Stovall v. City of Cocoa, Florida Reply Brief of Appellants

    NO. 94-3453

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

CHARLES STOVALL, MARTHA RAY BETHEL,
REV. W.O. WELLS, JOANN STOVALL, and SYLVESTER WEAVER

Plaintiffs-Appellants,
vs.

CITY OF COCOA, FLORIDA; COCOA CITY COUNCIL; MICHAEL HILL, 
JOHN LEE BLUBAUGH, DAVE SALISBURY, RUDOLPH STONE, BRUCE TATE 
JR., and BETH DABROWSKI, In Their Official Capacities as 
Mayor, Council Members, and City Clerk Respectively.

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

REPLY BRIEF OF APPELLANTS

CRISTINA CORREIA 
FLORIDA RURAL LEGAL 
SERVICES, INC.

511 BEVERLY STREET 
TALLAHASSEE, FL 32301 (904) 222-5945
ELAINE R. JONES, 
Director-Counsel THEODORE M . SHAW 

JACQUELINE A. BERRIEN 
DAVID T. GOLDBERG 
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 
99 HUDSON STREET 
SUITE 1600
NEW YORK, N.Y. 10013 
(212) 219-1900
COUNSEL FOR APPELLANTS



TABLE OF CONTENTS

TABLE OF CONTENTS .................................................  i

TABLE OF AUTHORITIES...........................................  ii-iv

SUMMARY OF ARGUMENT...............................................  1_4

ARGUMENT ............................................................  4

I. The District Court's Refusal to Enter the Consent
Decree was Error........................................... 4_g

II. Supreme Court Precedent -- Including the Recent 
Decision in Miller v. Johnson -- Poses No Obstacle
to Approval of the Consent Decree. ..................... 6-13

III. The Proposed Consent Decree Would Withstand
Heightened Judicial Review............................ 13-20

IV. This Case Should Not be Remanded for Consideration
of the Issues Newly Raised by Appellees..............  20-21

CONCLUSION........................................................  21-22

1



19

17

11

1

4

20

15

im

5

9

6

6

16

1

TABLE OF AUTHORITIES

CASES

Armstrong v. Board of Directors,
616 F .2d 305 (7th Cir. 1980) ..............

Beer v. United States,
425 U.S. 130 (1976) .......................

Board of Trustees, Keene State College v. Sweeney, 
439 U.S. 24 (1978) .........................

Boos v. Barry,
485 U.S. 312 (1988) .......................

Carson v. American Brands, Inc.,
450 U.S. 79 (1981) .........................

Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .......................

Connor v. Finch,
431 U.S. 407 (1977) .......................

DeWitt v. Wilson,
856 F. Supp. 1409 (E.D. Cal. 1994),
aff'd in part, appeal dismissed in part, mem.,
132 L. Ed. 2d 876 (1995) ..................

Digital Equipment Corp. v. Desktop Direct, Inc.,
128 L. Ed. 2d 842 (1994) ..................

Edelman v. Jordan,
415 U.S. 651 (1974) .......................

Gaffney v. Cummings,
412 U.S. 735 (1975) .........................

Garza v. City of Los Angeles,
918 F .2d 763 (9th Cir. 1990) ..............

Growe v. Emison,
122 L. Ed. 2d 388 (1993) ..................

Holland v. Illinois,
493 U.S. 474 (1990) .......................

l i



Izaak Walton League of America v. Monroe County,
448 So. 2d 1170 (Fla. 3d Dist. Ct. App. 1 9 8 4 ) ................  5

Johnson v. De Grandy,
129 L. Ed. 2d 775 (1994) ...............................  13, 16

Johnson v. Miller,
864 F. Supp. 1354 (S.D. Ga. 1994),
aff'd 132 L. Ed 2d 762 (1995) .............................  14

Miller v. Johnson,
132 L. Ed. 2d 762 (1995) ...............................  passim

Powers v. Ohio,
499. U.S. 400 (1991) .........................................  6

Richmond v. J. A. Croson Co.,
488 U.S. 469 (1989) ...................................  13, 17

Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367 (1992) .................................  4, 16, 20

Salve Regina College v. Russell,
499 U.S. 225 (1991) .........................................  5

SCLC v. Sessions,
56 F.3d 1281 (11th Cir. 1995) (en banc) ..................... 15

Shaw v. Hunt,
861 F. Supp. 408 (E.D.N.C. 1994), prob. juris, noted,
132 L. Ed. 2d 878 (1995) .............................  3, 14, 17

Shaw v. Reno,
125 L. Ed. 2d 511 (1993) ...............................  passim

Strauder v. West Virginia,
100 U.S. 303, 308 (1880) .....................................  6

Swint v. Chambers County,
131 L. Ed. 2d 60 (1995) ...............................  2, 4-5

Tallahassee NAACP v. Leon County,
827 F .2d 1436 (11th Cir. 1987) .............................  15

Thornburg v. Gingles,
478 U.S. 36 (1986) .........................................  16

iii



Tully v. Griffin, Inc.,
429 U.S. 68 (1976)   9

United States v. Carver,
260 U.S. 482 (1923)   9-10

United States v. City of Alexandria,
614 F . 2d 1358 (5th Cir. 1980) ...............................  5

United States v. Hays,
132 L. Ed. 2d 635 (1995) ...................................  19

Voinovich v. Quilter,
122 L. Ed. 2d 500 (1993) .................................  3, 8

Wilson v. Eu,
1 Cal.4th 707, 823 P.2d 545 (Cal. 1992) ................... 10

Wise v. Lipscomb,
437 U.S. 535 (1978)   20

STATUTES

28 U.S.C. § 1292 (a) (1) .........................................  2,4

42 U.S.C. § 1973 ................................................ 2, 4

42 U.S.C. § 1 973c.................................................. 18

MISCELLANEOUS

Edward Still, Voluntary Constituencies:
Modified At-Large Voting as a Remedy for 
Minority Vote Dilution in Judicial Elections,
9 Yale L. & Pol'y Rev. 354 (1991) ......................... 15, is

IV



Summary of Argumpnh
The sole issue squarely presented in this appeal is whether the 

District Court erred in construing and applying Florida law to 

disqualify Rudolph Stone, an African-American member of the Cocoa, 

Florida City Council, from voting on a proposed settlement of this 

lawsuit involving the adoption of a new Council districting plan, one 

effect of which would be creation of a contiguous, compact majority 

African-American voting district. For the reasons set forth in our 

opening brief, the nullification of Councilman Stone's vote was 

manifestly wrong as a matter of Florida law. See Br. of Appellants at 

30-40. Even were that not the case, a state law that disqualified an 

African-American legislator from voting on such a districting proposal - 

- while allowing similarly "interested" white officeholders to cast 

votes -- would be an obvious affront to the Equal Protection Clause.

See, e.g., Holland v. Illinois, 493 U.S. 474, 484, n.2 (1990)

(exclusion of juror based on assumption that he is "partial simply 

because he is black" is unconstitutional) (internal quotation marks 

omitted); cf. Boos v. Barry, 485 U.S. 312, 333 (1988) ("[I]t is well

established that statutes should be construed to avoid constitutional 

questions if such a construction is fairly possible.")

Appellees, the City of Cocoa ("City") and members of its City 

Council, do not dispute the clarity of this legal error, and they do not 

ask this Court to affirm the lower court's judgment on that -- or any

1



other -- ground. See Br. of Appellees at 1. Accordingly, and because 

there is no other legal basis upon which the parties' settlement 

agreement was due to be disapproved, the judgment must be reversed and 

the case remanded to the District Court, with instruction that the 

settlement negotiated by the parties be entered as its decree.

The City's concession is clouded, however, by the unorthodox 

"invitation," id. at 2, issued in its brief. The City suggests that 

because the relationship between Voting Rights Act remedies and the 

Equal Protection analysis for challenges to redistricting expounded in 

Miller v. Johnson, 132 L. Ed. 2d 762 (1995), will need to be explored 

"at some time," Br. of Appellees at 1 n.2, this Court might do well to 

visit the issue in disposing of this (essentially uncontested) 

interlocutory appeal.

Even if this issue were properly before this Court, but see Swint 

v. Chambers County, 131 L. Ed. 2d 60, 74-75 (1995) (stressing limits on 

jurisdiction over matters pendent to federal interlocutory appeals), the 

City is wrong to suggest that serious constitutional issues are 

involved. As the City itself energetically argued (defending the 

settlement's constitutionality) less than a year ago, no court -- and 

"most importantly [not] the United States Supreme Court" R2-36-16 -- has 

yet treated as constitutionally suspect a redistricting plan containing 

a compact, majority-minority district, included in a mixed at- 

large/single-member district election plan created to replace an at-

2



large plan violative if Section 2 of the Voting Rights Act, 42 U.S.C. § 

1973. Miller has not changed that statistic. Far from suggesting that 

a switch from at-large elections to single-member districts (one or more 

of which is a majority-minority district) is suspect, Miller and other 

recent Supreme Court decisions reaffirm that such measures are 

constitutional -- and, under some circumstances, compelled by law. See 

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff'd in relevant 

part mem., 132 L. Ed. 2d 876 (1995) (majority-minority districts created 

to avoid possible Section 2 and Section 5 litigation are 

constitutional); Voinovich v. Quilter, 122 L. Ed. 2d 500,

513(1993)(states may create majority-minority districts even when not 

required by federal law); see also Shaw v. Hunt, 861 F. Supp. 408, 439 & 

n.24 (E.D.N.C. 1994) (in light of Supreme Court precedent, 

constitutionality of Section 2 "must be assumed by lower federal 

courts"), prob. juris, noted, 132 L. Ed. 2d 878 (1995).

Rather than warranting the City's dramatic reversal of course, 

Miller and its companion decisions stand for this more modest rule: when 

a State's ordinary political processes are cast aside and when the 

considerations that customarily guide the drawing of electoral maps are 

"subordinated to rac[e]," 132 L. Ed. 2d at 780 -- the resulting 

district(s) warrant close judicial scrutiny, and may be invalidated 

unless supported by a sufficiently compelling governmental justification 

and "narrowly tailored" to achieve that goal. Even if Miller could bear

3



the sweeping reading that the City seems to give it, any suggestion that 

resolving plaintiffs' Section 2 claims is not important enough or that 

this settlement agreement is insufficiently "narrowly tailored" to pass 

constitutional muster is plainly without merit. See infra pp. 13-21.

Because Miller does not suggest invalidation of the settlement 

plan -- under strict scrutiny or any other standard -- and because 

appellees give no other reason for further delay in holding them to the 

obligations negotiated at arm's length more than a year ago, cf. Rufo v. 

Inmates of Suffolk County Jail, 502 U.S. 367 (1992),1 the District 

Court's judgment must be reversed, and the parties' joint motion for 

entry of consent decree, granted.

I. The District Court's Refusal to Enter the Consent Decree Was Error.
The City does not contest this Court's jurisdiction, see 28 U.S.C.

§ 1292(a) (1); Carson v. American Brands, Inc., 450 U.S. 79 (1981),2 nor

2See 502 U.S. at 389 ("[W]e have no doubt that, to save themselves 

the time, expense, and inevitable risk of litigation, [governmental 

civil rights defendants] could settle the dispute over the proper remedy 

for the . . . violations . . . by undertaking to do more than the [law]

itself requires") (citations omitted).

2Although this Court has jurisdiction to correct the District 

Court's error, the City's suggestion that the Court venture a gloss on 

Miller is out of step with the Supreme Court's recent admonitions that 

federal Courts of Appeals take a narrow view of their authority to hear

4



does it defend the reasoning of the District Court. Br. of Appellees at 

1. Florida law3 did not compel Councilman Stone's abstention from the 

vote on the districting plan any more than it mandated recusal of his

cases before entry of final District Court judgment. See Chambers 

County, supra (Courts of Appeals have limited authority to decide 

matters "pendent" to claims properly presented on interlocutory appeal); 

Digital Equipment Corp. v. Desktop Direct, Inc., 128 L. Ed. 2d 842

(1994) .

In this Circuit, district court refusals to grant parties' joint 

motions to enter consent decrees are subject to de novo review, see 

United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980), 

reflecting, inter alia, the strong policy favoring consensual dispute 

settlement. Even under more deferential review standards, appellate 

courts retain undiminished authority to reverse discretionary judgments 

reflecting basic legal errors, see, e.g., Pappas v. FCC, 807 F.2d 1019, 

1023 (D.C. Cir. 1986).

3This Court owes the District Court's interpretation of state law 

no special deference, see Salve Regina College v. Russell, 499 U.S. 225, 

231 (1991), and the statute in question has, in any event, been 

authoritatively construed by the state Court of Appeals, as not 

requiring disqualification based on political, as against economic, 

interest. Izaak Walton League of America v. Monroe County, 448 So. 2d 

1170, 1173 n.8 (Fla. 3d Dist. Ct. App. 1984).

5



white counterparts, including those who opposed the measure and whose

(personal) electoral interests have been best served by perpetuation of 

the at-large voting scheme.4 If it were mandated by Florida law, such 

unequal treatment, accorded solely on the basis of a legislator's race, 

plainly would offend core Equal Protection principles. See, e.g.,

Powers v. Ohio. 499 U.S. 400, 408 (1991)("'The very fact that [members 

of a particular race] are singled out and expressly denied . . . all

right to participate in the administration of the law . . . because of

their color . . .  is practically a brand upon them, affixed by the 

law'") (quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880)).

See generally Br. of Appellants at 41-48.

II. Supreme Court Precedent -- Including the Recent Decision in Miller 
v. Johnson -- Poses No Obstacle to Approval of the Consent Decree

While effectively conceding that this Court should reverse the 

judgment of the District Court, Br. of Appellees at 1, the City 

nonetheless invites the Court to address the substance of the settlement

40f course, the practice of allowing incumbent legislators to 

participate in the districting process and even to create districts 

maximizing their prospects of being returned to office has been upheld 

repeatedly -- even where it has had the effect of freezing out groups 

that historically have been excluded from the electoral process. See, 

e.g., Gaffney v. Cummings, 412 U.S. 735, 752-54 (1973); but cf. Garza v. 

City of Los Angeles, 918 F.2d 763, 771 (1990) .

6



agreement, on the ground that the constitutionality of the remedy it 

adopts has been placed in jeopardy by the Miller decision. But the 

constitutional concerns the City invokes are chimerical, and they should 

not be permitted further to delay the relief to which plaintiff- 

appellants are entitled. The suggestion that Miller - -a decision aimed 

squarely at "extreme instances of gerrymandering," 132 L. Ed. 2d at 790 

(O'Connor, J., concurring) -- is a watershed ruling, which has pushed 

all majority-minority single-member districts, including those ordered 

by a court to remedy violations of the Voting Rights Act, to the verge 

of constitutional "oblivion," Br. of Appellees at 5, not only is more 

than the Supreme Court's carefully worded opinion can bear, but indeed 

is contradicted by it.

To begin with, Miller is explicit in acknowledging, as had Shaw v. 

Reno, 125 L. Ed. 2d 511 (1993), that the fact that race is taken into 

account in the districting process is not in itself sufficient to 

warrant strict judicial scrutiny. Miller, 132 L. Ed. 2d at 782 

( [W]hen members of a racial group live together in one community, a

reapportionment plan that concentrates members of the group in one 

district and excludes them from others may reflect wholly legitimate 

purposes’")(quoting Shaw, 125 L. Ed. 2d at 528); id. at 790 (O'Connor,

J., concurring) (Court's "standard does not throw into doubt" the 

constitutionality of most districts, including those where "race [was]

. . considered in the redistricting process"); Shaw, 125 L. Ed. 2d at

7



528 ("[R]ace consciousness does not lead inevitably" to invalidity).

What is constitutionally suspect -- and unconstitutional, absent 

strong justification -- the Court explained, is governmental action 

premised on the assumption that individual members of a racial minority 

can, in the absence of such shared cultural, socioeconomic, and 

geographic concerns, be conclusively presumed to "think [and vote] 

alike." Miller, 132 L. Ed. 2d at 776. Thus, it is not race- 

consciousness per se, but rather a government's "subordinat[ion]" id. at 

780, to racial considerations of attributes -- including contiguity, 

compactness, and congruence with political subdivision lines -- which it 

has customarily relied on to assure that a district's voters have common 

interests, that conveys the "stereotyp[e]"-laden message triggering 

strict scrutiny. See id. at 774 (residents of challenged district are 

"worlds apart in culture. . . [T]he social, political, and economic

makeup of the Eleventh District tells a tale of disparity, not 

community"),5

The Miller majority further emphasized that "[f]ederal court 

review of districting legislation represents a serious intrusion" on 

local autonomy and that such review must "be sensitive to the complex 

interplay of forces that enter a legislature's redistricting calculus."

5 See also id. at 781-82 ("The evidence was compelling that there 

are no tangible 'communities of interest' spanning the hundreds of miles 

of the Eleventh District.") (internal citations omitted).

8



132 L. Ed 2d at 779; see also Quilter, 122 L. Ed 2d at 513. Because a

normally functioning political process will ordinarily take race -- and 

other factors -- into account in redistricting,6 race consciousness 

alone does not suffice to dislodge the presumption of legality to which 

such political decisions are entitled. Miller, 132 L. Ed. 2d at 779.

The incremental character of the Miller decision was confirmed by 

the Court's decision in DeWitt v. Wilson, 132 L. Ed. 2d 876 (1995), 

aff'g mem., 856 F. Supp. 1409 (E.D. Cal. 1994), handed down the same day 

as Miller. The Supreme Court in DeWitt affirmed a three-judge court 

ruling that California's purposeful creation of majority-minority 

congressional districts did not violate the Equal Protection Clause.7

"See Shaw, 125 L. Ed. at 528 ("[T]he legislature always is aware of 

race when it draws district lines, just as it is aware of age, economic 

status, religious and political persuasion, and a variety of other 

demographic factors.")

7The Court specifically affirmed those parts of the district court 

judgment that had addressed the alleged racial gerrymander, while 

dismissing unrelated claims. See 132 L. Ed. 2d 876. Although summary 

affirmances may have less precedental force than do decisions arrived at 

after full briefing and argument, see Edelman v. Jordan, 415 U.S. 651,

671 (1974), such dispositions nonetheless are decisions on the merits 

and are "controlling precedent, unless and until re-examined by th[e] 

Court," Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); compare United

9



The district court in DeWitt ruled that strict constitutional scrutiny 

was inappropriate, observing that the State's redistricting plan had 

"properly looked at race, not as the sole criterion but as one of many 

factors to be considered" and had "evidence[d] a judicious and proper 

balancing of the many factors appropriate to districting." 856 F. Supp. 

at 1413. Significantly, in light of the ambitious reading of Miller 

advanced by the City, the decision affirmed by the Supreme Court: (1)

granted summary judgment for the defendant; (2) treated "bizarre" shape 

as the focal point, if not a necessary element, of the Equal Protection 

analysis; (3) upheld a plan whose authors had expressly stated that, at 

points, they had "subordinate[d]" traditional districting principles to 

the goal of creating majority-minority districts, see Appendix I, Wilson 

v. Eu, 1 Cal.4th 707, 770, 823 P.2d 545, 580 (Cal. 1992); and (4) upheld 

creation of such districts (as long as they were "functionally 

compact"), without requiring any finding of racially polarized voting, 

id. at 747-50, 823 P.2d at 565-66.B

Viewed against the backdrop of the DeWitt affirmance -- which is 8

States v. Carver, 260 U.S. 482, 490 (1923)(denial of certiorari "imports 

no expression upon the merits of the case").

8The DeWitt district court also ruled that if strict scrutiny were 

applied, the plan was narrowly tailored to serve the compelling interest 

of complying with the Voting Rights Act, and therefore constitutionally 

valid. See 856 F. Supp. at 1415.

10



fairly read as indicating that Miller has not "shed new light on the law

which, had it been available at the time of the [lower court] decision, 

might have led to a different result";9 appellees' own adamant 

insistence before the District Court that Shaw v. Reno did not cast 

doubt on the constitutionality of the settlement; and the confirmation 

by Justice O'Connor (the author of Shaw and a member of the Miller 

majority) that the Miller decision had adhered to Shaw's "basic 

objective," 132 L. Ed. 2d at 790 (O'Connor, J., concurring), the City's 

suggestion of a seismic shift in the legal landscape is especially 

implausible.

In evaluating the City's argument, finally, attention must be 

given not only to what the majority said in Miller, but what it did not 

say. Nowhere in the Court's opinion is any suggestion that a decision 

to switch from an at-large system to a mixed single-member/at-large 

electoral plan (including one majority-minority district) in response to 

evidence that the former system operated to dilute minority votes, is in 

itself constitutionally suspect. By its terms, Miller addresses only 

the drawing of district lines in a pre-existing single-member district 

system, and Shaw describes its "analytically distinct," 125 L. Ed. 2d at 

532, Fourteenth Amendment violation as the "deliberate and arbitrary

9Board of Trustees, Keene State College v. Sweeney, 439 U.S. 24, 26 

(1978) (Stevens, J., dissenting) (standard governing whether to vacate 

lower court decision for reconsideration).

11



distortion of district boundaries," 125 L. Ed. 2d at 524 (citation 

omitted)(again, in the context of revising a single-member plan); see 

also Miller at 790 (O'Connor, J., concurring)(courts must police for 

"extreme instances of gerrymandering"). Thus, the various Shaw and 

Miller opinions identify the contested terrain as concerning the 

circumstances under which it is constitutionally permissible to create 

a "bizarrely" shaped majority-minority district, or one for which 

customary boundary-drawing rules were disregarded. But the conscious 

creation of compact, contiguous majority-minority districts which 

respect existing political subdivision boundaries has not been 

questioned, and, a fortiori, no constitutional issue arises when, as 

here, a governmental body creates such a district, in replacing an 

existing electoral system which impermissibly dilutes the voting 

strength of a politically cohesive minority.

Strong reasons exist for the distinction between drawing a plan to 

remedy the illegal effects of an at-large election system and the sort 

of line-drawing at issue in Miller. As the Supreme Court has stressed, 

minority vote dilution through submergence in multimember districts is 

both easier to prove and arguably worse -- for eliminating minority 

political opportunity -- than is dilution via boundary-drawing, the 

effects of which tend to be incremental reductions in voting strength; 

see Growe v. Emison, 122 L. Ed. 2d 388, 404 (1993) ("multimember 

districting plans. . . generally pose greater threats to minority voter

12



participation in the political process than do single-member 

districts"); Johnson v. De Grandy, 129 L. Ed. 2d 775, 791 n.10 (1994)

("challenges to multimember districts are likely to be the easier 

plaintiffs' cases"); cf. Connor v. Finch, 431 U.S. 407, 415 (1977)

("[S]ingle-member districts are to be preferred in . . .[court ordered

plans] unless [a] court can articulate a 'singular combination of unique 

factors' that justifies a different result.") (citation omitted).

III. The Proposed Consent Decree Would Withstand Heightened Judicial 
Review.

The City finally suggests that denial of entry of consent judgment 

may be appropriate because the electoral procedures to which it 

previously agreed could not survive constitutional "strict scrutiny." 

That is not so. As the foregoing makes clear, the plan is in no way the 

sort of "extreme instance[] of gerrymandering," Miller, 132 L. Ed. 2d at 

790 (O'Connor, J. concurring), that the Supreme Court has held warrants 

close judicial review, see supra, pp. 6-13; see also Richmond v. J. A. 

Croson Co., 488 U.S. 469, 493 (1989) ("purpose of [exacting] judicial 

review" is to "'smoke out illegitimate uses of race," i.e., to determine 

which actions "are 'benign' or 'remedial' and [which] . . . are in fact

motivated by illegitimate notions of racial inferiority or simple racial 

politics"). But even if heightened scrutiny were applicable, the 

approach the City suggests is without precedent in the case law 

governing the meaning of the strict scrutiny standard or the substance

13



of federal voting rights guarantees.

Significantly, the City does not contest that the first of the two 

prongs of the "strict scrutiny" formula has been satisfied: compliance 

with Section 2 of the Voting Rights Act, as appellees forthrightly 

acknowledge, supplies a "compelling" justification for remedial measures 

of the sort contained in the settlement agreement. Appellees' Br. at 

17; see also DeWitt v. Wilson, 856 F. Supp. at 1415; cf. Johnson v. 

Miller, 864 F. Supp. 1354, 1382 & n.31 (S.D. Ga. 1994) (compliance with 

Voting Rights Act, as properly interpreted, is a compelling interest), 

aff'd 132 L. Ed 2d 762 (1995) .

Instead, it is the second specification, "narrow tailoring," that 

appellees suggest is offended by the plan embodied in the settlement 

agreement. The City's theory is not that more majority-minority 

districts have been created than necessary to achieve the (admittedly 

compelling) remedial objective, nor that any particular district was 

created in a fashion that was more race-conscious than necessary, cf. 

Shaw v. Hunt, 861 F. Supp. at 446; nor is it that the agreed-to 

majority-minority district is unduly oddly shaped or disrespectful of 

existing political boundaries (it concededly is not). The plan's 

constitutional defect, the City submits, inheres in the initial choice 

of single-member districts (including the proposed majority-minority 

district), when alternative electoral structures, such as limited or 

cumulative voting could also have redressed minority exclusion from the

14



political process.10

This argument is problematic, however, for several reasons.

First, to the extent the Supreme Court has addressed the matter, it has 

stated the nearly directly opposite rule: a "strong preference for 

single-member districting," Connor v. Finch, 431 U.S. 407, 415 (1977);

accord SCLC v. Sessions, 56 F.3d 1281, 1296 n.24 (11th Cir. 1995) (en 

banc); Tallahassee NAACP v. Leon County, 827 F.2d 1436, 1438 (11th Cir. 

1987) ("Generally, single[-]member districts are viewed as providing . .

. an optimal remedy"). The City's proposal, in effect a rule of per se 

invalidity for single-member districts,11 also cannot be squared with the

10Limited and cumulative voting systems involve varying the number 

of votes that any individual casts in an at-large election (or the way 

those votes are tabulated), in a manner that makes bloc voting by a 

majority less likely to completely deny a minority representation. See 

generally Edward Still, Voluntary Constituencies: Modified At-Large 

Voting as a Remedy for Minority Vote Dilution in Judicial Elections, 9 

Yale L. & Pol'y Rev. 354 (1991) (explaining operation of limited and 

cumulative voting).

“If a districting plan designed by a governmental defendant to 

serve the admittedly "compelling" purpose of compliance with the Voting 

Rights Act, Br. of Appellees at 17, and conceded to be compact, 

contiguous, and faithful to existing political subdivision boundaries, 

see R2-36-2-4, 15, is infirm, it is hard to conceive of a single-member

15



teaching of Miller, see 132 L. Ed. 2d at 790 (O'Connor, J., 

concurring)(standard does not throw into doubt the "vast majority" of 

single-member districts). In addition, since it was the City itself 

that elected to adopt the mixed at-large/single-member district system, 

in lieu of either limited or cumulative voting, its recently advanced 

arguments conflict with the legal principles governing voluntarily 

settlement, see Rufo, 502 U.S. at 389, and contradict the position 

zealously pressed by the City at earlier stages of this litigation.

Indeed, the City's arguments prove too much. Were limited and 

cumulative voting plans mandated remedies under the Constitution and 

Section 2, there would be no reason for the threshold showing required 

by Thornburg v. Gingles, 478 U.S. 36 (1986).12 The Supreme Court, 

however, has given no indication that it wishes to abandon the Gingles 

framework. See, e.g., Growe v. Emison, supra (extending Gingles test to 

challenges to single-member district in case decided same Term as Shaw); 

De Grandy, supra (applying Gingles test in post-Shaw case).

The City also errs in its suggestion that the "narrow tailoring"

plan that could pass muster under the City's version of "narrow 

tailoring."

12The first Gingles factor is "demonstrat[ion] that . . . [the 

minority group] is sufficiently large and geographically compact to 

constitute a majority in a single-member district." 478 U.S. at 50 

(emphasis supplied).

16



inquiry is properly confined to consideration of alternatives, compare

Shaw v. Hunt, 861 F. Supp. 408, 445-46 & n.37 (E.D.N.C. 1994) (adapting 

five factors from Supreme Court affirmative action jurisprudence) and in 

its identification of the basis for comparison among them. In essence, 

appellees suggest that cumulative and limited voting are more "narrow" 

because they are less race-conscious than the drawing of district lines. 

But that argument can succeed only if "race consciousness" and 

invidiousness could be treated as interchangeable, an equation 

repeatedly rejected by the Court, see Shaw, 125 L. Ed 2d at 528 (race­

conscious governmental action may be "wholly legitimate"); id. at 525 

(plaintiffs are "wise" to concede "that race-conscious redistricting is 

not always unconstitutional")(citation omitted); Croson, 488 U.S. at 493 

(race conscious governmental action is potentially "benign").13 Nor 

should that point, which was affirmed in Miller, see 132 L. Ed. 2d at 

790 (O'Connor, J., concurring), be unfamiliar to appellees: it was the 

central thrust of the City's submission to the District Court. See, 

e.g., R2-36-13 ("'Race consciousness' does not always constitute

13Indeed, compliance with the "nonretrogression" principle of 

Section 5, 42 U.S.C. § 1973c, see Beer v United States, 425 U.S. 130, 

141 (1976) -- which received strong endorsement in Miller, see 132 L. 

Ed. 2d at 784 -- would be impossible if intentional creation of 

majority-minority districts were unconstitutional per se.

17



impermissible discrimination. . . . Shaw does not outlaw race

consciousness in all circumstances nor does it outlaw 'the creation of 

majority-minority districts, without more.'") (quoting Shaw, 125 L. Ed 

2d at 530). To be sure, there may be real differences between 

cumulative or limited voting and traditional districting practices, but 

"narrow tailoring" is not one of them.14

Because there is no constitutionally relevant difference between 

the voting system that the City agreed to a year ago and the one it now

14Among the benefits claimed for cumulative voting are that it 

allows geographically dispersed minorities whose interests have been 

frustrated by polarized voting to participate meaningfully in the 

process, while also assuring that the votes of relatively compact 

minorities are not "wasted" by their being "packed" in a single, 

overwhelmingly minority district. Among the disadvantages cited are the 

asserted difficulty that voters have in understanding the unfamiliar 

system, the possibility of greater ideological fragmentation, and the 

arguably negative effect on governance of forcing incumbent 

officeholders to perceive each other as political rivals. Alternative 

voting systems, meanwhile, retain the principal merits and demerits of 

traditional at-large voting: officeholders must answer to the entire 

electorate, but they are also further removed from any individual 

constituent than are those who represent a single district. See Still, 

supra n .10.

18



suggests, the voting rights jurisprudence makes plain that the judiciary 

must review the choice freely made by a defendant jurisdiction 

deferentially, see, e.g., Wise v. Lipscomb, 437 U.S. 535, 540 (1978),15

and Miller hardly counsels less restraint. On the contrary, the Miller 

opinion instructs the federal judiciary to proceed with "extraordinary 

caution," 132 L. Ed. 2d at 779 -- both in permitting these challenges to 

go forward and in ruling on their merits, mindful of its limited 

competence to resolve the sorts of political questions that arise in 

reapportionment and of the federalism costs of court intrusion into an 

area for which the Constitution allocates primary responsibility to the 

States. Id. at 780.

This case is peculiar, of course, in one further respect. The 

party claiming insufficient narrow tailoring is the same party that 

conceived of the plan in question, moved for its entry as the Court's 

judgment and defended it against constitutional challenge. Cf. United 

States v. Hays, 132 L. Ed. 2d 635 (1995)(plaintiffs from outside 

challenged district lack standing to bring Equal Protection claim). 

Although settlement agreements can be modified to accommodate dramatic

15In a case where the Act has been held to have been violated, the 

district court has an independent obligation to assure that the remedy 

is effective, although a plan agreed to by the parties at the remedy 

stage would be entitled to great deference. See, e.g., Armstrong v.

Board of Directors, 616 F.2d 305, 313-27 (7th Cir. 1980).

19



and unforeseen developments, the Supreme Court has stressed that parties 

are not entitled to modification whenever any new decision is handed 

down, lest incentives to pursue voluntary settlement of civil rights 

litigation be completely undermined. See generally Rufo, 502 U.S. at 

391.

IV. This Case Should Not be Remanded for Consideration of the Issues 
Newly Raised by Appellees.

It is neither necessary nor appropriate, finally, to allow the 

City to make these arguments to the District Court on remand. As the 

Supreme Court's June 29, 1995 decisions make clear, federal courts must 

be vigilant in weeding out at the early stages of litigation districting 

challenges which have little chance of meeting the "demanding standard," 

Miller, 132 L. Ed 2d at 790 (O'Connor, J., concurring), for claims of 

unconstitutional racial gerrymandering, id. at 780 (citing Celotex Corp. 

v. Catrett, 477 U.S. 317, 327 (1986)); see also DeWitt, supra (affirming 

grant of summary judgment for defendants).

Here, the City did not merely forego the opportunity to present 

these arguments about the constitutionality of the plan (which, of 

course, it had drafted and agreed to) to the District Court: It

aggressively defended the plan's continued legality under Shaw v. Reno, 

and conceded, inter alia: that the proposed majority-minority district 

is compact and contiguous, R2-36-2-3, follows longstanding political 

lines, R2-36-15, and was not drawn "solely" for racial reasons, R2-35-

20



App. p. 2; that African-Americans in Cocoa are politically cohesive, R2-

36-4; and that the plan drawn serves the "compelling" governmental 

interest in remedying electoral discrimination, Br. of Appellees at 17.

Encouraging further District Court proceedings on so weak a claim 

would do an injustice to plaintiff-appellants, who negotiated in good 

faith with the City, who have upheld their end of the bargain, and who 

continue to be prejudiced by denial of their rights to equal 

participation in the political process.

Conclusion
The parties to this appeal do not disagree about the issue it 

presents, i.e., whether entry of the parties' settlement agreement would 

violate Florida law, nor do they disagree as to how that question must 

be answered: the District Court erred in construing the law, and its 

judgment cannot stand.

The City, however, seeks to obscure the fundamental simplicity of 

this case by inviting the Court to address constitutional questions, 

which -- appellees concede -- may or may not be at issue in the case. 

This gambit, which entails the City defendants' casting doubt on the 

constitutionality of their own actions and on the veracity of 

representations they freely made below, cannot succeed on its merits, 

and it promises only to further postpone the full and equal 

participation in the political process to which plaintiff-appellants are 

entitled under federal law and under the binding settlement negotiated 

by both parties. Appellees have conceded (and indeed argued vigorously

21



in defense of) the constitutionality, under Shaw v. Reno, of the 

proposed consent decree, and neither the Court's recent decision in 

Miller nor its summary affirmance in DeWitt v. Wilson gives any 

indication that the parties' proposed change from an at-large election 

system to a mixed at-large/single-member district plan, in order to 

remedy minority vote dilution, is now constitutionally suspect. 

Accordingly, plaintiff-appellants respectfully request that this Court 

reverse the judgment of the District Court, with instructions to enter 

the proposed consent decree.

Respectfully submitted,

CRISTINA CORREIA 
FLORIDA RURAL LEGAL 

SERVICES, INC.
511 BEVERLY STREET 
TALLAHASSEE, FL 32301 
(904) 222-5945

ELAINE R . JONES, 
Director-Counsel

()uaa2s---
THEODORE M . SHAW 
/JACQUELINE A. BERRIEN 
DAVID T . GOLDBERG 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.
99 HUDSON STREET 
SUITE 1600
NEW YORK, N.Y. 10013 
(212) 219-1900

22



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing 

Reply Brief of Appellants was served by United States Mail, postage 

prepaid, upon:

Bradly R. Bettin, Sr., Esq.
Amari, Theriac, & Eisenmenger, P.A. 
96 Willard Street, Suite 302 
Cocoa, Florida 32922.

This 24th day of August, 1995.