# Petition for Writ of Certiorari — Liberty County v. Solomon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1023

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2502%3A1. Public record. Not legal advice.