Fairley v. HATTIESBURG, MISS.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 29, 2009
No. 08-60942
Charles R. Fulbruge III
Clerk

REVEREND KENNETH E. FAIRLEY, SR.; LAJUANA RICHARDSON;
REVEREND KIMBLE ALLEN; REVEREND CARLOS WILSON;
FRED BURNS; WILLIE FOSTER; REVEREND ROBERT TATE;
FRANKIE BENTON, JR.; CLARENCE MAGEE;
REVEREND RAY ALLEN BOLTON,

Plaintiffs-Appellants,

versus

HATTIESBURG, MISSISSIPPI;
HATTIESBURG, MISSISSIPPI, DEMOCRATIC EXECUTIVE COMMITTEE;
HATTIESBURG, MISSISSIPPI, REPUBLICAN EXECUTIVE COMMITTEE;
HATTIESBURG, MISSISSIPPI, ELECTION COMMISSION,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:06-CV-167

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

The plaintiffs, residents of the City of Hattiesburg, Mississippi (the “City”),
appeal the denial of their claims under § 2 of the Voting Rights Act of 1965
(“VRA”). We affirm.
 No. 08-60942

I.
A.
This concerns the drawing of districts for municipal elections in the City,
and the relevant facts of City government, demographics, and political history
are easily summarized. The City employs a mayor-council form of government.
See M ISS. C ODE A NN. § 21-8-1. The mayor is elected at-large. The City Council
has five members, each of whom is elected from one of the City’s five single-
member wards. The wards are demarcated according to Mississippi law, which
requires the City to place an equal number of citizens in each ward. See M ISS.
C ODE A NN. § 21-8-7.
The 2000 Census indicated a City population of 44,779, of whom 49.9%
were white and 47.3% black. The Census also reported a voting-age population
of 35,141, of whom 56.5% were white and 40.9% black. In 2001 the City held a
general election. Johnny DuPree was elected the City’s first black mayor,
receiving 53% of the vote and unseating the white incumbent, who received 46%.
Three white City Council members were elected, from Wards 1, 3 and 4; two
black members were elected, from Wards 2 and 5.
In 2003, the City annexed land, raising the population to 45,446, of whom
50.4% were white and 46.9% black. After the annexation, 56.9% of the voting-
age population was white and 40.5% black.1 Based on the population following
the 2003 annexation, the ideal population for each ward was 9,089. Id. The pop-
ulations under the City’s current districting plan, implemented after pre-clear-
ance in 2004 (the “2004 redistricting plan”), deviate from that ideal by 4.8%.
The black population now resides mostly in Wards 2 and 5, which have
black voting-age populations of 76.2% and 73.1%, respectively. The white popu-
lation lives mostly in Wards 1, 3, and 4, where there are white voting-age popu-

1
But, 52% of registered voters in 2005 were black and 48% white.

2
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lations of 62.9%, 84.9%, and 77.4% respectively. In 2005 the City held another
general election. DuPree, the black mayor, was re-elected with 60.9% of the
vote, defeating a white challenger with 39.1%. All the incumbent City Council
members were re-elected.
Ward 1, one of the City’s majority-white wards, is the site of the University
of Southern Mississippi (“USM”). Ward 5, which is majority-black, is home to
William Carey College (“WCU”). According to the district court and the 2000
Census, almost 3,500 students live in dormitories in the City. Most of those are
white, and the vast majority—approximately 3,000 students—live in the USM
dormitories in Ward 1.
There are over 5,000 USM students in Ward 1, comprising about 60% of
the ward’s population. At least 570 students residing in the USM dormitories
are registered to vote in the City. The district court, however, found that it was
impossible, on the evidence presented, to determine the total number of college
students registered to vote in the City or the total number of college students
qualifying as City residents.

B.
In 2006, the plaintiffs sued to challenge the 2004 redistricting plan. In
particular, they objected to the plan’s assignment of USM students to Ward 1
and alleged that the plan unnecessarily packed black voters into Wards 2 and 5.
Those two elements of the 2004 redistricting plan, the plaintiffs claimed, left the
City’s black voters unable to control Ward 1 and elect a third black City Council
member. Plaintiffs alleged that, as a result, under the totality of the circum-
stances, the plan deprived black voters of the equal opportunity to participate
in the political process and to elect representatives of their choice, thus violating
§ 2 of the VRA. The plaintiffs also asserted that the plan violates the “one per-
son, one vote” principle of the Equal Protection Clause of the Fourteenth Amend-

3
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ment.
The district court issued judgment for the City. Plaintiffs appeal.

II.
Section 2 of the VRA forbids state and local voting procedures that “re-
sult[] in a denial or abridgement of the right of any citizen of the United States
to vote on account of race[.]” 42 U.S.C. § 1973(a). A § 2 violation is shown if,
“based on the totality of circumstances,” members of a racial group “have less op-
portunity than other members of the electorate to participate in the political pro-
cess and to elect representatives of their choice.” Id. § 1973(b). To establish a
§ 2 violation on a vote-dilution theory, courts apply the two-part framework in
Thornburg v. Gingles, 478 U.S. 30 (1986).
First, plaintiffs must satisfy, as a threshold matter, three precondi-
tions. Specifically, the minority group must demonstrate that: (1) it
is sufficiently large and geographically compact to constitute a ma-
jority in a[n additional] single-member district; (2) it is politically co-
hesive; and (3) the white majority votes sufficiently as a bloc to en-
able it—in the absence of special circumstances—usually to defeat
the minority’s preferred candidates. Failure to establish all three
of these elements defeats a [§ 2] claim. Second, if the preconditions
are proved, plaintiffs must then prove that based on the totality of
the circumstances, they have less opportunity than other members
of the electorate to participate in the political process and to elect
representatives of their choice.
Sensley v. Albritton, 385 F.3d 591, 595 (5th Cir. 2004) (alterations, citations, and
quotation marks omitted).
This court reviews de novo the legal standards the district court ap-
plied to determine whether [§ 2] has been violated. However, be-
cause [§ 2] vote dilution disputes are determinations peculiarly de-
pendent upon the facts of each case that require an intensely local
appraisal of the design and impact of the contested electoral me-
chanisms, we review the district court’s findings on the Gingles
threshold requirements and its ultimate findings on vote dilution for
clear error.

4
 No. 08-60942

Id. (citations and quotation marks omitted).
The district court found that the plaintiffs had not proven the first of the
three Gingles preconditions and so had not made out a prima facie case for viola-
tion of the VRA.2 In the alternative, the court found that the plaintiffs had failed
to prove deprivation of equal opportunity under the totality of the circumstances.
The plaintiffs take issue with both findings.

A.
To prove the first Gingles precondition, the plaintiffs were required to
show “the possibility of creating more than the existing number of reasonably
compact districts with a sufficiently large minority population to elect candidates
of its choice.” Johnson v. DeGrandy, 512 U.S. 997, 1008 (1994). Such districts
are called “majority-minority” districts.3
The plaintiffs speak of three redistricting plans they placed before the
district court, each capable of creating a black majority in Ward 1: (1) the exclu-
sion of dormitory college students from the City’s population base for districting
purposes, (2) the equal division of USM dormitory students among all five wards
instead of placing all of them in Ward 1, and (3) redrawing the City’s wards to
create a third majority-minority district without excluding the students.4 The

2
The district court found that the plaintiffs had proven the second and third Gingles
preconditions.
3
To the extent that the plaintiffs argue for creation of a “swing” or “equal opportunity”
ward in which the black population would form a larger minority and make black candidates
more competitive than they are now, the argument is foreclosed by Bartlett v. Strickland, 129
S. Ct. 1231, 1246 (2009) (plurality), which held that “a party asserting § 2 liability must show
by a preponderance of the evidence that the minority population in the potential election dis-
trict is greater than 50 percent,” at least where intentional discrimination is not at issue.
Thus, the VRA does not permit this court to mandate creation of swing wards, but only majori-
ty-minority ones.
4
The plaintiffs do not fully explain the difference between the second and third plans.
(continued...)

5
 No. 08-60942

district court expressly rejected the first, which was the one the plaintiffs pre-
sented in an illustrative redistricting plan, but did not mention the other two.
The plaintiffs, in their sole briefed argument countering the district court’s Gin-
gles preconditions findings, take issue with that omission.
The district court in a VRA case is required to discuss all substantial evi-
dence contrary to its opinion. “[F]ailure to take note of substantial contrary evi-
dence presented by” the losing party justifies “remand[ing] the case for further
findings,” Velasquez v. City of Abilene, 725 F.2d 1017, 1020-21 (5th Cir. 1984),
because without discussion of such evidence “there is no way for this court to tell
whether the court’s [findings of fact are] clearly erroneous,” id. at 1023.5 The
question, then, is whether the evidence the plaintiffs want treated as redistrict-
ing plans constitutes substantial evidence that the court was bound to consider.
The district court’s obligation to discuss the evidence before it, we note at
the outset, was not unbounded. The court was certainly never required to dis-
cuss the entirety of the evidence presented or even the entirety of the plaintiffs’
own evidence,6 nor could the mere presence in the record of other evidence sup-
porting the plaintiffs have been enough to trigger the court’s obligation to dis-
cuss contrary evidence. “We will not consider arguments . . . that [were] not pre-

4
(...continued)
Unless USM students living in Ward 1 dormitories were to be arbitrarily and counterfactually
treated as residents of wards where they do not live (and there is some record evidence to sug-
gest that is what the plaintiffs have in mind, R. 606), we see no way to divide those students
among the five wards except by drawing ward lines through the campus. Nonetheless, we fol-
low the plaintiffs’ structure, noting that the vagueness of the two latter plans invites skepti-
cism.
5
The district court is also required to explain its reasoning in VRA cases in a way suit-
able for review, and if it does not, this court will remand for it to do so. Westwego Citizens for
Better Government v. City of Westwego (“Westwego”), 872 F.2d 1201, 1203-04 (5th Cir. 1989).
Though the plaintiffs invoke Westwego, the district court’s factual findings and legal analysis
are thorough and detailed and so meet that standard easily.
6
LULAC v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997) (citing Rollins
v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1221 (5th Cir. 1996)).

6
 No. 08-60942

sented to the district court.” 7
That general principle applies with full force to VRA claims; in fact, the
need for a developed district court record is especially acute in VRA cases. West-
wego, 872 F.2d at 1203 (citing Velasquez, 725 F.2d at 1021). Without sufficiently
detailed evidence, a court is flatly unable to evaluate whether a possible redis-
tricting scheme would establish legally adequate districts consistent with tradi-
tional districting principles such as compactness, contiguity, maintaining com-
munities of interest, and respect for incumbency. Sensley, 385 F.3d at 597-98;
Prejean v. Foster, 227 F.3d 504, 512 & n.12 (5th Cir. 2000). Requiring the dis-
trict court to fish through the record for evidence that might conceivably support
redistricting approaches that were never urged by the plaintiffs or presented as
developed plans would be downright perverse.
For that reason, to establish the first Gingles precondition, plaintiffs ty-
pically have been required to propose hypothetical redistricting schemes and
present them to the district court in the form of illustrative plans.8 After all, the
plaintiffs bear the burden of proof in a VRA case, and any lack of record evidence
on VRA violations is attributed to them, not the district court. Roscoe, 123 F.3d
at 846.
In short, it was solely the plaintiffs’ responsibility to develop theories sup-
porting their VRA claims and to provide the district court with the evidentiary

7
See Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir.) (“[W]e require a par-
ty to do more than just raise an argument; the contention must be pressed so that the district
court has had an opportunity to rule on it.”), cert. denied, 129 S. Ct. 201 (2008); see also Tel-
Phonic Servs. Inc. v. TBS Int’l Inc., 975 F.2d 1134, 1137 (5th Cir. 1992) (“A party will not be
heard to appeal the propriety of an order to which it agreed.”). Thus, if the district court did
not discuss contrary evidence to which the plaintiffs did not draw the court’s attention, objec-
tions based on the court’s Velasquez duty may be waived.
8
See Magnolia Bar Ass’n, Inc. v. Lee, 994 F.2d 1143, 1151 n.6 (5th Cir. 1993) (observing
that the first Gingles precondition “specifically contemplates the creation of hypothetical dis-
tricts”).

7
 No. 08-60942

basis for evaluating them. If VRA plaintiffs want the district court to consider
plans for creation of additional majority-minority districts, or to rely on appeal
on the district court’s obligation to consider evidence supporting those plans,
they must press them by developing arguments and evidence in support.9 Un-
less the plaintiffs raised the two alternative approaches and supported them
with evidence bearing on their legal adequacy, the district court was under no
obligation to consider them or to go through the meaningless formality of recit-
ing their insufficiency.
In finding that the plaintiffs had not established the first Gingles precon-
dition, the district court examined the sole proposed redistricting plan that the
plaintiffs brought as evidence. The plaintiffs’ expert as to that precondition,
William Cooper, testified that he had been hired to determine “whether it would
be possible . . . [to create] a black majority district . . . after removing the dorm
students at” USM and WCU. R. 480.10 That was the question he studied and
the only one he testified to on direct examination. Though Cooper, in his re-
sponse to the plaintiffs’ last question on direct examination, suggested that there
might be “other possibilities” for redistricting that would create a third majority
black ward, the plaintiffs did not follow up on that suggestion and, instead, im-
mediately tendered Cooper for cross-examination. R. 520-21. Cooper then con-
ceded on cross-examination that he “didn’t do an illustrative plan with the stu-
dents” included and that he “would have to do another illustrative plan” to testi-
fy about such an approach to redistricting. R. 621.
Nor did plaintiffs’ other witnesses indicate any alternative redistricting

9
At the same time, VRA plaintiffs are entitled to make strategic decisions about which
redistricting theories to press in court and which to omit.
10
Cooper granted on direct examination that some City residents—at a minimum, those
living in dormitories but not registered to vote—would be excluded in the process. R. 494. The
district court noted and relied on that flaw.

8
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plan. To the contrary, another of their witnesses, Deborah Delgado, testified
that she thought it was “unfair” that inclusion of the USM students increased
the City’s white voting age population. R. 354. Even the plaintiffs believed at
trial that they were presenting only the student exclusion plan and no other:
Plaintiffs’ counsel, in fact, referred to that plan as though it were the only one
being propounded, stating to the court that “the existing plan is already in evi-
dence” and that Cooper “ha[d] already covered it.” R. 653. Plaintiffs never pre-
sented the other two plans; they certainly did not “press” them. See Benefit Re-
covery, 521 F.3d at 329.
The plaintiffs base their supposed alternative plans primarily on colloquies
during Cooper’s cross-examination. Cooper volunteered his suggestion that the
dormitory students could be split among the five wards; the City did not elicit it,
R. 545, and the plaintiffs never returned to it on cross-examination, R. 625.
Cooper presented no evidentiary support for it; certainly neither he nor any oth-
er witness testified that it should actually be adopted.
Moreover, it is obviously questionable whether splitting members of geo-
graphically contiguous communities in interest, i.e., the colleges, into separate
constituencies would have been legally satisfactory. Courts are expected, in
evaluating redistricting plans, to take into account “traditional districting prin-
ciples such as maintaining communities of interest and traditional boundaries,”
Sensley, 385 F.3d at 596 (quoting Abrams v. Johnson, 521 U.S. 74, 92 (1997)),
but the plaintiffs never presented a map, for example, showing what such dis-
tricts would look like, leaving the district court unable to determine whether
those requirements would be met, id. (explaining that “the shape of a [proposed
majority-minority] district certainly cannot be disregarded in a compactness in-
quiry”). Any plan that split USM into multiple wards, furthermore, would be
highly suspect on its face. Id. at 598.
The plaintiffs have brought no legal argument, either here or in the

9
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district court, that justifies assigning dormitory students, for districting pur-
poses, to wards in which they do not actually live.11 Cooper also conceded that,
depending on how many of the college students are City residents, dividing the
students up might have led to impermissible variations between the ward voting
populations; Cooper acknowledges that he did not have the data necessary to
predict whether it would. R. 585-88, 605-09.
The plaintiffs, then, failed to present evidence constituting a redistricting
plan that would have shown either the factual or legal possibility of creating a
third majority-minority district by dividing the dormitory students among the
wards. In no case have we remanded for consideration of evidence the plaintiffs
themselves did not present, and we doubt that the district court’s failure to
consider evidence that appeared only on cross-examination of the losing party’s
witnesses could support remand under Velasquez. In the absence of an illustra-
tive plan or testimony, the district court was not presented with substantial evi-
dence it was obligated to discuss.12
As for the third “plan”—drawing three majority black districts without
making any special arrangements for the students—the same observations and
conclusions hold. In the sections of the trial record the plaintiffs cite as support,
Cooper testified (again, for the first time on cross examination) that “maintain-

11
As Cooper testified on cross-examination,

[Y]ou can improve the plan in terms of the voting power of voters in Ward 1 be-
cause you’re still going to get a turnout of several hundred registered voters who
live in the dorms in Ward 1 who have actually been apportioned to other wards
in a sense. But it would—it would make the plan much more fair from that
standpoint.

R. 606 (emphasis added).
12
For similar reasons, we attach little evidentiary significance to plaintiffs’ counsel’s
cross-examining the City’s expert about the physical and geographical possibility of redrawing
the ward boundaries to include different portions of the USM campus. R. 778-80.

10
 No. 08-60942

[ing] a third majority black ward” by that approach would be possible only if the
black voting age population percentages in Wards 2 and 5SSthe two majority-
minority wardsSSwere drawn down “to at least the high fifties,” in which case
they would be “more competitive” between black and white candidates and
“could well elect a white candidate.” R. 610-12. Cooper expressed doubt about
whether Wards 2 or 5 would even count as majority-minority districts under
such a plan;13 he did not urge the court to adopt that approach. R. 612. The
third plan was therefore not before the district court sufficiently for the court to
evaluate it.
In short, the only plan the plaintiffs developed in the district court was the
one involving exclusion of dormitory students, including an unknown number of
City residents, from the City’s population for redistricting decisions. The two al-
ternative plans the plaintiffs press on appeal were never asserted in the district
court. Without any possibility of performing the legally-required evaluation, the
court could hardly have concluded, as the first Gingles precondition requires,
that a third majority-minority district would have been feasible if the students
were included.14 We therefore reject the plaintiffs’ claim that the district court
was obligated to consider any approach to redistricting but the one they actually
presented in their illustrative plan.

13
That reticence is understandable, given that the ability of the cohesive black popula-
tions in the resulting districts to “elect candidates of [their] choice” would have been very un-
certain. The plaintiffs may not even have wanted to present a plan that would create a third
majority-minority ward at the expense of voting strength in the present ones.
14
In Gingles, 478 U.S. at 50 n.17, the Court provided that it is sufficient that a plaintiff
show that a workable plan for another minority-controlled voting district is possible; the plain-
tiff’s plan need not be an ultimate solution. Houston v. Lafayette County, 56 F.3d 606, 611 (5th
Cir. 1995). There is a world of difference, though, between well-developed, legally-adequate
plans that can be adjusted during implementation and vague implications of hypothetical ap-
proaches to redistricting that might be inferred from the record on appeal by losing plaintiffs.
Leaving details to the political process is one thing; leaving initial development of the plan to
the district court is quite another.

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 No. 08-60942

There is no error in the district court’s rejection of the plaintiffs’ plan in-
volving student exclusion. Section 2 of the VRA “is not concerned with maximiz-
ing minority voting strength[.]” Strickland, 129 S. Ct. at 1248; see also DeGran-
dy, 512 U.S. at 1017. The plaintiffs’ theory, in their illustrative plan, seems to
have been that removing the dormitory students, whether legal residents or not,
from districting calculations would reduce the ideal number of officially-counted
residents per district. Because the excluded students are mostly white, that
would have made it easier to create a third majority black ward.
In other words, the plaintiffs wished the district court to order the City to
redistrict based on fictional population data, namely the pretense that a number
of City residents were not there. Although resident students would still have
been actually present, and therefore able to vote, the plaintiffs evidently as-
sumed that lower voter turnout among the students, R. 354, 365-66, would have
protected the electoral power of the inflated black majorities. Nothing in Coop-
er’s testimony or report suggests how to avoid excluding resident students.
Though “aliens, transients, short-term or temporary residents, or persons
denied the vote for conviction of crime” may be excluded for voter apportionment
purposes, Burns v. Richardson, 384 U.S. 73, 92 (1966); see also Boddie v. City of
Cleveland, 297 F. Supp.2d 901, 905-06 (N.D. Miss. 2004), bona fide City resi-
dents certainly may not be.15 No authority supports or permits the solution the
plaintiffs proposed. Because they did not explain how the unconstitutional ex-
clusion of residents in the course of implementing their desired redistricting plan

15
See, e.g., Reynolds v. Sims, 377 U.S. 533, 576 (1964) (discussing “[t]he right of a citi-
zen to equal representation and to have his vote weighted equally with those of all other citi-
zens”). In Fairley v. Patterson, 493 F.2d 598, 602 (5th Cir. 1974), an earlier VRA case concern-
ing the City, this court examined a redistricting plan that would have excluded all USM and
WCU students living in dormitories or fraternity houses. The court never reached the merits
of the plan, however, deciding the case instead on standing. Id. at 603-04.

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could be avoided,16 the district court was correct in rejecting it.

B.
In the alternative, the district court concluded that even if the three Gin-
gles preconditions were met, the plaintiffs still had not satisfied the totality-of-
circumstances test. Plaintiffs argue that that was error. Having affirmed the
district court’s conclusion with respect to the first Gingles precondition, we need
not reach the totality analysis at all. Nonetheless, for the sake of completeness,
we consider and reject the plaintiffs’ objections.
The Supreme Court has pointed to a number of factors derived from the
VRA’s legislative history as essential for weighing the totality of circumstances:
[1] the history of voting-related discrimination in the State or politi-
cal subdivision;

[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 subdivision has used
voting practices or procedures that tend to enhance the opportunity
for discrimination against the minority group[;]

[4] the extent to which minority group members bear the effects of
past discrimination in areas such as education, employment, and
health, which hinder their ability to participate effectively in the po-
litical process;

[5] the use of overt or subtle racial appeals in political campaigns;

[6] the extent to which members of the minority group have been
elected to public office in the jurisdiction[;]

16
In their reply brief, plaintiffs note that they “could have undertaken a study” to deter-
mine which dormitory students were legal residents. That makes no difference; it was their
burden actually to do so, and they bear the consequences of their failure to present evidence
on the subject. Roscoe, 123 F.3d at 846. (We doubt, however, that the result would have
changed.)

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[7] evidence demonstrating that elected officials are unresponsive
to the particularized needs of the members of the minority group[;]

[8] [evidence] that the policy underlying the State’s or the political
subdivision’s use of the contested practice or structure is tenuous[;]

[9] whether the number of districts in which the minority group
forms an effective majority is roughly proportional to its share of the
population in the relevant area[.]

LULAC v. Perry, 548 U.S. 399, 426 (2006) (citing Gingles, 478 U.S. at 44-45;
DeGrandy, 512 U.S. at 1000).
The district court applied and interpreted these factors correctly as a mat-
ter of law—certainly the plaintiffs have not directed our attention to any legal
errors—and so we review the district court’s determinations for clear error only.
A clearly erroneous finding is one that leaves “the reviewing court on the entire
evidence . . . with the definite and firm conviction that a mistake has been com-
mitted.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
If the district court’s account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not re-
verse it even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently. Where there
are two permissible views of the evidence, the factfinder’s choice be-
tween them cannot be clearly erroneous.
Id. at 573-74.
The district court relied on several pieces of evidence in reaching its con-
clusion: (1) “[O]fficial discrimination” in the political process “ceased long ago”;
(2) “there is no indication that [the poverty of black City residents] hinders their
ability to participate effectively in the political process”; (3) election turnout
among black voters in the City is higher than among white voters; (4) there was
insufficient evidence to establish “unresponsiveness” of the City to the needs of
black residents; and (5) blacks are well-represented in City government, roughly

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in proportion to their population. Aggregated, these facts weigh directly against
the plaintiffs on the first, third, fourth, sixth, seventh, and ninth of the totality-
of-the-circumstances factors. The only factor found by the district court weigh-
ing in favor of the plaintiffs was the second, namely, the existence of polarized
voting, a finding that neither side disagrees with.
Plaintiffs challenge the adequacy of the district court’s review on two bas-
es.17 They argue first that the City’s reliance on Census data for purposes of dis-
tricting was improper, but they bring only generalized suspicions about the Cen-
sus’s accuracy instead of specific evidence. The Census is presumptively correct
and typically must be rebutted with clear and convincing evidence. NAACP v.
Fordice, 252 F.3d 361, 366 (5th Cir. 2001). If generalized suspicions such as the
plaintiffs’ were sufficient to cast doubt on the district court’s findings, then
courts could hardly ever rely on the Census. In the absence of data contradicting
the Census, district courts have no reasonable alternative but to rely on it, and
we see no reason to question the court’s reliance in this case.
The plaintiffs also claim that the district court committed legal error with
respect to the last factor in considering the proportionality of representation to
voting age population (where the City’s white population has a majority), rather
than to the registered voter population (which favors the City’s black residents).
That argument is unsupported by the law. Voter registration figures are, at
most, a factor within the district court’s case-by-case discretion to consider in the
Gingles totality analysis, and the plaintiffs give no legal argument indicating
that the court abused its discretion here. No authority requires the district court

17
The plaintiffs also mention pieces of evidence the district court allegedly failed to an-
alyze sufficiently. Plaintiffs do not explain most of that evidence or show how it bears on the
totality analysis. We decline to consider those evidentiary arguments, partly because we may
not re-weigh the evidence as the plaintiffs ask, partly because they are waived for failure to
brief, United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992), and partly because we do
not consider the evidence to be substantial under Velasquez.

15
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to give voter registration figures special attention. See DeGrandy, 512 U.S. at
1017 n.14 (declining to decide which population figure is the best reference point
for proportionality). In the end, “substantial proportionality” is what matters in
the totality-of-circumstances analysis. Id. at 1015-16.
Registration figures should be treated with skepticism: Because voter reg-
istration responds to incentives, including the results of the political process,
registration figures are inherently unstable. As a result, if registration percen-
tages were the predicate for a redistricting, the percentages might actually
change in response to the redistricting, potentially leading to further § 2 claims.
Moreover, because “[u]se of a registered voter or actual voter basis [for appor-
tionment] depends not only upon criteria such as govern state citizenship, but
also upon the extent of political activity of those eligible to register and vote,”
those figures are “susceptible to improper influences” exerted by entrenched po-
litical powers. Richardson, 384 U.S. at 92.
This court in Marshall v. Edwards, 582 F.2d 927, 937 (5th Cir. 1978),
followed the Richardson Court in urging against judicial reliance on voter regis-
tration data for similar reasons, stating that “reapportionment based on voter
registration is allowable only if it produces a distribution of legislators not sub-
stantially different from that which would have resulted from the use of a per-
missible population basis.” Id. (quoting Richardson, 384 U.S. at 93) (quotation
marks omitted). Reliance on the more solid grounds of population figures there-
fore makes good sense in most cases, and the district court did not clearly err in
its use of total voting age population.

III.
We affirm also the district court’s rejection of the plaintiffs’ claim that the
2004 redistricting plan violates the one person, one vote principle of the Equal
Protection Clause of the Fourteenth Amendment. That clause guarantees the

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opportunity for equal participation by all voters in local government elections.
See generally Avery v. Midland County, 390 U.S. 474 (1968). Ideally, municipal
apportionment schemes should distribute population equally across all voting
districts or wards, but limited variances in population numbers per ward are
permitted as long as they are unavoidable despite a municipality’s best efforts
to achieve exact numerical equality. Sims, 377 U.S. at 578-79. Some deviation
may be permissible when it is in service of constitutionally permissible goals
such as “maintain[ing] the integrity of various political subdivisions” and “pro-
vid[ing] for compact districts of contiguous territory.” Id.
If a population deviance exceeds 10%, it constitutes a prima facie case of
invidious discrimination that requires the municipality to prove a legitimate rea-
son for the discrepancy. See Brown v. Thomson, 462 U.S. 835, 842-43 (1983). If
a population deviance is less than 10%, it is considered minor and does not suf-
fice, alone, to make out a prima facie case of discrimination. Although deviation
below that threshold does not provide a safe harbor, a plaintiff in such a case
“must prove that the redistricting process was tainted by arbitrariness or dis-
crimination.” Moore v. Itawamba County, 431 F.3d 257, 259 (5th Cir. 2005) (per
curiam).
The City’s current districting plan, in which the dormitory students are
included in Ward 1, has a deviation of 4.8%. The district court held that because
the inclusion of the dormitory students in the apportionment base was permissi-
ble, the plaintiffs had failed to make out a prima facie case, and because they
had presented no evidence of arbitrariness or discrimination, their claim failed
as a matter of law. Once again, we review conclusions of law de novo and find-
ings of fact for clear error. Teague v. Attala County, 17 F.3d 796, 796-97 (5th Cir.
1994) (per curiam).
The plaintiffs do not take issue with the district court’s calculation of popu-
lation deviations, nor do they point to any record evidence of arbitrariness or dis-

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crimination in redistricting. Instead, they merely repeat their argument that
the City’s districting should have been based on voter registration figures rather
than the voting age population. Even if that were true—and once more we doubt
it—that is not the evidence of arbitrariness or discrimination that they were re-
quired to bring. The plaintiffs needed to show some lack of honesty or good faith
or the presence of discriminatory purpose in the City’s decision to draw its dis-
tricts as it did, Moore, 431 F.3d at 259, but have not done so. The district court’s
one person, one vote holding therefore stands.
In summary, the district court’s treatment of the plaintiffs’ claims is legal-
ly adequate, and there is no clear error. Its denial of those claims is therefore
AFFIRMED.

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DENNIS, Circuit Judge, concurring in part and dissenting in part.
I CONCUR in the majority opinion’s treatment of the one person, one vote
claim in this case. However, because I believe that the district court did not
make sufficiently detailed findings of fact in support of its grant of summary
judgment to the City of Hattiesburg on the first Gingles factor to enable us to
conduct a thorough analysis under the Voting Rights Act, 42 U.S.C. § 1973(a),
and because I disagree with some of the statements made by the majority in its
unnecessary discussion of the totality of the circumstances test, I respectfully
DISSENT from its holding on the Voting Rights Act claim. I address these two
separate concerns in turn.
I. Gingles
As the majority opinion correctly notes, the first Gingles factor requires a
VRA plaintiff to prove that the minority group in question “is sufficiently large
and geographically compact to constitute a majority in a single-member district.”
Clark v. Calhoun County, 21 F.3d 92, 94 (5th Cir. 1994) (citing Thornburg v.
Gingles, 478 U.S. 30, 48-51 (1986)). The majority opinion, however, states that
“plaintiffs typically have been required to propose hypothetical redistricting
schemes and present them to the district court in the form of illustrative plans,”
and cites to a footnote in Magnolia Bar Ass’n Inc v. Lee, 994 F.2d 1143, 1151 n.6
(5th Cir. 1993) for this claim. The footnote in question notes that the first
Gingles precondition “specifically contemplates the creation of hypothetical
districts,” but does not discuss any requirement of illustrative plans. Although
illustrative plans may be a common approach taken by plaintiffs in Voting
Rights Act cases – and are certainly a helpful method of providing evidence to
be considered under the first Gingles factor - I do not read our case law to require
such an approach.
In any event, however, the plaintiffs in this case presented an illustrative
redistricting plan that likely showed that the African-American population in

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Hattiesburg is “sufficiently large and geographically compact to constitute a
majority in a single-member district,” Clark, 21 F.3d at 94. It is impossible for
this court to be certain, however, because the district court did not make
sufficiently detailed fact-findings to enable us to conduct a proper review.
The majority opinion bases its holding on the first Gingles factor primarily
on the fact that the plaintiffs did not present any method by which they proposed
to ascertain which students living in the dormitories were in fact residents
entitled to vote; according to the majority, since the exclusion of such students
in a blanket dormitory-student exclusion would be illegal, the plan therefore
failed. Maj. op. at 10. The majority acknowledges that our case law holds that a
proposed redistricting plan need not be presented in court in a form that would
be ready to be implemented immediately: “A plaintiff’s proposed district is not
cast in stone. It [is] simply presented to demonstrate that a majority-black
district is feasible [in a given municipality]. If a § 2 violation is found, the
[municipality] will be given the first opportunity to develop a remedial plan.”
Clark, 21 F.3d at 95 (citing Westwego Citizens for Better Gov’t v. City of Westwego
(Westwego III), 946 F.2d 1109, 1124 (5th Cir. 1991)). According to the majority,
however, the failure to identify a method of ascertaining which students are
entitled to vote is fatal to the plan. This narrow approach is at odds not only
with the language of Clark and Westwego III, but also with the evidence
presented. There was testimony at trial that at least 570 of the dormitory
students were registered to vote. Clearly, there is in fact some way of discovering
how many dormitory students are registered to vote or entitled to register to
vote, and the parties have done so to some extent already. The district court’s
conclusory finding that there is “no reliable way” of discovering this number
provides no details or analysis for this court to review.
Our case law is clear that Voting Rights Act cases require a heightened
level of detail in district court factual findings: “We have stressed repeatedly the

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special need for detailed findings of fact in vote dilution cases: . . . ‘Perhaps in no
other area of the law is as much specificity in reasoning and fact finding
required, as shown by our frequent remands of voting dilution cases to district
courts.’” Westwego Citizens for Better Gov’t v. City of Westwego (Westwego II), 872
F.2d 1201, 1203 (5th Cir. 1989) (quoting Velasquez v. City of Abilene, 725 F.2d
1017, 1020 (5th Cir. 1984)); see also Teague v. Attala County, 17 F.3d 796, 798
(5th Cir. 1994) (“This court is unable to discharge our appellate function in
voting rights cases without more guidance by the trial court concerning its
credibility choices on the welter of evidence before it.”). The district court’s lack
of factual findings may be traced to a mistaken understanding of the law not
addressed by the majority opinion: namely, the district court appeared to assume
that the plaintiffs would have had to prove that the City was already legally
required to take the action proposed by their illustrative plan in order to prevail.
No law supports such an assumption.1
This erroneous assumption by the district court (unsurprisingly provided
with no citations to case law, since there is none that supports it) prevented it
from making any additional factual findings as to the details of the plaintiffs’
illustrative redistricting plan beyond the conclusory statement discussed above.
I would therefore not affirm the district court’s judgment in this respect, but

1
The majority opinion compounds this error to some extent when it finds that “no
authority” supports the exclusion of the dormitory students in the plaintiffs’ illustrative
redistricting plan. Maj. op. at 12. The majority opinion seems to be characterizing the
plaintiffs’ plan as being a plan to exclude dormitory students whether legal residents or not
– and certainly no authority supports excluding legal residents from the apportionment base.
But the point is that the district court made insufficient factual findings for us to determine
whether or not the illustrative plan could in fact be implemented, bearing in mind that the
plan need not be in implementation-ready form when presented at trial. Insofar as the
majority opinion is referring to the exclusion of dormitory students from an apportionment
base generally, at least one district court in this circuit has implemented a similar approach
in a VRA case, over a city’s objections. See Boddie v. Cleveland, Mississippi, 297 F.Supp. 2d
901 (N.D. Miss. 2004).

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would vacate and remand the case to that court for further fact-finding as to the
feasibility of the plaintiffs’ illustrative redistricting plan.2
II. Totality of the Circumstances
After disposing of the case based on the first Gingles factor, the majority
opinion goes on to affirm the district court’s further finding that even if the
plaintiffs had satisfied the Gingles preconditions they would not have satisfied
the totality of the circumstances test that follows. The majority opinion’s
discussion of the case law surrounding the totality of the circumstances test is
at times confused and therefore misleading. Since I believe the district court did
not make sufficient factual findings to enable our review of the first Gingles
factor, I express no opinion on whether the plaintiffs would have prevailed under
the totality of the circumstances test, but I write to note my disagreement with
the majority’s interpretation of the controlling law.
The majority opinion begins its analysis of the totality of the
circumstances test by characterizing the plaintiffs’ objections to the use of
Census data (as opposed to registered voter data) for the apportionment base as
being only “generalized suspicions” about the Census. In fact, the plaintiffs
provided both scholarly authority supporting the idea that the Census generally
undercounts African-Americans, particularly African-American adult men, see
Mary Mulry, Statistical Research Division, U.S. Census Bureau, Summary of

2
In so doing, I also take issue with the majority opinion’s comment that “Any plan that
splits USM into multiple wards, furthermore, would be highly suspect on its face.” Maj. op. at
9. The majority opinion cites to Sensley v. Allbritton, 385 F.3d 591, 598 (5th Cir. 2004) for this
proposition. The court in Sensley, however, merely noted that it was not clear error for a
district court to reject a plaintiff's proposed redistricting plan where it, among other problems,
both combined disparate communities and split an existing community. This does not lead to
any such affirmative rule as the one the majority opinion pronounces, particularly since, if
USM were indeed made up mostly of nonresident students who could not vote, it would not
be the kind of traditional community-in-interest that voting districting lines are required to
take into account.

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Accuracy and Coverage Evaluation for 2000 Census 13, 15 (Feb. 28, 2006), and
explained specifically that the Census data was inaccurate because it included
temporary residents not entitled to vote in Hattiesburg, and because in a city
with a large transient population (like a university or a military base), such
figures are less reliable than registered voter figures, see, e.g., Gaffey v.
Cummins, 412 U.S. 735, 746-47 (1973) (“[Census figures] tell us nothing of the
other ineligibles making up the substantially equal census populations among
election districts: aliens, nonresident military personnel, nonresident students,
for example.”).
The majority opinion goes on to express skepticism about the use of voter
registration figures in Voting Rights Act cases, particularly for the
proportionality analysis that makes up part of the totality of the circumstances
test. This skepticism is unwarranted. The Supreme Court has always declined
to choose a particular set of figures that are to be considered in determining
proportionality under the Voting Rights Act (e.g., total population, voting-age
population, or registered voters). See, e.g., DeGrandy v. Johnson, 512 U.S. 997,
1017 n.14 (“The parties dispute whether the relevant figure is the minority
group’s share of the population, or of some subset of the population, such as
those who are eligible to vote, in that they are United States citizens, over 18
years of age, and not registered at another address (as students and members
of the military often are). Because we do not elevate this proportion to the status
of a magic parameter, and because it is not dispositive here, we do not resolve
that dispute.”).3 Voting-age population may indeed be the most common metric,

3
While, as the majority opinion notes, Burns v. Richardson, 384 U.S. 73 (1966),
expressed concern about the potential for manipulation of voter registration statistics due to
incentives for registration, the same opinion also noted that Hawaii, the state at issue in the
case, had chosen to use registered voter numbers for its apportionment calculations because
of the presence of a large number of nonresident military members and tourists who distorted
the total population numbers. Burns, 374 U.S. at 94-95. Further, Burns, like the Fifth Circuit
(continued...)

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but in a situation like the one at issue here, where a city has a large population
of non-resident university students who will likely almost all be both of voting
age and included in the Census figures, the use of voter registration data may
in fact be preferable. While, again, I express no opinion about the data in this
case, due to the district court’s lack of detailed factual findings sufficient to
enable review, I disagree with the majority that the case law supports strongly
disfavoring any particular set of figures under the Voting Rights Act, including
voter registration figures, when the Supreme Court has expressly declined to do
so because of the nuances present in each individual case. I therefore
respectfully DISSENT from the Voting Rights Act holdings in the majority
opinion.

(...continued)
case cited by the majority to similar effect, Marshall v. Edwards, 582 F.2d 927, 937 (5th Cir.
1978), concerned challenges brought under the one person, one vote Equal Protection Clause
framework, not the Voting Rights Act. While courts do not always distinguish between these
two frameworks in discussing apportionment decisions, the legal considerations at stake are
different, and may even conflict. See, e.g., Clarke & Reagan, Redistricting Litigation: An
Overview of Legal, Statistical, and Case-Management Issues I.D.1. (discussing “a tension
between section 2 of the VRA and the Fourteenth Amendment” insofar as “the remedy for vote
dilution . . . is for the state to redraw district lines . . . making race a substantial factor” while
“the Equal Protection Clause . . . prohibits states from making race the predominant factor in
drawing district boundaries.”). A survey of this law and an analysis of the different
frameworks is not necessary here; I mean only to note that discussions of apportionment bases
in Equal Protection cases may not always be applicable to Voting Rights Act cases and vice
versa, and, as the Supreme Court has made clear, the details of individual cases and claims
are what matter most, not an allegiance to a certain set of figures in the Voting Rights Act
context.

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