Escambia County, FL v. McMillan Brief of Appellants
Public Court Documents
January 1, 1983
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Brief Collection, LDF Court Filings. Escambia County, FL v. McMillan Brief of Appellants, 1983. 88016a0b-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1a59bc24-2267-4f6e-81a2-957ab6c8ccf6/escambia-county-fl-v-mcmillan-brief-of-appellants. Accessed May 03, 2025.
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No. 82-1295
IN THE
Supreme Court of the United States
OCTOBER TERM, 1982
ESCAMBIA COUNTY, FLORIDA, et a i,
Appellants,
HENRY T. McMILLAN, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF APPELLANTS
CHARLES S. RHYNE
Counsel o f Record
J. LEE RANKIN
THOMAS D. SILVERSTEJN
Rhyne & Rankin
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
THOMAS R. SANTURRI
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
Attorneys for Appellants
TH E C A S IL L A S PR ESS, INC. - 1717 K Street N.W. - Washington, D.C. - 223-1220
(i)
QUESTIONS PRESENTED
1. Whether an at-large election system required by a
state constitution violates the fourteenth amendment to
the United States Constitution where there is no evidence
that the election system was established or is being main
tained for a discriminatory purpose.
2. Whether, following a decision invalidating an at-
large election system required by a state constitution, a
court may impose a judicially created remedy rather than
consider as a “legislative plan” a remedy a legislative body
adopts where the state constitution and statutes provide
the legislative body with expansive powers and do not pro
hibit it from adopting a remedy for the violations found.
TABLE OF CONTENTS
(iii)
QUESTIONS PRESENTED.............................................................. i
TABLE OF CONTENTS...................................................................iii
TABLE OF AUTHORITIES................................................................v
OPINIONS BELOW ......................................................................... 2
JURISDICTION................................................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS................3
STATEMENT OF THE CASE............................................................ 3
I. Escambia County, Florida.......................................................... 3
II. Proceedings Below......................................................................6
SUMMARY OF ARGUMENT ............... 20
ARGUMENT................................................................................... 22
I. The Fifth Circuit Erred in Upholding the District
Court’s Decision that the At-Large System of Elect
ing Escambia’s County Commissioners Violates the
Fourteenth Amendment Because There Was No
Evidence that the System Was Established or Main
tained for a Discriminatory Purpose......................................... 22
A. The Standard This Court Articulated in Rogers
Does Not Differ from the Standard the Plurali
ty Enunciated in Bolden and, in Any Event,
Does Not Differ from the Standard the Fifth
Circuit Applied in McMillan / .........................................23
B. There Was No Evidence that the At-Large Elec
tion System Was Established or Maintained for
a Discriminatory Purpose, and the District
Court’s Finding to the Contrary, Therefore,
Was Clearly Erroneous.................................................... 26
(iv)
Page
1. The Provision for Escambia’s County Com
missioners To Be Elected At-Large Is a Re
quirement of the Florida Constitution;
Hence, Appellants Were» and Are Not
Responsible for that Provision.................................27
2. Racial Considerations Play No Role in the
County Commissioners’ Preference for the
At-Large System ...................................................... 29
3. Blacks in Escambia Have Equal Access to
the Candidate Selection Process, Are Able
To Participate Fully and Equally in All
Aspects of the Political Process, and Ap
pellants Are Responsive to the Needs of
Escambia’s Black Citizens....................................... 33
II. Following a Decision Striking Down an At-Large
Election System, the Failure of a Court To Consider
as a “Legislative Plan” a Remedy a Legislative Body
Adopts and the Consequent Imposition by a Court of
a Judicially Created Remedy Is an Unwarranted
Preemption of a Legislative T ask ................ ............ . 42
A. The Fifth Circuit and the District Court Erred
in Failing To Apply the Analysis in Wise of
Justice Powell............................................................ 44
B. Florida Law Secures Non-Charter County
Commissions Broad Powers, and, Therefore,
Even Under Justice White’s Analysis in Wise,
the Courts Below Should Have Considered as a
“Legislative Plan” the County Commission’s
Proposed Remedy and Erred in Imposing a
Judicially Created Remedy..................... ..................... 45
CONCLUSION............................................................................... -49
(V)
TABLE OF AUTHORITIES
Brown v. Ohio, 432 U.S. 161 (1977)................................................ 47
Burns v. Richardson, 384 U.S. 73 (1966)......................................... 42
Butler v. Dexter, 426 U.S. 262 (1976)........... ................................. 28
Chapman v. Meier, 420 U.S. 1 (1975)........................................ .. • • 42
City o f Mobile, Alabama v. Bolden,
446 U.S. 55 (1980)................................................................... passim
Connor v. Finch, 431 U.S. 407 (1977).............................................. 42
Davis v. State ex rel. Cromwell,
156 Fla. 181, 23 So.2d 85 (1945).......................................................5
Ervin v. Richardson,
70 So.2d 585 (Fla. 1954).................................................................. 4
Escambia County, Florida v. McMillan,
No. A-939 (No. 82-1295) (U.S. May 26, 1983).......................... ■ 20
Escambia County, Florida v. McMillan,
___ U.S_____ _ 103 S.Ct. 1766 (1983)........................................ 20
Garner v. Louisiana,
368 U.S. 157 (1961)....................................................................... 47
Gurley v. Rhoden,
421 U.S. 200 (1975)................................................................... . • 47
Jenkins v. City o f Pensacola, Florida,
638 F.2d 1249 (5th Cir.), appeal and petition
fo r cert, dismissed per stipulation, 453 U.S. 946
(1981).............................................................................................. 7
Jenkins v. City o f Pensacola, Florida,
PCA No. 77-0433 (N.D. Fla. July 10, 1978)
Cases: Page
. . . 7
(vi)
Page
Kelley v. Southern Pacific Co.,
419 U.S. 318(1974)....................................................................... 27
Lodge v. Buxton,
639 F.2d 1358 (5th Cir. 1981) a ffd sub.nom.
Rogers v. Lodge, 457 U.S______ 102 S.Ct. 3272
(1982)..........: ................................................................................ 25
Mansfield, Coldwater & Lake Michigan Railway Co. v.
Swan, 111 U.S. 379(1884)............................................................ 28
McDaniel v. Sanchez,
452 U.S. 130(1981).......................................................... ..43,44, 45
McMillan v. Escambia County Florida,
559 F. Supp. 720 (N.D. Fla. 1983)
(Memorandum Decision), appeal docketed,
No. 83-3275 (11th Cir. Apr. 27, 1983),
petition fo r cert, before judgment filed,
52 U.S.L.W. 3005 (U.S. July 1, 1983)
(No. 82-2155)................................................................................ 48
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Mar. 11, 1983)
(Order) appeal docketed, No. 83-3275
(11th Cir. Apr. 27, 1983), petition for cert, before
judgment filed, 52 U.S.L.W. 3005 (U.S. July 1,
1983) (No. 82-2155).................................................................. 20, 48
McMillan v. Escambia County, Florida,
No. A-494 (U.S. Dec. 2, 1982)...................................................... 20
McMillan v. Escambia County, Florida,
Nos. 78-3507, 80-5011 (5th Cir. Nov. 23,1982)........................... 20
McMillan v. Escambia County, Florida,
Nos. 78-3507, 80-5011 (5th Cir. Nov. 4, 1982)............................. 20
McMillan v. Escambia County, Florida,
Nos. 78-3507, 80-5011 (5th Cir. Oct. 22, 1982) 18
(vii)
Page
McMillan v. Escambia County, Florida,
688 F.2d 960 (5th Cir. 1982).................................................passim
McMillan v. Escambia County, Florida,
638 F.2d 1249 (5th Cir. 1981).................................................... 2, 17
McMillan v. Escambia County, Florida,
638 F.2d 1239 (5th Cir. 1981)................................... .............passim
McMillan v. Escambia County, Florida,
638 F.2d 1239 (5th Cir.), appeal and petition for
cert, dismissed per stipulation, 453 U.S. 946 (1981)..................... 7
McMillan v. Escambia County, Florida,
No. 78-3507 (5th Cir. Mar. 10, 1980) (Order)............................. . 15
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Feb. 15, 1980) (Order)................... 15
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979) (Order)..............passim
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979)
(Memorandum Decision).................................................... 2, 13, 14
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Sept. 24, 1979)
(Memorandum Decision) ........................................................ passim
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. July 10, 1978)
(Judgment)............................................................................. 2, 7, 11
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. July 10, 1978)
(Memorandum Decision)........................................................passim
M ’Kinney v. Carroll,
37 U.S. (12 Peters) 66 (1838)........................................................ 28
(viii)
Philbrook v. Glodgett,
421 U.S. 707 (1975)........................................................................ 28
Rogers v. Lodge,
457 U.S____ _ 102 S.Ct. 3272 (1982)..................................... passim
Speer v. Olson,
367 So.2d 207 (Fla. 1978)............................................................. .4 7
United Jewish Organizations o f Williamsburgh, Inc.
v. Carey, 430 U.S. 144(1977)......................................................... 41
United States v. United States Gypsum Co.,
333 U.S. 364 (1948).................................................................. 26, 27
Upham v. Seamon,
456 U.S. 37 (1982)........................ .................. ............................ 42
Valley Forge Christian College v. Americans United
fo r Separation o f Church and State,
454 U.S. 464 (1982)............................ .2 8
Village o f Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977)..................... 28
Watt v. Energy Action Educational Foundation,
454 U.S. 151(1981)......................................................................... 28
Whitcomb v. Chavis,
403 U.S. 124(1971).................. 22,41
White v. Weiser,
412 U.S. 783 (1973)........................................................................ 42
White v. Regester,
412 U.S. 755(1973).................................................................. 22,41
Wise v. Lipscomb,
437 U.S. 535 (1978).................................................................. passim
Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969).........................................................................2 7
Page
(ix)
Page
Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973), a ffd on other
grounds sub nom. East Carroll Parish School
Board v. Marshall, 424 U.S. 636 (1976)............................... passim
Constitutional and Statutory Provisions:
U.S. Const.
art. Ill, § 2, cl. 1 ............................................................................ 28
amend. I . . .
amend. XIII
amend. X IV ............................................................................ passim
amend. X V ........................................... .........................6, 11, 17, 19
Fla. Const.
art. V I ..................................................................................................5
art. VIII, § 1 ........................................................................................3
§ H e)................................ .......... .......................................... 29,31
§ 1(e).................................................................................. 4,17,42
§ 1(f)................................................................................ . 4, 44, 46
art. X I ........................... 28
Voting Rights Act of 1965
§ 2, 42 U.S.C. § 1973 (1976)............................................... 6, 11, 17
§ 2, 42 U.S.C.A. § 1973 (West Supp. 1983) ................................ 19
§ 3, 42 U.S.C. § 1973a (1976) ...................................................... 14
§ 5, 42 U.S.C. § 1973c (1976)......................................................... 44
28 U.S.C. § 1254(2) (1976)......................................................... 2
42 U.S.C. § 1983 (1976) . . ..................................................................... 7
Fla. Stat.
§ 99.032(1981)....................... 4
§ 99.092(1)(1981).......................................................... 4
§ 99.095(1)(1981)...................................................................... 5
§ 99.0955 (1981).................................................................................. 5
§ 100.061 (1981).................................................................................. 5
§ 100.091 (1981)..................................................................................5
O
s
O
s
(X)
Page
§ 124.01 (1981)........................................................................ I7. 42
§§ 125.001-.59 (1981 & Supp. 1982)................................................. 3
§ 125.01(1) (1981)......... 4> 47
§ 125.01(3)(b) (1981)................................................. .............. 4>47
§§ 125.60-.64 (1981)................................................................ 29> 31
1907 Fla. Laws ch. 5697, § 1 ............................................................... 4
Miscellaneous:
Bureau of the Census, U.S. Dept, of Commerce,
PC80-1-All, 1980 Census of Population-Florida
(1982)............................................................................................... 3> 39
Bureau of the Census, U.S. Dept, of Commerce,
PC80-1-B11, 1980 Census of Population-Florida
(1982)................................................................................................ 3
Fed. R. Civ. P. 52(a)................................................................... 20> 25
Minutes of December 22, 1981 Meeting of Escambia Board of
County Commissioners ......................................................................... *7
IN THE
Supreme Court of the United States
OCTOBER TERM, 1982
No. 82-1295
ESCAMBIA COUNTY, FLORIDA, et al.,
Appellants,
v.
HENRY T. McMILLAN, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF APPELLANTS
Appellants Escambia County, Florida (“Escambia”) and
the members of the Escambia Board of County Commis
sioners (“County Commission”) ,1 through counsel, submit
'The current members of the County Commission are: John E.
Frenkel, Jr.; Billy G. Tennant; Kenneth J. Kelson; Gerald Woolard;
and Marvin Beck. Appellants Woolard, Frenkel and Tennant were
substituted for Charles Deese, Jack Kenney and Zearl Lancaster
respectively, who were members of the County Commission at the
time the suit was brought. The remaining parties to this action are: the
Supervisor of Elections for Escambia, Joe Oldmixon, who is a defen
dant but is not a party to this appeal; Henry T. McMillan, appellee;
Robert Crane, appellee; Charles L. Scott, appellee; William F. Max
well, appellee; Clifford Stokes, appellee; and the class of all black
citizens of Escambia, appellees. This suit also was brought against the
School District of Escambia, the Escambia School Board and the
members thereof. The School Board aspect of the case was resolved,
McMillan v. Escambia County, Fla., 638 F.2d 1239 (5th Cir. 1981),
and was not part of the judgment from which this appeal was taken.
2
this brief and request the Court to reverse the judgment of
the United States Court of Appeals for the Fifth Circuit
from which this appeal was taken.
OPINIONS BELOW
The September 24, 1982 and February 19, 1981 deci
sions of the Fifth Circuit in McMillan v. Escambia Coun
ty, Florida are reported at 688 F.2d 960; 638 F.2d 1249;
and 638 F.2d 1239 and are reprinted in the Jurisdictional
Statement2 in Appendix A at la and Appendix B at 52a
and 30a respectively. The December 3,1979 Memorandum
Decision and Order, the September 24, 1979 Memoran
dum Decision and the July 10, 1978 Memorandum Deci
sion and Judgment of the United States District Court for
the Northern District of Florida are unreported but are
reprinted in the Jurisdictional Statement in Appendix B at
54a, 59a, 66a, 71a and 114a respectively.
JURISDICTION
Pursuant to 28 U.S.C. § 1254(2) (1976), this Court has
jurisdiction over the instant appeal.
The Fifth Circuit entered judgment on September 24,
1982, and on November 4, 1982, denied appellants’ sug
gestion of rehearing en banc. (The Judgment and the order
denying the suggestion of rehearing are reprinted in the
Jurisdictional Statement in Appendix C at 116a and 118a
respectively.) On November 30, 1982, appellants filed with
the Fifth Circuit a Notice of Appeal to the Supreme Court
of the United States. (The notice of appeal is reprinted in
2Citations to materials which appear in: the Jurisdictional State
ment are to “J.S.;” the Joint Appendix are to “J.A .;” and the Record
are to “R.”
3
the Jurisdictional Statement in Appendix D at 120a.) The
Jurisdictional Statement was filed, and the appeal was
docketed, on February 2, 1983.
CONSTITUTIONAL AND STATUTORY
PROVISIONS
The provisions o f U.S. Const, amend. XIV; Fla. Const,
art. VIII, § 1; Fla. Stat. § 125.0Q1-.59 (1981 & Supp. 1982)
which are involved in this case are reprinted in the
Jurisdictional Statement in Appendix E at 122a, 123a and
126a respectively.
STATEMENT OF THE CASE3
L ■ Escambia County, Florida.
Escambia is a non-charter county4 comprising approx
imately 661 square miles5. According to the 1970 census,
the population o f Escambia was 205,334, o f whom 40,362,
or 19.7%, were black.6
Pursuant to Fla. Const, art. VIII, § 1(e), non-charter
counties, such as Escambia, are governed by five-member
boards o f county commissioners. The Florida Constitu
tion and statutes secure Florida’s non-charter counties
3Except as otherwise noted, the facts set forth herein are those facts
in existence at the time of the trial — May, 1978.
“Pretrial stipulation f F(3). (J.A. 69.)
5Bureau of the Census, U.S. Dept, of Commerce, PC80-1-A11,
1980 Census of Population — Florida 8 (1982).
6Pretrial Stipulation 1 F(l). (J.A. 68.) The current population of
Escambia is approximately 233,794, of whom 45,945, or 19.7%, are
black. Bureau of the Census, U.S. Dept, of Commerce, PC80-1-B11,
1980 Census of Population — Florida 15,25 (1982).
4
broad home rule powers.7 Under these powers, county
commissions have “such power o f self-government as is
provided by general or special law” and “may enact, in a
manner prescribed by general law, county ordinances not
inconsistent with general or special law . . . .”8 Florida
law enumerates specific powers qf county commissions
but expressly provides that the power o f county commis
sions to carry on self-government is not restricted to the
enumerated powers.9
County commissioners are elected to four-year, stag
gered terms.10 Candidates in the primary and general elec
tions are elected at-large but run only from the district in
which each resides.11 To become a candidate, Fla. Stat.
§ 99.092(1) (1981) provides for the payment by each per
son desiring to run o f a filing fee equivalent to three (3) per
cent o f the annual salary o f a county commissioner and, if
7Fla. Const, art. VIII, § 1(f); Fla. Stat. § 125.01(3) (b) (1981).
8Fla. Const, art VIII, § 1(f).
9Fla. Stat. § 125.01(1)(1981).
l0Fla. Const, art. VIII, § 1(e).
"Id.; Fla. Stat. § 99.032 (1981). The at-large system for general
elections was instituted in 1901. McMillan v. Escambia County, Fla.,
PCA No. 77-0432, typescript op. at 4-5 (N.D. Fla. July 10, 1978)
(Memorandum Decision). (J.S. 74.) Previously, between 1868 and
1901, the governor had appointed county commissioners. Id. at 4.
(J.S. 74a.) By 1900, blacks had been disenfranchised, and in 1901, an
amendment to the Florida Constitution establishing at-large elections
was ratified. Id. at 4-5. (J.S. 74a-75a.)
The at-large system for primary elections was not established until
1954. Id. at 5-6. (J.S. 75a-76a.) In 1907, a statute was enacted which
provided for candidates in the primaries to be elected from single
member districts. 1907 Fla. Laws ch. 5697, § 1. In 1954, the Florida
Supreme Court struck down this statute as violative of Florida’s con
stitutional requirement of at-large elections. Ervin v. Richardson, 70
So.2d 585 (Fla. 1954). Due to that decision, subsequent primaries have
been conducted under the at-large system.
5
levied by the executive committee o f the person’s political
party, a committee assessment o f up to two (2) percent of
a county commissioner’s salary. If a person is unable to af
ford the filing fee and committee assessment without un
due burden on his or her financial resources, he or she may
gain ballot access through a petition signed by three (3)
percent o f the registered voters in the county from that
person’s party.12 There is no majority vote requirement in
the general election, but there is such a requirement in the
primary elections.13
Since 1945, when the Florida Supreme Court held un
constitutional the white primary,14 there have been “no
racially designated legal restrictions on the ability o f black
citizens o f Escambia County to register, vote or campaign
for the County Commission . . . .”15 There also are no
formal slating organizations.16 The percentage of eligible
blacks who have registered is roughly the same as the
percentage o f eligible whites, i.e., 66.9% of eligible blacks
and 69.7% of eligible whites.17 Blacks constitute approx
imately 17% o f the registered voters in Escambia.18
In addition, blacks in Escambia are active in the
Democratic Party. Of the nine officers o f the Democratic
12Fla. Stat. §§ 99.095(1) (1981). A person who runs as an indepen
dent candidate may gain ballot access by a petition signed by three (3)
percent of the registered voters in the county. Id. § 99.0955 (1981).
13Fla. Const, art. VI, § 1; Fla. Stat. §§ 100.061, 100.091 (1981).
14Davis v. State ex rel. Cromwell, 156 Fla. 181, 23 So.2d 85 (1945).
15Pretrial Stipulation 1 F (17). (J.A. 74.)
,6Id. 1 F (18). (J.A. 74.) There have been informal “ ‘endorsing’
groups” which have endorsed both black and white candidates. Id.
11 Id. 1 F (1). (J.A. 68.)
l8McMillan v. Escambia County, Fla. PCA No. 77-0432, typescript
op. at 10 (N.D. Fla. July 10, 1978) (Memorandum Decision). (J.S.
80a.)
6
Executive Committee o f Escambia, four officers —
Dorothy Devault, John Reed, Cleveland Williams and
William Marshall — are black; and approximately twenty
(20) percent o f that Committee’s members are black.19
The Democratic Party promotes equally black and white
Democratic candidates who ran fox office in Escambia.20
No black has run for the County Commission since
1970.21 Between 1966 and 1970 three blacks ran for Coun
ty Commission, but none was elected.22 No other black
has run for the County Commission.23
II. Proceedings Below.
On March 18, 1977, the named appellees filed this class
action on behalf o f themselves and all black citizens in
Escambia against Escambia, the members o f the County
Commission and the Supervisor o f Elections alleging that
the at-large system, as designed and/or maintained, denies
appellees equal access to the political process leading to
nomination and election to the County Commission in
violation of the first, thirteenth, fourteenth, and fifteenth
amendments to the United States Constitution, section 2
1’Transcript at 1765-66 (testimony of A.J. Boland, Chairperson of
the Escambia Democratic Executive Committee). (J.A. 550-51.) Mr.
Marshall also is the Secretary-Treasurer of the Democratic Executive
Committee of Florida. Id. at 1765 (J.A. 550); Id., under separate
cover, at 17 (testimony of William Marshall). Mr. Marshall testified
that approximately forty (40) percent of the members of the Escambia
Democratic Executive Committee are black. Id. at 33-34. (J.A.
384-85.)
20Id. at 20.
2‘Pretrial Stipulation 1 F (20). (J.A. 74-75.)
22Id. One candidate, John Reed, ran twice — once in 1966 and once
in 1970. Id.
21 Id.
7
of the Voting Rights Act o f 196 5 24 and 42 U.S.C. § 1983
(1976).25 As relief, appellees sought a declaratory judg
ment that the at-large election system violates the
aforementioned constitutional and statutory provisions,
an order enjoining appellants from holding elections
under the at-large system, an order imposing a single
member district election system and an award of attorneys’
fees and other costs.26 Between May 15, 1978, and May
25, 1978, a non-jury trial was held before the Honorable
Winston E. Arnow, and on July 10, 1978, the court
entered a Memorandum Decision27 and a Judgment28 in
favor of appellees.
2442 U.S.C. § 1973 (1976).
25Compl. 11 II, IV, V(H). (J.A. 46, 47, 49-50.) Appellees sued the
County Commissioners and the Supervisor of Elections in their in
dividual and official capacities.
16Id. ad damnum clause. (J.A. 50-51.)
27McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.Fla.
July 10, 1978). (J.S. 71a.)
28McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. July 10, 1978). (J.S. 114a.) (Unless otherwise noted, further cita
tions to the court’s actions on July 10, 1978, are to the Memorandum
Decision and not to the Judgment.)
Trial of this suit was consolidated with trial of Jenkins v. City of
Pensacola, Fla., PCA No. 77-0433 (N.D.Fla. July 10, 1978), which
was filed on the same day as McMillan. Plaintiffs in Jenkins made vir
tually the same allegations with respect to elections for the Pensacola
City Council as appellees herein made with respect to elections for the
County Commission and Escambia School Board. The court s July
10, 1978 decision held for plaintiffs in both the McMillan and Jenkins
suits. The Jenkins suit has been resolved, Jenkins v. City of Pen
sacola, Fla., 638 F.2d 1249 (5th Cir. 1981), appeal and petition for
cert, dismissed per stipulation, 453 U.S. 946 (1981); McMillan v.
Escambia County, Fla., 638 F.2d 1239 (5th Cir. 1981), appeal and
petition fo r cert, dismissed per stipulation sub nom. City of Pen
sacola, Fla. v. Jenkins, 453 U.S. 946 (1981) (J.S. la), and is not part
of this appeal.
8
In reaching its decision, the court based its analysis in
itially on the criteria set forth by the Fifth Circuit in Zim
mer v. McKeithen29 for determining the existence of vote
dilution (the “Zimmer factors”)-30 With respect to the
primary Zimmer factors, the court found that there are no
slating organizations which preyent blacks from par
ticipating in the election system, that “[ajctive efforts are
made to encourage” eligible blacks and whites alike to
register and to vote, that “there is no significant difference
between blacks and whites in that respect” and that white
candidates desire and “actively seek” the support of
blacks.31 However, the court determined that blacks are
denied access to the political process because it found that
there is a pattern of bloc voting, that the provision for the
payment of the filing fee and committee assessment
frustrates blacks and that, when they have run, blacks
have lost.32 The court also found that “fp]ast discrimina
tion has helped create bloc voting.”33 As to the remain
ing, primary Zimmer factors, the court found the County
29485 F.2d 1297 (5th Cir. 1973), a ffd on other grounds sub nom.
East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976).
30The Zimmer factors are divided into two categories — “primary
factors” and “enhancing factors.” The primary factors are: lack of
minority access to the candidate selection process; unresponsiveness
of the elected officials to the interests of the minority; a tenuous state
policy favoring at-large elections; and the existence of past discrimina
tion which precludes the minority from participating in the election
system. Id. at 1305. The enhancing factors are: the existence of large
districts; the presence of a majority vote requirement; the existence of
an anti-single shot voting provision; and the absence of a provision for
candidates to run from geographical subdistricts. Id.
3'McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 10, 15, 20 (N.D.Fla. July 10, 1978). (J.A. 79a-80a,
84a, 90a.)
32Id. at 10-12. (J.S. 79a-82a.)
33Id. at 17. (J.S. 86a-87a.)
9
Commissioners generally to be responsive to the needs of
blacks34 and the policy underlying the preference for the
at-large system to be tenuous35.
With respect to the enhancing Zimmer factors, the court
acknowleged the existence of the residency requirement,
the majority vote requirement in the general election and
the absence of an anti-single shot voting provision.36
However, the court found that no one in recent history
had won a general election without a majority and that,
even though there is no anti-single shot voting provision,
candidates run for numbered places, which renders blacks
unable to concentrate their votes in a large field of can
didates.37 The court also determined that Escambia is
“geographically large.”38 Taken in the aggregate, the court
found that the Zimmer factors showed a dilution of black
voting strength.39
Next, the court examined the issue of intent and re
solved that “no discriminatory intent can be found as a
motivating factor behind the 1901 amendment” to the
Florida Constitution requiring at-large elections.40
34M at 15, 19. (J.S. 84a-85a, 88a.) Appellees stipulated to ap
pellants’ responsiveness in the following areas: water; sewers; traffic
control; fire hydrants; mosquito control; library services; ambulance
service; garbage collection and disposal; drainage planning; housing;
and corrections. Pretrial Stipulation f F(22). (J.A. 76a.)
35McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 16-17 (N.D. Fla. July 10, 1978). (J.S. 86a.) This fin
ding was based on the identical considerations as, and was subsumed
in, the court’s finding on intent, which is discussed at 9-10 infra. Id.
16Id. at 18. (J.S. 87a-88a.) The Court noted that there is a majority
vote requirement in the primaries. Id.
37 Id.
38 Id.
39Id. at 19. (J.S. 89a.)
40Id. at 25. (J.S. 93a.)
10
However, the court reached a different result as to the cur
rent maintenance o f the at-large system. The court based
this finding primarily on the County Commissioners’
responses to the recommendations o f two charter commit
tees, appointed by the County Commission in 1975 and
1977, that county commissioners should be elected from
single-member districts.41 The court observed that the
County Commissioners testified at trial that they did not
include either recommendation in a 1977 charter referen
dum because they believed that commissioners elected at-
large would be more responsive to the needs o f Escambia
as a whole than would commissioners elected from single
member districts.42 In addition, the court noted that, in
their post-trial memorandum, appellants “adm itted]” that
the rejection o f the single-member district proposals
reflected the Commissioners’ desire to retain their in
cumbency.43 Based on this evidence, the court determined
that the County Commissioners were responsible for re
taining the at-large system and, “bolstered by the findings
under the Zimmer factors,” drew the “inference” that the
Commissioners’ actions were motivated in part by the
possibility that, in future elections under a single-member
district system, one or more o f them might be replaced by
blacks.44
4‘The committee appointed in 1975 proposed a seven-member coun
ty commission with five members to be elected from single-member
districts and two members to be elected at-large. Charter Government
Study Committee Report at 3 (Plaintiffs’ Exhibit 98). (J.A. 1165.) The
committee appointed in 1977 proposed a five-member county commis
sion with all members to be elected from single-member districts.
Charter Government Study Committee Report at 3 (Plaintiffs’ Exhibit
100). (J.A. 1233.)
42McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 29 (N.D. Fla. July 10, 1978). (J.S. 96a-97a.)
43/rf. at 30. (J.S. 98a.)
44M at 31. (J.S. 98a.)
11
In sum, the court concluded that “the preponderance —
though not an overwhelming preponderance — of the
evidence”45 showed that the at-large system for elections
to the County Commission “effectively dilutes the votes of
black citizens” and “is being maintained at least in part for
discriminatory reasons”46. As a result, the court held that
the system violates the fourteenth and fifteenth amend
ments to the Constitution as well as section 2 o f the Voting
Rights Act o f 1965.47 As relief, the court directed the
parties to submit proposals to remedy the dilution which
the court found to exist.48
On August 9, 1978, appellants filed a Notice o f Appeal
of the court’s July 10, 1978 decision. Thereafter, the
County Commission adopted and submitted to the court
as a remedy an ordinance reapportioning the county com
missioners’ districts to provide a district with a black
population and registered voter majority and establishing
an election system to provide a seven-member county com
mission with five members to be elected from single
member districts and two members to be elected at-large.49
Appellees proposed a remedy which reapportioned the
county commissioners’ districts differently from ap
pellants’ plan, but also provided for a district in which
blacks comprised a majority o f the population, and pro
45Id. at 35. (J.S. 103a.)
46Id. at 32. (J.S. 99a-100a.)
47McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 32, 34 (N.D.Fla. July 10, 1978). (J.S. 100a, 101a.)
48Id. at 38 (J.S. 105a); McMillan v. Escambia County, Fla., PCA
No. 77-0432, typescript op. at 1 (N.D.Fla. July 10, 1978) (Judgment).
(J.S. 114a.)
49Notice of Adoption of Ordinance Amending Election Plan exh.
(R. 1250.)
12
vided for a five-member county commission with all com
missioners to be elected from single-member districts.50
During this time, the people o f Escambia again were
considering a change to a charter form of government. As
a result, the court postponed consideration o f the remedy
until the proposed form of charter government became
known.51 The charter commission proposed, inter
alia, a seven-member county commission with five mem
bers to be elected from single-member districts and two
members to be elected at-large;52 and a referendum elec
tion on the charter was scheduled for November 6, 1979.
On September 24, 1979, the court issued a Memoran
dum Decision giving tentative approval to the election
system contained in the charter proposal.53 In its opinion,
the court compared appellants’ proposed remedy with the
charter proposal and observed that the two plans were
“strikingly similar.”54 However, based on its interpreta
tion o f Wise v. Lipscomb, 55 the court disapproved ap
50Plaintiffs’ Submission of Districting Plan for the County Com
mission and School Board at 1. (R. 1209.)
5‘McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1 (N.D.Fla. Sept. 24, 1979) (Memorandum Decision).
(J.S. 66a.)
52 Notice of Proposed County Charter app. § 301. (J.A. 91.)
5’McMillan v. Escambia County, Fla. PCA No. 77-0432 (N.D. Fla.
Sept. 24, 1979). (J.S. 66a.)
54M at 2. (J.S. 67a.)
55437 U.S. 535 (1978). The issue in Wise was whether a proposed
remedy providing for an election system with a mixture of single
member and at-large districts, which the Dallas City Council had
adopted in response to a declaratory judgment that the existing at-
large system was unconstitutional, was a judicially imposed or a
legislatively enacted remedy. This determination was necessary
because the Court previously had indicated that, when a court holds
unconstitutional an existing election system, it is held to a higher stan-
13
pellants’ proposal.* 5 56 The court reasoned that the Florida
Constitution prohibits any system of electing county com
missioners other than the at-large system which the court
already had held unconstitutional and that the Florida
Constitution limits the powers o f the County Commission
to those the Florida Legislature provides by general or
special law.57 Therefore, the court also held that, under
Wise, the County Commission lacked the power to adopt
a ‘legislative plan,” and that, in the event the charter pro
posal were rejected, the remedy the court would impose
would be treated as judicially created and only would pro
vide for single-member districts.58
On November 6, 1979, the referendum was held, and
the voters rejected the charter proposal.59 On December 3,
dard in fashioning a remedy than is a legislature. Id. at 540-41 (White,
J.). That higher standard requires a court, absent special cir
cumstances, to devise an election system comprised exclusively of
single-member districts. Id. In Wise, the Court upheld the election
system the Dallas City Council adopted because a majority of the
Court agreed that it was a “legislative plan.”
5SMcMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 3 (N.D. Fla. Sept. 24, 1979). (J.S. 68a.) In addition, the
court indicated its disapproval of appellants’ proposed remedy
because it would not have resulted in blacks’ being represented in pro
portion to their percentage of the population but, rather, would have
assured them of only 14.3% of the seats on the county commission.
Id. at 4-5. (J.S. 69a-70a.) Even though the charter proposal also
would have resulted in the same proportion of representation for
blacks, the court gave tentative approval to that proposal because ap
pellees did not object to it. Id. at 5. (J.S. 70a.)
57Id. at 3. (J.S. 68a.)
s*Id.
59McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1 (N.D. Fla. Dec. 3, 1979) (Memorandum Decision). (J.S.
54a.)
14
1979, the Court issued a Memorandum Decision60 and an
Order,61 imposing its election system and reapportion
ment plan. The election system provided for a five-
member county commission with all of the members to be
elected from single-member districts.62 The boundaries for
the county commissioners’ district? were the same boun
daries the court had adopted for the Escambia school
board districts.63 The court’s Order also provided that,
following each decennial census, the county commission
was to reapportion the county commissioners’ districts to
comply with the one-person, one-vote requirement and the
orders of the court.64 * Finally, pursuant to section 3 of the
Voting Rights Act of 1965,65 the court retained jurisdic
tion over the suit for a period of five years.66
On January 3, 1980, appellants filed a Notice of Appeal
of the court’s December 3, 1979 decision, and on January
23, 1980, moved the district court for a stay pending ap
60McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. Dec. 3, 1979). (J.S. 54a.)
6‘McMillan v. Escambia County Fla., PCA No. 77-0432 (N.D.Fla.
Dec. 3, 1979). (J.S. 59a.)
“ McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1-2 (N.D. Fla. Dec. 3, 1979) (Memorandum Decision)
(J.S. 54a-55a); McMillan v. Escambia County, Fla., PCA No.
77-0432, typescript op. at 1 (N.D. Fla. Dec. 3, 1979) (Order) (J.S.
59a).
“ McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1-2 (N.D. Fla. Dec. 3, 1979) (Memorandum Decision)
(J.S. 55a); McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 1 (N.D. Fla. Dec. 3, 1979) (Order) (J.S. 59a).
“ McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 2 (N.D. Fla. Dec. 3, 1979). (J.S. 60a.)
“ 42 U.S.C. § 1973a (1976).
“ McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 3 (N.D.Fla. Dec. 3, 1979). (J.S. 61a.)
15
peal of elections under the December 3, 1979 Order. On
February 15, 1980, the court denied the motion,67 and on
February 22, 1980, appellants filed a Notice of Appeal of
the denial. Also on February 22, 1980, appellants moved
the Fifth Circuit for a stay pending appeal of the district
court’s December 3 Order. On March 10, 1980, the Fifth
Circuit stayed that Order.68
On February 19, 1981, the Fifth Circuit rendered its
decision in McMillan v. Escambia County, Florida
(“McMillan I ’*)69 reversing that part of the district court’s
July 10, 1978 decision concerning the at-large system of
electing Escambia’s county commissioners. In so doing,
the court first held that the district court had applied the
correct legal standard applicable to vote dilution cases
because the court had recognized that proof of
discriminatory intent is a requirement in such cases and
had made specific findings concerning intent separate
from, and in addition to, its Zimmer findings.70 With
respect to the district court’s findings, the Fifth Circuit
agreed that racial considerations were not a factor behind
the enactment of the 1901 amendment to the Florida Con
stitution requiring at-large elections.71 * However, the court
67McMillan v. Escambia County, PCA No. 77-0432 (N.D.Fla. Feb.
15, 1980) (Order). (J.A. 1261.)
68McMillan v. Escambia County, Fla., No. 78-3507 (5th Cir. Mar.
10, 1980) (Order). That Order also consolidated for oral argument and
disposition appellants’ earlier appeal of the district court’s July 10,
1978 Judgment, as well as the appeals of the district court’s July 10,
1978 Judgments with respect to the Escambia School Board and the
Pensacola City Council.
69638 F.2d 1239 (5th Cir. 1981). (J.S. 30a.) The Fifth Circuit affirm
ed those parts of the district court’s decision concerning the election
systems for the Escambia School Board and the Pensacola City Coun
cil. Id.
10Id. at 1243. (J.S. 39a.)
71Id. at 1244. (J.S. 40a-41a.)
16
disagreed that appellants were maintaining the at-large
system for discriminatory purposes.
The court reviewed the record and “found no evidence
of racial motivation by the county commissioners in re
taining the at-large system.”72 As to the expression by the
Commissioners o f the desire to retain their incumbency,
the court reasoned that “the desire to retain one’s in
cumbency unaccompanied by other evidence ought not to
be equated with an intent to discriminate against blacks
qua blacks.”73 The court observed that the Commissioners
testified that “ ‘good government’” reasons, not race,
motivated them to delete from the charter referendum
proposals for single-member districts and that appellees
introduced no evidence to the contrary.74 The court ad
monished that “[t]he trial judge, o f course, was entitled
not to believe the commissioners’ testimony; in the absence
of contradictory evidence, however, disbelief o f that
testimony is not sufficient to support a contrary
finding.”75 Because there was no contradictory evidence,
the Fifth Circuit held that “the evidence falls short ‘o f
showing that the appellants ‘conceived or operated [a] pur
poseful [device] to further racial discrimination.’ ’ ”76 Ac
cordingly, the court reversed the portion of the district
court’s opinion invalidating the at-large system of electing
12Id. at 1245. (J.S. 42a.)
7iId. (J.S. 42a-43a.)
74M at 1244-45. (J.S. 41a-43a.)
25Id. at 1245. (J.S. 43a.)
16Id. at 1245 (quoting City of Mobile, Ala. v. Bolden, 446 U.S. 55,
66 (1980) (quoting Whitcomb v. Chavis, 403 U.S. 124, 149 (1971))).
(J.S. 43a.)
17
Escambia’s county commissioners.77 78 In a separate deci
sion, McMillan v. Escambia County, Florida (“McMillan
II”) ,18 the court, based on its decision in McMillan I,
vacated the December 3, 1979 remedy the district court
had ordered.
Thereafter, on April 1, 1981, appellees filed a Petition
for Rehearing and a Suggestion of Rehearing En Banc.
While the Petition and Suggestion were pending, the 1980
census was published; and on December 22, 1981, the
County Commission, pursuant to Fla. Const, art. VIII,
§ 1(e); Fla. Stat. § 124.01 (1981), reapportioned the coun
ty commissioners’ districts.79 80 Also while the Petition
and Suggestion were pending, this Court received briefs,
and heard argument, in Rogers v. Lodge*0. The Fifth Cir
cuit stayed consideration of appellees’ Petition and Sug
gestion pending the decision in Rogers and, following that
decision, requested the parties to submit briefs on the ef-
77The Fifth Circuit’s analysis and decision was based entirely on the
fourteenth amendment. The court rejected appellees’ claims under the
fifteenth amendment and section 2 of the Voting Rights Act of 1965.
The court reasoned that, in City of Mobile, Ala. v. Bolden, 446 U.S.
55 (1980), a plurality of this Court had held that section 2 “has an ef
fect no different from that of the Fifteenth Amendment,” 446 U.S. at
61, and that, even assuming section 2 allowed a private right of action,
appellees could not succeed under that section unless they also could
succeed under the fifteenth amendment. 638 F.2d at 1242 n.8. (J.S.
37a.) The court adopted the Bolden plurality’s view that the fifteenth
amendment does not apply to vote dilution claims. Id. at 1243 n. 9.
(J.S. 38a.)
78638 F.2d 1249 (5th Cir. 1981). (J.S. 52a.)
79Minutes of December 22, 1981 County Commission Meeting at
5-6. Article VIII, § 1(e) of the Florida Constitution and section 124.01
of the Florida statutes require the county commissioners’ districts to
be apportioned according to the one person, one vote principle.
80457 U.S______ 102 S.Ct. 3272 (1982).
18
feet of Rogers. Without other briefing and without oral
argument, on September 24, 1982, the court granted ap
pellees’ Petition for Rehearing and, based on Rogers,
vacated the portion of its decision in McMillan I concern
ing elections to the County Commission and its decision in
McMillan II and substituted therefor its decision in
McMillan v. Escambia County, Florida (“McMillan
IH”) .&i
The court first examined the impact of Rogers and
observed that, in Rogers, the Court reaffirmed the holding
of a majority in City o f Mobile, Alabama v. Bolden82 that
evidence of discriminatory purpose is necessary to sustain
a challenge to an election system under the equal protec
tion clause of the fourteenth amendment.* 82 83 The court also
determined that Rogers gave more significance to the Zim
mer factors and greater deference to the findings of a
district court than did the Bolden plurality.84 In view of
these determinations and the determination that, consis
tent with Rogers, the district court had not limited its in
quiry to the Zimmer factors, the court held that the district
court had applied the proper legal standard applicable to
vote dilution cases.85
8‘688 F.2d 960 (5th Cir. 1982). (J.S. la.) On October 22, 1982, the
court denied appellees’ suggestion of en banc consideration. McMillan
v. Escambia County, Fla., Nos. 78-3507, 80-5011 (5th Cir. Oct. 22,
1982).
82446 U.S. 55 (1980).
83McMillan III, 688 F.2d at 964. (J.S. lOa-lla.)
84M. at 964-965. (J.S. lla-12a.)
85M at 965. (J.S. 12a-13a.) The court indicated that the district
court had gone beyond the Zimmer factors by looking into, and draw
ing an inference from, the County Commission’s responses to the
single-member district proposals. Id. (J.S. 13a.)
19
The court then reiterated the district court’s findings
and concluded that, under Rogers, it could not “say
the district court’s finding of intent was clearly erro
neous.”86 Therefore, the court upheld the district court’s
July 10, 1978 decision invalidating Florida’s constitutional
provision for elections to the County Commission. As a
result, the court next addressed the remedy the district
court had imposed. The court agreed with the district
court’s analysis of the remedy issue, held that the remedy
the district court had ordered was within that court’s
discretion, and, accordingly, affirmed the December 3,
1979 Order.87
Due to the passage of time between the December 3,
1979 Order and the decision in McMillan III, the Fifth Cir
cuit remanded the case to the district court with instruc
tions to revise the scheduling terms of the remedial
sold, at 965-69. (J.S. 13a-22a.) The court did not address appellees’
arguments based on amended section 2 of the Voting Rights Act of
1965, 42 U.S.C.A. § 1973 (West Supp. 1983), because it had not af
forded appellants the opportunity to respond to those arguments.
McMillan III, 688 F.2d at 961 n. 2. (J.S. 3a.) The court also did not
address appellees’ fifteenth amendment claims. Id. However, the
court concluded that Rogers, which did not address either the fif
teenth amendment or amended section 2, provided “no basis for
departing from the Bolden plurality’s analysis.” Id.
1,7 Id. at 969-73. (J.S. 22a-29a.) Specifically, the court agreed with
the distinction the district court drew between this case and Wise. The
court reached this result by adopting the analysis of Justice White,
joined in by Justice Stewart, rather than the analysis of Justice
Powell, joined in by Chief Justice Burger and Justices Blackmun and
Rehnquist, because, in the court’s view, the analysis of Justice White
controlled the outcome of the suit.W. at 972. (J.S. 28a.) Based on this
analysis, the court determined that the Florida Constitution limits the
power of the County Commission to the powers specifically authoriz
ed by state law which powers do not include the power to adopt a
remedial election system. Id. (J.S. 29a.) Accordingly, the court con
cluded that the County Commission lacked the power to adopt such a
system. Id.
20
Order,88 On April 18, 1983, this Court noted probable
jurisdiction over appellants’ appeal of the Fifth Circuit’s
decision in McMillan / / / , 89
SUMMARY OF ARGUMENT
The Fifth Circuit misinterpreted this Court’s decision in
Rogers. The legal standard applicable to constitutional
vote dilution cases this Court articulated in Rogers is the
same standard the plurality enunciated in Bolden and the
Fifth Circuit applied in McMillan I. The opinion in Rogers
also does not accord greater deference to district court
findings than the plurality opinion in Bolden. The Fifth
Circuit, therefore, should not have granted rehearing.
Further, the Fifth Circuit erred in its application of the
clearly erroneous standard of Fed, R. Civ. P. 52(a) to the
ssfd. at 973. (J.S. 29a.) The Fifth Circuit denied appellants’ sugges
tion of rehearing en banc, McMillan v. Escambia County, Fla., Nos.
78-3507, 80-5011, (5th Cir. Nov. 4, 1982) (J.S. 118a.), and appellants’
motion for a stay of mandate. McMillan v. Escambia County, Fla.,
Nos. 78-3507, 80-5011 (5th Cir. Nov. 23, 1982); and Justice Powell
denied appellants’ application for stay of judgment, McMillan v.
Escambia County, Fla., No. A-494 (U.S. Dec. 2, 1982).
As discussed more fully at 48 n. 172 supra, on remand, the district
court issued a remedial Order, McMillan v. Escambia County, Fla.,
PCA No. 77-0432 (N.D.Fla. Mar. 11, 1983), appeal docketed, No.
83-3275 (11th Cir. Apr. 27, 1983), petition fo r cert, before judgment
filed, 52 U.S.L.W. 3005 (U.S. July 1, 1983) (No. 82-2155), implemen
ting its interpretation of the Fifth Circuit’s mandate. Thereafter, ap
pellants sought a stay of the Fifth Circuit’s judgment and the Order
the district court issued pursuant to that judgment. On May 26, 1983,
Justice Powell again denied appellants’ application for stay. Escambia
County, Fla. v. McMillan, No. A-939 (No. 82-1295) (U.S. May 26,
1983).
89Escambia County, Fla. v. McMillan,___ U .S .___ , 103 S.Ct.
1766 (1983).
21
district court’s findings. A review of the record confirms
the Fifth Circuit’s conclusion in McMillan / that there was
no evidence that appellants established or maintained the
at-large system o f electing Escambia’s county commis
sioners for a discriminatory purpose. Nevertheless, in
McMillan III, the Fifth Circuit upheld the court’s finding
of discriminatory intent because o f its mistaken conclu
sion that, after Rogers, the clearly erroneous standard
precludes a reviewing court from disturbing a district
court’s findings.
Because there was no evidence that appellants estab
lished or maintained the at-large election system for a
discriminatory purpose, the decisions o f the Fifth Circuit
and the district court stand as a threat to all at-large elec
tion systems. This Court repeatedly has refused to hold at-
large election systems unconstitutional per se. Unless the
Court now is willing to hold otherwise, the Fifth Circuit’s
decision must be reversed.
Moreover, neither the Fifth Circuit nor the district court
heeded this Court’s frequently reiterated admonition that
devising election systems and reapportionment plans are
legislative, not judicial, functions. Both courts below
therefore, refused to consider as a “legislative plan” the
remedial election system and reapportionment plan the
County Commission adopted. This was due to both
courts’ erroneous decisions not to adopt Justice Powell’s
analysis in Wise v. Lipscomb.
Even under the analysis the courts did adopt, Justice
White’s analysis in Wise, the courts still erred in refusing
to consider as a “legislative plan” the County
Commission’s proposed remedy. Under Florida law, non
charter county commissions have expansive powers.
Nevertheless, in direct contravention of a decision by the
22
Florida Supreme Court, the courts below held that the
powers o f non-charter county commissions are cir
cumscribed narrowly. The district court, therefore,
ordered, and the Fifth Circuit upheld, the unwarranted
preemption of a legislative task and the imposition o f a
judicially created election system and reapportionment
plan.
ARGUMENT
I. The Fifth Circuit Erred in Upholding the District
Court’s Decision that the At-Large System of
Electing Escambia’s County Commissioners
Violates the Fourteenth Amendment Because
There Was No Evidence that the System Was
Established or Maintained for a Discriminatory
Purpose.
This Court’s decision in Rogers again confirms that an
at-large election system is not unconstitutional per se90
and may not be held to violate the Constitution unless
there is a finding that the system was established or is
maintained for a discriminatory purpose91. In McMillan
III, the Fifth Circuit recognized this to have been the im
port o f Rogers.92 However, the court went on to interpret
Rogers incorrectly as “reflect [ing] both a more favorable
view of the Zimmer factors and a greater deference to the
finding o f a district court than the analysis o f the Bolden
plurality.”93 A comparison o f the Court’s opinion in
904 57 U.S. a t___ , 102 S.Ct. at 3275-76; accord Bolden, 446 U.S. at
66, 102-03 (opinions of plurality, White, J.); White v. Regester, 412
U.S. 755, 765 (1973); Whitcomb v. Chavis, 403 U.S. 124, 142 (1971).
91 457 U.S. a t___ , 102 S.Ct. at 3275-76; accord Bolden, 446 U.S.
at 66, 102-03 (opinions of plurality, White, J.); Whitcomb v. Chavis,
403 U.S. 124, 149 (1971); see White v. Regester, 412 U.S. 755, 765
(1973).
92688 F.2d at 964. (J.S. lOa-lla.)
9iId. (J.S. 11a.)
23
Rogers with the plurality’s opinion in Bolden reveals that
the Fifth Circuit’s interpretation of Rogers was erroneous.
In any event, a comparison o f the Court’s opinion in
Rogers with the Fifth Circuit’s opinion in McMillan I
leaves no doubt that Rogers did not justify the Fifth Cir
cuit’s decision to grant rehearing and vacate its decision in
McMillan I. Further, a review o f the facts unambiguously
shows that there was no evidence that appellants establish
ed or maintained the at-large election system for a
discriminatory purpose.
A. The Standard This Court Articulated in
Rogers Does Not Differ from the Standard
the Plurality Enunciated in Bolden and, in
Any Event, Does Not Differ from the Stan
dard the Fifth Circuit Applied in McMillan I,
In discussing the standard o f proof necessary to
establish discriminatory purpose, the Bolden plurality
concluded that “the presence o f the indicia relied on in
Zimmer may afford some evidence o f a discriminatory
purpose, [but] satisfaction o f those criteria is not o f itself
sufficient proof o f such a purpose.”94 In Rogers, the
Court rejected the argument that the district court’s judg
ment was infirm because that court had employed the
Zimmer factors. In upholding the Fifth Circuit’s conclu
sion that the district court had applied the proper legal
standard, this Court explained:
The District Court . . . demonstrated its un
derstanding of the controlling standard by obser
ving that a determination o f discriminatory
94446 U.S. at 73. The plurality concluded that the presence of the
Zimmer factors only may establish discriminatory effect. Id. at 71-73;
accord Rogers, 457 U.S. a t ___ , 102 S.Ct. at 3277.
24
intent is ‘a requisite to a finding o f unconstitu
tional vote dilution’ under the Fourteenth and
Fifteenth Amendments . . . . Furthermore,
while recognizing that the evidentiary factors
identified in Zimmer were to be considered, the
District Court was aware that it was ‘not limited
in its determination only to the Zimmer factors’
but could consider other relevant factors as
well . . . . For the most part, the District Court
dealt with the evidence in terms of the factors set
out in Zimmer and its progeny, but as the Court
of Appeals stated: ‘Judge Alaimo employed the
constitutionally required standard . . . . [and]
did not treat the Zimmer criteria as absolute, but
rather considered them only to the extent they
were relevant to the question o f discriminatory
intent.’95
As is apparent, the opinions o f the Bolden plurality and
the Court in Rogers reflect the same view o f the Zimmer
factors. Those factors are relevant to a finding of
discriminatory intent, but, alone, the presence o f an ag
gregate o f those factors may not establish such an intent.
Both opinions require the trial court to consider and find
present relevant evidence other than the Zimmer factors.
Hence, rather than reflecting a more favorable view of the
Zimmer factors, the distinction between Bolden and
Rogers is that, in Bolden, the district court limited its in
quiry to the Zimmer factors whereas, in Rogers, the court
went beyond, and found present evidence other than, the
Zimmer factors.96 The Fifth Circuit erred in otherwise
concluding.
95Rogers, 457 U.S. a t ___ , 102 S.Ct. at 3278 (citations omitted).
96Compare Bolden, 455 U.S. at 71-73, with Rogers, 457 U.S. at
_ , ___ , 102 S.Ct. at 3278, 3280.
25
Moreover, even assuming arguendo that the view o f the
Zimmer factors the Court conveyed in Rogers is more
favorable than that expressed in Bolden, the view con
veyed in Rogers is the same as that expressed in McMillan
I. This may be explained by the fact that, as the above
quotation indicates, the view expressed in Rogers was
derived largely from the Fifth Circuit’s opinion in Lodge
v. Buxton,91 which opinion was rendered just twenty-nine
(29) days after the Fifth Circuit’s opinion in McMillan I,
In McMillan I, the Fifth Circuit concluded that “[fjor-
tunately, the district court below correctly anticipated that
the Arlington Heights requirement o f purposeful
discrimination must be met, and thus made explicit find
ings concerning intent in addition to and apart from its
Zimmer findings.”97 98 Comparing this conclusion with the
above quotation from Rogers confirms that the Court in
Rogers and the Fifth Circuit in McMillan I treated iden
tically the relationship of the Zimmer factors to a finding
of discriminatory intent. Accordingly, the portion o f the
Rogers decision which addresses the probative value o f the
Zimmer factors did not furnish the Fifth Circuit a valid
basis for vacating the portion of its decision in McMillan I
concerning the County Commission and substituting
therefor its decision in McMillan III.
Similarly, the Fifth Circuit’s unexplained conclusion in
McMillan III that the Court’s opinion in Rogers gives
greater deference to the findings o f a district court than
the plurality’s opinion in Bolden also was incorrect. In
Rogers, the Court simply reiterated the requirement of
Fed.R.Civ. P. 52(a) that a reviewing court is not to set
aside the findings o f fact o f a district court unless those
976 39 F.2d 1358 (5th Cir. 1981), affd . sub nom. Rogers.
9863 8 F.2d at 1243. (J.S. 39a.)
26
findings are clearly erroneous." That requirement,
however, was in effect and governed review of district
court findings long before the decision in Bolden, 99 100
Because the Bolden plurality concluded that, by failing to
consider factors other than the Zimmer factors, the
district court had applied the incorrect legal standard, it
was unnecessary for the plurality to address expressly the
deference to be given the findings o f the district court.
However, in view o f the basis for the plurality’s opinion
and the length o f time the clearly erroneous standard had
been in effect, there were no grounds for the Fifth Circuit
to conclude that the Court in Rogers accorded greater
deference to district court findings than the plurality in
Bolden.
B. There Was No Evidence that the At-Large
Election System Was Established or Maintain
ed for a Discriminatory Purpose, and the
District Court’s Finding to the Contrary,
Therefore, Was Clearly Erroneous.
The Fifth Circuit erred not only in concluding that this
Court’s decision in Rogers reflects a more favorable view
of the Zimmer factors and a greater deference to the find
ings o f the district court than the plurality’s opinion in
Bolden but also erred in its application of the clearly er
roneous standard to the district court’s findings. That
standard does not insulate a district court’s findings from
appellate review. While those findings are entitled to
deference, they must be set aside as clearly erroneous if,
“although there is evidence to support . . . [them], the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been com
99 457 U.S______ 102 S.Ct. at 3278-79.
100See, e.g., United States v. United States Gypsum Co., 333 U.S.
364, 394-95 (1948).
27
mitted.”101 A review of the evidence, together with a com
parison o f that evidence to the dramatically different facts
necessary to sustain the district court’s findings in Rogers,
reveal that the district court committed a mistake in fin
ding that appellants were maintaining the at-large election
system for a discriminatory purpose.102
1. The Provision for Escambia’s County Com
missioners To Be Elected At-Large Is a Re
quirement o f the Florida Constitution; Hence,
Appellants Were and Are Not Responsible for
that Provision.
The provision for Escambia’s county commissioners to
be elected at-large is, and always has been, a requirement
of Florida’s Constitution. There is no evidence in the
record to show that appellants in any way were responsible
for the enactment o f that state constitutional provision.103
Moreover, any change in that provision would require an
amendment to Florida’s Constitution, a process over
10‘United States v. United States Gypsum Co., 333 U.S. 364,395
(1948); accord, e.g., Kelley v. Southern Pacific Co., 419 U.S. 318,
322-23 (1974); Zenith Radio Corp. v. Hazeitine Research, Inc., 395
U.S. 100, 123 (1949).
102In addition to the comparison set forth at 33-39 infra, the amici
curiae brief filed by the State Association of County Commissioners
of Florida, Inc. and numerous non-charter counties in Florida in sup
port of this appeal provides a factual comparison of Escambia and
Burke County, Georgia, the county whose at-large election system was
challenged in Rogers. Motion for Leave To File and Brief of Amici
Curiae State Association of County Commissioners, Inc. and the
Undersigned Non-Charter Counties of the State of Florida in Support
of Appeal at 9-13.
,03The district court’s opinion recognizes that appellants were not
responsible for the creation of the at-large system of electing county
commissioners. See McMillan v. Escambia County, Fla. PCA No.
77-0433 typescript op. at 23-25 (N.D. Fla. July 10, 1978). (J.S.
92a-93a.)
28
which appellants have no control.104 Appellees not only
failed to name as parties those persons or entities arguably
responsible for the state constitutional requirement o f at-
large elections, e.g., the State o f Florida, the Governor o f
Florida or the Florida Legislature and its members, but
also failed to offer any evidence, and the court failed to
find, that the constitutional provision is being maintained
for a discriminatory purpose.105 For this reason, alone,
the court’s finding that appellants were maintaining the at-
104See Fla. Const, art. XI (procedures for amending Florida’s Con
stitution).
105The absence of any causal connection between appellants and the
harm appellees have alleged raises the issue whether appellees’ allega
tions even satisfy the “case or controversy” requirement of U.S.
Const, art. Ill, § 2, cl. 1, necessary to the exercise of a federal court’s
subject matter jurisdiction. In response to appellees’ Complaint, ap
pellants answered, by way of affirmative defenses, that they were not
responsible for the at-large system of electing county commissioners
and that the State of Florida, the Department of State of Florida and
the Governor of Florida were necessary parties. Answer and Affir
mative Defenses — Escambia County at 3. (J.A. 52.) By letter dated
August 4, 1977, the court, without explanation, rejected appellants’
contention that the State, Department of State and Governor were
necessary parties. (J.A. 56.) Although the issue was not pressed on ap
peal, this Court often has stressed that, even if not previously raised
by the parties, issues pertaining to a court’s subject matter jurisdiction
may be raised and decided at any stage of the proceedings. E.g.,
Butler v. Dexter, 426 U.S. 262, 263 n. 2 (1976); Philbrook v. Glodgett,
421 U.S. 707, 721 (1975); Mansfield, Coldwater & Lake Michigan Ry.
Co. v. Swan, 111 U.S. 379, 382 (1884); M’Kinney v. Carroll, 37 U.S.
(12 Peters) 66, 68 (1838).
As recently interpreted by this Court,
Art. Ill requires the party who invokes the court’s authori
ty to ‘show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal con
duct of the defendant,’ Gladstone, Realtors v. Village o f
Bellwood, 441 U.S. 91, 99 . . . (1979), and that the injury
‘fairly can be traced to the challenged action’ and ‘is likely
to be redressed by a favorable decision,’ Simon v. Eastern
29
large system of electing Escambia’s county commissioners
was clearly erroneous.
2. Racial Considerations Play No Role in the
County Commissioners’ Preference for the At-
Large System.
Rather than focusing on those actually responsible for
maintenance of Florida’s constitutional requirement of at-
large elections, the court, instead, focused its inquiry en
tirely on appellants. Although the court did not explain
why it took this approach, presumably it did so because
Fla. Const, art. VIII, § 1(c); Fla. Stat. §§ 125.60-.64
(1981) allow Florida’s counties to adopt and be governed
by a charter which, inter alia, provides for an election
system other than the at-large system the Florida Constitu
tion requires.106 Even if the court were correct in taking
this approach, the record does not support the findings the
court made with respect to appellants to support its fin
dings of discriminatory intent.
With one exception, the district court limited its inquiry
to the Zimmer factors.107 That exception was the County
Commission’s decision not to include in a charter referen
Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 . . .
(1976).
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 472 (1982); accord, e.g., Watt v.
Energy Action Educational Foundation, 454 U.S. 151, 161 (1981);
Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 261 (1977). Those who fail to make such a show
ing “may not litigate as suitors in the courts of the United States.”
Valley Forge, 454 U.S. at 475-76. Appellants failed to make such a
showing, and, therefore, the decisions below cannot stand.
106Sixty-two (62) of Florida’s sixty-seven (67) counties have remain
ed non-charter counties.
107McMillan III, 688 F.2d at 965. (J.S. 13a.)
30
dum a proposal for county commissioners to be elected
from single-member districts. The County Commissioners
who testified at trial stated that that decision was based on
their conviction that the at-large election system is best for
Escambia because there are issues which transcend district
lines and, under an at-large system, commissioners must
represent the interests o f the county as a whole whereas,
under a single-member district system, commissioners
would tend to represent only the interests o f their respec
tive districts.108 As the Fifth Circuit pointed out in its deci
sion in McMillan I, and did not dispute in McMillan III,
“the plaintiffs introduced no evidence to the contrary.”109
Following the trial, the Commissioners indicated that their
decision also reflected the desire to retain their incumben
cy.110 As the Fifth Circuit further pointed out in McMillan
I and reiterated in McMillan III, the “desire to maintain
one’s incumbency does not equal racially discriminatory
intent.”111
The district court, however, did equate the County
Commissioners’ decision with discriminatory intent: “To
this court the reasonable inference to be drawn from their
actions in retaining at-large districts is that they were
motivated, at least in part, by the possibility single district
elections might result in one or more of them being
displaced in subsequent elections by blacks.”112 Apart
108Transcript at 1478, 1500-01, 1517-18, 1558-59 (testimonies of
Commissioners Beck, Kelson, Deese and Kenney respectively). (J.A.
481, 497-98, 510-11, 540.)
I09638 F.2d at 1245. (J.S. 43a.)
110Defendants’ Post-Trial Memorandum at 18. (R. 950.) „
11 'McMillan III, 688 F.2d at 969 n. 19 (J.S. 20a); accord McMillan
I, 638 F.2d at 1245 (J.S. 42a-43a); see also Rogers, 457 U.S. a t___ ,
102 S.Ct. at 3292 (Stevens, J., dissenting).
ll2McMillan v. Escambia County, Fla., PCA No. 77-0432, types
cript op. at 31 (N.D. Fla. July 10, 1978) (footnote omitted). (J.S. 98a.)
31
from other considerations, the court’s “inference” defies
logic. The court noted that, under a single-member district
election system, the district lines could be gerrymandered
to produce, at most, one district with a black majority.113
Assuming, as the court found, that blacks vote as a bloc
for black candidates,114 only one of five commissioners
arguably would need to be concerned about being replaced
by a black. The other four commissioners would not share
such a concern; and the court’s inference of discriminatory
purpose may not be explained by the unanimous support
of all five County Commissioners for the at-large
system.115
Moreover, the district court’s emphasis on the County
Commission’s decision not to include in the charter
referendum a proposal for a single-member district elec
tion system is misplaced. The County Commission, of
course, does not have the power to adopt a charter.
Rather, this power lies with the people of Escambia.116 As
the court observed, the 1977 charter referendum, without
a provision for county commissioners to be elected at-
large, was defeated.117 Appellees did not attempt to show,
113Id. n.10. (J.S. 98a.)
1 l4M at 13. (J.S. 82a.)
115 It is noteworthy that the charter commissions’ recommendations
for a single-member district election system were not prompted by
complaints by blacks that the at-large system was diluting their voting
strength. Commissioner Tennant, who, prior to becoming a county
commissioner, served on the County Commission’s charter commis
sions, testified that the overriding reason the charter commissions
favored a single-member district election system was “economics,” i.e.
the charter commission simply was looking for possible ways to
reduce the costs of running for office. Transcript at 577-78, 587,
591-92. (J.A. 312-13, 319, 322-23.)
116Fla. Const, art. VIII, § 1(c); Fla. Stat. §§ 125.60-125.64 (1981).
ll7McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 29 (N.D. Fla. July 10, 1978). (J.S. 96a.)
32
and the court did not find, that the defeat of the charter
referendum was in any way related to the County Com
mission’s exclusion of a proposal for a single-member
district election system. Indeed, any such assertion would
be unwarranted because, on November 6, 1979, after the
trial, the people of Escambia voted on and defeated a
charter referendum which, inter alia, provided for a seven-
member county commission with five members to be
elected from single-member districts.118 Under these cir
cumstances, it is apparent that racial considerations ex
plain neither why the County Commission supported the
at-large election system nor why Escambia’s county com
missioners continued to be elected under the at-large
system Florida’s Constitution requires.
As previously discussed, the County Commission’s deci
sion not to include in a charter referendum a proposal for
a single-member district election system was the only non-
Zimmer factor the district court considered. If, as Rogers
established, the presence of an aggregate of the Zimmer
factors, alone, is insufficient to establish discriminatory
intent and the only non-Zimmer factor shows an absence
of such intent, the district court’s finding that appellants
were maintaining the at-large system of electing
Escambia’s county commissioners for a discriminatory
purpose necessarily must be clearly erroneous; and further
inquiry should be unnecessary. However, assuming
arguendo that consideration of the Zimmer factors is
necessary, the district court’s findings thereunder also
were clearly erroneous.
See supra p. 13.
33
3. Blacks In Escambia Have Equal Access to the
Candidate Selection Process, Are Able To Par
ticipate Fully and Equally in All Aspects of the
Political Process, and Appellants Are Respon
sive to the Needs of Escambia’s Black Citizens.
Unlike Rogers, where the court found that blacks
always had been a “substantial majority” of the popula
tion,” but, due primarily to the effects of past discrimina
tion, a “distinct minority” of the registered voters,119
blacks in Escambia constitute approximately the same
percentage of the registered voters as they constitute
percentage of the population120. Further, the parties
agreed, and the court found, that blacks and whites
register to vote at approximately the same rate and that
there are no slating organizations which prevent blacks
from participating in the election system.121 Indeed, the
court found that “[ajctive efforts are made to encourage
eligible citizens, both black and white, to register and to
vote . . . . [and tjoday there is no significant difference
between blacks and whites in that respect in the
county . . . .”122 In addition, the court also found that
“[wjhite candidates do actively seek the votes of
blacks.”123 Further, as shown at 5-6 supra, the record
119457 U.S. a t ___ , 102 S.Ct. at 3279.
120See supra pp. 3, 5.
12‘Pretrial Stipulation f F(l), (18) (J.A. 68, 74); McMillan v.
Escambia County, Fla., PCA No. 77-0432, typescript op. at 10 (N.D.
Ha. July 10, 1978). (J.S. 79a-80a.)
122McMillan v. Escambia County, Fla., No. 77-0432, typescript op.
at 10 (N.D. Fla. July 10, 1978). (J.S. 79a-80a.)
123M at 15. (J.S. 84a.) The County Commissioners testified that
they not only actively seek the support of blacks, but that they con
sider the votes of blacks to be important to their successes as can
didates and that, to this end, blacks participate in their campaigns.
Transcript at 1466-67, 1498-99, 1514-16, 1555-56 (trial testimonies of
34
plainly shows that blacks in Escambia are active in the
Democratic Party and that the Democratic Party supports
equally black and white Democratic candidates. Never
theless, the court found that blacks are denied access to
the political process.124
The court based this finding on'“the requirement o f a
filing fee o f approximately $1,000.00” and the “consistent
racially polarized or bloc voting pattern which operates to
defeat black candidates.”125 With respect to the “filing
fee,” the court first ignored the fact that it is provided for
by state law126 and that, consequently, appellants in no
Commissioners Beck, Kelson, Deese and Kenney respectively). (J.A.
472-73, 496-97, 508-10, 537-38.) This is further confirmed by the
testimony of Lawrence Green, Democratic Precinct Chairperson for
Escambia Precinct 53, who is black and testified that, during the many
years in which he has been active in Escambia political campaigns, all
candidates actively seek his support. Id. at 1992-97. (J.A. 560-564.)
l24McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 10, 19 (N.D. Fla. July 10, 1978). (J.S. 80a, 88a.)
Although the court addressed separately past discrimination, it did
not distinguish, as do the Zimmer factors, access to the candidate
selection process from participation in the elector process. The facts
pertaining to the candidate selection and elector processes overlap and
are discussed jointly at 33-37 supra and infra.
>25Id. at 10, 11. (J.S. 80a.) The court also relied on the lack of suc
cess blacks had had in those instances in which they had chosen to run.
Id. The relative import of such a finding is discussed at 41 infra.
,26See supra pp. 4-5. The court asserted that the “filing fee” is
$1,000.00 because of its assumption that the fee is five (5) percent of a
county commissioner’s annual salary. McMillan v. Escambia County,
Fla., PCA No. 77-0432, typescript op. at 15 (N.D.Fla. July 10, 1978).
(J.S. 84a.) This assumption is incorrect. As discussed at 4-5 supra, the
filing fee is three (3) percent of a county commissioner’s annual salary.
In addition, the candidate’s party may levy a party assessment of not
more than two percent of a county commissioner’s annual salary; and
the amount of the assessment may be decreased or eliminated by the
party’s executive committee.
35
way are responsible for that provision. More importantly,
the court also ignored the fact that the Florida statutes
provide that if a person who wishes to become a candidate
is unable to pay the filing fee and, if levied, the party
assessment without imposing an undue burden on his or
her financial resources, he or she may gain ballot access
through a petition signed by only three (3) percent o f the
qualified electors in the county from the party whose
nomination he or she seeks.’27 Under these cir
cumstances, the provision in Florida law for the payment
of a filing fee and possible payment o f a party assessment
may not be viewed as imposing a barrier to access for
blacks to the political process; and the district court clearly
erred in otherwise finding.
In Rogers, there was “overwhelming evidence o f bloc
voting along racial lines.”* 128 No such evidence exists in
this case. Although the court found a consistent pattern o f
racially polarized or bloc voting, the court relied almost
entirely on statistical evidence, consisting o f regression
analyses, appellees submitted,129 In view of the fact that
only three (3) blacks had run for the County Commission and
had run only over a four (4) year period,130 the probative
value o f this statistical evidence and the finding derived
therefrom are, at best, dubious. This is confirmed by ap
pellees’ own expert, Dr. Charles L. Cotrell, who, in testify
ing about the appellees’ statistical evidence, expressed
doubt that that evidence could provide the basis for a find
121 See supra p. 5. Similarly, an independent candidate who is
unable to pay the filing fee may gain ballot access through a petition
signed by three percent of the registered voters in the county. Id.
note 12.
128457 U.S. a t___ , 102 S.Ct. at 3279.
129See McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 11-14 (N.D. Fla. July 10, 1978). (J.S. 80a-83a.)
13“One black, John Reed, ran twice. See supra note 22.
36
ing o f racially polarized voting in elections for the County
Commission because o f the few instances in which blacks
had run.131
Additionally, regression analysis does not account for
such factors as the qualifications o f the candidates and in
cumbency.132 Regression analysis also would show
polarization where blacks vote as a bloc for a black can
didate and whites also vote for that candidate but to a
lesser extent.133 Indeed, appellees’ expert, Dr. Glenn D.
Curry, stated that a regression analysis could show
polarization where blacks in a county are approximately
sixteen (16) percent o f the registered voters and a black
candidate wins an election.134 Accordingly, contrary to
the court’s finding, appellees’ statistical evidence fails to
show a pattern of racially polarized voting.135
13'Transcript, under separate cover, at 30-31. (J.A. 419.)
' “ Transcript at 307-08, 338-40 (testimony of appellees’ expert, Dr.
Glenn D. Curry). (J.A. 229-30, 251-53.)
133M at 333-38 (J.A. 247-52.); Id., under separate cover, at 46-51
(testimony of appellants’ expert, Dr. Manning J. Dauer). (Pages 47-51
of Dr. Dauer’s testimony are reprinted in the Joint Appendix at
1591-94.) In this regard, it is noteworthy that appellees even asserted
that “[u]nquestionably, a sizeable minority of white voters sometimes
vote for black candidates.” Plaintiffs’ Pretrial Brief and Opposition to
Defendants’ Motions for Summary Judgment at 8. (R. 849.)
' “ Transcript at 337. (J.A. 251.)
135The majority of the statistical evidence and testimony concerning
the polarization issue as well as the court’s discussion of that issue
centered on elections for the Pensacola City Council and the Escambia
School Board, see McMillan v. Escambia County, Fla., PCA No.
77-0432, typescript op. at 11-15 (N.D. Fla. July 10, 1978). (J.S.
81a-84a.) Blacks had run more frequently for those offices, and had
run over a longer period of time, than for the County Commission,
i.e., blacks had run for the Pensacola City Council nineteen (19) times
over a twenty-two (22) year period, between 1955 and 1977, and had
rhn five (5) times for the Escambia School Board over a six (6) year
period, between 1970 and 1976. See Id. apps. A-C. (J.A. 107-13.)
37
The record in this case leaves no doubt that blacks in
Escambia have full and equal access to the candidate selec
tion process and the entire elector process.136 The evidence
simply does not support the court’s clearly erroneous find
ing to the contrary.137
With respect to the remaining, primary Zimmer factors,
the court in Rogers found “[e]xtensive evidence” that the
elected officials were “unresponsive and insensitive to the
needs of the black community.”138 In contrast, the court
Arguably, therefore, there may have been more of a basis for the
court’s findings of patterns of polarization in those elections, par
ticularly elections for the Pensacola City Council, than in elections for
the County Commission. It appears that the court’s finding of
polarization in. elections for the County Commission was based more
on its interest in consistency than on the facts presented concerning
County Commission elections.
This observation is applicable generally to the other findings the
court made. As reflected in the court’s July 10, 1978 opinion, the
evidence which was presented centered primarily on the facts
surrounding the creation and maintenance of the systems of electing
persons to Escambia School Board and the Pensacola City Council,
which have no bearing on the creation and maintenance of the system
of electing Escambia’s county commissioners. In view of the absence
of evidence of discriminatory intent in the County Commission aspect
of this suit, it is evident that the district court did not review the facts,
and make its findings, regarding the County Commission in
dependently of its findings on the School Board and City Council.
136Further evidence of the fact that blacks have full and equal access
to the political processes in Escambia is found in the testimony of ap
pellees’ witness, William H. Marshall, an officer in the Escambia
Democratic Executive Committee, see supra pp. 5-6, who is black and
expressly stated that he has been involved actively in the political pro
cess in Escambia and has had full access to that process. Transcript,
under separate cover, at 29-30.
137Under the Zimmer analysis, because past discrimination is only
relevant to the present ability of blacks to participate in the elector
process, the fact that blacks are able to participate fully in that process
obviates the need to discuss past discrimination.
138457 U.S. a t ____, 102 S.Ct. 3280.
38
in this case found appellants generally to be responsive to
the needs o f Escambia’s black citizens.139 Like the court in
Rogers, the court also found that the policy underlying the
enactment o f the provision for at-large elections was not a
function o f race but that the at-large system was being
maintained for a discriminatory purpose.140 However, as
previously discussed, the court in this case did not consider
the policy underlying Florida’s continued preference for its
constitutional provision requiring at-large elections.141
While the court did find that the County Commission’s
preference for the at-large election system was motivated
by racial considerations, that finding was based on the
decision by the County Commission not to include in a
charter referendum a proposal for a single-member district
election system.142 Appellants already have shown that
that finding was clearly erroneous and that the County
Commissioners’ preference o f the at-large system was not
motivated by racial considerations.143
Because none o f the primary Zimmer factors is present,
there is nothing to be enhanced and it should be un
necessary to consider the enhancing Zimmer factors. Even
if considered, however, consideration of these factors fur
ther shows that the district court’s finding of
discriminatory intent was clearly erroneous. In Rogers, the
13’McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 15, 19 (N.D. Fla. July 10, 1978). (J.S. 85a, 88a.)
140Compare Rogers, 457 U.S. at ___ , 102 S.Ct. at 3280, with
McMillan v. Escambia County, Fla., PCA No. 77-0432, typescript op.
at 25 (N.D. Fla. July 10, 1978) (J.S. 93a).
!41 See supra pp. 27, 29.
142McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 29-30 (N.D. Fla. July 10, 1978). (J.S. 96a-98a.)
l i iSee supra pp. 29-32.
39
court found that the size o f the county had made it dif
ficult for blacks to go to polling places and to
campaign.144 The court also found there to be no residen
cy requirement, which allowed all candidates to reside in
all-white neighborhoods, and a majority vote require
ment.145 Although there was no anti-single shot voting
provision, the court found that candidates were required
to run for numbered places, which prevented “a cohesive
political group from concentrating on a single
candidate.”146
In this case, the court recognized that there is no anti
single shot voting provision and no majority vote require
ment in the general election and that there is a requirement
that each candidate reside in the district from which he or
she runs.147 However, the court also found that blacks
cannot concentrate their votes because candidates run for
“numbered places.”148 The court ignored the fact that the
so-called “numbered place” requirement is simply a func
tion o f the residency requirement, which prevents all can
didates from living in all-white neighborhoods. Finally,
the court found that Escambia is “geographically
large.”149 However, the court failed to explain what effect,
if any, Escambia’s size has on the access o f blacks to the
144457 U.S. a t ___ , 102 S.Ct. at 3280-81.
145Id. a t ___ , 102 S.Ct. at 3281.
I46M
147McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 18 (N.D. Fla. July 10, 1978). (J.S. 87a-88a.)
i4gId.
i49Id. Escambia is, however, geographically smaller than a majority
of Florida’s counties. Of Florida’s sixty-seven (67) counties, thirty-
seven (37) are larger than Escambia. See Bureau of the Census, U.S.
Dept, of Commerce, PC 80-1-All, 1980 Census of Population -
Florida 8 (1982).
40
political process. Escambia’s Supervisor o f Elections, Joe
Oldmixon, testified that his office had received no com
plaints that polling places are inaccessible to blacks;150
and appellees offered no evidence to the contrary. When
considered together with the fact that blacks and whites
register to vote at approximately tlje same rate,151 there is
no doubt that Escambia’s size has not had a negative im
pact on the voting strength of Escambia’s black citizens.
In sum, an aggregate o f the Zimmer factors and the one,
non-Zimmer factor the court considered fail to support
the district court’s finding that appellants were maintain
ing the at-large system of electing Escambia’s county com
missioners for a discriminatory purpose and, in fact, show
that finding to have been clearly erroneous. In McMillan
I, the Fifth Circuit reviewed the entire record and “found
no evidence o f racial motivation by the county commis
sioners in retaining the at-large system.”152 Even
though the applicable legal standard the Fifth Circuit ap
plied in McMillan I was no different from the legal stan
dard this Court articulated in Rogers and even though no
new evidence was introduced, the Fifth Circuit, in
McMillan III, upheld the district court’s finding of
discriminatory intent. Apart from the Fifth Circuit’s er
roneous conclusion that this Court’s decision in Rogers
changed the applicable legal standard, the above review of
the record shows that the decision in McMillan III may be
explained only by the Fifth Circuit’s having misinterpreted
the clearly erroneous standard as precluding it from
disturbing the district court’s findings.
150Transcript at 2022.
l5lSee supra p. 5.
152638 F.2d at 1245. (J.S. 42a.)
41
This Court’s decision in Rogers leaves no doubt that an
at-large election system may not be held to be unconstitu
tional unless a court finds evidence to show that the system
was established or is maintained for a discriminatory pur
pose, All the record in this case shows is that, in the few in
stances in which they have chosen to run for the County
Commission, blacks have not been elected and are not
represented on the County Commission in proportion to
their percentage of the population. As this Court held in
Whitcomb v. Chavis:153
The mere fact that one interest group or another
concerned with the outcome of. . . elections has
found itself outvoted and without legislative
seats provides no basis for invoking constitu
tional remedies where, as here, there is no indica
tion that this segment o f the population is being
denied access to the political system.154
Additionally, this Court consistently has held that
minorities are not entitled to proportional represen
tation.155 The district court’s decision and the Fifth Cir
cuit’s affirmance o f that decision run directly contrary to
these well-established principles. As such, those decisions
stand as an invitation to minorities to challenge, and
courts to hold unconstitutional, at-large election systems
merely because minorities either are defeated at the polls
or are not represented on governing bodies in proportion
to their percentage o f the population. Unless this Court is
153403 U.S. 124 (1971).
154M at 154-55; accord United Jewish Organizations of
Williamsburgh, Inc. v. Carey, 430 U.S. 144, 166 (1977) (plurality
opinion); see Rogers, 457 U.S. a t ----- , 102 S.Ct. at 3279.
i”E.g., White v. Regester, 412 U.S. 755, 765-66 (1973); Whitcomb,
403 U.S. at 149-50.
42
willing to effect such a drastic change in constitutional
law, the decisions below must not be allowed to stand.
II. Following a Decision Striking Down an At-Large
Election System, the Failure of a Court To Con
sider as a “Legislative Plan” a Remedy a
Legislative Body Adopts and the Consequent Im
position by a Court o f a Judicially Created
Remedy Is an Unwarranted Preemption of a
Legislative Task.
The lower courts’ decisions on the remedy issue also
represent a dramatic and unwarranted departure from this
Court’s well-established principles. This Court frequently
has admonished lower courts that “redistricting and reap
portioning legislative bodies is a legislative task which the
federal courts should make every effort not to
preempt.”156 The courts below disregarded this teaching.
Rather than considering as a “legislative plan” the
remedial election system and reapportionment plan157 the
156 Wise v. Lipscomb, 437 U.S. 535, 539 (1978) (plurality opinion);
accord Upham v. Seamon, 456 U.S. 37, 41-42 (1982); Wise, 437 U.S.
at 550 (Marshall, J., dissenting); Connor v. Finch, 431 U.S. 407, 414
(1977); Chapman v. Meier, 420 U .S.l, 26-27 (1975); White v. Weiser,
412 U.S. 783, 795 (1973); Burns v. Richardson, 384 U.S. 73, 89 (1966).
15’Neither the Fifth Circuit nor the district court specifically ad
dressed the remedial reapportionment plan the County Commission
adopted but, rather, limited their opinions to the County
Commission’s proposed, remedial election system. The district court’s
December 3, 1979 remedial Order, however, imposed a judicially
created reapportionment plan and further ordered the Court Commis
sion to reapportion the county commissioners’ districts following each
decennial census. McMillan v. Escambia County, Fla., PCA No.
77-0432, typescript op. at 1, 2 (N.D. Fla. Dec. 3, 1979). (J.S. 59a,
60a.) As discussed at 17 supra, prior to the decision in McMillan III,
the 1980 census was published and, pursuant to Fla. Const, art. VIII,
§ 1(e); Fla. Stat. § 124.01 (1981), the County Commission reappor
tioned the county commissioners’ districts according to the required
one person, one vote principle.
43
County Commission adopted and submitted to the court,
the district court imposed a judicially created remedy and,
in McMillan III, the Fifth Circuit affirmed that remedy.158 *
While silent on the reapportionment issue, the issue of the validity
of the district court's reapportionment plan was moot when the Fifth
Circuit issued its decision in McMillan III; and that decision only may
be read as affirming that part of the district court’s remedial Order
which directed the County Commission to reapportion the county
commissioners’ district following each census. However, to the extent
that either the opinion of the district court or the opinion of the Fifth
Circuit may be read as upholding the power of the district court to im
pose a judicially created reapportionment plan, the arguments ap
pellants have set forth at 44-49 infra with respect to the imposition of
a judicially created election system are applicable to the imposition of
a judicially created reapportionment plan. Indeed, those arguments
apply even more forcefully because the Florida Constitution and
statutes not only allow but require non-charter county commissions to
reapportion county commissioners’ districts.
l58As discussed at 11-14 supra, the primary difference between the
remedy the County Commission adopted and the remedy the court
created was that the County Commission’s remedy provided for a
seven-member county commission with five members to be elected
from single-member districts and two members to be elected at-large
while the court’s remedy provided for a five-member county commis
sion with all members to be elected from single-member districts. It
was necessary for the courts to decide whether the County Commis
sion’s proposal could be considered a “legislative plan” because of this
Court’s holdings that, absent compelling reasons, a judicially created
remedy must avoid the use of at-large districts but that a “legislative
plan” may employ such districts. E.g., McDaniel v. Sanchez, 452 U.S.
130, 138-39 (1981) (citing Connor v. Finch, 431 U.S. 407, 414-15
(1977); Chapman v. Meier, 420 U.S. 1, 26-27 (1975); Mahan v.
Howell, 410 U.S. 315 (1973)).
44
A. The Fifth Circuit and the District Court Er
red in Failing To Apply the Analysis in W ise
of Justice Powell.
The decisions below were based on the court’s inter
pretation o f Wise v. Lipscomb and Fla.Const. art. VIII,
§ 1(f)- Both the Fifth Circuit and the district court
adopted Justice White’s analysis, rather than Justice
Powell’s analysis, in Wise. 159 In addition, the Fifth Circuit
acknowledged that “[i]n this case, however, we are
presented with a fact situation that. . . . under Justice
Powell’s analysis would be considered a legislative
plan.”160 This Court’s decision in McDaniel v. Sanchez161
confirms that the district court and the Fifth Circuit
should have adopted Justice Powell’s analysis in Wise and
erred in adopting Justice White’s analysis.
The issue before the Court in McDaniel turned on
whether a reapportionment plan a legislative body
adopted and a district court ordered into effect in response
to a decision holding unconstitutional the existing reap
portionment plan was a court-ordered plan or a
“legislative plan.” In holding that the reapportionment
plan was a “legislative plan” and, thus, subject to
preclearance under section 5 o f the Voting Rights Act of
1965,162 the Court reasoned:
The application o f the statute [section 5] also is
not dependent upon any showing that the Com
McMillan III, 688 F.2d at 972 (J.S. 28a); see McMillan v.
Escambia County, Fla., PCA No. 77-0432, typescript op. at 2-3 (N.D.
Fla. Sept. 24, 1979) (J.S. 67a-69a).
'60McMillan III, 688 F.2d at 972 n. 25. (J.S. 29a.)
I61452 U.S. 130 (1981). The decision in McDaniel was rendered
after the Fifth Circuit’s decisions in McMillan I and McMillan II but
before its decision in McMillan III.
I6242 U.S.C. § 1973c (1976).
45
missioners Court had authority under state law
to enact the apportionment plan at issue in this
case. As Justice POWELL pointed out in Wise v.
Lipscomb, . . . the essential characteristic o f a
legislative plan is the exercise o f legislative judg
ment. The fact that particular requirements of
state law may not be satisfied before a plan is
proposed to a federal court does not alter this
essential characteristic.163
Particularly in light o f the Fifth Circuit’s recognition that,
under Justice Powell’s analysis, the County Commission’s
proposed remedy would be considered a “legislative plan,”
the decision by the district court and the Fifth Circuit to
disregard the County Commission’s proposal cannot
stand.164
B. Florida Law Secures Non-Charter County
Commissions Broad Powers, and, Therefore,
Even Under Justice White’s Analysis in Wise,
the Courts Below Should Have Considered as
a “Legislative Plan” the County Commis
sion’s Proposed Remedy and Erred in Impos
ing a Judicially Created Remedy.
Even under Justice White’s analysis in Wise, the lower
courts’ decisions were wrong. Of particular significance to
the courts below was Justice White’s observation that,
163McDaniel, 452 U.S. at 152. Under Justice White’s analysis in
Wise, a remedy a legislative body adopts may be considered a
“legislative plan” only if state law provides that body with the power,
express or implied, to adopt the remedy. Wise, 437 U.S. at 544 & n.8.
164Justice Powell’s opinion in Wise leaves open the question
whether a remedy a legislative body adopts may be considered a
“legislative plan” where, rather than being silent, the state constitution
and statutes expressly prohibit the legislative body from adopting, for
consideration as a “legislative plan,” a remedy. As shown at 45-48 in
fra, this case does not present that question.
46
following a decision holding unconstitutional the existing
system for elections to the Dallas City Council, there was
no state constitutional, statutory or judicial prohibition on
the authority o f the Dallas City Council to enact a new
election system.165 Both courts concluded that, unlike
Texas law, Fla. Const, art. VIII, § 1(f) “expressly limits
the legislative powers o f the County Commission to those
specifically authorized by state law,” which does not in
clude authorization for a non-charter county commission
to adopt a remedial election system.166 The portion o f Fla.
Const, art. VIII, § 1(f) on which the courts relied pro
vides: “Counties not operating under county charters shall
have such power o f self-government as is provided by
general or special law.”167 However, the courts ignored the
remaining portion o f that provision as well as the Florida
statutes and a Florida Supreme Court decision concerning
the powers o f non-charter county commissions. Specifical
ly, Fla. Const, art. VIII, § 1(f) also provides: “The board
of county commissioners o f a county not operating under
a charter may enact. . . county ordinances not inconsis
McMillan III, 688 F.2d at 972 (J.S. 27a); McMillan v. Escambia
County, Fla., PCA No. 77-0432, typescript op. at 2 (N.D. Fla. Sept.
24, 1979) (J.S. 67a-68a.).
l66McMillan III, 688 F.2d at 972 (J.S. 29a); accord McMillan v.
Escambia County, Fla., PCA No. 77-0432, typescript op. at 3
(N.D.Fla. Sept. 24, 1979) (J.S. 68a.).
167McMillan III, 688 F.2d at 971 (J.S. 25a-26a.); McMillan v.
Escambia County, Fla., PCA No. 77-0432, typescript op. at 3 (N.D.
Fla. Sept. 24, 1979) (J.S. 68a.).Both courts quoted Fla. Const, art.
VIII, § 1(f). The district court, however, erroneously quoted this sec
tion as providing that “the Escambia County Commission has ‘only
such power of self government [sic] as is provided by general or special
law.’ ” McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 3 (N.D. Fla. Sept. 24, 1979) (emphasis added). (J.S.
68a.) This inaccurate quotation apparently was a major factor in the
court’s erroneous decision.
47
tent with general or special law,”568 The Florida statutes
provide: “The legislative and governing body o f a county
shall have the power to carry on county government. To
the extent not inconsistent with general or special law, this
power shall include, but shall not be restricted to, the
power to. . . .”*69 and further provide: “The provisions of
this section shall be liberally construed in order to effec
tively carry out the purpose o f this section and to secure
fo r the counties the broad exercise o f home rule powers
authorized by the State Constitution.”168 169 170 As interpreted
by the Florida Supreme Court:
This provision of the Florida Constitution [art.
VIII, § 1(f)] also authorizes the board o f county
commissioners o f such a county to enact or
dinances in the manner prescribed by Chapter
125, Florida Statutes, which are not inconsistent
with general law.
The intent o f the legislature in enacting the re
cent amendments to Chapter 125, Florida
Statutes, was to enlarge the powers o f counties
through home rule to govern themselves.
. . . Unless the legislature has preempted a
particular subject relating to county government
by either general or special law, the county
governing body, by reason of this sentence [in
Fla. Stat. § 125.01] has authority to act through
the exercise o f home rule power.171
168(Emphasis added).
169Fla. Stat. § 125.01 (1) (1981) (emphasis added).
170M § 125.01(3) (b) (1981) (emphasis added).
17'Speer v. Olson, 367 So.2d 207, 210-11 (Fla. 1978) (emphasis add
ed). The interpretation of state law by the highest court of a state is, of
course, binding on this Court and all other federal courts. E.g.,
Brown v. Ohio, 432 U.S. 161-167 (1977); Gurley v. Rhoden, 421 U.S.
200, 208 (1975); Garner v. Louisiana, 368 U.S. 157, 169 (1961).
48
As is readily apparent, Florida law provides non-charter
county commissions with expansive powers. The Florida
Legislature has not sought to preempt the field o f pro
viding a remedial election system or reapportionment plan
in response to a decision striking down the system of elec
ting a non-charter county’s county commissioners. Under
these circumstances, the County Commission certainly
was acting within its powers in adopting the remedy ap
pellants submitted to the court. Accordingly, under
Justice White’s analysis in Wise, the courts below erred in
disregarding the remedy the County Commission adopted.
The consequence o f the erroneous decisions by the Fifth
Circuit and the district court is that a federal court un
justifiably has preempted the performance by a legislative
body of a legislative function^72 This Court must not
172Qn remand, the district court recognized that it and the Fifth Cir
cuit had erred in adopting Justice White’s analysis, rather than Justice
Powell’s analysis, in Wise. McMillan v. Escambia County, Fla., 559
F.Supp. 720, 724 (N.D. Fla. 1983) (Memorandum Decision), appeal
docketed, No. 83-3275 (11th Cir. Apr. 27, 1983), petition fo r cert,
before judgment filed, 52 U.S.L.W. 3005 (U.S. July 1, 1983) (No.
82-2155). Nevertheless, the court held that the “law of the case” doc
trine required it to carry out the Fifth Circuit’s mandate because none
of the exceptions to that doctrine was applicable. Id. at 725, 730. Ac
cordingly, the court issued an Order, McMillan v. Escambia County,
Fla., PCA No. 77-0432 (N.D. Fla. Mar. 11, 1983), appeal docketed,
No. 83-3275 (11th Cir. Apr. 27, 1983), petition fo r cert, before judg
ment filed, 52 U.S.L.W. 3005 (U.S. July 1, 1983) (No. 82-2155), im
plementing its interpretation of the Fifth Circuit’s decision in
McMillan III.
Because the court previously had recognized that Justice Powell’s
analysis was controlling, the court, prior to rendering its decision, had
advised the County Commission to adopt for possible consideration
as a “legislative plan” a remedial election system and reapportionment
plan. In addition to holding that the “law of the case” doctrine
precluded it from considering the remedy the County Commission
adopted on remand, the court also determined that, if that doctrine
49
sanction such an unwarranted intrusion on, and usurpa
tion of, legislative powers.
CONCLUSION
For the foregoing reasons, the judgment o f the Fifth
Circuit in McMillan III should be reversed.
Respectfully submitted,
CHARLES S. RHYNE
Counsel o f Record
J. LEE RANKIN
THOMAS D. SILVERSTEIN
Rhyne & Rankin
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
THOMAS R. SANTURRI
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
Attorneys fo r Appellants
were not a bar, the court would not have implemented the County
Commission’s remedy because it did not guarantee blacks the oppor
tunity to elect representatives in proportion to their percentage of the
population. McMillan v. Escambia County, Fla., 559 F. Supp. at 725,
729, 730. Appellants strongly disagree with the actions taken by the
district court on remand and with the reasons underlying those ac
tions. In the interest of resolving all aspects of this case at one time,
appellants herein have sought immediate and direct review in this
Court of the Order and accompanying opinion the district court issued
on remand. Petition for a Writ of Certiorari Before Judgment to the
United States Court of Appeals for the Eleventh Circuit, Escambia
County, Fla. v. McMillan, No. 82-2155 (U.S. filed July 1, 1983).
I