Southern Christian Leadership Conference v. Sessions

Related Cases

HATCHETT, Circuit Judge,

dissenting:

Alabama has had a long and painful history of discriminating against its black citizens. In the area of voting rights, this discrimination has persisted despite constitutional amendments, Supreme Court decisions, and federal legislation. In the latest chapter of this history, black voters have turned to the Voting Rights Act (the Act) in an attempt to overcome Alabama’s sad legacy. Fortunately, the Act has proved to be an invaluable tool in securing greater political representation for black Alabamans. Of course, the Act is not self-executing; federal courts have repeatedly fashioned relief in response to Alabama’s violations of the law. In so doing, these courts have created an enormous body of case law, which includes extensive discussion of vote dilution claims under section 2 of the Act. When viewed against the backdrop of this precedent, the majority’s opinion in this ease stands as an anomaly in two respects.

First, federal courts have consistently declared that racially polarized voting has been, and remains, a fact of life in Alabama.1 In*1299deed, when considering vote dilution claims in Alabama, federal courts have always found racially polarized voting. Such findings are consistent with the Justice Department’s determination that “racially polarized voting is present at all levels of elections in Alabama, including judicial elections....” White v. State of Alabama, 867 F.Supp. 1519, 1552-53 (M.D.Ala.1994) (section 2 challenge to method of electing appellate judges in Alabama) (emphasis added). In this case involving trial judges, however, the majority holds that the appellants have failed to show racial bloc voting. In reaching this amazing result, a first in the history of Alabama voting rights jurisprudence, the majority has ignored the record in this case, this court’s precedent, political reality, the history of the state, and what is obvious.

Second, federal courts have dutifully met the obligation under section 2 to impose remedial schemes on a wide variety of governmental entities.2 The majority, however, has suddenly abandoned this paramount obligation, effectively holding that its colleagues in Alabama’s judiciary, unlike officials in the state’s other branches of government, are immune from the remedial powers of the federal courts. Again, in arriving at this aberrational result, the majority has ignored the record in this case, this court’s precedent, and political reality.

Because the majority has relied on its own view, rather than rigorously applying this court’s precedent, in reaching its result, I find it necessary to outline the controlling law. Moreover, because the majority has not done so, I find it necessary to engage in the required circuit-by-eircuit analysis of the facts of this case. After applying the law of this court to these facts, I can only conclude that the appellants have demonstrated a section 2 violation, for which a remedy can, and must, be employed. Accordingly, I respectfully dissent.

In discussing the issues, I will follow the outline listed below.

I.The Supreme Court’s Gingles /Totality-of-the-Cireumstances Test

II.The Law of this Circuit

A. The Gingles Prong

1. The First Two Factors: The Possibility of a Remedy

2. The Third Factor: Racial Bloc Voting

B. The Totality-of-the-Circumstances Prong

III.Application of the Law to the Facts of this Case

A. Applying the Third Gingles Factor

1. The Fourth Circuit

2. The Fifth Circuit

3. The Sixth Circuit

4. The Seventh Circuit

5. The Tenth Circuit

6. The Thirteenth Circuit

7. The Fifteenth Circuit

8. The Twentieth Circuit

9. The Twenty-Third Circuit

*130010. The Twenty-Sixth Circuit

11. Summary

B. Applying the First and Second Gin-gles Factors

1. Reconfiguration of Circuits

2. Subdistricts

3. Cumulative Voting

C. Applying the Totality-of-the-Cir-eumstanees Prong

1. Extent Blacks Have Been Elected to Public Office

2. History of Voting-Related Discrimination

3. Typical Discriminatory Voting Practices

4. Discrimination in Education, Employment, and Health

5. Racial Appeals in Political Campaigns

6. Alabama’s Tenuous Interests (Revisited)

IV. Conclusion

I. The Supreme Court’s Gingles /Totality-of-the-Circumstances Test

The focus of the section 2 inquiry is whether a “State or political subdivision” has imposed a “standard, practice, or procedure” that provides minority voters with “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973. It is clear that minority voters can bring a section 2 challenge through a claim of vote dilution. See, e.g., Voinovich v. Quilter, — U.S. -, -, 113 S.Ct. 1149, 1155, 122 L.Ed.2d 500 (1993). Despite this clear law, Judge Edmondson, in his concurrence, suggests that minority voters cannot bring a section 2 challenge through a claim of vote dilution in the judicial election context. If this is in fact Judge Edmondson’s suggestion, it is incorrect. For sure, minority voters can bring a section 2 challenge to judicial elections through a claim of vote dilution. See Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (vote dilution challenge to judicial elections).

The Supreme Court has also made it abundantly clear that minority voters have the burden of satisfying three prerequisites in order to show vote dilution.

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact.... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to demonstrate that the majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed, — usually to defeat the minority’s preferred candidate.

Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766, 92 L.Ed.2d 25 (1986) (citations omitted). The Supreme Court has recently stated that while these three factors are often conclusive, they do not “necessarily and in all circumstances demonstrate [vote] dilution.” Johnson v. De Grandy, — U.S. -, -, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994).

Instead, “courts must also examine other evidence in the totality of the circumstances” before finding a violation of section 2. De Grandy, — U.S. at -, 114 S.Ct. at 2657. These other circumstances include: (1) the history of voting-related discrimination in the state or political subdivision; (2) the extent to which voting in the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices that may enhance the opportunity for discrimination against a minority group; (4) whether members of the minority group have been excluded from candidate slating processes; (5) 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 political process; (6) whether overt or subtle racial appeals have been made in political campaigns; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction; (8) whether elected officials are unresponsive to the particularized needs *1301of members of the minority group; and (9) whether the policy underlying the state or political subdivision’s use of the contested practice or structure is tenuous. See De Grandy, — U.S. at - n. 9, 114 S.Ct. at 2656-57 n. 9.3 “[T]he most important Senate Report factors ... are the ‘extent to which minority group members have been elected to public office in the jurisdiction’ and- the ‘extent to which voting in the elections of the state or political subdivision is racially polarized.’ ” Gingles, 478 U.S. at 48 n. 15, 106 S.Ct. at 2765 n. 15 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in, 1982 U.S.C.C.A.N. 177, 206-08).4

Although the above framework is firmly established, the Supreme Court has not clearly delineated its application, particularly in the context of judicial elections. See Chisom, 501 U.S. at 390, 111 S.Ct. at 2361 (leaving open the question of what “must be proved to establish a violation” of section 2 in the judicial election context).

II. The Law of this Circuit

This is the third en banc case in which this court has grappled with the basic framework of the Gingles /totality-of-the-circumstances test. See Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995); Solomon v. Liberty County, Fla., 899 F.2d 1012 (11th Cir.1990) (en banc), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991). Although Nipper and Solomon spawned seven conflicting opinions, a majority of this court agreed upon a limited set of holdings in both cases. With respect to the Gingles prong, a majority of this court has: (1) supplemented the first two factors in the judicial election context; and (2) clarified how to weigh expert statistical evidence when considering the third factor. See Nipper, 39 F.3d at 1530-33, 1539-41; Solomon, 899 F.2d at 1020-21. With respect to the totality-of-the-circumstances prong, a majority of this court has added the state’s interest in maintaining its system as a factor to consider in section 2 challenges to judicial elections. See Nipper, 39 F.3d at 1528-30. This court, however, has yet to clarify the significance of the state’s interests in relation to the Senate Report factors.

A. The Gingles Prong

Although the Gingles prong contemplates three factors, this court has transformed it into a two-part inquiry when considering section 2 challenges to judicial elections. In so doing, this court explained that the “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.” Nipper, 39 F.3d at 1530.

1. The First Two Factors: The Possibility of a Remedy

In Nipper, the leading opinion carried a majority in part 111(B)(1). That majority held that in addition to requiring the plaintiff to show numerousness/compactness and cohesiveness, “[t]he first Gingles precondition, informed by the second, dictates that the issue of remedy is part of the plaintiffs prima facie case in section 2 vote dilution eases.” Nipper, 39 F.3d at 1530. Thus, a plaintiff can only satisfy the first two factors of the Gingles threshold inquiry if a court finds that “within the state’s judicial model, there exists an alternative election scheme that could serve as an appropriate section 2 remedy.” Nipper, 39 F.3d at 1531.5

In my dissent in Nipper, I did not think it was appropriate to articulate fully my disagreement with the holding in part 111(B)(1) *1302because the issue of remedy was not properly before the court. Since the majority has implemented the reasoning in that premature holding to decide this case, I now find it necessary to illustrate how part 111(B)(1) distorted clear Supreme Court precedent.

Essentially, in part 111(B)(1) of Nipper, a majority of this court subtly substituted the word “remedy” for the word “benchmark,” and thereby altered the Gingles threshold inquiry. The Supreme Court has clearly stated that the first two Gingles factors require a court to “find a reasonable alternative practice as a benchmark against which to measure the existing voting practice.” Holder v. Hall, — U.S. -, -, 114 S.Ct. 2581, 2585, 129 L.Ed.2d 687 (1994) (emphasis added). This construction of the first two factors stems from Justice O’Connor’s concurrence in Gingles, in which she explained that “‘[t]he phrase vote dilution itself suggests a norm with respect to which the fact of dilution may be ascertained.’” Holder, — U.S. at -, 114 S.Ct. at 2585-86 (quoting Gingles, 478 U.S. at 88, 106 S.Ct. at 2786 (O’Connor, J., concurring)).

Thus, the first two Gingles factors require the existence of a hypothetical “benchmark” for the purpose of measuring vote dilution; they do not require a “remedy,” something completely different. Indeed, Justice O’Con-nor articulated the difference between the two in Holder, explaining that an “alternative benchmark is often self-evident. In a challenge to a multi-member at-large system, for example, a court may compare it to a system of multiple single-member districts_ Though there may be disagreements about the precise appropriate alternative practice in these eases, there are at least some objectively determinable constraints on the dilution inquiry.” Holder, — U.S. at -, 114 S.Ct. at 2589-90 (O’Connor, J., concurring) (citations omitted) (emphasis added). In other words, the first two preconditions merely contemplate an objective basis used to assess the vote dilution inquiry; they do not contemplate a “remedy,” or the “precise appropriate alternative practice” that will ultimately be implemented.

In Holder, the Supreme Court held that the size of a governing authority is not susceptible to a section 2 vote dilution challenge because “[tjhere is no principled reason why one size should be picked over another as the benchmark for comparison.” Holder, — U.S. at -, 114 S.Ct. at 2586. Despite the contentions of a majority of this court, this holding does not inject the state’s interests in potential remedies into the Gingles stage of the inquiry, for the Supreme Court was not concerned with the state’s interest in maintaining the size of its governing body. Instead, the Supreme Court simply found that such claims cannot withstand the first two Gingles factors because they are “inherently standardless,” even at the level of hypothetical abstraction. Holder, — U.S. at -, 114 S.Ct. at 2588. It is important to remember that the standard for comparison (i.e., benchmark) is purely hypothetical; therefore, the state’s interests in the actual implementation of potential remedies are irrelevant.

In sum, a majority of this court has erroneously placed remedy as the threshold issue in the section 2 inquiry. This puts the cart before the horse, for remedy, usually the last consideration in litigation, is now the first factor that a court considers. Common sense dictates that courts should first determine whether a section 2 violation has occurred. When minority voters establish a violation, then the issue of remedy becomes ripe.

After saying all the above, I still recognize that the holding in part 111(B)(1) of Nipper, no matter how incorrect I deem it to be, controls the application of the first two Gin-gles factors to the facts of this case. Accordingly, this is the standard that I will employ. Before I do so, however, two points must be clarified.

First, when considering the first two Gin-gles factors, the spectrum of possible remedies is not limited to the ones that the section 2 plaintiff proposes, for it is the court’s responsibility to consider all permissible remedies. See Nipper, 39 F.3d at 1531 (the “district court must determine as part of the Gingles threshold inquiry whether it can fashion a permissible remedy”) (emphasis added). It is ironic that, in the judicial election context, the section 2 plaintiff is now the party with the burden of proposing possible *1303remedies for court approval. Typically, the burden is on the state to propose a remedial scheme that “eonform[s] with Section 2” and satisfies the court. Dillard v. Crenshaw County, Ala., 831 F.2d 246, 249 (11th Cir.1987). Under this traditional framework, although the state bears the burden of coming forward with potential alternatives, it is ultimately the “role of the district court to fashion a narrowly and well tailored remedy.” Dillard, 831 F.2d at 253. Likewise, although section 2 plaintiffs, as opposed to the state, are now required to offer a feasible alternative in the judicial election context, it is still the ultimate responsibility of the court to consider all potential remedies if it finds that the ones the plaintiffs offer do not suffice. It has always been Congress’s intent that “[t]he court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice.” 5.Rep. No. 417, 97th Cong., 2d Sess. 31 (1982), reprinted in, 1982 U.S.C.C.A.N. 177, 208 (emphasis added).

The second point that needs to be clarified is the standard for judging the feasibility of a remedy. In Nipper, the majority used several different phrases to describe the standard of feasibility: (1) “a permissible remedy in the particular context of the challenged system”; (2) “a remedy within the confines of the state’s judicial model that does not undermine the administration of justice”; (3) “within the state’s judicial model, there exists an alternative scheme that could serve as an appropriate section 2 remedy”; and (4) “a workable remedy within the confines of the state’s system of government.” Nipper, 39 F.3d at 1531-33. These phrases mean that although a remedy may not drastically alter the substance of the state’s judicial model, it may alter the method used to select judges, for “[i]t has long been the rule that ... some alteration in the State’s election system may be called for in order to remedy” a section 2 violation. Brief of the United States in Support of Petition for Certiorari at 15, Nipper v. Smith, — U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995) (No. 94-1463). Thus, a court may consider cumulative voting as a remedy to a numbered place system because that alternative only alters the method of selecting judges. Similarly, a court may consider subdistricting as a remedy to an at-large system because that alternative only bears on the method of selecting judges. A court may also change the geographical makeup of a circuit system so as to alter the electoral bodies that vote for judges. This alternative, which primarily changes the method of selecting judges, does not fundamentally alter the state’s judicial model; in fact, this type of modification is routinely made to reflect shifts in caseload and population.6 Finally, these phrases also indicate that a potential remedy need not be the state’s favored option. Likewise, the proposed remedy need not employ the system that the court believes to be the best or most efficient. Instead, the proposed remedy must simply be “workable.” Nipper, 39 F.3d at 1533 (quoting Holder, — U.S. at -, 114 S.Ct. at 2586). Stated differently, the remedy is feasible as long as it “does not undermine the administration of justice.” Nipper, 39 F.3d at 1531.

2. The Third Factor: Racial Bloc Voting

In vote dilution cases, courts must often decide the third Gingles factor, whether majority block voting usually defeats minority candidates, on the basis of statistical evidence. This court has constructed two guiding principles for courts to employ when weighing such evidence.

First, this court has explained that the statistical “evidence most probative of racially polarized voting must be drawn from elections including both black and white candidates.” Nipper, 39 F.3d at 1539 (quoting Westwego Citizens for Better Government v. Westwego, 872 F.2d 1201, 1208 n. 7 (5th Cir.1989)).7 Indeed, elections involving only *1304white candidates “reveal little about the issue to be determined: the capacity for white bloc voting usually to defeat black candidates of choice.” Nipper, 39 F.3d at 1540. Thus, elections involving white candidates are only probative “[w]here black voters have a genuine candidate of choice”; they are not probative when “the candidate of choice of black voters was also the preferred candidate of the white voters.” Nipper, 39 F.3d at 1540-41. Furthermore, a court cannot assume, “based only on a cursory examination^]” that because the majority of black voters supported a white candidate, that candidate was a “genuine candidate of choice.” Nipper, 39 F.3d at 1540. Instead, in order to be a genuine candidate of choice, a court must find some support, such as “anecdotal testimonial evidence, polling data, a review of the appeals made during the campaign, [or] turnout information, indicating [that] black voters were energized to support a particular white candidate.” Nipper, 39 F.3d at 1540. In sum, biracial elections typically will be most probative, and since the inquiry is whether white bloc voting works to defeat black candidates, the most important statistic is the white crossover vote in biracial elections.

As a second guiding principle, this court has announced when this most probative statistical evidence satisfies the third Gingles factor as a matter of law. Specifically, statistical evidence showing that no black candidate has ever been elected, coupled with an average white crossover vote of twenty-one percent, is “sufficient as a matter of law to establish that white voting ... is racially polarized to the extent that blacks are unable to elect the candidates of their choice.” Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring).8 It is important to note that racial bloc voting often exists when the average white crossover vote is greater than twenty-one percent. Indeed, in Gingles, the Supreme Court found racial bloc voting where “white support for black candidates ranged between 8% and 50%, and ... between 28% and 4.9%.” Gingles, 478 U.S. at 59, 106 S.Ct. at 2771 (emphasis added). Thus, an average white crossover vote greater than twenty-one percent, coupled with other factors, including the fact that no black candidate has ever been elected to office, can constitute racially polarized voting.

B. The Totality-of-the-Circumstances Prong

In Nipper, a majority of this court adopted dicta from Justice Stevens’s opinion in Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501 U.S. 419, 426-27, 111 S.Ct. 2376, 2380-81, 115 L.Ed.2d 379 (1991), which stated that the state’s interest in maintaining its judicial system is a legitimate factor to consider under the totality of the circumstances. See Nipper, 39 F.3d at 1529 (in part 111(A) of the leading opinion, which carried a majority). Thus, in addition to the Senate Report factors, this court also considers the state’s interests when analyzing the totality-of-the-cireumstances prong in section 2 challenges to judicial elections.

*1305Exactly what weight a court should place on the state’s interests is unclear. The purpose of the totality-of-the-circumstances prong is to aid in the overall determination of whether section 2 plaintiffs have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). Unlike the Senate Report factors, the state’s interests are, for the most part, irrelevant to this inquiry; thus, they should carry minimal weight in the totality-of-the-circumstances analysis. Furthermore, this court already considers the state’s interests in maintaining its judicial system during the remedy phase of the Gingles prong; thus, it is pointless and repetitive to give the state’s interest great weight at this stage.

III. Application of the Law to the Facts of this Case

Although Nipper injected remedy into the first and second Gingles factors, thereby making it the threshold issue in challenges to judicial elections, the majority begins its analysis in this ease with the third Gingles factor, racially polarized voting. For the sake of clarity, I will do the same. Unlike the majority, however, I will not defer, under the clearly erroneous standard, to the district court because it committed several legal errors in arriving at its findings. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2781. Also, unlike the majority, I will undertake the required cireuit-by-circuit analysis in reviewing the district court’s racial bloc voting findings. See Gingles, 478 U.S. at 59 n. 28, 106 S.Ct. at 2771 n. 28 (the “racially polarized voting” inquiry is “district-specific”). Indeed, the majority’s failure to engage in the required circuit-by-eircuit analysis is a serious flaw, for the district court’s legal errors become obvious under this more particularized level of scrutiny.

After reviewing the district court’s racial bloc voting determinations, I will proceed to the first and second Gingles factors, which, under Nipper, contemplate the state’s interest in potential remedies, and then to the totahty-of-the-circumstances inquiry. Once again, I will not defer to the district court’s findings because the issues of remedy and “the substantiality of [Alabama’s] interest under § 2 [are] question^] of law for this court to determine de novo.” League of United Latin American Citizens v. Clements, 999 F.2d 831, 871 (5th Cir.1993) (en banc) (LULAC), cert. denied, — U.S. -, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).

A. Applying the Third Gingles Factor

As will become apparent, the following eir-cuit-by-circuit analysis shows that the district court repeatedly engaged in the same egregious legal errors in its analysis of racial bloc voting. So as not to become too repetitive, I will first explain the legal errors that the district court committed, and then list, circuit-by-eireuit, the facts that are relevant to those errors.

First, the district court ignored the evidence that black lawyers, faced with the prospect of almost certain defeat, had generally been deterred from running for judge-ships. See White, 867 F.Supp. at 1553-54 (“[T]he evidence before the court suggests that because of the difficulty of running for [Alabama judgeships], qualified blacks do not seek election_ Potential judicial candidates who would be the most likely first choices of the black community are not running.”). Instead, the district court emphasized that, in some circuits, black lawyers had never run for judgeships. This is an improper consideration as a matter of law. See Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25; Westwego, 872 F.2d at 1208-09; White, 867 F.Supp. at 1554. Then, in the absence of extensive data concerning biracial elections for circuit and district judgeships, the district court failed to look to the most probative statistics — the white crossover vote in biracial elections for other offices. See Nipper, 39 F.3d at 1539. Rather, without determining whether one of the candidates was a genuine candidate of choice of the black voters, the district court improperly relied on statistical data concerning elections between white candidates. See Nipper, 39 F.3d at 1540-41. In giving these elections great probative weight, the district court wrongly assumed, “based only on a cursory examination[,]” that because the majority of black voters supported a white candidate, *1306that candidate was a genuine candidate of choice. Nipper, 39 F.3d at 1540.9

Finally, and perhaps most importantly, the district court ignored this court’s en banc decision in Solomon. In the ten challenged circuits, not one black candidate has attained a district or circuit judgeship through a contested election.10 Moreover, the average white crossover vote in each circuit is lower than, or comparable to, the twenty-one percent average in Solomon. The combination of these two facts is sufficient as a matter of law to satisfy the third Gingles factor. See Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring).

1.The Fourth Circuit

The Fourth Circuit has two circuit judges. Neither are black. Blacks, however, comprise forty-nine percent of the voting age population in the Fourth Circuit. The parties stipulated that at least until the 1980s, strong racially polarized voting existed in Hale and Dallas Counties, which are part of the Fourth Circuit,11 Nonetheless, the district court, without even mentioning this evidence, determined that racially polarized voting does not exist in the circuit.

In so doing, the district court emphasized, improperly, that “[n]o black lawyer has ever chosen to run for circuit judge” in the Fourth Circuit. Southern Christian Leadership Conference of Alabama v. Evans, 785 F.Supp. 1469, 1480 (M.D.Ala.1992) (SCLC). The district court also erroneously emphasized that “the candidate preferred by the circuit’s black voters won in the circuit eighty-eight percent of the time,” without determining whether those candidates were genuine candidates of choice. SCLC, 785 F.Supp. at 1480.

Finally, the district court failed to look at the most probative statistical evidence, the white crossover vote in biracial elections. Had the district court considered this evidence, it would have recognized that the appellants showed racial bloc voting as a matter of law because no black has ever been elected to the position of circuit judge, and the average white crossover vote in the Fourth Circuit is a mere fifteen percent.

2. The Fifth Circuit

The Fifth Circuit has three circuit judges. None are black. Blacks, however, comprise thirty-eight percent of the voting age population in the Fifth Circuit.

In determining that the appellants failed to show racially polarized voting, the district court erroneously emphasized that “[n]o black candidate has run for circuit judge” in the Fifth Circuit. SCLC, 785 F.Supp. at 1480. The district court also erred in emphasizing that “the candidate preferred by blacks in the circuit won eighty-five percent of the time,” without determining whether those candidates were genuine candidates of choice. SCLC, 785 F.Supp. at 1480.

Again, the district court failed to consider the most probative evidence, the white crossover vote in biracial elections. Had it done so, it would have recognized that the appellants established the third Gingles factor as a matter of law, for no black has ever been elected to the position of circuit judge, and the average white crossover vote in the Fifth Circuit is twenty-one percent.

3. The Sixth Circuit

The Sixth Circuit has three circuit judges. None are black. Blacks comprise twenty-three percent of the voting age population in the Sixth Circuit.

In determining that the appellants failed to satisfy the third Gingles factor, the district court erroneously emphasized that “[i]n the eight contested trial judge elections within *1307the Sixth Circuit since 1976, none involved a black candidate.” SCLC, 785 F.Supp. at 1481. The district court also erroneously emphasized that “[t]he candidate preferred by blacks in statewide judicial elections prevailed in the circuit twenty-one out of twenty-two times,” but did not analyze whether those candidates were genuine candidates of choice. SCLC, 785 F.Supp. at 1481.

Once again, the district court ignored the most probative evidence and the Solomon standard. Racially polarized voting exists in the Sixth Circuit as a matter of law, for no black has ever been elected to sit on the Sixth Circuit, and the average white crossover vote is only twenty percent.

4. The Seventh Circuit

The Seventh Circuit has four circuit judges. None are black. Blacks comprise sixteen percent of the voting age population in the Seventh Circuit.

Once again, the district court, without determining whether genuine candidates of choice were involved, incorrectly emphasized that “[i]n five of eight circuit judge elections, the candidate preferred by black voters won.... In statewide judicial elections, the candidate preferred by black voters won in the circuit seventy-six percent of the time.” SCLC, 785 F.Supp. at 1481.

Again, the district court ignored the most probative evidence and the Solomon standard, for no black has ever been elected to sit on the Seventh Circuit, and the average white crossover vote is twenty-five percent. Indeed, a black candidate, Nathaniel Owens, has twice run for the circuit bench. He lost both times. In his 1978 loss, he won approximately sixty-seven percent of the black vote, but only sixteen percent of the white vote. In his 1982 loss, he won 100 percent of the black vote, and only approximately 19 percent of the white vote.

5. The Tenth Circuit

Appellants challenge the system for electing both circuit and district judges in the Tenth Circuit. Since the Tenth Circuit is a single-county circuit, the district and circuit court elections involve the same electorate. Thus, the two challenges can be considered simultaneously.

The Tenth Circuit has a black voting age population of thirty-two percent. But, only three of the twenty-four circuit judges in the Tenth Circuit are black; all were appointed.12 Of the eleven district judges in the Tenth Circuit, none are black. Ralph Cook, one of the three black circuit judges in the Tenth Circuit, previously served as a district judge. Cook, who ran unopposed, was elected to the district court bench in 1976. This unopposed victory is the only instance where a black has achieved a judicial position through election in any of the ten challenged circuits.

In finding that the appellants failed to show racial bloc voting in the Tenth Circuit, the district court explained that “[i]n twenty-one of twenty-three (91 percent), contested circuit court elections, and in nine of eleven (82 percent) contested district court elections, the candidate preferred by black voters was elected_ In the twenty-six statewide judicial elections since 1976, a candidate preferred by black voters has won on each occasion.” SCLC, 785 F.Supp. at 1482. Thus, once again, the district court erroneously relied on elections between white candidates without determining whether one of those candidates was a genuine candidate of choice of the black voters.

Because Judge Cook’s unopposed victory in 1976 does not count, no black has ever achieved a judicial position in the Tenth Circuit through election. See Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67 (unopposed victories do not count against a finding of racial bloc voting). In the two elections where black candidates ran against white candidates for district judgeships, the black candidates lost. In those two elections, the black candidates, Raymond Chambliss and Emory Anthony, received nearly 100 percent of the black vote, and only approximately 24 percent of the white vote. Moreover, the average white crossover vote in the Tenth Circuit is twenty-two percent. Thus, once again, the *1308appellants have satisfied the third Gingles factor.

6.The Thirteenth Circuit

Appellants challenge the system for electing both circuit and district judges in the Thirteenth Circuit. Like the Tenth Circuit, the Thirteenth Circuit is a single-county circuit. Thus, the two challenges can be considered simultaneously.

The Thirteenth Circuit, which has a black voting age population of twenty-eight percent, is comprised of ten circuit judges; only one is black. Of the four district judges in the circuit, only one is black. Both black judges were appointed to the bench.

In finding no racial bloc voting, the district court analyzed elections between white candidates without determining whether one of the candidates was a genuine candidate of choice of the black voters. The district court simply reasoned: “In the four circuit court elections, the candidate favored by black voters prevailed on each occasion. In district court elections ... the black preferred candidate has won seventy-five percent of the time. In statewide elections, the Thirteenth Circuit vote has gone to the black preferred candidate eighty-five percent of the time.” SCLC, 785 F.Supp. at 1483-84.

The district court also failed to consider the most probative evidence. The parties stipulated that at least until 1982, racially polarized voting occurred in the Thirteenth Circuit. The district court did not even mention this fact. Furthermore, no black has ever been elected to a circuit or district judgeship in the Thirteenth Circuit. In 1980, Frankie Fields Smith entered, and lost, the Democratic primary for a district judge position. Although she received almost ninety-five percent of the black vote, she only received approximately eight percent of the white vote. Smith ran again in 1986. Because she entered the race late, she did not run with the benefit of organized party support. Nonetheless, she received almost forty-five percent of the black vote, but less than one percent of the white vote. Had the district court considered the low crossover votes in Fields’s elections, and the low average white crossover vote of twenty percent, it would have recognized that, under Solomon, the appellants established the third Gingles factor as a matter of law.

7. The Fifteenth Circuit

Appellants challenge the system for electing both circuit and district judges in the Fifteenth Circuit. Since the Fifteenth Circuit is a single-county circuit, the two challenges can be considered simultaneously.

Despite the Fifteenth Circuit’s black voting age population of thirty-eight percent, only one of its seven circuit judges is black. None of its three district judges are black.

The parties stipulated that, in the Fifteenth Circuit, racially polarized voting existed at least until 1978. The district court ignored this highly probative evidence. Instead, the district court chose to emphasize irrelevant elections between white candidates, explaining: “In eight of the ten trial judge elections ... the black preferred candidate prevailed.... [Sjtatewide judicial candidates preferred by blacks have won the county vote on twenty-two of twenty-six occasions.” SCLC, 785 F.Supp. at 1484.

The district court also made the mistake of ignoring Solomon. No black has ever been elected to a district or circuit judgeship in the Fifteenth Circuit, and the average white crossover vote is twenty-two percent.

8. The Twentieth Circuit

The Twentieth Circuit has three circuit judges. None are black. Blacks comprise twenty-two percent of the voting age population in the Twentieth Circuit.

Of course, the district court incorrectly emphasized elections between white candidates, without undertaking the genuine candidate of choice inquiry, reasoning: “The circuit judge candidate preferred by blacks has been successful in two of the four contested elections since 1976, and the statewide judicial candidate favored by black voters has won the circuit vote seventeen of twenty-six times.” SCLC, 785 F.Supp. at 1485.

The district court also failed to consider the most probative evidence and the Solomon standard. If it had done so, it would *1309have recognized that the appellants satisfied the third Gingles factor as a matter of law. No black has ever been elected to the circuit bench, and the average white crossover vote is only twenty percent.

9.The Twenty-Third Circuit

The Twenty-Third Circuit has six circuit judges. None are black. Blacks comprise nineteen percent of the voting age population.

The district court erroneously relied on elections between white candidates, explaining that “[i]n the few contested judicial elections within the Twenty-Third Circuit, the candidate preferred by black voters prevailed in three of the three circuit court elections and in four of the six district court elections. In statewide judicial elections, the county vote has gone with the candidate preferred by blacks sixty-five percent of the time.” SCLC, 785 F.Supp. at 1485.

Once again, the district court ignored the most probative evidence and Solomon. No black has ever been elected to the circuit court bench, and the average white crossover vote in the Twenty-Third Circuit is twenty-two percent. Indeed, in perhaps the most relevant election, Al Beckles, a black candidate, unsuccessfully ran for the district bench in 1990. Although he received more than eighty percent of the black vote, he received less than five percent of the white vote.

10.The Twenty-Sixth Circuit

Appellants challenge the system for electing both circuit and district judges in the Twenty-Sixth Circuit. Like the other circuits where the appellants have made a challenge at both the circuit and district level, the Twenty-Sixth Circuit is a single-county circuit. Thus, the two challenges can be considered simultaneously.

The Twenty-Sixth Circuit has two circuit and two district judges. None are black. Blacks, however, comprise thirty-six percent of the voting age population. No black has ever been elected to a district or circuit judgeship in the Twenty-Sixth Circuit. The average white crossover vote is a mere sixteen percent. Thus, under Solomon, the appellants established racially polarized voting as a matter of law in the Twenty-Sixth Circuit.

11.Summary

The following chart summarizes the relevant facts for each of the ten challenged circuits.13

Circuit % of Black Voting Age Population % of Average White Crossover vote Number Number Number of Judge- of Ap- of Elect-ships pointed ed Black Black Judges Judges

4th 49% 15%

5th 38% 21%

6th 23% 20%

7th 16% 25%

10th 22%

13th 28% 20%

15th 38% 22%

20th 22% 20%

23rd 19% 22%

26th 36% 16%

Total

*1310B. Applying the First and Seeond Gin-gles Factors

The first Gingles factor requires the appellants to show numerousness and compactness in the challenged circuits. Appellees “concede that such a showing has been made.” SCLC, 785 F.Supp. at 1472.14 The second Gingles factor requires a showing of political cohesiveness. The district court found that the appellants “have fully established a cohesion of the black vote.” SCLC, 785 F.Supp. at 1472. The appellees do not challenge this finding.

The majority, however, holds that the appellants have failed to satisfy the first and second Gingles factors, as this court has formulated them in the judicial election context, because they have failed to propose a feasible remedy. Accordingly, I will address the majority’s contentions, keeping in mind this court’s duty to consider all possible alternatives. I conclude, that the appellants have proposed two “workable” remedies that do not “undermine the administration of justice.” I also believe that cumulative voting, which was not proposed, constitutes a “workable” alternative.

1. Reconfiguration of Circuits

The appellants have proposed realigning counties in the Fourth and Fifth Circuits with counties in neighboring circuits in order to create three majority black circuits. The majority holds that this remedy is not feasible because: (1) it fails to take into account factors that contribute to the allocation of judicial resources; (2) it would dilute black voting power in the counties that are not realigned into the majority black circuits; (3) it would make race the linchpin of the judicial system; (4) it would not ensure the success of a black candidate; and (5) the pool of black lawyers in the reconfigured circuits would be too small to give voters a reasonable choice of candidates. I will address each of these contentions in turn.

First, the majority explains that the proposed reconfiguration fails to take into ac~ count factors related to judicial resources, such as caseload and population. This contention is false. The three new circuits would have populations ranging from 50,194 to 76,387. The forty circuits in Alabama have a population range of 27,814 to 651,525, and many are in the range of the proposed circuits. Furthermore, the projected caseload for the proposed circuits would range from 1,070 to 1,596 cases filed per year.15 The forty circuits in Alabama have a caseload range of 721 to 32,826 eases filed per year, and many of the circuits have caseloads similar to the proposed circuits. In short, when considering all aspects of judicial resources, the proposed reconfigured circuits would be quite ordinary. The majority also contends that the proposed reconfiguration would force Bibb County, with a population of 16,-576, to become a single-county circuit. The Thirty-Fourth Circuit, however, is solely comprised of Franklin County, which only has a population of 27,814. More importantly, Bibb County could easily be realigned with a neighboring circuit, such as the Nineteenth Circuit. The majority’s assertion that Bibb County would have to stand on its own is wrong.

The majority’s next contention is that the vote of blacks not included in the reconfigured circuits will be diluted. For example, although blacks only comprise eighteen percent of the voting age population in Bibb County, they are currently part of the Fourth Circuit, which has a black voting age population of forty-nine percent. Since the proposal plans to realign the Fourth Circuit into a majority black circuit, which does not include Bibb County, the black voters of Bibb County will no longer enjoy the status of being members of a large minority. Such reasoning, however, defeats the purpose of section 2, which is to provide minorities with the opportunity to elect candidates of their choice. See 42 U.S.C. § 1973(b). Congress has decided that it is better to create dis-*1311triets where minorities can elect representatives of their choice, rather than to continue to allow them to influence elections as a mere swing vote. In redrawing districts, some minorities will always be excluded, but this is a policy decision that Congress has made, and courts must enforce. As Chief Judge Tjoflat has recognized, “the goal of section 2 is not to maximize the political clout of minorities, but rather to ensure minority representation in government.... [E]ven if such a policy actually reduces the overall political responsiveness to minority needs — the policy choice belongs to Congress.” Solomon v. Liberty County, Fla., 865 F.2d 1566, 1583 (11th Cir.1988), vacated, 873 F.2d 248 (11th Cir.1989) (en banc). Indeed, in footnote 25, the majority concedes that “the Voting Rights Act guarantees voters the right to elect candidates of their choice, not merely the right to influence election results[,]” thereby undermining its concerns about excluded black voters.

The majority’s third contention is that the sole purpose of the reconfiguration is to assist in the election of black judges, and this would improperly thrust race into the judicial process; as a result, the public would lose confidence in the impartiality of the system. The Supreme Court’s decision in Chisom, 501 U.S. 380, 111 S.Ct. 2354, has essentially foreclosed this argument. Put simply, Chisom holds that section 2 applies to judicial elections; this holding necessarily entails remedies that will purposefully assist in the election of black judges.

The majority’s fourth problem with the reconfiguration remedy is that it will not ensure the success of black judicial candidates. The purpose of section 2, however, is to provide minorities with an equal opportunity to elect representatives of their choice; its purpose is not to ensure the success of minority candidates. In fact, the proposed reconfiguration will result in three circuits with black voting age populations of sixty-three percent, fifty-four percent, and fifty-one percent, thereby providing the equal opportunity that section 2 contemplates. Furthermore, the total percentage of black population in the three proposed circuits is even higher: sixty-six percent, fifty-nine percent, and fifty-six percent. Thus, blacks may enjoy a higher percentage of voting age population in the future. The majority seems to ignore the fact that the proposed remedy is prospective in nature.

Finally, the majority contends that because all judges in Alabama must be lawyers, the proposed circuits need a larger pool of black lawyers from which to select judges. One of the proposed circuits would have thirteen black lawyers out of a total of seventy-seven lawyers; another would have thirteen black lawyers out of a total of fifty-four lawyers; the third would have two black lawyers out of a total of thirty-four lawyers. When compared to the present number of lawyers in many jurisdictions in Alabama, the proposed circuits provide an ample number of lawyers from which to select judges.16 Indeed, nine circuits in Alabama elect their circuit judges from a pool of thirty-four lawyers or less. The statistics are even more revealing when one considers district court elections. Lowndes County presently elects its district judge from a pool of three lawyers. Several other counties in Alabama elect their district judges from a total pool of five lawyers. Almost twenty percent of the counties in Alabama elect their district judges from a pool of ten lawyers or less. Another forty percent of the counties elect their district judges from a pool of twenty lawyers or less. Alabama’s judicial system is able to operate in these districts and circuits, and the proposed circuits should be able to do the same. Put simply, after considering these facts, the two proposed circuits with thirteen black lawyers provide the voters with a sufficient pool of black lawyers from which to choose. In addition, the number of black lawyers in Alabama is increasing rapidly. Thus, the proposed circuit with two black lawyers will have more in the near future. Again, the majority ignores the fact that the remedy is prospective in nature.

2. Subdistricts

The appellants have also proposed dividing the other eight challenged circuits into sub-*1312districts. Federal courts have implemented subdistricting as a remedy in the judicial election context. See Lopez v. Monterey County, Cal., 871 F.Supp. 1254 (N.D.Cal. 1994); Clark v. Roemer, 777 F.Supp. 471 (M.D.La.1991); Martin v. Mabus, 700 F.Supp. 327 (S.D.Miss.1988). Nonetheless, the majority rejects this alternative, arguing that it would: (1) defeat Alabama’s interest in having judges accountable to the entire circuit for which they serve; and (2) unduly pressure judges to favor constituents in their subdistriets. The fallacy of such arguments has been well documented. See Nipper, 39 F.3d at 1557-58 (Hatchett, J., dissenting); LULAC, 999 F.2d at 918-21 (King, J., dissenting). Some points, however, bear elaboration.

The majority asserts that in order to maintain judicial accountability, an Alabama court’s territorial jurisdiction must be linked to its electorate. The majority does not clearly explain how this linkage actually enforces judicial accountability, but essentially indicates that such accountability is fostered if the litigants that appear before a judge also have the ability to vote for that judge. This argument, however, suffers from a fundamental flaw — an Alabama court’s jurisdiction has nothing to do with the electoral territory that it represents. While certain geographical boundaries determine the electoral bases of Alabama judges, these same boundaries do not limit the kinds of cases the judges hear, nor do they limit what litigants will appear before the judges. Instead, Alabama’s circuit courts are courts of general jurisdiction; thus, their judicial jurisdiction is defined in terms of subject matter, not electoral geography. See Ala. Const, amend. 328, § 6.04(b); Ala.Code § 12-11-30 (1993). These constitutional and statutory provisions have nothing to do with the legislative decisions involved in the construction of Alabama’s electoral boundaries.

Thus, although the majority characterizes the state’s interest as linking a trial court’s jurisdiction to its electorate, the linkage argument really involves venue. See LULAC, 999 F.2d at 918-19 (King, J., dissenting). But, the “reality is that [Alabama’s] venue rules do not, and were not meant to, ensure the accountability of judges.” LULAC, 999 F.2d at 919 (King, J., dissenting). Under Alabama’s venue rules, trial judges may often hear civil cases in which none of the litigants are members of their constituencies. See, e.g., Ala.Code § 6-3-2(a)(l) (1993) (actions to recover land “must be commenced in the county where the land or a material part thereof lies”); Ala.Code § 6-3-2(a)(3) (1993) (“[P]ersonal actions ... may be commenced ... in the county in which the act or omission complained of may have been done or may have occurred.”); Ala.Code § 6-3-2(b)(1) (1993) (“All actions where real estate is the subject matter of the action ... must be commenced in the county where the same or a material portion thereof is situated.”); Ala.Code § 6-3-3 (1993) (“In all actions for work and labor done or breaches of contracts or covenants as to easements or rights-of-way, the action may be commenced in the county in which the work was done or in which the land is situated as to which the easement or right-of-way was granted.”); Ala.R.Civ.P. 12(h) (allowing for the waiver of geographical venue restrictions). In criminal cases, “the venue of all public offenses is in the county in which the offense was committed.” Ala.Code § 15-2-2 (1982). Thus, criminal defendants will often appear before judges for whom they did not have the opportunity to vote.

Likewise, under other provisions of the Alabama Code, trial judges frequently preside over non-constituents. For example, the Alabama chief justice may assign judges to hear cases outside of their own circuits “[w]henever the public good requires.” Ala. Code § 12-2-36 (1993). Alabama law also allows the chief justice to call retired judges for “temporary active duty in any court.” Ala.Code § 12-18-61 (1993). Statistics for the 1990 court year show that the chief justice invokes these provisions regularly.17 In 1990, sixty-two circuit judges, fifty district judges, and twenty-seven retired judges heard cases in courts in which they were not elected to serve. In addition, retired judges have routinely accepted part-time assignments in the circuit courts of the Tenth and *1313Thirteenth Circuits, and the district courts in Jefferson and Mobile counties. As Alabama concedes in its 1990 judicial report: “Additional judge services, provided by active trial judges accepting out-of-circuit assignments and retired judges on active duty, provide direct benefits to the Alabama judiciary and the people of this state by helping to ensure that the dockets of courts throughout the state remain current.”

In short, the majority fears that subdis-tricting will eliminate judicial accountability because judges may often preside over litigants who did not have the opportunity to vote for them. In Alabama, however, this happens all of the time. While I concede that under a subdistricting plan, trial judges may hear more cases involving non-constituents, I do not believe that this increase is significant in view of the large number of non-constituent cases already being heard. Essentially, the majority must believe that the current number of non-constituent cases does not inhibit judicial accountability, but that adding more of such cases under a sub-districting plan would somehow violate a magical threshold, thereby reducing judicial accountability to an impermissible degree. After considering the current number of non-constituent cases in Alabama’s system, however, I can only conclude that subdistricting is an alternative remedy “within the confines of the state’s judicial model.” Nipper, 39 F.3d at 1531. Furthermore, the increased number of non-constituent eases that may result will “not undermine the administration of justice.” Nipper, 39 F.3d at 1531.

The majority also contends that subdis-tricting will “undermine the administration of justice” in another respect: it believes that “small” subdistricts will lead to “home cooking” and race-based justice because trial judges will succumb to pressure to favor their constituents. The majority’s fears have no basis in the record. At trial, witnesses involved with the Martin subdistricting plan implemented in Mississippi testified that “home cooking” played no part in their judicial system. Furthermore, the record shows that the smallest subdistrict proposed would have a population of 22,754; twenty-one of the sixty-seven counties in Alabama, each with a separate district court, have smaller populations. Since “home cooking” is not a problem in these present counties, it should not be a problem in more populous subdis-triets. Finally, the record shows that majority black counties in Alabama have elected four black probate judges. Nobody has alleged that these judges engage in “home cooking” or race-based justice.

The majority’s argument “is, at bottom, a smokescreen: It suggests that [trial] judges who are elected by white majorities ... are responsive to the needs of all voters in the county — including minority voters. Yet it assumes that a judge elected from a majority-[black] district would somehow be less willing to follow his or her oath or to be responsible to the needs of all.” LULAC, 999 F.2d at 919-20 (King, J., dissenting). Unlike the majority, I believe that black judges elected from majority black subdis-tricts will carry out their duties in conformity with Alabama’s Canons of Judicial Ethics. In sum, I find it “rather offensive to conclude that the impartiality of judges will somehow become tainted when elected from subdis-tricts that permit minority voters to elect their preferred candidates.” Nipper, 39 F.3d at 1558 (Hatchett, J., dissenting).

3. Cumulative Voting

Implementation of a cumulative voting scheme to remedy a section 2 violation is not without precedent. See Cane v. Worcester County, Md., 874 F.Supp. 687 (D.Md.1995). In footnote 24, the majority implies that because the appellants have not proposed cumulative voting, this court need not consider such an alternative. Under section 2, however, courts have a duty to consider all potential x’emedies, not just those that the parties propose.

The majority states that even if the appellants had advocated cumulative voting, such a scheme would not be feasible because it would have “invidious effects ... on the collegiality of the court as well as on lawyer interest in a judicial career.” Both of these conclusions are seriously flawed.

First, it is outrageous to suggest that the collegiality of judges somehow constitutes a state interest that outweighs the need to *1314remedy a section 2 violation. Alabama has an interest in having professional, not collegial, judges. Even assuming the notion that such “judicial bonding” is a legitimate state interest, concerns about it here are entirely misplaced. Alabama circuit and district judges are not members of multi-judge appellate panels; if they were, the state would possibly have a basis to make this collegiality argument. Instead, the judgeships at stake in this case are trial positions- — circuit and district judges sit alone and run their own courtrooms. Therefore, in this instance, the state has no interest in judicial collegiality.

Even assuming, for the moment, that a state has an interest in fostering collegiality among its trial judges, such collegiality would not be sacrificed under a cumulative voting system. The majority’s concern seems to be that collegiality will be sacrificed because judges will be forced to run against each other in elections. The majority’s reasoning, however, is trapped in the paradigm of numbered-place election systems. Under a cumulative voting system, candidates do not run against each other in the typical “head-to-head” format of a numbered-place system. Instead, candidates run for several positions. As a result, candidates need not defeat all of their opponents to win an office. In addition, because of the increased number of participants, a candidate’s opposition is less centralized. As such, self-promotion, as opposed to negative campaigning, is the wise campaign strategy under a cumulative voting system. See Linda Maguire, An Interview with Lani Guinier, 19 Fletcher Forum of World Affairs 99 (1995) (“[I]t is much harder to engage in negative campaigning when you run against five or six people than when you run against just one, because at some level you have to give voters an affirmative reason to vote for you, as opposed to just not voting for the other candidate.”); Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 Cardozo L.Rev. 1135, 1137 (1993) (“[Negative campaigning is less effective in elections with multiple winners than in elections with only one opponent.”). Accordingly, cumulative voting systems breed less contentious elections.

Moreover, ethical codes dictate that judicial candidates should abstain from egregious negative campaigning. Canon 7 of the Alabama Canons of Judicial Ethics provides that judicial candidates “[sjhould maintain the dignity appropriate to judicial office” while campaigning. Canon 7 also states that a judicial candidate: “Should not make pledges or promises of conduct in office other than the faithful and impartial performances of the duties of the office; should not announce and advance his conclusions of law on pending litigation; and should not misrepresent his identity, qualifications, present position or other fact.” Because of these restrictions, judicial elections should be less contentious than elections for legislative or executive governmental positions.

The majority’s second problem with cumulative voting is that it will discourage lawyers from running for judgeships. The majority does not explain its reasoning, and I do not find it self-evident. Chief Judge Tjoflat, however, made the same argument in Nipper, explaining that lawyers will be deterred from running for office under a cumulative voting system because: (1) if victorious, they will have to begin running for reeleetion from the moment they take office; (2) they will have to compete against every judge up for reelection; and (3) the power of incumbency will no longer ensure retention in office. See Nipper, 39 F.3d at 1546.

I do not understand the reasoning behind the first proposition. I see no reason why judges would have to engage in longer reelection campaigns under a cumulative voting system. In fact, campaigning under a cumulative voting system should be less time consuming. As explained, cumulative voting systems foster campaign strategies of self-promotion and thus do not encourage the additional burden of negative campaigning. Moreover, Alabama trial judges serve lengthy terms — circuit and district judges are elected to a six-year tenure. See Ala. Const, amend. 328, § 6.15 (1973). It remains unclear to me why judges would need six years to run for re-election under a cumulative voting scheme.

Chief Judge Tjoflat’s second and third reasons are contradictory. The second reason *1315states that lawyers will not run for judicial office under a cumulative voting system because they will be faced with the onerous task of having to defeat multiple incumbent judges. The third reason, however, states that the power of incumbency dissipates under a cumulative voting system. Putting this contradiction aside, neither proposition stands on its own merit; both seem concerned with cumulative voting generating increased competition for achieving and retaining judgeships. I do not view increased competition for judicial positions as a negative. In my view, a more competitive process will produce better, more dedicated, judges. In fact, this is the strength of a cumulative voting scheme.

C. Applying the Totality-of-the-Cireum-stances Prong

Although the appellants have made a strong showing of vote dilution under the Gingles factors, their case becomes even more compelling after considering the relevant factors in the totality-of-the-circumstances prong. Indeed, six Senate Report factors strongly weigh in favor of a finding of vote dilution.

1. Extent Blacks Have Been Elected to Public Office

The most important Senate Report factor is the extent to which blacks have been elected to public office. As has already been detailed, only one black lawyer has ever first attained a circuit or district judgeship through election in the ten challenged circuits. That victorious candidate ran unopposed. Of the eighty-four contested judgeship positions, blacks only fill six; all six judges were appointed.

In the ten challenged circuits, black electoral success has largely been limited to single-member districts and majority black counties.18 In 1991, ninety-three percent of black office holders in the counties at issue represented single-member districts or majority black counties. Only six black officials, including five initially appointed to office, served at-large in majority white counties. Of the 213 total officials who served at-large in the majority white counties at issue, 97 percent were white.

2. History of Voting-Related Discrimination

The parties stipulated to the sad history of voting-related discrimination in Alabama. For the sake of brevity, I will relate a mere sampling of this history, and will only begin the chronology after the passage of the Fifteenth Amendment.

In 1893, the Alabama Legislature passed the Sayre Law, a complex election statute specifically intended to disfranchise blacks. The Alabama Legislature, however, was not satisfied, and, at its 1901 constitutional convention, passed a full host of voter qualifications specifically intended to disfranchise the black citizens of Alabama. The following year, the Alabama Democratic Party limited the right to vote in its primary to white males.

After the Supreme Court outlawed white primaries in 1944, Alabama adopted the Boswell Amendment, which required an applicant for the franchise to demonstrate a satisfactory understanding of a section of the United States Constitution. The intent of the Boswell Amendment was to discriminate against applicants on the basis of race. Then, in 1951, Alabama amended its constitution to restrict voter registration to those who could read and write an article of the United States Constitution, and were of “good character.”

In 1957, the Alabama Legislature changed the boundaries of the city of Tuskegee from a four-sided square to a twenty-eight-sided configuration in order to remove black voters from the city. In the same year, the Alabama Legislature, with a discriminatory intent, established a committee to abolish Macon County, whose population was ninety percent black. While the state of Alabama took these discriminatory measures as a whole, individual public officials continuously engaged in a pattern of harassment, intimidation, and brutality against blacks attempting to register to vote.

*1316In 1965, before Congress enacted the Voting Rights Act, the Alabama Legislature adopted a resolution which implored its representatives in Washington to oppose the federal legislation. After Congress passed the Act, intimidation against blacks attempting to register continued. In some instances, officials engaged in a pattern of baseless arrests of prominent black leaders as a means of intimidating black citizens from registering. Also in 1965, in an effort to exclude blacks from participating in state government, the Alabama Legislature passed a racially gerrymandered reapportionment scheme. Until 1966, Alabama required its citizens, with the specific intent of disfranchising black voters, to pay a poll tax. Finally, as late as 1984, blacks were underrepresented as poll officials.

3. Typical Discriminatory Voting Practices

The third Senate Report factor asks whether the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices that may enhance the opportunity for discrimination against a minority group. The at-large, numbered place, and majority vote requirements in the challenged circuits and districts constitute the type of election system that this Senate Report factor contemplates as enhancing the opportunity for discrimination.

It is important to note that this Senate Report factor simply considers whether the state has used “voting practices or procedures that may enhance the opportunity for discrimination against the minority group.” S.Rep. No. 417, at 29, reprinted in 1982 U.S.C.C.A.N. at 206 (emphasis added). Thus, this Senate Report factor is simply concerned with the potential effects of the voting practices; it does not ask whether the state has implemented its voting procedures with a discriminatory intent. In his concurrence, Judge Edmondson seems to believe, mistakenly, that the totality-of-the-circumstances prong requires an inquiry into a state’s intent in implementing its voting system. Such an inquiry may be determinative of a constitutional challenge, but is clearly not essential to a section 2 challenge. See Chisom, 501 U.S. at 384, 111 S.Ct. at 2358 (“In 1982, Congress amended § 2 of the Voting Rights Act to make 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 protects them from constitutional challenge.”) (footnote omitted); Nipper, 39 F.3d at 1548-56 (Hatchett, J., dissenting) (detailing Supreme Court precedent and the Act’s legislative history in response to the assertion that the totality-of-the-cireumstances prong requires a showing of discriminatory intent in the voting community); Pamela S. Karlan, All Over the Map: The Supreme Court’s Voting Rights Trilogy, 1993 Sup.Ct.Rev. 245, 250-51 (“Originally, the liability standard under the Voting Rights Act dovetailed with the constitutional standard. But in 1982 the Act was amended to eliminate the requirement that plaintiffs show a discriminatory purpose; proof of a dilutive effect is enough.”).19

In fact, the appellants challenged the at-large, numbered place system for electing judges on equal protection grounds in the district court, alleging that Alabama has maintained it for discriminatory reasons. The district court rejected their claim. Even though the appellants have not appealed that decision, this may be why the majority and Judge Edmondson feel compelled to note that “there was no evidence that the at-large, majority vote, and numbered place requirements were instituted or are being maintained for discriminatory purposes.” As I have stated, this fact is, for the most part, *1317irrelevant to the holding of this case. Nonetheless, I am compelled to respond to the assertion that this record is without any evidence of Alabama’s discriminatory intent.

The parties stipulated to the following facts: From 1876 to 1976, Mobile County employed a numbered place, at-large system to elect its board of school commissioners in order to discriminate against blacks and to deny them access to political office. Similarly, from 1911 to 1982, the city of Mobile operated under a commission form of government, which employed a numbered place, at-large system; the adoption and maintenance of this system was racially motivated. In 1957, the Montgomery County Commission adopted a numbered place, at-large election system for the purpose of diluting black voting strength and keeping blacks out of office.20

While this evidence does not directly show that Alabama has maintained its at-large, numbered place system of electing judges in order to discriminate against blacks, I find it highly persuasive. It is hard to imagine that Alabama’s motivation for maintaining its at-large, numbered place system of electing judges is completely innocent, while entities throughout the state have implemented and maintained such systems for discriminatory' purposes. In short, it is obvious that Alabama “has used voting practices and procedures meant to discriminate against the African-American community” — the same voting practices and procedures that it uses to elect judges. White, 867 F.Supp. at 1556.

4. Discrimination in Education, Employment, and Health

“[Bjlacks in Alabama have suffered from the state’s discrimination in all aspects of their lives.” White, 867 F.Supp. at 1555. The parties stipulated to Alabama’s discriminatory history in the area of health. For example, until the late 1960s, Alabama’s mental health facilities were segregated, and those that serviced blacks were often inferi- or. The parties also stipulated to Alabama’s long history of discriminating against blacks in employment. For example, until 1972, the Alabama Department of Public Safety refused to hire black state troopers. Although Alabama was prohibited from further employment discrimination in the early 1970s, its progress in employing blacks was minimal. As late as 1976, the state continued to use invalidated examinations that screened out disproportionate numbers of black applicants.

Most relevant to this case, however, is Alabama’s long history of educational discrimination. Until the 1960s, Alabama maintained a segregated school system. Also until the 1960s, the University of Alabama School of Law, the only state-supported law school, refused to admit black applicants. The first black law student enrolled in 1964, but no black students enrolled thereafter until 1968. The first black law student was graduated in 1972.

In conducting the vote dilution inquiry, the district court repeatedly explained that the shortage of black judges was due to a shortage of black lawyers; the district court even implied that, when considering the number of black lawyers, blacks are overrepresented on the bench. SCLC, 785 F.Supp. at 1476-77, 80-87. “First, in assessing the extent to which minority candidates have been elected to public office, the appropriate comparison pool has always been the number of minorities in the population[,]” not the number of potential candidates. LULAC, 999 F.2d at 913 (King, J., dissenting); see also White, 867 F.Supp. at 1562 (“Section 2 is concerned with the political opportunities of ‘members of the electorate.’ The Act was not passed to protect the rights of candidates.”) (quoting 42 U.S.C. § 1973(b)). More importantly, however, the district court turned Alabama’s discrimination against blacks in the field of education — which is supposed to weigh in favor of a finding of vote dilution — on its head; *1318instead of using this factor as a sign of vote dilution, the district court did just the opposite. See LULAC, 999 F.2d at 913 (King, J., dissenting) (“the comparative lack of minority lawyers constitutes evidence of the lingering socio-economic effects of discrimination, which argues in favor of a vote dilution finding”). Thus, the district court could not have applied this factor more incorrectly. In sum, the district court’s reasoning wrongly suggests that “blacks are somehow responsible for their own plight — i.e., for their persistent low enrollment in law school.” LULAC, 999 F.2d at 913 (King, J., dissenting).

5. Racial Appeals in Political Campaigns

Appellants presented evidence of campaigns in which white judicial candidates, who were facing black opponents, made racial appeals. These candidates ran the pictures of their black opponents in newspapers.21 The district court found that these racial appeals were insignificant because the black candidates eventually won their elections. This Senate Report factor, however, does not ask whether the racial appeals were successful; it simply asks whether they were made, and, in this case, they were made.

6. Alabama’s Tenuous Interests (Revisited)

Finally, I have already assessed Alabama’s interests in maintaining its judicial system when I applied the first and second Gingles factors in part III(B). Although I recognize this court’s requirement that I once again weigh the state’s interests, my assessment has not changed since part III(B). All of Alabama’s interests in maintaining its current judicial system are tenuous. Thus, this factor actually weighs in favor of a finding of a section 2 violation.

IV. Conclusion

I have engaged in this exhaustive and repetitive analysis because one of the major shortcomings of the majority’s opinion is that it fails to rigorously apply the law of this circuit, and the relevant facts to that law. After engaging in this step-by-step analysis, it becomes apparent that the appellants have shown racially polarized voting, and, ultimately, a section 2 violation. Because I believe that recircuiting, subdistricting, and cumulative voting are feasible remedies for this violation, I respectfully dissent.

APPENDIX

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

Civil Action No. 88-H-462-N

Filed Dec. 9, 1991.

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF ALABAMA, et al., Plaintiffs, v. JAMES H. EVANS, et al., Defendants.

STIPULATIONS

(Revised 12/9/91)

35. The Alabama Code of 1876 restricted the testimony of blacks to those cases where freedmen, free negroes, or mulattoes were parties; eases where the injury was to freemen, free negroes or mulattoes; or where a freedman, free negro or mulatto was a witness against a white person or vice versa. See Ala.Acts, 1865-1867, p. 98; repealed by Ala.Code, 1967, § 10.

36. For many years, Alabama systematically excluded blacks from grand and petit juries. See Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082 (1935); Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Black v. Curb, 464 F.2d 165 (5th Cir.1972); Seals v. Wiman, 304 F.2d 53 (5th Cir.1962); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966) (three-judge court); Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966).

37. Alabama courtrooms were at times segregated. See “Judge Jones on Courtroom *1319Segregation,” The Alabama Lawyer, Vol. 22 No. 2 (April 1961), at p. 190.

38. Alabama law required the jails and prisons to be segregated until the late 1960’s. See Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966) (three-judge court), aff'd, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1967 [1968]).

39. In a joint resolution commending Governor Wallace “for his prompt action in dispatching the Alabama highway patrol and other law enforcement officers to Birmingham to quell the mob violence in that city,” the Legislature also stated that “the executive branch of the federal government has long assumed a policy of tacit encouragement and active support of irresponsible racist agitators sent into this state to defy our laws and to deliberately inflame unstable emotions into frenzied, savage,

[End of page 1]

racial violence_” AlaAets 1963, pp. 387, 386. In a commendation to the state public safety director and the state highway patrol, the Legislature characterized the disturbance as “depredations upon persons and property incited by trained out of state racist agitators.” AlaActs.1963, p. 388.

40. Until 1972, the Alabama Department of Public safety refused to hire black state troopers. See Paradise v. Prescott, 585 F.Supp. 72 (M.D.Ala.1983), aff'd, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987).

41. After the court ordered the trooper force to be integrated, the State failed to implement a promotion plan that did not have a disparate impact on blacks until at least 1987. See United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987).

42. The Sayre Law, a complex election statute passed in 1893, was expressly designed to legally eliminate blacks from politics in Alabama. “Black voter turnout statistics after 1892 showed that the Sayre Law substantially accomplished its goal of disfranchisement; black participation in terms of voter turnout dropped by twenty-two percent (22%) from 1892 to 1894 and thereafter remained below fifty percent (50%).” See Bolden v. City of Mobile, Alabama, 542 F.Supp. 1050, 1062 (M.D.Ala. [S.D.Ala.] 1982).

43. In 1901, the Alabama Legislature passed an act calling for a constitutional convention in order to permanently restrict state suffrage rights. The primary purpose of the all-white 1901 constitutional convention was to disfranchise the black and poor illiterate white electorate and to remove blacks and poor illiterate whites completely from the political process. The 1901 convention produced a full host of voter qualifications that immediately disfranchised almost every black citizen of Alabama. See Dillard v. Crenshaw County, 640 F.Supp. 1347, 1358 (M.D.Ala.1986); Bolden v. City of Mobile, Alabama, 542 F.Supp. 1050, 1062 (M.D.Ala. [S.D.Ala.] 1982).

44. From 1901 to 1966, Alabama required persons to pay a poll tax in order to vote in any election. The purpose and effect of the poll tax was to disfranchise black voters. Additionally, for those blacks with the ability to pay the poll tax, a greater burden of compliance was placed on them than on whites. See United States v. Alabama, 252 F.Supp. 95 (M.D.Ala.1966) (three-judge court).

45. In 1902 the Alabama Democratic Party limited the right to vote in the Democratic primary to white males who pledged to support the nominees of the Democratic Party. Minutes of the 7/10/02 Democratic State Executive Committee. See Alabama Democratic Party Minutes, Book 5, p. 67, Alabama Department of Archives and History, Range H, Section 3, Shelf A, Box 1.

46. After the U.S. Supreme Court outlawed white primaries in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), the State of Alabama

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adopted the Boswell Amendment which required an applicant for the franchise to demonstrate a satisfactory understanding of a section of the Constitution of the United States. The Amendment was intended to be and was used for the purpose of discriminating against applicants on the basis of race. *1320As of March 1, 1948, the Mobile County Board of Registrars had registered 2800 whites and 104 blacks. See Davis v. Schnell, 81 F.Supp. 872, 876, (S.D.Ala.1949) (three-judge court), aff'd 336 U.S. 932 [933], 69 S.Ct. 749, 93 L.Ed. 1093 (1950 [1949]).

47. Amendment 91 of the Alabama Constitution (adopted in 1951) allowed registration only of those who could read and write any article of the U.S. Constitution in the English language, were of “good character,” and “who embrace the duties and obligations of citizenship.” Boards of registrars were declared to be judicial officers. The Alabama Supreme Court was required to prepare questionnaires to be used by local registrars.

48. The Alabama Supreme Court promulgated a four-page questionnaire that required the applicant to write their name ten times in answer to several questions, explain their business or employment background three times, answer two different questions regarding length of residence in several places, and give their spouse’s place of birth. See U.S. Commission on Civil Rights, Voting: Hearings held in Montgomery, December 8-9, 1958, and January 9, 1957 (1959), pp. 17-20.

49. Ala. Const., Amend. 223 (proposed Amendment No. 2 adopted in 1965), required applicants for voter registration to demonstrate the ability to read and write English. The voters approved the amendment by a margin of 93,647 to 37,137 with a majority in favor in every county. See ADAH, Alabama Official and Statistical Register 1967, pp. 687-88, 707-9.

50. On March 23, 1965, the United States Senate began public hearings on the legislation that became enacted as the Voting Rights Act of 1965. “On the day before [these hearings began], March 22, 1965, the Alabama Legislature adopted a resolution condemning ‘outside agitators, communist sympathizers, and well meaning, but socially ignorant crusaders, [who have] skillfully laid the ground work for such a vicious piece of legislation by stirring up strife and dissension in this area in particular and throughout this country generally.’ The resolution implored Alabama’s congressional delegation in Washington ‘to use every effort and all means available to prevent this vicious proposal from being presented to Congress, and to redouble their efforts to defeat it if it is so introduced.’ ” See Hale County v. United States, 496 F.Supp. 1206, 1210 (D.C.D.C.1980) (three-judge court) (quoting Act No. 98, 1965 AlaActs 112).

51. Prior to the passage of the Voting Rights Act, some public officials in Alabama engaged in a pattern of harassment, intimidation, and brutality against blacks attempting to register

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to vote. See Williams v. Wallace, 240 F.Supp. 100, 104 (M.D.Ala.1965).

52. At least until 1960, the state and many county registrars offices, including Dallas, Macon, Montgomery, Perry, and Wilcox Counties, deliberately and consistently engaged in procedures and practices which favored white applicants to vote and discriminated against black applicants. See United States v. Atkins, 323 F.2d 733 (5th Cir.1963) (Dallas); United States v. Parker, 236 F.Supp. 511 (M.D.Ala.1964) (Montgomery); United States v. Mayton, 335 F.2d 153 (5th Cir.1964) (Perry); Alabama v. United States, 304 F.2d 583 (5th Cir.1964 [1962]) (Macon); United States v. Logan [Logue], 344 F.2d 290 (5th Cir.1965) (Wilcox).

53. After the passage of the Voting Rights Act, intimidation against blacks attempting to register to vote continued. In Dallas County, for example, officials engaged in a pattern of baseless arrests and prosecutions of prominent black leaders as a means of intimidating black citizens from registering. See United States v. McLeod, 385 F.2d 734 (5th Cir.1967); see also Clark v. Boyn-ton, 362 F.2d 992 (5th Cir.1966).

54. In an effort to exclude blacks from participating in state government, the Alabama Legislature, in 1965, passed a racially gerrymandered reapportionment scheme for the state legislature. The unconstitutional plan included the combination of Macon, El-more, and Tallapoosa Counties into one dis*1321trict and Bullock, Pike, Coffee, and Geneva into another. The purpose of these two particular groupings was to dilute the black votes of Macon and Bullock Counties. See Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala.1965).

55. On August 7, 1965, the State of Alabama was certified by the Attorney General of the United States, as a state subject to the provisions of the Voting Rights Act of 1965. Several days later, the Attorney General certified in accordance with Section 6 of the Act that the appointment of federal examiners for Lowndes, Marengo, Perry, and Wilcox Counties was necessary to enforce the guarantees of the Fifteenth Amendment. See Sims v. Baggett, 247 F.Supp. 96, 108 (M.D.1965).

56. At least until 1984, there was an under-representation of black poll officials. One county with a substantial black population (26.2%) had no black poll officials. Among poll officials, disproportionately few blacks served as chief inspector, chief clerk, and returning officer. See Harris v. Graddick, 593 F.Supp. 128, 131-32 (M.D.Ala.1984).

57. At least until 1980, strong racially polarized voting existed in Hale County, Alabama. See Hale County, Alabama v. United States, 496 F.Supp. 1206, 1213 (D.C.D.C.1980) (three-judge court).

[End of page 4]

58. In 1965, the form of election system for Hale County Commissioners was changed from single member districts to an at-large election system (with sub-district residency requirements). See Hale County, Alabama v. United States, 496 F.Supp. 1206, 1216 (D.C.D.C.1980) (three-judge court).

59. From 1876 to 1976, Mobile County elected its Board of School Commissioners by a numbered place, at-large election system. The purpose of this system and its effect was to discriminate against blacks and to deny them access to the political process and political office. See Brown v. Board of School Commissioners of Mobile County, Alabama, 706 F.2d 1103, 1107 (11th Cir.), aff'd, 464 U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983).

60. From 1911 to 1982, the City of Mobile operated under a commission form of government elected by a numbered place, at-large system. The adoption and maintenance of this system was racially motivated. See Bol-den v. City of Mobile, Alabama, 542 F.Supp. 1050 (M.D.Ala. [S.D.Ala.] 1982).

61. At least until 1982, racially polarized voting occurred in Mobile County. See Brown v. Board of School Commissioners of Mobile County, Alabama, 542 F.Supp. 1078, 1091 (S.D.Ala.1982), aff'd, 464 U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983); Bolden v. City of Mobile, Alabama, 542 F.Supp. 1050, 1062 (M.D.Ala. [S.D.Ala.] 1982).

62. After black members were elected to the Mobile County Board of School Commissioners, the School Board changed the powers of the Commissioners so as to enhance the voting power of the white commissioners. This change was intended to dilute black voting strength. See Brown v. Board of School Commissioners of Mobile County, Alabama, 542 F.Supp. 1078, 1107 (S.D.Ala.1982), aff'd, 464 U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983).

63. Act 685, passed in 1957, instituted a numbered place, at-large election system for the Montgomery County Commission. The purpose and effect of this system was to dilute black voting strength and to keep blacks from being elected to office. See Hendrix v. McKinney, 460 F.Supp. 626, 630 (M.D.Ala.1978).

64. At least until 1978, voting in Montgomery County was, to a substantial degree, polarized by race. See Hendrix v. McKinney, 460 F.Supp. 626, 630 (M.D.Ala.1978).

65. In 1983, the City of Montgomery enacted a plan for the City Council that reduced the black voting age population in one district. The purpose of the plan was to dilute the voting strength of blacks in that district. See Buskey v. Oliver, 565 F.Supp. 1473 (M.D.Ala.1983).

66. At least until 1975, blacks in the City of Dothan in Houston County were excluded from every phase of the local

*1322[End of page 5]

political process. See Yelverton v. Driggers, 370 F.Supp. 612 (M.D.Ala.1974).

67. The at-large election system (with sub-district residency requirements) for the Dothan City Commissioners had the effect of diluting the political power of blacks in the city. See Yelverton v. Driggers, 370 F.Supp. 612 (M.D.Ala.1974).

68. In 1957, the Alabama Legislature enacted Local Act No. 140, redefining the boundaries of the City of Tuskegee in Macon County. The purpose of the act, which changed the boundaries from a four-sided square to a twenty-eight-sided configuration, was to remove from the City all but four or five 400 black voters. Not a single white voter or resident was removed by the change. See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

69. In 1957, the Alabama Legislature established a committee to abolish Macon County, whose population was 90 percent black. The purpose of this committee “was to maintain segregation.” The Committee’s creation was consistent with the notion that “[o]nly merging Macon County into the surrounding counties ... would preclude blacks from being elected to public office, including the Macon County Commission.” See Hendrix v. McKinney, 460 F.Supp. 626, 628 (M.D.Ala.1978).

70. From 1956 to 1964, the Attorney General of Alabama and the Alabama Supreme Court attempted to exclude the NAACP from operating in Alabama. The NAACP was encouraging black citizens to assert their constitutional rights and to protest against segregation. See NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).

71. Until the 1960’s, Alabama maintained a segregated school system. The education opportunities accorded to black students were inferior to opportunities accorded to white students. See Lee v. Macon County Board of Ed., 231 F.Supp. 743 (M.D.Ala.1964) (three-judge court).

72. Deleted by agreement.

73. Until the 1960’s, the University of Alabama School of Law (the only state supported law school in Alabama) had a practice of refusing admission to black applicants. The first black student to enroll in the University of Alabama School of Law enrolled in 1964. There were no black students enrolled during the school years 1965 through 1968. The first black law student to graduate graduated in 1972.

74. For most of this century, blacks were excluded from public parks, see Gilmore v. City of Montgomery, 176 F.Supp. 776 (M.D.Ala.1959), modified, 277 F.2d 364 (5th Cir.1960), recreational facilities, see Smith v. Y.M.C.A, 316 F.Supp. 899 (M.D.Ala.), aff'd as modified, 462 F.2d 634 (5th Cir.1970 [1972]);

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Faulkner v. City of Gadsden, 9 Race Rel. L.Rep. 876 (1964), public libraries and museums, see Cobb v. Montgomery Library Board, 207 F.Supp. 880 (M.D.Ala.1962), and public golf courses, See Sawyer v. City of Mobile, 208 F.Supp. 548 (S.D.Ala.1961).

75. Until the late 1960’s, Alabama mental health facilities were segregated, and those that serviced blacks were often inferior. See Marable v. Alabama Mental Health Board, 297 F.Supp. 291 (M.D.Ala.1969) (three-judge court).

76. Until the early 1960’s, Alabama law required most forms of public transportation to be segregated. See United States v. City of Montgomery, 201 F.Supp. 590 (M.D.Ala.1962) (municipal airport facilities); Lewis v. Greyhound Corp., 199 F.Supp. 210 (M.D.Ala.1961) (bus terminals); Browder v. Gayle, 142 F.Supp. 707 (M.D.Ala.) (three-judge court), aff'd mem., 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956) (city buses).

77. The State of Alabama has a long history of discriminating against blacks in employment. See United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970). Although the state was prohibited in 1970 from further discrimination, its progress in employing blacks was minimal and, at many state agencies, nonexistent as late as 1976. See United States v. Frazer, 14 Empl.Prac.Dec. (CCH) *1323¶ 7599 at 4933, 1976 WL 729 (M.D.Ala.1976). As late as 1976, the state continued to use invalidated examinations that screened out disproportionate numbers of black applicants. Id., at 4931.

78. Alabama law, until 1975, defined race. Ala.Code, 1907, p. 218, Section 2 provided: “The term ‘negro’ within the meaning of this Code includes mulatto. The term ‘mulatto,’ or ‘person of color,’ ... is a person of mixed blood, descended on the part of the father or mother from negro ancestors, to the fifth generation inclusive, though one ancestor of each generation may have been a white person.” (The fifth generation was substituted for the third generation by the Code Committee of the 1907 Code. Prior to this, the third generation was the term used in the laws.) Ala.Laws, 1927, p. 716, redefined mulatto to include a person descended “from negro ancestors, without reference to or limit of time or number of generations removed.” The recodification of this section, Ala.Code, tit. 1, § 2 (1940), includes the following Editor’s Note:

Prior to 1927 a person was a “negro” if descended on the part of the father or mother from negro ancestors, to the fifth generation inclusive, although one ancestor may have been a white person. See Code 1923, § 2(5). At this time there was a great diversity among the states as to the legal definition of a “negro,” which resulted in the regrettable situation of a person today being legally a white person, and tomorrow after a short

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migration, being legally a colored person. In 1927, the legislative bodies of a great many states, working along with same line, amended their statutes so as to define the term as defined in the instant section. This definition, while a strict one, has the advantage of being sure and uniform.

Ala.Code, 1975, § 1-1-10 eliminated the word “Negro” from its definitions.

79. After the passage of the Civil Rights Act of 1957, some state and local officials in Alabama resisted efforts by the federal gov-eminent to investigate possible violations of the Act. Oftentimes, the United States had to resort to federal court to subpoena witnesses and records from various officials. See In Re Wallace, 170 F.Supp. 63 (M.D.Ala.1959); State of Alabama ex rel[.] Gallion [v. Rogers], 187 F.Supp. 848 (M.D.Ala.1960), aff'd 85 [285] F.2d 430 (5th Cir.), cert. denied, 366 U.S. 913, 81 S.Ct. 1085, 1086, 6 L.Ed.2d 236, 237 (1961); Kennedy v. Bruce, 98 [298] F.2d 860 (5th Cir.196 [1962]).

80. At least until 1986, racially polarized voting existed in Dallas County. See United States v. Dallas County Commission, 636 F.Supp. 704 (S.D.Ala.1986).

81. From 1901 to 1986, the form of election system for the Dallas County Commission — at large, with numbered posts — operated to dilute the voting strength of black citizens. See United States v. Dallas County Commission, 636 F.Supp. 704 (S.D.Ala.1986).

82. At present there are 68 probate judges in the State of Alabama. The four who are black are elected from black majority voting age population counties.

Done this 2nd day of December, 1991.

/s/ Richard Cohen

Richard Cohen

Elizabeth Johnson

Attorneys for Plaintiffs

Southern Poverty Law Center Montgomery, Alabama

[End of page 8]

/s/ David R. Boyd David R. Boyd

One of the Attorneys for Defendants Balch & Bingham Montgomery, Alabama

[End of page 9]

. See, e.g., United States v. Dallas County Comm'n, 850 F.2d 1433, 1440 (11th Cir.1988) (“evidence reveals[] a distinct pattern of racially polarized voting” in Dallas County), cert. denied, 490 U.S. 1030, 109 S.Ct. 1768, 104 L.Ed.2d 203 (1989); United States v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir.) (finding existence of racial bloc voting and stating “[r]ace is, as it has been since blacks were allowed to vote, the main issue in Marengo County politics”), cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984); Hendrix v. Joseph, 559 F.2d 1265, 1270 (5th Cir.1977) ("[V]oting in Montgomery County is polarized along racial lines....”); Nevett v. Sides, 533 F.2d 1361, 1369 (5th Cir.1976) ("There is clear evidence that there is a polarization of votes by those who do vote in the City of Fairfield on city elections.”); Dillard v. Town of Louisville, 730 F.Supp. 1546, 1549 (M.D.Ala.1990) (finding "substantial racially polarized voting” in the town of Louisville); Dillard v. Town of Cuba, 708 F.Supp. 1244, 1246 (M.D.Ala.1988) ("substantial racially polarized *1299voting" in the towns of Cuba and Waldo); Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870, 874 (M.D.Ala.1988) ("racially polarized voting in Chilton County”), aff'd, 868 F.2d 1274 (11th Cir.1989); Dillard v. Baldwin County Comm'n, 694 F.Supp. 836, 842 (M.D.Ala.) (“[TJhere is extensive racial polarization in [Baldwin] County.”), amended, 701 F.Supp. 808 (M.D.Ala.), aff'd, 862 F.2d 878 (11th Cir.1988); Dillard v. Crenshaw County, 649 F.Supp. 289, 295 (M.D.Ala.1986) ("|T]he evidence reflects that racially polarized voting in Calhoun, Lawrence, and Pickens Counties is severe and persistent. ..."), remanded on other grounds, 831 F.2d 246 (11th Cir.1987); Buskey v. Oliver, 565 F.Supp. 1473, 1482 (M.D.Ala.1983) (racially polarized voting in the city of Montgomery); Brown v. Board of School Comm'rs of Mobile County, Ala., 542 F.Supp. 1078, 1094 (S.D.Ala.1982) ("whites vote as a bloc against any black candidate” in Mobile County), aff'd, 706 F.2d 1103 (11th Cir.), aff'd, 464 U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983); Hale County, Ala. v. United States, 496 F.Supp. 1206, 1212 (D.D.C.1980) (whites engage in racial bloc voting in Hale County).

. See, e.g., Presley v. Etowah County Comm'n, 869 F.Supp. 1555 (M.D.Ala.1994) (county commission); Dillard v. City of Greensboro, 865 F.Supp. 773 (M.D.Ala.1994) (city council); Harris v. Siegelman, 700 F.Supp. 1083 (M.D.Ala.1988) (state poll officials); United States v. Marengo County Comm’n, 643 F.Supp. 232 (S.D.Ala.1986) (county board of education), aff'd, 811 F.2d 610 (11th Cir.1987); Bolden v. City of Mobile, Ala., 542 F.Supp. 1050 (S.D.Ala.1982) (city commissioners).

. Because these factors are derived from the Senate Report accompanying the 1982 amendments to section 2, they are known as the Senate Report factors.

. Since racially polarized voting is vital to a dilution claim, the Supreme Court, as explained earlier, has included this Senate Report factor as one of the three required preconditions. See Gingles, 478 U.S. at 48-49, 106 S.Ct. at 2765-66. Thus, the extent to which members of the minority group have been elected to public office stands as the most important Senate Report factor to consider under the totality-of-the-circumstances prong.

.It should be emphasized that this formulation of the first two Gingles factors only applies to section 2 challenges involving judicial elections.

. For example, in 1990, Alabama altered the geographical composition of the Fortieth Circuit.

. In Nipper, the entire court found that the section 2 plaintiffs had satisfied the third Gingles factor. The discussion of the third factor is located in part IV of Chief Judge Tjoflat's leading opinion, in which Judge Anderson joined. In my dissent, in which Judge Kravitch joined, I did not *1304disagree with the Chief Judge’s analysis of the third Gingles factor, and specifically noted that the court had found "that a vote dilution occurred.” Nipper, 39 F.3d at 1547 (Hatchett, J., dissenting).

. Although this holding appears in Judge Kravitch's special concurrence, all ten judges of the en banc court agreed that racially polarized voting had been established as a matter of law. See Nipper, 39 F.3d at 1537 (noting that the entire court agreed with this portion of Judge Kravitch's special concurrence).

In Solomon, black candidates had lost six elections for county office. The determinative factor, however, was not that black candidates had lost six elections, but that they had never won one. Indeed, the fact that a minority candidate has never run for the particular office at issue "does not foreclose a vote dilution claim.” Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25. "To hold otherwise would allow voting rights cases to be defeated at the outset by the veiy barriers to political participation that Congress has sought to remove.” Westmego, 872 F.2d at 1209 n. 9; see also McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir.1984) ("the lack of black candidates is a likely result of a racially discriminatory system"). Thus, "[w]here a minority group has never been able to sponsor a candidate, courts must rely on other factors that tend to prove unequal access to the electoral process.” Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25. As the preceding paragraph in the text illustrates, these other factors primarily include the white crossover vote in elections for any office in which both a black and white candidate competed.

.In focusing on these elections, the district court primarily relied on the analysis of the appellees' expert, Dr. Ronald Weber. The district court should have relied on the statistical evidence concerning the white crossover vote in biracial elections, which the appellants' expert, Dr. Allan Lichtman, provided. Ironically, both of these experts also presented evidence in Nipper, where this court credited Dr. Lichtman's analysis.

. Some black candidates have won re-election contests after being appointed, but none has ever first attained office after winning a contested election.

. A copy of the parties' stipulation is attached as an appendix.

. One of the judges was appointed after the appellants filed this lawsuit.

. The chart groups circuit and district judges in the Tenth, Thirteenth, Fifteenth, and Twenty-Sixth Circuits. For example, the Tenth Circuit has twenty-four circuit judges and eleven district judges. The chart simply lists the number of judgeships as thirty-five.

. Appellees, however, did contend, and the district court ultimately found, that the appellants had failed to satisfy the first Gingles factor in one circuit, the Seventh. Since the majority does not discuss this holding, I simply say that I disagree with the district court, and believe that the appellants have satisfied the first Gingles factor in the Seventh Circuit.

. These figures are based on the number of circuit court cases filed in the respective counties in 1990. This data is contained in the Alabama Judicial System Annual Report for the 1990 fiscal year (October 1, 1989, through September 30, 1990). This report is included in the record as defendant's exhibit 43.

. The following statistics are included in defendant’s exhibit 76.

. These statistics are included in defendant's exhibit 43. See supra note 15.

. The following statistics are included in plaintiff's exhibits eighty-seven and eighty-eight.

. A showing of discriminatory intent is helpful in proving a section 2 claim. But, a failure to show a state's discriminatory intent does not in any way hamper a minority voter's ability to show a section 2 violation. In other words, the issue of discriminatory intent can only help, and cannot hurt, a section 2 plaintiff. Judge Edmondson is simply incorrect when he states that a failure to show discriminatory intent can, "[w]ith a single stroke, strike in favor of [the state] the balance of circumstances[,]” for the state's discriminatory intent is not required in this Senate Report factor, or in any of the other factors in the totality-of-the-circumstances prong. Put simply, the law is overwhelmingly clear that section 2 does not require minority voters to show a state’s discriminatory intent in implementing its voting system.

. I have chosen to simply set out the stipulated facts. I note, however, that the appellants presented evidence that the Alabama legislature enacted Act 221, which implemented a numbered place system for electing all multimember officials, with a discriminatory intent. Appellants also presented evidence that Act 221 was meant to apply to judicial elections. The majority and Judge Edmondson may not wish to accept this evidence, but to say that the record is completely devoid of such evidence is simply not true.

. Unfortunately, it appears that these racial appeals still occur in Alabama. The 1994 Democratic primary for state auditor involved the same campaign tactic. See White, 867 F.Supp. at 1556.