Clark v. Calhoun County, MS

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60251
JAMES H. CLARK; BARBARA BROWN,
Plaintiffs-Appellants,
versus
CALHOUN COUNTY, MISSISSIPPI;
CALHOUN COUNTY DEMOCRATIC EXECUTIVE COMMITTEE,
By and Through its Chairperson, J. R. Denton;
CALHOUN COUNTY REPUBLICAN EXECUTIVE COMMITTEE,
By and Through its Chairperson, Henry Bailey;
CALHOUN COUNTY ELECTION COMMISSIONS,
By and Through its Chairperson, R.W. Bounds,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
July 9, 1996
Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This case comes before us for the second time, raising the
question whether the plaintiffs have proven, under the totality of
the circumstances, that Calhoun County, Mississippi's districting
plan for county officials violates Section 2 of the Voting Rights
Act of 1965, 42 U.S.C. § 1973(a). The district court held that the
plan did not violate the Act. We disagree. We reverse the
Circuit Judge of the Eighth Circuit, sitting by
designation.
judgment of the district court and render judgment for the
plaintiffs.
I.
The basic facts of this case are fully described in our
decision rendered the first time this case was before us. See
Clark v. Calhoun County, Mississippi, 21 F.3d 92 (5th Cir. 1994).
To briefly summarize those facts: The plaintiffs, James Clark and
Barbara Brown, are black residents and registered voters in Calhoun
County, Mississippi. The county's districting plan divides the
county into five districts, each of which elects one county
supervisor, one board of education member, and one election
commissioner.
Following the release of the 1990 census, the County Board of
Supervisors hired Three Rivers Development and Planning District of
Pontotoc, Mississippi to develop a redistricting plan for the
county. The Board also appointed a biracial committee made up of
one black resident and one white resident from each election
district to supervise Three Rivers' work. Three Rivers developed
two redistricting plans, one of which the Board of Supervisors
tentatively adopted. The biracial committee approved the plan, and
the Board formally adopted the plan after a public hearing.
Pursuant to § 5 of the Voting Rights Act, the Department of Justice
subsequently precleared the proposed redistricting plan.
According to the 1990 census, black residents comprise 23% of
the county's voting age population and 27% of its population
overall. Under the plan adopted by the Board of Supervisors, the
2
black population is divided roughly equally among the five
districts, ranging from a low of 19% of the population in District
3 to a high of 42% in District 4.
The plaintiffs sued the County, the Calhoun County Democratic
Executive Committee, the Calhoun County Republican Executive
Committee, and the Calhoun County Election Commission. The
plaintiffs alleged that the County's redistricting plan violated
§ 2 of the Voting Rights Act, as well as the Fourteenth and
Fifteenth Amendments to the U.S. Constitution. The plaintiffs
sought damages, declaratory, and injunctive relief, along with
attorneys' fees.
After a bench trial, the district court granted judgment to
the County, concluding that the plaintiffs had failed to prove that
a geographically compact black majority district could be created.
In addition, the court concluded that under the totality of
circumstances, the plaintiffs had failed to prove a § 2 violation.
The district court's written opinion did not address the
plaintiff's constitutional claims, but the plaintiffs did not
appeal the dismissal of those causes of action. We vacated the
district court's judgment and remanded for further proceedings on
the plaintiff's statutory claim. See Clark v. Calhoun County, 21
F.3d 92 (5th Cir. 1994).
On remand, the parties submitted additional evidence regarding
the feasibility of drawing a geographically compact majority-
minority district and the existence of racially-polarized voting in
the county. After reviewing the evidence, the district court found
3
that a geographically compact black majority district could be
created and that racially polarized voting existed in the county.
Noting that the plaintiffs had satisfied the three preconditions
from Thornburg v. Gingles, 478 U.S. 30 (1986), the court
reconsidered its findings regarding the totality of the
circumstances. Without elaboration, the court determined that its
earlier findings were not erroneous and concluded that "when all
the circumstances are considered, 'plaintiffs have not shown that
as a result of the adopted supervisory plan, they do not have equal
opportunity to participate in the political process and to elect
candidates of their choice.'" The plaintiffs appeal the district
court's judgment.
II.
Section 2 of the 1965 Voting Rights Act prohibits any voting
practice or procedure that "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). Thornburg v. Gingles, 478
U.S. 30, 49-51 (1986), set forth three preconditions to
establishing a § 2 violation: The plaintiff must demonstrate that
1) the minority group is sufficiently large and geographically
compact to constitute a majority in a single-member district; 2)
the minority group is politically cohesive; and 3) the white
majority votes sufficiently as a bloc to enable it usually to
defeat the minority's preferred candidate. Id. at 50-51; Concerned
Citizens for Equality v. McDonald, 63 F.3d 413, 416 (5th Cir.
1995). These preconditions apply to challenges to both single-
4
member and multi-member districting schemes. Growe v. Emison, 113
S. Ct. 1075, 1084 (1993) (applying Gingles to single-member
districts).
The three Gingles preconditions are necessary but not
sufficient to prove vote dilution. Johnson v. DeGrandy, 114 S. Ct.
2647, 2657 (1994). If those preconditions are established, the
plaintiffs must further prove that "under the 'totality of
circumstances,' they do not possess the same opportunities to
participate in the political process and elect representatives of
their choice enjoyed by other voters." League of United Latin
American Citizens v. Clements, 999 F.2d 831, 849 (5th Cir. 1993)
(en banc), cert. denied, 114 S. Ct. 878 (1994); see 42 U.S.C.
§ 1973(b). Although unlawful vote dilution "may be readily
imagined and unsurprising" where the three Gingles preconditions
exist, that conclusion "must still be addressed explicitly, and
without isolating any other arguably relevant facts from the act of
judgment." Johnson, 114 S. Ct. at 2657.
We have previously explained that "courts are guided in this
[totality-of-circumstances] inquiry by the so-called Zimmer factors
listed in the Senate Report" accompanying the 1982 Amendments to
the Voting Rights Act. LULAC, 999 F.2d at 849. Those factors
include:
[T]he history of voting-related discrimination in the
State or political subdivision; the extent to which
voting in the elections of the States or political
subdivision is racially polarized; the extent to which
the State or political subdivision has used voting
practices or procedures that tend to enhance the
opportunity for discrimination against the minority
group, such as unusually large election districts,
5
majority vote requirements, and prohibitions against
bullet voting; the exclusion of members of the minority
group from candidate slating processes; the extent to
which minority group members bear the effects of past
discrimination in areas such as education, employment,
and health, which hinder their ability to participate
effectively in the political process; the use of overt or
subtle racial appeals in political campaigns; and the
extent to which members of the minority group have been
elected to public office in the jurisdiction.
Gingles, 478 U.S. at 44-45. In addition, "evidence demonstrating
that elected officials are unresponsive to the particularized needs
of the members of the minority group and that the policy underlying
the State's or the political subdivision's use of the contested
practice or structure is tenuous may have probative value." Id. at
45.
Noting that the district court found on remand that the three
Gingles preconditions were satisfied, the plaintiffs challenge the
district court's conclusion that, under the totality of the
circumstances, the plaintiffs failed to prove a § 2 violation. The
plaintiffs refer to our statement in Clark that "'it will be only
the very unusual case in which the plaintiffs can establish the
existence of the three Gingles factors but still have failed to
establish a violation of § 2 under the totality of circumstances.'"
21 F.3d at 97 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd.
of Educ., 4 F.3d 1103, 1135 (3d Cir. 1993)) (emphasis added); see
also NAACP v. City of Niagara Falls, New York, 65 F.3d 1002, 1019
n.21 (2d Cir. 1995).
We initially note that our review is hampered by the district
court's curt discussion regarding the totality of the
circumstances. In our previous opinion, we instructed the district
6
court on remand to "reconsider its findings with respect to the
totality of circumstances." 21 F.3d at 97. We further instructed
the district court that in cases where the three Gingles
preconditions have been established, it "'must explain with
particularity why it has concluded, under the particular facts of
that case, that an electoral system that routinely results in white
voters voting as a bloc to defeat the candidate of choice of a
politically cohesive minority group is not violative of § 2 of the
Voting Rights Act.'" 21 F.3d at 97 (quoting Jenkins, 4 F.3d at
1135). Despite these instructions, the district court readopted
its earlier findings without elaboration and summarily concluded
that the existence of racially polarized voting in the county was
not sufficient to tip the balance in favor of the plaintiffs. This
discussion is far from the particularized explanation that we
expected. Normally, we would remand this case for further
consideration. However, we need not do so where the record
establishes unlawful vote dilution. Harvell v. Blytheville School
Dist. #5, 71 F.3d 1382, 1390 (8th Cir. 1995) (en banc), cert.
denied, __ S.Ct. __ (1996). We are persuaded that the district
court's findings from its first opinion regarding the totality of
the circumstances, which the court readopted on remand, support the
conclusion that Calhoun County's redistricting scheme violates § 2
of the Voting Rights Act. We do not suggest that the totality of
the circumstances is an empty formalism or that clearing the
Gingles hurdles preordains liability. To the contrary, this final
inquiry can be powerful indeed. At the same time, it is more than
7
an intuitive call of the trial judge; the trial court must anchor
its judgment in evidence.
A.
In its first opinion, the district court found that racially
polarized voting existed in Calhoun County, but the court
discounted its importance due to the success of black candidates
seeking election to several municipal and county offices. The
court noted that black residents had been elected to the board of
aldermen in two predominately white municipalities in the county
and that one black resident, who ran unopposed, had been elected
election commissioner in one of the predominately white districts.
On appeal, we concluded that the black electoral successes
cited by the district court had "limited relevance." 21 F.3d at
96. Citing Gingles, we explained that "the election of some black
candidates does not negate a § 2 claim and does not establish that
polarized voting does not exist," particularly when the election is
unopposed. Id. We further explained that exogenous elections--
those not involving the particular office at issue--are less
probative than elections involving the specific office that is the
subject of the litigation. Id. at 97. We instructed the district
court on remand to "accord greater weight to the virtual absence of
black electoral success in county-wide elections as opposed to
their limited electoral success in municipal elections." Id.
On remand, the district court reaffirmed its finding of
racially polarized voting but construed our instruction as an
"invitation to find a section 2 violation simply because plaintiffs
8
have prevailed on the Gingles factors." Correctly noting that the
Supreme Court in Johnson had expressly rejected that reading of
§ 2, the district court declined our "invitation."
As we made clear prior to Johnson, the existence of the three
Gingles preconditions is necessary but not sufficient to prove a
§ 2 violation. See LULAC, 999 F.2d at 849. However, the existence
of racially polarized voting and the extent to which minorities are
elected to public office remain the two most important factors
considered in the totality-of-circumstances inquiry. See Gingles,
478 U.S. at 48 n.15; Westwego Citizens for Better Government v.
City of Westwego, 946 F.2d 1109, 1122 (5th Cir. 1991) (Westwego
III).
In this case, the district court's finding that racially
polarized voting exists is beyond question. In addition to the
"uncontradicted" statistical evidence from the original trial, Dr.
Richard Engstrom, a Professor of Political Science at the
University of New Orleans, analyzed four, multiracial elections in
Calhoun County. Using both regression and homogenous precinct
analysis, Dr. Engstrom concluded that a "consistent relationship"
existed between a voter's race and his voting preference in the
four exogenous elections. For example, in the 1991 Democratic
primary for Constable, the black candidate received an estimated
71.6% of the black vote but only 7.8% of the white vote. Although
statistical evidence is not conclusive, see Clark, 21 F.3d at 96,
the record here supports no other conclusion but that racially
polarized voting exists in Calhoun County. Indeed, the County
9
offers no other explanation of the divergent voting patterns. See
Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995).
Moreover, the record demonstrates that black citizen have been
unsuccessful in seeking public office. The County emphasizes that
black residents have been elected as aldermen in several
municipalities and, in one case, as an election commissioner. We
previously addressed the probative value of these electoral
successes and noted their "limited relevance." 21 F.3d at 96.
Even so, "the election of a few minority candidates does not
necessarily foreclose the possibility of dilution of the black
vote." S. Rep. No. 417, 97th Cong., 2d Sess. 29 n.115 (1982)
(internal quotation omitted), reprinted in 1982 U.S.C.C.A.N. 177,
207 n.115; see also Gingles, 478 U.S. at 76; City of Niagara Falls,
65 F.3d at 1009; Harvell, 71 F.3d at 1390. Indeed, these isolated
victories, one of which occurred in a race with no opponent, do not
mitigate the force of the district court's finding that "[i]n this
century, no black candidate has been elected in Calhoun County as
supervisor, justice court judge, constable, sheriff, circuit clerk,
chancery clerk, tax assessor, superintendent of education, school
board member, coroner, county attorney, state senator, or state
representative." Moreover, there is no suggestion that this
striking lack of electoral success is due to low voter turnout or
black support for non-minority candidates. Cf. Alonzo v. City of
Corpus Christi, 68 F.3d 944, 947 (5th Cir. 1995) (per curiam).
The County responds that few black residents have run for
county office. As an initial matter, we note that the County
10
overstates the political reality. The district court found in its
first opinion that "since 1980 blacks have sought the positions of
justice court judge, constable, sheriff, and school board member."
More importantly, however, this argument begs the ultimate question
whether blacks "possess the same opportunities to participate in
the political process and elect representatives of their choice
enjoyed by other voters." That few or no black citizens have
sought public office in the challenged electoral system does not
preclude a claim of vote dilution. Westwego Citizens For Better
Government v. City of Westwego, 872 F.2d 1201, 1208 n.9 (5th Cir.
1989) (Westwego I). "To hold otherwise would allow voting rights
cases to be defeated at the outset by the very barriers to
political participation that Congress has sought to remove." Id.
In short, the presence of racially polarized voting and the
virtually complete absence of black elected officials in county
offices provides striking evidence of vote dilution in Calhoun
County.
B.
The Senate Report includes as one factor "the extent to which
the State or political subdivision has used voting practices or
procedures that tend to enhance the opportunity for discrimination
against the minority group, such as unusually large election
districts, majority vote requirements, and prohibitions against
bullet voting." In its original opinion, the district court found
that Calhoun County did not employ large election districts or an
anti-single shot provision. The court found, however, that state
11
law requires that elections be conducted by majority vote. See
Miss. Code Ann. § 23-15-305. Although the district court noted
that abolishing the majority vote requirement might increase the
possibility of electoral success for black candidates, it concluded
that the majority vote requirement was not "inherently
discriminatory."
We agree with the plaintiffs that the district court misjudged
the weight to be accorded this finding. First, even if the
majority vote requirement is not "inherently discriminatory,"
Congress has included it as one factor to consider as part of the
totality-of-circumstances inquiry. We are not free to second-guess
Congress' judgment regarding its importance. See Westwego I, 872
F.2d at 1212.
Second, under certain circumstances, the majority vote
requirement "can operate to the detriment of minority voters" and
negate their political strength. Westwego III, 946 F.2d at 1113
n.4. Where more than two candidates run for a particular office,
the majority vote requirement ensures that no candidate supported
by only a minority, racial or otherwise, of the populace will
succeed. In the presence of racially polarized voting, the
majority vote requirement permits a white majority that scattered
its votes among several white candidates in a election to
consolidate its support behind the remaining white candidate in the
run-off election, thereby defeating the minority-supported
candidate. See Major v. Treen, 574 F. Supp. 325, 351 n.32 (E.D. La.
1983) (three judge panel); see also Zimmer v. McKeithen, 485 F.2d
12
1297, 1306 (5th Cir. 1973) (en banc) (noting that majority vote
requirement tends "to submerge a political or racial minority"),
aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S.
636 (1976) (per curiam).
This effect is more than a mere theoretical possibility, at
least in Calhoun County. The record here discloses that on at
least one occasion, the majority vote requirement operated to the
detriment of black voters in Calhoun County by preventing the
nomination of a black citizen as the Democratic candidate for
constable in Calhoun County. In the first primary, the black
candidate, Tommy Pittman, finished first among all candidates, the
rest of whom were white. Pittman did not receive a majority of the
votes cast, however. In the run-off, Pittman lost.
C.
Two factors from the Senate Report focus on the effect of past
discrimination on the plaintiffs' ability to participate in the
political process: 1) the history of voting-related discrimination
in the State or political subdivision, and 2) the extent to which
minority group members bear the effects of past discrimination in
areas such as education, employment, and health, which hinder their
ability to participate effectively in the political process.
Gingles, 478 U.S. at 44-45. In its pre-remand opinion, the
district court found that "in the past blacks were prevented from
exercising their right to vote by intentionally discriminatory
mechanisms." Nevertheless, the court found this factor to be of
"limited importance" because "past history cannot be forever
13
faulted for failures at the election box." The district court
explained that at some point past discrimination must take on
"diminished importance." In addition, the district court found
that "the socio-economic status of blacks is significantly lower
than whites in Calhoun County" but questioned without elaboration
the weight to be assigned to this finding.
The long and unhappy history of discrimination in Mississippi
requires no protracted discussion. Calhoun County itself did not
desegregate its schools until 1969. Nor need we tarry long in
recounting the socioeconomic disparity that continues to exist in
Calhoun County. The plaintiffs produced 1990 census data
disclosing, among other facts, that the per capita income of black
residents in Calhoun County is less than half that of white
residents.
The County concedes, as it must, that Calhoun County has a
history of racial discrimination and that socioeconomic differences
between white and blacks continue to exist in the County.
Nevertheless, the County argues that the plaintiffs have not
established a causal nexus between such past discrimination or
socioeconomic disparities, on the one hand, and any decreased level
of black political participation, on the other.
In LULAC, we explained that while Congress has not insisted
upon proof of a causal nexus between socioeconomic status and
depressed political participation, Congress "did not dispense with
proof that participation in the political process is in fact
depressed among minority citizens." 999 F.2d at 867; see S. Rep.
14
417 at 29 n.114, reprinted in 1982 U.S.C.C.A.N. at 207 n.114.
Indeed, in that case, we held that proof of socioeconomic
disparities and a history of discrimination "without more" did not
suffice to establish the two Senate Report factors. 999 F.2d at
867.
The district court did not make any finding that black
political participation was depressed in Calhoun County. Nor do
the plaintiffs on appeal point to any evidence in the record
showing that black political participation compares unfavorably to
that of white residents in the county. The plaintiffs' expert
witness, Cheri McKinless, did testify at the first trial that
individuals of lower socioeconomic status were not as likely to
vote as individuals of higher socioeconomic status. However, she
based her conclusion on political science literature, not "an
'intensely local appraisal' of the social and political climate" of
Calhoun County. Id. Indeed, in LULAC, we rejected similar
"armchair speculation" as insufficient to establish that "minority
voters in this case failed to participate equally in the political
processes." Id.
In short, we are not persuaded that the district court erred
in disregarding the history of past discrimination and
socioeconomic disparity in Calhoun County.
D.
In its pre-remand opinion, the district court found that
Calhoun County officials were responsive to concerns of its black
residents. The court explained:
15
First, it is unrefuted that the County has recently paved
and/or repaved roads in predominately black
neighborhoods. . . . Second, it has been stipulated that
blacks hold appointive positions on approximately one-
third of the County Boards and Commissions. This
represents, in this court's mind, a concern that blacks
be afforded a voice in matters affecting the citizenry.
Finally, the County, in appointing the biracial committee
and holding public hearings on the proposed redistricting
plan, made a concerted effort to comply with the mandates
of the Voting Rights Act. From the beginning, Calhoun
County recognized the need for redistricting and
attempted to procure Section 2 compliance via an open,
public forum. The black members appointed to the
biracial committee were, according to the testimony, well
respected and influential citizens in the black
community; some, like Ms. Rose, were college educated.
These are not the actions of a county which is oblivious
to the needs and concerns of the black community or
disrespectful of the mandates of the Voting Rights Act.
With one caveat, we find no merit to the suggestion that the
district court's finding of responsiveness is clearly erroneous.
Other governmental entities have done more than Calhoun County to
demonstrate their responsiveness to minority concerns. See, e.g.,
City of Niagara Falls, 65 F.3d at 1023 (noting that the city, inter
alia, established an affirmative action task force, adopted a fair
housing law, and established a minority business loan fund).
Nevertheless, the County's road-paving and its use of a biracial
commission to approve the current redistricting plan support the
finding that the County is responsive to the needs of the black
community. The formation of the biracial commission in particular
demonstrates the County's sensitivity to the concerns of its black
citizens. Although the record discloses that Three Rivers did not
inform the commission that it was possible to create a majority-
minority district, that fact alone does not undermine the district
court's finding. Indeed, there is no suggestion that the anyone
16
deliberately misled that commission or that the commission served
only to rubberstamp redistricting plans already approved by the
board of supervisors.
We part company with the district court, however, regarding
its reliance on black membership on county commissions. The number
of minority members on county commissions is a poor barometer of
the county's responsiveness to the needs of its black citizenry.
Judging responsiveness by counting members of county commissions is
akin to judging the emptiness of a glass of water half full:
whether it is half full or half empty depends on who you ask. Even
so, we agree with the plaintiffs that the district court erred in
this case by focusing on how many minority board members there
were, instead of how few. That four of the fourteen county boards
or commissions have black members overlooks that ten do not.
Moreover, the record discloses that of the four boards that do have
minority representation, three have only one black member and the
other has only two black members. Of the 72 appointed officials,
only five are black, less than 7% of the total membership.
Similarly, the district court found that only 6 of the county's 75
employees were black.
Although the district court's finding of responsiveness was
not clearly erroneous, we are persuaded that the district court
attached too much weight to its finding. First, the finding of
responsiveness has "limited relevance." Westwego III, 946 F.2d at
1122. The Senate Report explained:
Unresponsiveness is not an essential part of plaintiff's
case. Therefore, defendants' proof of some
17
responsiveness would not negate plaintiff's showing by
other, more objective factors enumerated here that
minority voters nevertheless were shut out of equal
access to the political process.
S. Rep. 417 at 29 n.116, reprinted in 1982 U.S.C.C.A.N. at 207
n.116; see also Westwego I, 872 F.2d at 1213 n.15. Indeed, in
Westwego III, we rendered judgment for the plaintiffs, even though
we agreed with the district court that the plaintiffs had failed to
prove a lack of responsiveness by city officials. 946 F.2d at
1123; see also Harvell, 71 F.3d at 1391 (noting that "[e]ven
accepting the finding of responsiveness as not clearly erroneous,
however, it is similarly insufficient to counter the other factors
that censure this scheme").
Second, the district court's finding of responsiveness cannot
be weighed in the abstract. Responsiveness, like many things, is
a question of both kind and degree. While two cities may both be
said to be responsive to minority needs, the two may vary greatly
in approach and commitment. The totality-of-circumstances inquiry
is not blind to those differences. Although we acknowledge that
discerning those differences demands difficult qualitative
judgments, see S. Rep. 417 at 29 n.115, reprinted in 1982
U.S.C.C.A.N. at 207 n.115 (noting responsiveness is less objective
factor than others), we are reminded that "[i]n countless areas of
the law weighty legal conclusions frequently rest on methodologies
that would make scientists blush." LULAC, 999 F.2d at 860. We
offer no bright line here. We are content to note that paving
roads left unpaved by years of discrimination and appointing a
biracial redistricting commission do not reflect the comprehensive
18
and systematic responsiveness to minority needs that is entitled to
substantial weight in the totality-of-circumstances inquiry. Cf.
City of Niagara Falls, 65 F.3d at 1023 (describing city's
"numerous" efforts to address minority needs).
E.
In its pre-remand opinion, the district court accepted the
County's proffered justification for the current plan, finding that
"attempting to maintain districts with equal road mileage is
nontenuous." The plaintiffs challenge this finding, claiming that
there is no evidence that the creation of a majority-minority
district is incompatible with this interest. The County defends
the district court's finding and argues that its interest in
maintaining districts with equal road mileage should be given
substantial weight. See LULAC, 999 F.2d at 871.
We find no merit to the suggestion that the County must prove
that the challenged electoral system is necessary to achieve its
interest in equalizing road mileage among districts. Id. at 875-
76. We do, however, agree that this factor deserves little weight.
In Jones v. City of Lubbock, 727 F.2d 364, 383 (5th Cir. 1984), we
described this factor as having "diminished importance," and we
expressed doubt "that the tenuousness factor has any probative
value for evaluating the 'fairness' of the electoral system's
impact."
Our decision in LULAC does not undermine but rather supports
that conclusion. In that case, we distinguished between a non-
tenuous state interest and a substantial state interest. 999 F.2d
19
at 870 (noting that Texas did not assert non-tenuous but rather
substantial interest). Although we noted that "[t]he weight, as
well as tenuousness, of the state's interest is a legitimate factor
in analyzing the totality of circumstances," id. at 871, we
reaffirmed that "[p]roof of a merely non-tenuous state interest
discounts one Zimmer factor, but cannot defeat liability." Id.
The district court here did not characterize the County's
interest in equalizing road mileage in the districts as
substantial. Nor likely could it. The County points to no
decision holding that its interest in equal road mileage among
election districts is substantial. The administrative convenience
of such a system is evident, but the County's asserted interest
pales in comparison to that upheld in LULAC. Id. at 872 (noting
Texas' interest is a "key component" of what defines or "what
constitutes a state court judge"). Indeed, there is no suggestion
that equal road mileage is "integral" to the office of county
supervisor, much less to the office of election commissioner or
board of education. Id.
F.
In Gingles, the Court noted that the Senate Report advised
that "there is no requirement that any particular number of factors
be proved, or that a majority of them point one way or the other."
Gingles, 478 U.S. at 45. In this case, we are persuaded that,
under the totality of the circumstances, the plaintiffs have
demonstrated a § 2 violation. Neither the County's responsiveness
to its black citizenry nor its interest in equalizing road mileage
20
among districts mitigates the striking lack of black electoral
success in county elections and the "uncontradicted" existence of
racially polarized voting. In short, this is not that "unusual
case" in which the three Gingles preconditions are satisfied but
the totality of circumstances fail to show a § 2 violation. See,
e.g., City of Niagara Falls, 65 F.3d at 1020 (concluding that,
under totality of circumstances, no § 2 violation existed where
"many" of the Senate Report factors pointed against the
plaintiffs). The district court's finding to the contrary is
clearly erroneous.
III.
As an alternative ground for affirming the judgment of the
district court, the County argues that the proposed majority-
minority district violates the Equal Protection Clause of the
Fourteenth Amendment. The County relies on the Supreme Court's
decision in Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995), which
held that strict scrutiny applies to redistricting plans where
"race was the predominant factor motivating the legislature's
decision to place a significant number of voters within or without
a particular district." The County claims that racial
considerations dominated the drawing of the proposed black-majority
district in Calhoun County and that, therefore, the proposed
district is unconstitutional after Miller.
The County's argument has more bite than might appear at first
glance. Its implications travel far beyond Calhoun County and
threaten the constitutionality of the Voting Rights Act itself. In
21
light of this, it is not surprising that we have been chary of
reaching the issue of Miller's applicability to vote dilution
claims brought pursuant to § 2 of the Voting Rights Act. See,
e.g., Alonzo, 68 F.3d at 947 n.2 (reserving the question). We are
loathe to revisit that Act's validity, and upon closer examination,
we are not persuaded that Miller and its progeny prohibit
redistricting plans drawn to remedy violations of § 2 of the Voting
Rights Act. We begin with Miller.
A.
In Miller, the Supreme Court confronted the constitutionality
of Georgia's Eleventh Congressional District, one of three
majority-minority districts in the State. Drawn in response to the
Justice Department's refusal to preclear earlier reapportionment
plans pursuant to § 5 of the 1965 Voting Rights Act, the Eleventh
District mimicked Sherman's March-to-the-Sea, traversing the 260
miles from Atlanta to Savannah. A three-judge district court panel
found that race was the dominant purpose in creating the Eleventh
District. On appeal to the Supreme Court, the appellants did not
contest the district court's finding but rather claimed that the
legislature's motivation by itself did not suffice to state a claim
under Shaw v. Reno, 113 S. Ct. 2816 (1993). Rather, the appellants
argued that the district court must find that the district's shape
was so bizarre on its face as to be unexplainable on grounds other
than race. The Supreme Court disagreed.
Noting that the Equal Protection Clause subjects facially-
neutral statutes motivated by racial considerations to strict
22
scrutiny, the Court rejected the view that bizarre shape was a
prerequisite to an equal protection claim:
Shape is relevant not because bizarreness is a necessary
element of the constitutional wrong or a threshold
requirement of proof, but because it may be persuasive
circumstantial evidence that race for its own sake, and
not other districting principles, was the legislature's
dominant and controlling rationale in drawing its
district lines.
115 S. Ct. at 2486. The Court made clear that plaintiffs who
challenge the constitutionality of reapportionment plans "are
neither confined in their proof to evidence regarding the
district's geometry and makeup nor required to make a threshold
showing of bizarreness." Id. at 2488.
The Court encountered greater difficulty, however, in
affirmatively defining the plaintiff's burden of proof. The Court
acknowledged that legislatures will "almost always be aware of
racial demographics; but it does not follow that race predominates
in the redistricting process." Id. Distinguishing between
permissible awareness and impermissible motivation "may be
difficult" and will require courts "to exercise extraordinary
caution in adjudicating claims that a state has drawn district
lines on the basis of race." Id. Nevertheless, the Court
attempted a definition:
The plaintiff's burden is to show, either through
circumstantial evidence of a district's shape and
demographics or more direct evidence going to legislative
purpose, that race was the predominant factor motivating
the legislature's decision to place a significant number
of voters within or without a particular district. To
make this showing, a plaintiff must prove that the
legislature subordinated traditional race-neutral
districting principles, including but not limited to
compactness, contiguity, respect for political
23
subdivisions or communities defined by actual shared
interests, to racial considerations.
Id. Justice O'Connor added in her concurring opinion that this
standard was "a demanding one," requiring the plaintiff to show
that the legislature "has relied on race in substantial disregard
of customary and traditional districting practices." Id. at 2497
(O'Connor, J., concurring). In those cases where the plaintiff
successfully proves that race was the "predominant, overriding"
consideration motivating the drawing of district lines, the burden
shifts to the defendant to demonstrate that its districting plan is
narrowly tailored to achieve a compelling governmental interest.
Id. at 2490.
Agreeing with the district court that race was the predominant
factor motivating the drawing of the Eleventh Congressional
District, the Court turned to the requirements of strict scrutiny.
Georgia argued that compliance with the preclearance requirement of
§ 5 of the Voting Rights Act was a compelling governmental
interest. The Court did not reach the validity of that position:
Whether or not in some cases compliance with the Voting
Rights Act, standing alone, can provide a compelling
interest independent of any interest in remedying past
discrimination, it cannot do so here. As we suggested in
Shaw, compliance with federal antidiscrimination laws
cannot justify race-based districting where the
challenged district was not reasonably necessary under a
constitutional reading and application of those laws.
Id. at 2490-91.
The Court concluded that the Eleventh District was not
required by the Voting Rights Act "under a correct reading of the
statute." Id. at 2491. That Georgia drew the Eleventh District in
24
order to obtain preclearance under § 5 of the Voting Rights Act did
not mean that the plan was required by the Act. Id. To the
contrary, the Eleventh District was not required under the Act
"because there was no reasonable basis to believe that Georgia's
earlier enacted plans violated § 5." Id. at 2492. Noting that the
earlier plans had increased the number of majority-minority
districts from the previous apportionment, the Court explained that
such ameliorative plans did not violate § 5 "unless the new
apportionment itself so discriminates on the basis of race or color
as to violate the Constitution." Id.
The Court added that the Justice Department's interpretation
of § 5 as authorizing it to preclear only those reapportionment
plans that maximized majority-minority districts portended
constitutional difficulties for § 5 and brought the Voting Rights
Act "into tension with the Fourteenth Amendment." Id. at 2493.
The Court eschewed reaching the constitutional question, however,
noting only that there was no indication that Congress intended § 5
of the Voting Rights Act to reach as far as the Justice Department
had pushed it. Id.
Miller left open several critical questions. The Court
assumed but did not decide that compliance with the Voting Rights
Act constituted a compelling governmental interest. Moreover,
Miller did not address in what instances a State may draw majority-
minority districts to remedy potential or adjudicated violations of
§ 2 of the Voting Rights Act.
25
Second, while Miller left these issues unresolved, its
condemnation of race-based districting decisions was loud and
clear. The Court described the evils of race-based redistricting,
declaring that "'[r]acial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions; it
threatens to carry us further from the goal of a political system
in which race no longer matters--a goal that the Fourteenth and
Fifteenth Amendments embody, and to which the Nation continues to
aspire.'" Id. at 2486 (quoting Shaw, 113 S. Ct. at 2832) (emphasis
added).
The Court's recent decisions in Bush v. Vera, 1996 WL 315857
(1996), and Shaw v. Hunt, 1996 WL 315870 (1996) (Shaw II), built
upon the framework established by Miller and resolved several of
the questions Miller had left unanswered. In Bush, the Court
struck down three majority-minority Congressional districts in
Texas as violative of the Equal Protection Clause. The three
districts were the product of the Texas legislature's effort to
increase the number of majority-minority districts in the State.
No opinion commanded a majority. Justice O'Connor, writing for two
other Justices, began her analysis by noting that strict scrutiny
does not apply to all cases involving the intentional creation of
majority-minority districts. 1996 WL 315857, at *5. Rather,
Justice O'Connor reaffirmed Miller's predominant factor test and
26
found that the three challenged districts all failed that test,
thereby triggering strict scrutiny.2
To justify its race-based redistricting, Texas pointed to
three interests: the interest in avoiding liability under § 2 of
the Voting Rights Act, the interest in remedying past and present
discrimination, and the interest in complying with § 5 of the
Voting Rights Act. It is the Court's treatment of the first
interest that concerns us the most in this case.
In her opinion for the plurality, Justice O'Connor assumed
without deciding that compliance with § 2 of the Voting Rights Act
constituted a compelling governmental interest. Id. at *15.
Although strict scrutiny is a demanding standard, Justice O'Connor
explained that the narrow tailoring prong of the test permitted the
States "a limited degree of leeway" in drawing a remedial,
majority-minority district. Id. To demonstrate that a majority-
minority district is reasonably necessary to comply with § 2, the
State must have a "strong basis in evidence" for finding that the
three Gingles preconditions exist. Id.
2
Justices Thomas and Scalia, who did not join Justice
O'Connor's opinion for the plurality but provided a majority by
concurring in the judgment, disagreed with the plurality on this
point and concluded that the intentional creation of a majority-
minority district was sufficient to trigger strict scrutiny. Id.
at *27. On this point, at least six Justices sided with Justice
O'Connor's view of the law. Compare id. at *5 (O'Connor, J.,
joined by Rehnquist, C.J., and Kennedy, J.); id. at *31 & n.7
(Stevens, J., joined by Ginsburg and Breyer, J.J., dissenting); id.
at *56 (Souter, J., joined by Ginsburg and Breyer, J.J.,
dissenting) with id. at *25 (Kennedy, J., concurring) (reserving
the question) and id. at *27 (Thomas, J., joined by Scalia, J.,
concurring in the judgment).
27
Although Justice O'Connor was willing to assume the existence
of the last two Gingles preconditions in the instant case, she
concluded that the challenged districts' bizarre shape and lack of
compactness "defeat[ed] any claim that the districts are narrowly
tailored to serve the State's interest in avoiding liability under
§ 2." Id. at *16. Although "[a] § 2 district that is reasonably
compact and regular, taking into account traditional districting
principles such as maintaining communities of interest and
traditional boundaries, may pass strict scrutiny without having to
defeat rival compact districts designed by plaintiffs' experts in
endless 'beauty contests,'" id. at *15, a non-compact majority-
minority district is not required by § 2 and, therefore, fails the
narrowly tailored prong of strict scrutiny. Id. at *16. Justices
Thomas and Scalia, concurring in the judgment, agreed without
elaboration that the districts were not narrowly tailored. Id. at
*29.
Of particular significance, both Justice O'Connor and Justice
Kennedy filed concurring opinions that further addressed the
relationship between the Equal Protection Clause and § 2 of the
Voting Rights Act. Although Justice O'Connor's opinion for the
plurality only assumed that compliance with the Voting Rights Act
was a compelling governmental interest, Justice O'Connor expressly
adopted that position in her separate concurring opinion. See id.
at *21. On this point, at least four other Justices agreed with
Justice O'Connor. See id. at *41 (Stevens, J., joined by Ginsburg
and Breyer, J.J., dissenting); id. at *46, *56 (Souter, J., joined
28
by Ginsburg and Breyer, J.J., dissenting). Moreover, Justice
O'Connor opined that "if a State pursues that compelling interest
by creating a district that 'substantially addresses' the potential
liability, and does not deviate substantially from a hypothetical
court-drawn § 2 district for predominantly racial reasons, its
districting plan will be deemed narrowly tailored." Id. at *23.
Justice Kennedy agreed that the three challenged districts
were not narrowly tailored to serve the asserted interest in
complying with § 2 of the Voting Rights Act, but his approach
differed slightly from the plurality's. Id. at *25. Justice
Kennedy noted that the first Gingles precondition focuses not on
the compactness of the contested district but rather the
compactness of the minority population. Id. As a consequence,
Justice Kennedy was willing to assume that Texas had a strong basis
in evidence for concluding that all three Gingles preconditions
existed. Indeed, only if all three Gingles preconditions were met
would a court reach the question whether the challenged district
was narrowly tailored to remedying the potential § 2 violation.
Nevertheless, the challenged districts' lack of compactness,
which persuaded Justice O'Connor that the first Gingles factor was
not met, persuaded Justice Kennedy that the districts did not
substantially address the potential § 2 violation. Emphasizing the
plurality's statement that the remedial district "must
'substantially address the § 2 violation'" to satisfy the narrow
tailoring prong of strict scrutiny, Justice Kennedy attempted to
give content to that phrase by noting that a State "may not engage
29
in districting based on race except as reasonably necessary to cure
the anticipated § 2 violation, nor may it use race as a proxy to
serve other interests." Id. at *26 (emphasis added). In Justice
Kennedy's eyes, the inclusion of some minority communities that
"could not possibly form part of a compact majority-minority
district" belied the claim that Texas drew the district to remedy
a potential § 2 violation. Id. Justice Kennedy cautioned,
however, that the Court's focus on compactness did not mean that
all majority-minority districts had to be compact to satisfy
constitutional scrutiny. To the contrary, "[d]istricts not drawn
for impermissible reasons or according to impermissible criteria
may take any shape, even a bizarre one." Id. at *27.
Shaw II, which was decided the same day as Bush, invalidated
North Carolina's Twelfth Congressional District, a "serpentine"
district 160 miles in length and often no wider than the interstate
that it followed in its "snake-like" trek through the heart of the
State. 1996 WL 315870, at *3, *4. Applying Miller's predominant
purpose test, the Court found that race was the predominant factor
in drawing the challenged district. Id. at *4. As in Bush, the
Court assumed that compliance with the Voting Rights Act was a
compelling governmental interest, see id. at *6 n.4, *9, but it
concluded that District 12 was not narrowly tailored to that end.
Id. at *10. The Court explained that the majority-minority
district "must, at a minimum, remedy the anticipated violation [of
§ 2] or achieve compliance to be narrowly tailored." Id. at *9.
Noting that the first Gingles precondition requires the existence
30
of a geographically compact minority group, Chief Justice Rehnquist
declared that "[n]o one looking at District 12 could reasonably
suggest that the district contains a 'geographically compact'
population of any race." Id. at *10.
Taken together, these decisions establish a number of
important propositions. First, race-based redistricting, even that
done for remedial purposes, is subject to strict scrutiny. Second,
compliance with § 2 of the Voting Rights Act constitutes a
compelling governmental interest. Third, the State must have a
strong basis in evidence for concluding that the three Gingles
preconditions exist in order to claim that its redistricting plan
is reasonably necessary to comply with § 2. Fourth, a tailored
response to a found violation must use race at the expense of
traditional political concerns no more than is reasonably necessary
to remedy the wrong. With these propositions in mind, we turn to
the County's arguments in this case.
B.
The County frames its Miller argument in two ways. First, it
claims that Miller limits the scope of the first Gingles factor,
which requires proof that a geographically compact majority-
minority district can be created. According to the County, the
plaintiffs' proposed redistricting plans violate Miller and,
therefore, are not "a proper foundation for a holding that
Plaintiffs-Appellants have satisfied the first Gingles precondition
of a sufficiently numerous, geographically compact minority
31
population." To fully understand the County's argument, we must
return to our first decision in this case.
In the first appeal, the County claimed that the Supreme
Court's then-recent decision in Shaw supported the district court's
finding that the plaintiffs had not established the first Gingles
factor. According to the County, a districting scheme that
violated Shaw's requirement of compactness per se failed to satisfy
the first Gingles precondition. We acknowledged Shaw's holding
that a voting scheme "so extremely irregular on its face that it
rationally can be viewed only as an effort to segregate the races
for purposes of voting" stated a claim under the Equal Protection
Clause. However, we noted that the proposed district in this case
was "not nearly as bizarre as the district under consideration in
Shaw." 21 F.3d at 95. We consequently refused to determine
"whether a bizarrely-shaped district which would enable plaintiffs
to state a claim under the Equal Protection Clause would
necessarily flunk the Gingles compactness test." Id. at 95-96.
The County's Miller contention builds upon this earlier
argument. According to the County, Miller clarifies Shaw by
explaining that the gravamen of an Equal Protection claim is not
the shape of the district but rather the legislature's motivation
or purpose in drawing the district as it did. The argument
continues that the plaintiffs' predominant concern with race in
drawing their proposed district places it squarely within Miller
and therefore outside the first Gingles factor. Stated another
32
way, a proposed district that violates Miller does not satisfy the
first Gingles factor per se.
We agree with the County's reading of Miller but disagree that
Miller is relevant to the first Gingles factor. In contrast to
Shaw's focus on compactness, Miller explained that compactness was
not the gravamen of Equal Protection challenges to reapportionment
plans. To the contrary, compactness was merely one among many
factors whose presence bore on the ultimate question whether race
was the predominant factor motivating the drawing of particular
district lines.
In contrast to Miller's focus on motivation, the first Gingles
factor requires that the plaintiff demonstrate that the minority
group is "sufficiently large and geographically compact to
constitute a majority in a single-member district." Gingles, 478
U.S. at 50. Plaintiffs typically attempt to satisfy this
requirement by drawing hypothetical majority-minority districts.
When combined with the second Gingles factor requiring that
minority voters demonstrate their political cohesiveness, the first
Gingles factor ensures that the minority has the potential to elect
a representative of its own choice in some single-member district.
See Growe, 113 S. Ct. at 1084; Gingles, 478 U.S. at 50 & n.17.
Absent a satisfactory showing on the first Gingles factor, minority
voters cannot claim that it is the current districting system and
not, for example, geographic dispersal that is the source of their
disproportionately weak political strength. Gingles, 478 U.S. at
50 n.17.
33
Bush and Shaw II support our conclusion that Miller's emphasis
on purpose does not apply to the first Gingles precondition. In
neither case did the Court suggest that a district drawn for
predominantly racial reasons would necessarily fail the Gingles
test. To the contrary, the first Gingles factor is an inquiry into
causation that necessarily classifies voters by their race.
In short, we do not understand Miller and its progeny to work
a change in the first Gingles inquiry into whether a sufficiently
large and compact district can be drawn in which the powerful
minority would constitute a majority. See Harvell, 71 F.3d at 1391
(noting that Miller "did not purport to alter our inquiry into the
vote-dilution claim"). To be sure, this test of causation insists
upon a compact district, and a remedial response narrowly tailored
to remedying a found violation must also be compact. As we will
explain, however, that tailored response must use race at the
expense of traditional political concerns no more than is
reasonably necessary to remedy the found wrong.
C.
Alternatively, the County argues that we should affirm the
judgment below because there is no constitutional remedy.
According to the County, the plaintiffs' proposed redistricting
plans violate Miller. The County argues that, consequently, it
would be subject to lawsuits under Miller if it were to implement
one of the plaintiffs' proposed redistricting plans. The argument
is that the County did not violate § 2 because the plaintiffs'
proposed remedy violates the Equal Protection Clause.
34
To the extent that the County challenges the remedy, it is not
ripe for our review. Plaintiffs’ majority-minority districts were
identified in answer to the first Gingles inquiry into causation.
See Clark, 21 F.3d at 95 (noting that plaintiffs' proposed
districts were "simply presented to demonstrate that a majority-
black district is feasible in Calhoun County"). Calhoun County's
Board of Supervisors has primary jurisdiction over its electoral
system. "It must be left to that body to develop, in the first
instance, a plan which will remedy the dilution of the votes of the
city's black citizens." Westwego III, 946 F.2d at 1124; see also
Clark, 21 F.3d at 95 (noting that "the county will be given the
first opportunity to develop a remedial plan"). That body is free,
within limits,3 to develop a different remedial plan from those
proposed by the plaintiffs.
This is not to say that Bush does not insist that districting
plans drawn to remedy potential violations of the Voting Rights Act
escape scrutiny under the Equal Protection Clause. 1996 WL 315857,
at *15-16. It is true that here, unlike Bush, there is an
adjudicated violation of the Voting Rights Act, but that does not
remove the constitutional constraints. See Dillard v. City of
Greensboro, 74 F.3d 230, 233-34 (11th Cir. 1996) (applying Miller
to redistricting plan imposed by district court to remedy § 2
violation). It is also true that Miller, Bush, and Shaw II make
If the board of supervisors "fails to develop such a plan
in a timely manner, or fails to develop a plan which fully remedies
the current vote dilution, the responsibility for devising a
remedial plan will devolve onto the federal district court."
Westwego III, 946 F.2d at 1124.
35
clear that a majority-minority district is not per se
unconstitutional. Calhoun County's argument to the contrary
glosses over a number of required analytical steps.
Bush established a two-part inquiry for determining whether a
majority-minority district passes constitutional muster. Such a
district is constitutional if the State has a "strong basis in
evidence" for concluding that the three Gingles preconditions are
present and if the district drawn in order to satisfy § 2 does not
"subordinate traditional districting principles to race
substantially more than is 'reasonably necessary' to avoid § 2
liability." 1996 WL 315857, at *16. Although a State need not
await judicial findings to that effect, see id. at *23 (O'Connor,
J., concurring), we have already found that the three Gingles
preconditions exist here.
To be narrowly tailored, the remedial district must use race
at the expense of traditional political concerns no more than is
reasonably necessary to remedy the found wrong. Stated another
way, the remedial district must "substantially address" the
violation and "not deviate substantially from a hypothetical court-
drawn § 2 district for predominantly racial reasons." Id.
(O'Connor, J., concurring); id. at *26 (Kennedy, J., concurring);
see also Shaw II, 1996 WL 315870, at *9 (holding that majority-
minority district must, "at a minimum," remedy the violation to be
narrowly tailored). As this language suggests, the proposed
majority-minority district used to satisfy the first Gingles factor
exemplifies the narrowly tailored district. Indeed, it is
36
deviations from this district that raise problems. See Bush, 1996
WL 315857, at *16; Shaw II, 1996 WL 315870, at *10. And, of
course, a district court supervising the development of a remedy
may reject a proposed remedial district that "substantially
deviates" from the hypothetical district.
There has been no finding that the plaintiffs' plans
subordinate traditional race-neutral districting plans to racial
considerations. The plaintiffs presented several redistricting
plans to the district court, one of which allegedly made "minimal
changes to existing districts and precinct lines." Compare Miller,
115 S. Ct. at 2497 (O'Connor, J., concurring) (noting that
predominant factor test is "a demanding one") with Quilter v.
Voinovich, 912 F. Supp. 1006, 1019 (N.D. Ohio) (holding that
predominant factor test is satisfied where "a state substantially
complies with traditional districting principles" but "gives them
less weight in the apportionment process than racial
considerations"), appeal dismissed, 116 S. Ct. 42 (1995). Whether
those changes are truly "minimal" and, if not, whether the
districts use race no more than is reasonably necessary to remedy
the found violation are questions best left to the district court
on remand.
Redistricting to remedy found violations of § 2 of the Voting
Rights Act by definition employs race. Miller, Shaw II, and Bush,
however, do not foreclose the ability of States to act "to remedy
the reality of racial inequality in our political system." Bush,
1996 WL 315857, at *24 (O'Connor, J., concurring). The limit is
37
that the remedy must use race at the expense of traditional
political concerns no more than is reasonably necessary to remedy
the found wrong.
IV.
Calhoun County's districting system dilutes minority voting
strength in violation of § 2 of the Voting Rights Act.
Accordingly, we REVERSE the judgment of the district court, RENDER
judgment for the plaintiffs on liability, and REMAND the case to
the district court to supervise the development of a remedial plan
and to determine what amount, if any, the plaintiffs are entitled
to recover in court costs and attorneys' fees.
38