HALL v. HOLDER, 955 F.2d 1563 (11th Cir. 1992)

REV. E.K. HALL, SR.; DAVID WALKER; U.S. DONALSON; RICHARD HARRIS; WILLIE ATES; REV. WILSON C. ROBERSON; AND NAACP CHAPTER OF COCHRAN, BLECKLEY COUNTY, PLAINTIFFS-APPELLANTS, v. JACKIE HOLDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER FOR BLECKLEY COUNTY, GEORGIA; ROBERT JOHNSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF ELECTIONS FOR BLECKLEY COUNTY; CHARLES KILLEBREW, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF COCHRAN; LONNIE BARLOW; BEN JESSUP; C.C. CROOMS; WILLIE BASBY; BILLY RAY GODFREY, AND T.C. GREER, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS ALDERMEN OF THE CITY OF COCHRAN; WILLIAM J. LUCAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF ELECTIONS FOR THE CITY OF COCHRAN; FREDDIE WHITE; WAYNE ROGERS; WAYNE TRIPP; SONJA CURTIS, AND J. LARRY WILLIAMS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BLECKLEY COUNTY BOARD OF EDUCATION, DEFENDANTS-APPELLEES.

No. 91-8306.United States Court of Appeals, Eleventh Circuit.
March 25, 1992.

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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Christopher Coates, Milledgeville, Ga., Laughlin McDonald, ACLU, Atlanta, Ga., for plaintiffs-appellants.

R. Napier Murphy, Martin Snow, Grant Napier, John C. Daniel, Ill., Macon, Ga., William Lonnie Barlow, Arnold Barlow, Cochran, Ga., for defendants-appellees.

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

Before FAY and HATCHETT, Circuit Judges, and GIBSON[*] , Senior Circuit Judge.

FAY, Circuit Judge:

[1] This appeal involves a challenge to the sole commissioner form of county government utilized in Bleckley County, Georgia. Following a four day bench trial, the district court found that the plaintiffs had failed to meet their burden of proof on both their statutory and constitutional claims. For the reasons that follow, we REVERSE the judgment of the district court.

[2] I. BACKGROUND[3] A. Bleckley County
[4] The history of Bleckley County began in 1912 when the Georgia legislature created Bleckley County from land located at the northeastern end of Pulaski County, Georgia. Encompassing about 219 square miles, Bleckley County is a rural county located in the central region of Georgia, approximately forty miles southeast of Macon.

[5] Throughout its existence, Bleckley County has had a population that has ranged from about 9,000 residents to nearly 11,000 residents. According to census figures, the population of Bleckley County numbered 10,767 in 1980.[1] That population is approximately 22% black, 77% white, and 1% other.[2] The racial composition of Bleckley County’s voting age population is 19% black, 80% white, and 1% other. Voter

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registration levels in Bleckley County are roughly equivalent among blacks and whites, with black and white registration each at about 70% of each group’s respective eligible population.

[6] Since its creation, Bleckley County has operated with a sole commissioner form of county government. See 1912 Ga. Laws 38; 1913 Ga. Laws 345. This sole commissioner is the “county governing authority” under Georgia law, O.C.G.A. § 1-3-3(7), and he is vested with all the corresponding powers and duties, see id. §36-5-22.1. [7] Bleckley County’s sole commissioner is elected in an at-large county-wide election. Although the commissioner race has at times been subjected to a majority vote requirement, throughout most of its history, Bleckley County has elected its sole commissioner by a simple plurality vote. Since 1964, however, the county must elect its commissioner by a majority vote. See O.C.G.A. §21-2-501. [8] Today, the election for county commissioner is held at the Jaycee Barn in Cochran. This facility, a building belonging to an all-white civic club, is the sole polling place for the entire 219 square mile area that makes up Bleckley County.[3] This sole precinct is also used for the elections of other county officials, including the members of the county’s school board.[4] [9] B. Procedural History
[10] On July 17, 1985, the plaintiffs-appellants in this case, black voters residing in Bleckley County, Georgia, together with the NAACP Chapter of Cochran/Bleckley County, filed a complaint in the United States District Court for the Middle District of Georgia. Among the claims asserted, the plaintiffs presented a challenge to Bleckley County’s form of county government under § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, and under the Fourteenth and Fifteenth Amendments.[5] The defendants named in this challenge, the appellees herein, are Bleckley County’s sole county commissioner and the county’s superintendent of elections. [11] In December of 1989, over four years after this action was commenced, the district court tried this case without a jury. On March 7, 1991, more than a year after that trial, the district court entered an extensive order finding that the plaintiffs had failed to establish either a racially discriminatory intent in the creation or maintenance of Bleckley County’s form of government or an impermissible dilution of the electoral power of Bleckley County’s black minority. The district court entered a final judgment for the defendants, and the plaintiffs filed a timely appeal.

[12] II. DISCUSSION
[13] In reviewing the judgment of the district court, we are bound by the clearly erroneous test set forth in Rule 52(a) of the Federal Rules of Civil Procedure, the standard upon which an appellate court is to review ultimate factual findings of vote dilution. Thornburg v. Gingles, 478 U.S. 30, 78-79, 106 S.Ct. 2752, 2781, 92 L.Ed.2d 25 (1986); Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1554 (11th Cir. 1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). Nonetheless, this standard does not bar a court from correcting errors of law or findings of fact based on misconceptions of the law Gingles, 478 U.S. at 79, 106 S.Ct. at 2781; Concerned Citizens v. Hardee County Bd. of Comm’rs, 906 F.2d 524, 526 (11th Cir. 1990); Stallings, 829 F.2d at 1554.

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[14] A. The Voting Rights Act
[15] The statutory claim we address on appeal is unusual in that it challenges a local form of government composed solely of one commissioner.[6] It is not a unique challenge, however, and we have already held that § 2 challenges to sole commissioner forms of government are subject to the same analysis employed by the United States Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Stallings, 829 F.2d at 1549. [16] The essential dictate of § 2 of the Voting Rights Act, as amended, is:

No 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. . . .

[17] 42 U.S.C. § 1973(a). At one time, § 2 was interpreted to require proof of discriminatory intent in the design or maintenance of a challenged scheme before plaintiffs could prevail on their statutory claims. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion). In 1982, however, Congress amended § 2 so as to make clear that the “results test” utilized by pre-Bolden courts is the proper standard by which § 2 claims are to be measured. See Chisom v. Roemer, ___ U.S. ___, 111 S.Ct. 2354, 2363 n. 21, 115 L.Ed.2d 348 (1991); Gingles, 478 U.S. at 43-44 n. 8, 106 S.Ct. at 2762 n. 8; Solomon v. Liberty County, 899 F.2d 1012, 1015
(11th Cir. 1990) (en banc) (Kravitch, J., specially concurring) cert. denied, ___ U.S. ___, 111 S.Ct. 670, 112 L.Ed.2d 663
(1991); id. at 1027-32 (Tjoflat, C.J., specially concurring). In amending § 2, Congress also made clear that courts are to evaluate § 2 claims in light of “the totality of circumstances” upon which such claims are premised. 42 U.S.C. § 1973(b). Accordingly, courts are to consider a wide variety of factors when confronted with § 2 challenges.[7]

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[18] Although various factors may be relevant to a § 2 claim, before a challenged procedure will violate § 2, “a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group.”Gingles, 478 U.S. at 49, 106 S.Ct. at 2766. Accordingly, there are three “necessary preconditions” to the establishment of a § 2 violation: (1) “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) “the minority group must be able to show that it is politically cohesive”; and (3) “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority’s preferred candidate.” Id. at 50-51, 106 S.Ct. at 2766
(citations omitted). [19] Although the Gingles Court set forth these three factors as preconditions to a § 2 claim, we are mindful that “[t]he 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 black and white voters to elect their preferred representatives.” Id. at 47, 106 S.Ct. at 2764. A limitation on the evidence to be considered in evaluating the Gingles factors is neither what Congress intended in § 2 nor what the Supreme Court directed i Gingles. Rather, the Gingles decision places a “gloss” on the Senate Report factors, limiting the use of the factors by requiring that the three Gingles factors be established to prove a vote dilution claim. Stallings, 829 F.2d at 1555
(citing Collins v. City of Norfolk, 816 F.2d 932 (4th Cir. 1987)). The Gingles majority did not, however, limit the manner in which the threshold factors may be proven. In fact, the legislative history of § 2 reveals that Congress espoused a “flexible, fact-intensive test for § 2 violations.” Gingles, 478 U.S. at 46, 106 S.Ct. at 2764. Thus, the totality of the circumstances surrounding a § 2 claim may properly be considered when determining whether plaintiffs have established the thre Gingles preconditions.[8] See Solomon, 899 F.2d at 1017
(Kravitch, J., specially concurring). Although § 2’s functional view of the political process elevates certain Senate Report factors because of their direct bearing on the § 2 threshold inquiry, other relevant factors remain “supportive of, but not essential to, a minority voter’s claim.” Gingles, 478 U.S. at 48-49 n. 15, 106 S.Ct. at 2765 n. 15. These factors become relevant at the Gingles threshold stage insofar as they are supportive of the three Gingles factors. The additional factors, however, need not be present to satisfy the Gingles
test.[9] [20] B. Gingles Analysis
[21] On appeal, the plaintiffs-appellants argue that: (1) the district court erred as a matter of law by limiting its consideration to only

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certain types of evidence of a § 2 violation; and (2) the district court erred in finding that the plaintiffs had failed to meet their burden of proof. In reviewing the district court’s determinations on the threshold Gingles factors, we agree with the district court that Bleckley County’s black electorate is sufficiently large and geographically compact to meet the first prong of the Gingles test. However, we disagree that the evidence failed to establish the other two Gingles factors, a politically cohesive minority and a white majority bloc that votes so as to usually defeat the black minority’s preferred candidates. Additionally, we hold that Bleckley County’s sole commissioner system violates § 2.

[22] (1) Size and Geographic Compactness of Minority Group
[23] The evidence presented at trial reveals that black voters comprise a majority of the electorate in one of the five districts currently found in Bleckley County.[10] The defendants argue, however, that using these districts as a measure of the size and geographic compactness of Bleckley County’s electorate is inappropriate. Instead, the defendants contend that the proper measure of size and geographic compactness should be the entire county. Because the county currently elects only one commissioner, the defendants argue that a black electorate constituting only 22% of the county’s population can never form a majority with the potential to elect Bleckley County’s sole commissioner. They argue that it is improper to subdivide this “commissioner district” when performing a § 2 analysis.

[24] Although § 2 clearly states that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population,”42 U.S.C. § 1973(b), it is appropriate to consider the size and geographical compactness of the minority group within a restructured form of the challenged system when the existing structure is being challenged as dilutive. In Gingles, the Supreme Court recognized that threshold significance is given to this first Gingles factor because: “Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.” 478 U.S. at 50
n. 17, 106 S.Ct. at 2766 n. 17 (second emphasis added). Thus, before a voting rights injury can be established, the minority group must demonstrate its potential electoral power in the absence of the challenged structure. It is therefore highly relevant to the Gingles inquiry “whether black voters . . . are sufficiently numerous and compact to constitute a majority in a single member district, if single member districts were created out of the one county district.” Stallings, 829 F.2d at 1563
(emphasis added). For that reason, this court remanded a challenge to the sole commissioner structure in Carroll County, Georgia to the district court with instructions to consider size and geographic compactness within proposed three member and five member forms of commission government. Id. [25] Because the evidence in this case reveals that Bleckley County’s black voters are sufficiently numerous and geographically compact to constitute a majority in a single-member district (e.g., District 2), we agree with the district court that the first Gingles factor has been satisfied.

[26] (2) Existence of Racial Bloc Voting
[27] In analyzing the issue of racial bloc voting, the district court focussed on raw election figures and statistical calculations. In particular, the district court concentrated on regression analysis statistics from the 1984 presidential primary and on exit poll data from the 1988 presidential primary, evidence taken from presidential primaries involving the Reverend Jesse Jackson. The court also looked to the successes of local black politician Willie Basby in Cochran

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City Council elections and discussed the support garnered by black candidates in a number of races. The district court then limited its consideration to only that evidence which it believed § 2 jurisprudence would allow it to consider. It concluded from that evidence that there was a paucity of electoral evidence showing racially polarized voting, Hall v. Holder, 757 F. Supp. 1560, 1580 (M.D.Ga. 1991), and that the plaintiffs had failed to carry their burden of proof on the racial bloc voting Gingles factor.

[28] However, the district court reached this conclusion while operating under a misconception of the law. The district court stated that “under prevailing law with regard to this stage of the court’s evaluation, the evidence [from the 1984 and 1988 presidential primaries] is all the court has or can have.”Hall, 757 F. Supp. at 1580 (citing Collins, 816 F.2d at 935). The court reasoned that non-electoral evidence “does not bear directly upon the courts [sic] analysis of whether election results evidence racial bloc voting.” Id. at 1579 (footnote omitted). Although the district court’s legal interpretation of the evidence would support the district court’s ultimate conclusion, such restricted, piecemeal consideration of the evidence failed to take into account the synergistic effects of evidence in establishing racially polarized voting. [29] Here, non-electoral evidence was not being offered to rebut electoral evidence showing the existence of racially polarized voting; instead, it was offered to buttress such evidence. Moreover, the use of non-expert testimony and non-statistical evidence has been approved by this court as a means of proving racially polarized voting. See, e.g., Stallings, 829 F.2d at 1558 (noting that it is “clearly acceptable” to use non-expert testimony in establishing racially polarized voting); United States v. Marengo County Comm’n, 731 F.2d 1546, 1567 n. 34 (11th Cir.) (quoting Nevett v. Sides, 571 F.2d 209, 223 n. 18 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980)), cert. denied and appeal dismissed, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984); see also Westwego Citizens for Better Gov’t v. City of Westwego, 946 F.2d 1109, 1118 (5th Cir. 1991). But see Collins, 816 F.2d at 935-36
(rejecting the use of causation evidence concerning voting patterns). In situations where election data and derivative statistical information are systemically unavailable, such as when plaintiff minority groups are unable to sponsor candidates, the Supreme Court has further directed courts to rely on factors beyond election data that tend to prove unequal access to the electoral process. See Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2770.[11] Examining the issue of racial bloc voting under the totality of the circumstances existing in Bleckley County, we are forced to conclude that the district court reached a clearly erroneous conclusion based on its misconception of the law. [30] In this case, the district court was not confronted with a complete lack of relevant election and statistical information. Indeed, Bleckley County election results for races in which blacks ran for state and national offices were submitted into evidence. Similarly, election results were submitted for races in which blacks ran for office in the city of Cochran.[12] Yet, blacks have neither sponsored candidates nor run for county-wide positions in Bleckley County’s

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government. Specifically, Bleckley County’s blacks have not sponsored a candidate for the sole commissioner seat, and no black has ever run for the office of commissioner.[13] Lay testimony by Bleckley County’s black community leaders, many of whom are seasoned local politicians, revealed a belief that it is next to impossible for a black candidate to win an at-large county-wide election in Bleckley County, primarily because of the impact of the non-Cochran vote, a vote having a substantially lower percentage of blacks. The individual and collective experiences of these black leaders reveal that, as a practical political matter, blacks are unable to sponsor candidates for Bleckley County’s sole commissioner office because such candidacies are futile. The district court itself recognized this futility at trial, commenting as follows: “Having run for public office myself, I’ll guarantee you, under the circumstances, I wouldn’t run if I were black in [Bleckley] county. You’re going to put your hard-earned time and shoe leather campaigning throughout this county . . . under these circumstances?” (R6:808). Notwithstanding this assertion, the district court relied only on electoral evidence and chose not to consider the impact of the totality of the circumstances on the issue of racial bloc voting.

[31] The district court did, however, recognize the following: “The regression analysis [of the 1984 presidential primary] demonstrates that white and black voters did not agree upon whom the democratic party should nominate. Jesse Jackson enjoyed the electoral support of a majority of black voters; very few white voters supported Jesse Jackson.” Hall, 757 F. Supp. at 1576. That conclusion resulted from regression analysis data revealing that 60.8% of black voters supported Jackson while only 0.9% of white voters supported Jackson.[14] Exit poll data also indicated that black support for Jackson increased to over 90% of the black electorate in the 1988 presidential primary while white support was at a level of less than 2% of the white electorate.[15] Yet, the district court concluded that this evidence failed to establish a pattern of racially polarized voting or racial bloc voting. The district court reasoned that there was no specific, direct evidence of racial polarization or racial bloc voting in local county elections. The record and the district court’s factual findings nonetheless reveal that there was racially polarized voting in Bleckley County. [32] Election results in the city of Cochran reveal that black candidates were regularly

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defeated by white candidates in at-large elections conducted in the city.[16] However, after city elections were restructured so that the city of Cochran had a majority black district, black candidates were elected as the representatives of the majority black district. Similarly, although the only black candidate who had run in an at-large county-wide election had been soundly defeated, that same candidate was elected by the newly created majority black school board district in the first election where the majority black district was permitted to elect a county official.

[33] Evidence was also presented of elections involving racial themes: the 1974 Lt. Gubernatorial race involving J.B. Stoner, an avowed white racist; the 1966 and 1974 Gubernatorial races involving Lester Maddox, a former governor who had built his political career on segregation; and the 1968 presidential race involving then-segregationist George Wallace. Although these elections occurred over fifteen years prior to the trial of this case, the significant support garnered by these candidates indicates that a substantial number of Bleckley County’s voters were highly susceptible to racist, segregationist appeals as late as the mid 1970’s, and that they voted accordingly. [34] A number of the district court’s other specific factual findings, coupled with election evidence, reveal that Bleckley County indeed suffers from racially polarized voting. For instance, Bleckley County had enforced racial segregation in all aspects of local government and local government services until forced to change by federal legislation in the 1960’s. Id. at 1562. Bleckley County had debated and fought desegregation in all aspects of public life, continuing its resistance until as late as the early 1970’s. See id. Local government had deprived blacks of the opportunity to participate in public life and government, even prohibiting blacks from registering to vote and from voting until well into the 1960’s. Although Bleckley County’s government discontinued these overt racial practices, largely due to federal intervention, the black citizens of Bleckley County continue to suffer from the effects of discrimination — socio-economic conditions that are far more depressed than those of their white counterparts.[17] Id. at 1562-63. This depressed socio-economic situation “hinders the ability of and deters black residents of Bleckley County from running for public office, voting and otherwise participating in the political process,” id. at 1563, with the sole precinct system in Bleckley County

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serving as a further barrier to active political participation by blacks, id. at 1563 n. 3. Moreover, the “personal preferences” of Bleckley County’s citizens has resulted in racially exclusive organizations[18] in Bleckley County. These organizations, in turn, give blacks and whites in Bleckley County a different exposure to the candidates running for local, state, and national offices.

[35] In its Gingles threshold analysis, the district court decided not to consider any of the evidence presented by the plaintiffs other than the presidential primary election data for 1984 and 1988. It discounted the value of that data and found it insufficient to establish racial bloc voting. The court also chose to discount the value of elections in the city of Cochran, with the possible exception of the successes of Willie Basby. Other evidence was neither considered nor discussed within the scope of the Gingles analysis because the court believed that it was prohibited from considering the evidence in evaluating the plaintiffs’ compliance with the Gingles factors. These decisions were the crucial errors committed by the district court as a result of its misconception of the law. [36] When the evidence found in the record is analyzed within the proper legal framework, i.e., the totality of the circumstances is reviewed for its impact upon the issue of racially polarized voting,[19] the evidence conclusively establishes a pattern of racially polarized voting in Bleckley County. Accordingly, the district court’s conclusion that the Gingles factor requiring racial bloc voting was not satisfied in this case is clearly erroneous.

[37] (3) Existence of Political Cohesiveness
[38] Upon reviewing the record in this case, we also hold that the district court erred in concluding that Bleckley County lacks a politically cohesive black electorate. In reviewing thi Gingles factor, the district court essentially committed the same error that it committed in analyzing the issue of racial bloc voting. That error was further compounded because the district court evaluated the existence of political cohesiveness after concluding that there was no racially polarized voting in Bleckley County. We have previously noted that “proof of racial polarization may … be found sufficient by this Court to make the necessary finding of cohesiveness.” Stallings, 829 F.2d at 1563 n. 15. Nonetheless, the record evidence and the specific factual findings of the district court, coupled with the existence of racially polarized voting, conclusively reveal that the Gingles requirement of political cohesiveness has been satisfied.

[39] C. Violation of § 2 in Bleckley County
[40] The district court not only erred in its legal analysis of th Gingles threshold factors, but it also erred in its “brief” final analysis of the plaintiffs’ § 2 claim. That final analysis of the plaintiffs’ claim under the totality of the circumstances, undertaken despite the court’s conclusion that the Gingles
factors had not been met, was seriously flawed. The flaw resulted from the premise upon which the district court operated: that the three Gingles factors had not been satisfied and were, in fact, unsupportive of the plaintiffs’ case. [41] However, we find that the plaintiffs satisfied the Gingles
test. At a minimum,

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satisfaction of the three Gingles factors shifts the burden to defendants to offer rebuttal evidence. See Solomon, 899 F.2d at 1035 (Tjoflat, C.J., specially concurring). No meaningful rebuttal evidence was offered, and the totality of the circumstances found in Bleckley County clearly reveal a situation where the electoral power of Bleckley County blacks has been abridged “on account of race or color.” Accordingly, the district court erred in its ultimate conclusion that the plaintiffs had not proven their § 2 claim.

[42] Having concluded that the district court erred in failing to enter judgment for the plaintiffs, we REVERSE the district court and REMAND for the imposition of a remedy.[20]