Houston v. Lafayette County MS , 51 F.3d 547 ( 1995 )


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  •                    UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT
    
    
                              _______________
    
                                No. 93-7750
                              _______________
    
    
           BEATRICE HOUSTON, ET AL.,
                                       Plaintiffs-Appellants,
    
           versus
    
           LAFAYETTE COUNTY, MISSISSIPPI, ET AL.,
                                    Defendants-Appellees.
    
           __________________________________________________
    
              Appeal from the United States District Court
                for the Northern District of Mississippi
           __________________________________________________
    
    
                    ON SUGGESTION FOR REHEARING EN BANC
    
                 (Opinion May 4, 1995, 5 Cir., 
    51 F.3d 547
    )
    
    
                              (June 16, 1995)
    
    Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
    
    EMILIO M. GARZA, Circuit Judge:
    
         Treating the Suggestion for Rehearing En Banc as a Petition
    
    for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
    
    No member of the panel nor Judge in regular active service of the
    
    Court having requested that the Court be polled on rehearing en
    
    banc (FRAP and Local Rule 35), the Suggestion for Rehearing En Banc
    
    is DENIED.   However, in the interest of clarity, we withdraw our
    
    prior opinion, Houston v. Lafayette County, 
    51 F.3d 547
     (5th Cir.
    
    1995), and substitute the following:
          Residents of Lafayette County, Mississippi, appeal from the
    
    district court's dismissal of their vote dilution challenge under
    
    § 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988), to the
    
    redistricting plan for county supervisor elections as submitted by
    
    the   County   to    the     United    States      Department           of    Justice    for
    
    preclearance.        The     district      court       found     that    the     plaintiff
    
    residents   had     failed    to    prove       that    the     black    population      was
    
    geographically      compact,       that    black       voters    exhibited       political
    
    cohesion, and that white voters voted in bloc to defeat minority
    
    candidates. We vacate the district court's judgment and remand for
    
    clarification.
    
                                                I
    
          County supervisors in Lafayette County are elected from five
    
    single-member     election     districts.              Black    residents       constitute
    
    approximately       one-quarter       of    the        voting-age       population       and
    
    currently reside throughout the five districts.                     No black resident
    
    has ever been elected to the office of county supervisor.                            Black
    
    residents    have    been    elected       to    sub-county       positions       such    as
    
    constable and board of education member.
    
          At   trial,    plaintiff      residents          used    expert        testimony   and
    
    reports to prove their vote-dilution case. Plaintiffs' expert,
    
    Victoria Caridas, testified that black residents in Lafayette
    
    County could be placed in a majority-minority district, that is, a
    
    district where minority residents constituted a majority of the
    
    eligible voters. To demonstrate the feasibility of such placement,
    
    
                                                2
    she submitted two alternative plans that would achieve a 54-56%
    
    black voting-age majority in one district.
    
          Plaintiffs' expert Dr. Allan Lichtman testified that black
    
    residents of Lafayette County exhibit political cohesion and that
    
    white residents of Lafayette County vote as a bloc to defeat
    
    minority candidates. In support of these conclusions, Dr. Lichtman
    
    testified that he used two statistical methods to analyze Lafayette
    
    County election data:       bivariate ecological regression and extreme
    
    case analysis.1        Dr. Lichtman analyzed fourteen primary elections
    
    using     ecological    regression    and   five     primary   elections   using
    
    extreme case analysis.
    
          The    County's     expert,    Dr.    Ronald    Weber,   also   performed
    
    ecological regression and extreme case analysis on Lafayette County
    
    election data, although he did not analyze the same elections as
    
    Dr. Lichtman had.       Based on his analysis, Dr. Weber concluded that
    
    racial polarization))that is, that black residents vote for black
    
    candidates and white residents vote for white candidates))does not
    
    occur in Lafayette County.
    
          The district court found that the plaintiff residents had not
    
    shown that black residents were sufficiently geographically compact
    
    
    
          1
                Bivariate ecological regression generates predictions of the
    correlation between election results and the race of the residents voting in the
    election. Statisticians use the correlations to estimate the percentages of
    black residents' and white residents' support for particular candidates. Extreme
    case analysis evaluates the actual election choices of voters in precincts whose
    residents are predominantly))80-90%-plus))of one race. Both methods of analysis
    utilize correlation coefficients and measures of statistical significance to
    determine the degree of confidence with which to view the estimates and
    predictions produced by the methods.
    
                                            3
    to allow formation of a majority-minority district.2                  The court
    
    also found that black residents did not exhibit political cohesion
    
    and that white residents did not vote as a bloc to defeat minority
    
    candidates.   Alternatively, the district court found that, even if
    
    the plaintiff residents had proved geographical compactness, black
    
    political   cohesion,    and    white       bloc   voting,    they   had   failed
    
    nonetheless to prove that the totality of the circumstances showed
    
    that the County's plan diluted minority voting strength. Plaintiff
    
    residents appeal the district court's decision, challenging each of
    
    the above findings.
    
                                            II
    
         Section 2 of the Voting Rights Act provides that:                "No voting
    
    qualification or prerequisite to voting or standard, practice, or
    
    procedure shall be imposed or applied by any State or political
    
    subdivision in a manner which results in a denial or abridgement of
    
    the right of any citizen of the United States to vote on account of
    
    race or color . . . ."         42 U.S.C. § 1973; see also Thornburg v.
    
    Gingles, 
    478 U.S. 30
    , 47, 
    106 S. Ct. 2752
    , 2764, 
    92 L. Ed. 2d 25
    
    (1986) ("The essence of a § 2 claim is that a certain electoral
    
    law, practice, or structure interacts with social and historical
    
    conditions to cause an inequality in the opportunities enjoyed by
    
    black and white voters to elect their preferred representatives.").
    
         In   order   to   prove    a   §   2    violation,      a   plaintiff   must
    
    
    
         2
                The district court described the plaintiff residents' plan as a
    "geographic game of gymnastics."
    
                                            4
    demonstrate three preconditions:
    
          First, the minority group must be able to demonstrate
          that it is sufficiently large and geographically compact
          to constitute a majority in a single-member district.
          . . . Second, the minority group must be able to show
          that it is politically cohesive. . . .        Third, the
          minority group must be able to demonstrate that the white
          majority votes sufficiently as a bloc to enable it))in
          the absence of special circumstances, such as the
          minority candidate running unopposed . . .))usually to
          defeat the minority's preferred candidate.
    
    Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766-67.                        Although
    
    Gingles concerned at-large election districts, these preconditions
    
    also apply to challenges to single-member districting schemes.
    
    Growe v. Emison, ___ U.S. ___, ___, 
    113 S. Ct. 1075
    , 1084, 122 L.
    
    Ed. 2d 388 (1993) (extending Gingles preconditions to single-member
    
    district    cases).       If   a   plaintiff     demonstrates       the    Gingles
    
    preconditions, the district court determines whether, under the
    
    totality   of    the   circumstances,      the   plaintiff    has    proven    the
    
    existence of vote dilution under the challenged plan.               In doing so,
    
    the   district    court   applies   factors      identified    by    the    Senate
    
    Judiciary Committee Report accompanying the 1982 amendments to § 2.
    
    Gingles, 478 U.S. at 36-37, 106 S. Ct. at 2759.3
    
    
          3
                These factors are:
          1.    the extent of any history of official discrimination in the state or
          political subdivision that touched the right of the members of the
          minority group to register, to vote, or otherwise to participate in the
          democratic process;
          2.    the extent to which voting in the elections of the state or
          political subdivision is racially polarized;
          3.    the extent to which the state or political subdivision has used
          unusually large election districts, majority vote requirements, anti-
          single shot provisions, or other voting practices or procedures that may
          enhance the opportunity for discrimination against the minority group;
          4.    if there is a candidate slating process, whether the members of the
          minority group have been denied access to that process;
          5.    the extent to which members of the minority group in the state or
    
                                           5
          We review the district court's findings with respect to the
    
    Gingles preconditions and the totality of the circumstances factors
    
    for clear error.      See Westwego Citizens for Better Government v.
    
    City of Westwego, 
    946 F.2d 1109
    , 1118 (5th Cir. 1991) (Westwego
    
    III) (reviewing findings in § 2 case for clear error); Campos v.
    
    City of Baytown, Tex., 
    840 F.2d 1240
    , 1243 (5th Cir. 1988) (same),
    
    cert. denied, 
    492 U.S. 905
    , 
    109 S. Ct. 3213
    , 
    106 L. Ed. 2d 564
    
    (1989). "[A] finding is `clearly erroneous' when although there is
    
    evidence to support it, the reviewing court on the entire evidence
    
    is left with the definite and firm conviction that a mistake has
    
    been made."    Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    ,
    
    573, 
    105 S. Ct. 1504
    , 1511, 
    84 L. Ed. 2d 518
     (1985) (quoting United
    
    States v. United States Gypsum Co., 
    333 U.S. 364
    , 395, 
    68 S. Ct. 525
    , 542, 
    92 L. Ed. 2d 746
     (1948)).
    
    
    
    
          political subdivision bear the effects of discrimination in such areas as
          education, employment and health, which hinder their ability to
          participate effectively in the political process;
          6.    whether political campaigns have been characterized by overt or
          subtle racial appeals;
          7.    the extent to which members of the minority group have been elected
          to public office in the jurisdiction.
          Additional factors that in some cases have had probative value as part of
          plaintiffs' evidence to establish a violation are:
          whether there is a significant lack of responsiveness on the part of
          elected officials to the particularized needs of the members of the
          minority group.
          whether the policy underlying the state or political subdivision's use of
          such voting qualification, prerequisite to voting, or standard, practice
          or procedure is tenuous.
    S. Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.C.C.A.N. 177,
    206-07, quoted in Gingles, 478 U.S. at 36-37, 106 S. Ct. at 2759.
    
                                           6
                                       A
    
         Plaintiff residents contend that the district court clearly
    
    erred in concluding that the black population of Lafayette County
    
    was not sufficiently geographically compact to allow the formation
    
    of a majority-minority district.       They argue that our decision in
    
    Clark v. Calhoun County, Miss., 
    21 F.3d 92
     (5th Cir. 1994),
    
    mandates reversal.
    
         Plaintiff residents challenge the district court's reasoning
    
    that "[t]he potential for increased minority influence that a
    
    majority composition of blacks within one district may afford is
    
    necessarily offset by the significantly diminished power of those
    
    left behind in the overwhelmingly white supervisor districts."       We
    
    agree with the plaintiff's contention.      As we stated in Clark:
    
         [T]he district court's suggestion that the formation of
         plaintiffs' proposed district would dilute the voting
         strength of black citizens in the remaining districts
         does not support its conclusion that the black population
         in [the county] is not sufficiently geographically
         compact. Whenever a majority-black district is created
         to remedy a § 2 violation, the number of black voters in
         the other districts must necessarily be reduced. Indeed,
         without this phenomenon, no majority-black districts
         would ever be created. Because the record in this case
         reflects no loss of influence that is not found in every
         § 2 case, the district court erred in finding that the
         loss of influence supported its conclusion that the black
         population in [the county] was not sufficiently
         geographically compact.
    
    Clark, 21 F.3d at 95; see also Campos, 840 F.2d at 1244 ("The fact
    
    that there are members of the minority group outside the minority
    
    district is immaterial. . . .          Just because not all of the
    
    minorities in [the city] are in the district does not mean that
    
    
                                       7
    Gingles' first part is not satisfied."). Accordingly, the district
    
    court's     reasoning    cannot    support      its   finding   that   the    black
    
    population is not geographically compact.
    
             In Clark, as in this case, the district court rejected the
    
    plaintiffs' proffered districting plan as being too oddly shaped.
    
    Compactness, however, is not as narrow a standard as the district
    
    court construed it to be.         "The first Gingles precondition does not
    
    require some aesthetic ideal of compactness, but simply that the
    
    black population be sufficiently compact to constitute a majority
    
    in a single-member district."          Id. at 95.        Moreover, the question
    
    is not whether the plaintiff residents' proposed district was oddly
    
    shaped, but whether the proposal demonstrated that a geographically
    
    compact district could be drawn.            See id. ("[P]laintiffs' proposed
    
    district is not cast in stone.                  It was simply presented to
    
    demonstrate that a majority-black district is feasible in [the]
    
    county.     If a § 2 violation is found, the county will be given the
    
    first      opportunity   to   develop       a    remedial   plan."     (citations
    
    omitted)).      Thus, although the edges of the plaintiff residents'
    
    proposed      district    look     ragged       in    places,   this   does     not
    
    automatically mean failure to meet the first Gingles precondition.4
    
             As in Clark, the plaintiff residents' proposed district is not
    
    nearly as "bizarre" as those rejected in Shaw v. Reno, ___ U.S.
    
    ___, 
    113 S. Ct. 2816
    , 
    125 L. Ed. 2d 511
     (1993), criticized in
    
    
    
         4
                Plaintiff residents explain in their brief that their proposed plans
    used existing census block lines, which "lend themselves to irregular shapes."
    
                                            8
    Growe, ___ U.S. at ___, 113 S. Ct. at 1085-85, or invalidated in
    
    Vera v. Richards, 
    861 F. Supp. 1304
    , 1345 (S.D. Tex. 1994) (three-
    
    judge panel), appeal filed, 
    63 U.S.L.W. 3388
     (U.S. Oct. 31, 1994).
    
    See Shaw, ___ U.S. at ___, 113 S. Ct. at 2826 (disapproving of
    
    reapportionment plan "so highly irregular that, on its face, it
    
    rationally cannot be understood as [being] anything other than
    
    [race-based].").    Indeed, the compactness of the district in the
    
    plaintiff residents' proposed plan resembles that of many districts
    
    considered constitutionally acceptable by other courts. See, e.g.,
    
    Vera, 861 F. Supp. at 1345 (approving districts the shape of which
    
    was "at least not highly irregular apart from the small racially
    
    distinct appendages"); see also Richard G. Pildes & Richard G.
    
    Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights:
    
    Evaluating Election District Appearances After Shaw v. Reno, 
    92 Mich. L
    . Rev. 483, 542 fig. 2(d), 544 fig. 2(e), 545 fig. 3(a), 547
    
    fig. 3(d) (1993) (explaining that districts of similar compactness
    
    to   that   proposed   in   this   case   satisfy   the   first   Gingles
    
    precondition).     Lastly, the district in the plaintiff residents'
    
    proposed plan is not substantially less compact than districts--
    
    which the County asserts are compact--in the County's 1982 and 1991
    
    plans.   See Defendants' Exhibits 1(a), 1(b), 10, 16 (1982 and 1991
    
    County redistricting maps). The district court should have focused
    
    on the size and concentration of the minority population, rather
    
    than only on the shape of the districts in the plaintiff residents'
    
    specific proposals.    Accordingly, we hold that the district court
    
    
                                        9
    clearly erred in finding that the black population of Lafayette
    
    County was not sufficiently geographically compact, based on its
    
    articulated rationale.      Accordingly, we reverse and remand to the
    
    district court for further findings on this precondition.
    
                                         B
    
         Plaintiff residents further contend that the district court
    
    clearly erred in concluding that they had failed to satisfy the
    
    second and third Gingles preconditions because voting in Lafayette
    
    County   does   not   exhibit   signs    of   racial   polarization.    The
    
    plaintiffs' expert, Dr. Lichtman, used both bivariate ecological
    
    regression and extreme case analysis to show black political
    
    cohesion and white bloc voting.           The district court, however,
    
    viewed the plaintiff residents' proof on these elements as limited
    
    to the extreme case analysis, stating that "[t]o determine voter
    
    preference, . . . Lichtman relied on extreme case analysis."
    
         The district court criticized Lichtman's analysis because
    
    Lichtman could use extreme case analysis only on 80%-plus white-
    
    majority precincts.5       In the district court's view, "[w]ithout
    
    containing any heavily black precincts, Plaintiffs' analysis is
    
    incomplete: it sheds no light on and offers little proof of either
    
    black political cohesiveness or the preferred candidate of blacks."
    
    The district court's commentary on Lichtman's ecological regression
    
    consists   merely     of    a   statement      that    such   studies   are
    
    "nondemonstrative of a minority vote dilution claim" and "did not
    
    
         5
               Lafayette County has no 80%-plus black-majority precincts.
    
                                        10
    encompass other factors and variables that provide further insight
    
    to voting behaviors and patterns."           The district court favored the
    
    statistics   of    Dr.   Weber,   the    defendants'   expert,    because   he
    
    "incorporated other acceptable research methods associated with
    
    history, and the political and social sciences."
    
         Plaintiff residents correctly state that we vacated this
    
    district court's similar approach in Teague v. Attala County, 
    17 F.3d 796
     (5th Cir. 1994).         In Teague, the district court rejected
    
    the plaintiffs' statistics summarily, and we vacated the judgment
    
    because the district court had neither addressed the statistical
    
    evidence nor provided this court with sufficiently particularized
    
    findings such that we could conduct a proper appellate review.
    
    "[I]n making its intensely fact-specific inquiry here, the district
    
    court ought to have discussed appellants' statistical evidence more
    
    thoroughly because that was the principal evidence they offered and
    
    because their statistics had at least surface plausibility."                Id.
    
    at 798.
    
         We conclude that the district court's findings in this case
    
    suffer the same flaws as its findings in Teague.                  First, the
    
    district   court    should    have      considered   Lichtman's   ecological
    
    regression probative of the issues of black political cohesion and
    
    white bloc voting.       See Gingles, 478 U.S. at 52-53, 106 S. Ct. at
    
    2767 (approving of use of extreme case analysis and bivariate
    
    ecological regression analysis to prove racially polarized voting).
    
    Second, the district court should not have rejected summarily the
    
    
                                            11
    plaintiff residents' statistics on the grounds that they "look[ed]
    
    strictly at how, rather than why, people vote the way they do."
    
    While "evidence that divergent voting patterns are attributable to
    
    partisan affiliation or perceived interests rather than race [is]
    
    quite probative on the question of a minority group's future
    
    success at the polls," League of United Latin Am. Citizens v.
    
    Clements, 
    999 F.2d 831
    , 859 (5th Cir. 1993), evidence that lacks
    
    such evaluation of the voters' possible motivations still carries
    
    probative value.      The statistics the plaintiff residents offered
    
    have facial plausibility, and therefore the district court should
    
    have considered them.       Teague, 17 F.3d at 798.6
    
             Moreover, as in Teague, the district court's findings are too
    
    general to allow us to conduct our appellate review.               Id. at 798
    
    ("This court is unable to discharge our appellate function in
    
    voting rights cases without more guidance by the trial court
    
    concerning its credibility choices on the welter of evidence before
    
    
         6
                See also Clark, 21 F.3d at 96 ("The district court, of course, is not
    obliged to accept plaintiffs' statistical evidence as conclusive on the question
    of whether racially polarized voting exists in [the county]. . . . However, when
    the statistics are the principal evidence offered by plaintiffs and when the
    statistics have at least surface plausibility, the district court must ensure
    that it thoroughly discusses its reasons for rejecting that evidence."); Monroe
    v. City of Woodville, 
    897 F.2d 763
    , 764 (5th Cir.) ("Statistical proof of
    political cohesion is likely to be the most persuasive form of evidence, although
    other evidence may also establish this phenomenon. . . . Nevertheless, courts
    must carefully examine statistical evidence of racial bloc voting to determine
    its relevance and probativeness [sic] to a finding of political cohesiveness."
    (citation omitted)), cert. denied, 
    498 U.S. 822
    , 
    111 S. Ct. 71
    , 
    112 L. Ed. 2d 45
    (1990); Westwego Citizens for Better Gov't v. Westwego, 
    872 F.2d 1201
    , 1203-04
    (5th Cir. 1989) (Westwego I) (criticizing district court for failing to note
    substantial contrary evidence and failing to "specify on which evidence it relied
    in support of its conclusions"); Velasquez v. City of Abilene, 
    725 F.2d 1017
    ,
    1020 (5th Cir. 1984) ("Although the trial court is not required to recount and
    discuss every bit of evidence offered to it, it is required to discuss all the
    substantial evidence contrary to its opinion.").
    
    
                                          12
    it.").7     Although the district court may ultimately decide that the
    
    defendants' evidence wins this battle of statistics, the district
    
    court must at the very least thoroughly discuss its choices with
    
    specific references to the evidence proffered. See Teague, 17 F.3d
    
    at 798 (remanding for further clarification because "the district
    
    court findings on the subjects of racial polarization and minority
    
    political cohesion are broad and general and not explicitly tied to
    
    the testimony, although many witnesses were called in the case").8
    
    Accordingly, we vacate the district court's decision and remand for
    
    clarification of the racial-polarization and bloc-voting issues.9
    
                                           C
    
            Given that we remand for further findings on the second and
    
    third Gingles preconditions, we also vacate the district court's
    
    alternative holding that the plaintiff residents did not show that,
    
    under the totality of the circumstances, the districting scheme in
    
    Lafayette County diluted minority votes.          See Clark, 21 F.3d at 97
    
    (vacating and remanding alternative holding because findings on
    
    underlying preconditions were vacated). On remand, if the district
    
        7
                Indeed, at least half of the analysis section of the district court's
    opinion in this case is identical to that in Teague.
         8
                See also Westwego I, 872 F.2d at 1204 ("The district court's findings
    are stated in a conclusory fashion, with virtually no reference to the evidence
    presented at trial. While the district court may in fact have evaluated the
    evidence critically, the court's assessment of the evidence cannot be discerned
    from the record before us."); Velasquez, 725 F.2d at 1021 ("It may be that the
    court below did not consider such evidence substantial or did not credit its
    validity, but we are unable to determine from a silent record the thought
    processes of the court below.").
            9
                Because we remand for additional findings, we do not address
    plaintiffs' challenges to the district court's comments on multiple minority
    candidate races and crossover voting.
    
                                          13
    court determines that the plaintiff residents satisfy the Gingles
    
    preconditions, it should then evaluate their claim under the
    
    totality of the circumstances.          See Johnson v. DeGrandy, ___ U.S.
    
    ___, ___,    114   S.   Ct.   2647,    2657,    129    L.   Ed.   2d   775   (1994)
    
    (explaining that proof of Gingles preconditions is necessary but
    
    not sufficient to establish a § 2 violation).                     We note that a
    
    totality of the circumstances discussion must contain more than the
    
    analysis    provided    in    the     opinion    we     have      reviewed   here.
    
    Specifically, the district court must consider and analyze each of
    
    the Senate Report factors and incorporated in Gingles.                        East
    
    Jefferson Coalition for Leadership & Dev. v. Parish of Jefferson,
    
    
    926 F.2d 487
    , 491 (5th Cir. 1991) ("In evaluating the totality of
    
    the circumstances, the court should consider the [Senate Report]
    
    factors listed . . . ."); see also supra note 1 and accompanying
    
    text (explaining and enumerating Senate Report factors).
    
                                           III
    
         For the foregoing reasons, we VACATE the judgment of the
    
    district court with respect to the Gingles preconditions and the
    
    totality of the circumstances factors.                We therefore REMAND for
    
    additional findings consistent with this opinion.
    
    
    
    ENTERED FOR THE COURT:
    
    
    ________________________________________
         United States Circuit Judge
    
    
    
    
                                           14