Milwaukee Branch of the N.A.A.C.P. v. Thompson

• Decision Date: 03 July 1997
• Docket Number: No. 96-3315,96-3315
• Citation: 116 F.3d 1194
• Parties: MILWAUKEE BRANCH OF THE N.A.A.C.P., et al., Plaintiffs-Appellants, v. Tommy THOMPSON, Governor of Wisconsin, et al., Defendants-Appellees, and Wisconsin Association of Trial Judges, et al., Intervenors-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1194

116 F.3d 1194

MILWAUKEE BRANCH OF THE N.A.A.C.P., et al., Plaintiffs-Appellants, v. Tommy THOMPSON, Governor of Wisconsin, et al., Defendants-Appellees, and Wisconsin Association of Trial Judges, et al., Intervenors-Appellees.

No. 96-3315.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 1997.

Decided July 3, 1997.

Richard Saks, Perry, Lerner & Quindel, Milwaukee, WI, Willie Abrams, Dennis Courtland Hayes, National Association for the Advancement of Colored People, General Counsel, Baltimore, MD, Brenda Wright (argued), Todd A. Cox, Lawyers Committee for Civil Rights under Law, Washington, DC, for Plaintiffs-Appellants.

Peter C. Anderson (argued), Kathleen M. Falk, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Board of Election Commissioners, Milwaukee County, Board of Election Commissioners of the City of Milwaukee, James R. Edgar, Fred A. Risser.

Thomas L. Shriner, Jr., Richard M. Esenberg (argued), Michael J. Aprahamian, Foley & Lardner, Milwaukee, WI, for Wisconsin Trial Judges Association, Patrick T. Sheedy, Frederick Henderson.

David K. Flynn, Rebecca K. Troth (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Amicus Curiae.

Before FLAUM, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Milwaukee County in Wisconsin elects 46 judges to the circuit court, its trial court of general jurisdiction, and 4 judges to the state's court of appeals. Elections are held at large. Each candidate for the circuit court runs for a numbered post, called a branch, though every trial judge has county-wide jurisdiction. When this suit began, 3 of the 46 seats on the circuit court, and none of the 4 on the appellate court, were held by black lawyers. Approximately 20 percent of the population, 16 percent of the voting age population, and 3 percent of the lawyers in Milwaukee County are black. The percentage of judges who are black is substantially below the first two numbers, but twice the percentage of blacks in the pool of persons eligible for election. (Wisconsin limits judicial office to persons who have been members of the bar for at least five years.)

Plaintiffs, registered voters in Milwaukee County and organizations to which they belong, contend that § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, requires Wisconsin to replace county-wide elections with smaller districts, which could be drawn so that some districts contain majorities of black voters. Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991), and Houston Lawyers' Ass'n v. Attorney General of Texas, 501 U.S. 419, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991), hold that § 2 of the Voting Rights Act applies to judicial elections, and Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), establishes the framework for analyzing multi-member districts under § 2:

Plaintiffs must show three threshold conditions: first, the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district"; second, the minority group is "politically cohesive"; and third, the majority "votes sufficiently as a bloc to enable it ... to defeat the minority's preferred candidate." 478 U.S. at 50-51, 106 S.Ct. at 2765-2766. Once plaintiffs establish these conditions, the court considers whether, "on the totality of circumstances," minorities have been denied an "equal opportunity" to "participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

Abrams v. Johnson, --- U.S. ----, ---- - ----, 117 S.Ct. 1925, 1935, 138 L.Ed.2d 285 (1997) (ellipsis in original). The possibility of increasing minority representation does not compel a jurisdiction to achieve that outcome, unless the three conditions have been met and the judge is satisfied that minority voters have lacked an equal opportunity to participate in the political process. Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).

After a trial, the district court concluded that plaintiffs did not establish the third threshold condition, because white voters in Milwaukee County have not consistently voted against black judicial candidates. 935 F.Supp. 1419, 1427-30 (E.D.Wis.1996). Moreover, the court explained, it would not have resolved the case in plaintiffs' favor even if it had found all three conditions satisfied. The court wrote that the state has a substantial interest in electing judges from the same jurisdiction in which they exercise jurisdiction. 935 F.Supp. at 1430-31, citing Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281, 1296-97 (11th Cir.1995) (en banc) (SCLC); see also Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc). Judges do not "represent" voters, and their work affects all litigants and potential litigants, not just their constituents. The district court also thought it significant that, although the pool of persons eligible to be judges is only 3 percent black, about 6.5 percent of judges serving in Milwaukee County are black. District Judge Gordon recognized that the Voting Rights Act entitles voters to equal influence and is not (directly) concerned with the interests of persons who seek public office, but the outcome of the process is entitled to weight, see Baird v. Indianapolis, 976 F.2d 357, 360 (7th Cir.1992)--just as a shortfall of black judges compared with the pool of attorneys eligible for election would have been a mark in plaintiffs' favor.

Whenever the outcome depends on an assessment of the totality of the circumstances, appellate review is deferential. Abrams holds this for § 2 in particular. A totality-of-circumstances approach means that there is no entitlement to a particular outcome if one proves specific facts. There are only shadings and nuance, which different people estimate differently. Litigants are entitled to an honest application of the legal framework, not to a particular result. Inevitable differences in balancing incommensurables do not justify appellate substitution of judgment; when assessments differ, the trial court's prevails because there is no rule of law by which its decision may be called "wrong." One could say that three judges' gestalts are better than one, because less likely to be idiosyncratic, but this observation has not carried the day with the Supreme Court. E.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-405, 110 S.Ct. 2447, 2457-60, 110 L.Ed.2d 359 (1990). Appellate judges' reactions are less likely to be informed by an accurate appreciation of the picture painted by the evidence at trial, and having three judges duplicate the work of one, when it is not possible to identify right answers with any confidence, is an imprudent investment. So we must accept the district court's characterization unless it is clearly erroneous. That the judge considered legal questions on the way to resolving the ultimate issue does not authorize the court of appeals to depart from the usual deferential approach. Pullman-Standard v. Swint, 456 U.S. 273, 285-90, 102 S.Ct. 1781, 1788-90, 72 L.Ed.2d 66 (1982). If a legal error influences a finding, we may if necessary remand the case for a new trial, but we do not think that any of the judge's conclusions can be attributed to a mistake of law. To the contrary, the district judge followed the sinuous path of § 2 law with great care.

Take for example the finding that white voters in Milwaukee County do not vote so cohesively that they regularly defeat the candidates preferred by black voters. Between 1972 and the trial, 16 judicial contests (6 primaries and 10 general elections) pitted black against white candidates; in another 6 campaigns black candidates ran unopposed. In the 6 contested primaries, the black candidates received about 24 percent of the votes cast by white voters. All of the primaries had at least 3 candidates; in none did any candidate receive more than 50 percent of the votes cast by whites. Black candidates advanced to the general election in 5 of these 6 primaries. (Wisconsin uses a "nonpartisan" system of elections to the judiciary, so the top 2 candidates in the primary advance to the general election. If only 2 candidates enter the contest there is no primary.) In the 10 contested general elections, the black candidates received on average 40 percent of the votes cast by whites. In 2 of the 10 elections, the black candidates prevailed. Of course, the black candidate prevailed all 6 times in uncontested elections, and the district court inferred from the lack of contest that white voters would have been willing to support these candidates; otherwise a white candidate could have entered and won. Since 1980 black judges running for reelection have been opposed only 3 times, and they have prevailed in 2 of these races. Meanwhile 4 white judges lost or withdrew from races for reelection. These results, the district judge wrote, show not only substantial willingness among white voters to support black candidates, but also the ability of these candidates to gain and keep office. Bloc voting among white voters does not "consistently defeat minority candidates", Gingles, 478 U.S. at 100, 106 S.Ct. at 2791 (O'Connor, J., concurring) and therefore does not establish the third of the necessary conditions, the judge concluded.

Plaintiffs might have replied by challenging the understanding that the third component of the threshold showing requires proof that white bloc voting "consistently" defeats black candidates. Justice O'Connor's concurring opinion in Gingles is not entirely harmonious with Justice Brennan's plurality opinion on this score, and later cases have not directed sustained attention to the issue. But plaintiffs do not contest the district court's reliance on Justice O'Connor's view. Nor do they contend that, when black voters are as small a minority as they are in Milwaukee County,...