Davis v. Chiles , 139 F.3d 1414 ( 1998 )


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  •                                    United States Court of Appeals,
    
                                               Eleventh Circuit.
    
                                                   No. 96-3547.
    
     Anita DAVIS, Lee E. Harris, Lafaye Denise Birch, Malachi Andrews, Kim T. Lyles, Plaintiffs-
    Appellants,
    
                                                        v.
    
       Lawton CHILES; Sandra Mortham, Florida Secretary of State; David Rancourt, Director,
    Division of Elections, Florida Department of State, Defendants-Appellees,
    
                                     Jim Smith, Dot Joyce, Defendants.
    
                                                April 30, 1998.
    
    Appeal from the United States District Court for the Northern District of Florida. (No. 90-CV-
    400980-MMP), Maurice M. Paul, Judge.
    
    Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL*, Senior District Judge.
    
            BIRCH, Circuit Judge:
    
            In this case we review plaintiff-appellants' challenge to two at-large judicial election districts
    
    in Florida under Section Two of the Voting Rights Act, 42 U.S.C. § 1973 ("Section Two").
    
    Although the district court found that racially polarized voting plagued the electoral systems at issue,
    
    it granted judgment to the defendant-appellees on the ground that Florida's interest in maintaining
    
    its current system of selecting judges outweighs the plaintiff-appellants' interest in their proposed
    
    remedy. In addition, the district court ruled that it could not accept plaintiff-appellants' remedial
    
    plan because it would involve racially-conscious redistricting without a compelling state purpose.
    
    Because we believe that our Section Two precedents foreclose any significant restructuring of a
    
    state's judicial election system, we affirm.
    
    
       *
         Honorable Maurice B. Cohill, Senior District Judge for the Western District of Pennsylvania,
    sitting by designation.
                                             I. BACKGROUND
    
           In this class action, plaintiff-appellants Anita Davis, et al. ("Davis") attack two at-large
    
    judicial election systems in Florida on the grounds that black voters within these systems suffer from
    
    illegal vote dilution. Although the two districts at issue differ in size and jurisdiction, they share
    
    similar electoral systems and demographics. First, the Second Judicial Circuit ("Second Circuit")
    
    comprises the six counties of Franklin, Gadsen, Jefferson, Leon, Liberty, and Wakulla. All eleven
    
    judges on the Second Circuit are elected in at-large, circuit-wide voting for six-year terms. Within
    
    the Second Circuit, blacks constitute 28.9% of the overall population, 26.1% of the voting age
    
    population, and 25.1% of registered voters. Much like the judges on the Second Circuit, the four
    
    judges on the Leon County Court are elected in at-large, countywide voting for four-year terms. In
    
    Leon County, blacks make up 24.2% of the overall population, 22.2% of the voting age population,
    
    and 21.8% of registered voters. In both election districts, the black population is concentrated in a
    
    few areas, with many black voters residing either within Gadsen County or a few precincts of
    
    Tallahassee. Further, the non-partisan election systems in both the Second Circuit and Leon County
    
    include majority vote requirements, post-numbered systems,1 and staggered terms. In both circuits,
    
    the Governor may fill any mid-term vacancies through appointment of candidates recommended by
    
    a Judicial Nominating Commission. Finally, the Second Circuit Court is a trial court of general
    
    jurisdiction, see Fla. Const. art. V § 6; Fla. Stat. § 26.012, while the Leon County Court is a trial
    
    court of limited jurisdiction, see Fla. Const. art. V § 5; Fla. Stat. § 34.01.
    
    
    
    
       1
       In a post-numbered multi-member district, each candidate runs for a specific (numbered)
    "post". This way, incumbents do not have to run against each other, and more focused
    competition may develop between a limited number of candidates running for particular posts.
    
                                                      2
            Beyond these structural similarities, the two judicial districts also share a history of racially
    
    polarized voting. In the few elections in which black candidates have competed against white
    
    candidates (prior to Davis's initiation of this litigation), no black lawyer has ever won election to
    
    either the Second Circuit or Leon County Courts.2 In each of these black-versus-white elections,
    
    the overwhelming majority of black voters supported the black candidates.3 Notwithstanding this
    
    political cohesion among black voters, however, white voters did not supply enough crossover votes
    
    for the black candidates to prevail, but instead provided overwhelming support to the white
    
    candidates.4 In 1992, for example, black voters in Leon County gave approximately 98% of their
    
    support to a black candidate, but a white candidate who received 68% of the white vote still won the
    
    election. As a result of this dynamic, racial block voting has become "a well-known political
    
    reality" in elections between black and white candidates for the Second Circuit and Leon County
    
    Courts. R5-146 at 18.
    
       2
        Following the district court's initial finding of racially polarized voting in elections for the
    Second Circuit and Leon County Courts, the Florida legislature specially created a new
    judgeship on the Second Circuit, to which the Governor appointed a black lawyer. See infra note
    6. This single black judge has since won reelection, having run without opposition. In addition,
    a black lawyer recently defeated a white candidate for a judgeship in Leon County. Elections of
    minority candidates during the pendency of Section Two litigation, however, have little
    probative value. See Thornburg v. Gingles, 
    478 U.S. 30
    , 76, 
    106 S. Ct. 2752
    , 2779, 
    92 L. Ed. 2d 25
     (1986) ("[T]he court could properly notice the fact that black electoral success increased
    markedly ... after the instant lawsuit had been filed—and could properly consider to what extent
    "the pendency of this very litigation [might have] worked a one-time advantage for black
    candidates in the form of unusual organized political support by white leaders concerned to
    forestall single-member districting.' ") (alteration in original).
       3
        As the district court observed, the record of exogenous black-versus-white elections
    reinforces this conclusion regarding the effect of racially polarized voting on blacks' electoral
    success in these districts.
       4
        We also note that black candidates' lack of electoral success is not simply the result of
    incumbency effects. Whether running for white-held or open seats, black candidates have faced
    similar overwhelming opposition from white voters (prior to the initiation of this litigation).
    
                                                       3
            This description of the voting patterns in the Second Circuit and Leon County receives
    
    further support from a review of "split-preference" elections, in which black and white voters have
    
    preferred different white candidates.5 In the eleven split-preference elections in the record involving
    
    either the Second Circuit or Leon County Courts, black voters have never succeeded in electing their
    
    first choice candidate. In nine of the split-preference elections, the black-preferred candidate lost
    
    outright to the white-preferred candidate. In the tenth split-preference election, the black-preferred
    
    candidate won a primary election over the white-preferred candidate, but the black-preferred
    
    candidate then lost the general election to a white-preferred candidate. In the eleventh case, black
    
    voters' first choice was a black candidate who lost to a white candidate in the primary election; only
    
    after this defeat did a majority of black voters settle on the white candidate who ultimately defeated
    
    the white-preferred candidate in the general election. Thus, black voters lack the ability to play even
    
    a "swing" role within the two election districts, whatever the race of the candidates.
    
            At the same time, black voters cannot rely on the appointment process to offset the effects
    
    of racially polarized voting. Prior to 1992, when the district court first ruled that racial polarization
    
    existed in the districts at issue, no black person had ever received an appointment to either the
    
    Second Circuit or the Leon County Court.6 Moreover, while the appointment process has been a
    
    
       5
       Although evidence drawn from elections involving black candidates is more probative in
    Section Two cases, an analysis of split-preference elections is also appropriate and relevant. See
    Nipper v. Smith, 
    39 F.3d 1494
    , 1539-41 (11th Cir.1994) (en banc ) (plurality opinion).
       6
        Following the district court's initial finding of racial polarization but before the district court
    considered Davis's proposed remedy, the Florida legislature added a seat to the Second Circuit
    (overriding the Supreme Court of Florida), to which the Governor appointed a black lawyer.
    This single appointment, however, does not dispel our view that the appointment process has not
    proven a significant remedy for racially polarized voting in the Second Circuit. See Gingles, 478
    U.S. at 76, 106 S.Ct. at 2779. Moreover, the Governor has not appointed any black judges for
    the Leon County Court.
    
                                                       4
    significant route to the bench in Leon County, election rather than appointment has been the primary
    
    path to judicial office for the Second Circuit.
    
           On June 5, 1990, Davis brought a Section Two suit in the district court against
    
    defendant-appellees Chiles, et al. ("Chiles") to challenge the legality of the at-large election systems
    
    for the Second Circuit and Leon County Courts. Specifically, Davis alleged that illegal vote dilution
    
    tainted elections for judgeships on the two courts. As her proposed remedy, Davis asked the court
    
    to impose a modified subdistricting plan.7 Under this proposed system, the two current at-large
    
    districts would be split into a combination of single- and multi-member subdistricts. In each of the
    
    new, smaller districts, voters would choose individual judges in competitive, post-numbered
    
    elections.8 Then, each successful subdistrict candidate would face a circuit— or county-wide
    
    retention vote by all of the citizens over whom they would exercise jurisdiction.9 Should any
    
    candidate chosen by a subdistrict fail to receive majority support in a retention vote, the Governor
    
    would have the power to fill the empty judgeship as he would any mid-term vacancy.
    
    
    
    
       7
        In addition to her modified subdistricting scheme, Davis also proposed cumulative and
    limited voting systems as alternative potential remedies. Because this court has already rejected
    the elimination of Florida's place-numbering system (as would be required for Davis's
    cumulative and limited voting plans), we decline to discuss these proposed remedies further
    here. See Nipper, 39 F.3d at 1545-46 (plurality opinion) (warning that elimination of
    place-numbering would force incumbent judges to run against each other, thereby destroying
    collegiality), 1547 (Edmondson, J., concurring); see also League of United Latin Am. Citizens v.
    Clements, 
    999 F.2d 831
    , 876 (5th Cir.1993) (en banc ) (rejecting cumulative and limited voting).
    
       8
        As part of her subdistricting proposal, Davis has offered several potential subdistrict designs.
    Because Davis's specific subdistricting plan all raise the same general legal issues, we, like the
    parties, shall discuss them together as if they represented a single remedial scheme.
       9
       Under Davis's proposal, Florida would determine whether it would require judicial
    candidates to reside within the subdistricts in which they wished to seek election.
    
                                                       5
            After conducting a bench trial, the district court ruled on September 3, 1992, that the judicial
    
    election systems in both the Second Circuit and Leon County violated Section Two.10 Specifically,
    
    the district court held that Davis had proven each of the three Gingles factors that the Supreme Court
    
    has held are required to establish a prima facie case of vote dilution regarding a multi-member
    
    district: (1) that the black population in the two systems is sufficiently large and geographically
    
    compact to constitute a majority in a single-member district; (2) that black voters in the two systems
    
    are politically cohesive; and (3) that whites in the at-large districts vote sufficiently as a block to
    
    enable them usually to defeat the black voters' preferred candidate.11 See Gingles, 478 U.S. at 50-51,
    
    106 S.Ct. at 2766-67.12
    
            Shortly after its 1992 ruling, however, the district court set aside its judgment and stayed
    
    further proceedings during the 1993 session of the Florida legislature in order to allow the state to
    
       10
         In addition to the circumstances described above, the district court found that Florida has
    had a history of racially discriminatory voting practices and that continuing socio-economic
    disparities are hindering blacks' participation in the political process in these districts. See
    generally Gingles, 478 U.S. at 45, 106 S.Ct. at 2763 (discussing relevance of these factors for
    analyses of the totality of the circumstances in Section Two cases). The district court, however,
    also noted that the current electoral systems in these districts was not created for any racially
    discriminatory purpose and has not been administered in a racially discriminatory manner.
       11
         In explaining this third factor, the Gingles Court was careful to distinguish "the usual
    predictability of the majority's success," which indicates a systemic problem, from "the mere loss
    of an occasional election." Gingles, 478 U.S. at 51, 106 S.Ct. at 2767.
       12
        In fact, the district court wrote that there is more evidence to support a finding of racially
    polarized voting in this case than there was in Gingles:
    
                   In the districts where violations were found in Gingles, the estimates of black
                   support for black candidates ranged as low as 25 to 36 percent in several
                   elections, while white support for black candidates was often over 30 percent.
                   Moreover, black candidates had previously been elected to the office in question
                   in all but one of the districts where a violation was found in Gingles.
    
            R5-146 at 17 (citations omitted).
    
                                                       6
    develop a remedy.13 Subsequently, the district court extended its stay while it awaited this court's
    
    en banc decision in Nipper. After we delivered our opinions in Nipper and also in Southern
    
    Christian Leadership Conference v. Sessions, 
    56 F.3d 1281
     (11th Cir.1995) (en banc ) ("SCLC "),
    
    the district court conducted further hearings specifically directed at the efficacy and propriety of
    
    Davis's proposed remedy. Then, on July 21, 1996, the district court rejected Davis's remedial plan
    
    and granted judgment for Chiles. Although the district court noted that its second set of hearings
    
    had only reinforced its earlier finding of racially polarized voting, it now held that Davis had not met
    
    her prima facie burden of proposing an appropriate remedy under the first Gingles factor as our en
    
    banc court had recently been interpreted in Nipper and SCLC. Specifically, the district court held
    
    that Florida's interests in (1) maintaining the judicial model established by its Constitution, (2)
    
    preserving the territorial link between its judges' electoral districts and jurisdictions, and (3)
    
    preventing the racial stigmatization of its judiciary collectively outweighed Davis's interest in
    
    adopting her proposed remedy to ameliorate the effects of racially polarized voting. Then, the
    
    district court ruled that it could not accept Davis's modified subdistricting plan because her proposal
    
    constituted racially-conscious redistricting that was not justified by any compelling interest.
    
                                              II. DISCUSSION
    
            Davis challenges both the district court's holding that Florida's interest in preserving its
    
    judicial election system outweighs her interest in a remedy for racially polarized voting and its
    
    
    
    
       13
         In addition, Davis and Chiles jointly requested that the district court stay further
    proceedings until Jan. 1, 1994. As a condition of this joint request, Chiles agreed that the state
    would ensure the creation of a judgeship on the Second Circuit Court and that he would appoint
    a black lawyer to that new position.
    
                                                       7
    ruling that her proposed subdistricting remedy is impermissibly race-conscious. We discuss each
    
    issue in turn.
    
    A. THE BALANCE OF INTERESTS REGARDING DAVIS'S PROPOSED REMEDY
    
             As part of any prima facie case under Section Two, a plaintiff must demonstrate the
    
    existence of a proper remedy. See SCLC, 56 F.3d at 1289, 1294-97; Nipper, 39 F.3d at 1530-31
    
    (plurality opinion), 1547 (Edmondson, J., concurring).14 In assessing a plaintiff's proposed remedy,
    
    a court must look to the totality of the circumstances, weighing both the state's interest in
    
    maintaining its election system and the plaintiff's interest in the adoption of his suggested remedial
    
    plan. See Houston Lawyers' Ass'n. v. Attorney General of Tex., 
    501 U.S. 419
    , 426, 
    111 S. Ct. 2376
    ,
    
    2381, 
    115 L. Ed. 2d 379
     (1991). Although the district court found that black voters in the Second
    
    Circuit and Leon County suffered from racially polarized voting, it concluded that Florida's interests,
    
    as previously described, in (1) protecting the judicial model established by its Constitution, (2)
    
    preserving linkage between its judges' jurisdictions and electoral bases, and (3) avoiding racial
    
    stigmatization of its judicial system outweighed Davis's interest in her proposed remedy. As a
    
    result, the court held that Davis had not demonstrated the existence of an appropriate remedy and
    
    therefore had failed to set forth a Section Two violation under our circuit's jurisprudence. We
    
    review the district court's factual findings regarding Davis's proposed remedy for clear error and its
    
    analysis of law de novo. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2780-81; SCLC, 56 F.3d at 1291.
    
    1. Interference with Florida's Constitution
    
    
    
    
       14
         Our en banc court established this principle as part of our Section Two jurisprudence in our
    interpretation of the first Gingles factor in Nipper. See Nipper, 39 F.3d at 1530-31 (plurality
    opinion); see also Nipper, 39 F.3d at 1547 (Edmondson, J., concurring).
    
                                                      8
             The district court detailed in its opinion a number of ways in which Davis's proposed remedy
    
    would contravene the Florida Constitution. Although Davis does not now contest any of these
    
    constitutional problems under Florida law, we review the ramifications of Davis's proposed remedy
    
    to establish the extent to which Davis's plan would affect Florida's interest in maintaining its judicial
    
    model.
    
             First, Davis's plan would require changes to Article V, Section 10 of the Florida Constitution,
    
    which directs that circuit and county judges be elected "by a vote of the qualified electors within the
    
    territorial jurisdiction of their respective courts." Fla. Const. art. V § 10. Under Florida law, there
    
    is a difference between an "election," which allows for competing candidates, and a "retention" vote
    
    for judicial office, which does not. See Fla. Stat. § 105.011(2) (distinguishing between an "election"
    
    and a "retention" in defining a "judicial office"). Although Davis's plan would permit citizens
    
    residing outside a subdistrict to vote in retentions, it would deny them the right to take part in the
    
    "elections," in contravention of Florida's provision that they can participate in both. See Fla. Stat.
    
    §§ 105.061, 105.051.
    
             Second, the retention language of Article V, Section 10 includes only justices of the Florida
    
    Supreme Court or judges of a district court of appeal, as do Florida's statutes. See Fla. Const. art.
    
    V § 10(a); Fla. Stat. §§ 105.051(2), 105.061. Accordingly, there is no constitutional or statutory
    
    basis in Florida law for the retention system Davis proposes; as the district court observed, Florida's
    
    Constitution and statutes would have to change to allow for Davis's proposed move from
    
    jurisdiction-wide, competitive elections to competitive, subdistrict elections followed by
    
    jurisdiction-wide retentions.
    
    
    
    
                                                       9
            Third, Article V, Section 9 of the Florida Constitution provides that either the Supreme Court
    
    of Florida or the Florida legislature shall define the territories of Florida's judicial circuits. See Fla.
    
    Const. art. V § 9. If a court were to require Florida to accept one of the subdistrict design plans
    
    contained in Davis's subdistricting proposal, it would, by necessity, contravene this provision. This
    
    last constitutional problem is of lesser import, though, because it goes only to Florida's manner of
    
    implementing its judicial model (i.e., how it defines the borders of its circuits) rather than to the
    
    nature of Florida's judicial model itself (which Davis would dramatically change by requiring
    
    subdistricting and circuit and county retentions, above).15
    
             In Nipper, we explained that a state has an interest in maintaining the judicial selection
    
    model established by its constitution. See Nipper, 39 F.3d at 1531 (plurality opinion), 1547
    
    (Edmondson, J., concurring). In rejecting a plan to replace some of Florida's at-large judicial
    
    election districts with single-member subdistricts, a majority of this court joined then-Chief Judge
    
    Tjoflat's holding that:
    
            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.
    
            ....
    
    
       15
         Davis's subdistricting proposal also runs counter to Florida's steady trend "away from
    partisan judicial elections and towards the merit selection and resulting independence of the
    judiciary." Nipper, 39 F.3d at 1544 (plurality opinion). By making judicial candidates
    responsive to smaller (i.e., subdistrict) constituencies, Davis's plan "would, by its very nature,
    alter this course and encourage greater "responsiveness' of judges to the special interests of the
    people who elected them." Id.
    
                                                        10
            In judicial cases ... single-member districts may run counter to the state's judicial model.
    
    Id. at 1531 (plurality opinion) (emphasis added); see id. at 1547 (Edmondson, J., concurring); see
    
    also Holder v. Hall, 
    512 U.S. 874
    , 880, 
    114 S. Ct. 2581
    , 2585, 
    129 L. Ed. 2d 687
     (1994) ("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 to measure the existing voting practice.") (quoted
    
    in Nipper, 39 F.3d at 1531-32 (plurality opinion)). Under Nipper, therefore, this court must
    
    carefully consider the impact that any remedial proposal would have on the judicial model enshrined
    
    in a state's constitution or statutes.
    
            Responding to Chiles' reliance on Nipper, Davis contends that any viable remedy for racially
    
    polarized voting must necessarily effect some change in established electoral practices. Given both
    
    the Nipper precedent and the extent of the interference with Florida's judicial model that Davis's
    
    proposed remedy would require, however, Davis's argument cannot dispel our duty to give weight
    
    to Florida's right to maintain the integrity of its constitutional system. Although we are troubled by
    
    the apparent presumption in favor of status-quo polarization Nipper suggests, precedent requires that
    
    we consider Florida's interest in maintaining its Constitution's judicial selection system in
    
    determining whether Davis has proposed a permissible remedy. We therefore weigh this factor
    
    against imposition of Davis's modified subdistricting plan.
    
    2. Linkage Between Judges' Jurisdictions and Electoral Bases
    
             Territorial linkage between a trial judge's jurisdiction and electoral base serves Florida's
    
    interest in judicial accountability. See SCLC, 56 F.3d at 1296-97; Nipper, 39 F.3d at 1543-45
    
    (plurality opinion). Were a judge to be answerable to an electorate smaller than his jurisdiction, the
    
    
                                                     11
    judge would have an incentive, however unethical, to engage in "home cooking," favoring litigants
    
    from his election district over others. See SCLC, 56 F.3d at 1297. Thus, as the Supreme Court has
    
    observed, "the State's interest in maintaining ... the link between a district judge's jurisdiction and
    
    the area of residency of his or her voters ... is a legitimate factor to be considered by courts among
    
    the "totality of the circumstances' in determining whether a § 2 violation has occurred." Houston,
    
    501 U.S. at 426, 111 S.Ct. at 2381. When, as in this case, there is no evidence that a state is
    
    administering its judicial election system in a racially discriminatory manner, the state's interest in
    
    preserving linkage between judges' jurisdictions and electoral bases is even weightier. See Nipper,
    
    39 F.3d at 1544 (plurality opinion). Moreover, we have suggested that Florida has an interest in
    
    avoiding even the appearance that its judges may harbor "home cooking" biases. See id.16
    
            Well aware of these precedents, Davis argues that her modified subdistricting plan would
    
    protect Florida's linkage interests because each judge elected at the subdistrict level would face a
    
    retention vote by all of the citizens within his jurisdiction. Although we appreciate Davis's creativity
    
    in attempting to surmount the challenges that Nipper and SCLC pose to her suit, we must conclude
    
    that her proposed remedy would substantially break Florida's linkage between its judges'
    
    jurisdictions and electoral bases. First, as a practical matter, Davis's proposed retention votes would
    
    place no real check on judges on the Second Circuit or Leon County Courts. Based on the history
    
    of elections involving incumbents on these two courts, the district court found that "in election
    
    systems limiting non-subdistrict voters to a right to vote for or against retention or for
    
    
    
       16
         Because of the importance of this linkage interest, our circuit has thus effectively ruled out
    the division of at-large judicial election districts into separate subdistricts as a permissible
    remedy. See Nipper, 39 F.3d at 1543-45 (plurality opinion), 1547 (concurring opinion); SCLC,
    56 F.3d at 1296-97.
    
                                                      12
    jurisdiction-wide approval or disapproval after an initial election, the powerful effect of incumbency
    
    in judicial elections would render that right virtually worthless." R8-277 at 43. Since Davis has not
    
    challenged the district court's assessment, and we have found no reason in the record to disagree
    
    with the district court's factual findings concerning incumbency, we agree with the district court that
    
    imposition of Davis's plan "would be akin to compelling the state to disenfranchise every voter
    
    residing in the two jurisdictions, but outside the subdistrict."17 See id. at 44. Second, precedent
    
    requires us to recognize the risk that judges under Davis's proposal would prove unaccountable to
    
    many voters even within their subdistricts because of continued racial block voting:
    
            [I]n the judge's own subdistrict, voters would be disenfranchised: In white subdistricts the
            voting power of blacks would be diluted; in black subdistricts the voting power of whites
            would be diluted. The likely effects of the loss of minority influence would be more
            pronounced in this context of a lone decisionmaker, a trial judge, who would lack input from
            the colleagues elected by the rest of the citizenry of the jurisdiction.
    
    SCLC, 56 F.3d at 1297.18 In sum, Davis's proposed remedy would substantially vitiate Florida's
    
    linkage interest, another significant factor that we must weigh against imposing Davis's proposal.
    
    3. The Appearance of Justice
    
            In Nipper, a plurality of this court insisted that any remedy for racially polarized voting in
    
    judicial elections must not undermine "the administration of justice." Nipper, 39 F.3d at 1546
    
    
    
       17
         In fact, there is reason to believe that the retention votes that Davis proposes would be even
    less meaningful than the record of incumbents in the two districts suggests. Since the retentions
    would be uncontested, even fewer members of the community would have incentive to bring
    incumbent judges' records in office to the attention of voters outside the incumbents' particular
    subdistricts.
       18
         Although we weigh this "subdistrict disenfranchisement" factor as required by Nipper, we
    feel compelled to remark that citizens of the Second Circuit and Leon County would be no more
    disenfranchised by polarized voting under Davis's plan than they are under the current at-large
    system.
    
                                                      13
    (plurality opinion). "By altering the current electoral schemes for the express purpose of electing
    
    more black judges," the plurality wrote, the plaintiffs in Nipper risked "proclaiming that race matters
    
    in the administration of justice." Id. at 1546 (plurality opinion). The plurality thus posed what it
    
    saw as a remedial impossibility:
    
            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 the eyes of
            the public and litigants, at least, justice would not remain colorblind.
    
    Id. Based on this language in Nipper, the district court held that Davis's proposed remedy would
    
    improperly inject race into the administration of justice in the Second Circuit and Leon County.
    
            Although we, too, are concerned that racial politics should not appear to taint Florida's
    
    judicial system, we agree with Davis that her proposed remedy would be no worse in this regard
    
    than a judgment preserving the status quo. Today, voting in judicial elections for the Second Circuit
    
    and Leon County Courts is racially polarized, giving black candidates little hope of achieving
    
    judicial office. Whether or not we adopt Davis's plan, therefore, race would "matter" within these
    
    jurisdictions; Davis's scheme would simply exchange present misgivings about whites' successes
    
    in at-large judicial elections for new qualms from those who would view lawyers elected from
    
    Davis's new subdistricts as representatives of racial groups rather than as neutral jurists.19 Further,
    
    we note that a majority of our court chose not to join the Nipper plurality's discussion of this issue,
    
    so we are not bound by the plurality's concept of a "remedial paradox." In this case, at least, we do
    
    
    
       19
         Indeed, if we were to follow the Nipper plurality's analysis, then we would be compelled to
    rule against all plaintiffs who bring Section Two cases involving judicial elections. Any remedy
    designed to alleviate racially polarized voting is by definition intended to help minority voters
    elect their candidates of choice. Under the Nipper plurality's reasoning, any remedy would
    therefore improperly inject race into a state's judicial system.
    
                                                      14
    not think that fear of injecting race into judicial administration favors either side, so we do not weigh
    
    it as an interest for or against Davis's proposed remedy.20
    
    4. Weighing the Interests
    
            As we observed above, a plaintiff must propose a viable and proper remedy in order to
    
    establish a prima facie case under Section Two. See SCLC, 56 F.3d at 1294-97; Nipper, 39 F.3d at
    
    1530-31 (plurality opinion), 1547 (Edmondson, J., concurring). Before determining whether Chiles
    
    is violating Section Two, therefore, we must consider Florida's interest in maintaining the challenged
    
    electoral system. See Houston Lawyers', 501 U.S. at 426-27, 111 S.Ct. at 2381; SCLC, 56 F.3d at
    
    1294-97; Nipper, 39 F.3d at 1530-31 (plurality opinion), 1547 (Edmondson, J., concurring). Of
    
    primary importance in this case, our adoption of Davis's plan would require us to contravene
    
    Florida's Constitution and to substantially break the link between the affected judges' jurisdictions
    
    and electoral bases. In Nipper and SCLC, we ruled that a state's interest in maintaining its judicial
    
    model and in preserving such linkage outweighed the plaintiffs' interest in ameliorating the effects
    
    of racial polarization in at-large judicial elections. See SCLC, 56 F.3d at 1296-97; Nipper, 39 F.3d
    
    at 1543-45 (plurality opinion).      Based on these precedents, we hold that Davis's modified
    
    subdistricting plan would not be a proper remedy for the racial block voting that exists in the Second
    
    Circuit and Leon County.
    
            Nonetheless, we are troubled by the analysis and the conclusion that our precedents appear
    
    to require in cases such as the one at bar. The Supreme Court has clearly and repeatedly held that
    
    
       20
         We also note that, in this case, the state has already chosen to "inject race" into its
    administration of the Second Circuit Court. After the district court made its initial finding of
    racially polarized voting, the Florida legislature overruled the Supreme Court of Florida to create
    an additional seat on the Second Circuit, to which the Governor appointed a black lawyer (as he
    had promised Davis).
    
                                                       15
    Section Two applies to state judicial elections. See Chisom v. Roemer, 
    501 U.S. 380
    , 
    111 S. Ct. 2354
    , 
    115 L. Ed. 2d 348
     (1991); Houston Lawyers', 501 U.S. at 428, 111 S.Ct. at 2381. Moreover,
    
    the Court has explicitly stated that
    
           [b]ecause the State's interest in maintaining an at-large, district-wide electoral scheme for
           single-member [judicial] offices is merely one factor to be considered in evaluating the
           "totality of the circumstances," that interest does not automatically, and in every case,
           outweigh proof of racial vote dilution.
    
    Houston Lawyers', 501 U.S. at 427, 111 S.Ct. at 2381. In interpreting Chisom and Houston
    
    Lawyers', our circuit in Nipper and SCLC has placed what now seems, in hindsight, to be an
    
    insurmountable weight on a state's interest in preserving its constitution's judicial selection system
    
    and in maintaining linkage between its judges' jurisdictions and electoral bases. Together with
    
    Nipper, SCLC, and the additional case of White v. Alabama, we will with this decision have
    
    disallowed redistricting, subdistricting, modified subdistricting, cumulative voting, limited voting,
    
    special nomination, and any conceivable variant thereof as remedies for racially polarized voting
    
    in at-large judicial elections. See Nipper, 39 F.3d at 1542-46 (plurality opinion) (rejecting
    
    subdistricting, redistricting, and cumulative voting (and effectively precluding limited voting)), 1547
    
    (Edmondson, J., concurring); SCLC, 56 F.3d at 1294-97 (rejecting redistricting and subdistricting);
    
    White v. Alabama, 
    74 F.3d 1058
    , 1072-73 (11th Cir.1996) (invalidating consent decree adding
    
    judgeships to be filled through a special nomination commission). Given such rulings, neither we,
    
    nor Davis, nor Chiles have been able to envision any remedy that a court might adopt in a Section
    
    Two vote dilution challenge to a multi-member judicial election district. Thus, in this circuit,
    
    Section Two of the Voting Rights Act frankly cannot be said to apply, in any meaningful way, to
    
    at-large judicial elections. We recognize that this doctrinal development appears to conflict with
    
    the Supreme Court's initial pronouncements on this subject in Chisom and Houston Lawyers'. This
    
                                                      16
    panel must, however, adhere to the reasoning of the en banc decisions of this court in Nipper and
    
    SCLC until either our circuit decides to revisit this issue en banc or we receive further guidance from
    
    the Supreme Court. See United States v. Woodard, 
    938 F.2d 1255
    , 1258 (11th Cir.1991) (per
    
    curiam) ("The law in this circuit is emphatic that "only a decision by this court sitting en banc or the
    
    United States Supreme Court can overrule' " a prior decision of this court.) (quoting United States
    
    v. Machado, 
    804 F.2d 1537
    , 1543 (11th Cir.1986)).
    
    B. RACIALLY-CONSCIOUS SUBDISTRICTING
    
            Although the district court found that Davis had failed to prove a Section Two violation
    
    because she had not proposed a permissible remedy under Nipper and SCLC, it ultimately did not
    
    rest its judgment on our Section Two precedents. Instead, the district court ruled that Davis's
    
    subdistricting proposal would amount to unconstitutional racial gerrymandering. Because we hold
    
    that there is no statutory Section Two violation, we do not believe that a constitutional analysis of
    
    Davis's proposed remedy should be necessary to our decision. Since the district court explicitly
    
    rested its decision on the constitutional issue, however, we think it necessary and appropriate to
    
    explain why we believe the district court to be in error.
    
            As the district court correctly observed, a court must apply strict scrutiny to predominantly
    
    race-based redistricting or reapportionment plans. See, e.g., Miller v. Johnson, 
    515 U.S. 900
    , 920,
    
    
    115 S. Ct. 2475
    , 2490, 
    132 L. Ed. 2d 762
     (1995). In order to determine whether race is the
    
    predominant factor underlying a particular district's design, a court must find that a district-drawer
    
    has subordinated traditional, race-neutral districting principles (such as geographical compactness,
    
    contiguity, and respect for political subdivisions) to race. See, e.g., id. at 919, 115 S.Ct. at 2489.
    
    A court may base such a finding either on circumstantial evidence regarding a district's shape and
    
    
                                                      17
    demographics or on direct evidence of a district-drawer's purpose. See, e.g., id. at 916, 115 S.Ct.
    
    at 2488.
    
            Applying these rules, the district court relied on the testimony of one of Davis's experts, Dr.
    
    E. Walter Terrie, to hold that Davis's remedy subordinated traditional redistricting criteria to race
    
    and therefore that strict scrutiny should apply.21 Then, because the court believed that Davis could
    
    not satisfy the first Gingles factor as would be required to prove a violation of Section Two, the
    
    court held that Davis could not point to a compelling interest to justify her plan. As a result, the
    
    district court held that Davis's proposal would be unconstitutional under the Equal Protection Clause
    
    of the Fourteenth Amendment.
    
            On appeal, Davis contends that the district court's legal analysis contradicts the Supreme
    
    Court's holding in Gingles that a Section Two plaintiff must show that it would be possible to draw
    
    a majority-black district. Davis also argues that, regardless of the legal rule applied, the district
    
    court erred in concluding that race is the predominant factor underlying Davis's modified
    
    subdistricting plan. We review the district court's findings of fact for clear error, cf. Miller, 515
    
    U.S. at 917, 115 S.Ct. at 2488, and its analysis and application of the law de novo, see Gingles, 478
    
    U.S. at 79, 106 S.Ct. at 2781.
    
            Notwithstanding the polemics regarding race-based redistricting that pervade Chiles' brief
    
    to this court,22 we agree with Davis that the district court has misread the applicable law. Of course,
    
    
       21
        Dr. Terrie based his testimony primarily on a report that he and Jerry Wilson jointly
    authored for the plaintiffs. See generally Pl. Exh. 21.
       22
        Although Chiles repeatedly characterizes Davis as "feckless" in his submissions to this
    court, we do not find such ad hominem attacks to be helpful to our decision. We find it
    surprising and regrettable that Chiles's counsel has chosen to abandon the decorum, and the
    respect for opposing parties and counsel, that we expect from members of our bar.
    
                                                      18
    the district court is correct that no government may use race as a predominant factor in drawing
    
    electoral districts without a compelling interest. See Miller, 515 U.S. at 920, 115 S.Ct. at 2490. The
    
    district court's attempt to apply authorities such as Miller to this Section Two case, however, is
    
    unpersuasive, because the Miller and Gingles /Nipper /SCLC lines address very different contexts.
    
    In Miller, the Supreme Court analyzed bizarrely-drawn Congressional districts in which there was
    
    "powerful evidence" that "every [objective districting] factor that could realistically be subordinated
    
    to racial tinkering in fact suffered that fate." Miller, 515 U.S. at 919, 115 S.Ct. at 2490 (alteration
    
    in original) (quoting Johnson v. Miller, 
    864 F. Supp. 1354
    , 1384 (S.D.Ga.1994)). In Gingles, Nipper,
    
    and SCLC, however, the Supreme Court and this circuit examined at-large voting districts that, at
    
    least on their face, did not reflect racial gerrymandering but instead were alleged to support
    
    raciallypolarized voting. Within this particular context, we have sensibly required that plaintiffs
    
    claiming illegal vote dilution show that minority voters are sufficiently geographically compact to
    
    allow construction of minority-majority districts; otherwise, minority voters' failure to elect their
    
    preferred candidates does not reflect illegal vote dilution but rather the natural result of the
    
    dispersion of the minority group across an area in which white voters constitute a majority. See
    
    Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67; cf. Bush v. Vera, 
    517 U.S. 952
    , 958, 
    116 S. Ct. 1941
    , 1951, 
    135 L. Ed. 2d 248
     (1996) ("Strict scrutiny does not apply merely because redistricting
    
    is performed with consciousness of race.").23 Under Gingles, a plaintiff such as Davis must
    
    
       23
         Moreover, although Gingles, Nipper, and SCLC would not support the judicial imposition of
    an electoral district drawn solely (or predominantly) to reflect racial considerations absent a
    compelling interest, a majority of the Supreme Court has assumed that the need to remedy a
    Section Two violation itself constitutes a compelling interest, see Vera, 517 U.S. at 976-78, 116
    S.Ct. at 1960 (collecting cases), as have both parties to this litigation in their pretrial stipulations,
    see R8-260 ¶ 13 at 4 ("All states have a strong interest in eliminating vote dilution and the past
    exclusion of minorities from elected office, wherever found.").
    
                                                       19
    demonstrate as part of her prima facie Section Two case that the relevant "minority group ... is
    
    sufficiently large and geographically compact to constitute a majority in a single-member district."
    
    Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. In interpreting this Gingles factor in the context of
    
    at-large judicial elections, we have further held that "inquiries into remedy and liability ... cannot
    
    be separated: A district court must determine as part of the Gingles threshold inquiry whether it can
    
    fashion a permissible remedy in the particular context of the challenged system." Nipper, 39 F.3d
    
    at 1530-31 (plurality opinion), 1547 (Edmondson, J., concurring); SCLC, 56 F.3d at 1289, 1294-97
    
    ("[P]laintiffs must show that an appropriate remedy can be fashioned."). Thus, contrary to the
    
    district court's holding, our precedents require plaintiffs to show that it would be possible to design
    
    an electoral district, consistent with traditional districting principles, in which minority voters could
    
    successfully elect a minority candidate. To penalize Davis, as the district court has done, for
    
    attempting to make the very showing that Gingles, Nipper, and SCLC demand would be to make it
    
    impossible, as a matter of law, for any plaintiff to bring a successful Section Two action.
    
            Further, a review of the record reveals that Davis's proposed subdistricts are not based
    
    predominantly on race. Significantly, Chiles has not been able to identify a single traditional
    
    redistricting principle which Davis's subdistricting scheme would violate. Davis's subdistricts are
    
    compact; they are contiguous; and they respect precinct borders. Cf. Shaw v. Reno, 
    509 U.S. 630
    ,
    
    647, 
    113 S. Ct. 2816
    , 2827, 
    125 L. Ed. 2d 511
     (1993) (discussing traditional districting principles)
    
    ("Shaw I "). To refute the seeming inoffensiveness of Davis's plan, Chiles and the district court
    
    point only to testimony by Terrie, an architect of Davis's subdistricts, that "it was his charge to draw
    
    black majority subdistricts in the two "nucleuses within the circuit ... in which black voters tend to
    
    be concentrated.' " R8-277 at 34 (district court opinion). Although we agree with the district court
    
    
                                                       20
    that direct evidence that an election district designed to discriminate against a particular racial group
    
    should trigger strict scrutiny, we do not believe that the record supports the conclusion that such a
    
    purpose motivated Terrie's subdistricting plan. Certainly, race was a factor in Terrie's process of
    
    designing the proposed subdistricts; under Gingles, Nipper, and SCLC, we require plaintiffs to show
    
    that it is possible to draw majority-minority voting districts, and plaintiff Davis and her expert Terrie
    
    wished to meet this burden. Throughout his testimony, though, Terrie insisted that race was not the
    
    predominant factor motivating his design process.24 Further supporting Terrie's characterization of
    
    his work, he testified that he did not "begin in the majority black area and work out," see R16-121,
    
    nor did he maximize the number of majority-minority subdistricts, see id. at 144. In fact, Terrie
    
    testified that it would have been difficult for him to have drawn subdistricts for the Second Circuit
    
    and Leon County Courts without creating at least two majority-minority districts. See id. at 146.
    
    Absent some evidence belying Terrie's characterization of his design process, Chiles cannot rely
    
    solely on criticism of Terrie's motivations to block Davis's proposed remedy. Given Terrie's
    
    
    
       24
            On cross-examination, for example, Terrie discussed the issue:
    
                      Q: Dr. Terrie, would you please, briefly, describe what you were asked to do in
                      this case?
    
                      A: Yes. I was asked to see whether it was possible, utilizing traditional
                      redistricting criteria, to draw a plan that would include at least one
                      majority-minority district within the Second Judicial Circuit and also within Leon
                      County itself.
    
                      Q: Did you conclude that it was possible to draw such districts with traditional
                      redistricting criteria?
    
                      A: Yes, I did.
    
              R16 at 104.
    
                                                       21
    testimony, together with the unchallenged adherence of Davis's proposed plan to traditional
    
    redistricting criteria, we conclude that the district court committed clear error in finding that Davis's
    
    proposed remedy constitutes a racial gerrymander. Thus, we hold both that the district court
    
    misinterpreted the law regarding the role of race in assessing permissible remedies for violations of
    
    Section Two and that the district court incorrectly assessed the role that race played in the drawing
    
    of Davis's proposed subdistricts.
    
                                             III. CONCLUSION
    
            In this case, Davis has presented persuasive evidence of racially polarized voting in elections
    
    for judgeships on the Second Circuit and Leon County Courts. Nonetheless, Davis has failed to
    
    propose a permissible remedy under our precedents. We agree with Davis that the district court
    
    erred in its holdings that Davis's modified subdistricting plan would involve unconstitutional racial
    
    gerrymandering and inject race into Florida's judicial administration. Nonetheless, our precedents
    
    compel us to conclude that Florida's interests in maintaining its Constitution's judicial election model
    
    and preserving linkage between its judges' jurisdictions and electoral bases, considered together,
    
    outweigh Davis's interest in the adoption of her proposed remedy. As a result, we hold that Davis
    
    has not proven a violation of Section Two. Therefore, we AFFIRM the district court's judgment in
    
    Chiles's favor.
    
            FAY, Senior Circuit Judge, concurring specially:
    
            I concur in sections I, IIA, 1 through 4, of the opinion for the court. It seems to me that
    
    Section IIB is simply unnecessary and therefore dicta with which I disagree but find no need to
    
    discuss. I do concur in footnote 22.
    
    
    
    
                                                       22
    

Document Info

DocketNumber: 96-3547

Citation Numbers: 139 F.3d 1414

Filed Date: 4/30/1998

Precedential Status: Precedential

Modified Date: 4/14/2017

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