holding that where black voters comprise a slim majority, the plaintiffs have met the first Gingles test
How later courts described this case
- holding that where black voters comprise a slim majority, the plaintiffs have met the first Gingles test
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10669 JULY 24, 2007
_____________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00212-CV-FTM-29-DNF
BILLIE THOMPSON,
PATRICIA BROWN,
Plaintiffs-Appellants,
versus
GLADES COUNTY BOARD OF COUNTY
COMMISSIONERS,
GLADES COUNTY SCHOOL BOARD, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 24, 2007)
Before TJOFLAT, BARKETT and GOODWIN,* Circuit Judges.
*
Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
BARKETT, Circuit Judge:
This is a vote dilution case. African American voters in Glades County,
Florida, challenge the at-large method of electing members of the County
Commission and School Board, claiming that it depreciates their right to vote on
account of their race in violation of § 2 of the Voting Rights Act of 1965, 42
U.S.C. § 1973, and the Fourteenth and Fifteenth Amendments. Following a bench
trial, the United States District Court for the Middle District of Florida denied
relief. The Plaintiffs now appeal the court’s judgment. We reverse and remand.
I.
A.
Glades County spans approximately 988.2 square miles of southwest
Florida. According to the 2000 decennial census, the county had an overall
population of 10,576, and a voting age population of 8,329. Of the overall
population, 69.4% were white, 15.0% were Hispanic, and 10.5% were African
American. Of the voting age population, 73.2% were white, 12.7% were Hispanic,
and 10.1% were African American.1 Population numbers alone, however, do not
1
The Hispanic population in Glades County appears to be on the rise, significantly
outpacing the modest growth of the African American population. In ten years (1990–2000), the
African American voting age population rose from 9.6% to 10.1%, while the Hispanic voting age
population eclipsed the African American voting age population, increasing from 6.7% to 12.7%.
2
portray the unique geographic character of the minority population in Glades
County. Most of the Hispanic population is dispersed across the southern portion
of the county, but the African American population is concentrated in an area
known as Washington Park, which sits in Moore Haven, the county’s seat and
largest city.
The County Commission and the County School Board both consist of five
elected members who serve staggered, four-year terms. Likewise, the same
election scheme governs both the County Commission and the School Board: the
county is divided into five residential districts, and candidates run from the district
in which they live, but at-large voting determines the outcome of each election.2
Candidates that receive a majority of the countywide vote in a primary election are
selected as their political party’s nominee,3 and a plurality of the countywide vote
is sufficient to win the general election.
During the 1998 Democratic Primary for School Board District Four, Mike
Pressley won the two-candidate contest with 58.2% of the vote, defeating plaintiff
2
The at-large voting scheme provides that all voters in the county may cast ballots for any
of the seats on the County Commission or School Board (and for at most one candidate per
district).
3
The County Commission elections are partisan and School Board elections became non-
partisan due to a Florida statutory change effective January 1, 2000.
3
Billie Thompson, who garnered 41.8% of the vote.4 Prior to 1998, however, the
only other African American candidate for countywide office on either the County
Commission or School Board was Charles Hall, who won a seat (by a nine-vote
margin during a run-off primary election) on the County Commission in 1976.
B.
This law suit commenced on May 4, 2000. The Plaintiffs, Billie Thompson
and Patricia Brown, African Americans, reside in Glades County and are
registered to vote there. The defendants consist of the Board of County
Commissioners and its five members, the County School Board and its five
members, and the Supervisor of Elections. The complaint contained three “causes
of action.”5 The first is that the at-large schemes for the election of members of
the County Commission and School Board were adopted by the State of Florida
and have been maintained for the purpose of diluting, minimizing, and canceling
out the voting strength of African Americans in violation of § 2 of the Voting
Rights Act.6 The second and third causes of action allege, respectively, that the
4
In the same year, African American candidate Beamon Rich won election to the City
Council for the City of Moore Haven. Rich placed third in a seven-candidate race with 16.2% of
the vote; the three candidates who receive the most votes are elected to the City Council.
5
These claims for relief are asserted together rather than in separate counts.
6
The complaint alleges that the at-large election schemes for the County Commission
and School Board, “including the use of majority vote, residency districts, and staggered terms,
with no provision for limited or cumulative voting or other non-majoritarian election procedures,
4
same at-large electoral schemes deny the Plaintiffs the equal protection of the laws
guaranteed by the Fourteenth Amendment,7 and their rights under the Fifteenth
Amendment.8 For relief, the complaint sought a declaratory judgment that the
challenged schemes were invalid under § 2 and the Fourteenth and Fifteenth
Amendments, injunction against their further use, and the creation of “new
procedures or plans for election” of the members of the County Commission and
School Board.
The defendants, in their answers, denied that the challenged electoral
schemes diluted the Plaintiffs’ right to vote, and asserted, moreover, that a remedy
could not lawfully be created to enhance the Plaintiffs’ voting power. As the case
proceeded toward trial, the Plaintiffs proposed what they contended would be a
remedy that met the requirements of law, specifically the Supreme Court’s
decision in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25
(1986): the County Commissioners and School Board members would reside in
results in the denial or abridgement of the [plaintiffs’ right] to vote on account of race or color.”
7
The Equal Protection Clause of the Fourteenth Amendment states that no State shall
“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 2.
8
The Fifteenth Amendment states: “The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of race, color, or
previous condition of servitude.” U.S. Const. amend. XV, § 1.
5
and be elected from five single-member districts, one of which would contain an
African American majority among the voting age population.
The filing of this law suit invited a non-binding special referendum that was
held on June 5, 2001. Two questions were presented: (1) “Shall the five members
of the Board of Commissioners of Glades County, Florida, be elected to office
from single-member districts by the electors residing in each of those districts
only?”; and (2) “Shall the five members of the School Board of Glades County,
Florida, be elected to office from single-member districts by electors residing in
each of those districts only?” A majority of those voting opposed single-member
districts. The final tally for the County Commission indicated 825 votes (53.4%)
opposed to single-member districts, and 719 votes (46.6%) in favor of changing
the election scheme. Of these votes, in precincts with an African American voting
age population of 90% or greater, 52% voted in favor of single-member districts;
in precincts with a white voting age population of 90% or greater, 48% voted in
favor of single-member districts. With regard to the School Board, the final tally
indicated 848 votes (54.9%) opposed to single-member districts, and 698 votes
(45.1%) in favor of changing the election scheme. Similarly, in precincts with an
African American voting age population of 90% or greater, 52% voted in favor of
6
single-member districts; in precincts with a white voting age population of 90% or
greater, 47% voted in favor of single-member districts.
The case went to trial before the district court on October 10, 2001. The
court heard the testimony of four witnesses (the Plaintiffs and two of their
experts), received the Plaintiffs’ exhibits, which included the reports of a third
expert, and the parties’ stipulations, and then recessed the proceeding to await the
filing of depositions. Over the next several days, the Plaintiffs filed the
depositions of eight members of the County Commission and School Board and
the Supervisor of Elections. On November 14, the court reconvened the
proceeding to hear the parties’ closing arguments, which focused on the Plaintiffs’
proposed illustrative redistricting plan and the defendants’ reasons why the plan
could not be lawfully implemented.
The Plaintiffs relied on three expert witnesses: (1) William S. Cooper, who
prepared the Plaintiffs’ illustrative plan9 for five single-member districts;10 (2) Dr.
9
The record suggests that the Plaintiffs proposed only one illustrative plan at trial.
10
Cooper did not testify; instead, he proposed a report which was introduced into
evidence without objection. The report contained the Plaintiffs’ illustrative plan based on 2000
census figures from the Census of Population and Housing PL 94-171. The parties stipulated
that the districts drawn in the plan are compact, contiguous, and otherwise follow the requisite
redistricting criteria.
7
Steven P. Cole, who analyzed statistics relating to Glades County voter behavior;11
and (3) Dr. Gary R. Mormino, who provided socio-political background to
Florida’s adoption of statutes and constitutional provisions affecting the method of
election to the County Commission and School Board.
The illustrative plan proposed by the Plaintiffs contains five new single-
member districts. Among the new districts, District One contains a slim African
American voting age majority. Specifically, 50.23% of the voting age population
in District One is African American12 and 15.23% is Hispanic. The total minority
voting age population in District One (inclusive of other minorities such as
American Indians) is approximately 67%. With a total population of 10,576 in
Glades County, each of the five new districts would ideally have a population
approximating 2,115 in order to comport with the one-person, one-vote principle
under the Fourteenth Amendment. Among the five districts, the plan has an
overall deviation of 8.6%, with District One underpopulated by 86 individuals.
11
Cole analyzed seven election contests involving African American and white
candidates that took place from 1976 through 1998: the 1976 Democratic Primary for County
Commission, the 1984 Presidential Preference Primary, the 1988 Presidential Preference
Primary, the 1990 Democratic Primary for Secretary of State, the 1994 Democratic Primary for
State Commissioner of Education, the 1994 General Election for State Commissioner of
Education, and the 1998 Democratic Primary for School Board District Four.
12
Cooper’s statistics defined African Americans as “non-Hispanic blacks.”
8
The following table summarizes the salient features of the Plaintiffs’ illustrative
plan:
District Total Population Deviation Percent Voting Percent Voting
(persons) Age Hispanics Age African
Americans
1 2,029 -86 15.23% 50.23%
2 2,183 +68 13.30% 1.95%
3 2,211 +96 1.81% 0.44%
4 2,080 -35 1.99% 0.23%
5 2,073 -42 35.19% 0.95%
The distinctive feature of this illustrative plan is that nearly the entire 834-
person population of voting age African Americans in Glades County is contained
within District One, which is, itself, dwarfed in size by the other districts (due to
the large concentration of African Americans in Moore Haven). In sum, 775 of
the 834 voting age African Americans (92.9%) would be residents of the proposed
District One.
C.
The district court issued its decision in this case on August 27, 2004, in the
form of a 49-page Opinion and Order. The court concluded that the Plaintiffs
9
failed to make out a case of vote dilution under § 2 of the Voting Rights Act or
violations of the Fourteenth and Fifteenth Amendments.13 With respect to their
§ 2 claim, the court found (1) that District One constituted an “influence district”
impermissible as a remedy under § 2 of the Act, and (2) that the illustrative plan
did not constitute a permissible § 2 remedy because its 8.6% overall deviation did
not comport with the one-person, one-vote requirement of the Fourteenth
Amendment.
The Clerk of the District Court entered judgment pursuant to the court’s
Opinion and Order on August 30, 2004. The Plaintiffs thereafter moved the court
to alter or amend its judgment pursuant to Federal Rule of Civil Procedure 59(e),
questioning the court’s findings regarding their § 2 remedy. They emphasized a
point the court had not addressed: the possibility that cross-over votes by whites
and Hispanics could enable African Americans to elect their candidates of choice.
In their motion, the Plaintiffs cited a regression analysis that accounted for the
13
The district court found no evidence of either a discriminatory purpose or
discriminatory results in the enactment or operation of election procedures in Glades County, and
therefore, denied the Plaintiffs’ claim under the Fourteenth Amendment. Furthermore, the
district court noted that in the Eleventh Circuit, vote dilution is not a cognizable claim under the
Fifteenth Amendment. See Osburn v. Cox, 369 F.3d 1283, 1288 (11th Cir. 2004) (“The Supreme
Court has recognized that the Fifteenth Amendment protects the right to register and to vote, but
it has never held or even suggested that vote dilution violates the Fifteenth Amendment.”)
(quoting Reno v. Bossier Parrish Sch. Bd., 528 U.S. 320, 334 n.3, 120 S. Ct. 866, 875 n.3, 145 L.
Ed. 2d 845 (2000)).
10
Hispanic vote,14 in which Dr. Cole concluded that African American and Hispanic
voters are politically cohesive. According to that analysis, an estimated 74% of
African American and Hispanic voters combined voted for the African American
candidate in the 1998 Democratic Primary for School Board District Four, in
contrast with the 15% of non-Hispanic, non-African American voters who voted
for the African American candidate.
The district court denied the Plaintiffs’ Rule 59(e) motion, concluding that
the Plaintiffs failed to establish any clear error in the court’s decision, or that
manifest injustice would result. This appeal followed.
II.
In this appeal, the Plaintiffs do not challenge the district court’s disposition
of their constitutional claims. Instead, they limit their appeal to the court’s denial
of their claim under § 2 of the Voting Rights Act. In relevant part, the Act
declares:
(a) 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
14
The regression analysis that accounted for Hispanic voters concerned only the 1998
Democratic Primary for School Board District Four, the election in which plaintiff Billie
Thompson participated.
11
abridgement of the right of any citizen of the United States to vote on
account of race or color, or in contravention of the guarantees set
forth in section 1973b(f)(2) of this title, as provided in subsection (b)
of this section.
(b) A violation of subsection (a) of this section is established if, based
on the totality of circumstances, it is shown that the political
processes leading to . . . election in the State . . . are not equally open
to participation by members of a class of citizens protected by
subsection (a) of this section 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. The
extent to which members of a protected class have been elected to
office in the State or political subdivision is one circumstance which
may be considered: Provided, That nothing in this section establishes
a right to have members of a protected class elected in numbers equal
to their proportion in the population.
42 U.S.C. § 1973.
12
Under § 2, vote dilution occurs where “an election practice results in the
dilution of minority voting strength and, thus, impairs a minority’s ability to elect
the representative of its choice.” Burton v. City of Belle Glade, 178 F.3d 1175,
1198 (11th Cir. 1999). In Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92
L. Ed. 2d 25 (1986), the Supreme Court articulated three threshold requirements
for Plaintiffs seeking relief for vote dilution under § 2 of the Act: (1) the minority
group must be “sufficiently large and geographically compact to constitute a
majority in a single-member district”; (2) the group must be politically cohesive;
and (3) the white majority must vote sufficiently as a bloc “usually to defeat the
minority’s preferred candidate.” Id. at 50–51, 106 S. Ct. at 2766–67. The first of
these requirements relates to whether a viable remedy exists; the second and third
requirements relate to whether issues of race or color are driving election results.
Nipper v. Smith, 39 F.3d 1494, 1510–11 (11th Cir. 1994).
Although necessary, satisfying the three Gingles requirements is not, by
itself, sufficient to establish vote dilution; § 2 further requires that the “totality of
the circumstances” substantiates that a minority group possessed less relative
opportunity to elect candidates of its choice. League of United Latin American
Citizens v. Perry,126 S.Ct. 2594, 2614, 165 L. Ed. 2d 609 (June 28, 2006).
13
However, “it would 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.” NAACP v. City of Niagara,
65 F.3d 1002, 1019 n.21 (2d Cir. 1995).
Under a totality of the circumstances analysis, we now consistently turn to
the Senate Report on the 1982 amendments to the Act, which names several
factors that might be relevant to a vote dilution claim. These factors include:
the history of voting-related discrimination in the State or political
subdivision; the extent to which voting in the elections of the State 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
14
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 (citing S. Rep. No. 97-417 (1982)). These Senate
factors are “neither comprehensive nor exclusive,” id. at 45, but each of these
factors points to election methods that may converge with social and historical
factors to dilute the minority vote, Nipper, 39 F.3d at 1512.
In its dispositive order of August 27, 2004, the district court found that the
Plaintiffs failed to satisfy the first Gingles requirement for a viable § 2 remedy, but
satisfied the second and third Gingles requirements. Despite its belief that the
Plaintiffs’ failed to surmount the threshold hurdle established by Gingles, “[f]or
the sake of completeness,” the court proceeded to undertake a totality of the
circumstances analysis. In so doing, the court determined that the Plaintiffs failed
to meet their burden of showing that at-large elections deprived African
Americans of an equal opportunity to elect candidates of their choice.
We review a district court’s findings of § 2 vote dilution for clear error.
15
Fed. R. Civ. P. 52(a);15 Gingles, 478 U.S. at 79, 106 S. Ct. at 2781; Johnson v.
Hamrick, 296 F.3d 1065, 1074 (11th Cir. 2002); Negron v. City of Miami Beach,
113 F.3d 1563, 1566 (11th Cir. 1997). The “clearly erroneous” standard of review
appropriately affords substantial deference to the district court. “Deference is
afforded the district court’s findings due to the court’s special vantage point and
ability to conduct an intensely local appraisal of the design and impact of a voting
system.” Hamrick, 296 F.3d at 1074 (quoting Negron, 113 F.3d at 1565). Despite
the interpretative latitude granted the district court, however, review for clear error
“does not inhibit an appellate court’s power to correct errors of law, including
those that may infect a so-called mixed finding of law and fact, or a finding of fact
that is predicated on a misunderstanding of the governing rule of law.” Gingles,
478 U.S. at 79, 106 S. Ct. at 2781 (quoting Bose Corp. v. Consumers Union, 466
U.S. 485, 501, 104 S. Ct. 1949, 1960, 8 L. Ed. 2d 502 (1984)).
In vote dilution cases, we require a district court to explain with
particularity both the reasons for its ultimate decision as well as its subsidiary
findings of fact. Solomon v. Liberty County Commissioners, 221 F.3d 1218,
1227–28 (11th Cir. 2000).
15
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed. R.
Civ. P. 52(a).
16
III.
Having set out the legal framework for this litigation, we turn to the
questions presented in this appeal. We consider first whether the district court
erred in finding the Plaintiffs’ proposed plan an insufficient § 2 remedy under the
first Gingles requirement for a minority group to be “sufficiently large and
geographically compact to constitute a majority in a single-member district,”16 and
then ask whether the court erred in concluding that the totality of the
circumstances did not support a vote dilution claim.17
A.
In ruling against the Plaintiffs, the district court declared that “[n]othing in
the record suggests voter registrations, voting rates, or voter practices which
would give real-world meaning to the statistically sufficient district. The court
finds the proposed District 1 is in reality only an influence district.” We conclude
that the district court erred in finding no § 2 vote dilution remedy under the first
16
We need not address the district court’s discussion of the second and third Gingles
requirements, because the court found that the Plaintiffs satisfied both, and the Plaintiffs raise no
question on appeal regarding either requirement.
17
Plaintiffs also contend that the district court clearly erred in finding that the 8.6%
standard deviation within the illustrative plan constituted more than de minimis deviation under
the one-person, one-vote principle of the Fourteenth Amendment, and therefore, the plan failed
to satisfy the first Gingles requirement for a viable § 2 remedy. The standard deviation finding is
not dispositive for the district court’s conclusion that the Plaintiffs failed to establish an
appropriate remedy, however, and we therefore decline to address the issue here.
17
Gingles requirement where the Plaintiffs’ remedial district carried a 50.23%
voting age African American majority.
Notwithstanding that blacks constitute at least a 50.23% majority in the
proposed District 1, the district court found that the Plaintiffs did not meet the first
condition of Gingles, that the minority group be “sufficiently large and
geographically compact to constitute a majority in a single-member district.”
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). The district court did not cite
any support for the conclusion that a numerically majority-minority district is a
mere “influence district.” Indeed, the concept of an “influence district” is directly
at odds with a district in which the minority group constitutes a majority. A
majority is a majority, by however small a margin, and every other court
addressing the question has held a 50% numerical majority sufficient. See, e.g.,
Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852-53 (5th Cir.
1999) (utilizing a 50% bright line rule); Cousin v. Sundquist, 145 F.3d 818,
828-29 (6th Cir. 1998) (same); Parker v. Ohio, 263 F. Supp. 2d 1100, 1104-05
(S.D. Ohio) (three-judge court) (same), aff’d mem., 540 U.S. 1013 (2003).
The district court dismissed the clear numerical majority by claiming that in
order to be a viable majority with the ability to elect, it must be assumed that
“every voting-age African American would have to be registered to vote, actually
18
vote, and vote for the same person.” In actuality, however, the court’s conclusion
is premised on several untenable assumptions; namely, that: (1) while not every
black person would be registered and would vote, every white person would, in
fact, be registered and would vote, and (2) all white voters would, in fact, vote for
the same person and none would vote for the black minority’s candidate of choice.
These assumptions are not supported by any evidence in the record.18
The proposed District 1 is composed of approximately 50.23%
non-Hispanic black voters, 15.23% Hispanic voters, and approximately 33% white
voters. For the district court to conclude that white voters would consistently
defeat the black majority’s candidate, the district court would have to assume that
a population of approximately 33% white voters would turn out in sufficient force
to defeat the candidate preferred by the 50.23% of the voting population which is
black. No record evidence was introduced regarding the rates of turnout of black
and white voters in Glades County. Nevertheless, without any support, the district
18
The district court also erred in its determination that District 1 would contain only a
50.23% majority because it counted as “black” only non-Hispanic blacks, omitting persons who
self-identified on the 2000 Census as both black and Hispanic. In reality, then, there may be
significantly more than a 50.23% black majority in District 1. In Georgia v. Ashcroft, 539 U.S.
461 (2003), the Supreme Court explained that in cases where the dilution of black votes is at
issue, anyone who checked off black, even if they checked off some other category also, should
be counted as black. Id. at 473 n.1. The district court’s legal conclusion that District 1 was
majority-minority by too small a margin rested on clearly erroneous factual assumptions about
who constituted the relevant minority.
19
court’s analysis assumes that a greater percentage of black voters than white voters
would stay home on election day.
Assuming an equal rate of turnout following the institution of the Plaintiffs’
proposed remedy—given the lack of record evidence as to black versus white
turnout in Glades County—the fact that more than 50% of the voters in District 1
are black—even by a small margin—means that the district is majority-minority,
particularly relative to the proposed 33% white minority. Never before in an
assessment of a proposed majority-minority district has a court required the
plaintiff to prove that more minorities would actually vote.19 This conjecture is
clearly erroneous.
The second assumption on which the district court ruled that the numerical
majority would be unable to elect a candidate is likewise erroneous because it
assumes that all white voters would vote as a bloc to defeat the black minority’s
candidate of choice. The Plaintiffs introduced undisputed record evidence of
consistent white crossover voting in Glades County of 19.2%. The district court
19
The Supreme Court’s recent analysis in Perry that a district with a bare Latino majority
failed to satisfy Gingles is inapplicable because the Supreme Court’s conclusion that many of the
Latinos were not citizens eligible to vote is different from the district court’s conclusion here that
eligible voters might not turn out. See 126 S. Ct. at 2616. There is a crucial distinction between
a district with a majority of eligible minority voters and a district that is only majority minority
because non-citizens are included in the count of the minority population. There is no dispute in
this case that District 1 constitutes the former, not the latter.
20
stated that it found credible the Plaintiffs’ expert testimony regarding white
crossover voting of 19.2%. Although this crossover percentage was not
significant enough to disprove the existence of an effective white bloc vote which
presently defeats the blacks’ candidate of choice (i.e., the second Gingles
requirement), the crossover vote nevertheless should have been statistically
significant in determining the sufficiency of the black minority’s ability to elect in
District 1.20 See Sanchez v. Colorado, 97 F.3d 1303, 1319 (10th Cir. 1996)
(“Gingles, however, doesn’t require an absolute monolith in the Anglo . . . bloc
vote and recognizes the existence and role of white crossover voting. It does ask,
though, whether as a practical matter, whites usually vote as a bloc to defeat the
minority-preferred candidate.”). Yet in this case, the district court failed to take
into account the undisputed 19.2% crossover voting rate when determining that
20
The third Gingles prong does not preclude courts from considering vote dilution claims
for coalition districts. The Court in Gingles specifically considered white crossover voting and
found prong three still satisfied as long as “a white bloc vote . . . normally will defeat the
combined strength of minority support plus white ‘crossover’ votes.” 478 U.S. at 56. In other
words, it is possible for there to be white crossover voting that is insufficiently substantial to
defeat the Plaintiffs’ assertion of white bloc voting under the second Gingles requirement but that
is nevertheless significant enough to establish an “ability to elect” district under the first Gingles
requirement. Cf. Cane v. Worcester County, 35 F.3d 921, 926 (4th Cir. 1994) (finding average
19% white crossover vote insufficient to salvage at-large, one-on-one election scheme under the
facts of that case), cert. denied, 513 U.S. 1148 (1995). “If blacks constitute just under fifty
percent of the population and a small fraction of white voters are willing to cross over, voting is
still clearly racially polarized, yet black voters can prevail in a coalition district.” Note, The
Implications of Coalitional and Influence Districts for Vote Dilution Litigation, 117 HARV . L.
REV . 2598, 2605 (2004).
21
the margin of black majority in District 1 would be too narrow to constitute an
“ability to elect” district.
The Supreme Court described vote dilution in Gingles as existing where a
white voting bloc defeats not only the black minority but “the combined strength
of minority support plus white ‘crossover’ votes.” 478 U.S. at 56; see also id. at
89 n.1 (O’Connor, J., concurring) (explaining that a minority too small to
constitute a majority in a single-member district would have an interest protected
by Section 2 if it can show that white support would probably enable the election
of the candidates its members prefer). Again in Voinovich v. Quilter, 507 U.S.
146 (1993), the Court noted that the first Gingles factor could be modified when
analyzing an influence dilution claim when the plaintiffs establish a district with
what is technically less than a majority of minority voters, but “the possibility of
being a sufficiently large minority to elect their candidate of choice with the
assistance of cross-over votes from the white majority,” id. at 158.
Most recently, in Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme
Court adopted the term “coalition districts” to refer to districts in which
minority-preferred candidates can be elected with the assistance of white crossover
voters. Id. at 481. The Court specifically contrasted coalition districts with
influence districts, defining an influence district as one in which minority voters
22
have some form of political “influence” notwithstanding that they are unable to
elect their preferred candidates even with white crossover support. Id. The Court
nevertheless held that coalition districts are not retrogressive for purposes of the
Voting Rights Act, a proposition with which even the dissenting Justices agreed.
Id. at 483-84, 492 (Souter, J., dissenting). In this case, the district court
erroneously ignored the 19.2% white crossover votes when it determined that the
margin of black majority was insufficient to constitute a district with the ability to
elect.
Given the evidence that District 1 contained a numerical black majority and
that at least some white voters in District 1 would vote cohesively with black
voters, the district court clearly erred. In District 1, the black majority would be
able to elect the candidate of its choosing, not only because the black majority
would constitute more than 50% of the population, but also because the black
majority would enjoy support from white crossover votes. For these reasons, we
reverse the district court’s finding that the first Gingles factor was not met and
remand for findings consistent with that conclusion.
B.
As noted above, in conducting a totality of the circumstances analysis, we
turn to several factors delineated in the Senate Report on the 1982 amendments to
23
the Act. Gingles, 478 U.S. at 44–45 (citing S. Rep. No. 97-417 (1982)). An error
in the threshold analysis does not necessarily require reversal of the ultimate
totality of circumstances decision. City of Niagara, 65 F.3d at 1002 (affirming in
spite of clear error on a threshold factor). However, as City of Niagara Falls21
noted, “it would 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. In such cases, the district
court 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.” Id. at 1019 n.21 (quoting
Jenkins v. Red Clay Consol. School. Dist., 4 F.3d 1103, 1135 (3d Cir. 1993))
(emphasis added); see also Solomon v. Liberty County, 221 F.3d 1218, 1227-28
(11th Cir. 2000) (en banc) (requiring district courts to explain their totality of
21
In City of Niagara Falls, the district court considered a challenge to an at-large
voting system for the seven-member city council. The district court found no history of official
discrimination, no unusual voting practices or procedures, no racial appeals in campaigning,
some success for minority candidates in elections, and responsiveness on the part of public
officials to minority needs, and no tenuous policies underlaying electoral practices. These factors
outweighed racial polarization, the socioeconomic disadvantages of the African American
community, and the possible dilutive effect of staggered elections. The court affirmed only after
closely examining the district court’s detailed totality of the circumstances analysis. 65 F.3d at
1019-24.
24
circumstances reasoning “with particularity”).
In the present case, the district court concluded that the totality of the
circumstances failed to support the Plaintiffs’ vote dilution claim, but did not
explain its totality of circumstances analysis with particularity. The district court
did consider each of the nine factors set forth by Gingles, 478 U.S. at 36-37. The
court found that the at-large voting system for the school board, and perhaps for
the county commission, was enacted to dilute the African American vote; that
voting was racially polarized; that the majority vote requirement “can operate in a
manner that dilutes the minority African American vote”; and that African
Americans suffered socio-economic disadvantages. The court nevertheless
rejected Plaintiffs’ § 2 claim, on grounds that two African American candidates
have been elected to public office; that African Americans can overcome socio-
economic obstacles to political participation by attending political rallies and
community meetings; that no overt or implicit racial appeals were made in
campaigns; that elected officials have been responsive to the needs of the African
American community; and that the policies underlying the electoral system were
not tenuous. Some aspects of the court’s analysis are conclusory and open to
serious doubt.
With regard to minority success in elections, the district court cited the
25
elections of Charles Hall to the county commission in 1976 and of Beamon Rich
to the Moore Haven city council in 1988. However, Rich was not elected under
the at-large majority voting system at issue here. Instead, he ran in a city council
election with no majority vote requirement and won a seat with only 16% of the
vote in a city where 18% of the population was African American. The example
of Rich supports the inference that Afircan American voting power, which is
concentrated in Moore Haven, has been diluted by the at-large voting system. The
district court’s contrary inference is clearly erroneous. Moreover, Hall’s utility as
an example of success is undermined by the fact that he was elected when the
eligible African American voting population was nearly double what it is today.
Coupled with racially polarized voting, the lack of minority success since Hall’s
election tends to demonstrate dilution. Another probative fact—which the district
court did not consider—was that only three African Americans have run for public
office in Glades County history. Given a history of discrimination and socio-
economic disadvantage, the paucity of minority candidates may not be completely
fortuitous. The district court’s strained analysis of minority candidacies is
particularly troubling because the Supreme Court has identified the extent to
which they succeed as one of the two most important factors in vote dilution
analysis (the other being racially polarized voting). Gingles, 478 U.S. at 48 n.15.
26
The district court’s conclusion that African Americans faced no obstacles to
political participation is also inadequately reasoned. The court found that African
Americans suffered significant socio-economic disadvantages. In determining the
electoral effect of that disadvantage, the court confined its analysis to
transportation for political candidates. The court noted that although an African
American candidate was less likely to own automobiles, she could still campaign
by attending community meetings and political rallies. The court did not expressly
consider other aspects of political participation, such as voter registration, voter
turnabout, political connections, and participation in political parties and other
political organizations. See Solomon, 221 F.3d at 1222 (considering these
factors). Those factors, not automobile ownership, are ones that usually come to
mind in considering obstacles to political participation. See id.; see also City of
Niagara Falls, 65 F.3d at 1021 (analyzing voter registration and turnout). It is
difficult to reconcile the failure to consider those factors, given that the district
court had implicitly assumed lower minority voter turnout to find that a 50.23%
minority-majority was insufficient in the threshold inquiry. A fuller assessment of
obstacles to political participation is warranted.
Elsewhere, the district court made conclusory findings. For example, the
district court stated that “the weight of the convincing evidence establishes a
27
responsiveness to the minority community,” but did not describe any of that
evidence. The district court found that the policies underlying the voting system
were not tenuous, but did not discuss what those policies were. Cf. Solomon, 221
F.3d at 1234 (policy driven by citizen’s reform movement); NAACP v. Fordice,
252 F.3d 361, 372-73 (5th Cir. 2001) (policy of reducing operational costs). Even
if these conclusions are not clearly erroneous, the district court’s analysis should
have been more developed.
When compared with the detailed district court findings affirmed in City of
Niagara Falls and Solomon, it is apparent that the district court here failed to
explain its reasoning with particularity to facilitate informed appellate review. See,
e.g., Solomon v. Liberty County, 957 F. Supp. 1522, 1557-72 (N.D. Fla. 1997).
We thus remand this case for reconsideration of the totality of circumstances in
light of the district court’s error in the threshold Gingles inquiry. See Houston v.
Lafayette County, 56 F.3d 606, 613 (5th Cir. 1995) (remanding after finding error
in threshold inquiry); Jenkins, 4 F.3d at 1135 (same).
IV.
The district court clearly erred in finding that District One of the Plaintiffs’
illustrative plan constitutes an influence district. Thus, the court committed error in
concluding that the Plaintiffs failed to establish a § 2 remedy. Furthermore, the
28
court failed to explain with sufficient particularity that the totality of the
circumstances weakens the Plaintiffs’ vote dilution claim. In making those
determinations, the court did not properly apply the relevant legal principles and
grounded its findings in inaccurate perceptions of the law. We therefore reverse
the district court’s holding that the Plaintiffs’ proposed remedial plan is insufficient
under the first prong of the Gingles test and remand to the district court for
reconsideration of the totality of the circumstances test.
REVERSED AND REMANDED.
29
TJOFLAT, Circuit Judge, dissenting:
In finding a § 2 remedy appropriate for Glades County, Florida, the majority
expands our circuit’s Voting Rights Act (or “Act”) jurisprudence into unanticipated
territory. Because I believe that the majority’s two holdings shift our circuit
precedent afield, I respectfully dissent.
The majority first holds that the district court clearly erred in finding that the
plaintiffs failed to satisfy the threshold Gingles requirement for a viable remedy,
and second, concludes that the district court clearly erred in failing to state with
particularity its reasons for finding that the totality of the circumstances did not
support vote dilution. I address each of these holdings in turn.
I.
The majority’s conclusion that the district court erred in its analysis of the
first Gingles requirement turns on the district court’s finding that the illustrative
district prepared by the plaintiffs constituted an “influence district” – insufficient as
a § 2 remedy – where a bare 50.23% majority of the voting age population would
be African American. Under Gingles, a viable § 2 remedy requires a minority
population to be “sufficiently large and geographically compact to constitute a
majority in a single-member district.” Thornburg v. Gingles, 478 U.S. 30, 50, 106
S. Ct. 2752, 2766, 92 L. Ed. 2d 25 (1986); see also Negron v. City of Miami Beach,
30
Florida, 113 F.3d 1563, 1567 (11th Cir. 1997) (finding the first Gingles
requirement satisfied where Hispanic plaintiffs would constitute 63.77%, 62.24%,
and 56.80% majorities in three remedial single-member districts). In rejecting the
district court’s factual finding, the majority relies on two premises: (1) even the
barest of majorities can satisfy the Gingles threshold requirement; and (2)
crossover votes may be included to satisfy that requirement. The former premise
places our court in the unpalatable position of mechanically trumping judicial fact-
finding on a numerical bright-line basis, and the latter prematurely resolves an
issue on which both our circuit and the Supreme Court have recently and
purposefully abstained.
A.
Although the language of the Gingles Court suggests that a pure
mathematical majority satisfies the first requirement, the Court also articulated that
the policy rationale of the first requirement is to afford minority groups an
opportunity to elect preferred candidates: “Unless minority voters possess the
potential to elect representatives in the absence of the challenged structure or
practice, they cannot claim to have been injured by that structure or practice.”
Gingles, 478 U.S. at 51 n.17, 106 S. Ct. at 2767 n.17. Common sense militates
against conferring judicial safe harbor as a matter of law where a remedial plan
31
achieves a majority-minority district by only a handful of individuals. I submit that
the first Gingles requirement cannot be read as satisfied where a district court finds
that a slim majority would not give a minority population the “potential to elect”
representatives of their choice. In effect, a bare mathematical majority is no
shibboleth for a proper § 2 remedy in vote dilution cases.
The evolving law regarding “influence districts” counsels against adopting
bare numerical majorities as the mark of a viable § 2 remedy. In Voinovich v.
Quilter, 507 U.S 146, 113 S. Ct. 1149, 122 L. Ed. 2d 500 (1993), the Supreme
Court suggested that the first Gingles requirement might need to be “modified or
eliminated” if minority plaintiffs proved that they could harness significant
political influence within a given electorate while constituting less than 50% of the
relevant voting age population. Id. at 156–60, 113 S. Ct. at 1157–58 (emphasis
added). No definite rule emerged, however, and the Court has deferred the
question for well over a decade.1 Recently, in League of United Latin American
Citizens v. Perry,2 __ U.S. __, 126 S.Ct. 2594, 165 L. Ed. 2d 609 (June 28, 2006), a
1
The Supreme Court declined to decide the issue of whether “influence districts” could
constitute a proper § 2 remedy under the first Gingles requirement in, e.g., De Grandy, 512 U.S.
at 1008–09, 114 S. Ct. at 2656; Voinovich, 507 U.S. at 154, 113 S. Ct. at 1149; Growe v.
Emison, 507 U.S. 25, 41 n.5, 113 S. Ct. 1075, 1084 n.5, 122 L. Ed. 2d 388 (1993); Gingles, 478
U.S. at 46–47 n.12, 106 S. Ct. at 2764 n.12.
2
Justice Kennedy wrote the Perry opinion, and delivered the opinion of the Court with
respect to Parts II-A (constitutionality of a partisan gerrymander) and III (vote dilution claim of
Hispanics); a plurality opinion with respect to Part I (factual and procedural history) and Part IV
32
plurality of the Court3 continued to punt on the issue, merely assuming for the
purposes of that particular litigation that it would be possible to state a § 2 claim
for a racial group that constituted less than 50% of the relevant voting age
population. Id. at 2624 (plurality opinion). Ultimately, on the facts of Perry, the
Court declined to find the proposed influence district to be an adequate § 2 remedy.
See id. at 2625 (“That African-Americans had influence in the district . . . does not
suffice to state a § 2 claim in these cases. The opportunity ‘to elect representatives
of their choice,’ 42 U.S.C. § 1973(b), requires more than the ability to influence the
outcome between some candidates . . . .”).
(vote dilution claim of African Americans) (joined by the Chief Justice and Justice Alito); an
opinion with respect to Parts II-B (political ramifications of congressional redistricting) and II-C
(constitutionality of partisan gerrymander); and a plurality opinion with respect to II-D
(constitutionality of mid-decade redistricting) (joined by Justices Souter and Ginsburg).
3
With regard to the influence district issue, Chief Justice Roberts and Justice Alito joined
Justice Kennedy in deeming no § 2 remedy to be available where African-Americans were 25.7%
of the citizen voting age population in District 24, the district at issue. The plaintiffs in the case
contended that African Americans nonetheless had control (“influence”) over the district, and
that a recent redistricting plan diluted the African American vote by removing District 24. Perry,
126 S. Ct. at 2624 (plurality opinion).
For his part, Justice Souter argued that Perry ought to have been the case by which the
Court resolved the confusion surrounding influence districts in the Court’s vote dilution
jurisprudence. See id. at 2648 n.1 (“Although both the plurality today and our own prior cases
have sidestepped the question whether a statutory dilution claim can prevail without the
possibility of a district percentage of minority voters above 50%, . . . the day has come to answer
it.”). Justice Souter agreed with the plaintiffs’ argument that influence districts ought to be
viable as a § 2 remedy under the first Gingles requirement by way of analogy to section 5 of the
Act, which applies where a political change has the purpose or effect of “denying or abridging
the right to vote,” 42 U.S.C. § 1973(c). Id. at 2648, 2648 n.3. Specifically, he would find the
first Gingles requirement satisfied where a minority population was a majority in the electorate’s
primary or through crossover voting. Id. at 2648.
33
Despite not deciding the issue, the Perry plurality echoed what was already
law in our own circuit. In Dillard v. Baldwin County Commissioners, 376 F.3d
1260 (11th Cir. 2004), we held that African American citizens in Alabama had no
vote dilution remedy where they constituted less than 10% of the electorate at issue
and could not comprise a majority of the voting age population in any remedial
district. Id. at 1267. The plaintiff in Dillard sought to persuade the court that
numerically small minority groups could create “influence districts” that would
suffice under the first Gingles requirement because minority voters would “play a
substantial, although not decisive, role in the electoral process.” Id. (quoting
Georgia v. Ashcroft, 539 U.S. 461, 482, 123 S. Ct. 2498, 156 L. Ed. 2d 428
(2003)). However, we rejected that argument in Dillard. In declining to advance
influence districts as a cognizable remedy under § 2, the Dillard panel observed
that the facts of the case established no form of relief that could “empower the
protected minority group with a meaningful opportunity to elect the candidate of its
choice.” Id. at 1262 (emphasis added). Where a minority group carries a majority
by only a slim margin, a factual possibility exists that the district’s minority
population could “influence” but not have a “meaningful opportunity” to determine
the outcome of elections. See Perry, 126 S. Ct. at 2616 (“Latinos, to be sure, are a
bare majority of the voting-age population in new District 23, but only in a hollow
34
sense, for the parties agree that the relevant numbers must include citizenship. This
approach fits the language of § 2 because only eligible voters affect a group’s
opportunity to elect candidates.”).
In the instant case, the plaintiffs argue that the district court erred in deeming
District 1 of their illustrative plan an impermissible “influence district.” The rub in
this case in that the district court extended the definition of an influence district
beyond plaintiffs who could not form a majority-minority district to the situation at
hand, where the plaintiffs have created a majority, but only by a trace number of
individuals. African Americans comprise only 50.23% (775 persons) of the voting
age population in the proposed District 1. Moreover, given the already-low
population of African Americans in Glades County, the plaintiffs presented an
illustrative district with only the slimmest of numerical majorities — a mere five
persons.4 However, although the question of whether a bare mathematical majority
4
If illustrative District 1 were to replace five of the African Americans with five white
voting age persons, the African American voting age population would drop to 49.9%.
In a footnote aside, the majority also finds that “the district court also erred in its
determination that District 1 would contain only a 50.23% majority because it counted as “black”
only non-Hispanic blacks, omitting persons who self-identified on the 2000 Census as both black
and Hispanic. With that in mind, the majority posits that “there may be significantly more than a
50.23% black majority in District 1.”
The 2000 Census, however, suggests that the majority’s line of argument may rest on a
red herring. The 50.23% majority in the proposed District 1 was calculated by William S.
Cooper, the plaintiffs’ expert witness, who prepared statistics under the definition of African
Americans as “non-Hispanic blacks.” Although the record does not indicate how many
individuals – if any – would self-identify as both Hispanic and black in District 1, the 2000
Census indicates that in Glades County as a whole, there were 834 voting-age individuals who
35
can still constitute an impermissible influence district apparently raises an issue of
first impression for our circuit, I find the district court’s conclusion in the
affirmative to be compatible with the spirit of Gingles and its progeny.
In support of its contention that a 50% numerical majority is sufficient, the
majority cites only to cases from other circuits with distinguishable facts. In
Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848 (5th Cir. 1999), the
Fifth Circuit applied a 50% bright-line rule, but where the minority population
constituted only 47.9% of the voting age population in the proposed remedial
district. Id. at 852–53. The majority is likewise on precarious ground in relying
upon Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998). There, the Sixth Circuit
not only rejected a sub-50% influence district as an appropriate § 2 remedy, but
also found a proposed remedial district deficient where the district contained,
similar to the case before us, only a bare majority. Id. at 829 (“Even in the one
district where blacks constitute a voting age population majority, their 50.3%
margin is so razor-thin that it does not meet the “safe district” standards of courts
that have approved race-conscious realignments in other electoral contexts.”).
identified themselves – in whole or in part – as black, and 830 voting-age individuals who
identified themselves as non-Hispanic black. As a result, there were at most four individuals
county-wide who may have been excluded by the calculations presented by Cooper. I find it
difficult to presume that the inclusion of any persons who may have self-identified as both black
and Hispanic would have resulted in “significantly more than a 50.23% majority” in the
plaintiffs’ proposed remedial district.
36
Pointing to Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Oh. 2003) (three-judge
court), aff’d mem., 540 U.S. 1013 (2003), furthermore, does not help the majority’s
case. In Parker, the court merely reaffirmed what our own circuit has stated in the
past – that influence districts are not cognizable remedies under the Voting Rights
Act. Id. at 1105. The cases cited by the majority only point to the conclusion that
influence districts are insufficient § 2 remedies. I would not dispute that
conclusion. I would only dispute a mechanical “analysis” of the first Gingles
requirement that would automatically find a remedy in a district with a 50.0%
minority voting age population but no remedy in a district with a 49.9% minority
voting age population. Such inflexibility, I posit, contravenes the searching factual
analysis the Supreme Court set in place in Gingles.
Rote application of technical requirements does not comport with the
motivating concerns of the Act. Section 2 jurisprudence suggests that Congress did
not intend to create pure mathematical requirements for a vote dilution claim. See
Perry, 126 S. Ct. at 2615 (“[I]t may be possible for a citizen voting-age majority to
lack real electoral opportunity.”); see also De Grandy, 512 U.S. at 1008 (finding
the first Gingles condition satisfied where reasonably compact districts contained
“a sufficiently large minority population to elect candidates of its choice”)
(emphasis added); Voinovich v. Quilter, 507 U.S. 146, 158, 113 S. Ct. 1149, 1157,
37
122 L. Ed. 2d 500 (1993) (“Of course, the Gingles factors cannot be applied
mechanically and without regard to the nature of the claim.”) (emphasis added).
Although a minority group may technically constitute a statistical majority for
purposes of satisfying the first Gingles requirement, if the group does not have a
realistic chance to elect its candidates of choice, it fails to present a viable § 2
remedy. To hold otherwise would open the gateway for minority plaintiffs to glean
a remedial district from a sparse population that would be a mere simulacrum of a
viable remedy. See Dillard, 376 F.3d at 1269 (“To open the door to the inevitable
flood of marginal § 2 claims would impose an unwarranted burden on the lower
federal courts and an indefensible encroachment into the affairs of state
governments.”) (emphasis added). Even if a new District 1 could contain — which
it cannot — the 59 remaining African Americans of voting age in Glades County,
African Americans would comprise only 54.05% of the voting age population.5 I
cannot conclude that the district court erred in finding a mere five-person, 50.23%
5
The 54.05% calculation (834 / 1,543) that would include all African Americans of
voting age within a single proposed majority-minority district is itself far too generous. The
geographical distribution of African Americans in Glades County precludes an easy redistricting
to provide for a more substantial majority. According to the illustrative plan, District 1 is
bordered by District Two and District Four. Districts Two and Four have a combined African
American voting age population of 37 individuals (33 in District Two and 4 in District Four).
Therefore, while still improbable, even were those 37 African American voting age individuals to
live close enough to the borders of the proposed District 1 to be subsumed within a new majority-
minority district, the new calculation (812 / 1,543) results in only a 52.62% majority voting age
population for African Americans.
38
buffer majority to be simply a vestigial appendage to a legally insufficient
influence district.
B.
The majority’s argument seems to gainsay the validity of the plaintiffs’
proposed District 1. Rather than resting the weight of their argument on the
tenuous grounds of the mathematical majority, the majority, on the basis of a 19.2%
countywide white crossover voting rate, argues that the white crossover vote in
District 1 “should have been statistically significant in determining the sufficiency
of the black minority’s ability to elect in District 1.”
In applying the crossover vote at the threshold Gingles stage, the majority
quietly carves out a new rule of law for this circuit. The question of whether to
apply crossover voting is an issue on which both we and the Supreme Court have
recently withheld decision. Dillard, 376 F.3d at 1269 n.7; see also Perry, 126 S. Ct.
at 2624.
We have yet to answer conclusively the question of whether minority
plaintiffs may apply the crossover vote of a separate racial group in order to
transform an influence district into a viable remedial district. We specifically
declined to address the issue in the Dillard decision that held minority influence
districts impermissible as a § 2 remedy: “We leave open the question of whether a
39
§ 2 plaintiff can pursue a ‘coalition’ or ‘crossover’ dilution claim, i.e., a claim
where ‘members of the minority group are not a majority of the relevant voting
population but nonetheless have the ability to elect representatives of their choice
with support from a limited but reliable white crossover vote.’” Dillard, 376 F.3d at
1269 n.7 (quoting Rodriguez v. Pataki, 308 F. Supp. 2d 346, 376 (S.D.N.Y. 2004));
see also Perry, 126 S. Ct. at 2624 (arguing that if it were possible for influence
districts to be a valid § 2 remedy, the plaintiffs must show that they constitute “a
sufficiently large minority to elect their candidate of choice with the assistance of
cross–over votes”) (quoting Voinovich, 507 U.S. at 158, 113 S. Ct. at 1149).
Given the unsettled character of the legal issue, I refuse to consider as clear error
the district court’s decision to decline to account for a speculative white crossover
vote in District 1. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
574, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”) (citing United States v. YellowCab Co., 338 U.S. 338, 342, 70
S. Ct. 177, 179, 94 L. Ed. 150 (1949)).
The plaintiffs themselves, moreover, failed to raise white crossover voting at
trial as a basis for the sufficiency of their proposed remedial district – as a result,
the record pertaining to white crossover voting in the illustrative district is limited.
40
It is unsurprising, therefore, that in both its order denying the plaintiffs relief after
bench trial, as well as its order denying the plaintiffs’ motion to alter judgment, the
district court purposefully declined to consider the white crossover vote in coalition
with the African American vote in finding District 1 to be an influence district
comprised of only the slimmest of literal majorities.
The majority also seems to assume that significant crossover voting would
take place in the proposed remedial district. I would indulge in no such
assumption. Were the court to adopt the plaintiffs’ plan – replacing at-large voting
with single-member district voting – white voters who might otherwise vote for an
African American candidate might not be inclined to do so in light of the fact that
such bloc voting could grant African Americans a disproportionate representation
on the County Commission and School Board6 and result in district representatives
who would have less incentive to be responsive to white residents in the rest of the
county.
I cannot conclude that the district court clearly erred in declining to account
for the white crossover vote in its analysis of whether the plaintiffs satisfied the
first Gingles requirement. Neither the evidence in the record nor the relevant case
6
Although African Americans represent 10% of the Glades County electorate, they seek
20% (one out of five) of the seats available on the County Commission and School Board.
41
law required the court to have addressed any white residents voting as a bloc with
the plaintiff African Americans.
II
I turn now to the majority’s argument that the district court failed to set out
with particularity its reasoning regarding the totality of the circumstances.
Although it is certainly the case that we require a district court to state its reasoning
with particularity, we have also held that where a district court possesses a correct
understanding of the law, “engaged in a searching and meaningful evaluation of all
the relevant evidence,” and the record supports the court’s findings, appellate
review is satisfied. Solomon v. Liberty County Com’rs, 221 F.3d 1218, 1228 (11th
Cir. 2000) (en banc) (quoting Souther Christian Leadership Conference v.
Sessions, 56 F.3d 1281, 1293 (11th Cir. 1995) (en banc). I believe that the district
court fully met that standard.
Even assuming that the plaintiffs satisfied the first Gingles requirement, I
would still affirm the district court because there was no error in the court’s
assessment of the totality of the circumstances. NAACP v. Fordice, 252 F.3d 361,
374 (5th Cir. 2001) (affirming the district court’s conclusion that no vote dilution
existed where the district court found that the plaintiffs had satisfied the Gingles
requirements, but not the totality of the circumstances test).
42
As the majority notes, in conducting a totality of the circumstances analysis,
a court turn to several factors delineated in the Senate Report on the 1982
amendments to the Act. Gingles, 478 U.S. at 44–45 (citing S. Rep. No. 97-417
(1982)). In its 49-page order, the district court went through each of the specific
factors,7 and concluded that the totality of the circumstances failed to support the
plaintiffs’ vote dilution claim.
Upon reviewing the record, I cannot say that the district court clearly erred in
the method of its analysis. In reaching its conclusion, the court reviewed the
testimony of various experts on the racial history of Florida, particularly with
regard to changes to the election process,8 statistical analyses of Glades County
voter behavior, and the background underpinning the plaintiffs’ illustrative plan.
7
In the course of its discussion, the district court found: (1) no evidence that the ability of
African Americans in Glades County to participate in the political process continued to be
hindered by historical discrimination; (2) no evidence of overt appeals to race during the election
process; (3) that only the majority vote requirement, and possibly the size of Glades County,
might enhance the potential for discrimination against African Americans; (4) no candidate
slating process in Glades County; (5) no socio-economic conditions that severely impair equal
footing for African Americans in the political process; (6) no evidence of racial appeals in
political campaigns; (7) “some electoral success” by African American candidates for public
office; (8) responsiveness to the needs of the African American community; (9) no evidence of
tenuous election practices; (10) no districts that contain a majority of minority voting age
persons; and (11) that African Americans had not yet achieved representation proportional to
their approximately 10% share of the countywide population.
8
Mormino found that both the 1947 legislation adopting statewide at-large school board
primaries as well as 1900 constitutional amendment adopting at-large elections for county
commissioners were motivated by racially discriminatory intent.
43
See Anderson, 470 U.S. at 575, 105 S. Ct. at 1512 (“When findings are based on
determinations regarding the credibility of witnesses, Rule 52(a) demands even
greater deference to the trial court’s findings; for only the trial judge can be aware
of the variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said.”); see also De Grandy, 512
U.S. at 1011 (“[T]he ultimate conclusions about equality or inequality of
opportunity were intended by Congress to be judgments resting on comprehensive,
not limited, canvassing of relevant facts.”). Moreover, the district court reviewed
relevant census data, including data relating to the socio-economic disparities
between Caucasian and African American households.9 When considering the
historical patterns of election for African Americans; the court noted that only three
African Americans had ever sought elected office in Glades County, two of whom
had made successful bids.10 Furthermore, the court invested substantial energy in
reviewing several depositions.11 Those depositions revealed little evidence of
9
The district court noted that the per capita income for African Americans in Glades
County was $6,130, while the per capita income for Caucasians was $12,012. Likewise, while
39.9% of Caucasians over the age of 25 had not completed high school, the same was true for
79% of African Americans.
10
Charles Hall was elected to the County Commission in 1976; Beamon Rich was elected
to the City Council for Moore Haven in 1998, and plaintiff Billie Thompson made an
unsuccessful bid for Glades County School Board in 1998.
11
The court reviewed the depositions of: Janet Storey (School Board District 1),
Catherine Baxter Peeples (School Board District 2), Tom Gaskins (School Board District 3),
44
racial discrimination or racial appeals during campaigning. Indeed, the testimony
of plaintiff Billie Thompson suggests that the opposite is true: despite the vast
acreage of Glades County, she campaigned in every major voting area (covering
90% of the county), attended (and was well-received) at the only political rally for
the primary, and expressed the opinion that she had a “small but effective”
campaign, a fact supported by her having garnered 40% of the vote countywide.
Also, the district court properly considered the special referendum held on
June 5, 2001, which Dr. Steven Cole, a plaintiffs’ expert, conceded did not reflect
racially polarized voting. In precincts with a 90% or greater African American
voting age population, only 52% voted in favor of single-member districts. We
have previously considered similar referenda as relevant to the question of whether
policies underlying electoral procedures are tenuous, as well as the responsiveness
of elected officials to the unique needs of a minority population. See Solomon v.
Liberty County Commissioners, 221 F.3d 1218, 1234 (11th Cir. 2000) (noting that
a majority of voters in Liberty County, including 60% of African Americans, voted
for at-large elections and against single-member districts for school board
elections); id. (“Obviously, the fact that black and white voters in Liberty County
Mike Pressley (School Board District 4), Susan T. Shriveler (School Board District 5), K.S.
Jones (County Commission District 1), Alvin Ward (County Commission District 2), Franklin
Simmons (County Commission District 4), and Holly Whiddon Green (Supervisor of Elections).
45
voted overwhelmingly against single-member districts, tends to undercut any
suggestion that the continued policy of maintaining at-large elections is somehow
discriminatory or otherwise tenuous.”) (quoting Solomon v. Liberty County,
Florida, 957 F. Supp. 1522, 1568 (N.D. Fla. 1997).
The Supreme Court, furthermore, has agreed that proportionality12 is a
relevant consideration under a § 2(b) totality of the circumstances analysis. Perry,
126 S.Ct. at 2614; De Grandy, 512 U.S at 1006–07. Case law subsequent to
Gingles counsels attention to “whether the number of districts in which the
minority group forms an effective majority is roughly proportional to its share of
the population in the relevant area.” De Grandy, 512 U.S. at 1006–07; see Baird v.
Consolidated City of Indianapolis, 976 F.2d 357, 358 (7th Cir. 1992) (“The district
court’s analysis took into consideration the fact that the African-American voting
age population, 10% of the relevant voting population (and apparently on a
diminishing trend), ought to have the opportunity to elect effectively 20% of the
12
The question of whether the number of majority-minority districts is “roughly
proportional” to a minority group’s share of the overall population is distinct from the question
of whether a minority group is guaranteed proportionate representation. The Act itself resolves
the latter question, noting that “nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. §
1973(b) (emphasis added). Although the Act precludes any formal guarantee of electoral success
to a minority group, § 2 permits an examination of proportionality as an appropriate inquiry into
equality of opportunity. See De Grandy, 512 U.S. at 1015 n.11 (“[T]he ultimate right of § 2 is
equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of
whatever race.”).
46
School Board and County Commission (one of the five elected members for each
group).13 Here, 10% of the electorate seeks one out of each of the five seats
available on the County Commission and School Board – political representation a
full 100% above its percentage among the voting age population of Glades County.
See Perry, 126 S. Ct. at 2662 (C.J. Roberts, dissenting) (“Latino voters enjoy
effective political power 46% above their numerical strength, or, even disregarding
District 25 as an opportunity district, 24% above their numerical strength . . . .
Surely these figures do not suggest a denial of equal opportunity to participate in
the political process.”); De Grandy, 512 U.S. at 1017 n.13, 113 S. Ct. at 2660 n.13
(“When 40 percent of the population determines electoral outcomes in 7 out of 10
districts, the minority group can be said to enjoy effective political power 75
percent above its numerical strength.”). Indeed, the facts of the instant case are
difficult to massage into a vote dilution claim where a 10.1% countywide voting
age population of African Americans would seek 20%, respectively, of the five-
seat County Commission and School Board. Ultimately, the legislative history of
the Voting Rights Act counsels that the purpose of a § 2 remedy is not to ensure a
13
We note that the Supreme Court has made clear that a federal court cannot increase the
size of elected bodies as a part of remedying a § 2 violation. See Holder v. Hall, 512 U.S. 874,
881, 114 S. Ct. 2581, 2586, 129 L. Ed. 2d 687 (1994) (“There is no principled reason why one
size [of an elected governing body] should be picked over another as the benchmark for
[determining whether vote dilution exists].”); Nipper v. Smith, 39 F.3d 1494, 1532 (11th Cir.
1994) (same).
47
windfall for a minority population. See De Grandy, 512 U.S. at 1017, 114 S. Ct. at
2660 (“One may suspect vote dilution from political famine, but one is not entitled
to suspect (much less infer) dilution from mere failure to guarantee a political feast.
However prejudiced a society might be, it would be absurd to suggest that the
failure of a districting scheme to provide a minority group with effective political
power 75 percent above its numerical strength indicates a denial of equal
participation in the political process. Failure to maximize cannot be the measure of
§ 2.”). Upon review of the record, I cannot find clear error in the district court’s
determination that the totality of the circumstances does not support a vote dilution
claim in Glades County.14
III.
For the aforementioned reasons, I would conclude that the district court did
not clearly err in finding that District 1 of the plaintiffs’ illustrative plan constituted
an influence district insufficient as a remedy under § 2 of the Voting Rights Act. I
would likewise conclude that the court did not clearly err in finding that the totality
14
The majority would remand this case for reconsideration of the totality of the
circumstances in light of its holding that the district court erred in the threshold Gingles inquiry.
If we are to accept the majority’s holding, however, that the district court ought to have applied
the Hispanic crossover vote to the African American vote, we are confronted by the awkward
question of whether the Hispanics ought not be considered in the totality of the circumstances
analysis. Because the plaintiffs failed to provide expert testimony with regard to the Hispanic
population, such a question would prove difficult to weigh.
48
of the circumstances did not support the plaintiffs’ vote dilution claim. In making
those determinations, the court properly applied the relevant legal principles and
grounded its findings in an accurate understanding of the law. I therefore dissent.
49