McMillan v. Escambia County Court Opinion

    -
McMILL.AN v. pSCAMBIA COUNTY, FLA.

' t CttesTt8FJd lGrZ (t9S4) '
l7l This scenado, at the least, is not ln missioners. The United States District

keeping with the remedial purposes of the Court for the Northern Distriet of Florida,
disability provisions of the Social Security Winston E. Arnow, J., found apportionment
Act and may in future cases expose the system unconstjtutional, and the Court of
Secretary to liability for costs, attorneys' Appeals reversed at 6Bg F.zd I2Bg. After
fees, and other expenses under the Equal vacating that portion of opinion at 688 F.2d
Access to Justice Act. See 28 u.s.c. 1249, the Court of Appeals, 6gg F.2d 960,
5 2412; 5 U.S.C. S 504; Contella 1). affirmed and remanded. Following vaca-
Schweiker, 7U3 F.zd 978 (8th Cir.1984). tion and remand, 104 S.Ct. 1527, the Court
We do not consider that issue here because of Appeals, Kravitch, Circuit Judge, held
it was not raised by the appellant. that record showed violation of results test

For the foregoing reasons, we reverse which was adopted by Congress in Voting
and remand to the district court for entry Rights Act section proscribing denial or
of an order directing the Secretary to grant abridgment of right to vote on aecount of
Martin's application for disability benefits. race or color.

REVERSED and REMANDED. Affirmed.

L Federal Courts o>545

Defendant former county commission-
ers were not automatically dismissed from
case as appellants when they left office and
where jurisdictional statement did not limit
them to participation in appeal in their "of-
ficial capacity."

2. Federal Courts e858
Record in action challenging atJarge

system for electing county commissioners
supported factual finding that discriminato-
ry system had been maintained to prevent
black candidates from obtaining majority
of votes.

3. Elections el2(3)
Although no factor is indispensable,

racially polarized voting will ordinarily be
keystone of voting dilution case. Voting
Rights Act of 1965, S 2, as amended, 42
u.s.c.A. s 1973.

4. Counties @38
Voting in county was polarized where

R2 coefficient, reflectingpercentage of var-
iation in vote attributable to race of regis-
tered voters, ranged from .85 to .98.

5. Elections ct2(l)
Prior discrimination is relevant under

Voting Rights Act seetion proscribing deni-
al or alirirl::r,i)t of right to vote on ac-

Larr 96{il- , ,5rr 14, 1980.

1037

Henry T. McMILLAN, et al.,
Plaintiffs.Appellees,

v.

ESCAMBIA COUNTY, FLORIDA, et al.,
Defendants-Appellants.

Elmer JENKINS, et al., Plaintiffs,

CITY OF PENSACOLA, et
al., Defendants.

Henry T. McMILLAN, et al.,
Plaintiffs-Appellees,

v.

ESCAMBIA COUNTY, FLORIDA, et at.,
Defendants-Appellants.

Nos. 78-3507, 80-5011.

United States Court of Appeals,
Fifth Circuit.'

Dec. 19, 1984.

Class action was brought .t 
"tt"ngingat-large svstem for electing count.y cont-

* Formcr Fifth Circuit casr, Scction 9(l) of public
:.*
I .*

L. _



1038

count of race or color. 
-Voting 

Rights Acl
of 1965, 5 2, as amended, 42 U.S.C.A.
5 1973.

6. Elections @12(9)
Discrimination against minorities out-

side electoral system cannot be ignored in
assessing such system; where there is
clear evidence of present socioeconomic or
political disadvantage resulting from past
discrimination, burden is on defendants to
show that reduced political participation is
result of something besides such discrimi-
naiion. Voting Rights Act of 1965, S 2, as

amended, 42 U.S.C.A. S 1973.

7. Counties o=38

ln action ehallenging at-large system
for electing iounty commissioners, exist-
ence of system whereby majority vote was
required during primary weighed in favor
of finding of dilution.

8. Counties F38
Tenuous explanation for at-large elec-

tions was circumstantial evidence that at-
large system for electing county commis-
sioners was motivated by discriminatory
purposes and had discriminatory result.
Voting Rights Act of 1965, S 2, as amend-
ed, 42 U.S.C.A. S 1973.

9. Elections el2(l)
Absence of individual factors is not

conclusive under "totality of the circum-
stances" test under Voting Rights Aet sec-

tion proscribing denial or abridgment of
right to vote on a account of race or eolor.
Voting Rights Act of 1965, S 2, as amend-
ed, 42 U.S.C.A. 5 1973.

I0. Counties e38
Preponderance of evidenee showed

that at-large system for election of county
commissioners effectively diluted votes of
black citizens. Voting Rights Act of 1965,

S 2, as amended, 42 U.S.C.A. S l9?3.

ll. Counties c-38
Showing that at-large systenr for elec'

tion of county commissioners uas mirirr-

tained for discriminatory purpos(, u'as suil
ficient to constitute violation of Yt,tiiii

748 FMERAL REPORTER, 2d SERIES

Rights Aet section proscribing denial or
abridgment of right to vote on account of
race or color. Voting Rights Act of lg65.
5 2, as amended, 42 U.S.C.A. S l9?3.

12. Elections cal2(l)
Results test of Voting Rights Aet see_

tion proscribing denial or abridgment of
right to vote on account of race or color
was intended to be less stringent standard
than that required to find violation of Four-
teenth Amendment. Voting Rights Act of
1965, S 2, as amended, 42 U.S.C.A. S lgTB;
U.S.C.A. Const.Amend. 14.

13. Elections @12(l)
Congress intended that fulfilling either

more restrictive intent test or results test
would be sufficient to show violation of
Voting Rights Act seetion proscribing deni-
al or abridgment of right to vote on ae-

count of race or color. Voting Rights Aet
of 1965, S 2, as amended, 42 U.S.C.A.
5 1973.

Richard I. Lott, County Atty., Patricia D.
Wheeler, Paula G. Drummond, Richard P.
Warfield, D.L. Middlebrooks, B. Dawn Wig.
gins, Thomas R. Santurri, Pensacola, Fla.,
for Escambia C,ounty.

Ray, Patterson & Kievit, P.A., Pensacola,
Fla., Rhyne & Rhyne, William S. Rhyne,
Charles S. Rhyne, Donald A. Carr, Wash-
ington, D.C., for School Bd.

James U. Blacksher, l,arry T. Menefee,
Blacksher, Menefee & Stein, Mobile, Ala.,
Edward Still. Reeves & Still, Birmingham,
Ala., Kent Spriggs, Spr€gs & Henderson,
Tallahassee, Fla., Julius C. Chambers, Na-
poleon B. Williams, Legal Defense Fund,
Nelr' York Citl', for plaintiffs-appellees.

DonJ. Caton, Citr,Attl'., Pensacola, Fla.,
for Citl' of Pensacola.

AJ.rpeals fronr rl:r, Ilnited States Distrirt
(",i:ri 1'or [ht, \, r".l,r,r'r, I tistrict 1yf ]';,,' ;

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. . *...i$-b-



ucrrullAx v. dsctuuA couNTy, FLA.
Cltc u 7l{|F2d lO37 (19t4)

oN REMAND FR0M THE UNITED ment. McMillan a. Escambia county,
STATES SUPREME COURT Fla., 688 F.2d 960 (5th Cir.t982) (herein-

Before RUBIN and KRAVITCH, Circuit aftnr',Escambiq II,).3 Because of our de-

Judges, and PECK ", Senior Circuit sire not to further delay elections in Es-

Judge. cambia County, we did not reach plaintiffs'
assertions that the at-large system also

KRAVITCH, Circuit Judge: violated the fifteenth amendment and the

plaintirrs, black voters or Escambia ;';:rll'';f:y!j.rt:tf*r:t"l':J""#5
County, Florida, filed this class action in in 19g2. Id. at 96142 & n. Z. On appeal,
March 1977, challenging the at-large sys- the Supreme Court declined to review our
tem for eleeting Escambia County commis- fourteenth amendment holding because
sioners.r rhe district court held the sys- ,,[a]ffirmance of the statutory ground
tem was unconstitutional pursuant to the would moot the constitutional issue
fourteenth and fifteenth amendments and
tlrat it viorated section 2 or the voting il7il[0,*i!frn;i;:,":**u:!'i;;
Rights Act of 1965,42-U.q.C.. S 19?3,.as S.Ct. LE77, tS7B_79,80 L.Ed.2d 86 (1984).
amended in 1975. Defendants appealed The Court vacated the judgment of this
snd this court reversed^^!ryw^i!l!r:^y..ys.- eourt and ,,remand[ed] the case to [thecambia county, Fla, 638 F'Zd 1239 (sth court of Appealsl for consideration of theCir.1981) (hereinafter 

|_*:1To:: !"rl question wherher the Voring Rights ActPlaintiffs sought rehearing and this court
reserved ruling on tfr" p"iii*'p#;il; provides grounds for affirmance of the Dis-

supreme court,s d".i:;;'f i;;;;r"";. trict court's judgment." Id. r04 S.ct. at

l,odge, 45g u.s. 613, 102 S.Ct. 32?2, ?3 1579 (footnote omitted)'

L.Ed.zd 1012 (1982). Based on the Su- tll We now hold that section 2 of the
preme Court's opinion in Lodge, we vacated Voting Rights Act of 1965, 42 U.S.C.
our prior decision and held that the at-large s 19?3, as amended in 1982, does provide
system for eleeting Escambia County conr- grounds for affirmance of the district
missioners violated the fourteenth amend- court,s opinion.a

ri Honorable John W. Peck, U.S. Circuir Judge for
the Sixth Circuit, sitting b1'designarion.

t. Originalll'the suit challenged the at-largc elcc-
tion procedures of both thc- Escambia Countl,
Commission and the Escambia Countl, School
Board. This suit v,as consolidated u,ith anorher
class action that challenged the ar-large election
procedures of the Pensacola Cirl,Council. The
district court held against the Escambia School
Board and the Pensacola Citl Council and this
coun affirmed as to those t\r'o svstcnts. ircMil,
lan v. Escambia County, Fta., 638 F.2d l23S (5rh
Cir.l98l), (appeal on merits); McMillan y. Es.
cambia Counry, Fla., 638 F.2d 12q9 (-5th Cir.
l98l) (appeal on remedy); Jenkins v. Pensacola,
638 F.2d 1249 (sth Cir.l98l) (appcal on rcmc-
dy). Ncither the school board nor thc city
council sought rehearing. Instead, pursuant to
the request of those parties, mandates wcre is-
sued-

2. This court's original opinion u'as based on the
standard for proving discriminatorl purposc an.
norrnced b1' thc Supremc Court in Mobilc y
Boldetr, 446 U.S. 55, 100 S.Cr. t490, 64 L.Ed.2d

t i9ti0). \\'e inrerpreted Bolden as holding
. thc criteria announced in Zimmer v.

banc), af/'d on other grounds, sub nont. Ea.st
Carroll Parbh School Board y Marshall, 424
U.S. 636, 96 S.Cr. 1083, 47 L.Ed.2d 296 (1975),
arc insufficicnt, standing alone, to support a
finding of discriminatorv purpose. See McMil-
lan v. Escambia County, Fla., (t8B F.2d 960,
963-64 (5th Cir.l982).

3, ln Lodge, the Supreme Court substantiallv
clarificd the constitutional standard gorerning
voteiilution claims. Although l,odge reaf .
firmed the holding of Bolden thar evidcnct of
purposeful discrimination is required to sustain
an equal protcction challcnge to an cleclion
svstem, it rcflccled a more favorablc vieu' of the
Zimmer factors and a greeter defcrence to the
findings of thc district courl than did thc analy-
sis of the Bolden plurality. Escambia Il, 688
F.2d ar 96rt-6.5.

4. The original complaint in this casc listed as
dcfendants Escambia Countl. and rhc membcrs
of thc Board of Countv Commissioners, individ-
ualll and in thcir official capacirics. During thc
course of the litigation threc of thc commission.
ers were rcplaccd b1, gubernatorial appoint-
ments. In 1983, all fivc incurrbcnl cornmission.
ers ran for election or rtr-lcction pursuant to lhc

-:4



-

748 FEDFTFAL REPORTER, 2d SERIOSr040

I. BACKGROUNDs

The five members of the Escambia Coun-
ty goveraing body, the Board of County
Commissioners, are elected for staggered
four-year terms in accordance with an at-
large voting system. Under this system
candidates run for numbered plaees corre-
sponding to the districts in which they live,
but each must be elected by the voters of
the entire county. There is no majority-
vote requirement for the general election,
although candidates must obtain a majority
of the votes cast in the party primaries to
win party nomination.

As of the date of trial, four blacks had
run for the county commission, none of
whom had been elected. Plaintiffs brought
this action elaiming that the county's at-
large election system unconstitutionally di-
lutes their votes.

The district court found that blacks com-
prise seventeen percent of the registered
voters of Escambia County and that in

trict courl. Four of the incumbents were de-
feated. The new commissioners took office on
November 15, 1983. On December l, 1983 rhe
Commission voted 3-2 to direct the Commis-
sion's attorneys lo substitute the new commis-
sioners inlo the litigation and to file motions to
withdrau, from the case. On January 5, 19g4,
the Commission voted 3-2 to adopt an election
plan which, in relevant aspects, is idenrical to
the courl-ordered plan.

This course of events raised numerous ques-
tions as to who had standing to pursue this
appeal and whether the appeal is now moot.
We find, however, thar the plain words of the
Supreme Court's opinion, Escambia County, Fla,
v. McMillan, 

- 
u.s. _, to4 s.cl. 1577, 80

L.Ed.2d 36 (1984), are conrrolling.
In note I the Courr stated thar "[o]n11.former

and prescnt individual members of the Board
are now'before the Court as appcllants." /d.
The Court elaborated in note 4:

Aside from the two presenl commissioners
who disscnted from [the Board's votc to dis.
miss the appeall . .. several former commis,
sioners, who lost their seats in thc subsequcnt
court-ordered election, remain before the
Court. Contrary to appellees'contenlion, the
former commissioners were not automalicallv
dismissed as appcllarrts u,hen thcr lefr otf icti,
and thc Jurisdictional Statcnrcnl did nor Iinrir
thcm to parricipation in the appeal in rhcir
"off icral capacirr,." Juris. Statemenr L

/a'. I (t..1 S.Cr. at l -578. Thus, thc c()unl\ gr4
(()unl\ is no l6ng". a parly lo this litigatiolr.
nlrtr,.:lh.:anding thc fact that thc c()unt.\ \\..-

ilections in whieh black candidates had run
for the County Commission there had beei
a consistent pattern of racially polarized
voting. The eourt found that the at-larce
system, coupled with the above facloi
prevented black candidates from obtaininc
a majority of the votes in the County Coml
mission elections. Having concluded that
the at-large system had such discriminato
ry effect, the distriet court eonsidersd
whether its purpose was discriminatorv.
Although the court found that the at-large
system had not been enacted for a discrimi-
natory purpose, it eoncluded that the
scheme had been maintained for sueh a
purpose. In finding intentional discrimina-
tion, the eourt relied on a variety of fae_
tors, including the adverse effeets of past
discrimination by the state and county
governments on blacks' exercise of their
suffrage rights and participation in the po_

Iitical system, the depressed socioeconomie
status of blaeks in the county, the tenuous-

awarded costs in the Supreme Court for its
prior involvement in this litigation.

The Supreme Court also determined that this
case was nol moot, slating:

Appellees have not suggested thar the apneal
is moor as ro rhe issues of liabilir-r. oi ihar
appellants have no live interest in the contrc
vers)'.

Appellees do contend that the issue of ap-
propriatc remedy is moot, a conlenlion that
we need not reach in lighr of our disposition
of the case.

1d. Likeu'ise, this coun is only concerned with
liability and does nol reach the qucsrion of
remedy which is being appealed separatel), and
is still pending in this court, No. 83-3275.

Appellants also claim that appellees should tr
"stayed from litigating this case" until thcl,pa-y
the judgment for costs aw,arded against rhem bi.
thc Suprcmc Court. This arg:umenl is not sup
portcd b1'the precedent put forth in appellanis'
bricf. Moreover, appellants are thc moving par.
t1'; appellees cannot be barred from submitting
responsivc briefs. In addition. staving the liti.
galion would onll preserve t6e status quo, a
situation favorcd by rhe appellees not thc appel.
lanls.

.uLlr 
,n"r" reasons, wc reach the merits of this

5. l'h. full backgrotrnd of this casc is set out in
llris courl's l\r'(, vacalr-d opinions, Escambia l,
i-,' l.:d 12.39. and Esc-antbia Il, 688 F.2d 9fi.
ir. . rrt rtrcrclY rcpcal an abbreviated version, ' ;,i b;rckgr<,und. \4'c do, horvevcr, eipff;m
. rl,, fartrr:,i findrngs in Escamhra ll

ness
syst!
systs
fect.6

12)
that
Porte,
Escat
make
spply
court
Rightr

II. A

Inl
the Vo
read al

(at

site

Proc'
any
manr
abrici
the I
race
guan
1973i,
subse

(b)
estabi
circuri
cal pr
electic
sion ar

by me;
edbyr
its me
other r

6. In ad,
Zimmer
the Coir:
voters ;
change t
gle-mem,
that the
for a dis

7. Prior i

S 1973 sr

Nor
voting,
shall b,
pol. r,..r
rlla ()



a

MCMILLA}f V. ESCAMBIA COUNTY,'FLA.
' Clte er TtlE F2d lo:t7 (19&{)

a

t04l

and to
choice.

ness of the state policy b6hind the at-large

system, and other features of the election

system that enhanced its discriminatory ef-

fect.6

tz'l In our prior decision, we determined

tlrat the evidenee in the record fully sup
ported the district court's factual findings.

Escambia //, 688 F.2d at 969. We again

make this finding. Our task, then, is to
apply the factual findings of the district
court to the recently amended Voting
Rights Act.

II. APPLICATION OF SECTION 2

In 1982, Congress amended section 2 of
the Voting Rights Act,42 U.S.C. S 1973, to

read as follows:
(a) No voting qualification or prerequi-

site to voting or standard, practice, or
procedure shall be imposed or applied by
any State or political subdivision in a

manner which results in a denial or
abridgment of the right of any citizen of
the United States to vote on account of
race or color, or in contravention of the
guarantees set forth in section
1973b(f)(2) of this title, as provided in
subsection (b) of this section.

(b) A violation of (a) of this section is
established if, based on the totality of the
circumstances, it is shown that the politi-
cal processes leading to nomination or
election in the State or political subdivi-
sion are not equally open to participation
by members of a class of citizens protect-
ed by subsection (a) of this section in that
its members have less opportunity than
other members of the electorate to par-

6. In addition to the above circumstantial or
Zimmer evidence, the district court found that
the County Commissioners'refusal to submit to
voters a proposed referendum that would
change the election system from atlarge to sin-
gle-member districts further supported a finding
that the at-large system was being maintained
for a discriminatory purpose.

7. Prior to the 1982 amendment, 42 U.S.C.

$ 1973 stated:
No voting qualification or prerequisitc to

voting, or standard, praclice, or proccdure
shall be imposed or applied by anl,Statc or
political subdivision to deny or abridgc thc
right of any citizen of the tlnited States tt'

ticipate in the political process
elect representatives of their
The extent to which members of a pr.o.

tected elass havebeen elected to office in
the State or political subdivision is one
circumstance which may be considered:
Prouided, That nothing in this section
establishes a right to have members of a
prot€cted class eleeted in numbers equal
to their proportion in the population.T

This is not a case of first impression. In
both United States a. Dallas County Com-
mission, ?39 F.zd 1529 (1lth Cir.1984), and
United States a. Marengo County Com-
m'ission,731 F.zd 1546 (1lth Cir.1984), ap-
peal dismissed, cert. denied, 

- 
U.S. 

-,105 S.Ct. 375, 83 L.Ed.zd 311 (1984), the
Eleventh Circuit has applied the amended
section 2 to claims of voter dilution as a
result of at-large election systems. Thus,
many of the preliminary issues in this case
have already been resolved. We have held
that section 2 is eonstitutional under Con-
gress' enforcement power under the four-
teenth and fifteenth amendments, Marengo
731 F.zd at 155&43;8 that section 2 applies
to voter dilution cases, id. at 1555-56; and
that the amended version of section 2 ap
plies to cases, such as this, commenced
prior to passage of the amendment. /d. at
1553-55; see also Dallas,739 F.2d at 1534.

The Marengo court fully delineated the
standard for assessing alleged violations
under the amended section 2. The court
stated: "Congress wished to eliminate any
intent requirement from section 2, and
therefore changed the terms of 5 2(a), 42

U.S.C.A. S 1973(a) (West Supp.) (1983), to

vote on accounl of race or color, or in conlra-
vention of the guarantees set forth in section
1973b(fx2) of this title.

E. Although defendants allep that.the present
case is distinguishable on its facts from Maren-
go in regard to the constitutionality of section 2,
defendants'discussion of this issue is not based
on factual distinctions between the two cases.
Rather, defendants claim that section 2 is un-
constitutional because it amends the Constitu-
tion bv eliminating the requircment of showing
a cl'siriminalorl purposc, thc same issue that
rva. dccided adversel,r to defendants in Maren-
A.

-a-.ll -.:Er.g



,i
?

748 FEDERALJREPORTER' 2d SERIES ,
1042

forbid any practice that .results lh, discrim. ela6orates on this list, charaeterizing

ination.,,/d.at1563.t,""*"na*entin.themas..typicalfactors.',Thesefactors
tended 

,,to restore th" ;;;i;dndard that are to be weighed under a "totality of

soverned voter discrimi'"Tio' decisions be- the circumstances approach'"

i"* ii" srrt"t"" c"til J"'eided Mobile tt' Id' at L56446 (footnotes omitted)'

iriai":' ia' ^t 
1550 (footnote omitted)'e The typical factors listed in the senate

Th" Mor"ngo court summarized the new Report are:

test: 1. the extent of any history of official

Thelanguageandhistoryofthestat.discriminationinthestateorpolitical
ute make clear several points' First' dis- subdivision that touched the right of the

.ii*irr"to"y intent need not be shown to members of the minority group to regis'

".*uriti' 
a violation' Second' at-large ter, to vote' or otherwise to participate in

elections are not prohibited per se' nor the democratic process;

ao"r " 
lack of proportional representa- 2. the extent to which voting in the

tionautomaticallyrequireafindingofaelectionsofthestateorpoliticalsubdivi.
uiolution. At the same time, however' sion is racially polarized;

;;-;;;.." of minority elected officials 3. the extent to which the state or

*"V U" considered as an indicium of vio- poiiti."t subdivision has used unusually

i",i"r, -a an at-large:v.f, *llll"l": i-1" "i".,i"n 
districts, majoritv vote te

the statute i/ it results in a dental or 
loii".n"rt", anti-single shot provisions,

"qoJ 
pu.ti.ipation. Congress noted that or other voting p.".ti."r or procedures

some at-large syst€ms diluted black 
it rt *uy enhance the opportunity for

to*S, 
"ra 

wiuld be vulnerable under the 
discrimination against the minority

amended statute' 1982 Senate Report at

6. Third, section zl"t"* t"t on wheth' group;

er minority groups ;;;; adequate pub- 4' if there is a candidate slating pro

lic services but on whether minorities cess' whether the members of the minori'

have an equal right ta particip-ate in the ty group have been denied aecess to that

political process' Se' id' at g6' process;

rhe senate R"po.t gives particular ap 
*3 .ll""r,fJT:irft.:Itt #*T,il

p.orrf io the jurisprud:':" d*"l.o1ej^ll' 
cal subdivision b""i the effec* oi dit-

ff,,l1T,il"llif ffi:';iiA!,*i:'2 crimination in such areas as education'

u.s. ?55, 93 S.Ct. 2332, 37 L'Ed'2d 314 ffito1'*"'t and health' which hinder

(19?3)lmostnotablyZimmer-,tt'tfreiraUititytoparticipateeffectivelyin
McKeithen,S Cir'19?3, 485 F'zd 1297-(en the political process;

banc\, affd per 'll'r-o"-"b 
n'*' Egst 6' whether political campaigns have

Caffoll Parish ;;;;;i Boo'd a Mal- been characterized by overt or subtle ra-

shotl, 1916, aza u's' [io' go s'ct' roas' cial appeals;

47 L.Ed-zd 296' Zimmerlisted a num- 7' the extent to which members of

beroffactorstobeconsideredindilutiontheminorit-vgrouphavebeenelectedto
cases. The Senate Report repeats and public offiee in the jurisdiction'

9. Prior toBolden,therewasrelativetylittlejudi- 
Even a cursory examinalbn of 'that [thc

cial interpretati" "i "'iL..- 
z' Rath"' mo'r nifl iff'1il,}!-'?"';"1.ojllq*-fi

.;;;;il." ro dcal exclusivelv with. the constr' 
Iili"i . . l-irii-ii ,o'oui.nt thai 

'the 
languagc

;;;;;"i srandards, probably under the ut^t'-l- of Q 2 no -or. tn# elaborates.upon tt91-1t

rion thar thc standard under seclion 2 u'as ii""fifi".*t l-endmenl and the.sparse lc8'

"o,,'rrt.nt. 
sec Parker, The "Results" Tesr .ol- i.i;,i;;;i;i;t Lf 5 2 makes it clear.that tt

lrl):;r",'j'rl ,t,, iaii"s'Rishts Act: Abandonins ff.'i;,il;'to hire an effect no differcnr

t. ,..i,;t sra,,drrd. Ee rr:.L.R".. 715,729-30 ill.n.,"**;,he Fifteenth Amendment itsctt'

(r!,: I ln Boldcn,if,c plurulity..,pinion explic- oojiL.'S.'ri oo+f , fOo S.Ct. at 1496 (footnol6

,,r'. , . j rlrc tu'o standarals together: omitted).

Addil
have ht
tiffs' e

8re:

t8.l
lack ol
electei
needs
group.

te.l
state ol

voting
ing, or
tenuoul

Whilr
often b

cases (

the all.

S.Rep. N
reprintet
News 11

The Mar*
cal facto
County.rl
See also

A. Raci

t3,4l
able, the
ment to
polarized
stone of ,

Defendar
bia Coun
tion is nt
we statet

The
constitr
tion an

tered r

10. Like
coun, "r
factors c
may be
F.2d at l

ll. The
Zimmer
litigatior
constitut

12. The I

centagr
thc .a-'



McMILLNT v. ESCAMBIA COUNTY', FLA. 1043
Cltc D 74t Ffd t037 (19t4)

Additional factors ttiat in some cases though black citizens had run fbr county

h;;;J probative value as part of plain- Commission on four occasions, no black

tiit.' "uia"nce 
to establistr a vioiation candidate had ever won an election'

are: None of the bla'cks who ran was able to
- 

ir l whether there is a significant obtain the majority votes necessary to

tact 
'of 

responsiveness on the part of win the Democratic primary' The court

"r"lr"a 
officials to the particularized found that in each of the cases in which a

"""it "r the members of the minority black candidate ran for County Commis-

group. sion the voting had been severely polar-
" 

rg.] whether the policy underlying the ized along racial lines. In other words,

,r,i* ot political subdivision's use of such "whenever a black challenges a white for

ioting quatitication, prerequisite to vot- countywide office' a consistent majority

il, ; standard, p.".1i." or procedure is of the whites who vote will consistently

tenuous. vote for the black's opponent'[" McMil'

While these enumerated faetors will lan u' Escambia County' Fla'' PCA No'

often be the most relevant ones in some 774432' slip op' at 12'] The court found

cases other faetors will be indicative of '"hat the numerical minority of blacks

the alleged dilution. coupled with the white block vote pre-

S.Rep. No. 41?, g?th cong., 2d Sess. 28-29 vented blacks from obtaining a majority

reprinted in 1982 U'S'Code Cong' & Ad' of votes in the county'

News 1??, 200-07 (footnotes omitted)'r0 /d. at 965-66.12

The Marengo court then applied these typi-

cal factors to the situation in Marengo Defendants also assert that prior voting

County.rr We follow ;;';;p;;; tod;' statistics are the result of the failure of

See atso Dalas, ?89 ;;;'; 
-iiia-isa'0. 

blacks to nominate oulstanding black candi-

A. Raciauy poto,i,,a riri"n ::::: T T"",rtlT":;:"H";;';: ",t:
[3,4]Althoughnofactorisindispens-failureoftheblackstosolicitwhitevotes

,t1", tt" legislaiive history of the amend- may be caused by the effects of past dis-

ment to section 2 indieates that racially crimination ...." Dallas County, ?39

polarized voting will ordinari)y be the key- F.Zd at 1536; aecord Marango,73l F.2d at

stone of a dilution case. Marengo at 1566 156?.

Defendanls contend that voting in Escam-

bia County is not polarized. This eonten-

tion is not supported by the evidence' As B' Past Discrinination and ILs Linger-

we stated in Escambia II: ing Effectstl

The district court found that blacks t51 Defendants are incorrect when they

constitute twenty percent of the popula- assert that prior discrimination is iffelevant

tion and seventeen percent of ti," regis- under section 2' As stated by the Marengo

tered voters of Escambia County' Al' court:

t0. Like the Senate Report and the Marengo--court, 
"u'e do nol preclude the p<-rssibilitl that

factors other than those enumerated in Zimmer

ma1- be relcvant in an appropriate casc'" 731

F.2d at 1566 n. 32.

I l. Thc Marengo court emphasiz-ed that "thc

Zintnter factors serve a different purposc in
litrcatit,n tlndcl scclion 2 from their pttrpost ilr
coisti'uti,,rral litigation." 731 F'2d al 1566'

I2, Th, Il- c,,c[ltcicnl, uhich reflecls thc pcr

ccnlalr! ()i \lrliilti()n in the vote attributablu t(t
,i :. : ,,i th. rc-gistered volers in thc raccs Itr

u,hich black candidates ran, ranged from '85

to .98. McMillan v. Escambia County' PCA No'

774432, Appendix A. Tbe district court's find-

ings conceining racially polarized voting in Es-

.u"rr,biu Cortttlllections are set forth more fully
in our original opinion. 638 F'2d at 124142 n'

6. See alio Escambia //, 688 F'2d al 966 n' 14'

13. Tlris faclor is a combination of tu'o of those

orrrlri,(,.1 in thc' scnatc Report: past discrimina-
ir \()i;rtr pr:tcticcs and lingering effects

ir,,:, .1,'.-rinrirrition in hcalth, education, and

( i' '.(;r:. Sec Dallas,739 F 2d at 1535 n' 3'



1044

t

748 FEDERTL REPORTER, 2d SERIES

A history of discriminatton is impor-

t"ni 
"ria"n.e 

of both discriminatory in-

t"ni 
"na 

discriminatory results' A histc

w oi p"*"tive purposeful discrimination

may proviae strong circumstantial evi-

deic"'tf,at the present'day acts of elected

officials are motivated by the same pur-

;;;;:-;t by a desire to PerPetuate the

itf""t" of iirat discrimination' Rogers t''

;;;;,458 u.s. at624,102 s'ct' at.327e'

U;;""; the results test, the inquiry is

more direct: past discrimination can se-

,"t"iy-i*p"ir the presentday ability of

.ni*iitiut t participate on an equal foot-

ir* i, *," political process' Past discrim-

initlon ,n"y ."rt" blacks to register or

vie t; lower numbers than whites' Past

aiscrlmination may also lead to present

I".i""."rr.ic disadvantages' which-in

to* 
"un 

reduce participation and influ-

"n." 
in political affairs' See Zimmer'

485 F.2d at 1306'

?31'F.zd at 156? (footnote omitted)'

In the present case, the district court

found thai the County Commis-sion and

School Board election systems "had tnelr

""r".i. 
in the midst of a concertpd statc

Eii"" Uir.ritutionalize white suprema-cy'"

rurmtii" i. Escambia Countv' Fk-'' 
-PC-!

li". zi+asz, slip op. at 4 (N'D'Fla'' Julv 10'

19?8).t{

f6l In addition, discrimination against

*i'n*iti". outside of the electoral system

"rnnot 
be ignored in assessing that system'

il;; in"t" i. clear evidence of present

socioeconomic or political disadvantage re.

"iiiit 
g tto, pasi discrimination' the bur-

l;;-f". defendants to show that reduced

*il,i."r participation is the result of some-

[ii"* Llia". ihis discrimination' Dallas'

14. The historl'of the electoral system is outlined
"in 

Escambialt 688 F'2d at 967'

15. The district court obsen'ed that although
'irr... i, no ma1ority requirement for the general

election, "as a pracltcal matter' no one has in

recent history won a general election without a

-"i"tlir.; i4cMillan-v' Escantbia County' Fla"

i;ci N.l. 774432, sliP oP' at 18'

!6. The district court found that this rcquirc'
'"",.t,''n"J'ih. effect "thar bla'ks arc I'lr'r' ''

:[i] i;;;i on-hcad raccs r*itlt rrhitt ca'c'

i;;;; ;.J that the black con'mtrnir' crarr'1

?30 F.zd at 153?, Marengo, 731 F'2d &t

1568-69. See also S'Rep' No' 4U, '97Ur

Cong., 2d Sess. 29, n' 114,- reprintld in 
;

rssi U.S.Code Cong. '& Ad'News 20?, n. i
114. The court below found plentiful evi
dence of such discrimination' State+n'

forced segregation has created two sepa'

iate socieiies in Escambia County in which

churches, clubs, neighborhoods and' until

recently, schools in the county have te
,n"ir"a segregated by race' -The lower

court founJ that this "continued separation

Iof blacksl from the dominant white socie

ir" not orly has "left blacks in an inferior

social and economic position, with generally

inferior education," but has "helped reduce

black voting strength and participation in

o.,t"rnment." McMitlan 't)' Escambia

Vo,urtY, Fla., PCA No' ??-0432' sliP oP' at

17.

C. Election Practices

t?l The present ease concerns a proeess

*t 
"i"Uy 

a majority vote is required during

the primary in an area where the Demo

.*ti. p"tiy is dominant' This factor

*.iohs in favor of a finding of dilution'

;;fi* CountY, ?39 F'zd at 1536''i ln

"JiiUor, 
although there is no anti-single

*tot p.orition, the requirement that eandi

a.tu. t"n for numbered posts may^have an

"o"af, 
adverse effect on plaintiffs' 

-Dol-iii io""tY, ?39 F'2d at 1536'16 These

l".to*, in 
-aaditlon 

to the large population

;;;;;;st"phical size of the countv'r, en'

i"r.E tr,-" problems faced by blacks- teek-

i;;;.;.t L the political process' ?/cMil-
'ion-r. 

Orro*bia CountY' Flo" PCA No'

7744g2, sliP oP' at 18-19'18

concenlrate its votes in a large field of candi'

li=t.;"' i,uitt'n v' Escambia-Countv' fl&' rcA

No. 77-O432, sliP oP' at l8',

t?. The countv is "approximately.95T :l:,t^'".it.. (fifty-"ne miles in length) with a poPula'

ir., .i'irii,il. in t970 and a projectelptp:l?-
ir", .i iis'iog in 1e80'" McMillan v' Escambto
'i"ri,iiy,-"n'., vCe Nu' 774432' slip op' at 3'

lE, Anothc:' clcclion practicc is a tl'00O -registra''"iir" i". lur'r'ndidr'tc'' Alrhough' aefena^111i

.iri," it i. f c '"' air abic if a candidate rec'erves

.':;;,;;;; ,,,,"'"' u: iignatu*s' it is srilr an

D. Tt

tEl
fevor '

under
tion f<

eviden
discrir
nstorJ
Defen
is Prel
Eion r
@unt:
that "
sioner
trict o

respol
partie
McMi
No. ?

distri,
hind I

tY cot

E. l
I
(

Un
ever I

addit
had I

Scho,
been
cil.2r

De
the 1

fact
C,OUn

blacl
from

20.
Mc
Scf

add
eco

19.
eff,
an
du,
we
Mc



' ,!.

-.:t
:i{
*t

i

]
r
(
i.
:
i
I
v

l
I

I
i

i.

t

-. ta

i ::.1

rr
; .-,:
' ,,.i;,.

.;i
r4:,

. UcUnUlN

D. Tenuous State Policy

t81 Although a strong state policy in
favor of at-large elections is less important
under the results test, a tenuous explana-

tion for at-large elections is circumstantial
evidence that the system is motivated by

discriminatory purposes and has a discrimi-
natory result. Marengo, TSl F.2d at 1571'

Defendants claim that the at-large system

is preferable because it makes the commis-

sion responsive to the needs of the whole

county. The district court found, however,

that "the residence district of each commis-

sioner is more or less regarded as the dis-

trict of that commissioner for which he has

responsibility and for whose needs he is the

particular advocate on the commission."

McMillan a. Escambia Countg, Fla., PCA
No. 77-0432, slip op. at 30.re Thus, the

district court concluded that the policy be-

hind the at-large system for electing coun-

ty commissioners is tenuous.

E. Drtent to Which Blacks Hatte Been
Elected to Public Office in Escambia
Countg

Under the at-large system no black was

ever elected to the County Commission. In
addition, prior to this litigation, no black

had been elected to the Escambia County
School Board 20 and only two blacks had

been elected to the Pensacola Cit-v Coun-

cil.2r

Defendants argue that black access to
the political process is evidenced by the
fact that twenty percent of the Escambia
County Democratic Executive Committee is
black. This committee, however, is elected
from districls (precincts) rather than at-

additional barrier to blacks who suffer from
economic discrimination.

t9. A single district system for primaries u'as in
cffect until 1954. At the same time there r.l'as

an at-large general election. The effect of this
dual system was "to insure that commissioners
werc elecled from single-member districts."
McMillan v. Escambia County, Fia., PCA No.
774432, slip op. at 24.

20. After the trial in this case, Mr. Vernon
McDaniel, a black educator, u'as elected to the
txhool Board.

?

,. nsc.ltuslA coulvfY, r'LA.
Clte rfl'tE F2d 1037 (19E4)

1045

Iarge. Thus, we agree with plaintiffs that
the racial composition of the Democratic
committee shows that the election struc-
ture does make a difference. Nor does the
fact that no black ran for the Crcmmission

between 1970 and the time this litigation
commenced, help defendants. Rather, the
Iack of black candidates is a likely result of
a racially discriminatory system. See

McMillan a. Eseambia County, Fla., PCA
No. 77-0432, slip op. at 10. See also Mar-
engo, 731F.2d at 1568-69; S.Rep. No. 417,

9?th Cong., 2d Sess. 29, n. 114, reprinted
in 1982 U.S.Code Cong. & Ad.News 207, n.

1 14.

F. Other Factors

tgl The distriet court did not find three
of the "typical factors" listed in the Senate

Report: denial of access to a slating pro-

cess; overt or subtle raeial appeals in politi-
cal campaigns; a significant lack of respon-
siveness on the part of elected officials to
the particular needs of the members of the
minority group.22 The district court also
found no significant difference currently
existing between black and white voter reg-
istration. The lower court, however, found
that "other barriers ... effectively operate
to preclude access for blacks." McMilla,n
u. Escombia County, Fla., PCA No. ??-
0432, slip op. at 10.

The lack of these factors, however, does

not lead this court to hold for the defend-
ants. In Marengo, the court found no slat-
ing process working against plaintiffs.
The Marengo court also found no evidence
of racial appeals, but noted that "[i]n the
seventies overt political racism was less

21. The two blacks elected to the City Council
had been initially appointed to the council to fill
vacanl seats. Blacks comprise onethird of the
City of Pensacola pofiulatioh and twenty-three
percent of the registered volers. McMillan p.

Escambia Counry, Fla., PCA No. 774432, slip
op. at 13.

22. Although the court found that the commis-
sioners had generalll' been responsive to the
interests of black citizens, it noted two arc;': irr

r.r'hich the-v had not: appoinlmenls of bla::i'. t'
committees or bnards and housing policr. -S,,'

Escantbia /, 688 F.2d at 968 n. 15

t -iji$u+ *---,-.



*\

r046

prevalent than in the sixties" -yet, "the
eontinuing effects of past discrimination
are still with us." ?31 F.2d at 15?1. Thus,
absence of such evidence of discrimination
"should not weigh heavily against a plain-
tiff proeeeding under the results test of
section 2." Id. Similarly, while respon-
siveness is an important factor under the
intent test it "is considerably less impor-
tant under the results test." Id. at 1572.
See N.A.A.C.P. a. Gadsd,en County, 69L

F.2d 978, 983 (llth Cir.1982). There are
two rneasons for this: "First, S 2 protects
the access of minorities not simply to the
fruits of government but to participation in
the process ilself.... Second, responsive-
ness is a highly subjective matter, and the
subjectivity is at odds with the emphasis of
section 2 on objective factors." Marengo,
?31 F.2d at 1572. See also S.Rep. No. 417,
g?th Cong., 2d Sess. 29, n. 116, reprinted
in L982 U.S.Code Cong. & Ad.News 207 n.

116.

The absence of these, or any other, fac-
tors is not conclusive under the section 2

"totality of the circumstances" test. As
the Marengo court concluded:

No formula for aggregating the faetors
applies in every case. Some authorities
suggest that a finding of discriminatory
result is compelled when the plaintiffs
show racially polarized voting combined
with an absence of minority elected offi-
cials. See NAACP u. Gadsden County,
691 F.2d at 982-83; Note, Tie Cortstitu'
tional Significance of the Discrimina'
tory Effects of At-Large Elections, 97

Yale LJ. 974, 998 (1982). Others have
argued that discriminatory effect is irre-
buttably established when these factors
are combined with a history of discrimi-
nation and present socioeconomic dispari-
ties between races. See Blacks United
For Lasting Leadership, Inc. x. City of
Shreaeport, Sth Cir.1978, 571 F.zd 248,
257, (Wisdom, J., dissenting); Hartman,

fRacial Vote Dilution and Separati.on
of Poners: An Erplanation of the Con-

/lict Bctu:cen the Judicial "Intent" and
t.hc Legislo tirc "Results" Ston.dards I 50

Getr.\\'ash.L.Rev. [689,] 729-32 [ (19E2) ].
Certi jnh'. when the plaintiffs established

?

748 FEDERAL REPORTER, 2d SERIES
', l '

rl
fr

Beport f,
plaintiff
intent, "d
idence, in

be drawn
ant's aeti
of intent-
& Admin
olso Man

For the
the at-lar1
bia Count
of the Vo
as amend
F'IRM.23

UNITE
CUR

Frank BL
State P

Guste, J
Louisian

Unitec

State I
second offt
for writ oi
States Distr
trict of lo
denied relie

23. Given rh
court below
for further
ullimate leg
changed, frr
evidence is r

County, 731

there factors and no others weigh
strongly against the plaintiffs' case, dilu-
tion must be found.

?31 F.2d at 1574.

tlOl Plaintiffs in the present case have,
indeed, shown that these factors are
present, as well as the other indications of
diseriminatory result discussed in this opin-
ion. We agree with the district court that
"[i]n sum, a preponderance of the evidence

shows that the election system of the board
of county eommissioners effectively dilutes
the votes of black citizens." McMillan a.

Escambia County, Fla., PCA No. 77{432,
slip op. at 32. Thus, we find that the
record shows a clear violation of the results
test adopted by Congress in section 2 of
the Voting Rights Act.

Ill-131 In addition, this court already
has determined that the at-large eleetion
system was maintained for a diseriminato
ry purpose and thus violated the fourteentlr
amendment. Escambia /1, 688 F.2d at 969.

This showing of intent is sufficient to con-

stitute a violation of section 2 just as we
found that it was sufficient to constitute a

violation of the fourteenth amendment.
The results test of section 2 was intended
to be a less stringent standard that sub-

stantially lessened the burdens on plain-
tiffs. Moreover, Congress intended that
fulfilling either the more restrietive intent
test or the results test would be sufficient
to show a violation of section 2. The Sen-

ate Report states:

The amendment to the language of See
tion 2 is designed to make clear tltat
plaintiffs need not prove discriminatory
purpose in the adoption or maintenance
of the challenged system or practice in
order to establish a violation. PlaintiJlt
must eith.er proue such intent, or alter
natiaely, must show that the '.t 

"tt"i,g"asystem or practice, in the context of all

the circumstanees in the jurisdiction in
question, results in minorities being de
nied equal access to the political pnocesE.

S.Rti'. No. 41?, g?th Cong., 2d Sess. Zl,
t'( i '' ,tr! in 1982 U.S.Code Cong. & Ad.

Nt"' :(ii (footnote omitted)' The Senate



UNITED STATES EX REL. CURTIS v. BLACKBURN
' l Clte u 7,lt F2d 1(X7 (l9ta) |

Report further stites-that if a sectiont2 Court of Appeals, Politz, Cilcuit Judge,
plaintiff chooses to prove discriminatory held that Iouisiana habitual offender law,
intent, "direct or indirect eircumstantial ev- as applied to armed robbery, does not vio
idence, including the normal inferences to latedueprocessandequalprotectionclaus-
be drawn from the foreseeability of defend- es of the Fourteenth Amendment, on thec
ant's actions" would be relevant evidence ry it provides for imposition of a harsher
of intent. Id. aL 27 n. 108, U.S.Code Cong. sentence on a second felony offender than
& Admin.News 1982, p. 205 n. 108. See on a fourth offender.
also Marengo, 731 F.2d at 1553.

For the foregoing reasons, we hold that
the at-large system for electing the Escam-

bia County Commission violates section 2

of the Voting Righls Act, 42 U.S.C. 1973,

as amended in 1982, and thus we AF-
FIRM.23

UNITED STATES ex rel. Richard
CURTIS, Petitioner-Appellant,

v.

Frank BLACKBURN. Warden, Louisiana
State Penitentiary, and William J.
Guste, Jr., Attorney General, State of
Louisiana, Respondents-Appellees.

No. 84-3068
Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Dec. 20, 1984.

State prisoner who was convicted of
second offense armed robbery petitioned
for writ of irabeas corpus. The United
States District Court for the Eastern Dis-
trict of l,ouisiana, Robert F. Collins, J.,
denied relief, and prisoner appealed. The

23. Given the complete factual findings of the
court below, \ 'e sec no need to remand this case
for further evidentiarv hearings. While '1he
ultimate legal theory of the plaintiffs' case has
changed, from 'intent' to 'results' . . . the same
evidence is relevant to both theorics." Marettg,,
Counry, T3l F.2d at 157{.

t047

Affirmed.

Constitutional Law e250.3(f ), 270(4)
Criminal Law o=1201.5

Louisiana habitual offender law, as ap
plied to armed robbery, does not violate
due process and equal protection clauses of
the Fourteenth Amendment, on theory it
provides for imposition of a harsher sen-
tence on a second felony offender than on a
fourth offender. U.S.C.A. Const.Amend,
14; ISA-R.S. 14:64, subd. B, 15:529.1, subd.
A(1).

Glass & Reed, John Wilson Reed, New
Orleans, La., for petitioner-appellant.

Riehard Curtis, pro se.

Wm. R. Campbell, Jr., Susan Scott Hunt,
E. Sue Bernie, New Orleans, La., for re-
spondents-appellees.

Appeal from the United States District
Court for the Eastern District of Ircuisiana.

Before REAVLEY, POLITZ and
HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Richard Curtis was convicted of second
offense armed robbery and was sentenced
under the armed robbery statute, l,a.R.S.
14:64 B, and the habitual offender law,
La.R.S. 15:529.1.A(1).r tndei the recidivist

t. La.R.S. 14:64 B provides that a person convict-
ed of armed robbery "shall be imprisoned at
hard labor for not less than five years and for
not more than ninetl-nine vears, without bene-
fit of parolc, probation or suspension of sen-
tt'nce." Upon convrclicrn of a second felonl', the
habitual olfcridr, ll,ri prr,'.'rdes that the sentence
of inrprisonmr;:r "sir::ll bc for a deternrinate

-.d