Clark v. Calhoun County, Miss., 95-60251

• Citation: 88 F.3d 1393
• Decision Date: 09 July 1996
• Docket Number: No. 95-60251,95-60251
• Parties: James H. CLARK; Barbara Brown, Plaintiffs-Appellants, v. CALHOUN COUNTY, MISSISSIPPI; Calhoun County Democratic Executive Committee, By and Through its Chairperson, J.R. Denton; Calhoun County Republican Executive Committee, By and Through its Chairperson, Henry Bailey; Calhoun County Election Commissions, By and Through its Chairperson, R.W. Bounds, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1393

88 F.3d 1393

65 USLW 2068

James H. CLARK; Barbara Brown, Plaintiffs-Appellants, v. CALHOUN COUNTY, MISSISSIPPI; Calhoun County Democratic

Executive Committee, By and Through its Chairperson, J.R.

Denton; Calhoun County Republican Executive Committee, By

and Through its Chairperson, Henry Bailey; Calhoun County

Election Commissions, By and Through its Chairperson, R.W.

Bounds, Defendants-Appellees.

No. 95-60251.

United States Court of Appeals, Fifth Circuit.

July 9, 1996.

Robert Bruce McDuff, Jackson, MS, Ellis F. Turnage, Cleveland, MS, for plaintiffs-appellants.

Clifton R. Easley, Jr., Easley & Cooper, Bruce, MS, Shelby Duke Goza, Oxford, MS, Benjamin Elmo Griffith, Griffith and Griffith, Cleveland, MS, Henry L. Lackey, Calhoun City, MS, for defendants-appellees.

Lawrence Chandler, Hernando, MS, for Calhoun County Democratic Executive Committee, by and through its Chairperson, J.R. Denton, defendant-appellee.

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

Before LAY ¹, HIGGINBOTHAM and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case comes before us for the second time, raising the question whether the plaintiffs have proven, under the totality of the circumstances, that Calhoun County, Mississippi's districting plan for county officials violates Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(a). The district court held that the plan did not violate the Act. We disagree. We reverse the judgment of the district court and render judgment for the plaintiffs.

I.

The basic facts of this case are fully described in our decision rendered the first time this case was before us. See Clark v. Calhoun County, Mississippi, 21 F.3d 92 (5th Cir.1994). To briefly summarize those facts: The plaintiffs, James Clark and Barbara Brown, are black residents and registered voters in Calhoun County, Mississippi. The county's districting plan divides the county into five districts, each of which elects one county supervisor, one board of education member, and one election commissioner.

Following the release of the 1990 census, the County Board of Supervisors hired Three Rivers Development and Planning District of Pontotoc, Mississippi to develop a redistricting plan for the county. The Board also appointed a biracial committee made up of one black resident and one white resident from each election district to supervise Three Rivers' work. Three Rivers developed two redistricting plans, one of which the Board of Supervisors tentatively adopted. The biracial committee approved the plan, and the Board formally adopted the plan after a public hearing. Pursuant to § 5 of the Voting Rights Act, the Department of Justice subsequently precleared the proposed redistricting plan.

According to the 1990 census, black residents comprise 23% of the county's voting age population and 27% of its population overall. Under the plan adopted by the Board of Supervisors, the black population is divided roughly equally among the five districts, ranging from a low of 19% of the population in District 3 to a high of 42% in District 4.

The plaintiffs sued the County, the Calhoun County Democratic Executive Committee, the Calhoun County Republican Executive Committee, and the Calhoun County Election Commission. The plaintiffs alleged that the County's redistricting plan violated § 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments to the U.S. Constitution. The plaintiffs sought damages, declaratory, and injunctive relief, along with attorneys' fees.

After a bench trial, the district court granted judgment to the County, concluding that the plaintiffs had failed to prove that a geographically compact black majority district could be created. In addition, the court concluded that under the totality of circumstances, the plaintiffs had failed to prove a § 2 violation. The district court's written opinion did not address the plaintiff's constitutional claims, but the plaintiffs did not appeal the dismissal of those causes of action. We vacated the district court's judgment and remanded for further proceedings on the plaintiff's statutory claim. See Clark v. Calhoun County, 21 F.3d 92 (5th Cir.1994).

On remand, the parties submitted additional evidence regarding the feasibility of drawing a geographically compact majority-minority district and the existence of racially-polarized voting in the county. After reviewing the evidence, the district court found that a geographically compact black majority district could be created and that racially polarized voting existed in the county. Noting that the plaintiffs had satisfied the three preconditions from Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the court reconsidered its findings regarding the totality of the circumstances. Without elaboration, the court determined that its earlier findings were not erroneous and concluded that "when all the circumstances are considered, 'plaintiffs have not shown that as a result of the adopted supervisory plan, they do not have equal opportunity to participate in the political process and to elect candidates of their choice.' " The plaintiffs appeal the district court's judgment.

II.

Section 2 of the 1965 Voting Rights Act prohibits any voting practice or procedure that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). Thornburg v. Gingles, 478 U.S. 30, 49-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2d 25 (1986), set forth three preconditions to establishing a § 2 violation: The plaintiff must demonstrate that 1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; 2) the minority group is politically cohesive; and 3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Id. at 50-51, 106 S.Ct. at 2766-67; Concerned Citizens for Equality v. McDonald, 63 F.3d 413, 416 (5th Cir.1995). These preconditions apply to challenges to both single-member and multi-member districting schemes. Growe v. Emison, 507 U.S. 25, 39-41, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (applying Gingles to single-member districts).

The three Gingles preconditions are necessary but not sufficient to prove vote dilution. Johnson v. DeGrandy, --- U.S. ----, ----, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994). If those preconditions are established, the plaintiffs must further prove that "under the 'totality of circumstances,' they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters." League of United Latin American Citizens v. Clements, 999 F.2d 831, 849 (5th Cir.1993) (en banc), cert. denied, 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994); see 42 U.S.C. § 1973(b). Although unlawful vote dilution "may be readily imagined and unsurprising" where the three Gingles preconditions exist, that conclusion "must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judgment." Johnson, --- U.S. ----, 114 S.Ct. at 2657.

We have previously explained that "courts are guided in this [totality-of-circumstances] inquiry by the so-called Zimmer factors listed in the Senate Report" accompanying the 1982 Amendments to the Voting Rights Act. LULAC, 999 F.2d at 849. Those factors include:

[T]he history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the States or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.

Gingles, 478 U.S. at 44-45, 106 S.Ct. at 2763. In addition, "evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value." Id. at 45, 106 S.Ct. at 2763.

Noting that the district court found on remand that the three Gingles preconditions were satisfied, the plaintiffs challenge the district court's conclusion that, under the totality of the circumstances, the plaintiffs failed to prove a § 2 violation. The plaintiffs refer to our statement in Clark that " 'it will be only the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of § 2 under the totality of circumstances.' " 21 F.3d at 97 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir.1993)) (emphasis added); see also NAACP v. City of Niagara Falls, New York, 65 F.3d 1002, 1019 n. 21 (2d Cir.1995).

We initially note that our review is hampered by the district court's curt discussion regarding the totality of the circumstances. In our previous opinion, we instructed the district court on remand to "reconsider its findings with respect to the totality of circumstances." 21 F.3d at 97. We further instructed the district court that in cases where the three Gingles preconditions have been...