Solomon v. Liberty County Comrs.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________________

No. 97-2540

FILED

________________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

D.C. Docket Nos. 85-CV-7009 2/03/99

85-CV-7010 THOMAS K. KAHN

CLERK

GREGORY SOLOMON, PATRICIA

BECKWITH, et al., on behalf of

themselves and all others similarly situated,

Plaintiffs-Appellants,

versus

LIBERTY COUNTY COMMISSIONERS,

LIBERTY COUNTY SCHOOL BOARD,

et al.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________________________________________________

(February 3, 1999)

Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit

Judge.

HATCHETT, Chief Judge:

Appellants Gregory Solomon and two other black registered voters of Liberty County,

Florida, appeal the district court’s judgment that the county’s at-large system of electing its

commissioners and school board members does not run afoul of section 2 of the Voting Rights

Act of 1965, as amended, 42 U.S.C. § 1973 (1994). Finding clear error, in part because of the

court’s reliance on the electoral success of a black candidate during the pendency of this

litigation, we reverse and remand for the implementation of a remedy.

I. PROCEDURAL HISTORY

This lawsuit began in 1985 in the United States District Court for the Northern District of

Florida. Appellants sued Liberty County’s Commission, School Board, and commissioners and

members in their official capacities (collectively appellees), alleging that at-large elections

unlawfully diluted minority voting strength, in violation of section 2 of the Voting Rights Act,

42 U.S.C. § 1973.1 In March 1986, the district court conducted a five-day bench trial and, a year

later, entered final judgment in favor of appellees. See Solomon v. Liberty County, Fla., Nos.

85-7009-MMP, 85-7010-MMP (N.D. Fla. May 4, 1987) (unpublished).

On appeal, a panel of this court vacated and remanded for further findings of fact.

Solomon v. Liberty County, Fla., 865 F.2d 1566 (11th Cir. 1988) (Solomon I), vacated, 873 F.2d

248 (11th Cir. 1989). In April 1990, the court reheard the case en banc. Solomon v. Liberty

County, Fla., 899 F.2d 1012 (11th Cir. 1990) (en banc) (Solomon II), cert. denied, 498 U.S. 1023

(1991). Unanimously vacating and remanding for further proceedings, the court held that

1

Appellants’ lawsuit against the School Board encompassed not only section 2 of the

Voting Rights Act but also the Fourteenth and Fifteenth Amendments to the United States

Constitution. Because of our holding, we need not reach the constitutional claim. Accord

Solomon v. Liberty County, Fla., 865 F.2d 1566, 1569 n.2 (11th Cir. 1988) (Solomon I)

(appellants’ “constitutional claims are not before us on appeal”), vacated, 873 F.2d 248 (11th

Cir. 1989).

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contrary to the district court’s judgment, appellants satisfied the three factors set forth in

Thornburg v. Gingles, 478 U.S. 30 (1986), “as a matter of law[.]” Solomon II, 899 F.2d at 1013

(per curiam).

The court, however, divided five-five concerning the significance of that holding. See

Solomon II, 899 F.2d at 1013-21 (Kravitch, J., specially concurring), 1021-37 (Tjoflat, C.J.,

specially concurring). According to five judges, appellants established section 2 violations and

deserved a remedy. See Solomon II, 899 F.2d at 1021 (Kravitch, J., specially concurring). The

other five judges, however, reaffirmed the prior panel’s opinion that further findings of fact were

warranted. See Solomon II, 899 F.2d at 1021, 1037 (Tjoflat, C.J., specially concurring). Unable

to create a majority opinion, the en banc court simply instructed the district court “to proceed in

accordance with Gingles, giving due consideration to the views expressed in Chief Judge

Tjoflat$s and Judge Kravitch$s specially concurring opinions.” Solomon II, 899 F.2d at 1013

(per curiam).

On remand, the district court granted appellees’ motion to supplement the record and

conducted a half-day trial. Based on the evidence it admitted in the first and second trials and

two judicially noticed facts, the district court again found that Liberty County’s at-large elections

do not violate section 2 and entered final judgment in favor of appellees. See Solomon v.

Liberty County, Fla., 957 F. Supp. 1522 (N.D. Fla. 1997) (Solomon III).

II. BACKGROUND

Liberty County is located in northwest Florida. It is especially rural; the Apalachicola

National Forest encompasses much of its 836 square miles. As Florida’s least densely-populated

county, it averages seven persons per square mile. Liberty County’s population totals only

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5,569.2 Of Liberty County’s 5,569 residents, 982 – or 17.63 percent – are black.3 The county’s

total voting age population (that is, persons over the age of 18) is 3,320, of whom 831 – or 25.03

percent – are black.

Residents vote at one of eight precincts.4 Candidate seat-wise, however, five equally

populous residential districts divide Liberty County. “To a great extent, the county is . . .

racially segregated.” Solomon III, 957 F. Supp. at 1558. Approximately 90 percent of its black

population lives in “residential district 1,” which corresponds somewhat to voting precincts 1

and 2.5 Of residential district 1’s 640 registered voters in 1991, blacks comprise 295 – or 46.09

percent. Although “significant socio-economic disparities” exist between Liberty County’s

white and black residents, substantially all of its voters are Democrats. Solomon III, 957 F.

Supp. at 1559.

Liberty County’s Commission and School Board each consists of five members who

serve staggered four-year terms. Candidates run for numbered seats that correspond to their

residential district. Voters elect candidates at-large, that is, the entire county electorate votes for

one candidate from each residential district. To become their party’s nominee, candidates must

2

Current figures are based on the 1990 census and other evidence presented at the

second trial. At the time of the first trial, Liberty County’s population was 4,260.

3

At the time of the first trial, blacks totaled 471 – or 11.06 percent – of Liberty County’s

4,260 population.

4

Apparently, at the time of the first trial, seven voting precincts existed. See Solomon v.

Liberty County, Fla., Nos. 85-7009-MMP, 85-7010-MMP, at 11 (N.D. Fla. May 4, 1987)

(unpublished).

5

According to the evidence at the first trial, blacks comprise 58.05 percent of precinct 1

and 56.92 percent of precinct 2.

4

receive a majority (that is, greater than 50 percent) of the county-wide vote. If no candidate

receives a majority in the first primary election, the county conducts a second (or run-off)

primary election. To win the general election, candidates must obtain a plurality (that is, more

than their opponents) of the county-wide vote. Because most candidates in Liberty County are

Democrats, voters usually decide races during the primary elections.

Prior to the commencement of this case, four black candidates unsuccessfully ran for

county-wide office. “Black candidates for seats on the school board included Charles Berrium in

1968, and Earl Jennings in 1980 and 1984. In 1984, Gregory Solomon ran for a seat on the

county commission.” Solomon III, 957 F. Supp. at 1557. Six months after 1990’s en banc

mandate, however, Jennings won the residential district 1 seat on the county commission,

defeating a white opponent in the primary and a white Republican incumbent in the general

election. In 1992, voters reelected Jennings in the run-off primary over three white opponents,

two of whom failed to make it past the first primary. In 1996, two black candidates and one

white candidate challenged Jennings, but he again prevailed in the run-off primary election.

According to the record, Jennings is the only black candidate that Liberty County voters have

elected to public office.

III. DISTRICT COURT’S FINDINGS OF FACT

In its memorandum opinion, the district court rendered findings of fact that favored both

appellants and appellees before it ultimately found no vote dilution. As to findings of fact that

favored appellants, the district court first recognized the unanimous en banc holding that

appellants had proved the three Gingles factors, that is, Liberty County’s (1) black voters are

“sufficiently large and geographically compact to constitute a majority in a single-member

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district[,]” namely residential district 1; (2) black voters are “politically cohesive”; and (3) the

“white majority votes sufficiently as a bloc to enable it” usually to defeat black voters’

“preferred candidate.” Gingles, 478 U.S. at 50-51; Solomon III, 957 F. Supp. at 1555.

Additionally, the court found that “a high degree of racially polarized voting” exists. Solomon

III, 957 F. Supp. at 1560. Fifth, it stated that “the continued use of the majority vote requirement

can work to the detriment of black candidates[,]” as can “the size of Liberty County[.]” 957 F.

Supp. at 1560-61. Finally, the court pointed out that “[b]lacks have not achieved proportional

representation on the Liberty County School Board.” 957 F. Supp. at 1570.

As to findings of fact that favored appellees, the district court first found “no evidence”

that the historical and “remaining vestiges of official discrimination in Liberty County” hinder

“the ability of blacks to participate in the political process[.] Solomon III, 957 F. Supp. at 1559.

Next, it held that because of Jennings’s 1990 electoral success, “blacks have not been excluded

from Liberty County’s informal slating process” that consists of “large white families” with

which candidates “must align themselves” “[i]n order . . . to be successful[.]” 957 F. Supp. at

1561-63 & nn. 96-97. Additionally, according to the court, black candidates’ “lack of

knowledge of the dynamics of running effective campaigns[,]” as opposed to “the present socio-

economic effects of past discrimination[,]” “significant[ly] imped[e] . . . black political

participation in Liberty County.” 957 F. Supp. at 1564-65. Fourth, the court found “no record

evidence of any recent overt or subtle racial appeals in campaigns in Liberty County.” 957 F.

Supp. at 1565. Further, it stated that “the more recent history of elections in Liberty County

shows consistent electoral success by the black candidate of choice for public office,” Jennings.

957 F. Supp. at 1566. Sixth, the court found that “with few exceptions, the Liberty County

6

School Board and County Commission have been responsive to the needs of the black

community.” 957 F. Supp. at 1567. Moreover, “as a matter of law[,]” the court concluded,

appellants “failed to establish that the policy underlying the use of at-large elections in Liberty

County is tenuous.” 957 F. Supp. at 1568. Eighth, it stated that “racial animus” does not drive

Liberty County’s electoral process. 957 F. Supp. at 1570. Finally, citing Jennings’s election and

re-elections, the court found that blacks “clearly” enjoy “proportional representation on the

county commission.” 957 F. Supp. at 1570.

IV. ISSUE

The encompassing issue before us is whether the district court erred in finding that

Liberty County’s at-large method of electing its county commissioners and school board

members does not violate section 2 of the Voting Rights Act, 42 U.S.C. § 1973. We

review the district court’s historical, subsidiary and ultimate findings of fact for clear

error. See Gingles, 478 U.S. at 79 (“[T]he clearly-erroneous test of [Federal Rule of

Civil Procedure] 52(a) is the appropriate standard for appellate review of a finding of no

vote dilution.”). “[A] finding is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 573 (1985) (internal quotation marks and citation omitted).

Additionally, “we will correct a district court’s errors of law and its findings of fact based

upon misconceptions of law.” Negron v. City of Miami Beach, Fla., 113 F.3d 1563,

1566 (11th Cir. 1997).

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V. DISCUSSION

To prevail on a claim of vote dilution under section 2 of the Voting Rights Act,

plaintiffs must establish that, “based on the totality of circumstances,” “the political

processes leading to nomination or election in the State or political subdivisions are not

equally open to [racial minority] participation . . . in that its members have less

opportunity than other members of the electorate to participate in the political process

and to elect representatives of their choice.” 42 U.S.C. § 1973. At minimum, section 2

plaintiffs must prove “the three now-familiar Gingles factors

(compactness/numerousness, minority cohesion or bloc voting, and majority bloc

voting)[.]” Johnson v. De Grandy, 512 U.S. 997, 1011 (1994). However,

other factors . . . may, in ‘the totality of circumstances,’ support a claim of

racial vote dilution. Derived from the Senate Report accompanying the

1982 amendment to section 2, those factors include:

1. the extent of any history of official discrimination in the

state or political subdivision that touched the right of the

members of the minority group to register, to vote, or

otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or

political subdivision is racially polarized;

3. the extent to which the state or political subdivision has

used unusually large election districts, majority vote

requirements, anti-single shot provisions, or other voting

practices or procedures that may enhance the opportunity for

discrimination against the minority group;

4. if there is a candidate slating process, whether the members

of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the

state or political subdivision bear the effects of discrimination

in such areas as education, employment and health, which

8

hinder their ability to participate effectively in the political

process;

6. whether political campaigns have been characterized by

overt or subtle racial appeals; [and]

7. the extent to which members of the minority group have

been elected to public office in the jurisdiction.

Gingles, 478 U.S. at 36-37, 106 S. Ct. at 2759 (quoting S. Rep. No. 417, at

28-29, reprinted in 1982 U.S.C.C.A.N. at 177, 206-07). Additional factors

that may be probative of vote dilution in some cases are:

[8.] whether there is a significant lack of responsiveness on

the part of elected officials to the particularized needs of the

members of the minority group; [and]

[9.] 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.

[Gingles, 478 U.S.] at 37, 106 S. Ct. at 2759.

Nipper v. Smith, 39 F.3d 1494, 1511 (11th Cir. 1994) (en banc) (plurality opinion of

Tjoflat, C.J.), cert. denied, 514 U.S. 1083 (1995). Also, in a section 2 case involving

state legislative single-member districts, the Supreme Court announced another factor,

proportionality, that it defined as the relationship between “the number of majority-

minority voting districts [and] minority members’ share of the relevant population.” De

Grandy, 512 U.S. at 1013-14 & n.11. Finally, two judges of this court consider racial

bias in the voting community to be a relevant factor. Nipper, 39 F.3d at 1524 (“The

defendant may rebut the plaintiff’s evidence by demonstrating the absence of racial bias

in the voting community[.]”) (plurality opinion of Tjoflat, C.J., with Anderson, J.).

In this case, the district court outlined what it believed to be “a reasoned

9

methodology for examining claims under section 2”:

In order to prove unlawful vote dilution, in violation of section 2, a plaintiff

must meet the following test. First, the plaintiff must demonstrate the three

Gingles factors of geographic compactness, political cohesiveness, and

racial bloc voting. If one or more of the Gingles factors is not shown, then

the defendant prevails. If all three factors are proven, then the court must

review all relevant evidence under the totality of the circumstances. The

defendant may present evidence of the lack of racial bias in the community,

proportionate representation, past and present electoral success, as well as

proof of the other factors which are indicative of the existence or non-

existence of vote dilution. The plaintiff may respond in kind. Without

treating any single factor as dispositive, the reviewing court will finally

determine through a searching inquiry whether the members of the minority

group are denied equal political opportunity with respect to their race or

color. If they are, then a claim under section 2 has been established.

Solomon III, 957 F. Supp. at 1553-54. The parties do not dispute the legal accuracy of

this framework. Rather, they dispute the district court’s application of it as well as the

dilution factors. As we outlined in section III of this opinion, the district court found that

the three Gingles factors, Senate Factors 2 and 3, and a lack of proportionality (only as to

the school board) cut in favor of appellants. On the other hand, the court weighed Senate

Factors 1, 4-9, proportionality (only as to the county commission), and the absence of

racial bias in favor of appellees. Appellants argue that the district court clearly erred in

rendering findings adverse to them, including its ultimate determination of no vote

dilution. Appellees defend the district court’s judgment, contending that it properly

resolved conflicts in the evidence and considered the totality of the circumstances.

A.

We begin with appellants’ principal assignment of error, the district court’s

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reliance on the electoral success of Earl Jennings, a black county commissioner. One of

the two “most important Senate Report factors” is the “extent to which minority group

members have been elected to public office in the jurisdiction.” Southern Christian

Leadership Conference of Alabama v. Sessions, 56 F.3d 1281, 1301 (11th Cir. 1995) (en

banc) (quoting Gingles, 478 U.S. at 48 n.15, and Senate Report at 28-29) (Hatchett, J.,

dissenting), cert. denied, 516 U.S. 1045 (1996). It is undisputed that prior to 1990, no

black candidate – including Jennings – had been elected to a county-wide office. At the

second trial, appellees proffered the results of the September 1990 Democratic primary,

in which Jennings became the party’s nominee:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 108 138 126 225 185 122 25 37

Mary Johnson [white]: 35 94 110 181 169 118 26 35

Absentees Total

Earl Jennings: 61 1027

Mary Johnson [white]: 69 837

In 1990’s general election, Jennings narrowly beat the Republican incumbent:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 106 134 93 159 145 115 30 49

Newton Walden [white]: 32 84 140 227 152 63 15 22

Absentees Total

Earl Jennings: 52 883

11

Newton Walden [white]: 59 794

After the second trial, at appellees’ request, the district court took judicial notice of

Jennings’s 1992 reelection. The September 1992 first primary results were as follows:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 110 137 103 212 126 145 13 49

Willis Brown [white]: 11 81 130 137 128 89 12 13

Jerry Proctor [white]: 30 48 77 118 42 42 15 18

Rocky Shiver [white]: 46 56 67 132 104 69 47 21

Absentees Total

Earl Jennings: 68 963

Willis Brown [white]: 47 648

Jerry Proctor [white]: 31 421

Rocky Shiver [white]: 47 589

In October 1992’s run-off primary election, facing no Republican opposition, Jennings

retained his seat on the county commission:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 134 170 150 282 186 173 52 55

Willis Brown [white]: 52 139 189 275 211 166 41 32

Absentees Total

Earl Jennings: 114 1316

Willis Brown [white]: 123 1228

Similarly, the district court judicially noticed Jennings’s 1996 reelection. In the

12

first primary, Jennings faced two black and one white challengers:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 51 146 99 186 185 170 16 44

Willis Brown [white]: 23 78 111 229 140 137 21 21

Stafford Dawson [black]: 112 65 73 163 89 51 22 10

Helen Hall [black]: 26 40 28 72 24 22 11 16

Absentees Total

Earl Jennings: 96 993

Willis Brown [white]: 80 840

Stafford Dawson [black]: 38 623

Helen Hall [black]: 29 268

Jennings defeated Willis Brown – the same white opponent he beat in 1992 – in the 1996

run-off primary:

Voting Precinct: 1 2 3 4 5 6 7 8

Earl Jennings: 138 197 183 287 215 182 37 55

Willis Brown [white]: 51 111 137 314 189 163 25 31

Absentees Total

Earl Jennings: 183 1477

Willis Brown [white]: 109 1130

The district court cited this data almost exclusively in finding that: (1) Jennings

achieved consistent electoral success in 1990, 1992 and 1996 as the black candidate of

choice (Senate Factor 7); (2) the informal but controlling white family slaters endorsed

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Jennings in 1990 and, therefore, did not exclude black candidates in general (Senate

Factor 4); and (3) blacks enjoyed proportional representation on the county commission

because Jennings held one of five seats, a proportion in line with Liberty County’s black

population (De Grandy). See Solomon III, 957 F. Supp. at 1561-63 & nn.96-97, 1565,

1570.

We agree with appellants that the district court clearly erred in rendering the first

two findings (Senate Factors 7 and 4), but we hold that the district court did not clearly

err with the third finding (DeGrandy/proportionality). It is well-recognized that

“[e]lections of minority candidates during the pendency of Section Two litigation . . .

have little probative value.” Davis v. Chiles, 139 F.3d 1414, 1417 n.2 (11th Cir. 1998)

(assigning “little probative value” to the post-trial appointment and reelection of a black

judge in Florida’s Second Judicial Circuit, which includes Liberty County, and the

“recent” election of a black judge who faced a white opponent in Leon County, Florida).

In crafting this rule, Congress, the Supreme Court and the former Fifth Circuit reasoned

that “the possibility exists that the majority citizens might evade [§ 2] by manipulating the

election of a ‘safe’ minority candidate” and that pending litigation “might” work “a one-

time advantage for black candidates in the form of unusual organized political support by

white leaders concerned to forestall single-member districting.” Gingles, 478 U.S. at 75-

76 (quoting in part Senate Report at 29, and Zimmer v. McKeithen, 485 F.2d 1297, 1307

(5th Cir. 1973) (en banc), aff’d sub nom., East Carroll Parish School Bd. v. Marshall, 424

U.S. 636 (1976) (per curiam)). Indeed, because it is couched in “possibilities” and

14

“mights,” this rule may very well be unconditional, that is, not requiring proof beyond

the timing of the election. See also NAACP v. Gadsden County Sch. Bd., 691 F.2d 978,

983 (11th Cir. 1982) (“[P]oliticians might find it politically expedient to have a ‘token’

black school board member.”) (emphasis added).

In any event, to be sure, the circumstances surrounding Jennings’s 1990 election

fit squarely within the rule’s rationale. Following two unsuccessful school board

elections, Jennings became Liberty County’s first elected county official after not only

the filing of this lawsuit, but also the en banc court’s mandate that appellants proved the

three Gingles factors as a matter of law. Indeed, it occurred in the wake of five circuit

judges concluding that appellants established liability and deserved a remedy. See

Solomon II, 899 F.2d at 1021 (Kravitch, J., specially concurring). Furthermore, as the

district court found, Jennings would not have won the Democratic primary but for the

support of “large white families” that ran Liberty County’s informal slating process. See

Solomon III, 957 F. Supp. at 1561-62. The “possibility” of vote “manipulation” further

intensifies when we consider the anomalous polarization data associated with Jennings’s

pre-litigation races. Gingles, 478 U.S. at 75-76. According to all ten judges of the en

banc court who reviewed that data, the white majority likely perceived Jennings as a

“safe” minority candidate. See Solomon II, 899 F.2d at 1019-20 nn.8 & 9 (“[T]he white

establishment in Liberty County backed Earl Jennings’ 1980 school board candidacy.”)

(Kravitch, J., specially concurring); Solomon I, 865 F.2d at 1579-81 & n.26 (“[V]oting

patterns were not polarized in Earl Jennings’s 1980 candidacy. The reason for this lack of

15

polarization may well be explained by the district court’s observation that Jennings had

run on a ‘white slate.’”). Jennings’s beating a Republican in a predominately-Democrat

county and twice retaining his seat as an incumbent are other “special circumstances” that

likely belie his electoral success. Meek v. Metropolitan Dade County, Fla., 985 F.2d

1471, 1483-84 (11th Cir. 1993) (“[T]he presence of special circumstances such as

incumbency or lack of opposition may explain the success of the minorities’ preferred

candidate in some elections.”) (per curiam) (emphasis added). But cf. Solomon III, 957

F. Supp. at 1556 n.79 (“[A]ny suggestion that racial polarization in the county was

somehow caused by partisan politics . . . would have no meaning here.”) (distinguishing

League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th

Cir. 1993) (en banc), cert. denied, 510 U.S. 1071 (1994)) (emphasis added). So is 1992’s

first primary, where Jennings faced three white challengers. See Rollins v. Fort Bend

Indep. Sch. Dist., 89 F.3d 1205, 1212 (5th Cir. 1996) (“The evidence demonstrates that

minority candidates have been elected to the . . . school board without special

circumstances, such as a candidate running unopposed or opposed by two strong Anglo

candidates.”) (emphasis added).

Contrary to the district court’s view, appellees, not appellants, bore the burden of

proving that Jennings’s success had probative value. See Solomon III, 957 F. Supp. at

1566 (“There has been no suggestion nor proof offered by Plaintiffs that white officials or

white voters in Liberty County have manipulated the electoral success of Mr. Jennings in

order to defeat Plaintiff’s vote dilution challenge.”) (emphasis added). Although section

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2 plaintiffs bear the burden of proving the Gingles factors and other factors in the totality

of circumstances that support a finding of vote dilution, defendants bear the burden of

proving any factor that they believe weighs in their favor. See Sanchez v. Colorado, 97

F.3d 1303, 1322 (10th Cir. 1996) (“Plaintiffs are not required to rebut all the evidence of

non-dilution to establish vote dilution.”), cert. denied, 117 S. Ct. 1820 (1997); Teague v.

Attala County, Miss., 92 F.3d 283, 290 (5th Cir. 1996) (“[T]he district court errs by

placing the burden on plaintiffs to disprove that factors other than race affect voting

patterns in Attala County.”), cert. denied, 118 S. Ct. 45 (1997); accord Nipper, 39 F.3d at

1513 (“A defendant in a vote dilution case may always attempt to rebut the plaintiff’s

claim by introducing evidence of objective, non-racial factors under the totality of the

circumstances standard.”) (plurality opinion of Tjoflat, C.J.). Consistent with this

standard and the district court’s undisputed legal framework, as proponents of the post-en

banc evidence (and to rebut the presumption that the election of a minority candidate

during section 2 litigation carries no more than nominal probative value), appellees bore

the burden of proving that Jennings was, in fact, the black candidate of choice. Cf.

United States v. Marengo County Comm’n, 731 F.2d 1546, 1574-75 (11th Cir.) (“In view

of the evidence already in the record, the defendants bear the burden of establishing that

circumstances have changed sufficiently to make our finding of discriminatory results in

1978 inapplicable in 1984.”), cert. denied, 469 U.S. 976 (1984). In proffering only the

election results, however, they failed to meet that burden as a matter of law.

Unquestionably, mere proof of Jennings’s race could not support a finding that he was the

17

choice of black voters. See Sanchez, 97 F.3d at 1320. Importantly, appellees did not

proffer any statistical analysis at the second trial. See Solomon III, 957 F. Supp. at 1560

n.89 (appellees did not “bother[] to perform a bivariate ecological regression analysis of

[Jennings’s] elections in 1990, 1992, and 1996”). Nor could appellees rely on pre-en

banc statistical evidence concerning Jennings to show that he was the black candidate of

choice. Even the original appellate panel considered that evidence to be of little value.

See Solomon I, 865 F.2d at 1581 (“Earl Jennings, although black, may not have been

perceived as a black candidate.”).

The district court’s sua sponte mathematical analysis of the 1990, 1992 and 1996

elections results further evinces clear error. Although neither party argued percentages at

trial or in their proposed findings of fact and conclusions of law, the court became its own

math advocate. In finding Jennings to be the “overall . . . black candidate of choice[,]”

the court stated that

[i]n the 1990 election, Mr. Jennings received 75.52 percent of the votes cast

in district 1 in the first primary, and 76.81 percent of the votes cast in

district 1 in the general election. . . . In the 1992 election, Mr. Jennings

received 55.84 percent of the votes cast in district 1 in the first primary (a

figure less conclusive of black support), and 72.04 percent of the votes cast

in district 1 in the second primary. . . . In the 1996 election, black support

in the first primary was apparently divided between the three black

candidates (Mr. Jennings received 24.06 percent of the vote in residential

district 1, compared to 52.83 percent for Stafford Stanley Dawson and

12.26 percent for Helen Hall), but was squarely behind Mr. Jennings in the

second primary when he garnered 73.02 percent of the votes cast in district

1.

Solomon III, 957 F. Supp. at 1562-63 n.97 (emphasis added). As is readily apparent,

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although it divided the numbers correctly, the court used data from “voting precinct 1” to

reach conclusions about “residential district 1.”6 This was clear error. “Voting precinct

1” simply refers to one of eight physical polling locations. “Residential district 1,” in

contrast, represents one of five seats for which county commission and school board

candidates run, as well as a would-be single-member district where blacks, together with

the white cross-over vote, are “sufficiently large in number and geographically compact

to constitute a majority[.]” Gingles, 478 U.S. at 50; see Solomon I, 865 F.2d at 1574

(“[I]f white crossover votes are included, an effective black majority would be achieved

in the district.”). Plainly, residential district 1’s borders do not equate to those of voting

precinct 1; according to the district court itself, “residential district 1 . . . includes the first

and second precincts.” Solomon III, 957 F. Supp. at 1556 (emphasis added). Nor does

residential district 1 represent the simple combination of voting precincts 1 and 2.

Compare Solomon III, 957 F. Supp. at 1556 (“[B]lacks comprise 46.09 percent of all the

registered voters in residential district one.”) with 957 F. Supp. at 1562 n.96 (voting

6

Although no party points out these errors to us, they are patently obvious. According

to the table that we have reproduced in the text of the opinion, in the 1990 primary, Jennings

received 75.52 percent (108 / (108 + 35)) of the votes in precinct 1 – a figure that the district

court erroneously attributed to “district 1.” Likewise, (1) in the 1990 general election, Jennings

received 76.81 percent (106 / (106 + 32)) of the votes in precinct 1, not “district 1”; (2) in the

1992 first primary election, Jennings received 55.84 percent (110 / (110 + 11 + 30 + 46)) of the

votes in precinct 1, not “district 1”; (3) in the 1992 run-off primary election, Jennings received

72.04 percent (134 / (134 + 52)) of the votes in precinct 1, not “district 1”; (4) in the 1996 first

primary election, Jennings received 24.06 percent (51 / (51 + 23 + 112 + 26)) of the votes in

precinct 1, not “residential district 1”; and (5) in the 1996 run-off primary election, Jennings

received 73.02 percent (138 / (138 + 51)) of the votes in precinct 1, not “district 1.” Solomon

III, 957 F. Supp. at 1562-63 n.97.

19

precinct 1 is 58.05 percent black, and voting precinct 2 is 56.92 percent black).

Our finding clear error in the district court’s reliance on Jennings’s electoral

success, although “inherently fact-intensive,” comports with precedent. Nipper, 39 F.3d

at 1498 (plurality opinion of Tjoflat, C.J.). In NAACP v. Campbell, this court held that

the district court attached “inordinate significance” to a single black candidate’s

successful, at-large election to the school board that occurred after plaintiffs filed the

lawsuit. 691 F.2d at 983 (“The election of a single black . . . is not conclusive evidence

that the votes of the minority are not being diluted.”). Similarly, in United States v.

Marengo County Comm’n, this court discounted the probative value of a black

candidate’s election and reelection to county coroner in an at-large system. See 731 F.2d

at 1572 (“The district court’s conclusion that this nearly complete lack of success did not

indicate a lack of effective access to the system . . . is clearly erroneous.”). And, the court

in McMillan v. Escambia County, Fla. did not even consider – and thus relegated to a

footnote – the at-large election of one black county commissioner during the pendency of

litigation. See 748 F.2d 1037, 1045 n.20 (11th Cir. 1984). See also generally White v.

Regester, 412 U.S. 755, 766-67 (1973) (finding significance in the fact that the “white-

dominated organization that is in effective control of Democratic Party candidate slating”

had endorsed only two black candidates) (cited in Margeno, 731 F.2d at 1569); City of

Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547, 1560 (11th Cir. 1987)

(finding “no sustained minority electoral success” within the county government despite

one minority candidate’s election to a municipal position after the filing of the lawsuit),

20

cert. denied, 485 U.S. 936 (1988). Unlike the district court, these appellate panels did not

require plaintiffs to advance proof of voter manipulation. See Campbell, 691 F.2d at 983;

Marengo, 731 F.2d at 1572; McMillan, 748 F.2d at 1045 & n.20; accord Davis, 139 F.3d

at 1417 n.2.7 Although we find that the district court did not clearly err in finding that

blacks had achieved proportional representation (only as to the county commission)

pursuant to DeGrandy, we accord this factor less weight because of the timing of

Jennings’s election. See De Grandy, 512 U.S. at 1020 (“[T]he degree of probative value

assigned to proportionality may vary with the facts.”)

B.

We turn next to appellants’ contention that the district court erred in finding that

black candidates’ “lack of knowledge of the dynamics of running effective campaigns[,]”

as opposed to “the present socio-economic effects of past discrimination[,]”

“significant[ly] imped[e] . . . black political participation in Liberty County.” Solomon

III, 957 F. Supp. at 1564-65 (Senate Factor 5). Appellants argue that the court assumed

7

At first blush, this case may appear to contradict Askew v. City of Rome, where this

court adopted the district court’s judgment that no vote dilution resulted from Rome’s at-large

method of electing its commissioners and board of education members, in part because plaintiffs

“produced no evidence” that the white electorate engaged in “some sort of active conspiracy . . .

to allow the black community a token representative, but no more.” 127 F.3d 1355, 1385 (11th

Cir. 1997) (per curiam). A close read of Askew, however, reveals that it is materially

distinguishable from this case. First, unlike the voters in Liberty County, the voters in Rome

elected the black candidate prior to litigation. Next, in contrast to appellants, the Askew

plaintiffs failed to establish one of the Gingles factors, racial polarization. Finally, the plaintiffs

in Askew bore the burden of discounting minority success because they were attempting to prove

an “essential element” of their section 2 claim, whereas appellees in this case bore the burden of

proving those Senate factors (e.g., Senate Factor 7, minority electoral success) that they believed

weighed in their favor. 127 F.3d at 1385.

21

without foundation that black candidates and would-be candidates are more “apathetic”

than their white counterparts. In response, appellees contend that the record supports the

district court’s finding.

We do not find that the district court clearly erred in rendering its finding on

Senate Factor 5. In this circuit, it is well-established that “when there is clear evidence of

present socioeconomic or political disadvantage resulting from past discrimination, . . .

the burden is not on the plaintiffs to prove that this disadvantage is causing reduced

political participation, but rather is on those who deny the causal nexus to show that the

cause is something else.” Marengo, 731 F.2d at 1569 (collecting cases). Thus, Senate

Factor 5 should have weighed in appellants’ favor unless appellees offered a

preponderance of evidence that something other than the lingering effects of past

discrimination caused the low number of black candidates.

Appellees point to four portions of the record that they contend support the district

court’s finding: (1) testimony that “blacks have frequently not known nor asked about

alternatives to paying qualifying fees”; (2) Solomon’s testimony that he “did not know a

voter registration list was available to assist in targeting people who are more likely to

vote”; (3) Solomon’s testimony that “getting to know the public is also a big part of” a

successful campaign; and (4) testimony from Dr. Billings, appellee’s expert witness, that

“Jennings’s electoral success in 1990 resulted in large part from becoming more

knowledgeable about the political process in Liberty County, and running a very personal

kind of campaign.” Solomon III, 957 F. Supp. at 1564-65 n.101 (internal quotation marks

22

and record citations omitted). In addition, the district court provided additional examples

supporting its finding that socio-economic disparities did not hinder black political

participation in Liberty County. We believe that appellee’s contentions, along with other

subsidiary findings that the district court made, support the conclusion that the district

court’s finding that “the greatest obstacle to effective black participation in the political

process has been a lack of knowledge of the dynamics of running effective campaigns”

was not clearly erroneous. Solomon III, 957 F. Supp. at 1564.

C.

Finally, we discuss appellants’ assertion that the district court clearly erred in its

overall finding of no vote dilution. Our review of this issue, of course, must take into

account the error that we have already found. In section V, part A, we found clear error

in the district court’s reliance on Jennings’s post-en banc electoral success. This error

tainted the court’s weighing Senate Factors 4 and 7 (but not proportionality as to the

county commission) in favor of appellees.8

That leaves us with the three Gingles factors, Senate Factors 2 and 3, and lack of

proportionality (only as to the school board) weighing in favor of appellants,

proportionality (only as to the county commission, and accorded less weight because of

8

Because the district court’s finding of proportionality regarding Jennings’s election to

the county commission is accorded less weight, and because the lack of proportionality on the

school board is not dispositive to our reversal, we assume without deciding that De Grandy’s

proportionality factor properly applies where, as here, an at-large election system – as opposed to

a single-member voting district – is challenged. See De Grandy, 512 U.S. at 1014 n.11 (defining

“proportionality” as the relationship between “the number of majority-minority [single-member]

voting districts [and] minority members’ share of the relevant population[]”).

23

the timing of Jennings’s election) and Senate Factor 5 weighing in favor of appellees, and

Senate Factors 1, 6, 8 and 9 and the absence of racial bias also weighing in favor of

appellees. A review of this record leaves us with “a definite and firm conviction that a

mistake has been committed.” Anderson, 470 U.S. at 573. First and foremost,

appellants’ unquestionable establishment of the three Gingles factors, that is,

compactness/numerousness, minority cohesion and majority bloc voting, cuts very

strongly in their favor. As the Third, Fifth and Tenth Circuits have observed, “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.” Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135

(3d Cir.), cert. denied, 512 U.S. 1252 (1994); see also Clark v. Calhoun County, Miss.,

21 F.3d 92, 97 (5th Cir. 1994); Sanchez, 97 F.3d 1303, 1322 (10th Cir. 1996) (“[I]t is the

rare case for minority plaintiffs to satisfy the Gingles’ preconditions and fail to overcome

defendants’ evidence that other factors rebut that initial proof[.]”). Although this case

may be “hard[,]” we do not find it particularly “unusual” or “rare.” Solomon III, 957 F.

Supp. at 1525; Jenkins, 4 F.3d at 1135; Sanchez, 97 F.3d at 1322. All ten judges of the

en banc court agreed that appellants proved the Gingles factors “as a matter of law,” and

at least five of those judges found that appellants “adduced strong evidence establishing

the other supportive [that is, Senate] factors.” Solomon II, 899 F.2d at 1013 (per curiam),

& 1016-17 n.3 (Kravitch, J., specially concurring) (emphasis added). Although eight

24

years have elapsed between the en banc session and this appeal, the only new analytical

evidence that appellees presented – Jennings’s electoral success and the results of a 1990

referendum where approximately 59.1 percent of Liberty County’s black voters

supported the retention of at-large elections for the county commission, and

approximately 60 percent supported at-large elections for the school board – have not

changed the record in their favor. See Solomon I, 865 F.2d at 1584 (“[C]lass opposition

to the remedy that may result from the successful litigation of a section 2 claim is

irrelevant in weighing the totality of circumstances.”); Solomon III, 957 F. Supp. at 1555

n.75 (even if the district court considered appellees’ new evidence concerning the

threshold factors, it “would still hold that the three Gingles factors have been established

as a matter of law”); 1987 Memorandum Opinion at 24 (“[T]he propriety of Liberty

County’s election system does not depend on whether, why, or what proportion of blacks

favor a change[.]”).

Greatly underscoring the strength of appellants’ evidence is Liberty County’s high

degree of racially polarized voting (Senate Factor 2), a factor that courts consider the

keystone of a section 2 claim. Gingles, 478 U.S. at 55; McMillan, 748 F.2d at 1043;

Marengo, 731 F.2d at 1566; cf. Nipper, 39 F.3d at 1511-12 (“racially polarized voting[]

is the linchpin of a § 2 vote dilution claim”) (internal quotation marks and citation

omitted) (plurality opinion of Tjoflat, C.J.). Indeed, it serves as one of the two “most

important Senate Report factors[.]” Sessions, 56 F.3d at 1301 (quoting Gingles, 478 U.S.

25

at 48 n.15, and Senate Report at 28-29) (Hatchett, J., dissenting). Moreover, as the

district court found, “the continued use of the majority vote requirement can work to the

detriment of black candidates[,]” as can “the size of Liberty County[.]” 957 F. Supp. at

1560-61 (Senate Factor 3); see generally Nipper, 39 F.3d at 1510 (“Of particular concern

are electoral structures, such as at-large elections in areas with white majorities, that

produce racial vote dilution because ‘[t]he right to vote can be affected by a dilution of

voting power as well as by an absolute prohibition on casting a ballot.’”) (quoting Allen

v. State Bd. of Elections, 393 U.S. 544, 569 (1969)) (plurality opinion of Tjoflat, C.J.).

In its original memorandum opinion, the district court pointedly explained the

significance of Liberty County’s size: “Liberty County does present a vast area to cover

in an at-large campaign, and this factor could work to the detriment of black candidates

because of their lower average income.” 1987 Memorandum Opinion at 13; cf.

McMillan, 748 F.2d at 1044 & n.17 (county’s size of 657 square miles “enhance[d] the

problems faced by blacks seeking access to the political process”); Marengo, 731 F.2d at

1570 (county’s “small population” and “large, rural area” rendered it expensive to

campaign “county-wide . . . for an at-large position”). The disturbing fact that Liberty

County’s blacks earn, on average, less than a third of the amount that whites earn

intensifies this effect. See Solomon III, 957 F. Supp. at 1563 (“While the average per

capita income for whites in the county is $ 13,127, the average per capita income for

blacks is only $ 3,935.”); cf. Marengo, 731 F.2d at 1570 (“Since blacks earn, on average,

26

less than half of the amount that whites earn, the district court correctly found that the

size of the county contributes to dilution.”) (emphasis added).9 Finally, to date, “[b]lacks

have not achieved proportional representation on the Liberty County School Board.”

Solomon III, 957 F. Supp at 1570 (De Grandy factor).

In contrast to the evidence favoring appellants, the evidence relative to the

remaining Senate and other factors that purportedly cut in appellees’ favor – Senate

Factors 1, 6, and 8 and the absence of racial bias – was anything but strong, and the

district court’s findings regarding Senate Factor 9 were clearly erroneous. Regarding

Senate Factor 1, that appellants presented “no evidence” that Liberty County’s

undisputed and extensive history of official discrimination hinders blacks’ ability to

participate in the democratic process is, at most, a wash. Solomon III, 957 F. Supp. at

1559. As we explained in section V, part A of this opinion, appellees, not appellants,

bore the burden of proving any Senate factor that they believed weighed in their favor.

Thus, appellants’ failure to produce sufficient evidence on this factor should not hurt their

claim. Equally as weak is the lack of “recent overt or subtle racial appeals in campaigns

in Liberty County.” Solomon III, 957 F. Supp. at 1566 (Senate Factor 6); see Marengo,

731 F.2d at 1571 (lack of evidence of racial appeals “should not weigh heavily against a

plaintiff proceeding under the results test of section 2” because “overtly bigoted behavior

has become more unfashionable”) (internal quotation marks and citation omitted).

9

See also 1987 Memorandum Opinion at 15 (“[B]lacks in Liberty County currently bear

the effects of past discrimination in areas such as education, employment, and health.”).

27

Nor is the district court’s finding of responsiveness (Senate Factor 8) significant.

As the court itself acknowledged, this factor is “less important than other factors” in the

totality of circumstances. Solomon III, 957 F. Supp. at 1566 (citing Senate Report at 29;

and Marengo, 731 F.2d at 1572); see also Gadsden, 691 F.2d at 983 (“Responsiveness . .

. . has nothing to do with impact.”). Strangely, the court’s finding contradicts its original

view of the evidence. Soon after the first trial, the court found that appellants had

“proved a significant lack of responsiveness to the interests of blacks by Liberty County’s

elected officials.” 1987 Memorandum Opinion at 19 (emphasis added). Yet, after

remand, without any new relevant evidence, the court found just the opposite, that is, that

both the county commission and the school board respond to the needs of the black

community. See Solomon III, 957 F. Supp. at 1567. These findings are irreconcilable.

At best, then, responsiveness is a close call.

With regard to Senate Factor 9, however, we find substantial evidence of clear

error in the district court’s finding that the policy underlying at-large election of school

board members, adopted in 1953, was not tenuous but instead was the result of a

“citizen’s reform movement in the county to abolish the existing ward-type political

system.” Solomon III, 957 F. Supp. at 1568. The district court acknowledged that

“[t]here is little question that the Florida legislature’s 1947 legislation allowing counties

to adopt at-large districts for the election of school boards . . . was designed to dilute the

voting power of the black community.” Solomon III, 957 F. Supp. at 1567. The district

28

court characterized this statute as “allowing” the adoption of at-large elections for school

boards; however, the Florida Legislature chose mandatory language in constructing this

statute and this court has characterized the statute as a “requirement.” See, e.g., Solomon

I, 865 F.2d at 1578 (Tjoflat, C.J., concurring); McMillan, 638 F.2d at 1245-49.

The district court also relied upon the testimony of Dr. Billings to support its

conclusion on Senate Factor 9. On cross-examination, however, Dr. Billings stated

specifically that he was testifying about the use of at-large elections in Liberty County

only with respect to the county commission – not the school board. The district court

further relied upon the results of a 1990 county referendum in which voters chose not to

abolish at-large elections for the school board, with a resulting vote of 72.57% to

27.43%. Statistical analysis of this result showed that black as well as white voters

preferred to retain the at-large system, a fact that the district court ruled “undercut any

suggestion that the continued policy of maintaining at-large elections . . . is somehow

discriminatory or otherwise tenuous.” Solomon III, 957 F. Supp. at 1568. Whether the

protected class supports the challenged system, however, is irrelevant in determining

whether the system is based upon a discriminatory policy. See Solomon I, 865 F.2d at

1584 (“[C]lass opposition to the remedy that may result from the successful litigation of a

section 2 claim is irrelevant in weighing the totality of circumstances.”). Thus, we

conclude that the district court clearly erred in finding that Senate Factor 9 did not

support appellants’ position in this case.

29

With regard to racial animus, even if we assume, without deciding, that the district

court’s findings are sound, they certainly do not tip the scales in appellees’ favor. In fact,

the district court essentially neutralized that finding: “the lack of racial animus [in the

voting community] does not cancel out the proof provided under the other factors.”

Solomon III, 957 F. Supp. at 1570. Moreover, under the approach that only two judges

of this court who advocate the relevance of this factor advance, appellees bore the burden

of proof. See Nipper, 39 F.3d at 1515 (“[I]f the evidence [that defendant sponsors]

shows, under a totality of the circumstances, that the community is not motivated by

racial bias in its voting patterns, then a case of vote dilution has not been made.”)

(plurality opinion of Tjoflat, C.J., and Anderson, J.). But see Nipper, 39 F.3d at 1547-60

(neither the presence nor absence of racial bias in the voting community is relevant to

section 2's results test) (Hatchett, J., dissenting). It is safe to say that appellees barely

exceeded, if not failed to meet altogether, that burden through cross-examination of

Solomon, appellants’ witness. See Solomon III, 957 F. Supp. at 1569 (citing Solomon’s

testimony at 59, 61, 66 and 82-84).

In short, the neutral findings and evidence favoring appellees did not begin to

outweigh appellants’ strong proof of the three Gingles factors and other vote dilution

factors. The district court clearly erred in finding to the contrary. We are mindful that no

mechanistic formula exists under section 2 of the Voting Rights Act. See De Grandy,

512 U.S. at 1011 (courts should decide section 2 claims based on a “comprehensive, not

30

limited, canvassing of relevant facts”); Marengo, 731 F.2d at 1574 (“No formula for

aggregating the factors applies in every case.”). Our careful, searching and practical

review of the record, however, compels us to hold that both the Liberty County

Commission and the Liberty County School Board violated section 2 through their at-

large election system. See Gingles, 478 U.S. at 79-80 (courts should “carefully” consider

the totality of circumstances “based upon a searching practical evaluation of the past and

present reality”) (internal quotation marks and citation omitted).

VI. CONCLUSION

For the foregoing reasons, we reverse the judgment of the district court and

remand the case for the implementation of a remedy and other proceedings consistent

with this opinion.

REVERSED and REMANDED.

31