Appendix — Nipper v. Smith

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941463 MAR 2 1995

OFEGE GE THE @LaRiS.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JESSE L. NIPPER, et al.,

Petitioners,

v.

JIM SMITH, SECRETARY OF STATE, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BARBARA R. ARNWINE ROBERT B. McDUFF

THOMAS J. HENDERSON 771 North Congress Street

BRENDA WRIGHT* Jackson, MS 39202

SAMUEL L. WALTERS (601) 969-0802

TODD A. COX

Lawyers’ Committee for MITCHELL F. DOLIN

Civil Rights Under Law Covington & Burling

1450 G Street, N.W. 1201 Penn. Ave., N.W.

Suite 400 Washington, D.C. 20044

Washington, D.C. 20005 (202) 662-6000

(202) 662-8600

*Counsel of Record

Attorneys for Petitioners

INDEX

APPENDIX A

Court of Appeals en banc opinion

December 2,1994

’

APPENDIX B

Court of Appeals panel opinion,

September 15,1993

APPENDIX C

District Court opinion,

PI Ti Bi cine inscieceschcsececsease ceca.

APPENDIX D

Statutory Provision

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CPPCC O SEs er Oe ereseseceeeeesoS

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-2588

Jesse L. NIPPER; Donald A. Carter;

Annie Ruth Williams; Selendra Williams;

Katrina Miles; Desi Wayne Dunlap;

Carol D. Days; Anthony Days, and

D.W. Perkins Bar Association,

Plaintiffs-Appellants,

Vv.

Jim SMITH; Dot Joyce, Director of the Florida Division

of Elections; Tommie R. Bell, Supervisor of

Elections in Duval County; and

Lawton Chiles, Governor,

Defendants-Appellees.

OPINION

December 2, 1994, Decided

Appeal from the United States District Court

for the Middle District of Florida.

(No. 90-447-CIV-J-16).

John H. Moore, I, Chief Judge.

2a

COUNSEL:

ATTORNEY(S) FOR APPELLANT(S):

Brenda Wright, Esquire, Washington, DC, Robert B.

McDuff, Esquire, Jackson, MS, Denise M. Prescod, Es-

quire, Jacksonville, FL. Mitchell F. Dolin, Esquire,

Covington & Burling, Washington, D.C. Sherrilyn A. Ifill,

New York, N.Y.

ATTORNEY(S) FOR APPELLEE(S):

George L. Waass, Department of Legal Affairs, Talla-

hassee, FL, Harry F. Chiles, -do-, Denis Dean, -do-, Frank

E. Brown, Asst.Atty. Gen., Tampa, FL, Leonard S.

Magid, Jacksonville, FL, Mitchell D. Franks, Lakeland,

FL.

ATTORNEY(S) FOR AMICUS BRIEFS, For USA:

Rebecca K. Troth, DOJ, Civil Rights Division, Appellate

Section, Washington, D.C., Devel Patrick, -do-, Howard

C. Coker, COKER, MYERS, SCHICKEL, COOPER &

SORENSON, The Florida Bar, Tallahassee FL, (For

Amicus Fla. Bar Trial Lawyers Section).

JUDGES:

Before TJOFLAT, Chief Judge, KRAVITCH,

HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH >

and DUBINA, Circuit Judges. *

OPINION BY: TJOFLAT

OPINION:

TJOFLAT, Chief Judge:

Section 2(a) of the Voting Rights Act, 42 U.S.C. § 1973

(1988), states that “no voting qualification or prerequi-

site to voting, or standard, practice, or procedure shall

* Judges Black, Carnes and Barkett recused themselves and did not

participate in the consideration or decision of this case.

LS ee

3a

be imposed or applied by any State or political subdivi-

sion in a manner which results in a denial or abridge-

ment of the right of any citizen of the United States to

vote on account of race or color.” Under section 2(b) of

the Act, “[{a] violation of [section 2(a)] is established if,

based on the totality of the circumstances, it is shown

that the political processes leading to nomination or

election in the State ... are not equally open to participa-

tion by members of a class of citizens protected by

[section 2(a)] 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.” Section 2 applies to state judicial elections.

Chisom v. Roemer, 501 U.S. 380, 404, 111 S. Ct. 2354,

2368, 115 L. Ed. 2d 348 (1991); Houston Lawyers’ Ass’n

v. Attorney Gen., 501 U.S. 419, 423-24, 111 S. Ct. 2376,

2379, 115 L. Ed.2d 379 (1991).

In this case, the appellants, black voters and an associ-

ation of black attorneys, challenge the system used to

elect the judges of Florida’s Fourth Judicial Circuit

Court, which encompasses Duval, Clay, and Nassau

counties, and the judges of the Duval County Court. The

appellants contend that the use of at-large elections in

those trial court jurisdictions dilutes the voting strength

of the black minority in violation of section 2; they seek

a remedy, such as the creation of subdistricts, that will

ensure their ability to elect black judges of their choice.

The appellees contend that the appellants are entitled to

no relief. First, the appellants and the black voters they

represent have suffered no racial vote dilution. Second,

assuming that vote dilution exists, the relief the appel-

lants seek would so alter the structure of the Fourth

Judicial Circuit and Duval County courts as to under-

mine the ability of those courts to administer justice.

Following a five-day bench trial, the United States

District Court for the Middle District of Florida dismissed

4a

the appellants’ case. The court did so on two grounds: (1)

the appellants failed to establish an essential element of

a vote dilution case—racially polarized voting in tne

relevant communities—as required by Thornburg v.

Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d

25(1986); and (2) the appellees’ rebuttal evidence

demonstrated that, under “the totality of the circum-

stances,” racial discrimination was not playing a role in

the judicial elections under challenge. The district

court’s finding of no section 2 liability made it unneces-

sary for the court to consider the matter of remedy.

On appeal, a panel of this court concluded that the

evidence before the district court demonstrated racially

polarized voting in the Fourth Judicial Circuit and Duval

County as a matter of law, and thus a section 2 viola-

tion. Without considering, as required by Houston

Lawyers’ Ass’n, 501 U.S. at 426, 111 S. Ct. at 2380-81,

the appellees’ argument that the relief the appellants

sought would undermine the administration of justice in

those jurisdictions, the panel remanded the case to the

district court for the imposition of a remedy. Nipper v.

Smith, 1 F.3d 1171, 1184 (11th Cir.1993). The case is now

before us on rehearing en banc. Nipper v. Smith, 17 F.3d

1352 (11th Cir.1994).

To determine whether the district court erred in hold-

ing that the appellants failed to establish a case of vote

dilution, we must address a question the Supreme Court

has not decided and our divided en banc court in Solo-

mon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en

banc) (per curiam), cert. denied, 498 U.S. 1023, 111 S. Ct.

670, 112 L. Ed. 2d 663 (1991), has precluded us from

answering: whether section 2 plaintiffs, in order to

establish that the challenged electoral scheme is diluting

their right to vote “on account of [their] race or color,”

must demonstrate that their diminished opportunity to

participate in the political process and to elect represen-

tatives of their choice is being caused by the interaction

ttt Meee Nidal elites

5a

of racial bias in the voting community and the chal-

lenged scheme. Without an answer to this question, we

cannot determine what evidence is relevant, and the

weight it should be accorded, in the totality of the

circumstances inquiry of section 2(b). Specifically, we

cannot determine the weight to be accorded the state

policies underlying the challenged judicial electoral

scheme. Houston Lawyers’ Ass’n, 501 U.S. at 426,111 S.

Ct. at 2380-81. Nor can we determine, given those poli-

cies and the structure of the courts involved, whether

the remedy sought is feasible.

In part I of this opinion, we set forth the facts and

procedural history of the case. In part II, we address the

question left unanswered in Solomon: whether the exist-

ence of racial bias in the voting community necessarily

forms the basis of a section 2 violation. We hold that the

totality of the circumstances must demonstrate that the

voting community is driven by racial bias and that the

electoral scheme in question permits that bias to dilute

the plaintiff minority’s voting strength. In part I, after

noting several important differences between judicial

and legislative elections, we discuss the factors, includ-

ing the policies advanced by Florida’s method of select-

ing its trial court judges, involved in the totality of the

circumstances analysis in judicial election cases. In parts

IV and V, we apply the principles set forth in parts I

and III to the case at hand. In part IV, we examine the

district court’s finding of no vote dilution and conclude,

as did the panel, that the appellants established a case of

ditution. In part V, we consider the matter of remedy.

We find that the type of relief the appellants seek would

undermine the administration of justice in the trial

courts at issue; we therefore affirm the district court’s

denial of section 2 relief.

s

Voting rights cases are inherently fact-intensive, par-

ticularly those section 2 vote dilution claims alleging

6a

that, due to the operation of a challenged voting

scheme, minority voters are denied an equal opportunity

to participate in the political process and to elect repre-

sentatives of their choice. In such cases, courts must

conduct a “searching practical evaluation of the ‘past

and present reality’ ” of the electoral system’s operation.

Gingles, 478 U.S. at 45, 106 S. Ct. at 2764 (quoting S.Rep.

No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in

1982 U.S.C.C.«.N. 177, 208). Accordingly, because a

claim of vote dilution must be evaluated with a func-

tional, rather than a formalistic, view of the political

process, the Supreme Court has emphasized the impor-

tance of “ ‘an intensely local appraisal of the design and

impact’ ” of the electoral structure, practice, or proce-

dure at issue. Jd. at 79, 106 S. Ct. at 2781 (quoting Rogers

v. Lodge, 458 U.S. 613, 621, 102 S. Ct. 3272, 3278, 73 L.

Ed. 2d1012 (1982)). Given the necessity of a nuanced

understanding of the election system in evaluating a

claim of racial vote dilution, we set out the factual

background of this case in some detail.!

' A more extensive summary of the district court’s factual findings

can be found in that court’s opinion. See Nipper v. Chiles, 795 F.

Supp. 1525, 1532-39 (M.D.Fla.1992). The following discussion includes

additional material not discussed by the district court of which we

take judicial notice. Under Rule 201 of the Federal Rules of Evidence,

“[a] judicially noticed fact must be one not subject to reasonable dis-

pute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably

be questioned.” Moreover, it is recognized that:

Appellate courts have a special need to resort to facts not found

in the record.When the question before the court is not merely

the rights of the parties, but the interests of others who may be

affected by the rule the court makes to govern the case, it would

be foolish for the court to rely only on the evidence the parties

have chosen to prove below.

21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice

and Procedure: Evidence § 5102, at 462 (1977). Accordingly, we have

attempted to develop a more complete picture of judicial elections in

the Fourth Circuit and Duval County than that presented to the dis-

trict court.

7a

A,

Florida’s judiciary employs two tiers of trial courts.

The circuit courts have general jurisdiction over civil and

criminal cases while the jurisdiction of the county

courts is restricted to certain statutorily defined classes

of misdemeanor and small claims cases.? Fla. Const. art.

5, §§ 5-6 (WestSupp.1994); Fla.Stat.Ann. §§ 26.012, 34.01

(West 1988 & Supp.1994). Florida currently has twenty

circuit courts (designated by number); they range from

single-county circuits (in highly populated areas like

Miami or Tampa) to circuits comprised of as many as six

or seven counties (many of which are rural). See

Fla.Stat.Ann. § 26.021 (West 1988). Each circuit judge

has jurisdiction or authority within the entire circuit;

similarly, the jurisdiction of each judge of the county

court extends throughout the county. Although the cir-

cuit and county courts have multiple members, like most

trial courts they do not operate as collegial bodies; rath-

er, the judges exercise independent judicial authority,

engaging in coordinated decision making only for the

handling of some administrative matters.

Circuit judges serve six-year terms and county judges

serve four-year terms, Fla. Const. art. 5, § 10; in all

other respects, the office of judge on the two benches is

virtually identical. The judges of the circuit and county

courts are elected at-large in nonpartisan circuitwide and

countywide elections, respectively; they must reside

within the territory of the court on which they serve.

The at-large judicial elections for both courts are charac-

terized by a majority vote requirement,*? a numbered

? Florida also has two levels of appellate courts: the district courts

of appeal (intermediate appellate courts) and a supreme court. Fla.

Const. art. 5, §§ 3-4 (West Supp.1994). Only the selection of trial

court judges is challenged in this case, however.

® To be elected to office, a judicial candidate must receive a majori-

ty of the votes cast. All candidates for a particular seat first compete

in nonpartisan primaries; if no candidate receives an outright majori-

8a

place system (meaning that candidates must run for a

particular seat on the court), and the use of staggered

terms. In order to qualify to run for a judgeship, a candi-

date must pay a filing fee (although a candidate can

avoid the fee by obtaining a number of signatures from

registered voters on a petition), see Fila.Stat.Ann.

§§ 105.031(3) & .035 (West 1992), and must have been a

member in good standing of The Florida Bar for at least

five years immediately preceding the election in ques-

tion, see Fla.Const. art. 5, § 8. In the event of a mid-term

vacancy on either court, the governor appoints a re-

placement to serve until the next general election. /d.

§ 11.

In the instant case, the appellants challenge the elec-

toral system for both trial courts in and around Jackson-

ville, Florida.’ The Fourth Judicial Circuit is located in

northeast Florida and consists of Duval, Clay, and

Nassau Counties. Duval County encompasses the City of

Jacksonville; the county and city governments were

consolidated in 1968. According to the 1990 census, the

total population of the Fourth Circuit is 822,928; the

black population is 173,937, or approximately twenty-

one percent of the total. At the time of trial in 1991, the

ty, a runoff election is held between the two candidates who received

the most votes in the primary.

* A numbered place requirement forces candidates for multimember

offices (like the courts at issue here) to run for a particular seat,

rather than for any existing vacancy. Each seat is given a designated

place on the ballot (group 1, 2, 3, and so forth) so that all of the

candidates are not competing against one another. The effect of a

numbered place system is therefore to break what would otherwise

be a single contest into several mini-elections. See Pamela S.Karlan,

Maps and Misreadings: The Role of Geographic Compactness in Racial

Vote Dilution Litigation, 24 Harv.C.R.-C.L.L.Rev. 173, 186 (1989).

5 The appellees in this case are the Governor of Florida and the

relevant state and county election officials.

—se ee ee ee

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9a

Fourth Circuit had twenty-eight circuit judges, only one

of whom was black.® The total population of Duval

County (as of the 1990 census) is 672,971, of which

163,902, or approximately twenty-four percent, are

black. Two of the twelve judges on the Duval County

Court at the time of trial were black judges.’

Although the voting age populations of the Fourth

Circuit and Duvai County are nineteen and twenty-two

percent black, respectively, no black candidate for a

judgeship on either court has ever been elected to office

in a contested election. Every black judge who has

served on one of these courts originally reached office

by way of a mid-term appointment to a vacant seat.

Although forming a powerful initial sketch of the role

played by race in the relevant judicial elections, this

bare description of circuit and county court election

results paints only part of the total picture. To place the

elections at issue in this litigation into their proper

context, we first detail the historical evolution of the

Florida scheme of judicial elections. We then describe

the operation of the current model since its adoption in

1972 and examine the special circumstances and relative

infrequency with which black candidates have

sought judgeships on the Fourth Circuit and the Duval

County Court.

* The only black judge ever to have served on the Fourth Circuit

bench at the time of trial was Judge Henry Adams, who testified in

this case for the appellants. After the trial was completed but before

the district court rendered its decision, a second black judge, Henry

E. Davis, was appointed to the court.According to the district court,

however, “the Davis appointment has played no part in the Court’s

consideration of this case.” Nipper, 795 F. Supp. at 1536 n.10. In late

1993, after the district court issued its opinion, Judge Adams left the

circuit court and joined the federal bench as a judge of the United

States District Court for the Middle District of Florida.

7 The two black judges on the Duval County Court are Judges

Alfred Washington and James Ruth. Both originally were appointed

by the governor to fill vacancies, and both remain on the bench

today.

10a

B.

Article 5 of the Florida Constitution, which governs

the judicial branch of the state government, has evolved

over the last twenty-five years, thereby changing the

method of selecting state court judges dramatically.* For

much of this century, judicial positions in Florida were

filled through partisan elections. Florida voters adopted

a revised constitution in 1968, but the new version

temporarily retained the old system of partisan judicial

elections. In 1971, the Florida legislature adopted its first

nonpartisan electoral system for the state judiciary. The

statute, the contemporary counterpart of which is now

codified as Fla.Stat.Ann. § 105.011(2) (West 1992), pro-

vided essentially that ”[a] judicial office is a nonpartisan

office, and a candidate for election or retention thereto

is prohibited from campaigning or qualifying for such an

office based on party affiliation.” ® At that time, the

process of selecting judges became fundamentally differ-

ent from the methods used to choose other elected state

officials.

Article 5 was significantly amended in 1972, although

the revised version continued to provide that all judges

* For scholarly treatment of the history of judicial elections in Flori-

da, see Madison B. McClellan, Note, Merit Appointment Versus Popu-

lar Election: A Reformer’s Guide to Judicial Selection Methods in

Florida, 43 Fla.L.Rev. 529(1991); Joseph W. Little, An Overview of

the Historical Development of the Judicial Article of the Florida

Constitution, 19 Stetson L.Rev. 1 (1989). The district court was ap-

prised of much of this material because the appellees introduced into

evidence a report on this subject from Dr. William Rogers, an histori-

an at Florida State University.

* See also Fla.Stat.Ann. § 105.041(3) (West 1992) (“No reference to

political party affiliation shall appear on any ballot with respect to

any nonpartisan judicial office or candidate.”); Jd. § 105.071 (listing

limitations on partisan political activities by candidates for judicial

office); Id. § 105.09(1) (“No political party or partisan political organi-

zation shall endorse, support, or assist any candidate in a campaign

for election to judicial office.”).

lla

would be elected “by vote of the qualified electors

within the territorial jurisdiction of their respective

courts.” When a vacancy occurred on any court of the

state, however, the governor would make an interim

appointment until a permanent replacement for the

remainder of the predecessor judge’s term could be

elected. Although the ultimate decision regarding such

an interim appointment was entrusted to the discretion

of the governor, the appointee nonetheless had to be

selected from a slate of not fewer than three candidates

submitted to the governor by a judicial nominating

commission.‘ One commission was created for each

court in the state to accept applications from interested

eligible attorneys when vacancies arise and to make

recommendations thereon. The nominating commission

system was designed to inaugurate a merit selection

process for members of the state judiciary through the

submission of qualified nominees to the governor.

The system of judicial elections currently in place was

created by a further amendment to Article 5 that was

adopted by the citizens of Florida at the general election

in November of 1976. At that time, Florida adopted the

“Missouri Plan” '' for the selection of supreme court

justices and the judges of the district courts of appeal,

the intermediate appellate courts of the Florida judici-

ary. Initial selection of those justices and judges was

transferred away from the electorate to the nominating

commissions and to the governor. The new selection

Earlier this year, the legislature amended Fla.Stat.Ann. § 26.021

(which, in part, defines the number of judges on the various circuit

courts) to provide that “the judicial nominating commission of each

circuit, in submitting nominations for any vacancy in a judgeship, and

the Governor, in filling any vacanc, for a judgeship, shall consider

whether the existing judges within the circuit, together with potential

nominees or appointees, reflect ... the racial and ethnic diversity of

the population within the circuit, and the geographic distribution of

the racial and ethnic minority population within the circuit.” 1994

Fla.Sess.Law Serv. ch. 94-137, § 1.

12a

process empowers the governor to fill any vacancy (not

just an unexpired term) on the supreme court or the

district courts of appeal, the only condition being that

the selection must be made from a slate of “three per-

sons nominated by the appropriate judicial nominating

commission. “Fla. Const. art. 5, § 11(a). These initial

appointments are for partial terms of not less than one

year, id., at the end of which each justice or judge “may

qualify for retention [and a full six-year term] by a vote

of the electors.” Id. § 10(a). The justices and judges of

Florida’s appellate courts then stand for retention at the

end of every term. The retention elections, however, do

not involve challenges to the incumbent by another

competitor for office; rather, each candidate for reten-

tion under this approach runs against his or her estab-

lished record of performance.

The 1976 constitutional amendments, however, did not

alter the method of selecting circuit and county court

judges. Therefore, under the present system, which

constitutes a partial “Missouri Plan,” judges of the circuit

and county courts continue to be elected (in nonpartisan

elections) to six- and four-year terms, respectively, by

vote of the qualified electors in their jurisdictions. Jd.

§ 10(b). When a mid-term vacancy occurs, the governor

appoints a replacement from a slate provided by the

appropriate nominating commission, with a single

commission handling nominations for vacancies on a

circuit court as well as the county courts in that circuit’s

territory. Jd. § 11. As a result, subsequent elections,

even at the trial court levels, are affected by the merit

11 Missouri adopted its Nonpartisan Court Plan, which provided for

merit-based selection of state court judges, in 1940; Missouri’s plan

has since been emulated for some courts in at least thirty states. For

a more detailed discussion of the operation of Missouri’s system, see

Richard A. Watson, Observations on the Missouri Nonpartisan Court

Plan, 40 Sw.L.J. 1 (1986).

13a

selection of interim appointments by the governor upon

the recommendation of the judicial nominating commis-

sions; the momentum gained from initial selection by

such an independent review panel has a telling effect

upon later races in which the incumbent is a candidate.

Under the current system of electing trial court judges in

Florida, therefore, merit selection plays a part in all but

a few: those to fill vacancies on the circuit or county

court benches that occur at the end of a term—when, for

example, a judge retires and two challengers compete to

fill his or her seat.

These changes in Florida’s constitution were clearly

designed to eliminate the vices of partisan, electoral

politics from the process of selecting state court judges.

The goal of merit selection of judges, naturally, is to

insulate them from popular pressure and to make them

more willing to decide an unpopular case fairly and

impartially while, at the same time, raising the level of

qualifications of judicial officers.

C.

A total of five black candidates have run for seats on

either the Fourth Circuit or the Duval County Court in

six elections since 1972. We now highlight the circum-

stances surrounding each of those electoral races while

describing the methods by which the judges on those

courts have generally reached office during the same

period.

The first of the elections relied on by the parties in

litigating this case predates the inauguration of Florida’s

partial merit selection system for trial court judges. In

1972, Leander Shaw became the first black candidate for

a judgeship on a court at issue in this litigation. A black

lawyer who now serves as a justice of the Florida

Supreme Court, Shaw ran for a vacant seat on the

Fourth Circuit bench. In the nonpartisan primary, he was

opposed by two white candidates, John S. Cox and

14a

George L. Proctor. Shaw and Cox advanced to a runoff

election, which Cox ultimately won. The Shaw election

was one of only four Fourth Circuit electoral races that

were contested during the 1972 election cycle; the other

fifteen Fourth Circuit judgeships at stake in that year’s

elections were filled by candidates who ran unopposed.

The parties in this case introduced a wealth of statisti-

cal evidence that indicates how Florida’s scheme of trial

court elections has operated in the Jacksonville area

under the current model. A pattern readily emerges that

has prevailed throughout the period at issue in this case:

relatively few judicial elections have been contested in

the Fourth Circuit and in Duval County.’ Between

January 1, 1973, when the current system for selecting

circuit and county court judges went into effect, and the

end of 1990, the last year for which information was

available at the time of trial, the record reflects that

seventy-eight circuit judgeships were filled by election."

Of those positions, only ten (or approximately thirteen

percent) were contested; the rest were filled by candi-

12 Recognizing how often elections for judicial officers are not con-

tested in Florida generally, the legislature has provided that “the

name of an unopposed candidate for the office of circuit judge or

county court judge shall not appear on any ballot, and such candidate

shall be deemed to have voted for himself at the general election.”

Fla.Stat.Ann. § 105.051(1Xa) (West 1992).

8 The record does not reflect how many of these races involved an

incumbent seeking reelection. Obviously, that information would be

important in fleshing out the operation of the judicial election system

in the Fourth Circuit and in Duval County.

15a

dates who ran unopposed.'* Only one black candidate

ran for a seat on the Fourth Circuit bench during this

period: Harrell T. Buggs in 1978. In the primary, Buggs

and two white candidates challenged an incumbent

white judge, Lawrence D. Fay, who had been appointed

to the court through the merit selection process approx-

imately one hundred days before the election. Fay and

one of the white challengers, John E. Palmer, advanced

to the runoff; Buggs, who had obtained over eighty

percent of the black vote but only approximately four

percent of the white vote, was eliminated in the pri-

mary.

Focusing solely on the elections described above,

however, paints an incomplete picture of how judges

come to the circuit court bench in the Fourth Circuit.

According to the Duval County Clerk’s Office, a total of

fifty-four judges have served on the Fourth Circuit since

1972. Fourteen were hold overs from the pre-reform

system (six of whom were appointed by the governor

before the merit selection process was instituted and

eight of whom were elected). With respect to the re-

mainder, twenty-eight circuit court judges began their

judgeships after being appointed through the commission

14 The following information on the number of contested races for

Fourth Circuit judgeships was provided to the district court by Dr.

Ronald Weber, an expert witness for the appellees.

Year # of Seats Up # Contested % Contested

1974 3 1 25.0%

1976 2 1 50.0%

1978 17 2 11.8%

1980 5 l 20.0%

1982 3 l 33.3%

1984 16 2 12.5%

1986 7 0 0.0%

1988 9 1 11.1%

1990 15 1 6.7%

—

i)

12.8%

Total 78

16a

system although only twelve originally were elected in

nonpartisan elections.'® Furthermore, although it is true

that no black candidates have been elected to judicial

office in the Fourth Circuit, two black judges have been

appointed under the nominating commission system

(Judges Adams and Davis, see supra note 6).

The increasing reliance on the appointment process for

selecting trial court judges is highlighted by an examina-

tion of the composition of the current Fourth Circuit

Court. Of the twenty-eight judges presently sitting on

the court, nineteen were appointed through the commis-

sion process, eight initially were elected in nonpartisan

elections, and one was appointed by the governor in

1967 under the old system.'* Moreover, at the time of

trial, only one of the judges then serving on the Fourth

Circuit bench had ever been opposed for reelection

(Judge Fay by Harrell Buggs in 1978), although the

twenty-eight judges collectively had stood for reelection

over twenty times.

16 The method for filling some of these forty positions, however,

was dictated by the fact that they corresponded to newly-created

judgeships. According to the Duval County Clerk’s Office, whether a

new seat on the bench is filled by election or appointment depends

upon the effective date set by the legislature. If the seat is created in

an election year and the effective date is after the election, the seat

is filled by election. If, on the other hand, the position is not created

in an election year, or if it is created in an election year but with an

effective date before the election, the seat is filled through the

nominating commission and appointment process.

16 The district court did make factual findings concerning the routes

by which the twenty-eight judges on the circuit court at the time of

trial in 1991 came to the bench: seventeen originally were appointed

while eleven initially were elected to office; of those eleven, five ran

unopposed. Nipper, 795 F.Supp. at 1538 & n. 14. Therefore, only six

of the twenty-eight circuit judges serving at the time of trial had

earned their place on the bench in a contested election.

17a

A similar pattern emerges from an examination of the

county court selection process. From 1973 to 1990, fifty-

six judgeships on the Duval County Court were decided

by election; only twelve (or approximately twenty-one

percent) of those electoral races were contested.'? Black

candidates participated in primaries for three of those

elections and were defeated each time. As the district

court noted, however, special circumstances surrounded

two of these three races. Alfred Washington, a black

candidate, lost his primary race for a seat on the Duval

County Court in 1978 to Giles P. Lewis, despite garnering

eighty-eight percent of the black vote. Prior to the elec-

tion, however, Washington had resided in the communi-

ty for only a short period of time whereas Lewis was a

longtime resident with an established legal practice.

In 1984, two black candidates sought positions on the

county court bench. Denise Prescod was defeated in her

primary by incumbent, Edward P. Westberry, even

though she garnered a similar proportion of the black

vote. Judge Westberry was not a lawyer, but he was

permitted to serve on the court under a grandfather

clause in the 1972 constitutional revision that allowed

former justices of the peace to become county court

17 Dr. Weber’s report provides the following information concerning

contested elections for the Duval County Court:

Year # of Seats Up # Contested % Contested

1974 5 2 40.0%

1976 7 l 14.3%

1978 6 2 33.3%

1980 6 0 0.0%

1982 6 0 0.0%

1984 “ 4 50.0%

1986 6 l 16.7%

1988 7 l 14.3%

1990 5 1 20.0%

Total: 56 12 21.4%

18a

judges. He had, by all accounts, received consistently

poor ratings from the local bar but was acknowledged to

be a vigorous and extremely effective campaigner. Judge

Westberry also had been a judicial officer since 1966,

thus claiming the mantle of experience. Prescod, a

lawyer, received several important endorsements, in-

cluding those from Jacksonville’s only daily newspaper

and the public school teachers’ organization. At the time

she ran for judicial office, however, Prescod had been

admitted to The Florida Bar for only two years. Under

the current five-year experience requirements, Prescod

would not have been eligible to run for county court

judge in 1984. The district court concluded that “neither

candidate’s qualifications ... were particularly helpful -to

their respective campaigns, and in all probability incum-

bency ultimately proved to be the deciding factor.”

Nipper, 795 F. Supp. at 1542 n. 18. In the remaining

county court election involving a black candidate and

the only one in which the black candidate did not chal-

lenge an incumbent, Dietra Micks won three-quarters of

the black vote but failed to make the runoff for her

position against a field of three white candidates.

Again, this time in the county court context, looking

solely at elections tells only part of the story. Since 1972,

a total of thirty judges have served on the Duval County

Court. Ten initially were appointed by the governor

under the commission nominating process while twelve

originally obtained their positions by winning nonparti-

san elections. Nine other county court judges were

holdovers from the prior (pre-1972) system. As for the

twelve county court judges serving at the time of trial,

five were originally appointed to the bench, including

both of the black judges.

As the district court concluded, the evidence of black

electoral success in the jurisdictions at issue in this case

is mixed at best. The court found:

19a

The black circuit and county judges who have faced

reelection have been unopposed and, of course,

successful in their reelection bids. In a similar judi-

cial election, Joseph Hatchett’s 1976 Supreme Court

reelection, the incumbent Hatchett defeated a white

candidate. Hatchett garnered a majority of the white

vote in both the Fourth Judicial Circuit and Duval

County. No black candidate has won a contested

election for circuit or county judge at least since

1972.

Id. at 1537.'* In addition, a review of non-judicial elec-

tions in the Jacksonville area reveals a dearth of black

electoral success: “No black candidate has won a con-

tested circuit wide '® or county wide election for any

office since 1979,” and only one city council member and

three members of the civil service board in Jacksonville

appear to have done so prior to that time. Jd.

Black candidates fared better in the Fourth Circuit

appointment process. Henry Coxe, the chairman of the

Fourth Circuit Judicial Nominating Committee from 1987

to 1991, testified at trial concerning minority participa-

tion in the appointment process during his tenure on the

committee. Based on that testimony, the district court

found:

18 Justice Hatchett, now a member of this court, was a United

States magistrate in 1975 when Governor Rubin Askew appointed him

to be the first black supreme court justice in Florida history. His 1976

reelection campaign, one of Florida’s most highly publicized judicial

elections, occurred during the few years in which the partial merit

selection system applied to supreme court justices. Despite a chal-

lenge by Circuit Judge Harvey Duval, a white candidate from Dade

County, Justice Hatchett won reelection by garnering a majority of

the white vote in both the Fourth Circuit as a whole and Duval

County in particular.

1* There are no non-judicial circuit wide offices in the Fourth Cir-

cuit. The court was apparently referring to a compilation of the re-

sults from the Fourth Circuit counties for statewide elections.

20a

Statistics provided by the [Fourth Circuit Judicial

Nominating] Commission indicate that from 1987 to

1991, the Commission accepted applications for

eleven circuit and county court vacancies. Of the

total number of applicants, approximately eleven

percent were black attorneys. An almost identical

percentage of blacks were among the total number

of nominees sent by the Commission to the Gover-

nor. Nine percent of the total appointments made by

the Governor during this period were black (specifi-

cally, the county judge appointment in the summer

of 1991).

Id. at 1538.

Moreover, the court emphasized, “in judicial elections,

incumbency and name recognition are the primary fac-

tors behind electoral success.” Jd. Several witnesses

testified to this effect. Indeed, only one of the twenty-

eight incumbent circuit judges serving at the time of trial

had ever faced electoral opposition subsequent to his or

her initial appointment or election; none of the twelve

incumbent county judges had ever been opposed in a

reelection bid. Judge Adams agreed that incumbency is

an important factor in determining the outcome of judi-

cial elections and testified revealingly that “I don’t think

that a black could win a county-wide judicial election

without the benefit of incumbency.” By all accounts, the

electoral benefits of incumbency accrue equally to black

and white judges as none of the black judges on either

the Fourth Circuit or Duval County Court benches has

ever been opposed for reelection.

D.

The complaint in this case was filed in the United

States District Court for the Middle District of Florida on

July 5, 1990. The plaintiffs (the appellants here) chal-

lenged the method of electing judges for the Fourth

Circuit and the Duval County Court under section 2 of

2la

the Voting Rights Act as well as under the Fourteenth

and Fifteenth Amendments of the Constitution; they

alleged that those election systems unlawfully diluted

the electoral strength of black voters.

Trial originally was scheduled for March 1991, but the

district court stayed the proceedings pending the out-

come of cases before the United States Supreme Court

concerning the applicability of section 2 to judicial elec-

tions. After the Court confirmed that section 2 applies to

the election of state court judges, see Chisom v. Roemer,

501 U.S. 380, 404, 111 S. Ct. 2354, 2368, 115 L. Ed.

2d348 (1991); Houston Lawyers’ Ass’n v. Attorney Gen.,

501 U.S. at 419, 423-24, 111 S. Ct. 2376, 2379, 115 L. Ed.

2d 379 (1991), the trial of this case was reset and com-

menced on December 12, 1991.

To resolve the issue of whether voting in circuit and

county judicial elections was racially polarized, both

sides offered expert testimony and statistical evidence.

The appellants relied on the testimony of Dr. Allan

Lichtman, Professor of History at American University in

Washington, D.C. The appellees offered two expert

witnesses: Dr. Ronald Weber, Professor of Government

at the University of Wisconsin, and Dr. Joan Haworth,

former Professor of Economics at Florida State Universi-

ty and currently the president of a private consulting

company. Although the ultimate conclusion reached by

the two sides was different, the experts agreed on most

of the foundational data. Indeed, all of these experts

used the same or similar statistical techniques to analyze

the election results at issue.2° The experts divided sharp-

ly, however, over which types of elections should be

analyzed in order to determine whether voting in

Fourth Circuit and Duval County judicial elections has

been, and continues to be, racially polarized.

2° All of the experts used ecological regression and extreme case

analysis to study the voting behavior in the circuit and county judicial

elections. As the district court explained:

ee

22a

The appellants’ expert, Dr. Lichtman, studied the six

circuit and county judicial elections in which black

candidates have competed against white candidates

since 1972.2! He also analyzed numerous elections for

offices not at issue in this litigation (referred to as

“exogenous” elections) that involved black candidates,

placing particular emphasis on Justice Hatchett’s 1976

Florida Supreme Court reelection bid.2? Almost all of the

Ecological regression analysis permits estimation of the voting

behavior of racial groups through comparison of the racial

composition of the population at each precinct to the division of

the vote among competing candidates at each precinct. The

regression analysis uses data from all of the precincts participat-

ing in an election, and produces estimates of the voting behavior

of both whites and blacks.

Nipper, 795 F. Supp. at 1533. The experts in this case used substan-

tially the same techniques that were approved (and relied on) by the

Supreme Court in Gingles.

21 To summarize, between 1972 and 1990, there were six contested

elections for circuit and county judgeships in which black candidates

participated. These elections involve only five seats because the first

two were the primary and general elections for the same position.

The elections and black candidates were: (1) 1972 Primary, Circuit

Court, Leander Shaw; (2) 1972 Runoff, Circuit Court, Leander Shaw;

(3) 1978 Primary, Circuit Court, Harrell Buggs; (4) 1978 Primary,

Duval County Court, Alfred Washington; (5) 1984 Primary, Duval

County Court, Denise Prescod; and (6) 1984 Primary, Duval County

Court, Dietra Micks.

22 The only exogenous election to which the district court attached

significance in its opinion was the 1976 Florida Supreme Court elec-

tion involving Justice Hatchett—a statewide race involving one black

and one white candidate. The district court adopted Dr. Lichtman’s

regression results as findings of fact on this point; those results

demonstrate that a majority of white voters in the circuit generally,

and in Duval County in particular, supported Justice Hatchett’s ree-

lection, along with virtually all blacks voting. The court rejected Dr.

Lichtman’s attempts to tie this race to the other exogenous elections,

however, suggesting that “equating Hatchett’s non-partisan,lower

profile, judicial election with Rev. [Jesse] Jackson’s partisan, high

profile, presidential election for the purpose of showing racial polari-

23a

other exogenous elections studied by Dr. Lichtman were

of a partisan nature (including Jesse Jackson’s presiden-

tial primary campaigns in 1984 and 1988 and Alcee

Hastings’ various bids for statewide office). Based on his

review of these elections, Dr. Lichtman concluded that

voting in the Fourth Circuit and in Duval County is ra-

cially polarized in judicial elections: Black voters prefer

black candidates by over whelming margins, but those

candidates are not elected because they do not receive

sufficient crossover votes from the white electorate.

According to the ecological regression studies, a large

majority of black voters strongly supported the black

candidate in each of the six circuit and county judicial

elections. At the same time, the majority of white voters

supported the white candidate, thereby resulting in the

defeat of all of the black candidates except for Leander

Shaw in the 1972 primary. Shaw, however, went on to

lose in the general election. In these six elections, black

support for the black candidates ranged from seventy-

three to ninety-eight percent, while white support for

those same black candidates varied from three to thirty-

three percent. Black voter support for the white candi-

dates never exceeded twenty-seven percent while white

support for the white candidates ranged from sixty-seven

to ninety-seven percent. The district court adopted Dr.

Lichtman’s statistical estimates concerning these six

elections as findings of fact.2° Nipper, 795 F. Supp. at

1534 n. 4.

zation in circuit and county judicial elections is misleading.” Nipper,

795 F. Supp. at 1535 n. 8. Although it made findings of fact concern-

ing the results of various other elections, the district court “accorded

little weight to these non-judicial, exogenous elections.” Jd. at 1535.

28 Dr. Lichtman’s ecological regression analysis revealed the follow-

ing degrees of racial polarization in the Fourth Circuit and Duval

County. It should be noted that one of the appellees’ experts, Dr.

24a

The principal expert witness for the defense, Dr.

Weber, also reviewed the six circuit and county court

campaigns in which black candidates participated. Dr.

Weber also examined a set of elections that Dr. Licht-

man had not.** Declining to confine his analysis of

Fourth Circuit and Duval County judicial elections to

those races in which a black candidate had competed,

Haworth, produced estimates for these elections that were nearly

identical to Dr. Lichtman’s, even though she used a slightly different

methodology.

% of Black % of Black % of White % of White

Voters Voting Voters Voting Voters Voting Voters Voting

for Black for White for Black for White

Cand. Cand.(s) Cand. Cand.(s)

Fo Circui

1972 Primary

Leander Shaw

Circuit 92 8 24 76

Duval Co 93 7 23 77

1972 Runoff

Leander Shaw

Circuit 97 3 33 67

Duval Co. 98 2 32 68

1978 Primary

Harrell Buggs

Circuit 82 18 3 97

Duval Co. 81 19 4 96

Duval Co. Court

1978 Primary

Group 6

A. Washington 88 12 13 87

1984 Primary

Group 4

Denise Prescod 73 27 31 69

1984 Primary

Group 8

Dietra Micks 76 24 4 96

*%* Dr. Haworth’s role for the defense was to reexamine Dr. Licht-

man’s data, so she examined the same exogenous elections as Licht-

man (albeit using as lightly different methodology) and reached a

different conclusion. Dr. Haworth contended that any racial polariza-

tion in these elections was not significant, and that, indeed, strong

support by black voters for black candidates corresponded to higher

levels of white crossover votes.

25a

Dr. Weber instead examined all of the judicial elections

in the relevant jurisdictions between i972 and 1990,

even those in which only white candidates participated.

In further refining his study sample, Dr. Weber “argued

that only those non-judicial elections for low-visibility

offices similar to judgeships would be of importance in a

judicial elections case.” Id. at 1533. Accordingly, he

criticized Dr. Lichtman’s reliance on high-profile elec-

tions for statewide or national office. Dr. Weber con-

cluded that the candidate of choice of black voters wins

elections in the Fourth Circuit and Duval County be-

cause of the high degree of black cohesion and sufficient

white crossover voting—but he admitted on cross-exami-

nation that his conclusion should be qualified as follows:

“These data show very clearly that black candidates of

choice are regularly elected in both jurisdictions and

white voters do not usually vote as a bloc to deny black

voters the opportunity to elect candidates of choice to

these judicial posts—so long as these candidates are

white and not black.” *

There were a total of nineteen contested elections for

circuit judge between 1972 and 1990, of which sixteen

involved only white candidates. Dr. Weber’s analyses,

which the district court “adopted as findings of fact for

statistical purposes only,” id. at 1534, revealed that the

candidate of choice of black voters won thirteen, or

sixty-eight percent, of these contested elections. During

this same time period, there were twenty-four contested

Duval County Court elections, three of which involved

black candidates. Dr. Weber’s study revealed that the

candidate of choice of black voters won fourteen, or

fifty-eight percent, of those elections. A somewhat dif-

ferent picture emerges, however, when “split prefer-

ence” statistics are examined. Looking at both circuit

26 "Black candidate of choice” is a term of art referring to a candi-

date who is preferred by the majority of black voters, without refer-

ence to the candidate’s race.

26a

and county court races, Dr. Lichtman testified that the

candidate preferred by black voters differed from the

candidate preferred by white voters in nineteen of the

thirty-seven contested judicial elections that involved

only white candidates. In those “split preference” elec-

tions, the black voters’ preferred candidate lost eighty-

four percent of the time.

At trial, the appellants also introduced non-statistical

evidence of Florida’s history of discrimination against

black citizens, including its legacy of disfranchisement

and segregation in most areas of life.2° In particular,

Florida employed various franchise restrictions— from

the poll tax to the white primary—for decades in an

attempt to restrict the access of black voters to the

ballot. Those classic discriminatory devices have been

eliminated, however, and the consensus at trial was that

there is currently little disparity in voter registration in

the Fourth Circuit and in Duval County by race. Blacks

of voting age are registered at higher rates than whites

of voting age in both the Fourth Circuit and Duval

County.

Despite the removal of overt badges of segregation, the

district court nonetheless found that “black citizens .in

Florida still suffer in some ways from the effects of

Florida’s history of purposeful discrimination,” particu-

larly in terms of socio-economic disparities, such as

family income and high school graduation rates. Id. at

1536. Black citizens in the region covered by the Fourth

Circuit have lower median incomes than whites and are

2° Transportation facilities in Florida were segregated until the

1950s, and many area school systems still have not achieved unitary

status. Moreover, until 1958, Florida refused to permit black students

to attend the University of Florida College of Law. Florida A & M Law

School was created in 1951 for black students but was not accredited

until several years later. When the state opened another law school in

Tallahassee in 1967 at Florida State University, it closed the law

school at Florida A & M.

27a

more likely to be unemployed and to fall below the

poverty line. In addition, the limited evidence presented

at trial (reflected in a consensus among the experts)

suggested that, although little disparity exists in voter

registration, black voter turnout appears to be slightly

lower than white turnout. And the “rolloff” ef-

fect—which measures the number of voters who sign in

at the polls but fail to cast a vote for a particular elec-

tion on the ballot—is greater among black voters than

white voters. ;

The appellants also introduced into evidence a report

issued in 1990 by the Florida Supreme Court Racial and

Ethnic Bias Study Commission 2? that, according to the

district court, “documented numerous features of Flori-

da’s justice system that allegedly have an adverse effect

on the dispensation of justice to minority citizens, includ-

ing the under representation of minorities in the judici-

ary in comparison to the percentage of minorities in the

total population.” Jd. at 1535. The Study Commission

concluded:

Clearly, the current election process, which provides

for circuit-wide, at-large elections, is not yielding

sufficient representation of minorities on Florida’s

bench. At the same time, the dramatic under repre-

sentation of minority judges reflected in the ... sta-

tistics compels the conclusion that the appointive

system, as currently structured and implemented,

has itself failed to achieve racial and ethnic diversi-

ty. The Commission strongly believes that serious

measures need to be considered for implementa-

tion—in both systems—which are aimed at producing

a more racially and ethnically sensitive judiciary.

27 Judge Adams served on the Study Commission and described its

composition and conclusions at trial. The Commission was appointed

by the Florida Supreme Court and contained a cross-section of judges,

lawyers, and lay citizens from various parts of the state.

28a

To that end, the Study Commission recommended that

the state legislature study the feasibility of utilizing

subdistricts for judicial elections as a means of redressing

prior discrimination and increasing minority representa-

tion on the bench.”* The appellants established that the

low number of minority judges on the trial courts cited

by the Study Commission affects the perception, if not

the reality, of the system’s fairness; all of the witnesses

acknowledged, however, that the judges of the Fourth

Circuit and the Duval County Court are fair and impar-

tial in their administration of justice without regard to

race.

E.

The record in this case therefore reveals a somewhat

conflicted picture of the judicial selection process in the

Fourth Circuit and Duval County. On the one hand, all of

the black candidates for judicial office in those jurisdic-

tions have been defeated by their white opponents.

Several of the elections involving black candidates also

involved other special circumstances, such as incumben-

cy, that cloud the issue of whether race was the factor

most responsible for the outcome. On the other hand,

black judges have been appointed to the bench under

the merit selection nominating commission system rough-

ly in proportion to the number of minority applicants;

2* The Study Commission highlighted its view of the need. for

heightened representation of minorities on the state’s courts in a

subsequent report issued in 1991:

[T]he under representation of minorities as attorneys and judges

serves to perpetuate a system which is, through institutional

policies or individual practices, unfair and insensitive to individu-

als of color.... [B]y threatening the withdrawal of the tacit

“consent of the governed,” the under representation of minorities

in positions of responsibility in the judicial system weakens the

very system of ordered liberty upon which our democracy is

based.

29a

once in office, moreover, those black judges have en-

joyed the same benefits of incumbency as their white

counterparts (including standing unopposed for reelec-

tion). The influence of the merit appointment system has

been significant: Since its institution in 1972, more

judges initially have reached the bench by appointment

than by election.

Based upon this evidence, the district court issued an

order containing findings of fact and conclusions of law

on June 2, 1992. In that order, the court rejected all of

the appellants’ statutory and constitutional claims and

denied relief. Jd. at 1548. The court first ruled against

the appellants on the critical issue of racially polarized

voting, concluding that the statistical evidence, viewed

in light of the special circumstances surrounding the

judicial elections in question, failed to demonstrate

sufficient racial bloc voting such that the white majority

usually defeats the minority’s preferred candidate.?° Id.

at 1543. The court then concluded alternatively that:

{E]ven if Plaintiffs had made a sufficient showing of

racial polarization, Defendants have offered over-

whelming proof of objective factors in rebuttal that

demonstrate, under the totality of the circum-

stances, that the social conditions in the Fourth

Judicial Circuit and Duval County are such that their

interactions with the electoral scheme do not, and

will not, result in voting discrimination in the judi-

cial elections under challenge.

Id. at 1548. Judgment was entered for the appellees

that same day.

2° According to the district court, “this finding alone required a

ruling in favor of the [appellants].... In the interests of providing a

comprehensive opinion [, however,] the court [considered the appel-

lees’] proof of other objective factors in rebuttal that indicate, under

the totality of the circumstances, that the voting community is not

driven by racial bias.” Nipper, 795 F. Supp. at 1543 (citation omitted).

30a

In this appeal, the appellants challenge only the dis-

trict court’s denial of their section 2 claim; this court is

not asked to review the court’s rulings on the constitu-

tional issues. In an opinion issued on September 15,

1993, a panel of this court reversed, and remanded the

case to the district court for the imposition “forthwith

[of] an appropriate remedy.” Nipper v. Smith, 1 F.3d

1171 (11th Cir.1993). Much of the panel’s opinion was

devoted to evaluating the evidence before the district

court on the issue of racially polarized voting. According

to the panel opinion, the district court had discounted

the appellant’s statistical evidence (which the district

court had acknowledged would ordinarily be sufficient

to establish racially polarized voting) for three reasons:

because “(1) the judicial elections involving black candi-

dates were stale; (2) black voters occasionally elected

candidates of choice in elections involving only white

candidates; and (3) two of the black-white elections

involved incumbents.” Jd. at 1178-79. The panel “reject-

ed as clear error each of the district court’s reasons for

concluding that appellants failed to show racial polariza-

tion” and held that “the evidence in the entire record

demonstrates racially polarized voting in the Fourth

Judicial Circuit and Duval County.” Jd. at 1181-82. In the

panel’s view, the district court also “erred in ruling that

appellees discharged their burden of proving that the

voting communities were not driven by racial bias”;

specifically, the appellees had not shown “an absence of

racially biased voting in the Fourth Judicial Circuit and

Duval County.” *° Jd. at 1184. Subsequently, we vacated

the panel opinion and granted rehearing en banc. Nipper

v. Smith, 17 F.3d 1352 (11th Cir. 1994).

9° As we discuss infra part V, after finding vote dilution in violation

of section 2, a court, before imposing a remedy, should consider the

state’s argument that the remedy the plaintiffs propose is not feasible

because, if implemented, it would undermine the administration of

cE een Sane eee eee ee eee

3la

i.

Section 2 of the Voting Rights Act, adopted in 1965

and amended in 1982, outlaws election practices that

result in racial discrimination.*! Of particular concern are

electoral structures, such as at-large elections in areas

with white majorities, that produce racial vote dilution

because “the right to vote can be affected by a dilution

of voting power as well as by an absolute prohibition on

casting a ballot.” 82 Allen v. State Bd. of Elections, 393

justice in the challenged court. Houston Lawyers’ Ass’n, 501 U.S. at

426, 111 S. Ct. at 2380-81. The appellees made such an argument in

urging the panel to affirm the district court’s denial of relief, but the

panel, did not address the argument in its opinion.

81 Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988), pro-

vides:

(a) No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any State or

political subdivision in a manner which results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color....

(b) A violation of subsection (a) of this section is established if,

based on the totality of circumstances, it is shown that the politi-

cal 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 gee Bay other

members of the electorate to participate in the political process

and to elect representatives of their choice. The extent to which

members of a protected class have been elected to office in the

State or political subdivision is one circumstance which may be

considered: Provided, That nothing in this section establishes a

right to have members of a protected class elected in numbers

equal to their proportion in the population.

32 This conclusion is not, however, universally accepted. See, ¢.g.,

Holder v. Hall, U.S. , , 114S. Ct. 2581, 2603, 129 L. Ed. 2d 687

(1994) (Thomas, J., concurring) (“Properly understood, the terms

‘standard, practice, or procedure’ in § 2(a) refer only to practices that

affect minority citizens’ access to the ballot. Districting systems and

electoral mechanisms that may affect the ‘weight’ given to a ballot

duly cast and counted are simply beyond the purview of the Act.”).

32a

U.S. 544, 569, 89 S. Ct. 817, 833, 22 L. Ed. 2d 1 (1969)

(emphasis added). Since racial and ethnic groups tend, at

times, to be geographically compartmentalized in our

society, a districting plan drawn without regard to the

physical distribution of such groups may nevertheless

operate to distort their relative voting strengths, as well

as to provide the opportunity for subtle discrimination

through the manipulation of electoral structures. Vote

dilution cases involve allegations that the location of

district lines or the use of other electoral practices, such

as at-large voting, may “ ‘interact with social and histor-

ical conditions,’ [thereby] impairing the ability of a

protected class to elect its candidate of choice on an

equal basis with other voters.” Voinovich v. Quilter,

U.S. , , 1183S. Ct. 1149, 1155, 122 L. Ed. 2d 500 (1993)

(quoting Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct.

2752, 2764, 92 L. Ed.2d 25 (1986)). Cases alleging a dis-

tortion of group voting power of this type have been

termed “qualitative” (as opposed to quantitative)**

reapportionment cases because they focus “not on

population-based apportionment but on the quality of

representation.” Whitcomb v. Chavis, 403 U.S. 124, 142,

91S. Ct. 1858, 1868, 29 L. Ed. 2d 363 (1971)...

To prevail on a claim of vote dilution under section 2,

plaintiffs generally must meet certain threshold re-

quirements that the Supreme Court first identified in

Gingles. Specifically, plaintiffs in vote dilution cases

must establish as a threshold matter: (1) that the minori-

33 A case alleging violation of the one person, one vote standard,

see, €.g., Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d

506 (1964), based solely on a mathematical analysis of population

inequalities among voting districts, is generally termed a “quantita-

tive” reapportionment case. The issue in such a case is whether

population deviations from the average district are impermissibly

large. The Supreme Court has held, however, that one person, one

vote requirements do not apply to judicial elections. See Wells v.

Edwards, 409 U.S. 1095, 93 S. Ct. 904, 34 L. Ed. 2d 679 (1973).

33a

ty group is “sufficiently large and geographically com-

pact to constitute a majority in a single-member district”;

(2) that the minority group is “politically cohesive”; and

(3) that sufficient racial bloc voting exists such that the

white majority usually defeats the minority’s preferred

candidate. Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766-

67; Growe v. Emison, U.S. , , 113 S. Ct. 1075, 1084,

122 L. Ed. 2d 388 (1993) (quoting Gingles). The second

and third of these threshold preconditions, or factors,

relate to the question of whether the challenged elector-

al scheme is abridging the right of the plaintiff minority

group “to vote on account of race or color.” The first

precondition, or factor, asks whether the court can fash-

ion a remedy for a demonstrated abridgement.*4

In addition to the second and third preconditions, the

Gingles Court identified other factors that may, in “the

totality of the circumstances, “support a claim of racial

vote dilution. Derived from the Senate Report accompa-

nying the 1982 amendment to section 2, those factors

include:

*% The Supreme Court developed the three-part Gingles threshold

test in a case challenging North Carolina’s multimember legislative

district scheme. The remedy the plaintiffs sought in that case was the

creation of single-member districts in which the minority voters they

represented would constitute a sufficient majority to elect represen-

tatives of their choice. The first Gingles threshold factor addressed

this remedy and asked, at the outset of the case,whether such dis-

tricts could be drawn. If not, the case would have ended.

As we discuss in further detail, infra part 01.B.1., the first Gingles

threshold factor is properly read, in light of Holder, U.S. , 1145S.

Ct. 2581, to stand for the broader proposition that a district court

must determine whether it can identify an alternative electoral

scheme against which to measure the existing voting practice. Outside

of the multimember legislative district context, this benchmark

scheme may or may not involve the use of single-member districts,

depending on the facts of the case. In this case, we do not limit the

remedy aspect of the vote dilution inquiry to whether single-member

districts can be drawn, see infra part V.

34a

1. the extent of any history of official discrimina-

tion in the state or political subdivision that touched

the right of the members of the minority group to

register, to vote, or otherwise to participate in the

democratic process;

2. the extent to which voting in the elections of

the state or political subdivision is racially polarized;

3. the extent to which the state or political subdi-

vision has used unusually large election districts,

majority vote requirements, anti-single shot provi-

sions, or other voting practices or procedures that

may enhance the opportunity for discrimination

against the minority group;

4. if there is a candidate slating process, whether

the members of the minority group have been

denied access to that process;

5. the extent to which members of the minority

group in the state or political subdivision bear the

effects of discrimination in such areas as education,

employment and health, which hinder their ability

to participate effectively in the political process;

6. whether political campaigns have been charac-

terized by overt or subtle racial appeals; [and] 7. the

extent to which members of the minority group have

been elected to public office in the jurisdiction.

Gingles, 478 U.S. at 37, 106 S. Ct. at 2759 (quoting S.Rep.

No. 417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 177,

206-07). Additional factors that may be probative of vote

dilution in some cases are:

[8.] whether there is a significant lack of respon-

siveness on the part of elected officials to the par-

ticularized needs of the members of the minority

group; [and]

[9.] whether the policy underlying the state or

political subdivision’s use of such voting qualifica-

35a

tion, prerequisite to voting, or standard, practice or

procedure is tenuous.

Id., at 37, 106 S. Ct. at 2759.95

The Gingles Court emphasized that “this list of typical

factors is neither comprehensive nor exclusive,” id. at

45, 106 S. Ct. at 2763, although evidence of the third

precondition, racially polarized voting, is “the linchpin of

a § 2 vote dilution claim,” Citizens for a Better Gretna v.

City of Gretna, 834 F.2d 496, 499 (5th Cir.1987), cert.

denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed.2d 564

(1989), and thus forms the basis of the Gingles threshold

inquiry on the issue of liability (as opposed to remedy).

Regardless of the particular factors that the plaintiff in a

vote dilution case is able to demonstrate, however, the

essence of a section 2 claim is that certain electoral

characteristics, in conjunction with “social and historical

conditions,” operate to eviscerate the ability of minority

voters to elect their candidates of choice. Gingles, 478

U.S. at 47, 106 S. Ct. at 2764; see also Carrollton Branch

of the NAACP v. Stallings, 829 F.2d 1547, 1555 (11th

Cir.1987), cert. denied, 485 U.S. 936, 108S. Ct. 1111, 99

L. Ed. 2d 272 (1988).

In 1990, this court divided on the issue of whether

voting rights plaintiffs can establish a section 2 violation

merely by satisfying the second and third Gingles

threshold factors or whether the ultimate inquiry is

always under the totality of the circumstances, such that

Ct. 1083, 47 L. Ed. 2d 296 (1976). See S.Rep. No. 417, at 28 n. 113,

reprinted in 1982 U.S.C.C.A.N. at 177, 206 n. 113. This development

process is detailed in Solomon v. Liberty County, 899 F.2d 1012, 1021

(11th Cir.1990) (en banc) (Tjoflat, C.J., Specially concurring), cert.

denied, 498 U.S. 1023, 111 S. Ct. 670, 112 L. Ed. 2d 663 (1991).

36a

the defendants have the opportunity to rebut the plain-

tiffs’ showing of vote dilution—and thereby avoid liabili-

ty—by demonstrating a lack of racial bias in the voting

community.** See Solomon v. Liberty County, 899 F.2d

1012, 1017 (11th Cir.1990) (en banc) (per curiam) (divi-

sion detailed in the concurring opinions of Kravitch, J.,

and Tjoflat, C.J.), cert. denied, 498 U.S. 1023, 111 S. Ct.

670, 112 L. Ed. 2d 663 (1991). The Supreme Court’s

recent decision in Johnson v. De Grandy, US. , 114

S.Ct. 2647, 129 L. Ed. 2d 775 (1994), has essentially

resolved this issue as the following discussion indicates.

A.

Proof of the three core factors emphasized in Gingles

is necessary, Gingles, 478 U.S. at 50, 106 S. Ct. at 2766,

but not always sufficient, to establish a claim for relief

under section 2. Rather, plaintiffs in such cases also must

show that, under the totality of the circumstances, “they

do not possess the same opportunities to participate in

the political process and elect representatives of their

choice enjoyed by other voters.” League of United Latin

Am. Citizens, Council No. 4434 v. Clements, 999 F.2d

831, 849 (5th Cir. 1993) (en banc) (“LULAC”), cert. de-

nied, U.S. , 114S. Ct. 878, 127 L. Ed. 2d 74 (1994).

In Gingles, the Court stated that, “as both amended § 2

and its legislative history make clear ... the trial court is

36 The division has been noted in several recent opinions of this

court. See, eg., Hall v. Holder, 955 F.2d 1563, 1568 n. 9 (11th

Cir.1992) (“Although the Gingles factors may have been established in

a particular case, the continuing role of the parties and of the court is

unclear.”), rev’d, U.S. ,114S. Ct. 2581, 129 L. Ed. 2d 687 (1994);

Meek v. Metropolitan Dade County, 908 F.2d 1540, 1544 (llth

Cir.1990) (“The en banc court divided on the question of whether

proof of the [second and third] Gingles factors was sufficient and

whether a defendant could raise as a defense the lack of racial bias in

the community.”), cert. denied, 499 U.S. 907, 111 S. Ct. 1108, 11%

L.Ed. 2d 217 (1991).

37a

to consider the totality of the circumstances and to

determine, based upon a searching practical evaluation

of the past and present reality, whether the political

process is equally open to minority voters.” 87 Gingles,

478 U.S. at 79, 106 S. Ct. at 2781 (internal quotation

marks and citation omitted). The Gingles threshold

factors (specifically, the second and third) constitute

“essentially a ‘gloss’ on the Senate factors and a limita-

tion on the interpretation of those factors in proving a

vote dilution claim.” Stallings, 829 F.2d at 1555; accord

Collins v. City of Norfolk, 816 F.2d 932, 935 (4th Cir.

1987). Thus, the Gingles Court did not decree that a

plaintiff who proves the three preconditions invariably

will win; instead, it merely held that the three factors

are prerequisites to a successful claim.** See Gingles, 478

U.S. at 48 n. 15, 106 S. Ct. at 2765 n.15.

The Supreme Court’s recent decision in De Grandy,

U.S. , 114 S. Ct.2647, resolved any doubt as to the

threshold nature of the Gingles factors. In De Grandy, a

case involving a challenge to Florida’s legislative reap-

portionment plan, the Court definitively characterized

the “Gingles factors (compactness/numerousness, minori-

ty cohesion or bloc voting, and majority bloc voting) as

“necessary preconditions,’ for establishing vote dilu-

tion.” 8° Jd. at , 114 S. Ct. at 2657 (citation omitted). The

87 In Hall, a panel of this court recognized that “the Gingles majori-

ty did not ... limit the manner in which the [second and third] factors

may be proven [and that] the totality of the circumstances surround-

ing a § 2 claim may properly be considered when determining wheth-

er plaintiffs have established the [those two] Gingles preconditions.”

** Significantly, the Gingles Court itself discussed the broader totali-

ty of the circumstances after it had noted the plaintiffs’ success in

proving the three threshold factors. See Gingles, 478 U.S. at 80, 106 S.

Ct. at 2781.

8° In two other cases decided after Gingles, the Supreme Court reit-

erated that the Gingles core factors are threshold conditions. See

Growe, U.S. at , 1135S. Ct. at 1083; Voinovich, U.S.at ,113S. Ct.

at 1157.

38a

Court went on to say, however, that “the ultimate

conclusions about equality or inequality of opportunity

were intended by Congress to be judgments resting on

comprehensive, not limited, canvassing of relevant

facts.” Id. at , 114 S. Ct. at 2657. Thus, under De Gran-

dy, reviewing courts are required—not just invited—to

look beyond the Gingles threshold factors when evaluat-

ing vote dilution claims.*° As the Court stressed, “[lJack

of electoral success is evidence of vote dilution, but

courts must also examine other evidence in the totality

of circumstances, including the extent of the opportuni-

ties minority voters enjoy to participate in the political

processes.” Jd. at , 114 S. Ct. at 2657. In De Grandy, the

Court assumed that the Gingles preconditions had been

satisfied, but nevertheless concluded that section 2 relief

should not be granted because, notwithstanding the

presence of continued discrimination and racial bloc

voting, minority voters were able to form effective

voting majorities in a number of legislative districts that

were roughly proportional to their respective shares in

the voting age population.*! See id. at , 1145. Ct. at

2663.

# The same point had been suggested in several of the Court’s prior

cases. In Chisom, for example, the Court held that the 1982 amend-

ment to section 2 “make[s] clear that an application of the results test

requires an inquiry into “the totality of the circumstances.’ ” Chisom

v. Roemer, 501 U.S. 380, 393, 111 S. Ct. 2354, 2363, 115 L. Ed. 2d 348

(1991) (emphasis added). Similarly, the Court echoed in Houston

Lawyers’ Ass’n that “an analysis of the totality of the cir-

cumstances ... must be considered in an application of the results test

embodied in § 2, as amended.” Houston Lawyers’ Ass’n v. Attorney

Gen., 501 U.S. 419, 426, 111 S. Ct. 2376, 2381, 115 L. Ed. 2d 379

(1991) (emphasis added).

*! De Grandy therefore discusses a new element—proportionality—

to be weighed in the totality of the circumstances. As the Court ex-

plained, “one may suspect vote dilution from political famine, but one

39a

As an initial matter, therefore, proof of the Gingles

threshold factors is a necessary precondition to section 2

relief; such a showing, however, will not guarantee

relief. A defendant in a vote dilution case may always

attempt to rebut the plaintiff’s claim by introducing

evidence of objective, non-racial factors under the totali-

ty of the circumstances standard.*2 Indeed,

if the Court meant to deny the defendant an oppor-

tunity to rebut the plaintiff’s case after the plaintiff

has offered evidence of the three factors, then the

three factors would be both necessary and always

sufficient to win under section 2.... The Court’s

adherence to the totality-of-the-circumstances test

must mean that the defendant can rebut the plain-

is not entitled to suspect (much less infer) dilution from mere failure

to guarantee a political feast.” De Grandy, U.S.at ,114S. Ct. at

2660. Nevertheless, “while proportionality in the sense used here is

obviously an indication that minority voters have an equal opportuni-

ty, in spite of racial polarization, “to participate in the political proc-

ess and to elect representatives of their choice,’ 42 U.S.C. § 1973(b),

the degree of probative value assigned to proportionality may vary

with other facts.” Jd. at , 114 S. Ct. at 2661.

*? This is precisely what the Supreme Court permitted the defend-

ants to do in De Grandy. In that case, “the District Court found that

the three Gingles preconditions were Satisfied, and that Hispanics had

suffered historically from official discrimination, the social, economic,

and political effects of which they generally continued to feel.” De

Grandy, U.S. at , 114 S. Ct. at 2656. The Court concluded that, even

with all three Gingles conditions Satisfied, the circumstances in totali-

ty would not support a finding of vote dilution where Hispanics could

be expected to elect their preferred candidates in proportion to their

percentage of the area’s population. Jd. at , 114 S.Ct. at 2663. In that

context, the District Court was not critical enough in asking whether

a history of persistent discrimination reflected in the larger society

and its bloc-voting behavior portended any dilutive effect from a

newly proposed districting scheme, whose pertinent features were

majority-minority districts in substantial proportion to the minority’s

share of voting-age population.” Jd. at , 1145S. Ct. at 2658.

™ SS eS ee Ie eee

40a

tiff’s claim—even after the plaintiff has offered

proof of the three Gingles factors.

Solomon, 899 F.2d at 1035 (Tjoflat, C.J., specially con-

curring). Because the ultimate inquiry is under the total-

ity of the circumstances, courts must consider not only

evidence of the Gingles threshold factors but also any

other evidence offered by the parties that is relevant to

the statutory test. It may well be true, as the Third

Circuit has suggested, that “it will be only the very

unusual case in which the plaintiffs can establish the ...

Gingles [threshold] factors but still have failed to estab-

lish a violation of § 2 under the totality of the circum-

stances.” Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 4 F.3d 1103, 1135 (8d Cir.1993). Nevertheless, the

Supreme Court cautions:

To be sure, some § 2 plaintiffs may have easy cases,

but although lack of equal electoral opportunity may

be readily imagined and unsurprising when demon-

strated under circumstances that include the ...

essential Gingles factors, that conclusion must still

be addressed explicitly, and without isolating any

other arguably relevant facts from the act of judg-

ment.

De Grandy, U.S. at , 114S. Ct. at 2657. It is, therefore,

under the totality of the circumstances that courts must

decide, in the final analysis, whether a violation of sec-

tion 2 has been established.

B.

Given that courts evaluating section 2 claims must look

beyond the Gingles threshold factors, we must determine

what constitutes a violation of the statute’s “results” test

under the totality of the circumstances. As the Supreme

Court has stated, section 2 “make[s] clear that certain

practices and procedures that result in the denial or

abridgement of the right to vote are forbidden even

though the absence of proof of discriminatory intent [in

4la

the adoption or maintenance of those practices and

procedures] protects them from constitutional challenge”

under the Fourteenth and Fifteenth Amendments.

Chisom v. Roemer, 501 U.S. 380, 383-84, 111 S. Ct. 2354,

2358, 115 L. Ed. 2d 348 (1991). The concern thus be-

comes what proof is required to Satisfy the results test,

as well as what form of intent inquiry is forbidden

thereunder.**

We hold that section 2 prohibits those voting systems

that have the effect of allowing a community motivated

** Initially, it bears noting that the Supreme Court itself was divided

in Gingles on this point. In a concurring opinion joined by three other

justices, Justice O’Connor wrote:

Evidence that a candidate preferred by the minority group in a

particular election was rejected by white voters for reasons other

than those which made that candidate the preferred choice of

the minority group would seem clearly relevant in answering the

question whether bloc voting by white voters will consistently

defeat minority candidates....

... The overall vote dilution inquiry neither requires nor permits

an arbitrary rule against consideration of all evidence concerning

voting preferences other than statistical evidence of racial voting

patterns. Such a rule would give no effect whatever to the

Senate Report’s repeated emphasis on “intensive racial politics,”

on “racial political considerations,” and on whether “racial poli-

tics ... dominate the electoral process” as one aspect of the

“racial bloc voting” that Congress deemed relevant to showing a

§ 2 violation.

Gingles, 478 U.S. at 100-01, 106 S. Ct. at 2792 (O’Connor, J., concur-

ring). Justice White wrote separately, suggesting that he would find it

significant if partisan affiliation—and therefore not race—were shown

to be the consideration driving the election results. Id. at 83, 106 S.

Ct. at 2783 (White, J., concurring). Justice Brennan, the author of the

majority opinion, took the contrary position: “Plaintiffs need not

prove causation or intent in order to prove a prima facie case of racial

bloc voting and defendants may not rebut that case with evidence of

causation or intent.” Jd. at 74, 106 S. Ct. at 2778. Only three other

justices joined the portion of Justice Brennan’s opinion discussing this

issue, however.

e's;

Pee ee -

—_ — a oe a ee ea se ee

42a

by racial bias to exclude a minority group from participa-

tion in the political process. Therefore, if the evidence

shows, under the totality of the circumstances, that the

community is not motivated by racial bias in its voting

patterns, then a case of vote dilution has not been made.

Our interpretation of the Voting Rights Act is supported

by the text of the statute, the legislative history accom-

panying the 1982 amendment to section 2, and the

Supreme Court’s vote dilution cases. We now discuss

these sources in greater detail.

1.

At first glance, the language of section 2, as amended

in 1982, appears somewhat inconsistent and unclear.

Subsection (a) forbids the use of electoral structures that

“result[ ] in a denial or abridgement of the right of any

citizen of the United States to vote on account of race or

color.” 42 U.S.C. § 1973(a). Subsection (b), on the other

hand, appears more generous, explaining that a violation

of subsection (a) is established if members of a minority

group “have less opportunity than other members of the

electorate to participate in the political process and to

elect representatives of their choice.” Jd. § 1973(b). We

believe, however, that the statutory language, when

properly understood, circumscribes the universe of

prohibited electoral structures and requires more than a

mere showing of electoral losses at the polls by minority

candidates.

The appellants argue that the language of section 2

requires nothing more than proof of disparate election

results—i.e., that, when observed from a _ numeri-

cal/success rate point of view, minorities have less

opportunity than their white counterparts to participate

in the political process and to elect representatives of

their choice. Such proof, they argue, sufficiently demon-

strates the required denial or abridgement of a minority

group’s right to vote.

43a

This reading of section 2, however, ignores crucial

portions of the language in both subsection (a) and

subsection (b). It is an axiomatic principle of statutory

construction that statutes are to be read in their entire-

ty, not in the piecemeal fashion employed by the appel-

lants. Accordingly, we “follow the cardinal rule that a

Statute is to be read as a whole, see Massachusetts v.

Morash, 490 U.S. 107, 115, 109 S. Ct. 1668, 1673, 104 L.

Ed. 2d 98 (1989), since the meaning of statutory lan-

guage, plain or not, depends on context.” King v. St.

Vincent’s Hosp., 502 U.S. 215, , 112 S. Ct. 570, 574, 116

L. Ed. 2d 578 (1991). When the entire Statutory provision

is examined, it becomes clear that the well-known first

portion of subsection (b) can only be understood in light

of subsection (a), which requires that the denial or

abridgement of the right to vote be “on account of race

or color,” and the final clause of subsection (b), which

makes clear that the 1982 amendment was not designed

to create a right of proportional representation. This

comprehensive reading plainly precludes the appellants’

interpretation of section 2.

First, the language of section 2 as amended, by prohib-

iting voting structures that “result{] in a denial or

abridgement of the right of any citizen of the United

States to vote on account of race or color,” explicitly

retains racial bias as the gravamen of a vote dilution

claim. 42 U.S.C. § 1973(a) (emphasis added). The exist-

ence of some form of racial discrimination therefore

remains the cornerstone of section 2 claims; to be ac-

tionable, a deprivation of the minority group’s right to

equal participation in the political process must be on

account of a classification, decision, or practice that

depends on race or color, not on account of some other

racially neutral cause. As the Fifth Circuit has explained,

“the scope of the Voting Rights Act is indeed quite

broad, but its rigorous protections, as the text of § 2

Suggests, extend only to defeats experienced by voters

‘on account of race or color.’ ” LULAC, 999 F.2d at 850.

44a

Furthermore, this linguistic conclusion is supported by

the fact that any other reading might well render section

2 outside the limits of Congress’ legislative powers and

therefore unconstitutional. It is important to remember

that the Voting Rights Act was adopted pursuant to

Congress’ authority to enforce the Fourteenth and Fif-

teenth Amendments. The Civil War Amendments to the

Constitution were designed to remedy pervasive racial

discrimination, and Congress has broad power to enforce

those amendments by appropriate legislation.*4 Congres-

sional actions, however, must remain rooted in the

purpose of the amendments. Accordingly, the Supreme

Court has upheld the ban on electoral changes in section

5 of the Voting Rights Act (the preclearance provision)

because “the Act’s ban on electoral changes that are

discriminatory in effect is an appropriate method of

promoting the purposes of the Fifteenth Amendment,

even if it is assumed that § 1 of the Amendment prohib-

its only intentional discrimination in voting.” City of

Rome v. United States, 446 U.S. 156, 177, 100 S. Ct. 1548,

1562, 64 L. Ed. 2d 119 (1980). Thus, Congress’ decision to

include and retain the “on account of race or color”

language was not merely fortuitous. Indeed, “this limita-

tion was not so much the product of legislative discretion

as constitutional imperative, given that the scope of

Congress’ remedial power under the Civil War Amend-

ments is defined in large part by the wrongs they prohib-

it.” LULAC, 999 F.2d at 854. As the Senate Judiciary

Committee concluded, the proposed amendment to sec-

tion 2 was constitutional because of “the very terms and

operation of the provision, which confine its application

to actual racial discrimination.” S.Rep. No. 417, at 43,

reprinted in 1982 U.S.C. C.A.N. at 177, 221.

“4 Congress’ authority to enforce the Civil War Amendments approx-

imates its power under the Necessary and Proper Clause, as described

by McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), to

implement the powers granted by Article 1. See City of Rome v.

45a

In addition, to accept the appellants’ interpretation of

section 2—that is,to read the “on account of race”

language out of the statute by allowing section 2 plain-

tiffs to establish a violation merely by proving numerical

differences in representation levels—would be to create

a de facto right to proportional representation, a result

explicitly prohibited by section 2 itself.*° See 42 U.S.C.

United States, 446 U.S. 156, 174-77, 100 S. Ct.1548, 1560-61, 64 L. Ed.

2d 119 (1980) (approving the preclearance provisions of section 5 of

the Voting Rights Act while expressing no opinion as to the constitu-

tionality of section 2). Indeed, the Court held that “Congress may

prohibit practices that in and of themselves do not violate § 1 of the

[Fifteenth] Amendment, so long as the prohibitions attacking racial

discrimination in voting are ‘appropriate’ as that term is defined in

McCulloch v. Maryland and Ex parte Virginia, 100 U.S. 339 [25 L.

Ed. 676] (1880).” City of Rome, 446 U.S. at 177, 100 S. Ct. at 1561-62.

Quoting Ex parte Virginia, 100 U.S. at 345-46, the Court explained in

South Carolina v. Katzenbach, 383 U.S. 301, 327, 86 S. Ct. 803, 818,

15 L. Ed. 2d 769 (1966), that:

Whatever legislation is appropriate, that is, adapted to carry out

the objects the amendments have in view, whatever tends to

enforce submission to the prohibitions they contain, and to

secure to all persons the enjoyment of perfect equality of civil

rights and the equal protection of the laws against State denial or

invasion, if not prohibited, is brought within the domain of

congressional power.

Similarly, in Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S. Ct. 1717,

1724, 16 L. Ed. 2d 828 (1966), the Court held that legislation enacted

pursuant to section 5 of the Fourteenth Amendment would be upheld

as an appropriate exercise of congressional power if the statute “ ‘is

plainly adapted to [the] end’” of enforcing the Equal Protection

Clause and “is not prohibited by but is consistent with ‘the letter and

spirit of the constitution,’ ” regardless of whether the practices

outlawed by Congress violated the Equal Protection Clause in and of

themselves.

** In amending section 2, the Judiciary Committee noted, with ap-

proval, that “Whitcomb [v. Chavis] and White [v. Regester] both

recognized that, in order to prevail, plaintiffs had to prove more than

that minority members had not elected legislators in proportion to

their percentage of the population.” S.Rep. No. 417, at 23, reprinted

in 1982 U.S.C.C.A.N. at 177, 200; see also id. at 34, reprinted in 1982

Friis

46a

U.S.C. § 1973(b) (“Nothing in this section establishes a

right to have members of a protected class elected in

numbers equal to their proportion in the population.”).

For, under the appellants’ reading, courts would do no

more than simply determine whether black voters are

able to elect their candidates of choice and whether they

might be more effective under a different electoral

arrangement. Taken a step further, the appellants’

interpretation necessarily requires a finding that,

whenever minority candidates are not succeeding in at-

large elections despite the fact that the minority popula-

tion is reasonably large and politically cohesive, the only

possible explanation for the minority candidates’ lack of

success is white bloc voting. Such a holding would

amount to no less than the creation of a right to propor-

tional representation, while also serving to eviscerate

the very reason for the adoption of the Voting Rights

Act—to prevent the abridgement of the right to vote “on

account of race.”

2.

An examination of the legislative history surrounding

the 1982 amendment to the Voting Rights Act (along

with the Supreme Court cases that preceded that legisla-

tion) confirms that racial bias in the voting community

remains the keystone of section 2 vote dilution claims.

Congress amended section 2 in 1982 to overturn the

plurality decision of the Supreme Court in City of Mobiie

v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L.Ed. 2d 47

U.S.C.C.A.N. at 177, 212 (“If the mere existence of under representa-

tion plus a history of dual schools had been sufficient under White,

then plaintiffs would have won in every lawsuit brought in the Fifth

Circuit [after Zimmer], which was clearly not the case.”).

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47a

poseful device to further racial ... discrimination,’ ” id.

at 66, 100 S. Ct. at 1499 (quoting Whitcomb v. Chavis,

** See S.Rep. No. 417, at 2, reprinted in 1982 U.S.C.C.A.N. at 177,

Bolden.”); id. at 27, reprinted in 1982 U.S.C.C.A.N. at 177, 205 (“The

‘results’ standard is meant to restore the pre-/Bolden] legal Standard

at 1028-31 (Tjoflat, CJ., specially concurring); see also Gingles, 478

comb.”); LULAC, 999 F.2d at 851 (“The 1982 amendments to § 2 were

intended to ‘codify’ the results test as employed in White and Whit-

comb.”).

48a

veloped around it, into the application of Section 2.”

S.Rep. No. 417, at 32, reprinted in 1982 U.S.C.C.A.N. at

177, 210. Because of this stated purpose to return the

section 2 burden of proof to pre-Bolden standards,‘*’ “it is

to Whitcomb and White that we should look in the first

instance in determining -how great an impairment of

minority voting strength is required to establish vote

dilution in violation of § 2.” Gingles, 478 U.S. at 97, 106

S. Ct. at 2791 (O’Connor, J., concurring).

The Supreme Court began the development of a stand-

ard for racial vote dilution cases in Whitcomb v. Chavis,

403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971),

which involved a challenge to the multimember, at-large

legislative district scheme in Marion County, Indiana (the

Indianapolis area). In that case, black voters claimed

that the use of at-large elections diluted the voting

strength of minorities in violation of the Equal Protec-

tion Clause of the Fourteenth Amendment.‘** After

noting that multimember district systems are not per se

unconstitutional, 7d. at 142, 91 S. Ct. at 1868, the Court

determined that they “may be subject to challenge

*? Several decisions of this court have recognized that Congress

intended the 1982 amendment to section 2 to restore the standard

that governed vote dilution cases before Bolden. See, e.g., United

States v. Marengo County Comm’n, 731 F.2d 1546, 1562-63 (11th

Cir.), cert. denied, 469 U.S. 976, 105 S. Ct. 375, 83 L.Ed.2d 311 (1984);

see also McMillan v. Escambia County, 748 F.2d 1037, 1041 (Former

5th Cir. 1984).

*® The Fourteenth Amendment states, in pertinent part, that “no

State shall make cr enforce any law which shall abridge the privileges

or immunities of citizens of the United States, nor shall any State

deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal pro-

tection of the laws.”

49a

where the circumstances of a particular case may ‘oper-

ate to minimize or cancel out the voting Strength -of

racial ... elements of the voting population,’ ” id. at 143,

91 S. Ct. at 1869 (quoting Fortson v. Dorsey, 379 U.S.

433, 439, 85 S. Ct. 498, 501, 13 L.Ed. 2d 401 (1965)). The

Court then turned to the question of how such unconsti-

tutional vote dilution could be proved.

The Court first noted that any schemes “conceived or

operated as purposeful devices to further racial discrimi-

nation” would be struck down under the Equal Protec-

tion Clause. Jd. at 149, 91 S. Ct. at 1872. It found,

however, that the plaintiffs had made no showing that

the system used in urban Indianapolis had been explicit-

ly designed or maintained by the relevant public officials

to dilute the minority vote. Jd. The Court then shifted its

attention from the intent of the legislators who had

framed the electoral System to conditions in the voting

community as a whole. The Court Stressed that invidious

discrimination could not Satisfactorily be proved through

evidence of minority candidates’ lack of success “absent

evidence and findings that {minority voters] had less

opportunity than did other Marion County residents to

participate in the political process and to elect legislators

of their choice.” Jd. To make this showing, the Court

explained that plaintiffs could rely on evidence of Var-

ious objective factors, such as limitations on minority

registration or participation in political parties, that are

probative of the presence or absence of racial bias in all]

levels of the political community and not just of “offi-

cial” discrimination by legislators.49 Thus, Whitcomb

50a

indicates that the actions of the members of the voting

community as a whole, not just the conduct of officials

responsible for designing or maintaining the electoral

structure at issue, are relevant to inquiries into discrimi-

nation in the voting process.

In White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L.

Ed. 2d 314, the Supreme Court retained proof of invid-

ious discrimination as a requirement of a successful vote

dilution case brought under the Equal Protection Clause.

The Court explained that, in vote dilution cases, it had

“entertained claims that multimember districts are being

used invidiously to cancel out or minimize the voting

strength of racial groups.” Jd., 412 U.S. at 765, 93 S. Ct.

at 2339. The plaintiffs in White challenged, under the

Fourteenth Amendment, the multimember legislative

apportionment plan, which employed multimember dis-

tricts in certain Texas counties. Accordingly, in framing

the constitutional issue before it, the Court explained

that it was required to determine whether the use of

multimember districts had “been invidiously discrimina-

tory against cognizable racial or ethnic groups in those

counties.” Jd. at 756, 93 S. Ct. at 2335.

The plaintiffs in White apparently never attempted to

demonstrate invidious discrimination through proof of

the subjective intent of the legislators who designed or

maintained the challenged election scheme. Instead, the

plaintiffs only offered—and the Court only dis-

cussed—circumstantial evidence that pointed to objec-

tive factors that, like those in Whitcomb, shed light on

the presence or absence of racial bias in the voting

“the failure of the [black community] to have legislative seats in

proportion to its population{ ] emerges more as a function of losing

elections than of built-in bias against poor Negroes. The voting power

of ghetto residents may have been ‘cancelled out’ ..., but this seems

more a euphemism for political defeat at the polls.” Whitcomb, 403

U.S. at 153, 91 S. Ct. at 1874.

5la

community. Echoing the language used in Whitcomb, the

Court framed the relevant standard as follows:

To sustain [vote dilution] claims, it is not enough

that the racial group allegedly discriminated against

has not had legislative seats in proportion to its

voting potential. The plaintiffs’ burden is to produce

evidence to support findings that the political proc-

esses leading to nomination and election were not

equally open to participation by the group in ques-

tion—that its members had less opportunity than did

other residents in the district to participate in the

political processes and to elect legislators of their

choice.

Id. at 765-66, 93 S. Ct. at 2339. The Supreme Court

approved the district court’s use of several objective

factors to determine whether the plaintiffs had met this

burden of proof. Those factors included the state’s histo-

ry of official racial discrimination; the use of certain

voting structures that, although not in themselves

improper or invidious, nevertheless enhanced the oppor-

tunity for racial discrimination; the influence of all-

white political organizations over the process; and the

use of overt racial campaign tactics to defeat candidates

supported by the black community. See id. at 766-67, 93

S. Ct. at 2339-40. Based upon an evaluation of these fac-

tors, the Court affirmed the district court’s determina-

tion that the minority population had been excluded

unconstitutionally from the political process in those

Texas counties.

The relevance of the objective factors discussed in

Whiie clearly was not limited to the narrow issue of

legislators’ intent in the adoption or maintenance of a

challenged voting scheme. Instead, those factors were

indicative of racial bias in the political community as a

whole and of interaction between that bias and the

challenged electoral structure. The opportunity, or lack

of opportunity, to participate in the political process was

52a

proved in White with objective factors that indicated

that the voting scheme, “overlaid, as it was, on the

cultural and economic realities of the [minority] commu-

nity in Bexar County and its relationship with the rest of

the county,” closed the political process to the minority

group. Id. at 769, 93 S.Ct. at 2341.

Whitcomb and White thus established that proof of

invidious discrimination constituted an essential element

of voting rights claims under the Equal Protection

Clause. Plaintiffs could establish this element: (1) by

proving that the legislators or other officials intended to

enact or maintain a discriminatory voting scheme; or (2)

by demonstrating objective factors indicating that the

minority group has less opportunity to participate in the

political process and to elect officials of its choice. As

Justice White recently explained, Whitcomb and White

carry the following theme: “It is not mere suffering at

the polls but discrimination in the polity with which the

Constitution is concerned.” Shaw v. Reno, US. , ,

113 S. Ct. 2816, 2835, 125 L. Ed. 2d 511 (1993) —

J., dissenting).

It was against this jurisprudential backdrop that a

plurality of the Supreme Court in Bolden eliminated the

second of these two methods of establishing invidious

discrimination available to voting rights plaintiffs under

Whitcomb and White—objective factors indicating that

the minority group has less opportunity to participate in

the political process and to elect officials of its choice.

Specifically, the Bolden plurality held that plaintiffs in

voting rights cases, whether claiming a violation of the

Fourteenth Amendment, Fifteenth Amendment, or

section 2 of the Voting Rights Act, “must prove that the

disputed plan was ‘conceived or operated as [a] purpose-

ful device to further racial ... discrimination.’ ” © Bold-

en, 446 U.S. at 66, 100 S. Ct. at 1499 (quoting Whitcomb,

403 U.S. at 149, 91 S. Ct. at 1872). Bolden involved a

challenge to the at-large system of elections for the

53a

three-member city commission governing Mobile, Ala-

bama, whose members jointly exercised legislative and

executive power. In rejecting each of the plaintiffs’

claims, the plurality read the same intent requirement

into both the Civil War Amendments and section 2: An

electoral scheme would be invalidated only where the

plaintiff could prove racially discriminatory intent on the

part of legislators (or other relevant officials) in design-

ing or maintaining the challenged scheme.*! See id. at

62, 66-67; 100 S. Ct. at 1499-1500.

© The plurality reviewed many cases in the process of distilling this

intent test, and it imported from those cases the basic principle that

purposeful discrimination is a requirement for a violation of the

Fifteenth Amendment, citing Gomillion v. Lightfoot, 364 U.S. 339, 81

S. Ct. 125, 5 L. Ed.2d 110 (1960), and Wright v. Rockefeller, 376 U.S.

52, 84 S. Ct. 603, 11 L. Ed.2d 512 (1964), and of the Fourteenth

Amendment, citing Washington v. Davis, 426U.S. 229, 96 S. Ct. 2040,

48 L. Ed. 2d 597 (1976), Arlington Heights v. Metropolitan Hous. Dev.

Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), and

Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 99 S.

Ct.2282, 60 L. Ed. 2d 870 (1979). See Bolden, 446 U.S. at 62-63, 66-67,

91 S. Ct.at 1497, 1499. The plurality held that, as a matter of statuto-

ry construction, “the language of § 2 no more than elaborates upon

that of the Fifteenth Amendment, and the sparse legislative history

of § 2 makes clear that it was intended to have an effect no different

from that of the Fifteenth Amendment itself.” Jd. at 60-61, 100 S. Ct.

at 1496 (footnote omitted).

* Further evidence that the plurality was altering the standard

established in Whitcomb and White can be derived from the Court’s

holding that the objective factors discussed in those opinions could

not provide sufficient proof of the discriminatory purpose the plurali-

ty opinion now required. See Bolden, 446 U.S. at 73, 100 S. Ct. at

1502-03. As we explain above, those factors are relevant to a deter-

mination of racial bias in the voting community as a whole, not to

racial motivations on the part of the creators of a state’s electoral

scheme. Thus, the Bolden plurality’s holding that the circumstantial

evidence factors alone could not Support a finding of invidious dis-

crimination indicates that only evidence of racial bias on the part of

legislators or other responsible officials could demonstrate the re-

quired discriminatory purpose.

54a

Thus, the legislative history surrounding the 1982

amendment to section 2 supplies significant insight into

Congress’ intent to overturn the Bolden intent test by

codifying White. The Judiciary Committee’s report

makes clear that amended section 2 restored the pre-

Bolden standard by eliminating the absolute requirement

that plaintiffs prove a discriminatory intent on the part

of the legislators or officials responsible for designing or

maintaining the challenged electoral scheme. The 1982

amendment, however, was not designed completely to

eliminate consideration of the presence or absence of

racial bias from the vote dilution inquiry; instead, it was

meant merely to restore the invidious discrimination

requirement as articulated by the Whitcomb and White

Courts. Thus, under section 2 as amended, a plaintiff

once again may demonstrate a violation by proving

either: (1) the subjective discriminatory motive of legisla-

tors or other relevant officials; or (2) the existence of

objective factors demonstrating that the _ electoral

scheme interacts with racial bias in the community and

allows that bias to dilute the voting strength of the

minority group.

b.

Appearing before this court as amicus curiae on behalf

of the United States, the Department of Justice joined

the appellants in opposing the foregoing reading of the

legislative history and pre-amendment case law sur-

rounding section 2. The Department contends that sec-

tion 2 does not require any proof whatsoever of inten-

tional discrimination or racial animus; to consider a lack

of racial bias in the voting community as a means of

avoiding a section 2 vote dilution claim under the totali-

ty of the circumstances, the Department contends,

would be to reintroduce the type of intent-based inquiry

‘65a

Because of the Symbolic power of that characterization,

we address the Department’s reading of the legislative

history in some detail.

tee’s report, particularly the comment that “the specific

intent of [the 1982] amendment is that the plaintiffs may

choose to establish discriminatory results without prov-

ing any kind of discriminatory purpose.” S.Rep. No. 417,

at 28, reprinted in 1982 U.S.C.C.A.N. at 177, 205-06.This

expression of legislative intent, the Department argues,

forecloses the reading into the statute of any require-

ment that the presence or absence of racial bias in the

voting community be considered in determining whether

a section 2 violation has been established.

As noted above, however, the overriding intent of the

1982 amendment to section 2, as expressed repeatedly in

the Senate Report, was to reject the position of the

plurality in Bolden, “which required proof that the

contested electoral practice or mechanism was adopted

or maintained with the intent to discriminate against

minority voters.” Gingles, 478 U.S. at 43-44, 106 S. Ct. at

2762-63. The Department of Justice, however, contends

that the goals Congress sought to achieve were broader:

was attributable to racial considerations would “frustrate the goals

Congress sought to achieve by repudiating the intent test of

[Bolden].” Gingles, 478 U.S. at 71, 106 S. Ct. at 2777.

56a

to divorce the issue of racial bias from the section 2

inquiry altogether and essentially to limit the relevant

considerations to the rate of minority electoral success at

the polls. “Given the palpable tension between ‘the goals

Congress sought to achieve’ and those it actually ex-

pressed, it is hardly surprising that the principles [the

appellants] purport[ ] to locate in the Senate Report bear

only a passing resemblance to those offered by

Congress.” LULAC, 999 F.2d at 862. The Senate Report

leaves no doubt that Congress’ view of the vice of the

Bolden decision comports with our description above:

In pre-Bolden cases piaintiffs could prevail by

showing that a challenged election law or procedure,

in the context of the total circumstances of the local

electoral process, had the result of denying a racial

or language minority an equal chance to participate

in the electoral process. Under this results test, it

was not necessary to demonstrate that the chal-

lenged election law or procedure was designed or

maintained for a discriminatory purpose.

S.Rep. No. 417, at 16, reprinted in 1982 U.S.C.C.A.N. at

177, 193. The Committee thus concluded that the Bolden

“intent test places an unacceptably difficult burden on

plaintiffs” because “it diverts the judicial [inquiry] from

the crucial question of whether minorities have equal

access to the electoral process to a historical question of

individual motives.” Id. The Whitcomb and White deci-

sions, in the Committee’s view, were correct because “in

neither ...did the Supreme Court undertake a factual

examination of the intent motivating those who designed

the electoral districts at issue.” /d. at 22, reprinted in

1982 U.S.C.C.A.N. at 177, 200.

In context, therefore, the phrases from the Senate

Report highlighted by the Department of Justice and the

appellants refer to this particular form of intent.®* The

58 Our reading of the Senate Report comports with the conclusion

reached by the Fifth Circuit. See LULAC, 999 F.2d at 862 (“The

_ 57a

Report states that the intent test “asks the wrong ques-

tion” precisely because it probes the racial motivations

of lawmakers (and not because it inquires into racial bias

in general):

(if an electoral System operates today to exclude

blacks or Hispanics from a fair chance to participate,

then the matter of what motives were in an offi-

cial’s mind 100 years ago is of the most limited

relevance.... If [minorities] are denied a fair oppor-

tunity to participate ... the System should be

changed, regardless of what may Or may not be

provable about events which took place decades ago.

S.Rep. No. 417, at 36, reprinted in 1982 U.S.C.C.A.N. at

177, 214; see also Shaw, U.S. at , 113 S. Ct. at 2823

(“In 1982, [Congress] amended § 2 of the Voting Rights

Act to prohibit legislation that results in the dilution of a

minority group’s voting strength, regardless of the legis-

lature’s intent.”). Statements in the Report about avoid-

ing a requirement that plaintiffs prove “discriminatory

intent” must be considered in light of the meaning pro-

vided to that phrase in the document as a whole, where-

in the Committee expressed its intent to overturn the

Bolden legislative intent requirement. The many refer-

ences to “intent,” “motivation,” and “purpose” through-

out the report therefore must be read to refer to the

intent of those responsible for erecting or maintaining

the challenged scheme.*4

Senate Report quite unambiguously declares that Congress intended

to “make clear that plaintiffs need not prove a discriminatory purpose

in order to establish a violation.’ ”).

** In the section of the Senate Report dealing with the operation of

amended section 2, the Committee consistently contrasts the results

test, which it adopts, with the forbidden intent test, because the

former avoids inquiry into the motivations of legislators. For example,

the Committee noted:

58a

Not only does the context of the passage from the

Senate Report clearly indicate what Congress meant by

forbidden inquiry into discriminatory intent, but the

Committee’s language in other sections of its report also

demonstrates a congressional desire to retain a basic

inquiry into racial bias in the voting community—an

inquiry that is qualitatively different from the question

whether a challenged election law or procedure was

designed or maintained for a discriminatory purpose. The

Senate Report explains:

The results test makes no assumptions one way or

the other about the role of racial political considera-

tions in a particular community. If plaintiffs assert

that they are denied fair access to the political

process, in part, because of the racial bloc voting

context within which the challenged election system

works, they would have to prove it.

S.Rep. No. 417, at 34, reprinted in 1982 U.S.C.C.A.N. at

177, 212. The Judiciary Committee thus explicitly recog-

The amendment to the language of Section 2 is designed to

make clear that plaintiffs need not prove a discriminatory pur-

pose in the adoption or maintenance of the challenged system [or]

practice in order to establish a violation. Plaintiffs must either

prove such intent, or, alternatively, must show that the chal-

lenged system or practice, in the context of all the circumstances

in the jurisdiction in question, results in minorities being denied

equal access to the political process.

S.Rep. No. 417, at 27, reprinted in 1982 U.S.C.C.A.N. at 177, 205

(footnote omitted). The Committee continued: “If the plaintiff pro-

ceeds under the ‘results test’, then the court would assess the impact

of the challenged structure or practice on the basis of objective fac-

tors, rather than making a determination about the motivations

which lay behind its adoption or maintenance.” Jd. The Committee,

therefore, drew a distinction between the forbidden inquiry into the

motives of the designers of an electoral scheme and the use of objec-

tive factors to evaluate whether minorities are denied equal access to

the political process on account of race—an evaluation that focuses

on racial bias in the voting community.

Id. at 33, reprinted in 1982 U.S.C.C.A.N. at 177,211. In

electoral process.

In the context of such racial bloc voting, and other

factors, a particular election method can deny

minority voters equal Opportunity to Participate

meaningfully in elections.

Separating, within the meaning of the Voting Rights Act,

those jurisdictions in which minority voters have an

These objective factors, as discussed above, bear on the existence or

nonexistence of racial bias in the community as a whole.

60a

equal opportunity to participate from those in which

they do not.*

Contrary to the assertion of the appellants and the

Department of Justice, permitting inquiry into racial bias

would not reintroduce into section 2 cases the divisive-

ness that Congress sought to eliminate. In language

heavily relied on by these parties, the Senate Report

explains that exploring racial motivations as an element

of proof is divisive because “it involves charges of racism

on the part of individual officials or entire

communities.” Jd. at 36, reprinted in 1982 U.S.C.C.A.N.

at 177, 214. Significantly, however, the Senate Report

continues on in the very same paragraph to reproduce

testimony suggesting that this concern arises because,

under the Bolden intent test, “litigators representing

excluded minorities will have to explore the motivations

of individual council members, mayors, and other citi-

zens. The question would be whether their decisions

were motivated by invidious racial considerations.” Id.

(emphasis added). Moreover, an inquiry into racial bias

in the voting community, using objective factors, does

not require that any individuals be labelled as racists

because section 2 contemplates proof by circumstantial -

evidence.*?

5* As a panel of this court has explained, “this section of the Senate

Report makes it clear that section 2 is intended not to create race-

conscious politics, but to remedy it where it already exists.” Marengo,

731 F.2d at 1567.

57 As Professor (and now Solicitor General) Drew Days testified

during the congressional hearings, “in those jurisdictions where the

evidence supports the conclusion that a combination of public and

private actions, over time, have succeeded in ‘fencing out’ minorities

from the electoral process, [it is] difficult to understand how requiring

that corrective measures be undertaken brands that community and

its officials as ‘racists,’ as some critics of the proposed Amendment

have suggested.” Hearings on the Voting Rights Act Before the Sub-

comm. on the Constitution of the Senate Comm. on the Judiciary,

97th Cong.,2d Sess. 1402 (statement of Prof. Drew S. Days, I, Yale

Law School).

6la

3.

The legislative history, therefore, does not revea] an

intent on the part of Congress to limit the section 2

inquiry to numbers alone, without any corresponding

consideration of racial bias. Such a position directly

contravenes the language of section 2, which prohibits

voting practices that deny minority voters equal access

to the political process on account of race. Indeed,

“without an inquiry into the circumstances underlying

unfavorable election returns, courts lack the tools to

discern results that are in any sense ‘discriminatory,’ and

any distinction between deprivation and mere losses at

the polls becomes untenable.” LULAC, 999 F.2d at 850.

As we have emphasized, and as the Supreme Court

recognized in Gingles, “the essence of a § 2 claim is that

a certain electoral law, practice, or structure interacts

with social and historical] conditions to cause an inequali-

ty in the opportunities enjoyed by black and white

voters to elect their preferred representatives.” 58 Gin-

gles, 478 U.S. at 47, 106 S. Ct. at 2764. Unless the tend-

ency among minorities and white voters to support dif-

ferent candidates, and the accompanying losses by

minority groups at the polls, are somehow tied to race,

voting rights plaintiffs simply cannot make out a case of

vote dilution.

C.

In summary, a plaintiff must prove invidious discrimi-

nation in order to establish a violation of section 2 of the

Voting Rights Act. Specifically, the plaintiff may prove

either: (1) discriminatory intent on the part of legislators

** See also id. at 1367-68 (statement of Prof. Days) (explaining that

1982 amendment to section 2 was designed to restore a remedy in

cases “where a combination of public activity and private discrimina-

tion have joined to make it virtually impossible for minorities to play

a meaningful role in the electoral process”).

62a

or other officials responsible for creating or maintaining

the challenged system; or (2) objective factors that,

under the totality of the circumstances, show the exclu-

sion of the minority group from meaningful access to the

political process due to the interaction of racial bias in

the community with the challenged voting scheme.

Given the obvious fact that evidence of legislators’ bias

will generally be difficult to find, we envision that sec-

tion 2 plaintiffs usually will pursue the second option,

the “results test.”

The contours of the proper inquiry under the results

test emerge from the Supreme Court’s opinion in Gin-

gles, which identified three preconditions to obtaining

relief under section 2.5° A plaintiff cannot obtain relief

unless he or she can establish: (1) the existence of a

permissible remedy (in legislative cases like Gingles, the

existence of a sufficiently large and compact minority

group to constitute a single-member district); (2) that the

minority group is politically cohesive; and (3) that the

white majority typically votes as a bloc so as to defeat

the black community’s preferred candidate. See zd. at 50-

51, 106S. Ct. at 2766-67. Proof of the second and third

Gingles factors—demonstrating racially polarized bloc

voting that enables the white majority usually to defeat

the minority’s preferred candidate—is circumstantial

evidence of racial bias operating through the electoral

system to deny minority voters equal access to the politi-

cal process. Accordingly, the existence of those factors,

and a feasible remedy, generally will be sufficient to

warrant relief.

5° It should be remembered that Gingles involved a challenge to a

system of at-large multimember legislative districts. Although the

preconditions described by the Supreme Court are applicable to vote

dilution claims generally, they must be modified to take into account

the particular characteristics of the electoral scheme at issue. As we

describe infra part III, such a modification is necessary in the judicial

elections context.

community; for example, by showing that the communi-

ty’s voting patterns can best be explained by other, non-

defendant pleads them by way of affirmative defense.” Johnson v. De

Grandy, U.S. » » 1148S. Ct. 2647, 2662, 129 L. Ed. 2d 775 (1994),

64a

Our reasoning on this point is substantially similar to

the approach taken by the Fifth Circuit in LULAC, which

concerned vote dilution challenges to the election of

Texas state trial court judges. In that case, the Fifth

Circuit reversed the judgment of the district court

(which found section 2 violations in several counties)

because the disparate electoral results were principally

caused by a factor other than race.*? Specifically, the

court concluded that, “when the record indisputably

proves that partisan affiliation, not race, best explains

the divergent voting patterns among minority and white

citizens in the contested counties, ... the district court’s

judgment must be reversed. LULAC, 999 F.2d at 850.

The LULAC court gave the following explanation for the

need to examine the reasons for the electoral patterns

that statistical evidence reveals:

Absent evidence that minorities have been excluded

from the political process, a “lack of success at the

polls” is not sufficient to trigger judicial interven-

tion. Courts must undertake the additional inquiry

into the reasons for, or causes of, these electoral

losses in order to determine whether they were the

product of “partisan politics” or “racial vote dilu-

tion,” “political defeat” or “built-in bias.” It is only

upon concluding that a minority group’s failure to

prevail at the polls ... was the “result” or “function”

of “racial vote dilution” or “built-in bias,” that a

court may find that minority plaintiffs have suffered

“a denial or abridgement of the right ... to vote on

account of race or color.”

62 Given this holding—that race did not cause the challenged elec-

toral results—it was unnecessary for the LULAC court to resolve the

issue we address today: whether Congress intended that section 2

liability turn on the existence of racial bias in the community interact-

ing with the challenged electoral scheme to dilute the voting strength

of the minority plaintiffs. See infra note 63. Nor was it necessary for

that court to address the matter of an appropriate remedy.

65a

LULAC, 999 F.2d at 853-54.¢3 “Electoral losses that are

attributable to partisan politics,” the court concluded,

“do not implicate the protections of § 2.” Id. at 863.

It is a difficult task to articulate a stand2rd for vote

dilution cases that does not raise insurmountable hurdles

for section 2 plaintiffs while at the Same time avoiding

the equally forbidden result of guaranteeing a right of

proportional representation. We Submit, however, that

the burden allocation detailed above strikes the appro-

priate balance, such that plaintiffs to make out a case of

vote dilution are not required to prove the negative;

rather, proof of the second and third Gingles factors will

ordinarily create a sufficient inference that racial bias is

at work.* In many cases, “the surest indication of race-

* It should be noted, however, that the Fifth Circuit’s decision in

LULAC rested on narrower reasoning than does ours today. Because

the Fifth Circuit held that “plaintiffs, to establish legally significant

racial bloc voting, must prove that their failure to elect representa-

tives of their choice cannot be characterized as a ‘mere euphemism

for political defeat at the polls,’ ... or the ‘result’ of ‘partisan

politics,’ ” the court determined that it “need not hold that plaintiffs

aust supply conclusive proof that a minority group’s failure to elect

representatives of its choice is caused by racial animus in thewhite

electorate in order to decide that the district court’s judgment must

be reversed.” LULAC, 999 F.2d at 859 (citations omitted). Neverthe-

less, the court did indicate its belief that “such a requirement could

be inferred from the text of § 2; the caselaw Congress intended to

codify in amending the provision; the Senate Report; the testimony of

prominent supporters of the Act; and the controlling opinions of the

Supreme Court.” Jd. (citations omitted).

* Accordingly, we avoid the Fifth Circuit’s concern that “{a] rule

conditioning relief under § 2 upon proof of the existence of racial

animus in the electorate would require plaintiffs to establish the

absence of not only partisan voting, but also all other potentially

innocent explanations for white voters’ rejection of minority-

preferred candidates.” LULAC, 999 F.2d at 859. The defendants

would have the obligation to introduce evidence of such innocent

explanations; section 2 plaintiffs would be under no obligation to

search them out and disprove them preemptively. If the plaintiffs

66a

conscious politics is a pattern of racially polarized

voting.” United States v. Marengo County Comm’n, 731

F.2d 1546, 1567 (11th Cir.), cert. denied, 469 U.S. 976,

105 S. Ct. 375, 83 L. Ed. 2d 311 (1984); see also United

States v. Dallas County Comm’n, 850 F.2d 1430, 1439

(11th Cir.1988), cert. denied, 490U.S. 1030, 109 S. Ct.

1768, 104 L. Ed. 2d 203 (1989). The standard we articu-

late today simply allows a defendant to rebut proof of

vote dilution by showing that losses by minority-pre-

ferred candidates are attributable to non-racial causes.

D.

As should be obvious from the foregoing discussion,

vote dilution cases are circumstantial evidence cases:

Section 2 violations generally will not be established by

direct testimonial evidence that resolves the matter at

issue. In listing of factors that ordinarily will be most

relevant to the section 2 inquiry into the totality of the

circumstances, the Senate Judiciary Committee and the

Gingles Court, like the White and Zimmer courts before

them, attempted to describe the types of evidence that

will assist a reviewing court in determining whether the

influence of a given racial group has been distorted

through the denial of equal access to the political proc-

esses. The enumerated objective factors were designed

to guide district courts in the receipt of evidence in vote

dilution cases by clarifying certain subsidiary inquiries

that are relevant to the ultimate issue. The presence or

absence of each factor therefore serves as a piece of

evidence pointing either towards or away from an ulti-

mate conclusion that an electoral system is or is not

operating to dilute a minority group’s voting strength on

account of race. It is only after making particularized

have proved the Gingles factors, and if the defendants say nothing in

response, the plaintiffs ordinarily will have discharged their obliga-

tion.

67a

determinations as to these various factors that a district

court may weigh its findings in order to as certain

whether, in the aggregate, they point to dilution.

Of course, although Congress and the Court expect that

the factors listed will be the most relevant in the majori-

nsider all evidence that is probative of the ultimate

issue. As Gingles emphasizes, section 2 mandates a

tion of typical circumstantial] evidence factors, “this list

of factors is neither comprehensive nor exclusive.”

Gingles, 478 U.S. at 45, 106 S. Ct. at 2763. Still, in

reviewing these factors, we are reminded once more

that, although proof of any factor will be helpful to a

plaintiff’s section 2 Claim, it is only the second and third

Gingles threshold factors (in addition to the first factor,

which relates to the availability of a remedy) that must

be proven in every case. In particular, before a chal-

lenged procedure will violate section 2, “a bloc voting

majority must usually be able to defeat candidates

Supported by a politically cohesive, geographically insu-

lar minority group.” Jd. at 49, 106 S. Ct. at 2765-66.

This court has previously recognized the need to con-

sider a wide variety of circumstances when evaluating

claims of racial vote dilution under section 2. Halil v.

Holder, 955 F.2d 1563, 1568 (11th Cir.1992) (quoting

Gingles, 478 U.S.at 46, 106 S. Ct. at 2764), rev’d on other

grounds, US. , 1148S. Ct.2581, 129 L. Ed. 2d 687

(1994). Therefore, the full totality of the circumstances

If the totality of circumstances could not be consid-

ered in reviewing the Gingles factors, then courts

would often be left to consider statistical and census

68a

data in an inappropriate contextual vacuum. The

interaction of social and historical conditions with

the challenged system would not be considered

despite the fact that such interactions are central to

§ 2 claims.

Hall, 955 F.2d at 1568 n. 8. Of course, some Senate

Report factors are particularly important because they

have a direct bearing on the Gingles threshold inquiry

while others to the extent that they are relevant, remain

“supportive of, but not essential to, a minority voter’s

claim.” Gingles, 478 U.S. at 48 n. 15, 106 S. Ct. at 2765

n. 15. Although the additional factors need not be

present to satisfy the Gingles threshold, they must be

examined when determining whether, considering all of

the circumstances in the case, the plaintiffs are entitled

to section 2 relief.

Courts evaluating vote dilution claims, therefore, must

consider all relevant evidence; “no single statistic pro-

vides courts with a short-cut to determine whether a set

of [electoral structures] unlawfully dilutes minority

voting strength.” ** Johnson v. De Grandy, US. , ,

114 S. Ct. 2647, 2661-62, 129 L. Ed. 2d 775 (1994).

Because the court must conduct a “searching practical

* In De Grandy, the Supreme Court confirmed that no single type

of evidence is dispositive by rejecting the rule of thumb apparently

adopted by the district court: namely, that “anything short of the

maximum number of majority-minority districts consistent with the

Gingles conditions would violate § 2, at least where societal discrimi-

nation against the minority had occurred and continued to occur.” De

Grandy, U.S. at , 1148S. Ct. at 2659. The Court also declined to

introduce proportionality as a safe harbor for any districting scheme

because “an inflexible rule would run counter to the textual com-

mand of § 2, that the presence or absence of a violation be assessed

‘based on the totality of circumstances.’ ” Jd. at , 114 S. Ct. at 2660

(quoting 42 U.S.C. § 1973(b)). Thus, “the opinion’s central teaching is

that proportionality—defined as the relationship between the number

of majority-minority voting districts and the minority group’s share of

the relevant population—is always relevant evidence in determining

vote dilution, but is never itself dispositive.” Jd. at , 114S. Ct. at

2664 (O’Connor, J., concurring).

69a

evaluation of the “past and present reality’ ” of the chal-

lenged electoral system in operation, Gingles, 478 U.S. at

45, 106 S. Ct. at 2764 (quoting S.Rep. No. 417, at 30,

reprinted in 1982 U.S.C.C.A.N. at 177, 208), the types of

evidence that would be relevant under this standard

plainly defy categorization. Instead, a court gradually

draws together a picture of the challenged electoral

scheme and the political process in which it operates by

accumulating pieces of circumstantial] evidence. Like a

Seurat painting, a portrait of the challenged scheme

emerges against the background of the voting communi-

ty. Only by looking at all of the dots on the canvas is a

district court able to determine whether vote dilution

has occurred. A court should not exclude certain types

of relevant evidence—certain colors on the canvas—from

its examination if doing so would leave an incomplete

view of the circumstantial evidence picture. A piece of

evidence is irrelevant only if, after the receipt of that

evidence, the existence of a fact appears no more or less

probable than it did before that evidence was offered.

That is, an item of circumstantia] evidence is irrelevant

only if it does not allow the trier of fact reasonably to

infer anything about whether or not the voting strength

of the minority group has been impermissibly diluted.

ified’ or ‘corrupt’ to defeat a Claim that white voters’ refusal to

support him was based on race or ethnicity.” LULAC, 999 F.2d at 860.

70a

Having articulated the standard that governs vote

dilution cases generally, we now turn to the more par-

ticular problems involved in evaluating challenges to

judicial election schemes.

Il.

The principles governing vote dilution claims, including

the Gingles threshold factors, “cannot be applied

mechanically and without regard to the nature of the

claim.” De Grandy, U.S.at , 114 S. Ct. at 2655 (quot-

ing Voinovich v. Quilter, US. , , 113 S. Ct. 1149,

1157, 122 L.Ed. 2d 500 (1993)). The command that a

claim of vote dilution be evaluated with a functional,

not a formalistic, view of the political process, see Gin-

gles, 478 U.S. at 48 n. 15, 106 S. Ct. at 2765 n. 15, re-

quires that we consider the unique features of judicial

elections and the manner in which they affect the vote

dilution inquiry. Our analysis focuses on two themes: (1)

the need to adjust the factors enunciated in cases involv-

ing legislative elections to the judicial context: and (2)

the importance of considering the state’s interest in the

structure of its judiciary. By way of introduction,

however, we begin with the Supreme Court’s treatment

of section 2 challenges to judicial elections.

A.

The Supreme Court considered the application of sec-

tion 2 to judicial elections in the companion cases of

Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L.

Ed. 2d 348 (1991), and Houston Lawyers’ Ass’n v. Attor-

ney General, 501 U.S. 419, 111 S. Ct. 2376, 115 L. Ed. 2d

379 (1991).°7 Essentially, the Court determined that

67 In Clark v. Roemer, 500 U.S. 646, 111 S. Ct. 2096, 114 L. Ed. 2d

691(1991), the Court held that section 5 of the amended Voting Rights

Act (the preclearance provision) also applies to judicial elections.

7la

plaintiffs may bring vote dilution claims under section 2

with respect to the election of State judges, but it left open

the issue of what a plaintiff would have to establish to

obtain relief.

Chisom involved challenges to the election of two

justices of the Louisiana Supreme Court from a multi-

member district encompassing the New Orleans area; all

of the other justices of the court were elected from

single-member districts. Houston Lawyers’ Ass’n con-

cerned the Texas system for electing trial court judges.

Under review in these cases was the Fifth Circuit’s en

banc decision holding that vote dilution claims in judicial

elections are not covered by section 2 because judges are

not “representatives” within the meaning of the Statute.

League of United Latin Am. Citizens, Council No. 4434 v.

Clements, 914 F.2d 620, 622-23 (5th Cir.1990) (en banc).

The Supreme Court took pains to stress that its deci-

sions in these cases were limited to the threshold issue of

whether section 2 of the Voting Rights Act would allow

claims of vote dilution in State judicial elections. In

delineating the scope of section 2’s coverage, the Court

emphasized that it did “not address any question con-

cerning the elements that must be proved to establish a

violation of the Act {in this context] or the remedy that

might be appropriate to redress a violation if proved.”

Chisom, 501 U.S. at 390, 111 S. Ct. at 2361.The Court

simply held that “state judicial elections are included

within the ambit of § 2 as amended” and are, therefore,

to be analyzed under the established section 2 results

test. /d. at 404, 111 S. Ct. at 2368. More specifically, the

Court explained in Houston Lawyers’ Ass’n that the

Voting Rights Act covers “the election of ... trial] judges

whose responsibilities are exercised independently in an

area coextensive with the districts from which they are

72a

elected.” 501 U.S. at 426, 111 S. Ct. at 2380. The two

cases were then remanded for further proceedings.®*

Although Chisom and Houston Lawyers’ Ass’n do not

purport to develop the standard to be applied to the

merits in judicial election cases, several passages in the

Court’s opinions are significant. First, Justice Stevens’

majority opinion in Chisom explained that the Court’s

holding that section 2 should be read to cover judicial

elections was based on the fact that judicial offices may

be akin to representative positions if the state provides

for the partisan election of judges, thereby infusing

those offices with the characteristics of other elective

positions. As the Court noted:

The fundamental tension between the ideal char-

acter of the judicial office and the real world of

electoral politics cannot be resolved by crediting

judges with total indifference to the popular will

while simultaneously requiring them to run for

elected office. When each of several members of a

court must be a resident of a separate district, and

must be elected by the voters of that district, it

seems both reasonable and realistic to characterize

the winners as representatives of that district.

Chisom, 501 U.S. at 400-01, 111 S. Ct. at 2367 (footnote

omitted). In such systems, where judges are thought to

be accountable in some sense to the people who elect

* On remand, the Fifth Circuit wrestled with how to apply the

Gingles threshold test and the subsequent review under the totality

of the circumstances to elections of judges. In League of United Latin

American Citizens, Council No. 4434 v. Clements, 986 F.2d 728 (5th

Cir.1993), a panel of the court affirmed the district court’s conclusion

that the method of electing district court judges in eight Texas coun-

ties, but not in a ninth, violated section 2. The panel’s decision (with

respect to the eight Texas counties) was then reversed by the full

court sitting en banc in LULAC, 999 F.2d at 877. Chisom was ulti-

mately disposed of by a consent judgment. See Chisom v. Edwards,

976 F.2d 1408 (5th Cir.1992).

73a

them, the Voting Rights Act should apply to ensure that

the judiciary is equally accountable to all of the peo-

Hence, the Court concluded, vote dilution claims are

cognizable with respect to judicial elections.

The Court specifically left open the possibility, howev-

er, that a state’s judiciary could be excluded from the

coverage of section 2 if its judges were not intended to

have, and in reality did not have, this representative

character. The Court explained that:

[A state] could, of course, exclude its judiciary from

the coverage of the Voting Rights Act by changing to

a system in which judges are appointed, and in that

way, it could enable its judges to be indifferent to

popular opinion. The reasons why Louisiana has

chosen otherwise are precisely the reasons why it is

appropriate for § 2, as well as § 5, of the Voting

Rights Act to continue to apply to its judicial elec-

tions,

Id., at 401, 111 S. Ct. at 2367.99 Essentially, the Court

appears to suggest that it is equally wrong to Say that

section 2 covers all judicial selections as it is to say it

covers none. Coverage by the Voting Rights Act, then,

turns on the method by which the judges are selected.

Second, the Court indicated in Chisom and Houston

Lawyers’ Ass’n that the factors relevant in the totality of

the circumstances analysis under section 2 in the legisla-

tive context might not be relevant for judicial elections.

Emphasizing that “the Standard that should be applied in

litigation under §2 is not at issue here,” the Court

nevertheless predicted that “serious problems {may] lie

74a

ahead in applying the ‘totality of circumstances’ ” fac-

tors developed in section 2 cases involving legislative

elections to the election of judges. Chisom, 501 U.S. at

403, 111 S. Ct. at 2368. The difficulty mandating further

consideration of the application of vote dilution princi-

ples to judicial elections arises from the transformation

of a standard developed in the context of one type of

election—for representatives in multimember legislative

bodies—to a qualitatively different type of election—for

state court judges. The Court suggested the following as

one modification to the totality of the circumstances

inquiry: A state’s interest in maintaining the challenged

electoral system for its judges is a legitimate factor to be

considered when determining liability under section 2.

See Houston Lawyers’ Ass’n, 501 U.S. at 426-27, 111 S.

Ct. at 2381 (citing Zimmer v. McKeithen, 485 F.2d 1297,

1305 (5th Cir.1973) (en banc), aff'd sub nom. East Carroll

Parish Sch. Bd. v. Marshall, 424 U.S. 636, 96 S. Ct. 1083,

47 L. Ed. 2d 296 (1976)).7° Such a state interest should

also be considered when determining whether the

remedy the plaintiff seeks is a feasible alternative to the

challenged electoral system. 501 U.S. at 426-27, 111 S.

Ct. at 2380-81.

In the instant case, Florida appoints a large percentage

of its trial court judges through a merit selection proc-

ess—but requires judges to compete in nonpartisan reten-

tion elections. Thus, the first issue raised in Chisom and

Houston Lawyers’ Ass’n—whether a non-elected judici-

ary could escape the ambit of section 2—is not implicat-

ed. But the second issue—how the courts’ totality of the

circumstances analysis must be modified in order to

adapt to the judicial model—is before us. In turn, we

examine the Gingles threshold factors; the other totality

of the circumstances factors discussed in Gingles and the

7° Zimmer is a principle source of the totality of the circumstances

factors. See supra note 35.

76a

Senate Report; and, finally, the Supreme Court’s judicial-

ly-specific consideration—the State’s interest in maintain-

ing its judicial elections structure.

B.

The language of the Court’s opinion in Gingles suggests

that the principles enunciated therein are relevant to

claims of vote dilution generally, at least to some degree,

and, therefore, their application is not limited to the

multimember legislative context. The black voters’ in

Gingles claimed that the North Carolina legislature’s

decision to employ multimember, rather than single-

member, districts for selecting legislators in the contest-

ed North Carolina jurisdictions diluted minority votes by

submerging them in a white majority, thereby impairing

the plaintiffs’ ability to elect representatives of their

choice. See Gingles, 478 U.S. at 46, 106 S. Ct. at 2764.

Obviously, the nature of the offices sought—representa-

tive positions—shaped the Court’s analysis. Nevertheless,

the threshold test the Court developed and the accom-

panying discussion of the totality of the circumstances

were not dependent on the representative quality of the

offices sought. Rather, they depended on an analysis of

section 2, the legislative history behind the 1982

amendment, and the “theoretical basis” for vote dilu-

tion: namely, that “where minority and majority voters

consistently prefer different candidates, the majority, by

virtue of its numerical superiority, will regularly defeat

the choices of minority voters.” Jd. at 48, 106 S. Ct. at

2765.

The rationale of the Gingles decision demonstrates

that, if a plaintiff’s section 2 claim alleges vote dilution,

then the plaintiff must meet Gingles’ threshold criteria

regardless of the nature of the office at stake. As we

discuss above, Gingles held that plaintiffs in vote dilv-

tion cases brought under section 2 must initially establish

geographic compactness, minority cohesiveness, and

76a

white bloc voting as preconditions to stating a valid

claim. See id. at 50-51, 106 S. Ct. at 2766-67. Those three

factors are used to evaluate two critical points: (1) the

possibility of a remedy and (2) the existence of racially

polarized, legally significant racial bloc voting.

1.

The first Gingles precondition, informed by the second,

dictates that the issue of remedy is part of the plaintiff’s

prima facie case in section 2 vote dilution cases. As the

Supreme Court has explained, “the ‘geographically

compact [minority]’ and ‘minority political cohesion’

showings [in the Gingles threshold test] are needed to

establish that the minority has the potential to elect a

representative of its own choice from some single-

member district.” Growe v. Emison, U.S. , , 1135S.

Ct. 1075, 1084, 122 L. Ed. 2d 388 (1993) (citing Gingles,

478 U.S. at 50, n. 17, 106 S.Ct. at 2765, n. 17).7! The

inquiries into remedy and liability, therefore, cannot be

separated: A district court must determine as part of the

Gingles threshold inquiry whether it can fashion a

permissible remedy in the particular context of the

challenged system.

71 In Growe, the Court held that the district court had erred in

concluding that a Minnesota state court’s legislative redistricting plan,

produced as a result of litigation by Minnesota voters, violated section

2 of the Voting Rights Act. Choosing not to apply the Gingles precon-

ditions for a vote dilution violation claim because single-member (not

multi-member) districts were a tissue, the district court instead

proceeded directly to the “totality of circumstances” test in section

2(b) and found unlawful dilution. Growe, U.S. at , 113 S. Ct. at

1083. The Supreme Court unanimously reversed, in part, because “the

Gingles preconditions were not only ignored but were unattainable.

As the district court acknowledged, the record simply ‘contains no

statistical evidence’ of minority political cohesion ... or of majority

bloc voting in Minneapolis.“ Jd. at , 113 S. Ct. at 1085.

The Court in Growe explicitly extended the Gingles threshold re-

quirements to challenges to single-member district schemes. See id.

77a

Implicit in this first Gingles requirement is a limitation

on the ability of a federal court to abolish a particular

form of government and to use its imaginatien to fashion

a new system. Nothing in the Voting Rights Act suggests

an intent on the part of Congress to permit the federal

judiciary to force on the states a new model of govern-

ment; moreover, from a pragmatic standpoint, federal

courts simply lack legal standards for choosing among

alternatives. Accordingly, we read the first threshold

factor of Gingles to require that there must be a remedy

within the confines of the State’s judicial model that

does not undermine the administration of justice.

In Voinovich v. Quilter,72 U.S. , 113 S. Ct. 1149, 122

L. Ed. 2d 500 (1993), the Court Suggested that the first

Gingles threshold factor means more than the literal

ability (and need) to be able to draw single-member dis-

tricts in legislative vote dilution cases. Indeed, the Court

indicated that the particular showing required by that

threshold factor must be modified according to the type

of claim alleged. Gingles itself involved challenges to

multimember legislative districts. The Voinovich Court

noted:

at , 113 S. Ct. at 1084-85. The Court explained that, in general,

multimember districting plans pose a greater threat to minority partic-

ipation in the electoral process than do single-member districts.

Accordingly, “it would be peculiar to conclude that a vote-dilution

challenge to the (more dangerous) multimember district requires a

higher threshold showing than a vote-fragmentation challenge to a

single-member district.” Jd. at , 113 S. Ct. at 1084.

The Voinovich plaintiffs challenged the validity of an Ohio reap-

portionment plan, that allegedly deprived black voters of “influence

districts” in which they would have constituted a formidable and

influential minority. Voinovich, U.S. at , 113 S. Ct. at 1153. The

Court declined to decide whether such influence-dilution claims are

cognizable under section 2, id. at » 113 S. Ct. at 1155, but reversed

the judgment of the district court,in part, because the black voters

had “failed to demonstrate Gingles’ third precondition—sufficient

white majority bloc voting to frustrate the election of the minority

78a

[T]he Gingles factors cannot be applied mechanically

and without regard to the nature of the claim. For

example, the first Gingles precondition, the re-

quirement that the group be sufficiently large to

constitute a majority in a single district, would have

to be modified or eliminated when analyzing the

influence-dilution claim we assume arguendo to be

actionable today. The complaint in such a case is not

that black voters have been deprived of the ability

to constitute a majority, but of the possibility of

being a sufficiently large minority to elect their

candidate of choice with the assistance of cross-over

votes from the white majority.

Voinovich, U.S. at , 113 S. Ct. at 1157 (citation omit-

ted). In Gingles, the necessary showing was that the

minority group was sufficiently large and geographically

compact to constitute a majority in a single-member

district; such a showing was logical because the plaintiffs

were alleging vote dilution in a system of multimember

legislative districts. In judicial cases, however, single-

member districts may run counter to the state’s judicial

model. Thus, the question under the first Gingles thresh-

old factor may not be whether the minority group could

constitute a majority in a single-member district, but

whether, within the state’s judicial model, there exists

an alternative election scheme that could serve as an

appropriate section 2 remedy. Houston Lawyers’ Ass’n,

501 U.S. at 426, 111 S. Ct. 2380-81.

In Holder v. Hall, U.S. , 114 S. Ct. 2581, 129 L. Ed.

2d 687 (1994), there was general accord on an otherwise

divided Court that plaintiffs in vote dilution cases must

group’s candidate of choice,” id. at , 113 S. Ct. at 1158. The district

court had specifically found that Ohio did not suffer from racially

polarized voting.

minority voting strength in comparison to some alterna-

tive, feasible benchmark system: “In a § 2 vote dilution

suit, along with determining whether the Gingles pre-

conditions are met and whether the totality of the

circumstances supports a finding of liability, a court

must find a reasonable alternative practice as a bench-

mark against which to measure the existing voting prac-

tice.” 7° Id. at , 114 S. Ct. at 2585 (Kennedy, J.) (foot-

note omitted); see also id. at » 114 S. Ct. at 2589

(O’Connor, J., concurring) (noting “general agreement”

that “to determine whether voters possess the potential

to elect representatives of choice in the absence of the

challenged Structure, courts must choose an objectively

reasonable alternative practice as a benchmark for the

dilution comparison”); id. at , 114 S. Ct. at 2621-22

(Blackmun, J., dissenting) (detailing “widespread agree-

ment that minority voters’ potential ‘in the absence of’

the allegedly dilutive mechanism must be measured

against the benchmark of an alternative structure or

practice that is reasonable and workable under the facts

8 As Justice O’Connor explained in Gingles:

“The phrase [vote dilution] itself Suggests a norm with respect to

which the fact of dilution may be ascertained.” Mississippi

Republican Executive Comm. v. Brooks, 469 U.S. 1002, 1012, 105

S. Ct. 416, 422, 83 L. Rad. 2d 343 (1984) (Rehnquist, J., dissenting

from summary affirmance). Put simply, in order to decide wheth

elect the candidates they prefer, a court must have an idea in

mind of how hard it “should” be for minority voters to elect their

preferred candidates under an acceptable system.

80a

of the specific case” (citation omitted)). That alternative

plan, five justices held, cannot alter the size of the

governmental body. Furthermore, although not focusing

explicitly on the first Gingles threshold factor, three

justices in the majority based their decision on the fact

that there can never be an objective alternative bench-

mark for comparison where the size of the governmental

body is at issue, as was the case in Holder.™

In short, under Holder, federal courts may not man-

date as a section 2 remedy that a state or political subdi-

vision alter the size of its elected bodies. Implicit in this

holding, however, is a broader concern. Federal courts

may insist that a state or political subdivision operate a

governmental structure fairly, thereby allowing all

groups equal access to the political process. Courts may

require, for example, that black voters are not denied

the equal opportunity to elect representatives of their

choice for the state legislature. Federal courts may not,

however, alter the state’s form of government itself

when they cannot identify “a principled reason why one

74 See, e.g., Holder, U.S. at , 114 S. Ct. at 2588 (O’Connor, J.,

concurring) (describing agreement between herself and Justice

Kennedy, in whose opinion Chief Justice Rehnquist joined). Justice

Blackmun, writing for the four dissenters, concluded, on the other

hand, that “the proposed five-member Bleckley County Commission

presents a reasonable, workable benchmark against which to measure

the practice of electing a sole commissioner.” Jd. at , 114S. Ct. at

2622 (Blackmun, J., dissenting).

The other two Justices who comprised the majority, Justices

Thomas and Scalia, agreed that the size of a governing body cannot be

attacked under section 2. They focused not on the practical concerns

of locating a benchmark but instead on a novel reading of the statuto-

ry text; they would have held that the size of a governing body is not

a “standard, practice, or procedure” within the terms of the Voting

Rights Act. Jd. at , 114 S. Ct. at 2591. Justices Thomas and Scalia

would overrule all of the Court’s precedents holding that vote dilu-

tion claims are cognizable under section 2.

8la

[alternative to the model being challenged] should be

picked over another as a benchmark for comparison.” 7

Id. at ,114S. Ct. at 2586.

Holder also confirms that, from the inception of a

section 2 case, the existence of a workable remedy

within the confines of the state’s system of government

is critical to the success of a vote dilution claim. The

absence of an available remedy is not only relevant at

the remedial stage of the litigation, but also precludes,

under the totality of the circumstances inquiry, a finding

of liability. Gingles, 478 U.S. at 51, 106 S. Ct. at 2766. As

we note above, a court cannot determine whether the

voting strength of a minority group has been impermissi-

bly diluted without having some alternative electoral

structure in mind for comparison. Thus, “where there is

no objective and workable standard for choosing: a

reasonable benchmark by which to evaluate a challenged

76 Implicit in the Holder plurality’s conclusion may be the notion

that the Voting Rights Act, under our federal system, could not con-

stitutionally authorize federal courts to order the reconstitution of

State governmental institutions. It is important to note that “the

[Supreme] Court has recognized that the States’ power to define the

qualifications of their officeholders has force even as against the

proscriptions of the Fourteenth Amendment” and that “the Four-

teenth Amendment does not override all principles of federalism.”

Gregory v. Ashcroft, 501 U.S. 452, 469, 111 S. Ct. 2395, 2405, 115 L.

Ed. 2d 410 (1991) (upholding Missouri mandatory retirement law for

state court judges). Of course, the Civil War Amendments were specif-

ically designed as intrusions on state sovereignty; as a result, the

Gregory Court articulated a plain statement rule for determining

when Congress intends to enforce the Fourteenth Amendment guar-

antees in contravention of the traditional power of the states.

Justice Kennedy’s opinion in Holder relies, however, on a construc-

tion of the statute, not on constitutional federalism principles. The

questions of whether the remedy the appellants ultimately seek (the

possibilities of which we discuss infra part V) would be beyond the

reach of the Voting Rights Act or foreclosed by the Constitution are

not before us. Accordingly, we intimate no view concerning these

sensitive issues.

82a

voting practice, it follows that the voting practice cannot

be challenged as dilutive under § 2.” Holder, U.S.at ,

114 S. Ct. at 2586.

In the case at hand, the appellees contend that none of

the judicial election schemes the appellants propose as a

remedy for the alleged abridgement of their right to vote

constitutes a feasible solution. Specifically, the appellees

submit that each of the alternatives proposed would

undermine the administration of justice in the trial

courts at issue. We address this argument infra part V.

2.

As noted, proof of the second and third Gingles pre-

conditions, that the white majority votes sufficiently as a

bloc to prevent

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