Petition — Escambia County v. McMillan
Supreme Court brief1983
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82-2155 [eeoT
ALEXANDER LW. STEVAS,
IN THE CLERK
Supreme Court of the United States
OCTOBER TERM. 1982
ESCAMBIA COUNTY, FLORIDA, et ai.,
Petitioners,
Ve
HENRY T. McMILLAN, ef ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI BEFORE
JUDGMENT TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
CHARLES S. RHYNE
Counsel of Record
J. LEE RANKIN
THOMAS D. SILVERSTEIN
Rhyne & Rankin
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
THOMAS R. SANTURRI
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
Attorneys for Petitioners
RODE CORT AS LR TIE << ES
THE CASILLAS PRESS, INC. — 1717 K Street NW. — Washington, D.C. — 223-1220
(i)
QUESTIONS PRESENTED FOR REVIEW
1. Whether the “law of the case” doctrine precludes a
district court on remand from considering and implement-
ing as a “legislative plan” a remedial election system and
reapportionment plan a legislative body adopts where the
district court recognizes that the prior decision by it and
the court of appeals, refusing to consider as a “legislative
plan” a remedial election system and reapportionment
plan the legislative body adopted, was clearly erroneous,
and the result of that clearly erroneous decision is that a
federal court preempts a legislative function and imposes
an election system and apportionment plan _ ger-
rymandered to provide proportional representation.
2. Whether the preclearance provisions of section 3 of
the Voting Rights Act of 1965 are applicable during the
remedy phase of a case.
3. Whether the “no retrogression” standard applicable
to preclearances under section 5 of the Voting Rights Act
of 1965 is also applicable to preclearances under section 3
of the Voting Rights Act of 1965, and, if so, whether the
retrogression baseline for section 3 preclearances is the
voting practice or procedure in effect when the suit is com-
menced.
4. Whether an election system and reapportionment
plan a legislative body adopts for the purpose of remedy-
ing defects found to exist in an at-large election system and
which never is implemented may be determined to violate
the Constitution and section 2 of the Voting Rights Act of
1965 because it does not guarantee a minority propor-
tional representation.
(iii)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........ 0.00 c ee eeees i
ED sca cccccccsceccccvescceseecesers . iii
EE PPE UIEE EEE pc ncvccccccccccescecccessaccenese Vv
ed cekeabewesereabcacenaenues 2
Te eee a senda Naas cess eseankecenens 3
CONSTITUTIONAL AND STATUTORY PROVISIONS ........ 3
i ci Ce Ce cca vccceasvecneencsssecsaces 3
REASONS FOR GRANTING THE WRIT ............ bara ete 13
I The Questions Presented by This Case Are of Such
Imperative Public Importance as To Require Im-
mediate Settlement by This Court ........... 000 e eee eues 13
Il The Misapplication by the District Court of the “Law
of the Case” Doctrine Has Resulted in the Preemp-
tion by the District Court of a Legislative Function ........ 15
III This Court Never Has Addressed the Preclearance
Provisions of Section 3, and the Issues the District
Court’s Opinion Presents Are Likely To Be Present
in Other Cases in Which Violations in Voting Prac-
Nr NUON ovo ncdccccdcceccercccccces 19
A. The Preclearance Provisions of Section 3 Do Not
Apply During the Remedy Phase of a Case but
Only to Subsequent, Proposed Changes Affec-
RRC nG haere s ers anbereeebeuss vege 19
B. The Principles Applicable to Preclearances
Under Section 5 Should Be Applicable to
Preclearances Under Section3 ............00eeeeeees 21
(iv)
1. The “No Retrogression” Standar@ This Court
Has Enunciated for Section 5 Preclearances
Should Govern Section 3 Preclearances .....
2. The Retrogression Baseline Under Section 3
for Determining Whether the “No Retrogres-
sion” Standard Has Been Satisfied Is the Prac-
tice or Procedure in Effect When the Suit Is
PE R54 dabaterwcacucdaees be eeees eee
IV An Election System or Reapportionment Plan a
Legislative Body Adopts for the Purpose of Remedy-
ing Violations a Court Has Found to Exist and
Which Has Not Been Implemented Cannot Violate
the Constitution or Section 2 ............0eeseeee
CRRRAMGIN Wide enocdcoancesocsovessnasecasceses
APPENDIX
A.
March 11, 1983 Order and Memorandum Decision in
McMillan v. Escambia County, Florida ...........
SS Se Siedler easaad ands ceuhdbe bs eke'oe btas
2. Memorandum Decision ...............e0000:
Notice of Appeal to the United States Court of Ap-
peals for the Eleventh Circuit .............00000es
Selected Provisions of the Voting Rights Act of 1965
and Florida’s Constitution and Statutes ...........
1. Provisions of the Voting Rights Act of 1965.
2. Provisions of Florida’s Constitution and
RN Fe ceack weeeee nearer ache bn0 6%
(v)
TABLE OF AUTHORITIES
Cases:
Arizona v. California,
ees US. cen 103 S.Ce. 1SBZ(IGTS) .. cece eevee
Beer v. United States,
Se its CIO CPTED vec bcc cctncsvensaccresseccees
City of Lockhart v. United States,
acess WI cently SOD ihe POO CITOS) cc rcnccccccsees
City of Mobile, Alabama vy. Bolden,
ORR PUEEEED Beeb ricccnsindvascccncvanecees
Dunn v. Blumenstein,
PEED 6 6is cndokeee \s¥bccovcencavens
Escambia County, Florida v. McMillan,
No.A-939 (82-1295) (U.S. May 26, 1983) ...........
Escambia County, Florida v. McMillan,
—— | eee | em PT eeeT eee
McDaniel v. Sanchez,
PERE MEU svicnccderceerstsscdecacevces
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Mar. 11, 1983)
(Order), appeal docketed, No. 83-3275
GRIGG POs eg BHUED voc sn evenssecccvesccccecs
McMil/an v. Escambia County, Florida,
559 F. Supp. 720 (N.D. Fla. 1983) (Memorandum
Decision), appeal docketed, No. 83-3275
SERN: MCE DUE a wes ncdecdccsvcvascceccce
McMillan v. Escambia County, Florida,
688 F.2d 960 (Sth Cir. 1982), prob. juris.
noted, U.S. , 103 S.Ct. 1766 (1983) ........
10, 21, 22
25, 26, 27
(vi)
McMillan v. Escambia County, Florida,
638 F.2d 1239 (Sth Cir. 1981), vacated,
688 F.2d 960 (Sth Cir. 1982), prob. juris.
noted, U.S. 103 S.Ct. 1766
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979)
(Order), vacated, 638 F.2d 1249 (Sth Cir. 1981),
vacated 688 F.2d 960 (Sth Cir. 1982), prob.
juris. noted, __. U.S. ___., 103 S.Ct. 1766
re ee eee
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Sept. 24, 1979) ........
Reynolds v. Sims,
i Pash wishin sade basnicascsaeaee
Rogers v. Lodge,
eS ceenne Os SIR EEUMED cc cccesncescs
Upham v. Seamon,
Se Se: eee
Whitcomb vy. Chavis,
OS toe ae nas Sao ih cen inwen ewe
White v. Regester,
ne i. cesta sa iesahaaaks Seances
White v. Weiser,
tcc Neeckdshcanekinebhavnenes
Wise v. Lipscomb,
i tase che naduvakenaenueensiees
Yick Wo vy. Hopkins,
i citi: Cacdenchrisewsesdecowe
(vii)
Page
Constitutional, Statutory and Regulatory Provisions:
sin baness se ee bps bind os ob oa cee passim
ME NUE se veccevccscareescarsirdersonsece passim
Fla. Const. art. VIII
eee ca a tkcyae aban ena e ees 0URkS 4, 10, 12,17
i Cee Casas e ad bok eN eee ohne sr kesveaekedess 17
Voting Rights Act of 1965
Deg rs Pie © SOTO UMII: UGE) cvs caccccccccvnsccesss 1]
Py DOURMEEEUED gaccceccscccccnvesseccouen passim
§ 4(a), 42 U.S.C.A. § 1973b(a) (Supp. 1983) .... 6... cee ee eee 23
§ 46), 42 U.S.C. § 1973B(B) (1976) 0... ccc cece cece eeeees 23, 24
SMEs © MPTROENUPED cic inbcccveccscccessesdess passim
Ne rg peae bse teescbeseesbeue 4
Fla. Stat. §§ 125.001-125.74, 125.80-125.88
Ce eas Cheb nndde ovis 140 069950.0.8 0-049 17
oe ke RE A rrr rrr Terrier ey rrererer 7,8
Miscellaneous:
H. Rep. No. 439, 89th Cong., Ist Sess.,
reprinted in 1965 U.S. Code Cong. & Ad. News
EMRE Nh pa be Gknadd ties bctdi0enhonseeesccescencée 23
IN THE
Supreme Court of the United States
OCTOBER TERM, 1982
No.
ESCAMBIA COUNTY, FLORIDA, et al.,
Petitioners,
Vv .
HENRY T. McMILLAN, ef ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI BEFORE
JUDGMENT TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
Petitioners Escambia County, Florida (“Escambia”) and
the members of the Escambia Board of County Commis-
sioners (“County Commission”),' through . counsel,
'The current members of the County Commission are John E.
Frenkel, Jr.; Billy G. Tennant; Kenneth J. Kelson; Gerald Woolard;
and Marvin Beck. The remaining parties to this action are: the Super-
visor of Elections for Escambia, Joe Oldmixon, who is a defendant
but has not joined in this petition; Henry T. McMillan, respondent;
Robert Crane, respondent; Clifford Stokes, respondent; and the class
of all black citizens of Escambia, respondents. Petitioners Woolard,
Frenkel and Tennant have been substituted for Charles Deese, Jack
Kenney and Zear! Lancaster, respectively, who were members of the
County Commission at the time the suit was brought. This suit also
was brought against the School District o: Escambia, the Escambia
School Board and the members thereof. The School Board aspect of
the case was resolved, McMillan v. Escambia County, Fla., 638 F.2d
1239 (Sth Cir. 1981), and was not part of the Order and Memorandum
Decision to which this petition is directed.
2
respectfully submit this petition for a writ of certiorari
before judgment to the United States Court of Appeals for
the Eleventh Circuit.
OPINIONS BELOW
The March 11, 1983 Order of the United States District
Court for the Northern District of Florida in McMillan v.
Escambia County, Florida is unreported but is reprinted in
Appendix A at la; the accompanying Memorandum Deci-
sion of the district court is reported at 559 F.Supp. 720
and is reprinted in Appendix A at 13a. The September 24,
1982 and February 19, 1981 opinions and decisions of the
United States Court of Appeals for the Fifth Circuit in
McMillan v. Escambia County, Florida are reported at
688 F.2d 960; 638 F.2d 1249; and 638 F.2d 1239 and are
reprinted in the appendices to the Jurisdictional Statement
(or “J.S.”) petitioners herein filed with this Court in
Escambia County, Florida v. McMillan? in Appendix A at
la and Appendix B at 52a and 30a, respectively. The
December 3, 1979 Memorandum Decision and Order, the
September 24, 1979 Memorandum Decision and the July
10, 1978 Memorandum Decision and Judgment of the
United States District Court for the Northern District of
Florida in McMillan v. Escambia County, Florida are
unreported but also are reprinted in the appendices to the
above-referenced Jurisdictional Statement in Appendix B
at 54a, 59a, 66a, 71a and 114a, respectively.
JURISDICTION
The Order and Memorandum Decision of the district
court to which this petition is directed were entered on
7 US. —__, 103 S.Ct. 1766 (1983) (noting probable jurisdic-
tion) (No. 82-1295).
March 11, 1983. On April 11, 1983, petitioners filed with
the district court a Notice of Appeal to the United States
Court of Appeals for the Eleventh Circuit. (The Notice of
Appeal is reprinted in Appendix B at 34a.) The appeal
was docketed on April 27, 1983, as McMillan v. Escambia
County, Florida, No. 83-3275 (11th Cir.). Jurisdiction of
this Court is invoked under 28 U.S.C. § 1254(1) (1976).
CONSTITUTIONAL AND
STATUTORY PROVISIONS
The provisions of the Voting Rights Act of 1965 and the
reapportionment provisions of Florida’s Constitution and
statutes which are involved in this petition are reprinted in
Appendix C at 36a and 43a, respectively.
STATEMENT OF THE CASE
This petition seeks immediate and direct review of the
Order? and accompanying Memorandum Decision‘ the
United States District Court for the Northern District of
Florida issued on remand by the United States Court of
Appeals for the Fifth Circuit in McMillan v. Escambia
County, Florida (“McMillan IIT’)’. This Court has noted
probable jurisdiction over the appeal of the Fifth Circuit’s
judgment,® and the district court’s Order and Memoran-
‘McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. Mar. 11, 1983), appeal docketed, No. 83-3275 (11th Cir. Apr. 27,
1983).
“McMillan v. Escambia County, Fla., 559 F.Supp. 720 (N.D. Fla.
1983), appeal docketed No. 83-3275 (11th Cir. Apr. 27, 1983).
5688 F.2d 960 (Sth Cir. 1982), prob. juris. noted, __. U.S. ___.,
103 S.Ct. 1766 (1983) (No. 82-1295).
*Escambia County, Fla. v. McMillan, ___. U.S. ___., 103 S.Ct.
1766 (1983) (noting probable jurisdiction) (No. 82-1295).
4
dum Decision implement the district court’s interpretation
of the Fifth Circuit’s judgment.
Facts underlying this petition are set forth in the
Jurisdictional Statement filed with this Court to appeal the
Fifth Circuit’s judgment and are incorporated herein by
reference. As discussed therein, at J.S. 16-17, the Fifth
Circuit remanded the case to the district court with direc-
tions to revise the scheduling terms of its remedial order.’
Prior to the Fifth Circuit’s decision, the County Com-
mission, pursuant to Fla. Const. art VIII, § 1(e); Fla. Stat.
§ 124.01 (1981), which require non-charter county com-
missions, following publication of each decennial census,
to reapportion county commissioners’ districts according
to the one person, one vote rule, adopted, on December
22, 1981, a reapportionment plan for Escambia’s county
commissioners’ districts. The Fifth Circuit’s decision in
McMillan III affirmed the district court’s December 3,
1979 Order? but did not address the reapportionment
issue. The December 3, 1979 Order, inter alia, imposed a
court-ordered reapportionment plan for the county com-
missioners’ districts, which was based on the 1970 census,
and also provided that, following each decennial census,
the County Commission was to reapportion the county
commissioners’ districts. !°
"McMillan III, 688 F.2d at 973. (J.S. at 29a.)
‘The circumstances surrounding the adoption of the December 22,
1981 reapportionment plan are discussed in the Jurisdictional State-
ment at 15.
*McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D. Fla.
Dec. 3, 1979), vacated, 638 F.2d 1249 (Sth Cir. 1981), vacated, 688
F.2d 960 (Sth Cir. 1982), prob. juris. noted, U.S. , 103 S.Ct.
1766 (1983) (No. 82-1295). (J.S. at 59a.)
“Id. 44.1, 4. (J.S. at 59a, 60a.)
5
On remand, the district court, by letter dated November
29, 1983, directed the parties to submit “a plan and
schedule for conducting elections for the Escambia Coun-
ty Commission.” The parties agreed that elections should
be held as promptly as possible and also agreed on a
schedule for elections.'' However, they disagreed on the
apportionment of the county commissioners’ districts.
Petitioners urged that the county commissioners’ districts
should be apportioned according to the December 22,
1981 reapportionment plan the County Commission had
adopted.'? Respondents, however, argued that the county
commissioners’ districts should be apportioned according
to the apportionment plan the Escambia School Board
recently had adopted and the court had approved for the
school board districts, which plan deliberately was design-
ed to provide a district in which blacks comprised a ma-
jority of the population and registered voters. '?
On December 28, 1982, the court held a hearing on the
parties’ proposals. Following that hearing, the court pro-
posed an order, inter alia, imposing the school board
districts as the county commissioners’ districts, and
requested the parties to comment on that proposal. Peti-
tioners objected to the use of the school board districts
because the Florida Constitution and statutes not only
allow but require non-charter county commissions to
''Plaintiffs’ Submission of Plan and the Schedule for Elections for
the Escambia County Commission { 3; Defendants’ Proposed Elec-
tion Plan and Schedule 4 1.
'2Defendants’ Proposed Election Plan and Schedule ¢ 2. Petitioners
also proposed that the election system, i.e., at-large or single-member
district, to govern the elections should be determined by the status of
their appeal on the opening date for qualifying for the elections. Jd.
'3Plaintiffs’ Submission of Plan and the Schedule for Elections for
the Escambia County Commission 4 2.
6
reapportion county commissioners’ districts, because the
school board districts were gerrymandered to provide pro-
portional representation and because the total population
deviation in the school board districts, 6.3 percent, was
too great to satisfy constitutional standards for a court-
ordered reapportionment plan.'* Respondents ac-
know!ledged that the County Commission could adopt and
have implemented a reapportionment plan but argued that
any such plan first had to be precleared formally under
section 3 of the Voting Rights Act of 1965'5.'* If, within a
‘ short period of time, petitioners failed to obtain section 3
preclearance, respondents urged the court to order into ef-
fect as the county commissioners’ districts the school
board districts.'’
Petitioners contended that the preclearance provisions
of section 3 were inapplicable in the then posture of the
case.'® However, in the event the court were to determine
that section 3 preclearance was required, petitioners re-
quested the court to preclear its December 22, 1981 reap-
portionment plan.'® Finally, petitioners urged the court to
issue as promptly as possible whatever order it was going
to issue so that, in the interest of resolving the case com-
pletely and as expeditiously as possible, the entire case
might be able to be submitted to this Court.?°
'*Memorandum of Defendants in Response to the Court’s Proposed
Remedial Order at 1-4.
1342 U.S.C. § 1973a (1976).
'6Plaintiffs’ Proposed Opinion and Order Concerning Remedial
Elections at 4-7.
'"Id. at €-7.
'*Defendants’ Response to Plaintiffs’ Proposed Opinion and Order
Concerning Remedial Elections at 3-4.
'97d. at 4n.2.
207d. at $.
-
In response to petitioners’ comments on the court’s pro-
posed order, respondents continued to insist that section 3
preclearance was required and proposed extending by one
month the time for the County Commission to obtain such
preclearance.?! In addition, petitioners submitted an
alternative reapportionment plan to the Escambia School
Board’s plan, which plan also deliberately was designed to
provide a district with a black population and registered
voter majority, but with .5 percent population deviation.??
Thereafter, respondents opposed petitioners’ conditional
request for section 3 preclearance on the grounds that peti-
tioners had not complied with applicable procedures and
that the December 22, 1981 reapportionment plan did not
meet applicable standards for section 3 preclearance.??
In reply, petitioners emphasized the conditional nature
of their request for preclearance and reiterated their posi-
tion that section 3 preclearance then was not required.**
In the event the court were to conclude differently,
however, petitioners stressed that all procedures and stan-
dards applicable to section 3 preclearance had been
satisfied and that the County Commission’s December 22,
1981 reapportionment plan should be precleared.?*
2'Plaintiffs’ Reply Briefs Concerning Remedial Elections at 1-2.
221d. at 3-6.
23Plaintiffs’ Opposition to County Commissioners’ Motion for Sec-
tion 3 Preclearance of Their Redistricting Plan at 1-3. Respondents
contended that the Justice Department’s regulations for preclearances
sought of the Attorney General under section 5 of the Voting Rights
Act of 1965, 42 U.S.C. § 1973c (1976), 28 C.F.R. §§ 51.1-51.54
(1982), were applicable to section 3 preclearances sought of the district
court. Jd. at 1-2.
24Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Con-
ditional Request for Preclearance at 1-2.
25Jd. at 2-7.
8
On February 9, 1983, the district court held a hearing on
its proposed order and the issues which had arisen in
response thereto. At the outset, however, the court in-
dicated that, on reading this Court’s decision in McDaniel
v. Sanchez, it had come to the conclusion that it and the
Fifth Circuit had erred in adopting Justice White’s
analysis, rather than Justice Powell’s analysis, in Wise v.
Lipscomb?’ for determining whether a remedy a legisla-
tive body adopts and submits to a court may be considered
as a “legislative plan.”?* The court directed the parties to
brief this issue, advised the County Commission that it
could adopt for possible consideration as a “legislative
plan” a remedial election system and reapportionment
plan and directed the parties to brief the issue whether the
“law of the case” doctrine would bar consideration by the
court of the County Commission’s proposal.
Respondents argued that Wise and McDaniel addressed
entirely different issues and that, in McDaniel, this Court
adopted Justice White’s analysis in Wise.?? In any event,
respondents contended that, because McDaniel was not an
intervening decision, the “law of the case” doctrine re-
quired the court to carry out the Fifth Circuit’s mandate.?°
Petitioners agreed with the court that McDaniel adopted
26452 U.S. 130 (1981).
27437 U.S. 535 (1978).
*Transcript of February 9, 1983 hearing at 9-10, 18-19. The court
also rejected respondents’ contention that the Justice Department’s
regulations for preclearances sought of the Attorney General under
section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(c) (1976),
28 C.F.R. §§ 51.1-51.54 (1982), were applicable to section 3 pre--
clearances sought of a district court. /d. at 15.
29Plaintiffs’ Memorandum Brief Concerning McDaniel v. Sanchez
at 2-5.
30Jd, at 10-12.
9
Justice Powell’s analysis in Wise and, therefore, urged the
court to consider the remedy issue in the context in which
it would have been considered but for the court’s decision
in McMillan v. Escambia County, Florida®' to apply
Justice White’s analysis.?? Petitioners contended that the
exception to the “law of the case” doctrine where a prior
decision is clearly erroneous and would work a manifest
injustice was applicable and allowed the court to consider
and to implement the remedy the County Commission had
adopted following the February 9, 1983 hearing.*? That
remedy contained alternative election systems and reap-
portionment plans. Both alternatives provided for a seven-
member county commission with five members to be
elected from single-member districts and two members to
be elected at-large.*4 The alternative preferred by the
County Commission apportioned the county commis-
sioners’ districts according to its December 22, 1981 reap-
portionment plan.?* The other alternative apportioned the
county commissioners’ districts deliberately to provide a
district with a black population and registered voter ma-
jority.*°
On March 10, 1983, the court held a hearing concerning
the materials the parties had submitted following the
February 9, 1983 hearing. The court determined that the
preclearance provisions of section 3 were applicable to the
remedy the County Commission had adopted and also
31PCA No. 77-0432 (N.D. Fla. Sept. 24, 1979). (J.S. at 66a.)
32Defendants’ Memorandum in Response to the Court’s February 9,
1983 Letter at 4-7.
33Jd. at 11-12.
4Id. at Appendix B.
35].
36].
10
that the “no retrogression” standard this Court had enun-
ciated originally in Beer v. United States*’ for preclear-
ances sought under section 5 of the Voting Rights Act of
196538 was inapplicable to section 3 preclearances.** Final-
ly, the court indicated that it was going to implement as its
remedial order respondents’ proposal.
On March 11, 1983, the court issued its remedial
Order.*' With the exception of the precise configuration
of the apportionment plan and the dates of the elections
and terms of those elected, the Order tracks the court’s
December 3, 1979 Order. The March 11, 1983 Order im-
poses a five-member county commission with all members
to be elected from single-member districts and an appor-
tionment plan, with a .5% population deviation, deliber-
ately structured to provide a district with a black popula-
tion and registered voter majority. The Order also retains
the staggered term feature set forth in Fla. Const. art.
VIII, § 1(e) by providing that those elected in the
November |, 1983 general election from districts 1, 3 and 5
shall serve through the general election in 1988 while those
elected from districts 2 and 4 shall serve through the
general election in 1986.**
37425 U.S. 130 (1976).
3842 U.S.C. § 1973c (1976).
**Transcript of March 10, 1983 hearing at 38, 40.
*°fd. at 102.
“'McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. Mar. 11, 1983), appeal docketed, No. 83-3275 (11th Cir. Apr. 27,
1983).
43/d. YF 1, 2.
“fd. 47S.
11
The Memorandum Decision** accompanying the Order
held that the “law of the case” doctrine precluded the court
from considering petitioners’ proposed remedy because,
even though the district court and the Fifth Circuit had er-
red in adopting Justice White’s analysis in Wise, there was
no manifest injustice warranting application of the excep-
tion where a prior decision is clearly erroneous and results
in manifest injustice.** Even if that exception had been ap-
plicable, the court would not have implemented either of
petitioners’ proposed alternatives. By failing to ensure
blacks the opportunity to elect representatives in propor-
tion to their percentage of the population, the court
reasoned that both alternatives failed to satisfy the stan-
dards the court considered applicable to section 3
preclearances, and, in any event, violated the Constitution
and section 2 of the Voting Rights Act of 1965**.47 Ac-
cordingly, the court would have denied section 3 pre-
clearance.*®
On April 11, 1983, petitioners filed a Notice of Appeal
to the United States Court of Appeals for the Eleventh
Circuit of the district court’s March 11, 1983 Order.*? On
“4McMillan v. Escambia County, Fla., 559 F.Supp. 720 (N.D. Fla.
1983), appeal docketed, No. 83-3275 (ilth Cir. Apr. 27, 1983).
45]d. at 722, 725, 730. The court did conclude that the exception to
the “law of the case” doctrine where evidence on a subsequent trial is
substantially different allowed the court to reapportion the county
commissioners’ districts. Jd. at 722, 730.
4642 U.S.C.A. § 1973 (Supp. 1983).
“7McMillan v. Escambia County, Fla., 559 F.Supp. at 726-27, 729,
730.
“"Td,
“*The appeal was docketed on April 27, 1983. McMillan v. Escam-
bia County, Fla., No. 83-3275 (11th Cir. docketed Apr. 27, 1983).
12
April 18, 1983, this Court noted probable jurisdiction over
petitioners’ appeal of the Fifth Circuit’s decision in
McMillan III.5° Thereafter, on May 18, 1983, petitioners
filed with this Court an Application for Stay of Enforce-
ment of Judgment of the United States Court of Appeals
for the Fifth Circuit seeking a stay of the Fifth Circuit’s
decision in McMillan III and district court’s March 11,
1983 Order implementing that judgment as well as an
order allowing elections for the County Commission to be
held, during the pendency of the appeal to this Court,
under the at-large system required by Fla. Const. art.
VIII, § 1(e) and the County Commission’s December 22,
1981 reapportionment plan. On May 26, 1983, Justice
Powell denied petitioner’s application.*!
On June 8, 1983, petitioners filed with the United States
Court of Appeals for the Eleventh Circuit a Motion for
Certification and for Stay of Proceedings requesting the
Eleventh Circuit to certify to this Court all issues pertain-
ing to the district court’s March 11, 1983 Order and ac-
companying Memorandum Decision and/or to stay pro-
ceedings in the Eleventh Circuit pending this Court’s deci-
sion on the appeal of the Fifth Circuit’s decision in
McMillan IIT. Petitioners sought expedited consideration
of their motion. However, as of the date of filing of this
petition, the Eleventh Circuit had not acted, and peti-
tioners determined that the status of their appeal to this
Court did not allow them further to await action by the
Eleventh Circuit.
‘°Escambia County, Fla. v. McMillan, U.S. , 103 S.Ct.
1766 (1983) (No. 82-1295).
‘'Escambia County, Fla. v. McMillan, No. A-939 (No. 82-1295)
(U.S. May 26, 1983).
13
REASONS FOR GRANTING THE WRIT
I. The Questions Presented by This Case Are of
Such Imperative Public Importance as To Re-
quire Immediate Settlement by This Court.
This Court may grant a petition for a writ of certiorari
before judgment where a case is of “such imperative public
importance as to justify the deviation from the normal ap-
pellate practice and to require immediate settle-
ment... .”5? This case concerns one of the most fun-
damental rights the Constitution provides and protects —
the right to vote’? — as well as the preemption by a federal
court of the legislative functions of devising an election
system and a reapportionment plan and the imposition of
a court-ordered election system and apportionment plan
deliberately gerrymandered to provide proportional
representation. As such, this case is of the most imperative
public importance. Indeed, the importance of the case is
reflected by the Court’s decision to note probable jurisdic-
tion over the Fifth Circuit’s decision in McMillan III.
Petitioners have filed this petition so that all issues in-
volved in this case may be resolved at one time rather than
in a piecemeal fashion. The remedial aspects of this case
already are before the Court,** and this petition pertains
solely to that issue. Additionally, the Order which has
given rise to this petition is virtually identical in its terms to
the December 3, 1979 Order the Fifth Circuit affirmed in
McMillan III and which now is before this Court.
However, because the district court recognized that it and
52 Sup. Ct. R. 18.
S3£.g., Dunn v. Blumenstein, 405 U.S. 330, 336 (1972); Reynolds v.
Sims, 377 U.S. 533, 562 (1964); Yick Wo v. Hopkins, 118 U.S. 356,
370 (1886).
*4See J.S. at 26-29.
i4
the Fifth Circuit previously had employed an erroneous
analysis of the remedy issue,** the reasoning underlying
the March 11, 1983 Order is very different from the
reasoning supporting the December 3, 1979 Order.
This suit was filed in March, 1977, and, as a result of its
pendency, elections for the County Commission have not
been held since 1978. Although elections now have been
scheduled for 1983, the election system and apportion-
ment plan which are to govern these elections are inconsis-
tent with the Florida Constitution and statutes and do not -
reflect the legislative judgment of Escambia’s legislative
body but, rather, the policy choices of a federal court.
Given the length of time this suit has been pending and the
uncertainty it has created as to Escambia’s form of govern-
ment, the interests of the people of Escambia will be serv-
ed best by the immediate settlement of all aspects of this
case. In addition, particularly because of the similarity in
terms between the district court’s December 3, 1979 Order
and its March 11, 1983 Order and the close interrelation-
ship between the district court’s actions on remand and the
aspects of the case already before the Court, the interests
of judicial economy will be promoted greatly by the gran-
ting of this petition.
In sum, this case is of imperative public importance not
only to the people of Escambia but to all people
throughout the United States who are governed by of-
ficials elected at-large. The ends of justice will be served
best by the immediate settlement of the issues arising out
of the district court’s March 11, 1983 Order and suppor-
ting Memorandum Decision together with the issues
already before the Court.
‘SMcMillan v. Escambia County, Fla., 559 F.Supp. at 723-25.
15
II. The Misapplication by the District Court of the
“Law of the Case” Doctrine Has Resulted in the
Preemption by the District Court of a Legislative
Task.
On remand, the district court concluded that, in light of
this Court’s decision in McDaniel, both it and the Fifth
Circuit had erred in adopting Justice White’s analysis in
Wise and that Justice Powell’s analysis was controlling.*®
Nevertheless, the court refused to consider any remedial
election system or reapportionment plan the County Com-
mission adopted because the court also concluded that the
“law of the case” doctrine precluded it from doing so.*’
The court recognized that there are exceptions to the
“law of the case” doctrine but rejected petitioners’ conten-
tion that the exception where a prior decision is clearly er-
roneous and would work a manifest injustice applied and,
therefore, allowed the court to reconsider the remedy
issue.** Petitioners had argued that the decision to adopt
Justice White’s analysis was clearly erroneous and that, in
light of this Court’s admonition that “redistricting and
reapportioning legislative bodies is a legislative task which
the federal courts should make every effort not to
$6McMillan v. Escambia County, Fla., 559 F.Supp. at 724. Under
Justice Powell’s analysis in Wise, the determination whether a
remedial election system or reapportionment plan a legislative body
adopts may be considered a “legislative plan,” entitled to legislative
deference, depends solely on whether the legislative body has exercised
its legislative judgment and not whether it has the power, express or
implied, to adopt such a plan. 437 U.S. at 548.
57McMillan v. Escambia County, Fla., 559 F.Supp. at 722, 725.
587d. at 725. This Court recently recognized this exception to the
“law of the case” doctrine. Arizona v. California, U.S. F
___, n.8, 103 S.Ct. 1382, 1391 n.8 (1983).
16
preempt,”** manifest injustice would result if the court did
not revisit the remedy issue and consider as a “legislative
plan” the remedy the County Commission adopted follow-
ing the February 9, 1983 hearing.*®°
While recognizing that the decision to adopt Justice
White’s analysis in Wise was clearly erroneous, the court
held that no manifest injustice would result because the
remedy the County Commission originally had adopted
would not have provided an adequate remedy for the
violations the court found to exist.*' The reasoning
underlying the court’s holding, however, is totally at odds
with decisions of this Court.
After noting that blacks had comprised approximately
twenty (20) percent of Escambia’s population and seven-
teen (17) percent of its registered voters, the court com-
pared the remedy it created in its December 3, 1979 Order
to petitioners’ proposed remedy and criticized petitioners’
proposal because “the [Court’s] plan was arranged so as to
provide . . . [blacks] with an opportunity to elect member-
ship to the commission in proportion to their population
percentage” whereas petitioners’ proposal “called for a
59 Wise, 437 U.S. at 539.
6°Defendants’ Memorandum in Response to the Court’s February 9,
1983 Letter at 4-6, 12-14.
*'McMillan v. Escambia County, Fla., 559 F.Supp. at 725. The pro-
posed remedy to which the court was referring was the ordinance the
County Commission adopted in 1978 following the Court’s decision
striking down the at-large election system. See generally, J.S. at 10.
Except for the apportionment of the county commissioners’ districts
occasioned by the 1980 census, the remedy the County Commission
proposed in 1978 is similar to the remedy it proposed following the
February 9, 1983 hearing. Compare Notice of Adoption of Ordinance
Amending Election Plan with Defendants’ Memorandum in Response
to the Court’s February 9, 1983 Letter at Appendix B.
17
seven member commission...” and “would, at most,
provide blacks with an opportunity to elect 14% rather
than 20% of the commission’s membership.”*? This Court,
howevei, consistently has held that minorities are not en-
titled to proportional representation.** The district court,
therefore, erroneously rejected petitioners’ proposed
remedy for failing to guarantee respondents something to
which they are not entitled.®
*2McMillan v. Escambia County, Fla., 559 F.Supp. at 724-25.
$3E.g., White v. Regester, 412 U.S. 755, 765-66 (1973); Whitcomb
v. Chavis, 403 U.S. 124, 149-50 (1971).
**Based on this Court’s holding in White v. Weiser, 412 U.S. 783
(1973), that “[iJn fashioning a reapportionment plan or in choosing
among plans, a district court should not pre-empt the legislative task
nor ‘intrude upon state policy any more than necessary,’” 412 U.S.
at 795 (quoting Whitcomb v. Chavis, 403 U.S. 124, 160 (1971), the
court also criticized petitioners’ proposed remedy for being contrary
to state policy and the will of the people of Escambia. McMillan v.
Escambia County, Fla., 559 F.Supp. at 725. The Court determined
that the provision in Fla. Const. art. VIII, § 1(e) providing for non-
charter counties to be governed by five-member county commissions
established a “five member state policy” and that the defeat by the
voters of Escambia of a charter proposal which, inter alia, provided
for a seven-member county commission, with five members to be
elected from single-member districts and two members to be elected
at-large, reflected opposition to a seven-member commission. Jd. (The
circumstances surrounding the rejection of the charter proposal are
discussed more fully in the Jurisdictional Statement at 10-12.)
There are a variety of flaws in the court’s reasoning. First, as is ap-
parent from even a cursory reading of Weiser, the language of the opi-
nion on which the court relied applies only to court-ordered plans and
not to “legislative plans.” Accord Upham v. Seamon, U.S. .
—___., 102 S.Ct. 1518, 1521 (1982) (“We held... [in Weiser] that. . . in
choosing between two possible court-ordered plans. . . .” (Emphasis
added.)) Moreover, even if the language were applicable, Florida does
not have a state policy favoring five-member county commissions.
While Fla. Const. art. VIII, § 1(e) provides for five-member county
commissions, it does so only for non-charter counties and, then, only
in the context of an election system whereby all commissioners are
18
The district court and the Fifth Circuit clearly erred in
adopting Justice White’s analysis in Wise, and manifest in-
justice has resulted because the court imposed its own elec-
tion system and reapportionment plan, gerrymandered to
provide proportional representation, instead of allowing
the County Commission to perform one of its legislative
functions. As a result, the “law of the case” doctrine did
not require the court to ad ere to the Fifth Circuit’s man-
date,** and the court should have reconsidered the remedy
issue. °¢
elected at-large. In addition, Fla. Const. art. VIII, § 1(f); Fla. Stat.
§§ 125.001-125.74, 125.80-125.88 (1981 & Supp. 1982) provide
Florida’s counties, including its non-charter counties, with broad
home rule powers. Included among these powers is the power to adopt
a charter which provides for a governing body of more than five
members. Accordingly, Fla. Const. art. VIII, § 1(e) properly may not
be the basis for rejecting the County Commission’s proposed remedy.
Similarly, the defeat of the charter proposal also may not serve as
the basis for rejecting the County Commission’s proposal. As is
typical of charters, this charter proposal covered a wide variety of
areas entirely unrelated to the proposed composition of the county
commission. Further, the charter proposal provided for five of the
seven members to be elected from single-member districts. The court
cited no evidence in the record, and none is available, to show that the
defeat of the charter proposal was in any way related to the proposed
size of the county commission. The defeat could have been based on a
variety of considerations completely independent of the proposed size
of the commission, including the provision for some commissioners to
be elected from single-member districts.
In view of the Fifth Circuit's recognition in McMillan I// that “[i}n
this case . . . we are presented with a fact situation that . . . under
Justice Powell’s analysis would be considered a legislative plan,” 688
F.2d at 972 n. 25 (J.S. at 28a), it is apparent that, if the Fifth Circuit
had adopted Justice Powell’s analysis, it would have reached an entire-
ly different result on the remedy issue.
**Even assuming there were defects in petitioners’ proposed remedy,
the court should have identified the precise defects and allowed the
County Commission to adopt another proposal correcting these
defects.
19
Ill. This Court Never Has Addressed the Pre-
clearance Provisions of Section 3, and the Issues
the District Court’s Opinion Presents Are Likely
To Be Present in Other Cases in Which Violations
in Voting Practices or Procedures Are Found.
This Court never has addressed any issue concerning the
preclearance provisions of section 3. The language and
legislative history of section 3 suggest results very different
from the determinations the district court in this case
made. As more and more cases are brought challenging
voting practices and procedures, the issues the district
court’s opinion presents are likely to reappear in those
cases in which violations of the voting guarantees of the
fourteenth or fifteenth amendment are found. This case
presents the court the opportunity to resolve issues per-
taining to the preclearance provisions of Section 3 and,
thereby, to provide guidance te all other courts faced with
these issues.
A. The Preclearance Provisions of Section 3 Do
Not Apply During the Remedy Phase of a
Case but Only to Subsequent, Proposed
Changes Affecting Voting.
Recognizing the possibility that its holding on the “law
of the case” issue may have been incorrect, the court next
addressed the merits of the remedy the County Commis-
sion adopted and petitioners submitted to the court
following the February 9, 1983 hearing and determined
that it would have denied petitioners’ proposed remedy
section 3 preclearance.*’ Implicit in this determination is
the assumption that section 3 preclearance is required dur-
ing the remedy phase of a case. The language of section 3,
*’McMillan v. Escambia County, Fla., 559 F.Supp. at 726.
20
however, indicates that this assumption was incorrect and
that preclearance is required only for changes affecting
voting which a state or political subdivision seeks to en-
force subsequent to a judgment finding that a violation of
the voting guarantees of the fourteenth or fifteenth
amendment has occurred within that state or political sub-
division and the imposition of the remedy for the viola-
tions found. In relevant part, section 3 provides:
If in any proceeding instituted by the Attorney
General or an aggrieved person under any statute
to enforce the voting guarantees of the four-
teenth or fifteenth amendment in any State or
political subdivision the court finds that viola-
tions of the fourteenth or fifteenth amendment
justifying equitable relief have occurred within
the territory of such State or political subdivi-
sion, the court, in addition to such relief as it
may grant, shall retain jurisdiction for such
period as it may deem appropriate and during
such period no voting qualification or prere-
quisite to voting or standard, practice or pro-
cedure with respect to voting different from that
in force or effect at the time the proceeding was
commenced shall be enforced unless and
until... .6
Had Congress wanted to require section 3 preclearance
of remedial election systems, reapportionment plans, etc.
adopted by a legislative body, it would have made the
preclearance provisions applicable in conjunction with the
relief implemented by the court rather than as a measure
separate from, and in addition to, the remedy. Further,
preclearance, at least under section 5, is a time consuming
and often burdensome process. The imposition of such a
requirement duririg the remedy phase of a case may serve
¢*(Emphasis added.)
21
only to prolong unnecessarily the resolution of a case. In
view of these considerations, this Court should not allow
to stand the district court’s interpretation of section 3 and
its resulting rejection of the County Commission’s propos-
ed remedy for failing to satisfy the standards it perceived
for section 3 preclearance.
B. The Principles Applicable to Preclearances
Under Section 5 Should Be Applicable to
Preclearances Under Section 3.
1.The “No Retrogression” Standard This
Court Has Enunciated for Section 5 Pre-
clearances Should Govern Section 3 Pre-
clearances.
Both parties agreed that the “no retrogression” standard
this Court articulated originally in Beer also should be ap-
plicable to section 3 preclearances.*? The court, however,
disagreed.”° While recognizing that the preclearance
language of sections 3 and 5 largely are identical, the court
determined that, because the preclearance provisions of
each section attach in different contexts, preclearance
under section 3 “involves no retrogression principle.”’!
The court opined that, if the “no retrogression” stan-
dard were applicable to section 3 preclearances,
defendants could adopt almost any form of
discriminatory voting practice, and it would not
be subject to preclearance because it would not
69See, e.g., Plaintiffs’ Memorandum Brief Concerning McDaniel v.
Sanchez at 7-8; Defendants Memorandum in Response to the Court’s
February 9, 1983 Letter at 7-11.
7°McMillan v. Escambia County, Fla., 559 F.Supp. at 728.
"Id.
22
be worse discrimination than the plan here found
to be invalid. Only if such practice was also un-
constitutional or violated section 2 [of the Voting
Rights Act of 1965] would it be subject to the
preclearance test of section 3.
Unlike section 5, section 3 was not designed to
preserve the status quo. To the contrary, section
3 was designed . . . to prevent a political subdivi-
sion found in violation of the constitution [sic]
from performing an end run around and cir-
cumventing the court’s holding by enacting a new
voting plan that was no worse than the one that
was in effect at the time the suit was instituted.’?
The court’s distinction does not withstand scrutiny.
The court incorrectly assumed that, if the “no retrogres-
sion” standard were applicable to section 3 preclearances,
legislative bodies could implement discriminatory voting
practices or procedures as long as those practices or pro-
cedures were no worse than the practices or procedures
which a court invalidated. In Beer, however, this Court
specifically held that a proposed change affecting voting
which otherwise satisfies the “no retrogression” standard
still may not be precleared under section 5 if it also “so
discriminates on the basis of race as to violate the Con-
stitution.”’? The same, of course, would be true of section
72]d. at 728-29. As set forth in the opinion, the court incorrectly has
set forth the effect of the “no retrogression” test. That standard does
not obviate the need for preclearance if the standard is satisfied.
Rather, it allows a proposed change affecting voting to be precleared
if it does not effect “a retrogression in the position of racial minorities
with respect to their effective exercise of the electoral franchise.” Beer,
425 U.S. at 141.
"1d.
23
3 preclearances. Moreover, both section 5 and section 3
expressly provide that prec!earance of a proposed change
affecting voting “shall [not] bar a subsequent action to en-
join enforcement of such qualification, prerequisite, stan-
dard, practice or procedure.”
As is reflected by the virtual identity of language, the
preclearance provisions of section 3 have the same purpose
and effect as the preclearance provisions of section 5, i.e.,
to require the covered state or political subdivision to ob-
tain approval of any proposed change affecting voting as a
condition of implementing the proposed change. This is
confirmed by the legislative history of section 3 which, in
relevant part, provides: “This section makes additional
remedies available to deal with denials or abridgments of
the right to vote in the so-called ‘pockets of discrimination’
— that is, areas outside the States and political subdivi-
sions as to which the prohibitions of section 4(a) [of the
Voting Rights Act of 196574] are in effect.”’5 As such, sec-
tion 3 simply was intended to provide a means of subjec-
ting to preclearance areas not already subject to section 5
preclearance.
The difference between section 3 and section 5 is the
triggering event. Preclearance under section 3 is triggered
by a judicial decision that the voting guarantees of the
fourteenth or fifteenth amendment have been violated.
7442 U.S.C.A. § 1973b(a) (Supp. 1983).
75H.Rep. No. 439, 89th Cong., Ist Sess. 23, reprinted in 1965 U.S.
Code Cong. & Ad. News 2437, 2454. Subsection 4 (a), 42 U.S.C.A.
§ 1973b(a) (Supp. 1983), prohibits the use of tests or devices in
jurisdictions with respect to which the determinations described in
subsection 4(b) of the Voting Rights Act of 1965, 42 U.S.C.
§ 1973b(a) (1976), have been made, and, as discussed at 24 injra,
the determinations described in subsection 4(b) trigger the preclear-
ance provisions of section 5.
24
Preclearance under section 5 is triggered by determina-
tions by the Attorney General and the Director of the Cen-
sus under subsection 4(b) of the Voting Rights Act of
1965’° that, on one of three, specified dates, a state or
political subdivision maintained, as a prerequisite to
voting or registration, a test or device and also that, on the
same date, less than fifty (50) percent of voting age per-
sons in that state or political subdivision were registered to
vote.
While the triggering events differ, the preclearance pro-
visions of sections 3 and 5 identically require jurisdictions
which have been determined to have engaged in voting
practices proscribed by the Constitution or statutes to ob-
tain prior approval of any proposed change affecting
voting. In consequence, the “no retrogression” standard
which governs section 5 preclearances also should govern
section 3 preclearances.
2. The Retrogression Baseline Under Section
3 for Determining Whether the “No
Retrogression” Standard Has Been
Satisfied Is the Practice or Procedure in
Effect When the Suit is Brought.
Because the district court was of the opinion that the
“no retrogression” standard was inapplicable to section 3
preclearances, it did not address specifically the issue of
the proper retrogression baseline under section 3. The
opinion, however, indicates that the court would not have
considered the retrogression baseline to be the voting prac-
tice or procedure in effect when the suit was commenced,
but, rather, the practice or procedure contained in the
district court’s December 3, 1979 remedial Order.’’
7642 U.S.C. § 1973b (b) (1976).
See McMillan v. Escambia County, Fla., 559 F.Supp. at 728,
729-30. The suggestion that the retrogression baseline would be the
25
The language of section 3 and the analogy to section 5,
however, leave no doubt that the retrogression baseline for
determining whether a proposed change affecting voting
may be precleared is the practice or procedure in effect
when the suit is brought. As previously discussed, sec-
tion 3 preclearance is required where, following a decision
finding a violation of the voting guarantees of the four-
teenth or fifteenth amendment and the implementation of
a remedy, the covered state or political subdivision enacts,
during the period for which the court has retained jurisdic-
tion, any “voting qualification or prerequisite to voting or
standard, practice, or procedure with respect to voting dif-
ferent from that in force or effect at the time the pro-
ceeding was commenced... .” Similarly, preclearance
under section 5 is required where a covered state or
political subdivision seeks to enact or administer “any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different
from that in force or effect” on the specified date
preceding the determinations made under subsection 4(b).
In City of Lockhart v. United States,’* this Court
recently held that, for purposes of determining whether a
proposed change affecting voting satisfies the “no
retrogression” standard for section 5 preclearance, the
retrogression baseline is the practice or procedure “actual-
ly in effect” on the specified date preceding the determina-
tions made under subsection 4(b).’”? The Court based
practice or procedure set forth in the court’s remedial order, of course,
refutes the court’s assumption that the preclearance provisions of sec-
tion 3 are applicable during the remedy phase of the case.
7 U.S. 103 S.Ct. 998 (1983).
19Id. at , 103 S.Ct. at 1002. By emphasizing that the
retrogression baseline is the practice or procedure “actually in effect,”
the Court also has resolved any suggestion that the remedy contained
in its December 3, 1979 Order could serve as the retrogression
26
this determination “on the plain reading of the section’s
language.”*° The plain reading of the preclearance
language of section 3 similarly leaves no doubt that the
retrogression baseline for section 3 preclearances is the
practice or procedure actually in effect on the specified
date preceding the decision giving rise to coverage under
section 3, i.e., the practice or procedure in effect when the
suit is commenced.
baseline. Prior to the February 9, 1983 hearing, during which the
court advised the County Commission to adopt for possible con-
sideration as a “legislative plan” a remedial election system and reap-
portionment plan, the issue before the court was limited to the reap-
portionment plan to be instituted for the next elections. In its
Memorandum Decision, the court incorrectly suggests that, if the “no
retrogression” standard had been applicable, the reapportionment
plan set forth in its December 1979 Order would have been the
retrogression baseline. McMillan v. Escambia County, Fla., 559
F.Supp. at 729-30.
The last elections for the County Commission were held in 1978,
and no elections for the County Commission have been neld under the
December 3, 1979 Order. On March 10, 1980, the Fifth Circuit stayed
the December 3, 1979 Order, McMillan v. Escambia County, Fla.,
No. 78-3507 (Sth Cir. Mar. 10, 1983), and the stay remained in effect
through the Fifth Circuit’s issuance of the mandate in McMillan III.
While the stay was in effect, the 1980 census was published, and, based
thereon, the County Commission, on December 22, 1981, adopted a
reapportionment plan. Accordingly, by the time the Fifth Circuit
issued its opinion in McMillan IIT, the issue of the validity of the reap-
portionment plan set forth in the December 3, 1979 Order was moot,
and the Fifth Circuit’s decision, while silent on the reapportionment
issue, may not be read as having affirmed the portion of the December
3, 1979 Order imposing a court-ordered reapportionment plan but,
rather, only that portion of the Order directing the county commission
to reapportion the county commissioners’ districts following each
decennial census. For these reasons, and the reasons set forth at
24-26 supra and infra, the December 3, 1979 Order, under no cir-
cumstances, could serve as the retrogression baseline.
*©Lockhart, U.S. , 103 S.Ct. at 1003.
27
Applying as the retrogression baseline the election
system and apportionment plan in effect when the suit was
brought, both alternative remedial election systems and
reapportionment plans the County Commission adopted
following the February 9, 1983 hearing more than satisfy
the “no retrogression” standard this Court articulated in
Beer and, most recently, in Lockhart. When the suit was
commenced, all five county commissioners were elected
at-large and blacks comprised thirty-two (32) percent of
the registered voters and approximately fifteen (15) per-
cent of the population in one district and lesser percen-
tages in other districts.*' Both alternatives the County
Commission adopted provide for five county commis-
sioners to be elected from single-member districts and two
county commissioners to be elected at-large.*? One alter-
native apportions the county commissioners’ districts ac-
cording to the County Commission’s December 22, 1981
reapportionment plan, which established one district in
which blacks comprised forty-one (41) percent of the
registered voters and forty-eight (48) percent of the
population.*? The other alternative deliberately pro-
vides a district in which blacks comprise a majority of the
population and the registered voters.** Under these cir-
cumstances, the court should have precleared both alter-
natives the County Commission adopted.**
*'Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Con-
ditional Request for Preclearance of Reapportionment Plan, Af-
fidavit of Joe Oldmixon 44 4, 5. (Mr. Oldmixon is the Supervisor of
Elections for Escambia.)
*2Defendants’ Memorandum in Response to the Court’s February 9,
1983 Letter at Appendix B, Exhibits A, B.
83Jd. at Exhibit A.
847d. at Exhibit B.
*5Just as section 5 requires additionally a finding that a proposed
change affecting voting does not have the purpose of denying or
abridging the right to vote on account of race, section 3 also requires
28
IV. An Election System or Reapportionment Plan a
Legislative Body Adopts for the Purpose of
Remedying Violations a Court Has Found To
Exist and Which Has Not Been Implemented
Cannot Violate the Constitution or Section 2.
In an effort to provide fox all possible contingencies so
as to ensure the result it desired, the court determined that,
such a determination. The proposed changes the County Commission
adopted were adopted for the purpose of providing a remedy for the
violations the court found to exist. As such, no discriminatory pur-
pose was ascribed to the County Commission’s actions, and none may
be found.
Prior to the February 9, 1983 hearing, when the issue was limited to
the apportionment of the county commissioners’ districts, respondents
acknowledged that the County Commission’s December 22, 1981
reapportionment plan had been adopted free of racial considerations
but, nevertheless, suggested that the plan had been adopted for a
discriminatory purpose. Plaintiffs’ Opposition to County Commis-
sioners’ Motion for Section 3 Preclearance Redistricting Plan at 4-5.
In support of their suggestion, respondents contended that the County
Commission could have adopted the same reapportionment plan the
Escambia School Board had adopted, following publication of the
1980 census, and the court had approved for elections to the Escambia
School Board. /d.
As petitioners observed in reply, a reapportionment plan may not
be adopted both free of racial considerations and also for a
discriminatory purpose. Defendants’ Reply to Plaintiffs’ Opposition
to Defendants’ Conditional Request for Preclearance of Reapportion-
ment Pian ai 5. Petitioners further pointed out that the County Com-
mission had adopted its reapportionment plan more than six (6)
months before the Escambia School Board adopted its plan. /d. at 6.
In addition, the County Commission adopted its plan following the
Fifth Circuit’s decision in McMillan v. Escambia County, Fla., 638
F.2d 1239 (Sth Cir. 1981), vacated, 688 F.2d 960 (Sth Cir. 1982), prob.
Juris. noted, US. , 103 S.Ct. 1766 (1983) (No. 82-1295),
upholding the at-large system of electing Escambia’s County Commis-
sions, under which system the racial composition of residency districts
is immaterial to the election of minority candidates. Defendants’ Rep-
ly to Plaintiffs’ Opposition to Defendants’ Conditional Request for
Preclearance at 7. Under these circumstances there is no basis for any
suggestion that the County Commission adopted its December 22,
1981 reapportionment plan for a discriminatory purpose.
29
regardless of the applicable standard, “defendants’ plans
do violate the constitution [sic] and section 2 of the Voting
Rights Act... .”86 The Court provided no reasons for
this determination other than the reasons which had led it
to conclude that the manifest injustice exception to the
“law of the case” doctrine was inapplicable, i.e., peti-
tioners’ proposed remedy did not guarantee respondents
the opportunity to elect county commissioners in propor-
tion to their percentage of the population.*’ Petitioners’
discussion of the reasons why the court’s holding on the
“law of the case” doctrine was erroneous, at 15-18 supra, is
applicable here and shows that petitioners’ proposed
remedy neither violates the Constitution nor section 2.**
Additionally, as discussed at 27 n. 85 supra, petitioners’
proposals were adopted for the purpose of providing a
remedy for the violations the court found to exist, and
there was no contrary evidence or finding of dis-
criminatory purpose. Hence, the proposals do not violate
the Constitution.
*6McMillan v. Escambia County, Fla., 559 F.Supp. at 729. While
the court did not specify which provision or provisions of the Con-
stitution petitioners’ proposals violate, it is reasonable to assume that
the court was referring to the fourteenth amendment or, arguably, the
fifteenth amendment. To establish a violation, both provisions require
a finding of discriminatory purpose. Rogers v. Lodge, U.S.
, 102 S.Ct. 3272, 3275-76; City of Mobile, Ala. v.
Bolden, 446 U.S. 55, 62, 66-67, 102 (1980) (plurality opinion and
dissenting opinion of Justice White).
*’Section 2 expressly provides that minorities are not entitled
thereunder to proportional representation.
**The issues concerning Florida’s state policy and the defeat of the
charter proposal have no bearing on the constitutionality or the validi-
ty under section 2 of petitioners’ proposed remedy. However, assum-
ing arguendo, they do have some bearing, petitioners’ response to the
court’s reasoning, as set forth at 17 n. 64 supra, is equally applicable
here.
30
Petitioners’ proposals also do not violate section 2
because neither proposal ever was put into effect. A viola-
tion of amended section 2 is established only if the
challenged practice or procedure “results in a denial or
abridgment of the right of any citizen of the United States
to vote on account of race... .”8° Elections have not
been held under either of petitioners’ proposals, and, ac-
cordingly, neither proposal violates section 2.
CONCLUSION
For the foregoing reasons, the Court should grant this
petition for a writ of certiorari before judgment to the
United States Court of Appeals for the Eleventh Circuit.
Respectfully submitted,
CHARLES S. RHYNE
Counsel of Record
J. LEE RANKIN
THOMAS D. SILVERSTEIN
Rhyne & Rankin
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
THOMAS R. SANTURRI
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
Attorneys for Petitioners
*%(Emphasis added.)
| la
APPENDIX A
March 11, 1983 Order and Memorandum Decision
in McMillan v. Escambia County, Florida
1. Order
IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, ef ai., PCA 77-0432
Plaintiffs,
VS.
ESCAMBIA COUNTY, FLORIDA, et al.,
Defendants. OFFICE OF CLERK
U.S. DISTRICT OF
NORTH DIST., FLA.
PENSACOLA, FLA.
1983 MAR 11 PM 4:29
FILED
ORDER
Pursuant to and in accordance with memorandum deci-
sion of this date, it is
ORDERED as follows:
1. For the purpose of electing members of the Escam-
bia County Board of County Commissioners, Escambia
County shall be reapportioned into five single-member
districts, the numbers and boundaries of which shall con-
form to the five districts shown on Exhibit A attached
hereto. A map of the county showing such districts shall
be available for inspection in the office of the clerk of this
court.
2a
2. At the scheduled primary and general elections, as
set forth in this order, commissioners representing all five
single-member districts shall then be elected; provided,
however, the court retains the power to alter the dates of
the aforesaid elections, upon the appropriate motion of
one or more of the parties, or upon its own motion, depen-
ding in particular upon the course of future events in con-
nection with the appeal now pending to the Supreme
Court of the United States from the decision of the Court
of Appeals affirming the judgment of the court, or any ap-
peal from this order.
3. The first election for members of this Board of
County Commissioners shall be held in accordance with
the schedule set out in this order.
4. Qualifying for the Escambia County Board of
County Commissioners shall be opened at noon, July 5,
1983, and closed at noon, July 19, 1983. The first party
primary election shall be held on Tuesday, September 13,
1983 with any necessary primary runoff election held on
Tuesday, October 4, 1983. The general election shall be
held on Tuesday, November 1, 1983.
S. Those elected at the elections scheduled in this order
shall serve the terms set forth herein.
Those elected from Districts 1, 3, and 5 shall serve a
term commencing on the second Tuesday following such
election and continuing through the general election in
1988, with terms expiring on the Monday immediately
preceding the second Tuesday after such general election.
Those elected from Districts 2 and 4 shall serve terms com-
mencing on the second Tuesday following such election
and continuing through the general election in 1986, with
terms expiring on the Monday immediately preceding the
second Tuesday after such general election.
3a
In elections held in 1986, and 1988, and thereafter, all
members shall be elected for four-year terms, with terms
commencing and expiring as provided by the law of
Florida.
The court intends by this order to preserve the staggered
terms now provided by the law of Florida for the members
of this commission, as well as, to the extent practical, to
preserve the seginning and ending dates and the length of
terms of office now provided by the law of Florida. If,
during the period of time this court retains jurisdiction of
this action, there is any change in the law of Florida
respecting these matters, the court reserves the power on
motion of one or more parties, or on its own motion, to
alter or change the requirements of this order to conform
with the changed requirements of Florida law.
6. Following the publication of each federal decennial
census, the districts from which members of the Escambia
County Board of County Commissioners are elected shall
be reapportioned to fairly comply with one-person, one-
vote requirements and the orders or judgments of this
court.
It is further ORDERED AND ADJUDGED that the
defendants Escambia County, the Board of County Com-
missioners of Escambia County, Gerald Woolard, Ken-
neth Kelson, John E. Frenkel, Jr., Marvin Beck, and Billy
G. Tennant, individually and in their official capacities as
members of the Escambia County Board of County Com-
missioners; Joe Oldmixon, individually and in his official
capacity as Supervisor of Elections for Escambia County,
their successors, officers, agents servants, employees, and
attorneys, and those persons in active concert or participa-
tion with them who receive actual notice of this order by
personal service or otherwise, are hereby enjoined from
failing to:
4a
(A) Redistrict and reapportion as set out above; and
(B) Make and hold the elections as redistricted and
ordered above.
Pursuant to 42 U.S.C. § 1973a, the court retains
jurisdiction of this action for a period of five years unless
such period is shortened or extended by further order of
this court. During the period of retained jurisdiction, no
voting qualification or prerequisite to voting, or standard,
practice or procedure with respect to voting different from
that in force or effect at the time this action was commenc-
ed shall be enforced unless and until the court finds that
such qualification, prerequisite, standard, practice, or
procedure does not have the purpose and will not have the
effect of denying or abridging the right to vote on account
of race or color; provided that such qualification, prere-
quisite, standard, practice, or procedure may be enforced
if the qualification, prerequisite, standard, practice, or
procedure has been submitted by the chief legal officer or
other appropriate official of Florida or of Escambia
County to the Attorney General of the United States and
the Attorney General has not interposed an objection
within sixty days after such submission, except that neither
this court’s finding nor the Attorney General’s failure to
object shall bar a subsequent action to enjoin enforcement
of such qualification, prerequisite, standard, practice or
procedure.
DONE AND ORDERED this 1 Ith day of March, 1983.
/s/
WINSTON E. ARNOW, Senior Judge
Sa
PLAINTIFFS’ PLAN B
Summary
Optimum Districts = 46,479
District Population Deviation
I 46,368 — .002
II 46,481 + .00004
III 46,456 — .0004
IV 46,628 + .003
V 46,462 — .0003
Max. deviation + .005
District 3 contains 63.5% black population and 55.7%
black registered voter majorities.
DISTRICT I
oO
REG. VOTERS
276
113
58
32
34
82
$7
59
71
77
81
104
84
102
103
TOTAL
POP.
1255
9920
7675
1164
2846
3342
1254
2202
2151
3453
4728
1376
2545
2570
DISTRICT II
46,481
Ww B O
882 321 52
9215 373 332
6531 714 430
832 240 92
2336 396 114
203
1067 131 56
2086 56 60
1991 124 36
2927 386 140
4255 318 155
442 912 22
2270 228 47
2250 225 95
4,627
REG. VOTERS
395
1454
865
1056
914
1865
)
—
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4
PCT POP.
4 3310
35
42
64
66
96 26949
100
106
107
110
114
46 1306
51 2291
63W? 497
108 3994
39 1380
40 2592
93 1800
94 1789
13E! 720
TOTAL 46,628
Ww B
3196 28
25018 1485
1286 10
2069 158
460 13
3730 163
1220 121
2131 437
1141 618
1771 5
638 59
42,660 3,097
DISTRICT IV
O
86
REG. VOTERS
1726
2607
1192
1716
Bias
1384
942
1396
1533
WwW B
1704 15
2566 33
1174 14
1662 44
396 7
1371 1]
649 293
1381 1]
1519 11
1716 60
1402 10
938 3
833 62
260 5
1703 54
843 35
1574 215
734 223
959 1
347 24
23,731 1,131
°)
DiGuimouvcaneauvanswuwe Bae a
&
PCT. POP. Ww B
6 2684 2504 140
7 2477 2411 33
8 2561 2479 30
10 522 489 7
11 956 646 290
16 237 205 9
18 859 848 0
19 2953 2410 508
20 1189 655 526
21 3796 2352 1404
22 1670 871 785
23 1289 1270 16
33 1030 1003 6
36 2564 1913 617
37 4318 4170 56
45 428 412 0
53 4350 3046 1214
69 2030 1313 680
101 2966 2730 151
111 1971 1820 68
112 2326 2238 38
70 1985 1844 93
63E? 1301 1216 65
TOTAL 46,462 38,845 6,736
DISTRICT V
O
REG. VOTERS
889
1291
1178
WwW B
876 11
1279 9
1170 7
251 0
315 51
88 1
327 0
1086 152
199 97
950 322
477 330
372 1
374 0
774 117
1951 27
165 0
1171 359
477 201
1098 40
892 11
952 13
1155 50
687 22
17,086 1,821
w
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§ 417 to 421, 423 to 428, 503, 504, 508 and 509.
E contains 720 persons of whom 59 are black and 23
S 611, 612, 613, 614, 615, 616 and 618.
s 101, 102, 129, 130, 143.
ing census divisions:
paths <~_aitaem
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Precinct 63 is divided into 63E and 63W. Precinct 63W consists of KS 0 ’ . Sikes ie lg
the following census divisions:
Ferry Pass Tract 35.01
Blocks 205; 206; 226; 228; 234-239 and 241.
It has 497 persons, 13 are black and 24 are “other.”
Estimates of registered voters in each portion of the two split
precincts (13 and 63) were made by assuming that within each precinct
each race registered to vote at the same rate through the precinct. Thus
in precinct 13W population by race was known from the census. Also
registered voters by race and population by race were known for the
entire precinct. For example, blacks registered at the rate of 41.3% in
precinct 13, so it is assumed that the 59 blacks in precinct 13E
registered at the same rate, hence 24 black registered voters in precinct
13E. 638 whites registered at the rate of 54.4% or 347 white registered
voters in precinct 13E. The same procedure was used in precinct 63.
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2. Memorandum Decision
Henry T. McMILLAN, et al., Plaintiffs,
Vv.
ESCAMBIA COUNTY, FLORIDA, et
al., Defendants.
No. PCA 77-0432.
United States District Court,
N.D. Florida,
Pensacola Division.
March 11, 1983.
* * *
James U. Blacksher and Larry T. Menefee, Mobile,
Ala., for plaintiffs.
Paula G. Drummond, County Atty., Pensacola, Fla.,
Thomas Silverstein, Charles S. Rhyne, Washington, D.C.,
for defendants.
MEMORANDUM DECISION
ARNOW, Senior District Judge.
This cause is before this court on remand from the
Court of Appeals for the Fifth Circuit, 688 F.2d 960 (Sth
Cir. 1982). The decision of the Court of Appeals affirms a
remedial plan adopted by this court in 1979 and, in view of
the passage of time, instructs this court to revise the
scheduling terms of its remedial order, 688 F.2d at 973.
Defendants’ petition for a stay has been denied by both the
Court of Appeals and a justice of the Supreme Court of
the United States.
By letter dated November 29, 1982 this court instructed
the parties to submit proposed election plans and
schedules on or before December 21, 1982. Plaintiffs and
.
lda
defendants submitted their respective proposals and this
court conducted a hearing on December 28, 1982 at which
the parties were given the opportunity to be heard in oral
argument in support of their proposals.
In its return of the case to this court, the Court of Ap-
peals remanded with instructions to revise the scheduling
terms of the remedial order. However, all parties, in-
cluding the defendant Supervisor of Elections, agreed
that, in light of the intervening 1980 federal decennial cen-
sus, the single-member district boundaries contained in
this court’s 1979 order are now malapportioned on a
population basis.
To this court, the Court of Appeals’ decision has
established the law of this case. However, one of the ex:
ceptions to the law of the case doctrine is where the
evidence on a subsequent trial is subs‘antially different.
White v. Murtha, 377 F.2d 428 (Sth Cir. 1967); U.S. v.
Robinson, 690 F.2d 869 (11th Cir. 1982); Baumer v. U.S.,
685 F.2d 1318 (11th Cir. 1982).
Evidence now presented respecting malapportionment
requires revision of the division boundaries in its prior
order to provide compliance with the one-person one-vote
rule.
At the hearing on December 28, 1982 all parties were in
agreement also about the timetable for conducting new
elections in the fall of 1983, citing substantial practical dif-
ficulties in holding county commission elections at the
same time as Pensacola city elections in the spring of 1983
or holding county commission elections shortly thereafter
in the summer of 1983.
However, they disagreed sharply over the form of the
election scheme that should be included in this court’s
order. Plaintiffs urged this court to order county commis-
15a
sion elections held pursuant to the five single-member
district plan adopted for the Escambia County School
Board by order dated July 1, 1982.' Defendants, on the
other hand, contended that the elections should be held on
an at-large basis utilizing residence subdistricts that had
recently been drawn by the county commissioners pur-
suant to the authority provided them by the genera! law of
Florida governing at-large county commission elections.
At the hearing on December 28, 1982, and at a conference
in chambers following the hearing, additional problems
and questions were suggested concerning a draft order that
had been proposed by the court.
It had been suggested that, unless there was some legal
reason why such could not be done, it would be well for
the five county commission districts to conform to the
boundaries of the election districts of members of the
Escambia County Board of Education. The thought ad-
vanced was that such would probably make for less voter
confusion and, in addition, would probably be easier for
the election officials in setting up elections.
This was done in the court’s order of December 3, 1979,
approved on appeal; the same districts for the five member
Board of County Commissioners as approved were the
same as those previously approved for the Escambia
County Board of Education.
Because of population changes, disclosed by the 1980
decennial census, heretofore the Escambia County School
Board submitted to this court a revised election plan. This
court on hearing concerning it found that it complied with
constitutional and legal requirements and that it should be
adopted. In drafting, the suggested order for the county
commission this court included the same five districts as
suggested for the school board.
‘Subsequently, they suggest minor changes to reduce population
variances.
l6a
At the court’s direction, because of these various mat-
ters, the parties were directed to present in writing their
comments and objections to this court’s proposed order.
In addition, following receipt of such, a further hearing
was held at which evidentiary matters have been presented
either by stipulation or by evidence.
In its decision of September 24, 1979, this court held
that, under what it believed was the controlling rule in
Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57
L.Ed.2d 411 (1978), the defendant County Commission
could not present to this court an election plan designed to
remedy the constitutional violation this court had found to
exist because it had no legislative authority to enact such a
plan. In its decision on rehearing, affirming this court, the
Court of Appeals for the Fifth Circuit agreed.
McDaniel v. Sanchez, 425 U.S. 130, 101 S.Ct. 2224, 68
L.Ed.2d 724 (1981), was rendered after this court’s deci-
sion of September 24, 1979, but prior to the decision on
rehearing of Fifth Circuit. It was not mentioned in the ap-
pellate court’s decision for rehearing and, so this court is
advised, the parties to the appeal did not call it to the ap-
pellate court’s attention.
In McDaniel, the court, discussing both Justice White’s
opinion and Justice Powell’s opinion in Wise, said;
Neither East Carroll nor Wise decided the precise
question that is now presented. Nonetheless,
both Justice White’s opinion and Justice Powell’s
opinion surely foreshadowed the holding we an-
nounce today. For both opinions indicate that
the fact that the reapportionment plan before us
was devised in response to an order of a federal
court does not change its character as a
legislative plan. In addition, Justice Powell’s opi-
nion indicates that the Commissioners Court’s
power under Texas law to adopt this plan should
be irrelevant to the decision in this case.
17a
Further in the opinion the court said:
The application of statute also is not dependent
upon any showing that the Commissioners Court
had authority under state law to enact the appor-
tionment plan at issue in this case. As Justice
Powell wointed out in Wise v. Lipscomb, 437
U.S. 535, 57 L.Ed.2d 411, 98 S.Ct. 2493, the
essential characteristic of a legislative plan is the
exercise of legislative judgment. The fact that
particular requirements of state law may not be
satisfied before a plan is proposed to a federal
court does not alter this essential characteristic.
The decision also pointed out that Justice Powell
disagreed with Justice White’s suggestion that East Carroll
[Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct.
1083, 47 L.Ed.2d 296] had held that a proposed reappor-
tionment plan may be considered legislative only if the
legislative body that suggested the plan had authority to
enact it under state law and stated that “In Justice Powell’s
view, the legislative body’s authority under state law was
irrelevant to the question before the court. He explained
that the critical difference between a legislative plan and a
court imposed plan for purposes of substantive review was
that the former reflected the policy choices of the elected
representatives of the people, whereas the latter
represented the remedial directive of a federal court.
Deference to the judgment of the legislative body was re-
quired even if that body lacked authority under state law
to adopt the proposed reapportionment plan.” 425 U.S. at
144, 101 S.Ct. at 2233, 68 L.Ed.2d at 736.
It appeared to this court that, under McDaniel, this
court and the appellate court were wrong in concluding
defendants might not present to this court an election plan
that was not entitled to legislative deference because they
were without legislative power to enact it. When such was
announced at a hearing on February 9, 1981, counsel for
18a
plaintiffs disagreed; counsel for defendants were uncertain
about it.
At the court’s request, the parties have submitted
memoranda going into the meaning and effect of
McDaniel as well as the question whether, since McDaniel
was not a decision subsequent to the Fifth Circuit’s deci-
sion holding the defendants’ plan may not be considered as
legislative, the law of this case has been established so that
any holding of McDaniel may be disregarded.
In memorandum, plaintiffs point out Wise involved the
question whether a court should defer to a local govern-
ment’s proposal to adopt an election plan that includes
multi-member districts or at-large seats and McDaniel in-
volved the question whether a local government’s proposal
to change the boundaries of a court ordered single-
member district plan should be precleared under the
Voting Rights Act before it is considered by the court.
Plaintiffs’ contention is that McDaniel is limited to the
“narrow, statutory” question concerning section 5 of the
Voting Rights Act of 1965 and that it did not overrule
Wise.
Defendants, not surprisingly, now contend that it ap-
pears in McDaniel the Supreme Court has determined that
Justice Powell’s analysis controls the determination
whether a remedy is or is not a “legislative plan”. In addi-
tion to McDaniel, they cite Hughley v. Adams, 667 F.2d
25 (Sth Cir. 1982) and Edge v. Sumter County School
District, 541 F.Supp. 55 (M.D.Ga. 1981).
[1] To this court, in McDaniel the Supreme Court
went beyond Wise. It adopted Justice Powell’s view, as set
forth in his concurring opinion in Wise, and said that,
where a reapportionment plan is devised in response to an
19a
order of a federal court, it is entitled to deference as a
legislative plan regardless whether the body presenting it
lacked the authority under state law to adopt it.
It is, of course, correct that the issue involved in
McDaniel was a question of preclearance under the Voting
Rights Act. But the court itself, in reaching its conclusion,
pointed, out that it drew significant guidance from prior
cases in which the substantive acceptability of a reappor-
tionment plan, rather than applicability of section 5, was
at issue. Justice Powell’s concept as a principle has equal
force whether it is applied in a voting dilution suit or in a
section 5 preclearance suit.
Plaintiffs contend that the law of the case is established
in McMillan v. Escambia County, 688 F.2d 960 (Sth Cir.
1982), in which the Court of Appeals affirmed this court’s
analysis of the remedy issue, and that the holding requir-
ing a court-ordered plan using single-member districts ex-
clusively has finality as the law of the case.
Cited in support is the statement contained in 1B
Moore’s Federal Practices § 0.404(10), p. 573 n. 15 (cita-
tion omitted):
The Supreme Court stated the general rule at an
early date in this matter: “whatever was before
the Court, and is disposed of, is considered as
finally settled. The inferior court is bound by the
decree as the law of the case; and must carry it in-
to execution, according to the mandate. They
cannot vary it, or examine it for any other pur-
pose than execution; or give any other or further
relief; or review it upon any matter decided on
appeal for error apparent; nor intermeddle with
it, further than to settle so much as has been
remanded.”
20a
Pointing out a clear exception to the rule is that “A
federal court must apply new and supervening rule of —
federal law to the decision of federal issues when the new
legal rule is valid and applicable to the issues of the case”
plaintiffs also point out that McDaniel was not an in-
tervening case. This case was decided on June 1, 1981 and
Fifth Circuit entered its judgment on rehearing on
September 24, 1982.
[2] Defendants do not quarrel with the application of
the law of the case doctrine to this case. Instead, citing
such cases as White v. Murtha, 377 F.2d 428 (Sth Cir.
1967), U.S. v. Robinson, 690 F.2d 869 (11th Cir. 1982),
Baumer v. U.S., 685 F.2d 1318 (11th Cir. 1982), defen-
dants point out that a decision by an appellate court must
be followed in the trial court on appeal unless one of three
exceptions applies and that one of these exceptions is
where a decision is clearly erroneous and would work a
manifest injustice. They contend that in order to avoid an
incorrect and unjust result this court may, and, indeed,
should, reconsider the remedy issue.
The fallacy in that contention is that the defendants,
though given opportunity, have not shown the decision, if
erroneous, works a manifest injustice.
The plan the court ordered into effect on December 3,
1979, and that was approved on appeal, contained one of
five districts with a majority in black population and
registered voters. As blacks constituted approximately
20% of the county’s population and 17% of its registered
voters, the plan was arranged so as to provide them with
an opportunity to elect membership to the commission in
proportion to their population percentage.
The plan proposed by defendants in 1979 called for a
seven member commission with five single-member
2la
districts and with two members elected at-large. The pro-
posed seven member commission would, at most, provide
blacks with an opportunity to elect 14% rather than 20%
of the commission’s membership. It would not provide an
adequate remedy for the unconstitutional vote dilution
found to exist in this case.
There is another reason why the seven member commis-
sion plan should not have been placed into effect by this
court.
From White v. Weiser, 412 U.S. 783, 795, 93 S.Ct.
2348, 2355, 37 L.Ed.2d 335, 346 (1973).
In fashioning a reapportionment plan or in
choosing among plans a district court should not
preempt the legislative task nor “intrude upon
state policy any more than necessary.” Whit-
comb v. Chavis, 403 U.S. 124 [160, 91 S.Ct.
1858, 1878, 29 L.Ed.2d 363).
[3] Article 8, § 1 of Florida’s constitution provides
that, except when otherwise provided by county charter,
the governing body of each county shall be a board of
county commissioners composed of five members serving
staggered terms of four years.
Escambia County has ro county charter. As the record
shows, its voters, during the pendency of this suit, rejected
a county charter proposal. That proposal included a pro-
posal to establish a seven member commission with five to
be elected from single-member districts and two to be
elected at-large.
These defendants, in proposing a seven member com-
mission, contravene the five member state policy and, ap-
parently, go also contrary to the will of the people of
Escambia County as evidenced by their rejection of the
22a
county charter. Any legislative deference that should be
given to any plan proposed by these defendants should not
include accepting their proposal of a seven member com-
mission.?
In short, while the reasoning of this court, and of the
appellate court, may have been erroneous, the conclusion
was correct. There is no manifest injustice here to be con-
sidered or corrected and no exception to the doctrine of
the law of the case to be applied.
As plaintiffs point out, this court has no choice but to
carry out the mandate of Fifth Circuit.
At the hearing on February 9, 1983, following this
court’s announcement concerning McDaniel, defendants
requested and were given time to present another plan and
further hearing was scheduled for March 10, 1983.
[4] At the March 10, 1983 hearing defendants
presented for consideration not one but two plans.
Counsel for defendants stated in effect that any other
plans theretofore presented by defendants were withdrawn
and need not be considered by the court.
Counsel for plaintiffs stated the only plan now
presented for consideration by the plaintiffs was the
amended plan containing the 5% population deviation
previously tendered by plaintiffs.
The defendants’ plans call for a seven member county
commission, with five to be elected from single-member
districts, and two to be elected at-large. Plan A contains
no district having a majority of black population and
registered voters, and Plan B contains one district having a
?This also applies to the two seven member proposals of these
defendants now before this court.
23a
black majority in population and registered voters.’ The
maximum population deviation in Plan A is + 2.8% and
in Plan B + 4.4%.
Neither plan complies with the five member single-
district plan, with one district having a majority in black
population and registered voters approved and to be put
into effect under Fifth Circuit’s decision, and both are re-
jected.
On the merits, they are also rejected as not providing
adequate remedy for the constitutional violation found to
exist. Submitted for preclearance under 42 U.S.C.
§ 1973a(c), they would be denied preclearance because
defendants have not on the record carried the burden on
them of showing that they do not have the purpose and
will not have the effect of denying or abridging the right to
vote on account of race or color, because they contain the
constitutional vices found to exist in the defendants’ plan
in this suit, and because they violate section 2 of the
Voting Rights Act.
[5] One of the seven member plans — Plan A — prefer-
red by defendants, makes not even a pretense of affording
any district in which there is a majority of black popula-
tion and registered voters. The other one contains one
such district. But it calls for a seven member commission
and thus dilutes, in violation of the constitution and sec-
tion 2 of the Voting Rights Act, the voting strength of the
black minority. The record in this case establishes blacks,
in order to prevent unlawful dilution, should have
3Percentage figures, based on the 1980 census, are close to those
before the court in 1979. Under 1980 figures, blacks constituted
19.7% of the total population and 15% of the registered voters.
24a
reasonable opportunity to elect 20% of the commission.
This Plan B gives them such opportunity to elect only 14%
of the commission. In addition, as pointed out, both
plans, in suggesting a seven member commission, go con-
trary to state policy.
Plaintiffs present a plan that has minimal changes from
the previously approved school board plan. It does involve
splitting or dividing two precincts; evidence at hearing
establishes this presents no real problem to election of-
ficials. It has an overall maximum population deviation of
only 5%. It provides for a five member commission, each
elected from a single district and with one district contain-
ing a majority in black population and black registered
voters. It complies with the one-person, one-vote rule and
avoids diluting the potential voting strength of the blacks.
It contains the method of preserving the staggered term
feature all parties have agreed is appropriate.
As pointed out, defendants’ tendered plans must be re-
jected because they do not comply with the mandate of
Fifth Circuit. They should be rejected on the merits, and
they may not be precleared under section 3 of the Voting
Rights Act. However, Plan B does contain one district
with a black population and registered voter majority, and
has five districts.
So far as this court is advised, there are no major dif-
ferences between the boundary lines proposed by Plan B
and those proposed by plaintiffs. But its maximum
population deviation is + 4.4%.
Wyche v. Madison Parish Police Jury, 635 F.2d 1151
(Sth Cir. Feb. 1981), points out that in devising a reappor-
tionment plan a court is held to equitable standards of
voting equality more stringent than those governing a
25a
legislature. “Although the mathematical precision re-
quired for congressional districting is not a prerequisite,
unless there are persuasive justifications, articulated by the
court, a judicially-mandated reapportionment plan must
ordinarily achieve the goal of population equality with lit-
tle more than de minimis variation.” Cases cited — page
1159,
There is no persuasive articulation that may be justified
in not adopting the plan proposed by plaintiffs. Defen-
dants’ counsel point out their Plan B was presented only in
connection with the 7 member plan. They did not urge the
use of its boundaries if a five member single-district plan
were chosen.
Plaintiffs’ proposed districts do have the desirable
features of conforming closely to the five districts in effect
for election of the five members of the Escambia County
School Board from single member districts, although Plan
B boundaries also closely conform.
[6] On balance, this court concludes it should place in
effect the plan proposed by plaintiffs.
Because of contentions presented respecting it, discus-
sion of the Voting Rights Act and its application in this
case may be in order.
The prior order of this court, approved on appeal, in-
corporated for a period of time provisions of section 3 of
the Voting Rights Act, 42 U.S.C. § 1973a(c).
[7] Plaintiffs, citing McDaniel v. Sanchez, 452 U.S.
130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981), and U.S. v.
Board of Supervisors, 429 U.S. 642, 97 S.Ct. 833, 51
L.Ed.2d 106 (1977), contend that these defendants may
not have consideration by this court of the resident district
26a
boundaries adopted by them until there has been
preclearance of them under 42 U.S.C. § 1973c.
That contention is without merit. As these cases point
out, they dealt with political subdivisions covered by the
act and to which section 5 of the act — 42 U.S.C. § 1973c
— applies. There is not dealt with in this case a political
subdivision covered by the act and section 5 has no ap-
plication to this suit.
However, as pointed out, 42 U.S.C. § 1973a(c) is ap-
plicable here. Its preclearance terms were included in the
remedial order of this court that has been approved by the
Court of Appeals.
Under Georgia v. United States, 411 U.S. 526, 93 S.Ct.
1702, 36 L.Ed.2d 472 (1973), as McDaniel points out, a
reapportionment plan is a “standard, practice or pro-
cedure with respect to voting” within the meaning of sec-
tion 5. The exact language is also contained in 42 U.S.C
§ 1973a(c). Under that decision the plan here proposed is a
“standard, practice or procedure with respect to voting”
under 1973a(c) so that the provisions of that act are ap-
plicable to it.
Under Georgia, and cases cited in it, the right to vote
can be affected by a dilution in voting power as well as by
an absolute prohibition when casting a ballot.
Respecting the effect of section 3 of the Voting Rights
Act in this case both parties cite Beer v. U.S., 425 U.S.
130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), and make dif-
ferent contentions respecting the retrogression principle as
applicable to this case. Defendants also cite Lockhart v.
U.S., — U.S. —, 103 S.Ct. 998, 74 L.Ed.2d — (1983).
These cases dealt with section 5 and not section 3 of the
27a
Voting Rights Act. No cases have been cited or found
dealing with section 3.4
Beer, construing section 5, held that its purpose was to
insure that no voting procedure changes would be made
that would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the
electoral franchise. It stated that the language of section 5
applied only to proposed changes in voting procedures and
that discriminatory practices instituted prior to November
1964 are not subject to preclearance under it. It concluded
that a new legislative apportionment scheme which
enhances the position of racial minorities cannot violate
section 5 unless the new apportionment itself so
discriminates on the basis of race or color so as to violate
the United States Constitution. °
Lockhart held that, since the new plan under considera-
tion did not increase the degree of discrimination against
blacks, it was entitled to section 5 preclearance.
“An explanation for this is found in the congressional history given
in No. 5, July 1982, U.S.Code Congressional & Administrative News,
p. 193, footnote 44. According to that footnote, apparently only two
counties — Escambia County, Florida and Thurston County,
Nebraska — are covered by the preclearance provisions of section 3(c)
as the result of court order.
‘A portion of footnote 31, found at p. 189, No. 5, July 1982,
U.S.Code Congressional & Administrative News, reads as follows:
Under the rule of Beer v. United States, 425 U.S. 130, 96
S.Ct. 1357, 47 L.Ed.2d 629 (1976), a voting change which
is ameliorative is not objectional unless the change “itself”
so discriminates on the basis of race or color as to violate
the Constitution.” 425 U.S. at 141, 96 S.Ct. at 1364; see
also 142 n. 14, 96 S.Ct. at 1364 n. 14 (citing to the dilution
cases from Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498,
13 L.Bd.2d L.Ed.2d 314). In light of the amendment to
section 2, it is intended that a section 5 objection also
follow if a new voting procedure itself so discriminates as
to violate section 2.
28a
As the parties point out, much of the language in section
3 is identical to that in section 5 but to this court there are
significant differences between the two sections.
Section 5 has language referring to standards, etc., dif-
ferent from those in effect on particular dates. It is ap-
plicable to covered political subdivisions and applies
regardless whether a suit is pending. It is intended only to
prevent retrogression, at least as the Supreme Court has
construed it.
As Justice Marshall points out in the dissenting opinion
in Lockhart, the court in Beer relied on a committee report
dealing with section 5; the report did not deal with section
3 nor has this court found any such report dealing with
section 3.
[8] Section 1973a(c) applies to situations such as the
one found here — in which a court has found in a suit a
violation of the fourteenth or fifteenth amendments justi-
fying equitable relief. It does not come into play until that
situation is presented. Its reference is to any standard,
etc., different from that in force and effect at the time the
Suit was commenced.
[9] To this court that provision of the act involves no
retrogressive principle. It means exactly what it says. Ap-
plied to this case, the plan adopted by the defendants, pur-
suant to Florida’s reapportionment law following a 1980
census, for example, must be precleared before being ef-
fective.® It must be precleared because it is a change from
the standard in effect at the time the suit was instituted
and it may not be precleared unless the court finds that it
does not have the purpose and will not have the effect of
denying the right to vote on account of race or color.
*As must other plans proposed by defendants.
29a
In making that determination the court does not com-
pare that plan with defendants’ plan in effect at the time
this suit was commenced and find that it does not violate
the requirements of section 3 if it is no worse than that
plan.
If that were the purpose of section 3, for example,
defendants could adopt almost any form of discriminatory
voting practice, and it would not be subject to
preclearance, because it would not be worse discrimina-
tion than the plan here found to be invalid. Only if such
practice was also unconstitutional or violated section 2
would it be subject to the preclearance test of section 3.
As pointed out in South Carolina v. Katzenbach, 383
U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), the Voting
Rights Act was designed by Congress to banish the blight
of racial discrimination in voting which had infected the
electoral process in parts of the United States for nearly a
century. The case, referring to House and Senate reports,
states that “in many of the political subdivisions covered
by paragraph 4(b) of the act voting officials have per-
sistently employed a variety of procedural tactics to deny
negroes the franchise often in direct defiance or evasion of
federal court decrees”. 383 U.S. at 336, 86 S.Ct. at 822 —
23, 15 L.Ed.2d at 791.
The Department of Justice has used its objection power
to present it to a South Dakota law that would have
nullified the effect of a judicial decision. No. 5, July 1982,
U.S.Code Congressional & Administrative News, at 188.
[10] Unlike section 5, section 3 was not designed to
preserve the status quo. To the contrary, section 3 was
designed to deal with a situation such as that here
presented. It was designed to prevent a political subdivi-
30a
sion found in violation of the constitution from perform-
ing an end run around and circumventing the court’s
holding by enacting a new voting plan that was no worse
than the one in effect at the time the suit was instituted.
The retrogression principle made applicable in section 5
has no place and plays no part in section 3.
From the congressional history found in 1965 U.S.Code
Congressional & Administrative News, in discussion of
3(c) at page 2455:
Subsection 3(c) — This proviso is intended by
providing for judicial scrutiny of new or changed
voting requirements, to insure against the enac-
tion of new and onerous discriminatory voting
barriers by state or political subdivisions which
have been found to have discriminated.
The Congress did not intend by enactment of this sec-
tion to prevent a political subdivision from making elec-
tion changes, even though its election scheme in effect at
the time of suit violated the constitution. But, it did intend
that any change would not present a new and onerous
discriminatory voting barrier.
Beyond that, however, if Beers is authority for applying
retrogression principles to section 3 then, under Beers, the
plan must be found to violate section 3 if it so discrim-
inates on the basis of race or color as to violate the con-
stitution. The congressional history of the 1982 Voting
Rights Act amendments points out it must also be found
to violate section 3 if it violates section 2 of that act.
Defendants, though contending preclearance is not re-
quired, say that if preclearance under section 3 is required
no additional evidence need be taken and that this court
may make decision on the record before it.
3la
On the record, as previously pointed out, defendants’
plans do violate the constitution and section 2 of the
Voting Rights Act, so that preclearance under section 3
should be and is denied.
Defendants contend that, in devising an election plan of
five districts, one of which contains a majority of black
population and registered voters, blacks have been
guaranteed proportionate representation in violation of
the constitution.
[11] To this court that argument borders on the ab-
surd. The remedial plan of this court, approved on appeal,
contains such a district. Obviously, a district in which
blacks have a majority in population and in registered
voters does not guarantee the election of blacks and does
not violate the constitution. To the contrary, under the
factual situation in this case, it is the only effective remedy
this court was able to devise to remedy the unconstitu-
tional vote dilution here found to exist.
In another contention, defendants say that the
retrogressive base line in this case is not the boundaries
provided by this court’s order of December 3, 1979
because the Fifth Circuit did not affirm the boundaries in
that order. The contention, as this court understands it, is
that the county reapportioned during the period between
the appellate court’s reversal of this court and its affir-
mance on rehearing.
In this decision this court has expressed its views on the
question of retrogression under section 3 of the Voting
Rights Act. Respecting this contention, however, it points
out that, while the appellate court first reversed this court
in its remedial order, on petition for rehearing it affirmed.
Its mandate was not issued until November 23, 1982; its
prior reversal decision was never in effect. The remedial
32a
order entered by this court in 1979 has been valid since
1979 and in effect during all the period of time although
stayed by court action while the case was on appeal.
In summary, the mandate of the appellate court to this
court requires it to proceed to place into effect the
remedial order previously approved with its scheduling
terms revised in view of the passage of time. That is the
law of this case. Under an exception to the doctrine,
because of the evidence now before the court showing
malapportionment under the 1980 census, that malappor-
tionment should be corrected.
Defendants contend the manifest injustice exception to
the law of the case requires this court to revisit its rejection
of the seven member plan proposed by defendants in 1979.
But defendants have established no manifest injustice. If
this court and the appellate court’s ground for rejecting it
as unauthorized was erroneous, nonetheless the conclu-
sion reached that it should be rejected was correct.
If the law of the case does not control, it still remains
the plans presented by defendants must be rejected. For
reasons pointed out in the decision, they may not be
precleared under 42 U.S.C. § 1973a(c). They do not pro-
vide adequate remedy for the constitutional violations
found to exist. So far as they propose seven member com-
mission, they violate Florida’s state policy.
Any deference to be accorded them as legislative plans
submitted in response to a court order or request does not
extend to approving their violation of state policy. In any
event, legislative deference, in view of their constitutional
vices and Voting Rights Act violations, would not permit
their approval.
Other contentions of defendants are without merit.
33a
The amended remedial plan proposed by plaintiffs, con-
taining minimum population deviations, and updated and
conforming otherwise to the plan approved by the ap-
pellate court, should be adopted by this court.
Finally, in this perhaps too lengthy decision, this court
has endeavored to make decision respecting every conten-
tion able and ingenious counsel have presented to it. It has
done so even though its law of the case conclusion may
have mooted some of these contentions.
This case has been pending too long. With elections
stayed, no elections have been held for several years.
Defendant public officers are holding over as de facto of-
ficials beyond their terms of office.
Defendants have appealed before and this court an-
ticipates they will appeal again.
In the untoward event the appellate court disagrees with
this court’s law of the case conclusion, it may feel other
contentions must be resolved.
Sometimes, when a trial judge leave unanswered conten-
tions on the record going to the appellate court, that court
is constrained because of necessity or desirability to re-
mand for the trial court’s answers. Hopefully, this court
has avoided the possibility of such here occurring.
The amended remedial plan proposed by the plaintiffs,
will be put into effect by order of the court.
34a
APPENDIX B
Notice of Appeal to the
United States Court of Appeals
For the Eleventh Circuit
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
HENRY T. McMILLAN, ef ai.,
Plaintiffs,
v. PCA No. 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
OFFICE OF CLERK
U.S. DISTRICT CT.
NORTH DIST., FLA.
Defendants. PENSACOLA, FLA.
Nee eee eee ee ee”
1983 APR 11 PM 3:27
FILED
NOTICE OF APPEAL
Notice is hereby given that defendants Escambia Coun-
ty, Florida (“Escambia”) and the members of the Escam-
bia Board of County Commissioners hereby appeal to the
United States Court of Appeals for the Eleventh Circuit
from the Order imposing an election system and reappor-
tionment plan for elections to the Escambia Board of
3Sa
County Commissioners entered in this action on the 11th
day of March, 1983.
Respectfully submitted,
/s/
P. DANIEL CONDON
Acting County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
/s/
CHARLES S. RHYNE
THOMAS D. SILVERSTEIN
Rhyne and Rhyne
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
Counsel for Defendants
Escambia County, Florida and
the Members of the Escambia
Board of County Commissioners
36a
APPENDIX C
Selected Provisions of the Voting Rights Act of 1965 and
Florida’s Constitution and Statutes.
1. Provisions of the Voting Rights Act of 1965.
Section 2, 42 U.S.C.A. § U.S.C.A. § 1973 (Supp. 1983)
Denial or abridgement of right to vote on ac-
count of race or color through voting qualifica-
tiom: or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or ap-
plied by any State or political subdivision in a manner
which results in a denial or 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 nomination
or election in the State or political subdivision 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
37a
elected in numbers equal to their proportion in the popula-
tion.
Section 3(c), 42 U.S.C. § 1973a(c) (1976):
Retention of jurisdiction to prevent commence-
ment of new devices to deny or abridge the right
to vote
If in any proceeding instituted by the Attorney General
or an aggrieved person under any statute to enforce the
voting guarantees of the fourteenth or fifteenth amend-
ment in any State or political subdivision the court finds
that violations of the fourteenth or fifteenth amendment
justifying equitable relief have occurred within the ter-
ritory of such State or political subdivision, the court, in
addition to such relief as it may grant, shall retain jurisdic-
tion for such period as it may deem appropriate and dur-
ing such period no voting qualification or prerequisite to
voting or standard, practice, or procedure with respect to
voting different from that in force or effect at the time the
proceeding was commenced shall be enforced unless and
until the court finds that such qualification, prerequisite,
standard, practice, or procedure does not have the pur-
pose and will not have the effect of denying or abridging
the right to vote on account of race or color, or in con-
travention of the voting guarantees set forth in section
1973(b)(f)(2) of this title: Provided, That such qualifica-
tion, prerequisite, standard, practice, or procedure may be
enforced if the qualification, prerequisite, standard, prac-
tice, or procedure has been submitted by the chief legal of-
ficer or other appropriate official of such State or subdivi-
sion to the Attorney General and the Attorney General has
not interposed an objection within sixty days after such
submission, except that neither the court’s finding nor the
38a
Attorney General’s failure to object shall bar a subsequent
action to enjoin enforcement of such qualification, prere-
quisite, standard, practice, or procedure.
Section 4, 42 U.S.C. §1973b (1976), as amended by 42
U.S.C.A. § 1973b(a) (Supp. 1983).
Suspension of use of tests on devices in determin-
ing eligibility to vote
(a) Action by State of political subdivision for
declaratory judgment of no denial or abridge-
ment; three-judge district court; appeal to
Supreme Court; retention of jurisdiction by
three-judge court
To assure that the right of citizens of the United States
to vote is not denicd or abridged on account of race or
color, no citizen shall be denied the right to vote in any
Federal, State, or local election because of his failure to
comply with any test or device in any State with respect to
which the determinations have been made under the first
two sentences of subsection (b) of this section or in any
political subdivision with respect to which such determina-
tions have been made as a separate unit, unless the United
States District Court for the District of Columbia in an ac-
tion for a declaratory judgment brought by such State or
subdivision against the United States has determined that
no such test or device has been used during the nineteen
years preceding the filing of the action for the purpose or
with the effect of denying or abridging the right to vote on
account of race or color. Provided, That no such
declaratory judgment shall issue with respect to any plain-
tiff for a period of nineteen years after the entry of a final
judgment of any court of the United States, other than the
denial of a declaratory judgment under this section,
39a
whether entered prior to or after the enactment of this sub-
chapter, determining that denials or abridgements of the
right to vote on account of race or color, through the use
of such tests or devices have occurred anywhere in the ter-
ritory of such plaintiff. No citizen shall be denied the right
to vote in any Federal, State, or local election because of
his failure to comply with any test or device in any State
with respect to which the determinations have been made
under the third sentence of subsection (b) of this section or
in any political subdivision with respect to which such
determinations have been made as a separate unit, unless
the United States District Court for the District of Colum-
bia in an action for a declaratory judgment brought by
such State or subdivision against the United States has
determined that no such test or device has been used dur-
ing the ten years preceding the filing of the action for the
purpose or with the effect of denying or abridging the
right to vote on account of race or color, or in contraven-
tion of the guarantees set forth in subsection (f)(2) of his
section: Provided, That no such declaratory judgment
shall issue with respect to any plaintiff for a period of ten
years after the entry of a final judgment of any court of
the United States, other than the denial of a declaratory
judgment under this section, whether entered prior to or
after the enactment of this paragraph, determining that
denials or abridgements of the right of vote on account of
race or color, or in contravention of the guarantees set
forth in subsection (f)(2) of this section through the use of
tests or devices have occurred anywhere in the territory of
such plaintiff.
(b) Required factual determinations necessary to
allow suspension of compliance with tests and
devices; publication in Federal Register
40a
The provisions of subsection (a) of this section shall ap-
ply in any State or in any political subdivision of a State
which (1) the Attorney General determines maintained on
November 1, 1964, any test or device, and with respect to
which (2) the Director of the Census determines that less
than 50 per centum of the persons of voting age residing
therein were registered on November 1, 1964, or that less
than 50 per centum of such persons voted in the presiden-
tial election of November 1964. On and after August 6,
1970, in addition to any State or political subdivision of a
State determined to be subject to subsection (a) of this sec-
tion pursuant to the previous sentence, the provisions of
subsection (a) of this section shall apply in any State or
any political subdivision of a State which (i) the Attorney
General determines maintained on November 1, 1968, any
test or device, and with respect to which (ii) the Director of
the Census determines that less than 50 per centum of the
persons of voting age residing therein were registered on
November 1, 1968, or that less than 50 per centum of such
persons voted in the presidential election of November
1968. On and after August 6, 1975, in addition to any
State or political subdivision of a State determined to be
subject to subsection (a) of this section pursuant to the
previous two sentences, the provisions of subsections (a)
of this section shall apply in any State or any political sub-
division of a State which (i) the Attorney General deter-
mines maintained on November 1, 1972, any test or
device, and with respect to which (ii) the Director of the
Census determines that less than 50 per centum of the
citizens of voting age were registered on November 1,
1972, or that less than 50 per centum of such persons voted
in the Presidential election of November 1972.
A determination or certification of the Attorney
General or of the Director of the Census under this section
4la
or under section 1973d or 1973k of this title shall not be
reviewable in any court and shall be effective upon
publication in the Federal Register.
(c) Definition of test or device
The phrase “test or device” shall mean any requirement
that a person as a prerequisite for voting or registration
for voting (1) demonstrate the ability to read, write,
understand, or interpret any matter, (2) demonstrate any
educational achievement or his knowledge of any par-
ticular subject, (3) possess good moral character, or (4)
prove his qualifications by the voucher of registered voters
or members of any other class.
Section 5, 42 U.S.C. § 1973c (1976).
Alteration of voting qualifications and pro-
cedures; action by state or political subdivision
for declaratory judgment of no denial or
abridgement of voting rights; three judge district
court; appeal to Supreme Court
Whenever a State or political subdivision with respect to
which the prohibitions set forth in section 1973(b)(a) of
this title based upon determinations made under the first
sentence or section 1973b(b) of this title are in effect shall
enact or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that in force or effect
on November 1, 1964, or whenever a State or political sub-
division with respect to which the prohibitions set forth in
section 1973b(a) of this title based upon determinations
made under the second sentence of section 1973b(b) of this
title are in effect shall enact or seek to administer any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different
42a
from that in force or effect on November 1, 1968, or
whenever a State or political subidivision with respect to
which the prohibitions set forth in section 1973b(a) of this
title based upon determinations made under the third
sentence of section 1973b(b) of this title are in effect shall
enact or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that in force or effect
on November 1, 1972, such State or subdivision may in-
stitute an action in the United States District Court for the
District of Columbia for a declaratory judgment that such
qualification, prerequisite, standard, practice, or pro-
cedure does not have the purpose and will not have the ef-
fect of denying or abridging the right to vote on account of
race or color, or in contravention of the guarantees set
forth in section 1973b(f)(2) of this title, and unless and un-
til the court enters such judgment no person shall be
denied the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or pro-
cedure; Provided, That such qualification, prerequisite,
standard, practice, or procedure may be enforced without
such proceeding if the qualification, prerequisite, stan-
dard, practice, or procedure has been submitted by the
chief legal officer or other appropriate official of such
State or subdivision to the Attorney General and the At-
torney General has not interposed an objection within six-
ty days after such submission, or upon good cause shown,
to facilitate an expedited approval within sixty days after
such submission, the Attorney General has affirmatively
indicated that such objection will not be made. Neither an
affirmative indication by the Attorney General that no ob-
jection will be made, nor the Attorney General’s failure to
object, nor a declaratory judgment entered under this sec-
tion shall bar a subsequent action to enjoin enforcement
of such qualification, prerequisite, standard, practice, or
43a
procedure. In the event the Attorney General affirmatively
indicates that no objection will be made within the sixty-
day period following receipt of a submission, the Attorney
General may reserve the right to reexamine the submission
if additional information comes to his attention during the
remainder of the sixty-day period which would otherwise
require objection in accordance with this section. Any ac-
tion under this section shall be heard and determined by a
court of three judges in accordance with the provisions of
section 2284 of title 28 and any appeal shall lie to the
Supreme Court.
2. Provisions of Florida’s Constitution and Statutes.
Fla. Const. art. VIII, § 1(e).
Commissioners. Except when otherwise provided by
county charter, the governing body of each county shall be
a board of county commissioners composed of five
members serving staggered terms of four years. After each
decennial census the board of county commissioners shall
divide the county into districts of contiguous territory as
nearly equal in population as practicable. One commis-
sioners residing in each district shall be elected by the elec-
tors of the county.
Fla. Stat. § 124.01 (1981).
Division of counties into districts; county com-
missioners, etc.
(1) There shall be five county commissioners’ districts in
each county, which shall be numbered one to five, in-
clusive, and shall be as nearly equal in proportion to
population as possible.
(2) There shall be one county commissioner for each of
44a
such county commissioners’ districts, who shall be elected
by the qualified electors of the county, as provided by
§ 1(e), Art. VIII of the state constitution.
(3) The board of county commissioners shall from time
to time, fix the boundaries of the above districts so as to
keep them as nearly equal in proportion to population as
possible; provided, that changes made in the boundaries
of county commissioner districts pursuant to this section
shall be made only in odd-numbered years.
(4) County commissioners’ districts now existing shall
remain as now constituted until changed by the board of
county commissioners, as provided by the constitution an
din this chapter.
(5) This section shall not apply to Dade county.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.