TJOFLAT, Chief Judge:
Section 2(a) of the Voting Rights Act, 42 U.S.C. § 1973 (1988), states that "[n]o 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." Under section 2(b) of the Act, "[a] violation of [section 2(a)] is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State ... are not equally open to participation by members of a class of citizens protected by [section 2(a)] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Section 2 applies to state judicial elections. Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2368, 115 L.Ed.2d 348 (1991); Houston Lawyers' Ass'n v. Attorney Gen., 501 U.S. 419, 423-24, 111 S.Ct. 2376, 2379, 115 L.Ed.2d 379 (1991).
In this case, the appellants, black voters and an association of black attorneys, challenge the system used to elect the judges of Florida's Fourth Judicial Circuit Court, which encompasses Duval, Clay, and Nassau counties, and the judges of the Duval County Court. The appellants contend that the use of at-large elections in those trial court jurisdictions
Following a five-day bench trial, the United States District Court for the Middle District of Florida dismissed the appellants' case. The court did so on two grounds: (1) the appellants failed to establish an essential element of a vote dilution case — racially polarized voting in the relevant communities — as required by Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); and (2) the appellees' rebuttal evidence demonstrated that, under "the totality of the circumstances," racial discrimination was not playing a role in the judicial elections under challenge. The district court's finding of no section 2 liability made it unnecessary for the court to consider the matter of remedy.
On appeal, a panel of this court concluded that the evidence before the district court demonstrated racially polarized voting in the Fourth Judicial Circuit and Duval County as a matter of law, and thus a section 2 violation. Without considering, as required by Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81, the appellees' argument that the relief the appellants sought would undermine the administration of justice in those jurisdictions, the panel remanded the case to the district court for the imposition of a remedy. Nipper v. Smith, 1 F.3d 1171, 1184 (11th Cir.1993). The case is now before us on rehearing en banc. Nipper v. Smith, 17 F.3d 1352 (11th Cir.1994).
To determine whether the district court erred in holding that the appellants failed to establish a case of vote dilution, we must address a question the Supreme Court has not decided and our divided en banc court in Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en banc) (per curiam), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991), has precluded us from answering: whether section 2 plaintiffs, in order to establish that the challenged electoral scheme is diluting their right to vote "on account of [their] race or color," must demonstrate that their diminished opportunity to participate in the political process and to elect representatives of their choice is being caused by the interaction of racial bias in the voting community and the challenged scheme. Without an answer to this question, we cannot determine what evidence is relevant, and the weight it should be accorded, in the totality of the circumstances inquiry of section 2(b). Specifically, we cannot determine the weight to be accorded the state policies underlying the challenged judicial electoral scheme. Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81. Nor can we determine, given those policies and the structure of the courts involved, whether the remedy sought is feasible.
In part I of this opinion, we set forth the facts and procedural history of the case. In part II, we address the question left unanswered in Solomon: whether the existence of racial bias in the voting community necessarily forms the basis of a section 2 violation. We hold that the totality of the circumstances must demonstrate that the voting community is driven by racial bias and that the electoral scheme in question permits that bias to dilute the plaintiff minority's voting strength. In part III, after noting several important differences between judicial and legislative elections, we discuss the factors, including the policies advanced by Florida's method of selecting its trial court judges, involved in the totality of the circumstances analysis in judicial election cases. In parts IV and V, we apply the principles set forth in parts II and III to the case at hand. In part
Voting rights cases are inherently fact-intensive, particularly those section 2 vote dilution claims alleging that, due to the operation of a challenged voting scheme, minority voters are denied an equal opportunity to participate in the political process and to elect representatives of their choice. In such cases, courts must conduct a "searching practical evaluation of the `past and present reality'" of the electoral system's operation. Gingles, 478 U.S. at 45, 106 S.Ct. at 2764 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 208). Accordingly, because a claim of vote dilution must be evaluated with a functional, rather than a formalistic, view of the political process, the Supreme Court has emphasized the importance of "`an intensely local appraisal of the design and impact'" of the electoral structure, practice, or procedure at issue. Id. at 79, 106 S.Ct. at 2781 (quoting Rogers v. Lodge, 458 U.S. 613, 621, 102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982)). Given the necessity of a nuanced understanding of the election system in evaluating a claim of racial vote dilution, we set out the factual background of this case in some detail.
Florida's judiciary employs two tiers of trial courts. The circuit courts have general jurisdiction over civil and criminal cases while the jurisdiction of the county courts is restricted to certain statutorily defined classes of misdemeanor and small claims cases.
Circuit judges serve six-year terms and county judges serve four-year terms, Fla. Const. art. 5, § 10; in all other respects, the
In the instant case, the appellants challenge the electoral system for both trial courts in and around Jacksonville, Florida.
Although the voting age populations of the Fourth Circuit and Duval County are nineteen and twenty-two percent black, respectively, no black candidate for a judgeship on either court has ever been elected to office in a contested election. Every black judge who has served on one of these courts originally reached office by way of a mid-term appointment to a vacant seat. Although forming a powerful initial sketch of the role played by race in the relevant judicial elections, this bare description of circuit and county court election results paints only part of the total picture. To place the elections at issue in this litigation into their proper context, we first detail the historical evolution of the Florida scheme of judicial elections. We then describe the operation of the current
Article 5 of the Florida Constitution, which governs the judicial branch of the state government, has evolved over the last twenty-five years, thereby changing the method of selecting state court judges dramatically.
Article 5 was significantly amended in 1972, although the revised version continued to provide that all judges would be elected "by vote of the qualified electors within the territorial jurisdiction of their respective courts." When a vacancy occurred on any court of the state, however, the governor would make an interim appointment until a permanent replacement for the remainder of the predecessor judge's term could be elected. Although the ultimate decision regarding such an interim appointment was entrusted to the discretion of the governor, the appointee nonetheless had to be selected from a slate of not fewer than three candidates submitted to the governor by a judicial nominating commission.
The system of judicial elections currently in place was created by a further amendment to Article 5 that was adopted by the citizens of Florida at the general election in November of 1976. At that time, Florida adopted the "Missouri Plan"
The 1976 constitutional amendments, however, did not alter the method of selecting circuit and county court judges. Therefore, under the present system, which constitutes a partial "Missouri Plan," judges of the circuit and county courts continue to be elected (in nonpartisan elections) to six- and four-year terms, respectively, by vote of the qualified electors in their jurisdictions. Id. § 10(b). When a mid-term vacancy occurs, the governor appoints a replacement from a slate provided by the appropriate nominating commission, with a single commission handling nominations for vacancies on a circuit court as well as the county courts in that circuit's territory. Id. § 11. As a result, subsequent elections, even at the trial court levels, are affected by the merit selection of interim appointments by the governor upon the recommendation of the judicial nominating commissions; the momentum gained from initial selection by such an independent review panel has a telling effect upon later races in which the incumbent is a candidate. Under the current system of electing trial court judges in Florida, therefore, merit selection plays a part in all but a few: those to fill vacancies on the circuit or county court benches that occur at the end of a term— when, for example, a judge retires and two challengers compete to fill his or her seat.
These changes in Florida's constitution were clearly designed to eliminate the vices of partisan, electoral politics from the process of selecting state court judges. The goal of merit selection of judges, naturally, is to insulate them from popular pressure and to make them more willing to decide an unpopular case fairly and impartially while, at the same time, raising the level of qualifications of judicial officers.
A total of five black candidates have run for seats on either the Fourth Circuit or the Duval County Court in six elections since 1972. We now highlight the circumstances surrounding each of those electoral races while describing the methods by which the judges on those courts have generally reached office during the same period.
The first of the elections relied on by the parties in litigating this case predates the inauguration of Florida's partial merit selection system for trial court judges. In 1972, Leander Shaw became the first black candidate for a judgeship on a court at issue in this litigation. A black lawyer who now serves as a justice of the Florida Supreme Court, Shaw ran for a vacant seat on the Fourth Circuit bench. In the nonpartisan primary, he was opposed by two white candidates, John S. Cox and George L. Proctor. Shaw and Cox advanced to a runoff election, which Cox ultimately won. The Shaw election was one of only four Fourth Circuit electoral races that were contested during the 1972 election cycle; the other fifteen Fourth Circuit judgeships at stake in that year's elections were filled by candidates who ran unopposed.
The parties in this case introduced a wealth of statistical evidence that indicates
Focusing solely on the elections described above, however, paints an incomplete picture of how judges come to the circuit court bench in the Fourth Circuit. According to the Duval County Clerk's Office, a total of fifty-four judges have served on the Fourth Circuit since 1972. Fourteen were holdovers from the pre-reform system (six of whom were appointed by the governor before the merit selection process was instituted and eight of whom were elected). With respect to the remainder, twenty-eight circuit court judges began their judgeships after being appointed through the commission system although only twelve originally were elected in nonpartisan elections.
The increasing reliance on the appointment process for selecting trial court judges is highlighted by an examination of the composition of the current Fourth Circuit Court. Of the twenty-eight judges presently sitting on the court, nineteen were appointed through the commission process, eight initially were elected in nonpartisan elections, and one was appointed by the governor in 1967
A similar pattern emerges from an examination of the county court selection process. From 1973 to 1990, fifty-six judgeships on the Duval County Court were decided by election; only twelve (or approximately twenty-one percent) of those electoral races were contested.
In 1984, two black candidates sought positions on the county court bench. Denise Prescod was defeated in her primary by incumbent, Edward P. Westberry, even though she garnered a similar proportion of the black vote. Judge Westberry was not a lawyer, but he was permitted to serve on the court under a grandfather clause in the 1972 constitutional revision that allowed former justices of the peace to become county court judges. He had, by all accounts, received consistently poor ratings from the local bar but was acknowledged to be a vigorous and extremely effective campaigner. Judge Westberry also had been a judicial officer since 1966, thus claiming the mantle of experience. Prescod, a lawyer, received several important endorsements, including those from Jacksonville's only daily newspaper and the public school teachers' organization. At the time she ran for judicial office, however, Prescod had been admitted to The Florida Bar for only two years. Under the current five-year experience requirements, Prescod would not have been eligible to run for county court judge in 1984. The district court concluded that "neither candidate's qualifications ... were particularly helpful to their respective campaigns, and in all probability incumbency ultimately proved to be the deciding factor." Nipper, 795 F.Supp. at 1542 n. 18. In the remaining county court election involving a black candidate and the only one in which the black candidate did not challenge an incumbent, Dietra Micks won three-quarters of the black vote but failed to make the runoff for her position against a field of three white candidates.
Again, this time in the county court context, looking solely at elections tells only part of the story. Since 1972, a total of thirty judges have served on the Duval County Court. Ten initially were appointed by the governor under the commission nominating process while twelve originally obtained their positions by winning nonpartisan elections. Nine other county court judges were holdovers from the prior (pre-1972) system. As for the twelve county court judges serving at the time of trial, five were originally appointed to the bench, including both of the black judges.
Id. at 1537.
Black candidates fared better in the Fourth Circuit appointment process. Henry Coxe, the chairman of the Fourth Circuit Judicial Nominating Committee from 1987 to 1991, testified at trial concerning minority participation in the appointment process during his tenure on the committee. Based on that testimony, the district court found:
Id. at 1538.
Moreover, the court emphasized, "[i]n judicial elections, incumbency and name recognition are the primary factors behind electoral success." Id. Several witnesses testified to this effect. Indeed, only one of the twenty-eight incumbent circuit judges serving at the time of trial had ever faced electoral opposition subsequent to his or her initial appointment or election; none of the twelve incumbent county judges had ever been opposed in a reelection bid. Judge Adams agreed that incumbency is an important factor in determining the outcome of judicial elections and testified revealingly that "I don't think that a black could win a county-wide judicial election without the benefit of incumbency." By all accounts, the electoral benefits of incumbency accrue equally to black and white judges as none of the black judges on either the Fourth Circuit or Duval County Court benches has ever been opposed for reelection.
The complaint in this case was filed in the United States District Court for the Middle District of Florida on July 5, 1990. The plaintiffs (the appellants here) challenged the method of electing judges for the Fourth Circuit and the Duval County Court under section 2 of the Voting Rights Act as well as under the Fourteenth and Fifteenth Amendments of the Constitution; they alleged that those election systems unlawfully diluted the electoral strength of black voters.
To resolve the issue of whether voting in circuit and county judicial elections was racially polarized, both sides offered expert testimony and statistical evidence. The appellants relied on the testimony of Dr. Allan Lichtman, Professor of History at American University in Washington, D.C. The appellees offered two expert witnesses: Dr. Ronald Weber, Professor of Government at the University of Wisconsin, and Dr. Joan Haworth, former Professor of Economics at Florida State University and currently the president of a private consulting company. Although the ultimate conclusion reached by the two sides was different, the experts agreed on most of the foundational data. Indeed, all of these experts used the same or similar statistical techniques to analyze the election results at issue.
The appellants' expert, Dr. Lichtman, studied the six circuit and county judicial elections in which black candidates have competed against white candidates since 1972.
According to the ecological regression studies, a large majority of black voters strongly supported the black candidate in each of the six circuit and county judicial elections. At the same time, the majority of white voters supported the white candidate, thereby resulting in the defeat of all of the black candidates except for Leander Shaw in the 1972 primary. Shaw, however, went on to lose in the general election. In these six elections, black support for the black candidates ranged from seventy-three to ninety-eight percent, while white support for those same black candidates varied from three to thirty-three percent. Black voter support for the white candidates never exceeded twenty-seven percent while white support for the white candidates ranged from sixty-seven to ninety-seven percent. The district court adopted Dr. Lichtman's statistical estimates concerning these six elections as findings of fact.
The principal expert witness for the defense, Dr. Weber, also reviewed the six circuit and county court campaigns in which black candidates participated. Dr. Weber also examined a set of elections that Dr.
There were a total of nineteen contested elections for circuit judge between 1972 and 1990, of which sixteen involved only white candidates. Dr. Weber's analyses, which the district court "adopt[ed] as findings of fact for statistical purposes only," id. at 1534, revealed that the candidate of choice of black voters won thirteen, or sixty-eight percent, of these contested elections. During this same time period, there were twenty-four contested Duval County Court elections, three of which involved black candidates. Dr. Weber's study revealed that the candidate of choice of black voters won fourteen, or fifty-eight percent, of those elections. A somewhat different picture emerges, however, when "split preference" statistics are examined. Looking at both circuit and county court races, Dr. Lichtman testified that the candidate preferred by black voters differed from the candidate preferred by white voters in nineteen of the thirty-seven contested judicial elections that involved only white candidates. In those "split preference" elections, the black voters' preferred candidate lost eighty-four percent of the time.
At trial, the appellants also introduced non-statistical evidence of Florida's history of discrimination against black citizens, including its legacy of disfranchisement and segregation in most areas of life.
Despite the removal of overt badges of segregation, the district court nonetheless found that "black citizens in Florida still suffer in some ways from the effects of Florida's history of purposeful discrimination,"
The appellants also introduced into evidence a report issued in 1990 by the Florida Supreme Court Racial and Ethnic Bias Study Commission
To that end, the Study Commission recommended that the state legislature study the feasibility of utilizing subdistricts for judicial elections as a means of redressing prior discrimination and increasing minority representation on the bench.
The record in this case therefore reveals a somewhat conflicted picture of the judicial selection process in the Fourth Circuit and Duval County. On the one hand, all of the black candidates for judicial office in those jurisdictions have been defeated by their white opponents. Several of the elections involving black candidates also involved other special circumstances, such as incumbency, that cloud the issue of whether race was the factor most responsible for the outcome. On the other hand, black judges have been appointed to the bench under the merit selection nominating commission system roughly in proportion to the number of minority applicants; once in office, moreover, those black judges have enjoyed the same benefits of incumbency as their white counterparts (including standing unopposed for reelection). The influence of the merit appointment system has been significant: Since its institution
Based upon this evidence, the district court issued an order containing findings of fact and conclusions of law on June 2, 1992. In that order, the court rejected all of the appellants' statutory and constitutional claims and denied relief. Id. at 1548. The court first ruled against the appellants on the critical issue of racially polarized voting, concluding that the statistical evidence, viewed in light of the special circumstances surrounding the judicial elections in question, failed to demonstrate sufficient racial bloc voting such that the white majority usually defeats the minority's preferred candidate.
Id. at 1548. Judgment was entered for the appellees that same day.
In this appeal, the appellants challenge only the district court's denial of their section 2 claim; this court is not asked to review the court's rulings on the constitutional issues. In an opinion issued on September 15, 1993, a panel of this court reversed, and remanded the case to the district court for the imposition "forthwith [of] an appropriate remedy." Nipper v. Smith, 1 F.3d 1171 (11th Cir.1993). Much of the panel's opinion was devoted to evaluating the evidence before the district court on the issue of racially polarized voting. According to the panel opinion, the district court had discounted the appellant's statistical evidence (which the district court had acknowledged would ordinarily be sufficient to establish racially polarized voting) for three reasons: because "(1) the judicial elections involving black candidates were stale; (2) black voters occasionally elected candidates of choice in elections involving only white candidates; and (3) two of the black-white elections involved incumbents." Id. at 1178-79. The panel "reject[ed] as clear error each of the district court's reasons for concluding that appellants failed to show racial polarization" and held that "the evidence in the entire record demonstrates racially polarized voting in the Fourth Judicial Circuit and Duval County." Id. at 1181-82. In the panel's view, the district court also "erred in ruling that appellees discharged their burden of proving that the voting communities were not driven by racial bias"; specifically, the appellees had not shown "an absence of racially biased voting in the Fourth Judicial Circuit and Duval County."
Section 2 of the Voting Rights Act, adopted in 1965 and amended in 1982, outlaws election practices that result in racial
To prevail on a claim of vote dilution under section 2, plaintiffs generally must meet certain threshold requirements that the Supreme Court first identified in Gingles. Specifically, plaintiffs in vote dilution cases must establish as a threshold matter: (1) that the minority group is "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) that the minority group is "politically cohesive"; and (3) that sufficient racial bloc voting exists such that the white majority usually defeats the minority's preferred candidate. Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67; Growe v. Emison, ___ U.S. ___, ___, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (quoting Gingles). The second and third of these threshold preconditions, or factors, relate to the question of whether the challenged electoral scheme is abridging the right of the plaintiff minority group "to vote
In addition to the second and third preconditions, the Gingles Court identified other factors that may, in "the totality of the circumstances," support a claim of racial vote dilution. Derived from the Senate Report accompanying the 1982 amendment to section 2, those factors include:
Gingles, 478 U.S. at 37, 106 S.Ct. at 2759 (quoting S.Rep. No. 417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 177, 206-07). Additional factors that may be probative of vote dilution in some cases are:
Id., at 37, 106 S.Ct. at 2759.
The Gingles Court emphasized that "this list of typical factors is neither comprehensive nor exclusive," id. at 45, 106 S.Ct. at 2763, although evidence of the third precondition, racially polarized voting, is "the linchpin
In 1990, this court divided on the issue of whether voting rights plaintiffs can establish a section 2 violation merely by satisfying the second and third Gingles threshold factors or whether the ultimate inquiry is always under the totality of the circumstances, such that the defendants have the opportunity to rebut the plaintiffs' showing of vote dilution—and thereby avoid liability—by demonstrating a lack of racial bias in the voting community.
Proof of the three core factors emphasized in Gingles is necessary, Gingles, 478 U.S. at 50, 106 S.Ct. at 2766, but not always sufficient, to establish a claim for relief under section 2. Rather, plaintiffs in such cases also must show that, under the totality of the 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 Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 849 (5th Cir.1993) (en banc) ("LULAC"), cert. denied, ___ U.S. ___, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).
In Gingles, the Court stated that, "[a]s both amended § 2 and its legislative history make clear ... the trial court is to consider the totality of the circumstances and to determine, based upon a searching practical evaluation of the past and present reality, whether the political process is equally open to minority voters."
The Supreme Court's recent decision in De Grandy, ___ U.S. ___, 114 S.Ct. 2647, resolved any doubt as to the threshold nature of the Gingles factors. In De Grandy, a case involving a challenge to Florida's legislative reapportionment plan, the Court definitively characterized the "Gingles factors (compactness/numerousness, minority cohesion or bloc voting, and majority bloc voting) as `necessary preconditions,' for establishing vote dilution."
As an initial matter, therefore, proof of the Gingles threshold factors is a necessary precondition to section 2 relief; such a showing, however, will not guarantee relief. A defendant in a vote dilution case may always attempt to rebut the plaintiff's claim by introducing evidence of objective, non-racial factors under the totality of the circumstances standard.
Solomon, 899 F.2d at 1035 (Tjoflat, C.J., specially concurring). Because the ultimate inquiry is under the totality of the circumstances, courts must consider not only evidence of the Gingles threshold factors but also any other evidence offered by the parties that is relevant to the statutory test. It may well be true, as the Third Circuit has suggested, that "it will be only the very unusual case in which the plaintiffs can establish the ... Gingles [threshold] factors but still have failed to establish a violation of § 2 under the totality of the circumstances." Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir.1993). Nevertheless, the Supreme Court cautions:
De Grandy, ___ U.S. at ___, 114 S.Ct. at 2657. It is, therefore, under the totality of the circumstances that courts must decide, in the final analysis, whether a violation of section 2 has been established.
Given that courts evaluating section 2 claims must look beyond the Gingles threshold factors, we must determine what constitutes a violation of the statute's "results" test under the totality of the circumstances. As the Supreme Court has stated, section 2 "make[s] clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent [in the adoption or maintenance of those practices and procedures] protects them from constitutional challenge" under the Fourteenth and Fifteenth Amendments. Chisom v. Roemer, 501 U.S. 380, 383-84, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348 (1991). The concern thus becomes what proof is required to satisfy the results test, as well as what form of intent inquiry is forbidden thereunder.
We hold that section 2 prohibits those voting systems that have the effect of allowing
At first glance, the language of section 2, as amended in 1982, appears somewhat inconsistent and unclear. Subsection (a) forbids the use of electoral structures that "result 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). Subsection (b), on the other hand, appears more generous, explaining that a violation of subsection (a) is established if members of a minority group "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Id. § 1973(b). We believe, however, that the statutory language, when properly understood, circumscribes the universe of prohibited electoral structures and requires more than a mere showing of electoral losses at the polls by minority candidates.
The appellants argue that the language of section 2 requires nothing more than proof of disparate election results—i.e., that, when observed from a numerical/success rate point of view, minorities have less opportunity than their white counterparts to participate in the political process and to elect representatives of their choice. Such proof, they argue, sufficiently demonstrates the required denial or abridgement of a minority group's right to vote.
This reading of section 2, however, ignores crucial portions of the language in both subsection (a) and subsection (b). It is an axiomatic principle of statutory construction that statutes are to be read in their entirety, not in the piecemeal fashion employed by the appellants. Accordingly, we "follow the cardinal rule that a statute is to be read as a whole, see Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989), since the meaning of statutory language, plain or not, depends on context." King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991). When the entire statutory provision is examined, it becomes clear that the well-known first portion of subsection (b) can only be understood in light of subsection (a), which requires that the denial or abridgement of the right to vote be "on account of race or color," and the final clause of subsection (b), which makes clear that the 1982 amendment was not designed to create a right of proportional representation. This comprehensive reading plainly precludes the appellants' interpretation of section 2.
First, the language of section 2 as amended, by prohibiting voting structures that "result in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color," explicitly retains racial bias as the gravamen of a vote dilution claim. 42 U.S.C. § 1973(a) (emphasis added). The existence of some form of racial discrimination therefore remains the cornerstone of section 2 claims; to be actionable, a deprivation of the minority group's right to equal participation in the political process must be on account of a classification, decision, or practice that depends on race or color, not on account of some other racially neutral cause. As the Fifth Circuit has explained, "[t]he scope of the Voting Rights Act is indeed quite broad, but its rigorous protections, as the text of § 2 suggests, extend only to defeats experienced by voters `on account of race or color.'" LULAC, 999 F.2d at 850.
Furthermore, this linguistic conclusion is supported by the fact that any other reading might well render section 2 outside the limits of Congress' legislative powers and therefore unconstitutional. It is important to remember that the Voting Rights Act was adopted
In addition, to accept the appellants' interpretation of section 2—that is, to read the "on account of race" language out of the statute by allowing section 2 plaintiffs to establish a violation merely by proving numerical differences in representation levels— would be to create a de facto right to proportional representation, a result explicitly prohibited by section 2 itself.
An examination of the legislative history surrounding the 1982 amendment to the Voting Rights Act (along with the Supreme Court cases that preceded that legislation) confirms that racial bias in the voting community remains the keystone of section 2 vote dilution claims.
Congress amended section 2 in 1982 to overturn the plurality decision of the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which had announced a standard requiring plaintiffs in vote dilution cases to prove that "the disputed [electoral] plan was `conceived or operated [as] a purposeful devic[e] to further racial ... discrimination,'" id. at 66, 100 S.Ct. at 1499 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971)). The report on the proposed amendment issued by the Senate Judiciary Committee stated that the statutory changes were intended to codify the "results" test of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), which had established the vote dilution standard that applied before Bolden.
The Supreme Court began the development of a standard for racial vote dilution cases in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), which involved a challenge to the multimember, atlarge
The Court first noted that any schemes "conceived or operated as purposeful devices to further racial discrimination" would be struck down under the Equal Protection Clause. Id. at 149, 91 S.Ct. at 1872. It found, however, that the plaintiffs had made no showing that the system used in urban Indianapolis had been explicitly designed or maintained by the relevant public officials to dilute the minority vote. Id. The Court then shifted its attention from the intent of the legislators who had framed the electoral system to conditions in the voting community as a whole. The Court stressed that invidious discrimination could not satisfactorily be proved through evidence of minority candidates' lack of success "absent evidence and findings that [minority voters] had less opportunity than did other Marion County residents to participate in the political process and to elect legislators of their choice." Id. To make this showing, the Court explained that plaintiffs could rely on evidence of various objective factors, such as limitations on minority registration or participation in political parties, that are probative of the presence or absence of racial bias in all levels of the political community and not just of "official" discrimination by legislators.
In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, the Supreme Court retained proof of invidious discrimination as a requirement of a successful vote dilution case brought under the Equal Protection Clause. The Court explained that, in vote dilution cases, it had "entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups." Id., 412 U.S. at 765, 93 S.Ct. at 2339. The plaintiffs in White challenged, under the Fourteenth Amendment, the multimember legislative apportionment plan, which employed multimember districts in certain Texas counties. Accordingly, in framing the constitutional issue before it, the Court explained that it was required to determine whether the use of multimember districts had "been invidiously discriminatory against cognizable racial or ethnic groups in those counties." Id. at 756, 93 S.Ct. at 2335.
The plaintiffs in White apparently never attempted to demonstrate invidious discrimination
Id. at 765-66, 93 S.Ct. at 2339. The Supreme Court approved the district court's use of several objective factors to determine whether the plaintiffs had met this burden of proof. Those factors included the state's history of official racial discrimination; the use of certain voting structures that, although not in themselves improper or invidious, nevertheless enhanced the opportunity for racial discrimination; the influence of all-white political organizations over the process; and the use of overt racial campaign tactics to defeat candidates supported by the black community. See id. at 766-67, 93 S.Ct. at 2339-40. Based upon an evaluation of these factors, the Court affirmed the district court's determination that the minority population had been excluded unconstitutionally from the political process in those Texas counties.
The relevance of the objective factors discussed in White clearly was not limited to the narrow issue of legislators' intent in the adoption or maintenance of a challenged voting scheme. Instead, those factors were indicative of racial bias in the political community as a whole and of interaction between that bias and the challenged electoral structure. The opportunity, or lack of opportunity, to participate in the political process was proved in White with objective factors that indicated that the voting scheme, "overlaid, as it was, on the cultural and economic realities of the [minority] community in Bexar County and its relationship with the rest of the county," closed the political process to the minority group. Id. at 769, 93 S.Ct. at 2341.
Whitcomb and White thus established that proof of invidious discrimination constituted an essential element of voting rights claims under the Equal Protection Clause. Plaintiffs could establish this element: (1) by proving that the legislators or other officials intended to enact or maintain a discriminatory voting scheme; or (2) by demonstrating objective factors indicating that the minority group has less opportunity to participate in the political process and to elect officials of its choice. As Justice White recently explained, Whitcomb and White carry the following theme: "[I]t is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned." Shaw v. Reno, ___ U.S. ___, ___, 113 S.Ct. 2816, 2835, 125 L.Ed.2d 511 (1993) (White, J., dissenting).
It was against this jurisprudential backdrop that a plurality of the Supreme Court in Bolden eliminated the second of these two methods of establishing invidious discrimination available to voting rights plaintiffs under Whitcomb and White—objective factors indicating that the minority group has less opportunity to participate in the political process and to elect officials of its choice. Specifically, the Bolden plurality held that plaintiffs in voting rights cases, whether claiming a violation of the Fourteenth Amendment, Fifteenth Amendment, or section 2 of the Voting Rights Act, "must prove that the disputed plan was `conceived or operated as [a] purposeful devic[e] to further racial ... discrimination.'"
Thus, the legislative history surrounding the 1982 amendment to section 2 supplies significant insight into Congress' intent to overturn the Bolden intent test by codifying White. The Judiciary Committee's report makes clear that amended section 2 restored the pre-Bolden standard by eliminating the absolute requirement that plaintiffs prove a discriminatory intent on the part of the legislators or officials responsible for designing or maintaining the challenged electoral scheme. The 1982 amendment, however, was not designed completely to eliminate consideration of the presence or absence of racial bias from the vote dilution inquiry; instead, it was meant merely to restore the invidious discrimination requirement as articulated by the Whitcomb and White Courts. Thus, under section 2 as amended, a plaintiff once again may demonstrate a violation by proving either: (1) the subjective discriminatory motive of legislators or other relevant officials; or (2) the existence of objective factors demonstrating that the electoral scheme interacts with racial bias in the community and allows that bias to dilute the voting strength of the minority group.
Appearing before this court as amicus curiae on behalf of the United States, the Department of Justice joined the appellants in opposing the foregoing reading of the legislative history and pre-amendment caselaw surrounding section 2. The Department contends that section 2 does not require any proof whatsoever of intentional discrimination or racial animus; to consider a lack of racial bias in the voting community as a means of avoiding a section 2 vote dilution claim under the totality of the circumstances, the Department contends, would be to reintroduce the type of intent-based inquiry that Congress repudiated in the 1982 amendment.
In support of its position, the Department of Justice focuses upon certain language in the Judiciary Committee's report, particularly the comment that "the specific intent of [the 1982] amendment is that the plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose." S.Rep. No. 417, at 28, reprinted in 1982 U.S.C.C.A.N. at 177, 205-06. This expression of legislative intent, the Department argues, forecloses the reading into the statute of any requirement that the presence or absence of racial bias in the voting community be considered in determining whether a section 2 violation has been established.
As noted above, however, the overriding intent of the 1982 amendment to section 2, as expressed repeatedly in the Senate Report, was to reject the position of the plurality in Bolden, "which required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters." Gingles, 478 U.S. at 43-44, 106 S.Ct. at 2762-63. The Department of Justice, however, contends that the goals Congress sought to achieve were broader: to divorce the issue of racial bias from the section 2 inquiry altogether and essentially to limit the relevant considerations to the rate of minority electoral success at the polls. "Given the palpable tension between `the goals Congress sought to achieve' and those it actually expressed, it is hardly surprising that the principles [the appellants] purport to locate in the Senate Report bear only a passing resemblance to those offered by Congress." LULAC, 999 F.2d at 862. The Senate Report leaves no doubt that Congress' view of the vice of the Bolden decision comports with our description above:
S.Rep. No. 417, at 16, reprinted in 1982 U.S.C.C.A.N. at 177, 193. The Committee thus concluded that the Bolden "intent test places an unacceptably difficult burden on plaintiffs" because "[i]t diverts the judicial [inquiry] from the crucial question of whether minorities have equal access to the electoral process to a historical question of individual motives." Id. The Whitcomb and White decisions, in the Committee's view, were correct because "in neither ... did the Supreme Court undertake a factual examination of the intent motivating those who designed the electoral districts at issue." Id. at 22, reprinted in 1982 U.S.C.C.A.N. at 177, 200.
In context, therefore, the phrases from the Senate Report highlighted by the Department of Justice and the appellants refer to this particular form of intent.
S.Rep. No. 417, at 36, reprinted in 1982 U.S.C.C.A.N. at 177, 214; see also Shaw, ___ U.S. at ___, 113 S.Ct. at 2823 ("In 1982, [Congress] amended § 2 of the Voting Rights Act to prohibit legislation that results in the dilution of a minority group's voting strength, regardless of the legislature's intent."). Statements in the Report about avoiding a requirement that plaintiffs prove "discriminatory intent" must be considered in light of the meaning provided to that phrase in the document as a whole, wherein the Committee expressed its intent to overturn the Bolden legislative intent requirement. The many references to "intent," "motivation," and "purpose" throughout the report therefore must be read to refer to the intent of those responsible for erecting or maintaining the challenged scheme.
Not only does the context of the passage from the Senate Report clearly indicate what Congress meant by forbidden inquiry into discriminatory intent, but the Committee's language in other sections of its report also demonstrates a congressional desire to retain a basic inquiry into racial bias in the voting community—an inquiry that is qualitatively different from the question whether a challenged election law or procedure was designed or maintained for a discriminatory purpose. The Senate Report explains:
S.Rep. No. 417, at 34, reprinted in 1982 U.S.C.C.A.N. at 177, 212. The Judiciary Committee thus explicitly recognized the need to prove this interaction between the challenged scheme and racial bias in the community. Discussing the standard developed in Whitcomb, White, and Zimmer, the Committee stated that, "[u]nder the results test, the court[s] distinguished between situations in which racial politics play an excessive role in the electoral process, and communities in which they do not."
Id. The Judiciary Committee therefore conceived of racial bias at work in the electoral process as the key to separating, within the meaning of the Voting Rights Act, those jurisdictions in which minority voters have an equal opportunity to participate from those in which they do not.
Contrary to the assertion of the appellants and the Department of Justice, permitting inquiry into racial bias would not reintroduce into section 2 cases the divisiveness that Congress sought to eliminate. In language heavily relied on by these parties, the Senate Report explains that exploring racial motivations as an element of proof is divisive because "it involves charges of racism on the part of individual officials or entire communities." Id. at 36, reprinted in 1982 U.S.C.C.A.N. at 177, 214. Significantly, however, the Senate Report continues on in the very same paragraph to reproduce testimony suggesting that this concern arises because, under the Bolden intent test, "litigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations." Id. (emphasis added). Moreover, an inquiry into racial bias in the voting community, using objective factors, does not require that any individuals be labelled as racists because section 2 contemplates proof by circumstantial evidence.
The legislative history, therefore, does not reveal an intent on the part of Congress to limit the section 2 inquiry to numbers alone, without any corresponding consideration of racial bias. Such a position directly contravenes the language of section 2, which prohibits voting practices that deny minority voters equal access to the political process on account of race. Indeed, "[w]ithout an inquiry into the circumstances underlying unfavorable election returns, courts lack the tools to discern results that are in any sense `discriminatory,' and any distinction between deprivation and mere losses at the polls becomes untenable." LULAC, 999 F.2d at 850. As we have emphasized, and as the Supreme Court recognized in Gingles, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."
In summary, a plaintiff must prove invidious discrimination in order to establish a violation of section 2 of the Voting Rights Act. Specifically, the plaintiff may prove either: (1) discriminatory intent on the part of legislators or other officials responsible for creating or maintaining the challenged system; or (2) objective factors that, under the totality of the circumstances, show the exclusion of the minority group from meaningful access to the political process due to the interaction of racial bias in the community with the challenged voting scheme. Given the obvious fact that evidence of legislators' bias will generally be difficult to find, we envision that section 2 plaintiffs usually will pursue the second option, the "results test."
The contours of the proper inquiry under the results test emerge from the Supreme Court's opinion in Gingles, which identified three preconditions to obtaining relief under section 2.
The defendant may rebut the plaintiff's evidence by demonstrating the absence of racial bias in the voting community; for example, by showing that the community's voting patterns can best be explained by other, non-racial circumstances.
Our reasoning on this point is substantially similar to the approach taken by the Fifth Circuit in LULAC, which concerned vote dilution challenges to the election of Texas state trial court judges. In that case, the Fifth Circuit reversed the judgment of the district court (which found section 2 violations in several counties) because the disparate electoral results were principally caused by a factor other than race.
LULAC, 999 F.2d at 853-54.
It is a difficult task to articulate a standard for vote dilution cases that does not raise insurmountable hurdles for section 2 plaintiffs while at the same time avoiding the equally forbidden result of guaranteeing a right of proportional representation. We submit, however, that the burden allocation detailed above strikes the appropriate balance, such that plaintiffs to make out a case of vote dilution are not required to prove the negative; rather, proof of the second and third Gingles factors will ordinarily create a sufficient inference that racial bias is at work.
As should be obvious from the foregoing discussion, vote dilution cases are circumstantial evidence cases: Section 2 violations generally will not be established by direct testimonial evidence that resolves the matter at issue. In listing of factors that ordinarily will be most relevant to the section 2 inquiry into the totality of the circumstances, the Senate Judiciary Committee and the Gingles Court, like the White and Zimmer courts before them, attempted to describe the types of evidence that will assist a reviewing court in determining whether the influence of a given racial group has been distorted through the denial of equal access to the political processes. The enumerated objective factors were designed to guide district courts in the receipt of evidence in vote dilution cases by clarifying certain subsidiary inquiries that are relevant to the ultimate issue. The presence or absence of each factor therefore serves as a piece of evidence pointing either towards or away from an ultimate conclusion that an electoral system is or is not operating to dilute a minority group's voting strength on account of race. It is only after making particularized determinations as to these various factors that a district court may weigh its findings in order to ascertain whether, in the aggregate, they point to dilution.
Of course, although Congress and the Court expect that the factors listed will be the most relevant in the majority of cases, courts evaluating vote dilution claims should consider all evidence that is probative of the ultimate issue. As Gingles emphasizes, section 2 mandates a multifactor circumstantial evidence test for vote dilution such that, despite the Senate Report's express enumeration of typical circumstantial evidence factors, "this list of factors is neither comprehensive nor exclusive." Gingles, 478 U.S. at 45, 106 S.Ct. at 2763. Still, in reviewing these factors, we are reminded once more that, although proof of any factor will be helpful to a plaintiff's section 2 claim, it is only the second and third Gingles threshold factors (in addition to the first factor, which relates to the availability of a remedy) that must be proven in every case. In particular, before a challenged procedure will violate section 2, "a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group." Id. at 49, 106 S.Ct. at 2765-66.
This court has previously recognized the need to consider a wide variety of circumstances when evaluating claims of racial vote dilution under section 2. Hall v. Holder, 955 F.2d 1563, 1568 (11th Cir.1992) (quoting Gingles, 478 U.S. at 46, 106 S.Ct. at 2764), rev'd on other grounds, ___ U.S. ___, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994). Therefore, the full totality of the circumstances surrounding a section 2 claim must be considered appropriately when evaluating the Gingles preconditions as well as when deciding the ultimate issue of vote dilution:
Hall, 955 F.2d at 1568 n. 8. Of course, some Senate Report factors are particularly important because they have a direct bearing on the Gingles threshold inquiry while others to the extent that they are relevant, remain
Courts evaluating vote dilution claims, therefore, must consider all relevant evidence; "[n]o single statistic provides courts with a short-cut to determine whether a set of [electoral structures] unlawfully dilutes minority voting strength."
Having articulated the standard that governs vote dilution cases generally, we now turn to the more particular problems involved in evaluating challenges to judicial election schemes.
The principles governing vote dilution claims, including the Gingles threshold factors, "cannot be applied mechanically and without regard to the nature of the claim." De Grandy, ___ U.S. at ___, 114 S.Ct. at 2655 (quoting Voinovich v. Quilter, ___ U.S. ___, ___, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993)). The command that a claim of vote dilution be evaluated with a functional, not a formalistic, view of the political process, see Gingles, 478 U.S. at 48 n. 15, 106 S.Ct. at 2765 n. 15, requires that we consider the
The Supreme Court considered the application of section 2 to judicial elections in the companion cases of Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991), and Houston Lawyers' Ass'n v. Attorney General, 501 U.S. 419, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991).
Chisom involved challenges to the election of two justices of the Louisiana Supreme Court from a multimember district encompassing the New Orleans area; all of the other justices of the court were elected from single-member districts. Houston Lawyers' Ass'n concerned the Texas system for electing trial court judges. Under review in these cases was the Fifth Circuit's en banc decision holding that vote dilution claims in judicial elections are not covered by section 2 because judges are not "representatives" within the meaning of the statute. League of United Latin Am. Citizens, Council No. 4434 v. Clements, 914 F.2d 620, 622-23 (5th Cir. 1990) (en banc).
The Supreme Court took pains to stress that its decisions in these cases were limited to the threshold issue of whether section 2 of the Voting Rights Act would allow claims of vote dilution in state judicial elections. In delineating the scope of section 2's coverage, the Court emphasized that it did "not address any question concerning the elements that must be proved to establish a violation of the Act [in this context] or the remedy that might be appropriate to redress a violation if proved." Chisom, 501 U.S. at 390, 111 S.Ct. at 2361. The Court simply held that "state judicial elections are included within the ambit of § 2 as amended" and are, therefore, to be analyzed under the established section 2 results test. Id. at 404, 111 S.Ct. at 2368. More specifically, the Court explained in Houston Lawyers' Ass'n that the Voting Rights Act covers "the election of ... trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected." 501 U.S. at 426, 111 S.Ct. at 2380. The two cases were then remanded for further proceedings.
Although Chisom and Houston Lawyers' Ass'n do not purport to develop the standard to be applied to the merits in judicial election cases, several passages in the Court's opinions are significant. First, Justice Stevens' majority opinion in Chisom explained that the Court's holding that section 2 should be read to cover judicial elections was based on the fact that judicial offices may be akin to representative positions if the state provides for the partisan election of judges, thereby infusing those offices with the characteristics of other elective positions. As the Court noted:
Chisom, 501 U.S. at 400-01, 111 S.Ct. at 2367 (footnote omitted). In such systems, where judges are thought to be accountable in some sense to the people who elect them, the Voting Rights Act should apply to ensure that the judiciary is equally accountable to all of the people—in particular, to ensure that the vote of a group of minority citizens is not diluted on account of race. Hence, the Court concluded, vote dilution claims are cognizable with respect to judicial elections.
The Court specifically left open the possibility, however, that a state's judiciary could be excluded from the coverage of section 2 if its judges were not intended to have, and in reality did not have, this representative character. The Court explained that:
Id., at 401, 111 S.Ct. at 2367.
Second, the Court indicated in Chisom and Houston Lawyers' Ass'n that the factors relevant in the totality of the circumstances analysis under section 2 in the legislative context might not be relevant for judicial elections. Emphasizing that "[t]he standard that should be applied in litigation under § 2 is not at issue here," the Court nevertheless predicted that "serious problems [may] lie ahead in applying the `totality of circumstances'" factors developed in section 2 cases involving legislative elections to the election of judges. Chisom, 501 U.S. at 403, 111 S.Ct. at 2368. The difficulty mandating further consideration of the application of vote dilution principles to judicial elections arises from the transformation of a standard developed in the context of one type of election— for representatives in multimember legislative bodies—to a qualitatively different type of election—for state court judges. The Court suggested the following as one modification to the totality of the circumstances inquiry: A state's interest in maintaining the challenged electoral system for its judges is a legitimate factor to be considered when determining liability under section 2. See Houston Lawyers' Ass'n, 501 U.S. at 426-27, 111 S.Ct. at 2381 (citing Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir.1973) (en banc), aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976)).
In the instant case, Florida appoints a large percentage of its trial court judges through a merit selection process—but requires judges to compete in nonpartisan retention elections. Thus, the first issue raised in Chisom and Houston Lawyers' Ass'n— whether a non-elected judiciary could escape
The language of the Court's opinion in Gingles suggests that the principles enunciated therein are relevant to claims of vote dilution generally, at least to some degree, and, therefore, their application is not limited to the multimember legislative context. The black voters' in Gingles claimed that the North Carolina legislature's decision to employ multimember, rather than single-member, districts for selecting legislators in the contested North Carolina jurisdictions diluted minority votes by submerging them in a white majority, thereby impairing the plaintiffs' ability to elect representatives of their choice. See Gingles, 478 U.S. at 46, 106 S.Ct. at 2764. Obviously, the nature of the offices sought—representative positions—shaped the Court's analysis. Nevertheless, the threshold test the Court developed and the accompanying discussion of the totality of the circumstances were not dependent on the representative quality of the offices sought. Rather, they depended on an analysis of section 2, the legislative history behind the 1982 amendment, and the "theoretical basis" for vote dilution: namely, that "where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters." Id. at 48, 106 S.Ct. at 2765.
The rationale of the Gingles decision demonstrates that, if a plaintiff's section 2 claim alleges vote dilution, then the plaintiff must meet Gingles' threshold criteria regardless of the nature of the office at stake. As we discuss above, Gingles held that plaintiffs in vote dilution cases brought under section 2 must initially establish geographic compactness, minority cohesiveness, and white bloc voting as preconditions to stating a valid claim. See id. at 50-51, 106 S.Ct. at 2766-67. Those three factors are used to evaluate two critical points: (1) the possibility of a remedy and (2) the existence of racially polarized, legally significant racial bloc voting.
The first Gingles precondition, informed by the second, dictates that the issue of remedy is part of the plaintiff's prima facie case in section 2 vote dilution cases. As the Supreme Court has explained, "[t]he `geographically compact [minority]' and `minority political cohesion' showings [in the Gingles threshold test] are needed to establish that the minority has the potential to elect a representative of its own choice from some single-member district." Growe v. Emison, ___ U.S. ___, ___, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (citing Gingles, 478 U.S. at 50, n. 17, 106 S.Ct., at 2765, n. 17).
Implicit in this first Gingles requirement is a limitation on the ability of a federal court to abolish a particular form of government and to use its imagination to fashion a new system. Nothing in the Voting Rights Act suggests an intent on the part of Congress to permit the federal judiciary to force on the states a new model of government; moreover, from a pragmatic standpoint, federal courts simply lack legal standards for choosing among alternatives. Accordingly, we read the first threshold factor of Gingles to require that there must be a remedy within the confines of the state's judicial model that does not undermine the administration of justice.
In Voinovich v. Quilter,
Voinovich, ___ U.S. at ___, 113 S.Ct. at 1157 (citation omitted). In Gingles, the necessary showing was that the minority group was sufficiently large and geographically compact to constitute a majority in a single-member district; such a showing was logical because the plaintiffs were alleging vote dilution in a system of multimember legislative districts. In judicial cases, however, single-member districts may run counter to the state's judicial model. Thus, the question under the first Gingles threshold factor may not be whether the minority group could constitute a majority in a single-member district, but whether, within the state's judicial model, there exists an alternative election scheme that could serve as an appropriate section 2 remedy. Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81.
In Holder v. Hall, ___ U.S. ___, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994), there was general accord on an otherwise divided Court that plaintiffs in vote dilution cases must demonstrate that the challenged system suppressed minority voting strength in comparison to some alternative, feasible benchmark system: "In a § 2 vote dilution suit, along with determining whether the Gingles preconditions are met and whether the totality of the circumstances supports a finding of liability, a court must find a reasonable alternative practice as a benchmark against which
In short, under Holder, federal courts may not mandate as a section 2 remedy that a state or political subdivision alter the size of its elected bodies. Implicit in this holding, however, is a broader concern. Federal courts may insist that a state or political subdivision operate a governmental structure fairly, thereby allowing all groups equal access to the political process. Courts may require, for example, that black voters are not denied the equal opportunity to elect representatives of their choice for the state legislature. Federal courts may not, however, alter the state's form of government itself when they cannot identify "a principled reason why one [alternative to the model being challenged] should be picked over another as a benchmark for comparison."
In the case at hand, the appellees contend that none of the judicial election schemes the appellants propose as a remedy for the alleged abridgement of their right to vote constitutes a feasible solution. Specifically, the appellees submit that each of the alternatives proposed would undermine the administration of justice in the trial courts at issue. We address this argument infra part V.
As noted, proof of the second and third Gingles preconditions, that the white majority votes sufficiently as a bloc to prevent a cohesive minority group from electing the representatives of its choice, is essential to establishing a section 2 violation. That is, "the `minority political cohesion' and `majority bloc voting' showings are needed to establish that the challenged districting thwarts a distinctive minority vote by submerging it in a larger white voting population." Growe, ___ U.S. at ___, 113 S.Ct. at 1084 (citing Gingles, 478 U.S. at 51, 106 S.Ct. at 2766). In Voinovich, the Court stressed the importance of these preconditions: "Here, as in Gingles, `in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters.'"
Proof of these Gingles threshold factors is central to the ultimate finding of whether minority voters have an equal opportunity to participate in the electoral process and to elect the candidates of their choice. Indeed, "[a]lthough 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." McMillan v. Escambia County, 748 F.2d 1037, 1043 (Former 5th Cir.1984); see also United States v. Marengo County Comm'n, 731 F.2d 1546, 1566 (11th Cir.), cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). Racial bloc voting is, therefore, the essence of a vote dilution claim because, to be actionable, the electoral defeat at issue must come at the hands of a cohesive white majority.
The Court's cases applying the Gingles threshold test reveal two basic principles that we have been discussing: first, that the possibility of an acceptable remedy is essential to a successful section 2 vote dilution claim; and, second, that, as the Gingles opinion itself makes clear, a minority group cannot
The statutory touchstone of a vote dilution claim is whether the members of a protected class "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). The circumstantial evidence factors summarized in Gingles ordinarily support an inference of vote dilution under section 2. These factors were designed as objective indicia that ordinarily would show whether the voting community as a whole is driven by racial bias as well as whether the contested electoral scheme allows that bias to dilute the minority group's voting strength. The Supreme Court consistently has emphasized, however, that these factors were enumerated solely to assist courts in evaluating vote dilution claims; their application is not legally required for any other reason. Thus, some of the factors relevant to a vote dilution claim in the legislative context may not be helpful in the context of judicial elections; conversely, circumstances that have been traditionally excluded from the list of legislative factors might be highly probative to claims of vote dilution in state trial court elections.
Obviously, there are significant differences between the legislative and judicial arenas, chief among them being the varied expectations of responsiveness and bias in favor of constituents. An examination of the circumstantial evidence factors listed by the Gingles Court reveals that several of these factors are either inapplicable, or at most only marginally applicable, in the context of Florida's system of trial court elections.
Legislators are generally viewed as advocates, or "representatives" in the conventional sense of the word, of their constituents. Their loyalties lie, first and foremost, with the people in their districts. In a collegial legislative body, representatives compromise in order to satisfy both the needs of the voters back home and the competing goals of various groups. Accordingly, one of the totality of the circumstances factors listed in the Senate Report and in Gingles concerned "`whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.'" Gingles, 478 U.S. at 37, 106 S.Ct. at 2759 (quoting S.Rep. No. 417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 177, 206-07). As the Gingles Court indicated, "[n]ot only does `[v]oting along racial lines' deprive minority voters of their preferred representative in these circumstances, it also `allows those elected to ignore [minority] interests without fear of political consequences.'" Id. at 48 n. 14, 106 S.Ct. at 2765 n. 14 (quoting Rogers v. Lodge, 458 U.S. 613, 623, 102 S.Ct. 3272, 3279, 73 L.Ed.2d 1012 (1982)). This is because "[p]ublic officials need not address concerns expressed by minorities so long as white bloc voting ensures that they will remain minority concerns." LULAC, 999 F.2d at 858. The statement implicit in Gingles and other legislative voting rights cases is that black voters need an advocate for their race in the legislative process and that, by diluting the voting strength of the black community, an electoral scheme may deny them such a representative.
Trial court judges, on the other hand, are neither elected to be responsive to their constituents nor expected to pursue an agenda
The unique nature of judicial elections has other implications as well. The Gingles Court and the Senate Report, for example, suggest that whether political campaigns have been characterized by overt or subtle racial appeals is a relevant factor for courts to consider in the totality of the circumstances. Given the nonpartisan, low-profile nature of many judicial races, however, this factor seems far less probative in judicial elections than in legislative or executive contests. If there is no campaign in general, the corresponding absence of racial appeals is of minimal value in determining whether the voting strength of minority voters is being diluted.
Because of the low-profile nature of judicial races, the effects of incumbency and success in the appointment process tend to be more probative in judicial elections than in the legislative context; these differences must be considered by courts evaluating section 2 claims such as the one before us. The record in this case indicates that most judicial incumbents run for reelection unopposed, the importance of which was highlighted by numerous witnesses at trial.
In Gingles, the Court touched briefly on the issue of incumbency, recognizing it as one of the "special circumstances" that could explain a deviation from a pattern of racially polarized voting. The Court explained:
Gingles, 478 U.S. at 57, 106 S.Ct. at 2770 (emphasizing in an accompanying footnote that "[t]his list of special circumstances is
Florida's institution of a modified "Missouri Plan," combining merit appointment with contested nonpartisan elections, for the selection of its trial court judges is also highly relevant in the vote dilution inquiry. Two of the legislative-based circumstantial evidence factors touch on this area: Gingles and the Senate Report note that whether members of the minority group have been denied access to a candidate slating process may be considered in the totality of the circumstances, as may "`the extent to which members of the minority group have been elected to public office in the jurisdiction.'" Gingles, 478 U.S. at 36-37, 106 S.Ct. at 2759 (quoting S.Rep. No. 417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 177, 206-07). The operation of the judicial appointment process is the correlative factor in this case. Where a large number of trial court judges first reach the bench through the appointment process and many of them are subsequently reelected unopposed, the effect of appointment is particularly pronounced. If incumbents who originally gained office through a process of merit selection win consistently, a strong inference arises that qualifications are significant to the electorate and that voters generally place confidence in the nominating commission process. A functional and realistic view of the political process for selecting state court judges therefore must include an examination of the appointment process; correspondingly, the access to the bench that it provides to black judicial applicants cannot be ignored.
In sum, the factors to be considered in the totality of the circumstances must be modified to account for the unique features surrounding judicial elections. Although we have given some examples of the modulations that courts must undertake in tailoring their inquiries to the nature of the vote dilution claims before them, we by no means intend this discussion to be exhaustive. Following our painting analogy, the palette of circumstantial
With the foregoing principles in mind, we now examine the district court's disposition of this case. First, we examine the record to determine whether, contrary to the district court's conclusion, the appellants' evidence satisfies Gingles' second and third threshold factors: racially polarized voting that enables the white majority usually to defeat the cohesive minority's candidate of choice. We conclude that the appellants' evidence satisfies these factors. Second, having reached this conclusion, we determine whether the appellees have rebutted this evidence, so that under the totality of the circumstances the appellants failed to prove a case of vote dilution.
In considering the appellants' evidence of racially polarized voting, and the relative weight it should be given, the district court took a rigid, formulaic approach. Instead of undertaking the type of practical, searching inquiry the Supreme Court requires in vote dilution cases, the district court only counted judicial elections in the Fourth Circuit and in Duval County and erroneously discounted several of them as not relevant. The court then ruled that the appellants had failed to meet their Gingles threshold burden of proving racial bloc voting because the percentage of elections lost by black candidates of choice did not demonstrate that black candidates of choice are "usually" defeated by the cohesive white majority. Nipper, 795 F.Supp. at 1548.
In its dispositive opinion, the district court acknowledged that the statistics concerning the six Fourth Circuit and Duval County Court elections since 1972 that involved black candidates "would ordinarily make out a sufficient showing of racial polarization in these six judicial elections." Id. at 1540. Indeed, the figures for those elections show greater polarization by race in voting patterns than the elections analyzed in both Gingles, 478 U.S. at 80-82, 106 S.Ct. at 2781-83, and Solomon v. Liberty County, 899 F.2d 1012, 1021 (11th Cir.1990) (en banc) (Kravitch, J., specially concurring) (wherein all ten judges of the en banc court agreed that racially polarized voting had been established as a matter of law), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991). The district court's effort to whittle down this seemingly conclusive evidence by deeming certain elections not relevant demonstrates the problem with a mechanistic approach to vote dilution cases. When the evidence in this case is examined and weighed, not merely compiled and totaled, the picture that emerges is quite different from the one painted by the broad brush strokes of the district court. Indeed, a more nuanced view of the record reveals the existence of legally significant racially polarized voting and, therefore, vote dilution.
The district court first discounted the probative value of the six circuit and county
The six elections in which black candidates ran for seats on either the Fourth Circuit or the Duval County Court should not have been discounted because there was no evidence that those elections were unrepresentative of conditions prevailing under the current electoral scheme. There have been no significant structural changes in the system used to elect circuit and county court judges in Florida in the past twenty years, and the electorate in the Fourth Circuit and Duval County has not changed in character since the elections in question took place.
In addition to minimizing the significance of all of the circuit and county court elections involving black candidates, the district court improperly discounted the probative value of two of these elections by pointing to what it termed "special circumstances." In two of the six judicial elections in which black candidates participated (the 1978 election for circuit judge involving Harrell Buggs and the 1984 election for county judge involving Denise Prescod), the black candidate challenged an incumbent judge. According to the district court, "[g]iven the undeniable power of incumbency in judicial elections, the probative value of these two elections is significantly diminished on the issue of racial polarization." Nipper, 795 F.Supp. at 1542. The court further explained its decision on this point as follows:
Id. Thus, the district court concluded that the Buggs and Prescod elections were "better
Incumbency, as we have noted, often will be the determining factor in judicial elections and therefore serves as an important factor to be considered in judicial vote dilution cases. The presence or absence of incumbents in particular races may go a long way toward explaining the pattern of election results presented, thereby aiding in the resolution of the fundamental question of whether the voting community is driven by racial bias that is operating through the challenged at-large election system to dilute the voting strength of minority voters. Yet, even if incumbency often is a determining factor in judicial elections, it nonetheless remains only one factor to be considered. The badge of office should not be viewed as a talisman by courts, sufficient in and of itself to deem an election involving an incumbent irrelevant to a plaintiff's vote dilution claim.
Moreover, the record in this case reveals that the candidacies of the white incumbents against whom Buggs and Prescod ran were surrounded by "special circumstances" of their own. Buggs' opponent had been in office only approximately one hundred days while Prescod's opponent was not a lawyer and had received the worst ratings in the bar polls of any judge in the circuit.
Because it believed that the "stale" nature of the six judicial elections involving black candidates reduced their probative value, the district court felt obliged to examine all elections for circuit and county judge from 1972 to 1990, regardless of whether a black candidate participated.
The district court's use of elections involving only white candidates to reject the appellants' allegations of racially polarized voting derived from the comment by the Gingles plurality that "the race of the candidate per se is irrelevant to racial bloc voting analysis." Id. at 1541 (quoting Gingles, 478 U.S. at 67, 106 S.Ct. at 2775). That statement, however, cannot be relied on for the proposition suggested by the district court. As the Fifth Circuit has held, "Gingles is properly interpreted to hold that the race of the candidate is in general of less significance than the race of the voter—but only within the context of an election that offers voters the choice of supporting a viable minority candidate." Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 503 (5th Cir.1987), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989); see also Campos v. City of Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989). Therefore, that court has stressed that "the evidence most probative of racially polarized voting must be drawn from elections including both black and white candidates." Westwego Citizens for Better Gov't v. Westwego, 872 F.2d 1201, 1208 n. 7 (5th Cir.1989); see also LULAC, 999 F.2d at 864 ("This court has consistently
It is logical, as the Fifth Circuit suggests, that the most probative evidence of whether minority voters have an equal opportunity to elect candidates of their choice is derived from elections involving black candidates. Certainly, where only white candidates are competing for office in a particular jurisdiction, it is "virtually unavoidable that certain white candidates would be supported by a large percentage of ... black voters." Citizens for a Better Gretna, 834 F.2d at 502. Such elections, however, may reveal little about the issue to be determined: the capacity for white bloc voting usually to defeat black candidates of choice. Particularly where voting is extremely polarized by race in elections in which black candidates participate, white-on-white elections in which a small majority (or a plurality) of black voters prefer the winning candidate seem comparatively less important.
In holding as we do, however, we do not foreclose the consideration of electoral races involving only white candidates where the record indicates that one of the candidates was strongly preferred by black voters. Under such circumstances, the preference of the black electorate might be proved through the use of anecdotal testimonial evidence, polling data, a review of the appeals made during the campaign, and turnout information,
Johnson v. De Grandy, ___ U.S. ___, ___, 114 S.Ct. 2647, 2661, 129 L.Ed.2d 775 (1994). Where black voters have a genuine candidate of choice in an election involving only white candidates, then the results will be relevant to the question of whether racial bloc voting enables the white majority usually to defeat the minority's preferred candidate. The district court suggested that it had found such elections, but it did so based only on a cursory examination of the circumstances surrounding the elections in question.
In any event, the conclusion that the candidate of choice of black voters won a majority of the white-on-white judicial elections at issue in this case partially misconstrues the evidence in the record. In the great majority of those elections, the candidate of choice
As our previous discussion clearly demonstrates, the record reveals that sufficient racial bloc voting exists in Fourth Circuit and Duval County Court elections, such that the white majority usually defeats the minority's candidate of choice. In short, the evidence the appellants presented creates a strong inference of racial vote dilution. The district court assumed that this might be the case and, therefore, addressed the question of whether the appellees adduced evidence sufficient to rebut, under the totality of the circumstances, that inference of vote dilution. Nipper, 795 F.Supp. at 1543. The court concluded that the appellees had done so; they "offered overwhelming proof of objective factors in rebuttal that demonstrate ... that the social conditions in the Fourth Judicial Circuit and Duval County are such that their interaction[s] with the electoral scheme do not, and will not, result in voting discrimination in the judicial elections under challenge." Id. at 1548. In reaching this conclusion, however, the district court did not explain how, if at all, the appellees' proof rebutted the appellants' evidence of racial bloc voting and the substantial inference of vote dilution that evidence yields. Rather, the court appears to have found for the appellees because justice in the Fourth Circuit and Duval County courts is being administered fairly and impartially by judges who are "responsive to the needs of all citizens." Id. Moreover, in the court's view, "there are legitimate state interests in maintaining the current [electoral] system" which preclude a finding of section 2 liability. Id.
The finding that justice is being administered fairly and impartially begs the question of whether the racial bias existing in the voting community is interacting with the challenged electoral systems to dilute the minority's voting strength. We think this is self-evident. Florida's interest in maintaining the current electoral systems in the Fourth Circuit and Duval County, however, should be taken into account in determining whether, under the totality of the circumstances, the appellees have violated section 2. As the Supreme Court stated in Houston Lawyers' Ass'n v. Attorney General, 501 U.S. 419, 426, 111 S.Ct. 2376, 2381, 115 L.Ed.2d 379 (1991), "the State's interest in maintaining an electoral system ... is a legitimate factor to be considered by courts among the `totality of circumstances' in determining whether a § 2 violation has occurred."
The state's interest in the case at hand, which is the same interest as the one involved in Houston Lawyers' Ass'n, is "in maintaining a link between a trial judge's jurisdiction and the judge's elective base." Nipper, 795 F.Supp. at 1547. Accepting the appellees' argument on the point, the district court found "that [this linkage] serves to foster judicial independence, or at least the appearance of judicial independence. In a system of single-member subdistricts, [one of
The question facing the district court was the precise role the linkage interest, as a piece of circumstantial evidence, plays in the totality of the circumstances analysis. The district court was unable to answer this question because precedent, especially our divided en banc opinion in Solomon, had not established what the totality of the circumstances was supposed to demonstrate. We answer the question today, holding that the totality of the circumstances must indicate whether racial bias exists in the voting community and is interacting with the challenged electoral system to dilute the plaintiff minority's voting power.
The State's linkage interest is of little, if any, relevance in this inquiry. First, the linkage interest neither establishes nor rebuts the existence of racial bias in the voting community; rather, with one exception, the interest constitutes a neutral factor in the totality of the circumstances. Racial concerns did not inform the creation of Florida's judicial circuits or its counties; nor did race play a role in the State's decision to link the judges' territorial jurisdiction and electoral base and to require the judges to reside within their jurisdictions. Similarly, racial concerns did not prompt the several judicial reforms that have taken place over the past twenty-four years. In the main, those reforms were adopted to remove the judiciary from the evils of party politics, to enhance the independence of the judiciary, and to improve the overall quality of the bench.
The one exception to the linkage interest's neutrality as a relevant circumstance lies in the State's decision to employ the commission feature of the Missouri plan in filling mid-term vacancies on its courts. As our discussion, supra part I, indicates, the use of this feature has enhanced minority access to the bench and, coupled with the incumbency benefit that flows from merit selection, has ensured the retention in office of minority appointees. An inference can be drawn from this that the State, in partially adopting the Missouri plan for its trial courts, is attempting to negate the influence of racial bias in the selection of some trial court judges. This may or may not, however, enhance the ability of minorities to elect candidates of their choice. In sum, we conclude that the state's linkage interest does not rebut the appellants' evidence that racial bloc voting exists in the Fourth Circuit and Duval County in such a way that the white majority usually defeats the minority's candidate of choice.
Although the State's interest in linking the jurisdictional and electoral bases of its circuit and county court judges has minimal relevance in the totality of the circumstances analysis in this case, that interest plays a major role in our consideration of the remedies the appellants propose as alternatives to the challenged electoral schemes. Holder v. Hall, ___ U.S. ___, ___, 114 S.Ct. 2581, 2587-88, 129 L.Ed.2d 687 (1994); Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81. Accordingly, we address each of these alternative remedies, considering each against the backdrop of the policies that linkage advances. We conclude that none of the alternatives constitutes an objectively reasonable and workable solution to
One remedial option is the creation of electoral subdistricts within the territorial jurisdiction of the trial courts at issue. A model of single-member districts would call for one judge to be elected from each of twenty-eight circuit court and twelve county court subdistricts. An alternative would be to carve two or more broader multimember subdistricts out of the existing Fourth Circuit and Duval County territories. This alternative
The maintenance of the linkage between a trial court judge's territorial jurisdiction and electoral base serves to preserve judicial accountability. Florida's current model of trial court elections embodies a state judgment that the voters in a judge's jurisdiction should have the right to hold that judge accountable for his or her performance in office. Subdistricting, however, would disenfranchise every voter residing beyond a judge's subdistrict, thus rendering the judge accountable only to the voters in his or her subdistrict. Moreover, even in the judge's subdistrict, a group of voters would effectively be disenfranchised: In the white subdistrict, the voting power of blacks would be diluted to a degree greater than the dilution presently existing; in the black subdistrict, the voting power of whites would be diluted. The Fifth Circuit discussed some of the negative effects this arrangement would have on minority voters:
LULAC, 999 F.2d at 873 (citation omitted). Although the effect of such a loss of minority influence has been debated in the legislative context, see, e.g., De Grandy, ___ U.S. at ___, 114 S.Ct. at 2654-55; Solomon, 899 F.2d at 1038 (Hill, J., concurring), the concern is more pronounced here because trial court judges act alone in exercising their power. In the case of collegial bodies, all citizens continue to elect at least one person involved in the decisionmaking process and are, therefore, guaranteed a voice in most decisions. In the case of trial court judges,
The record in this case is devoid of evidence that justice in those courts is currently being administered in a racially discriminatory manner. On the contrary, the witnesses at trial unanimously asserted that the judges were dispensing fair and impartial justice, without regard to the race of the litigants.
Against this backdrop, the announced purpose of a court-imposed subdistricting scheme would be to assist a predominantly black section of the circuit or county in electing black judges. We believe that the effect of having black judges accountable primarily to the black section of their district, due to the creation of subdistricts, and white judges answerable primarily to the white section of their district, would be detrimental to this pattern of fair and impartial justice. Thus, in a districting scheme, the race of the constituents would become the deciding factor in determining over which judges the constituents would exercise their oversight function.
In linking the size of judicial electoral districts to the court's territorial jurisdiction, Florida also has attempted to balance the desire for accountability of trial court judges to their electorate with the need to preserve judicial independence. Breaking this link by creating smaller electoral districts along racial lines would override the State's judgment concerning the appropriate size of trial court electorates and would foster the idea that judges should be responsive to constituents, thereby reversing Florida's trend towards deemphasizing "representation" by judges and consequently undermining the ideal of an independent-minded judiciary.
As we have observed, the legislature and electorate of the State of Florida have been moving steadily away from partisan judicial elections and towards the merit selection and resulting independence of the judiciary. Notwithstanding our consideration, as Gingles commands, that Florida has a history of racial discrimination and a judiciary elected in raw partisan politics, Florida has emphatically abandoned that past. Yet any districting remedy imposed by the district court would, by its very nature, alter this course and encourage greater "responsiveness" of judges to the special interests of the people who elected them. Such a remedy would reintroduce the very vices from which the state and its citizens have sought to insulate the judiciary.
Abandoning linkage through the creation of subdistricts would impair the operation of the partial "Missouri Plan" that Florida employs in selecting trial court judges. Because Florida requires its trial court judges to reside in the jurisdiction from which they are elected, subdistricting would limit the breadth of applications to the circuit and county nominating commissions. Even if the requirement that judges live in their subdistrict were eliminated, given the racial composition of the subdistricts, black attorneys would be reluctant to stand for office in white subdistricts and white attorneys would be reluctant to stand for office in black subdistricts. This would frustrate the nominating commission's efforts to discharge its statutory duty to present to the governor for circuit court appointment nominees who "reflect ... the racial and ethnic diversity of the population within the circuit." 1994 Fla.Sess.Law Serv. ch. 94-137, § 1.
The implementation of subdistricts would increase the potential for "home cooking" by creating a smaller electorate and thereby placing added pressure on elected judges to favor constituents—especially as election time approaches. As the district court observed, "[i]n a system of single-member subdistricts, there would be some pressure on elected judges to respond to specific electoral constituents when one of their constituents is involved in litigation against a nonresident of that subdistrict. The at-large system eliminates this pressure by linking the judge's jurisdiction and elective base." Nipper, 795 F.Supp. at 1547.
The appellants suggest that the favoritism effects subdistricting might engender could
A related remedy would be to carve out one or more new circuits from the existing Fourth Circuit territory, thereby creating new circuit courts instead of electoral subdistricts for the existing court.
Creating new circuit courts would preserve the State's linkage interest. Indeed, if linkage is the primary policy underlying the current Florida system of judicial elections, then creating subdistricts would do more to undermine the scheme than establishing additional (albeit smaller) circuit courts.
Although creating new majority-minority circuits would preserve the linkage interest, such an approach would require a modification of Florida's venue rules;
A third remedial option suggested by the appellants would be to adopt a cumulative voting system for the election of trial court judges.
Requiring judges to run against one another every time they seek reelection would also impinge on the operation of Florida's merit selection process. Merit selection insulates judges from popular pressure and facilitates impartial decisionmaking in controversial cases. Merit selection helps a qualified individual who lacks political clout or voter recognition both to obtain and to retain a judgeship; cumulative voting would have the inverse effect.
Finally, a cumulative voting system, like a subdistricting system, would encourage racial bloc voting. That, in turn, would necessarily fuel the notion that judges were influenced by race when administering justice.
The only benefit black voters could legitimately expect from a court order implementing one of the appellants' proposed remedies, which would enable them to elect black judges of their choice, is the perception that the challenged circuit and county judicial systems are colorblind. According to testimony presented to the district court, these systems are colorblind; the witnesses testified uniformly that the circuit and county court judges are deciding cases fairly, regardless of the race of the litigants.
By altering the current electoral schemes for the express purpose of electing more black judges, the federal court in fashioning the alteration, and the state courts in implementing it, would be proclaiming that race matters in the administration of justice. As Justice Brennan has observed, "even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness...." United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 173, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (1977) (Brennan, J., concurring in part). Like other race-conscious remedies, this "tend[s] to entrench the very practices and stereotypes the Equal Protection Clause is set against." De Grandy, ___ U.S. at ___, 114 S.Ct. at 2666 (Kennedy, J., concurring in part). The case at hand, therefore, presents a remedial paradox: A remedy designed to foster a perception of fairness in the administration of justice would likely create, by the public policy statement it would make, perceptions that undermine that very ideal.
In sum, because none of the remedies the appellants propose could be implemented without undermining the administration of justice in the courts of the Fourth Circuit
In summary, we hold as follows: To establish a case of liability under section 2's results test, a plaintiff must demonstrate, under the totality of the circumstances, that the voting community is driven by racial bias and that the challenged electoral scheme allows that bias to dilute the voting power of the minority group the plaintiff represents. In cases challenging the election of judges, the totality of the circumstances analysis, which was developed in the legislative election context, must be altered to take into account the characteristics unique to judicial elections. Among the factors a court must consider in conducting that analysis is the state policy advanced by the judicial election scheme at issue. Finally, a section 2 plaintiff will not be granted relief if the remedy sought would have the effect of undermining the court's ability to administer justice.
The judgment of the district court is, therefore, AFFIRMED.
IT IS SO ORDERED.
EDMONDSON, Circuit Judge, concurring in the opinion in part and concurring in the result, in which COX, BIRCH and DUBINA, Circuit Judges, join:
For me, the point that determines the outcome of the case is this one: The State of Florida's legitimate interest in maintaining linkage between jurisdiction and the electoral bases of its trial judges is, as a matter of law, great and outweighs (either at the vote-dilution-finding stage or at the remedy stage) whatever minority vote dilution that may possibly have been shown here. See Houston Lawyers' Assoc. v. Attorney General, 501 U.S. 419, 424-26, 111 S.Ct. 2376, 2380, 115 L.Ed.2d 379 (1991); League of United Latin Amer. Citizens v. Clements, 999 F.2d 831, 868 (5th Cir.1993); see also, Holder v. Hall, ___ U.S. ___, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994). So, I concur in today's result.
I also concur in Parts III(A) and III(B)(1) of Chief Judge Tjoflat's opinion. I understand Part V of the Chief Judge's opinion to conclude that each of the remedies discussed is precluded given the State's interest in and right to formulate its own judicial system. I concur in this conclusion, which I see as the holding of this case. But I cannot agree (and I doubt the Chief Judge means to say) that a remedy must undermine the administration of justice in the state courts before that remedy would fall beyond the power of the federal courts to impose under the Voting Rights Act.
I do not say that the rest of the Chief Judge's opinion is wrong. But, I believe the conclusions reached in the other parts are unessential to deciding this case; and to decide nothing about what seem to be unnecessary issues seems best.
HATCHETT, Circuit Judge, dissenting, in which KRAVITCH, Circuit Judge, joins:
In this case, although the majority finds that a vote dilution occurred, the majority affirms the district court's decision to deny the appellants relief under section 2 of the Voting Rights Act (Act). In reaching this conclusion, two judges (Chief Judge Tjoflat and Judge Anderson) would have us hold, for the first time in American law, that in addition to the three threshold factors described in Thornburg v. Gingles, and the Senate factors, a plaintiff class must also show the existence of racial bias motivating the voting community in order to prevail on a section 2 claim. The majority holds that Florida's interest in linking the jurisdictional and electoral bases of its state circuit and county judges precludes the fashioning of any remedy the appellants suggest or a court could devise.
To reach these results, the two judges employ a strained review of the legislative
I. The Inquiry Into the Racial Bias of the Voting Community
The history, development, and application of section 2 of the Voting Rights Act illuminates the frailty of the two judges' position that a successful voting rights challenge, brought pursuant to amended section 2 of the Voting Rights Act, requires a finding of racial bias in the voting community. A careful review of this history demonstrates that Congress and the Supreme Court have never required as a threshold issue an inquiry into the private motivations of individual voters to substantiate a vote dilution claim. Instead, the Supreme Court's voting rights jurisprudence reveals that the proper focus of a voting rights challenge has always been whether the state, intentionally or otherwise, maintained an electoral system that disadvantages minorities on account of race. A review of this jurisprudence confirms that voting rights plaintiffs can challenge any state-enforced structural impediments that operate to disparately impact the ability of minority voters to elect their preferred candidates on account of race. The following brief historical review demonstrates that the racial motivations of private individual voters has never been the fundamental basis for a voting rights challenge.
A. Development of Amended Section 2
The Constitutional Conveners designed the Fourteenth and Fifteenth Amendments to establish and protect the rights of the newly emancipated slaves. The Fourteenth Amendment endowed former slaves with citizenship and equal protection under the laws; the Fifteenth Amendment specifically prohibited the states from abridging or denying the rights of the former slaves to vote on account of race. U.S. Const.Amend. XIV, § 1; U.S. Const.Amend. XV, § 1. The framers authorized Congress to enforce the Fifteenth Amendment through appropriate legislation. U.S. Const. amend. XV, § 2.
However, the Supreme Court has never applied these two amendments to regulate the conduct of private individuals in elections for state officers. For example, Congress enacted several enforcement acts to more clearly define the contours of the new protections for black people afforded in the Fourteenth and Fifteenth Amendments. The enforcement acts, among other things, aimed to prohibit private individuals, such as the Ku
The Voting Rights Act of 1965 represents the culmination of Congress's noble efforts to create an effective tool for rooting out and redressing discriminatory voting practices. See 42 U.S.C. §§ 1971 et seq. Amended section 2 of the Act prohibits a state from imposing any voting qualification or practice which results in the denial or abridgement of the right of any citizen to vote on account of race. Thus, Congress tailored this section to fit within the constitutional confines of its ability to regulate state action rather than the activity of private individuals.
For this reason, in early voting rights litigation, the federal courts applied the same standards to vote dilution claims under the Fifteenth Amendment and section 2 of the Voting Rights Act. See Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) ("the language of § 2 no more than elaborates upon that of the Fifteenth Amendment, and ... it was intended to have an effect no different from that of the Fifteenth Amendment itself"); see also Frank R. Parker, The Results Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va.L.Rev. 715 (1983) (the courts may have considered independent discussion of the section 2 standard to be superfluous). Successful Voting Rights Act challenges under the Fifteenth Amendment and the Act targeted only the intentions or consequences of state-enacted voting rights regimes. The racial bias inquiry was only relevant to demonstrate the intent of the legislature in utilizing a particular electoral system that disadvantaged racial minorities.
Hence, a fundamental flaw exists in the two judges' assertion that an inquiry into the
The various Supreme Court cases construing the Voting Rights Act in tandem with the Fourteenth and Fifteenth Amendment confirm that the Act never relied upon a finding of racial bias in the voting community as the significant factor in a vote dilution claim, but instead focused on the biases and effects of state action.
B. Section 2 Litigation Prior to City of Mobile v. Bolden
A trilogy of cases arose after enactment of the Voting Rights Act defining the scope and limitations of the protections against vote dilution under the Constitution and the Voting Rights Act.
In Whitcomb, the Supreme Court concluded that the plaintiffs failed to prove a vote dilution claim because they presented no evidence that the state's districts "were conceived, or operated as purposeful devices to further racial or economic discrimination" or that minorities had "less opportunity ... to participate in the political process and elect legislators of their choice." Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872. Thus, the Supreme Court recognized that plaintiffs could utilize evidence of subjective intent of state officials or objective evidence of disparate impact to establish a claim.
Similarly, in White, the Supreme Court upheld a claim that "multimember districts [were] being used invidiously to cancel out or minimize the voting strength of racial groups" based solely on objective evidence. 412 U.S. at 765-67, 93 S.Ct. at 2339-40. The evidence consisted of various state-sponsored practices and the operation of a powerful political organization that utilized "racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community." 412 U.S. at 767, 93 S.Ct. at 2340.
Finally, in Zimmer, the Fifth Circuit held that a voting system is unconstitutional under the Fourteenth Amendment if certain objective factors demonstrate that the system results in the dilution of minority votes. The Fifth Circuit further clarified that plaintiffs can prevail on a vote dilution claim if they can prove either racial bias in the legislature or that an apportionment scheme operates to "minimize or cancel out the voting strength" of minorities. Zimmer, 485 F.2d at 1304. To prove the latter claim, the majority listed much of the same indicia concerning state action that the Supreme Court announced in White and Whitcomb.
The objective factors described in each of these cases concerned the activities of state and quasi-state officials in employing various devices to obstruct the ability of racial minorities
Hence, in the pre-Bolden era, voting rights plaintiffs could demonstrate a vote dilution claim by either establishing that (1) the state purposely designed an electoral scheme to inhibit the ability of minorities to elect candidates, or (2) the state maintained an electoral scheme that resulted in the inability of minorities to elect candidates on account of their race. The pre-Bolden era did not proscribe individual voter racial discrimination; instead, it proscribed the machinations of state officials that intentionally or effectively presented a racial bar to the ability of minorities to elect their favored candidates. The utilization of voting districts that allow racial bloc voting to defeat minority candidates is one such racial bar. See Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
C. The Voting Rights Act After Bolden
After the Supreme Court eliminated the results test for proving a vote dilution claim under the Fourteenth or Fifteenth Amendment, see Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), Congress amended the Act explicitly stating that it wished to reinstate the test as previously articulated in Whitcomb, White, and Zimmer. Consequently, for the first time, the Voting Rights Act left the shadows of the Fourteenth and Fifteenth Amendments and became a potent and independent basis for protecting the rights of minorities against vote dilution. The text and legislative history of the Act clearly reject the two judges' attempt to impose a racial bias inquiry into section 2 vote dilution claims.
1. Textual Analysis
The plain text of amended section 2 rails against the two judges' contention that Congress intended to retain a racial bias inquiry rather than rely merely on a results test in vote dilution claims. The text provides as follows:
42 U.S.C. § 1973 (emphasis added).
The unambiguous language of section 2 expressly provides that voting standards, practices, or procedures may not be used in a manner that "results" in the denial of the right to vote on account of race, and a violation occurs if, based on the totality of the circumstances, minorities "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." In no manner does this language reference a need to inquire into the racial biases of individual voters. Instead, the plain language clearly envisions plaintiffs proving vote dilution solely through a showing of the discriminatory "results" or effects of a state's electoral system or practice. See Gingles, 478 U.S. at 35, 106 S.Ct. at 2758; Chisom v. Roemer, 501 U.S. 380, 384, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348, 356 (1991) (Section 2 makes "clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge.").
The two judges would have us envision language that does not exist and ignore the language right before our eyes; for example, the assertion that a racial bias inquiry is implicit because the "on account of race" language must be reconciled with the language prohibiting proportional representation. Yet, the results test inquiry as described in the pre-Bolden era and adopted by Congress has never guaranteed a right to proportional representation; instead, it guarantees protection from vote dilution due to racial bloc voting. White, 412 U.S. at 765-66, 93 S.Ct. at 2339-40 ("it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its potential"); Zimmer, 485 F.2d at 1305 ("it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives."). As outlined in Gingles, a vote dilution claim only ensues when under the totality of the circumstances, racial bloc voting impedes the ability of a geographically compact, and politically cohesive racial minority to elect its preferred candidate.
Similarly, the assertion that the "on account of race" language must refer to racial bias in the voting community is untenable. The phrase merely emphasizes that "race" rather than some other factor must be the identifiable impediment to the minority group's electoral success. In fact, the Senate Report accompanying the amendment expressly stated that the phrase "on account of race" does not imply any reference to purposeful racial discrimination. S.Rep. No. 417 at 27-28 n. 109, reprinted in 1982 U.S.C.C.A.N. at 177, 205-06.
Contrary to the two judges' assertion, the terms "racial bias," "intent," and "invidious discrimination" do not appear anywhere explicitly or implicitly in the text of section 2. Had Congress meant to require an inquiry into the racial bias of the voting community, it certainly would have recorded that intent more fully in the language of the amended statute.
The two judges' intimation that our interpretation might render section 2 unconstitutional is also groundless. As discussed earlier, the Supreme Court never applied the Fifteenth Amendment and its implementing legislation to activities of private individuals. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876) (holding that Fourteenth Amendment only applies to state action); Virginia v. Rives, 100 U.S. 339, 25 L.Ed. 676 (1880) ("The provisions of the Fourteenth
2. Legislative History of Amended Section 2
The two judges' assertions also mistakenly rely upon the legislative history in an effort to locate some evidence of a congressional intent to require a racial bias inquiry. This interpretation is wrong as demonstrated by one passage in the Senate Report:
S.Rep. No. 417 at 27-28 n. 109, reprinted in 1982 U.S.C.C.A.N. at 177, 205-06 (first emphasis in original, second emphasis added).
Congress could not have expressed more explicitly and emphatically its goal of dispensing with any requirement of proving discriminatory intent, instead focusing the inquiry on whether the state's electoral process allows objective factors as described in Thornburg v. Gingles to deny racial minority voters an equal opportunity to participate in the electoral process and elect candidates of their choice. 42 U.S.C. § 1973(b); see also S.Rep. No. 417 at 27, 28, reprinted in 1982 U.S.C.C.A.N. at 177, 204, 205.
In other sections of the Senate Report, Congress clearly described its objective to restore the legal landscape that governed voting discrimination cases prior to Bolden. S.Rep. No. 417 at 2, reprinted in 1982 U.S.C.C.A.N. at 177, 178-79. Congress believed that under the pre-Bolden case law, voting rights plaintiffs could rely solely upon the discriminatory effect of an electoral regime:
S.Rep. No. 417 at 16, 28, reprinted in 1982 U.S.C.C.A.N. at 177, 193, 205 (emphasis added).
In repudiating Bolden and returning to the White/Zimmer standard, Congress explicitly approved of the effect-based approach of the results test:
S.Rep. No. 417 at 28, reprinted in 1982 U.S.C.C.A.N. at 177, 205 (emphasis added). Thus, the two judges can find no solace in Congress's attempt to reinstate the pre-Bolden effect/impact-based test which required no inquiry into the racial motivations of the voting community.
Moreover, the passages the two judges rely upon to support their interpretation actually undermine their argument. For example, they invoke the following passage in the Senate Report to support their position:
S.Rep. No. 417 at 34, reprinted in 1982 U.S.C.C.A.N. at 177, 212. This quoted passage proves nothing other than one of the Gingles prerequisites that the Supreme Court and all other federal courts have recognized: that is, voting rights plaintiffs must demonstrate racial bloc voting. It says nothing implying that the courts should look into the intent of the voting community when applying the results test. In fact, the Senate Report states: "The results test makes no assumptions one way or the other about the role of racial political considerations in a particular community."
In precise language, the Senate Report further explains that exploring racial motivations as an element of proof is exceedingly divisive because
The two judges profess that the preceding quote precludes our interpretation. Obviously, this quote means nothing other than what it says: Congress did not intend to require plaintiffs to inquire into the racist motives of either individual officials or entire communities —including the voters therein. S.Rep. No. 417 at 36, reprinted in 1982 U.S.C.C.A.N. at 177, 214.
The legislative history conclusively shows that, despite the two judges' emphasis on racial bias in the voting community, Congress intended to shift the entire focus of vote dilution claims to the discriminatory effect of an electoral regime upon minority voters. Senator Dole, who offered the substitute amendment which the Senate ultimately adopted, confirms this interpretation:
S.Rep. No. 417 at 194-95, reprinted in 1982 U.S.C.C.A.N. at 177, 365 (emphasis added). In concluding that Congress intended to include a racial bias element in amending Section 2, the two judges simply desecrate the legislative history surrounding that amendment.
In sum, the two judges' interpretation of the legislative history falls of its own weight. First, they state that the 1982 amendment was meant to restore the invidious discrimination requirement which was purportedly articulated in Whitcomb and White. In addition to the fact that no such intention appears in the legislative records or reports, as explained earlier, the Whitcomb and White courts only addressed the objective actions of state and quasi-state officials in hampering the ability of minorities to vote. Second, such an interpretation of the legislative history would render it incongruous. How could an inquiry into the racial bias of the voting community be any less divisive than an inquiry into the racial bias of state officials? Fortunately, the en banc court has rejected, or at the least, not approved of a racial bias test, in spite of the urgings of two judges.
D. A More Viable Interpretation of Section 2
Congress clearly intended to dispense with any racial bias or intent inquiry in vote dilution claims without guaranteeing a right to proportional representation. Thus, under well-settled Supreme Court precedent, when voting rights plaintiffs establish the three Gingles threshold factors—geographical compactness, political cohesiveness, and racial bloc voting—defendants can still demonstrate that under the totality of the circumstances, the plaintiffs have failed to present a valid vote dilution claim. See Johnson v. DeGrandy, ___ U.S. ___, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (totality of the circumstances could not support a vote dilution claim where Hispanics could be expected to elect their candidates in proportion to their percentage of the area's population).
In fact, the idea of a racial bias requirement is merely a resurrection in different garb of a claim expressly rejected by the Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 61-74, 106 S.Ct. 2752, 2772-79, 92 L.Ed.2d 25 (1986). In Gingles, North Carolina argued "that the term `racially polarized voting' must, as a matter of law, refer to voting patterns for which the principal cause is race." Gingles, 478 U.S. at 61, 106 S.Ct. at 2772 (emphasis in original). In rejecting this claim, the Supreme Court drives the final stake through the heart of the two judges' contention "that racial bias in the voting community remains the keystone of section 2 vote dilution claims." The Supreme Court rejected North Carolina's claim on the following basis:
Gingles, 478 U.S. at 71, 106 S.Ct. at 2777 (emphasis added).
In amending section 2, Congress aligned voting rights law with the time-tested impact analysis utilized in other areas of statute-based civil rights law protecting minority members from disparate treatment on account of their race. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971) (Title VII proscribes overt discrimination and practices which are discriminatory in operation); Teamsters v. United States, 431 U.S. 324, 335 n. 14, 97 S.Ct. 1843, 1854 n. 14, 52 L.Ed.2d 396 (1977) (discriminatory motive not required under adverse impact theory where focus is on consequences of selection criteria or challenged practice); Ellston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.1993) (regulations promulgated pursuant to Title VI validly proscribe actions having disparate impact on protected groups even if those actions are not intentionally discriminatory); Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 360 (7th Cir. 1992) ("outcome approach" of Section 2 means an opportunity to show what would be called "disparate impact" in employment cases), cert. denied, ___ U.S. ___, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993); Potomac Group Home v. Montgomery County, Md., 823 F.Supp. 1285, 1295 (D.Md.1993) (plaintiffs may demonstrate violation of Fair Housing Amendments Act by showing discriminatory intent or discriminatory impact). We must not so casually disrupt the wisdom of this approach.
Rather than upsetting the Supreme Court's and Congress's well-established approach to evaluating vote dilution claims by requiring plaintiffs to prove invidious discrimination in the electorate as a whole as part of their prima facie case, we must continue to adhere to the time-tested totality of circumstances test prescribed in Gingles. If this court ever adopts the rejected racial bias/intent test, the court will ensure that a politically cohesive and geographically compact racial minority will rarely be permitted to elect representatives of their choice when serious racially polarized voting exists. A majority of the court wisely rejects the racial bias approach in voting cases.
II. Rejection of Plaintiffs' Remedies
I also dissent because this court has prematurely determined the issue of whether the appellants or the district court can devise a viable remedy for their vote dilution claim. See Holder v. Hall, ___ U.S. ___, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (a court must find a reasonable alternative practice against which to measure the existing voting practice); Houston Lawyers' Association v. Atty. Gen., 501 U.S. 419, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991). After finding a violation of the Act, instead of properly remanding this case to the district court to make findings of fact and conclusions of law regarding viable remedies, the majority opinion relies almost entirely upon speculation and conjecture to support its holding that Florida's interest in conserving its current at-large voting system precludes any possible remedy the appellants or the district court can devise.
It is the district court, with the help of the parties, that must provide a remedy for a vote dilution violation. The en banc majority does not discuss district court findings, or conclusions, or witness testimony, or documents, or studies, or affidavits, or the testimony of expert witnesses to support its holding that no remedy can be afforded.
A. Inadequacy of the Trial Record and Necessity for Remand
It has long been the policy of this court that "[w]here the trial court fails to make findings ... on a material issue, and an appeal is taken, the appellate court will normally
Prior to this appeal the district court found that Florida "has a legitimate interest in maintaining the current at-large system of electing judges in the Fourth Judicial Circuit and Duval County." Nipper v. Chiles, 795 F.Supp. 1525, 1548 (M.D.Fla.1992). The district court, however, expressly declined to consider whether Florida's interest in maintaining its at-large voting system precluded the acceptability of any of the appellants' proposed remedies because it found no voting rights violation. See Nipper, 795 F.Supp. at 1548 n. 28 ("The Court has no occasion to consider this contention, since proposed remedies are relevant only if a violation is proved."). In light of the majority's holding that a vote dilution has occurred, which I join, this court should remand the case to the district court to supplement the record with factual findings concerning the relative weight of Florida's interest in maintaining its current electoral system and the viability of any remedies. Only then can the en banc court properly exercise appellate review.
B. Florida's Interest in At-Large Elections Does not Preclude All of the Plaintiffs' Possible Remedies
The majority opinion's analysis demonstrates that it could benefit from further factfinding. The opinion holds, with no evidentiary corroboration, that Florida's interest in maintaining its current at-large electoral systems for judges precludes the acceptability of any of the appellants' proposed remedies including the use of subdistricts, the creation of new circuits, the adoption of cumulative voting, or any combination of these devises. Instead of evidence, the majority apparently relies upon disembodied conjecture to support its ultimate determination. A careful review of these alternative remedies, however, reveals the true complexity of the issues involved and the need for further hearings before the district court.
1. The Use of Subdistricting in Judicial Elections
The majority affords great weight to Florida's interest in linking the electoral and jurisdictional bases of its judges in Duval County and the Fourth Circuit. The majority believes the implementation of subdistricts to redress the plaintiffs' claim for vote dilution would unduly erode the independence of judges and balkanize the judicial landscape into black and white subdistricts governed by racially biased judges. Such a system, the majority concludes, will ultimately destroy the impartiality of the judges which exists today. To demonstrate that Florida wishes to insulate state judges from political pressures, the majority highlights Florida's progression towards a merit selection, merit retention or gubernatorial appointment system.
Moreover, the majority's aversion to subdistricting plans based on a concern for racial impartiality ignores the fact that the districts from which judges currently are elected have racial characteristics. For instance, the judicial districts in Duval County and the Fourth Judicial Districts now encompass electorates with an overwhelming white majority. If one reasons that the creation of judicial districts comprised predominantly of one racial group destroys racial independence, then judicial independence cannot exist anywhere. Moreover, if elections from districts with overwhelming white majorities produce impartial judges, then no defensible reason exists to believe that black majority districts will produce biased judges.
Similarly, the majority's emphasis on linkage between trial judges and their electoral base is not necessarily warranted. Contrary to the majority's conjecture, Florida has not clearly evidenced that linking these two conditions is a primary component of state policy. The appellees did not introduce any evidence to support such a conclusion. In fact, current assignment rules generally allow judges elected in one district to sit on cases in a different district when necessary or convenient. See Fla.Stat. § 26.57 (assignment of county judges to sit as circuit judges). Even when sitting within their own districts, judges must frequently decide cases involving litigants from different districts. Presumably, judges can adjudicate fairly in these situations. It is rather offensive to conclude that the impartiality of judges will somehow become tainted when elected from subdistricts that permit minority voters to elect their preferred candidates.
The majority also assumes that the creation of smaller subdistricts will subject judges to greater political pressure. Yet, the size of Florida judicial election districts already varies widely within the state of Florida. The subdistricts that would result from the appellants' proposed remedies would exceed the size of most of the circuits in other parts of Florida. Florida has no legitimate justification for precluding the use of judicial subdistricts in this case when existing circuits are smaller or about the same size as the proposed subdistrict. Moreover, Florida's maintenance of a judicial election system implies that Florida does not exhibit a strong state policy for insulating judges from political pressures. See Chisom, 501 U.S. at 401-02, 111 S.Ct. at 2367, 115 L.Ed.2d at 367 ("The fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for elected office.")
2. Cumulative Voting and Limited Voting
The majority also glosses over two innovative techniques commentators favor for redressing vote dilution claims. Cumulative voting, a technique, borrowed from the corporate governance law, allows each voter a determinate number of votes that the voter may cast for preferred candidates. Thus, in a cumulative voting regime in which the election involved six candidates, the voter could cast all six votes for the same candidate. This capacity significantly enhances the ability of minorities to elect candidates free of the impediment of recurring bloc voting.
The majority opinion rejects cumulative voting because requiring judges to run against each other "would have a detrimental effect on the collegiality of the judges in administrative matters." In a similar vein, the majority relies in part on the speculation that cumulative voting will dampen lawyer interest in seeking judicial offices. Certainly these trivial concerns are not the core state policy that the Supreme Court envisioned to defeat a vote dilution claim.
The second alternative, which the majority opinion fails to discuss, is limited voting: a device in which voters cast fewer votes than the total number of candidates. This particular electoral technique has garnered strong support among scholars interested in Voting Rights Act litigation. For an analysis of the benefits of limited voting, see Samuel Issacharoff, The Texas Judiciary and the Voting Rights Act: Background and Options (1989); see also Edward Still, Alternatives to Single Member Districts, in Minority Vote Dilution, 249, 253-55 (Chandler Davidson ed. 1984); L. Weaver, Semi-Proportional and Proportional Representation Systems in the United States, In Choosing an Electoral System: Issues and Alternatives, 191 (Arend Lijphart & Bernard Grofman ed. 1984); Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.C.R.C.L.L.Rev. 173, 223-36 (1989); Daniel R. Ortiz, Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 Yale L.J. 144 (1982); Note, Affirmative Action and Electoral Reform, 90 Yale L.J. 1811 (1981). Limited voting has several advantages. First, limited voting can be employed in at-large elections, thereby avoiding the disadvantages of single-member districts. Similarly, the problem of state judges being too closely linked to their political constituencies will be strongly diminished. Second, limited voting abolishes the discriminatory effect of multi-member at-large elections by removing the possibility of minority vote dilution.
Although the United States has seldom employed limited voting, other countries have employed the electoral device with inspiring success. For example, England and Japan have used the device to elect certain members of their representative houses. In each case, minority groups were able to elect party members in numbers more proportionate to their percentage of the electorate as a whole than possible under an electoral system based entirely upon single-member districts. See generally Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 Minn.L.Rev. 101, 114 & n. 77 (1991). In Alabama, limited voting successfully remedied a minority vote dilution claim and increased the number of minority elected officials. Id. at 114 n. 78.
3. State's Interest in Increasing Minority Representation on the Bench
Moreover, Florida has expressed a strong state interest in diversifying the complexion of its judicial officers. See Florida Supreme Court Racial and Ethnic Bias Study Commission Report, Volumes I and II (December 11, 1990) ("Commission Report"). For example the Commission Report has recognized that the court "must reflect the complexion, demeanor,
In summary, the opinion is flawed in two fundamental respects. First, two judges introduce a new racial bias hurdle which Congress plainly rejected in its recent amendment to the Voting Rights Act. In erecting this hurdle, the judges misconstrue Supreme Court precedent, the plain text, and the legislative history of the Act. Fortunately, the en banc court does not embrace this approach.
Second, the majority inappropriately embarks on an analysis and rejection of any and all remedies the appellants and the district court could conceive to redress their claim for vote dilution. To dispose of appellants' proposed remedies, the majority essentially concludes that the "only benefit black voters could legitimately expect from a court order implementing one of the appellants' proposed remedies ... is the perception that the challenged circuit and county judicial systems are colorblind." (Emphasis added.) The majority concludes that the disruption of the current system will create the impression that each racial group has its own particular judges to hear its claims. These criticisms misconstrue the thrust of voting rights litigation. Judicial election lawsuits do not center on the concern that sitting judges are prejudiced one way and should be replaced by judges prejudiced in a different direction. See Brenda Wright, Symposium: The Bench and the Ballot: Applying the Protections of the Voting Rights Act to Judicial Elections, 19 Fla.St.U.L.Rev. 669, 686-89 (1992). As one commentator succinctly stated, the true concern is that "elected judges wield important governmental powers, and minorities wish to have some meaningful opportunity to participate in choosing who will exercise those powers. Fairness in voting procedures is crucial even though most citizens, whether black or white, will never appear as litigants before the judges for whom they vote." Id.
Thus, balancing the state's relative concerns in maintaining its current judicial structure and diversifying its judiciary should be left to the versatile fact-finding process of the district court.
Accordingly, I respectfully dissent from the majority's determination that the state's interest in maintaining a linkage between the jurisdictional and electoral bases of the judiciary precludes the consideration of possible remedies by the district court, thus obviating the necessity of remand to the district court for fact-finding. I also dissent from the position urged by two judges that a plaintiff class must show racial bias in the community in order to prevail in a section 2 Voting Rights Act claim.
21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5102, at 462 (1977). Accordingly, we have attempted to develop a more complete picture of judicial elections in the Fourth Circuit and Duval County than that presented to the district court.
Year # of Seats Up # Contested % Contested1974 4 1 25.0% 1976 2 1 50.0% 1978 17 2 11.8% 1980 5 1 20.0% 1982 3 1 33.3% 1984 16 2 12.5% 1986 7 0 0.0% 1988 9 1 11.1% 1990 15 1 6.7% Total:78 10 12.8%
Year # of Seats Up # Contested % Contested1974 5 2 40.0% 1976 7 1 14.3% 1978 6 2 33.3% 1980 6 0 0.0% 1982 6 0 0.0% 1984 8 4 50.0% 1986 6 1 16.7% 1988 7 1 14.3% 1990 5 1 20.0% Total:56 12 21.4%
Nipper, 795 F.Supp. at 1533. The experts in this case used substantially the same techniques that were approved (and relied on) by the Supreme Court in Gingles.
% of Black % of Black % of White % of White Voters Voting Voters Voting Voters Voting Voters Voting for Black for White for Black for White Cand. Cand.(s) Cand. Cand.(s)
Fourth Circuit1972 Primary Leander Shaw Circuit 92 8 24 76 Duval Co. 93 7 23 77 1972 Runoff Leander Shaw Circuit 97 3 33 67 Duval Co. 98 2 32 68 1978 Primary Harrell Buggs Circuit 82 18 3 97 Duval Co. 81 19 4 96 Duval Co. Court1978 Primary Group 6 A. Washington 88 12 13 87 1984 Primary Group 4 Denise Prescod 73 27 31 69 1984 Primary Group 8 Dietra Micks 76 24 4 96
As we discuss in further detail, infra part III. B.1., the first Gingles threshold factor is properly read, in light of Holder, ___ U.S. ___, 114 S.Ct. 2581, to stand for the broader proposition that a district court must determine whether it can identify an alternative electoral scheme against which to measure the existing voting practice. Outside of the multimember legislative district context, this benchmark scheme may or may not involve the use of single-member districts, depending on the facts of the case. In this case, we do not limit the remedy aspect of the vote dilution inquiry to whether single-member districts can be drawn, see infra part V.
Gingles, 478 U.S. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., concurring). Justice White wrote separately, suggesting that he would find it significant if partisan affiliation—and therefore not race—were shown to be the consideration driving the election results. Id. at 83, 106 S.Ct. at 2783 (White, J., concurring). Justice Brennan, the author of the majority opinion, took the contrary position: "Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting and defendants may not rebut that case with evidence of causation or intent." Id. at 74, 106 S.Ct. at 2778. Only three other justices joined the portion of Justice Brennan's opinion discussing this issue, however.
Similarly, in Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1724, 16 L.Ed.2d 828 (1966), the Court held that legislation enacted pursuant to section 5 of the Fourteenth Amendment would be upheld as an appropriate exercise of congressional power if the statute "`is plainly adapted to [the] end'" of enforcing the Equal Protection Clause and "is not prohibited by but is consistent with `the letter and spirit of the constitution,'" regardless of whether the practices outlawed by Congress violated the Equal Protection Clause in and of themselves.
S.Rep. No. 417, at 27, reprinted in 1982 U.S.C.C.A.N. at 177, 205 (footnote omitted). The Committee continued: "If the plaintiff proceeds under the `results test', then the court would assess the impact of the challenged structure or practice on the basis of objective factors, rather than making a determination about the motivations which lay behind its adoption or maintenance." Id. The Committee, therefore, drew a distinction between the forbidden inquiry into the motives of the designers of an electoral scheme and the use of objective factors to evaluate whether minorities are denied equal access to the political process on account of race—an evaluation that focuses on racial bias in the voting community.
The Court in Growe explicitly extended the Gingles threshold requirements to challenges to single-member district schemes. See id. at ___, 113 S.Ct. at 1084-85. The Court explained that, in general, multimember districting plans pose a greater threat to minority participation in the electoral process than do single-member districts. Accordingly, "[i]t would be peculiar to conclude that a vote-dilution challenge to the (more dangerous) multimember district requires a higher threshold showing than a vote-fragmentation challenge to a single-member district." Id. at ___, 113 S.Ct. at 1084.
Gingles, 478 U.S. at 88, 106 S.Ct. at 2786. Thus, "where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under § 2." Holder, ___ U.S. at ___, 114 S.Ct. at 2586 (Kennedy, J.).
The other two Justices who comprised the majority, Justices Thomas and Scalia, agreed that the size of a governing body cannot be attacked under section 2. They focused not on the practical concerns of locating a benchmark but instead on a novel reading of the statutory text; they would have held that the size of a governing body is not a "standard, practice, or procedure" within the terms of the Voting Rights Act. Id. at ___, 114 S.Ct. at 2591. Justices Thomas and Scalia would overrule all of the Court's precedents holding that vote dilution claims are cognizable under section 2.
Justice Kennedy's opinion in Holder relies, however, on a construction of the statute, not on constitutional federalism principles. The questions of whether the remedy the appellants ultimately seek (the possibilities of which we discuss infra part V) would be beyond the reach of the Voting Rights Act or foreclosed by the Constitution are not before us. Accordingly, we intimate no view concerning these sensitive issues.
The principle enunciated in Stallings will hold true in many cases. Where, however, the appointment process is not a seldom-used aberration but the principal method by which public officials first reach office (as may be the case for trial court judges in Florida), minority success in the appointment process becomes a far more important and relevant factor to be considered. Moreover, the appointments at issue in Stallings were for exogenous county offices, not the county commissioner positions that were the subject of that litigation.
Nor did the panel, in remanding the case for the imposition of a remedy, undertake this inquiry. Nipper, 1 F.3d at 1184. The panel apparently assumed sub silentio that a remedy of subdistricts could be fashioned without adversely effecting the administration of justice in the Fourth Circuit and in Duval County.
Nipper, 795 F.Supp. at 1539. The proposed subdistrict could be drawn in the northwest quadrant of Duval County with sufficient black population to elect six of the twenty-eight circuit court judges and three of the twelve county court judges. Nipper, 1 F.3d at 1175.
For a discussion of how cumulative voting might be employed to encourage minority representation in public office, see Karlan, supra note 4, at 231-36; see also Daniel D. Polsby & Richard D. Popper, Ugly: An Inquiry Into the Problem of Racial Gerrymandering Under the Voting Rights Act, 92 Mich.L.Rev. 652, 672 (1993).
In future cases, the state will be required to present evidence regarding the relative strength of its interest in at-large elections for trial judges now that the en banc court has found that the at-large voting scheme in the presence of bloc voting constitutes vote dilution.