White v. State of Alabama

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-7024, 94-7081.

Hoover WHITE, for himself and on behalf of all other persons
similarly situated; John A. Dillard, for himself and on behalf of
all other persons similarly situated; Glenn Moody, for himself and
on behalf of all other persons similarly situated, Plaintiffs-
Appellees,

Ralph E. Bradford, Sr., Intervenor-Plaintiff-Appellant,

Christopher Boehm; John Curry; Jack Williams; Mark G. Montiel,
Intervenors-Plaintiffs,

v.

The STATE OF ALABAMA; James Bennett, in his official capacity as
Secretary of State for the State of Alabama, Defendants-Appellees.

Hoover WHITE, for himself and on behalf of all other persons
similarly situated; John A. Dillard, for himself and on behalf of
all other persons similarly situated; Glenn Moody, for himself and
on behalf of all other persons similarly situated, Plaintiffs-
Appellees,

Ralph E. Bradford, Sr., Christopher Boehm, Intervenors-
Plaintiffs,

Johnny Curry; Jack Williams; Mark G. Montiel, Intervenors-
Plaintiffs-Appellants,

v.

The STATE OF ALABAMA, James Bennett, in his official capacity as
Secretary of State for the State of Alabama, Defendants-Appellees.

Jan. 24, 1996.

Appeals from the United States District Court for the Middle
District of Alabama. (No. CV-94-T-094-N), Myron H. Thompson,
District Judge.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and GOODWIN*,
Senior Circuit Judge.

TJOFLAT, Chief Judge:

*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
 The members of Alabama's appellate courts—the Supreme Court,

the Court of Criminal Appeals, and the Court of Civil Appeals1—are

elected to office in at-large partisan elections. 2 In this case,

Hoover White, a black voter and representative of a class of all

black voters in Alabama,3 contends that this at-large election

scheme dilutes the voting strength of black voters in Alabama in

violation of section 2 of the Voting Rights Act because it affords

black voters, on account of their race, "less opportunity [than

white voters] ... to participate in the political process and to

elect representatives of their choice." Voting Rights Act of 1965,

Pub.L. No. 89-110, § 2(b), 79 Stat. 437, 42 U.S.C. § 1973(b)

(1988). White also contends that the challenged at-large election

scheme denies Alabama's black voters the equal protection of the

laws guaranteed them by the Fourteenth Amendment. He seeks

injunctive relief sufficient to remedy these deficiencies in the

method of electing Alabama's appellate judges. Finally, White

1
The judicial power of Alabama is vested exclusively in a
"unified judicial system" consisting of, at the appellate level,
a Supreme Court, a Court of Criminal Appeals, and a Court of
Civil Appeals. Ala. Const. amend. 328, § 6.01(a). The Supreme
Court consists of "one chief justice and such number of associate
justices as may be prescribed by law." Id. § 6.02(a). The
courts of appeals consist of "such number of judges as may be
provided by law." Id. §§ 6.03(a), (b).
2
The Alabama Constitution provides that the justices of the
Supreme Court and the judges of the courts of appeals are
"elected by vote of the electors within the territorial
jurisdiction of their respective courts." Ala. Const. amend.
328, § 6.13 (1973). Such elections are part of Alabama's
partisan general election scheme for state office holders. See
generally Ala.Code tit. 17 (1995).
3
Joining White as plaintiffs and class representatives are
John Dillard and Glenn Moody, both of whom are black voters. We
refer to these plaintiffs collectively as "White."
claims that the legislature's alteration of the structure and

composition of Alabama's appellate courts, in 1969 and on two

subsequent occasions, has not been precleared under section 5 of

the Voting Rights Act. He seeks an order declaring the

legislature's actions inoperative. See 42 U.S.C. § 1973c (1988).4
Shortly after White commenced this action, his attorneys and

the Attorney General of Alabama entered into settlement

negotiations; these negotiations led to an agreement which the

4
Section 5 of the Voting Rights Act requires certain states,
including Alabama, to obtain either judicial preclearance from
the United States District Court for the District of Columbia or
administrative preclearance from the Attorney General of the
United States before altering "any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting...." 42 U.S.C. § 1973c. Section 5 applies to
judicial elections, Clark v. Roemer, 500 U.S. 646, 111 S.Ct.
2096, 114 L.Ed.2d 691 (1991), and thus may apply to the
legislative enactments involved in this case.

If "voting changes subject to § 5 have not been
precleared, § 5 plaintiffs[, such as White in this case,]
are entitled to an injunction prohibiting the State from
implementing the changes." Id. at 652-53, 111 S.Ct. at
2101. Such relief may not be granted by a United States
district judge; rather, it must be granted by a three-judge
court convened by the chief judge of the judicial circuit in
which the case is filed and consisting of one United States
circuit judge and two United States district judges (one of
whom is usually the judge before whom the case was filed).
See 42 U.S.C. § 1973c; 28 U.S.C. § 2284 (1994).

As indicated in part I.B., infra, after White filed his
complaint, a three-judge court was convened to hear his § 5
claims. That court lacks jurisdiction, however, to
entertain White's claims under § 2 and the Equal Protection
Clause of the Fourteenth Amendment. Accordingly, those
claims remain before the district court—specifically, before
the judge to whom the case was assigned at the time of
filing, the Honorable Myron H. Thompson.

In this appeal, we are called upon to review a final
judgment entered by Judge Thompson. References herein to
the district court are, therefore, to Judge Thompson and not
to the three-judge court, unless otherwise indicated.
United States Department of Justice precleared. The district

court, over the objection of the appellants, who had intervened in

the case, approved the agreement and made it part of the final

judgment now before us. White v. State of Alabama, 867 F.Supp.

1519 (M.D.Ala.1994). That judgment, if implemented, will

restructure the Supreme Court of Alabama and the two courts of

appeals by increasing the size of those courts and creating a

selection process that will ensure that the black voters of Alabama

have at least two "representatives of their choice" on each court.

The appellants, a black voter and a judge on the Court of

Criminal Appeals, contend that in fashioning such relief the

district court exceeded its authority under section 2 of the Voting

Rights Act,5 and that the court's entry of the judgment therefore

constituted an abuse of discretion. We agree, and therefore vacate

the district court's judgment and remand the case for further

proceedings.

This opinion is organized as follows. Part I describes the

history and current structure of Alabama's appellate courts and

traces the history of this litigation. Part II demonstrates how

the relief provided by the court's judgment is foreclosed by

section 2 of the Voting Rights Act. Part III addresses a district

court's power to increase the size of an elected governmental

body—here, Alabama's three appellate courts—in an effort to remedy

5
Appellants also contend, among other things, that the
relief granted by the district court is precluded by the Equal
Protection Clause of the Fourteenth Amendment because it
establishes a de facto, if not a de jure, racial quota system.
Because we dispose of the case on statutory grounds, we do not
address the constitutional argument.
racial vote dilution. Finally, part IV addresses, and rejects, the

argument advanced by White and the United States, as amicus curiae,

that, notwithstanding the limitations discussed in parts II and

III, the remedy provided by the district court's judgment is

permissible because the judgment is a "consent decree."

I.

A.

Prior to 1969, Alabama's appellate courts consisted of a

seven-justice Supreme Court and a three-judge intermediate

appellate court called the Court of Appeals. The members of these

courts were chosen for staggered six-year terms in at-large

partisan elections. Vacancies occurring prior to the end of a term

were filled by appointment by the Governor;6 these appointees then

stood for election in Alabama's next general election held after

the appointee had served one year in office.

In 1969, the Alabama legislature added two seats to the

Supreme Court. Act No. 602, § 1, 1969 Ala.Acts 1087 (codified at

Ala.Code § 12-2-1 (1995)). The legislature also divided the Court

of Appeals into the Court of Criminal Appeals and the Court of

Civil Appeals, each with three judges. Act No. 987, § 1, 1969

Ala.Acts 1744. In 1971, the legislature added two judges to the

Court of Criminal Appeals, Act No. 75, § 1, 1971 Ala.Acts 4283, and

in 1993, it added two seats to the Court of Civil Appeals, Act No.

93-346, §§ 1, 4, 1993 Ala. Acts 536, 537. See Ala.Code § 12-3-1

6
The Alabama Constitution provides that, "The office of a
judge shall be vacant if he dies, resigns, retires, or is
removed. Vacancies in any judicial office shall be filled by
appointment by the governor...." Ala. Const. amend. 328, § 6.14
(1973).
(1995). The elections for appellate judges have continued to be

partisan and held at large, and the Governor has continued to fill

mid-term vacancies.

B.

On January 27, 1994, Hoover White, on behalf of himself and

the black voters of Alabama, brought this suit against the State of

Alabama and its Secretary of State. He alleged that the State had

not obtained preclearance, as required by section 5 of the Voting

Rights Act, of any of the legislative enactments described above.7

White asked for a declaration that these enactments were void ab

initio and for appropriate injunctive relief. A three-judge court

was promptly convened to consider White's section 5 claims. 8 See

42 U.S.C. § 1973c; 28 U.S.C. § 2284.

White also alleged that the at-large system for electing the

members of Alabama's appellate courts denies Alabama's black

voters, on account of their race, the same opportunity as that

given to white voters to participate in the election of those

members. He asked the court (1) to declare the at-large election

scheme illegal under both section 2 of the Voting Rights Act and

7
White's original complaint challenged only the split of the
Court of Appeals and the subsequent addition, in 1971 and 1993,
of two judges to each of the new courts. On February 16, 1994,
White amended his complaint to include a challenge to Act No.
602, 1969 Ala.Acts 1087, which enlarged the Supreme Court. We
refer to White's amended complaint as the "complaint."
8
On April 15, 1994, as indicated in the text part I.D.,
infra, White's attorneys and the Alabama Attorney General advised
the three-judge court that they had reached the settlement
agreement described in the text and asked that court to stay
further proceedings on White's § 5 claim so that the district
court could consider the agreement. The three-judge court
granted their request the same day.
the Equal Protection Clause of the Fourteenth Amendment, and (2) to

fashion an appropriate remedy to cure these violations.

Within days after White filed his complaint, and before the

defendants were required to file their answer, White's attorneys

and the Attorney General of Alabama, Jimmy Evans, agreed to settle

the case.9 As they were negotiating the terms of the settlement,

Ralph Bradford, a black voter, moved the court on February 2, 1994,

for leave to intervene in the case as a plaintiff representing the

black voters of Alabama. In the complaint attached to his motion,

Bradford alleged that the at-large system for electing the state's

appellate judges dilutes the votes of black electors and, pursuant

to Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25

(1986), he sought an injunction requiring that the judges instead

be elected from single-member districts. Six days later, Judge

Mark Montiel, a member of the Court of Criminal Appeals, 10 sought

to intervene as a defendant representing a class of all Republican

voters, and a subclass of white Republicans.11 Montiel alleged that

the at-large system dilutes the votes of Republican electors in

9
Jimmy Evans was the Attorney General of Alabama throughout
the proceedings in the district court. He was defeated in the
November 1994 general election by the current Attorney General,
Jeff Sessions. In this opinion, the term "Attorney General"
denotes the Attorney General of Alabama.
10
Judge Montiel did not seek reelection to the Court of
Criminal Appeals in the November 1994 general election;
accordingly, his term of office on that court expired effective
in January 1995.
11
Also named with Montiel as class representatives were
Johnny Curry, a Republican member of the Alabama House of
Representatives, and Jack Williams, executive director of the
Alabama Republican Caucus. We refer to these class
representatives collectively as "Montiel."
violation of the Equal Protection Clause; like Bradford, he sought

the creation of single-member districts.12
On February 15, 1994, with these motions pending and without

the benefit of the State's response to the complaint, the district

court held a status conference. The conference was held off the

record, and the docket sheet does not indicate who attended the

conference or what transpired. What the record does reveal is that

the next day the district court entered an order inviting the

United States Department of Justice to participate in the

proceedings as amicus curiae.

On February 22, the State and the Secretary of State answered

White's complaint. The answer denied that the legislative acts

dividing the Court of Appeals and increasing the size of the three
13
appellate courts had not been precleared under section 5. The

answer also denied that the at-large election scheme violates

section 2 and that the scheme denies Alabama's black voters the

equal protection of the laws.

Two days later, the Attorney General and White, proceeding

pursuant to Federal Rule of Civil Procedure 68, filed an "offer and

notice of acceptance of judgment" which stated that the case had

12
On March 4, 1994, the district court denied Montiel's
motion to intervene as a defendant. On May 17, 1994, as
indicated part I.D., infra, the court granted Montiel leave to
intervene as a class plaintiff on behalf of Republican voters.
13
With respect to Act No. 93-346, which increased the size
of the Court of Civil Appeals, the Attorney General asserted in
the State's answer that the statute had been submitted to the
Department of Justice for preclearance but that the Department
had not responded to the submission.
settled.14 In this pleading, they asked the court to give

"preliminary approval ... to the [proposed] judgment, and ... to

set a time, date, and method of notice to class members for the

purpose of facilitating a Rule 23(e) fairness hearing." Finally,

they requested that, "[f]ollowing the Rule 23 fairness hearing[,]

... the court give final approval to the judgment, and request[ed]

the Clerk to forthwith enter said judgment in accordance with Rule

68...."15

C.

The agreement that White and the Attorney General submitted

under Rule 68 would, if implemented, permit the State to retain its

at-large system of electing appellate judges. To remedy the racial

vote dilution that this system presumably causes, however, the

agreement would provide a mechanism to ensure that those courts

would have black membership approximately proportionate to the

percentage of blacks in the Alabama voting population. The

agreement, therefore, would create both a quota system and

proportional representation.16

14
The Rule 68 pleading stated that, in agreeing to the
settlement, the State was not admitting liability under the
Voting Rights Act or the Constitution. In fact, throughout this
litigation, the State has stood firm in its denial of liability
under §§ 2 and 5 of the Voting Rights Act and the Equal
Protection Clause of the Fourteenth Amendment. See infra note
15.
15
In the event the district court did not approve the
proposed judgment, the State reserved the right to stand on its
answer to White's complaint and to contest the plaintiff's claims
under §§ 2 and 5 of the Voting Rights Act and the Equal
Protection Clause.
16
To ensure the perpetuation of the quota system and
proportional representation, the proposed settlement agreement
provided:
 For this mechanism to function at the courts of appeals level,

the State (presumably the legislature) would first create two

additional judgeships on each of those courts. A "judicial

nominating commission" would then propose a slate of three

candidates for each of these judgeships; all of the candidates

would be black—from plaintiff White's class. The Governor would

fill the position by appointment from the slate; if the Governor

"fail[ed] or refus[ed], within the allotted time," to do so, the

Chief Justice of the Alabama Supreme Court would make the

appointment.17 First Proposed Judgment ¶ 4(a)(iv). The appointee

would then serve a full six-year term following which he or she

would stand for election. Thereafter, if at any time there were

fewer than two black judges on either court, any vacancy on the

court would be filled through the foregoing nomination and

[I]f, after January of 2003, a situation exists on the
Supreme Court of Alabama, the Alabama Court of Criminal
Appeals or the Alabama Court of Civil Appeals whereby
the number of class members who are Associate Justices
or Judges on any such Court is fewer than two for more
than one year, for any reason, the plaintiffs and the
State of Alabama shall attempt to agree on an
appropriate measure designed to remedy this situation
before the next general election cycle. If the parties
are unable to agree on a remedial measure, then the
plaintiffs reserve the right to petition the Court for
appropriate relief.

First Proposed Judgment ¶ 6. Nothing in this proposed
agreement or in the record of the proceedings in the
district court indicates what such "appropriate relief"
might entail.
17
The first proposed judgment, as well as the modified
agreement White and the Attorney General presented to the
district court on April 15, 1994, called for the nominating
commission to send its slate of candidates to both the Governor
and the Chief Justice. The period of time allotted for making
the appointment would vary depending on the circumstances.
appointment process, and the appointee would stand for election

after one year.

The nominating commission would be composed of five members.

Two members would be chosen "by and from" the White class (by its

attorneys), one by and from the Alabama State Bar (an organization

consisting of all lawyers licensed to practice in Alabama), one by

and from the Alabama Lawyers Association (a traditionally black

organization), and one by the other four acting together. In the

event of a deadlock, the fifth position would be filled by and from

the Alabama Black Legislative Caucus. Thus, presumably three, and

possibly all five, of the commissioners would be black.

The same nomination and appointment process would ensure the

presence of at least two black justices on the Supreme Court.18 If

by 1995 there were fewer than two black justices on the court, any

vacancy on the court would be filled through the process described

above until two of the court's members were black. The appointee

would stand for election in Alabama's next general election. In

1996, if there were still fewer than two black justices, the State

would determine whether every incumbent justice whose seat was up

for reelection in 1996 qualified for election under Alabama law.

If a justice did not so qualify, his or her seat would become a

"remedial" seat and would be filled through the nominating process,

with the appointee serving a full six-year term. In 1998 and 2000,

if fewer than two justices were black, the legislature would create

18
As in the case of appointments to the courts of appeals,
if the Governor "fail[ed] or refus[ed]" to appoint an associate
justice from the nominating commission's slate within the
allotted time, the Chief Justice of the Alabama Supreme Court
would make the appointment.
an additional seat on the Supreme Court; the seat would then be

filled by gubernatorial appointment from a slate of three black

candidates presented by the nominating commission. The appointee

would serve a full six-year term and then stand for election.19

Because this appointment mechanism could lead to a Supreme

Court of eleven justices and the parties desired a court of nine,

the agreement provided "that if the number of associate justices is

increased [beyond nine], a seat on the supreme court would be

abolished if it was vacated by a white justice." White, 867

F.Supp. at 1561.20 The parties' proposal, and thus the district

court's jurisdiction over the case, "was of unlimited duration."

Id. at 1532.

On March 4, 1994, while the settlement proposal was pending

before the court for preliminary approval, the court granted

Bradford's motion for leave to intervene as a plaintiff. The court

did not, however, pass on Bradford's request that he be certified

19
How these provisions regarding the Supreme Court would
operate together is illustrated by the following hypothetical.
Suppose that by 1995 the Supreme Court had no black justices. If
one justice retired, his or her seat would be filled through the
appointment process described in the text; the appointee would
then run in the 1996 general election. If, following that
election, the court had fewer than two black justices, the
legislature would create a seat, to which a black would be
appointed. That appointee would serve out a six-year term and
then stand for election. Finally, if, after the 1998 election,
the court had fewer than two black justices, the legislature
would create a second new seat (for a total of eleven) to which a
black would be appointed for a six-year term.
20
The record contains no indication as to when the Alabama
Supreme Court might return to a court of nine justices, nor does
the record indicate whether a seat vacated by a white justice
would be abolished if the court had fewer than two black
justices. At the very least, the proposed agreement is ambiguous
on this point.
to represent a class of black voters. In fact, the court never

acted on that request. Also on March 4, Christopher Boehm, a white

voter, moved for leave to intervene as a "defendant supporting the

current system of at-large elections." Id. at 1530. Boehm sought

certification of a class of Alabama electors who are not black.

The court granted Boehm's motion on May 24.

D.

On April 5, the district court held a third off-the-record

status conference.21 Again, the docket sheet does not indicate who

attended the meeting or what transpired. Apparently as a result of

this conference, White and the Attorney General modified their

earlier settlement proposal and, on April 15, submitted the

modification to the court in a second Rule 68 filing. The

modification purportedly eliminated the quota system originally

proposed. Specifically, the new agreement eliminated the

requirement that the slates presented by the nominating commission

to the Governor contain only blacks. The commission's composition,

however, would remain predominantly black.

In addition, the new agreement retained the proportional

representation feature of the original proposal.22 That is, the

21
The court's second off-the-record status conference was
held on March 3; it does not appear to be relevant for our
purposes.
22
To ensure the maintenance of proportional representation
on Alabama's appellate courts, the modified agreement provided
that:

[I]f, after January of 2003, a situation exists on the
Supreme Court of Alabama, the Alabama Court of Criminal
Appeals or the Alabama Court of Civil Appeals whereby
there are fewer than 2 sitting Associate Justices or
judges on any such court who either are members of the
parties intended that two seats on the Supreme Court and the courts

of appeals would be occupied by representatives of Alabama's black

voters.

Under the new arrangement, the district court would retain

jurisdiction for twenty-four years.23 However, "if the court

[found] that any part of the judgment ha[d] not been met it

[could], in its discretion, extend any portion of the judgment it

deem[ed] appropriate." Id. at 1571; Final Judgment ¶ 11.24

Prior to this second Rule 68 submission, the United States

Department of Justice, exercising its authority under section 5 of

the Voting Rights Act, precleared the challenged legislative

enactments and the changes the modified settlement agreement would

make to Alabama's appellate court structure, contingent on the

district court's approval and implementation of that agreement.

Armed with this conditional approval, White and the Attorney

General, on April 15, 1994, jointly moved the three-judge court

presiding over the section 5 claims to stay further proceedings

plaintiff class or who were appointed pursuant to the
judicial nominating commission procedure created by
this judgment for more than one year, for any reason,
the plaintiffs and the State of Alabama shall attempt
to agree on an appropriate measure designed to remedy
this situation before the next general election cycle.
If the parties are unable to agree on a remedial
measure, then the plaintiffs reserve the right to
petition the Court for appropriate relief.

Final Judgment ¶ 7; White, 867 F.Supp. at 1570.
23
As noted in part I.C., supra, under the original proposal
the district court would have retained jurisdiction for an
"unlimited duration."
24
Nothing in the modified proposal or in the record
indicates the extent of the district court's discretion to
"extend any portion of the judgment it deem[ed] appropriate."
with respect to those claims so that the district court could

review their settlement proposal. The three-judge court granted

their motion that day.25

On May 3, 1994, the district court held its fourth status

conference. Again, the conference was held off the record, and the

docket sheet does not indicate who attended it or what transpired.

On May 17, the court conditionally approved the modified settlement

agreement, and scheduled a fairness hearing for July 29, 1994.

Also on May 17, the district court, having previously denied Judge

Montiel leave to intervene as a party defendant representing

Republican voters, see supra note 12, granted Montiel leave to

intervene as a plaintiff and to file a complaint on behalf of those

voters. In his complaint, Montiel claimed that the at-large scheme

of electing Alabama's appellate judges denied Republican voters the

equal protection of the laws; as a remedy, he sought replacement

of the at-large scheme with single-member districts.

Montiel also objected to the modified settlement agreement.

First, he claimed that the Voting Rights Act foreclosed as a remedy

for vote dilution the nominating commission appointment process

White and the Attorney General were advocating. Alternatively, he

contended that the proposed appointment process would create an

unconstitutional racial quota system for the selection of Alabama's

appellate judges. Finally, he asserted that the Attorney General

had agreed to this arrangement for the express purpose of

25
The three-judge panel held that it did "not have the
jurisdiction to consider the validity of the settlement
agreement," because the settlement was essentially a § 2 remedy.
White v. State of Alabama, 851 F.Supp. 427, 428-429
(M.D.Ala.1994).
perpetuating in office—on the Supreme Court and the courts of

appeals—members of the Democratic party and effectively
26
disenfranchising Alabama's Republican voters. If the court

rejected the proposed settlement and ordered instead that Alabama's

appellate judges be elected from single-member districts—the

traditional vote dilution remedy—Republican voters would have a

meaningful opportunity to elect members of their party to office.

E.

On July 29, 1994, the "fairness hearing" was held as

scheduled.27 At the hearing, the court entertained objections from

intervenors Bradford and Montiel, and from three non-party

26
In addition, Montiel alleged that by eschewing the
establishment of single-member districts and preserving the
at-large system of elections, the proposed settlement would
protect the incumbencies of the current members of those courts
by ensuring that none of those members would be opposed for
reelection by another member of the court.
27
In compliance with Fed.R.Civ.P. 23(e), which governs the
settlement of class actions, White and the Attorney General
provided notice of the proposed settlement in several Alabama
newspapers. Notice is provided in class action settlements to
give members of the class the opportunity to object to the
proposed settlement; here, the notice went "to all resident
citizens and electors of the State of Alabama." Although the
notice went to all of Alabama's citizens, in determining whether
the settlement was objectionable the district court considered
only whether the black community opposed it. Noting that only
two members of that community objected to the proposed
settlement, the court inferred that the settlement was
unobjectionable. White, 867 F.Supp. at 1534.

After studying the notice, however, we conclude that
the district court erred in drawing such inference. To be
effective, class notice must be understandable. The notice
provided by White and the Attorney General was printed in
very small type and couched in "legalese" at times so dense
that even a lawyer would have had difficulty determining the
settlement's probable impact on Alabama's judicial system
and on the rights of Alabama voters. It is not surprising
that few people objected.
objectors,28 that a final judgment incorporating the settlement

would be unlawful on several grounds. The objectors asserted that

the judgment would (1) provide a remedy not authorized by the

Voting Rights Act; (2) violate the Equal Protection Clause by

setting aside race-based seats on Alabama's appellate courts; (3)

violate the Alabama Constitution by providing for the appointment,

rather than election, of judicial officers for six-year terms; and

(4) disenfranchise all Alabama voters by effectively removing some

judicial elections from the ballot box.

These objectors also contended that the Attorney General, a

member of the executive branch of the state government, lacked the

authority to compel the legislative branch of that government to

increase the size of Alabama's appellate courts as the proposed

settlement would require. Under Alabama's constitution, see supra

note 1, and its separation of powers doctrine,29 the determination

of the size of the state's appellate courts is the legislature's

prerogative. The objectors also contended that the Attorney

28
Among the non-party objectors were Jeff Sessions, the
present Attorney General of Alabama, and Perry Hooper, who became
Chief Justice of Alabama as the result of the November 1994
general election.
29
The separation of powers doctrine is expressed in the
Alabama Constitution:

In the government of this state, except in the
instances in this Constitution hereinafter expressly
directed or permitted, the legislative department shall
never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the
legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and
executive powers, or either of them; to the end that
it may be a government of laws and not of men.

Ala. Const. art. III, § 43.
General lacked the authority to remove the selection of an

appellate judge from the ballot box. That authority resides in the

people of Alabama; it is exercised through constitutional

amendment. Thus, according to the objectors, the Attorney General,

in purporting to bind the legislature and the people of Alabama to

the changes the settlement would effect, plainly exceeded his

authority.

At the end of the hearing, the district court took the

foregoing objections under advisement. Also taken under advisement

was a written objection filed by intervening defendant Boehm.30

Boehm's concern was that, although the modified proposal had

eliminated the requirement that only blacks be appointed through

the nominating process, the composition of the commission was such

that only blacks would be appointed.31

On August 31, 1994, the court decided to entertain the

plaintiffs' evidence of racial vote dilution and scheduled a

hearing thereon for September 2. At that hearing, the court heard

the testimony of two expert witnesses who had been employed by

White to study voting patterns in prior statewide elections in

Alabama. These experts concluded that the voting patterns

demonstrated that the state's white voters and black voters tended

to vote in racial blocs; thus, white voters were usually able to

30
The court also entertained several other written
objections, none of which are pertinent here.
31
Boehm's memorandum expressed this point as follows:
"[T]he record ... clearly establish[es] that the purpose of the
Judicial Nominating Commission is to secure the approval of
African-American candidates on behalf of African-American
voters." Record vol. 6, no. 128, at 5.
preclude black voters from electing their candidates of choice.

The experts stated that this situation could be remedied by having

the nine justices of the Supreme Court and the five judges of the

respective courts of appeals elected from single-member districts.

According to one of the experts, Jerry Wilson, the districts could

be drawn so that black voters would comprise a majority in two

Supreme Court districts and in one district for each court of

appeals. At the conclusion of the hearing, the court took the case

under submission.

On September 14, the district court held yet another

off-the-record status conference. The docket sheet does not reveal

who attended the conference or what transpired there. The next

day, White and the Attorney General filed a "Joint Notice of Filing

of Revised Final Judgment." This document revised the modified

proposal considered at the fairness hearing in two substantive

respects.

First, the revision made it possible for the nominating

commission to have more than nominal white membership. Although it

retained the requirement that two members of the commission be

blacks, selected by White's lawyers, and that a third member be

selected by the traditionally black Alabama Lawyers Association,

the revision permitted that association to appoint from outside its

membership and thus, perhaps, place a non-black person on the

commission. Similarly, in the event of a deadlock in choosing the

fifth member of the commission, the Alabama Black Legislative
Caucus could also appoint a non-black to the commission.32

Second, the revision eliminated the authority of the Chief

Justice of the Alabama Supreme Court to make an appointment from

the nominating commission's slate if the Governor failed or refused

to do so.

White and the Attorney General served their joint notice on

all of the other parties in the case: Bradford, Montiel, and

Boehm. Although the proposed revisions to the judgment would

substantively change the judicial appointment process, the court

invited no response from these other parties. The court did hold

another status conference on October 4—this time on the record—but

neither these revisions nor any other substantive provisions of the

proposed final judgment were discussed.33

F.

On October 6, 1994, the district court issued its "Memorandum

Opinion and Order" and entered the final judgment White and the

Attorney General had proposed following the September 14 status

conference. White v. State of Alabama, 867 F.Supp. 1519

(M.D.Ala.1994). The court rejected the arguments in opposition to

32
The proposed revision appears to have been an attempt to
assuage Boehm's concern that White's and the Attorney General's
previous proposals, in providing for a commission dominated by
blacks, would ensure that only blacks would be presented to the
Governor for appointment. See supra note 31. Whether the
proposed revision would produce a different result is
questionable.
33
Rather, the record reveals that the court and counsel
canvassed the seats on the Supreme Court and the courts of
appeals in an effort to identify those whose seats had not been
precleared under § 5 of the Voting Rights Act. They also
discussed how long some of the appointees to these courts had
served prior to standing for election.
the settlement agreement presented at the July 29 fairness hearing.

Specifically, the court rejected the notion that the remedy

provided by the judgment could not be sanctioned under the Voting

Rights Act and that the remedy effectively prescribed a quota

system that could not be squared with the Equal Protection Clause.

Turning to the argument that the Attorney General had exceeded his

authority by agreeing to the proposed settlement, the court held

that because the Attorney General has broad authority to conduct

litigation for the State, he had the authority to enter into the

agreement at issue. Additionally, the court observed that, if

necessary to remedy a case of vote dilution, the court would itself

have the authority to impose the sort of remedy that White and the

Attorney General had proposed.

After disposing of these objections, the court addressed the

question of whether, in the face of the State's denial of

liability, the plaintiffs had made out a prima facie case under the

Voting Rights Act. Citing Alabama's history of discrimination

against blacks and the opinion of the two election experts, the

court found "a strong basis in evidence" for a case of vote

dilution under section 2 of the Act sufficient to justify its

approval of the proposed settlement agreement. White, 867 F.Supp.

at 1554, 1554-57. Given this conclusion, the court apparently

deemed it unnecessary to reach White's claim under the Equal

Protection Clause.

The same day it entered a final judgment incorporating the

settlement agreement White and the Attorney General had reached,

the court granted the State summary judgment on Montiel's equal
protection claims. White v. State of Alabama, 867 F.Supp. 1571

(M.D.Ala.1994). Montiel appeals that ruling in No. 94-7081. We

dispose of part of his appeal in the margin.34 We consider the

remaining part of Montiel's appeal in No. 94-7024, which Montiel

and Bradford are prosecuting jointly.35 We resolve their appeal in

the discussion that follows.

II.

The first question we address is whether section 2 of the

Voting Rights Act forecloses the remedy provided in the district

34
As noted in part I.D., supra, Montiel alleged in his
complaint that the at-large system for electing Alabama's
appellate judges denies Republican voters the equal protection of
the laws. As a remedy, he sought the creation of a single-member
district scheme. In addition to asserting this claim, Montiel
questioned the legality of the settlement White and the Attorney
General had proposed. He claimed that the Voting Rights Act
foreclosed the adoption of the settlement as a remedy for vote
dilution. Further, he alleged that the proposed appointment
process would create an unconstitutional racial quota system for
the selection of Alabama's appellate judges. Finally, he
contended that the Attorney General and White crafted their
settlement for the express purpose of perpetuating in office
members of the Democratic Party and effectively disenfranchising
Alabama's Republican voters.

In appealing the district court's grant of summary
judgment, Montiel did not challenge the district court's
rejection of the cause of action he brought on behalf of
Republican voters under the Equal Protection Clause.
Accordingly, we deem it abandoned and dismiss his appeal in
No. 94-7081. We consider Montiel's objections to the
remedial portions of the district court's final judgment in
No. 94-7024. In that appeal, Montiel and Bradford filed a
joint brief; hence, we treat their arguments as having been
jointly made.
35
Although the State of Alabama is an appellee, the present
Alabama Attorney General, Jeff Sessions, also challenges as
unlawful the district court's final judgment; in effect, he
contends that his predecessor in office invited the district
court to commit error. For purposes of this appeal, however, we
assume that the State is bound by the settlement agreement the
former Attorney General, Jimmy Evans, urged upon the district
court.
court's judgment. In the context of this case, the question

becomes whether the Act precludes the district court from removing

judicial selection from the ballot box, and whether the Act

precludes proportional representation. We consider these issues in

turn.

A.

Section 2 of the Act applies to state judicial elections.

Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2368, 115

L.Ed.2d 348 (1991). Here we are concerned with whether the relief

provided by the district court's judgment is within the scope of

section 2. See United States v. Dallas County Comm'n, 850 F.2d

1433, 1437-38 (11th Cir.1988), cert. denied, 490 U.S. 1030, 109

S.Ct. 1768, 104 L.Ed.2d 203 (1989).

Section 2 provides:

(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color....

(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances, it is
shown that the 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 (emphasis added).

Congress enacted section 2 to give those who had been
disenfranchised on account of their race the opportunity to

participate in the political process. The Act is designed to

redress past discrimination that inhibited the ability of

minorities to express their preference for certain candidates

through the electoral process, i.e., at the ballot box.36 Sections

4 and 5 of the Act prohibit the use of tests or devices, and the

alteration of voting qualifications or procedures, in a manner that

deprives citizens of their right to vote. See 42 U.S.C. §§ 1973b,

1973c. Section 2 proscribes practices that, while permitting a

mechanical exercise of the right to vote, dilute the votes of a

racial minority (through gerrymandering or other tactics) and thus

render its votes meaningless. See Shaw v. Reno, --- U.S. ----, ---

-, 113 S.Ct. 2816, 2823, 125 L.Ed.2d 511 (1993). In essence, the

Act empowers minorities by providing them meaningful access to the

ballot box.

The nexus between section 2 and the act of voting is further

evidenced when one considers the source of authority for section 2.

Section 2 was enacted to enforce the Fifteenth Amendment's

prohibition against denying a citizen the right to vote "on account

of race."37 U.S. Const. amend XV; NAACP v. New York, 413 U.S. 345,

36
The legislative history is clear in this respect: "The
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." S.Rep. No. 417, 97th Cong., 2d Sess. 31, reprinted in
1982 U.S.C.C.A.N. 177, 208 (emphasis added).
37
The Fifteenth Amendment reads:

Section 1. The right of citizens of the United
States to vote shall not be denied or abridged by the
United States or by any State on account of race,
350, 93 S.Ct. 2591, 2595, 37 L.Ed.2d 648 (1973); Allen v. State

Bd. of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d

1 (1969) ("The Act was drafted to make the guarantees of the

Fifteenth Amendment finally a reality for all citizens.").38

A judicial remedy fashioned under section 2 must therefore

enhance the ability of the plaintiffs to elect their candidates of

choice. Any remedy that has the effect of eliminating this

essential element of choice is invalid, for it contravenes the

spirit and purpose of the Act. A remedy such as the one fashioned

in this case, calling for the appointment of judges to posts which,

under state law, are to be filled by election, effectively

nullifies voting power and contravenes the stated objectives of

color, or previous condition of servitude.

Section 2. The Congress shall have power to
enforce this article by appropriate legislation.

U.S. Const. amend. XV (emphasis added). As Justice
Frankfurter stated, "[t]he Amendment nullifies sophisticated
as well as simple-minded modes of discrimination. It hits
onerous procedural requirements which effectively handicap
exercise of the franchise by the colored race...." Lane v.
Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281
(1939) (emphasis added). It has been employed to strike
down such tactics as the grandfather clause, see Guinn v.
United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340
(1915), and racial gerrymandering, see Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
Constitutional challenges to those practices are now
analyzed under the Equal Protection Clause rather than the
Fifteenth Amendment.
38
The same is true of other provisions in the Voting Rights
Act. See, e.g., City of Rome v. United States, 446 U.S. 156,
177, 100 S.Ct. 1548, 1562, 64 L.Ed.2d 119 (1980) ("[T]he Act's
ban [in § 5] on electoral changes that are discriminatory in
effect is an appropriate method of promoting the purposes of the
Fifteenth Amendment...."). For a more detailed account of the
history and purpose of the Voting Rights Act, see Shaw v. Reno, -
-- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
section 2.

In short, the district court has employed the Voting Rights

Act to usurp voting power from the very minority which, under the

Act, is entitled to wield it. Such a practice can hardly be

condoned. We have repeatedly insisted that the Act guarantees the

right to elect representatives. See, e.g., Southern Christian

Leadership Conference v. Sessions, 56 F.3d 1281, 1296 n. 25 (11th

Cir.1995) (en banc), cert. denied, --- U.S. ----, 116 S.Ct. 704, --

- L.Ed.2d ---- (1996). The will of the people is expressed through
elections, not by commissions created to divine their preferences

for them. We "find[ ] a certain irony in using the Voting Rights

Act to deny citizens the right to select public officials of their

choice."39 Brooks v. State Bd. of Elections, 848 F.Supp. 1548,

1568, remanded and appeal dismissed as moot, 59 F.3d 1114 (11th

Cir.1995) (emphasis added).

The district court seeks to justify this denial by presuming

that the nominating commission will "serve as a proxy for black

voters" in choosing the slate presented to the Governor for

39
We note that all Alabama voters, both black and white, are
disenfranchised by the settlement's appointment process. The
district court's order does not address this problem. The
court's observation that some of Alabama's judges have been
appointed to office in the past is of no moment. See White, 867
F.Supp. at 1536. Those appointments have occurred pursuant to
state law, not as a remedy for a violation of § 2 of the Voting
Rights Act. Under the Alabama Constitution, the governor fills
vacancies that occur mid-term. Ala. Const. amend. 328, § 6.14
(1973). Also beside the point is the court's observation that
the judges appointed pursuant to the final judgment will
eventually have to stand for election, and thus that the
disenfranchisement wrought by the court's judgment will merely be
temporary. See White, 867 F.Supp. at 1536. The fact remains
that some of those judges will hold office for six years before
the voters of Alabama have a chance to meet them in the ballot
box. See id. at 1526.
appointment to the appellate bench. White, 867 F.Supp. at 1561.

We are not persuaded. How the nominating commission is to be

informed of the views of Alabama's black voters is nowhere

explained. The best the court could say is that the commission is

"composed in a manner to attempt to reflect the interests of most

African-American Alabamians." Id. at 1526.

The nominating commission created by the district court's

judgment resembles, but only superficially, the nominating

commissions many states employ under the so-called "Missouri Plan"
as a means of ensuring that judicial appointments are made on merit
40
as opposed to sheer political expediency. Under a typical

40
Thirty-four states and the District of Columbia currently
have "Missouri Plans" for the selection of some or all of their
judges. See Jona Goldschmidt, "Merit Selection: Current Status,
Procedures, and Issues," 49 U.Miami L.Rev. 1, 2-3 (1994). In
most states, the plan is implemented by a constitutional or
statutory provision. Id. at 19-20.

Every state in the Eleventh Circuit uses a nominating
commission for some judicial appointments. In Alabama,
several counties have five-member commissions for the
appointment of circuit judges (who, following their
appointment, must run in the next general election). Two of
the commission members are lawyers chosen by the state or
county bar. Two non-lawyer members are selected by the
legislature, and the last member is a judge, chosen by the
judges of the circuit. See Ala. Const. amend. 328, § 6.14;
see also Ala. Const. amends. 83 and 110 (Jefferson County).
In Georgia, a nine-member commission is charged with filling
interim vacancies on all state courts save the supreme
court. The governor appoints five members of the
commission, three lawyers and two non-lawyers. The
lieutenant governor and the speaker of the house of
representatives each appoint one non-lawyer member, and two
members serve ex officio. See Ga. Const. art. VI, § VII,
para. III; Executive Order, Judicial Nominating Commission
(Feb. 27, 1995) (establishing commission for Governor Zell
Miller's term in office). Florida has nine-member
commissions to fill vacancies in all levels of the state
judiciary. Three members are appointed by the governor,
three are appointed by the Florida Bar, and three are
elected by majority vote of other six. See Fla. Const. art.
"Missouri Plan," a state's voters have a choice in the composition

of the nominating commission because, in large part, those who

appoint the commissioners are elected officials, such as the

governor or the members of the legislature. Here, by way of

contrast, Alabama's voters will have essentially no choice. Two

members of the commission will be hand-picked by the plaintiff's

lawyers from the class White represents; no commission members

will be chosen by elected representatives. The commission will be

overseen by a life-tenured federal district judge who retains the

power to fashion "appropriate relief" in the event the scheme fails

to ensure the presence of at least two representatives of the

plaintiff class on each of Alabama's appellate benches. See supra

note 23. The only actor in the court's plan who is accountable to

the voters is the Governor, and his hands will be tied by the

court's judgment.41 Dissatisfied voters, black or white, will have

no recourse if the candidates the commission selects are

unsatisfactory; thus, the commission will have a license to select

its nominees with impunity.

Accordingly, we conclude that an appointment procedure such as

the one the district court would implement in this case is a remedy

foreclosed by the Voting Rights Act.42 The United States Department

5, § 11; Fla.Stat. § 43.29.
41
There is no provision in the judgment that would give the
Governor the authority to reject a slate proposed by the
nominating commission on the ground that the nominees possessed
nothing more than the bare legal qualifications for judicial
office.
42
Because we dispose of the district court's judgment on the
ground that it violates the Voting Rights Act, we need not, and
indeed should not, discuss whether the judgment violates the
of Justice, appearing as amicus curiae, conceded this point in oral

argument, but contended that because the district court's final

judgment is a "consent decree," the fact that the remedy it

provides is not authorized by the Voting Rights Act should not

concern us. We address this argument, and reject it, in part IV,

infra.

B.

The goal the White class seeks to achieve in this case is

proportional representation on Alabama's appellate courts.43 Both

Equal Protection Clause by setting aside race-based seats on
Alabama's appellate courts. See Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936)
(Brandeis, J., concurring) ("The Court will not pass upon a
constitutional question although properly presented by the
record, if there is also present some other ground upon which the
case may be disposed of.").
43
Moreover, the White class seeks to achieve this goal
without paying the price a minority might be expected to pay to
attain proportional representation. That is, the typical remedy
for racial vote dilution yielded by at-large voting in a
multi-member district is to divide the district into
single-member districts if the plaintiff minority is sufficiently
cohesive and compact to comprise a majority in one or more
single-member districts. See Gingles, 478 U.S. at 50, 106 S.Ct.
at 2766. In such a case, the minority, having been cabined in
this manner, necessarily loses influence in the other districts.
See Nipper v. Smith, 39 F.3d 1494, 1543 (11th Cir.1994) (en
banc), cert. denied, --- U.S. ----, 115 S.Ct. 1795, 131 L.Ed.2d
723 (1995); League of United Latin American Citizens v.
Clements, 999 F.2d 831, 873 (5th Cir.1993) (en banc).

In this case, the trade-off described above does not
occur; rather, in choosing the members of the appellate
bench, the influence of the minority voters is
disproportionately enhanced at the expense of the majority.
That is, the minority is given the right to fill by
appointment two seats on each of the appellate courts while
at the same time maintaining its admittedly "significant
influence" in the choice of those selected through the
ballot box. White, 867 F.Supp. at 1535. According to
members of the White class, who urged the court to approve
the settlement, "the proposed settlement is superior to
single-member districts for appellate courts because
the original and modified settlement proposals presented to the

district court make this quite clear. Section 2 of the Voting

Rights Act states, however, 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); see Thornburg v. Gingles, 478 U.S. 30, 84, 106 S.Ct.

2752, 2784, 92 L.Ed.2d 25 (1986) (O'Connor, J., concurring).

Notwithstanding this statutory caveat, the district court used the

attainment of proportionality as a justification for entering the

judgment at hand. The following paragraph from the court's opinion

illustrates this point:

[T]he court notes that blacks comprise approximately 25% of
the population of Alabama and 23% of the voting age
population. For the purposes of this inquiry, the court
chooses the more conservative figure of 23% for the relevant
pool. In affirmative action terms, this means that absent
voting discrimination it would be expected that around 23% of
judges would be minority-preferred candidates. The proposed
settlement contemplates relief reaching two seats on each of
the seven-member appeals courts or 28% of the seats and two
seats on the nine-member supreme court or 22% of the seats.
The court finds that the number of judgeships reached by the
proposed settlement as a percentage of the seats on each
appellate court is comparable to the black percentage of the
voting age population in Alabama.

White, 867 F.Supp. at 1562. This statement speaks for itself—in

approving the settlement, the district court ignored Congress's

admonition that the Voting Rights Act is not be used as a vehicle

to establish proportional representation.

at-large seats allow blacks to have a significant influence
on all appellate judges, rather than have their dominance
limited to a small number of districts with little presence
in the majority of districts." Id. (citing affidavits of
Richard Arrington, Jr., mayor of Birmingham, Alabama, and
Joe L. Reed, chairman of the Alabama Democratic Conference
(a statewide black political organization that is an arm of
the Alabama Democratic Party)).
 III.

Putting aside the question whether the district court's

remedy is cognizable under section 2, we conclude that the district

court, in fashioning its remedy, lacked the authority to require

Alabama to increase the size of its appellate courts. We base our

conclusion that the court lacked such power on Nipper v. Smith,

where we said that "federal courts may not mandate as a section 2

remedy that a state or political subdivision alter the size of its

elected bodies." Nipper v. Smith, 39 F.3d 1494, 1532 (11th

Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1795,

131 L.Ed.2d 723 (1995).44

We also draw, as we did in Nipper, on the Supreme Court's

decision in Holder v. Hall, --- U.S. ----, 114 S.Ct. 2581, 129

L.Ed.2d 687 (1994). In Holder, black plaintiffs proposed as a

remedy for racial vote dilution that the court increase the

membership of a county commission from one person to six, a

chairman to be elected at large and five members to be elected from

single-member districts. According to the plaintiffs, the black

voting population was sufficiently cohesive and compact to

constitute a majority in one of the suggested single-member

districts.

The Supreme Court rejected the plaintiffs' proposal. The

Court held that the plaintiffs had no case under section 2 because

there was no objectively reasonable "benchmark" with which to

compare the existing scheme in order to determine whether racial

44
Nipper was decided in December of 1994, and thus the
district court did not have the benefit of Nipper 's holding when
it decided this case.
vote dilution was actually taking place. "In order for an

electoral system to dilute a minority group's voting power, there

must be an alternative system that would provide greater electoral

opportunity to minority voters." Id. at ----, 114 S.Ct. at 2589

(O'Connor, J., concurring). When comparing the sizes of elected

bodies, there are many possible alternatives, but no "principled

reason why one size should be picked over another as the benchmark

for comparison." Id. at ----, 114 S.Ct. at 2586 (plurality

opinion) (emphasis added). It is not the absence of a benchmark

that is the problem when evaluating the size of an elected body;

the difficulty is that a court cannot reasonably choose one

benchmark over another.45

This difficulty is presented also by this case. The district

court constructed a benchmark by using proportional representation.

As noted part II.B., supra, the court observed that blacks comprise

23% of the voting age population in Alabama; accordingly, 23% of

the judges should be minority-preferred candidates. White, 867

F.Supp. at 1562. Having drawn this conclusion, the court asked, in

effect: How large must the Supreme Court and the courts of appeals

be to ensure that minority-preferred candidates occupy that

percentage of the courts' seats? The answer is a Supreme Court

with nine, ten, or eleven seats and courts of appeals with seven

45
The question before the Court in Holder was one of
statutory interpretation: whether increasing the size of the
Bleckley County Commission was permissible under § 2. The Court
did not find the answer to this question in the language of the
statute or its legislative history; it found the answer by
considering the difficulty a district court would encounter in
inferring a reliable benchmark from the circumstantial evidence
before it.
seats each.

The problem with these benchmarks is that they are not

principled. Rather, they are based on proportional representation,

which, under the Voting Rights Act, is impermissible. See supra

part II.B. Once these benchmarks are eliminated, one must engage

in sheer speculation to arrive at an appropriate benchmark, or

size, for each court. With respect to the courts of appeals, for

example, one might argue that six judges would suffice; another

might opt for seven or eight.46 Holder precludes this sort of

speculation.

IV.

As our discussion in Parts II and III makes clear, the remedy

the district court prescribed in this case is foreclosed by the

Voting Rights Act and by precedent. The Department of Justice

concedes this point,47 but contends, as does White, that the

district court's final judgment is a "consent decree," and that, as

such, the judgment could provide relief beyond that authorized by

the Act. We are not persuaded.

A.

First, the district court's final judgment is not a consent

decree. It is a final judgment, because it disposes of all of the

46
As noted in part I.E., supra, the plaintiffs' own experts
testified at the August 31, 1994, hearing that the vote dilution
they found in the at-large scheme could be remedied by having
Alabama's appellate judges elected from single-member districts,
without increasing the size of the courts. Hence, it was
unnecessary for the court to increase the size of the appellate
courts in order to grant the plaintiffs relief.
47
The White class does not join in the Department's
concession.
claims and defenses of all of the parties in the case. See 28

U.S.C. § 1291; Andrews v. United States, 373 U.S. 334, 83 S.Ct.

1236, 10 L.Ed.2d 383 (1963). But it is not a final consent decree,

because not all of the parties consented to its entry. White, the

Attorney General, the Department of Justice, and the district court

refer to the final judgment as a "consent decree."48 That, however,
does not make it one.

Here, the court entered a final judgment that rejected the

relief sought by some parties, Bradford and Montiel,49 and

48
The district court, in its memorandum opinion, appears to
treat its final judgment as a consent decree. Nowhere in its
opinion, however, does the court explain how a consent decree can
be entered without the consent of all parties.
49
As noted in part I.C., supra, Bradford became a party on
March 4, 1994, when the district court granted him leave to
intervene as a plaintiff and to file a complaint. In that
complaint, Bradford alleged that he represented a class
consisting of all of Alabama's black voters, and asked the court
to recognize him as the representative of such class. For
relief, Bradford sought the election of Alabama's appellate
judges from single-member districts. In contrast, White, in the
settlement proposal he and the Attorney General had submitted to
the court, sought the remedy the district court eventually
imposed. Thus, the district court was faced with one plaintiff,
Bradford, seeking one form of relief, and another plaintiff,
White, seeking a dramatically different, and totally
inconsistent, remedy. The court could have solved the dilemma by
dividing the plaintiff class of black voters into two subclasses:
one represented by White, the other by Bradford. The court,
however, did nothing. Consequently, we are left with two
plaintiffs seeking mutually exclusive forms of relief.

Bradford, because he is a black voter, is by definition
a member of the White class. No one has contended, however,
that Bradford is thereby foreclosed from objecting to the
relief White seeks or from pursuing an alternative remedy
for the alleged vote dilution. Rather, White and the
Attorney General, apparently deferring to the district
court's decision to grant Bradford plaintiff status by
permitting him to intervene and to file a complaint, have
treated Bradford as an independent party in this litigation.

Montiel became a party on May 17, 1994, and was
incorporated the relief proposed jointly by other parties, White

and the State. In this circuit, a decree that provides a remedy

agreed to by some, but not all, of the parties cannot affect the

rights of a dissenting party. United States v. City of Miami, 664
50
F.2d 435, 442 (5th Cir.1981) (en banc) (opinion of Rubin, J.).
Here, Bradford and Montiel are non-consenting dissenting parties.51

Indeed, they vigorously objected to the remedy White and the

certified to represent a plaintiff class of Republican
voters. In addition to challenging the at-large election
scheme, Montiel alleged that the White-Attorney General
proposal, if implemented, would disenfranchise Alabama's
republican voters. Like Bradford, Montiel sought the
creation of single-member districts.
50
City of Miami, though decided after the split of the
former Fifth Circuit, is part of the law of this circuit. See,
e.g., Barfus v. City of Miami, 936 F.2d 1182, 1184 (11th
Cir.1991).
51
Nor did Boehm, who had intervened in the case as a
defendant representing a class of non-black voters, consent to
the entry of the judgment. Boehm contended that the current
at-large system for electing appellate judges was lawful and
therefore should be maintained. Thus, his position was at odds
with that taken by White and the Attorney General.

After White and the Attorney General made their Rule 68
filing on April 15, 1994, and in advance of the July 29
fairness hearing, Boehm objected to their settlement
proposal on the ground that the composition of the
nominating commission ensured that only blacks would be
appointed through the nominating process. According to
Boehm, excluding "members of the "Boehm Class' [non-black
voters] from the Judicial Nominating Commission not only
violates the rights of the "Boehm Class' by not allowing
them to participate in the selection of potential candidates
for these appellate judges positions, but also prevents the
"Boehm Class' from being able to adequately monitor the ...
Commission for any discriminatory action they may take...."
Record vol. 6, no. 128, at 5-6.

Boehm has not appealed the district court's final
judgment. During the oral argument of this case on appeal,
his attorney announced that Boehm had no objection to the
implementation of the judgment.
Attorney General proposed because, among other things, it would

deprive them of their right to vote for judicial officers.

B.

Assuming, for sake of argument, that the district court's

judgment is a consent decree, we address the question whether, for

that reason, the court had the authority to provide a remedy not

authorized by the Voting Rights Act. White and the Department of

Justice cite only one case in support of the proposition that a

district court, in entering a consent decree, may provide relief

beyond that authorized by Congress. See Local No. 93,

International Ass'n of Firefighters v. City of Cleveland, 478 U.S.

501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). That case, however, is

inapposite.

In Local No. 93, the plaintiffs, an association of black and

Hispanic firefighters employed by Cleveland's fire department,

alleged that, in violation of Title VII of the Civil Rights Act of

1964, various city officials had discriminated against its members

on the basis of race and national origin in hiring, assigning, and

promoting firefighters. The city and the association entered into

a settlement which, if approved by the court, would provide, among

other things, prospective relief to unknown persons who had not

suffered the alleged discrimination. The firefighters' union

intervened in the case for the purpose of objecting to the

settlement. It contended that Title VII barred the court from

granting relief that benefitted individuals who were not actual

victims of the discriminatory practices. See Civil Rights Act of

1964, Pub.L. No. 88-352, § 706(g)(2)(a), 78 Stat. 241, 261, 42
U.S.C. § 2000e-5(g)(2)(a) (1988 & Supp. V 1993).

The district court incorporated the settlement into a consent

decree, and the union appealed. The Sixth Circuit affirmed,

Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th

Cir.1985), and the Supreme Court granted certiorari, 474 U.S. 816,

106 S.Ct. 59, 88 L.Ed.2d 48 (1985), to answer the question:

"whether § 706(g) of Title VII ... precludes the entry of a consent

decree which provides relief that may benefit individuals who were

not the actual victims of the defendant's discriminatory

practices." Local No. 93, 478 U.S. at 504, 106 S.Ct. at 3066.

Drawing on the language of section 706(g) and Title VII's

legislative history, the Court concluded that the provision did not

apply to the relief the district court granted. Id. at 515, 106

S.Ct. at 3071. Moreover, the relief appeared to be in keeping with

Title VII's remedial objectives and thus within statutory bounds.

At the same time, the Court recognized that "the parties may [not]

agree to take action that conflicts with or violates the statute

upon which the complaint [is] based." Id. at 526, 106 S.Ct. at

3077.52 In the context of the case before it, the implementation

of the agreement might deprive firefighters not before the court of

their right not to be subjected to reverse racial discrimination in

violation of Title VII or the Fourteenth Amendment. In the event

of such violation, the fact that the decree had been affirmed would

52
In cases where the Supreme Court has found that a consent
decree violates the statute under which the relief is granted,
the Court has not hesitated to set aside the decree. See
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104
S.Ct. 2576, 81 L.Ed.2d 483 (1984); System Fed'n No. 91, Railway
Employes' Dep't v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d
349 (1961).
not render it "immune from attack." Id.

In the case at hand, unlike in Local No. 93, the injury is

immediate. The district court's decree, if implemented, will

directly injure parties now before the court by depriving them of

their right to vote. Hence, there is no cause for this court to

defer consideration of the question, which we reach in part II,

supra, whether the decree's remedy is foreclosed by the Voting

Rights Act.53
V.

We dismiss the appeal in No. 94-7081. See supra note 34. In

No. 94-7024, we vacate the district court's judgment and remand the

case to the three-judge court for further proceedings. We remand

the case to the three-judge court, rather than the single-judge

district court, because this case is pending before the three-judge

53
The Court's opinion in Local No. 93 also informs our
discussion in part IV.A, supra. One of the union's arguments was
that the consent decree was invalid because it was entered
without the union's consent. The Court rejected that argument
because the union had presented no claim for relief to the
district court; that is, it had no cause of action in its own
right and it could not prosecute reverse discrimination claims
(of its members) that had not yet arisen. The union's sole
reason for intervening in the case, therefore, was to protest the
settlement.

The Court indicated that, had the settlement affected
the union's rights, the decree could not have been entered
without its consent. As the Court observed:

[P]arties who choose to resolve litigation through
settlement may not dispose of the claims of a third
party ... without that party's agreement. A court's
approval of a consent decree between some of the
parties therefore cannot dispose of the valid claims of
nonconsenting intervenors; if properly raised, these
claims remain and may be litigated by the intervenor.

Local No. 93, 478 U.S. at 529, 106 S.Ct. at 3079 (citations
omitted).
court. As indicated in part I.D. and note 25, supra, that court

stayed further proceedings in the case solely to permit the

district court, proceeding under section 2 of the Voting Rights

Act, to entertain White's and the Attorney General's settlement

agreement. Now that their agreement has been set aside and the

state's answer, which denies liability under both section 2 and

section 5 of the Act (as well as the Equal Protection Clause),

stands reinstated in full, see part I.B. and notes 14 and 15,

supra. The case is in the posture it occupied when the three-judge

court stayed its hand. Hence, given the state's denial of

liability, the first claim to be addressed—the claim before the

three-judge court—is White's section 5 claim: whether the

legislative enactments cited in part I.A., supra, which increased

the Supreme Court from seven to nine justices, divided the Court of

Appeals into the courts of criminal and civil appeals, and then

increased their respective sizes from three to five judges—are

invalid for want of section 5 preclearance by the United States

Department of Justice.54

54
Our disposition of the appeal in No. 94-7024 renders
unnecessary our consideration of the question whether the remedy
the district court fashioned, if implemented, would create a
racial quota system for the selection of Alabama's appellate
judges. It is also unnecessary for us to consider whether,
consistent with Alabama's separation of powers doctrine and the
state's constitution, the Attorney General had the authority
under Alabama law to bind the legislature, the Governor, and the
people of Alabama (in whom the power to amend the state's
constitution resides) to the agreement he reached with White.
See supra notes 1, 2, 6 and 29. Nor is it necessary for us to
decide the related question whether, in the interest of comity,
the district court, using Fed.R.Civ.P. 19 and 23, should have
made the branches of the Alabama legislature and the Governor
parties-defendant in this highly sensitive case. See 7A Wright,
Miller & Kane, Federal Practice and Procedure § 1770.
 SO ORDERED.

BLACK, Circuit Judge, specially concurring:

I concur in the conclusion, stated in section IV.A of the

majority opinion, that there was no valid consent decree upon which

the district court could have entered its judgment. I therefore

concur in the result as well. Since the district court's judgment

must be vacated because it was premised on an invalid consent

decree, our analysis should end at this point.

The three-judge court granted Bradford and Montiel's motions

to intervene in this suit as party plaintiffs, and the parties have

not appealed these rulings. Once a party intervenes, he becomes a

full participant and is entitled to have his claims litigated.

Alvarado v. J.C. Penney Co., 997 F.2d 803, 805 (10th Cir.1993); 7C

Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal

Practice and Procedure § 1920 (1986). The original parties to a

suit may not, through a purported consent decree settling the

claims between them, stipulate away the rights of an intervening

party without his approval. Local Number 93, Int'l Ass'n of

Firefighters v. City of Cleveland, 478 U.S. 501, 529, 106 S.Ct.

3063, 3079, 92 L.Ed.2d 405 (1986) (citing Wheeler v. American Home

Products Corp., 563 F.2d 1233, 1237-38 (5th Cir.1977)); 3B James

W. Moore, Moore's Federal Practice ¶ 24.16[6] (2d ed. 1995). It

follows that a consent decree that compromises a non-consenting

party's claims is invalid to the extent that it does so. See Local

Number 93, 478 U.S. at 529, 106 S.Ct. at 3079; United States v.

City of Miami, Fla., 664 F.2d 435, 442 (5th Cir.1981) (en banc)

(Rubin, J.); League of United Latin American Citizens v. Clements,
999 F.2d 831, 846 (5th Cir.1993) (en banc), cert. denied, --- U.S.

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

In the case before us, the settlement reached by the White

class and the State of Alabama resolved the claims of Bradford and

Montiel contrary to their interests and without their consent.

Bradford and Montiel, however, were entitled as party plaintiffs to

fully litigate their claims. They did not receive this

opportunity. The district court believed, erroneously, it had

before it a valid consent decree; and the court entered its final

judgment based on the purported consent decree. Since the consent

decree was invalid1, the court could not enter a final consent

judgment and we need not consider the substance of the invalid

judgment.

1
The decree would also be invalid if, as maintained by the
appellants, the state's attorney general did not have authority
to negotiate the decree and bind the Alabama legislature,
governor and populace to a plan that would alter state
constitutional and statutory provisions.