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


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  •                                                              PUBLISH
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                         FOR THE ELEVENTH CIRCUIT
    
                              _______________
    
                                No. 96-3547
                              _______________
                     D. C. Docket No. 90-CV-40098-MMP
    
    
    ANITA DAVIS, LEE E. HARRIS, LAFAYE DENISE BIRCH, MALACHI ANDREWS,
    KIM T. LYLES,
                                               Plaintiffs-Appellants,
    
         versus
    
    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.
    
                      ______________________________
    
               Appeal from the United States District Court
                   for the Northern District of Florida
                      ______________________________
                              (April 30, 1998)
    
    
    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
    
         *
          Honorable Maurice B. Cohill, Senior District Judge for the
    Western District of Pennsylvania, sitting by designation.
    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.
    
    
    
                              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
    
                                       2
    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
    
         1
          In a post-numbered multi-member district, each candidate runs
    for a specific (numbered) “post”. This way, incumbents do not have
    
                                      3
    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.       Byn
                                                                         eo d
    
    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
    
    to run against each other, and more focused competition may develop
    between a limited number of candidates running for particular
    posts.
         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
    
                                        4
    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
    
    
    
    
    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).
    
                                     5
    reality” in elections between black and white candidates for the
    
    Second Circuit and Leon County Courts. R5-146 at 18
    
         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
    
         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.2d 1494
    , 1539-41 (11 th Cir. 1994) (en banc)
    (plurality opinion).
    
                                      6
    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 significant
    
    route to the bench in Leon County, election rather than
    
    
    
    
         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.
    
                                        7
    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-
    
    
    
         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. Clemens, 
    999 F.2d 831
    , 876 (5 th Cir. 1993) (en banc)
    (rejecting cumulative and limited voting).
    
                                      8
    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.
    
         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
    
    
    
         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.
         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.
    
                                     9
    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
    
    
    
         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).
    
                                      10
         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
    
    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
    
         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.
    
                                      11
    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 ruling that
    
    her proposed subdistricting remedy is impermissibly race-conscious.
    
    We discuss each issue in turn.
    
                                       12
    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
    
    
         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).
    
                                     13
    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
    
         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
    
                                      14
    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
    
                                       15
    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.
    
         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
    
                                      16
    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
    
         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.
                                      17
         government; moreover, from a pragmatic standpoint,
         federal courts simply lack legal standards for choosing
         among alternatives. Accordingly, we read the first
         threshold factor of Gingles to require that there must be a
         remedy within the confines of the state’s judicial model
         that does not undermine the administration of justice.
         ....
         In 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.
    
    
    
    
                                      18
         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
    
                                      19
    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 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
    
    
    
    
                                     20
    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’s 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
    
    
    
         Because of the importance of this linkage
         16
    
    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.
                                     21
    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 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:
    
    
         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.
    
                                      22
         [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 (plurality opinion).
    
    “By altering the current electoral schemes for the express purpose
    
    of electing more black judges,” the plurality wrote, the plaintiffs in
    
    
         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.
    
                                      23
    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
    
    
                                      24
    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 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
    
    
    
    
         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.
         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).
    
                                      25
    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 1330-31
    
    (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,
    
                                       26
    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 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
    
    
                                      27
    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
    
                                      28
    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 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
    
                                      29
         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
    
                                      30
    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 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
    
    
         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.
    
                                       31
    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
    
         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
    
                                       32
    district court has misread the applicable law. Of course, 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 racially-
    
    
    expect from members of our bar.
    
                                      33
    polarized 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
    , __, 
    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
    
         Moreover, although Gingles, Nipper, and SCLC
         23
    
    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 __, 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
                                       34
    such as Davis must 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 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
    
    
    elected office, wherever found.”).
                                      35
    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
    
                                      36
    agree with the district court 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
    
         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.
                                     37
    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 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
    
    
         Q: Did you conclude that it was possible
         to draw such districts with traditional
         redistricting criteria?
        A: Yes, I did.
    R16 at 104.
                                      38
    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
    
                                       39
    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.
    
    
    
    
                                         40