U.S. v. Brown

• Decision Date: 27 February 2009
• Docket Number: No. 07-60588.,07-60588.
• Citation: 561 F.3d 420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ike BROWN, Individually and in his official capacities as Chairman of Noxubee County Democratic Executive Committee and Superintendent of Democratic Primary Elections; Noxubee County Democratic Executive Committee, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

561 F.3d 420

UNITED STATES of America, Plaintiff-Appellee, v. Ike BROWN, Individually and in his official capacities as Chairman of Noxubee County Democratic Executive Committee and Superintendent of Democratic Primary Elections; Noxubee County Democratic Executive Committee, Defendants-Appellants.

No. 07-60588.

United States Court of Appeals, Fifth Circuit.

February 27, 2009.

Nathaniel S. Pollock (argued), App. Section, Christopher Coates, Gregory Bryan Friel, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, Dunn Lampton, Jackson, MS, for U.S.

Wilbur O. Colom (argued), The Colom Law Firm, Columbus, MS, for Defendants-Appellants.

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

Before KING, DENNIS and ELROD, Circuit Judges.

KING, Circuit Judge:

Defendants-Appellants Noxubee County Democratic Executive Committee and its chairman, Ike Brown, are tasked, among other things, with organizing and orchestrating Noxubee County's Democratic primary and runoff elections. After investigating the methods by which defendants conducted the county's 2003 elections, the United States brought this suit on behalf of the county's white voters—the minority in that county—for alleged violations of § 2 of the Voting Rights Act. The district court considered the evidence presented during a two-week bench trial and concluded that defendants indeed violated § 2 by intentionally diluting the voting power of white Democrats. With the 2007 primary elections fast approaching, however, the court delayed announcing a remedy. After that primary—and in large part due to the events of that primary—the district court tailored a remedial order to prevent the recurrence of electoral abuses. Defendants now challenge both the district court's liability holding and its remedial order.

I. FACTS AND PROCEEDINGS

Because the facts of this case are well set out in the district court's thorough opinion, United States v. Brown, 494 F.Supp.2d 440 (S.D.Miss.2007), we do not here provide an exhaustive recital of the court's findings; instead, we summarize the key facts forming the foundation for the district court's liability holding. Additionally, we describe the events of the August 2007 primary election preceding and precipitating that court's remedial order. Before discussing either the liability or remedial proceedings, however, we briefly set forth Mississippi's election law and process because, by abusing their authority over this process, the Noxubee County Democratic Executive Committee ("NDEC") and Ike Brown, as the committee's chair (collectively, "defendants"), were found to have intentionally discriminated against the county's white voters in violation of § 2 of the Voting Rights Act.

A. Mississippi Electoral Processes

In addition to serving as the local governing body of the Democratic Party, NDEC and its chair are responsible for conducting the county's Democratic primary elections. See MISS.CODE ANN. § 23-15-263(1).¹ Such a task includes qualifying candidates, printing absentee ballots, preparing ballots for the polls, appointing and training poll managers and clerks to staff the polls on election day, and generally supervising the primary election. See id. § 23-15-263(1).² The district court's determinations, in both the liability ruling and the remedial order, focus specifically on the defendants' failures with regard to observing Mississippi's absentee ballot requirements, applying Mississippi's specific method for counting absentee ballots, and preventing the illegal assistance of voters.

Mississippi's absentee voting provisions are "intended to ensure the integrity of absentee ballots," and, accordingly, the Mississippi Supreme Court "requires strict compliance with the statutes concerning absentee ballots." Lewis v. Griffith, 664 So.2d 177, 185 (Miss.1995). In Mississippi, a voter may vote by absentee ballot either by appearing in person at the county registrar's office or by requesting an absentee ballot by mail and mailing the ballot back. See MISS.CODE ANN. § 23-15-715. To vote by mail, the voter must meet specific statutory requirements: she must either be at least sixty-five years old; disabled; temporarily residing outside the county; or staying with a spouse, parent, or child who is hospitalized more than fifty miles away on election day. See id. § 23-15-715(b). After applying to vote by absentee ballot, the voter then receives a ballot and its corresponding return envelope, on the back of which is printed an affidavit for the voter to complete. See id. § 23-15-635. In the case of an absentee voter who is not disabled, this affidavit must be completed in the presence of an official authorized to administer oaths—i.e., a notary public. See id. § 23-15-721. Finally, the voter must sign her name across the envelope's flap. See id. § 23-15-633.

On election day, the absentee ballots are inspected for compliance with the above statutes and, if compliant, are counted. Candidates or their representatives may observe this counting and may lodge challenges against a ballot or a ballot's affidavit. See id. §§ 23-15-577, -581, -643.³ The counting process is set out by § 23-15-639(1): first, the manager must announce the name, address, and precinct inscribed on each envelope; and second, the signature of the voter's absentee ballot application must be compared to the signature on the absentee ballot's envelope. See also id. § 23-15-643 ("If the officials are satisfied that the affidavit is sufficient and that the absentee voter is otherwise qualified to vote, an official shall announce the name of the voter and shall give any person present an opportunity to challenge in like manner ...."). If the affidavit is insufficient or the signatures fail to match, then the ballot must be marked "REJECTED" and kept apart from the accepted ballots. See id. § 23-15-641.

Finally, Mississippi permits assisting voters while they cast their ballots at the poll, but this permission is not without limit. Assistance may only be provided after a voter requests it and if the voter is either blind, disabled, or unable to read. See id. § 23-15-549 ("Any voter who declares to the managers of the election that he requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter's choice ...." (emphasis added)); see also O'Neal v. Simpson, 350 So.2d 998, 1009 (Miss.1977) ("We hold that before any voter may receive assistance in marking his ballot, he must first request assistance from the managers of the election who must be satisfied that the voter is either blind, physically disabled or illiterate and needs assistance in marking his ballot.... [A]ll voters are not entitled to assistance in marking their ballots, but only the blind, physically disabled or illiterate may receive assistance in marking their ballots.").

With this picture of Mississippi's election requirements in mind, we turn to the district court's findings regarding how defendants' conduct abused this process to the detriment of the county's white voters.

B. The Liability Proceedings

Noxubee County's voting population is 65.7% black and 32.5% white. Of the county's registered Democrats, 80% are black and 20% are white.⁴ Additionally, the parties concede and the government's expert showed that the county's voting is racially polarized, meaning that "there is a consistent relationship between [the] race of the voter and the way in which the voter votes." See Thornburg v. Gingles, 478 U.S. 30, 53 n. 21, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

The alleged violations of white voters' rights occurred during the 2003 primary and subsequent runoff elections. The district court concluded that during that time "defendants engaged in improper, and in some instances fraudulent conduct, and committed blatant violations of state election laws[ ] for the purpose of diluting white voting strength." Brown, 494 F.Supp.2d at 485. White votes were diluted by defendants' involvement in (1) obtaining large numbers of defective absentee ballots from black voters; (2) facilitating the improper counting of absentee ballots in order to ensure that the defective ballots were counted; and (3) permitting the improper assistance of black voters. Evidence bearing on defendants' intent included: a press release issued by Brown that listed 174 white Democrats whom he intended to challenge were they to vote in the 2003 Democratic primary; statements made by Brown before and during his chairmanship of NDEC; the departure from the normal practice of hiring poll workers in proportion to the party membership's racial makeup; and the lack of any legitimate explanation for defendants' conduct.

The rate of absentee voting in Noxubee County is abnormally high relative to that of its sister counties: the government's expert reported that, while roughly 20% of the ballots in Noxubee County are absentee ballots, other Mississippi counties experience an absentee voter rate anywhere from 3% to 6%. To maximize the number of absentee ballots, a common and legitimate practice in Mississippi is for a candidate or her supporters to hire notaries and dispatch them so that they may call on possible constituents who have applied to vote absentee—Brown did no less, as the evidence showed that he financed the notary fees of more than fifty notaries. But the district court found evidence demonstrating that defendants went beyond any legitimate bounds of this practice. First, the court heard testimony concerning the actions of Carrie Kate Windham, an NDEC member whose notary fee was paid by Brown. In one instance, Windham recruited Nikki Halbert, a black voter who did not qualify to vote absentee, to vote by absentee ballot. Although Halbert did not apply to vote absentee, she received an absentee ballot in the mail and completed it. Windham returned to collect the ballot, which she carried away in its unsealed and...