Petition for Writ of Certiorari — Liberty County v. Solomon

I Supreme Court, U.S,

' FILED

9 O-1 02 JUL «5: 3909

JOSEPH F. SP

CASE NO. ) aia JR,

Ame ees +

wee bt

IN THE __, ‘oe tpsensonewenn....

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

LIBERTY COUNTY, FLORIDA, ET AL,

AND

LIBERTY COUNTY SCHOOL BOARD, ET AL,

Petitioners,

versus

GREGORY SOLOMON, ET AL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS, ELEVENTH CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

Jack F. White, Jr., Esq.

and

David La Croix, Esq., County Attorney

Post Office Box 13527

Tallahassee, Florida 32317-3527

(904) 224-2677

Kenneth L. Hosford, Esq. *

School Board Attorney

210 Office Plaza

Tallahassee, Florida 32301

(904) 878-0308

* Counsel of Record for Petitioners

QUESTIONS PRESENTED FOR REVIEW

I. SHOULD THE COURT'S THORNBURG V.

GINGLES OPINION BE CLARIFIED, AS APPLIED

TO THE INSTANT CASE, CONCERNING THE

LEGAL EFFECT OF THE THREE GINGLES

THRESHOLD FACTORS?

Il. SHOULD THE COURT'S GINGLES OPINION

BE CLARIFIED, AS TO HOW SMALL A MINORITY

MAY BE ENTITLED TO A REMEDY FOR ALLEGED

VOTE DILUTION, IN VIEW OF THE DISCLAIMER

OF ANY RIGHT TO PROPORTIONAL REPRESEN-

TATION IN THE VOTING RIGHTS ACT OF 1965?

III. MAY THE COURT OF APPEALS MAKE

CONCLUSIVE FACTUAL FINDINGS, AS A MATTER

OF LAW, AS TO THE THRESHOLD FACTORS

ADOPTED IN GINGLES, IN A CASE WHICH WAS

TRIED BEFORE GINGLES WAS DECIDED, WHEN

THE EVIDENCE WAS DISPUTED AND WHEN THE

TRIAL COURT DID NOT MAKE FINDINGS AS TO

ALL OF SUCH FACTORS?

PARTIES

The Petitioners are:

Liberty County, Florida

Gene Free, Chairman, Commissioner; Joe

Burke, James E. Johnson, J. L.

Johnson, and John T. Sanders,

Commissioners of Liberty County;

their successors and agents; all in

their official capacities

Liberty County School Board, Florida

Ras Hill, Chairman; Joseph Combs, Tommy

Duggar, W. L. Potter, and Herbert

Whittaker, members of the Liberty

County School Board; their successors

and agents; all in their official

capacities

The Respondents are:

Gregory Solomon, Patricia Beckwith,

Raleigh Brinson, and Earl Jennings

All others similarly situated

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REPORTS OF OPINIONS BELOW

JURISDICTION

STATUTE INVOLVED

STATEMENT OF THE CASE

ARGUMENT

ISSUE I

ISSUE II

ISSUE III

CONCLUSION

iii

19

46

TABLE OF AUTHORITIES

Cases

Carrollton Branch of

NAACP v. Stallings, 829

F.2d 1547 (11th Cir.

(1987)

-olli Cit ;

Norfolk, 478 U.S. 1016

(1986)

soli at

Norfolk, Va., 883 F.2d

1232 (4th Cir. 1989)

a ae ;

Norfolk, 816 F.2d 932

(4th Cir. 1987)

Collins v. City of

Norfolk, 679 F.Supp. 557

(E.D. Va. 1988)

Mobile v. Bolden, 446 U.S.

55 (1980)

= v.Swint,

456 U.S. 273 (1982)

Rogers v. Lodge, 458 U.S.

613 (1982)

Ss W Vv. u » 2

F.E.P. 770 (N.D. Fla.

1984), aff'd. 777 F.2d

1431 (11th Cir. 1985)

iv

12, 37

41

a4

41, 42

45, 46

22

Thornburg v. Gingles, 478 iM, &

U.S. 30 (1986) 10, 12,

13, 15-17, 19,

20, 24-27, 29, 33,

35, 37-39, 41, 44-46

Whitcomb v. Chavis, 403 U.S. 14

124 (1986)

. £32 0.6. 4, 3S,

755 (1973) 46

, 485 4, 5

F.2d 1297 (5th Cir. 1973),

aff'd. sub nom. East Carroll

Parrish School Bd. v Marshall,

424 U.S. 636 (1976)

Statutes

42 U.S.C. § 1973 18

Court Rules

Rule 52(a), Federal Rules 27, 45

of Civil Procedure

REPORTS OF OPINIONS BELOW

Solomon v. Liberty County, Florida, 899

F.2a 1012 (Eleventh Circuit, 1990, En

banc) (A1-A126)*

Solomon v. Liberty County, Florida, 873

F.2d 248 (Eleventh Circuit, 1989)

(A127-A128)

Solomon v. Liberty County, Florida, 865

F.2d 1566 (Eleventh Circuit, 1988)

(A129-A231)

Solomon v. Liberty County, Florida, Nos.

TCA 85-7009 MMP and TCA 85-7010 MMP,

Slip Op. (N.D. Fla. 1987) (A214-

A278)

* References to the Appendix filed

herewith are made throughout this

Petition in parentheses by the

appropriate page number(s)

vi

JURISDICTION

The en banc judgment and opinions for

which review is sought were entered on the

5th day of April, 1990.

No rehearing was sought on the en

banc decision and judgment.

Review by this Court of the judgment

and opinions of the Court of Appeals is

specifically authorized by 28 U.S.C.

§ 1254(1).

vii

STATUTE INVOLVED

42 U.S.C. s 1973 (Section 2 of the Voting

Rights Act of 1965, as amended):

§ 1973. Denial or abridgment of right to

vote on account of race or color

through voting qualifications or

prerequisites; establishment of

violation

(a) No voting qualification or

prerequisite to voting or standard, prac-

tice, or procedure shall be imposed or

applied by any State or political subdivi-

sion 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 sub-

section (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 cpen

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

viii

of a protected class have been elected to

effice in the State or political subdi=

vision is one circumstance which may be

considered; Provided, That nothing in this

section establishes a right to have

members of a protected class elected in

numbers equal to their proportion in the

population.

ix

STATEMENT OF THE CASE

Liberty County is located in

Northwestern Florida. According to the

1980 United States Census, it has the

following population and voting age

population, by race:

Total White* Black

Population 4260 3789 471

% of total 88.94% 11.06%

Voting age

population 2990 2678 312

% of total 89.57% 10.43%

% 18 years

or older

(voting age) 70.20% 70.66% 66.24%

* Includes fewer than 10 persons of other

races (neither white nor black)

The Board of County Commissioners of

Liberty Ccunty and the Liberty County

School Board are each comprised of five

members. The County is divided into five

districts, from each of which a resident

is elected to each body. The entire

County electorate, however, votes for one

candidate from each district. Members of

both bodies are elected for staggered

four-year terms. A candidate must receive

a majority of his or her party's county-

wide vote to be selected as the party's

nominee, but in the general election there

is no majority vote requirement. (A4-A5)

In 1985, the residency districts for

County Commissioners and for School Board

members were changed in accordance with a

plan proposed by the Respondents. (A254)

By the Respondents' plan, 423 of the

County's black residents are now located

in District I, which leaves less than 50

black persons residing in the other four

districts combined. (A254) The trial

court found that blacks comprised 49

percent of the total population of

District I and 46.2 percent of the

xi

registered voters of District I. (A254)

No finding was made as to the District I

percentage of voting age population which

was black.

Respondents filed their class action

complaints in the United States District

Court for the Northern District of

Florida, Tallahassee Division, against

Liberty County, the County Commission

members, the Liberty County School Board,

and the School Board members, alleging

that the at-large system of electing the

two five-member bodies unlawfully diluted

black voting strength. Jurisdiction was

alleged under 28 U.S.C. ss 1331, 1343,

2201, and 2202 and 42 U.S.C. ss 1971(d)

and 1973(e).

The Petitioners answered by denying

that the at-large system was a violation

of Section 2 of the Voting Rights Act. By

xii

stipulation of the parties, the two cases

were consolidated for trial.

The distinction between percentages

of black population and black voting age

population did not appear to be legally

significant at the time this case was

tried. Trial was held on March 25 through

March 28, 1986. (A216) On June 30, this

Court decided Thornburg v. Gingles, 478

U.S. 30 (1986), which considerably magni-

fied the importance of population statis-

tics in Section 2 Voting Rights Act cases.

On May 4, 1987, the district court

entered judgment for the Petitioners,

finding that, based on the totality of the

circumstances, the at-large election

system in Liberty County did not violate

Section 2 of the Voting Rights Act.

(A214-A278)

Respondents filed their notice of

xiii

appeal on May 28, 1987. On December 12,

1988, the original panel of the Court of

Appeals vacated the district court

judgment and opinion and remanded for

further proceedings. (A129-A231)

On the motion of Petitioners, the

Court of Appeals granted a rehearing en

banc and, on April 26, 1989, vacated the

original panel opinion. (A127-A128)

After en banc review, the Court of

Appeals, on April 5, 1990, vacated the

district court final judgment and

remanded, holding that, as a matter of

law, the Respondents had satisfied the

three Gingles factors. The Court was,

however, evenly divided as to whether the

Respondents were forthwith entitled to a

judgment or were still subject to a

totality-of-circumstances determination by

the district court. (A1-A2)

xiv

1

ARGUMENT

I. SHOULD THE COURT'S THORNBURG V.

GINGLES OPINION BE CLARIFIED, AS

APPLIED TO THE INSTANT CASE,

CONCERNING THE LEGAL EFFECT OF THE

THREE GINGLES THRESHOLD FACTORS?

The Eleventh Circuit Court of

Appeals, in a unanimous en banc opinion

issued April 5, 1990, remanded the

instant case to the district court for

further proceedings in accordance with

Thornburg v. Gingles, 478 U.S. 30 (1986).

Though unanimous in vacating the district

court's judgment and remanding the case,

the Court was sharply divided over the

legal effect of the three threshold

factors adopted in Gingles for Voting

Rights Act claims based on multi-district

elections:

We hold, as a matter of law, that

the appellants have satisfied the

three Gingles factors .. . but we

are divided on the legal effect of

2

proving those factors. Because we are

divided in our interpretation of Gingles

and section 2 of the Voting Rights Act

- « we do not specifically direct the

district court on how to proceed on

remand.

(A2-A3)

The Court split five to five

concerning the legal effect of the

Gingles factors in three concurring

opinions (A4-A39; A40-A115; A116-A125),

with the specially concurring opinions of

Judge Kravitch and Chief Judge Tjoflat

representing the respective positions of

the divided Court.

It should again be noted that the

trial of this case was concluded prior to

this Court's decision in Gingles. The

Court of Appeals, however, made findings

of fact for the district court, as a

matter of law, as to the three Gingles

threshold factors, while simultaneously

being unable to give instructions as to

calle lati

3

the legal effect of such findings. This

issue of appellate court fact-finding is

addressed separately below.

While there were several opinions by

Justices of the Court in Thornburg v.

Gingles, that decision appears to resolve

two issues: (1) that the three

identified factors are a "necessary

precondition" for a successful vote

dilution claim, as there simply cannot be

vote dilution without them, and (2) that

the ultimate determination of vote

dilution is still based on the totality

of the circumstances, as intended by

Congress. (This appears to be the

interpretation given Gingles by the

district court below.)

Judge Kravitch's construction and

application of the three Gingles factors,

however, is that they are conclusive and

4

dispositive. This approach is best

illustrated by her own words:

As is evident in my discussion

below, proof of the three Gingles

factors is both necessary and, in

this case, sufficient for a section

2 vote dilution claim. (A18)

This specially concurring opinion,

joined by four members of the Court of

Appeals, arrived at this conclusive view

of Gingles from a somewhat brief discus-

sion of the background of the instant

case and the history of the Voting Rights

Act of 1965. (A4-A17) The opinion

highlighted the development of voting

rights claims under the "results test"

and specifically emphasized the case law

as developed under White v. Regester, 412

U.S. 755 (1973), and Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir. 1973), aff'd. sub

nom. East Carroll Parrish School Bd. v.

Marshall, 424 U.S. 636 (1976).

>

Judge Kravitch's opinion also

discussed Mobile v. Bolden, 446 U.S. 55

(1980), pointing out the renunciation of

the results test in favor of the position

that "discriminatory purpose was a

necessary element of a claim for vote

dilution." (A9) The Bolden decision, of

course, prompted the 1982 congressional

amendment of section 2 of the Voting

Rights Act, restoring the pre-Bolden

standard.

Judge Kravitch further reviewed the

"Senate Report" factors derived from

White and Zimmer, supra, and endorsed by

Congress in); amending section 2, which--

though not an exhaustive list--embody the

results test in light of the totality of

the circumstances. (A12-A15) Signifi-

cantly, the opinion did not again mention

or discuss the results test, the Senate

6

Report factors, or the totality of the

circumstances, except to state:

Although a district court may

consider the totality of the

circumstances, those circumstances

must be examined for the light they

shed on the existence of the three

core Gingles factors.

(A17-A18)

The opinion completely ignored the

detailed discussion of the totality of

the circumstances by the district court.

Instead, the opinion concluded with an

application of the Gingles factors to the

instant case, finding the evidence suf-

ficient as a matter of law to establish a

Voting Rights Act violation:

In conclusion, the district court

erred in failing correctly to apply

the Gingles test. Having reviewed

the uncontroverted evidence below, I

conclude that appellants have met

all three Gingles requirements.

requires, and I may require no more.

(Emphasis added.)

(A26)

7

Judge Tjoflat's different inter-

pretation and application of the three

Gingles factors is best summarized as

follows:

In summary, Gingles stands for the

following propositions:

1. If the plaintiff cannot prove

(1) the existence of a large and

compact minority group, (2) that the

group is politically cohesive, and

(3) tnat the white majority

typically votes as a block, he

cannot make out a claim under

section 2.

2. If the plaintiff does prove

these three factors, and the

defendant offers nothing in

rebuttal, the plaintiff wins.

3. If the plaintiff proves the

three factors, and the defendant

offers proof of other objective

factors in rebuttal, the court must

be satisfied, before it may rule in

favor of the plaintiff, that, under

the totality of the circumstances,

the minority group is denied

meaningful access to the political

process "on account of race or

color."

(A101-A102)

Judge Tjoflat's concurring opinion,

8

therefore, construed the Gingles factors

as threshold requirements, essential to

the making of a claim under section 2 of

the Voting Rights Act but not per se

sufficient as a matter of law. Judge

Tjoflat's opinion previded a detailed

analysis of the legislative history of

the Voting Rights Act and the development

of its corresponding case law. (A45-

A103) More than summary treatment,

however, is unfortunately beyond the

scope of this Petition.

Four criticisms of Judge Kravitch's

approach are evident in Judge Tjoflat's

opinion:

1. The mechanical application of

the Gingles factors as both necessary und

sufficient produces a tautological and

inflexible rule of law, allowing

plaintiffs to establish an irrebuttable

9

prima facie case. (A91, A100, A107)

2. Tne Kravitch approach

effectively eliminates the totality-of-

the-circumstances test. (A107) As noted

by Judge Tjoflat, inclusion of Senator

Dole's proposed language expressly

incorporating the totality-of-the-

circumstances test was essential to

passage of the 1982 amendment to section

2 of the Voting Rights Act. (A273-A274)

3. Judge Kravitch's mechanical

application of the Gingles factors ren-

ders nonsensical this Court's discussion

of the totality of the circumstances in

Gingles after the Court noted the success

of the Gingles plaintiffs in proving the

three factors, and after it approved the

district court's careful consideration of

the totality of the circumstances.

(A101)

10

4. The Kravitch approach creates a

right to proportional representation for

all compact and cohesive minority groups

constituting a majority of an appropri-

ately designed single-member district.

(A105-A106, A112-A114)

Additionally, Judge Tjoflat

enumerated the following important

questions neglected by the Kravitch

concurrence:

When could a section 2

plaintiff lose even though he has

proven the three Gingles factors?

How did Judge Kravitch decide in

this case that the appellants'

evidence was sufficient to require

judgment in their favor as a matter

of law? How may a defendant rebut a

section 2 claim when the three

Gingles factors have been proven?

(A43)

It should not be assumed, however,

that Judge Tjoflat and the other Judges

joining his opinion view Gingles as

Clearly and straightforwardly as did the

11

district court in this case. Judge

Tjoflat's specially concurring opinion

includes the four-step test outlined in

his opinion for the original panel.

(A40, A108) That test is: (1) Is the

minority underrepresented in proportion

to its percentage of the total

electorate? (2) Does the minority group

have sufficient geographic and political

cohesion to permit one or more minority-

controlled single-member districts? (3)

Is the current electoral system driven by

racial bias? and (4) Will the system

continue to deny minorities equal access

to the political system? (A158-A159)

According to the panel Judges, the

various totality-of-the-circumstances

factors mentioned in Gingles and earlier

opinions relate only to the third

question. (A108, A158-A159)

12

The Eleventh Circuit Court of

Appeals, in Carrollton Branch of NAACP v.

Stallings, 829 F.2d 1547 (11th Cir.

1987), has also arrived at yet another

interpretation of Gingles, which appears

to be closer to the clear and straight-

forward manner in which the district

court herein applied it.

In sum, the completely divergent and

conflicting interpretations of Gingles by

the Court of Appeals of the Eleventh

Circuit create a compelling need for

Clarification and guidance by this Court.

The need for such clarification and

guidance is even more significant in

light of the 1990 U.S. census, scheduled

for publication in April of 1991, and its

potential impact on Voting Rights Act

Claims. Whether or not the three Gingles

factors are to be mechanically and

13

conclusively applied, based on the new

census data, will be an extremely

important issue to every State and

political subdivision, but particularly

to the Petitioners and others who could

find themselves greatly affected by very

slight changes in numbers.

II. SHOULD THE COURT'S GINGLES OPINION

BE CLARIFIED, AS TO HOW SMALL A

MINORITY MAY BE ENTITLED TO A

REMEDY FOR ALLEGED VOTE DILUTION, IN

VIEW OF THE DISCLAIMER OF ANY RIGHT

TO PROPORTIONAL REPRESENTATION IN

THE VOTING RIGHTS ACT OF 1965?

In the instant case, the district

court found that the complaining minority

constitutes 11.06% of the total popula-

tion of Liberty County. This percentage

translates to 471 persons out of a total

population of 4,260.

Historically, the focus of racial

vote dilution actions concerned minority

14

groups that were not getting their

"number's worth" in terms of political

influence. In Whitcomb v. Chavis, 403

U.S. 124, 156 (1971), this Court stated

that a group entitled to a remedy for

vote dilution must be "numerous enough to

command at least one seat and represent a

majority living in an area sufficiently

compact to constitute a single member

district." (Emphasis added.) Logically,

the smaller a group is as a percentage of

the total population, regardless of its

potential to constitute a majority of a

single member district, the greater the

danger of creating an entitlement to

proportional representation, which is

specifically disclaimed in section 2 of

the Voting Rights Act.

Certainly it was not the intent of

Congress in amending the Voting Rights

15

Act in 1982 to insulate any group from

normal political defeat, and it becomes

increasingly difficult to draw the line

between normal political defeat and vote

dilution when a minority's numbers do not

constitute "a seat's worth" on a propor-

tional basis. Mechanistic application of

the Gingles factors affords no safeguards

against the creation of a right to

proportional representation.

Mechanically applying a 51%-of-any-

possible-district test, as it appears

Judge Kravitch would do is--purely and

simply--proportional representation in

its worst form. (Actually, it was not

even a 51% figure on which many of the

pre-Gingles decisions focused, but 65%--

the percentage which appeared to be

necessary to give an effective remedy in

fashioning single-member districts. )

16

Justice O'Connor, in her Gingles

concurrence, warned of this consequence

in stating:

{[Ajlthough the Court does not

acknowledge it expressly, the

combination of the Court's

definition of minority voting

strength and its test for vote

dilution results in the creation of

a right to a form of proportional

representation in favor of all

geographically and politically

cohesive minority groups that are

large enough to constitute

majorities if concentrated within

one or more single member districts.

478 U.S. at 85.

The instent case is a perfect

illustration of how mechanical appli-

cation of the Gingles factors creates a

right to proportional representation. As

stated above, the complaining minority

herein constitutes only 11.06% of the

total population of Liberty County. In

other words, the total minority popula-

tion is not only less than "a seat's

a il it rt i i i i es) SS

17

worth" on a proportional basis, it barely

constitutes one-half the numbers repre-

sented by a seat as a percentage of the

total population. Mechanical application

of the Gingles factors to the instant

case, as urged by Judge Kravitch, not

only creates a right to proportional

representation, but a right to

disproportional representation. Stated

differently, the complaining minority

herein is given an entitlement to not

only its "number's worth," but to almost

twice its number's worth.

Under the Kravitch approach in this

case, a tiny minority group, sufficiently

concentrated within a political subdivi-

sion to give it a bare majority ina

possible single-member district, would be

entitled to its own seat under the Voting

Rights Act. What, then, would prevent a

18

court from requiring the creation of more

seats so as to accommodate an even tinier

minority group? After all, the number of

seats is also "a voting standard, prac-

tice, or procedure" which could give rise

to a violation of the statute. That,

however, is a right to proportional (or

less than proportional) representation.

In section 2 of the Voting Rights

Act, Congress unequivocally stated its

disclaimer of any right to proportional

representation: "Provided, that nothing

in this section establishes a right to

have members of a protected class elected

in numbers equal to’ their proportion in

the population." 42 U.S.C. § 1973.

Perhaps the real question here is, when

and how, in terms of results, is a right

to proportional representation created?

Otherwise, the above-quoted language is a

19

nullity.

There is a compelling need for this

Court to provide clarification and

guidance concerning this issue, as

impacted by the Gingles factors in the

instant case, particularly if the

mechanical approach of Judge Kravitch is

adopted by this Court.

III. MAY AN THE COURT OF APPEALS MAKE

CONCLUSIVE FACTUAL FINDINGS, AS A

MATTER OF LAW, AS TO THE THRESHOLD

FACTORS ADOPTED IN GINGLES, IN A

CASE WHICH WAS TRIED BEFORE GINGLES

WAS DECIDED, WHEN THE EVIDENCE WAS

DISPUTED AND WHEN THE TRIAL COURT

DID NOT MAKE FINDINGS AS TO ALL OF

SUCH FACTORS?

The trial court herein made the

following findings of fact:

1. North Florida and Liberty County

have a long history of extensive official

discrimination affecting the rights of

blacks to participate in political

20

* processes. (A220)

2. While the Respondents had

established a statistically significant

degree of racial bloc voting by black

voters, there was no analysis of white

voting patterns and no evidence of white

and black preferences as to non-minority

candidates; therefore, Respondents had

not proven any legally significant racial

polarization in terms of the Gingles

standards. (A220-A237)

3. A party nomination majority vote

requirement and the large size of Liberty

County to cover in an at-large election

may enhance the opportunity to discrimi-

nate against blacks in the election

process. (A238)

4. Blacks have not been denied

access to an existing informal slating

process. (A239)

21

5. There is no significant

impediment to black political partici-

pation in Liberty County, and black

political participation in recent years

has been substantial. (A243-A244)

6. Recent campaigns in Liberty

County have not been characterized by

overt or subtle racial appeals. (A246-

A247)

7. No black has ever been elected

to countywide office in Liberty County.

(A247)

8. Although even the Respondents

testified that the elected officials in

Liberty County are approach-able and

sensitive to the particularized needs of

black citizens, a finding of a signifi-

cant lack of responsiveness to the

interests of blacks by Liberty County's

elected officials was necessary, based

22

upon the school system's treatment of Mr.

Stallworth in refusing to prosote him to

principal, as detailed in Stallworth v.

Shuler, 35 F.E.P. 770 (N.D. Fla. 1984),

aff'd 777 F.2d 1431 (11th Cir. 1985).

(A248=-A249)

9. At-large elections in Liberty

County are in conformance with a State

policy which is not tenuous and which was

not racially-motivated. (A250-A253)

10. In a District drawn at the

Respondents' request, containing

virtually all the black residents of

Liberty County, blacks still comprise

only 49 percent of the population and

46.2 percent of the registered voters and

could still not elect their own candidate

in a completely racially-polarized

districtwide election. (A253-A257)

11. Blacks in Liberty County are

23

perceived by all candidates as a ‘swing

vote' crucial to success, and==-in spite

of the treatment of Mr. Stallworth by the

school system=--white elected officials

are available, responsive, and sensitive

to black voters. (A257=A259)

12. Because of the ‘swing vote'

influence of black voters, many members

of the Responden* class, including two of

the four named Respondents, are ambiva=

lent about or opposed to single=member

districts, and believe their greatest

political influence lies in an at-large

election system. (A260=-A261)

13. Based on the totality of the

circumstances, blacks in Liberty County

suffer no dilution of their votes as a

result of at-large elections and do not

have less opportunity than whites to

participate in the election process and

24

to elect representatives of their choice.

(A269-A276)

On appeal to a three-judge panel,

the Court of Appeals unanimously vacated

the judgment and remanded for further

proceedings. (A195-A196) In an opinion

authored by Judge Tjoflat, the Court

interpreted Thornburg v. Gingles as

establishing a four-step test for finding

a Voting Rights Act violation based on

vote dilution by an at-large election

system. (A158-A159) (This test was not

adopted by a majority of the Court of

Appeals in the en banc decision.)

In arriving at its conclusions, the

Tjoflat opinion disagreed with the trial

court's findings of fact numbered above

asl, 2, 3, 4, 65 8, 9 end.id.. The

disagreements primarily focused on the

failure of the trial court to explain the

25

bases for some of the findings, the

failure of the trial court to relate its

findings to the four-step test espoused

by Judge Tjoflat, or the trial court's

characterization of the quality and

credibility of the Respondents' evidence.

(A172-A191) Judge Tjoflat's opinion also

held that findings numbered above as 11

and 12 were not relevant to the ultimate

determination expressed above as number

13 (A192-A195), and it directed a

reconsideration of the evidence by the

trial court. (A195-A196)

After rehearing en banc, the

Eleventh Circuit Court's per curiam

opinion held "as a matter of law, that

the [Respondents] have satisfied the

three Gingles factors" and remanded to

the district court for further proceed-

ings, without instructions because the

26

panel could not agree as to the effect of

those three findings. (A2-A3) It is

clear from references to two of the

specialiy concurring opinions that the

"three Gingles factors" referred to were:

(1) that blacks were numerous and

concentrated enough to control a single-

member district; (2) that blacks in

Liberty County are politically cohesive;

and (3) that the whites in Liberty

County vote sufficiently as a bloc that

they are usually able to defeat the

blacks' pre-ferred candidate. (A2, A18-

A24, A42, A108)

It is also clear from the evenly-

divided Court in this case that Gingles

requires some clarification. Perhaps

because the Court of Appeals was so

intent on attempting to resolve its

vastly-different interpretations of

27

Gingles, or because of its frustration in

not being able to do so, the en banc per

curiam opinion and remand violates

several established legal precepts,

beginning with the "clearly erroneous"

standard set out in Rule 52(a), Federal

Rules of Civil Procedure.

This Court, in Thornburg v. Gingles,

at 478 U.S. 78-9, reaffirmed that the

clearly erroneous standard applies not

only to the subsidiary factual determi-

nations in a voting rights case, but also

to the ultimate factual conclusion of

vote dilution because of multimember

districts. In regard to the first

Gingles threshold finding which the per

curiam opinion held to have been proved

as a matter of law (that a minority group

is large enough and sufficiently con-

centrated to control a single-member

28

district), the trial court made exactly

the opposite finding, based on its

specific findings that blacks did not

constitute a majority of the popula-

tion, or a majority of the registered

voter population, in the one Liberty

County district where almost all of the

County's black citizens resided.

In the original opinion of Judge

Tjoflat, who also authored one of the

specially concurring opinions after the

en banc hearing, he incorrectly indicated

that the trial court's conclusion on this

issue was based on registered voting age

population as being the determinative

factor. However, it was both registered

voter population and total population

that the trial court used. (A254) Judge

Tjoflat, in his original opinion, and

Judge Kravitch, in her en banc concurring

29

opinion, nonetheless determined that the

black voting age population for the same

district was 51% (A20, A162) and that

such a percentage was sufficient to meet

the first Gingles standard. The trial

court, however, made no finding of fact

at all as to the black voting age popula-

tion percentage in the district. It

should be given the opportunity to do so,

however, before this issue is resolved

herein "as a matter of law."

This is particularly true since, as

Judge Tjoflat's original opinion notes,

the Gingles opinion "seems to refer

simply to gross minority population"

(A163) and neither the trial court herein

nor the Respondents had the benefit of

any different interpretation of the

standard when this case was tried or

decided. The only evidence in the record

30

as to percentage of black voting age

population in District I was the Respon-

dents' unverified estimate of 51%, which

was not challenged by the Petitioners

because of the 49% total population.

estimate. Nevertheless, it can be

demonstrated from other information in

the record, plus census data judicially

noticeable, that the 51% estimate cannot

possibly be correct.

Using figures found by the trial

court and census data included in the

Statement of the Case, if there are 423

blacks in District I and that number

comprises 49% of the District I popu-

lation, there are 863 total persons in

the district, 440 of whom (51%) are

white. Pursuant to the census, the

Liberty County blacks tend to be slightly

younger. (Only 66.24% of them are 18 or

31

Older, compared to 70.66% of the whites;

the countywide average is 70.20%.) Using

the countywide average, of the 863

persons in District I, there are 606

persons of voting age. For 51% of that

number to be black, as 'found' by the

Court of Appeals, 309 of the County's 312

blacks of voting age would have to live

in District I. That would mean only

three of the 48 black persons living

outside District I would be of voting

age, or only 6.25% of them, but that

would be less than one-tenth of the

statistical average for blacks county-

wide. It would also mean a great number

of children living on their own outside

of District 1!

Petitioners believe that it can be

demonstrated from other census data (for

the Enumeration Districts from which the

32

County's residency districts were

created) that a 51% voting age majority

in District I is not only extremely

improbable, but statistically impossible.

Such a demonstration, however, is more

appropriately made at the trial court

level. Suffice it to say that even Judge

Tjoflat, in his original opinion, was

hesitant to rely on the Respondents'

unverified estimate and stated:

On remand, the district court may

make further inquiries into the

exact demographics of the proposed

District I to ensure that blacks

will constitute a majority of its

voting age population.

(A201)

Nothing in the record has changed or

been verified or become more reliable

since the original appeal. If percentage

of black voting age population is now to

be the determinative factor, the trial

court should be given the opportunity to

33

make a finding from the total record and

any matters judicially noticeable as to

the actual black voting age population

percentage in the district. For the

decision in this case to hinge on an

unverified estimate of a number which, at

the time of trial, was not a determi-

native factor because Gingles had not yet

been decided, would be a total usurpa-

tion, “as a matter of law," of the trial

court's fact-finding authority and

capacity.

The Court of Appeals also held that

the second and third Gingles standards

had been established herein "as a matter

of law." These standards are that blacks

in Liberty County are politically cohe-

sive and that whites vote sufficiently as

a bloc as to usually defeat the blacks'

preferred candidates. The trial court

34

had not made two separate findings on

these issues. Instead, not having the

benefit of any subsequent analyses and

explanations of the Gingles opinion, the

trial court found that voting in Liberty

County was not “racially polarized". The

Court's explanation of that finding was

clearly that, while there was statis-

tically significant evidence of black

racial bloc voting, the Respondents had

not proved that Liberty County racial

bloc voting was legally significant in

terns of a vote dilution challenge,

meaning that there was no evidence of

white bloc voting sufficient to usually

prevent blacks from electing candidates

of their choice. (A224-A237)

The Respondents' evidence on these

issues was limited to a bivariate regres-

sio:. analysis, which the trial court

35

recognized as being an acceptable method

of proving racial bloc voting in accor-

dance with Gingles. (A228) The trial

court, however, had several reservations

as to the oonclusions reached by the

Respondents' one expert witness as a

result of the data generated by the

regression analysis (A225-A226, A230-

A233), as well as the validity of the

expert's inferences and assumptions

(A233, A235-A236), and the court's

reservations were supported by an expert

witness called by the Defendants. (A223)

In addition, the Respondents' expert only

measured black voting patterns, not

white, and the expert's own figures

showed that, of the only four black

candidates to ever have run for county-=

wide office in Liberty County, two of

them received considerable white vote

36

(33% and 40.5%) in races against a single

white opponent. (A210-A211)

Finally, there was no attempt by the

Respondents or their expert witness to

show how often the preferred candidates

of Liberty County blacks were elected to

office. The Respondents' figures merely

showed that the only four black candi-

dates ever to have run in Liberty County

were supported by black voters but were

defeated. ‘The Respondents produced no

evidence as to how many total candidates

(both black and white), which were pre-

ferred by Liberty County black voters,

had been elected or defeated. That,

however, is the true test of a vote

dilution claim, and the trial court's

conclusion was supported by the record,

while the Circuit's Court's factual

finding “as a matter of law" was rot.

37

In Gingles, this Court reaffirmed

that the Voting Rights Act is intended to

prohibit a majority from diluting the

ability of members of a minority group to

elect “representatives of their choice"

==not "minority representatives of their

choice"=sand that it is the "statis of

the candidate as the

the race of the candidate, that is

important." 478 U.S. 68. The Eleventh

Circuit Court, subsequent to Gingles,

also has interpreted the Voting Rights

Act in exactly this manner. Carrollton

gs, 829 F.2d

1547, 1557 (11th Cir. 1987).

Nevertheless, the Eleventh Circuit

here has substituted its opinion for that

of the trial court and held that white

voters in Liberty County will usually

38

vote sufficiently as a bloc so as to

defeat the preferred candidates of black

voters, and it has done so on a record

which only shows that four particular

candidates (who happened to be black) who

were supported by black voters were

defeated; that two of these candidates

received considerable support from white

voters; and that, while the Respondents

produced no evidence as to black voters'

success in all other Liberty County

elections, the black voters are generally

perceived in Liberty County as being the

‘swing vote' likely to decide any race.

The trial court herein interpreted

Gingles as requiring an ultimate finding

of whether or not the black voters of

Liberty County have suffered a wn

dilution because of at-large elections,

based on the totality of the circum-

39

stances. (A264-A269) Judge Tjoflat and

four other Eleventh Circuit Judges read

Gingles as requiring a four-step

determination, with the totality-of-the-

circumstances factors mentioned in

Gingles and earlier opinions relating

only to the third question. (A108, A158-

A159) Judge Hill also views Gingles as

not requiring single-member districts, no

matter the findings as to the three

threshold issues, when, as in Liberty

County, single-member districts would

lessen the political influence of black

voters. (A122-A125) Judge Kravitch and

four other Eleventh Circuit Judges

interpret Gingles as requiring single-

member districts whenever the three

threshold factors are present, regardless

of any other factor. (A26)

However, even though the Eleventh

40

Circuit Judges cannot agree as to what

the law is that the trial court is to

apply on remand in determining factual

issues, it could be argued that the

Circuit Court did not re-evaluate the

weight and credibility of the evidence

and substitute its judgment for that of

the trial court, but that it merely set

aside the trial court's findings for

errors of law. Even in such a case, this

Court has found to be "incredible" a

Circuit Court's determination that it had

the authority

- - « to permit it to examine the

record and make its own independent

findings with respect to those

issues on which the district court's

findings are set aside for an error

of law. ... {W)jhen a district

court's finding on such an ultimate

fact is set aside for an error of

law, the court of appeals is not

relieved of the usual requirement of

remanding for further proceedings to

the tribunal charged with the task

of factfinding in the first

instance.

41

Pullman-Standard v. Swint, 456 U.S. 273,

293 (1982).

In Pullman-Standard, at 456 U.S.

292, the Court also held that a remand

for further fact-finding is required when

the trial court fails to make a relevant

finding of fact, as in this case when the

court made no finding as to the percen-

tage of black voting age population in

the relevant district.

Shortly after its decision in

Gingles, this Court remanded another

voting rights case for reconsideration in

light of the Gingles opinion. Collins v.

City of Norfolk, 478 U.S. 1016 (1986).

The Fourth Circuit Court in that case,

rather than make its own findings of fact

based on its interpretation of Gingles,

remanded to the trial court for further

findings. Collins v. City of Norfolk,

42

816 F.2d 932 (4th Cir. 1987). That is

exactly what the Court of Appeals should

have done in this case.

Interestingly, the subsequent

district court opinion in Collins v. City

of Norfolk, 679 F.Supp. 557 (E.D. Va.

1988), appears to interpret Gingles much

more clearly and straightforwardly than

did any of the Eleventh Circuit Judges in

this case. In fact, the ultimate

district court decision in Collins is

very similar to the district court

decision in this case, since in Collins

it was held that:

1. A mere preference for different |

candidates by different races is not

legally significant. 679 F.Supp. at 566.

2. Polarized voting is not legally

significant unless white bloc voting

usually defeats minority-preferred

43

candidates. Id.

3. While regression analysis is

acceptable as a method of proving racial

bloc voting, the validity or probative

value of any particular study may be

undercut by methodological flaws. 679

F.Supp. at 571.

4. Unreliable figures and unreli-

able conclusions in a regression analysis

may distort the results. 679 F.Supp. at

572.

5. It is a candidate's status as

the choice of a minority racial group,

not the candidate's race, which is of

legal significance. Id.

6. In the City of Norfolk, in spite

of a questionable bivariate regression

analysis which established a pattern of

racial bloc voting, more than half of all

candidates receiving majority black

44

support were elected over an eighteen-

year period. Id.

7. Determinations as to alleged

Voting Rights Act violations cannot be

made on a mechanical basis, but must be

made based on the totality of the circun-

stances, which in turn, quoting Gingles,

must be based on "a searching, practical

evaluation of the 'past and present

reality,' and on a ‘functional' view of

the political process." 679 F.Supp. at

586.

The trial court in Collins was again

reversed and remanded (on grounds not

involved in the instant case) in Collins

v. City of Norfolk, Va., 883 F.2d 1232

(4th Cir. 1989), and is now pending

before this Court again on a granted

Petition for Writ of Certiorari.

In spite of attempts by the Eleventh

45

Circuit Judges to reduce Gingles to one

or another mechanical formula, the

Gingles opinion clearly reinforces the

pre-Gingles law that the totality of the

circumstances determines the outcome of a

Voting Rights Act Section 2 claim and

that trial judges are much better suited,

are in a much better position, and are

more competent to make the factual

findings necessary to determine the >

claim. In Rogers v. Lodge, 458 U.S. 613,

622-3 (1982), this Court held that Rule

52(a) makes no exceptions for different

categories of findings; that the rule

applies both to determinative findings

and to subsidiary findings in a vote

dilution case; and that findings of

district court judges in such cases

should not be set aside unless clearly

erroneous,

46

. . ‘representing as they do a

blend of history and intensely local

appraisal of the design and impact

of the . . . multimember district in

the light of past and present

reality, political and otherwise. '

458 U.S. 622, quoting White v. Regester,

412 U.S. 755, 769-70 (1973).

CONCLUSION

This post-Gingles case comes to this

Court from an en banc decision of a Court

of Appeals which reversed a district

court finding of no violation of Section

2 of the Voting Rights Act. The Court of

Appeals, however, was hopelessly dead-

locked as to what, upon remand, Gingles

required of the district court. Unless

this Court resolves critical issues of

federal law raised by the apparent

ambiguity of Gingles, enormous burdens

will be imposed upon the judiciary and

untold litigation hours and expense will

47

be incurred in this and like cases.

The Petition for Writ of Certiorari

should, therefore, be granted.

Respectfully submitted,

Kenneth L. Hosford, Sq.

School Board Attorney

210 Office Plaza

Tallahassee, Florida 32301

-(904) 878-0308