Cousin v. McWherter

• Decision Date: 14 February 1995
• Docket Number: No. 94-5220,94-5220
• Citation: 46 F.3d 568
• Parties: Maxine B. COUSIN, et al., Plaintiffs-Appellees, v. Ned R. McWHERTER, Governor of Tennessee, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 568

46 F.3d 568

31 Fed.R.Serv.3d 1409

Maxine B. COUSIN, et al., Plaintiffs-Appellees, v. Ned R. McWHERTER, Governor of Tennessee, et al Defendants-Appellants.

No. 94-5220.

United States Court of Appeals Sixth Circuit.

Argued June 20, 1994.

Decided Feb. 14, 1995.

Richard H. Dinkins, Jr., Williams & Dinkins, Nashville, TN, Myron Bernard McClary, Chattanooga, TN, Margaret Carey, Greenveille, MS, Laughlin McDonald (argued and briefed), American Civil Liberties Union Foundation, Atlanta, GA, for plaintiffs-appellees.

Michael W. Catalano, Deputy Atty. Gen., Nashville, TN (argued and briefed), for defendants-appellants.

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

KEITH, Circuit Judge.

Defendants-Appellants, Ned McWherter, the Governor of Tennessee; the Tennessee State Election Committee; Will Burns, the Coordinator of Elections; the Hamilton County Election Committee; and Steve Conrad, the Registrar-at-Large of Hamilton County ("Defendants"), appeal the judgment of the district court finding Hamilton County's at-large, circuit-wide method of electing judges violated Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973, and the order enjoining the State of Tennessee from conducting further Hamilton County elections under such a system. See Cousin v. McWherter, 840 F.Supp. 1210 (E.D.Tenn.1994). For the reasons set forth below, we VACATE the district court's judgment and REMAND this case for more specific findings of fact and conclusions of law consistent with this opinion.

I. Statement of the Case

On August 31, 1990, Plaintiffs ¹ filed a complaint in the United States District Court for the Eastern District of Tennessee alleging the at-large, circuit-wide method of electing judges in the Eleventh Judicial District of Tennessee resulted in violations of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973 ("Section 2"). ² Because the issue of whether Section 2 applied to the election of state trial judges was pending before the Supreme Court in Houston Lawyers' Ass'n v. Attorney General of Texas, the district court held the matter in abeyance. See, 501 U.S. 419, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991). Subsequently, trial was set for November 8, 1993.

On October 8, 1993, the district court denied Defendants' motion for summary judgment and the case proceeded to trial. In January 1994, the district court issued a Memorandum Opinion finding Tennessee's at-large system of electing judges violated Section 2 of the Voting Rights Act. Two weeks later, after a settlement conference, the district court issued an order enjoining the State from conducting any further at-large elections and ordered the State to submit an election plan in compliance with the Voting Rights Act.

In the course of its Memorandum Opinion, the district court concluded "[t]he nature of a Section 2 violation and the proof required to establish this type of claim is explained in the Senate Report that accompanied the 1982 amendments to the Voting Rights Act." Cousin, 840 F.Supp. at 1212. It then listed the nine factors usually attributed to the Senate Report which are said to assist courts in applying the "results test" embodied in Section 2. The district court found "Blacks in Hamilton County, as a result of past and continuing discrimination in education, employment and other areas, have been isolated from the economic and political mainstream. They remain a socioeconomically depressed minority with a limited ability to fund and mount political campaigns." Id. 840 F.Supp. at 1218-19. The district court concluded six of these nine factors were applicable to this case. The district court further discussed the ninth factor--whether the policy underlying the state's method of electing judges is tenuous--and pointed out:

[t]he State contends that it has a vital interest in the at-large election of the separate circuit court, chancery court, criminal court and general sessions court judges in Hamilton County. The State contends that the method of electing these judges with their jurisdiction being coextensive with the electorate is a strong factor weighing in favor of finding no violation under Section 2 of the Voting Rights Act in this case[,]

id. at 1220, but concluded:

this policy underlying the practice of county wide election for judges is tenuous if a totality of circumstances test is utilized.

....

Therefore ... this state interest in at-large elections will not suffice to overcome a violation of Section 2, because of dilution of black voting strength that it produces in Hamilton County, Houston Lawyers' Assn. v. Atty. Gen., 501 U.S. 419, 426-27, 111 S.Ct. 2376, 2380-81, 115 L.Ed.2d 379, 387 (1991), and because it is a somewhat nebulous interest at best.

Id.

Defendants filed a timely notice of appeal and a simultaneous motion for stay pending appeal with the district court. After the district court denied the motion for stay, Defendants sought a stay from this Court. This Court granted a stay pending appeal and expedited the case for appeal.

Although the district court opinion adequately sets out the relevant facts, to illustrate the importance of the claims at hand, we must re-examine certain facts to add context to our decision. The Eleventh Judicial Circuit of Tennessee encompasses Hamilton County, Tennessee, and consists of "nine incumbent trial judges and the district attorney currently residing in [Hamilton] County." Tenn.Code.Ann. Sec. 16-2-506(11)(a) (1992). The nine incumbent judges of the Eleventh Judicial Circuit include: 1) the four members of the Circuit Court; 2) the three members of the Criminal Court; and 3) the two members of the Chancery Court. The General Sessions Court, a county court of Hamilton County, consists of three members. The Plaintiffs challenged the use of an at-large, circuit-wide system of electing the nine judges of the Circuit, Criminal and Chancery courts of the Eleventh Judicial District, and the three judges of the Court of General Sessions of Hamilton County.

Hamilton County has a population of 285,536 people of which African-Americans represent 19%. In the city of Chattanooga, African-Americans represent 33.7% of the population--the largest concentration in Hamilton County. In fact, only 5.8% of African-Americans in Hamilton County live outside Chattanooga.

All Tennessee judges are elected at-large and circuit-wide to eight year terms. Tenn. Const. art. VI, Sec. 4; Tenn.Code Ann. Sec. 17-1-103 (1992). No ward or district residency requirements exist and candidates must designate the particular division or court to which they seek election. Although candidates for these judgeships run county-wide they do not run in a "pool" from which the top vote-getters are declared winners; instead, they vie for separately designated positions and the person receiving the highest number of votes in each individual contest wins. In Hamilton County, there is no candidate slating process for judicial officers or majority vote requirement for disputed offices. Tenn.Code Ann. Sec. 2-8-110 (1992). Under the present at-large system, no African-American has ever been elected as a Circuit, Criminal, Chancery or General Sessions Court judge in Hamilton County.

Additionally, the Governor may appoint judges to fill vacancies in county judgeships allowing these judges to later run as incumbents. Of the present nine judges of the Eleventh Judicial Circuit, five were appointed to office and a sixth was appointed in 1977. All six ran county-wide in 1982 as incumbents. The Governor, however, has never appointed an African-American to a county-wide judgeship in Hamilton County. ³

II. Discussion

On appeal, Defendants contend the district court reversibly erred by:

(1) failing to conduct any Gingles pre-condition analysis;

(2) concluding Plaintiffs met the Gingles pre-conditions;

(3) misapplying the "totality of the circumstances" test; and

(4) failing to find the State's interest in maintaining the co-extensive electorate and jurisdiction of the courts outweighed any other factors supporting a Section 2 violation.

In response, Plaintiffs argue the district court properly applied Gingles and found evidence supporting all three pre-conditions. Plaintiffs assert they established, and the district court correctly found, a Section 2 violation under the "totality of the circumstances." Plaintiffs finally allege the state's interest in maintaining a link between a judge's county-wide jurisdiction and electoral base does not outweigh the violation in this case. ⁴

As discussed below, we find the district court's opinion does not provide a sufficient record from which to discern the bases underlying its decision. Additionally, we find the district court erred by analyzing the weight of a state's interest within the context of tenuous state election policies--one of the factors suggested by the Senate Report for use in approaching the "totality of the circumstances" test. Finally, we hold the district court erred as a matter of law by finding Tennessee's interest in a judiciary with a co-extensive electorate and jurisdiction was "a somewhat nebulous interest at best."

A. Background

A review of the passage and history of the Voting Rights Act reveals its broad purpose and expansive application. Section 2 of the Voting Rights Act of 1965 was originally viewed as co-extensive with the Fifteenth Amendment's guarantee that no citizen's right to vote shall "be denied or abridged ... on account of race, color, or previous condition of servitude." U.S. Const. amend. XV. During Congressional Hearings prior to the passage of the Act, the Attorney General indicated the Act would reach "every election in which registered voters are permitted to vote." Voting Rights: Hearing Before Subcomm. No. 5 of the House Judiciary Comm., 89th Cong., 1st Sess. 21 (1965). Similarly, the Supreme Court has demanded an expansive interpretation of the Voting Rights Act noting that the purpose...