United States v. Jones

United States Court of Appeals,

Eleventh Circuit.

No. 94-6455.

UNITED STATES of America, Plaintiff-Appellant,

Curtis Williams, Intervenor-Plaintiff-Movant,

v.

John W. JONES, Jr.; W.D. Nichols; W.A. Kynard; Gwendolyn Mock
Shaw, Defendants-Intervenors-Defendants-Appellees,

Erskine Minor, In his official capacity as member of the Dallas
County Commission; Perry Varner, In his official capacity as
member of the Dallas County Commission; Curtis Williams, In his
official capacity as member of the Dallas County Commission; Deans
Barber, In his official capacity as member of the Dallas County
Commission; Roy Moore, In his official capacity as member of the
Dallas County Commission; John Lide; Dallas County Board of
Registrars; Ed Vancil, In his official capacity as duly appointed
member of the Dallas County Board of Registrars; Joe Peasant, In
his official capacity as duly appointed member of the Dallas County
Board of Registrars; Marie Foster, In her official capacity as
duly appointed member of the Dallas County Board of Registrars,
Defendants-Appellees,

Dorothy Pettway; Issac Lawson; Barbara Pritchett; Frank
Anderson; Alphonso Johnson, Movants.

July 7, 1995.

Appeal from the United States District Court for the Southern
District of Alabama. (No. CV-93-0745-CB-M), Charles R. Butler, Jr.,
Chief Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*, Senior
Circuit Judge.

KRAVITCH, Circuit Judge:

The issue presented in this case was whether votes cast by

voters inadvertently assigned to the wrong district constituted a

violation of the Voting Rights Act. The district judge ruled that

there was no violation. We AFFIRM.

*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
 I.

On March 26, 1992, the County Commission of Dallas County,

Alabama adopted a redistricting plan for its upcoming elections.

The plan provided for five single-member districts, three with

black majorities and two with white majorities. The redistricting

plan was pre-cleared by the Department of Justice pursuant to

Section 5 of the Voting Rights Act on May 12, 1992 and survived a

Section 2 challenge by a white plaintiff. Rollins v. Dallas County

Commission, 92-0242-B-C, 1992 WL 611861 (S.D.Ala. May 13, 1992).

Dallas County election officials attempted to notify affected

voters regarding the redistricting and place voters in the correct

district. Much confusion surrounded the transfer of voters among

districts, however, and some residents voted in the wrong district

in both the June 2, 1992 primary election and the November 3, 1992

general election.

The general election for the District 2 seat on the County

Commission pitted white candidate John Lide against black candidate

Curtis Williams. Initial election results showed that Williams

defeated Lide by four votes. Lide challenged the election results

in state court. After reviewing challenged ballots, the Circuit

Court of Dallas County determined that Lide had won the election by

ten votes. The Alabama Supreme Court affirmed. Williams v. Lide,

628 So.2d 531 (Ala.1993).

After the Alabama Supreme Court's decision in favor of Lide,

plaintiff United States of America filed the instant suit in the

United States District Court for the Southern District of Alabama,

challenging the election results under Section 2 of the Voting
Rights Act and under the Fourteenth and Fifteenth Amendments of the

United States Constitution.1 The complaint alleged that Dallas

County election officials had permitted approximately seventy white

voters who lived outside District 2 to vote in the District 2

election, therefore depriving District 2 black voters of an equal

opportunity to elect their preferred candidate and participate

effectively in the political process. 2 The suit further alleged

that the defendants had acted with the purpose and effect of

discriminating against black voters in Dallas County.

After a bench trial, the district court ruled in favor of the

defendants. Appellant raises two issues on appeal:

(1) whether Dallas County election officials' failure to
ensure that voters were placed in the proper election
districts and their resulting incorrect counting of the
out-of-district ballots of over 50 white voters constitutes a
"standard, practice, or procedure' subject to challenge under
Section 2 of the Voting Rights Act, [and] (2) whether, under
the totality of circumstances, defendants' conduct in counting
the out-of-district ballots of over 50 white voters and
allowing these votes to determine the outcome of the election
violates Section 2 of the Voting Rights Act.

Brief for Appellant at 2.3

We review the district court's findings in Voting Rights Act

cases for clear error, giving "special deference to the district

court due to its "special vantage point' and ability to conduct an

1
The suit named as defendants Probate Judge John Jones,
Sheriff W.D. Nichols, Circuit Court Clerk W.A. Kynard, Chief
Inspector Gwendolyn Mock Shaw, candidate John Lide, the County
Commission and its members, and the Board of Registrars and its
members. Curtis Williams was added as a plaintiff-intervenor.
2
The government later narrowed its challenge to 52
out-of-district white voters who voted for Lide.
3
Appellant does not appeal the district court's rejection of
the Constitutional challenge.
"intensely local appraisal of the design and impact of' a voting

system." Lucas v. Townsend, 967 F.2d 549, 551 (11th Cir.1992)

(citing Thornburg v. Gingles, 478 U.S. 30, 79-80, 106 S.Ct. 2752,

2781, 92 L.Ed.2d 25 (1986) and White v. Regester, 412 U.S. 755,

769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973)). We may correct

a district court's errors of law and its findings of fact based

upon misconceptions of law. Meek v. Metropolitan Dade County,

Fla., 985 F.2d 1471, 1481 (11th Cir.1993).

II.

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

provides that,

(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color, or
in contravention of the guarantees set forth in section
1973b(f)(2) of this title, as provided in subsection (b) of
this section.

A Section 2 violation is established if,

based on the totality of the circumstances, it is shown that
the political processes leading to nomination or election in
the State or political subdivision are not equally open to
participation by members of a class of citizens protected by
subsection (a) of this section in that its members have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice. The extent to which members
of a protected class have been elected to office in the State
or political subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected class
elected in numbers equal to their proportion in the
population.

42 U.S.C. § 1973(b).

Accordingly, a plaintiff bringing a Section 2 claim must

prove that (1) the challenged situation constituted a
qualification, prerequisite, standard, practice, or procedure and

(2) as a result of the challenged situation, members of a protected

class had "less opportunity than other members of the electorate to

participate in the political process and to elect representatives

of their choice." Id. See generally Gingles, 478 U.S. at 47, 106

S.Ct. at 2764. Proof of an intent to discriminate is not required.

Chisom v. Roemer, 501 U.S. 380, 384, 111 S.Ct. 2354, 2358, 115

L.Ed.2d 348 (1991).

Section 2 not only applies to permanent structural barriers

but also to "practices which, while episodic ..., result in the

denial of equal access to any phase of the electoral process for

minority group members." S.Rep. No. 417, 97th Cong., 2d Sess. 28,

30 (1982) U.S. Code Cong. & Admin.News 1982 pp. 177, 205-207. See,

e.g., Toney v. White, 488 F.2d 310 (5th Cir.1973) (en banc)

(discriminatory purge of voters from polls violated Section 2)4;

Welch v. McKenzie, 765 F.2d 1311 (5th Cir.1985) (fraudulent ballots

did not violate Section 2).

III.

Applying the foregoing legal principles to this case, we

conclude that the District 2 elections did not violate Section 2 of

the Voting Rights Act.5
A.

Appellant asks us to conclude that the events which led to

4
Fifth Circuit cases decided before October 1, 1981, are
binding precedent in this circuit. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
5
Our conclusion rests on the district court's findings of
fact, which we hold are not clearly erroneous. United States v.
Jones, 846 F.Supp. 955 (S.D.Ala.1994) (district court opinion).
out-of-district voting constituted a standard, practice, or

procedure under Section 2. We are hesitant to do so. The

misallocation of voters was not the result of any deliberate act by

defendants.6 Under the redistricting plan, residents along the

eastern border of District 2 who lived outside Selma city limits

were to vote in District 2. Most of the challenged voters lived in

the Pine Forest subdivision and were included in District 2 because

of a years-old incorrect map which showed all of Pine Forest to be

outside Selma's city limits. Others lived on the odd-numbered side

of Wright Drive and were erroneously included in District 2 because

of the peculiar way residences on the street are numbered. The

remaining contested voters also lived just outside the District 2

line and their inclusion in District 2 resulted from similar

errors. In light of these facts, we agree with the district

court's conclusion that the misallocations were "run-of-the-mill

mistakes" and "are no more than the type of errors one would expect

in the normal course of any election, and especially in the

circumstances surrounding the necessity of the Board of Registrars

focusing in a very short time on relocating some 2,000 to 3,000

voters in the new District 2 alone." Jones, 846 F.2d at 959, 962.

The racial makeup of the organizations involved in assigning

voters to districts supports this conclusion. Two of the three

members of the Board of Registrars, including its chairman, were

6
Appellant contends that defendants' conduct leading up to
the election constitutes a deliberate failure to act which
resulted in the out-of-district voting. We disagree and thus do
not reach the question of whether a deliberate failure to act can
constitute a standard, practice, or procedure under the Voting
Rights Act.
black. One of the three deputy registrars who worked in the

Probate Judge's office was black. The County Commission had three

black members and two white members. The presence of black

representation certainly does not require us to conclude that no

Voting Rights Act violation occurred. In light of the other

circumstances of this case, however, as the district court

suggested, "[u]nless the court is to assume that white officials

were somehow so much cannier than their black counterparts as to be

both fully aware of and able to manipulate 52 white voters into

District 2, the most logical conclusion is that the illegal voters

were accidents, not pawns." Jones, 846 F.Supp. at 963.

We have found no case holding that an inadvertent error can

constitute a standard, practice, or procedure under Section 2. As

the district court correctly noted, the text of the act contains no

reference to inadvertent error. Standard is defined as "something

that is established by authority, custom, or general consent as a

model or example to be followed." Webster's Third New
7
International Dictionary 2223 (Philip B. Govie, ed. 1986).

Practice is defined as the "performance or operation of something,"

"performance or application habitually engage in," or "repeated or

customary action." Id. at 1780. Procedure is defined as "a

particular way of doing or of going about the accomplishment of

something." Id. at 1807. Even in light of the Supreme Court's

mandate that we construe the Voting Rights Act broadly and

7
The Voting Rights Act does not define standard, practice or
procedure. Holder v. Hall, --- U.S. ----, ---- - ----, 114 S.Ct.
2581, 2619-20, 129 L.Ed.2d 687 (1994) (Blackmun, J., dissenting).
 8
consistent with its purpose and historical experience, we

nonetheless conclude that the challenged errors did not constitute

a Section 2 standard, practice, or procedure.

B.

Even if the challenged errors were standards, practices, or

procedures, we are not convinced that black voters faced an unequal

opportunity to participate in the electoral process. As required

by Section 2's language, we have evaluated the totality of the

circumstances. Johnson v. DeGrandy, --- U.S. ----, ---- n. 9, ----

, 114 S.Ct. 2647, 2656 n. 9, 2657, 129 L.Ed.2d 775 (1994) ("The

ultimate conclusions about equality or inequality of opportunity

were intended by Congress to be judgments resting on comprehensive,

not limited, canvassing of relevant facts.") (listing relevant

factors).9

Despite the misallocation of voters, blacks still constituted

a majority of District 2's voting population. Without the 52 white

voters, District 2 had a population of 9,354 which was 65.4% black.

Including the 52 voters, District 2 had a population of 9,406 which

was still 65% black. In light of these figures, the district court

concluded that "there is no evidence that the defendants'

inactivity was designed or carried out in a fashion that would

solely injure the interests of black voters; any errors which

8
Holder, --- U.S. at ---- - ----, 114 S.Ct. at 2619-20
(Blackmun, J., dissenting); Chisom, 501 U.S. at 403, 111 S.Ct.
at 2368 (quoting Allen v. State Board of Elections, 393 U.S. 544,
567, 89 S.Ct. 817, 832, 22 L.Ed.2d 1 (1969)).
9
But see S.Rep. at 30 ("[T]he proof sufficient to establish
a[n episodic] violation [does] not necessarily involve the same
factors as the courts have utilized when dealing with permanent
structural barriers.")
likely would have resulted from the defendants' alleged failure to

do their jobs would have likely affected all districts." Jones,

846 F.Supp. at 961.10

Appellant suggests that the mere proof that the candidate

preferred by the majority was defeated by a razor thin margin

mandates a conclusion that Section 2 has been violated. We

disagree. "[T]he inability to elect representatives of their

choice is not sufficient to establish a violation unless, under the

totality of the circumstances, it can also be said that the members

of the protected class have less opportunity to participate in the

political process." Chisom, 501 U.S. at 397, 111 S.Ct. at 2365.

Accordingly, because we conclude that blacks still had

sufficient opportunity to elect Williams, Section 2 was not

violated. While we cannot ignore the history of racial

discrimination in Dallas County, it does not outweigh the other

circumstances in this case.11

10
Interestingly, the misallocation actually may have helped
black candidates in past city elections. The district court
noted that "these [challenged white] voters were not allowed to
vote in [the] city elections during a period when [it] went from
being a white majority city to a black majority one." Jones, 846
F.Supp. at 963.
11
A claim of Section 2 vote dilution generally requires
proof of three threshold factors: (1) that a minority group is
sufficiently large and geographically compact to constitute a
majority in a single member district; (2) that a minority group
is politically cohesive; and (3) that the white majority votes
sufficiently as a bloc to enable it usually to defeat the
minority's preferred candidate. See Gingles, 478 U.S. at 49-53,
106 S.Ct. at 2766-67. Because we conclude that Section 2 was not
violated under the totality of the circumstances we need not
determine whether the Gingles threshold factors were present in
this case. DeGrandy, --- U.S. at ----, 114 S.Ct. at 2657 (proof
of Gingles factors necessary but not sufficient to establish vote
dilution); Nipper v. Smith, 39 F.3d 1494, 1512 (11th Cir.1994)
(en banc) (same), cert. denied, --- U.S. ----, 115 S.Ct. 1795,
 IV.

The Fifth Circuit has stated that "stolen elections in which

the losing candidate was black are, while decidedly suspicious, not

necessarily violations of the Voting Rights Act or Constitution."

Welch, 765 F.2d at 1316-17. We agree. By its own terms, Section

2 of the Voting Rights Act does not provide a forum for

garden-variety election disputes such as this.12 The statute

expresses Congress's clear intent to limit relief to standards,

practices, or procedures which negatively impact the voting rights

of a group on account of its members' race or color. Because we

conclude that insufficient circumstances exist in this case to meet

the statute's standard, we AFFIRM.

131 L.Ed.2d 723 (1995).
12
We note that in the prior state court proceeding, Williams
did not contest the 52 votes challenged here. Williams v. Lide,
628 So.2d 531 (Ala.1993). In our view, the state court would be
the proper forum for this type of election dispute.