Correspondence from Lani Guinier to Prof. Gerald Horne

    IN  T H E  U N ITED  STATES C O U R T  O F APPEALS 
FO R  T H E  ELEV EN TH  C IR C U IT

JESSE N IPPER, et a l,

v.
PLAINTIFFS,

No. 92-2588

LAW TON CHILES, et a l,

DEFENDANTS.

B R IEF AM ICUS C U R IA E O F T H E  NAACP LEG A L 
D EFEN SE AND ED U C A TIO N A L FU N D , INC.

ON A PPEA L FR O M  T H E  D ISTR IC T C O U R T 
FO R  T H E  M ID D LE D ISTR IC T O F FLO R ID A  

JACKSONVILLE D IV ISIO N

JU LIU S L. CHAM BERS 
CH ARLES STEPH EN  RALSTON 
SH ERR ILY N  A. IFILL 

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Am icus Curiae



Nipper, et al. v. Chiles, et al.. No. 92-2588
CERTIFICATE OF INTERESTED PERSONS AND 

CORPORATE DISCLOSURE STATEMENT

Counsel for amicus curiae certifies that the following listed 
persons have an interest in the outcome of this case.
1. Tommie R. Bell, Duval Co. Supervisor of Elections, 

Defendant-Appellee
2. Frank E. Brown, Attorney for Appellees
3. Donald A. Carter, Plaintiff-Appellant
4. Julius Chambers, NAACP Legal Defense and Educational Fund, 

Inc. (Amicus Curiae)
5. Lawton Chiles, Governor, Defendant-Appellee
6. Carol D. Days, Plaintiff-Appellant
7. Dennis Allen Dean, Attorney for Appellees
8. Mitchell F. Dolin, Attorney for Appellants
9. Desi Wayne Dunlap, Plaintiff-Appellant
10. John R. Dunne, Assistant Attorney General, Civil Rights 

Division, Department of Justice
11. Mitchell Dean Franks, Attorney for Appellees
12. Jeffery S. Harleston, Attorney for Appellants
13. Anthony Herman, Attorney for Appellants
14. Sherrilyn Ifill, NAACP Legal Defense and Educational Fund, 

Inc. (Amicus Curiae)
15. Dot Joyce, Director of Florida Division of Elections, 

Defendant-Appellee
16. Lawyers' Committee for Civil Rights Under Law
17. Leonard Magid, Attorney for Appellees
18. Bob Martinez, former Governor, Defendant

Cl of 2



Nipper, et al. v. Chiles, et al.. No. 92-2588
19. Robert B. McDuff, Attorney for Appellants
20. Katrina Miles, Plaintiff-Appellant
21. Honorable John H. Moore, II, U.S. District Court Judge
22. Donna M. Murphy, Attorney, Civil Rights Division, Department 

of Justice
23. NAACP Legal Defense and Educational Fund, Inc.
24. Jesse L. Nipper, Plaintiff-Appellant
25. D.W. Perkins Bar Association, Plaintiff-Appellant
26. Denise Marcel Prescod, Attorney for Appellants
27. Steven Ralston, NAACP Legal Defense and Educational Fund, Inc.

(Amicus Curiae)
28. Steven H. Rosenbaum, Attorney, Civil Rights Division, 

Department of Justice
29. Jessica Dunsay Silver, Attorney, Civil Rights Division, 

Department of Justice
30. Jim Smith, Secretary of State of Florida, Defendant-Appellee
31. Rebecca K. Troth, Attorney, Civil Rights Division, 

Department of Justice
32. James P. Turner, Deputy Assistant Attorney General, Civil 

Rights Division, Department of Justice
33. George L. Wass, Attorney for Appellees
34. Annie Ruth Williams, Plaintiff-Appellant
35. Selendra Williams, Plaintiff-Appellant
36. Brenda Wright, Attorney for Appellants

C2 of 2



TABLE OF CONTENTS

Page

Table of A uthorities................................................................................................................................ i

Adoption of Appellants’ Statement of the C a s e .................................................................................1

Statement of Jurisdiction .........................................................................................................................1

Statement of Issues .................................................................................................................................. 1

Summary of A rgum ent..............................................................................................................................1

Introduction................................................................................................................................................ 3

I. In Chisom v. Roemer and Houston Lawyers’ Association the Supreme 
Court Decided that Judicial Elections are to be Examined under the
"Results" Test of Amended § 2 ........................................................................................3

II. Chief Judge Tjoflat’s Concurrence in Solomon v. Liberty County is 
Contrary to Both the Letter and Spirit of Amended Section 2 of the
Voting Rights Act ...........................................................................................................6

III. The District Court’s Holding that the Circuitwide and Countywide 
Method of Electing Judges to the Fourth Judicial Circuit and the
Duval County Court was Wrong as a matter of Law ................................................8

A. The District Court Erred in its Finding that Elections 
in the Relevant Jurisdiction is not Racially 
Polarized ............................................................................................................. 8

1. Contests Involving African American
and White Candidates ..........................................................................9

2. White Incumbency as a "Special
Circumstance" ...................................................................................... 13

IV. The District Court Makes Critical Factual Errors with Regard to
Other Senate F a c to rs .................................................................................................... 15

A. African American Electoral Success.............................................................. 16

B. The Role of Appointment in Assessing Minority
Electoral Success............................................................................................... 17



C. Plaintiffs’ Burden of Proof and the Salience of
Socio-economic Disparities .............................................................................18

D. The State’s Interests in Maintaining the Current
System ................................................................................................................20

Conclusion................................................................................  22

Certificate of Service .............................................................................................................................. 23



TABLE OF AUTHORITIES

CASES
page

Campos v. City of Baytown,
840 F.2d 1240 (5th Cir. 1988)
cert, denied 109 S. Ct. 3213 (1989) ...................................................................................  10

Carrolton Branch of NAACP v. Stallings,
829 F.2d 1547 (11th Cir. 1987)................................................................................... 8, 11, 14

•  Chisom v. Roemer,
115 L. Ed. 2d 348 (1991)............................................................................................... passim

Citizens for a Better Gretna v. Cit of Gretna,
834 F.2d 496 (5th Cir. 1984) ............................................................................................  9, 10

Concerned Citizens v. Hardee County Bd. of Comm’rs,
906 F.2d 524 (11th Cir. 1990) ............................................................................................... 8

Dillard v. Crenshaw County,
831 F.2d 246 (11th Cir. 1987) ............................................................................................  18

Ewing v. Monroe County, Miss.,
740 F. Supp. 417 (N.D.Miss.1990) ........................................................................................ 5

Florida ex rel. Hawkins v. Board of Control of Fla.,
350 U.S. 413 (1956) .............................................................................................................  17

Gingles v. Edmisten
590 F. Supp 345 (E.D.N.C. 1984)..........................................................................................  12

•  Houston Lawyers' Association v. Attorney
General of Texas, 115 L. Ed. 2d 379 (1991) .............................................................. passim

Jeffers v. Clinton,
730 F. Supp. 196 (E.D. Ark. 1989) aff’d mem., 112
L. Ed. 2d 656 (1 9 9 1 )...............................................................................................................  9

Jones v. Lubbock,
727 F.2d 364 (5th Cir. 1984) ............................................................................................... 13

Kirksey v. Board of Supervisors,
554 F.2d 139 (5th Cir. ) cert, denied, 434 U.S. 960
(1977).......................................................................................................................................  19

i



Kirksey v. City of Jackson, Miss.,
663 F.2d 659 (5th Cir. 1981) reh’g and reh’g en
banc denied, 669 F.2d 316 (5th Cir. 1982) .......................................................................... 7

Mallory v. Eyrich,
707 F. Supp. 947 (S.D. Ohio 1989) .....................................................................................  9

Martin v. Allain,
658 F. Supp. 1183 (S.D. Miss. 1987) ..............................................................................  5, 21

•McMillian v. Escambia County, Fla.,
748 F.2d 1037 (11th Cir. 1984).....................................................................................  passim

McNeil v. Springfield Park District,
666 F. Supp. 1208 (C.D. 111. 1987) aff’d, 851 F.2d
937 (7th Cir. 1988) ..................................................................................................................  5

Solomon v. Liberty County,
899 F.2d 1012 (11th Cir. 1990)................................................................................. 3, 6, 9, 11

•Thornburg v. Gingles,
478 U.S. 30 (1986)........................................................................................................... passim

Westwego Citizens for a Better Gov’t v. City of 
Westwego, 872 F.2d 1201 (5th Cir. 1988)
on remand, 946 F.2d 1109 (5th Cir. 1991).......................................................................  9, 21

STATUTES
House Report No. 97-227, 97th Cong. 1st Sess. (1982).....................................................................5

•  Senate Report No. 97-417, 97th Con. 1st Sess. (1982) ..................... ‘...................................passim

28 U.S.C. §1291 ..................................................................................................................................... 1

•  Voting Rights Act of 1965,
as amended 42 U.S.C. 1973 ............................................................................................ passim

u



ADOPTION OF APPELLANTS' STATEMENT OF THE CASE

Amicus Curiae, NAACP Legal Defense & Educational Fund, Inc., hereby incorporates by 

reference the Statement of the Case and the Statement of Facts as set out by the Appellants in the 

Brief on Appeal.

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. §1291.

STATEMENT OF THE ISSUES

Whether the district court committed legal and factual errors in holding that the circuitwide 

and countywide method of electing judges in the Fourth Judicial Circuit and Duval County, Florida 

does not violate Section 2 of the Voting Rights Act of 1965, as amended?

SUMMARY OF THE ARGUMENT

The essence of the Supreme Court’s decisions in Chisom v. Roemer, 115 L.Ed.2d 348 (1991) 

and Houston Lawyers’ Association v. Attorney General o f Texas, 115 L.Ed.2d 379 (1991) is that 

judicial elections are entitled to no exemption or insulation from Section 2 of the Act, as amended. 

Thus, where plaintiffs challenge the method of electing judicial officers as violative of Section 2, 

courts are required to apply the "results" test codified by Congress, and further developed by the 

Supreme Court and lower courts to determine if the rights of minority voters are violated by the 

challenged method of judicial election.

The "results" test of amended Section 2 is a "flexible, fact-intensive" test which at its core 

negates the need for minority voters to prove that a particular election structure, practice or 

procedure was created or has been maintained with the invidious purpose of intentionally 

discriminating against minority voters. Consistent with Congress’ decision to remove proof of 

intentional discrimination as a part of plaintiffs claim under §2, minority voters need not prove the

1



existence of intentional racial bias on the part of either legislators or voters.

In the case at hand, plaintiff African American voters challenged the circuitwide and 

countywide method of electing judges to the Fourth Judicial Circuit and Duval County Court, 

respectively. They contend that the at-large method of electing Circuit and County judges denies 

African American voters an equal opportunity to participate in the political process and elect their 

candidates of choice, in violation of Section 2 of the Voting Rights Act of 1965, as amended. The 

facts in this case overwhelmingly support the minority voters’ claims. Yet the district court rejected 

the plaintiffs’ claim of vote dilution based on erroneous interpretations of well-established law 

under Section 2 of the Act, and a virtual refusal to draw obvious inferences from facts.

Although the district court purports to follow the Supreme Court’s directions in Thornburg 

v. Gingles, 478 U.S. 30 (1986) for assessing vote dilution claims, a close examination of the district 

court’s errors, and the rationale offered by the court for its rejection of the plaintiffs’ claims shows 

that the district court in essence rejects the well-developed judicially manageable standards for 

determining a violation under §2 and applies its own standards for the application of §2 to judicial 

election schemes.

Courts are neither required nor permitted to depart from the well-established "totality of 

circumstances" test to create new standards of §2 review based on the function of the elected 

officer. The Supreme Court’s rejection of the states’ arguments in Chisom and Houston Lawyers’ 

Association forecloses the creation of new rules to insulate judicial elections from full review under

§ 2 .

Moreover, the Court commits clear legal and factual errors with regard to the existence of 

Senate Factors which support the plaintiffs’ claim of dilution.

2



Introduction

In support of its decision to reject many of the well-established principles for determining 

the existence of vote dilution under §2 of the Act, the district court cites the failure of the Supreme 

Court in Chisom and Houston Lawyers’ Association to "refine" the standard to be applied to judicial 

elections cases, Slip Op. at 5, and cites this Court’s evenly split en banc decision in Solomon v. 

Liberty County, 899 F.2d 1012 (11th Cir. 1990), in which this Court, according to the district court 

was "unable to agree on the precise meaning of Gingles.” Slip Op. at 4.

To the extent that the district court bases its radical departure from accepted §2 analysis 

on Chisom and Houston Lawyers’ Association, the first part of this brief will discuss the directions 

provided by those decisions with regard to the application of the "results" test to judicial election 

schemes. The second part of the brief discusses the concurrence written by Judge Tjoflat in 

Solomon, which erroneously interprets amended §2 to require plaintiffs to prove the existence of 

racial bias in the community in order to prevail in a vote dilution claim.

The third and fourth sections of the brief address the actual errors of law and fact made by 

the district court in the case at hand, which support this Court’s reversal of the district court 

opinion. I.

I. IN CHISOM V. ROEMER AND HOUSTON LAWYERS’ ASSOCIATION THE 
SUPREME COURT DECIDED THAT JUDICIAL ELECTIONS ARE TO BE 
EXAMINED UNDER THE "RESULTS" TEST OF AMENDED §2

While the district court correctly notes that the Supreme Court "had no occassion in 

Houston Lawyers or its companion case, Chisom v. Roemer, to explain or refine the standard that 

should be applied in section two litigation," the Supreme Court announced one unambiguous and 

clear direction for courts assessing vote dilution claims challenging the election of judges: the 

"results" test "for determining the legality o f . . a [voting] practice . . . applies in judicial elections

3



as well as in other elections." Chisom, 115 L.Ed. 2d at 360-361. The Court further emphasized that 

"the results tests mandated by the 1982 amendment is applicable to all claims arising under §2.” Id. 

at 365 (emphasis added).

The Court rejected the arguments advanced by the State of Louisiana and the State of Texas 

that the function of judicial officers is so different from that of non-judicial officers, that the 

election of judges is entitled to exemption from §2 of the Voting Rights Act. Instead, the Court 

held in Houston Lawyers’ Association, that "if a State decides to elect its trial judges . . . those 

elections must be conducted in compliance with the Voting Rights Act." 115 L.Ed.2d at 386. The 

Supreme Court did not "refine," as the district court in this case states, the precise analysis for a 

vote dilution claim challenging the method of electing judges because the flexibility of the "results" 

test lends itself to all types of vote dilution claims.

The "results" test has been codified by Congress in the Senate and House Reports which 

accompany the 1982 amendments to §2 of the Voting Rights Act. In particular, the Senate Report1 

sets out specifically the standards to be applied in a §2 case, and enumerates a list of "typical 

factors" which tend to prove the existence of vote dilution.2 This list, while not exhaustive, has

'The Senate Report has been characterized an an "authoritative source" for interpreting 
amended §2. Thornburg v. Gingles, 478 U.S. at 43 n.7.

2These typical objective factors include:

1. the extent of any history of official discrimination in the state or political 
subdivision that touched the right of the members of the minority group to register, 
to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is 
racially polarized;

3. the extent to which the state or political subdivision has used unusually large 
election districts, majority vote requirements, anti-single shot provisions, or other 
voting practices or procedures that may enhance the opportunity for discrimination 
against the minority group;

4



been endorsed by the Supreme Court, this Court and other courts throughout the country.

In Thornburg v. Gingles, the Supreme Court further developed the standards for §2 vote 

dilution claims and refined Congress’ "flexible, fact-intensive" test. 478 U.S. at 46. The "flexibility" 

of the "results" test is deliberate. Congress contemplated §2 as the "major statutory prohibition of 

all voting rights discrimination." S. Rep. at 30. As such, Congress created a test under §2 which 

could be applied to any "rule, practice, or procedure called into question," id. at 28, and which can 

apply "to different types of election problems," including the election of judges. House Report No. 

97-227 97th Cong., 1st Sess. (1982) at p. 30. Accordingly, the test has been used to assess claims 

arising under §2 for the election of justice court judges and constables, Ewing v. Monroe County, 

Miss., 740 F.Supp. 417 (N.D.Miss.1990); park board trustees, McNeil v. Springfield Park District, 666

4. if there is a candidate slating process, whether the members of the minority 
group have been denied access to that process;

5. the extent to which members of the minority group in the state or political 
subdivision bear the effects of discrimination in such areas as education, 
employment and health, which hinder their ability to participate effectively in the 
political process;

6. whether political campaigns have been characterized by overt or subtle racial 
appeals;

7. the extent to which members of the minority group have been elected to public 
office in the jurisdiction.

Additional factors that in some cases have had probative value as part of plaintiffs evidence 
to establish a violation are:

whether there is a significant lack of responsiveness on the part of elected 
officials to the particularized needs of the members of the the minority 
group.

whether the policy underlying the state or political subdivision’s use of such 
voting qualification, prerequisite to voting, or standard, practice or 
procedure is tenuous.

Senate Report No. 97-417, 97th Cong., 2nd Sess.(1982) at pp. 28-29 ["Senate Report"].

5



F.Supp. 1208 (C.D. 111. 1987) aff’d, 851 F.2d 937 (7th Cir. 1988) and trial court judges, Martin v. 

AUain, 658 F.Supp. 1183 (S.D. Miss. 1987).

Houston Lawyers’ Association and Chisom stand for the Supreme Court’s repudiation of the 

argument that judicial elections are so different from elections for other offices that they are 

entitled to special rules or exemptions under the Act. Just as judicial elections are not exempt from 

the Act’s coverage, neither are they exempt from the standards applied to determining vote dilution 

claims under amended §2. As is set out infra, the district court consistently departs from 

established standards in assessing the method of electing judges in the Fourth Judicial Circuit and 

Duval County challenged by the plaintiffs.

II. CHIEF JUDGE TJOFLATS CONCURRENCE IN SOLOMON V. LIBERTY COUNTY
IS CONTRARY TO BOTH THE LETTER AND SPIRIT OF AMENDED SECTION
2 OF THE VOTING RIGHTS ACT

In Solomon v. Liberty County, Florida, 899 F.2d 1012 (11th Cir. 1990) this Circuit split evenly 

in an en banc decision and remanded to the district court a claim brought by African American 

voters challenging the at-large election of county commissioners and school board members. In one 

of the three concurring opinions, Chief Judge Tjoflat argued that plaintiffs attempting to prove the 

existence of vote dilution, particularly through proof of racially polarized voting "must show that 

the voting community is driven by racial bias" and that the challenged scheme allows that bias to 

dilute the minority population’s voting strength in order to prevail. Solomon, 899 F. 2d at 1037.

This approach is completely at odds with Congress’ intention in amending Section 2 and, 

in effect, re-imports the "intent" test into amended §2.

Congress unambiguously announced that "the specific intent of this amendment [to §2] is 

that the plaintiffs may choose to establish discriminatory results without proving any kind of 

discriminatory purpose." S. Rep. at 28 (emphasis added). In amending §2 and codifying the

6



"results" test Congress sought to remove from §2 any standard that "would make it necessary to 

brand individuals as racist in order to obtain judicial relief." S. Rep. at 36. Thus, under

amended §2, minority voters need not prove that voting is racially polarized because white voters 

are racist.

Requiring proof of the existence of racial bias in the jurisdiction would lead to the perils 

of the intent analysis that Congress specifically sought to avoid when it amended §2. Congress 

eliminated the intent inquiry from §2, in principal part, because an inquiry into the motives of 

legislators "is unnecessarily divisive because it involves charges of racism on the part of individual 

officials or entire communities.” S. Rep. at 36. If plaintiffs had to prove that white voters failed to 

support minority candidates because of their race, similar charges would be a necessary part of the 

plaintiffs’ burden. It is difficult to imagine a more potentially divisive inquiry than an attempt by 

minority voters to discern the motives of white voters in Duval County. The use of standard 

statistical analytical methods to determine whether African Americans and whites vote differently 

avoids the hazards of the more inflammatory "causation" analysis supported by Judge Tjoflat and 

rejected by Congress. Under amended §2 courts must "assess the impact of the challenged structure 

. . . rather than . . .  the motivations which lay behind" that impact. S. Rep. at 17 (emphasis added).

Congress also decided that the burden of proving the existence of intentional racial bias was 

too high. S. Rep. at 36. Congress was concerned, for instance, that "plaintiffs may face barriers 

of ‘legislative immunity’ both as to the motives involved in the legislative process, and as to the 

motives o f the majority electorate when an election law has been adopted or maintained as the result 

of a referendum." S. Rep. at 37 (emphasis added). Similar barriers would be faced by plaintiffs 

attempting to discern the motives of white voters in order to prove racially polarized voting.3

3It would be nearly impossible for plaintiffs to meet such a burden because "[t]he motivation(s) 
o f . . . individual voters may not be subjected to . . . searching judicial inquiry." Kirksey v. City o f 
Jackson, Miss., 663 F.2d 659, 662 (5th Cir. 1981) reh’g and reh’g en banc denied, 669 F.2d 316 (5th

7



The Supreme Court has similarly rejected "the suggestion that racially polarized voting refers 

. . . to white bloc voting which is caused by white voters’ racial hostility toward black candidates. 

Gingles, 478 U.S. at 59. As the Gingles p lurality  clearly explains:

"[t]o accept this theory would frustrate the goals Congress sought to 
acheive by repudiating the intent test of Mobile v. Bolden. [The] 
suggestion that the discriminatory intent of individual white voters 
must be proved in order to make out a §2 claim must fail for the 
very reasons Congress rejected the intent test with respect to 
governmental bodies." Gingles, 478 U.S. at 71 (internal citations 
omitted).

In short, the plaintiffs in this case were not required to prove the existence of intentional 

racial bias in the Fourth Judicial Circuit and Duval County in order to prevail under amended §2.

III. THE DISTRICT COURT’S HOLDING THAT THE CIRCUITWIDE AND 
COUNTYWIDE METHOD OF ELECTING JUDGES TO THE FOURTH JUDICIAL 
CIRCUIT AND THE DUVAL COUNTY COURT WAS WRONG AS A MATTER OF 
LAW4

A. The District Court Erred In Its Finding That Elections In The 
Relevant Jurisdiction Is Not Racially Polarized

"Racial bloc voting is the hallmark of a vote dilution claim." Carrolton Branch o f NAACP 

v. Stallings, 829 F.2d 1547, 1550 (11th Cir. 1987); McMillian v. Escambia County, Fla. 748 F.2d 1037, 

1043 (11th Cir. 1984). Because of the significance of racial bloc voting in the calculus of a vote 

dilution determination, errors in the analysis of racially polarized voting infect the entire vote 

dilution inquiry.

Cir. 1982).

4In its review of the district court’s opinion, this court may correct the district court errors of 
law and fact. Concerned Citizens v. Hardee County Bd. o f Comm’rs, 906 F.2d 524, 526 (11th Cir 
1990).

8



In the case at hand, plaintiffs presented overwhelming evidence to the court that elections 

in the Fourth Judicial Circuit and Duval County are characterized by racial bloc voting. By 

rejecting the established standards of determining racial bloc voting developed by the Supreme 

Court and other Circuits, the district court in this case erroneously concluded that voting in 

circuitwide and countywide elections is not racially polarized. The district court’s conclusion 

regarding the existence of racially polarized voting is based on numerous legal errors and is contrary 

to the factual record. At each stage of its analysis of racially polarized voting the district court 

departs from the established method of determining the existence of bloc voting, and creates a 

special standard for judicial elections.

1. Contests Involving African American and White Candidates

In determining whether voting is racially polarized in a jurisdiction, elections involving white 

and African American candidates running for the electoral office at issue are most salient. This 

view has been adopted by courts throughout the country. Jeffers v. Clinton, 730 F.Supp. 196, 208- 

209 (E.D. Ark. 1989) (three-judge-court) affd  mem., 112 L.Ed.2d 656 (1991); Mallory v. Eyrich, 707 

F.Supp. 947, 951-952 (S.D. Ohio 1989).5 The Fifth Circuit in Westwego Citizens for a Better Gov’t 

v. City o f Westwego, 872 F.2d 1201, 1208 n. 7 (5th Cir. 1988) on remand, 946 F.2d 1109 N. 15 (5th 

Cir. 1991) clearly explained why elections involving white and African American candidates are the

5 Although the Supreme Court in Thornburg v. Gingles was not unanimous in its decision 
regarding the relevance of the race of the candidate, the Court unanimously upheld the three-judge- 
court’s finding of vote dilution based on an analysis of only elections involving African American 
and white candidates. Thus "implicit in Thornburg v. Gingles holding is the notion that black 
preference is determined from elections which offer the choice of a viable black candidate." Citizens 
for a Better Gretna v. Cit o f Gretna, 834 F.2d 496, 504 (5th Cir. 1984).

Accordingly this Court in Solomon v. Liberty County found that plaintiffs had sustained their 
burden of proving racially polarized voting based on elections involving African American 
candidates. 899 F.2d at 1020-1021 (and notes). Judge Tjoflat concurred in this conclusion. 899 
F.2d at 1037.

9



appropriate focus of a racially polarized voting analysis: "evidence of black support for white

candidates in an all-white field . . .  tells us nothing about the tendency of white bloc voting to defeat 

black candidates." See also, Campos v. City o f Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988) cert, 

denied 109 S.Ct. 3213 (1989); Citizens for a Better Gretna v. City o f Gretna, 834 F.2d 496, 503 (5th 

Cir. 1984).

The facts of this case themselves support the Fifth Circuit’s view. It is undisputed that 

between 1972 and 1990 there were six contested elections in which African American candidates 

ran against white candidates for circuit or county judge in the Fourth Judicial Circuit and Duval 

County.6 The district court found, and it was undisputed, that in these elections, African 

Americans overwhelmingly gave their electoral support to the African American candidates, while 

white voters never gave a majority of their support to the African American candidate. Indeed 

"black support for the black candidate ranged from 73% to 98%, white support for the black 

cnadidate ranged from 3% to 33%." Slip Op. at 9. These facts, in and of themselves, constitute 

clear evidence that voting is racially polarized.

The court itself concedes that "these statistics would ordinarily make out a sufficient showing 

of racial polarization in these six judicial elections," Slip Op. at 21. Nevertheless, it dismisses the 

significance of the electoral contests involving African American and white candidates.

First, as a matter of law, the Court fails to appropriately focus its analysis on the contests 

involving African American candidates who are the choice of the African American community. 

Instead, the district court decides that six most relevant elections are entitled to little probative 

weight because the elections are, in the court’s view, "stale." Slip Op. at 21. Specifically, the court

‘These elections are: (1) 1972 Primary, Circuit Court, Leander Shaw; (2) 1972 Runoff, Circuit 
Court, Leander Shaw, (3) 1978 Primary, Circuit Court, Harrell Buggs; (4) 1978 Primary, Duval 
County court, Alfred Washington; (5)1984 Primary, Duval County Court, Denise Prescod; (6)1984 
Primary, Duval County Court, Dietra Micks. Slip Op. at 9.

10



points to the fact that of the five circuitwide and countywide contests involving African American 

and white candidates, three elections occurred during the 1970s and two in 1984. The court 

concludes that these facts "set this case apart from other vote dilution cases, where normally at least 

some elections for the office under challenge courring within one or two years of the lawsuit are 

relied upon." Slip Op. at 22. On this basis, the court rejects out of hand the significance of 

elections involving African American candidates for the very electoral office at issue in the lawsuit - 

- circuit and county judges.

Contrary to the court’s suggestions, neither Thornburg v. Gingles nor any other case 

supports the rejection or dismissal of the most relevant election data: the results of elections 

involving African American and white candidates for the electoral office at issue in the lawsuit. 

Recent elections, that is elections held during the decade before the filing of the lawsuit are 

relevant, the elections at issue in this case were not so out-of-date as to be of minimal importance 

in the racial bloc voting analysis. Indeed two of the six elections occurred in 1984, and two of the 

other elections occurred during late 1970s. There is no evidence in the record to suggest that the 

results of these elections are not entitled to great weight.7 In Carrollton Branch o f NAACP v. 

Stallings, all of the elections relied on by plaintiffs in their analysis had been held at least three year 

prior to the filing of the lawsuit, and two of the four elections analyzed occurred more than five 

years prior to the suit. See Stallings, 829 F.2d at 1556.

Moreover, the plaintiffs did not analyze only those six races in which African American and

7In dismissing the probative value of these elections the district court also ignores the actual 
relevance of the lack of any recent contested elections involving African American candidates for 
the circuitwide and countywide judge. The fact that no African Americans have run in contested 
races for circuit or county judge against white opponents since 1984 in all probability reveals that 
African Americans have been deterred from running for circuit or county judge by the consistent 
historical defeat of African American candidates between 1972 and 1984. As this Court eloquently 
stated in Solomon: "Six futile elections is enough." 899 F.2d at 1021. This Court has also found 
in the past that "lack of black candidates is a likely result of a racially discriminatory system." 
McMillan v. Escambia County, 748 F.2d at 1045.

11



white candidates ran for circuitwide and countywide judicial seats. They also analyzed exogenous 

non-judicial elections within the relevant jurisdictions in which African American candidates ran 

against white opponents. The results of those elections are consistent with the results of the judicial 

races involving African American and white candidates. The record demonstrates that African 

American voters overwhelmingly gave their electoral support to African American candidates, while 

white voters overwhelmingly gave their support to white candidates in election contests involving 

African American and white candidates. TR. Vol. 1, pp. 36-37. And the district court itself finds 

that "no black candidate has won a contested circuitwide or countywide election for any office since 

1979." Slip Op. at 15.

The district court also decided that voting is not racially polarized based on the State 

expert’s conclusion that when all elections between 1972 and 1990 are considered, including those 

elections involving only white candidates,8 "the black candidate of choice won 68% of the contested 

circuit court elections . . .  [and] 58% of the contested county court elections." Slip Op. at 10. The 

court’s reasoning is flawed for two reasons. The court fails to draw the obvious conclusion from 

the facts: African American voters are usually able to elect their candidates of choice only when 

those candidates o f choice are white. There can be no more clear example of the existence of 

fundamental racial inequity in the electoral process. As the three-judge-court in Gingles v. Edmisten 

stated, "the demonstrable unwillingness of substantial numbers of the racial majority to vote for any 

minority race candidate or any candidate identified with minority interests is the linchpin of vote 

dilution." 590 F.Supp. 345, 355 (E.D.N.C. 1984).

The district court’s refusal to reach the obvious conclusion from these facts explains why 

electoral contests involving African and white candidates are the appropriate focus in a vote dilution

Elections involving only white candidates constitute the overwhelming number of election 
contests held in the Fourth Judicial Circuit and Duval County between 1972 and 1990.

12



analysis.9 As is demonstrated by this case, a generalized review of all elections, without regard to 

race of the candidates, may lead to the seemingly significant but misleading conclusion that African 

American voters are able to elect their candidates of choice in the majority of election contests. 

A "searching, practical, evaluation" of electoral history appropriately focused on elections in which 

the minority candidate of choice is a minority candidate reveals however, that African American 

voters in circuitwide and countywide judicial contests are usually able to elect their candidate of 

choice only when that candidate is white. This fact "confirms that race . .  . remains at issue in the 

political system," Jones v. Lubbock, 727 F. 2d 364 (5th Cir.1984), and supports a finding that 

voting is racially polarized.

2. White Incumbency as a ",Special Circumstance"

In perhaps the most glaring legal error in its opinion, the district court turns the Supreme 

Court’s statement in Thornburg v. Gingles that "special circumstances" such as incumbency may 

explain "the success of a minority candidate," 478 U.S. at 57 on its head, and declares that "[t]he 

converse of this proposition must also be true." Slip Op. at 25. According to the district court 

white incumbency is a "special circumstance" that may "explain minority electoral failure in a 

polarized contest." Id. This new standard is created entirely out of whole cloth by the district court 

and finds support neither in case law nor in political reality.

The Supreme Court’s admonition in Thornburg v. Gingles that courts take care when 

reviewing the electoral success of a minority candidate reflects the Court’s view that vote dilution 

must be viewed in the context of political reality. As the Supreme Court explained, the fact that

^The focus on elections in which African American candidates have run against white candidates 
is not, as the court states, compelled by the "argument that a black candidate will automatically be 
preferred by black voters over a white candidate." Slip Op. at 24. It must first be proven that the 
African American candidate is the candidate of choice of the African American community in order 
for that election to be useful to the racial bloc voting analysis.

13



a minority candidate wins a particular election does not preclude a finding of vote dilution. A 

minority candidate may have won due to "special circumstances, such as the absence of an 

opponent, incumbency, or the utilization of bullet voting." Thornburg v. Gingles, 478 U.S. at 57. 

This reflects the Court’s understanding that in cases where a claim of vote dilution is brought 

minority electoral success will most often be the exception to the normal pattern of elections. In 

fact, lack of minority electoral success in the relevant jurisdiction is a critically important part of 

the minority voters’ proof that the challenged electoral system is not equally open to minority 

voters. The Supreme Court identified "the extent to which minority group members have been 

elected . . .  and the extent to which voting in the elections of the . . .  political subdivision is racially 

polarized," as the two most important Senate Factors in a vote dilution analysis. Thornburg v. 

Gingles, 478 U.S. at 48 n.15. This Court has endorsed that view. Carrollton Branch o f NAACP v. 

Stallings, 829 F.2d at 1555.

In describing the "special circumstances" that may sometimes explain the unusual 

phenomenon of minority electoral success, the Court sought to ensure that discriminatory election 

schemes were not insulated from §2 scrutiny simply because some minority candidates had been 

elected in the relevant jurisdiction. The Court recognized that minority electoral success is often 

accompanied by particular circumstances or facts. Incumbency is one of the factors recognized by 

the Supreme Court. African Americans who are first appointed to office by an executive authority, 

for example, may win a subsequent election, even though voting is racially polarized. In such cases 

white voters may simply endorse the decision of the executive by voting for the appointed African 

American candidate, who may or may not be the choice of the African American community.

In Thornburg v. Gingles, the Supreme Court’s "special circumstances" language cautioned 

lower courts to examine carefully minority electoral sucess, which at face value, might appear at 

odds with the minority voters’ claim that a particular electoral scheme is discriminatory. White

14



incumbency, unlike minority incumbency, is not a "special circumstance." Particularly in a 

jurisdiction where plaintiffs claim that the political processes are not equally open to minority 

voters, white incumbency is more than likely the status quo, not a special circumstance. To describe 

white incumbency as a "special circumstance" is a distinctly "impractial" evaluation of political 

reality.

Under the district court’s standard, however, plaintiffs would rarely ever be able to prove 

racially polarized voting since whites would always be able to raise the defense of incumbency as 

a "special circumstance" to explain the persistent electoral defeat of African American candidates. 

This result would be fundamentally at odds with Congress’ intentions in amending Section 2 of the 

Act, and the Supreme Court’s holding in Thornburg v. Gingles and Houston Lawyers’ Association.

The district court’s interpretation of the "special circumstance" language constitutes a clear 

error of law.

IV. THE DISTRICT COURT MAKES CRITICAL LEGAL AND FACTUAL ERRORS
WITH REGARD TO OTHER SENATE FACTORS
The plaintiffs’ burden with regard to the Senate Factors is clear. Congress has cautioned 

that "there is no requirement that any particular number of factors be proved, or that a majority 

of them point one way or the other.” S. Rep. at p.29; Gingles, 478 U.S. at 45. Moreover, "the 

failure of [the] plaintiff to establish any particular factor, is not rebuttal evidence o f non-dilution.” 

S. Rep. at 29 n.118 (emphasis added). Thus, in this case, where plaintiffs made no attempt to prove 

that a racially discriminatory candidate slating process exists for judicical office in the Fourth 

Judicial Circuit and Duval County or that white candidates for judicial office have used racial 

appeals in election contests, those factors are simply not at issue. The district court incorrectly 

concluded that because of plaintiffs’ decision not to raise these factors, "[defendants have

15



demonstrated that racial appeals have not been used to exclude blacks from circuit or county 

judgeships," and that "[defendants have demonstrated that blacks are not prevented from seeking 

judicial office . . .  by means of a candidate slating process." Slip Op. at 32. This Court has 

recognized that the lack of proof of any factors (e.g., responsiveness, candidate slating, racial 

appeals) does not constitute support for the defendants. McMillan, 748 F.2d at 1045.

With regard to several of the other Senate Factors, the district court misapplies the 

appropriate legal standards and fails to make findings consistent with the record below which clearly 

support the plaintiffs’ claim.

A. African American Electoral Success

With regard to minority electoral success, the district court found two critically important 

facts: "[n]o black candidate has won a contested election for circuit or county judge at least since 

1972" and "no black candidate has won a contested circuitwide or countywide election for any office 

since 1979." Slip Op. at 15 (emphasis added). Despite this finding, the district court concludes that 

"blacks have experienced electoral success" and eligible blacks are represented in the circuit and 

county judiciary at a rate that is higher than the rate of representation for eligible whites." Slip Op. 

at 35. The district court’s conclusions are based on an erroneous interpretation of law and fact.

In determining the level of minority electoral success in circuitwide and countywide judicial 

elections, the district court compares the percentage of African American circuit and county judges 

with the percentage of minority lawyers in the relevant jurisdiction. This argument and the district 

court’s reliance on employment discrimination case law to support it, reflects the court’s 

fundamental misunderstanding of Section 2 law, and the proper focus of the Voting Rights Act.

The rights advanced by the plaintiffs in the case at hand are not the rights of minority 

lawyers to be elected as judges, but the right of African American voters to participate equally in

16



the process and elect their candidates of choice.

The district court supports its reliance on the employment discrimination construct to 

describe minority electoral success in judicial elections as appropriate because special qualifications 

are required for candidates to serve as judges. Chisom and Houston Lawyers’ Association stand for 

the proposition that where states choose to elect judicial officers like other elected officials, those 

elections must be analyzed under Section 2 like elections for non-judicial officers.10

Moreover, it would be particularly ironic to restrict minority voters’ rights based on the 

number of eligible minority lawyers, since the pool of minority lawyers has been effectively limited 

by the State’s history of discrimination in denying African Americans the right to attend public law 

schools, even after such discrimination had been outlawed by the Supreme Court. Florida ex rel 

Hawkins v. Board o f Control o f Fla., 350 U.S. 413 (1956) (per curiam). The district court’s finding 

that "low black representation in the local bar is the result of causes not directly attributable to the 

State of Florida" because "all attorneys in the likely pool of candidates would have entered law 

school at least several years after official discrimination ended" reflects the district court’s 

indifference to historical and social reality. Slip Op. at 33. Such a conclusion ignores the obvious 

fact that the traditional exclusion of African Americans from state funded law schools has directly 

affected the number of eligible African American lawyers in the community, and ignores the 

relationship between the number of minority attorneys in the community and the ability to 

effectively prepare and recruit new African Americans into the profession.

B. The Role of Appointment in Assessing Minority Electoral Success

The court’s conclusion that African Americans have achieved minority electoral success,

,0Even using the district court’s logic, the appropriate comparison in races for legislative and 
other non-judicial officers would be to the percentage of minority population that meets the age 
and residency requirements that are often required of those non-judicial officers.

17



because some African Americans have been appointed as judges is illogical on its face. Obviously, 

one cannot make conclusions about electoral success based on the appointment of African 

American lawyers to the judiciary. No matter how many judges initially obtain office through 

appointment, Florida has chosen to elect its circuitwide and countywide judges. Under the Voting 

Rights Act, African American voters are entitled to equally participate in that electoral process. 

"Once a post is opened to the electorate . . .  it must be open in a way that allows racial groups to 

participate equally." Dillard v. Crenshaw County, 831 F.2d 246, 251 (11th Cir. 1987).

The largesse of an appointing executive in appointing African American lawyers cannot 

cleanse a discriminatory election scheme of its dilutive effect. Nor does the appointment of African 

American judges support minority electoral success.11

If the district court’s view were adopted, the letter and spirit of the Supreme Court’s 

decisions in Chisom v. Roemer and Houston Lawyers’ Association would be undermined because 

states and political subdivisions which elect judges could simply insulate discriminatory judicial 

election schemes from §2 by showing that appointment is the primary method by which judges in 

the relevant jurisdiction initially obtain office.

C. Plaintiffs’ Burden of Proof and the Salience of Socio-economic Disparities

The district court further erred in its conclusions regarding the salience of the socio­

economic disparities between African Americans and whites in the Fourth Judicial Circuit and 

Duval County. The district court found that African Americans in the relevant jurisdiction "have 

lower median incomes than whites, are more likely to have incomes below the poverty line, have

"As a matter of fact rather than supporting the district court’s argument it is particularly telling 
"that the current black circuit and county judges all obtained office initially by appointment." Slip 
Op. at 34.

18



lower rates of education, lower rates of car ownership, and are more likely to be unemployed." Slip 

Op. at 31. Plaintiffs also proved that African Americans continue to have lower election turnout 

rates than whites in the Fourth Judicial Circuit and Duval County. PX 13. Despite this 

uncontroverted evidence, the district court concludes that the socioeconomic condition of African 

Americans in the Fourth Judicial Circuit and Duval County does not hinder the ability of minority 

voters to participate effectively in the political process. Id. The district court’s conclusions with 

regard to the relevance of socioeconomic disparities is wrong as a matter of law and fact.

In accordance with Congress’ intent and the Supreme Court’s direction, "plaintiffs need not 

prove any further causal nexus between their disparate socio-economic status and the depressed 

level of political participation." S. Rep. at 29. The existence of the disparities along with the 

plaintiffs’ proof of depressed political participation constitutes sufficient proof that African 

Americans in the Fourth Judicial Circuit and Duval County "bear the effects of discrimination in 

such areas as education, employment and health, which hinder their ability to participate effectively 

in the political process." S. Rep. at 29. Even prior to the amendments of the Act, courts have 

historically adhered to the view that "inequality of access is an inference which flows from the 

existence of economic and educational inequalities." Kirksey v. Board o f Supervisors, 554 F.2d 139, 

145 (5th Cir. ) cert, denied, 434 U.S. 960 (1977).

The court also finds, despite the absence of any support in the record, that

"the costs of running for judicial office are not a significant barrier 
to prospective black candidates . . . because the costs of . . .  a 
judicial campaign (at least in the numerous unopposed elections) are 
small in comparison to most non-judicial elections . . . [and because] 
the filing fees for judicial candidates . . . can be avoided by a 
petition method . . .  or can be paid with funds obtained from local 
lawyers or other sources.

Slip Op. at 32. The court’s conclusion is insupportable first because it calculates the cost of running

19



a judicial campaign for incumbent judges, since they are the only candidates who benefit from 

"unopposed elections." The record clearly shows that white judges are principal and almost 

exclusive beneficiaries of incumbency. African American candidates, who seek to challenge 

incumbent judges obviously are not able to run judicial campaigns as cheaply as unopposed 

incumbents.12 Secondly, the court’s assertion that African Americans can avoid the filing fee by 

using the petition process ignores the obvious point that the geographic breadth of the circuitwide 

and countywide district (twice the size of Rhode Island, and over half the size of Rhode Island, 

respectively) affects the ability of poorly financed African American candidates to effectively 

campaign and present themselves to voters in the entire jurisdiction. Moreover, the simple 

statement that the filing fee of nearly $5,000 can be obtained from local lawyers or "other sources" 

reflects the court’s indifference towards the economic reality that African Americans in the Circuit 

and the County "are simply not as well off economically as whites." Slip Op. at 31. This Court has 

held that even though a filing fee may be waivable it still constitutes an "additional barrier to blacks 

who suffer economic discrimination." McMillan v. Escambia County, Fla., 748 F.2d at 1044 n. 16.

D. The State’s Interests in Maintaining the Current System

In Houston Lawyers’ Association v. Attorney General o f Texas, the Supreme Court clearly held 

that the state’s interest "is merely one factor to be considered in evaluating the totality of 

circumstances." Houston Lawyers’ Association, 115 L.Ed.2d at 387 (emphasis added). The state’s 

legitimate rationale for using a particular election structure may rebut a plaintiffs’ contention that

12The district court’s conclusion that the majority vote and numbered place features of circuit 
and county judicial elections do not enhance the dilutive nature of the election scheme because they 
serve to protect incumbents, slip op. at 29, constitutes a clear factual error. Obviously, features 
that serve almost exclusively to protect incumbents in an election scheme makes it more difficult 
for African American sponsored minority candidates to get elected. This Court has held that a 
majority vote requirement, and the use of head-to-head election contests weigh in favor of a finding 
of dilution. McMillan v. Escambia County, Fla., 748 F.2d at 1044.

20



the state’s use of the current election structure is tenuous, in accordance with Senate Factor No. 

9. To the extent the State’s interests are legitimate, but other factors in the totality of 

circumstances point to vote dilution, the state’s non-tenuous rationale for using aspects of the 

election scheme "simply affect[s] the remedy to which plaintiffs would be entitled." Westwego, 872 

F.2d at 1205 n.4.

In rebutting the plaintiffs’ tenuousness claim, the state may not merely assert that it has an 

interest in maintaining a particular election structure. Instead, it must prove that such a legitimate 

interest actually exists, and that its interest is served by the current election scheme. The mere 

rhetorical assertion, for example, that the state has an interest "in maintaining a link between a trial 

judge’s jurisdiction and the judge’s elective base," slip op. at 36, must be supported by factual 

evidence.

Although as a matter of law the district court appropriately weighed the state’s interests in 

the totality of circumstances, the court erroneously concluded that Florida has a legitimate interest 

in maintaining the at-large method of electing circuit and county judges in the Fourth Judicial 

Circuit and Duval County because the court’s conclusion was based on the unsupported assertions 

of the State. Plaintiffs’ witnesses, on the other hand, including a judge and an attorney now serving 

and practicing in a county in Mississippi where sub-districts for the election of trial judges was 

imposed in accordance with Martin v. Allain. 658 F.Supp. 1183 (S.D. Miss. 1987), testified that 

corruption and undue influence raised by the state of Florida as its rationale for using at-large 

judicial districts have not materialized in the Mississippi judicial sub-districts. TR. Vol. 5, pp. 16-53, 

45-51. The district court completely ignored this highly credible testimony.

The court also rejects the plaintiffs contention that a remedial approach such as cumulative 

or limited voting would not threaten the state’s purported interest in maintaining linkage stating 

that "proposed remedies are relevant only if a violation is proved." Slip Op. at 37 n.26. Yet the

21



court finds no contradiction in its one page discussion of the purported dangers of a "single-member 

subdistrict" remedy when it endorses the State’s interest in maintaining at-large elections.

The district court’s conclusions are clearly not supported by the record.

CONCLUSION

The district court made clearly erroneous findings of fact and law, and as such this Court should 

reverse the district court’s decision and remand this case for a review of the appropriate remedy.

22



Respectfully Submitted,

Charles Stephen Ralston 
Sherrilyn A. Ifill 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

September 18, 1992

23



CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of September, 1992, a 

true copy of the foregoing NAACP Legal Defense and Educational 
Fund, Inc. Amicus Brief was served upon counsel for all parties by 
depositing same in the United States mail, first class postage 
prepaid, addressed to the following:

Denise Prescod
400 East Monroe Street
Jacksonville, FL 32202
Frank R. Parker 
Roert McDuff 
Brenda Wright
Lawyers' Committee for Civil 

Rights Under Law 
1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005
Mitchell F. Dolin
Jeffrey S. Harleston
Covington & Burling
1201 Pennsylvania Avenue,N.W.
P.O. Box 7566
Washington, D.C. 20044
Mitchell Franks 
Akerman, Senterfitt, Eidson 

& Moffit
216 South Monroe Street 
Suite 400
Tallahassee, FL 32301

George L. Waas 
Frank Brown 
Dennis Dean
Assistant Attorney General 
Department of Legal Affairs 
The Capitol - Suite 1501 
Tallahassee, FL 32399-1050
Leonard S. Magid 
Assistant Counsel 
421 West Church Street 
Suite 715
Jacksonville, FL 32202