White v. State of Alabama , 74 F.3d 1058 ( 1996 )


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  •                                                      [PUBLISH]
    
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                        FOR THE ELEVENTH CIRCUIT
    
    
                               No. 94-7024
    
    
                         D. C. No. CV-94-T-094-N
    
    HOOVER WHITE, for himself and on behalf of all other persons
    similarly situated; JOHN A. DILLARD, for himself and on behalf of
    all other persons similarly situated; GLENN MOODY, for himself
    and on behalf of all other persons similarly situated,
    
                                                   Plaintiffs-Appellees,
    RALPH E. BRADFORD, SR.,
    
                                      Intervenor-Plaintiff-Appellant,
    
    CHRISTOPHER BOEHM; JOHN CURRY; JACK WILLIAMS; MARK G. MONTIEL,
    
                                                 Intervenors-Plaintiffs,
    
                                  versus
    
    THE STATE OF ALABAMA; JAMES BENNETT, in his official capacity as
    Secretary of State for the State of Alabama,
    
                                                   Defendants-Appellees.
    
    
                               No. 94-7081
    
    
                         D. C. No. CV-94-T-94-N
    
    HOOVER WHITE, for himself and on behalf of all other persons
    similarly situated; JOHN A. DILLARD, for himself and on behalf of
    all other persons similarly situated; GLENN MOODY, for himself
    and on behalf of all other persons similarly situated,
    
                                                   Plaintiffs-Appellees,
    
    RALPH E. BRADFORD, SR., CHRISTOPHER BOEHM,
    
                                                  Intervenor-Plaintiffs,
    
    JOHNNY CURRY; JACK WILLIAMS; MARK G. MONTIEL,
    
                                   Intervenors-Plaintiffs-Appellants,
                             versus
    
    THE STATE OF ALABAMA, JAMES BENNETT, in his official capacity as
    Secretary of State for the State of Alabama,
    
                                                 Defendants-Appellees.
    
    
    
    
              Appeals from the United States District Court
                    for the Middle District of Alabama
    
                            (January 24, 1996)
    
    
    Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and GOODWIN*,
    Senior Circuit Judge.
    
    
    
    *Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the
    Ninth Circuit, sitting by designation.
    
    
    TJOFLAT, Chief Judge:
    
    
         The members of Alabama's appellate courts--the Supreme
    
    Court, the Court of Criminal Appeals, and the Court of Civil
    
    Appeals1--are elected to office in at-large partisan elections.2
    
         1
            The judicial power of Alabama is vested exclusively in a
    "unified judicial system" consisting of, at the appellate level,
    a Supreme Court, a Court of Criminal Appeals, and a Court of
    Civil Appeals. Ala. Const. amend. 328, § 6.01(a). The Supreme
    Court consists of "one chief justice and such number of associate
    justices as may be prescribed by law." Id. § 6.02(a). The
    courts of appeals consist of "such number of judges as may be
    provided by law." Id. §§ 6.03(a), (b).
         2
            The Alabama Constitution provides that the justices of
    the Supreme Court and the judges of the courts of appeals are
    "elected by vote of the electors within the territorial
    jurisdiction of their respective courts." Ala. Const. amend.
    328, § 6.13 (1973). Such elections are part of Alabama's
    partisan general election scheme for state office holders. See
    generally Ala. Code tit. 17 (1995).
    
                                      2
    In this case, Hoover White, a black voter and representative of a
    
    class of all black voters in Alabama,3 contends that this at-
    
    large election scheme dilutes the voting strength of black voters
    
    in Alabama in violation of section 2 of the Voting Rights Act
    
    because it affords black voters, on account of their race, "less
    
    opportunity [than white voters] . . . to participate in the
    
    political process and to elect representatives of their choice."
    
    Voting Rights Act of 1965, Pub. L. No. 89-110, § 2(b), 79 Stat.
    
    437, 42 U.S.C. § 1973(b) (1988).       White also contends that the
    
    challenged at-large election scheme denies Alabama's black voters
    
    the equal protection of the laws guaranteed them by the
    
    Fourteenth Amendment.   He seeks injunctive relief sufficient to
    
    remedy these deficiencies in the method of electing Alabama's
    
    appellate judges.   Finally, White claims that the legislature's
    
    alteration of the structure and composition of Alabama's
    
    appellate courts, in 1969 and on two subsequent occasions, has
    
    not been precleared under section 5 of the Voting Rights Act.         He
    
    seeks an order declaring the legislature's actions inoperative.
    
    See 42 U.S.C. § 1973c (1988).4
    
         3
            Joining White as plaintiffs and class representatives are
    John Dillard and Glenn Moody, both of whom are black voters. We
    refer to these plaintiffs collectively as "White."
         4
            Section 5 of the Voting Rights Act requires certain
    states, including Alabama, to obtain either judicial preclearance
    from the United States District Court for the District of
    Columbia or administrative preclearance from the Attorney General
    of the United States before altering "any voting qualification or
    prerequisite to voting, or standard, practice, or procedure with
    respect to voting . . . ." 42 U.S.C. § 1973c. Section 5 applies
    to judicial elections, Clark v. Roemer, 
    500 U.S. 646
    , 
    111 S. Ct. 2096
    , 
    114 L. Ed. 2d 691
     (1991), and thus may apply to the
    
                                       3
         Shortly after White commenced this action, his attorneys and
    
    the Attorney General of Alabama entered into settlement
    
    negotiations; these negotiations led to an agreement which the
    
    United States Department of Justice precleared.    The district
    
    court, over the objection of the appellants, who had intervened
    
    in the case, approved the agreement and made it part of the final
    
    judgment now before us.    White v. State of Alabama, 
    867 F. Supp. 1519
     (M.D. Ala. 1994).    That judgment, if implemented, will
    
    restructure the Supreme Court of Alabama and the two courts of
    
    appeals by increasing the size of those courts and creating a
    
    selection process that will ensure that the black voters of
    
    
    
    
    legislative enactments involved in this case.
    
         If "voting changes subject to § 5 have not been precleared,
    § 5 plaintiffs[, such as White in this case,] are entitled to an
    injunction prohibiting the State from implementing the changes."
    Id. at 652-53; 111 S.Ct. at 2101. Such relief may not be granted
    by a United States district judge; rather, it must be granted by
    a three-judge court convened by the chief judge of the judicial
    circuit in which the case is filed and consisting of one United
    States circuit judge and two United States district judges (one
    of whom is usually the judge before whom the case was filed).
    See 42 U.S.C. § 1973c; 28 U.S.C. § 2284 (1994).
    
         As indicated in part I.B., infra, after White filed his
    complaint, a three-judge court was convened to hear his § 5
    claims. That court lacks jurisdiction, however, to entertain
    White's claims under § 2 and the Equal Protection Clause of the
    Fourteenth Amendment. Accordingly, those claims remain before
    the district court--specifically, before the judge to whom the
    case was assigned at the time of filing, the Honorable Myron H.
    Thompson.
    
         In this appeal, we are called upon to review a final
    judgment entered by Judge Thompson. References herein to the
    district court are, therefore, to Judge Thompson and not to the
    three-judge court, unless otherwise indicated.
    
                                      4
    Alabama have at least two "representatives of their choice" on
    
    each court.
    
         The appellants, a black voter and a judge on the Court of
    
    Criminal Appeals, contend that in fashioning such relief the
    
    district court exceeded its authority under section 2 of the
    
    Voting Rights Act,5 and that the court's entry of the judgment
    
    therefore constituted an abuse of discretion.   We agree, and
    
    therefore vacate the district court's judgment and remand the
    
    case for further proceedings.
    
         This opinion is organized as follows. Part I describes the
    
    history and current structure of Alabama's appellate courts and
    
    traces the history of this litigation.   Part II demonstrates how
    
    the relief provided by the court's judgment is foreclosed by
    
    section 2 of the Voting Rights Act.   Part III addresses a
    
    district court's power to increase the size of an elected
    
    governmental body--here, Alabama's three appellate courts--in an
    
    effort to remedy racial vote dilution.   Finally, part IV
    
    addresses, and rejects, the argument advanced by White and the
    
    United States, as amicus curiae, that, notwithstanding the
    
    limitations discussed in parts II and III, the remedy provided by
    
    the district court's judgment is permissible because the judgment
    
    is a "consent decree."
    
    
         5
            Appellants also contend, among other things, that the
    relief granted by the district court is precluded by the Equal
    Protection Clause of the Fourteenth Amendment because it
    establishes a de facto, if not a de jure, racial quota system.
    Because we dispose of the case on statutory grounds, we do not
    address the constitutional argument.
    
                                    5
    6
                                     I.
    
                                     A.
    
         Prior to 1969, Alabama's appellate courts consisted of a
    
    seven-justice Supreme Court and a three-judge intermediate
    
    appellate court called the Court of Appeals.    The members of
    
    these courts were chosen for staggered six-year terms in at-large
    
    partisan elections.    Vacancies occurring prior to the end of a
    
    term were filled by appointment by the Governor;6 these
    
    appointees then stood for election in Alabama's next general
    
    election held after the appointee had served one year in office.
    
         In 1969, the Alabama legislature added two seats to the
    
    Supreme Court.    Act No. 602, § 1, 1969 Ala. Acts 1087 (codified
    
    at Ala. Code § 12-2-1 (1995)).   The legislature also divided the
    
    Court of Appeals into the Court of Criminal Appeals and the Court
    
    of Civil Appeals, each with three judges.   Act No. 987, § 1, 1969
    
    Ala. Acts 1744.    In 1971, the legislature added two judges to the
    
    Court of Criminal Appeals, Act No. 75, § 1, 1971 Ala. Acts 4283,
    
    and in 1993, it added two seats to the Court of Civil Appeals,
    
    Act No. 93-346, §§ 1, 4, 1993 Ala. Acts 536, 537.   See Ala. Code
    
    § 12-3-1 (1995).    The elections for appellate judges have
    
    continued to be partisan and held at large, and the Governor has
    
    continued to fill mid-term vacancies.
    
    
    
         6
            The Alabama Constitution provides that, "The office of a
    judge shall be vacant if he dies, resigns, retires, or is
    removed. Vacancies in any judicial office shall be filled by
    appointment by the governor . . . ." Ala. Const. amend. 328, §
    6.14 (1973).
    
                                      7
                                     B.
    
         On January 27, 1994, Hoover White, on behalf of himself and
    
    the black voters of Alabama, brought this suit against the State
    
    of Alabama and its Secretary of State.    He alleged that the State
    
    had not obtained preclearance, as required by section 5 of the
    
    Voting Rights Act, any of the legislative enactments described
    
    above.7    White asked for a declaration that these enactments were
    
    void ab initio and for appropriate injunctive relief.    A three-
    
    judge court was promptly convened to consider White's section 5
    
    claims.8   See 42 U.S.C. § 1973c; 28 U.S.C. § 2284.
    
         White also alleged that the at-large system for electing the
    
    members of Alabama's appellate courts denies Alabama's black
    
    voters, on account of their race, the same opportunity as that
    
    given to white voters to participate in the election of those
    
    members.    He asked the court (1) to declare the at-large election
    
    scheme illegal under both section 2 of the Voting Rights Act and
    
    the Equal Protection Clause of the Fourteenth Amendment, and (2)
    
    to fashion an appropriate remedy to cure these violations.
    
    
         7
            White's original complaint challenged only the split of
    the Court of Appeals and the subsequent addition, in 1971 and
    1993, of two judges to each of the new courts. On February 16,
    1994, White amended his complaint to include a challenge to Act
    No. 602, 1969 Ala. Acts 1087, which enlarged the Supreme Court.
    We refer to White's amended complaint as the "complaint."
         8
            On April 15, 1994, as indicated in the text part I.D.,
    infra, White's attorneys and the Alabama Attorney General advised
    the three-judge court that they had reached the settlement
    agreement described in the text and asked that court to stay
    further proceedings on White's § 5 claim so that the district
    court could consider the agreement. The three-judge court
    granted their request the same day.
    
                                      8
         Within days after White filed his complaint, and before the
    
    defendants were required to file their answer, White's attorneys
    
    and the Attorney General of Alabama, Jimmy Evans, agreed to
    
    settle the case.9   As they were negotiating the terms of the
    
    settlement, Ralph Bradford, a black voter, moved the court on
    
    February 2, 1994, for leave to intervene in the case as a
    
    plaintiff representing the black voters of Alabama.     In the
    
    complaint attached to his motion, Bradford alleged that the at-
    
    large system for electing the state's appellate judges dilutes
    
    the votes of black electors and, pursuant to Thornburg v.
    
    Gingles, 
    478 U.S. 30
    , 
    106 S. Ct. 2752
    , 
    92 L. Ed. 2d 25
     (1986), he
    
    sought an injunction requiring that the judges instead be elected
    
    from single-member districts.   Six days later, Judge Mark
    
    Montiel, a member of the Court of Criminal Appeals,10    sought to
    
    intervene as a defendant representing a class of all Republican
    
    voters, and a subclass of white Republicans.11   Montiel alleged
    
    that the at-large system dilutes the votes of Republican electors
    
    
         9
            Jimmy Evans was the Attorney General of Alabama
    throughout the proceedings in the district court. He was
    defeated in the November 1994 general election by the current
    Attorney General, Jeff Sessions. In this opinion, the term
    "Attorney General" denotes the Attorney General of Alabama.
         10
            Judge Montiel did not seek reelection to the Court of
    Criminal Appeals in the November 1994 general election;
    accordingly, his term of office on that court expired effective
    in January 1995.
         11
            Also named with Montiel as class representatives were
    Johnny Curry, a Republican member of the Alabama House of
    Representatives, and Jack Williams, executive director of the
    Alabama Republican Caucus. We refer to these class
    representatives collectively as "Montiel."
    
                                     9
    in violation of the Equal Protection Clause; like Bradford, he
    
    sought the creation of single-member districts.12
         On February 15, 1994, with these motions pending and without
    
    the benefit of the State's response to the complaint, the
    
    district court held a status conference.   The conference was held
    
    off the record, and the docket sheet does not indicate who
    
    attended the conference or what transpired.   What the record does
    
    reveal is that the next day the district court entered an order
    
    inviting the United States Department of Justice to participate
    
    in the proceedings as amicus curiae.
    
         On February 22, the State and the Secretary of State
    
    answered White's complaint.   The answer denied that the
    
    legislative acts dividing the Court of Appeals and increasing the
    
    size of the three appellate courts had not been precleared under
    
    section 5.13   The answer also denied that the at-large election
    
    scheme violates section 2 and that the scheme denies Alabama's
    
    black voters the equal protection of the laws.
    
         Two days later, the Attorney General and White, proceeding
    
    pursuant to Federal Rule of Civil Procedure 68, filed an "offer
    
    and notice of acceptance of judgment" which stated that the case
    
    
         12
            On March 4, 1994, the district court denied Montiel's
    motion to intervene as a defendant. On May 17, 1994, as
    indicated part I.D., infra, the court granted Montiel leave to
    intervene as a class plaintiff on behalf of Republican voters.
         13
            With respect to Act No. 93-346, which increased the size
    of the Court of Civil Appeals, the Attorney General asserted in
    the State's answer that the statute had been submitted to the
    Department of Justice for preclearance but that the Department
    had not responded to the submission.
    
                                     10
    had settled.14   In this pleading, they asked the court to give
    
    "preliminary approval . . . to the [proposed] judgment, and . . .
    
    to set a time, date, and method of notice to class members for
    
    the purpose of facilitating a Rule 23(e) fairness hearing."
    
    Finally, they requested that, "[f]ollowing the Rule 23 fairness
    
    hearing[,] . . . the court give final approval to the judgment,
    
    and request[ed] the Clerk to forthwith enter said judgment in
    
    accordance with Rule 68 . . . ."15
    
    
    
                                     C.
    
         The agreement that White and the Attorney General submitted
    
    under Rule 68 would, if implemented, permit the State to retain
    
    its at-large system of electing appellate judges.   To remedy the
    
    racial vote dilution that this system presumably causes, however,
    
    the agreement would provide a mechanism to ensure that those
    
    courts would have black membership approximately proportionate to
    
    the percentage of blacks in the Alabama voting population.    The
    
    
    
    
         14
            The Rule 68 pleading stated that, in agreeing to the
    settlement, the State was not admitting liability under the
    Voting Rights Act or the Constitution. In fact, throughout this
    litigation, the State has stood firm in its denial of liability
    under §§ 2 and 5 of the Voting Rights Act and the Equal
    Protection Clause of the Fourteenth Amendment. See infra note
    15.
         15
            In the event the district court did not approve the
    proposed judgment, the State reserved the right to stand on its
    answer to White's complaint and to contest the plaintiff's claims
    under §§ 2 and 5 of the Voting Rights Act and the Equal
    Protection Clause.
    
                                     11
    agreement, therefore, would create both a quota system and
    
    proportional representation.16
    
         For this mechanism to function at the courts of appeals
    
    level, the State (presumably the legislature) would first create
    
    two additional judgeships on each of those courts.     A "judicial
    
    nominating commission" would then propose a slate of three
    
    candidates for each of these judgeships; all of the candidates
    
    would be black--from plaintiff White's class.   The Governor would
    
    fill the position by appointment from the slate; if the Governor
    
    "fail[ed] or refus[ed], within the allotted time," to do so, the
    
    Chief Justice of the Alabama Supreme Court would make the
    
    appointment.17   First Proposed Judgment ¶ 4(a)(iv).   The
    
    
         16
            To ensure the perpetuation of the quota system and
    proportional representation, the proposed settlement agreement
    provided:
    
         [I]f, after January of 2003, a situation exists on the
         Supreme Court of Alabama, the Alabama Court of Criminal
         Appeals or the Alabama Court of Civil Appeals whereby the
         number of class members who are Associate Justices or Judges
         on any such Court is fewer than two for more than one year,
         for any reason, the plaintiffs and the State of Alabama
         shall attempt to agree on an appropriate measure designed to
         remedy this situation before the next general election
         cycle. If the parties are unable to agree on a remedial
         measure, then the plaintiffs reserve the right to petition
         the Court for appropriate relief.
    
    First Proposed Judgment ¶ 6. Nothing in this proposed agreement
    or in the record of the proceedings in the district court
    indicates what such "appropriate relief" might entail.
         17
            The first proposed judgment, as well as the modified
    agreement White and the Attorney General presented to the
    district court on April 15, 1994, called for the nominating
    commission to send its slate of candidates to both the Governor
    and the Chief Justice. The period of time allotted for making
    the appointment would vary depending on the circumstances.
    
                                     12
    appointee would then serve a full six-year term following which
    
    he or she would stand for election.   Thereafter, if at any time
    
    there were fewer than two black judges on either court, any
    
    vacancy on the court would be filled through the foregoing
    
    nomination and appointment process, and the appointee would stand
    
    for election after one year.
    
         The nominating commission would be composed of five members.
    
    Two members would be chosen "by and from" the White class (by its
    
    attorneys), one by and from the Alabama State Bar (an
    
    organization consisting of all lawyers licensed to practice in
    
    Alabama), one by and from the Alabama Lawyers Association (a
    
    traditionally black organization), and one by the other four
    
    acting together.   In the event of a deadlock, the fifth position
    
    would be filled by and from the Alabama Black Legislative Caucus.
    
    Thus, presumably three, and possibly all five, of the
    
    commissioners would be black.
    
         The same nomination and appointment process would ensure the
    
    presence of at least two black justices on the Supreme Court.18
    
    If by 1995 there were fewer than two black justices on the court,
    
    any vacancy on the court would be filled through the process
    
    described above until two of the court's members were black.    The
    
    appointee would stand for election in Alabama's next general
    
    election.   In 1996, if there were still fewer than two black
    
         18
            As in the case of appointments to the courts of appeals,
    if the Governor "fail[ed] or refus[ed]" to appoint an associate
    justice from the nominating commission's slate within the
    allotted time, the Chief Justice of the Alabama Supreme Court
    would make the appointment.
    
                                    13
    justices, the State would determine whether every incumbent
    
    justice whose seat was up for reelection in 1996 qualified for
    
    election under Alabama law.   If a justice did not so qualify, his
    
    or her seat would become a "remedial" seat and would be filled
    
    through the nominating process, with the appointee serving a full
    
    six-year term.   In 1998 and 2000, if fewer than two justices were
    
    black, the legislature would create an additional seat on the
    
    Supreme Court; the seat would then be filled by gubernatorial
    
    appointment from a slate of three black candidates presented by
    
    the nominating commission.    The appointee would serve a full six-
    
    year term and then stand for election.19
    
         Because this appointment mechanism could lead to a Supreme
    
    Court of eleven justices and the parties desired a court of nine,
    
    the agreement provided "that if the number of associate justices
    
    is increased [beyond nine], a seat on the supreme court would be
    
    abolished if it was vacated by a white justice."   White, 867
    
    F.Supp. at 1561.20   The parties' proposal, and thus the district
    
         19
            How these provisions regarding the Supreme Court would
    operate together is illustrated by the following hypothetical.
    Suppose that by 1995 the Supreme Court had no black justices. If
    one justice retired, his or her seat would be filled through the
    appointment process described in the text; the appointee would
    then run in the 1996 general election. If, following that
    election, the court had fewer than two black justices, the
    legislature would create a seat, to which a black would be
    appointed. That appointee would serve out a six-year term and
    then stand for election. Finally, if, after the 1998 election,
    the court had fewer than two black justices, the legislature
    would create a second new seat (for a total of eleven) to which a
    black would be appointed for a six-year term.
         20
            The record contains no indication as to when the Alabama
    Supreme Court might return to a court of nine justices, nor does
    the record indicate whether a seat vacated by a white justice
    
                                     14
    court's jurisdiction over the case, "was of unlimited duration."
    
    Id. at 1532.
    
         On March 4, 1994, while the settlement proposal was pending
    
    before the court for preliminary approval, the court granted
    
    Bradford's motion for leave to intervene as a plaintiff.    The
    
    court did not, however, pass on Bradford's request that he be
    
    certified to represent a class of black voters.   In fact, the
    
    court never acted on that request.    Also on March 4, Christopher
    
    Boehm, a white voter, moved for leave to intervene as a
    
    "defendant supporting the current system of at-large elections."
    
    Id. at 1530.   Boehm sought certification of a class of Alabama
    
    electors who are not black.   The court granted Boehm's motion on
    
    May 24.
    
    
    
                                     D.
    
         On April 5, the district court held a third off-the-record
    
    status conference.21   Again, the docket sheet does not indicate
    
    who attended the meeting or what transpired.   Apparently as a
    
    result of this conference, White and the Attorney General
    
    modified their earlier settlement proposal and, on April 15,
    
    submitted the modification to the court in a second Rule 68
    
    filing.   The modification purportedly eliminated the quota system
    
    would be abolished if the court had fewer than two black
    justices. At the very least, the proposed agreement is ambiguous
    on this point.
         21
            The court's second off-the-record status conference was
    held on March 3; it does not appear to be relevant for our
    purposes.
    
                                     15
    originally proposed.   Specifically, the new agreement eliminated
    
    the requirement that the slates presented by the nominating
    
    commission to the Governor contain only blacks.   The commission's
    
    composition, however, would remain predominantly black.
    
         In addition, the new agreement retained the proportional
    
    representation feature of the original proposal.22   That is, the
    
    parties intended that two seats on the Supreme Court and the
    
    courts of appeals would be occupied by representatives of
    
    Alabama's black voters.
    
         Under the new arrangement, the district court would retain
    
    jurisdiction for twenty-four years.23   However, "if the court
    
    [found] that any part of the judgment ha[d] not been met it
    
    
    
    
         22
            To ensure the maintenance of proportional representation
    on Alabama's appellate courts, the modified agreement provided
    that:
    
         [I]f, after January of 2003, a situation exists on the
         Supreme Court of Alabama, the Alabama Court of Criminal
         Appeals or the Alabama Court of Civil Appeals whereby there
         are fewer than 2 sitting Associate Justices or judges on any
         such court who either are members of the plaintiff class or
         who were appointed pursuant to the judicial nominating
         commission procedure created by this judgment for more than
         one year, for any reason, the plaintiffs and the State of
         Alabama shall attempt to agree on an appropriate measure
         designed to remedy this situation before the next general
         election cycle. If the parties are unable to agree on a
         remedial measure, then the plaintiffs reserve the right to
         petition the Court for appropriate relief.
    
    Final Judgment ¶ 7; White, 867 F.Supp. at 1570.
         23
            As noted in part I.C., supra, under the original
    proposal the district court would have retained jurisdiction for
    an "unlimited duration."
    
                                    16
    [could], in its discretion, extend any portion of the judgment it
    
    deem[ed] appropriate."   Id. at 1571; Final Judgment ¶ 11.24
    
         Prior to this second Rule 68 submission, the United States
    
    Department of Justice, exercising its authority under section 5
    
    of the Voting Rights Act, precleared the challenged legislative
    
    enactments and the changes the modified settlement agreement
    
    would make to Alabama's appellate court structure, contingent on
    
    the district court's approval and implementation of that
    
    agreement.    Armed with this conditional approval, White and the
    
    Attorney General, on April 15, 1994, jointly moved the three-
    
    judge court presiding over the section 5 claims to stay further
    
    proceedings with respect to those claims so that the district
    
    court could review their settlement proposal.   The three-judge
    
    court granted their motion that day.25
    
         On May 3, 1994, the district court held its fourth status
    
    conference.   Again, the conference was held off the record, and
    
    the docket sheet does not indicate who attended it or what
    
    transpired.   On May 17, the court conditionally approved the
    
    modified settlement agreement, and scheduled a fairness hearing
    
    for July 29, 1994.   Also on May 17, the district court, having
    
    previously denied Judge Montiel leave to intervene as a party
    
         24
            Nothing in the modified proposal or in the record
    indicates the extent of the district court's discretion to
    "extend any portion of the judgment it deem[ed] appropriate."
         25
            The three-judge panel held that it did "not have the
    jurisdiction to consider the validity of the settlement
    agreement," because the settlement was essentially a § 2 remedy.
    White v. State of Alabama, 
    851 F. Supp. 427
    , 428-429 (M.D.Ala.
    1994).
    
                                     17
    defendant representing Republican voters, see supra note 12,
    
    granted Montiel leave to intervene as a plaintiff and to file a
    
    complaint on behalf of those voters.   In his complaint, Montiel
    
    claimed that the at-large scheme of electing Alabama's appellate
    
    judges denied Republican voters the equal protection of the laws;
    
    as a remedy, he sought replacement of the at-large scheme with
    
    single-member districts.
    
         Montiel also objected to the modified settlement agreement.
    
    First, he claimed that the Voting Rights Act foreclosed as a
    
    remedy for vote dilution the nominating commission appointment
    
    process White and the Attorney General were advocating.
    
    Alternatively, he contended that the proposed appointment process
    
    would create an unconstitutional racial quota system for the
    
    selection of Alabama's appellate judges.   Finally, he asserted
    
    that the Attorney General had agreed to this arrangement for the
    
    express purpose of perpetuating in office--on the Supreme Court
    
    and the courts of appeals--members of the Democratic party and
    
    effectively disenfranchising Alabama's Republican voters.26    If
    
    the court rejected the proposed settlement and ordered instead
    
    that Alabama's appellate judges be elected from single-member
    
    districts--the traditional vote dilution remedy--Republican
    
    
    
    
         26
            In addition, Montiel alleged that by eschewing the
    establishment of single-member districts and preserving the at-
    large system of elections, the proposed settlement would protect
    the incumbencies of the current members of those courts by
    ensuring that none of those members would be opposed for
    reelection by another member of the court.
    
                                   18
    voters would have a meaningful opportunity to elect members of
    
    their party to office.
    
    
    
                                     E.
    
         On July 29, 1994, the "fairness hearing" was held as
    
    scheduled.27   At the hearing, the court entertained objections
    
    from intervenors Bradford and Montiel, and from three non-party
    
    objectors,28 that a final judgment incorporating the settlement
    
    would be unlawful on several grounds.   The objectors asserted
    
    that the judgment would (1) provide a remedy not authorized by
    
    the Voting Rights Act; (2) violate the Equal Protection Clause by
    
    setting aside race-based seats on Alabama's appellate courts; (3)
    
         27
            In compliance with Fed. R. Civ. P. 23(e), which governs
    the settlement of class actions, White and the Attorney General
    provided notice of the proposed settlement in several Alabama
    newspapers. Notice is provided in class action settlements to
    give members of the class the opportunity to object to the
    proposed settlement; here, the notice went "to all resident
    citizens and electors of the State of Alabama." Although the
    notice went to all of Alabama's citizens, in determining whether
    the settlement was objectionable the district court considered
    only whether the black community opposed it. Noting that only
    two members of that community objected to the proposed
    settlement, the court inferred that the settlement was
    unobjectionable. White, 867 F.Supp. at 1534.
    
         After studying the notice, however, we conclude that the
    district court erred in drawing such inference. To be effective,
    class notice must be understandable. The notice provided by
    White and the Attorney General was printed in very small type and
    couched in "legalese" at times so dense that even a lawyer would
    have had difficulty determining the settlement's probable impact
    on Alabama's judicial system and on the rights of Alabama voters.
    It is not surprising that few people objected.
         28
            Among the non-party objectors were Jeff Sessions, the
    present Attorney General of Alabama, and Perry Hooper, who became
    Chief Justice of Alabama as the result of the November 1994
    general election.
    
                                     19
    violate the Alabama Constitution by providing for the
    
    appointment, rather than election, of judicial officers for six-
    
    year terms; and (4) disenfranchise all Alabama voters by
    
    effectively removing some judicial elections from the ballot box.
    
         These objectors also contended that the Attorney General, a
    
    member of the executive branch of the state government, lacked
    
    the authority to compel the legislative branch of that government
    
    to increase the size of Alabama's appellate courts as the
    
    proposed settlement would require.    Under Alabama's constitution,
    
    see supra note 1, and its separation of powers doctrine,29 the
    
    determination of the size of the state's appellate courts is the
    
    legislature's prerogative.    The objectors also contended that the
    
    Attorney General lacked the authority to remove the selection of
    
    an appellate judge from the ballot box.   That authority resides
    
    in the people of Alabama; it is exercised through constitutional
    
    amendment.   Thus, according to the objectors, the Attorney
    
    General, in purporting to bind the legislature and the people of
    
    Alabama to the changes the settlement would effect, plainly
    
    exceeded his authority.
    
         29
            The separation of powers doctrine is expressed in the
    Alabama Constitution:
    
         In the government of this state, except in the instances in
         this Constitution hereinafter expressly directed or
         permitted, the legislative department shall never exercise
         the executive and judicial powers, or either of them; the
         executive shall never exercise the legislative and judicial
         powers, or either of them; the judicial shall never exercise
         the legislative and executive powers, or either of them; to
         the end that it may be a government of laws and not of men.
    
    Ala. Const. art. III, § 43.
    
                                     20
         At the end of the hearing, the district court took the
    
    foregoing objections under advisement.      Also taken under
    
    advisement was a written objection filed by intervening defendant
    
    Boehm.30   Boehm's concern was that, although the modified
    
    proposal had eliminated the requirement that only blacks be
    
    appointed through the nominating process, the composition of the
    
    commission was such that only blacks would be appointed.31
    
         On August 31, 1994, the court decided to entertain the
    
    plaintiffs' evidence of racial vote dilution and scheduled a
    
    hearing thereon for September 2.      At that hearing, the court
    
    heard the testimony of two expert witnesses who had been employed
    
    by White to study voting patterns in prior statewide elections in
    
    Alabama.   These experts concluded that the voting patterns
    
    demonstrated that the state's white voters and black voters
    
    tended to vote in racial blocs; thus, white voters were usually
    
    able to preclude black voters from electing their candidates of
    
    choice.    The experts stated that this situation could be remedied
    
    by having the nine justices of the Supreme Court and the five
    
    judges of the respective courts of appeals elected from single-
    
    member districts.   According to one of the experts, Jerry Wilson,
    
    the districts could be drawn so that black voters would comprise
    
    
         30
            The court also entertained several other written
    objections, none of which are pertinent here.
         31
            Boehm's memorandum expressed this point as follows:
    "[T]he record . . . clearly establish[es] that the purpose of the
    Judicial Nominating Commission is to secure the approval of
    African-American candidates on behalf of African-American
    voters." Record vol. 6, no. 128, at 5.
    
                                     21
    a majority in two Supreme Court districts and in one district for
    
    each court of appeals.   At the conclusion of the hearing, the
    
    court took the case under submission.
    
         On September 14, the district court held yet another off-
    
    the-record status conference.   The docket sheet does not reveal
    
    who attended the conference or what transpired there.    The next
    
    day, White and the Attorney General filed a "Joint Notice of
    
    Filing of Revised Final Judgment."   This document revised the
    
    modified proposal considered at the fairness hearing in two
    
    substantive respects.
    
         First, the revision made it possible for the nominating
    
    commission to have more than nominal white membership.   Although
    
    it retained the requirement that two members of the commission be
    
    blacks, selected by White's lawyers, and that a third member be
    
    selected by the traditionally black Alabama Lawyers Association,
    
    the revision permitted that association to appoint from outside
    
    its membership and thus, perhaps, place a non-black person on the
    
    commission.   Similarly, in the event of a deadlock in choosing
    
    the fifth member of the commission, the Alabama Black Legislative
    
    Caucus could also appoint a non-black to the commission.32
         Second, the revision eliminated the authority of the Chief
    
    Justice of the Alabama Supreme Court to make an appointment from
    
         32
            The proposed revision appears to have been an attempt to
    assuage Boehm's concern that White's and the Attorney General's
    previous proposals, in providing for a commission dominated by
    blacks, would ensure that only blacks would be presented to the
    Governor for appointment. See supra note 31. Whether the
    proposed revision would produce a different result is
    questionable.
    
                                    22
    the nominating commission's slate if the Governor failed or
    
    refused to do so.
    
         White and the Attorney General served their joint notice on
    
    all of the other parties in the case: Bradford, Montiel, and
    
    Boehm.    Although the proposed revisions to the judgment would
    
    substantively change the judicial appointment process, the court
    
    invited no response from these other parties.    The court did hold
    
    another status conference on October 4--this time on the record--
    
    but neither these revisions nor any other substantive provisions
    
    of the proposed final judgment were discussed.33
    
    
    
                                      F.
    
         On October 6, 1994, the district court issued its
    
    "Memorandum Opinion and Order" and entered the final judgment
    
    White and the Attorney General had proposed following the
    
    September 14 status conference.    White v. State of Alabama, 
    867 F. Supp. 1519
     (M.D. Ala. 1994).    The court rejected the arguments
    
    in opposition to the settlement agreement presented at the July
    
    29 fairness hearing.    Specifically, the court rejected the notion
    
    that the remedy provided by the judgment could not be sanctioned
    
    under the Voting Rights Act and that the remedy effectively
    
    prescribed a quota system that could not be squared with the
    
    
         33
            Rather, the record reveals that the court and counsel
    canvassed the seats on the Supreme Court and the courts of
    appeals in an effort to identify those whose seats had not been
    precleared under § 5 of the Voting Rights Act. They also
    discussed how long some of the appointees to these courts had
    served prior to standing for election.
    
                                      23
    Equal Protection Clause.     Turning to the argument that the
    
    Attorney General had exceeded his authority by agreeing to the
    
    proposed settlement, the court held that because the Attorney
    
    General has broad authority to conduct litigation for the State,
    
    he had the authority to enter into the agreement at issue.
    
    Additionally, the court observed that, if necessary to remedy a
    
    case of vote dilution, the court would itself have the authority
    
    to impose the sort of remedy that White and the Attorney General
    
    had proposed.
    
         After disposing of these objections, the court addressed the
    
    question of whether, in the face of the State's denial of
    
    liability, the plaintiffs had made out a prima facie case under
    
    the Voting Rights Act.     Citing Alabama's history of
    
    discrimination against blacks and the opinion of the two election
    
    experts, the court found "a strong basis in evidence" for a case
    
    of vote dilution under section 2 of the Act sufficient to justify
    
    its approval of the proposed settlement agreement.       White, 867
    
    F.Supp at 1554, 1554-57.    Given this conclusion, the court
    
    apparently deemed it unnecessary to reach White's claim under the
    
    Equal Protection Clause.
    
         The same day it entered a final judgment incorporating the
    
    settlement agreement White and the Attorney General had reached,
    
    the court granted the State summary judgment on Montiel's equal
    
    protection claims.    White v. State of Alabama, 
    867 F. Supp. 1571
    (M.D.Ala. 1994).     Montiel appeals that ruling in No. 94-7081.      We
    
    
    
    
                                      24
    dispose of part of his appeal in the margin.34   We consider the
    
    remaining part of Montiel's appeal in No. 94-7024, which Montiel
    
    and Bradford are prosecuting jointly.35   We resolve their appeal
    
    in the discussion that follows.
    
    
    
                                      II.
    
         The first question we address is whether section 2 of the
    
    Voting Rights Act forecloses the remedy provided in the district
    
    
         34
            As noted in part I.D., supra, Montiel alleged in his
    complaint that the at-large system for electing Alabama's
    appellate judges denies Republican voters the equal protection of
    the laws. As a remedy, he sought the creation of a single-member
    district scheme. In addition to asserting this claim, Montiel
    questioned the legality of the settlement White and the Attorney
    General had proposed. He claimed that the Voting Rights Act
    foreclosed the adoption of the settlement as a remedy for vote
    dilution. Further, he alleged that the proposed appointment
    process would create an unconstitutional racial quota system for
    the selection of Alabama's appellate judges. Finally, he
    contended that the Attorney General and White crafted their
    settlement for the express purpose of perpetuating in office
    members of the Democratic Party and effectively disenfranchising
    Alabama's Republican voters.
    
         In appealing the district court's grant of summary judgment,
    Montiel did not challenge the district court's rejection of the
    cause of action he brought on behalf of Republican voters under
    the Equal Protection Clause. Accordingly, we deem it abandoned
    and dismiss his appeal in No. 94-7081. We consider Montiel's
    objections to the remedial portions of the district court's final
    judgment in No. 94-7024. In that appeal, Montiel and Bradford
    filed a joint brief; hence, we treat their arguments as having
    been jointly made.
         35
            Although the State of Alabama is an appellee, the
    present Alabama Attorney General, Jeff Sessions, also challenges
    as unlawful the district court's final judgment; in effect, he
    contends that his predecessor in office invited the district
    court to commit error. For purposes of this appeal, however, we
    assume that the State is bound by the settlement agreement the
    former Attorney General, Jimmy Evans, urged upon the district
    court.
    
                                      25
    court's judgment.     In the context of this case, the question
    
    becomes whether the Act precludes the district court from
    
    removing judicial selection from the ballot box, and whether the
    
    Act precludes proportional representation.     We consider these
    
    issues in turn.
    
                                      A.
    
         Section 2 of the Act applies to state judicial elections.
    
    Chisom v. Roemer, 
    501 U.S. 380
    , 404, 
    111 S. Ct. 2354
    , 2368, 
    115 L. Ed. 2d 348
     (1991).    Here we are concerned with whether the
    
    relief provided by the district court's judgment is within the
    
    scope of section 2.    See United States v. Dallas County Comm'n,
    
    
    850 F.2d 1433
    , 1437-38 (11th Cir. 1988), cert. denied, 
    490 U.S. 1030
    , 
    109 S. Ct. 1768
    , 
    104 L. Ed. 2d 203
     (1989).
    
         Section 2 provides:
    
         (a) No voting qualification or prerequisite to voting
         or standard, practice, or procedure shall be imposed or
         applied by any State or political subdivision in a
         manner which results in a denial or abridgement of the
         right of any citizen of the United States to vote on
         account of race or color . . . .
    
        (b) A violation of subsection (a) of this section is
        established if, based on the totality of circumstances,
        it is shown that the political processes leading to
        nomination or election in the State or political
        subdivision are not equally open to participation by
        members of a class of citizens protected by subsection
        (a) of this section 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. The extent to which
        members of a protected class have been elected to
        office in the State or political subdivision is one
        circumstance which may be considered: Provided, That
        nothing in this section establishes a right to have
        members of a protected class elected in numbers equal
        to their proportion in the population.
    
    
                                      26
    42 U.S.C. § 1973 (emphasis added).
    
         Congress enacted section 2 to give those who had been
    
    disenfranchised on account of their race the opportunity to
    
    participate in the political process.   The Act is designed to
    
    redress past discrimination that inhibited the ability of
    
    minorities to express their preference for certain candidates
    
    through the electoral process, i.e., at the ballot box.36
    
    Sections 4 and 5 of the Act prohibit the use of tests or devices,
    
    and the alteration of voting qualifications or procedures, in a
    
    manner that deprives citizens of their right to vote.   See 42
    
    U.S.C. §§ 1973b, 1973c.   Section 2 proscribes practices that,
    
    while permitting a mechanical exercise of the right to vote,
    
    dilute the votes of a racial minority (through gerrymandering or
    
    other tactics) and thus render its votes meaningless.   See Shaw
    
    v. Reno, ___ U.S. ___, ___, 
    113 S. Ct. 2816
    , 2823, 
    125 L. Ed. 2d 511
    
    (1993).   In essence, the Act empowers minorities by providing
    
    them meaningful access to the ballot box.
    
         The nexus between section 2 and the act of voting is further
    
    evidenced when one considers the source of authority for section
    
    2.   Section 2 was enacted to enforce the Fifteenth Amendment's
    
    prohibition against denying a citizen the right to vote "on
    
    
    
         36
            The legislative history is clear in this respect: "The
    court should exercise its traditional equitable powers to fashion
    the relief so that it completely remedies the prior dilution of
    minority voting strength and fully provides equal opportunity for
    minority citizens to participate and to elect candidates of their
    choice." S. Rep. No. 417, 97th Cong., 2d Sess. 31, reprinted in
    1982 U.S.C.C.A.N. 177, 208 (emphasis added).
    
                                    27
    account of race."37   U.S. Const. amend XV; NAACP v. New York, 
    413 U.S. 345
    , 350, 
    93 S. Ct. 2591
    , 2595, 
    37 L. Ed. 2d 648
     (1973);
    
    Allen v. State Bd. of Elections, 
    393 U.S. 544
    , 556, 
    89 S. Ct. 817
    , 826, 
    22 L. Ed. 2d 1
     (1969) ("The Act was drafted to make the
    
    guarantees of the Fifteenth Amendment finally a reality for all
    
    citizens.").38
    
         A judicial remedy fashioned under section 2 must therefore
    
    enhance the ability of the plaintiffs to elect their candidates
    
    of choice.   Any remedy that has the effect of eliminating this
    
    
         37
              The Fifteenth Amendment reads:
    
              Section 1.   The right of citizens of the United
         States to vote shall not be denied or abridged by the
         United States or by any State on account of race, color,
         or previous condition of servitude.
    
              Section 2. The Congress shall have power to enforce
         this article by appropriate legislation.
    
    U.S. Const. amend. XV (emphasis added). As Justice Frankfurter
    stated, "[t]he Amendment nullifies sophisticated as well as simple-
    minded modes of discrimination.       It hits onerous procedural
    requirements which effectively handicap exercise of the franchise
    by the colored race . . . ." Lane v. Wilson, 
    307 U.S. 268
    , 275, 
    59 S. Ct. 872
    , 876, 
    83 L. Ed. 2d 1281
     (1939) (emphasis added). It has
    been employed to strike down such tactics as the grandfather
    clause, see Guinn v. United States, 
    238 U.S. 347
    , 
    35 S. Ct. 926
    , 
    59 L. Ed. 1340
     (1915), and racial gerrymandering, see Gomillion v.
    Lightfoot, 
    364 U.S. 339
    , 
    81 S. Ct. 125
    , 
    5 L. Ed. 2d 110
     (1960).
    Constitutional challenges to those practices are now analyzed under
    the Equal Protection Clause rather than the Fifteenth Amendment.
    
         38
            The same is true of other provisions in the Voting
    Rights Act. See, e.g., City of Rome v. United States, 
    446 U.S. 156
    , 177, 
    100 S. Ct. 1548
    , 1562, 
    64 L. Ed. 2d 119
     (1980) ("[T]he
    Act's ban [in § 5] on electoral changes that are discriminatory
    in effect is an appropriate method of promoting the purposes of
    the Fifteenth Amendment . . . ."). For a more detailed account
    of the history and purpose of the Voting Rights Act, see Shaw v.
    Reno, ___ U.S. ___, 
    113 S. Ct. 2816
    , 
    125 L. Ed. 2d 511
     (1993).
    
                                     28
    essential element of choice is invalid, for it contravenes the
    
    spirit and purpose of the Act.    A remedy such as the one
    
    fashioned in this case, calling for the appointment of judges to
    
    posts which, under state law, are to be filled by election,
    
    effectively nullifies voting power and contravenes the stated
    
    objectives of section 2.
    
         In short, the district court has employed the Voting Rights
    
    Act to usurp voting power from the very minority which, under the
    
    Act, is entitled to wield it.    Such a practice can hardly be
    
    condoned.   We have repeatedly insisted that the Act guarantees
    
    the right to elect representatives.      See, e.g., Southern
    
    Christian Leadership Conference v. Sessions, 
    56 F.3d 1281
    , 1296
    
    n.25 (11th Cir. 1995) (en banc), cert. denied, 
    64 U.S.L.W. 3318
    
    (U.S. Jan. 8, 1996) (No. 95-647).      The will of the people is
    
    expressed through elections, not by commissions created to divine
    
    their preferences for them.     We "find[] a certain irony in using
    
    the Voting Rights Act to deny citizens the right to select public
    
    officials of their choice."39    Brooks v. State Bd. of Elections,
    
         39
            We note that all Alabama voters, both black and white,
    are disenfranchised by the settlement's appointment process. The
    district court's order does not address this problem. The
    court's observation that some of Alabama's judges have been
    appointed to office in the past is of no moment. See White, 867
    F.Supp. at 1536. Those appointments have occurred pursuant to
    state law, not as a remedy for a violation of § 2 of the Voting
    Rights Act. Under the Alabama Constitution, the governor fills
    vacancies that occur mid-term. Ala. Const. amend. 328, § 6.14
    (1973). Also beside the point is the court's observation that
    the judges appointed pursuant to the final judgment will
    eventually have to stand for election, and thus that the
    disenfranchisement wrought by the court's judgment will merely be
    temporary. See White, 867 F.Supp. at 1536. The fact remains
    that some of those judges will hold office for six years before
    
                                      29
    
    848 F. Supp. 1548
    , 1568, remanded and appeal dismissed as moot,
    
    
    59 F.3d 1114
     (11th Cir. 1995) (emphasis added).
    
         The district court seeks to justify this denial by presuming
    
    that the nominating commission will "serve as a proxy for black
    
    voters" in choosing the slate presented to the Governor for
    
    appointment to the appellate bench.   White, 867 F. Supp. at 1561.
    
    We are not persuaded.   How the nominating commission is to be
    
    informed of the views of Alabama's black voters is nowhere
    
    explained.   The best the court could say is that the commission
    
    is "composed in a manner to attempt to reflect the interests of
    
    most African-American Alabamians."    Id. at 1526.
    
         The nominating commission created by the district court's
    
    judgment resembles, but only superficially, the nominating
    
    commissions many states employ under the so-called "Missouri
    
    Plan" as a means of ensuring that judicial appointments are made
    
    on merit as opposed to sheer political expediency.40   Under a
    
    
    the voters of Alabama have a chance to meet them in the ballot
    box. See id. at 1526.
         40
            Thirty-four states and the District of Columbia
    currently have "Missouri Plans" for the selection of some or all
    of their judges. See Jona Goldschmidt, "Merit Selection: Current
    Status, Procedures, and Issues," 49 U. Miami L. Rev. 1, 2-3
    (1994). In most states, the plan is implemented by a
    constitutional or statutory provision. Id. at 19-20.
    
         Every state in the Eleventh Circuit uses a nominating
    commission for some judicial appointments. In Alabama, several
    counties have five-member commissions for the appointment of
    circuit judges (who, following their appointment, must run in the
    next general election). Two of the commission members are
    lawyers chosen by the state or county bar. Two non-lawyer
    members are selected by the legislature, and the last member is a
    judge, chosen by the judges of the circuit. See Ala. Const
    amend. 328, § 6.14; see also Ala. Const. amends. 83 and 110
    
                                    30
    typical "Missouri Plan," a state's voters have a choice in the
    
    composition of the nominating commission because, in large part,
    
    those who appoint the commissioners are elected officials, such
    
    as the governor or the members of the legislature.    Here, by way
    
    of contrast, Alabama's voters will have essentially no choice.
    
    Two members of the commission will be hand-picked by the
    
    plaintiff's lawyers from the class White represents; no
    
    commission members will be chosen by elected representatives.
    
    The commission will be overseen by a life-tenured federal
    
    district judge who retains the power to fashion "appropriate
    
    relief" in the event the scheme fails to ensure the presence of
    
    at least two representatives of the plaintiff class on each of
    
    Alabama's appellate benches.   See supra note 23.    The only actor
    
    in the court's plan who is accountable to the voters is the
    
    Governor, and his hands will be tied by the court's judgment.41
    
    
    
    (Jefferson County). In Georgia, a nine-member commission is
    charged with filling interim vacancies on all state courts save
    the supreme court. The governor appoints five members of the
    commission, three lawyers and two non-lawyers. The lieutenant
    governor and the speaker of the house of representatives each
    appoint one non-lawyer member, and two members serve ex officio.
    See Ga. Const. art VI, § VII, para. III; Executive Order,
    Judicial Nominating Commission (Feb. 27, 1995) (establishing
    commission for Governor Zell Miller's term in office). Florida
    has nine-member commissions to fill vacancies in all levels of
    the state judiciary. Three members are appointed by the
    governor, three are appointed by the Florida Bar, and three are
    elected by majority vote of other six. See Fla. Const. art. 5, §
    11; Fla. Stat. § 43.29.
         41
            There is no provision in the judgment that would give
    the Governor the authority to reject a slate proposed by the
    nominating commission on the ground that the nominees possessed
    nothing more than the bare legal qualifications for judicial
    office.
    
                                    31
    Dissatisfied voters, black or white, will have no recourse if the
    
    candidates the commission selects are unsatisfactory; thus, the
    
    commission will have a license to select its nominees with
    
    impunity.
    
         Accordingly, we conclude that an appointment procedure such
    
    as the one the district court would implement in this case is a
    
    remedy foreclosed by the Voting Rights Act.42   The United States
    
    Department of Justice, appearing as amicus curiae, conceded this
    
    point in oral argument, but contended that because the district
    
    court's final judgment is a "consent decree," the fact that the
    
    remedy it provides is not authorized by the Voting Rights Act
    
    should not concern us.   We address this argument, and reject it,
    
    in part IV, infra.
    
    
    
                                    B.
    
         The goal the White class seeks to achieve in this case is
    
    proportional representation on Alabama's appellate courts.43
    
         42
            Because we dispose of the district court's judgment on
    the ground that it violates the Voting Rights Act, we need not,
    and indeed should not, discuss whether the judgment violates the
    Equal Protection Clause by setting aside race-based seats on
    Alabama's appellate courts. See Ashwander v. Tennessee Valley
    Auth., 
    297 U.S. 288
    , 347, 
    56 S. Ct. 466
    , 483, 
    80 L. Ed. 688
     (1936)
    (Brandeis, J., concurring) ("The Court will not pass upon a
    constitutional question although properly presented by the
    record, if there is also present some other ground upon which the
    case may be disposed of.")
         43
            Moreover, the White class seeks to achieve this goal
    without paying the price a minority might be expected to pay to
    attain proportional representation. That is, the typical remedy
    for racial vote dilution yielded by at-large voting in a multi-
    member district is to divide the district into single-member
    districts if the plaintiff minority is sufficiently cohesive and
    
                                    32
    Both the original and modified settlement proposals presented to
    
    the district court make this quite clear.   Section 2 of the
    
    Voting Rights Act states, however, that "nothing in this section
    
    establishes a right to have members of a protected class elected
    
    in numbers equal to their proportion in the population."   42
    
    U.S.C. § 1973(b); see Thornburg v. Gingles, 
    478 U.S. 30
    , 84, 
    106 S. Ct. 2752
    , 2784, 
    92 L. Ed. 2d 25
     (1986) (O'Connor, J.,
    
    concurring).   Notwithstanding this statutory caveat, the district
    
    court used the attainment of proportionality as a justification
    
    for entering the judgment at hand.   The following paragraph from
    
    the court's opinion illustrates this point:
    
    
    
    
    compact to comprise a majority in one or more single-member
    districts. See Gingles, 478 U.S. at 50; 106 S.Ct. at 2766. In
    such a case, the minority, having been cabined in this manner,
    necessarily loses influence in the other districts. See Nipper
    v. Smith, 
    39 F.3d 1494
    , 1543 (11th Cir. 1994) (en banc), cert.
    denied, ___ U.S. ___, 
    115 S. Ct. 1795
    , 
    131 L. Ed. 2d 723
     (1995);
    League of United Latin American Citizens v. Clements, 
    999 F.2d 831
    , 873 (5th Cir. 1993) (en banc).
    
         In this case, the trade-off described above does not occur;
    rather, in choosing the members of the appellate bench, the
    influence of the minority voters is disproportionately enhanced
    at the expense of the majority. That is, the minority is given
    the right to fill by appointment two seats on each of the
    appellate courts while at the same time maintaining its
    admittedly "significant influence" in the choice of those
    selected through the ballot box. White, 867 F.Supp. at 1535.
    According to members of the White class, who urged the court to
    approve the settlement, "the proposed settlement is superior to
    single-member districts for appellate courts because at-large
    seats allow blacks to have a significant influence on all
    appellate judges, rather than have their dominance limited to a
    small number of districts with little presence in the majority of
    districts." Id. (citing affidavits of Richard Arrington, Jr.,
    mayor of Birmingham, Alabama, and Joe L. Reed, chairman of the
    Alabama Democratic Conference (a statewide black political
    organization that is an arm of the Alabama Democratic Party)).
    
                                    33
         [T]he court notes that blacks comprise approximately
         25% of the population of Alabama and 23% of the voting
         age population. For the purposes of this inquiry, the
         court chooses the more conservative figure of 23% for
         the relevant pool. In affirmative action terms, this
         means that absent voting discrimination it would be
         expected that around 23% of judges would be minority-
         preferred candidates. The proposed settlement
         contemplates relief reaching two seats on each of the
         seven-member appeals courts or 28% of the seats and two
         seats on the nine-member supreme court or 22% of the
         seats. The court finds that the number of judgeships
         reached by the proposed settlement as a percentage of
         the seats on each appellate court is comparable to the
         black percentage of the voting age population in
         Alabama.
    
    White, 867 F. Supp. at 1562.   This statement speaks for itself--
    
    in approving the settlement, the district court ignored
    
    Congress's admonition that the Voting Rights Act is not be used
    
    as a vehicle to establish proportional representation.
    
    
    
                                      III.
    
         Putting aside the question whether the district court's
    
    remedy is cognizable under section 2, we conclude that the
    
    district court, in fashioning its remedy, lacked the authority to
    
    require Alabama to increase the size of its appellate courts.    We
    
    base our conclusion that the court lacked such power on Nipper v.
    Smith, where we said that "federal courts may not mandate as a
    
    section 2 remedy that a state or political subdivision alter the
    
    size of its elected bodies."   Nipper v. Smith, 
    39 F.3d 1494
    , 1532
    
    (11th Cir. 1994) (en banc), cert. denied, ___ U.S. ___, 
    115 S. Ct. 1795
    , 
    131 L. Ed. 2d 723
     (1995).44
    
         44
            Nipper was decided in December of 1994, and thus the
    district court did not have the benefit of Nipper's holding when
    
                                       34
         We also draw, as we did in Nipper, on the Supreme Court's
    
    decision in Holder v. Hall, ___ U.S. ___, 
    114 S. Ct. 2581
    , 129 L.
    
    
    
    Ed. 2d 687 (1994).    In Holder, black plaintiffs proposed as a
    
    remedy for racial vote dilution that the court increase the
    
    membership of a county commission from one person to six, a
    
    chairman to be elected at large and five members to be elected
    
    from single-member districts.    According to the plaintiffs, the
    
    black voting population was sufficiently cohesive and compact to
    
    constitute a majority in one of the suggested single-member
    
    districts.
    
         The Supreme Court rejected the plaintiffs' proposal.    The
    
    Court held that the plaintiffs had no case under section 2
    
    because there was no objectively reasonable "benchmark" with
    
    which to compare the existing scheme in order to determine
    
    whether racial vote dilution was actually taking place.     "In
    
    order for an electoral system to dilute a minority group's voting
    
    power, there must be an alternative system that would provide
    
    greater electoral opportunity to minority voters."    Id. at 2589
    
    (O'Connor, J., concurring).    When comparing the sizes of elected
    
    bodies, there are many possible alternatives, but no "principled
    
    reason why one size should be picked over another as the
    benchmark for comparison."    Id. at 2586 (plurality opinion)
    
    (emphasis added).    It is not the absence of a benchmark that is
    
    the problem when evaluating the size of an elected body; the
    
    
    
    
    it decided this case.
    
                                     35
    difficulty is that a court cannot reasonably choose one benchmark
    
    over another.45
    
         This difficulty is presented also by this case.    The
    
    district court constructed a benchmark by using proportional
    
    representation.    As noted part II.B., infra, the court observed
    
    that blacks comprise 23% of the voting age population in Alabama;
    
    accordingly, 23% of the judges should be minority-preferred
    
    candidates.   White, 867 F.Supp. at 1562.   Having drawn this
    
    conclusion, the court asked, in effect: How large must the
    
    Supreme Court and the courts of appeals be to ensure that
    
    minority-preferred candidates occupy that percentage of the
    
    courts' seats?    The answer is a Supreme Court with nine, ten, or
    
    eleven seats and courts of appeals with seven seats each.
    
         The problem with these benchmarks is that they are not
    
    principled.   Rather, they are based on proportional
    
    representation, which, under the Voting Rights Act, is
    
    impermissible.    See supra part II.B.   Once these benchmarks are
    
    eliminated, one must engage in sheer speculation to arrive at an
    
    appropriate benchmark, or size, for each court.    With respect to
    the courts of appeals, for example, one might argue that six
    
    
    
    
         45
            The question before the Court in Holder was one of
    statutory interpretation: whether increasing the size of the
    Bleckley County Commission was permissible under § 2. The Court
    did not find the answer to this question in the language of the
    statute or its legislative history; it found the answer by
    considering the difficulty a district court would encounter in
    inferring a reliable benchmark from the circumstantial evidence
    before it.
    
                                     36
    judges would suffice; another might opt for seven or eight.46
    
    Holder precludes this sort of speculation.
    
    
    
                                    IV.
    
         As our discussion in Parts II and III makes clear, the
    
    remedy the district court prescribed in this case is foreclosed
    
    by the Voting Rights Act and by precedent.   The Department of
    
    Justice concedes this point,47 but contends, as does White, that
    
    the district court's final judgment is a "consent decree," and
    
    that, as such, the judgment could provide relief beyond that
    
    authorized by the Act.   We are not persuaded.
    
    
    
                                    A.
    
         First, the district court's final judgment is not a consent
    
    decree.   It is a final judgment, because it disposes of all of
    
    the claims and defenses of all of the parties in the case.    See
    
    28 U.S.C. § 1291; Andrews v. United States, 
    373 U.S. 334
    , 
    83 S. Ct. 1236
    , 
    10 L. Ed. 2d 383
     (1963).    But it is not a final consent
    
    decree, because not all of the parties consented to its entry.
    White, the Attorney General, the Department of Justice, and the
    
    
    
    
         46
            As noted in part I.E., supra, the plaintiffs' own
    experts testified at the August 31, 1994, hearing that the vote
    dilution they found in the at-large scheme could be remedied by
    having Alabama's appellate judges elected from single-member
    districts, without increasing the size of the courts. Hence, it
    was unnecessary for the court to increase the size of the
    appellate courts in order to grant the plaintiffs relief.
         47
            The White class does not join in the Department's
    concession.
    
                                    37
    district court refer to the final judgment as a "consent
    
    decree."48   That, however, does not make it one.
    
         Here, the court entered a final judgment that rejected the
    
    relief sought by some parties, Bradford and Montiel,49 and
    
    incorporated the relief proposed jointly by other parties, White
    
    and the State.   In this circuit, a decree that provides a remedy
    
    
    
         48
            The district court, in its memorandum opinion, appears
    to treat its final judgment as a consent decree. Nowhere in its
    opinion, however, does the court explain how a consent decree can
    be entered without the consent of all parties.
         49
            As noted in part I.C., supra, Bradford became a party on
    March 4, 1994, when the district court granted him leave to
    intervene as a plaintiff and to file a complaint. In that
    complaint, Bradford alleged that he represented a class
    consisting of all of Alabama's black voters, and asked the court
    to recognize him as the representative of such class. For
    relief, Bradford sought the election of Alabama's appellate
    judges from single-member districts. In contrast, White, in the
    settlement proposal he and the Attorney General had submitted to
    the court, sought the remedy the district court eventually
    imposed. Thus, the district court was faced with one plaintiff,
    Bradford, seeking one form of relief, and another plaintiff,
    White, seeking a dramatically different, and totally
    inconsistent, remedy. The court could have solved the dilemma by
    dividing the plaintiff class of black voters into two subclasses:
    one represented by White, the other by Bradford. The court,
    however, did nothing. Consequently, we are left with two
    plaintiffs seeking mutually exclusive forms of relief.
    
         Bradford, because he is a black voter, is by definition a
    member of the White class. No one has contended, however, that
    Bradford is thereby foreclosed from objecting to the relief White
    seeks or from pursuing an alternative remedy for the alleged vote
    dilution. Rather, White and the Attorney General, apparently
    deferring to the district court's decision to grant Bradford
    plaintiff status by permitting him to intervene and to file a
    complaint, have treated Bradford as an independent party in this
    litigation.
    
         Montiel became a party on May 17, 1994, and was certified to
    represent a plaintiff class of Republican voters. In addition to
    challenging the at-large election scheme, Montiel alleged that
    the White-Attorney General proposal, if implemented, would
    disenfranchise Alabama's republican voters. Like Bradford,
    Montiel sought the creation of single-member districts.
    
                                     38
    agreed to by some, but not all, of the parties cannot affect the
    
    rights of a dissenting party.    United States v. City of Miami,
    
    
    664 F.2d 435
    , 442 (5th Cir. 1981) (en banc) (opinion of Rubin,
    
    J.).50    Here, Bradford and Montiel are non-consenting dissenting
    
    parties.51   Indeed, they vigorously objected to the remedy White
    
    and the Attorney General proposed because, among other things, it
    
    would deprive them of their right to vote for judicial officers.
    
    
    
                                      B.
    
         Assuming, for sake of argument, that the district court's
    
    judgment is a consent decree, we address the question whether,
    
    
    
         50
            City of Miami, though decided after the split of the
    former Fifth Circuit, is part of the law of this circuit. See,
    e.g., Barfus v. City of Miami, 
    936 F.2d 1182
    , 1184 (11th Cir.
    1991).
         51
            Nor did Boehm, who had intervened in the case as a
    defendant representing a class of non-black voters, consent to
    the entry of the judgment. Boehm contended that the current at-
    large system for electing appellate judges was lawful and
    therefore should be maintained. Thus, his position was at odds
    with that taken by White and the Attorney General.
    
         After White and the Attorney General made their Rule 68
    filing on April 15, 1994, and in advance of the July 29 fairness
    hearing, Boehm objected to their settlement proposal on the
    ground that the composition of the nominating commission ensured
    that only blacks would be appointed through the nominating
    process. According to Boehm, excluding "members of the 'Boehm
    Class' [non-black voters] from the Judicial Nominating Commission
    not only violates the rights of the 'Boehm Class' by not allowing
    them to participate in the selection of potential candidates for
    these appellate judges positions, but also prevents the 'Boehm
    Class' from being able to adequately monitor the . . . Commission
    for any discriminatory action they may take . . . ." Record vol.
    6, no. 128, at 5-6.
    
         Boehm has not appealed the district court's final judgment.
    During the oral argument of this case on appeal, his attorney
    announced that Boehm had no objection to the implementation of
    the judgment.
    
                                      39
    for that reason, the court had the authority to provide a remedy
    
    not authorized by the Voting Rights Act.    White and the
    
    Department of Justice cite only one case in support of the
    
    proposition that a district court, in entering a consent decree,
    
    may provide relief beyond that authorized by Congress.       See Local
    
    No. 93, International Ass'n of Firefighters v. City of Cleveland,
    
    
    478 U.S. 501
    , 
    106 S. Ct. 3063
    , 
    92 L. Ed. 2d 405
     (1986).      That
    
    case, however, is inapposite.
    
         In Local No. 93, the plaintiffs, an association of black and
    
    Hispanic firefighters employed by Cleveland's fire department,
    
    alleged that, in violation of Title VII of the Civil Rights Act
    
    of 1964, various city officials had discriminated against its
    
    members on the basis of race and national origin in hiring,
    
    assigning, and promoting firefighters.    The city and the
    
    association entered into a settlement which, if approved by the
    
    court, would provide, among other things, prospective relief to
    
    unknown persons who had not suffered the alleged discrimination.
    
    The firefighters' union intervened in the case for the purpose of
    
    objecting to the settlement.    It contended that Title VII barred
    
    the court from granting relief that benefitted individuals who
    
    were not actual victims of the discriminatory practices.       See
    Civil Rights Act of 1964, Pub. L. No. 88-352, § 706(g)(2)(a), 78
    
    Stat. 241, 261, 42 U.S.C. § 2000e-5(g)(2)(a) (1988 & Supp. V
    
    1993).
    
         The district court incorporated the settlement into a
    
    consent decree, and the union appealed.    The Sixth Circuit
    
    affirmed, Vanguards of Cleveland v. City of Cleveland, 
    753 F.2d 40
    479 (6th Cir. 1985), and the Supreme Court granted certiorari,
    
    474 U.S 816, 
    106 S. Ct. 59
    , 
    88 L. Ed. 2d 48
     (1985), to answer the
    
    question: "whether § 706(g) of Title VII . . . precludes the
    
    entry of a consent decree which provides relief that may benefit
    
    individuals who were not the actual victims of the defendant's
    
    discriminatory practices."     Local No. 93, 478 U.S. at 504, 106
    
    S.Ct. at 3066.
    
         Drawing on the language of section 706(g) and Title VII's
    
    legislative history, the Court concluded that the provision did
    
    not apply to the relief the district court granted.       Id. at 515,
    
    106 S.Ct. at 3071.   Moreover, the relief appeared to be in
    
    keeping with Title VII's remedial objectives and thus within
    
    statutory bounds.    At the same time, the Court recognized that
    
    "the parties may [not] agree to take action that conflicts with
    
    or violates the statute upon which the complaint [is] based."
    
    Id. at 526, 106 S.Ct. at 3077.52    In the context of the case
    
    before it, the implementation of the agreement might deprive
    
    firefighters not before the court of their right not to be
    
    subjected to reverse racial discrimination in violation of Title
    VII or the Fourteenth Amendment.        In the event of such violation,
    
    the fact that the decree had been affirmed would not render it
    
    "immune from attack."    Id.
    
    
    
    
         52
            In cases where the Supreme Court has found that a
    consent decree violates the statute under which the relief is
    granted, the Court has not hesitated to set aside the decree.
    See Firefighters Local Union No. 1784 v. Stotts, 
    467 U.S. 561
    ,
    
    104 S. Ct. 2576
    , 
    81 L. Ed. 2d 483
     (1984); System Fed'n No. 91,
    Railway Employes' Dep't v. Wright, 
    364 U.S. 642
    , 
    81 S. Ct. 368
    , 
    5 L. Ed. 2d 349
     (1961).
    
                                       41
         In the case at hand, unlike in Local No. 93, the injury is
    
    immediate.      The district court's decree, if implemented, will
    
    directly injure parties now before the court by depriving them of
    
    their right to vote.     Hence, there is no cause for this court to
    
    defer consideration of the question, which we reach in part II,
    
    supra, whether the decree's remedy is foreclosed by the Voting
    
    Rights Act.53
    
    
    
                                      V.
    
         We dismiss the appeal in No. 94-7081.     See supra note 34.
    
    In No. 94-7024, we vacate the district court's judgment and
    
    remand the case to the three-judge court for further proceedings.
    
    We remand the case to the three-judge court, rather than the
    
    single-judge district court, because this case is pending before
    
    
          53
              The Court's opinion in    Local No. 93 also informs our
    discussion in part IV.A, supra. One of the union's arguments was
    that the consent decree was invalid because it was entered without
    the union's consent. The Court rejected that argument because the
    union had presented no claim for relief to the district court; that
    is, it had no cause of action in its own right and it could not
    prosecute reverse discrimination claims (of its members) that had
    not yet arisen. The union's sole reason for intervening in the
    case, therefore, was to protest the settlement.
    
         The Court indicated that, had the settlement affected the
    union's rights, the decree could not have been entered without its
    consent. As the Court observed:
    
         [P]arties who choose to resolve litigation through settlement
         may not dispose of the claims of a third party . . . without
         that party's agreement.     A court's approval of a consent
         decree between some of the parties therefore cannot dispose of
         the valid claims of nonconsenting intervenors; if properly
         raised, these claims remain and may be litigated by the
         intervenor.
    
    Local No. 93, 478 U.S. at 529, 106 S.Ct. at 3079 (citations
    omitted).
    
    
                                      42
    the three-judge court.   As indicated in part I.D. and note 25,
    
    supra, that court stayed further proceedings in the case solely
    
    to permit the district court, proceeding under section 2 of the
    
    Voting Rights Act, to entertain White's and the Attorney
    
    General's settlement agreement.    Now that their agreement has
    
    been set aside and the state's answer, which denies liability
    
    under both section 2 and section 5 of the Act (as well as the
    
    Equal Protection Clause), stands reinstated in full, see part
    
    I.B. and notes 14 and 15, supra.       The case is in the posture it
    
    occupied when the three-judge court stayed its hand.      Hence,
    
    given the state's denial of liability, the first claim to be
    
    addressed--the claim before the three-judge court--is White's
    
    section 5 claim:   whether the legislative enactments cited in
    
    part I.A., supra, which increased the Supreme Court from seven to
    
    nine justices, divided the Court of Appeals into the courts of
    
    criminal and civil appeals, and then increased their respective
    
    sizes from three to five judges--are invalid for want of section
    
    5 preclearance by the United States Department of Justice.54
    
    
    
         54
            Our disposition of the appeal in No. 94-7024 renders
    unnecessary our consideration of the question whether the remedy
    the district court fashioned, if implemented, would create a
    racial quota system for the selection of Alabama's appellate
    judges. It is also unnecessary for us to consider whether,
    consistent with Alabama's separation of powers doctrine and the
    state's constitution, the Attorney General had the authority
    under Alabama law to bind the legislature, the Governor, and the
    people of Alabama (in whom the power to amend the state's
    constitution resides) to the agreement he reached with White.
    See supra notes 1, 2, 6 and 29. Nor is it necessary for us to
    decide the related question whether, in the interest of comity,
    the district court, using Fed. R. Civ. P. 19 and 23, should have
    made the branches of the Alabama legislature and the Governor
    parties-defendant in this highly sensitive case. See Wright,
    Miller & Kane, 7A Federal Practice and Procedure § 1770.
    
                                      43
    SO ORDERED.
    
    
    
    
                  44