ATKINS, Senior District Judge:
The plaintiffs/appellants are (1) Jesse L. Nipper, Donald A. Carter, Annie Ruth Williams, Selendra Williams, Katrina Miles, Desi Wayne Dunlap, Carol D. Days, and Anthony Days, black adult citizens of the United States and residents and registered voters of Duval County, Florida, and the Fourth Judicial Circuit, and (2) D.W. Perkins Bar Association, an unincorporated association of black attorneys in Duval County, Florida. They appeal from the judgment entered against them by the district court, following entry of an order finding that appellants failed to establish a violation of their rights under the Fourteenth and Fifteenth Amendments of the United States Constitution and section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 795 F.Supp. 1525.
Appellants challenge the method of at-large circuitwide and countywide election of judges to the Fourth Judicial Circuit Court of Florida and the Duval County Court. While appellants disagree with the district court's ruling on the constitutional issue, they seek only a review of the ruling on the section 2 claim. Appellants' Brief at 2.
For the reasons discussed below, we find that the district court erred in holding (a) that appellants failed to establish the existence of polarized voting and (b) given the presence of the Gingles threshold factors, that the appellees discharged their burden of defeating a section 2 claim, in terms of the totality of circumstances. Accordingly, we REVERSE AND REMAND.
Duval County's population is 24.4% black and the population of the Fourth Judicial
Although the voting age populations of the Fourth Judicial Circuit and Duval County are 19% and 22% black, respectively, no black candidate has ever won a contested election. Between 1972 and 1990, five black candidates ran for seats on the two courts in six contested elections.
Id. at 21.
Testimony indicated there would have been additional black candidates but for the apparent futility of running in the existing majority white election districts in the face of such severe white bloc voting. R11-8-14 (testimony of Brian Davis); R10-118-120 (testimony of Judge Henry Adams).
At the time appellants filed this action, only one black judge had ever served on the circuit court and only one on the county court. Both reached office by way of mid-term appointments to vacancies. Id. at 14-15, 32-33; R4-64-11. At the time of trial, only one of the twenty-eight circuit judges and two of the twelve county judges were black. Id.
Appellants established at trial that an election subdistrict easily could be drawn in the northwest quadrant of Duval County with a 60 percent black voting age majority and with sufficient population to elect six of the twenty-eight circuit court judges and three of the twelve county court judges. R6-125-7, 20; Plaintiffs' Exhibits 4A and 5. Appellants have not contended this would be the only remedy available; rather, they submitted evidence of the subdistrict to demonstrate that a new electoral configuration could increase the ability of black voters to elect candidates of choice. R10-160, 164 (testimony of plaintiffs' expert demographer Jerry Wilson).
As the district court found, Florida has a long history of racial discrimination in elections and in other aspects of life. R6-125-11-12. For example, until 1958, the State of Florida prohibited black citizens from attending the University of Florida College of Law. Florida A & M Law School was created in 1951 for black students, but was not accredited until several years later. When the state opened another law school in Tallahassee in 1967 at Florida State University, it closed Florida A & M Law School. R6-125-12.
Although the district court noted that certain discriminatory devices, such as poll taxes, are no longer in effect, the court also considered recent evidence of discrimination. Referring to the 1990 report of the Florida Supreme Court Racial and Ethnic Bias Commission,
Plaintiffs' Exhibit 7 at 16-17. The Commission further recommended that the Florida Legislature study the feasibility of utilizing judicial election subdistricts as a means of redressing prior discrimination and increasing minority representation on the bench. Plaintiffs' Exhibit 7 at xii.
Plaintiffs' Exhibit 15 at vii-viii; R10-114-115.
The district court also weighed evidence of black and white political participation, finding little disparity between black and white voter registration in the Fourth Judicial Circuit and Duval County. However, the evidence also showed that black voter turnout in judicial elections was lower than that of whites.
The district court also relied on elections involving only white candidates, finding that black voters' candidate of choice won 68% of the thirteen contested circuit court elections and 58% of the fourteen contested county court elections held during the 1972-90 period.
In addition to evidence of voting statistics, the parties presented evidence on the issue of the "state interests" that the defendants suggested would be compromised if a subdistricting remedy were imposed. The defendants' primary witness on this point was then-chief judge of the Fourth Judicial Circuit, John Santora. Judge Santora testified that subdistricting would cause elected judges to hear cases involving one litigant from inside their district and one from outside. However, he acknowledged that the present system frequently involves litigants from outside the election district facing those from inside the district. Moreover, Judge Santora testified that judges in the Fourth Circuit and elsewhere are fair and impartial even when such situations arise. R13-198-199. Judge Henry Adams of the Fourth Circuit also testified that litigants from outside the election district frequently oppose litigants from inside the district under the current system, and that judges nevertheless are able to exercise their duties fairly and impartially. R15-5-7.
The appellants presented the testimony of Judge Robert Gibbs, a black judge elected from a Mississippi subdistrict of approximately 75,000 people, and Spencer Gilbert, a white Mississippi lawyer practicing in a jurisdiction that uses subdistricts. Both testified that subdistricting has not harmed the administration or perception of justice in that state and, if anything, has actually improved the administration and perception of justice. R15-16-33 and R15-45-51.
The reports of the Florida Supreme Court Racial and Ethnic Bias Commission stated that elimination of discrimination in judicial elections would actually enhance the state's
As noted, based on the evidence presented at trial, the district judge found "that blacks are a sufficiently large and geographically compact group to constitute a majority in a subdistrict." R6-125-20. Additionally, he conceded that the statistics before him "ordinarily make out a sufficient showing of racial polarization in these six judicial elections." R6-125-21. Despite these findings, the district judge ruled against the appellants on the critical issue of polarized voting. Alternatively, the district court held that even if appellants had established racially polarized voting, no section 2 violation existed because the "voting community is not driven by racial bias." R6-125-28.
II. STANDARD OF REVIEW
We review the district court's findings of fact for clear error, Thornburg v. Gingles, 478 U.S. 30, 78-79, 106 S.Ct. 2752, 2780-81, 92 L.Ed.2d 25 (1986), affording special deference to the district court due to its "special vantage point" and ability to conduct an "intensely local appraisal of the design and impact of" a voting system. White v. Regester, 412 U.S. 755, 769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973). However, this standard does not affect this court's power to correct errors of law or findings of fact predicated on a misunderstanding of the law. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2781 (citations omitted); Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1554 (11th Cir.1987), cert. denied, Duncan v. Carrollton, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988).
III. OVERVIEW OF SECTION 2 OF THE VOTING RIGHTS ACT
To prevail on a claim of vote dilution under section 2 of the Voting Rights Act,
In addition to the three core requirements, the Gingles Court identified other factors which might be considered as part of the "totality of the circumstances" that would support a section 2 claim:
Id. at 36-37, 106 S.Ct. at 2759 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 177, 206-07). Additional factors which may be probative in some cases are:
Id. at 37, 106 S.Ct. at 2759.
The Gingles Court noted that "this list of factors is neither comprehensive nor exclusive." Id. at 45, 106 S.Ct. at 2763. However, evidence of racially polarized voting has been recognized as "the linchpin of a section 2 vote dilution claim," and is relevant to establishing two of the three threshold Gingles requirements: the political cohesiveness of the minority group and the ability of the white majority usually to defeat the minority's preferred candidate. Citizens For a Better Gretna v. Gretna, 834 F.2d 496, 499 (5th Cir.1987), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989). Thus, although certain Senate Report factors, such as racially polarized voting, are more significant because of their direct bearing on the section 2 threshold inquiry, other factors are "supportive of, but not essential to, a minority voter's claim." Hall v. Holder, 955 F.2d 1563, 1568 (11th Cir.1992) (quoting Gingles, 478 U.S. at 48-49 & n. 15, 106 S.Ct. at 2765-66 & n. 15). These factors are relevant to the extent that they are supportive of the three core Gingles factors, however, they need not be present to satisfy the Gingles test. Hall, 955 F.2d at 1568.
This appeal centers on two issues. First, appellants challenge the district court's conclusion that they failed to prove the existence of racially polarized voting patterns in the Fourth Circuit and Duval County. Second, appellants challenge the district court's holding that, even if appellants did show racially polarized voting, the "totality of the circumstances" did not support a section 2 claim. We address each of these contentions below.
A. Racially Polarized Voting
As discussed above, both parties presented substantial evidence related to the degree of racial polarization in judicial elections in the Fourth Judicial Circuit and Duval County. Based on this evidence, the district judge acknowledged that the statistics before him ordinarily would establish racial polarization but nevertheless ruled that appellants failed to prove this critical factor. In so ruling, the district court gave the following reasons: (1) the judicial elections involving
1. Staleness of Elections
The district court's decision to discount the probative value of the six elections, which took place between 1972 and 1984, because four of those elections were "stale" was incorrect for two reasons. First, this ruling is contrary to precedent in this circuit as well as other circuits. See, e.g., Solomon v. Liberty County, 899 F.2d 1012 (11th Cir. 1990) (en banc), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991); Gretna, 834 F.2d at 500-03. In Solomon, six elections for county offices in the time period 1968-1984 were held sufficient to establish polarized voting as a matter of law. Solomon, 899 F.2d at 1013 and 1019-21 and n. 8 (Kravitch, J., specially concurring); Solomon, 899 F.2d at 1021 (Tjoflat, C.J., specially concurring). Likewise, the Fifth Circuit in Gretna, a 1987 decision, held that plaintiffs had shown polarization in a citywide at-large challenge based on two aldermanic elections occurring in 1977 and 1979 and two exogenous elections occurring in 1979 and 1984. Gretna, 834 F.2d at 501-02; see also Gingles, 478 U.S. at 82, 106 S.Ct. at 2782-83 (Court relied upon elections occurring in ten year period before the suit was filed). Moreover, appellees' own expert, Dr. Ronald Weber, conceded that black-white elections from 1972 are "recent enough to be probative of current voting patterns." R13-61-62.
Second, the district court, in effect, penalized appellants because black candidates have not run in judicial elections in the recent past. At least two witnesses, Brian Davis and Judge Henry Adams, offered credible reasons for this reluctance — the futility of running in the face of pervasive bloc-voting and the resulting pattern of black defeat in prior years. R11-12-16 and R10-117-118.
Courts have refused to deny section 2 relief simply because there are few or no elections in which minority candidates have run. See McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir.1984). The McMillan court explained that "the fact that no black ran [for office] between 1970 and the time this litigation commenced [is of no help] to defendants." Rather, "the lack of black candidates is a likely result of the discriminatory system." Id. Also instructive on this issue is the recital in Gingles where the Supreme Court said: "Where a minority group has begun to sponsor candidates just recently, the fact that statistics from only one or a few elections are available for examination does not foreclose a vote dilution claim." Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25; see also, Westwego Citizens for Better Government v. Westwego (Westwego I), 872 F.2d 1201, 1208-09 and n. 9 (5th Cir.1989) (holding that plaintiffs could establish a section 2 violation even though there were no statistics available related to Westwego aldermanic elections involving black candidates because no black had ever run).
As the Fifth Circuit warned in Westwego I, the failure to consider the possibility that "black candidates `don't run because they can't win'" in weighing such evidence "would allow voting rights cases to be defeated at the outset by the very barriers to political participation that Congress has sought to remove." Westwego I, 872 F.2d at 1209 n. 9. Thus, in keeping with the teachings of Gingles, McMillan, and Westwego I, we hold that the district court erred in discounting the probative value of the six judicial elections on the basis of "staleness."
2. Elections Involving Only White Candidates
Based upon its erroneous conclusion that the judicial elections involving black candidates were stale, the district court decided to "give some weight to all elections for circuit and county judge from 1972 to 1990 ... in determining racial polarization, regardless of the race of the candidates." R6-125-23. Thus, in holding against appellants on the issue of racial polarization, the district court relied primarily on elections involving
The genesis of the district court's approach was the plurality comment by the Supreme Court in Gingles that "the race of the candidate per se is irrelevant to racial bloc voting analysis." Gingles, 478 U.S. at 67, 106 S.Ct. at 2775. However, when viewed in the context of facts before the Gingles Court
Furthermore, the district court's focus on elections involving only white candidates runs counter to this court's holding in Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (11th Cir.1987). There, the district court criticized plaintiffs' expert for not analyzing two white versus white sheriff's races in which one of the candidates had a black deputy sheriff who assisted the white candidate in getting elected. In rejecting the district court's holding, this court wrote: "It is the access of minority voters to the political process, not the majority's access to the black vote, which is the chief concern of Section 2 of the Voting Rights Act." Carrollton, 829 F.2d at 1559.
In sum, given the pervasive polarization in the elections involving black and white candidates, we hold that the district court erred in relying on elections involving only white candidates. Under these circumstances, evidence that black voters are sometimes able to elect candidates of choice in white only elections was an insufficient basis to find against appellants on the issue of racial polarization.
The district court also rejected two of the judicial elections in which black candidates lost as evidence of racial polarization because the black candidates, Buggs and Prescod, ran against incumbents. The court explained its ruling as follows:
R6-125-25. Thus, the district court concluded that the Buggs and Prescod elections "[were] better viewed as evidence of the power of incumbency rather than as strong evidence of racial polarization." Id. at 26. For the reasons that follow, we conclude that the district court erred in discrediting the value of these elections as evidence of racial polarization.
First, the district judge erred in giving substantial weight to the white incumbencies as an explanation for the outcomes of the Buggs and Prescod elections given the relative weakness of the incumbents in those elections. For example, the white incumbent against whom Prescod ran in 1984 was not an attorney, a prerequisite for running for county judge in that election; rather, he was "grandfathered" in from an earlier time when non-attorneys were permitted to run for county judgeships. More significantly, the incumbent in the Prescod race received the worst ratings in the bar polls of any judge in the circuit, including an "unqualified" rating from 82% of the lawyers polled in the year he defeated Prescod. Furthermore, Jacksonville's only daily newspaper and a racially integrated public teacher's organization both endorsed Prescod. In the 1978 Buggs election, the white incumbent, who had been appointed to a vacancy, had been an incumbent judge for a mere 100 days before running against Buggs. In short, contrary to the district court's conclusion, these elections are hardly "evidence of the power of incumbency."
Second, even aside from the relative weakness of the white incumbents, the single factor of incumbency is insufficient to explain the defeat of black candidates where the evidence shows that black candidates consistently lost because of white bloc voting. In Gingles, the Court explained that
Gingles, 478 U.S. at 57, 106 S.Ct. at 2770 (emphasis added, footnote omitted). We interpret Gingles to permit consideration of special circumstances only to explain variations from a usual pattern of racially polarized voting. In other words, special circumstances may explain minority electoral success in a polarized election; however, contrary to the district court's interpretation, the converse is not also true. As one court has explained, "the `special circumstances' the [Gingles] Court had in mind were circumstances that would explain the minority candidates winning the election in spite of white bloc voting. Plaintiffs' argument turns the Court's language on its head and would have it refer to circumstances explaining the defeat of the minority's candidate...." Williams v. State Bd. of Elections, 718 F.Supp. 1324, 1329 (N.D.Ill.1989). As in Williams, we conclude that the district court erred in construing Gingles to permit consideration of special circumstances to explain minority electoral failure.
In sum, we respectfully reject as clear error each of the district court's reasons for concluding that appellants failed to show racial polarization.
B. Violation of Section 2 under "Totality of the Circumstances"
Having concluded that the district court erred in finding against appellants on the issue of racial polarization, we next consider appellants' contention that the district court erred in holding that, assuming racial polarization exists, appellants failed to establish a section 2 violation. Following Judge Tjoflat's concurrence in Solomon, 899 F.2d at 1035, the district court stated that it still would have ruled for appellees because, under the totality of the circumstances, "the voting community is not driven by racial bias." R6-125-28. The court explained its ruling as follows:
Id. at 38.
In challenging this ruling, appellants maintain that, assuming the district court is reversed on the issue of polarization, the view articulated in Solomon by Judge Kravitch dictates judgment in their favor. Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring). However, as stated, this circuit remains divided on the issue raised in Solomon, that is, whether plaintiffs can establish a section 2 violation simply by satisfying the three core Gingles factors or whether defendants can raise a lack of racial bias defense under the totality of circumstances after plaintiffs have satisfied the threshold Gingles factors.
According to Judge Tjoflat's concurrence, a plaintiff's satisfaction of the Gingles factors shifts the burden to the defendant to show that "in light of the totality of the circumstances, ... the voting communities were not driven by racial bias." Solomon, 899 F.2d at 1037. In finding that defendants had shown an absence of racial bias, the district court relied upon factors indicating that the legislature had no discriminatory purpose in adopting and maintaining the existing election districts.
The critical inquiry under the racial bias approach is whether racial bias motivates the voting community, not whether it influences the legislature in appointing judges. See Solomon, 899 F.2d at 1037; see also Meek v. Metropolitan Dade County, 985 F.2d 1471, 1487 (11th Cir.1993) (per curiam) (discussing racial bias in voting communities). Section 2 refers to the ability of black voters to elect their candidates of choice, not to the ability of black candidates to be appointed to office. Carrollton Branch of NAACP, 829 F.2d at 1560 ("While appointments ... may be evidence of the willingness of some whites to allow some black participation in the political process, it does not demonstrate the ability of blacks to get elected to political office...."). We therefore hold that the district erred in relying upon evidence indicating that the legislature, as opposed to the voting community, was not driven by racial bias.
Furthermore, as discussed above,
Additionally, based on our review of the record, we conclude that the district court erred in ruling that Florida's history of official discrimination, along with the other Senate Report factors — the socio-economic effects of discrimination, the responsiveness of judges to the needs of the local black community, and the absence of candidate slating processes and the use of racial appeals — did not support a finding of racial bias motivating voting in the relevant communities. After recounting the long history of discrimination and the exceedingly difficult economic conditions under which black citizens live as compared to most white citizens in the Fourth Judicial Circuit, the district court discredited these factors largely because black voter registration is equal to that of white voter registration. However, as this court has observed, the fact that blacks register in approximately the same numbers as whites does not defeat or detract from a section 2 claim, especially where the evidence shows that black voter turnout is lower than that of whites. See United States v. Dallas County Commission, 739 F.2d 1529, 1538 (11th Cir. 1984). In addition, this court previously has held that the absence of candidate slating processes and racial appeals is insufficient to defeat a section 2 case. See United States v. Marengo County Commission, 731 F.2d 1546, 1571 (11th Cir.), cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984); see also McMillan v. Escambia County, 748 F.2d 1037, 1045-47 (5th Cir.1984). Similarly, evidence of elected officials' responsiveness to minority needs "does not overcome evidence that minorities are excluded from political participation." Marengo, 731 F.2d at 1572.
In short, the district court erred in concluding that these additional factors supported a defense based on the absence of
In summary, we hold that the district court erred in finding that appellants did not satisfy the three core Gingles factors and in ruling that appellees discharged their burden of proving that the voting communities were not driven by racial bias. Therefore, we REVERSE the district court's judgment and REMAND for the district court to provide forthwith an appropriate remedy to the appellants.
% of Black Voters % of White Voters
Voting for Black Cand.(s) Voting for Black Cand.(s) 4th Circuit: 1972 Primary Leander Shaw Circuit 92 24 County 93 23 1972 Runoff Leander Shaw Circuit 97 33 County 98 32 1978 Primary Harrell Buggs Circuit 82 3 County 81 4 Duval County: 1978 Primary 88 13 A. Washington 1984 Primary 73 27 Denise Prescod 1984 Primary 76 24 Dietra Micks SeeR6-125, Appendix A.
42 U.S.C. § 1973.
R10-147-48; Defendant's Exhibit 23 at 15 (emphasis added).
Moreover, courts have rejected defenses based on an "applicant pool" theory. As the former Fifth Circuit stated, "[t]he necessary link between the percentage of those eligible and the percentage actually selected that exists in school cases and employment cases is missing in voting cases." Marshall v. Edwards, 582 F.2d 927, 936 (5th Cir.1978); see also Martin v. Allain, 658 F.Supp. 1183, 1203-04 (S.D.Miss.1987) (finding fact that small percentage of blacks was eligible to be elected as judges relevant but not controlling and further holding that existence of sufficiently large and geographically compact group which could constitute majority in single-member district was overriding factor).