absentee-ballot
process, have denied white Democrats the opportunity to elect representatives
of their choice. Nonetheless, they urge this court to stay its hand and “let things
evolve” in Noxubee County because they pursued what they view as an
honorable goal of electing black candidates. To do so, however, defendants have
wielded their authority over the election process to violate Mississippi’s election
laws at the expense of Mississippi voters. To champion the cause of black
candidates by abusing the supervisory authority over elections in order to
undermine the value of white voters’ ballots breaches the boundary between
acceptable political activity and unacceptable electoral abuse.
Having found no clear error in the district court’s conclusion, we next
consider the court’s remedy.
B. The Remedial Order
1. Standard Of Review
The district court’s relief is reviewed for an abuse of discretion. See E.
Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636, 639–40 (1976) (reviewing the
district court’s remedial relief for abuse of discretion); Rodriguez v. Bexar
County, 385 F.3d 853, 870 (5th Cir. 2004) (holding that a district court’s remedial
19
relief following violation of § 2 was an abuse of discretion); Harper v. City of Chi.
Heights, 223 F.3d 593, 601 (7th Cir. 2000).
2. Remedial Order Considerations
When devising a remedy to a § 2 violation, the district court’s “first and
foremost obligation . . . is to correct the Section 2 violation.” Bone Shirt v.
Hazeltine, 461 F.3d 1011, 1022 (8th Cir. 2006). In doing so, the district court
“should exercise its traditional equitable powers to fashion the relief so that it
completely remedies the prior dilution of minority voting strength.” S. REP.
NO. 97-417, at 31; see also United States v. Dallas County Comm’n, 850 F.2d
1433, 1438 (11th Cir. 1988). Though we review the court’s remedy for abuse of
discretion, this discretion is not without limit. For example, voiding entire
elections is a drastic remedy requiring sufficient need, see, e.g., Rodriguez, 385
F.3d at 859 n.2 (“Setting aside an election is a drastic remedy.”), and, at least in
redistricting cases, district courts must offer governing bodies the first pass at
devising a remedy, see, e.g., Bone Shirt, 461 F.3d at 1022 (“As required, the
defendants were afforded the first opportunity to submit a remedial plan.”);
Rodriguez, 385 F.3d at 870 (“[T]his court ha[s] admonished district courts to
afford local governments a reasonable opportunity to propose a constitutionally
permissible plan . . . .”); Jones v. City of Lubbock, 727 F.2d 364, 387 (5th Cir.
1984) (“A district court should . . . afford to the government body a reasonable
opportunity to produce a constitutionally permissible plan.”). This guidance
demonstrates that the district court’s order should be sufficiently tailored to the
circumstances giving rise to the § 2 violation. We now consider defendants’
challenges to the court’s remedial order.12
12
The government asserts that defendants failed to object to the order’s provisions
below and that, therefore, defendants have not preserved these arguments. We disagree.
There is “[n]o bright-line rule . . . for determining whether a matter was raised below.” Castillo
v. Cameron County, 238 F.3d 339, 355 n.21 (5th Cir. 2001) (internal quotation marks omitted).
In their filings prior to the district court’s order, defendants argued that their voluntary
20
3. The District Court Did Not Abuse Its Discretion
In light of the record detailing the events of the August 2007 primary
election, we cannot say that the court abused its discretion in fashioning the
remedial order. Before issuing the order, the district court considered proposed
remedies from both parties and permitted defendants to supervise the upcoming
primary election. Despite their representations to the court and despite the
court’s prior liability holding, defendants recidivated. In so doing, defendants
demonstrated that they could not be relied upon to voluntarily remedy their § 2
violation. Correspondingly, the district court tailored the terms of its order “to
prevent a recurrence of past transgressions.” Brown, 2007 WL 2461965 at *1
n.1.
The district court held two evidentiary hearings before determining the
appropriate remedy. At the first hearing, the court considered whether to enjoin
and delay the upcoming August 2007 primary election. Upon the defendants’
indication that Brown would not participate in the absentee-ballot process, that
absentee ballots would be properly counted, that candidates would be permitted
to challenge absentee ballots, and that improper assistance would be prevented,
the parties agreed that the primary election would occur as planned. At the
second hearing, the district court heard testimony concerning the events of that
election: Brown remained involved in handling and distributing the absentee
ballots to the polls; Brown contacted two poll managers by phone, resulting in
one manager prematurely concluding the ballot-counting process and leaving
absentee ballots unexamined; absentee ballots were not counted according to the
proper procedure, which is outlined in the MISSISSIPPI POLL MANAGER GUIDE
that defendants indicated would be used to train poll managers; candidates were
undertakings were sufficient to remedy the § 2 violations; that, at most, an observer should
be appointed to oversee the elections, permitting defendants to continue administering primary
elections; and that defendants’ presence at the polls and the Circuit Clerk’s office should not
be limited. Thus, we consider defendants’ claims on appeal.
21
prevented from challenging absentee ballots; and individuals were permitted to
provide unsolicited assistance to black voters. For their part, defendants do not
attempt to explain or excuse their conduct during the 2007 primary election in
their brief to this court.
Though it is apparent that defendants’ own conduct has rendered the
remedial order’s terms necessary to right the § 2 violation, defendants now
challenge select provisions of the order. In so doing, defendants repeatedly urge
that federal observers would constitute a sufficient remedy and argue that the
district court failed to explain why such observers would be ineffective. The
simple answer, of course, is that the presence of federal observers did nothing
to dissuade defendants from engaging in the same conduct found to have
violated § 2. Additionally, defendants’ own authority for their proposition that
observers alone are sufficient, United States v. Berks County, 277 F. Supp. 2d
570 (E.D. Pa. 2003), supports the contrary conclusion—that a remedy must be
tailored to address the circumstances of the § 2 violation. In Berks County, § 2
was violated when election officials permitted hostility toward Spanish-speaking
voters, Spanish-speaking voters were not equally assisted, Spanish-speaking
individuals were underrepresented in the corps of poll workers, and Spanish-
language election materials were not provided. Id. at 580–81. To remedy the
violation, the court ordered that Spanish-speaking voters be ensured access to
assistance, that a proportionate amount of Spanish-speaking poll workers be
appointed, that Spanish-language voting materials be provided, and that federal
observers be appointed. Id. at 583–85. In like manner, the court’s remedial
order here is tailored to defendants’ specific conduct that violated § 2. With that,
we now turn to defendants’ remaining arguments.
First, defendants assert that the authority granted to the Referee-
Administrator—“all electoral duties . . . shall be executed by the Referee-
Administrator,” Brown, 2007 WL 2461965 at *1—is too broad and deprives them
22
of their First Amendment rights to free expression and association. Defendants,
however, fail to explain how delegating these duties to the Referee-
Administrator interferes with such rights. Defendants may still carry on in their
capacity as the local leaders of the Democratic party by, for example, raising
funds, endorsing candidates, campaigning for candidates, organizing party
meetings, and speaking out on political issues. “[E]lectoral duties,” conversely,
consist of the mechanics of administering a primary election: “certification of
candidates, appointment of poll officials, assignment of poll officials to the
various voting precincts, distribution of regular ballots and ballot boxes
containing absentee ballots, supervision of polling locations and poll officials,
and certification of election results.” See Brown, 2007 WL 2461965 at *1; see
also MISS. CODE ANN. § 23-15-263(1) (listing the county executive committee’s
duties in a primary election); cf. MISS. SEC’Y STATE, COUNTY ELECTION
HANDBOOK App. D at 38 (2007) (listing the nearly identical responsibilities of a
county election commission in a general election), available at
http://www.sos.state.ms.us/elections/2007%20County%20Election%20Handbo
ok2.pdf. Contrary to defendants’ assertion, the court’s order does not attempt
to regulate the leadership of the local Democratic party. Thus, defendants’
reliance on California Democratic Party v. Jones, 530 U.S. 567 (2000), and Eu
v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), is
misplaced. Both those cases involved challenges to California statutes either
that permitted unaffiliated voters to participate in choosing the party’s actual
leadership, see Jones, 530 U.S. at 581 (determining that California’s “blanket”
primary system violated voters’ associational freedom because the process
“open[ed] [the leadership-selection process] up to persons wholly unaffiliated
with the party”), or that specified from where the state party’s chairperson must
come and how long she may serve, see Eu, 489 U.S. at 218 (affirming the
invalidation of provisions of California’s Elections Code that “fix[ed] the
23
maximum term of office for the chair of the state central committee . . . [and]
require[d] that the chair rotate between residents of northern and southern
California”).
Defendants next complain of the order’s restricting Brown’s ability to
communicate with poll workers, limiting Brown’s presence at the polling places
and Circuit Clerk’s office, and barring defendants from interfering with the
Referee-Administrator. As the facts of the August 2007 primary show, however,
the court specifically limited Brown’s involvement because of Brown’s
demonstrated inability to refrain from interfering with the legitimate mechanics
of the county’s primary elections. The district court’s order bars Brown from
“giv[ing] any written or oral instructions or mak[ing] any suggestions to poll
officials regarding their duties as poll officials” and bars poll managers while
they “are reviewing absentee ballots . . . from contacting or receiving
communication from defendant Brown . . . at any time regarding the review of
the absentee ballots.” Brown, 2007 WL 2461965 at *2, *4. In their freedom of
expression and association arguments, defendants do not describe how this order
prevents Brown from expressing his political views to poll managers. Instead,
Brown is only enjoined from communicating with poll managers regarding their
electoral duties and the counting of ballots. The facts of the 2003 and 2007
elections make plain the need for these limitations; in both instances, Brown’s
statements, whether spoken or scribbled on post-it notes, resulted in poll
managers improperly terminating the counting of absentee ballots and
selectively rejecting absentee ballots. Similarly necessary based on Brown’s
conduct is the order’s restricting Brown’s presence at the polling place “unless
he is voting, has been appointed as a poll watcher for a candidate, or the Referee-
Administrator has appointed him to work as a poll official” and at the Circuit
Clerk’s office “two weeks prior to any primary election except for matters
pertaining solely to him or his immediate family.” See id. at *4. In the 2003
24
primary and general elections, Brown directly ordered poll managers in a polling
place to count all the absentee ballots when those ballots had not yet been
reviewed, and Brown abused his access to the Circuit Clerk’s office to monitor
and carry out his absentee-ballot distribution scheme. Again, insofar as
defendants assert that these provisions restrict their freedom of expression, they
fail to explain what expressive conduct Brown will engage in at the Circuit
Clerk’s office or within the polling places at the specifically restricted times.
Defendants, however, do explain that the order’s pronouncement that
“defendants shall not interfere or attempt to interfere in any way with the
responsibilities of the Referee-Administrator,” see id. at *2, prevents them from
speaking to anyone about the responsibilities of the Referee-Administrator, but
the clear language of the order does not bear defendants’ broad reading.
We are equally unpersuaded by defendants’ contention that the remedial
order’s delegating “all electoral duties” and directing that Mississippi’s
electioneering laws be enforced “equally” are impermissibly vague. “‘The mere
fact that . . . interpretation is necessary does not render the injunction so vague
and ambiguous that a party cannot know what is expected of him.’” Martin’s
Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765,
771 (5th Cir. 1999) (quoting United States v. Greyhound Corp., 508 F.2d 529, 536
(7th Cir. 1974)). Little interpretation is necessary to understand what it means
to enforce laws equally, and we have earlier explained that the electoral duties
delegated to the Referee-Administrator involve those duties in organizing the
mechanics of election-day activities.
Defendants’ final argument likewise lacks merit. They assert that
shackling them with these restrictions while not similarly doing so to the
county’s Republican executive committee violates their right to equal protection
of the laws. But, as the government points out, the Republican executive
committee, unlike defendants, has not been found to have violated § 2.
25
Considering the above, we are convinced that the district court did not
abuse its discretion.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s order
entered June 29, 2007 and its order entered August 27, 2007.
26