145 F.3d 818 (6th Cir. 1998), 96-6028, Cousin v. Sundquist

Docket Nº96-6028.
Citation145 F.3d 818
Party NameMaxine B. COUSIN, et al., Plaintiffs-Appellees, v. Don SUNDQUIST; State Election Commission; Brook Thompson; Hamilton County Election Commission; Carolyn Jackson, Defendants-Appellants.
Case DateJune 01, 1998
CourtUnited States Courts of Appeals, United States Court of Appeals (6th Circuit)

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145 F.3d 818 (6th Cir. 1998)

Maxine B. COUSIN, et al., Plaintiffs-Appellees,


Don SUNDQUIST; State Election Commission; Brook Thompson;

Hamilton County Election Commission; Carolyn

Jackson, Defendants-Appellants.

No. 96-6028.

United States Court of Appeals, Sixth Circuit

June 1, 1998

Argued Dec. 4, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied July 10, 1998.

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[Copyrighted Material Omitted]

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Michael W. Catalano, Deputy Attorney General (argued and briefed), Office of the Attorney General, General Civil Division, Nashville, TN, for Defendants-Appellants.

Laughlin McDonald (argued and briefed), American Civil Liberties Union Foundation, Atlanta, GA, Richard H. Dinkins (briefed), Williams & Dinkins, Nashville, TN, Myron Bernard McClary, Chattanooga, TN, Margaret Carey, Center for Constitutional Rights, Greenville, MS, for Plaintiffs-Appellees.

Edward Still (briefed), Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Amicus Curiae Center for Voting and Democracy.

Before: WELLFORD, NORRIS, and BATCHELDER, Circuit Judges.


WELLFORD, Circuit Judge.

The defendants appeal the district court's finding that the conduct of judicial elections for positions on the Circuit Court, Criminal Court, Chancery Court, and General Sessions Court in Hamilton County, Tennessee, violates Section 2 of the Voting Rights Act. See 42 U.S.C. § 1973(b) (1994) (hereinafter "Section 2"). Specifically, the district court held that the black plaintiffs made out a case of vote dilution under the three part "results" test enunciated by the Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and also under the totality of the circumstances test drawn from the nine factors identified in the Senate Report accompanying the 1982 Amendments to the Act. See S.Rep. No. 417, 97th Cong., 2nd Sess. 28-29 (1982) (hereinafter "Senate Report"). For the reasons indicated, we REVERSE.


At the time this lawsuit was filed, the Hamilton County judiciary consisted of four Circuit Court judges, three Criminal Court judges, two Chancery Court judges, and three General Sessions Court judges. After the district court handed down its opinion in this case, the Tennessee legislature passed a measure expanding the General Sessions Court in Hamilton County to five judges, legislation which was subsequently signed by Governor Don Sundquist and approved in a countywide referendum by the voters of Hamilton County. All of these judicial offices are elected at-large by the qualified voters of Hamilton County, and the elected judges serve eight-year terms. Tenn. Const. art. VI, § 4; Tenn.Code Ann. § 17-1-103 (1994). Except for the elections for the two recently-added General Sessions judges, which are to be nonpartisan, Tenn. H.B. 3273 § 1(c), the elections for these positions are partisan. Candidates for Hamilton County judicial offices run for separately designated positions, with the candidate receiving the highest number of votes declared the winner. Tenn.Code Ann. § 2-8-110 (1997 Supp.). In addition, Hamilton County judges must be members of the Tennessee Bar. Tenn.Code Ann. § 17-1-106 (1994). Under the existing system, no black lawyer has ever run for a position on the Circuit Court, Criminal Court, Chancery Court, or General Sessions Court in Hamilton County. Neither has the Governor of Tennessee ever appointed a black judge to the Hamilton County bench

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under his authority to designate judges to fill vacancies in the positions at issue here.

We have previously had occasion to review the controversy underlying this case, and our opinion in that matter was reported sub nom. Cousin v. McWherter at 46 F.3d 568 (6th Cir.1995). In that case, as in this one, we considered the district court's finding of a Section 2 violation. We held that the district court had failed to provide us with sufficiently detailed bases for its reasoning. Id. at 574 (noting that "we require a particularly definite record for voting rights cases") (citing Velasquez v. City of Abilene, 725 F.2d 1017, 1020 (5th Cir.1984)). Specifically, we faulted the district court for analyzing the plaintiffs' claims under "an over-arching 'totality of the circumstances' " test and not clearly addressing the application of the Gingles pre-conditions to the claims. Id. at 575. We also found that the district court failed to weigh the state's interest in "linkage"--the identity of the jurisdictional and electoral bases of its judges--as a separate and legitimate factor to be considered as part of the totality of the circumstances, id. at 576, and erred in concluding that this interest was " 'nebulous at best.' " Id. at 577. We recognized that the state's interest was but one factor in the totality of the circumstances test, but held that the linkage interest was a substantial one. Id. (citing League of United Latin Amer. Citizens v. Clements, 999 F.2d 831 (5th Cir.1993) (en banc) (hereinafter "LULAC ")). See also Houston Lawyers' Ass'n v. Attorney General of Texas, 501 U.S. 419, 426-27, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991) (finding a state's linkage interest to be a "legitimate factor" among the totality of the circumstances). Accordingly, we directed that, on remand, "the plaintiffs must produce evidence supporting the dilution claim sufficient to carry their burden of outweighing the state's interest." 46 F.3d at 577. We expressed no opinion on the merits of the case, but vacated the district court's decision and remanded for more specific findings:

On remand, the district court is to determine the presence or absence of the three Gingles pre-conditions which plaintiffs must necessarily prove in order to establish their vote dilution claim; and if the court finds those preconditions do exist, to consider the totality of the circumstances in order to determine whether, in the context of all those circumstances, a Section 2 violation has occurred.


The district court's opinion on remand is now before us. See Cousin v. McWherter, 904 F.Supp. 686 (E.D.Tenn.1995). The district court found that the plaintiffs had met the Gingles pre-conditions, and that the totality of the circumstances weighed in favor of finding Section 2 liability. The district court ordered the State of Tennessee to submit a new plan for electing Hamilton County judges within 90 days of December 27, 1995, the date its opinion was rendered. This deadline was subsequently extended twice. Though bills attempting to designate a remedy were proposed in both the Tennessee House and Senate in January of 1996, and passed by the Judiciary Committee of the respective houses in April, 1996, neither bill gained the approval of the full body. Since the Legislature failed to propose an appropriate remedy, the district court solicited the parties' suggestions in May, 1996. In response to this invitation, the State "[took] no position as to the remedy that this Court should impose...."

The district court ultimately rejected the plaintiffs' proposed remedy--the creation of single-member districts within Hamilton County--and ordered a scheme of countywide cumulative voting for Hamilton County judgeships. Thus, under the district court's order, beginning with the August, 1998, regular election, judges for the Circuit Court, Criminal Court, Chancery Court, and General Sessions Court in Hamilton County would run in elections in which each voter is given the number of votes corresponding to the number of seats to be filled and allowed to allocate those votes among the eligible candidates as he or she sees fit. Because the district court's order encompassed any additional judgeships created in the relevant courts before the August, 1998, election, it would therefore also apply to the two newly-created General Sessions Court judgeships.

We find that the district court erred in its analysis of the Gingles pre-conditions. Indeed,

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our conclusion that the plaintiffs did not meet the third pre-condition would justify our reversal of this case. Even if we had found that the plaintiffs had successfully carried their Gingles burden, however, we also find that the district court erred in its application of the totality of the circumstances test. Finally, we disagree with the propriety and rationale of the plaintiffs' and the district court's proposed remedies in this case. As the district court properly recognized, single-member districting would violate Tennessee's important and substantial linkage interest. In addition, two of the three districting plans presented by the plaintiffs present additional deficiencies such that we could not approve them even if we ignored the state's linkage interest. Moreover, we consider cumulative voting a mechanism for achieving proportional representation among the judges in Hamilton County, a purpose for which Section 2 of the Voting Rights Act was not intended, and find it a particularly inappropriate remedy when applied to the election of state court judges. All three reasons underlie the result we reach in this case.

Our treatment of these issues is consistent with the latest opinions from other Courts of Appeals dealing with Voting Rights Act challenges to the conduct of judicial elections. See Milwaukee Branch of the N.A.A.C.P. v. Thompson, 116 F.3d 1194 (7th Cir.1997) (involving a challenge to the election of circuit court and state appellate court judges in Milwaukee County), cert. denied, --- U.S. ----, 118 S.Ct. 853, 139 L.Ed.2d 753 (1998); White v. Alabama, 74 F.3d 1058 (11th Cir.1996) (involving a challenge to the method of electing judges to Alabama's civil and criminal appellate courts); Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc) (involving a challenge to Florida's method of electing judges to the state's Fourth Judicial Circuit); LULAC, 999 F.2d 831 (involving a challenge to Texas' system of electing...

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3 practice notes
2 books & journal articles
    • United States
    • Case Western Reserve Law Review Vol. 69 Nbr. 1, September 2018
    • September 22, 2018
    ...(11th Cir. 1994); see also S. Christian Leadership Conf., 56 F.3d at 1296. (257.) Nipper, 39 F.3d at 1543. (258.) Cousin v. Sundquist, 145 F.3d 818, 827 (6th Cir. (259.) The district court in Lopez made the same point, recognizing that single member districts: would also reduce any given vo......
  • The multimember district: a study of the multimember district and the Voting Rights Act of 1965.
    • United States
    • Albany Law Review Vol. 66 Nbr. 1, September 2002
    • September 22, 2002
    ...plaintiffs did not establish that the totality of the circumstances supported a finding of vote dilution). (265) See Cousin v. Sundquist, 145 F.3d 818, 826 (6th Cir. 1998) (holding that the plaintiffs failed to meet the third prong of the Gingles test). (266) See Nipper v. Smith, 39 F.3d 14......
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