Nipper v. Smith

• Decision Date: 02 December 1994
• Docket Number: No. 92-2588,92-2588
• Citation: 39 F.3d 1494
• Parties: Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams; Selendra Williams; Katrina Miles; Desi Wayne Dunlap; Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, v. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1494

39 F.3d 1494

Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams Selendra Williams; Katrina Miles; Desi Wayne Dunlap Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, v. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees.

No. 92-2588.

United States Court of Appeals Eleventh Circuit.

Dec. 2, 1994.

Brenda Wright, Washington, DC, Robert B. McDuff, Jackson, MS, Denise M. Prescod, Jacksonville, FL, Mitchell F. Dolin, Covington & Burling, Washington, DC, Sherrilyn A. Ifill, New York City, for appellants.

George L. Waas, Harry F. Chiles, Denis Dean, Dept. of Legal Affairs, Tallahassee, FL, Frank E. Brown, Asst. Atty. Gen., Tampa, FL, Leonard S. Magid, Jacksonville, FL, Mitchell D. Franks, Lakeland, FL, for appellees.

Rebecca K. Troth, Deval Patrick, Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, for amicus curiae U.S.

Howard C. Coker, Coker, Myers, Schickel, Cooper & Sorenson, The Fla. Bar, Tallahassee, FL, for amicus curiae Fla. Bar Trial Lawyers Section.

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

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges. ^*

TJOFLAT, Chief Judge:

Section 2(a) of the Voting Rights Act, 42 U.S.C. Sec. 1973 (1988), states that "[n]o 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 abridgement of the right of any citizen of the United States to vote on account of race or color." Under section 2(b) of the Act, "[a] violation of [section 2(a) ] 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 ... are not equally open to participation by members of a class of citizens protected by [section 2(a) ] 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." Section 2 applies to state judicial elections. Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2368, 115 L.Ed.2d 348 (1991); Houston Lawyers' Ass'n v. Attorney Gen., 501 U.S. 419, 423-24, 111 S.Ct. 2376, 2379, 115 L.Ed.2d 379 (1991).

In this case, the appellants, black voters and an association of black attorneys, challenge the system used to elect the judges of Florida's Fourth Judicial Circuit Court, which encompasses Duval, Clay, and Nassau counties, and the judges of the Duval County Court. The appellants contend that the use of at-large elections in those trial court jurisdictions dilutes the voting strength of the black minority in violation of section 2; they seek a remedy, such as the creation of subdistricts, that will ensure their ability to elect black judges of their choice. The appellees contend that the appellants are entitled to no relief. First, the appellants and the black voters they represent have suffered no racial vote dilution. Second, assuming that vote dilution exists, the relief the appellants seek would so alter the structure of the Fourth Judicial Circuit and Duval County courts as to undermine the ability of those courts to administer justice.

Following a five-day bench trial, the United States District Court for the Middle District of Florida dismissed the appellants' case. The court did so on two grounds: (1) the appellants failed to establish an essential element of a vote dilution case--racially polarized voting in the relevant communities--as required by Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); and (2) the appellees' rebuttal evidence demonstrated that, under "the totality of the circumstances," racial discrimination was not playing a role in the judicial elections under challenge. The district court's finding of no section 2 liability made it unnecessary for the court to consider the matter of remedy.

On appeal, a panel of this court concluded that the evidence before the district court demonstrated racially polarized voting in the Fourth Judicial Circuit and Duval County as a matter of law, and thus a section 2 violation. Without considering, as required by Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81, the appellees' argument that the relief the appellants sought would undermine the administration of justice in those jurisdictions, the panel remanded the case to the district court for the imposition of a remedy. Nipper v. Smith, 1 F.3d 1171, 1184 (11th Cir.1993). The case is now before us on rehearing en banc. Nipper v. Smith, 17 F.3d 1352 (11th Cir.1994).

To determine whether the district court erred in holding that the appellants failed to establish a case of vote dilution, we must address a question the Supreme Court has not decided and our divided en banc court in Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en banc) (per curiam), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991), has precluded us from answering: whether section 2 plaintiffs, in order to establish that the challenged electoral scheme is diluting their right to vote "on account of [their] race or color," must demonstrate that their diminished opportunity to participate in the political process and to elect representatives of their choice is being caused by the interaction of racial bias in the voting community and the challenged scheme. Without an answer to this question, we cannot determine what evidence is relevant, and the weight it should be accorded, in the totality of the circumstances inquiry of section 2(b). Specifically, we cannot determine the weight to be accorded the state policies underlying the challenged judicial electoral scheme. Houston Lawyers' Ass'n, 501 U.S. at 426, 111 S.Ct. at 2380-81. Nor can we determine, given those policies and the structure of the courts involved, whether the remedy sought is feasible.

In part I of this opinion, we set forth the facts and procedural history of the case. In part II, we address the question left unanswered in Solomon: whether the existence of racial bias in the voting community necessarily forms the basis of a section 2 violation. We hold that the totality of the circumstances must demonstrate that the voting community is driven by racial bias and that the electoral scheme in question permits that bias to dilute the plaintiff minority's voting strength. In part III, after noting several important differences between judicial and legislative elections, we discuss the factors, including the policies advanced by Florida's method of selecting its trial court judges, involved in the totality of the circumstances analysis in judicial election cases. In parts IV and V, we apply the principles set forth in parts II and III to the case at hand. In part IV, we examine the district court's finding of no vote dilution and conclude, as did the panel, that the appellants established a case of dilution. In part V, we consider the matter of remedy. We find that the type of relief the appellants seek would undermine the administration of justice in the trial courts at issue; we therefore affirm the district court's denial of section 2 relief.

I.

Voting rights cases are inherently fact-intensive, particularly those section 2 vote dilution claims alleging that, due to the operation of a challenged voting scheme, minority voters are denied an equal opportunity to participate in the political process and to elect representatives of their choice. In such cases, courts must conduct a "searching practical evaluation of the 'past and present reality' " of the electoral system's operation. Gingles, 478 U.S. at 45, 106 S.Ct. at 2764 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 208). Accordingly, because a claim of vote dilution must be evaluated with a functional, rather than a formalistic, view of the political process, the Supreme Court has emphasized the importance of " 'an intensely local appraisal of the design and impact' " of the electoral structure, practice, or procedure at issue. Id. at 79, 106 S.Ct. at 2781 (quoting Rogers v. Lodge, 458 U.S. 613, 621, 102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982)). Given the necessity of a nuanced understanding of the election system in evaluating a claim of racial vote dilution, we set out the factual background of this case in some detail. ¹

A.

Florida's judiciary employs two tiers of trial courts. The circuit courts have general jurisdiction over civil and criminal cases while the jurisdiction of the county courts is restricted to certain statutorily defined classes of misdemeanor and small claims cases. ² Fla. Const. art. 5, Secs. 5-6 (West Supp.1994); Fla.Stat.Ann. Secs. 26.012, 34.01 (West 1988 & Supp.1994). Florida currently has twenty circuit courts (designated by number); they range from single-county circuits (in highly populated areas like Miami or Tampa) to circuits comprised of as many as six or seven counties (many of which are rural). See Fla.Stat.Ann. Sec. 26.021 (West 1988). Each circuit judge has jurisdiction or authority within the entire circuit; similarly, the jurisdiction of each judge of the county court extends throughout the county. Although the circuit and county courts have multiple members, like most trial courts they do not operate as collegial bodies; rather, the judges exercise independent judicial authority, engaging in coordinated decisionmaking only for the handling of some administrative matters.

Circuit judges serve six-year terms and county judges serve four-year terms, Fla. Const. art. 5, Sec. 10; in all other respects, the office of judge on the two benches is virtually identical. The judges of the circuit and county courts are elected...