McMillan v. Escambia County, Fla., s. 78-3507

• Decision Date: 19 December 1984
• Docket Number: Nos. 78-3507,80-5011,s. 78-3507
• Parties: Henry T. McMILLAN, et al., Plaintiffs-Appellees, v. ESCAMBIA COUNTY, FLORIDA, et al., Defendants-Appellants. Elmer JENKINS, et al., Plaintiffs, v. CITY OF PENSACOLA, et al., Defendants. Henry T. McMILLAN, et al., Plaintiffs-Appellees, v. ESCAMBIA COUNTY, FLORIDA, et al., Defendants-Appellants. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1037

748 F.2d 1037

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

Elmer JENKINS, et al., Plaintiffs, v. CITY OF PENSACOLA, et al., Defendants.

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. ^*

Dec. 19, 1984.

Richard I. Lott, County Atty., Patricia D. Wheeler, Paula G. Drummond, Richard P. Warfield, D.L. Middlebrooks, B. Dawn Wiggins, Thomas R. Santurri, Pensacola, Fla., for Escambia County.

Ray, Patterson & Kievit, P.A., Pensacola, Fla., Rhyne & Rhyne, William S. Rhyne, Charles S. Rhyne, Donald A. Carr, Washington, D.C., for School Bd.

James U. Blacksher, Larry T. Menefee, Blacksher, Menefee & Stein, Mobile, Ala., Edward Still, Reeves & Still, Birmingham, Ala., Kent Spriggs, Spriggs & Henderson, Tallahassee, Fla., Julius C. Chambers, Napoleon B. Williams, Legal Defense Fund, New York City, for plaintiffs-appellees.

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

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

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before RUBIN and KRAVITCH, Circuit Judges, and PECK ^**, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Plaintiffs, black voters of Escambia County, Florida, filed this class action in March 1977, challenging the at-large system for electing Escambia County commissioners. ¹ The district court held the system was unconstitutional pursuant to the fourteenth and fifteenth amendments and that it violated section 2 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973, as amended in 1975. Defendants appealed and this court reversed. McMillan v. Escambia County, Fla., 638 F.2d 1239 (5th Cir.1981) (hereinafter "Escambia I "). ² Plaintiffs sought rehearing and this court reserved ruling on the petition pending the Supreme Court's decision in Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Based on the Supreme Court's opinion in Lodge, we vacated our prior decision and held that the at-large system for electing Escambia County commissioners violated the fourteenth amendment. McMillan v. Escambia County, Fla., 688 F.2d 960 (5th Cir.1982) (hereinafter "Escambia II"). ³ Because of our desire not to further delay elections in Escambia County, we did not reach plaintiffs' assertions that the at-large system also violated the fifteenth amendment and the recently amended section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, as amended in 1982. Id. at 961-62 & n. 2. On appeal, the Supreme Court declined to review our fourteenth amendment holding because "[a]ffirmance of the statutory ground would moot the constitutional issue presented by the case." Escambia County, Fla. v. McMillan, --- U.S. ----, 104 S.Ct. 1577, 1578-79, 80 L.Ed.2d 36 (1984). The Court vacated the judgment of this court and "remand[ed] the case to [the Court of Appeals] for consideration of the question whether the Voting Rights Act provides grounds for affirmance of the District Court's judgment." Id. 104 S.Ct. at 1579 (footnote omitted).

We now hold that section 2 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973, as amended in 1982, does provide grounds for affirmance of the district court's opinion. ⁴

I. BACKGROUND ⁵

The five members of the Escambia County 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 brought this action claiming that the county's at-large election system unconstitutionally dilutes their votes.

The district court found that blacks comprise seventeen percent of the registered voters of 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 obtaining a majority of the votes in the County Commission elections. Having concluded 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, 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 depressed socioeconomic 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. ⁶

In our prior decision, we determined that the evidence in the record fully supported the district court's factual findings. Escambia II, 688 F.2d at 969. We again make this finding. Our task, then, is to apply the factual findings of the district court to the recently amended Voting Rights Act.

II. APPLICATION OF SECTION 2

In 1982, Congress amended section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, to read as follows:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. ⁷

This is not a case of first impression. In both United States v. Dallas County Commission, 739 F.2d 1529 (11th Cir.1984), and United States v. Marengo County Commission, 731 F.2d 1546 (11th Cir.1984), appeal dismissed, cert. denied, --- U.S. ----, 105 S.Ct. 375, 83 L.Ed.2d 371 (1984), the Eleventh Circuit has applied the amended section 2 to claims of voter dilution as a result of at-large election systems. Thus, many of the preliminary issues in this case have already been resolved. We have held that section 2 is constitutional under Congress' enforcement power under the fourteenth and fifteenth amendments, Marengo 731 F.2d at 1556-63; ⁸ that section 2 applies to voter dilution cases, id. at 1555-56; and that the amended version of section 2 applies to cases, such as this, commenced prior to passage of the amendment. Id. at 1553-55; see also Dallas, 739 F.2d at 1534.

The Marengo court fully delineated the standard for assessing alleged violations under the amended section 2. The court stated: "Congress wished to eliminate any intent requirement from section 2, and therefore changed the terms of Sec. 2(a), 42 U.S.C.A. Sec. 1973(a) (West Supp.) (1983), to forbid any practice that 'results in' discrimination." Id. at 1563. The amendment intended "to restore the legal standard that governed voter discrimination decisions before the Supreme Court decided Mobile v. Bolden." Id. at 1550 (footnote omitted). ⁹ The Marengo court summarized the new test:

The language and history of the statute make clear several points. First, discriminatory intent need not be shown to establish a violation. Second, at-large elections are not prohibited per se, nor does a lack of proportional representation automatically require a finding of a violation. At the same time, however, the absence of minority elected officials may be considered as an indicium of violation, and an at-large system will violate the statute if it results in a denial of equal participation. Congress noted that some at-large systems diluted black votes, and would be vulnerable under the amended statute. 1982 Senate Report at 6. Third, section 2 focuses not on whether minority groups receive adequate public services but on whether minorities have an equal right to participate in the political process. See id. at 36.

The Senate Report gives particular approval to the jurisprudence developed by the former Fifth Circuit in cases immediately following White v. Regester [412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) ] most notably Zimmer v. McKeithen, 5 Cir.1973, 485 F.2d 1297 (en banc ), aff'd per curiam sub nom. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. Zimmer listed a number of factors to be considered in dilution cases. The Senate Report repeats and elaborates on this list, characterizing them as "typical factors." These factors are to be weighed under a "totality of the circumstances approach."

Id. at 1564-66 (footnotes...