Clark v. Calhoun County, Miss.

United States Court of Appeals,

Fifth Circuit.

No. 93-7118.

James H. CLARK and Barbara Brown, Plaintiffs-Appellants,

v.

CALHOUN COUNTY, MISSISSIPPI, et al., Defendants-Appellees.

May 24, 1994.

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

Before POLITZ, Chief Judge, and KING and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs challenge the redistricting plan for Calhoun

County, Mississippi under § 2 of the Voting Rights Act. The

district court agreed with defendants that the black population in

Calhoun County was not sufficiently geographically compact to form

a majority-black district. Because the court's findings in this

regard are not sufficiently particularized, we vacate and remand

for further findings consistent with this opinion.

I.

Plaintiffs, James H. Clark and Barbara Brown, are black

residents and registered voters in Calhoun County, Mississippi.

They challenge the county's election districts under § 2 of the

Voting Rights Act. County supervisors, county election

commissioners, and members of the board of education are elected

from the five election districts in Calhoun County. The named

defendants are: Calhoun County; the Calhoun County Democratic

Executive Committee; the Calhoun County Republican Executive

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Committee; and the Calhoun County Election Commission.

In February 1991, following the release of the 1990 Census,

the Calhoun County Board of Supervisors engaged Three Rivers

Development and Planning District of Pontotoc, Mississippi ("Three

Rivers") to develop a redistricting plan for the county. At the

same time, the Board of Supervisors appointed a 10-member biracial

committee (made up of one black citizen and one white citizen from

each election district) "to act as a supervisory committee to the

said Three Rivers ... and to assist in dissemination of information

to the public."

The biracial committee met with Three Rivers in March 1991,

and approved one of the planning company's proposals for

redistricting. After a televised public hearing during which a

representative of Three Rivers explained the need for redistricting

and the changes being suggested, the Board of Supervisors adopted

the plan approved by the biracial committee. The plan then was

submitted to the Justice Department for preclearance pursuant to §

5 of the Voting Rights Act. In July 1991, the Justice Department

advised the county that the Attorney General had no objections to

the plan.

Plaintiffs filed suit on August 7, 1991, alleging that the

redistricting plan violated § 2 of the Voting Rights Act of 1965,

as amended, 42 U.S.C. § 1973, and the Fourteenth and Fifteenth

Amendments to the United States Constitution.1 Plaintiffs argued

1
This appeal only raises issues under § 2 of the Voting
Rights Act and does not involve plaintiffs' constitutional
claims.

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that the redistricting plan should have included a majority-black

district given that black citizens comprise 27.017 of the general

population and 23.477 of the voting-age population of Calhoun

County. Under the redistricting plan, the largest concentration of

black citizens is in District 4, where they comprise 427 of the

population (see Appendix A). In support of their case, plaintiffs

prepared a hypothetical districting plan which included a district

with a 74.97 black majority (see Appendix B).

A three-day bench trial was held in November 1992. At trial,

it was established that no black candidate has been elected in this

century 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. The evidence

also showed that, since 1980, twelve black candidates have run

unsuccessfully for justice court judge, constable, sheriff, and

school board member. The only black candidate to be elected to

county-wide office during this time was Sheila Steen, who ran

unopposed for Election Commissioner of District 3.

Plaintiffs' expert in racial bloc voting, Cheri McKinless,

testified that racial polarization exists in Calhoun County. She

testified that, in black versus white elections, black citizens

vote as a bloc for the black candidate, and white citizens tend to

vote for the white candidate. According to Ms. McKinless, for

black citizens to elect their preferred candidate to county-wide

office, they must comprise a majority of the voting-age population

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in a given district. Ms. McKinless asserted that: "if the black

candidate is getting no support from the white population, there is

no way a black candidate can be elected under the current system."

In response, defendants showed that three black candidates had been

elected to the Board of Aldermen for Bruce, the largest

municipality in Calhoun County, and that one black candidate had

been elected to the Board of Aldermen for Vardaman, the

fourth-largest municipality in the county.

After considering the evidence presented, the district court

concluded that plaintiffs had failed to establish that the

redistricting plan violated § 2 of the Voting Rights Act. See

Clark v. Calhoun County, 813 F.Supp. 1189, 1202 (N.D.Miss.1993).

The court's ruling was bottomed primarily on its conclusion that

"plaintiffs have not proved that a geographically compact black

majority district can be created." Id. Alternatively, the court

held that a § 2 violation had not been established under the

"totality of circumstances." Id. On appeal, plaintiffs challenge

both of these conclusions; we consider their arguments below.

II.

A.

Section 2 of the Voting Rights Act, as amended, provides that:

"No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any State or

political subdivision in a manner which results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color...." 42 U.S.C. 1973(a). To

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establish a § 2 violation, members of the protected class must

demonstrate that, based on the totality of circumstances, they

"have less opportunity than other members of the electorate to

participate in the political process and to elect representatives

of their choice." 42 U.S.C. 1973(b).

In Thornburg v. Gingles, 478 U.S. 30, 48-51, 106 S.Ct. 2752,

2765-67, 92 L.Ed.2d 25 (1986), the Supreme Court held that a

plaintiff must demonstrate three "preconditions" in order to

establish that an at-large voting scheme dilutes minority voting

strength and therefore violates § 2. The minority group must

demonstrate that: (1) it is sufficiently large and geographically

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

it is politically cohesive; and (3) the white majority votes

sufficiently as a bloc to enable it—in the absence of special

circumstances—usually to defeat the minority's preferred

candidates. Id. The Supreme Court recently held that the same

preconditions apply to challenges to single-member districts. See

Growe v. Emison, --- U.S. ----, ---- - ----, 113 S.Ct. 1075, 1084-

85, 122 L.Ed.2d 388 (1993).

In this case, the district court found that plaintiffs had

failed to establish the first Gingles precondition, reasoning that:

Although plaintiffs have proved that the black population of
Calhoun County is sufficiently large enough to constitute a
majority in one district, they have failed to prove that this
same minority group is geographically compact. Under
plaintiffs' proposed plan, blacks from three separate and
distinct municipalities, each having diverse interests, were
extracted to form District 1. This exercise results in
extreme gerrymandering, plaintiff's proposed black district
having been "drawn in an unusual or illogical manner to
enhance the voting power of a particular ... voting bloc at

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 the expense of other individuals or groups who would be
elected or help elect the candidates of their choice."
Magnolia Bar Association, Inc. v. Lee, 793 F.Supp. 1386, 1396
n. 11 (S.D.Miss.1992).... In this court's opinion, under
plaintiffs' proposal, the voting strength of blacks not
included in District 1 would be diluted to such an extent that
they would have less opportunity to participate in the
political process and to elect members of their choice.

813 F.Supp. at 1197-98.

We note initially that the district court's suggestion that

the formation of plaintiffs' proposed district would dilute the

voting strength of black citizens in the remaining districts does

not support its conclusion that the black population in Calhoun

County is not sufficiently geographically compact. Whenever a

majority-black district is created to remedy a § 2 violation, the

number of black voters in the other districts must necessarily be

reduced. Indeed, without this phenomenon, no majority-black

districts would ever be created. Because the record in this case

reflects no loss of influence that is not found in every § 2 case,

the district court erred in finding that the loss of influence

supported its conclusion that the black population in Calhoun

County was not sufficiently geographically compact.

We address next the district court's concerns about the shape

or configuration of the proposed district. The first Gingles

precondition does not require some aesthetic ideal of compactness,

but simply that the black population be sufficiently compact to

constitute a majority in a single-member district. See, e.g., De

Grandy v. Wetherell, 815 F.Supp. 1550, 1569 (N.D.Fla.1992)

(three-judge court) ("compactness is not an aesthetic concept"),

prob. juris. noted, --- U.S. ----, 113 S.Ct. 1249, 122 L.Ed.2d 648

6
(1993). Moreover, plaintiffs' proposed district is not cast in

stone. It was simply presented to demonstrate that a

majority-black district is feasible in Calhoun County. If a § 2

violation is found, the county will be given the first opportunity

to develop a remedial plan. See Westwego Citizens for Better Gov't

v. City of Westwego, 946 F.2d 1109, 1124 (5th Cir.1991) ("Westwego

III").

Defendants argue that the Supreme Court's decision in Shaw v.

Reno, --- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993),

supports the district court's finding that plaintiffs have not

established the first Gingles precondition. In Shaw, the Court

held that plaintiffs state a claim under the Equal Protection

Clause, and trigger strict scrutiny, by alleging that a voting

scheme is "so extremely irregular on its face that it rationally

can be viewed only as an effort to segregate the races for purposes

of voting, without regard for traditional districting principles

and without sufficiently compelling justification." Id., --- U.S.

at ----, 113 S.Ct. at 2824. However, the proposed district in this

case (see Appendix B) is not nearly as bizarre as the district

under consideration in Shaw. We therefore need not decide 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.2

2
The district court, of course, retains supervision over the
final configuration of the districting plan. See Westwego III,
946 F.2d at 1124. As such, the court should ensure that any
remedial plan is "consistent with the spirit of Shaw." Jeffers
v. Tucker, --- F.Supp. ----, ----, 1994 WL 71471, at *6

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 The district court also found that the black population in

Calhoun County was not sufficiently geographically compact because:

"Under plaintiffs' proposed plan, blacks from three separate and

distinct municipalities, each having diverse interests, were

extracted to form [plaintiffs' proposed majority-black district]."

A number of courts have concluded that the first Gingles

precondition is not satisfied if the proposed district does not

retain a natural sense of community such that it can be effectively

represented. See, e.g., East Jefferson Coalition for Leadership &

Dev. v. Parish of Jefferson, 691 F.Supp. 991, 1007 (E.D.La.1988).

However, we cannot properly review the district court's finding

because it failed to explain the nature of the "diverse interests"

and why they are so significant that plaintiffs' proposed district

could not be effectively represented. We therefore are compelled

to vacate the district court's judgment and remand to allow the

court to make further findings on the compactness issue.

If the court finds, upon reconsideration, that the black

population in Calhoun County is sufficiently compact, it should

then make definitive findings on the second and third Gingles

factors—the political cohesiveness of the black community and the

ability of the white majority usually to defeat the minority's

preferred candidate. As the district court correctly noted, these

two factors are ordinarily established through evidence of racially

(E.D.Ark.1994) (three-judge court). The court should make sure
that any remedial plan is narrowly tailored to correct any § 2
violation found to exist in Calhoun County. See Hays v. State of
Louisiana, 839 F.Supp. 1188, 1206-09 (W.D.La.1993) (three-judge
court), appeal filed, 62 U.S.L.W. 3670 (Mar. 28, 1994).

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polarized voting. See Westwego Citizens for Better Gov't v. City

of Westwego, 872 F.2d 1201, 1207 (5th Cir.1989) ("Westwego I ").

Despite recognizing that plaintiffs presented uncontradicted

statistical evidence that racially polarized voting exists in

Calhoun County, the district court found that:

By limiting the analysis of racial bloc voting to the
twelve black candidates suggested by plaintiffs, there can be
no conclusion except that racial bloc voting did exist in
Calhoun County. Although the steady increase in black
officeholders in the County cannot remove the
statistically-based conclusion presented by plaintiffs, it
clearly evidences, together with other evidence presented by
defendants, that racial polarization and racial bloc voting
are steadily but surely coming to an end in Calhoun County.

813 F.Supp. at 1198.

The district court, of course, is not obliged to accept

plaintiffs' statistical evidence as conclusive on the question of

whether racially polarized voting exists in Calhoun County. See

Teague v. Attala County, 17 F.3d 796, 798 (5th Cir.1994). However,

when the statistics are the principal evidence offered by

plaintiffs and when the statistics have at least surface

plausibility, the district court must ensure that it thoroughly

discusses its reasons for rejecting that evidence. See id.

Moreover, the evidence presented by defendants in response to

plaintiffs' statistical evidence has limited relevance. First, the

election of Ms. Steen to the county election commission was in an

uncontested race that occurred while this litigation was pending.

As the Supreme Court noted in Gingles, the election of some black

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

polarized voting does not exist. 478 U.S. at 57, 75-76, 106 S.Ct.

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at 2769-70, 2779-80. The Court noted that this was particularly

true when the election was unopposed and occurred after litigation

had been initiated. Id., see also Carrollton Branch of NAACP v.

Stallings, 829 F.2d 1547, 1560 (11th Cir.1987) ("proof that the

election of a minority candidate to political office occurred after

initiation of a lawsuit could be a factor mitigating against a

finding of increased minority electoral success"), cert. denied,

485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988).

Second, the municipal elections in Bruce and Vardaman do not

demonstrate that black citizens have an equal opportunity to elect

their preferred candidates to county-wide offices. As we have

previously held, "elections involving the particular office at

issue will be more relevant than elections involving other

offices." Magnolia Bar Ass'n v. Lee, 994 F.2d 1143, 1149 (5th

Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 555, 126 L.Ed.2d 456

(1993); see also Rangel v. Morales, 8 F.3d 242, 245-46 (5th

Cir.1993). Thus, in analyzing voting patterns in Calhoun County,

the district court should 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.

In summary, because the district court's findings as to the

first Gingles precondition are not sufficiently particularized, we

vacate the court's judgment and remand for further findings on this

issue. If the court finds that this precondition has been

satisfied, it should then make definitive findings regarding the

evidence of racially polarized voting in Calhoun County.

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 B.

Considering our remarks above remanding this case for further

findings on the Gingles factors and given the key role that

racially polarized voting plays in the totality of circumstances

inquiry, see Westwego III, 946 F.2d at 1120, we also vacate the

district court's alternative holding bottomed on the totality of

circumstances. After reconsidering the evidence of racially

polarized voting in the context of the Gingles factors, the

district court should then reconsider its findings with respect to

the totality of circumstances. As the Third Circuit recently

explained:

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. In such cases, the district court
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.

Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103,

1135 (3d Cir.1993), cert. petition filed, 62 U.S.L.W. 3396 (Nov.

17, 1993).

III.

Because the district court's findings regarding the geographic

compactness of the black population in Calhoun County are not

sufficiently particularized, and because the court's findings

regarding racial polarization are not definitive, we vacate the

court's judgment and remand for further consideration consistent

with this opinion.

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VACATED and REMANDED.

CA(94)2458-1,SIZE-1 PAGE,TYPE-PI

CA(94)2458-2,SIZE-1 PAGE,TYPE-PI

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