Ala. State Conference of N.A. for Advancement of Colored People v. Merrill

Decision Date05 February 2020
Docket NumberCASE NO. 2:16-CV-731-WKW [WO]
PartiesALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, SHERMAN NORFLEET, CLARENCE MUHAMMAD, CURTIS TRAVIS, and JOHN HARRIS, Plaintiffs, v. STATE OF ALABAMA and JOHN H. MERRILL, in his official capacity as Alabama Secretary of State, Defendants.
CourtUnited States District Courts. 11th Circuit. Middle District of Alabama

ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, SHERMAN NORFLEET,
CLARENCE MUHAMMAD, CURTIS TRAVIS, and JOHN HARRIS, Plaintiffs,
v.
STATE OF ALABAMA and JOHN H. MERRILL,
in his official capacity as Alabama Secretary of State, Defendants.

CASE NO. 2:16-CV-731-WKW [WO]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

February 5, 2020


MEMORANDUM OPINION AND ORDER

TABLE OF CONTENTS

I. INTRODUCTION — 4

II. JURISDICTION AND VENUE — 10

III. BACKGROUND — 11

IV. STANDARD OF REVIEW FOR BENCH TRIALS — 19

V. DISCUSSION — 20

A. Section 2 Vote Dilution — 20

1. Section 2: The Statute — 20

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2. Burden of Proof — 21
3. The Meaning of Section 2 — 23
a. Legislative History — 23
b. Gingles Preconditions and Totality-of-Circumstances Test — 25
4. Section 2 and At-Large Judicial Elections — 29
a. Nipper v. Smith and Later Eleventh Circuit Caselaw Developments — 35
i. The Importance of a State's Interests — 36
ii. Nipper's Applicability to Appellate Judicial Elections — 40
iii. The Role of Causation in the § 2 Vote Dilution Analysis — 41
b. Summary — 44
5. Analysis of the Gingles Preconditions — 45
a. Introduction — 45
b. The First Gingles Precondition — 46
i. The Inextricably Intertwined Nature of Liability and Remedy in the Eleventh Circuit — 47
ii. Factors Governing the First Gingles Precondition — 48
iii. Plaintiffs' Illustrative Plans for Alabama's Appellate Courts — 54
iv. Whether the Illustrative Plans for the Alabama Supreme Court Satisfy the First Gingles Precondition — 55
v. Whether the Illustrative Plans for Alabama's Intermediate Courts Satisfy the First Gingles Precondition — 57

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c. The Second and Third Gingles Preconditions — 68
i. Proof of the Second and Third Gingles Preconditions: Generally — 71
ii. Plaintiffs' Statistical Evidence of Racially Polarized Voting — 75
iii. Findings of Fact and Conclusions of Law: Racially Polarized Voting — 88
6. The Totality of Circumstances — 99
a. Senate Factors 1 and 5: Alabama's History of Discrimination and Its Lingering Effects — 102
i. Senate Factor 1: History of Discrimination in Voting — 102
ii. Senate Factor 5: Discrimination in Education, Employment, and Health — 106
iii. Evaluation and Weighing of Senate Factors 1 and 5 — 109
b. Senate Factor 2: The Extent of Racially Polarized Voting (Causation) — 111
i. Party Alignment in Alabama — 112
ii. The Relative Strength of the Two Parties — 116
iii. Partisan Judicial Elections — 121
iv. Straight-Ticket Voting — 123
v. The Competitiveness of Black-Preferred Candidates in Appellate Judicial Races — 125
vi. Whether Party Is a Proxy for Race — 127
vii. Weighing of Senate Factor 2 — 145
c. Senate Factor 3: Election Devices that Enhance Potential for Discrimination — 146
d. Senate Factor 4: Slating — 150
e. Senate Factor 6: Racial Appeals — 152

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f. Senate Factor 7: Extent of Minority Success — 158
g. Senate Factor 8: Responsiveness to Minority Needs — 167
h. Senate Factor 9: Whether the State's Policy Is Tenuous — 168
i. Conclusion: Totality of Circumstances — 168
7. Remedy: Balancing the State's Interests Against Plaintiffs' Interests in Remedial Districting - 171
a. Interference with Alabama's Constitutional Model — 171
b. Linkage Between Appellate Judges' Jurisdictions and Electoral Base — 176
i. Impartial Administration of Justice in Alabama's Appellate Courts — 177
ii. Judicial Accountability and Independence — 179
iii. A Matter of Law, Not Fact — 190
c. The Pool of Candidates — 192
d. Weighing of the Interests — 194

B. Constitutional Claims — 197

VI. CONCLUSION — 206

I. INTRODUCTION

In 1868, Alabama adopted an at-large, statewide method of electing its Supreme Court. That method has been in place for 152 years. "At-large" means that justices of the Alabama Supreme Court run statewide, not in districts. There presently are nine seats on the Alabama Supreme Court. Justices are elected in

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partisan, staggered elections on a rotating basis of one, three, and five justices, every two years (to fill six-year terms). Eight of the justices run in numbered places to avoid having to run against each other, with the ninth being the position of Chief Justice.

In 1911, the Alabama Legislature created an intermediate Court of Appeals, and in 1969 it divided the Court of Appeals into the Court of Criminal Appeals and the Court of Civil Appeals. Since 1911, a partisan at-large, statewide election structure has been in place for Alabama's intermediate appellate courts. There presently are five seats on each court of appeals, and the judges are elected to numbered places for six-year, staggered terms. Judges of the Court of Criminal Appeals elect the presiding judge, while the most senior judge on the Court of Civil Appeals serves as the presiding judge. Mid-term vacancies in the appellate courts are filled by gubernatorial appointment.

Plaintiffs — the Alabama State Conference of the National Association for the Advancement of Colored People and registered Alabama voters (Sherman Norfleet, Clarence Muhammad, Curtis Travis, and John Harris) — seek an injunction against the enforcement of the State's at-large method of electing its appellate judges on grounds that the method contravenes § 2 of the Voting Rights Act of 1965 ("VRA"), as amended, and the Fourteenth and Fifteenth Amendments' prohibition against intentional racial discrimination. See U.S Const. amend. XIV,

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§ 1, XV; Voting Rights Act of 1965, § 2, 52 U.S.C. § 10301 (2018). Plaintiffs also seek a federal court order directing the State to create a new method of election for Alabama's appellate courts that complies with § 2 of the VRA and the Constitution; their proposed remedy is single-member districts for partisan elections of appellate judges. Defendants are the State of Alabama and John H. Merrill, in his official capacity as Alabama Secretary of State.1

Plaintiffs allege that the at-large method "dilutes" the votes of African-American Alabamians "on account of race." The phrase "on account of race" is taken directly from § 2 of the VRA. The political history of Alabama confirms that the 1965 VRA was passed with the impetus of the famous Selma-to-Montgomery March in the spring of that year, led by Dr. Martin Luther King, and managed by Judge Frank M. Johnson, Jr. of this court (for whom this court complex is named). And the momentum behind the 1982 VRA amendment arose out of an Alabama federal court case. See Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. Ala. 1976), aff'd, 571 F.2d 238 (5th Cir. 1978), rev'd, 446 U.S. 55 (1980).

In fact, the political history of Alabama intersects with the modern Civil Rights Movement at almost every major turn. But Alabama history did not begin and end with the Civil Rights Movement. Since the early 1900s, that history has

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intersected in interesting and unusual ways with the federal court system and with Alabama's own state courts. Courts at both the state and federal level have dominated the civic life of Alabamians, often as a refuge of justice and fairness and sometimes to the point of exasperation (both of the courts and Alabama politicians). More of that later.

"Dilution" of a vote "on account of race" does not intrinsically help the reader understand the concept. Vote dilution, in the § 2 "sense, . . . refers to the impermissible discriminatory effect that a multimember or other districting plan has when it operates 'to cancel out or minimize the voting strength of racial groups.'" Thornburg v. Gingles, 478 U.S. 30, 87 (1986) (O'Connor, J., concurring in the judgment) (quoting White v. Regester, 412 U.S. 755, 765 (1973)). In its simplistic form, if a vote is diluted, it has less strength — "weight" in judge-speak — than other votes.2

Vote dilution matters politically when Alabama is approximately 69% white and 26% black and when candidates supported by a majority of white voters have won all of the races for appellate court positions lately. But analyzing the political

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losses of black-preferred candidates under § 2 is anything but simple, especially when causation "on account of race" is the measure by which an illegal condition is said to exist in state politics.3 Dilution can occur on account of intentional racial discrimination by the State, but intentional discrimination is not required for Plaintiffs to prevail under § 2. On the other hand, mere correlation of race and voting is not enough; Plaintiffs must prove that the electoral losses were on account of race, that is, caused by racial considerations. In § 2 jargon, Plaintiffs must establish that the at-large, statewide system of elections of Alabama's appellate judges "results in" the denial of their right to vote "on account of race," which is proven if the "totality of circumstances" shows that the State's method of electing its appellate judges is not "equally open" to African Americans. § 10301. This is the sweet spot of Plaintiffs' § 2 burden here. Absent proof of race as a cause of electoral losses, such losses "may plausibly be attributed to the inescapable fact that, in a majoritarian system, numerical minorities lose elections," irrespective of the race of the minority. Holder v. Hall, 512 U.S. 874, 901 (1994) (Thomas, J., concurring in the judgment).

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The State says that the political losses for appellate judgeships can be explained by other factors generally under the heading of partisanship: that the losses of candidates favored by African-American voters are the result of several partisan divides that have nothing to do with race. Additionally, the State argues that Alabama's interests outweigh Plaintiffs' interests in adopting a remedial districting scheme for the election of appellate judges. First, Alabama's interest in maintaining its chosen format for appellate judicial elections established under its state Constitution is primary under our federal system of shared sovereignty, and a federal court has no business upsetting the State's choice of 152-year-old and 109-year-old at-large voting systems for...

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