Davis v. Chiles

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-3547
_______________
D. C. Docket No. 90-CV-40098-MMP

ANITA DAVIS, LEE E. HARRIS, LAFAYE DENISE BIRCH, MALACHI ANDREWS,
KIM T. LYLES,
Plaintiffs-Appellants,

versus

LAWTON CHILES; SANDRA MORTHAM, FLORIDA SECRETARY OF STATE; DAVID
RANCOURT, DIRECTOR, DIVISION OF ELECTIONS, FLORIDA DEPARTMENT OF
STATE,
Defendants-Appellees,

JIM SMITH, DOT JOYCE,
Defendants.

______________________________

Appeal from the United States District Court
for the Northern District of Florida
______________________________
(April 30, 1998)

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and
COHILL*, Senior District Judge.

BIRCH, Circuit Judge:

In this case we review plaintiff-appellants’ challenge to two at-

large judicial election districts in Florida under Section Two of the

*
Honorable Maurice B. Cohill, Senior District Judge for the
Western District of Pennsylvania, sitting by designation.
Voting Rights Act, 42 U.S.C. § 1973 (“Section Two”). Although the

district court found that racially polarized voting plagued the electoral

systems at issue, it granted judgment to the defendant-appellees on

the ground that Florida’s interest in maintaining its current system of

selecting judges outweighs the plaintiff-appellants’ interest in their

proposed remedy. In addition, the district court ruled that it could not

accept plaintiff-appellants’ remedial plan because it would involve

racially-conscious redistricting without a compelling state purpose.

Because we believe that our Section Two precedents foreclose any

significant restructuring of a state’s judicial election system, we

affirm.

I. BACKGROUND

In this class action, plaintiff-appellants Anita Davis, et al.

(“Davis”) attack two at-large judicial election systems in Florida on

the grounds that black voters within these systems suffer from illegal

vote dilution. Although the two districts at issue differ in size and

2
jurisdiction, they share similar electoral systems and demographics.

First, the Second Judicial Circuit (“Second Circuit”) comprises the six

counties of Franklin, Gadsen, Jefferson, Leon, Liberty, and Wakulla.

All eleven judges on the Second Circuit are elected in at-large,

circuit-wide voting for six-year terms. Within the Second Circuit,

blacks constitute 28.9% of the overall population, 26.1% of the

voting age population, and 25.1% of registered voters. Much like the

judges on the Second Circuit, the four judges on the Leon County

Court are elected in at-large, countywide voting for four-year terms.

In Leon County, blacks make up 24.2% of the overall population,

22.2% of the voting age population, and 21.8% of registered voters.

In both election districts, the black population is concentrated in a

few areas, with many black voters residing either within Gadsen

County or a few precincts of Tallahassee. Further, the non-partisan

election systems in both the Second Circuit and Leon County

include majority vote requirements, post-numbered systems,1 and

1
In a post-numbered multi-member district, each candidate runs
for a specific (numbered) “post”. This way, incumbents do not have

3
staggered terms. In both circuits, the Governor may fill any mid-term

vacancies through appointment of candidates recommended by a

Judicial Nominating Commission. Finally, the Second Circuit Court

is a trial court of general jurisdiction, see Fla. Const. art. V § 6; Fla.

Stat. § 26.012, while the Leon County Court is a trial court of limited

jurisdiction, see Fla. Const. art. V § 5; Fla. Stat. § 34.01. Byn
eo d

these structural similarities, the two judicial districts also share a

history of racially polarized voting. In the few elections in which

black candidates have competed against white candidates (prior to

Davis’s initiation of this litigation), no black lawyer has ever won

election to either the Second Circuit or Leon County Courts.2 In

to run against each other, and more focused competition may develop
between a limited number of candidates running for particular
posts.
2
Following the district court’s initial finding of racially
polarized voting in elections for the Second Circuit and Leon
County Courts, the Florida legislature specially created a new
judgeship on the Second Circuit, to which the Governor appointed a
black lawyer. See infra note 6. This single black judge has since
won reelection, having run without opposition. In addition, a
black lawyer recently defeated a white candidate for a judgeship in
Leon County. Elections of minority candidates during the pendency
of Section Two litigation, however, have little probative value.
See Thornburg v. Gingles, 478 U.S. 30, 76, 106 S. Ct. 2752, 2779,
92 L. Ed. 2d 25 (1986) (“[T]he court could properly notice the fact
that black electoral success increased markedly . . . after the
instant lawsuit had been filed—and could properly consider to what

4
each of these black-versus-white elections, the overwhelming

majority of black voters supported the black candidates.3

Notwithstanding this political cohesion among black voters, however,

white voters did not supply enough crossover votes for the black

candidates to prevail, but

instead provided overwhelming support to the white candidates.4 In

1992, for example, black voters in Leon County gave approximately

98% of their support to a black candidate, but a white candidate who

received 68% of the white vote still won the election. As a result of

this dynamic, racial block voting has become “a well-known political

extent ‘the pendency of this very litigation [might have] worked a
one-time advantage for black candidates in the form of unusual
organized political support by white leaders concerned to forestall
single-member districting.’”) (alteration in original).
3
As the district court observed, the record of exogenous
black-versus-white elections reinforces this conclusion regarding
the effect of racially polarized voting on blacks’ electoral
success in these districts.
4
We also note that black candidates’ lack of electoral success
is not simply the result of incumbency effects. Whether running
for white-held or open seats, black candidates have faced similar
overwhelming opposition from white voters (prior to the initiation
of this litigation).

5
reality” in elections between black and white candidates for the

Second Circuit and Leon County Courts. R5-146 at 18

This description of the voting patterns in the Second Circuit and

Leon County receives further support from a review of “split-

preference” elections, in which black and white voters have

preferred different white candidates.5 In the eleven split-preference

elections in the record involving either the Second Circuit or Leon

County Courts, black voters have never succeeded in electing their

first choice candidate. In nine of the split-preference elections, the

black-preferred candidate lost outright to the white-preferred

candidate. In the tenth split-preference election, the black-preferred

candidate won a primary election over the white-preferred candidate,

but the black-preferred candidate then lost the general election to a

white-preferred candidate. In the eleventh case, black voters’ first

choice was a black candidate who lost to a white candidate in the

5
Although evidence drawn from elections involving black
candidates is more probative in Section Two cases, an analysis of
split-preference elections is also appropriate and relevant. See
Nipper v. Smith, 39 F.2d 1494, 1539-41 (11 th Cir. 1994) (en banc)
(plurality opinion).

6
primary election; only after this defeat did a majority of black voters

settle on the white candidate who ultimately defeated the white-

preferred candidate in the general election. Thus, black voters lack

the ability to play even a “swing” role within the two election districts,

whatever the race of the candidates.

At the same time, black voters cannot rely on the appointment

process to offset the effects of racially polarized voting. Prior to

1992, when the district court first ruled that racial polarization existed

in the districts at issue, no black person had ever received an

appointment to either the Second Circuit or the Leon County Court.6

Moreover, while the appointment process has been a significant

route to the bench in Leon County, election rather than

6
Following the district court’s initial finding of racial
polarization but before the district court considered Davis’s
proposed remedy, the Florida legislature added a seat to the Second
Circuit (overriding the Supreme Court of Florida), to which the
Governor appointed a black lawyer. This single appointment,
however, does not dispel our view that the appointment process has
not proven a significant remedy for racially polarized voting in
the Second Circuit. See Gingles, 478 U.S. at 76, 106 S. Ct. at
2779. Moreover, the Governor has not appointed any black judges
for the Leon County Court.

7
appointment has been the primary path to judicial office for the

Second Circuit.

On June 5, 1990, Davis brought a Section Two suit in the

district court against defendant-appellees Chiles, et al. (“Chiles”)

to challenge the legality of the at-large election systems for the

Second Circuit and Leon County Courts. Specifically, Davis alleged

that illegal vote dilution tainted elections for judgeships on the two

courts. As her proposed remedy, Davis asked the court to impose

a modified subdistricting plan.7 Under this proposed system, the two

current at-large districts would be split into a combination of single-

and multi-member subdistricts. In each of the new, smaller districts,

voters would choose individual judges in competitive, post-

7
In addition to her modified subdistricting scheme, Davis also
proposed cumulative and limited voting systems as alternative
potential remedies. Because this court has already rejected the
elimination of Florida’s place-numbering system (as would be
required for Davis’s cumulative and limited voting plans), we
decline to discuss these proposed remedies further here. See
Nipper, 39 F.3d at 1545-46 (plurality opinion) (warning that
elimination of place-numbering would force incumbent judges to run
against each other, thereby destroying collegiality), 1547
(Edmondson, J., concurring); see also League of United Latin Am.
Citizens v. Clemens, 999 F.2d 831, 876 (5 th Cir. 1993) (en banc)
(rejecting cumulative and limited voting).

8
numbered elections.8 Then, each successful subdistrict candidate

would face a circuit- or county-wide retention vote by all of the

citizens over whom they would exercise jurisdiction.9 Should any

candidate chosen by a subdistrict fail to receive majority support in

a retention vote, the Governor would have the power to fill the empty

judgeship as he would any mid-term vacancy.

After conducting a bench trial, the district court ruled on

September 3, 1992, that the judicial election systems in both the

Second Circuit and Leon County violated Section Two.10

8
As part of her subdistricting proposal, Davis has offered
several potential subdistrict designs. Because Davis’s specific
subdistricting plan all raise the same general legal issues, we,
like the parties, shall discuss them together as if they
represented a single remedial scheme.
9
Under Davis’s proposal, Florida would determine whether it
would require judicial candidates to reside within the subdistricts
in which they wished to seek election.
10
In addition to the circumstances described above, the
district court found that Florida has had a history of racially
discriminatory voting practices and that continuing socio-economic
disparities are hindering blacks’ participation in the political
process in these districts. See generally Gingles, 478 U.S. at 45,
106 S. Ct. at 2763 (discussing relevance of these factors for
analyses of the totality of the circumstances in Section Two
cases). The district court, however, also noted that the current
electoral systems in these districts was not created for any
racially discriminatory purpose and has not been administered in a
racially discriminatory manner.

9
Specifically, the district court held that Davis had proven each of the

three Gingles factors that the Supreme Court has held are required

to establish a prima facie case of vote dilution regarding a multi-

member district: (1) that the black population in the two systems is

sufficiently large and geographically compact to constitute a majority

in a single-member district; (2) that black voters in the two systems

are politically cohesive; and (3) that whites in the at-large districts

vote sufficiently as a block to enable them usually to defeat the black

voters’ preferred candidate.11 See Gingles, 478 U.S. at 50-51, 106

S. Ct. at 2766-67.12

11
In explaining this third factor, the Gingles Court was
careful to distinguish “the usual predictability of the majority’s
success,” which indicates a systemic problem, from “the mere loss
of an occasional election.” Gingles, 478 U.S. at 51, 106 S. Ct. at
2767.
12
In fact, the district court wrote that there is more evidence
to support a finding of racially polarized voting in this case than
there was in Gingles:
In the districts where violations were found in Gingles,
the estimates of black support for black candidates
ranged as low as 25 to 36 percent in several elections,
while white support for black candidates was often over
30 percent. Moreover, black candidates had previously
been elected to the office in question in all but one of
the districts where a violation was found in Gingles.
R5-146 at 17 (citations omitted).

10
 Shortly after its 1992 ruling, however, the district court set

aside its judgment and stayed further proceedings during the 1993

session of the Florida legislature in order to allow the state to

develop a remedy.13 Subsequently, the district court extended its

stay while it awaited this court’s en banc decision in Nipper. After

we delivered our opinions in Nipper and also in Southern Christian

Leadership Conference v. Sessions, 56 F. 3d 1281 (11th Cir. 1995)

(en banc) (“SCLC”), the district court conducted further hearings

specifically directed at the efficacy and propriety of Davis’s proposed

remedy. Then, on July 21, 1996, the district court rejected Davis’s

remedial plan and granted judgment for Chiles. Although the district

court noted that its second set of hearings had only reinforced its

earlier finding of racially polarized voting, it now held that Davis had

not met her prima facie burden of proposing an appropriate remedy

under the first Gingles factor as our en banc court had recently been

13
In addition, Davis and Chiles jointly requested that the
district court stay further proceedings until Jan 1, 1994. As a
condition of this joint request, Chiles agreed that the state would
ensure the creation of a judgeship on the Second Circuit Court and
that he would appoint a black lawyer to that new position.

11
interpreted in Nipper and SCLC. Specifically, the district court held

that Florida’s interests in (1) maintaining the judicial model

established by its Constitution, (2) preserving the territorial link

between its judges’ electoral districts and jurisdictions, and (3)

preventing the racial stigmatization of its judiciary collectively

outweighed Davis’s interest in adopting her proposed remedy to

ameliorate the effects of racially polarized voting. Then, the district

court ruled that it could not accept Davis’s modified subdistricting

plan because her proposal constituted racially-conscious

redistricting that was not justified by any compelling interest.

II. DISCUSSION

Davis challenges both the district court’s holding that Florida’s

interest in preserving its judicial election system outweighs her

interest in a remedy for racially polarized voting and its ruling that

her proposed subdistricting remedy is impermissibly race-conscious.

We discuss each issue in turn.

12
A. THE BALANCE OF INTERESTS REGARDING DAVIS’S
PROPOSED REMEDY

As part of any prima facie case under Section Two, a plaintiff

must demonstrate the existence of a proper remedy. See SCLC, 56

F.3d at 1289, 1294-97; Nipper, 39 F.3d at 1530-31 (plurality

opinion), 1547 (Edmondson, J., concurring).14 In assessing a

plaintiff’s proposed remedy, a court must look to the totality of the

circumstances, weighing both the state’s interest in maintaining its

election system and the plaintiff’s interest in the adoption of his

suggested remedial plan. See Houston Lawyers’ Ass’n. v. Attorney

General of Tex., 501 U.S. 419, 426, 111 S. Ct. 2376, 2381, 115 L.

Ed. 2d 379 (1991). Although the district court found that black

voters in the Second Circuit and Leon County suffered from racially

polarized voting, it concluded that Florida’s interests, as previously

14
Our en banc court established this principle as part of our
Section Two jurisprudence in our interpretation of the first
Gingles factor in Nipper. See Nipper, 39 F.3d at 1530-31 (plurality
opinion); see also Nipper, 39 F.3d at 1547 (Edmondson, J.,
concurring).

13
described, in (1) protecting the judicial model established by its

Constitution, (2) preserving linkage between its judges’ jurisdictions

and electoral bases, and (3) avoiding racial stigmatization of its

judicial system outweighed Davis’s interest in her proposed remedy.

As a result, the court held that Davis had not demonstrated the

existence of an appropriate remedy and therefore had failed to set

forth a Section Two violation under our circuit’s jurisprudence. We

review the district court’s factual findings regarding Davis’s proposed

remedy for clear error and its analysis of law de novo. See Gingles,

478 U.S. at 79, 106 S. Ct. at 2780-81; SCLC, 56 F.3d at 1291.

1. Interference with Florida’s Constitution

The district court detailed in its opinion a number of ways in

which Davis’s proposed remedy would contravene the Florida

Constitution. Although Davis does not now contest any of these

constitutional problems under Florida law, we review the

ramifications of Davis’s proposed remedy to establish the extent to

14
which Davis’s plan would affect Florida’s interest in maintaining its

judicial model.

First, Davis’s plan would require changes to Article V, Section

10 of the Florida Constitution, which directs that circuit and county

judges be elected “by a vote of the qualified electors within the

territorial jurisdiction of their respective courts.” Fla. Const. art. V §

10. Under Florida law, there is a difference between an “election,”

which allows for competing candidates, and a “retention” vote for

judicial office, which does not. See Fla. Stat. § 105.011(2)

(distinguishing between an “election” and a “retention” in defining a

“judicial office”). Although Davis’s plan would permit citizens

residing outside a subdistrict to vote in retentions, it would deny

them the right to take part in the “elections,” in contravention of

Florida’s provision that they can participate in both. See Fla. Stat.

§§ 105.061, 105.051.

Second, the retention language of Article V, Section 10

includes only justices of the Florida Supreme Court or judges of a

15
district court of appeal, as do Florida’s statutes. See Fla. Const. art.

V § 10(a); Fla. Stat. §§ 105.051(2), 105.061. Accordingly, there is

no constitutional or statutory basis in Florida law for the retention

system Davis proposes; as the district court observed, Florida’s

Constitution and statutes would have to change to allow for Davis’s

proposed move from jurisdiction-wide, competitive elections to

competitive, subdistrict elections followed by jurisdiction-wide

retentions.

Third, Article V, Section 9 of the Florida Constitution provides

that either the Supreme Court of Florida or the Florida legislature

shall define the territories of Florida’s judicial circuits. See Fla.

Const. art. V § 9. If a court were to require Florida to accept one of

the subdistrict design plans contained in Davis’s subdistricting

proposal, it would, by necessity, contravene this provision. This last

constitutional problem is of lesser import, though, because it goes

only to Florida’s manner of implementing its judicial model (i.e., how

it defines the borders of its circuits) rather than to the nature of

16
Florida’s judicial model itself (which Davis would dramatically change

by requiring subdistricting and circuit and county retentions,

above).15

In Nipper, we explained that a state has an interest in

maintaining the judicial selection model established by its

constitution. See Nipper, 39 F.3d at 1531 (plurality opinion), 1547

(Edmondson, J., concurring). In rejecting a plan to replace some of

Florida’s at-large judicial election districts with single-member

subdistricts, a majority of this court joined then-Chief Judge Tjoflat’s

holding that:

Implicit in this first Gingles requirement is a limitation on
the ability of a federal court to abolish a particular form of
government and to use its imagination to fashion a new
system. Nothing in the Voting Rights Act suggests an
intent on the part of Congress to permit the federal
judiciary to force on the states a new model of

15
Davis’s subdistricting proposal also runs counter to
Florida’s steady trend “away from partisan judicial elections and
towards the merit selection and resulting independence of the
judiciary.” Nipper, 39 F.3d at 1544 (plurality opinion). By
making judicial candidates responsive to smaller (i.e.,
subdistrict) constituencies, Davis’s plan “would, by its very
nature, alter this course and encourage greater ‘responsiveness’ of
judges to the special interests of the people who elected them.”
Id.
17
 government; moreover, from a pragmatic standpoint,
federal courts simply lack legal standards for choosing
among alternatives. Accordingly, we read the first
threshold factor of Gingles to require that there must be a
remedy within the confines of the state’s judicial model
that does not undermine the administration of justice.
....
In judicial cases . . . single-member districts may run
counter to the state’s judicial model.

Id. at 1531 (plurality opinion) (emphasis added); see id. at 1547

(Edmondson, J., concurring); see also Holder v. Hall, 512 U.S. 874,

880, 114 S. Ct. 2581, 2585, 129 L. Ed. 2d 687 (1994) (“In a § 2 vote

dilution suit, along with determining whether the Gingles

preconditions are met and whether the totality of the circumstances

supports a finding of liability, a court must find a reasonable

alternative practice as a benchmark against which to measure the

existing voting practice.”) (quoted in Nipper, 39 F.3d at 1531-32

(plurality opinion)). Under Nipper, therefore, this court must carefully

consider the impact that any remedial proposal would have on the

judicial model enshrined in a state’s constitution or statutes.

18
 Responding to Chiles’ reliance on Nipper, Davis contends that

any viable remedy for racially polarized voting must necessarily

effect some change in established electoral practices. Given both

the Nipper precedent and the extent of the interference with Florida’s

judicial model that Davis’s proposed remedy would require,

however, Davis’s argument cannot dispel our duty to give weight to

Florida’s right to maintain the integrity of its constitutional system.

Although we are troubled by the apparent presumption in favor of

status-quo polarization Nipper suggests, precedent requires that we

consider Florida’s interest in maintaining its Constitution’s judicial

selection system in determining whether Davis has proposed a

permissible remedy. We therefore weigh this factor against

imposition of Davis’s modified subdistricting plan.

2. Linkage Between Judges’ Jurisdictions and Electoral Bases

Territorial linkage between a trial judge’s jurisdiction and

electoral base serves Florida’s interest in judicial accountability. See

19
SCLC, 56 F.3d at 1296-97; Nipper, 39 F.3d at 1543-45 (plurality

opinion). Were a judge to be answerable to an electorate smaller

than his jurisdiction, the judge would have an incentive, however

unethical, to engage in “home cooking,” favoring litigants from his

election district over others. See SCLC, 56 F.3d at 1297. Thus, as

the Supreme Court has observed, “the State’s interest in maintaining

. . . the link between a district judge’s jurisdiction and the area of

residency of his or her voters . . . is a legitimate factor to be

considered by courts among the ‘totality of the circumstances’ in

determining whether a § 2 violation has occurred.” Houston, 501

U.S. at 426, 111 S. Ct. at 2381. When, as in this case, there is no

evidence that a state is administering its judicial election system in

a racially discriminatory manner, the state’s interest in preserving

linkage between judges’ jurisdictions and electoral bases is even

weightier. See Nipper, 39 F.3d at 1544 (plurality opinion).

Moreover, we have suggested that Florida has an interest in

20
avoiding even the appearance that its judges may harbor “home

cooking” biases. See id.16

Well aware of these precedents, Davis argues that her modified

subdistricting plan would protect Florida’s linkage interests because

each judge elected at the subdistrict level would face a retention

vote by all of the citizens within his jurisdiction. Although we

appreciate Davis’s creativity in attempting to surmount the

challenges that Nipper and SCLC pose to her suit, we must

conclude that her proposed remedy would substantially break

Florida’s linkage between its judges’s jurisdictions and electoral

bases. First, as a practical matter, Davis’s proposed retention votes

would place no real check on judges on the Second Circuit or Leon

County Courts. Based on the history of elections involving

Because of the importance of this linkage
16

interest, our circuit has thus effectively ruled
out the division of at-large judicial election
districts into separate subdistricts as a
permissible remedy. See Nipper, 39 F.3d at 1543-
45 (plurality opinion), 1547 (concurring opinion);
SCLC, 56 F.3d at 1296-97.
21
incumbents on these two courts, the district court found that “in

election systems limiting non-subdistrict voters to a right to vote for

or against retention or for jurisdiction-wide approval or disapproval

after an initial election, the powerful effect of incumbency in judicial

elections would render that right virtually worthless.” R8-277 at 43.

Since Davis has not challenged the district court’s assessment, and

we have found no reason in the record to disagree with the district

court’s factual findings concerning incumbency, we agree with the

district court that imposition of Davis’s plan “would be akin to

compelling the state to disenfranchise every voter residing in the two

jurisdictions, but outside the subdistrict.”17 See id. at 44. Second,

precedent requires us to recognize the risk that judges under Davis’s

proposal would prove unaccountable to many voters even within

their subdistricts because of continued racial block voting:

17
In fact, there is reason to believe that the retention votes
that Davis proposes would be even less meaningful than the record
of incumbents in the two districts suggests. Since the retentions
would be uncontested, even fewer members of the community would
have incentive to bring incumbent judges’ records in office to the
attention of voters outside the incumbents’ particular
subdistricts.

22
 [I]n the judge’s own subdistrict, voters would be
disenfranchised: In white subdistricts the voting power of
blacks would be diluted; in black subdistricts the voting
power of whites would be diluted. The likely effects of the
loss of minority influence would be more pronounced in
this context of a lone decisionmaker, a trial judge, who
would lack input from the colleagues elected by the rest
of the citizenry of the jurisdiction.

SCLC, 56 F.3d at 1297.18 In sum, Davis’s proposed remedy would

substantially vitiate Florida’s linkage interest, another significant

factor that we must weigh against imposing Davis’s proposal.

3. The Appearance of Justice

In Nipper, a plurality of this court insisted that any remedy for

racially polarized voting in judicial elections must not undermine “the

administration of justice.” Nipper, 39 F.3d at 1546 (plurality opinion).

“By altering the current electoral schemes for the express purpose

of electing more black judges,” the plurality wrote, the plaintiffs in

18
Although we weigh this “subdistrict disenfranchisement”
factor as required by Nipper, we feel compelled to remark that
citizens of the Second Circuit and Leon County would be no more
disenfranchised by polarized voting under Davis’s plan than they
are under the current at-large system.

23
Nipper risked “proclaiming that race matters in the administration of

justice.” Id. at 1546 (plurality opinion). The plurality thus posed

what it saw as a remedial impossibility:

The case at hand, therefore, presents a remedial
paradox: A remedy designed to foster a perception of
fairness in the administration of justice would likely create,
by the public policy statement it would make, perceptions
that undermine that very ideal. In the eyes of the public
and litigants, at least, justice would not remain colorblind.

Id. Based on this language in Nipper, the district court held that

Davis’s proposed remedy would improperly inject race into the

administration of justice in the Second Circuit and Leon County.

Although we, too, are concerned that racial politics should not

appear to taint Florida’s judicial system, we agree with Davis that her

proposed remedy would be no worse in this regard than a judgment

preserving the status quo. Today, voting in judicial elections for the

Second Circuit and Leon County Courts is racially polarized, giving

black candidates little hope of achieving judicial office. Whether or

not we adopt Davis’s plan, therefore, race would “matter” within

24
these jurisdictions; Davis’s scheme would simply exchange present

misgivings about whites’ successes in at-large judicial elections for

new qualms from those who would view lawyers elected from

Davis’s new subdistricts as representatives of racial groups rather

than as neutral jurists.19 Further, we note that a majority of our court

chose not to join the Nipper plurality’s discussion of this issue, so we

are not bound by the plurality’s concept of a “remedial paradox.” In

this case, at least, we do not think that fear of injecting race into

judicial administration favors either side, so we do not weigh it as an

interest for or against Davis’s proposed remedy.20

19
Indeed, if we were to follow the Nipper plurality’s analysis,
then we would be compelled to rule against all plaintiffs who bring
Section Two cases involving judicial elections. Any remedy
designed to alleviate racially polarized voting is by definition
intended to help minority voters elect their candidates of choice.
Under the Nipper plurality’s reasoning, any remedy would therefore
improperly inject race into a state’s judicial system.
20
We also note that, in this case, the state has already chosen
to “inject race” into its administration of the Second Circuit
Court. After the district court made its initial finding of
racially polarized voting, the Florida legislature overruled the
Supreme Court of Florida to create an additional seat on the Second
Circuit, to which the Governor appointed a black lawyer (as he had
promised Davis).

25
4. Weighing the Interests

As we observed above, a plaintiff must propose a viable and

proper remedy in order to establish a prima facie case under Section

Two. See SCLC, 56 F.3d at 1294-97; Nipper, 39 F.3d at 1530-31

(plurality opinion), 1547 (Edmondson, J., concurring). Before

determining whether Chiles is violating Section Two, therefore, we

must consider Florida’s interest in maintaining the challenged

electoral system. See Houston Lawyers, 501 U.S. at 426-27, 111 S.

Ct. at 2381; SCLC, 56 F.3d at 1294-97; Nipper, 39 F.3d at 1330-31

(plurality opinion), 1547 (Edmondson, J., concurring). Of primary

importance in this case, our adoption of Davis’s plan would require

us to contravene Florida’s Constitution and to substantially break the

link between the affected judges’ jurisdictions and electoral bases.

In Nipper and SCLC, we ruled that a state’s interest in maintaining

its judicial model and in preserving such linkage outweighed the

plaintiffs’ interest in ameliorating the effects of racial polarization in

at-large judicial elections. See SCLC, 56 F.3d at 1296-97; Nipper,

26
39 F.3d at 1543-45 (plurality opinion). Based on these precedents,

we hold that Davis’s modified subdistricting plan would not be a

proper remedy for the racial block voting that exists in the Second

Circuit and Leon County.

Nonetheless, we are troubled by the analysis and the

conclusion that our precedents appear to require in cases such as

the one at bar. The Supreme Court has clearly and repeatedly held

that Section Two applies to state judicial elections. See Chisom v.

Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991);

Houston Lawyers, 501 U.S. at 428, 111 S. Ct. at 2381. Moreover,

the Court has explicitly stated that

[b]ecause the State’s interest in maintaining an at-large,
district-wide electoral scheme for single-member [judicial]
offices is merely one factor to be considered in evaluating
the ‘totality of the circumstances,’ that interest does not
automatically, and in every case, outweigh proof of racial
vote dilution.

Houston Lawyers, 501 U.S. at 427, 111 S. Ct. at 2381. In

interpreting Chisom and Houston Lawyers, our circuit in Nipper and

27
SCLC has placed what now seems, in hindsight, to be an

insurmountable weight on a state’s interest in preserving its

constitution’s judicial selection system and in maintaining linkage

between its judges’ jurisdictions and electoral bases. Together with

Nipper, SCLC, and the additional case of White v. Alabama, we will

with this decision have disallowed redistricting, subdistricting,

modified subdistricting, cumulative voting, limited voting, special

nomination, and any conceivable variant thereof as remedies for

racially polarized voting in at-large judicial elections. See Nipper, 39

F.3d at 1542-46 (plurality opinion) (rejecting subdistricting,

redistricting, and cumulative voting (and effectively precluding limited

voting)), 1547 (Edmondson, J., concurring); SCLC, 56 F.3d at 1294-

97 (rejecting redistricting and subdistricting); White v. Alabama, 74

F.3d 1058, 1072-73 (11th Cir. 1996) (invalidating consent decree

adding judgeships to be filled through a special nomination

commission). Given such rulings, neither we, nor Davis, nor Chiles

have been able to envision any remedy that a court might adopt in

28
a Section Two vote dilution challenge to a multi-member judicial

election district. Thus, in this circuit, Section Two of the Voting

Rights Act frankly cannot be said to apply, in any meaningful way,

to at-large judicial elections. We recognize that this doctrinal

development appears to conflict with the Supreme Court’s initial

pronouncements on this subject in Chisom and Houston Lawyers.

This panel must, however, adhere to the reasoning of the en banc

decisions of this court in Nipper and SCLC until either our circuit

decides to revisit this issue en banc or we receive further guidance

from the Supreme Court. See United States v. Woodard, 938 F.2d

1255, 1258 (11th Cir. 1991) (per curiam) (“The law in this circuit is

emphatic that ‘only a decision by this court sitting en banc or the

United States Supreme Court can overrule’” a prior decision of this

court.) (quoting United States v. Machado, 804 F.2d 1537, 1543

(11th Cir. 1986)).

B. RACIALLY-CONSCIOUS SUBDISTRICTING

29
 Although the district court found that Davis had failed to prove

a Section Two violation because she had not proposed a

permissible remedy under Nipper and SCLC, it ultimately did not rest

its judgment on our Section Two precedents. Instead, the district

court ruled that Davis’s subdistricting proposal would amount to

unconstitutional racial gerrymandering. Because we hold that there

is no statutory Section Two violation, we do not believe that a

constitutional analysis of Davis’s proposed remedy should be

necessary to our decision. Since the district court explicitly rested

its decision on the constitutional issue, however, we think it

necessary and appropriate to explain why we believe the district

court to be in error.

As the district court correctly observed, a court must apply strict

scrutiny to predominantly race-based redistricting or

reapportionment plans. See, e.g., Miller v. Johnson, 515 U.S. 900,

920, 115 S. Ct. 2475, 2490, 132 L. Ed. 2d 762 (1995). In order to

determine whether race is the predominant factor underlying a

30
particular district’s design, a court must find that a district-drawer has

subordinated traditional, race-neutral districting principles (such as

geographical compactness, contiguity, and respect for political

subdivisions) to race. See, e.g., id. at 919, 115 S. Ct. at 2489. A

court may base such a finding either on circumstantial evidence

regarding a district’s shape and demographics or on direct evidence

of a district-drawer’s purpose. See, e.g., id. at 916, 115 S. Ct. at

2488.

Applying these rules, the district court relied on the testimony

of one of Davis’s experts, Dr. E. Walter Terrie, to hold that Davis’s

remedy subordinated traditional redistricting criteria to race and

therefore that strict scrutiny should apply.21 Then, because the court

believed that Davis could not satisfy the first Gingles factor as would

be required to prove a violation of Section Two, the court held that

Davis could not point to a compelling interest to justify her plan. As

21
Dr. Terrie based his testimony primarily on a report that he
and Jerry Wilson jointly authored for the plaintiffs. See
generally Pl. Exh. 21.

31
a result, the district court held that Davis’s proposal would be

unconstitutional under the Equal Protection Clause of the Fourteenth

Amendment.

On appeal, Davis contends that the district court’s legal

analysis contradicts the Supreme Court’s holding in Gingles that a

Section Two plaintiff must show that it would be possible to draw a

majority-black district. Davis also argues that, regardless of the

legal rule applied, the district court erred in concluding that race is

the predominant factor underlying Davis’s modified subdistricting

plan. We review the district court’s findings of fact for clear error, cf.

Miller, 515 U.S. at 917, 115 S. Ct. at 2488, and its analysis and

application of the law de novo, see Gingles, 478 U.S. at 79, 106 S.

Ct. at 2781.

Notwithstanding the polemics regarding race-based redistricting

that pervade Chiles’ brief to this court,22 we agree with Davis that the

22
Although Chiles repeatedly characterizes Davis as “feckless”
in his submissions to this court, we do not find such ad hominem
attacks to be helpful to our decision. We find it surprising and
regrettable that Chiles’s counsel has chosen to abandon the
decorum, and the respect for opposing parties and counsel, that we

32
district court has misread the applicable law. Of course, the district

court is correct that no government may use race as a predominant

factor in drawing electoral districts without a compelling interest.

See Miller, 515 U.S. at 920, 115 S. Ct. at 2490. The district court’s

attempt to apply authorities such as Miller to this Section Two case,

however, is unpersuasive, because the Miller and

Gingles/Nipper/SCLC lines address very different contexts. In Miller,

the Supreme Court analyzed bizarrely-drawn Congressional districts

in which there was “powerful evidence” that “every [objective

districting] factor that could realistically be subordinated to racial

tinkering in fact suffered that fate.” Miller, 515 U.S. at 919, 115 S.

Ct. at 2490 (alteration in original) (quoting Johnson v. Miller, 864 F.

Supp. 1354, 1384 (S.D. Ga. 1994). In Gingles, Nipper, and SCLC,

however, the Supreme Court and this circuit examined at-large

voting districts that, at least on their face, did not reflect racial

gerrymandering but instead were alleged to support racially-

expect from members of our bar.

33
polarized voting. Within this particular context, we have sensibly

required that plaintiffs claiming illegal vote dilution show that minority

voters are sufficiently geographically compact to allow construction

of minority-majority districts; otherwise, minority voters’ failure to

elect their preferred candidates does not reflect illegal vote dilution

but rather the natural result of the dispersion of the minority group

across an area in which white voters constitute a majority. See

Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766-67; cf. Bush v. Vera,

517 U.S. 952, __, 116 S. Ct. 1941, 1951, 135 L. Ed. 2d 248 (1996)

(“Strict scrutiny does not apply merely because redistricting is

performed with consciousness of race.”).23 Under Gingles, a plaintiff

Moreover, although Gingles, Nipper, and SCLC
23

would not support the judicial imposition of an
electoral district drawn solely (or predominantly)
to reflect racial considerations absent a
compelling interest, a majority of the Supreme
Court has assumed that the need to remedy a
Section Two violation itself constitutes a
compelling interest, see Vera, 517 U.S. at __, 116
S. Ct. at 1960 (collecting cases), as have both
parties to this litigation in their pretrial
stipulations, see R8-260 ¶13 at 4 (“All states
have a strong interest in eliminating vote
dilution and the past exclusion of minorities from
34
such as Davis must demonstrate as part of her prima facie Section

Two case that the relevant “minority group . . . is sufficiently large

and geographically compact to constitute a majority in a single-

member district.” Gingles, 478 U.S. at 50, 106 S. Ct. at 2766. In

interpreting this Gingles factor in the context of at-large judicial

elections, we have further held that “inquiries into remedy and

liability . . . cannot be separated: A district court must determine as

part of the Gingles threshold inquiry whether it can fashion a

permissible remedy in the particular context of the challenged

system.” Nipper, 39 F.3d 1530-31 (plurality opinion), 1547

(Edmondson, J., concurring); SCLC, 56 F.3d at 1289, 1294-97

(“[P]laintiffs must show that an appropriate remedy can be

fashioned.”). Thus, contrary to the district court’s holding, our

precedents require plaintiffs to show that it would be possible to

design an electoral district, consistent with traditional districting

principles, in which minority voters could successfully elect a

elected office, wherever found.”).
35
minority candidate. To penalize Davis, as the district court has

done, for attempting to make the very showing that Gingles, Nipper,

and SCLC demand would be to make it impossible, as a matter of

law, for any plaintiff to bring a successful Section Two action.

Further, a review of the record reveals that Davis’s proposed

subdistricts are not based predominantly on race. Significantly,

Chiles has not been able to identify a single traditional redistricting

principle which Davis’s subdistricting scheme would violate. Davis’s

subdistricts are compact; they are contiguous; and they respect

precinct borders. Cf. Shaw v. Reno, 509 U.S. 630, 647, 113 S. Ct.

2816, 2827, 125 L. Ed. 2d 511 (1993) (discussing traditional

districting principles) (“Shaw I”). To refute the seeming

inoffensiveness of Davis’s plan, Chiles and the district court point

only to testimony by Terrie, an architect of Davis’s subdistricts, that

“it was his charge to draw black majority subdistricts in the two

‘nucleuses within the circuit . . . in which black voters tend to be

concentrated.’” R8-277 at 34 (district court opinion). Although we

36
agree with the district court that direct evidence that an election

district designed to discriminate against a particular racial group

should trigger strict scrutiny, we do not believe that the record

supports the conclusion that such a purpose motivated Terrie’s

subdistricting plan. Certainly, race was a factor in Terrie’s process

of designing the proposed subdistricts; under Gingles, Nipper, and

SCLC, we require plaintiffs to show that it is possible to draw

majority-minority voting districts, and plaintiff Davis and her expert

Terrie wished to meet this burden. Throughout his testimony,

though, Terrie insisted that race was not the predominant factor

motivating his design process.24 Further supporting Terrie’s

24
On cross-examination, for example, Terrie
discussed the issue:
Q: Dr. Terrie, would you please, briefly,
describe what you were asked to do in this
case?
A: Yes. I was asked to see whether it was
possible, utilizing traditional
redistricting criteria, to draw a plan
that would include at least one majority-
minority district within the Second
Judicial Circuit and also within Leon
County itself.
37
characterization of his work, he testified that he did not “begin in the

majority black area and work out,” see R16-121, nor did he

maximize the number of majority-minority subdistricts, see id. at 144.

In fact, Terrie testified that it would have been difficult for him to

have drawn subdistricts for the Second Circuit and Leon County

Courts without creating at least two majority-minority districts. See

id. at 146. Absent some evidence belying Terrie’s characterization

of his design process, Chiles cannot rely solely on criticism of

Terrie’s motivations to block Davis’s proposed remedy. Given

Terrie’s testimony, together with the unchallenged adherence of

Davis’s proposed plan to traditional redistricting criteria, we conclude

that the district court committed clear error in finding that Davis’s

proposed remedy constitutes a racial gerrymander. Thus, we hold

both that the district court misinterpreted the law regarding the role

Q: Did you conclude that it was possible
to draw such districts with traditional
redistricting criteria?
A: Yes, I did.
R16 at 104.
38
of race in assessing permissible remedies for violations of Section

Two and that the district court incorrectly assessed the role that race

played in the drawing of Davis’s proposed subdistricts.

III. CONCLUSION

In this case, Davis has presented persuasive evidence of

racially polarized voting in elections for judgeships on the Second

Circuit and Leon County Courts. Nonetheless, Davis has failed to

propose a permissible remedy under our precedents. We agree with

Davis that the district court erred in its holdings that Davis’s modified

subdistricting plan would involve unconstitutional racial

gerrymandering and inject race into Florida’s judicial administration.

Nonetheless, our precedents compel us to conclude that Florida’s

interests in maintaining its Constitution’s judicial election model and

preserving linkage between its judges’ jurisdictions and electoral

bases, considered together, outweigh Davis’s interest in the

adoption of her proposed remedy. As a result, we hold that Davis

39
has not proven a violation of Section Two. Therefore, we AFFIRM

the district court’s judgment in Chiles’s favor.

FAY, Senior Circuit Judge, concurring specially:

I concur in sections I, IIA, 1 through 4, of the opinion for the court. It

seems to me that Section IIB is simply unnecessary and therefore dicta with

which I disagree but find no need to discuss. I do concur in footnote 22.

40