Clark v. Calhoun County, MS ( 1996 )


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  •               IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
    
    
                                No. 95-60251
    
    
    
    JAMES H. CLARK; BARBARA BROWN,
                                               Plaintiffs-Appellants,
    
                                    versus
    
    CALHOUN COUNTY, MISSISSIPPI;
    CALHOUN COUNTY DEMOCRATIC EXECUTIVE COMMITTEE,
    By and Through its Chairperson, J. R. Denton;
    CALHOUN COUNTY REPUBLICAN EXECUTIVE COMMITTEE,
    By and Through its Chairperson, Henry Bailey;
    CALHOUN COUNTY ELECTION COMMISSIONS,
    By and Through its Chairperson, R.W. Bounds,
                                            Defendants-Appellees.
    
    
    
    
              Appeal from the United States District Court
                for the Northern District of Mississippi
    
    
                                July 9, 1996
    
    Before LAY*, HIGGINBOTHAM and STEWART, Circuit Judges.
    
    HIGGINBOTHAM, Circuit Judge:
    
         This case comes before us for the second time, raising the
    
    question whether the plaintiffs have proven, under the totality of
    
    the circumstances, that Calhoun County, Mississippi's districting
    
    plan for county officials violates Section 2 of the Voting Rights
    
    Act of 1965, 42 U.S.C. § 1973(a).   The district court held that the
    
    plan did not violate the Act.        We disagree.    We reverse the
    
    
    
    
              Circuit   Judge      of the Eighth Circuit, sitting by
    designation.
    judgment    of   the    district      court    and   render    judgment     for   the
    
    plaintiffs.
    
                                             I.
    
         The basic facts of this case are fully described in our
    
    decision rendered the first time this case was before us.                         See
    
    Clark v. Calhoun County, Mississippi, 
    21 F.3d 92
     (5th Cir. 1994).
    
    To briefly summarize those facts:             The plaintiffs, James Clark and
    
    Barbara Brown, are black residents and registered voters in Calhoun
    
    County, Mississippi.            The county's districting plan divides the
    
    county into      five    districts,     each    of    which    elects   one   county
    
    supervisor,      one    board    of   education      member,   and   one    election
    
    commissioner.
    
         Following the release of the 1990 census, the County Board of
    
    Supervisors hired Three Rivers Development and Planning District of
    
    Pontotoc, Mississippi to develop a redistricting plan for the
    
    county.    The Board also appointed a biracial committee made up of
    
    one black resident and one white resident from each election
    
    district to supervise Three Rivers' work.                Three Rivers developed
    
    two redistricting plans, one of which the Board of Supervisors
    
    tentatively adopted. The biracial committee approved the plan, and
    
    the Board     formally     adopted     the    plan    after    a   public   hearing.
    
    Pursuant to § 5 of the Voting Rights Act, the Department of Justice
    
    subsequently precleared the proposed redistricting plan.
    
         According to the 1990 census, black residents comprise 23% of
    
    the county's voting age population and 27% of its population
    
    overall.    Under the plan adopted by the Board of Supervisors, the
    
    
                                              2
    black    population      is    divided     roughly    equally     among     the    five
    
    districts, ranging from a low of 19% of the population in District
    
    3 to a high of 42% in District 4.
    
           The plaintiffs sued the County, the Calhoun County Democratic
    
    Executive    Committee,        the    Calhoun     County    Republican      Executive
    
    Committee,    and    the      Calhoun    County    Election      Commission.        The
    
    plaintiffs alleged that the County's redistricting plan violated
    
    § 2 of the Voting Rights Act, as well as the Fourteenth and
    
    Fifteenth Amendments to the U.S. Constitution.                         The plaintiffs
    
    sought damages, declaratory, and injunctive relief, along with
    
    attorneys' fees.
    
           After a bench trial, the district court granted judgment to
    
    the County, concluding that the plaintiffs had failed to prove that
    
    a geographically compact black majority district could be created.
    
    In    addition,    the   court       concluded    that   under    the    totality    of
    
    circumstances, the plaintiffs had failed to prove a § 2 violation.
    
    The     district    court's      written       opinion     did   not     address    the
    
    plaintiff's constitutional claims, but the plaintiffs did not
    
    appeal the dismissal of those causes of action.                     We vacated the
    
    district court's judgment and remanded for further proceedings on
    
    the plaintiff's statutory claim.               See Clark v. Calhoun County, 
    21 F.3d 92
     (5th Cir. 1994).
    
           On remand, the parties submitted additional evidence regarding
    
    the feasibility of drawing a geographically compact majority-
    
    minority district and the existence of racially-polarized voting in
    
    the county. After reviewing the evidence, the district court found
    
    
                                               3
    that a geographically compact black majority district could be
    
    created and that racially polarized voting existed in the county.
    
    Noting that the plaintiffs had satisfied the three preconditions
    
    from    Thornburg      v.    Gingles,        
    478 U.S. 30
         (1986),   the    court
    
    reconsidered     its        findings     regarding          the     totality   of    the
    
    circumstances.      Without elaboration, the court determined that its
    
    earlier findings were not erroneous and concluded that "when all
    
    the circumstances are considered, 'plaintiffs have not shown that
    
    as a result of the adopted supervisory plan, they do not have equal
    
    opportunity to participate in the political process and to elect
    
    candidates of their choice.'"                The plaintiffs appeal the district
    
    court's judgment.
    
                                                 II.
    
           Section 2 of the 1965 Voting Rights Act prohibits any voting
    
    practice or procedure that "results in a denial or abridgment of
    
    the right of any citizen of the United States to vote on account of
    
    race or color."        42 U.S.C. § 1973(a).               Thornburg v. Gingles, 
    478 U.S. 30
    ,   49-51    (1986),        set        forth    three    preconditions     to
    
    establishing a § 2 violation:            The plaintiff must demonstrate that
    
    1) the minority group is sufficiently large and geographically
    
    compact to constitute a majority in a single-member district; 2)
    
    the minority group is politically cohesive; and 3) the white
    
    majority votes sufficiently as a bloc to enable it usually to
    
    defeat the minority's preferred candidate. Id. at 50-51; Concerned
    
    Citizens for Equality v. McDonald, 
    63 F.3d 413
    , 416 (5th Cir.
    
    1995).     These preconditions apply to challenges to both single-
    
    
                                                  4
    member and multi-member districting schemes.                 Growe v. Emison, 
    113 S. Ct. 1075
    ,     1084   (1993)     (applying        Gingles     to   single-member
    
    districts).
    
          The   three     Gingles     preconditions        are     necessary     but   not
    
    sufficient to prove vote dilution.              Johnson v. DeGrandy, 
    114 S. Ct. 2647
    , 2657 (1994).       If those preconditions are established, the
    
    plaintiffs     must   further     prove       that   "under     the   'totality    of
    
    circumstances,' they do not possess the same opportunities to
    
    participate in the political process and elect representatives of
    
    their choice enjoyed by other voters."                  League of United Latin
    
    American Citizens v. Clements, 
    999 F.2d 831
    , 849 (5th Cir. 1993)
    
    (en banc), cert. denied, 
    114 S. Ct. 878
     (1994); see 42 U.S.C.
    
    §   1973(b).      Although   unlawful         vote   dilution    "may   be   readily
    
    imagined and unsurprising" where the three Gingles preconditions
    
    exist, that conclusion "must still be addressed explicitly, and
    
    without isolating any other arguably relevant facts from the act of
    
    judgment."      Johnson, 114 S.Ct. at 2657.
    
          We have previously explained that "courts are guided in this
    
    [totality-of-circumstances] inquiry by the so-called Zimmer factors
    
    listed in the Senate Report" accompanying the 1982 Amendments to
    
    the Voting Rights Act.          LULAC, 999 F.2d at 849.               Those factors
    
    include:
    
          [T]he history of voting-related discrimination in the
          State or political subdivision; the extent to which
          voting in the elections of the States or political
          subdivision is racially polarized; the extent to which
          the State or political subdivision has used voting
          practices or procedures that tend to enhance the
          opportunity for discrimination against the minority
          group, such as unusually large election districts,
    
                                              5
          majority vote requirements, and prohibitions against
          bullet voting; the exclusion of members of the minority
          group from candidate slating processes; the extent to
          which minority group members bear the effects of past
          discrimination in areas such as education, employment,
          and health, which hinder their ability to participate
          effectively in the political process; the use of overt or
          subtle racial appeals in political campaigns; and the
          extent to which members of the minority group have been
          elected to public office in the jurisdiction.
    
    Gingles, 478 U.S. at 44-45.       In addition, "evidence demonstrating
    
    that elected officials are unresponsive to the particularized needs
    
    of the members of the minority group and that the policy underlying
    
    the State's or the political subdivision's use of the contested
    
    practice or structure is tenuous may have probative value."          Id. at
    
    45.
    
          Noting that the district court found on remand that the three
    
    Gingles preconditions were satisfied, the plaintiffs challenge the
    
    district   court's   conclusion    that,   under   the   totality   of   the
    
    circumstances, the plaintiffs failed to prove a § 2 violation.           The
    
    plaintiffs refer to our statement in Clark that "'it will be only
    
    the very unusual case in which the plaintiffs can establish the
    
    existence of the three Gingles factors but still have failed to
    
    establish a violation of § 2 under the totality of circumstances.'"
    
    21 F.3d at 97 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd.
    
    of Educ., 
    4 F.3d 1103
    , 1135 (3d Cir. 1993)) (emphasis added); see
    
    also NAACP v. City of Niagara Falls, New York, 
    65 F.3d 1002
    , 1019
    
    n.21 (2d Cir. 1995).
    
          We initially note that our review is hampered by the district
    
    court's    curt   discussion      regarding   the    totality       of   the
    
    circumstances. In our previous opinion, we instructed the district
    
                                         6
    court on remand to "reconsider its findings with respect to the
    
    totality of circumstances."        21 F.3d at 97.        We further instructed
    
    the   district   court    that    in   cases    where       the   three    Gingles
    
    preconditions    have    been    established,       it   "'must     explain   with
    
    particularity why it has concluded, under the particular facts of
    
    that case, that an electoral system that routinely results in white
    
    voters voting as a bloc to defeat the candidate of choice of a
    
    politically cohesive minority group is not violative of § 2 of the
    
    Voting Rights Act.'"       21 F.3d at 97 (quoting Jenkins, 4 F.3d at
    
    1135).   Despite these instructions, the district court readopted
    
    its earlier findings without elaboration and summarily concluded
    
    that the existence of racially polarized voting in the county was
    
    not sufficient to tip the balance in favor of the plaintiffs.                 This
    
    discussion is far from the particularized explanation that we
    
    expected.    Normally,     we    would     remand    this    case    for   further
    
    consideration.     However, we need not do so where the record
    
    establishes unlawful vote dilution.          Harvell v. Blytheville School
    
    Dist. #5, 
    71 F.3d 1382
    , 1390 (8th Cir. 1995) (en banc), cert.
    
    denied, __ S.Ct. __ (1996).         We are persuaded that the district
    
    court's findings from its first opinion regarding the totality of
    
    the circumstances, which the court readopted on remand, support the
    
    conclusion that Calhoun County's redistricting scheme violates § 2
    
    of the Voting Rights Act.        We do not suggest that the totality of
    
    the circumstances is an empty formalism or that clearing the
    
    Gingles hurdles preordains liability.          To the contrary, this final
    
    inquiry can be powerful indeed.          At the same time, it is more than
    
    
                                           7
    an intuitive call of the trial judge; the trial court must anchor
    
    its judgment in evidence.
    
                                           A.
    
          In its first opinion, the district court found that racially
    
    polarized    voting    existed   in    Calhoun    County,   but   the     court
    
    discounted its importance due to the success of black candidates
    
    seeking election to several municipal and county offices.                     The
    
    court noted that black residents had been elected to the board of
    
    aldermen in two predominately white municipalities in the county
    
    and that one black resident, who ran unopposed, had been elected
    
    election commissioner in one of the predominately white districts.
    
          On appeal, we concluded that the black electoral successes
    
    cited by the district court had "limited relevance."              21 F.3d at
    
    96.   Citing Gingles, we explained that "the election of some black
    
    candidates does not negate a § 2 claim and does not establish that
    
    polarized voting does not exist," particularly when the election is
    
    unopposed.    Id.     We further explained that exogenous elections--
    
    those not involving the particular office at issue--are less
    
    probative than elections involving the specific office that is the
    
    subject of the litigation.       Id.   at 97.    We instructed the district
    
    court on remand to "accord greater weight to the virtual absence of
    
    black electoral success in county-wide elections as opposed to
    
    their limited electoral success in municipal elections."                Id.
    
          On remand, the district court reaffirmed its finding of
    
    racially polarized voting but construed our instruction as an
    
    "invitation to find a section 2 violation simply because plaintiffs
    
    
                                           8
    have prevailed on the Gingles factors."           Correctly noting that the
    
    Supreme Court in Johnson had expressly rejected that reading of
    
    § 2, the district court declined our "invitation."
    
         As we made clear prior to Johnson, the existence of the three
    
    Gingles preconditions is necessary but not sufficient to prove a
    
    § 2 violation.    See LULAC, 999 F.2d at 849.        However, the existence
    
    of racially polarized voting and the extent to which minorities are
    
    elected to public office remain the two most important factors
    
    considered in the totality-of-circumstances inquiry.            See Gingles,
    
    478 U.S. at 48 n.15; Westwego Citizens for Better Government v.
    
    City of Westwego, 
    946 F.2d 1109
    , 1122 (5th Cir. 1991) (Westwego
    
    III).
    
         In this case, the district court's finding that racially
    
    polarized voting exists is beyond question.             In addition to the
    
    "uncontradicted" statistical evidence from the original trial, Dr.
    
    Richard   Engstrom,    a   Professor       of   Political   Science    at   the
    
    University of New Orleans, analyzed four, multiracial elections in
    
    Calhoun County.       Using both regression and homogenous precinct
    
    analysis, Dr. Engstrom concluded that a "consistent relationship"
    
    existed between a voter's race and his voting preference in the
    
    four exogenous elections.       For example, in the 1991 Democratic
    
    primary for Constable, the black candidate received an estimated
    
    71.6% of the black vote but only 7.8% of the white vote.              Although
    
    statistical evidence is not conclusive, see Clark, 21 F.3d at 96,
    
    the record here supports no other conclusion but that racially
    
    polarized voting exists in Calhoun County.              Indeed, the County
    
    
                                           9
    offers no other explanation of the divergent voting patterns.                See
    
    Uno v. City of Holyoke, 
    72 F.3d 973
    , 983 (1st Cir. 1995).
    
         Moreover, the record demonstrates that black citizen have been
    
    unsuccessful in seeking public office.          The County emphasizes that
    
    black    residents    have    been   elected    as     aldermen   in     several
    
    municipalities and, in one case, as an election commissioner.                 We
    
    previously   addressed       the   probative   value    of   these     electoral
    
    successes and noted their "limited relevance."                21 F.3d at 96.
    
    Even so, "the election of a few minority candidates does not
    
    necessarily foreclose the possibility of dilution of the black
    
    vote."     S. Rep. No. 417, 97th Cong., 2d Sess. 29 n.115 (1982)
    
    (internal quotation omitted), reprinted in 1982 U.S.C.C.A.N. 177,
    
    207 n.115; see also Gingles, 478 U.S. at 76; City of Niagara Falls,
    
    65 F.3d at 1009; Harvell, 71 F.3d at 1390.           Indeed, these isolated
    
    victories, one of which occurred in a race with no opponent, do not
    
    mitigate the force of the district court's finding that "[i]n this
    
    century, no black candidate has been elected in Calhoun County as
    
    supervisor, justice court judge, constable, sheriff, circuit clerk,
    
    chancery clerk, tax assessor, superintendent of education, school
    
    board member, coroner, county attorney, state senator, or state
    
    representative."       Moreover, there is no suggestion that this
    
    striking lack of electoral success is due to low voter turnout or
    
    black support for non-minority candidates.             Cf. Alonzo v. City of
    
    Corpus Christi, 
    68 F.3d 944
    , 947 (5th Cir. 1995) (per curiam).
    
         The County responds that few black residents have run for
    
    county office.       As an initial matter, we note that the County
    
    
                                           10
    overstates the political reality.     The district court found in its
    
    first opinion that "since 1980 blacks have sought the positions of
    
    justice court judge, constable, sheriff, and school board member."
    
    More importantly, however, this argument begs the ultimate question
    
    whether blacks "possess the same opportunities to participate in
    
    the political process and elect representatives of their choice
    
    enjoyed by other voters."     That few or no black citizens have
    
    sought public office in the challenged electoral system does not
    
    preclude a claim of vote dilution.      Westwego Citizens For Better
    
    Government v. City of Westwego, 
    872 F.2d 1201
    , 1208 n.9 (5th Cir.
    
    1989) (Westwego I).   "To hold otherwise would allow voting rights
    
    cases to be defeated at the outset by the very barriers to
    
    political participation that Congress has sought to remove."     Id.
    
         In short, the presence of racially polarized voting and the
    
    virtually complete absence of black elected officials in county
    
    offices provides striking evidence of vote dilution in Calhoun
    
    County.
    
                                     B.
    
         The Senate Report includes as one factor "the extent to which
    
    the State or political subdivision has used voting practices or
    
    procedures that tend to enhance the opportunity for discrimination
    
    against the minority group, such as unusually large election
    
    districts, majority vote requirements, and prohibitions against
    
    bullet voting."   In its original opinion, the district court found
    
    that Calhoun County did not employ large election districts or an
    
    anti-single shot provision.   The court found, however, that state
    
    
                                     11
    law requires that elections be conducted by majority vote.                            See
    
    Miss. Code Ann. § 23-15-305.                 Although the district court noted
    
    that abolishing the majority vote requirement might increase the
    
    possibility of electoral success for black candidates, it concluded
    
    that    the      majority      vote     requirement       was        not   "inherently
    
    discriminatory."
    
           We agree with the plaintiffs that the district court misjudged
    
    the weight to be accorded this finding.                        First, even if the
    
    majority vote        requirement       is    not   "inherently        discriminatory,"
    
    Congress has included it as one factor to consider as part of the
    
    totality-of-circumstances inquiry. We are not free to second-guess
    
    Congress' judgment regarding its importance.                    See Westwego I, 872
    
    F.2d at 1212.
    
           Second,      under    certain     circumstances,         the    majority      vote
    
    requirement "can operate to the detriment of minority voters" and
    
    negate their political strength.                  Westwego III, 946 F.2d at 1113
    
    n.4.    Where more than two candidates run for a particular office,
    
    the majority vote requirement ensures that no candidate supported
    
    by only a minority, racial or otherwise, of the populace will
    
    succeed.       In   the     presence    of    racially    polarized        voting,    the
    
    majority vote requirement permits a white majority that scattered
    
    its    votes   among      several     white       candidates    in     a   election   to
    
    consolidate its support behind the remaining white candidate in the
    
    run-off    election,         thereby        defeating    the     minority-supported
    
    candidate.     See Major v. Treen, 
    574 F. Supp. 325
    , 351 n.32 (E.D. La.
    
    1983) (three judge panel); see also Zimmer v. McKeithen, 
    485 F.2d 12
    1297, 1306 (5th Cir. 1973) (en banc) (noting that majority vote
    
    requirement tends "to submerge a political or racial minority"),
    
    aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 
    424 U.S. 636
     (1976) (per curiam).
    
         This effect is more than a mere theoretical possibility, at
    
    least in Calhoun County.        The record here discloses that on at
    
    least one occasion, the majority vote requirement operated to the
    
    detriment of black voters in Calhoun County by preventing the
    
    nomination of a black citizen as the Democratic candidate for
    
    constable in Calhoun County.         In the first primary, the black
    
    candidate, Tommy Pittman, finished first among all candidates, the
    
    rest of whom were white.      Pittman did not receive a majority of the
    
    votes cast, however.      In the run-off, Pittman lost.
    
                                        C.
    
         Two factors from the Senate Report focus on the effect of past
    
    discrimination on the plaintiffs' ability to participate in the
    
    political process: 1) the history of voting-related discrimination
    
    in the State or political subdivision, and 2) the extent to which
    
    minority group members bear the effects of past discrimination in
    
    areas such as education, employment, and health, which hinder their
    
    ability    to   participate   effectively   in   the   political     process.
    
    Gingles, 478 U.S. at 44-45.          In its pre-remand opinion, the
    
    district court found that "in the past blacks were prevented from
    
    exercising their right to vote by intentionally discriminatory
    
    mechanisms."     Nevertheless, the court found this factor to be of
    
    "limited    importance"   because   "past   history    cannot   be    forever
    
    
                                        13
    faulted for failures at the election box."              The district court
    
    explained that at some point past discrimination must take on
    
    "diminished importance."         In addition, the district court found
    
    that "the socio-economic status of blacks is significantly lower
    
    than whites in Calhoun County" but questioned without elaboration
    
    the weight to be assigned to this finding.
    
         The long and unhappy history of discrimination in Mississippi
    
    requires no protracted discussion.         Calhoun County itself did not
    
    desegregate its schools until 1969.           Nor need we tarry long in
    
    recounting the socioeconomic disparity that continues to exist in
    
    Calhoun   County.       The   plaintiffs     produced   1990    census   data
    
    disclosing, among other facts, that the per capita income of black
    
    residents in Calhoun County is less than half that of white
    
    residents.
    
         The County concedes, as it must, that Calhoun County has a
    
    history of racial discrimination and that socioeconomic differences
    
    between   white   and   blacks    continue    to   exist   in   the   County.
    
    Nevertheless, the County argues that the plaintiffs have not
    
    established a causal nexus between such past discrimination or
    
    socioeconomic disparities, on the one hand, and any decreased level
    
    of black political participation, on the other.
    
         In LULAC, we explained that while Congress has not insisted
    
    upon proof of a causal nexus between socioeconomic status and
    
    depressed political participation, Congress "did not dispense with
    
    proof that participation in the political process is in fact
    
    depressed among minority citizens."          999 F.2d at 867; see S. Rep.
    
    
                                         14
    417 at 29 n.114, reprinted in 1982 U.S.C.C.A.N. at 207 n.114.
    
    Indeed,      in   that   case,   we     held   that    proof   of   socioeconomic
    
    disparities and a history of discrimination "without more" did not
    
    suffice to establish the two Senate Report factors.                    999 F.2d at
    
    867.
    
           The   district    court    did    not    make   any   finding    that    black
    
    political participation was depressed in Calhoun County.                       Nor do
    
    the plaintiffs on appeal point to any evidence in the record
    
    showing that black political participation compares unfavorably to
    
    that of white residents in the county.                  The plaintiffs' expert
    
    witness, Cheri McKinless, did testify at the first trial that
    
    individuals of lower socioeconomic status were not as likely to
    
    vote as individuals of higher socioeconomic status.                    However, she
    
    based her conclusion on political science literature, not "an
    
    'intensely local appraisal' of the social and political climate" of
    
    Calhoun County.          Id.     Indeed, in LULAC, we rejected similar
    
    "armchair speculation" as insufficient to establish that "minority
    
    voters in this case failed to participate equally in the political
    
    processes."        Id.
    
           In short, we are not persuaded that the district court erred
    
    in     disregarding      the     history       of   past     discrimination       and
    
    socioeconomic disparity in Calhoun County.
    
                                              D.
    
           In its pre-remand opinion, the district court found that
    
    Calhoun County officials were responsive to concerns of its black
    
    residents.        The court explained:
    
    
                                              15
         First, it is unrefuted that the County has recently paved
         and/or    repaved    roads   in    predominately    black
         neighborhoods. . . . Second, it has been stipulated that
         blacks hold appointive positions on approximately one-
         third of the County Boards and Commissions.          This
         represents, in this court's mind, a concern that blacks
         be afforded a voice in matters affecting the citizenry.
         Finally, the County, in appointing the biracial committee
         and holding public hearings on the proposed redistricting
         plan, made a concerted effort to comply with the mandates
         of the Voting Rights Act. From the beginning, Calhoun
         County recognized the need for redistricting and
         attempted to procure Section 2 compliance via an open,
         public forum.     The black members appointed to the
         biracial committee were, according to the testimony, well
         respected and influential citizens in the black
         community; some, like Ms. Rose, were college educated.
         These are not the actions of a county which is oblivious
         to the needs and concerns of the black community or
         disrespectful of the mandates of the Voting Rights Act.
    
         With one caveat, we find no merit to the suggestion that the
    
    district court's finding of responsiveness is clearly erroneous.
    
    Other governmental entities have done more than Calhoun County to
    
    demonstrate their responsiveness to minority concerns.   See, e.g.,
    
    City of Niagara Falls, 65 F.3d at 1023 (noting that the city, inter
    
    alia, established an affirmative action task force, adopted a fair
    
    housing law, and established a minority business loan fund).
    
    Nevertheless, the County's road-paving and its use of a biracial
    
    commission to approve the current redistricting plan support the
    
    finding that the County is responsive to the needs of the black
    
    community.   The formation of the biracial commission in particular
    
    demonstrates the County's sensitivity to the concerns of its black
    
    citizens.    Although the record discloses that Three Rivers did not
    
    inform the commission that it was possible to create a majority-
    
    minority district, that fact alone does not undermine the district
    
    court's finding.    Indeed, there is no suggestion that the anyone
    
                                      16
    deliberately misled that commission or that the commission served
    
    only to rubberstamp redistricting plans already approved by the
    
    board of supervisors.
    
           We part company with the district court, however, regarding
    
    its reliance on black membership on county commissions. The number
    
    of minority members on county commissions is a poor barometer of
    
    the county's responsiveness to the needs of its black citizenry.
    
    Judging responsiveness by counting members of county commissions is
    
    akin to judging the emptiness of a glass of water half full:
    
    whether it is half full or half empty depends on who you ask.             Even
    
    so, we agree with the plaintiffs that the district court erred in
    
    this case by focusing on how many minority board members there
    
    were, instead of how few.       That four of the fourteen county boards
    
    or commissions have black members overlooks that ten do not.
    
    Moreover, the record discloses that of the four boards that do have
    
    minority representation, three have only one black member and the
    
    other has only two black members.           Of the 72 appointed officials,
    
    only    five   are   black,   less   than   7%   of   the   total   membership.
    
    Similarly, the district court found that only 6 of the county's 75
    
    employees were black.
    
           Although the district court's finding of responsiveness was
    
    not clearly erroneous, we are persuaded that the district court
    
    attached too much weight to its finding.              First, the finding of
    
    responsiveness has "limited relevance."           Westwego III, 946 F.2d at
    
    1122.    The Senate Report explained:
    
           Unresponsiveness is not an essential part of plaintiff's
           case.      Therefore,   defendants'    proof   of   some
    
                                           17
         responsiveness would not negate plaintiff's showing by
         other, more objective factors enumerated here that
         minority voters nevertheless were shut out of equal
         access to the political process.
    
    S. Rep. 417 at 29 n.116, reprinted in 1982 U.S.C.C.A.N. at 207
    
    n.116; see also Westwego I, 872 F.2d at 1213 n.15.                 Indeed, in
    
    Westwego III, we rendered judgment for the plaintiffs, even though
    
    we agreed with the district court that the plaintiffs had failed to
    
    prove a lack of responsiveness by city officials.                 946 F.2d at
    
    1123; see also Harvell, 71 F.3d at 1391 (noting that "[e]ven
    
    accepting the finding of responsiveness as not clearly erroneous,
    
    however, it is similarly insufficient to counter the other factors
    
    that censure this scheme").
    
         Second, the district court's finding of responsiveness cannot
    
    be weighed in the abstract.      Responsiveness, like many things, is
    
    a question of both kind and degree.              While two cities may both be
    
    said to be responsive to minority needs, the two may vary greatly
    
    in approach and commitment.      The totality-of-circumstances inquiry
    
    is not blind to those differences.            Although we acknowledge that
    
    discerning   those      differences        demands    difficult   qualitative
    
    judgments,   see   S.   Rep.   417    at    29    n.115,   reprinted   in   1982
    
    U.S.C.C.A.N. at 207 n.115 (noting responsiveness is less objective
    
    factor than others), we are reminded that "[i]n countless areas of
    
    the law weighty legal conclusions frequently rest on methodologies
    
    that would make scientists blush."               LULAC, 999 F.2d at 860.     We
    
    offer no bright line here.           We are content to note that paving
    
    roads left unpaved by years of discrimination and appointing a
    
    biracial redistricting commission do not reflect the comprehensive
    
                                          18
    and systematic responsiveness to minority needs that is entitled to
    
    substantial weight in the totality-of-circumstances inquiry.             Cf.
    
    City   of   Niagara   Falls,   65   F.3d   at   1023   (describing    city's
    
    "numerous" efforts to address minority needs).
    
                                         E.
    
           In its pre-remand opinion, the district court accepted the
    
    County's proffered justification for the current plan, finding that
    
    "attempting to maintain districts with equal road mileage is
    
    nontenuous."    The plaintiffs challenge this finding, claiming that
    
    there is no evidence that the creation of a majority-minority
    
    district is incompatible with this interest.           The County defends
    
    the district court's finding and argues that its interest in
    
    maintaining districts with equal road mileage should be given
    
    substantial weight.     See LULAC, 999 F.2d at 871.
    
           We find no merit to the suggestion that the County must prove
    
    that the challenged electoral system is necessary to achieve its
    
    interest in equalizing road mileage among districts.          Id. at 875-
    
    76. We do, however, agree that this factor deserves little weight.
    
    In Jones v. City of Lubbock, 
    727 F.2d 364
    , 383 (5th Cir. 1984), we
    
    described this factor as having "diminished importance," and we
    
    expressed doubt "that the tenuousness factor has any probative
    
    value for evaluating the 'fairness' of the electoral system's
    
    impact."
    
           Our decision in LULAC does not undermine but rather supports
    
    that conclusion.      In that case, we distinguished between a non-
    
    tenuous state interest and a substantial state interest.             
    999 F.2d 19
    at 870 (noting that Texas did not assert non-tenuous but rather
    
    substantial interest).         Although we noted that "[t]he weight, as
    
    well as tenuousness, of the state's interest is a legitimate factor
    
    in   analyzing   the   totality    of   circumstances,"    id.   at   871,   we
    
    reaffirmed that "[p]roof of a merely non-tenuous state interest
    
    discounts one Zimmer factor, but cannot defeat liability."              Id.
    
          The district court here did not characterize the County's
    
    interest   in    equalizing      road    mileage    in   the   districts     as
    
    substantial.     Nor likely could it.            The County points to no
    
    decision holding that its interest in equal road mileage among
    
    election districts is substantial.           The administrative convenience
    
    of such a system is evident, but the County's asserted interest
    
    pales in comparison to that upheld in LULAC.             Id. at 872 (noting
    
    Texas' interest is a "key component" of what defines or "what
    
    constitutes a state court judge").           Indeed, there is no suggestion
    
    that equal road mileage is "integral" to the office of county
    
    supervisor, much less to the office of election commissioner or
    
    board of education.      Id.
    
                                            F.
    
          In Gingles, the Court noted that the Senate Report advised
    
    that "there is no requirement that any particular number of factors
    
    be proved, or that a majority of them point one way or the other."
    
    Gingles, 478 U.S. at 45.          In this case, we are persuaded that,
    
    under the totality of the circumstances, the plaintiffs have
    
    demonstrated a § 2 violation.       Neither the County's responsiveness
    
    to its black citizenry nor its interest in equalizing road mileage
    
    
                                            20
    among districts mitigates the striking lack of black electoral
    
    success in county elections and the "uncontradicted" existence of
    
    racially polarized voting.          In short, this is not that "unusual
    
    case" in which the three Gingles preconditions are satisfied but
    
    the totality of circumstances fail to show a § 2 violation.               See,
    
    e.g., City of Niagara Falls, 65 F.3d at 1020 (concluding that,
    
    under totality of circumstances, no § 2 violation existed where
    
    "many"    of   the    Senate      Report    factors   pointed   against   the
    
    plaintiffs).     The district court's finding to the contrary is
    
    clearly erroneous.
    
                                          III.
    
         As an alternative ground for affirming the judgment of the
    
    district court, the County argues that the proposed majority-
    
    minority district violates the Equal Protection Clause of the
    
    Fourteenth Amendment.       The County relies on the Supreme Court's
    
    decision in Miller v. Johnson, 
    115 S. Ct. 2475
    , 2488 (1995), which
    
    held that strict scrutiny applies to redistricting plans where
    
    "race was the predominant factor motivating the legislature's
    
    decision to place a significant number of voters within or without
    
    a   particular       district."       The    County   claims    that   racial
    
    considerations dominated the drawing of the proposed black-majority
    
    district in Calhoun County and that, therefore, the proposed
    
    district is unconstitutional after Miller.
    
         The County's argument has more bite than might appear at first
    
    glance.    Its implications travel far beyond Calhoun County and
    
    threaten the constitutionality of the Voting Rights Act itself. In
    
    
                                           21
    light of this, it is not surprising that we have been chary of
    
    reaching the issue of Miller's applicability to vote dilution
    
    claims brought pursuant to § 2 of the Voting Rights Act.                   See,
    
    e.g., Alonzo, 68 F.3d at 947 n.2 (reserving the question).                We are
    
    loathe to revisit that Act's validity, and upon closer examination,
    
    we   are   not    persuaded    that   Miller   and   its   progeny   prohibit
    
    redistricting plans drawn to remedy violations of § 2 of the Voting
    
    Rights Act.       We begin with Miller.
    
                                           A.
    
          In Miller, the Supreme Court confronted the constitutionality
    
    of   Georgia's      Eleventh   Congressional    District,     one    of   three
    
    majority-minority districts in the State. Drawn in response to the
    
    Justice Department's refusal to preclear earlier reapportionment
    
    plans pursuant to § 5 of the 1965 Voting Rights Act, the Eleventh
    
    District mimicked Sherman's March-to-the-Sea, traversing the 260
    
    miles from Atlanta to Savannah. A three-judge district court panel
    
    found that race was the dominant purpose in creating the Eleventh
    
    District.    On appeal to the Supreme Court, the appellants did not
    
    contest the district court's finding but rather claimed that the
    
    legislature's motivation by itself did not suffice to state a claim
    
    under Shaw v. Reno, 
    113 S. Ct. 2816
     (1993).           Rather, the appellants
    
    argued that the district court must find that the district's shape
    
    was so bizarre on its face as to be unexplainable on grounds other
    
    than race.       The Supreme Court disagreed.
    
          Noting that the Equal Protection Clause subjects facially-
    
    neutral statutes motivated by racial considerations to strict
    
    
                                           22
    scrutiny, the Court rejected the view that bizarre shape was a
    
    prerequisite to an equal protection claim:
    
          Shape is relevant not because bizarreness is a necessary
          element of the constitutional wrong or a threshold
          requirement of proof, but because it may be persuasive
          circumstantial evidence that race for its own sake, and
          not other districting principles, was the legislature's
          dominant and controlling rationale in drawing its
          district lines.
    
    115 S.Ct. at 2486.           The Court made clear that plaintiffs who
    
    challenge     the    constitutionality      of    reapportionment      plans    "are
    
    neither     confined    in   their   proof       to    evidence     regarding   the
    
    district's geometry and makeup nor required to make a threshold
    
    showing of bizarreness."        Id. at 2488.
    
          The    Court     encountered    greater         difficulty,    however,    in
    
    affirmatively defining the plaintiff's burden of proof.                  The Court
    
    acknowledged that legislatures will "almost always be aware of
    
    racial demographics; but it does not follow that race predominates
    
    in   the    redistricting     process."      Id.        Distinguishing     between
    
    permissible     awareness      and   impermissible         motivation    "may    be
    
    difficult" and will require courts "to exercise extraordinary
    
    caution in adjudicating claims that a state has drawn district
    
    lines on the basis of race."                Id.        Nevertheless, the Court
    
    attempted a definition:
    
          The plaintiff's burden is to show, either through
          circumstantial evidence of a district's shape and
          demographics or more direct evidence going to legislative
          purpose, that race was the predominant factor motivating
          the legislature's decision to place a significant number
          of voters within or without a particular district. To
          make this showing, a plaintiff must prove that the
          legislature   subordinated    traditional    race-neutral
          districting principles, including but not limited to
          compactness,    contiguity,    respect   for    political
    
                                           23
            subdivisions or communities defined by actual shared
            interests, to racial considerations.
    
    Id.     Justice O'Connor added in her concurring opinion that this
    
    standard was "a demanding one," requiring the plaintiff to show
    
    that the legislature "has relied on race in substantial disregard
    
    of customary and traditional districting practices."                      Id. at 2497
    
    (O'Connor, J., concurring).           In those cases where the plaintiff
    
    successfully proves that race was the "predominant, overriding"
    
    consideration motivating the drawing of district lines, the burden
    
    shifts to the defendant to demonstrate that its districting plan is
    
    narrowly tailored to achieve a compelling governmental interest.
    
    Id. at 2490.
    
            Agreeing with the district court that race was the predominant
    
    factor       motivating   the   drawing     of       the   Eleventh     Congressional
    
    District, the Court turned to the requirements of strict scrutiny.
    
    Georgia argued that compliance with the preclearance requirement of
    
    §   5   of    the   Voting   Rights   Act      was    a    compelling    governmental
    
    interest.       The Court did not reach the validity of that position:
    
            Whether or not in some cases compliance with the Voting
            Rights Act, standing alone, can provide a compelling
            interest independent of any interest in remedying past
            discrimination, it cannot do so here. As we suggested in
            Shaw, compliance with federal antidiscrimination laws
            cannot   justify   race-based   districting  where   the
            challenged district was not reasonably necessary under a
            constitutional reading and application of those laws.
    
    Id. at 2490-91.
    
            The   Court   concluded    that     the      Eleventh    District    was   not
    
    required by the Voting Rights Act "under a correct reading of the
    
    statute."      Id. at 2491.     That Georgia drew the Eleventh District in
    
    
                                              24
    order to obtain preclearance under § 5 of the Voting Rights Act did
    
    not mean that the plan was required by the Act.                Id.   To the
    
    contrary, the Eleventh District was not required under the Act
    
    "because there was no reasonable basis to believe that Georgia's
    
    earlier enacted plans violated § 5."         Id. at 2492.   Noting that the
    
    earlier    plans   had   increased   the    number   of   majority-minority
    
    districts from the previous apportionment, the Court explained that
    
    such ameliorative plans did not violate § 5 "unless the new
    
    apportionment itself so discriminates on the basis of race or color
    
    as to violate the Constitution."          Id.
    
         The Court added that the Justice Department's interpretation
    
    of § 5 as authorizing it to preclear only those reapportionment
    
    plans     that   maximized   majority-minority       districts    portended
    
    constitutional difficulties for § 5 and brought the Voting Rights
    
    Act "into tension with the Fourteenth Amendment."             Id. at 2493.
    
    The Court eschewed reaching the constitutional question, however,
    
    noting only that there was no indication that Congress intended § 5
    
    of the Voting Rights Act to reach as far as the Justice Department
    
    had pushed it.     Id.
    
         Miller left open several critical questions.                The Court
    
    assumed but did not decide that compliance with the Voting Rights
    
    Act constituted a compelling governmental interest.              Moreover,
    
    Miller did not address in what instances a State may draw majority-
    
    minority districts to remedy potential or adjudicated violations of
    
    § 2 of the Voting Rights Act.
    
    
    
    
                                         25
         Second,    while   Miller   left    these   issues   unresolved,   its
    
    condemnation of race-based districting decisions was loud and
    
    clear.    The Court described the evils of race-based redistricting,
    
    declaring    that   "'[r]acial   gerrymandering,     even   for    remedial
    
    purposes, may balkanize us into competing racial factions; it
    
    threatens to carry us further from the goal of a political system
    
    in which race no longer matters--a goal that the Fourteenth and
    
    Fifteenth Amendments embody, and to which the Nation continues to
    
    aspire.'"    Id. at 2486 (quoting Shaw, 113 S.Ct. at 2832) (emphasis
    
    added).
    
         The Court's recent decisions in Bush v. Vera, 
    1996 WL 315857
    
    (1996), and Shaw v. Hunt, 
    1996 WL 315870
     (1996) (Shaw II), built
    
    upon the framework established by Miller and resolved several of
    
    the questions Miller had left unanswered.            In Bush, the Court
    
    struck down three majority-minority Congressional districts in
    
    Texas as violative of the Equal Protection Clause.                The three
    
    districts were the product of the Texas legislature's effort to
    
    increase the number of majority-minority districts in the State.
    
    No opinion commanded a majority. Justice O'Connor, writing for two
    
    other Justices, began her analysis by noting that strict scrutiny
    
    does not apply to all cases involving the intentional creation of
    
    majority-minority districts.       
    1996 WL 315857
    , at *5.           Rather,
    
    Justice O'Connor reaffirmed Miller's predominant factor test and
    
    
    
    
                                        26
    found that the three challenged districts all failed that test,
    
    thereby triggering strict scrutiny.2
    
         To justify its race-based redistricting, Texas pointed to
    
    three interests:    the interest in avoiding liability under § 2 of
    
    the Voting Rights Act, the interest in remedying past and present
    
    discrimination, and the interest in complying with § 5 of the
    
    Voting Rights Act.       It is the Court's treatment of the first
    
    interest that concerns us the most in this case.
    
         In her opinion for the plurality, Justice O'Connor assumed
    
    without deciding that compliance with § 2 of the Voting Rights Act
    
    constituted a compelling governmental interest.                   Id. at *15.
    
    Although strict scrutiny is a demanding standard, Justice O'Connor
    
    explained that the narrow tailoring prong of the test permitted the
    
    States   "a   limited   degree   of   leeway"      in   drawing   a   remedial,
    
    majority-minority district.      Id.       To demonstrate that a majority-
    
    minority district is reasonably necessary to comply with § 2, the
    
    State must have a "strong basis in evidence" for finding that the
    
    three Gingles preconditions exist.           Id.
    
    
    
         2
              Justices Thomas and Scalia, who did not join Justice
    O'Connor's opinion for the plurality but provided a majority by
    concurring in the judgment, disagreed with the plurality on this
    point and concluded that the intentional creation of a majority-
    minority district was sufficient to trigger strict scrutiny. Id.
    at *27. On this point, at least six Justices sided with Justice
    O'Connor's view of the law.     Compare id. at *5 (O'Connor, J.,
    joined by Rehnquist, C.J., and Kennedy, J.); id. at *31 & n.7
    (Stevens, J., joined by Ginsburg and Breyer, J.J., dissenting); id.
    at *56 (Souter, J., joined by Ginsburg and Breyer, J.J.,
    dissenting) with id. at *25 (Kennedy, J., concurring) (reserving
    the question) and id. at *27 (Thomas, J., joined by Scalia, J.,
    concurring in the judgment).
    
                                          27
           Although Justice O'Connor was willing to assume the existence
    
    of the last two Gingles preconditions in the instant case, she
    
    concluded that the challenged districts' bizarre shape and lack of
    
    compactness "defeat[ed] any claim that the districts are narrowly
    
    tailored to serve the State's interest in avoiding liability under
    
    § 2."    Id. at *16.    Although "[a] § 2 district that is reasonably
    
    compact and regular, taking into account traditional districting
    
    principles    such     as    maintaining   communities   of   interest    and
    
    traditional boundaries, may pass strict scrutiny without having to
    
    defeat rival compact districts designed by plaintiffs' experts in
    
    endless 'beauty contests,'" id. at *15, a non-compact majority-
    
    minority district is not required by § 2 and, therefore, fails the
    
    narrowly tailored prong of strict scrutiny.          Id. at *16.   Justices
    
    Thomas and Scalia, concurring in the judgment, agreed without
    
    elaboration that the districts were not narrowly tailored.           Id. at
    
    *29.
    
           Of particular significance, both Justice O'Connor and Justice
    
    Kennedy   filed   concurring      opinions   that   further   addressed   the
    
    relationship between the Equal Protection Clause and § 2 of the
    
    Voting Rights Act.          Although Justice O'Connor's opinion for the
    
    plurality only assumed that compliance with the Voting Rights Act
    
    was a compelling governmental interest, Justice O'Connor expressly
    
    adopted that position in her separate concurring opinion.           See id.
    
    at *21.    On this point, at least four other Justices agreed with
    
    Justice O'Connor.      See id. at *41 (Stevens, J., joined by Ginsburg
    
    and Breyer, J.J., dissenting); id. at *46, *56 (Souter, J., joined
    
    
                                          28
    by Ginsburg and Breyer, J.J., dissenting).              Moreover, Justice
    
    O'Connor opined that "if a State pursues that compelling interest
    
    by creating a district that 'substantially addresses' the potential
    
    liability, and does not deviate substantially from a hypothetical
    
    court-drawn § 2 district for predominantly racial reasons, its
    
    districting plan will be deemed narrowly tailored."            Id. at *23.
    
          Justice Kennedy agreed that the three challenged districts
    
    were not narrowly tailored to serve the asserted interest in
    
    complying with § 2 of the Voting Rights Act, but his approach
    
    differed slightly from the plurality's.           Id. at *25.       Justice
    
    Kennedy noted that the first Gingles precondition focuses not on
    
    the   compactness   of   the    contested    district    but   rather    the
    
    compactness of the minority population.         Id.     As a consequence,
    
    Justice Kennedy was willing to assume that Texas had a strong basis
    
    in evidence for concluding that all three Gingles preconditions
    
    existed.   Indeed, only if all three Gingles preconditions were met
    
    would a court reach the question whether the challenged district
    
    was narrowly tailored to remedying the potential § 2 violation.
    
          Nevertheless, the challenged districts' lack of compactness,
    
    which persuaded Justice O'Connor that the first Gingles factor was
    
    not met, persuaded Justice Kennedy that the districts did not
    
    substantially address the potential § 2 violation. Emphasizing the
    
    plurality's    statement       that    the   remedial    district       "must
    
    'substantially address the § 2 violation'" to satisfy the narrow
    
    tailoring prong of strict scrutiny, Justice Kennedy attempted to
    
    give content to that phrase by noting that a State "may not engage
    
    
                                          29
    in districting based on race except as reasonably necessary to cure
    
    the anticipated § 2 violation, nor may it use race as a proxy to
    
    serve other interests."    Id. at *26 (emphasis added).         In Justice
    
    Kennedy's eyes, the inclusion of some minority communities that
    
    "could not possibly form part of a compact majority-minority
    
    district" belied the claim that Texas drew the district to remedy
    
    a potential § 2 violation.         Id.     Justice Kennedy cautioned,
    
    however, that the Court's focus on compactness did not mean that
    
    all majority-minority districts had to be compact to satisfy
    
    constitutional scrutiny.      To the contrary, "[d]istricts not drawn
    
    for impermissible reasons or according to impermissible criteria
    
    may take any shape, even a bizarre one."          Id. at *27.
    
         Shaw II, which was decided the same day as Bush, invalidated
    
    North Carolina's Twelfth Congressional District, a "serpentine"
    
    district 160 miles in length and often no wider than the interstate
    
    that it followed in its "snake-like" trek through the heart of the
    
    State.   
    1996 WL 315870
    , at *3, *4.      Applying Miller's predominant
    
    purpose test, the Court found that race was the predominant factor
    
    in drawing the challenged district.        Id. at *4.     As in Bush, the
    
    Court assumed that compliance with the Voting Rights Act was a
    
    compelling governmental interest, see id. at *6 n.4, *9, but it
    
    concluded that District 12 was not narrowly tailored to that end.
    
    Id. at   *10.   The   Court    explained   that    the   majority-minority
    
    district "must, at a minimum, remedy the anticipated violation [of
    
    § 2] or achieve compliance to be narrowly tailored."            Id. at *9.
    
    Noting that the first Gingles precondition requires the existence
    
    
                                       30
    of a geographically compact minority group, Chief Justice Rehnquist
    
    declared that "[n]o one looking at District 12 could reasonably
    
    suggest that the district contains a 'geographically compact'
    
    population of any race."             Id. at *10.
    
          Taken   together,         these       decisions     establish       a    number    of
    
    important propositions. First, race-based redistricting, even that
    
    done for remedial purposes, is subject to strict scrutiny. Second,
    
    compliance    with   §     2    of    the     Voting    Rights   Act      constitutes     a
    
    compelling governmental interest.                  Third, the State must have a
    
    strong basis in evidence for concluding that the three Gingles
    
    preconditions exist in order to claim that its redistricting plan
    
    is reasonably necessary to comply with § 2.                      Fourth, a tailored
    
    response to a found violation must use race at the expense of
    
    traditional political concerns no more than is reasonably necessary
    
    to remedy the wrong.           With these propositions in mind, we turn to
    
    the County's arguments in this case.
    
                                                  B.
    
          The County frames its Miller argument in two ways.                        First, it
    
    claims that Miller limits the scope of the first Gingles factor,
    
    which    requires    proof      that    a     geographically     compact        majority-
    
    minority district can be created.                  According to the County, the
    
    plaintiffs'    proposed         redistricting          plans   violate        Miller    and,
    
    therefore,    are    not       "a    proper    foundation      for    a   holding      that
    
    Plaintiffs-Appellants have satisfied the first Gingles precondition
    
    of   a   sufficiently      numerous,          geographically         compact     minority
    
    
    
    
                                                  31
    population."       To fully understand the County's argument, we must
    
    return to our first decision in this case.
    
          In the first appeal, the County claimed that the Supreme
    
    Court's then-recent decision in Shaw supported the district court's
    
    finding that the plaintiffs had not established the first Gingles
    
    factor.      According      to   the    County,      a   districting     scheme   that
    
    violated Shaw's requirement of compactness per se failed to satisfy
    
    the first Gingles precondition.                   We acknowledged Shaw's holding
    
    that a voting scheme "so extremely irregular on its face that it
    
    rationally can be viewed only as an effort to segregate the races
    
    for purposes of voting" stated a claim under the Equal Protection
    
    Clause.     However, we noted that the proposed district in this case
    
    was "not nearly as bizarre as the district under consideration in
    
    Shaw." 21 F.3d at 95.               We consequently refused to determine
    
    "whether a bizarrely-shaped district which would enable plaintiffs
    
    to   state    a    claim    under      the    Equal      Protection    Clause     would
    
    necessarily flunk the Gingles compactness test."                      Id. at 95-96.
    
          The    County's      Miller   contention        builds   upon     this   earlier
    
    argument.         According to the County, Miller clarifies Shaw by
    
    explaining that the gravamen of an Equal Protection claim is not
    
    the shape of the district but rather the legislature's motivation
    
    or purpose in drawing the district as it did.                           The argument
    
    continues that the plaintiffs' predominant concern with race in
    
    drawing their proposed district places it squarely within Miller
    
    and therefore outside the first Gingles factor.                       Stated another
    
    
    
    
                                                 32
    way, a proposed district that violates Miller does not satisfy the
    
    first Gingles factor per se.
    
           We agree with the County's reading of Miller but disagree that
    
    Miller is relevant to the first Gingles factor.                   In contrast to
    
    Shaw's focus on compactness, Miller explained that compactness was
    
    not the gravamen of Equal Protection challenges to reapportionment
    
    plans.       To the contrary, compactness was merely one among many
    
    factors whose presence bore on the ultimate question whether race
    
    was the predominant factor motivating the drawing of particular
    
    district lines.
    
           In contrast to Miller's focus on motivation, the first Gingles
    
    factor requires that the plaintiff demonstrate that the minority
    
    group    is    "sufficiently     large    and     geographically     compact   to
    
    constitute a majority in a single-member district."                 Gingles, 478
    
    U.S.    at    50.    Plaintiffs    typically       attempt   to    satisfy   this
    
    requirement by drawing hypothetical majority-minority districts.
    
    When    combined    with   the   second       Gingles   factor   requiring   that
    
    minority voters demonstrate their political cohesiveness, the first
    
    Gingles factor ensures that the minority has the potential to elect
    
    a representative of its own choice in some single-member district.
    
    See Growe, 113 S.Ct. at 1084; Gingles, 478 U.S. at 50 & n.17.
    
    Absent a satisfactory showing on the first Gingles factor, minority
    
    voters cannot claim that it is the current districting system and
    
    not, for example, geographic dispersal that is the source of their
    
    disproportionately weak political strength.               Gingles, 478 U.S. at
    
    50 n.17.
    
    
                                             33
         Bush and Shaw II support our conclusion that Miller's emphasis
    
    on purpose does not apply to the first Gingles precondition.                      In
    
    neither case did the Court suggest that a district drawn for
    
    predominantly racial reasons would necessarily fail the Gingles
    
    test. To the contrary, the first Gingles factor is an inquiry into
    
    causation that necessarily classifies voters by their race.
    
         In short, we do not understand Miller and its progeny to work
    
    a change in the first Gingles inquiry into whether a sufficiently
    
    large and compact district can be drawn in which the powerful
    
    minority would constitute a majority. See Harvell, 71 F.3d at 1391
    
    (noting that Miller "did not purport to alter our inquiry into the
    
    vote-dilution claim").     To be sure, this test of causation insists
    
    upon a compact district, and a remedial response narrowly tailored
    
    to remedying a found violation must also be compact.                 As we will
    
    explain, however, that tailored response must use race at the
    
    expense    of   traditional    political         concerns   no   more    than     is
    
    reasonably necessary to remedy the found wrong.
    
                                           C.
    
         Alternatively, the County argues that we should affirm the
    
    judgment    below    because   there        is   no   constitutional      remedy.
    
    According to the County, the plaintiffs' proposed redistricting
    
    plans violate Miller.      The County argues that, consequently, it
    
    would be subject to lawsuits under Miller if it were to implement
    
    one of the plaintiffs' proposed redistricting plans.                The argument
    
    is that the County did not violate § 2 because the plaintiffs'
    
    proposed    remedy    violates    the        Equal     Protection       Clause.
    
    
                                           34
          To the extent that the County challenges the remedy, it is not
    
    ripe for our review.       Plaintiffs’ majority-minority districts were
    
    identified in answer to the first Gingles inquiry into causation.
    
    See   Clark,   21   F.3d   at   95   (noting   that   plaintiffs'   proposed
    
    districts were "simply presented to demonstrate that a majority-
    
    black district is feasible in Calhoun County").           Calhoun County's
    
    Board of Supervisors has primary jurisdiction over its electoral
    
    system.   "It must be left to that body to develop, in the first
    
    instance, a plan which will remedy the dilution of the votes of the
    
    city's black citizens."         Westwego III, 946 F.2d at 1124; see also
    
    Clark, 21 F.3d at 95 (noting that "the county will be given the
    
    first opportunity to develop a remedial plan"). That body is free,
    
    within limits,3 to develop a different remedial plan from those
    
    proposed by the plaintiffs.
    
          This is not to say that Bush does not insist that districting
    
    plans drawn to remedy potential violations of the Voting Rights Act
    
    escape scrutiny under the Equal Protection Clause. 
    1996 WL 315857
    ,
    
    at *15-16.      It is true that here, unlike Bush, there is an
    
    adjudicated violation of the Voting Rights Act, but that does not
    
    remove the constitutional constraints.            See Dillard v. City of
    
    Greensboro, 
    74 F.3d 230
    , 233-34 (11th Cir. 1996) (applying Miller
    
    to redistricting plan imposed by district court to remedy § 2
    
    violation).    It is also true that Miller, Bush, and Shaw II make
    
    
              If the board of supervisors "fails to develop such a plan
    in a timely manner, or fails to develop a plan which fully remedies
    the current vote dilution, the responsibility for devising a
    remedial plan will devolve onto the federal district court."
    Westwego III, 946 F.2d at 1124.
    
                                          35
    clear    that        a    majority-minority        district     is     not     per      se
    
    unconstitutional.             Calhoun    County's    argument    to    the   contrary
    
    glosses over a number of required analytical steps.
    
           Bush established a two-part inquiry for determining whether a
    
    majority-minority district passes constitutional muster.                          Such a
    
    district is constitutional if the State has a "strong basis in
    
    evidence" for concluding that the three Gingles preconditions are
    
    present and if the district drawn in order to satisfy § 2 does not
    
    "subordinate          traditional        districting     principles          to      race
    
    substantially more than is 'reasonably necessary' to avoid § 2
    
    liability."         
    1996 WL 315857
    , at *16.           Although a State need not
    
    await judicial findings to that effect, see id. at *23 (O'Connor,
    
    J., concurring), we have already found that the three Gingles
    
    preconditions exist here.
    
           To be narrowly tailored, the remedial district must use race
    
    at the expense of traditional political concerns no more than is
    
    reasonably necessary to remedy the found wrong.                       Stated another
    
    way,    the       remedial    district    must     "substantially      address"        the
    
    violation and "not deviate substantially from a hypothetical court-
    
    drawn   §     2    district    for   predominantly      racial   reasons."             Id.
    
    (O'Connor, J., concurring); id. at *26 (Kennedy, J., concurring);
    
    see also Shaw II, 
    1996 WL 315870
    , at *9 (holding that majority-
    
    minority district must, "at a minimum," remedy the violation to be
    
    narrowly tailored).             As this language suggests, the proposed
    
    majority-minority district used to satisfy the first Gingles factor
    
    exemplifies         the   narrowly      tailored    district.        Indeed,      it    is
    
    
                                               36
    deviations from this district that raise problems.                        See Bush, 
    1996 WL 315857
    , at *16; Shaw II, 
    1996 WL 315870
    , at *10.                                And, of
    
    course, a district court supervising the development of a remedy
    
    may    reject   a     proposed       remedial    district          that   "substantially
    
    deviates" from the hypothetical district.
    
           There    has    been    no     finding     that       the     plaintiffs'      plans
    
    subordinate traditional race-neutral districting plans to racial
    
    considerations.         The plaintiffs presented several redistricting
    
    plans to the district court, one of which allegedly made "minimal
    
    changes to existing districts and precinct lines." Compare Miller,
    
    115    S.Ct.    at    2497    (O'Connor,        J.,    concurring)          (noting    that
    
    predominant factor test is "a demanding one") with Quilter v.
    
    Voinovich, 
    912 F. Supp. 1006
    , 1019 (N.D. Ohio) (holding that
    
    predominant factor test is satisfied where "a state substantially
    
    complies with traditional districting principles" but "gives them
    
    less     weight       in     the      apportionment          process        than    racial
    
    considerations"), appeal dismissed, 
    116 S. Ct. 42
     (1995).                           Whether
    
    those   changes       are    truly    "minimal"       and,    if     not,    whether   the
    
    districts use race no more than is reasonably necessary to remedy
    
    the found violation are questions best left to the district court
    
    on remand.
    
           Redistricting to remedy found violations of § 2 of the Voting
    
    Rights Act by definition employs race.                 Miller, Shaw II, and Bush,
    
    however, do not foreclose the ability of States to act "to remedy
    
    the reality of racial inequality in our political system."                            Bush,
    
    
    1996 WL 315857
    , at *24 (O'Connor, J., concurring).                          The limit is
    
    
                                               37
    that the remedy must use race at the expense of traditional
    
    political concerns no more than is reasonably necessary to remedy
    
    the found wrong.
    
                                         IV.
    
         Calhoun County's districting system dilutes minority voting
    
    strength   in   violation   of   §    2    of   the   Voting   Rights   Act.
    
    Accordingly, we REVERSE the judgment of the district court, RENDER
    
    judgment for the plaintiffs on liability, and REMAND the case to
    
    the district court to supervise the development of a remedial plan
    
    and to determine what amount, if any, the plaintiffs are entitled
    
    to recover in court costs and attorneys' fees.
    
    
    
    
                                         38
    

Document Info

DocketNumber: 95-60251

Filed Date: 7/10/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (20)

Clark v. Calhoun County, Miss. , 21 F.3d 92 ( 1994 )

Concerned Citizens for Equality v. McDonald , 63 F.3d 413 ( 1995 )

Alonzo v. City of Corpus Christi , 68 F.3d 944 ( 1995 )

East Carroll Parish School Bd. v. Marshall , 424 U.S. 636 ( 1976 )

Thornburg v. Gingles , 478 U.S. 30 ( 1986 )

Growe v. Emison , 507 U.S. 25 ( 1993 )

Shaw v. Reno , 509 U.S. 630 ( 1993 )

Johnson v. De Grandy , 512 U.S. 997 ( 1994 )

Miller v. Johnson , 515 U.S. 900 ( 1995 )

Vecinos de Barrio v. City of Holyoke , 72 F.3d 973 ( 1995 )

Rev. Roy Jones v. The City of Lubbock , 727 F.2d 364 ( 1984 )

Westwego Citizens for Better Government v. City of Westwego,... , 872 F.2d 1201 ( 1989 )

Westwego Citizens for Better Government v. City of Westwego , 946 F.2d 1109 ( 1991 )

Action for Children's Television v. Federal Communications ... , 999 F.2d 19 ( 1993 )

league-of-united-latin-american-citizens-council-no-4434-and-jesse , 999 F.2d 831 ( 1993 )

alden-jenkins-harlan-roberts-gwendolyn-neal-v-red-clay-consolidated-school , 4 F.3d 1103 ( 1993 )

national-association-for-the-advancement-of-colored-people-inc-naacp , 65 F.3d 1002 ( 1995 )

shirley-m-harvell-emmanuel-lofton-reverend-hattie-middlebrook-mary-alice , 71 F.3d 1382 ( 1995 )

john-dillard-damascus-crittenden-jr-earwen-ferrell-clarence-j , 74 F.3d 230 ( 1996 )

Major v. Treen , 574 F. Supp. 325 ( 1983 )

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