White v. State of Alabama

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-7024

D. C. No. CV-94-T-094-N

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,

versus

THE STATE OF ALABAMA; JAMES BENNETT, in his official capacity as
Secretary of State for the State of Alabama,

Defendants-Appellees.

No. 94-7081

D. C. No. CV-94-T-94-N

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,

Intervenor-Plaintiffs,

JOHNNY CURRY; JACK WILLIAMS; MARK G. MONTIEL,

Intervenors-Plaintiffs-Appellants,
 versus

THE STATE OF ALABAMA, JAMES BENNETT, in his official capacity as
Secretary of State for the State of Alabama,

Defendants-Appellees.

Appeals from the United States District Court
for the Middle District of Alabama

(January 24, 1996)

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

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

TJOFLAT, Chief Judge:

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

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).

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 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

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."
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

3
 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

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

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.

4
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 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."

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.

5
6
 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 (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.

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).

7
 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, 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

the Equal Protection Clause of the Fourteenth Amendment, and (2)

to fashion an appropriate remedy to cure these violations.

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.

8
 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

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."

9
in 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 appellate courts had not been precleared under

section 5.13 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

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.

10
had 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

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.

11
agreement, therefore, would create both a quota system and

proportional representation.16

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

16
To ensure the perpetuation of the quota system and
proportional representation, the proposed settlement agreement
provided:

[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.

12
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 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

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.

13
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 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

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

14
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 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

would be abolished if the court had fewer than two black
justices. At the very least, the proposed agreement is ambiguous
on this point.
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.

15
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

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

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 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."

16
[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 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

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."
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).

17
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 perpetuating in office--on the Supreme Court

and the courts of appeals--members of the Democratic party and

effectively disenfranchising Alabama's Republican voters.26 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

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.

18
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

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)

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.
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.

19
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 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.

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.

20
 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 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

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.

21
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

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.

22
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 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

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.

23
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

24
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.

25
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.

26
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

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).

27
account of race."37 U.S. Const. amend XV; NAACP v. New York, 413

U.S. 345, 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

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, 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.2d 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).

28
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 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, 64 U.S.L.W. 3318

(U.S. Jan. 8, 1996) (No. 95-647). 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,

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

29
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

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 as opposed to sheer political expediency.40 Under a

the voters of Alabama have a chance to meet them in the ballot
box. See id. at 1526.
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

30
typical "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

(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. 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.

31
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 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

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
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

32
Both 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:

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 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)).

33
 [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.

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

44
Nipper was decided in December of 1994, and thus the
district court did not have the benefit of Nipper's holding when

34
 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 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 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 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

it decided this case.

35
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., infra, 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 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

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.

36
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 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

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.

37
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

incorporated the relief proposed jointly by other parties, White

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

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 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.

38
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 F.2d 435, 442 (5th Cir. 1981) (en banc) (opinion of Rubin,

J.).50 Here, Bradford and Montiel are non-consenting dissenting

parties.51 Indeed, they vigorously objected to the remedy White

and the 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,

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.

39
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

40
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 not render it

"immune from attack." Id.

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).

41
 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

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).

42
the three-judge 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 Wright,
Miller & Kane, 7A Federal Practice and Procedure § 1770.

43
SO ORDERED.

44