Johnson v. DeSoto County Board of Commissioners

United States Court of Appeals,

Eleventh Circuit.

No. 94-3448.

Brenda M. JOHNSON; William Guice; Oliver Flemming; Jessie
Alford, Plaintiffs-Appellees,

v.

DESOTO COUNTY BOARD OF COMMISSIONERS, R.V. Griffing, in his
official capacity as Chairperson of the DeSoto County Board of
Commissioners; John Ed. Johnson, in his official capacity as
member of the DeSoto County Board of Commissioners; Paul Whitlock,
in his official capacity as member of the DeSoto County Board of
Commissioners; Ed W. Horton, in his official capacity as a member
of the DeSoto County Board of Commissioners; Raymond Stewart, in
his official capacity as a member of the DeSoto County Board of
Commissioners, Defendants,

DeSoto County School Board, Defendant-Appellant,

Rodney Hollingsworth, in his official capacity as Chairperson of
the DeSoto County School Board; Phyllis Nesmith, in her official
capacity as a member of the DeSoto County School Board; James
Westberry, in his official capacity as a member of the DeSoto
County School Board; Ronnie Allen; Marion Carroll, in her
official capacity as a member of the DeSoto County School Board;
David Thornton, in his official capacity as Supervisor of Elections
for DeSoto County, Defendants.

Jan. 23, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 90-366-Civ-FtM-17D), Elizabeth A.
Kovachevich, Judge.

Before BIRCH and CARNES, Circuit Judges, and SIMONS*, Senior
District Judge.

CARNES, Circuit Judge:

The DeSoto County, Florida School Board appeals the district

court's grant of summary judgment against the School Board and in

favor of the plaintiffs who are four black registered voters in

*
Honorable Charles E. Simons, Jr., Senior U.S. District
Judge for the District of South Carolina, sitting by designation.
DeSoto County. The district court held that the election of the

School Board members through an at-large voting system, established

by a 1947 Florida Act, now codified as Florida Statutes §§ 230.08

and 230.10, violates § 2 of the Voting Rights Act of 1965, 42

U.S.C.A. § 1973 (West 1994).

The district court's judgment is based upon its holding that

the Florida Legislature's intent in enacting the 1947 Act was to

discriminate against blacks. That holding is in turn premised upon

the court's conclusion that two decisions of this Court involving

the same state statute but different counties preclude as a matter

of law any contrary finding about the intent behind the

legislation. After setting out the facts and procedural history of

this case in Part I of this opinion, we explain in Part II.A why

the two prior decisions of this Court that the district court

relied upon do not foreclose the intent inquiry in this case. The

district court also held that a showing of intent to discriminate

establishes a violation of § 2 of the Voting Rights Act regardless

of whether the plaintiffs prove any discriminatory results, and in

Part II.B we explain why that holding is error. We then discuss in

Part II.C the role that a finding of intent to discriminate does

play in a § 2 determination. Part III contains our conclusion.
I. FACTS AND PROCEDURAL HISTORY

In 1947, the Florida Legislature adopted an at-large system

for the election of county school boards. Fla.Stat. §§ 230.08 &

230.10. Although the legislature amended the statute in other

respects in 1955 and 1969, it retained the at-large election

system. Fla.Stat. §§ 230.08 & 230.10 (1993). Pursuant to the
amended 1947 Act, the DeSoto County School Board consists of five

members elected at-large from five residential districts.

The plaintiffs filed suit against the School Board claiming

that DeSoto County's at-large method of electing school board

members violated § 2 of the Voting Rights Act by diluting minority

voting strength.1 The district court granted the plaintiffs'

motion for summary judgment and enjoined DeSoto County from

conducting at-large school board elections. Johnson v. DeSoto

County Bd. Comm'rs, 868 F.Supp. 1376 (M.D.Fla.1994). The district

court based its judgment upon a holding that "binding precedent"

precluded the School Board from litigating the issue of intent, and

a holding that intent alone is sufficient to establish a claim

under § 2 of the Voting Rights Act. Id. at 1379. In the

alternative, the district court held that even if some proof of

discriminatory results is necessary to establish a § 2 violation,

where intent to discriminate exists such results "need only be

minimal," and the court concluded that the undisputed evidence

established what it described as the requisite "minimal current

1
In addition, the plaintiffs claimed that the county's
at-large system for electing school board members violated the
First, Thirteenth, Fourteenth, and Fifteenth Amendments to the
Constitution. However, neither side sought summary judgment on
those constitutional claims, and this appeal does not concern
them.

The plaintiffs also alleged violations under § 2 of the
Voting Rights Act, as well as constitutional violations,
stemming from the at-large system for electing the DeSoto
County Board of Commissioners. The district court denied
the plaintiffs' motion for summary judgment insofar as the
Board of County Commissioners election is concerned, but
this appeal does not concern these claims. The district
court has stayed the trial involving the Board of County
Commissioners while this appeal is pending.
results." Id. at 1380.

The School Board appeals the district court's judgment,

contending that the district court erred in holding: (1) that two

prior Eleventh Circuit precedents precluded the School Board from

litigating whether there was discriminatory intent behind the 1947

Act; (2) that a violation of § 2 of the Voting Rights Act can be

established by evidence of discriminatory intent alone, without a

showing of discriminatory results; and (3) in the alternative,

that once intent to discriminate is established, "current minimal"

discriminatory results is all that plaintiffs need show in order to

prevail.
II. DISCUSSION

We review a district court's grant of summary judgment de

novo, considering the evidence in the light most favorable to the

nonmovant. E.g., Flores v. Carnival Cruise Lines, 47 F.3d 1120,

1122 (11th Cir.1995). We independently review the record that was

before the district court, utilizing the same standards applied in

the district court. E.g., Real Estate Fin. v. Resolution Trust

Corp., 950 F.2d 1540, 1543 (11th Cir.1992).

A. THIS COURT'S PRIOR HOLDINGS IN THE ESCAMBIA COUNTY AND GADSDEN
COUNTY CASES REGARDING THE INTENT BEHIND THE 1947 ACT DO NOT
FORECLOSE THE ISSUE IN THIS CASE

The district court held that this Court's decisions in

McMillan v. Escambia County, Florida, 638 F.2d 1239 (5th Cir.1981),

vacated in part on other grounds, 466 U.S. 48, 104 S.Ct. 1577, 80

L.Ed.2d 36 (1984), and NAACP v. Gadsden County School Board, 691

F.2d 978 (11th Cir.1982), are binding precedent on the issue of the

intent behind the 1947 Act, which foreclose further consideration
of that issue in this case. The district court stated:

[T]he McMillan [v. Escambia County ] Court found the [at-large
election] statutes unconstitutional. The Gadsden [County]
Court followed the precedent. An appellate court's finding
that a statute [enacted with discriminatory intent] is
unconstitutional is an interpretation of constitutional law,
which is binding precedent and is therefore relevant and
applicable in the instant case.

DeSoto County, 868 F.Supp. at 1379. That reasoning is based upon

a misreading of our holdings in Escambia County and Gadsden

County.2

In both Escambia County and Gadsden County, the plaintiffs

brought suit against their local school board, arguing that the

system of electing the school board violated the Thirteenth,

Fourteenth, and Fifteenth Amendments to the United States

Constitution.3 As part of their Fourteenth Amendment claim, the

2
The plaintiffs characterize the district court's holding
that Escambia County and Gadsden County are "binding precedent"
as an application of the stare decisis doctrine. However, the
district court's decision was not based upon stare decisis but
instead upon the basic principle that district courts must follow
the holdings of their court of appeals and the Supreme Court.
These two principles, binding precedent and stare decisis, are
distinct. The doctrine of stare decisis accords a court
discretion to depart from one of its own prior holdings if a
compelling reason to do so exists. E.g., Hilton v. South
Carolina Pub. Ry. Comm'n, 502 U.S. 197, 202, 112 S.Ct. 560, 563-
64, 116 L.Ed.2d 560 (1991). The binding precedent rule affords a
court no such discretion where a higher court has already decided
the issue before it.
3
Although Escambia County and Gadsden County dealt primarily
with Fourteenth Amendment claims, and the present case concerns a
claim under § 2 of the Voting Rights Act, all of the cases
present the identical issue concerning whether there was
discriminatory intent behind the 1947 Act. The primary
difference between Fourteenth Amendment claims and § 2 claims,
which does not affect our present inquiry, is that under the
Fourteenth Amendment, plaintiffs are required to show
discriminatory intent as well as discriminatory results. In
contrast, plaintiffs in § 2 cases, such as this one, who prove
discriminatory results do not have to show discriminatory intent.
See, e.g., Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752,
plaintiffs in both of those cases were required to prove: (1) the

existence of discriminatory intent behind the 1947 Act, which

authorized the challenged election system, and (2) that the

operation of the challenged election system has led to

discriminatory results in that county. Gadsden County, 691 F.2d at

981; Escambia County, 638 F.2d at 1243. Proving that the 1947 Act

was enacted with discriminatory intent was one part of the

plaintiffs' cases in those cases, but the plaintiffs did not have

to show, nor did they show, that the legislation itself was

unconstitutional in all of its applications, i.e. as it applied in

every county of the state.

Furthermore, both Escambia County and Gadsden County treated

the district court's findings regarding the intent behind the 1947

Act as factual determinations, not legal conclusions. Gadsden

County, 691 F.2d at 981-82 (applying the clearly erroneous standard

of review, which is applicable to findings of fact and not to

conclusions of law); Escambia County, 638 F.2d at 1243 (suggesting

"several possible evidentiary sources for such a [factual]

determination"); see also Rogers v. Lodge, 458 U.S. 613, 622-23,

102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982) (describing district

court determinations regarding the invidious purpose behind an

at-large election system as "factual findings" subject only to

"clearly erroneous" review). In both Escambia County and Gadsden

County, the panels held based upon the evidence presented in those

cases that there was discriminatory intent behind the 1947 Act.

2758, 92 L.Ed.2d 25 (1986). In Part II.B, infra, we address the
converse of that proposition—whether plaintiffs who show
discriminatory intent also must prove discriminatory results.
The Escambia County panel upheld—held not to be clearly erroneous—a

district court's finding, based upon the evidence presented in that

case, that there was discriminatory intent behind the 1947 Act.

638 F.2d at 1245-46. The Gadsden County panel, one year after

Escambia County had been decided, again applied the "clearly

erroneous" standard; it reversed as clearly erroneous in light of

the evidence presented in that case, a district court's factfinding

that there was no discriminatory intent behind the 1947 Act. 691

F.2d at 982.4
The Gadsden County Court's treatment of the intent issue is

itself inconsistent with the district court's conclusion in this

case that the Gadsden County and Escambia County decisions

establish as a matter of law that there was discriminatory intent

behind the 1947 Act. If a prior panel's holding regarding the

intent behind the 1947 Act established as a matter of law what that

intent was, then the Gadsden County Court would have treated the

4
The Gadsden County opinion does discuss the Escambia County
panel's conclusion that "it was clear beyond peradventure" that
the at-large system had been adopted with an invidious
motivation. Gadsden County, 691 F.2d at 982. However, that
reference comes only after the opinion discusses the evidence
presented in the Gadsden County case itself, and only after it
squarely held that: "The trial court's finding on the question
must be upheld unless it is clearly erroneous." Id. at 981-82.
The Gadsden County opinion's conclusion that the trial court's
finding in that case was clearly erroneous was based upon the
"[d]irect evidence of discriminatory intent in the enactment of
the election scheme ... presented by plaintiff's expert witness
..." and the compelling evidence of the historical chronology
involving the enactment of the 1947 Act. Id.

District court factfindings in a case must be based
upon evidence presented in that case. An appellate court's
conclusion about whether a different district court's
factfinding in another case was clearly erroneous based upon
the evidence in that other case cannot itself be evidence in
a later case.
Escambia County holding regarding the 1947 Act's intent as binding

precedent. It did not. Instead, Gadsden County examined the

intent issue as a question of fact, to be decided based upon the

evidence in the case before it, which left the door open for a

decision on the intent issue different from that reached in the

earlier Escambia County case.

If the district court were correct that the issue of the

intent behind the 1947 Act were a question of law, the Gadsden

County Court would have been compelled by our prior panel precedent

doctrine to follow the Escambia County Court's conclusion that the

1947 Act was enacted with discriminatory intent, instead of

examining the issue anew, as it did. See, e.g., Bonner v. City of

Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (a

prior panel decision cannot be overruled by another panel but must

instead be followed by it); United States v. Woodard, 938 F.2d

1255, 1258 n. 4 (11th Cir.1991), cert. denied, 502 U.S. 1109, 112

S.Ct. 1210, 117 L.Ed.2d 449 (1992). That the Gadsden County Court

examined the intent issue as one of fact to be decided anew in that

case is itself a holding, albeit an implicit one, that is binding

upon this panel. In order to be consistent with Gadsden County 's

treatment of the intent issue as one of fact even after the

Escambia County decision, we hold that neither of those two

decisions established as a matter of law that the 1947 Act was

motivated by an intent to discriminate.5 On remand, it will be

5
We realize that if the evidence in this case were identical
to the evidence presented in Gadsden County, the decision in that
case, that failure to find discriminatory intent from such
evidence is clearly erroneous, would be binding precedent which
would compel a finding of discriminatory intent from the same
necessary for the district court to determine as a factual matter,

based upon the relevant evidence and testimony presented by the

parties in this case, whether there was discriminatory intent

behind the 1947 Act.6

B. DISCRIMINATORY INTENT ALONE IS INSUFFICIENT TO ESTABLISH A
VIOLATION OF SECTION 2

After erroneously holding that this Court's precedents

established as a matter of law that there was discriminatory intent

behind the 1947 Act, the district court held that "proof of

discriminatory intent is sufficient to establish a § 2 violation."

DeSoto County, 868 F.Supp. at 1379. That holding is inconsistent

with the Supreme Court's decision in Voinovich v. Quilter, 507 U.S.

146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993).

Voinovich involved a § 2 challenge to an apportionment plan

that created a number of state legislative districts dominated by

evidence in this case. However, the School Board in this case
contends, without contradiction from the plaintiffs, that it has
proffered evidence not presented in either Escambia County or
Gadsden County. The School Board describes that additional
evidence as expert opinion that discriminatory intent did not
motivate the 1947 Act. The credibility of competing experts and
the weight to be accorded the evidence submitted by both sides
will, of course, be decided by the district court, subject only
to clearly erroneous review on appeal.
6
We recognize that there is an unresolved collateral
estoppel issue in this case. The district court did not reach
the plaintiffs' contention that the School Board in this case is
collaterally estopped by the Gadsden County and Escambia County
judgments from denying that the 1947 Act was motivated by the
intent to discriminate. We decline to decide that issue in the
first instance both because it may be unnecessary to the ultimate
disposition of this case, and also because the record may not be
adequately developed at this point. Nothing said in this opinion
is meant to imply any view on the collateral estoppel issue,
which the district court may address on remand, and which it must
address if unconvinced by the evidence presented in this case
that discriminatory intent motivated the 1947 Act.
minority voters ("majority-minority districts"). The Supreme Court

reversed the district court's holding that § 2 itself prohibits the

creation of majority-minority districts unless such districts are

necessary to remedy a violation of that provision. 507 U.S. at ---

-, 113 S.Ct. at 1156. The unanimous opinion in Voinovich stated:

"We hold only that, under § 2 of the Voting Rights Act of 1965 ...

plaintiffs can prevail on a dilution claim only if they show that,

under the totality of the circumstances, the State's apportionment

scheme has the effect of diminishing or abridging the voting

strength of the protected class." Id. at ----, 113 S.Ct. at 1157

(emphasis added). In explaining why § 2 does not per se prohibit

creation of majority-minority districts, the Court stated that, "§

2 focuses exclusively on the consequences of apportionment. Only

if the apportionment scheme has the effect of denying a protected

class the equal opportunity to elect its candidate of choice does

it violate § 2." Id. at ----, 113 S.Ct. at 1156. That statement

is followed by a quotation from Thornburg v. Gingles, 478 U.S. 30,

46, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1986), that "electoral

devices ... may not be considered per se violative of § 2.

Plaintiffs must demonstrate that, under the totality of the

circumstances, the devices result in unequal access to the

electoral process." Voinovich, 507 U.S. at ----, 113 S.Ct. at

1156. For that reason, the Supreme Court held that the district

court "was required to determine the consequences of Ohio's

apportionment plan before ruling on its validity; the failure to

do so was error." Id. That clear holding in Voinovich forecloses

the district court's holding, and the plaintiffs' position, that
discriminatory intent alone can violate § 2 even without

discriminatory results.

The plaintiffs seek to escape the force and effect of

Voinovich by arguing that: (1) the parts of the Voinovich opinion

inconsistent with the plaintiffs' position are dicta, and (2) that

those parts of Voinovich were overruled by the Court's decision in

Johnson v. De Grandy, --- U.S. ----, 114 S.Ct. 2647, 129 L.Ed.2d

775 (1994), anyway. We are not convinced of either proposition.

With regard to the suggestion that the relevant parts of

Voinovich are dicta, it is true that the Supreme Court also held in

that case that the district court's finding of intentional

discrimination was clearly erroneous, 507 U.S. at ----, 113 S.Ct.

at 1159, and thus the Court was not actually presented with a case

in which discriminatory intent existed. However, the discussion in

the Voinovich opinion about discriminatory results being essential

to a § 2 violation comes before the part about whether intent to

discriminate had been proven in that particular case. At the

least, the results discussion is an alternative holding of the

case, and we are bound by alternative holdings. See, e.g.,

Commonwealth of Mass. v. United States, 333 U.S. 611, 623, 68 S.Ct.

747, 754, 92 L.Ed. 968 (1948); McLellan v. Miss. Power & Light

Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977). Moreover, the Supreme

Court itself denominated its pronouncement about discriminatory

results being essential to a vote dilution claim a holding, 507

U.S. at ----, 113 S.Ct. at 1157 ("We hold ..."), and we will not
second guess the Court on that.7

We also disagree with the plaintiffs' contention that the

Supreme Court's subsequent decision in De Grandy overruled its

decision in Voinovich. The De Grandy case involved a § 2 challenge

to a state reapportionment plan that called for single-member

districting. The State argued that its districting plan should be

immune from challenge under § 2 because minority voters formed

effective voting majorities in a number of districts roughly

proportional to their shares in the voting-age population. The

plaintiffs in that case disagreed, pointing out that a districting

plan might be "proportional" but still violate § 2 by trading off

the rights of some members of a minority group against the rights

of other members of the same minority group. The Court agreed with

the plaintiffs, explaining that, "Under the State's view, the most

blatant racial gerrymandering in half of a county's single member

districts would be irrelevant under § 2 if offset by political

gerrymandering in the other half, so long as proportionality was

the bottom line." De Grandy, --- U.S. at ----, 114 S.Ct. at 2661.

That reasoning and that holding are not, however, inconsistent with

Voinovich.

7
We do not mean to imply that if the discriminatory results
discussion in the Voinovich opinion had been dicta, we would be
free to ignore it. See, e.g., United States v. Santana, 6 F.3d
1, 9 (1st Cir.1993) ("[c]arefully considered statements of the
Supreme Court, even if technically dictum, must be accorded great
weight and should be treated as authoritative when, as in this
instance, badges of reliability abound"); Nichol v. Pullman
Standard, Inc., 889 F.2d 115, 120 n. 8 (7th Cir.1989) (court of
appeals "should respect considered Supreme Court dicta"); United
States v. Beale, 731 F.2d 590, 593 (9th Cir.1983) (because the
Supreme Court dicta "is so recent and appears to be so carefully
considered ... we feel obliged to apply it to the case at hand").
 The De Grandy Court did not say that some § 2 plaintiffs may

prevail without showing discriminatory results, nor is there

anything in that decision which contradicts Voinovich 's holding

that discriminatory results must be shown in order to establish a

§ 2 violation. De Grandy simply establishes that the requisite

discriminatory results may be shown with regard to one group of

minority voters, even though there are no discriminatory results

with regard to other members of the same minority group, or with

regard to minority voters considered as a whole. Moreover, it is

incredible to suggest, as the plaintiffs do, that the Supreme Court

in De Grandy intended to overrule sub silentio Voinovich, a

unanimous decision it had reached only one year earlier, and that

it did so without a single member of the Court protesting such an

abrupt departure from stare decisis. For all of these reasons, we

reject the plaintiffs' contention that De Grandy eviscerated

Voinovich. To the contrary, Voinovich is still the law, and it

binds us.

Even if Voinovich did not bind us, we would still be bound by

the plain language of § 2, which states:

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....

42 U.S.C.A. § 1973(a) (West 1994) (emphasis added). That statutory

language expressly requires a showing of discriminatory results,

and it admits of no exception for situations in which there is

discriminatory intent but no discriminatory results.

Despite Voinovich and the plain language of § 2, the
plaintiffs still contend that intent alone is enough, and point to

statements from the Senate Report that accompanied the 1982

amendments to § 2. The 1982 Amendments arose in response to City

of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64

L.Ed.2d 47 (1980), in which the Supreme Court held that § 2

required proof of discriminatory intent in addition to proof of

discriminatory results. Congress amended § 2 "to restore the legal

standard that governed voting discrimination cases prior to the

Supreme Court's decision in Bolden "—a standard Congress perceived

as allowing plaintiffs to prevail without proving discriminatory

intent. S.Rep. No. 417, 97th Cong., 2d Sess. 15 (1982),reprinted

in 1982 U.S.C.C.A.N. 177, 192; see also Gingles, 478 U.S. at 35,

106 S.Ct. at 2758.

The plaintiffs point to several statements in the Senate

Report that suggest that intent alone is sufficient to establish a

§ 2 violation, and urge this Court to interpret § 2 accordingly.

For example, the Senate Report states: "[p]laintiffs must either

prove such intent, or, alternatively, must show that the challenged

system or practice, in the context of all the circumstances in the

jurisdiction in question, results in minorities being denied equal

access to the political process." S.Rep. No. 417 at 27, reprinted

in 1982 U.S.C.C.A.N. at 205 (footnote omitted). Similarly the

Senate Report states: "During the hearings on the Voting Rights

Act of 1965, Attorney General Katzenbach testified that section 2

would ban "any kind of practice ... if its purpose or effect was to

deny or abridge the right to vote on account of race or color.' "

Id. at 17, reprinted in 1982 U.S.C.C.A.N. at 194 (quoting Hearings
on S. 1564 Before the Committee on the Judiciary, United States

Senate, 89th Cong., 1st Sess. 191 (1965)).

We recognize that the Supreme Court has referred to the Senate

Report as the "authoritative source for legislative intent" about

the amended § 2. Gingles, 478 U.S. at 43 n. 7, 106 S.Ct. at 2762

n. 7. Even so, that report does not require, or even allow, us to

hold that intent alone is sufficient under § 2. For one thing, the

Senate Report is ambiguous. In addition to the statements that the

plaintiffs point to, the Senate Report also states that the intent

test "asks the wrong question," and that the proper question is

"whether minorities have equal access to the process of electing

their representatives." S.Rep. No. 417 at 36, reprinted in 1982

U.S.C.C.A.N. at 214.

Moreover, the Supreme Court has never held that the Senate

Report can override the plain language of § 2 itself. To the

contrary, the Supreme Court has "stated time and again that courts

must presume that a legislature says in a statute what it means and

means in a statute what it says there." Connecticut Nat'l Bank v.

Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d

391 (1992); see also United States v. Ron Pair Enter., Inc., 489

U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989);

Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297,

2301, 85 L.Ed.2d 692 (1985). It is precisely this principle of

statutory construction that we believe the Supreme Court was

following in Voinovich.

That brings us to the third, and perhaps most conclusive,

reason that we cannot read the results requirement out of § 2 based
upon anything in the Senate Report. The Supreme Court was well

aware of the Senate Report when Voinovich was decided, and

notwithstanding any statements to the contrary in that report, the

Court held that in order to prevail on a § 2 claim, a plaintiff

must prove discriminatory results. We are bound by Supreme Court

holdings, not by statements in legislative committee reports.8
C. A FINDING OF INTENT TO DISCRIMINATE SERVES AS CIRCUMSTANTIAL
EVIDENCE OF DISCRIMINATORY RESULTS

Given our holding that intent alone is insufficient to

establish a § 2 violation, we still must address what role, if any,

discriminatory intent plays in a § 2 claim. The district court

held, in the alternative, that even if discriminatory intent alone

is not enough to establish a violation, the existence of such

intent lessens the necessary showing of discriminatory results.

The district court stated: "[E]ven if proof of current effects was

necessary, this Court agrees with Plaintiffs' position that it need

only be minimal...." DeSoto County, 868 F.Supp. at 1380. The

School Board disagrees, and argues that proof of discriminatory

8
The plaintiffs also point to a statement in Nipper v.
Smith, 39 F.3d 1494 (11th Cir.1994) (en banc), cert. denied, ---
U.S. ----, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995), in which two
of the eight judges of this Court sitting en banc stated:

Thus, under section 2 as amended, a plaintiff once
again may demonstrate a violation by proving either:
(1) the subjective discriminatory motive of legislators
or other relevant officials; or (2) the existence of
objective factors demonstrating that the electoral
scheme interacts with racial bias in the community and
allows that bias to dilute the voting strength of the
minority group.

Id. 39 F.3d at 1520. However, that statement is dictum, it
was only joined by two of the eight members of this Court
participating in Nipper, and it is inconsistent with the
express contrary holding by the Supreme Court in Voinovich.
intent is irrelevant in a § 2 case. We believe that both the

district court's alternative holding and the School Board's

position miss the mark.

We have already explained how the district court's primary

holding, that intent to discriminate eliminates the necessity for

any proof of discriminatory results, is inconsistent with the

Supreme Court's Voinovich decision. Likewise, the district court's

alternative holding that intent to discriminate lessens the amount

of discriminatory results that must be shown suffers from the same

problem—it, too, is inconsistent with one of the Supreme Court's

Voinovich holdings. In that case, the district court had placed

the burden of justifying the challenged practice on the State. 507

U.S. at ----, 113 S.Ct. at 1156. The Supreme Court explained that

the district court's shifting of the burden was a departure from

the requirements of the statute, which places the burden on § 2

plaintiffs to prove the challenged practice produces discriminatory

results, and "[b]ecause that departure from the statutorily

required allocation of burdens finds no support in the statute, it

was error for the District Court to impose it." Id. The same is

true here. The statute itself requires that discriminatory results

be shown; it does not provide that minimal results or "minimal

current effects" will suffice. Because the district court's

departure from the statutorily required showing in this case "finds

no support in the statute," it was error for the court to impose

it. Id.

We are left with the question of what effect a finding of

intent to discriminate has in the § 2 calculus. The School Board
argues it has no effect, but we reject that position. Indeed, if

we were writing on a clean statutory and decisional law slate, we

would hold that a finding of discriminatory intent has a strong

presumptive effect. The fact that a statute is enacted with

discriminatory intent establishes, at the least, that the

legislature hoped and believed the statute would lead to

discriminatory results. It would be reasonable for a court to

presume, absent proof to the contrary, that the legislature

believed correctly, and that the statute indeed resulted in

discrimination. Cf. International Bhd. of Teamsters v. United

States, 431 U.S. 324, 359 n. 45, 97 S.Ct. 1843, 1867 n. 45, 52

L.Ed.2d 396 (1977) ("[p]resumptions shifting the burden of proof

are often created to reflect judicial evaluations of

probabilities"). The fact that the body intending to harm blacks

was a legislature, composed of elected officials thoroughly

knowledgeable about political, electoral, and racial realities

across the state, certainly suggests that any doubt about

discriminatory results should be resolved in favor of concluding

that those officials knew how to achieve their nefarious ends. Cf.

Board of Educ. of Oklahoma City, Pub. Sch., Independent Sch. Dist.

No. 89, Oklahoma City, Okla. v. Dowell, 498 U.S. 237, 267 n. 10,

111 S.Ct. 630, 647 n. 10, 112 L.Ed.2d 715 (1991) (Marshall, J.,

dissenting) (pointing out that in situations in which a school

district has engaged in intentional segregation, every presumption

established by the Court has been against the school board).

Were it up to us, we could justify a rule that discriminatory

results should be presumed from discriminatory intent—that when
plaintiffs in a § 2 action prove that a voting standard, practice,

or procedure was invidiously motivated, the burden of going forward

and the burden of persuasion shift to the defendant. In such a

case, the defendant would have the burden of proving that under the

"totality of the circumstances" the challenged standard, practice,

or procedure did not "result[ ] in a denial or abridgement of the

right of any citizen of the United States to vote on account of

race or color...." 42 U.S.C.A. § 1973(a) (West 1994). But it is

not up to us. Our hands are tied by the Supreme Court's decision

in Voinovich which squarely held that "[t]he burden of "show[ing]'

the prohibited effect, of course, is on the plaintiff; surely

Congress could not have intended the State to prove the invalidity

of its own apportionment scheme." 507 U.S. at ----, 113 S.Ct. at

1156. Voinovich reversed the action of a lower court in shifting

the burden of proof in a § 2 case, because it was a "departure from

the statutorily required allocation of burdens [that] finds no

support in the statute." Id. The same is true of our preferred

course, and so the slate is far from clean.

Still, proof of intent to discriminate is not irrelevant in a

§ 2 action. It is circumstantial evidence of discriminatory

results that should be considered in assessing the "totality of the

circumstances." Where it can be inferred, as it often can be, that

the enactors were in a good position to know the effect their

actions would have, the fact that the enactment was motivated by a

desire to produce discriminatory results will often be strong,

albeit circumstantial, evidence that such results were achieved.

Nothing in Voinovich or any other Supreme Court decision, and
nothing in the language of § 2 itself, prohibits drawing an

evidentiary inference about results from intent. Of course, the

evidentiary weight that intent to discriminate should be given will

vary, depending upon the circumstances. For example, where

statewide legislation is involved, the legislators may have

intended to affect as many county school board elections as

possible, but the maximum effect that legislation can have in a

particular county will depend upon the racial composition of the

county's electorate and other factors.

If, after conducting an evidentiary hearing, the district

court in this case finds that the 1947 Act was enacted with the

intent to discriminate, it can consider the existence of that

intent as circumstantial evidence of discriminatory results. The

existence of discriminatory intent can be considered with all of

the other evidence to determine whether the plaintiffs have carried

their burden of proving that the at-large system for electing

DeSoto County School Board members has resulted in the denial or

abridgement of the plaintiffs' right to vote on account of their

race or color.
III. CONCLUSION

The district court's grant of summary judgment against the

School Board is REVERSED, and the case is REMANDED for further

proceedings consistent with this opinion.