Bone Shirt v. Hazeltine, 05-4010.

• Decision Date: 22 August 2006
• Docket Number: No. 05-4010.,05-4010.
• Citation: 461 F.3d 1011
• Parties: Alfred BONE SHIRT; Belva Black Lance; Bonni High Bull; Germaine Moves Camp, Appellees, v. Joyce HAZELTINE, in her official capacity as Secretary of State of the State of South Dakota; Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives; South Dakota House of Representatives; Arnold Brown, in his official capacity as President of the South Dakota Senate; South Dakota Senate, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

461 F.3d 1011

Alfred BONE SHIRT; Belva Black Lance; Bonni High Bull; Germaine Moves Camp, Appellees, v. Joyce HAZELTINE, in her official capacity as Secretary of State of the State of South Dakota; Scott Eccarius, in his official capacity as Speaker of the South Dakota House of Representatives; South Dakota House of Representatives; Arnold Brown, in his official capacity as President of the South Dakota Senate; South Dakota Senate, Appellants.

No. 05-4010.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2006.

Filed: August 22, 2006.

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John P. Guhin, argued, Asst. Attorney General, Pierre, SD (Sherri Sundem Wald, AGA, Pierre, SD, on the brief), for appellant.

Bryan Sells of the American Civil Liberties Union, argued, Atlanta, GA (Laughlin McDonald, ACLU, Atlanta, on the brief), for appellee.

Before SMITH, HEANEY, and GRUENDER, Circuit Judges.

HEANEY, Circuit Judge.

This case arises from the 2001 legislative redistricting of South Dakota. The redistricting plan (the Plan) created a 105-member state legislature that was split into thirty-five districts. Each district elected two members of the state house of representatives at-large and one member of the state senate. District 28 was an exception. It was divided into two single-member districts: District 28A and 28B. There were only two Indian-majority districts in the plan, Districts 27 and 28A. District 27, with a ninety percent Native-American population, consistently elected Indian-preferred candidates. District 28A, with a lesser majority, frequently elected Indian-preferred candidates. District 26, which neighbors District 27, had only a thirty percent Native-American population and did not elect an Indian-preferred candidate from 1982 to 2002.

At issue is whether the Plan violated Section 2 of the Voting Rights Act by packing District 27 with Native-Americans at the expense of District 26, and whether the district court redistricted South Dakota in a manner that assured Native-Americans in Districts 26 and 27 the opportunity to elect Indian-preferred candidates. The district court¹ found this to be the case, and we agree.

BACKGROUND

Native-Americans make up just over nine percent of South Dakota's population and nearly seven percent of its voting-age population. Because of the well-documented history of discrimination against Native-Americans and the nature of the reservation system, much of this population is geographically compact.² Under the Plan, only three state house seats and one state senate seat are in Indian-majority districts. Of those seats, two state house seats and a state senate seat are in District 27 where Native-Americans comprise eighty-six percent of the voting-age population.

In December 2002, Alfred Bone Shirt and three other Indian (hereinafter the plaintiffs) voters filed suit, alleging that the Plan violated Sections 2 and 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 and 1973c.³ The plaintiffs contended that the Plan violated Section 2 because it "packed" Indian voters into District 27, which, in turn, diluted Indian voting strength in District 26 and left Indian voters in District 26 unable to elect representatives of their choice. The district court conducted a nine-day bench trial and found by a preponderance of the evidence that the Plan violated Section 2. After the defendants refused to advance a remedy, the district court imposed one of the remedial plans proposed by the plaintiffs. The defendants appeal the finding of a Section 2 violation and the imposition of the plaintiffs' remedial plan.

The district court found that the plaintiffs had met the three preconditions listed under Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and concluded that the totality of the circumstances indicated that a Section 2 violation existed. The district court gave the defendants forty-five days to propose a remedy. The state rejected this opportunity and asked the district court to certify a legal question of whether the legislature had the power to redistrict the state in a non-census year to the South Dakota Supreme Court. Certification was granted and the defendants were given thirty days after the state supreme court's decision to propose a remedy, if necessary. Although the South Dakota Supreme Court decided the legislature did indeed have the continuing power and duty to redistrict when the past apportionment resulted in a Section 2 violation, Bone Shirt v. Hazeltine, 700 N.W.2d 746, 755 (S.D.2005), the defendants stated they would not propose a remedial plan. The district court then adopted one of the plaintiffs' proposed redistricting plans, Plan E,⁴ and entered judgment in favor of the plaintiffs. Bone Shirt v. Hazeltine, 387 F.Supp.2d 1035 (D.S.D.2005). The court subsequently denied the defendant's motion to alter or amend the remedial order, and this appeal followed.

ANALYSIS

The defendants advance two basic arguments on appeal: (1) that the district court clearly erred in finding a Section 2 violation, and (2) that the district court abused its discretion in imposing the plaintiff's redistricting plan. We review the district court's factual findings for clear error, including the district court's factual determination of whether the Section 2 requirements are satisfied. League of United Latin Am. Citizens v. Perry, ___ U.S. ___, ___, 126 S.Ct. 2594, 2614, 165 L.Ed.2d 609, ___ (2006). Legal questions and mixed questions of law and fact are also reviewed de novo. Harvell v. Blytheville Sch. Dist., 71 F.3d 1382, 1386 (8th Cir.1995) (en banc). The district court's remedial order is reviewed for an abuse of discretion. See Rodriguez v. Bexar County, 385 F.3d 853, 870 (5th Cir.2004).

I. ESTABLISHMENT OF THE GINGLES PRECONDITIONS

"The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred candidates." Cottier v. City of Martin, 445 F.3d 1113, 1116 (8th Cir.2006) (quoting Gingles, 478 U.S. at 47, 106 S.Ct. 2752). A denial of the right to vote under Section 2 occurs when:

based on the totality of circumstances, it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a [a racial group] 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.

League of United Latin Am. Citizens, 126 S.Ct. at 2613-14 (quoting 42 U.S.C. § 1973(b)).

To establish a Section 2 violation, the plaintiffs must prove by a preponderance of the evidence three elements, often referred to as the "Gingles preconditions":

(1) [T]he racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate.

League of United Latin Am. Citizens, 126 S.Ct. at 2614 (internal citations and modifications omitted); Harvell, 71 F.3d at 1385. Failure to prove each of the preconditions defeats a Section 2 claim. Clay v. Bd. of Educ., 90 F.3d 1357, 1362 (8th Cir.1996). If the three preconditions are met, the court proceeds to consider the totality of the circumstances. Cottier, 445 F.3d at 1117 (citing Harvell, 71 F.3d at 1390).

In a vote dilution claim, 42 U.S.C. § 1973(b) is violated when it is proven under Gingles that the voting strength of a politically cohesive minority is diluted by either (1) fragmenting minority voters among several districts so that a majority bloc can usually outvote the minority, or, as is in this instance, (2) packing the minority into one or several districts so that the minority's influence is minimized in its neighboring districts. See Voinovich v. Quilter, 507 U.S. 146, 154, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (noting both as "usual device[s] for diluting minority voting power").

A. First Gingles Precondition: Sufficiently Numerous and Geographically Compact

At the outset, the plaintiff must show Native-Americans are "sufficiently [numerous] and geographically compact to constitute a majority in a [proposed] single member district" in order to demonstrate that a workable solution is possible. Clay, 90 F.3d at 1361. The plaintiffs submitted five redistricting plans, each of which created at least one additional majority-Indian legislative district. Plan E maintained a majority-Indian Senate District (District 27) and a majority-Indian House District (District 28A) and created a new majority-Indian House district (District 26A) by reconfiguring the boundaries of Districts 26 and 27 into a new District 26 and dividing it into Districts 26A and 26B, giving each a state representative.⁵ According to expert testimony, each district in the remedial plan possessed voter margins that ensured Indian-preferred candidates an opportunity to win an election. See Gingles, 478 U.S. at 50, 106 S.Ct. 2752 n. 17 (explaining justification for first Gingles precondition). Under the plaintiffs' proposed plan, Native-Americans would comprise over 65 percent of the voting-age population in District 27, and over 74 percent of the voting-age population in District 26A. Furthermore, each proposed district includes Indian-preferred incumbents, which increases the opportunity of Native-American voters to elect their preferred candidates.

The defendants argue the plaintiffs must prove that the minority group will enjoy sufficient super-majority status in the proposed remedial district.⁶ This court recently held that at the initial stage of the Gingles precondition analysis, the plaintiffs are only required to produce a pot...