McMillan v. Escambia County, Fla.

• Decision Date: 24 September 1982
• Docket Number: Nos. 78-3507,80-5011,s. 78-3507
• Citation: 688 F.2d 960
• Parties: Henry T. McMILLAN et al., Plaintiffs-Appellees, v. ESCAMBIA COUNTY, FLORIDA et al., Defendants-Appellants. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 960

688 F.2d 960

Henry T. McMILLAN et al., Plaintiffs-Appellees, v. ESCAMBIA COUNTY, FLORIDA et al., Defendants-Appellants.

Nos. 78-3507, 80-5011.

United States Court of Appeals, Fifth Circuit.^*

Sept. 24, 1982.

Paula G. Drummond, Pensacola, Fla., for Escambia County.

Rhyne & Rhyne, Charles S. Rhyne, William S. Rhyne, Washington, D.C., for all defendants-appellants.

Don J. Canton, City Atty., Pensacola, Fla., for City of Pensacola.

Crawford, Blacksher, Figures & Brown, J. U. Blacksher, Larry Menefee, Mobile, Ala., Kent Spriggs, Tallahassee, Fla., Eric Schnapper, New York City, Edward Still, Birmingham, Ala., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Florida.

Before COLEMAN, PECK ^** and KRAVITCH, Circuit Judges.

ON PETITIONS FOR REHEARING

KRAVITCH, Circuit Judge:

Plaintiffs filed this class action in March 1977 challenging the at-large systems for electing Escambia's County Commissioners and School Board members. The case was consolidated with another class action suit challenging the election scheme for the Pensacola City Council. The district court held all three systems unconstitutional, and defendants in each case appealed. We affirmed the district court's decision as to the School Board and City Council, but reversed its holding as to the County Commission. McMillan v. Escambia County, 638 F.2d 1239 (5th Cir. 1981) (appeal on merits); McMillan v. Escambia County, 638 F.2d 1249 (5th Cir. 1981) (appeal on remedy); Jenkins v. Pensacola, 638 F.2d 1249 (5th Cir. 1981) (appeal on remedy). Plaintiffs sought rehearing of our decision as to the County Commission. ¹ We reserved ruling on the petition for rehearing pending the United States Supreme Court's decision in a case raising similar issues. That case has now been decided. See Rogers v. Lodge, --- U.S. ----, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Having reviewed the Supreme Court's opinion in Lodge, we conclude that the standards it sets forth compel reversal of our prior decision. We therefore grant plaintiffs-appellees' motion for rehearing, vacate the portion of our original opinion concerning the County Commission, No. 78-3507, 638 F.2d 1239, vacate opinion No. 80-5011, 638 F.2d 1249, and substitute the following.

I. Background

The five members of Escambia County's governing body, the Board of County Commissioners, are elected for staggered four-year terms in accordance with an at-large voting system. Under this system candidates run for numbered places corresponding to the districts in which they live, but each must be elected by the voters of the entire county. There is no majority-vote requirement for the general election, although candidates must obtain a majority of the votes cast in the party primaries to win party nomination.

As of the date of trial, four blacks had run for the County Commission, none of whom had been elected. Plaintiffs, representing black citizens of Escambia County, brought this action claiming that the county's at-large election scheme unconstitutionally ² dilutes their votes.

The district court found that blacks comprised seventeen percent of the registered voters in Escambia County and that in elections in which black candidates had run for the County Commission there had been a consistent pattern of racially polarized voting. The court found that the at-large system, coupled with the above factors, prevented black candidates from attaining a majority of the votes in the County Commission elections. ³ Having found that the at-large system had such discriminatory effect, the district court considered whether its purpose was discriminatory. Although the court found that the at-large system had not been enacted for a discriminatory purpose, ⁴ it concluded that the scheme had been maintained for such a purpose. In finding intentional discrimination, the court relied on a variety of factors, including the adverse effects of past discrimination by the state and county governments on blacks' exercise of their suffrage rights and participation in the political system, the unresponsiveness of elected County Commissioners to some needs of black citizens, ⁵ the depressed socio-economic status of blacks in the county, the tenuousness of the state policy behind the at-large system, and other features of the election system that enhanced its discriminatory effect. In addition to the above circumstantial or Zimmer evidence, ⁶ the district court found that the County Commissioners' refusal to submit to voters a proposed referendum that would change the election system from at-large to single-member districts further supported a finding that the at-large system was being maintained for a discriminatory purpose.

The district court decided this case prior to the Supreme Court's decision in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The district judge, however, apparently anticipated the holding of Bolden that discriminatory purpose is a required element of a vote-dilution claim under the fourteenth amendment. ⁷ He therefore rendered findings on the issue of discriminatory purpose, which we found sufficiently explicit to preclude the necessity for a remand in light of Bolden. Instead of remanding the case for further findings, we reviewed the district court's findings to determine whether they reflected enough evidence of discriminatory purpose to meet the standard set forth in Bolden. Concluding that the district court's subsidiary findings were not adequate to support its ultimate finding of intent under the Bolden standard, we reversed the decision of the district court.

In Bolden, the Supreme Court reversed a decision of the former Fifth Circuit that had invalidated an at-large election system as unconstitutionally diluting blacks' voting power. The Bolden Court explicitly held that discriminatory purpose was a required element of a vote-dilution claim brought under the fourteenth amendment ⁸ and reversed the lower court decision on the ground that there was inadequate evidence that the election system had been enacted or maintained for a discriminatory purpose. No view by any of the Justices in Bolden commanded a majority. Hence in interpreting that decision to determine its effect on this case, we looked to the opinions of the plurality and concurring Justices and attempted to discern "the view with which a majority of the Court could agree." McMillan v. Escambia County, 638 F.2d at 1243.

At least five Justices agreed in Bolden that "discriminatory purpose of some sort must be proven" in vote-dilution cases. Id. Those Justices split on the standard of proof for intent, however. ⁹ In view of the divergence between the Justices, we adopted Justice Stewart's opinion, which commanded the greatest number of votes. See id. Accordingly, we followed the plurality's directive that the Zimmer factors, which the Fifth Circuit had previously established as indicia of unconstitutional vote-dilution, see note 6 supra, are insufficient, standing alone, to support a finding of discriminatory purpose. See Mobile v. Bolden, 446 U.S. at 73, 100 S.Ct. at 1503 (plurality opinion). ¹⁰

As noted above, the district court based its finding of intent mainly on Zimmer factors although it also considered the County Commissioners' refusal to submit to the electorate a proposal to change the election system to a single-member district scheme. We interpreted Bolden as holding that the Zimmer criteria could not adequately support a finding of intentional discrimination and therefore focused on the latter evidence cited by the district court in reviewing its finding of intent. After examining the record, we concluded the Commissioners' actions in rejecting the proposed referendum provided insufficient evidence of intent to discriminate against blacks. We noted that the district court was entitled to discredit the Commissioners' testimony that there was no racial motivation behind their action but held that "disbelief of that testimony is not sufficient to support a contrary finding." McMillan v. Escambia County, 638 F.2d at 1245. Because the only other evidence of intent consisted of Zimmer factors, we reversed the district court's finding that the county election scheme was being maintained for a discriminatory purpose.

II.

Effect of Rogers v. Lodge on Our Decision That Plaintiffs

Failed to Establish Unconstitutionality of Escambia County Commission Election System

As we noted in our prior opinion, the Bolden Court's divergent analyses on the intentional discrimination issue left us somewhat "adrift on uncharted seas with respect to how to proceed." Id. at 1242 (quoting Mobile v. Bolden, 446 U.S. at 103, 100 S.Ct. at 1518 (White, J., dissenting)). In the more recent decision of Rogers v. Lodge, --- U.S. ----, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), the Supreme Court substantially clarified the constitutional standard governing vote-dilution claims. The Lodge opinion, which garnered a majority of the Justices, ¹¹ reaffirmed the holding of Bolden that evidence of purposeful discrimination is required to sustain an equal protection challenge to an election system. Id. at ----, 102 S.Ct. at 3275. The majority's analysis of the standard governing the type and amount of evidence necessary to show discriminatory intent, however, reflects both a more favorable view of the Zimmer factors and a greater deference to the finding of the district court than the analysis of the Bolden plurality.

Although the district court in Lodge had relied primarily on the Zimmer factors in finding purposeful discrimination, the Supreme Court rejected the argument that the decision was infirm under Bolden. Rather, the Court held that the district court had applied the proper legal standard. It noted that the district court's decision had been "rendered a considerable time after Washington v. Davis and Arlington Heights " and that "the trial judge also had the benefit of Nevett v....