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.
2
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
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(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.
9
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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