Solomon v. Liberty County, Fla., 87-3406

Citation899 F.2d 1012
Decision Date05 April 1990
Docket NumberNo. 87-3406,87-3406
Parties59 Ed. Law Rep. 641 Gregory SOLOMON, Patricia Beckwith, Raleigh Brinson, and Earl Jennings, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. LIBERTY COUNTY, FLORIDA, Gene Free, Chairman, Commissioner, Joe Burke, Commissioner, James E. Johnson, Commissioner, J.L. Johnson, Commissioner, John T. Sanders, Commissioner, their successors and agents, all in their official capacities, Defendants-Appellees. Gregory SOLOMON, Patricia Beckwith, Raleigh Brinson, and Earl Jennings, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. LIBERTY COUNTY SCHOOL BOARD, FLORIDA, Ras Hill, Chairman, Joseph Combs, Tommy Duggar, W.L. Potter, Herbert Whittaker, members of the Liberty County School Board, their successors and agents, all in their official capacities, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

David M. Lipman, Lipman & Weisberg, Miami, Fla., for plaintiffs-appellants.

Katherine Inglis Butler, University of South Carolina College of Law, Columbia, S.C., for defendants-appellees.

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

Before TJOFLAT, Chief Judge, FAY, VANCE *, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON, and COX, Circuit Judges, and HILL **, Senior Circuit Judge.

PER CURIAM:

We unanimously vacate the district court's judgment and remand the case for further proceedings in accordance with the Supreme Court's pronouncement in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). We hold, as a matter of law, that the appellants have satisfied the three Gingles factors, see post at 1037 (Tjoflat, C.J., specially concurring), 1017 (Kravitch, J., specially concurring), but we are divided on the legal effect of proving those factors. Because we are divided in our interpretation of Gingles and section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973 (1982), we do not specifically direct the district court on how to proceed on remand. Rather, we instruct the district court to proceed in accordance with Gingles, giving due consideration to the views expressed in Chief Judge Tjoflat's and Judge Kravitch's specially concurring opinions. This case is VACATED and REMANDED for further proceedings.

IT IS SO ORDERED.

KRAVITCH, Circuit Judge, specially concurring, in which JOHNSON, HATCHETT, ANDERSON and CLARK, Circuit Judges, join:

Appellants brought these cases alleging that the at-large method of electing county commissioners and school board members in Liberty County, Florida denies black voters a fair opportunity to participate in the political process and to elect candidates of their choice. This court granted appellants' petition for rehearing in banc to clarify the plaintiff's burden of proof in a claim under section 2 of the Voting Rights Act of 1965, 42 U.S.C. Secs. 1971, 1973 to 1973bb-1 (1982).

I. BACKGROUND

Both the county commission and the school board in Liberty County, Florida consist of five members who serve staggered four-year terms. Fla. Const. Art. VIII, Sec. 1(e) (county commission); Fla.Stat. Sec. 100.041(3) (1987) (school board). The county is divided into five districts; candidates for the commission and the school board run from the district in which they live. Fla. Const. Art. VIII, Sec. 1(e) (commission); Fla.Stat. Sec. 124.01 (1987) (commission); id. Sec. 230.061 (school board). In both the primary and general elections, the entire county electorate votes for one candidate from each residence district. Id. Sec. 100.041(2) (commission); Id. Secs. 230.08-.10 (school board). A candidate must receive a majority of the countywide vote to be selected as his party's nominee in the primary election. If no candidate receives a majority of the vote in the primary, a run-off primary election is held. See Secs. 100.061, 100.091. In the general election, candidates must obtain a plurality of the countywide vote to win election. Id. Secs. 100.181, 230.10.

Blacks comprise eleven percent of the population of Liberty County. Under the present residency district lines, blacks comprise 49 percent of the total population of District 1, and 51 percent of the total population of voting age in that district. There have been four black candidacies for elected countywide offices in Liberty County: three for the school board and one for the county commission. All of the black candidates have been unsuccessful.

Appellants seek injunctive relief, contending that the county should be divided into five districts, each of which would elect a single member to the commission and to the school board. The new geographical division would create a district with a black majority. The district court ruled in favor of appellees, finding that black voters exercise more political influence under the current system than they would under any single-member district plan. Solomon v. Liberty County, Florida, Nos. TCA 85-7009-MMP & TCA 85-7010-MMP, slip op. (N.D.Fla.1987). On appeal, a panel of this court vacated the judgments of the district court and remanded for further proceedings on the ground that the district court analyzed the evidence under an erroneous legal standard. Solomon v. Liberty County, Fla., 865 F.2d 1566, 1573 (11th Cir.1988), vacated, 873 F.2d 248 (1989).

II. SECTION 2 OF THE VOTING RIGHTS ACT

The proof required to establish a claim for voting discrimination has been changed twice since the Voting Rights Act was passed in 1965. 1 Until 1980, voting discrimination cases were governed by the "results test." Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872-73, 29 L.Ed.2d 363 (1971); White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973); Zimmer v. McKeithen, 485 F.2d 1297, 1304-05 (5th Cir.1973), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Under this test, plaintiffs could prevail by showing that, under the totality of the circumstances, the challenged electoral procedure had the result of denying a minority group equal opportunity to participate in the political process. Zimmer identified numerous factors that would influence a finding of exclusionary results. 485 F.2d at 1305. Plaintiffs were not required to demonstrate that lawmakers had acted intentionally to exclude minorities.

Then, in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court renounced the results test. Although there was no majority opinion in Bolden, at least five justices took the position that discriminatory purpose was a necessary element of a claim for vote dilution. In order to establish a violation of either section 2 of the Voting Rights Act of 1965 or of the Fourteenth or Fifteenth Amendments, plaintiffs were required to prove that officials adopted or maintained a challenged electoral mechanism with the intent to discriminate against minority voters. Zimmer, a plurality of the Court explained, was "decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause--that proof of a discriminatory effect is sufficient." Bolden, 446 U.S. at 71, 100 S.Ct. at 1501-02. The plurality said that henceforth a necessary ingredient of a successful claim of minority vote dilution was evidence that officials " 'conceived or operated [a] purposeful devic[e] to further racial discrimination.' " Id. at 70, 100 S.Ct. at 1501 (quoting Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872).

In 1982, largely in response to the Court's decision in Bolden, see S.Rep. No. 417, 97th Cong., 2d Sess. 24-39, reprinted in 1982 U.S.Code Cong. & Admin.News 177 (hereinafter S.Rep.), Congress amended section 2 of the Voting Rights Act to restore the legal standard that governed voting discrimination cases prior to Bolden. 2 S.Rep. at 27. In adopting the results test, Congress sought to remedy several problems engendered by the subjective intent test. First, the intent test "asks the wrong question," id. at 36, by probing the racial motives of lawmakers rather than determining whether minorities can participate equally in the political system. "If [minorities] are denied a fair opportunity to participate ... the system should be changed, regardless of what may or may not be provable about events which took place decades ago." Id. Second, Congress found the intent test unnecessarily divisive because it requires charges of racism on the part of officials or entire communities, a consequence which the results test avoids. Id. Finally, the intent test places too high an evidentiary burden on plaintiffs, often involving attempts to reconstruct the motives of persons long dead from incomplete or even non-existent official records. Id. at 36-37. See also Note, To Infer or Not to Infer a Discriminatory Purpose: Rethinking Equal Protection Doctrine, 61 N.Y.U.L.Rev. 334, 343-44 (1986) (summarizing the difficulties of proving discriminatory intent).

Congress found that the intent test diminished the effectiveness of the Voting Rights Act as a means of fighting voting discrimination. Explaining its rejection of Bolden, see S.Rep. at 31-34, 37-39, the Committee on the Judiciary noted that "[i]t was only after the adoption of the results test and its application by the lower federal courts that minority voters in many jurisdictions finally began to emerge from virtual exclusion from the electoral process. We are acting to restore the opportunity for further progress." Id. at 31, 1982 U.S.Code Cong. & Admin.News at 209.

The Senate Report set forth several "factors" derived from White, Zimmer, and other voting rights cases, a showing of which will typically establish a section 2 violation:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority...

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