New York State Association for Retarded Children, Inc. v. Carey Brief Amici Curiae

    ,r
LEE COU}ITY BRANCH OF NAACP v. CITY oF OPELIKA

Ire ar Z'lt F2d ta73 (t9E4)

$

r473
penalty, or the seeretary's settlement of chemical Group a. osHRC,6gs F.2d b44,
them, except as to the reasonableness of SS1 (6th Cir.tgg-O).
the abatement time where an employee Applying the facts of this case to theor a union has duly raised that issue.
Id. at 1422. preceeding authority, it is clear that the

rhe Fifth circuit atso had an occasion to ffi:"'il,rllilT"'n*''iff#;"-ffi-
consider this matter. In Donoaan a. Oil, drew its contest to the citation, the Union
Chemical and Atomic Workers Interna- here was left only with the right to chal_tional, 718 F.zd 1341 (sth Cir.1983) the lenge the abatement period. The Union
facts were similar to the above case in that
subsequent to an oSHA citation the Secre- 

does not have a right to be heard on any

tary and the employer entered into a settre- 
other objections it may have regarding the

ment agreement. The secretary agreed to settlement agreement' The awarding of

reduce the citation from "serious" to "non- party status does not equate a right to a
serious" and to eliminate the Denaltv. The faetual hearing on objections the employ-

employer, on the 
"th;; ;;il'"*i""a-i" ees have as to the recharacterization of the

withdraw its notice of contest. OSHA violation. Further, the Commission

rhe Firth circuir agreed with the posi- H".1LjlH11''"X li""l::f[ l;,,J ;J.ttion of the Secretary that the employees'
rights to challenge the settlement are limit- Based on the above, we therefore hold

"d 
on." the em"ployer has withdrawn its that the order of the Commission should be

notice to contesl. Specifically the court and is hereby REVERSED'
held:

I

I

I

We hold that employees may participate
fully as parties once the employer has
filed a notice of contest, and hence are
not limited to challenging the reasonable-
ness of the abatement period at such
proceeding. If the employer subsequent-
ly withdraws its notice of contest, how-
ever, the employees are limited to chal-
lenging the abatement period; and the
Commission loses jurisdiction to enter-
tain the employees' petition for review of
the settlement agreement terms.
1d at 1353.

This court would truly belabor the point
to the level of redundancy to detail all of
the other circuits decisions concerning the
matter presently before this eourt. How-
ever, we note with approval the decisions
of the other circuils in favor of the Secre-
tary that have considered the rights of
contesting employees and the jurisdiction
of the Commission. See, e.g., Donoaan o.

United Steel lVorkers,722 F.zd 1158, 1160
(4th Cir.1983); Oit, Chemical & Atotnic
llorkers a. Occupational Safety and
Health Reuiew Commission, 6?1 F.2d 648,
650 n. ? (DC Cir.1982); Marshall r;. Sttn
Petroleum ProdueLs Co., 622 F.zd 11?6,
1185 (Srd Cir.1980); Marshall and IMC

LEE COUNTY BRANCH OF the
NAACP, er al..

Plaintiffs-Appel lants,

v.

The CITY OF OPELIKA, et at.,
Defendants-Appellees.

No. 83-7275.

United States Court of Appeals,
Eleventh Circuit.

Dec.17, 1984.

Aetion was brought against city, alleg-
ing voting dilution in violation of the Four-
teenth and Fifteenth Amendments and sec-
tion 2 of the Voting Rights Act. The Unit-
ed States District Court for the Middle
District of Alabama, Robert E. \Iarner.
Chief Judge, entered judgnrent denling rir
lief, and denied Snotion to alter or anrenci

)

I

:i;

--.a14r ._, -*-i.{



1474 ' ?48 FEDERAL RpPoRTpR, 2d SERIES

the judgment or for a new trial' Jlaintiffs
;;;i"1. The Court of APPeals' wisdom'

ffiio; Circuit Judge, sitting by designa-

Iion.--r,.ia t,r,"t,, (i) ttre statutory claim

.f,"tfa have been adjudicated first; (2) case

;;; ;" remanded for further Proceed-

il;;, the Voting Rights Act claim' in

vilw of recent amendment of the Act ano

a"r" f"* construing the amendment during

oendencv of instant appeal; and (3) instant

i"co.d taitea tp establish a violation of the

Act as amended.

Vacated and remanded'

James C. Hill, Circuit Judge' filed spe-

cially eoncurring oPinion'

l. Elections €alZ(9)
Proof of a violation of section 2 of the

Voting-nigf,ts Act is different from proof

of a Jaim of unconstitutional voting dilu-

iior. Voting Rights Act of 1965' S 2' as

,*"ra"a, aI u.s.c'l' s 1973; u's'C'A'

Const.Amends. 14, 15'

2. MuniciPal CorPorations €>80

In uoting dilution action brought under

the Voting Rights Act and under the Four-

ieenti, "ia 
Filt""nth Amendments' the

.t"irto"V claim should have been adjudicat-

la ri..,. Voting Rights Act of 1?9i : ?'

". "*"ra"a, 
az"U.S'b'a' S 19?3; U'S'C'A'

Const.Amends. 14, 15'

B. Federal esurts €=940

4. MuniciPal CorPoration5' c=80 :

In uotlng dilution action brought

"guin.t 
city u-nder section 2 of the Voting

njnf,tt Aci, evidence was insufficient to

;il;.h " 
violation of thir Act' in view of

**k 
"uia"nee 

of racially polarized 1gti'g
and of election practices' Voting Rlghts

l'.i "f 
1965, S 2, as amended' 42 U'S'C'A'

s 19?3.

b. Federal Qsurt5 €=707

On appeal from judgment denying re-

tiet it uoilng dilution action brought under

r"*i", z oi tt " Voting Rights Atci' tle
ibr., "f Appeals would not consider' in

Jo*".tio, *ittt ptuintitfs' request to. in-

siiuct district court on remand that a viola-

iir, *"t 
"toblished 

on the present record'

"uiaun." 
on issue' of racially polarized 

-vot-
ins which was not presented at trial' Vot-

ffi Ris;t Act of 14165, s 2' as amended' 42

u.s.c.A. s 1973.

6. Elections o=12(9)

In voting dilution actions brought un-

der section i of the Voting Rights lt!' il
.r".ia.tirg evidence of racially polarized

;;;i;;. .";; must be taken to avoid Placing

i""-rrlr.fl reliance solell' on statistical calcu-

i;;;; k;"*, as an "R2 coefficient"' which

.oir"lut". the percentage of a particular

;;;i;i;t"rp .egistered in a given precinct

*it *" p"r."nt"gt of the precinct vote fo,r

in" .u"aiaut"s oflhat racial group; it will

oi*n U" necessary to examine factors oth-

er than race that may also correlate highly

with election outcomes, including campalgn

exrtenditure, party identification' income'

*edia aduertising. religion' name recognl-

il-o,lu ,na position on kev issues' yqti'.q
iii*irt,. Aci of 1965, e 2, as amended' 42

u.s.c.A. s 1973.

Sec Publication Words and Phrases

r"i'.,ir". l,Jiii'l tot,'""tions and

definitions.

Before
Judges,
Judge.

WISD(

The pl.
at-large
goverxm
bama vio
Amendm
Rights I
c.A. 5 I
was trie<
Neaett o
cert. den
2916, 64
fore the
sion in tl
two deci
proof in ,

Rogers t
s.ct. 327
ts. Bolde
1490, 64

Congress
Rights A
restoring
and Elev
criminati
decided.t
ruling p,c

issued a
plaintiffs
case. Ir
denied tl
amend tl
and held
tled to rr
Voting I
enumeral
ers. Wh
decisions
sition of
McMillat
15??, 80
vacated :

scheme
ment and

* Honorab
Judge Ir
tion.

Remand of voLing dilution action

brought under the Voting Rights A-ct w.as

,"."it"ty where district eourt's opinion' is-

sued shortly after amendment of the Act

*ti.tt 
"ttuUtished 

a "results" test for vot-

i.rg aifution cases under the Act' failed to

;;ril; the amendment, where' while the

instant case was on appeal' case was decid-

ea e*ptaining how the "results" test was to

u" .ppii"a, ivhere the court's second opin-

ion denyirg motion to amend judgment 
-or

i;; ; ;* Liut aia not articulate basis for

It-. .on.la..rtion of various relevattt fac-

t*., ,ra where the evidence compiled in

ii,u .".ora was at least six years old and

Jirl ,r", necessarily reflect current condi-

,i,r,*. voting Rights Act of 1965, s 2' as

r.i':-'nded, 42 ll.S'C'A' S 19?3'

Stephen J' Ellmann, ltl-O Burnim'

Montgo-"ty, Ala', for plaintiffs-appellants'

Guy F. Gunter, III, Opelika' Ala''.Thom-

u.-S" i"*.on, Jr., Montgomery' Ala'' for

defendants'aPPellees'

Aooeal from the tlnited States District

Couii tot the Middle District of Alabama

"Tts\



,'$

"nd 
cou*" ,*oylfl,)1,i,!il,ctrv or' oPELIKA 1475

Before HILL and HENDERSON, Qircuit tion of whether the scheme was unlawful

Judges, and WISDOU', S"nio, Circuit .rnJe, ,ection 2 of the Vo'ting Rights Act'

Judge'In!]nitedStatesu.MarengoCountyCom-
wrsDoM, senior circuir Judge: a#:J3r'l;":x#::cil"I'"i"t'T"f iI:
The plaintiffs in this case allege that the test of iection 2 is to be applied to an

at-large scheme to, 
"t".ti.,g 

the- municipal allegation that. an 
. 
atJarge system unlaw-

g"*rir..rt for the eity of Opelika, Ala- fully dilutes minority votes'

Eama violates the Fourteenth and Fifteenth we hold that Escambia requires that the

Amendments and section 2 of the Y"j:lC plaintiffs' section 2 claim be decided first
Rights Act of 1965, as amended, .42 

U.S. and that Marengo sets forth the legal stan-

C.i. S 19?3 (West Supp.1984). The case dard governing that claim. We remand

was tried under the law as pronounced in this eise to the district court to allow the

Neaett a. Sides,5 Cir.19?8, 5?1 F.2d 209, parties an opportunity to update the record

cert. d.enied., 1980, 446 U.S. 951, 100 S'Ct' and to present evidence on the question

2916, 64 L.Ed.2d 80?. After trial but be- whether Opelika city elections have exhibit-

fore the district court had issued its deci- ed racially polarized voting, a key consider-

sion in this ease, the Supreme Court issued ation under Lhe Marttngo standard'

two decisions affecting the standard of
proof in constitutional discrimination cases' I. FACTS

Rogtrt a. Lodge, -19E2, 
458 U'S' 613, 102 Opelika, Alabama is a city of approxi-

s.it. szzz, ?3 i.Ed.2d l0l2 Citv of Mobi-lc .nutirv zd,oo0, of which about gl percent
u. Bolden, 1980, 446 U.S' 55, 100 S'Ct' 

"". 
Ufu.f,. The city is governed by a three-

1490, 64 L.Ed.zd 47. Moreover, in 1982 ihose members are

Congress amended section 2 of the Voting :iJ;,H "t:,T['ii';.'" 
Lr""-r"u, term. The

nigi'ts Act, in effect overruling Mobile-anl elections are staggered; one new commrs-

.u.totirg the legal standard in the Fifth ,i"r"r l. elected iu.h .o**"r. If no candi-
and Eleienth Circuits governing voter dis- 

duiu "".uir.. 
a majority of votes, the two

crimination decisions before that case was *naia"t". receiving the most votes partici-

ffi'ffi:,ff ,fl:T::H"J* frffi;ir',i ;t;;-;run-off erection. After each erec.

issuei 
-an 

opinion d;;;i,t rerier. ro the *ilt;r"lt;1.,i:IT,ii::fi::.,TiT'."tiil
plaintiffs under the principles stated in that

ir... l, a later biier oplnion, the c'rurt as mayor'

deniedtheplaintiffs,,notiontoalterorAlthoughpervasivedejurcdiscrimina-
amend the judgment, or for a new trial' tion in Opelika ended in about 1970' resi

andhe]dthattheplaintiffsweretlotenti-dentialputt",n.inthecityatthetimeof
tled to relief under either section 2 of the trial were segregated As of 1978' Opelika

VotingRightsActorunderthefactorswasdividedintosixvotingwardsor..box.
enumeratedbytheSupremeCourtinr?og.es,,.Witnessesattrialtestifiedthatthe
ers. While this case was on appeal' two majority of the population in boxes 1' 2'

decisions were issued that affect our dispo- uri 6 *.r. u'hite and the majority of those

sitionofthiscase.lnEsconfiioCou'nlyr'.inboxesSand5wereb]ack.Theremain.
McMiltan, 1984, 

- 
U.S- 

-, 
104 S'Ct' ing box was generally considered a "white"

15??, 80 L.Ed.zd 36, the Supreme Court box' There was no direct evidence in the

vacated a finding that an at-large election record of voter fegistration by race in ope-

scheme violated ti,e 
-Fourteenii, 

,q.rn.na- lika.2 The plaintiffs introduced evidence

mentandremandedthecasef<lrconsirlera-suggestingthatadisparityexistedbe.
*Honorablc John Minor wisd.nr, L.S. circuil l. &c Parkcr, Thc "Resttlts" T*t ol section 2 ol

Judgc for the Fifrh circuit, sirtir.g br <ir.sigi,;r tltt vttting Rights A_L't: Abandoning the lntent

2. Thi plrirltifl's allenrplcd to conduct a stud\ of
- t,ii,i"'*gi.t.ati,rr bt'racc jttst bcfore lrial' Thc



?48 FEDERAL REPORTER, 2d SERIESt476

tween levels of voter
blacks and whites.

among

No black has ever been elected to Opeli-

ka's city commission. On five occasions

between 1969 and l9?8, a black candidate

ran for and lost election to the commission.
In 19?0, no blacks were employed by the

city in either managerial or clerical posi'

tions. In 19?8, three of thirty-three clerical
positions were filled by blacks. Three of
t}te eleven administrative positions with the

City Water Works Board and four of the

forty-four city managerial positions were
filled by blacks. Since 1972 the Opelika

school system has been fully integrated at
a ratio of approximately 60 percent white
and 40 percent black in each school
throughout the system.

On January 25, 1978, the Lee CountY

Branch of the NAACP, the Lee CountY

Voters League, and several of the mem-

bers of these organizations filed suit
agailst the City of Opelika and the three
members of its city commission, alleging
that the at-large commission form of
government impermissibly dilutes the votes

of black citizens in violation of the Four-
teenth and Fifteenth Amendments and sec-

tion 2 of the Voting RighLs Act, as amend-

ed, 42 U.S.C. E 1973 (1976). The case was

tried before the district court in the sum-

mer of 19?8 under the law as set forth in

study was never completed, and experts presenl-

ed by both sides agreed thal the data produccd
by the plaintiffs' incomplcte study' were unrelia'
ble.

3. The plaintiffs attempted to prove lack of ac-

cess to the political process by demonstrating
the depressed socioeconomic status of blacks in
Opelika, the exclusion of blacks from governing

boards and other positions of public responsibil-
ity in the city, the absence of consideration of
biacks to fill vacancies in thc city commission
caused by death or resignation, and the exist'

ence of iacial bloc voting. The plaintiffs at-

tempted to prove unresponsiveness by demon-
straiing the underrepresentation of blacks on

adminLtrative boards and in thc municipal
workforce, thc citS/s failure to providc munici'
pal services for which the black communitl had

i particularized need, and thc continucd dr'/ac'
,o segregation of the citl"s ccnletcrics, rccrca'
tion program, and Public housing

The defendants respondcd to thc plaiilrill'
charge of lack of access bl sho*'irrg that th' ' i' '
mainlained no device or procedt:'. tll:rr ilr ril

I
NJaett u. Sides, S Cir.19?8, 571 F.zd 209,

cert. d.enied, 1980, 446 U.S. 951, 100 S.Ct.

2916, 64 L.Ed.2d 807. Neaett held that a

claim of unconstitutional voting dilution
could be established by proof of the factors
outlined in Zimmer a. McKeithen, 5 Cir.
19?3, 485 F.zd 1297 (en banc), affd Per
curiam sub nom. East CarT oll Pa*h
School Board a. Marshall, 1976, 424 U.S.

636, 96 S.Ct. 1083, 47 L.Ed.zd 296. Proof
of these factors "raises an inference of
intentional discrimination". Nettett, 571

F.Zd aL 225. The focus of the evidence at
trial was on the two Zimmer factors that
the Neuett C,ourt stated were of special

relevanee in voting dilution cases-whether
the plaintiffs had access to the political
process and whether government officials
were responsive to the interests of the
plaintiff racial group.s Neaett, 57i F.2d at
223 n.19.

After trial, but before a decision in this
case had been rendered, the Supreme Court
decided City of Mobile a. Bolden, 1980, 446

u.s. 55, 100 s.ct. 1490, 64 L.Ed.zd 47. A
plurality of the Court held that intentional
discrimination must be shown to establish a

claim of unconstitutional voting dilution'
The plurality rejected the holding of Neaett
that proof of an aggregate of the Zimmer
faetors is sufficient tn establish such a

claim. 446 U.S. at 73, 100 S.Ct. at 1502-

ited black citizens from voting, registering to
vole, nominating candidatcs, qualifying as a

candidate, or campaigning as or for a candidate'
The defendants also introduced evidence that
the plaintiffs had conducted a successful cam-

paign to register black voters; that the city had

relocated voting booths to be more convenient
to black than to white residents; that candidates
for the city commission regularly soughl the
support of black voters; and that the number of
blacks holding clerical and administrative posi-

lions in the city workforce had increased be-

tween 1970 and 1978. The defendants respond-
ed to the plaintiffs'charge of gnresponsiveness
b1' shouing thal neu street lighting was first
installcd in black areas of the city; that develop-
ment funds, such as matching city water board
funds, were s1-nt in black, lorv and moderate
incomc areas; thar there wcrc numerous in-
stanccs in u'hich thc citv treated blacks more
favorablv tharr olhcrs; that the cit1"s schools
r|crr: fullv ittlotritl(..1: that 28 percent of the citl'
\\(,rklorcc i\l!r. i),.r'f.: lrrrcl that substantial gains

in tltc crrlpl,' '1;1"1 'rf blacks in all areas had

b(.i: n,atd( : , l:)-'-:

Bec(

ing
coul
tion

Ir
an
tiffi
AIa

150:

that
incc
darr
r49i
Mol

coul
are
purl
mad
cien
The
pror
the
tors
maI
The
that
spor
barr
beer

T]
ther
L02
two
its ,

Amr
Stat
l97t
conl
tors
tos
crin
624,
Amr
ing
pro(
marl
abri
accc

4. I
I

I



LEE COUNTY BRANCH OF NI
c'eerzreF:dllz3?,t,"''" 

oF ,PEI'IKA 1477

1503. Five justiees in Mobile als'o ruled 5 19?3(a) (West Supp.19B4) (emphasis add-

that section 2 of the Voting Rights Act ed). The statute further provides:

incorporates the constitutional intent stan- A violation of subsection (a) of this
dard. /d. at 6F61, 105 n. 2, 100 S.Ct. at section'is established if, based on the
149ts1496, 1520 n. 2. After the decision in totality of circumstances, it is shown that
Mobile, the plaintiffs moved to reopen the the political processes leading to nomina-
record in this case to submit evidence bear- tion or election in the Statc or political
ing more directly upon intent. The district subdivision are not equally open to par-
court denied the plaintiffs' offers of addi- ticipation by members of a class of citi-
tional evidence. zens protected by subsection (a) of this

In August 1982, the district court issued section in that its members have less

a memolndum opinion denying the plain- opportunity than other members of the

tiffs, relief. Memorandum 
-Opinion, M.D. electorate to participate in the political

AIa. Aug. 31, 1982, Record it ZlS. The process and to elect representatives of

eourt concluded that the Zimmer factors their choice. The extent to which mem-

are relevant to a showing of discriminatory bers of a protected class have been elect-

purpose wder Mobile, although Mobiie ed to office in the State or politieal subdi-

made proot of those faetors alone insuffi- vision is one circumstance which may be

cient to establish the necessary intent. considered: Prouided, that nothing in

The court ruled that the plaintiffs had ,,not this section establishes a right to have

proved by a prepond"run." of the evidence members of a proteeted class elected in

ihe existence of un 
"gg."gate 

of the fac- numbers equal to their proportion in the

tors which the Zimmei Court said would population'

make out ,a strong case'". Record at 308. 42 u.s.c.A. s 1973(b) (west supp.1984).

The court's opinion emphasized evidence On September 10, 1982, the plaintiffs
that Opelika's goverament had been re- moved to amend the judgment or for a new
sponsive to black needs and that all formal trial in the light of. Rogers and amended
barriers to black political participation had section 2. They also asserted that Rogers
been eliminated. reflected a renewed emphasis on certain

The court's opinion made no mention ei- evidentiary factors outlined in Zimmer
therof Rogers i. Lodgr,1982,458 U.S.613, that would further support their right to
102 S.Ct. 1ZZZ, lg i.na.Za 1012-decide6 relief. In March 1983, the district court

two months before the district court issued denied the plaintiffs' motion. The court

its opinion--or of the Voting Rights Act entered no detailed findings of fact or con-

Amendments of 1gg2, P.L. No. 9?-205, 96 clusions of law. Its three-paragraph opin-

Stat. 131 (codified at 42 U.S.C. 55 19?1- ion concluded that

L974e), effective June 29, 1982. Rogers (1) the preponderance of the evidence

confirmed the vitality of the Zimmer fac- showing facts alleged and proved in this

tors and held that these factors can be used case do not indicate a violation of 42

to support an inference of intentional dis- U.S.C. S 1973 as last amended or of the

crimination. Rogers, 458 U.S. aL 62V22, Constitution and (2) the Opinion in this

624, l0Z S.Ct. atBZT?-7B, ZZig. The 1982 case is inclusive of the primary factors

Amendments changed section 2 of the Vot- discussed in Rogct.., and Rogers supplies

ing Rights Act to prohibit any practice or neither legal mr factual reasons to alter

pro.edure "imposed or applied .. . in a or amend the judgment entered in this

manner which results in a denial or case on August 31, 1982'

abridgement of the right ..
account of race or color ... ."

4. In a footnote the court wrote:

. to vote on Record at 322-23.r The plaintiffs appealed
42 U.S.C.A. from the denial of their motion to alter or

Plaintiffs insist that Rogers v. Lodge, supra,
represents a u'ithdrau'al by the Supremc
Court from a stricl requirement of discrimina-

tory intent allegedll articulated in Bolden t
City of Mobile fCity o/ Mobile v. Bolden), 416
u.s. 5s Il0o s.cr. 1490, 64L.F,d.2d.17] (19S0).

Dissenting opinions seem to supporl that vicr'



-L

1478

amend, 6r for I new trial, anQ frogr the
district court's original judgment of Au-
gust 1982.

II. THE SECTION 2 CLAIM SHOULD
BE ADJUDICATED FIRST

Although the plaintiffs filed claims under
both the Fourteenth and Fifteenth Amend-
ments and section 2 of the Voting Rights
Act, the case was tried in the district court
primarily in constitutional terms under the
intent standard set forth in Neaett a. Sides,

5 Cir.19?8, 571 F.2d 209, cert. denied,1980,
446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d
807.

ttl There was relatively little judicial

interpretation of the scope of section 2 in
the reported decisions before the Supreme
Court's Mobile decision in 1980.5 The Vot-
ing Rights Act Amendments of 1982, how-
ever, made it clear that the "results" stan-
dard under section 2 was intended to re-
place the "intent" standard of Mobile.6
The proof of a section 2 violation, there-
fore, iq different from the proof of a claim
of unconstitutional voting dilution.

l2'l A recent Supreme Court ease, decid-

ed while this case was on appeal, requires
that the plaintiffs' statutory claim be adju'
dicated first. ln Eseambia County u.

McMillan, 1984, 
- 

U.S. 

-, 
104 S.Cr.

157?, 80 L.Ed.zd 36 (per curiam), the Court
vacated a finding that an at-large election
scheme violated the Fourteenth Amend-
ment and remanded the case for considera-
tion of whether the scheme was unlawful
under section 2 of the Voting Rights Act.

while the majoritv seems to feel that thc facts
upon which the conclusion of discrimir.ratorl'
intent is based in Rogers arc sinlplv strongcr
than those originally articulated in Boldcn.
The range of this Court's consideration of tlic
evidencc, applying principlcs of Roltlen anrl
Zimmer v. McKeithen, 48-5 I".2d 1297, sccms
adequete in an) evcnt.

Record at 323 n. l.

5. Parker, The "Results" Test ol Secriort 2 of rhe

Voting Rights Act: Abandoning the Intcnr Stan
dard, 69 Va.L.Rer'. 715, 727 (1983). I'arkcr
notes that, although man)' volo diltrtion cascs

litigated during the 1970s madc both crrnslilLr
tion;rl and section 2 claims,

It]hc courts ma1' havc considt'r'cd disctts'i,,:r
o{ thc scctiort 2 standard lo bt' supclilrr,,.

?48 FEDERAL REPpRtER, 2d SERIES -

-*"

The district court tgd ruled that the. at-
large scheme was unconstitutional beeuse
it liad been maintained for discriminitory
purposes, The Fifth Circuit affirmed on
the standards set forth in Rogers o. Lodge,
1982, 458 U.S. 613, m2 S.Ct. 3272, 73

L.Ed.2d 1012. McMilLan o. Escambia
County, 5 Cir.1982, 688 F.2d 960. AI-
though the Fifth Circuit's opinion was is-
sued after section 2 was amended, the
Court declined to reconsider the case under
the statute because further delay in county
elections would cause great hardship and
because a decision of the issues raised un-
der section 2 would not affect the outcome
of the case, for the plaintiffs were entitled
lo relief on their Fourteenth Amendment
elaim. 688 F.2d at 961 n. 2.

Notwithstanding the Fifth Circuit's ex-
planation for its refusal to decide the plain-

tiffs' section 2 claim, the Supreme Court
vacat.ed the judgment and remanded on the
premise that "the Court will not decide a

constitutional question if there is some oth-
er ground upon which to dispose of the
case." Escam.bia, 

- 
U.S. at 

-, 
104

S.Ct. at 15?9, 80 L.Ed.2d at 39. We hold
Lhal Escambia dictates that the plaintiffs'
section 2 claim should have been adjudicat-
ed first. A finding of liabilitv under sec-

tion 2 would obviate the necessity to decide

the plaintiffs' Fourteenth and Fifteenth
Amendment claims.T The defendanLs urge
us to decidc. the plaintiffs' section 2 claim
based on the record be'fore us. The plain-

tiffs insist that we should remand the case

for an evidentiary hearing under section 2.

bccausc thc,v thought the prevailing constitu-
tional standard, undcr which proof of dis-
criminatorv purposc was nol required, and
thc scction 2 standard u'ere lhc samc. The
courls may also havc prcfcrrcd to rell'on thc
mor!' dc\,('lopcd casc las discussing thc prop-
cr constitutiorlal standard as the safcst basis
for thcir dc'cisions.

ld. ar 72?-28.

6. Sec id. al 747-.50.

7. IUorcovcr', if thc plaintiffs cannol prevail un-
dtr thc gtncrallv tnore casill provcd "results"
sllrnij:.rrd of scction 2, it is unlikel)' that thc]'
(()llld pr'!\'ail on lhcir constilutional claims in

We
c88€

cour
the

III.

w
decii
Con,
Mar,
sulL.
ana
Iawf
nato
lish
whet
part
1565

be dr

tive
lined
485 l
sub
Boar
S.Ct.
inclu
votin
ing e

electi
cienc
litica
racia
cies r

cess
ing fr

distri
singL
of pr,
from
See )
facto.
of tl
156F

t. "v
to ig
cons
nori
beca
458
L.Ec

i

^rdlLd



I

\ -,", -- ._.

counry s$.{NcH oF NAACpi. cnv o, orr"r*o ,Lp
Clre r.7at F2d taZJ (19t4) 

!
IVe turn noy to the qhestion whether this tBI 

'The 
defendants insist that a remand

ease should be, remanded to thd distriet is not necessary to dei:ide the plaintiffs,
eourt for further proeeedings
the plaintiffs' section 2 claim.

concerning section 2 claim. They note that, although
the legal theory of the plaintiffs' case has
ehanged.from "intent" to "results", the
Zimmer factors are relevant under both
theories. Because the case was tried under
the intent standard articulated in Neaett a.
Sides, which looks to the Zimmer factors,
the defendants conclude that the necessary
evidence for a ruling under the results
standard is before this Court. They urge
that the district court correctly concluded,
on the basis of that evidence, that no sec-
tion 2 violation occurred.

We reject the defendants' arguments for
several reasons. First, this Court empha-
sized in Ma.ren.go that "the Zimmer factors
serve a different purpose in litigation un-
der section 2 from their purpose in consti-
tutional litigation." Marengo,73l F.2d at
1566. Some factors weigh more heavily
under the results standard, while others
weigh more hear.ily under the intent stan-
dard. In particular, we noted in Marengo
that a showing of racially polarized voting
"will ordinarily be the keystone of a dilu-
tion case" under section 2.8 Id. By con-
trast, although the responsiveness of elect-
ed officials to minority needs is an impor-
tant factor under the intent test, it "is
considerably less important under the re-
sults test." e Unresponsiveness is relevant
under the results test only if the plaintiffs
choose to make it so. Id. Moreover, Con-
gress relegated another factor that is pri-
mary under the intent standard-tenuous-
ness of state policies underlying an at-large
scheme-to secondary importance under
the results standard. Jones r. City of Lub-
bocA', 5 Cir.1984, 727 F.zd 364, 384. It is
therefore not enough for the defendants
simply io note that the Zimmer faetors
constitute relevant evidence under both the
intent and the results standard, because

9. "[U]nrcsponsiveness is of limited importancc
undcr section 2 for lu,o reasons. First, seclion
2 protects the acccss of minorilics not simply to
thc fruits of govcrnmcnt but to participution in
th!- proccss itsclf. . . . Sccond, rcspousirIncss is
a highl.v subjcctivc maucr, and this suirlr._.iir,itr.
i. at odds rritlr tht,cnrpl[rs;: r,{ rr.: ^,,,,
objrctrrc factors." Marengo. 7-j; i .-], ., r i;:.

IJEE

III. SHOULD THIS CASE BE REMAND.
ED FOR FURTHER PROCEEDINGS
ON THE SECTION 2 CLAIM?

While this case was on appeal, this Court
decided United States u. Marengo County
Commbsion, 11 Cir.1984, 73i F.2d 1546.
Marengo explains in detail how the "re-
sults" test of section 2 is to be applied to
an allegation that an atJarge system un-
lawfully dilutes minority votes. Discrimi-
natory intent need not be shown to estab-
lish a violation. Section 2 focuses "on
whether minorities have an equal right to
participate in the political process." .Id. at
1565. A denial of equal partieipation may
be demonstrated by proof of various objec-
tive factors, manv of which are those out-
lined in Zimmer a. McKeithere, 5 Cir.19?8,
485 F.2d 1297 (en banc), affd per curiam
sub nom. East Carroll Parish School
Board a. Marshall, 1976, 424 U.S. 636, 96
S.Ct. 1083, 47 L.Ed.2d 296. These factors
include the existence of racially polarized
voting; past discrimination and its linger-
ing effects; access to the slating process;
election practices that exacerbate the defi-
ciencies in minority participation in the po-
litical process; elections characterized by
racial appeals; tenuousness of state poli-
cies underlying the at-large elections; suc-
cess of minority candidates; and "enhanc-
ing factors" such as the existence of large
districls, majority vote requirements, anti-
single shot voting provisions and the lack
of provision for at-large candidates running
from partieular geographie subdistricts.
See Marengo, 731 F.2d at 156(i-?3. The
factors are to be weighed under a "totality
of the circumstances" approach. Id. at
156ffi6.

E. "Voting along racial lines allos,s those elecrcd
to ignore black interests u'ithout fear of political
consequcnces, and u'itl.rout bkrc voting thc mi-
noritv candidatcs rt'ould nol losc eleclions solelr
becaust of thcir rlr((." R,/A(rr t.. Lodgr lonl,
458 U.S. 613, 623, 102 S.Cr. 3272, 3279, 73
L.Ed.2d 1012, t0tl.



1480 , 748 FEDERAL REPORTER, 2d SERIES
I

the weighing of those factors is- different
under the two standards.

Second, we are unable to tell from the
district court's opinion how the court
weighed the various factors to find that the
plaintiffs had not established a violation of
section 2. The district court in its original
opinion applied "the criteria expressed by
the Zimmer Court and the Supreme Court
in City of Mobile o. Bolden". Record at
306. The court concluded that the plain-
tiffs had "not proved by a preponderance
of the evidence the existence of an aggre-
gate of the factors which the Zimmer
Court said would make out 'a strong
case"' and had "failed to prove by a pre-
ponderance of the evidence that the disput-
ed plan was conceived or operated as a
purposeful device to further racial discrimi-
nation". /d. at 308-09. In part because
the court's opinion made no mention of
section 2, the plaintiffs filed a motion to
alter or amend the judgment, or for a neu'
trial, asserting that their right to relief was
particularly evident under the amended sec-
tion 2. The court denied the plaintiffs'
motion in a short three-paragraph opinion
that gave no detailed findings of fact or
conclusions of law. The court stated.

In the interest of avoiding further liti-
gation, this Court has reviewed this case
in the light fof Rogers u. Lodge and the
amended section 2] and is of the opinion
that . .. the preponderance of the evi-
dence showing facts alleged and proved
in this case do not indicate a violation of
42 U.S.C. S 1973 as last aniended or of
theConstitution....

Record at 322.

The court's second opinion does not artic-
ulate the basis for its consideration of the

lO. ln Kirkscy v. City ol Jackson,5 Cir.1983, 714
F.2d 42, lhe Court found thar the amendments
lo section 2 changed the larv enougl.r that a
dismissal of the plaintiffs' claim undcr thc old
section 2 was not a bar under thc doclrine of rc.s

iudicata to a new action under the arnendcd
section 2.

ll. The plaintiffs estimate thal 80 pcrcent of
their time spent in developing and trving lhis
case originallv was devoled to the issuc of rc-
sponsiveness.

variorls factors that led it to find no viota-
tion of section 2. We have only the court's
explanation for its ruling under the intent
standard. But the Zimrner factors carry
different weights under the results test
than they do under the intent test.r{} We
are therefore unable to review, on the
record before us, the district court's inter-
pretation or application of the new legal
standard embodied in section 2. Nor does
the court's second opinion satisfy the re-
quirements of Fed.R.Civ .P. 52(a), which re-
quires the court to "find the facts specially
and state separately its conclusions of law
thereon" in all actions tried upon the facts
without a jury. "When, because of ab-
sence of findings of fact or conclusions of
law, an appellate court cannot determine
u'hether the record supports the trial court
decision, it should remand the aetion for
entry of findings of faet and conclusions of
law." Complaint of lthaca Corp., 5 Cir.
1978, 582 F.2d 3, 4.

Finally, the evidence compiled in this
record is now at least six years old and
does not necessarily reflect current condi-
tions. Moreover, because the record was
not compiled under the results standard of
section 2, it is incomplete on certain impor-
tant issues, especiall}, the "keystone" issue
of racially polarized voting. The evidence
in the case focused on two Zimmer faetors
of special relevance in proving voting dilu-
tion under the intent standard-whether
the plaintiffs had equal access to the politi-
cal process and whether government offi-
cials were responsive to the interests of the
plaintiff minority.Ir Thus, neither the
plaintiffs nor the defendants have had an
adequate opportunity to develop a record
with the results standard in mind. Fair-
ness dictates that the case be remanded.r2

12. Judge Goldbcrg, specially concurring in a
dccision to remand a case for reconsideration in
the light of Mobile, observed thar . .

duc process ar.td prccedcnt n.randatc that
u,hcn thc rules of Ihc gamc are changed, the
plal,ers must be afforded a full and fair op-
portunitl to plal' b1, thc new regulalions.
Thercforc, thc litigants in lhis action musl be,
allorvcd, if rhet' so dcsirt, ro prescnl furthcr
cvidencc on rentand lo c,slablish lh..ir claims
undc-r thc larl annourrccd in l,llthilt,).

Jottc.s t'. Cirl,ol Lttbbocl, 5 Cir.loSl, 6J(r I.l(i
777,777-78 (Goldbr'rg, J., spciil'lir (()n(ur'r ni 'l

Moreovr
Suprem,
1983, 4r

L.Ed.2d
5 Cir.l9
eonstitu
and Rog
sideratir
ing Rig

IV. T}]
TAI
TIO

The p

district
supplem
events, 1

establisl
cline to
instruct
presente
factors <

of a sec

the "ke1
voting, t
strong"
elections
though ,

election.
plaintiffs
direct st
turns. I
of racial
the Mar
mary co

from the
ous doul
would at
sehools.
"strong
continues
County."

t4t B.
the plainr
voting is
county k
tered vot

13. The I
tion o{ t
graphic
distrr.s
ItL:, , o'



t.

-
LEE COUNTY. BRANCH OF NAACP v' CITY

Clte rs 74t F2d t{73 (t9t4)'
OF'OPELIKA

n

1481

Moreover, a remand is eonsistent with the

Supreme Court's action in Cross a' Ba'xter,

1983, 460 u.s. 1065, 103 s.ct' 1515, ?5

L.Ed.zd 942 (mem.), aacating 688 F'2d 2?9,

5 Cir.1982, whieh vacated a finding of un-

constitutional vote dilution under Mobile

and Rogers and remanded "for further con-

sideration in light of Section 2 of the Vot-

ing Rights Act ... as amended in 1982"'

Iv. THE PLAINTIFFS HAVE NOT ES'

TABLISHED A SECTION 2 VIOLA-

TION ON THE PRESENT RECORD

The plaintiffs urge us to instruct the

district court, in remanding the case to

supplement the record conceruing post-trial

"rlrt", 
that a section 2 violation has been

established on the present record' We de-

cline to do so. Although this Court did so

instruct in the Marengo case, that case

presented much stronger proof of several

iactors of special importance to a showing

of a section 2 violation. With respect to

the "keystone" issue of racially polarized

voting, the district court found "extremely

strong" evidence of polarized voting in

elections before 19?8, and continuing,

though reduced, polarization in the 197E

election. Marertgo, ?31 F.zd at 1567' The

plaintiffs had proved polarization through

direct statistical analysis of the vote re-

turns. ln addition, u'e noted that evidence

of racial polarization could be gleaned from

the Marengo County school board's pri-

mary concern u'ith piacating whites and

from the district court's expression of seri-

ous doubts that Marengo County whites

would attend desegregated black majority

schools. Such attitudes. we noted, were

"strong circumstantial evidence Lhat race

continues to dominate politics in Marengo

County." /d. at 156? n' 35'

t41 By contrast, in the record before us

the plaintiffs' evidence of racially polarized

voting is weak. Neither the city nor the

"orn{v 
kept racial tlata cotrcerning regis-

tered voters. and the plaintiff-r introduced

13. Thc plaintiff: c:l;rr';'lt'tl thc r:rcial cotlrposi'

tion of ilrL rltirt. , ll errtllpiirlng tht- gco-

graphrc bourld'r'| r' ':r'( i(il't)\ cllull)clall('n
iiriri.,, rrirl lli, , , "'r'i hoirttCartcs ol ()pc

lika's vul i tlr l" t .

no direct evidence of the ratial composition

of the Opelika electorate. The plaintiffs
relied instead on estimat€s and circumstan-

tial evidence that the rate of voter registra-

tion among'blacks was lower than that
among *hites. More importantly, the

olaintiffs offered no direct evidence of the

specific racial composition of the various

voting boxes in the city.r3 This informa-

tion is critical to a bloc voting analysis'

t51 The plaintiffs have presented in
their brief for this appeal a statistical cal-

culation known as an R 2 coefficient, which

they maintain is evidence of racially polar-

ized voting. This coeffieient correlates the
percentage of a particular racial group reg-

istered in a given precinct with the percent-

age of the precinct vote for the candidates

of thrt racial group. This Court has ac-

knowledged that the R 2 coefficient is rele-

vant to ih. ittu. of racial bloc voting See

NAACP u. Gadsden CountY School

Board., 11 Cir.1982, 691 F'zd 9?8, 982-83;

McMillart u. Escambia County,5 Cir'1981'

638 F.zd 1239, 1247 n. 6 (former Fifth
Circuit). The plaintiffs, however, did not

present this calculation at trial, and, absent

extraordinary circumstances, federal appel-

late courts will not consider evidence that

was not part of the trial record' Inlerna-
tional Business Mochines u. Edelstein, 2

Cir.19?5, 526 F.2d 37, 45. Moreover, the

defendants have not had a fair opportunity
to confront this evidence.

t6l Because it appears likel-v that the

parties will want to develop evidet.rce- con-

cerning the R ? coefficient on remand, we

offer the following observations on the use

of this evidence. First, in the two cases

cited that made use of this evidence, the

evidence rvas introduced through an expert'

See Gatlsden, 691 F.2d at 983; Escatnbia,

638 F.2d at 1241 n. 6. Moreover, the pre-

cise racial lireakdown of registered voters

$'as apparently lirown in both cases' See

id. The R 2 coefficients were therefore

based on precise and detailed factual data

concerning the racial composition of regis-

tered voters and election outcomes'rr The

14. ln Escan$ia, for examplc, the complctc

record o[ citv atld counl] elcctiol.rs since l9-55

uas brtlught beforc the court' Rcgressior.r sta-

tistics u'ci ;rerfornlcd in all prccincts and thosc

stalistics u'erc anall'z-ed by political scicntisls'

-r&



plaintiffs in this case have net established tailce of multiple factors. Such anilysis
on the present record a comparable factual can assist in the determination of whether

database upon which to found their statisti- rsce is the dominating factor in political

cal analysis. outcomes

1482 '

Second, we caution against placing too

much rcliance solely on the R 2 coefficients
in mling on the issue of racially polarized

voting. We agree with the cautionary re-

marks of Judge Higginbotham:
Care must be taken in the factual devel-

opment of the existence of polarized vot-
ing because whether polarized voting is
present can pivot the legality of at-large
voting districts. The inquiry is whether
raee or ethnicity was such a determinant
of voting preference in the rejection of
black or brown candidates by a white
majority that the atJarge district, with
its eomponents, denied minority voters
effective voting opportunity. In answer-
ing the inquiry, there is a risk that a

seemingly polarized voting pattern in

fact is only the presenee of mathematieal
correspondence of race to loss inevitable
in such defeats of minority candidates.

Jones o. City of Lubbock,5 Cir.1984, ?30

F.2d 233, 234 (Higginbotham, J., specially

concurring).t5 It will often be necessary to
examine factors other than race that may

also correlate highly with eleetion out-

comes--{ampaign expenditure, party iden-

tification, income, media advertising, reli
gion, name recognition, position on key is-

sues, and so forth. Wellcstablished statis-
tical methods, such as stepwise multiple
regressions, can test the relative impor-

The court found a very high correlation in both
city and countl'elections between the percent-
agi of blacks in a precinct and thc number of
uotes a black candidate received in that pre-

cinct. Escambia, 638 F.2d at l24l n. 6. In
Gadsden, the R 2 coefficients illustrated "a high'
er degree of racial polarization in Gadsden
County than the district court found sufficient
in Escambia". Gadsden,69l F.2d at 983.

15. Judge Higginbotham addcd:
The point is that therc will almost always be a

raw correlation with race in anv failing candi-
'dacy of a minoritv whosc racial or cthtric
group is [a] small percentage of lht tolsl
voting population.... Yet, rau' c()rrespoll-
dence, even at high Ievels, nlusl ac( ('lllrrl(i(l'rl(
the legal principle that tht' anrcrrritrl \ r'lt:.tg
Rights Act does not legislatc pl'()p.,rl j()!).rl ! cP

748 FEDERAL REPORTER, 2d SERIEq
'L

,rt,

8n

tlt"
dis

F.:
si)

tri,
lisl
Fo
Arr

Ri;
cei

an,

I
jec

Su
Cir

\
pr(
of
jud

In addition to a much stronger showing
of racially polarized voting than the record
in this ease presents, the plaintiffs in Mar'
engo also presented more evidence than
wzrs present€d here of election praetices

exacerbating the deficiencies in black par-

ticipation. There was evidence in Marengo
that appointments of poll officials were ra-
cially motivated and tended toward tpken-
ism. The plaintiffs also showed that the

County Board of Registrars was open only
two days a month except in election years,

and that, contrary to state law, the Board
met only in the county seat and failed to
visit outlying areas to register rural voters,
who were more black than white. Maren'
go, 731 F.2d at 1569-70. ln Opelika, the

registrar's office is open every day of the

week. One of the plaintiffs is a voting
official and another has assisted voting of-
ficials in registering voLers of both races.

This record therefore presents a much

weaker showing on two significant fac-

tors-racially polarized voting and election
practices-than did the record in Marengo.
We therefore decline to instruct the district
court that the plaintiffs have established a

section 2 violation on the present record.

V. CONCLUSION

We conclude, as in Marengo, that this
case must be remanded to the district court

resentalion. More complex regression studv
or multi-variate mathematical inquiry will of-

ten be essential to gauge thc explanatory pou'
er of the variables necessarill presenl in a

political race. Nor will math models alu'avs
furnish an ansu'er. A heahhy dose of com-
mon scns€ and intuitive assessmcnt remain
powerful components to the critical factual
inquiry. For example, a tokefi candidacy of a

minority unknown outsidc his minority vot-
ing area may altract little non-minority sup-
port and produce a high stalistical correspon-
dcnce o[ race to loss. Yet, onc on the scene
mat' knou' thal race playcd littlc role at all.
ln sum, dctailcd findings arc required to sup-

porl an\ coltclttsiotls of polarizcd voling.
7.10 i:.lcl al 13..1 (Iligginbothan.r, J., spccial!r'
concuffl)l! i.

col

rel
cu
opl

thr
pol

J

rin

I



"to allow'the parties to updatefhe reeord
and to supplefirent the record with evidence
that might tend to affect [a] finding of
discriminatory results." Marengo, 731

F.2d at 15?4. This case is now more than
six years old. We do not intend that a
complete retrial of every issue be had on
remand. We suggest that the parties fo-
cus on those factors, referred to in this
opinion, that in Marengo were central to
the section 2 analysis, particularly racially
polarized voting.

We VACATE the judgment of the dis-
trict court that the plaintiffs did not estab-
lish a claim of voting dilution under the
Fourteenth Amendment, the Fifteenth
Amendment, and section 2 of the Voting
Rights Act. We REMAND for further pro-
ceedings on the section 2 claim in accord-
ance with this opinion.

JAMES C. HILL, Circuit Judge, concur-
ring specially:

I concur.

I expressed my reservations on this sub-
ject, in dissent, in Kirksey t:. Board of
Superrisors, 554 F.2d 139, 159-163 (5th

Cir.l977).

While I do not unsay what I there said,
precedent binds me to coneur in the remand
of this case for more hearings, further
judgment, and a new appeal.

-
IN RE MARITIME COATINGS, iNC.

*' ClteuTlEF2d fllE9(t9&0)
1483

:

In re MARITIME COATINGS,
INC., Debtor.

The MERCHANTS NATIONAL BANK
OF MOBILE, Plaintiff-Appellant,

v.

Robert H. CHING, Trustee.
Defendant-Appellee.

No. 83-7569.

United States Court of Appeals,
Eleventh Circuit.

Dec. 17, 1984.

Following remands, 681 F.2d 1383 and
24 8.R.900, a bank, which had claimed a
security interest in the contract rights ac-

cruing to debtor under its contract with
shipbuilder and had commenced a suit
against shipbuilder in United States Dis-
trict Court for the Eastern District of Vir-
ginia, moved to amend its complaint in ad-
versar)' proceeding in debtor's bankruptcy
case in Alabama to determine which por-
tion of a settlement of the Virginia suit
entered into between trustee, who had in-
tervened as a third-party plaintiff in the
Virginia litigation on order of the Bank-
ruptcy Court, and shipbuilder was allocable
to bank's "rework" claim against shipbuild-
er. The United Stat€s District Court for
the Southern District of Alabama, Virgil
Pittman, J., affirmed denial by the Bank-
ruptcy Court of bank's motion to amend,
which denial was based on acceptance of
allocation of the settlement incorporated
into consent judgment entered in Virginia
litigation, and bank appealed. The Court
of Appeals, James C. Hill, Circuit Judge,
held that the consent judgment did not bind
bank to that portion of judgment allocating
portions of seltlemqnt paid by shipbuilder
to trustee to each of the several claims
asserted against shipbuilder in bank's Vir-
ginia action.

Reversed and remanded.