The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60793
Summary Calendar
_____________________
HOWARD GUNN, Individually, and on behalf of
all others similarly situated,
Plaintiff-Appellee,
versus
CHICKASAW COUNTY, MISSISSIPPI, ET AL.,
Defendants,
CHICKASAW COUNTY, MISSISSIPPI,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:92-CV-142
_________________________________________________________________
December 18, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Howard Gunn, individually, and on behalf of all others
similarly situated (the “plaintiffs”), filed the instant lawsuit
against Chickasaw County, Mississippi, alleging that Chickasaw
County’s justice court judge/constable reapportionment plan was
designed to dilute, minimize, and cancel the votes of the black
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
residents, thereby violating the Fourteenth and Fifteenth
Amendments of the United States Constitution. The plaintiffs
alleged that the electoral scheme also violated Sections 2 and 5 of
the Voting Rights Act of 1965, as amended.
After conducting a two-day bench trial, the district court
found that Chickasaw County’s current districting plan violated
Section 2 of the Voting Rights Act of 1965 (“Section 2"), as well
as the Fourteenth and Fifteenth Amendments. The district court
ordered the parties to submit a joint proposal creating a majority-
black justice court judge/constable district in Chickasaw County
within sixty days of the judgment and awarded Gunn his reasonable
attorney’s fees and costs. The defendant filed a timely notice of
appeal. The district court stayed its joint-proposal order pending
completion of the instant appeal. On appeal, the defendant argues
that the district court clearly erred in holding that Chickasaw
County’s justice court judge/constable districts violate Section 2.
Because we find that the district court did not err in reaching its
decision, we affirm.
I
A district court’s findings in a Section 2 case are reviewed
for clear error.1 Magnolia Bar Ass’n v. Lee, 994 F.2d 1143, 1147
1
The defendant contends that, because it argues that the
district court applied incorrect legal standards and made findings
of fact based on these standards, this court should review the
district court’s judgment de novo. Findings of fact in Section 2
cases, even when based on a misreading of the applicable law, are
reviewed for clear error. See Johnson v. De Grandy, 512 U.S. 997,
2
(5th Cir. 1993). If the district court applied the correct legal
standards, its findings should not be reversed if they are
plausible in the light of the record viewed as a whole. Id.
Section 2 states that:
No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
which results in a denial or 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). A plaintiff must initially prove three
preconditions in order to establish that an at-large voting scheme
dilutes minority voting strength, thereby violating Section 2.
Thornburg v. Gingles, 478 U.S. 30, 48-51 (1986). The minority
group must establish that: (1) “it is sufficiently large and
geographically compact to constitute a majority in a single-member
district”; (2) “it is politically cohesive”; and (3) “the white
majority votes sufficiently as a bloc to enable it--in the absence
of special circumstances, such as the minority candidate running
unopposed--usually to defeat the minority’s preferred candidate.”
Id. at 50-51 (internal and external citations omitted). These so-
called Gingles preconditions also apply to challenges to single-
member districts. Growe v. Emison, 507 U.S. 25, 39-41 (1993).
After satisfying the Gingles preconditions, the minority group
must establish a Section 2 violation by showing that, based on the
1022 (1994)(holding ultimate finding of dilution in districting
that was based on misreading of governing law to be clearly
erroneous).
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totality of the circumstances, they “have less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.” § 1973(b).
Section 2 makes clear that a violation may be proved by showing
discriminatory effect alone, thereby codifying the “results test”
set forth in White v. Regester, 412 U.S. 755 (1973). Gingles, 478
U.S. at 35.
II
The defendant argues that the district court clearly erred in
determining that the black population of Chickasaw County was
sufficiently geographically compact to compose a majority in a
single-member district. The defendant argues that the plaintiffs’
proposed majority-black districts are so bizarrely-shaped that they
were obviously drawn solely based on race. Id.
“The first Gingles precondition does not require some
aesthetic ideal of compactness, but simply that the black
population be sufficiently compact to constitute a majority in a
single-member district.” Clark v. Calhoun County, 21 F.3d 92, 95
(5th Cir. 1994)(“Clark I”)(citation omitted). “[P]laintiffs’
proposed district is not cast in stone . . . [but] was simply
presented to demonstrate that a majority-black district is feasible
in [the county at issue].” Id. These districts must necessarily
be drawn based on race in order to qualify as majority-black
districts. The district court noted that the plaintiffs’ proposed
redistricting plan created a majority-black district by generally
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following supervisor-district lines with only two small splits.
Because it was plausible for the district court to find that the
plaintiffs’ proposed majority-black districts satisfied the first
Gingles precondition, the district court did not clearly err.
III
The defendant also argues that the district court clearly
erred in concluding that, based on the totality of the
circumstances, Chickasaw County’s justice court judge/constable
districts violated Section 2. Courts are guided in their totality
of the circumstances inquiry by the so-called Zimmer2 factors,
which 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,
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.’
Clark v. Calhoun County, 88 F.3d 1393, 1396 (5th Cir. 1996) (“Clark
II”)(quoting Gingles, 478 U.S. at 44-45). The district court
should also consider “‘evidence demonstrating that elected
2
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)(en banc).
5
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.
(quoting Gingles, 476 U.S. at 45).
The defendant argues that the district court clearly erred in
finding that evidence regarding the responsiveness of elected
officials to the needs of the black community did not favor either
party. Although the defendant cites to the testimony of two
witnesses regarding instances when elected officials responded to
the needs of the black community, the testimony of one of these
witnesses was rebutted by subsequent testimony. In sum, the
evidence cited by the defendant “do[es] not reflect the
comprehensive and systematic responsiveness to minority needs that
is entitled to substantial weight in the totality-of-circumstances
inquiry.” Clark II, 88 F.3d at 1401.
The district court further found that the plaintiffs had
established the two most relevant factors: “the extent to which
minority group members have been elected to public office in the
jurisdiction” and the “extent to which voting in the elections and
the state political subdivision is racially polarized.” R. 89-90;
see also Gingles, 478 U.S. at 48 n.15. The defendant argues that
the district court’s finding that voting in Chickasaw County was
racially polarized was not supported by sufficient evidence. The
district court noted, however, that the plaintiffs presented expert
6
testimony that voting in Chickasaw County was racially polarized
and that this testimony was supported by actual election results in
Chickasaw County.
The defendant also argues on appeal that the election of
several black candidates in various positions in Chickasaw County
indicates that blacks have previously been elected to public office
in Chickasaw County and contradicts the district court’s finding of
significant racial bloc voting. However, the fact that a black
candidate was elected in a political subdivision in which blacks
constitute a minority does not necessarily indicate significant
crossover-voting by whites, as a candidate may be uncontested or
may be elected by a minority in a race with multiple candidates.
See Gingles, 478 U.S. at 56 (black voters’ ability to elect
representatives of their choice is dependent on many factors, such
as number of seats open and number of candidates in field). In
this case, only one of the black candidates indicated by defendant
was elected as a constable and none was elected as a justice court
judge. See Gingles, 478 U.S. at 57 (fact that some individual
elections do not indicate racially polarized voting does not negate
conclusion that district experiences legally significant racial
bloc voting, and success of minority candidate in particular
election does not necessarily indicate that the district did not
experience racially polarized voting); Magnolia Bar Ass’n, 994 F.2d
at 1149 (elections involving particular office at issue are more
relevant than elections involving other offices). Racial
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polarization in elections in Chickasaw County has been previously
established. See Gunn v. Chickasaw County, 705 F. Supp. 315, 320
(N.D. Miss. 1989)(ultimately holding Chickasaw County’s
redistricting plan for supervisory districts violated Section 2).
Because it was plausible that the plaintiffs established these two
critical factors based on the record as a whole, the district court
did not clearly err.
The defendant finally argues that the district court clearly
erred in finding a socio-economic difference between blacks and
whites in Chickasaw County, resulting in lower voter participation
by blacks. Expert testimony and lay testimony by Gunn supported
the district court’s finding. The district court also took
judicial notice of Mississippi’s and Chickasaw County’s history of
discrimination in the area of voting and the fact that Gunn was the
first black to register to vote in Chickasaw County, which was
accomplished in 1963 by order of the court.
Because its finding was plausible in the light of the record
as a whole, the district court did not clearly err.
IV
The defendant contends that the district court clearly erred
in concluding that a majority-black district could be created
without unduly subordinating race-neutral districting principles to
strict scrutiny racial considerations. The defendant argues that
the plaintiffs’ proposed majority-black district cannot withstand
strict scrutiny, as mandated by Miller v. Johnson, 515 U.S. 900,
8
916 (1995). The plaintiffs’ proposed majority-black district was
submitted for the purpose of satisfying the first Gingles
precondition. This court has held that Miller does not apply to
the first Gingles precondition. Clark II, 88 F.3d at 1406-07. The
defendant’s argument therefore has no merit.
V
After a thorough examination of the record and the briefs
submitted by the parties, we find no clear error. The district
court’s findings were plausible in the light of the record read as
a whole and the decision of the district court is therefore
A F F I R M E D.
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