Clark v. Calhoun County, MS

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60251

JAMES H. CLARK; BARBARA BROWN,
Plaintiffs-Appellants,

versus

CALHOUN COUNTY, MISSISSIPPI;
CALHOUN COUNTY DEMOCRATIC EXECUTIVE COMMITTEE,
By and Through its Chairperson, J. R. Denton;
CALHOUN COUNTY REPUBLICAN EXECUTIVE COMMITTEE,
By and Through its Chairperson, Henry Bailey;
CALHOUN COUNTY ELECTION COMMISSIONS,
By and Through its Chairperson, R.W. Bounds,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Mississippi

July 9, 1996

Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This case comes before us for the second time, raising the

question whether the plaintiffs have proven, under the totality of

the circumstances, that Calhoun County, Mississippi's districting

plan for county officials violates Section 2 of the Voting Rights

Act of 1965, 42 U.S.C. § 1973(a). The district court held that the

plan did not violate the Act. We disagree. We reverse the

Circuit Judge of the Eighth Circuit, sitting by
designation.
judgment of the district court and render judgment for the

plaintiffs.

I.

The basic facts of this case are fully described in our

decision rendered the first time this case was before us. See

Clark v. Calhoun County, Mississippi, 21 F.3d 92 (5th Cir. 1994).

To briefly summarize those facts: The plaintiffs, James Clark and

Barbara Brown, are black residents and registered voters in Calhoun

County, Mississippi. The county's districting plan divides the

county into five districts, each of which elects one county

supervisor, one board of education member, and one election

commissioner.

Following the release of the 1990 census, the County Board of

Supervisors hired Three Rivers Development and Planning District of

Pontotoc, Mississippi to develop a redistricting plan for the

county. The Board also appointed a biracial committee made up of

one black resident and one white resident from each election

district to supervise Three Rivers' work. Three Rivers developed

two redistricting plans, one of which the Board of Supervisors

tentatively adopted. The biracial committee approved the plan, and

the Board formally adopted the plan after a public hearing.

Pursuant to § 5 of the Voting Rights Act, the Department of Justice

subsequently precleared the proposed redistricting plan.

According to the 1990 census, black residents comprise 23% of

the county's voting age population and 27% of its population

overall. Under the plan adopted by the Board of Supervisors, the

2
black population is divided roughly equally among the five

districts, ranging from a low of 19% of the population in District

3 to a high of 42% in District 4.

The plaintiffs sued the County, the Calhoun County Democratic

Executive Committee, the Calhoun County Republican Executive

Committee, and the Calhoun County Election Commission. The

plaintiffs alleged that the County's redistricting plan violated

§ 2 of the Voting Rights Act, as well as the Fourteenth and

Fifteenth Amendments to the U.S. Constitution. The plaintiffs

sought damages, declaratory, and injunctive relief, along with

attorneys' fees.

After a bench trial, the district court granted judgment to

the County, concluding that the plaintiffs had failed to prove that

a geographically compact black majority district could be created.

In addition, the court concluded that under the totality of

circumstances, the plaintiffs had failed to prove a § 2 violation.

The district court's written opinion did not address the

plaintiff's constitutional claims, but the plaintiffs did not

appeal the dismissal of those causes of action. We vacated the

district court's judgment and remanded for further proceedings on

the plaintiff's statutory claim. See Clark v. Calhoun County, 21

F.3d 92 (5th Cir. 1994).

On remand, the parties submitted additional evidence regarding

the feasibility of drawing a geographically compact majority-

minority district and the existence of racially-polarized voting in

the county. After reviewing the evidence, the district court found

3
that a geographically compact black majority district could be

created and that racially polarized voting existed in the county.

Noting that the plaintiffs had satisfied the three preconditions

from Thornburg v. Gingles, 478 U.S. 30 (1986), the court

reconsidered its findings regarding the totality of the

circumstances. Without elaboration, the court determined that its

earlier findings were not erroneous and concluded that "when all

the circumstances are considered, 'plaintiffs have not shown that

as a result of the adopted supervisory plan, they do not have equal

opportunity to participate in the political process and to elect

candidates of their choice.'" The plaintiffs appeal the district

court's judgment.

II.

Section 2 of the 1965 Voting Rights Act prohibits any voting

practice or procedure that "results in a denial or abridgment of

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

race or color." 42 U.S.C. § 1973(a). Thornburg v. Gingles, 478

U.S. 30, 49-51 (1986), set forth three preconditions to

establishing a § 2 violation: The plaintiff must demonstrate that

1) the minority group is sufficiently large and geographically

compact to constitute a majority in a single-member district; 2)

the minority group is politically cohesive; and 3) the white

majority votes sufficiently as a bloc to enable it usually to

defeat the minority's preferred candidate. Id. at 50-51; Concerned

Citizens for Equality v. McDonald, 63 F.3d 413, 416 (5th Cir.

1995). These preconditions apply to challenges to both single-

4
member and multi-member districting schemes. Growe v. Emison, 113

S.Ct. 1075, 1084 (1993) (applying Gingles to single-member

districts).

The three Gingles preconditions are necessary but not

sufficient to prove vote dilution. Johnson v. DeGrandy, 114 S.Ct.

2647, 2657 (1994). If those preconditions are established, the

plaintiffs must further prove that "under the 'totality of

circumstances,' they do not possess the same opportunities to

participate in the political process and elect representatives of

their choice enjoyed by other voters." League of United Latin

American Citizens v. Clements, 999 F.2d 831, 849 (5th Cir. 1993)

(en banc), cert. denied, 114 S.Ct. 878 (1994); see 42 U.S.C.

§ 1973(b). Although unlawful vote dilution "may be readily

imagined and unsurprising" where the three Gingles preconditions

exist, that conclusion "must still be addressed explicitly, and

without isolating any other arguably relevant facts from the act of

judgment." Johnson, 114 S.Ct. at 2657.

We have previously explained that "courts are guided in this

[totality-of-circumstances] inquiry by the so-called Zimmer factors

listed in the Senate Report" accompanying the 1982 Amendments to

the Voting Rights Act. LULAC, 999 F.2d at 849. Those factors

include:

[T]he history of voting-related discrimination in the
State or political subdivision; the extent to which
voting in the elections of the States or political
subdivision is racially polarized; the extent to which
the State or political subdivision has used voting
practices or procedures that tend to enhance the
opportunity for discrimination against the minority
group, such as unusually large election districts,

5
 majority vote requirements, and prohibitions against
bullet voting; the exclusion of members of the minority
group from candidate slating processes; the extent to
which minority group members bear the effects of past
discrimination in areas such as education, employment,
and health, which hinder their ability to participate
effectively in the political process; the use of overt or
subtle racial appeals in political campaigns; and the
extent to which members of the minority group have been
elected to public office in the jurisdiction.

Gingles, 478 U.S. at 44-45. In addition, "evidence demonstrating

that elected officials are unresponsive to the particularized needs

of the members of the minority group and that the policy underlying

the State's or the political subdivision's use of the contested

practice or structure is tenuous may have probative value." Id. at

45.

Noting that the district court found on remand that the three

Gingles preconditions were satisfied, the plaintiffs challenge the

district court's conclusion that, under the totality of the

circumstances, the plaintiffs failed to prove a § 2 violation. The

plaintiffs refer to our statement in Clark that "'it will be only

the very unusual case in which the plaintiffs can establish the

existence of the three Gingles factors but still have failed to

establish a violation of § 2 under the totality of circumstances.'"

21 F.3d at 97 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd.

of Educ., 4 F.3d 1103, 1135 (3d Cir. 1993)) (emphasis added); see

also NAACP v. City of Niagara Falls, New York, 65 F.3d 1002, 1019

n.21 (2d Cir. 1995).

We initially note that our review is hampered by the district

court's curt discussion regarding the totality of the

circumstances. In our previous opinion, we instructed the district

6
court on remand to "reconsider its findings with respect to the

totality of circumstances." 21 F.3d at 97. We further instructed

the district court that in cases where the three Gingles

preconditions have been established, it "'must explain with

particularity why it has concluded, under the particular facts of

that case, that an electoral system that routinely results in white

voters voting as a bloc to defeat the candidate of choice of a

politically cohesive minority group is not violative of § 2 of the

Voting Rights Act.'" 21 F.3d at 97 (quoting Jenkins, 4 F.3d at

1135). Despite these instructions, the district court readopted

its earlier findings without elaboration and summarily concluded

that the existence of racially polarized voting in the county was

not sufficient to tip the balance in favor of the plaintiffs. This

discussion is far from the particularized explanation that we

expected. Normally, we would remand this case for further

consideration. However, we need not do so where the record

establishes unlawful vote dilution. Harvell v. Blytheville School

Dist. #5, 71 F.3d 1382, 1390 (8th Cir. 1995) (en banc), cert.

denied, __ S.Ct. __ (1996). We are persuaded that the district

court's findings from its first opinion regarding the totality of

the circumstances, which the court readopted on remand, support the

conclusion that Calhoun County's redistricting scheme violates § 2

of the Voting Rights Act. We do not suggest that the totality of

the circumstances is an empty formalism or that clearing the

Gingles hurdles preordains liability. To the contrary, this final

inquiry can be powerful indeed. At the same time, it is more than

7
an intuitive call of the trial judge; the trial court must anchor

its judgment in evidence.

A.

In its first opinion, the district court found that racially

polarized voting existed in Calhoun County, but the court

discounted its importance due to the success of black candidates

seeking election to several municipal and county offices. The

court noted that black residents had been elected to the board of

aldermen in two predominately white municipalities in the county

and that one black resident, who ran unopposed, had been elected

election commissioner in one of the predominately white districts.

On appeal, we concluded that the black electoral successes

cited by the district court had "limited relevance." 21 F.3d at

96. Citing Gingles, we explained that "the election of some black

candidates does not negate a § 2 claim and does not establish that

polarized voting does not exist," particularly when the election is

unopposed. Id. We further explained that exogenous elections--

those not involving the particular office at issue--are less

probative than elections involving the specific office that is the

subject of the litigation. Id. at 97. We instructed the district

court on remand to "accord greater weight to the virtual absence of

black electoral success in county-wide elections as opposed to

their limited electoral success in municipal elections." Id.

On remand, the district court reaffirmed its finding of

racially polarized voting but construed our instruction as an

"invitation to find a section 2 violation simply because plaintiffs

8
have prevailed on the Gingles factors." Correctly noting that the

Supreme Court in Johnson had expressly rejected that reading of

§ 2, the district court declined our "invitation."

As we made clear prior to Johnson, the existence of the three

Gingles preconditions is necessary but not sufficient to prove a

§ 2 violation. See LULAC, 999 F.2d at 849. However, the existence

of racially polarized voting and the extent to which minorities are

elected to public office remain the two most important factors

considered in the totality-of-circumstances inquiry. See Gingles,

478 U.S. at 48 n.15; Westwego Citizens for Better Government v.

City of Westwego, 946 F.2d 1109, 1122 (5th Cir. 1991) (Westwego

III).

In this case, the district court's finding that racially

polarized voting exists is beyond question. In addition to the

"uncontradicted" statistical evidence from the original trial, Dr.

Richard Engstrom, a Professor of Political Science at the

University of New Orleans, analyzed four, multiracial elections in

Calhoun County. Using both regression and homogenous precinct

analysis, Dr. Engstrom concluded that a "consistent relationship"

existed between a voter's race and his voting preference in the

four exogenous elections. For example, in the 1991 Democratic

primary for Constable, the black candidate received an estimated

71.6% of the black vote but only 7.8% of the white vote. Although

statistical evidence is not conclusive, see Clark, 21 F.3d at 96,

the record here supports no other conclusion but that racially

polarized voting exists in Calhoun County. Indeed, the County

9
offers no other explanation of the divergent voting patterns. See

Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995).

Moreover, the record demonstrates that black citizen have been

unsuccessful in seeking public office. The County emphasizes that

black residents have been elected as aldermen in several

municipalities and, in one case, as an election commissioner. We

previously addressed the probative value of these electoral

successes and noted their "limited relevance." 21 F.3d at 96.

Even so, "the election of a few minority candidates does not

necessarily foreclose the possibility of dilution of the black

vote." S. Rep. No. 417, 97th Cong., 2d Sess. 29 n.115 (1982)

(internal quotation omitted), reprinted in 1982 U.S.C.C.A.N. 177,

207 n.115; see also Gingles, 478 U.S. at 76; City of Niagara Falls,

65 F.3d at 1009; Harvell, 71 F.3d at 1390. Indeed, these isolated

victories, one of which occurred in a race with no opponent, do not

mitigate the force of the district court's finding that "[i]n this

century, no black candidate has been elected in Calhoun County as

supervisor, justice court judge, constable, sheriff, circuit clerk,

chancery clerk, tax assessor, superintendent of education, school

board member, coroner, county attorney, state senator, or state

representative." Moreover, there is no suggestion that this

striking lack of electoral success is due to low voter turnout or

black support for non-minority candidates. Cf. Alonzo v. City of

Corpus Christi, 68 F.3d 944, 947 (5th Cir. 1995) (per curiam).

The County responds that few black residents have run for

county office. As an initial matter, we note that the County

10
overstates the political reality. The district court found in its

first opinion that "since 1980 blacks have sought the positions of

justice court judge, constable, sheriff, and school board member."

More importantly, however, this argument begs the ultimate question

whether blacks "possess the same opportunities to participate in

the political process and elect representatives of their choice

enjoyed by other voters." That few or no black citizens have

sought public office in the challenged electoral system does not

preclude a claim of vote dilution. Westwego Citizens For Better

Government v. City of Westwego, 872 F.2d 1201, 1208 n.9 (5th Cir.

1989) (Westwego I). "To hold otherwise would allow voting rights

cases to be defeated at the outset by the very barriers to

political participation that Congress has sought to remove." Id.

In short, the presence of racially polarized voting and the

virtually complete absence of black elected officials in county

offices provides striking evidence of vote dilution in Calhoun

County.

B.

The Senate Report includes as one factor "the extent to which

the State or political subdivision has used voting practices or

procedures that tend to enhance the opportunity for discrimination

against the minority group, such as unusually large election

districts, majority vote requirements, and prohibitions against

bullet voting." In its original opinion, the district court found

that Calhoun County did not employ large election districts or an

anti-single shot provision. The court found, however, that state

11
law requires that elections be conducted by majority vote. See

Miss. Code Ann. § 23-15-305. Although the district court noted

that abolishing the majority vote requirement might increase the

possibility of electoral success for black candidates, it concluded

that the majority vote requirement was not "inherently

discriminatory."

We agree with the plaintiffs that the district court misjudged

the weight to be accorded this finding. First, even if the

majority vote requirement is not "inherently discriminatory,"

Congress has included it as one factor to consider as part of the

totality-of-circumstances inquiry. We are not free to second-guess

Congress' judgment regarding its importance. See Westwego I, 872

F.2d at 1212.

Second, under certain circumstances, the majority vote

requirement "can operate to the detriment of minority voters" and

negate their political strength. Westwego III, 946 F.2d at 1113

n.4. Where more than two candidates run for a particular office,

the majority vote requirement ensures that no candidate supported

by only a minority, racial or otherwise, of the populace will

succeed. In the presence of racially polarized voting, the

majority vote requirement permits a white majority that scattered

its votes among several white candidates in a election to

consolidate its support behind the remaining white candidate in the

run-off election, thereby defeating the minority-supported

candidate. See Major v. Treen, 574 F.Supp. 325, 351 n.32 (E.D. La.

1983) (three judge panel); see also Zimmer v. McKeithen, 485 F.2d

12
1297, 1306 (5th Cir. 1973) (en banc) (noting that majority vote

requirement tends "to submerge a political or racial minority"),

aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S.

636 (1976) (per curiam).

This effect is more than a mere theoretical possibility, at

least in Calhoun County. The record here discloses that on at

least one occasion, the majority vote requirement operated to the

detriment of black voters in Calhoun County by preventing the

nomination of a black citizen as the Democratic candidate for

constable in Calhoun County. In the first primary, the black

candidate, Tommy Pittman, finished first among all candidates, the

rest of whom were white. Pittman did not receive a majority of the

votes cast, however. In the run-off, Pittman lost.

C.

Two factors from the Senate Report focus on the effect of past

discrimination on the plaintiffs' ability to participate in the

political process: 1) the history of voting-related discrimination

in the State or political subdivision, and 2) the extent to which

minority group members bear the effects of past discrimination in

areas such as education, employment, and health, which hinder their

ability to participate effectively in the political process.

Gingles, 478 U.S. at 44-45. In its pre-remand opinion, the

district court found that "in the past blacks were prevented from

exercising their right to vote by intentionally discriminatory

mechanisms." Nevertheless, the court found this factor to be of

"limited importance" because "past history cannot be forever

13
faulted for failures at the election box." The district court

explained that at some point past discrimination must take on

"diminished importance." In addition, the district court found

that "the socio-economic status of blacks is significantly lower

than whites in Calhoun County" but questioned without elaboration

the weight to be assigned to this finding.

The long and unhappy history of discrimination in Mississippi

requires no protracted discussion. Calhoun County itself did not

desegregate its schools until 1969. Nor need we tarry long in

recounting the socioeconomic disparity that continues to exist in

Calhoun County. The plaintiffs produced 1990 census data

disclosing, among other facts, that the per capita income of black

residents in Calhoun County is less than half that of white

residents.

The County concedes, as it must, that Calhoun County has a

history of racial discrimination and that socioeconomic differences

between white and blacks continue to exist in the County.

Nevertheless, the County argues that the plaintiffs have not

established a causal nexus between such past discrimination or

socioeconomic disparities, on the one hand, and any decreased level

of black political participation, on the other.

In LULAC, we explained that while Congress has not insisted

upon proof of a causal nexus between socioeconomic status and

depressed political participation, Congress "did not dispense with

proof that participation in the political process is in fact

depressed among minority citizens." 999 F.2d at 867; see S. Rep.

14
417 at 29 n.114, reprinted in 1982 U.S.C.C.A.N. at 207 n.114.

Indeed, in that case, we held that proof of socioeconomic

disparities and a history of discrimination "without more" did not

suffice to establish the two Senate Report factors. 999 F.2d at

867.

The district court did not make any finding that black

political participation was depressed in Calhoun County. Nor do

the plaintiffs on appeal point to any evidence in the record

showing that black political participation compares unfavorably to

that of white residents in the county. The plaintiffs' expert

witness, Cheri McKinless, did testify at the first trial that

individuals of lower socioeconomic status were not as likely to

vote as individuals of higher socioeconomic status. However, she

based her conclusion on political science literature, not "an

'intensely local appraisal' of the social and political climate" of

Calhoun County. Id. Indeed, in LULAC, we rejected similar

"armchair speculation" as insufficient to establish that "minority

voters in this case failed to participate equally in the political

processes." Id.

In short, we are not persuaded that the district court erred

in disregarding the history of past discrimination and

socioeconomic disparity in Calhoun County.

D.

In its pre-remand opinion, the district court found that

Calhoun County officials were responsive to concerns of its black

residents. The court explained:

15
 First, it is unrefuted that the County has recently paved
and/or repaved roads in predominately black
neighborhoods. . . . Second, it has been stipulated that
blacks hold appointive positions on approximately one-
third of the County Boards and Commissions. This
represents, in this court's mind, a concern that blacks
be afforded a voice in matters affecting the citizenry.
Finally, the County, in appointing the biracial committee
and holding public hearings on the proposed redistricting
plan, made a concerted effort to comply with the mandates
of the Voting Rights Act. From the beginning, Calhoun
County recognized the need for redistricting and
attempted to procure Section 2 compliance via an open,
public forum. The black members appointed to the
biracial committee were, according to the testimony, well
respected and influential citizens in the black
community; some, like Ms. Rose, were college educated.
These are not the actions of a county which is oblivious
to the needs and concerns of the black community or
disrespectful of the mandates of the Voting Rights Act.

With one caveat, we find no merit to the suggestion that the

district court's finding of responsiveness is clearly erroneous.

Other governmental entities have done more than Calhoun County to

demonstrate their responsiveness to minority concerns. See, e.g.,

City of Niagara Falls, 65 F.3d at 1023 (noting that the city, inter

alia, established an affirmative action task force, adopted a fair

housing law, and established a minority business loan fund).

Nevertheless, the County's road-paving and its use of a biracial

commission to approve the current redistricting plan support the

finding that the County is responsive to the needs of the black

community. The formation of the biracial commission in particular

demonstrates the County's sensitivity to the concerns of its black

citizens. Although the record discloses that Three Rivers did not

inform the commission that it was possible to create a majority-

minority district, that fact alone does not undermine the district

court's finding. Indeed, there is no suggestion that the anyone

16
deliberately misled that commission or that the commission served

only to rubberstamp redistricting plans already approved by the

board of supervisors.

We part company with the district court, however, regarding

its reliance on black membership on county commissions. The number

of minority members on county commissions is a poor barometer of

the county's responsiveness to the needs of its black citizenry.

Judging responsiveness by counting members of county commissions is

akin to judging the emptiness of a glass of water half full:

whether it is half full or half empty depends on who you ask. Even

so, we agree with the plaintiffs that the district court erred in

this case by focusing on how many minority board members there

were, instead of how few. That four of the fourteen county boards

or commissions have black members overlooks that ten do not.

Moreover, the record discloses that of the four boards that do have

minority representation, three have only one black member and the

other has only two black members. Of the 72 appointed officials,

only five are black, less than 7% of the total membership.

Similarly, the district court found that only 6 of the county's 75

employees were black.

Although the district court's finding of responsiveness was

not clearly erroneous, we are persuaded that the district court

attached too much weight to its finding. First, the finding of

responsiveness has "limited relevance." Westwego III, 946 F.2d at

1122. The Senate Report explained:

Unresponsiveness is not an essential part of plaintiff's
case. Therefore, defendants' proof of some

17
 responsiveness would not negate plaintiff's showing by
other, more objective factors enumerated here that
minority voters nevertheless were shut out of equal
access to the political process.

S. Rep. 417 at 29 n.116, reprinted in 1982 U.S.C.C.A.N. at 207

n.116; see also Westwego I, 872 F.2d at 1213 n.15. Indeed, in

Westwego III, we rendered judgment for the plaintiffs, even though

we agreed with the district court that the plaintiffs had failed to

prove a lack of responsiveness by city officials. 946 F.2d at

1123; see also Harvell, 71 F.3d at 1391 (noting that "[e]ven

accepting the finding of responsiveness as not clearly erroneous,

however, it is similarly insufficient to counter the other factors

that censure this scheme").

Second, the district court's finding of responsiveness cannot

be weighed in the abstract. Responsiveness, like many things, is

a question of both kind and degree. While two cities may both be

said to be responsive to minority needs, the two may vary greatly

in approach and commitment. The totality-of-circumstances inquiry

is not blind to those differences. Although we acknowledge that

discerning those differences demands difficult qualitative

judgments, see S. Rep. 417 at 29 n.115, reprinted in 1982

U.S.C.C.A.N. at 207 n.115 (noting responsiveness is less objective

factor than others), we are reminded that "[i]n countless areas of

the law weighty legal conclusions frequently rest on methodologies

that would make scientists blush." LULAC, 999 F.2d at 860. We

offer no bright line here. We are content to note that paving

roads left unpaved by years of discrimination and appointing a

biracial redistricting commission do not reflect the comprehensive

18
and systematic responsiveness to minority needs that is entitled to

substantial weight in the totality-of-circumstances inquiry. Cf.

City of Niagara Falls, 65 F.3d at 1023 (describing city's

"numerous" efforts to address minority needs).

E.

In its pre-remand opinion, the district court accepted the

County's proffered justification for the current plan, finding that

"attempting to maintain districts with equal road mileage is

nontenuous." The plaintiffs challenge this finding, claiming that

there is no evidence that the creation of a majority-minority

district is incompatible with this interest. The County defends

the district court's finding and argues that its interest in

maintaining districts with equal road mileage should be given

substantial weight. See LULAC, 999 F.2d at 871.

We find no merit to the suggestion that the County must prove

that the challenged electoral system is necessary to achieve its

interest in equalizing road mileage among districts. Id. at 875-

76. We do, however, agree that this factor deserves little weight.

In Jones v. City of Lubbock, 727 F.2d 364, 383 (5th Cir. 1984), we

described this factor as having "diminished importance," and we

expressed doubt "that the tenuousness factor has any probative

value for evaluating the 'fairness' of the electoral system's

impact."

Our decision in LULAC does not undermine but rather supports

that conclusion. In that case, we distinguished between a non-

tenuous state interest and a substantial state interest. 999 F.2d

19
at 870 (noting that Texas did not assert non-tenuous but rather

substantial interest). Although we noted that "[t]he weight, as

well as tenuousness, of the state's interest is a legitimate factor

in analyzing the totality of circumstances," id. at 871, we

reaffirmed that "[p]roof of a merely non-tenuous state interest

discounts one Zimmer factor, but cannot defeat liability." Id.

The district court here did not characterize the County's

interest in equalizing road mileage in the districts as

substantial. Nor likely could it. The County points to no

decision holding that its interest in equal road mileage among

election districts is substantial. The administrative convenience

of such a system is evident, but the County's asserted interest

pales in comparison to that upheld in LULAC. Id. at 872 (noting

Texas' interest is a "key component" of what defines or "what

constitutes a state court judge"). Indeed, there is no suggestion

that equal road mileage is "integral" to the office of county

supervisor, much less to the office of election commissioner or

board of education. Id.

F.

In Gingles, the Court noted that the Senate Report advised

that "there is no requirement that any particular number of factors

be proved, or that a majority of them point one way or the other."

Gingles, 478 U.S. at 45. In this case, we are persuaded that,

under the totality of the circumstances, the plaintiffs have

demonstrated a § 2 violation. Neither the County's responsiveness

to its black citizenry nor its interest in equalizing road mileage

20
among districts mitigates the striking lack of black electoral

success in county elections and the "uncontradicted" existence of

racially polarized voting. In short, this is not that "unusual

case" in which the three Gingles preconditions are satisfied but

the totality of circumstances fail to show a § 2 violation. See,

e.g., City of Niagara Falls, 65 F.3d at 1020 (concluding that,

under totality of circumstances, no § 2 violation existed where

"many" of the Senate Report factors pointed against the

plaintiffs). The district court's finding to the contrary is

clearly erroneous.

III.

As an alternative ground for affirming the judgment of the

district court, the County argues that the proposed majority-

minority district violates the Equal Protection Clause of the

Fourteenth Amendment. The County relies on the Supreme Court's

decision in Miller v. Johnson, 115 S.Ct. 2475, 2488 (1995), which

held that strict scrutiny applies to redistricting plans where

"race was the predominant factor motivating the legislature's

decision to place a significant number of voters within or without

a particular district." The County claims that racial

considerations dominated the drawing of the proposed black-majority

district in Calhoun County and that, therefore, the proposed

district is unconstitutional after Miller.

The County's argument has more bite than might appear at first

glance. Its implications travel far beyond Calhoun County and

threaten the constitutionality of the Voting Rights Act itself. In

21
light of this, it is not surprising that we have been chary of

reaching the issue of Miller's applicability to vote dilution

claims brought pursuant to § 2 of the Voting Rights Act. See,

e.g., Alonzo, 68 F.3d at 947 n.2 (reserving the question). We are

loathe to revisit that Act's validity, and upon closer examination,

we are not persuaded that Miller and its progeny prohibit

redistricting plans drawn to remedy violations of § 2 of the Voting

Rights Act. We begin with Miller.

A.

In Miller, the Supreme Court confronted the constitutionality

of Georgia's Eleventh Congressional District, one of three

majority-minority districts in the State. Drawn in response to the

Justice Department's refusal to preclear earlier reapportionment

plans pursuant to § 5 of the 1965 Voting Rights Act, the Eleventh

District mimicked Sherman's March-to-the-Sea, traversing the 260

miles from Atlanta to Savannah. A three-judge district court panel

found that race was the dominant purpose in creating the Eleventh

District. On appeal to the Supreme Court, the appellants did not

contest the district court's finding but rather claimed that the

legislature's motivation by itself did not suffice to state a claim

under Shaw v. Reno, 113 S.Ct. 2816 (1993). Rather, the appellants

argued that the district court must find that the district's shape

was so bizarre on its face as to be unexplainable on grounds other

than race. The Supreme Court disagreed.

Noting that the Equal Protection Clause subjects facially-

neutral statutes motivated by racial considerations to strict

22
scrutiny, the Court rejected the view that bizarre shape was a

prerequisite to an equal protection claim:

Shape is relevant not because bizarreness is a necessary
element of the constitutional wrong or a threshold
requirement of proof, but because it may be persuasive
circumstantial evidence that race for its own sake, and
not other districting principles, was the legislature's
dominant and controlling rationale in drawing its
district lines.

115 S.Ct. at 2486. The Court made clear that plaintiffs who

challenge the constitutionality of reapportionment plans "are

neither confined in their proof to evidence regarding the

district's geometry and makeup nor required to make a threshold

showing of bizarreness." Id. at 2488.

The Court encountered greater difficulty, however, in

affirmatively defining the plaintiff's burden of proof. The Court

acknowledged that legislatures will "almost always be aware of

racial demographics; but it does not follow that race predominates

in the redistricting process." Id. Distinguishing between

permissible awareness and impermissible motivation "may be

difficult" and will require courts "to exercise extraordinary

caution in adjudicating claims that a state has drawn district

lines on the basis of race." Id. Nevertheless, the Court

attempted a definition:

The plaintiff's burden is to show, either through
circumstantial evidence of a district's shape and
demographics or more direct evidence going to legislative
purpose, that race was the predominant factor motivating
the legislature's decision to place a significant number
of voters within or without a particular district. To
make this showing, a plaintiff must prove that the
legislature subordinated traditional race-neutral
districting principles, including but not limited to
compactness, contiguity, respect for political

23
 subdivisions or communities defined by actual shared
interests, to racial considerations.

Id. Justice O'Connor added in her concurring opinion that this

standard was "a demanding one," requiring the plaintiff to show

that the legislature "has relied on race in substantial disregard

of customary and traditional districting practices." Id. at 2497

(O'Connor, J., concurring). In those cases where the plaintiff

successfully proves that race was the "predominant, overriding"

consideration motivating the drawing of district lines, the burden

shifts to the defendant to demonstrate that its districting plan is

narrowly tailored to achieve a compelling governmental interest.

Id. at 2490.

Agreeing with the district court that race was the predominant

factor motivating the drawing of the Eleventh Congressional

District, the Court turned to the requirements of strict scrutiny.

Georgia argued that compliance with the preclearance requirement of

§ 5 of the Voting Rights Act was a compelling governmental

interest. The Court did not reach the validity of that position:

Whether or not in some cases compliance with the Voting
Rights Act, standing alone, can provide a compelling
interest independent of any interest in remedying past
discrimination, it cannot do so here. As we suggested in
Shaw, compliance with federal antidiscrimination laws
cannot justify race-based districting where the
challenged district was not reasonably necessary under a
constitutional reading and application of those laws.

Id. at 2490-91.

The Court concluded that the Eleventh District was not

required by the Voting Rights Act "under a correct reading of the

statute." Id. at 2491. That Georgia drew the Eleventh District in

24
order to obtain preclearance under § 5 of the Voting Rights Act did

not mean that the plan was required by the Act. Id. To the

contrary, the Eleventh District was not required under the Act

"because there was no reasonable basis to believe that Georgia's

earlier enacted plans violated § 5." Id. at 2492. Noting that the

earlier plans had increased the number of majority-minority

districts from the previous apportionment, the Court explained that

such ameliorative plans did not violate § 5 "unless the new

apportionment itself so discriminates on the basis of race or color

as to violate the Constitution." Id.

The Court added that the Justice Department's interpretation

of § 5 as authorizing it to preclear only those reapportionment

plans that maximized majority-minority districts portended

constitutional difficulties for § 5 and brought the Voting Rights

Act "into tension with the Fourteenth Amendment." Id. at 2493.

The Court eschewed reaching the constitutional question, however,

noting only that there was no indication that Congress intended § 5

of the Voting Rights Act to reach as far as the Justice Department

had pushed it. Id.

Miller left open several critical questions. The Court

assumed but did not decide that compliance with the Voting Rights

Act constituted a compelling governmental interest. Moreover,

Miller did not address in what instances a State may draw majority-

minority districts to remedy potential or adjudicated violations of

§ 2 of the Voting Rights Act.

25
 Second, while Miller left these issues unresolved, its

condemnation of race-based districting decisions was loud and

clear. The Court described the evils of race-based redistricting,

declaring that "'[r]acial gerrymandering, even for remedial

purposes, may balkanize us into competing racial factions; it

threatens to carry us further from the goal of a political system

in which race no longer matters--a goal that the Fourteenth and

Fifteenth Amendments embody, and to which the Nation continues to

aspire.'" Id. at 2486 (quoting Shaw, 113 S.Ct. at 2832) (emphasis

added).

The Court's recent decisions in Bush v. Vera, 1996 WL 315857

(1996), and Shaw v. Hunt, 1996 WL 315870 (1996) (Shaw II), built

upon the framework established by Miller and resolved several of

the questions Miller had left unanswered. In Bush, the Court

struck down three majority-minority Congressional districts in

Texas as violative of the Equal Protection Clause. The three

districts were the product of the Texas legislature's effort to

increase the number of majority-minority districts in the State.

No opinion commanded a majority. Justice O'Connor, writing for two

other Justices, began her analysis by noting that strict scrutiny

does not apply to all cases involving the intentional creation of

majority-minority districts. 1996 WL 315857, at *5. Rather,

Justice O'Connor reaffirmed Miller's predominant factor test and

26
found that the three challenged districts all failed that test,

thereby triggering strict scrutiny.2

To justify its race-based redistricting, Texas pointed to

three interests: the interest in avoiding liability under § 2 of

the Voting Rights Act, the interest in remedying past and present

discrimination, and the interest in complying with § 5 of the

Voting Rights Act. It is the Court's treatment of the first

interest that concerns us the most in this case.

In her opinion for the plurality, Justice O'Connor assumed

without deciding that compliance with § 2 of the Voting Rights Act

constituted a compelling governmental interest. Id. at *15.

Although strict scrutiny is a demanding standard, Justice O'Connor

explained that the narrow tailoring prong of the test permitted the

States "a limited degree of leeway" in drawing a remedial,

majority-minority district. Id. To demonstrate that a majority-

minority district is reasonably necessary to comply with § 2, the

State must have a "strong basis in evidence" for finding that the

three Gingles preconditions exist. Id.

2
Justices Thomas and Scalia, who did not join Justice
O'Connor's opinion for the plurality but provided a majority by
concurring in the judgment, disagreed with the plurality on this
point and concluded that the intentional creation of a majority-
minority district was sufficient to trigger strict scrutiny. Id.
at *27. On this point, at least six Justices sided with Justice
O'Connor's view of the law. Compare id. at *5 (O'Connor, J.,
joined by Rehnquist, C.J., and Kennedy, J.); id. at *31 & n.7
(Stevens, J., joined by Ginsburg and Breyer, J.J., dissenting); id.
at *56 (Souter, J., joined by Ginsburg and Breyer, J.J.,
dissenting) with id. at *25 (Kennedy, J., concurring) (reserving
the question) and id. at *27 (Thomas, J., joined by Scalia, J.,
concurring in the judgment).

27
 Although Justice O'Connor was willing to assume the existence

of the last two Gingles preconditions in the instant case, she

concluded that the challenged districts' bizarre shape and lack of

compactness "defeat[ed] any claim that the districts are narrowly

tailored to serve the State's interest in avoiding liability under

§ 2." Id. at *16. Although "[a] § 2 district that is reasonably

compact and regular, taking into account traditional districting

principles such as maintaining communities of interest and

traditional boundaries, may pass strict scrutiny without having to

defeat rival compact districts designed by plaintiffs' experts in

endless 'beauty contests,'" id. at *15, a non-compact majority-

minority district is not required by § 2 and, therefore, fails the

narrowly tailored prong of strict scrutiny. Id. at *16. Justices

Thomas and Scalia, concurring in the judgment, agreed without

elaboration that the districts were not narrowly tailored. Id. at

*29.

Of particular significance, both Justice O'Connor and Justice

Kennedy filed concurring opinions that further addressed the

relationship between the Equal Protection Clause and § 2 of the

Voting Rights Act. Although Justice O'Connor's opinion for the

plurality only assumed that compliance with the Voting Rights Act

was a compelling governmental interest, Justice O'Connor expressly

adopted that position in her separate concurring opinion. See id.

at *21. On this point, at least four other Justices agreed with

Justice O'Connor. See id. at *41 (Stevens, J., joined by Ginsburg

and Breyer, J.J., dissenting); id. at *46, *56 (Souter, J., joined

28
by Ginsburg and Breyer, J.J., dissenting). Moreover, Justice

O'Connor opined that "if a State pursues that compelling interest

by creating a district that 'substantially addresses' the potential

liability, and does not deviate substantially from a hypothetical

court-drawn § 2 district for predominantly racial reasons, its

districting plan will be deemed narrowly tailored." Id. at *23.

Justice Kennedy agreed that the three challenged districts

were not narrowly tailored to serve the asserted interest in

complying with § 2 of the Voting Rights Act, but his approach

differed slightly from the plurality's. Id. at *25. Justice

Kennedy noted that the first Gingles precondition focuses not on

the compactness of the contested district but rather the

compactness of the minority population. Id. As a consequence,

Justice Kennedy was willing to assume that Texas had a strong basis

in evidence for concluding that all three Gingles preconditions

existed. Indeed, only if all three Gingles preconditions were met

would a court reach the question whether the challenged district

was narrowly tailored to remedying the potential § 2 violation.

Nevertheless, the challenged districts' lack of compactness,

which persuaded Justice O'Connor that the first Gingles factor was

not met, persuaded Justice Kennedy that the districts did not

substantially address the potential § 2 violation. Emphasizing the

plurality's statement that the remedial district "must

'substantially address the § 2 violation'" to satisfy the narrow

tailoring prong of strict scrutiny, Justice Kennedy attempted to

give content to that phrase by noting that a State "may not engage

29
in districting based on race except as reasonably necessary to cure

the anticipated § 2 violation, nor may it use race as a proxy to

serve other interests." Id. at *26 (emphasis added). In Justice

Kennedy's eyes, the inclusion of some minority communities that

"could not possibly form part of a compact majority-minority

district" belied the claim that Texas drew the district to remedy

a potential § 2 violation. Id. Justice Kennedy cautioned,

however, that the Court's focus on compactness did not mean that

all majority-minority districts had to be compact to satisfy

constitutional scrutiny. To the contrary, "[d]istricts not drawn

for impermissible reasons or according to impermissible criteria

may take any shape, even a bizarre one." Id. at *27.

Shaw II, which was decided the same day as Bush, invalidated

North Carolina's Twelfth Congressional District, a "serpentine"

district 160 miles in length and often no wider than the interstate

that it followed in its "snake-like" trek through the heart of the

State. 1996 WL 315870, at *3, *4. Applying Miller's predominant

purpose test, the Court found that race was the predominant factor

in drawing the challenged district. Id. at *4. As in Bush, the

Court assumed that compliance with the Voting Rights Act was a

compelling governmental interest, see id. at *6 n.4, *9, but it

concluded that District 12 was not narrowly tailored to that end.

Id. at *10. The Court explained that the majority-minority

district "must, at a minimum, remedy the anticipated violation [of

§ 2] or achieve compliance to be narrowly tailored." Id. at *9.

Noting that the first Gingles precondition requires the existence

30
of a geographically compact minority group, Chief Justice Rehnquist

declared that "[n]o one looking at District 12 could reasonably

suggest that the district contains a 'geographically compact'

population of any race." Id. at *10.

Taken together, these decisions establish a number of

important propositions. First, race-based redistricting, even that

done for remedial purposes, is subject to strict scrutiny. Second,

compliance with § 2 of the Voting Rights Act constitutes a

compelling governmental interest. Third, the State must have a

strong basis in evidence for concluding that the three Gingles

preconditions exist in order to claim that its redistricting plan

is reasonably necessary to comply with § 2. Fourth, a tailored

response to a found violation must use race at the expense of

traditional political concerns no more than is reasonably necessary

to remedy the wrong. With these propositions in mind, we turn to

the County's arguments in this case.

B.

The County frames its Miller argument in two ways. First, it

claims that Miller limits the scope of the first Gingles factor,

which requires proof that a geographically compact majority-

minority district can be created. According to the County, the

plaintiffs' proposed redistricting plans violate Miller and,

therefore, are not "a proper foundation for a holding that

Plaintiffs-Appellants have satisfied the first Gingles precondition

of a sufficiently numerous, geographically compact minority

31
population." To fully understand the County's argument, we must

return to our first decision in this case.

In the first appeal, the County claimed that the Supreme

Court's then-recent decision in Shaw supported the district court's

finding that the plaintiffs had not established the first Gingles

factor. According to the County, a districting scheme that

violated Shaw's requirement of compactness per se failed to satisfy

the first Gingles precondition. We acknowledged Shaw's holding

that a voting scheme "so extremely irregular on its face that it

rationally can be viewed only as an effort to segregate the races

for purposes of voting" stated a claim under the Equal Protection

Clause. However, we noted that the proposed district in this case

was "not nearly as bizarre as the district under consideration in

Shaw." 21 F.3d at 95. We consequently refused to determine

"whether a bizarrely-shaped district which would enable plaintiffs

to state a claim under the Equal Protection Clause would

necessarily flunk the Gingles compactness test." Id. at 95-96.

The County's Miller contention builds upon this earlier

argument. According to the County, Miller clarifies Shaw by

explaining that the gravamen of an Equal Protection claim is not

the shape of the district but rather the legislature's motivation

or purpose in drawing the district as it did. The argument

continues that the plaintiffs' predominant concern with race in

drawing their proposed district places it squarely within Miller

and therefore outside the first Gingles factor. Stated another

32
way, a proposed district that violates Miller does not satisfy the

first Gingles factor per se.

We agree with the County's reading of Miller but disagree that

Miller is relevant to the first Gingles factor. In contrast to

Shaw's focus on compactness, Miller explained that compactness was

not the gravamen of Equal Protection challenges to reapportionment

plans. To the contrary, compactness was merely one among many

factors whose presence bore on the ultimate question whether race

was the predominant factor motivating the drawing of particular

district lines.

In contrast to Miller's focus on motivation, the first Gingles

factor requires that the plaintiff demonstrate that the minority

group is "sufficiently large and geographically compact to

constitute a majority in a single-member district." Gingles, 478

U.S. at 50. Plaintiffs typically attempt to satisfy this

requirement by drawing hypothetical majority-minority districts.

When combined with the second Gingles factor requiring that

minority voters demonstrate their political cohesiveness, the first

Gingles factor ensures that the minority has the potential to elect

a representative of its own choice in some single-member district.

See Growe, 113 S.Ct. at 1084; Gingles, 478 U.S. at 50 & n.17.

Absent a satisfactory showing on the first Gingles factor, minority

voters cannot claim that it is the current districting system and

not, for example, geographic dispersal that is the source of their

disproportionately weak political strength. Gingles, 478 U.S. at

50 n.17.

33
 Bush and Shaw II support our conclusion that Miller's emphasis

on purpose does not apply to the first Gingles precondition. In

neither case did the Court suggest that a district drawn for

predominantly racial reasons would necessarily fail the Gingles

test. To the contrary, the first Gingles factor is an inquiry into

causation that necessarily classifies voters by their race.

In short, we do not understand Miller and its progeny to work

a change in the first Gingles inquiry into whether a sufficiently

large and compact district can be drawn in which the powerful

minority would constitute a majority. See Harvell, 71 F.3d at 1391

(noting that Miller "did not purport to alter our inquiry into the

vote-dilution claim"). To be sure, this test of causation insists

upon a compact district, and a remedial response narrowly tailored

to remedying a found violation must also be compact. As we will

explain, however, that tailored response must use race at the

expense of traditional political concerns no more than is

reasonably necessary to remedy the found wrong.

C.

Alternatively, the County argues that we should affirm the

judgment below because there is no constitutional remedy.

According to the County, the plaintiffs' proposed redistricting

plans violate Miller. The County argues that, consequently, it

would be subject to lawsuits under Miller if it were to implement

one of the plaintiffs' proposed redistricting plans. The argument

is that the County did not violate § 2 because the plaintiffs'

proposed remedy violates the Equal Protection Clause.

34
 To the extent that the County challenges the remedy, it is not

ripe for our review. Plaintiffs’ majority-minority districts were

identified in answer to the first Gingles inquiry into causation.

See Clark, 21 F.3d at 95 (noting that plaintiffs' proposed

districts were "simply presented to demonstrate that a majority-

black district is feasible in Calhoun County"). Calhoun County's

Board of Supervisors has primary jurisdiction over its electoral

system. "It must be left to that body to develop, in the first

instance, a plan which will remedy the dilution of the votes of the

city's black citizens." Westwego III, 946 F.2d at 1124; see also

Clark, 21 F.3d at 95 (noting that "the county will be given the

first opportunity to develop a remedial plan"). That body is free,

within limits,3 to develop a different remedial plan from those

proposed by the plaintiffs.

This is not to say that Bush does not insist that districting

plans drawn to remedy potential violations of the Voting Rights Act

escape scrutiny under the Equal Protection Clause. 1996 WL 315857,

at *15-16. It is true that here, unlike Bush, there is an

adjudicated violation of the Voting Rights Act, but that does not

remove the constitutional constraints. See Dillard v. City of

Greensboro, 74 F.3d 230, 233-34 (11th Cir. 1996) (applying Miller

to redistricting plan imposed by district court to remedy § 2

violation). It is also true that Miller, Bush, and Shaw II make

If the board of supervisors "fails to develop such a plan
in a timely manner, or fails to develop a plan which fully remedies
the current vote dilution, the responsibility for devising a
remedial plan will devolve onto the federal district court."
Westwego III, 946 F.2d at 1124.

35
clear that a majority-minority district is not per se

unconstitutional. Calhoun County's argument to the contrary

glosses over a number of required analytical steps.

Bush established a two-part inquiry for determining whether a

majority-minority district passes constitutional muster. Such a

district is constitutional if the State has a "strong basis in

evidence" for concluding that the three Gingles preconditions are

present and if the district drawn in order to satisfy § 2 does not

"subordinate traditional districting principles to race

substantially more than is 'reasonably necessary' to avoid § 2

liability." 1996 WL 315857, at *16. Although a State need not

await judicial findings to that effect, see id. at *23 (O'Connor,

J., concurring), we have already found that the three Gingles

preconditions exist here.

To be narrowly tailored, the remedial district must use race

at the expense of traditional political concerns no more than is

reasonably necessary to remedy the found wrong. Stated another

way, the remedial district must "substantially address" the

violation and "not deviate substantially from a hypothetical court-

drawn § 2 district for predominantly racial reasons." Id.

(O'Connor, J., concurring); id. at *26 (Kennedy, J., concurring);

see also Shaw II, 1996 WL 315870, at *9 (holding that majority-

minority district must, "at a minimum," remedy the violation to be

narrowly tailored). As this language suggests, the proposed

majority-minority district used to satisfy the first Gingles factor

exemplifies the narrowly tailored district. Indeed, it is

36
deviations from this district that raise problems. See Bush, 1996

WL 315857, at *16; Shaw II, 1996 WL 315870, at *10. And, of

course, a district court supervising the development of a remedy

may reject a proposed remedial district that "substantially

deviates" from the hypothetical district.

There has been no finding that the plaintiffs' plans

subordinate traditional race-neutral districting plans to racial

considerations. The plaintiffs presented several redistricting

plans to the district court, one of which allegedly made "minimal

changes to existing districts and precinct lines." Compare Miller,

115 S.Ct. at 2497 (O'Connor, J., concurring) (noting that

predominant factor test is "a demanding one") with Quilter v.

Voinovich, 912 F. Supp. 1006, 1019 (N.D. Ohio) (holding that

predominant factor test is satisfied where "a state substantially

complies with traditional districting principles" but "gives them

less weight in the apportionment process than racial

considerations"), appeal dismissed, 116 S.Ct. 42 (1995). Whether

those changes are truly "minimal" and, if not, whether the

districts use race no more than is reasonably necessary to remedy

the found violation are questions best left to the district court

on remand.

Redistricting to remedy found violations of § 2 of the Voting

Rights Act by definition employs race. Miller, Shaw II, and Bush,

however, do not foreclose the ability of States to act "to remedy

the reality of racial inequality in our political system." Bush,

1996 WL 315857, at *24 (O'Connor, J., concurring). The limit is

37
that the remedy must use race at the expense of traditional

political concerns no more than is reasonably necessary to remedy

the found wrong.

IV.

Calhoun County's districting system dilutes minority voting

strength in violation of § 2 of the Voting Rights Act.

Accordingly, we REVERSE the judgment of the district court, RENDER

judgment for the plaintiffs on liability, and REMAND the case to

the district court to supervise the development of a remedial plan

and to determine what amount, if any, the plaintiffs are entitled

to recover in court costs and attorneys' fees.

38