ON REMAND FROM THE UNITED STATES SUPREME COURT
KRAVITCH, Circuit Judge:
Plaintiffs, black voters of Escambia County, Florida, filed this class action in March 1977, challenging the at-large system for electing Escambia County commissioners.
We now hold that section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended in 1982, does provide grounds for affirmance of the district court's opinion.
I. BACKGROUND 5
The five members of the Escambia County governing body, the Board of County Commissioners, are elected for staggered four-year terms in accordance with an at-large voting system. Under this system candidates run for numbered places corresponding to the districts in which they live, but each must be elected by the voters of the entire county. There is no majority-vote requirement for the general election, although candidates must obtain a majority of the votes cast in the party primaries to win party nomination.
As of the date of trial, four blacks had run for the county commission, none of whom had been elected. Plaintiffs brought this action claiming that the county's at-large election system unconstitutionally dilutes their votes.
The district court found that blacks comprise seventeen percent of the registered voters of Escambia County and that in elections in which black candidates had run for the County Commission there had been a consistent pattern of racially polarized voting. The court found that the at-large system, coupled with the above factors, prevented black candidates from obtaining a majority of the votes in the County Commission elections. Having concluded that the at-large system had such discriminatory effect, the district court considered whether its purpose was discriminatory. Although the court found that the at-large system had not been enacted for a discriminatory purpose, it concluded that the scheme had been maintained for such a purpose. In finding intentional discrimination, the court relied on a variety of factors, including the adverse effects of past discrimination by the state and county governments on blacks' exercise of their suffrage rights and participation in the political system, the depressed socioeconomic status of blacks in the county, the tenuousness
In our prior decision, we determined that the evidence in the record fully supported the district court's factual findings. Escambia II, 688 F.2d at 969. We again make this finding. Our task, then, is to apply the factual findings of the district court to the recently amended Voting Rights Act.
II. APPLICATION OF SECTION 2
In 1982, Congress amended section 2 of the Voting Rights Act, 42 U.S.C. § 1973, to read as follows:
This is not a case of first impression. In both United States v. Dallas County Commission, 739 F.2d 1529 (11th Cir.1984), and United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.1984), appeal dismissed, cert. denied, ___ U.S. ___, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984), the Eleventh Circuit has applied the amended section 2 to claims of voter dilution as a result of at-large election systems. Thus, many of the preliminary issues in this case have already been resolved. We have held that section 2 is constitutional under Congress' enforcement power under the fourteenth and fifteenth amendments, Marengo 731 F.2d at 1556-63;
The Marengo court fully delineated the standard for assessing alleged violations under the amended section 2. The court stated: "Congress wished to eliminate any intent requirement from section 2, and therefore changed the terms of § 2(a), 42 U.S.C.A. § 1973(a) (West Supp.) (1983), to
Id. at 1564-66 (footnotes omitted).
The typical factors listed in the Senate Report are:
S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 reprinted in 1982 U.S.Code Cong. & Ad.News 177, 206-07 (footnotes omitted).
A. Racially Polarized Voting
Although no factor is indispensable, the legislative history of the amendment to section 2 indicates that racially polarized voting will ordinarily be the keystone of a dilution case. Marengo at 1566. Defendants contend that voting in Escambia County is not polarized. This contention is not supported by the evidence. As we stated in Escambia II:
Id. at 965-66.
Defendants also assert that prior voting statistics are the result of the failure of blacks to nominate outstanding black candidates or any black person since 1970. As noted in both Marengo and Dallas, "the failure of the blacks to solicit white votes may be caused by the effects of past discrimination ...." Dallas County, 739 F.2d at 1536; accord Marengo, 731 F.2d at 1567.
B. Past Discrimination and Its Lingering Effects
Defendants are incorrect when they assert that prior discrimination is irrelevant under section 2. As stated by the Marengo court:
731 F.2d at 1567 (footnote omitted).
In the present case, the district court found that the County Commission and School Board election systems "had their genesis in the midst of a concerted state effort to institutionalize white supremacy." McMillan v. Escambia County, Fla., PCA No. 77-0432, slip op. at 4 (N.D.Fla., July 10, 1978).
In addition, discrimination against minorities outside of the electoral system cannot be ignored in assessing that system. When there is clear evidence of present socioeconomic or political disadvantage resulting from past discrimination, the burden is on defendants to show that reduced political participation is the result of something besides this discrimination. Dallas, 739 F.2d at 1537, Marengo, 731 F.2d at 1568-69. See also S.Rep. No. 417, 97th Cong., 2d Sess. 29, n. 114, reprinted in 1982 U.S.Code Cong. & Ad.News 207, n. 114. The court below found plentiful evidence of such discrimination. State-enforced segregation has created two separate societies in Escambia County in which churches, clubs, neighborhoods and, until recently, schools in the county have remained segregated by race. The lower court found that this "continued separation [of blacks] from the dominant white society" not only has "left blacks in an inferior social and economic position, with generally inferior education," but has "helped reduce black voting strength and participation in government." McMillan v. Escambia County, Fla., PCA No. 77-0432, slip op. at 17.
C. Election Practices
The present case concerns a process whereby a majority vote is required during the primary in an area where the Democratic Party is dominant. This factor weighs in favor of a finding of dilution. Dallas County, 739 F.2d at 1536.
D. Tenuous State Policy
Although a strong state policy in favor of at-large elections is less important under the results test, a tenuous explanation for at-large elections is circumstantial evidence that the system is motivated by discriminatory purposes and has a discriminatory result. Marengo, 731 F.2d at 1571. Defendants claim that the at-large system is preferable because it makes the commission responsive to the needs of the whole county. The district court found, however, that "the residence district of each commissioner is more or less regarded as the district of that commissioner for which he has responsibility and for whose needs he is the particular advocate on the commission." McMillan v. Escambia County, Fla., PCA No. 77-0432, slip op. at 30.
E. Extent to Which Blacks Have Been Elected to Public Office in Escambia County
Under the at-large system no black was ever elected to the County Commission. In addition, prior to this litigation, no black had been elected to the Escambia County School Board
Defendants argue that black access to the political process is evidenced by the fact that twenty percent of the Escambia County Democratic Executive Committee is black. This committee, however, is elected from districts (precincts) rather than at-large. Thus, we agree with plaintiffs that the racial composition of the Democratic committee shows that the election structure does make a difference. Nor does the fact that no black ran for the Commission between 1970 and the time this litigation commenced, help defendants. Rather, the lack of black candidates is a likely result of a racially discriminatory system. See McMillan v. Escambia County, Fla., PCA No. 77-0432, slip op. at 10. See also Marengo, 731 F.2d at 1568-69; S.Rep. No. 417, 97th Cong., 2d Sess. 29, n. 114, reprinted in 1982 U.S.Code Cong. & Ad.News 207, n. 114.
F. Other Factors
The district court did not find three of the "typical factors" listed in the Senate Report: denial of access to a slating process; overt or subtle racial appeals in political campaigns; a significant lack of responsiveness on the part of elected officials to the particular needs of the members of the minority group.
The lack of these factors, however, does not lead this court to hold for the defendants. In Marengo, the court found no slating process working against plaintiffs. The Marengo court also found no evidence of racial appeals, but noted that "[i]n the seventies overt political racism was less
The absence of these, or any other, factors is not conclusive under the section 2 "totality of the circumstances" test. As the Marengo court concluded:
731 F.2d at 1574.
Plaintiffs in the present case have, indeed, shown that these factors are present, as well as the other indications of discriminatory result discussed in this opinion. We agree with the district court that "[i]n sum, a preponderance of the evidence shows that the election system of the board of county commissioners effectively dilutes the votes of black citizens." McMillan v. Escambia County, Fla., PCA No. 77-0432, slip op. at 32. Thus, we find that the record shows a clear violation of the results test adopted by Congress in section 2 of the Voting Rights Act.
In addition, this court already has determined that the at-large election system was maintained for a discriminatory purpose and thus violated the fourteenth amendment. Escambia II, 688 F.2d at 969. This showing of intent is sufficient to constitute a violation of section 2 just as we found that it was sufficient to constitute a violation of the fourteenth amendment. The results test of section 2 was intended to be a less stringent standard that substantially lessened the burdens on plaintiffs. Moreover, Congress intended that fulfilling either the more restrictive intent test or the results test would be sufficient to show a violation of section 2. The Senate Report states:
S.Rep. No. 417, 97th Cong., 2d Sess. 27, reprinted in 1982 U.S.Code Cong. & Ad.News 205 (footnote omitted). The Senate
For the foregoing reasons, we hold that the at-large system for electing the Escambia County Commission violates section 2 of the Voting Rights Act, 42 U.S.C. 1973, as amended in 1982, and thus we AFFIRM.
This course of events raised numerous questions as to who had standing to pursue this appeal and whether the appeal is now moot. We find, however, that the plain words of the Supreme Court's opinion, Escambia County, Fla. v. McMillan, ___ U.S. ___, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984), are controlling.
In note 1 the Court stated that "[o]nly former and present individual members of the Board are now before the Court as appellants." Id. The Court elaborated in note 4:
Id. 104 S.Ct. at 1578. Thus, the county qua county is no longer a party to this litigation, notwithstanding the fact that the county was awarded costs in the Supreme Court for its prior involvement in this litigation.
The Supreme Court also determined that this case was not moot, stating:
Id. Likewise, this court is only concerned with liability and does not reach the question of remedy which is being appealed separately and is still pending in this court, No. 83-3275.
Appellants also claim that appellees should be "stayed from litigating this case" until they pay the judgment for costs awarded against them by the Supreme Court. This argument is not supported by the precedent put forth in appellants' brief. Moreover, appellants are the moving party; appellees cannot be barred from submitting responsive briefs. In addition, staying the litigation would only preserve the status quo, a situation favored by the appellees not the appellants.
For these reasons, we reach the merits of this case.
446 U.S. at 60-61, 100 S.Ct. at 1496 (footnotes omitted).