Escambia County, FL v. McMillan Jurisdictional Statement
Public Court Documents
January 1, 1982
Cite this item
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Brief Collection, LDF Court Filings. Escambia County, FL v. McMillan Jurisdictional Statement, 1982. befe57ff-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f3560338-6423-4d10-9a26-b11d7368b70e/escambia-county-fl-v-mcmillan-jurisdictional-statement. Accessed May 03, 2025.
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No.
IN THE
Supreme Court of the United States
October Term, 1982
ESCAMBIA COUNTY, FLORIDA, et al.,
Appellants,
v.
HENRY T. McMILLAN, et al.,
Appellees.
APPEAL FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
JURISDICTIONAL STATEMENT
CHARLES S. RHYNE
Counsel o f Record
THOMAS D. SILVERSTEIN
Rhyne & Rhyne
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
PAULA G. DRUMMOND
28 West Government Street
Pensacola, Florida 32501
Attorneys for Appellants
THE C A S IL L A S PRESS, INC -1 7 1 7 1C Street. N W.-Washington, D. C .-223-1220
(i)
QUESTIONS PRESENTED
1. Whether an at-large election system required by a state
constitution violates the fourteenth amendment to the United
States Constitution where there is no evidence that the election
system was created or is being maintained for discriminatory
purposes.
2. Whether, following a decision holding unconstitutional
under the fourteenth amendment to the United States Constitu
tion an at-large election system required by a state constitution,
a court may impose a judicially-created election system rather
than allow the legislative body the opportunity to adopt a new
election system where the state constitution and statutes provide
the legislative body with expansive powers and do not prohibit it
from adopting, a remedial election system.
TABLE OF CONTENTS
QUESTIONS PRESENTED.................................................. i
TABLE OF CONTENTS ....................................................................iii
TABLE OF AUTHORITIES.............................. vi
OPINIONS BELOW ........................................................................ 2
JURISDICTION............................................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS............ 3
STATEMENT UNDER RULE 28.4(c)............................................. 3
STATEMENT OF THE CA SE........................................................ 3
I. Escambia County, F lorida....................... 3
II. Proceedings Below ..................... 6
THE QUESTIONS ARE SUBSTANTIAL.......................................17
I. An At-Large Election System Is Not Unconstitu
tional Per Se, and May Not Be Invalidated Where
There Is No Evidence Showing that the System Was
Created or Is Being Maintained for Discriminatory
Purposes..................................................................................... 17
A. The Court in Rogers Applied the Same Legal
Standard to the Finding of Discriminatory Intent
as the Plurality Applied in Bolden ................................... 18
B. There Is No Evidence that the At-Large Election
System Was Created or Is Being Maintained for
Discriminatory Purposes.................................................... 20
(iii)
Page
(iv)
II. The Imposition of a Court-Ordered System of Elec
tions To Remedy a Defect Found To Be Present in an
Existing Election System Is an Unwarranted In
trusion into a Legislative Function Where the
Legislative Body Has the Power, Following a Deci
sion Invalidating as Applied a State Constitutional
Provision Requiring At-Large Elections, To Adopt a
Remedy.......................................................................................26
CONCLUSION.................................................................................30
APPENDIX
A. Decision on Rehearing of the Fifth Circuit in Mc
Millan v. Escambia County, Florida, 688 F.2d 960
(5th Cir. 1982) ........................................................................... la
B. Related Decisions..................................................................... 30a
1. Decision of the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1239 (5th
Cir. 1981) ..................................................................... 30a
2. Decision of the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1249 (5th
Cir. 1981) ..................................................................... 52a
3. Memorandum Decision and Order of the United
States District Court for the Northern District
of Florida in McMillan v. Escambia County,
Florida, PCA No. 77-0432 (N.D. Fla. Dec.
3, 1979) ....................................................................... 54a
a. Memorandum Decision ........................................ 54a
b. Order ....................................................... 59a
4. Memorandum Decision of the United States
District Court for the Northern District of
Florida in McMillan v. Escambia County,
Florida, PCA No. 77-0432 (N.D. Fla., Sept.
24, 1979) ....................................................................... 66a
Page
(V)
5. Memorandum Decision and Judgment of the
United States District Court for the Northern
District of Florida in McMillan v. Escambia
County, Florida, PCA No. 77-0432 (N.D. Fla.
July 10, 1978) ................................................................ 71a
a. Memorandum Decision ........................................ 71a
b. Judgm ent.................................................... 114a
C. Judgment in and Order Denying Appellants’ Sugges
tion of Rehearing En Banc of McMillan v, Escambia
County, Florida, 688 F.2d 960 (5th Cir. 1982) ................... 116a
1. Judgment ......................................................................116a.
2. Order ..............................................................................H8a
D. Notice of Appeal of McMillan v. Escambia County,
Florida, 688 F.2d 960 (5th Cir. 1982)................................... 120a
E. Constitutional and Statutory Provisions.............................122a
1. U.S. Const, amend. XIV, § 1 .......................................122a
2. Fla. Const, art. VIII, § 1 .............................................. 123a
3. Selected Provisions of Fla. Stat. ch. 125 (1981) ........ 126a
Page
TABLE OF AUTHORITIES
Cases: PaSe
Brown v. Ohio,
342 U. S. 161 (1977)....................................................................... 29
Burns v. Richardson,
384 U.S. 73(1966)......................................................................... 29
Chapman v. Meier,
420 U.S. 1 (1975)........................................................................... 26
City o f Mobile, Alabama v. Bolden,
446 U. S. 55 (1980)...................................................................passim
Connor v. Finch,
431 U.S. 407 (1977)....................................................................... 26
Davis v. State ex rel. Cromwell,
156 Fla. 181,23 So.2d 85 (1945).................................................... 5
Ervin v. Richardson,
70 So.2d 585 (Fla. 1954)............................................................... 4
Garner v. Louisiana,
368 U. S. 157(1961)....................................................................... 25
Gurley v. Rhoden,
421 U. S. 200(1975)....................................................................... 25
Jenkins v. City o f Pensacola, Florida,
638 F.2d 1249 (5th Cir.), appeal and petition fo r cert,
dismissed,___ U. S____ , 102 S.Ct. 17 (1981)........................... 7
Jenkins v. City o f Pensacola, Florida,
PCA No. 77-0433 (N.D. Fla., July 10, 1978) ............................... 7
McMillan v. Escambia County, Florida,
Nos. 78-3507, 80-5011 (5th Cir. Nov. 23, 1982)............................ 17
McMillan v. Escambia County, Florida,
No. A-494 (U.S. Dec. 2, 1982)............
(Vi)
17
(vii)
McMillan v. Escambia County, Florida,
Nos. 78-3507, 80-5011 (5th Cir. Oct. 22, 1982)........................... 15
McMillan v. Escambia County, Florida,
688 F.2d 960 (5th Cir. 1982).................................................. passim
McMillan v. Escambia County, Florida,
638 F.2d 1249 (5th Cir. 1981).................................................... 2, 15
McMillan v. Escambia County, Florida,
638 F. 2d 1239 (5th Cir. 1981)................................................ passim
McMillan v. Escambia County, Florida,
638 F.2d 1239 (5th Cir.), appeal and petition for cert,
dismissed,___ U. S-------- 102 S. Ct. 17 (1981)........................... 7
McMillan v. Escambia County, Florida,
No. 78-3507 (5th Cir. Mar. 10, 1980) (Order)...............................13
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Feb. 15, 1980) (Order)................... 13
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979) (Order)...............passim
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979)
(Memorandum Decision).............................................. 2, 12, 16, 17
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. Sept. 24, 1979)
(Memorandum Decision)........................................................passim
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. July 10, 1978)
(Judgment)...................................................................................2,10
McMillan v. Escambia County, Florida,
PCA No. 77-0432 (N.D. Fla. July 10, 1978)
(Memorandum Decision)........................................................passim
Rogers v. Lodge,
___ U. S____ _ 102 S.Ct. 3272 (1982)...................................passim
Page
Speer v. Olson,
367 So.2d 207 (Fla. 1978).............................................................. 28
Whitcomb v. Chavis,
403 U. S. 124 (1971)................................................................ 18, 26
White v. Regester,
412 U. S. 755 (1973)................................................................ 18, 26
Wise v. Lipscomb,
437 U. S. 535 (1978)................................................................passim
Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973), a ffd on other grounds
sub nom. East Carroll Parish School Board v. Marshall,
424 U. S. 636 (1976)....................... ....................................... passim
Constitutional and Statutory Provisions:
U. S. Const, amend. X IV ..........................................................passim
U. S. Const, amend. X V ............................................................ 14, 16
Fla. Const, art. VI, § 1 ...... ............................................................... 5
Fla. Const, art. VIII, § 1 ..................................................................... 3
§ 1(e)........................................................................................passim
§ 1 ( 0 .............................................................................. 4, 27,28
Fla. Const, art. X I ...............................................................................21
28U.S.C. §451 (1976) ..................................................................... 2
28 U.S.C. § 1254(2)(1976)............................................................... 2
28 U.S.C. § 1331 (1976)................................................................... 2
28 U.S.C. § 1343 (1976)........................................................... 2
28 U.S.C. 2103 (1976)....................................................................... 2
(viii)
Page
Page
28 U. S. C. 2201 (1976).................................................... ................ 2
28 U.S.C. § 2202 (1976)................................................................... 2
28 U.S.C. § 2403(b) (1976)................................................ .............. 2
42 U.S.C. § 1973 (1976)................................................ .............. 6, 14
42 U.S.C. § 1973 (1976), as amended by Pub.
L. No. 97-205, 96 Stat. 131 (1982)....................................... 16
42 U.S.C. § 1973a (1976)............................................ .................... 13
42 U.S.C. § 1983 (1976).................................................................. 6
Fla. Stat. §99.032(1981) ............... ................................................. 4
Fla. Stat. § 99.092(1) (1981).............................................................. 5
Fla. Stat. § 99.095(1) (1981).............................................................. 5
Fla. Stat. § 100.061 (1981)................................................................ 5
Fla. Stat. § 100.091 (1981)....................................................... 5
Fla. Stat. § 124.01 (1981)............................................................ 15, 29
Fla. Stat. ch. 125(1981) ....................................................................... 3
§ 125.01 (1981) .......................................................................... 4,28
§ 125.60(1981)............................................................................... 21
1907 Fla. Laws, ch. 5697, § 1 ................................................................4
Miscellaneous:
Bureau of the Census, U.S. Dept, of Commerce,
PC80-1-A11, 1980 Census of Population-Florida
(1982)......................................................................................... 3, 26
(ix)
(X)
Page
Bureau of the Census, U.S. Dept, of Commerce,
PC80-1-B11, 1980 Census of Population-Florida
(1982) ......................................................................... .................. 4
Fed. R. Civ. P. 5 2 ....................................................................... 16, 19
Minutes of December 22, 1981 County Commission
Meeting.......................................................................................... 15
IN THE
Supreme Court of the United States
October Term, 1982
ESCAMBIA COUNTY, FLORIDA, et al.,
Appellants,
v.
HENRY T. McMILLAN, et al.,
Appellees.
APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
JU R ISD IC TIO N A L STATEM ENT
Appellants Escambia County, Florida (“Escambia”) and the
members of the Escambia Board of County Commissioners
(“County Commission”), 1 through counsel, submit this Juris- *
'The current members of the County Commission are John E.
Frenkel, Jr.; Billy G. Tennant; Kenneth J. Kelson; Gerald Woolard;
and Marvin Beck. The remaining parties to this action are: the Super
visor of Elections for Escambia, Joe Oldmixon, who is a defendant
but is no longer a party to this appeal; Henry T. McMillan, appellee;
Robert Crane, appellee; Charles L. Scott, appellee; William F. Max
well, appellee; Clifford Stokes, appellee; and the class of all black
citizens of Escambia, appellees. Appellants Woolard, Frenkel and
Tennant have been substituted for Charles Deese, Jack Kenney and
Zearl Lancaster respectively, who were members of the County Com
mission at the time the suit was brought. This suit also was brought
against the School District of Escambia, the Escambia School Board
and the members thereof. The School Board aspect of the case was
resolved, McMillan v. Escambia County, Fla., 638 F.2d 1239 (5th Cir.
1981), and was not part of the judgment from which this appeal has
been taken.
2
dictional Statement, and request the Court to note probable
jurisdiction of appellants’ appeal in the above-captioned action.
OPINIONS BELOW
The September 24, 1982 and February 19, 1981 decisions of
the United States Court of Appeals for the Fifth Circuit in
McMillan v. Escambia County, Florida are reported at 688 F.2d
960; 638 F.2d 1249; and 638 F.2d 1239, and are reprinted in Ap
pendix A at la and Appendix B at 52a and 30a respectively. The
December 3, 1979 Memorandum Decision and Order, the
September 24, 1979 Memorandum Decision and the July 10,
1978 Memorandum Decision and Judgment of the United States
District Court for the Northern District of Florida are
unreported but are reprinted in Appendix B at 54a, 59a, 66a,
71a and 114a respectively.
JURISDICTION
Appellees brought this suit to challenge the at-large system of
electing members of the County Commission, which system is
required by Fla. Const, art. VIII, § 1(e), and alleged federal
jurisdiction under 28 U.S.C. § 1331, 1343, 2201, 2202 (1976).
The Fifth Circuit entered judgment on September 24, 1982,
and, on November 4, 1982, denied a suggestion of rehearing en
banc. (The Judgment and the order denying the suggestion of
rehearing are reprinted in Appendix C at 116a and 118a respec
tively.) On November 30, 1982, appellants filed with the United
States Court of Appeals for the Fifth Circuit a Notice of Appeal
to the Supreme Court of the United States. (The notice of ap
peal is reprinted in Appendix D at 120a.)
Pursuant to 28 U.S.C. § 1254(2) (1976), this Court has
jurisdiction over the instant appeal.2
2The Fifth Circuit held that the provision of Florida’s Constitution
requiring county commissions to be elected at-large, as applied to elec
tions for the County Commission, violates the fourteenth amendment
to the United States Constitution. The Fifth Circuit also upheld the
3
CONSTITUTIONAL AND STATUTORY PROVISIONS
The provisions of U.S. Const, amend. XIV; Fla. Const, art.
VIII, § 1; Fla. Stat. ch. 125 (1981), which are involved in this
case, are reprinted in Appendix E at 122a, 123a and 126a respec
tively.
STATEMENT UNDER RULE 28.4(c)
Because this suit draws into question the constitutionality of
Fla. Const, art. VIII § 1(e), 28 U.S.C. § 2403(b) (1976) may be
applicable. No Court of the United States, as defined by 28
U.S.C. § 451 (1976), has certified to the Attorney General for
the State of Florida, pursuant to 28 U.S.C. § 2403(b), the fact
that the constitutionality of the above state constitutional provi
sion has been drawn into question.
STATEMENT OF THE CASE3
I. Escambia County, Florida.
Escambia is a non-charter county4 comprising approximately
661 square miles5. According to the 1970 census, the population
relief the district court ordered, which, inter alia, imposed a judicially
created election system. In so doing, the Fifth Circuit interpreted
Florida’s Constitution as prohibiting the County Commission from
adopting a new election system to remedy defects found in the existing
system. It is appellants’ position that this Court s appellate jurisdiction
extends to all of the issues presented. See Rogers v. Lodge,----- U.S.
___ t 102 S.Ct. 3272 (1982). However, in the event that the Court
determines that any of the issues presented does not fall within the
Court’s appellate jurisdiction, and that, as a result, it may not con
sider the entire matter on appeal, appellants then would request, pur
suant to 28 U.S.C. § 2103 (1976), this jurisdictional statement to be
treated as a petition for a writ of certiorari.
3Except as otherwise noted, the facts set forth herein are those facts
in existence at the time of the trial — May, 1978.
“Pretrial stipulation, 1 F(3).
’Bureau of the Census, U.S. Dept, of Commerce, PC80-1-A11,
1980 Census of Population - Florida 8 (1982).
4
of Escambia was 205,334, of whom 40,362, or 19.7%, were
black.6
Pursuant to Fla. Const, art. VIII, § 1(e), non-charter coun
ties, such as Escambia, are governed by five-member boards of
county commissioners. County commissions have “such power
of self-government as is provided by general or special law,” and
“may enact, in a manner prescribed by general law, county or
dinances not inconsistent with general or special law . . . .”7
Florida law enumerates specific powers of county commissions,
but expressly provides that the power of county commissions to
carry on self-government is not restricted to the enumerated
powers.8
County commissioners are elected to four-year, staggered
terms.9 Candidates in the primary and general elections are elected
at-large, but run only from the district in which each resides.10
There is no majority vote requirement in the general election,
6Pretrial Stipulation, f F(l). The current population of Escambia is
approximately 233,794, of whom 45,945, or 19.7°7o, are black. Bureau
of the Census, U.S. Dept, of Commerce, PC80-1-B11, 1980 Census of
Population — Florida 15, 25 (1982).
7Fla. Const, art VIII,§ 1(0-
8Fla.Stat. § 125.01 (1981).
9Fla. Const, art. VIII, § 1(e).
'°Id.; Fla. Stat. § 99.032 (1981). The at-large system for general
elections was instituted in 1901. McMillan v. Escambia County, Fla.,
PCA No. 77-0432, typescript op. at 5 (N.D. Fla. July 10, 1978)
(Memorandum Decision) (except as otherwise indicated, further
references to the district court’s actions of July 10, 1978, are to the
Memorandum Decision). Previously, between 1868 and 1901, the
governor had appointed county commissioners. Id. at 4. By 1900
blacks had been disenfranchised, and in 1901, an amendment to the
Florida Constitution establishing at-large elections was ratified. Id. at
5.
The at-large system for primary elections was not established until
1954. Id. at 5-6. In 1907 a statute was enacted which provided for can
didates in the primaries to be elected from single-member districts.
1907 Fla. Laws, ch. 5697, § 1. In 1954 the Florida Supreme Court
struck down this statute as violative of Florida constitutional require-
5
but there is such a requirement in the primary elections.11
Since 1945, when the Florida Supreme Court held unconstitu
tional the white primary,* 12 there have been “no racially
designated legal restrictions on the ability of black citizens of
Escambia County to register, vote or campaign for the County
Commission . . . .”13 There also are no slating organizations.14
The percentage of eligible blacks who have registered is roughly
the same as the percentage of eligible whites, i.e., 66.9% of
eligible blacks and 69.7% of eligible whites;15 and blacks con
stitute 17% of the registered voters in Escambia.16
Blacks in Escambia are active in the Democratic Party. Ap
proximately forty percent (40%) of the Escambia Democratic
Committee is b lack .17 The Secretary-Treasurer of
the Democratic Executive Committee of Florida, William H.
Marshall, is black, as is the Treasurer of the Escambia
Democratic Executive Committee, John Reed, J r .18
ment of at-large elections. Ervin v. Richardson, 70 So.2d 585 (Fla.
1954). Due to that decision, subsequent primaries have been con
ducted under the at-large system.
"Fla. Const, art. VI, § 1(e); Fla. Stat. §§ 100.061, 100.091 (1981).
There is a filing fee for each candidate equivalent to three percent, and a
committee assessment of not more than two percent, of a county com
missioner’s annual salary. Fla. Stat. § 99.092(1) (1981). If, however, a
candidate is unable to afford these fees, he or she may gain ballot ac
cess by means of a petition signed by three percent of the registered
voters in the county from the candidate’s party. Id. § 99.095(1).
12Davis v. State ex rel. Cromwell, 156 Fla. 181, 23 So.2d 85 (1945).
"Pretrial Stipulation, 1 F(17).
'*Id. 1 F(18).
"Id. 1 F(l).
"McMillan v. Escambia County, Fla. PCA No. 77-0432, typescript
op. at 10 (N.D. Fla. July 10, 1978).
"Transcript, under separate cover, at 33-34 (testimony of William
H. Marshall, Secretary-Treasurer of the Democratic Executive Com
mittee of Florida).
18Id. at 17, 19. Mr. Marshall also had been the state committee-
person for the Escambia Democratic Executive Committee. Id. at 17.
6
The Democratic Party promotes equally black and white
Democratic candidates who run for office in Escambia. 19No
black has run for the County Commission since 1970.20 Between
1966 and 1970 three blacks ran for County Commission, but
none was elected.21 No other black has run for the County
Commission.22
II. Proceedings Below.
On March 18, 1977, the named appellees filed this class action
on behalf of themselves and all black citizens in Escambia
against Escambia, the members of the County Commission, in
their individual and official capacities, and the Supervisor of
Elections, in his individual and official capacity, alleging that
the at-large system, as designed and/or maintained, denies ap
pellees equal access to the political process leading to the
nomination and election to the County Commission in violation
of the first, thirteenth, fourteenth, and fifteenth amendments to
the Constitution and 42 U.S.C. §§ 1973, 1983 (1976).23 As
relief, appellees sought a declaratory judgment that the at-large
election system violates the aforementioned constitutional and
statutory provisions, an order enjoining appellants from
holding elections under the at-large system, an order imposing a
single-member district election system and an award of at
torneys’ fees and other costs.24 Between May 15, 1978, and May
25, 1978, a non-jury trial was held before the. Honorable
19Id. at 20.
20Pretrial Stipulation, If F(20).
21 Id. One candidate, John Reed, ran twice - once in 1966 and once
in 1970. Id.
22 Id.
23Compl. 11 II, IV, V(H).
24Compl. ad damnum clause.
7
Winston E. Arnow, and on July 10, 1978, the court entered a
Memorandum Decision and a Judgment in favor of appellees.25
In reaching its decision, the court based its analysis initially
on the criteria set forth by the Fifth Circuit in Zimmer v.
McKeithen26 for determining the existence of vote dilution (the
“Zimmer factors”).27 With respect to the primary Zimmer fac
tors, the court found that there are no slating organizations
which prevent blacks from participating in the election system,
that “active efforts are made to encourage” eligible blacks and
whites alike to register and to vote, that “there is no significant
difference between blacks and whites in that respect” and that
white candidates “actively seek” the support of blacks.28
25McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.Fla.
July 10, 1978). Trial of this action was consolidated with trial of
Jenkins v. City of Pensacola, Fla., PCA No. 77-0433 (N.D. Fla. July
10, 1978), which suit was filed on the same day as McMillan. Plaintiffs
in Jenkins made virtually the same allegations with respect to the Pen
sacola City Council as plaintiffs in McMillan made with respect to the
County Commission and the Escambia School Board. The court’s Ju
ly 10, 1978 Memorandum Decision held for plaintiffs in both the
McMillan and Jenkins suits. The Jenkins suit has been resolved,
Jenkins v. City of Pensacola, Fla., 638 F.2d 1249 (5th Cir. 1981), ap
peal and petition for cert, dismissed, ----- U .S .------ , 102 S.Ct. 17
(1981) (by stipulation of the parties); McMillan v. Escambia County,
Fla., 638 F.2d 1239 (1981), appeal and petition for cert, dismissed sub
nom. City of Pensacola, Fla. v. Jenkins,----- U.S------- - 102 S.Ct. 17
(1981) (by stipulation of the parties), and is not part of this appeal.
264 85 F.2d 1297 (5th Cir. 1973), a ffd on other grounds sub nom.
East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976).
27The Zimmer factors are divided into two categories - “primary
factors” and “enhancing factors”. The primary factors are: access of
the minority to the candidate selection process; responsiveness of the
elected officials to the interests of the minority; the tenuousness of the
state policy favoring at-large elections; and the effect of past
discrimination on the ability of the minority to participate in the elec
tion system. Id. at 1305. The enhancing factors are: the existence of
large districts; the presence of a majority vote requirement; the ex
istence of an anti-single shot voting provision and the absence of a
provision for candidates to run from geographic subdistricts. Id.
28McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 10, 15 (N.D. Fla. July 10, 1978).
8
However, the court concluded that blacks are denied access to
the election system because they “have run time and again, and
always lost,” and because there has been a pattern of racially
polarized voting.29 The court also found that County Commis
sioners were responsive to the needs of blacks,30 that the policy
underlying the requirement of at-large elections was tenuous31
and that past discrimination had caused racially polarized
voting, which, in turn, has had the effect of reducing the par
ticipation in government by blacks.32
With respect to the enhancing Zimmer factors, the court
acknowledged the existence of the residency requirement, the
majority vote requirement in the general election and the
absence of an anti-single shot voting provision.33 However, the
court observed that no one in recent history had won a general
election without a majority and that, even though there is no
anti-single shot voting provision, candidates run for numbered
places, which renders blacks unable to concentrate their votes in
a large field of candidates.34 The court also determined that
Escambia is “geographically large.”35 * Taken in the aggregate,
29Id. at 10-12.
3“Appellees did not contest appellants’ responsiveness in the follow
ing areas: water; sewers; traffic control; fire hydrants; mosquito con
trol; library services; ambulance service; garbage collection and
disposal; drainage planning; and housing and corrections. Pretrial
Stipulation, f F(22).
3 ‘This finding was based on the identical considerations as, and was
subsumed in, the court’s finding on intent. McMillan v. Escambia
County, Fla., PCA No. 77-0432, typescript op. at 16 (N.D.Fla. July
10, 1978). That finding is discussed at 9 infra.
22Id. at 15-18.
33M at 18. The court noted that there is a majority vote require
ment in the primaries. Id.
2Hd.
3 5 Id.
9
the court found the Zimmer factors to show a dilution of black
voting strength.36
Next, the court examine'd the issue of intent and concluded
that “no discriminatory intent can be found as a motivating fac
tor behind the 1901 amendment” to the Florida Constitution re
quiring at-large elections.37 However, the court reached a dif
ferent result as to the current maintenance of the at-large
system. Of primary importance to the court were the County
Commissioners’ responses to the recommendations of two
charter committees, appointed by the County Commission in
1975 and 1977, that county commissioners be elected from
single-member districts.38 The court observed that the County
Commissioners testified at trial that they did not include either
recommendation in the charter referendum because they believ
ed that commissioners elected at-large would be more respon
sive to the needs of Escambia, as a whole, than would commis
sioners from single-member districts.39 In addition, the court
noted that, in their post-trial memorandum, appellants
“admitted]” that the rejection of the single-member district
proposals reflected the Commissioners’ desire to retain their in
cumbency.40 Based on this evidence, the court determined that
the County Commissioners were responsible for retaining the
at-large system, and drew the “inference” that race motivated
the actions of the Commissioners.41
16Id. at 19.
31 Id. at 25.
38The committee appointed in 1975 proposed a seven-member coun
ty commission with five members to be elected from single-member
districts and two members to be elected at-large. Plaintiffs’ Post-Trial
Proposed Findings of Fact and Conclusions of Law at 23. The com
mittee appointed in 1977 proposed a five-member county commission
with all members to be elected from single-member districts. Id.
39McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 29 (N.D. Fla. July 10, 1978).
40Id. at 30.
4,Id. at 31.
10
In sum, the court concluded that the at-large system for elec
tion to the County Commission “effectively dilutes the votes of
black citizens” and “is being maintained at least in part for
discriminatory reasons.”42 As a result, the court held that the
system violates the fourteenth and fifteenth amendments to the
Constitution as well as 42 U.S.C. § 1973 (1976).43 As relief, the
court directed the parties to submit proposals to remedy the di
lution which the court found the exist.44
On August 9, 1978, appellants filed a Notice of Appeal of the
court’s July 10, 1978 decision. Thereafter, the County Commis
sion adopted, and submitted to the court, an ordinance reap
portioning the county commissioners’ districts and establishing
an election system, which, as amended, provided for a seven-
member county commission with five members to be elected
from single-member districts and two members to be elected
at-large.45 Appellees proposed a plan which reapportioned the
county commissioners’ districts differently from appellants’
plan and provided for a five-member county commission with
all commissioners to be elected from single-member districts.46
During this time, the people of Escambia again were consider
ing a change to a charter form of government, and, as a result,
the court postponed consideration of the remedy until the
proposed form of charter government became known.47 The
charter commission proposed, inter alia, a seven-member county
commission with five members to be elected from single
member districts and two members to be elected at-large; and
i2Id. at 32.
i2ld. at 32, 34.
44Id. at 38; McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 1 (July 10, 1978) (Judgment).
45Notice of Adoption of Ordinance Amending Election Plan, Ex
hibit.
46Plaintiffs’ Submission of Districting Plan for the County Com
mission and School Board at 1.
47McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1 (N.D. Fla. Sept. 24, 1979) (Memorandum Decision).
11
a referendum election on the charter was scheduled for
November 6, 1979.48
On September 24, 1979, the court issued a Memorandum
Decision giving tentative approval to the election system con
tained in the charter proposal.49 The court discussed the dif
ferences between appellants’ plan and the charter plan, and
observed that the two plans were “strikingly similar.”50 However,
based on its interpretation of Wise v. Lipscomb, 5' the court
disapproved appellants’ plan.52 The court reasoned that the
Florida Constitution prohibits any system of electing county
commissioners other than the at-large system which the court
already had held unconstitutional, and that the Florida Con
stitution provides the County Commission only with such
powers as the Florida Legislature provides by general or special
48/d. at 1-2.
49Id. at 5.
™Id. at 2.
5 >437 U.S. 535 (1978). The issue in Wise was whether a plan pro
viding for an election system with a mixture of single-member and at-
large districts, which the Dallas City Council had adopted in response
to a declaratory judgment that the existing at-large system was un
constitutional, was a judicially imposed or a legislatively enacted plan.
This determination was necessary because the Court previously had
indicated that when a court holds unconstitutional an existing election
system, it is held to a higher standard in fashioning a remedial election
system than is a legislature. Id. at 540-41 (White, J.). This higher stan
dard requires a court, absent special circumstances, to impose an elec
tion system comprised exclusively of single-member districts. Id.
52McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 3 (N.D. Fla. Sept. 24, 1979). In addition, the court in
dicated its disapproval of appellants’ plan because that plan would not
have resulted in blacks’ being represented in proportion to their
percentage of the population, but, rather, would have assured them of
only 14.3% of the seats on the county commission. Id. at 4-5. Even
though the charter proposal also would have resulted in the same pro
portion of representation for blacks, the court gave tentative proposal
to that plan because plaintiffs did not object to it. Id. at 5.
12
law.5 * 53 Therefore, the court held that, under Wise, the County
Commission lacked the power to adopt a remedial election
system, and that, in the event the charter proposal was rejected,
the plan the court would implement would be treated as a
judicially imposed plan, which only could provide for single
member districts.54
On November 6, 1979, the referendum was held, and the
voters rejected the charter proposal.55 On December 3,
1979, the Court issued a Memorandum Decision and an Order,
imposing its plan for elections to the County Commission.56
The plan which the court imposed provided for a five-member
county commission with all of the members to be elected from
single-member districts.57 The boundaries which the court im
posed were the same boundaries which appellees had proposed
and the court had adopted as the Escambia school board’s
districts.58 The court’s Order also provided that, following each
decennial census, the County Commission was to reapportion
the county commissioners’ districts to comply with the one-
person, one-vote requirement and the orders of the court.59
5iId. at 3.
5 4 Id.
55McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1 (N.D. Fla. Dec. 3, 1979) (Memorandum Decision).
56McMiIlan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. Dec. 3, 1979).
57McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 1-2 (N.D. Fla. Dec. 3, 1979) (Memorandum Decision),
McMillan v. Escambia County, Fla., PCA No. 77-0432, typescript op.
at 1 (N.D. Fla. Dec. 3, 1979) (Order).
58McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 1-2 (N.D. Fla. Dec. 3, 1979) (Memorandum Deci
sion); McMillan v. Escambia County, Fla., PCA No. 77-0432,
typescript op. at 1 (N.D. Fla. Dec. 3, 1979) (Order).
59McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 2 (N.D. Fla. Dec. 3, 1979) (Order).
13
Finally, pursuant to 42 U.S.C. § 1973a, the court retained
jurisdiction over the suit for a period of five years.60
On January 3, 1980, appellants filed a Notice of Appeal of
the court’s December 3, 1979 decision, and, on January 23,
1980, moved the district court for a stay pending appeal of elec
tions under the December 3 Order. On February 15, 1980, the
court denied the motion,61 and, on February 22, 1980, ap
pellants filed a Notice of Appeal of that Order. Also on
February 22, 1980, appellants moved the Fifth Circuit for a
stay pending appeal of the district court’s December 3 Order.
On March 10, 1980, the Fifth Circuit stayed the December 3
Order.62
On February 19, 1981, the Fifth Circuit rendered its decision
in McMillan v. Escambia County, Florida {McMillan 7)63
reversing that part of the district court’s July 10, 1978 decision
concerning the at-large election system of electing county com
missioners. In so doing, the court first agreed with the district
court’s finding that racial considerations were not a factor
behind the enactment of the 1901 amendment to the Florida
Constitution requiring at-large elections.64 However, the court
disagreed with the district court’s finding that appellants were
maintaining the at-large system for discriminatory purposes.
60Id. at 3.
61McMillan v. Escambia County, Fla., PCA No. 77-0432 (N.D.
Fla. Feb. 15, 1980) (Order).
62McMillan v. Escambia County, Fla., No. 78-3507 (5th Cir. Mar.
10, 1980) (Order). This Order also consolidated for oral argument and
disposition appellants’ earlier appeal of the district court’s July 10,
1978 Judgment, as well as the appeal of the district court’s July 10,
1978 Judgments with respect to the Escambia School Board and the
Pensacola City Council.
63638 F.2d 1239 (5th Cir. 1981). The Fifth Circuit affirmed those
parts of the district court’s decision concerning the election systems
for the Escambia School Board and the Pensacola City Council. Id.
6iId. at 1244.
14
The court reviewed the record, and “found no evidence of
racial motivation by the County Commissioners in retaining the
at-large system.”65 With respect to the expression by the Com
missioners of the desire to retain their incumbency, the court
reasoned that “the desire to retain one’s incumbency unaccom
panied by other evidence ought not to be equated with an intent
to discriminate against blacks qua blacks.”66 The court observed
that the Commissioners testified that ‘“good government’”
reasons, not race, motivated them to delete from the charter
referendum the proposals for single-member districts and that
appellees introduced no evidence to the contrary.67 The court
admonished that “[t]he trial judge, of course, was entitled not to
believe the commissioners’ testimony; in the absence of con
tradictory evidence, however, disbelief of that testimony is not
sufficient to support a contrary finding.”68 Because there was
no contradictory evidence, the Fifth Circuit held that “the
evidence falls short ‘of showing that the appellants ‘conceived
or operated [a] purposeful [device] to further racial dis
crimination.””69 Accordingly, the court reversed the portion of
the district court’s opinion invalidating the at-large system of
electing county commissioners.70
6 5 Id. at 1245.
66Id.
67Id. at 1244-45.
6SId. at 1245.
69Id. at 1245 (quoting City of Mobile, Ala. v. Bolden, 446 U.S. 55,
66 (1980) (quoting Whitcomb v. Chavis, 403 U.S. 124, 149 (1971))).
70The Fifth Circuit’s analysis and decision was based entirely on the
fourteenth amendment. The court rejected appellees’ claims under the
fifteenth amendment and 42 U.S.C. § 1973 (1976). The court reason
ed that in City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980), a
plurality of this Court held that section 1973 “has an effect no dif
ferent from that of the Fifteenth Amendment,” 446 U.S. at 61, and
that, even assuming section 1973 allowed a private right of action, ap
pellees could not succeed under that section unless they also could suc
ceed under the fifteenth amendment. 638 F.2d at 1242 n.8. The court
adopted the Bolden plurality’s view that the fifteenth amendment does
not apply to vote dilution claims. Id. at 1243 n. 9.
15
In a separate decision, McMillan v. Escambia County, Flo
rida (“McMillan II”),1' the court, based on its decision in
McMillan I, vacated the December 3, 1979 remedy the district
court had ordered.
Thereafter, on April 1, 1981, appellees filed a Petition for
Rehearing and a Suggestion of Rehearing En Banc. While the
petition and suggestion were pending, the 1980 census was pub
lished; and on December 22, 1981, the County Commission,
pursuant to Fla. Const, art. VIII, § 1(e); Fla. Stat. § 124.01
(1981), reapportioned the county commissioners’ districts.* 72 73 74 75
Also while the petition and suggestion were pending, this Court
received briefs, and heard argument in, Rogers v. Lodge.73 The
Fifth Circuit stayed consideration of appellees’ petition and sug
gestion pending the decision in Rogers, and, following that deci
sion, requested the parties to submit briefs on the effect of
Rogers. Without other briefing and without oral argument, on
September 24, 1982, the court granted appellees’ petition for
rehearing, and, based on Rogers, vacated its decision in
McMillan / concerning elections to the County Commission and
its decision in McMillan II, and substituted its decision in
McMillan v. Escambia County, Florida (“McMillan III”).14
The court first examined the impact of Rogers, and observed
that, in Rogers, the Court reaffirmed the holding of a majority
in City o f Mobile, Alabama v. Bolden75 that evidence of
discriminatory purpose is necessary to sustain a challenge to an
election system under the equal protection clause of the four
7'638 F.2d 1249 (5th Cir. 1981),
72Minutes of December 22, 1981 County Commission Meeting at
5-6.
73_ _ U.S. 102 S.Ct. 3272 (1982).
74688 F.2d 960 (5th Cir. 1982). On October 22, 1982, the court
denied appellees’ suggestion of en banc consideration. McMillan v.
Escambia County, Fla., Nos. 78-3507, 80-5011 (5th Cir. Oct. 22,
1982).
75446 U.S. 55 (1980).
16
teenth amendment.76 The court also determined that Rogers
gave greater weight to the Zimmer factors and, by applying the
“clearly erroneous” standard of Fed. R. Civ. P. 52 to findings of
discriminatory intent, greater deference to the findings by the
district court than had the Bolden plurality.77 In view of these
determinations and its determination that, consistent with
Rogers, the district court had not limited its inquiry to the Zim
mer factors, the court held that the district court had applied the
proper legal standard applicable to vote dilution cases.78
The court then reiterated the district court’s findings and con
cluded that, under Rogers, it could not “say the district court’s
finding of intent was clearly erroneous.”79 Therefore, the court
upheld the district court’s July 10, 1978 decision concerning
elections to the County Commission.
Because the court upheld the July 10, 1978 decision, it then
reviewed the district court’s December 3, 1979 remedy. The
court agreed with the district court’s analysis of the remedy
issue, held that the remedial plan ordered by the district court
was within that court’s discretion, and, accordingly, affirmed
the district court’s December 3, 1979 decision.80 Due to the
76McMillan III, 688 F.2d at 964.
11 Id. at 964-965.
76 Id. at 965. The court indicated that the district court had gone
beyond the Zimmer factors by looking into, and drawing an inference
from, the County Commission’s responses to the single-member
district proposals. Id.
79Id. at 965-69. The court did not address appellees’ arguments bas
ed on 42 U.S.C. § 1973 (1976), as amended by Pub. L. No. 97-205, 96
Stat. 131 (1982), because it had not afforded appellants the opportuni
ty to respond to those appellees’ arguments. Id. at 961 n. 2. The court
also did not address appellees’ fifteenth amendment claims. Id.
However, the court concluded that Rogers, which did not address
either the fifteenth amendment or section 1973, provided “no basis for
departing from the Bolden plurality’s analysis.” Id.
i0Id. at 969-73. Specifically, the court agreed with the distinction
the district court drew between this case and Wise v. Lipscomb. The
court reached this result by adopting the analysis of Justices White,
17
to the passage of time between the December 3, 1979 decision
and the decision in McMillan III, the Fifth Circuit remanded the
case to the district court with instructions to revise the schedul
ing terms of the remedial order.81
THE QUESTIONS ARE SUBSTANTIAL
I. An At-Large Election System Is Not Unconstitutional
Per Se, and May Not Be Invalidated Where There Is
No Evidence Showing that the System Was Created
or Is Being Maintained for Discriminatory Purposes.
The Fifth Circuit’s decision in McMillan III to vacate its deci
sion in McMillan I was premised entirely on its erroneous con
clusion that this Court’s decision in Rogers shows “a more
favorable view of the Zimmer factors and a greater deference to
the finding of the district court than the analysis of the Bolden
plurality.”82 Equally erroneous was the Fifth Circuit’s applica
tion of the standard which, in light of Rogers, it perceived as
governing challenges under the fourteenth amendment to at-
large election systems. The court did not digress from its finding
in McMillan I that there was no evidence to show that the at-
large system for election to the County Commission is being
maintained for a discriminatory purpose. Nevertheless, the
court upheld the district court’s decision that the at-large system
violates the fourteenth amendment.
joined in by Justice Stewart, rather than the analysis of Justice
Powell, joined in by Chief Justice Burger and Justices Blackmun and
Rehnquist, because, in the court’s view, the analysis of Justice White
controlled the outcome of the suit. Id. at 972. Based on this analysis,
the court concluded that the Florida Constitution limits the power of
the County Commission to the powers specifically authorized by state
law, which does not include the power to adopt a remedial election
system; thus the County Commission lacks the power to adopt such
a system. Id.
%'Id. at 973. The Fifth Circuit denied appellants’ motion for a stay
of mandate, McMillan v. Escambia County, Fla., Nos. 78-3507,
80-501 (5th Cir. Nov. 23, 1982), and Justice Powell denied appellants’
application for stay of judgment, McMillan v. Escambia County,
Fla., No. A-494 (U.S. Dec. 2, 1982).
S2Id. at 964.
18
To invalidate an at-large election system where there is no
evidence that the system was established or is maintained for
discriminatory purposes is tantamount to holding at-large elec
tion systems unconstitutional per se. This Court consistently has
refused to make such a holding,83 and the Fifth Circuit must not
be allowed to effect such a drastic change in constitutional law.
A. The Court in Rogers Applied the Same Legal
Standard to the Finding of Discriminatory Intent
as the Plurality Applied in Bolden.
In Bolden the plurality reiterated that an at-large election
system could violate the fourteenth amendment only if its “pur
pose were invidiously to minimize or cancel out the voting
potential of racial or ethnic minorities” and, that, therefore, “[a]
plaintiff must prove that the disputed plan was ‘conceived
or operated as [a] purposeful devicfe] to further racial . . .
discrimination.’”84 Consistent with this requirement, the plu
rality reasoned that while, “the presence of the indicia relied on
in Zimmer may afford some evidence of a discriminatory pur
pose, satisfaction of those criteria is not of itself sufficient proof
of such a purpose.”85 The majority opinion in Rogers sets
forth the same standard, and, because it is a majority opinion,
firmly establishes that standard as law.
In Rogers the Court also reiterated that at-large election
systems only “violate the Fourteenth Amendment if ‘conceived
or operated as purposeful devices to further racial . . .
discrimination’ by minimizing, cancelling out or diluting the
voting strength of racial elements in the voting population.”86 *
s}E.g., Rogers, 102 S.Ct. at 3275; White v. Regester, 412 U.S. 755,
765 (1973); Whitcomb v. Chavis, 403 U.S. 124, 142 (1971).
*4446 U.S. at 66 (quoting Whitcomb v. Chavis, 403 U.S. 124,
149-50 (1971)).
85/d. at 73.
86102 S.Ct. at 3275 (quoting Whitcomb v. Chavis, 403 U.S. 124,
149-50 (1971)).
19
The Court then discussed and rejected the argument that the
district court’s decision holding unconstitutional Burke
County’s at-large election system was infirm because the court
had relied on the Zimmer factors:
[Wjhile recognizing that the evidentiary factors iden
tified in Zimmer were to be considered, the District
Court was aware that it was ‘not limited in its deter
mination only to the Zimmer factors’ but could con
sider other relevant factors as well.87
For this reason, the Court concluded that the district court had
applied the proper legal standard.88
It is apparent, therefore, that the plurality opinion in Bolden
and the majority opinion in Rogers both adopted and applied
the identical legal standard. As a precondition to a court’s in
validating an at-large election system, both opinions require a
plaintiff to prove that the system was created or is maintained
for discriminatory purposes, and also provide that the proof
and findings may not be limited to the Zimmer factors.
With respect to the deference accorded the findings of a
district court, this Court in Rogers expressly held that, pursuant
to Fed.R.Civ. P.52, a district court’s findings concerning discri
minatory intent are not to be disturbed unless clearly
erroneous.89 Although the plurality in Bolden did not address
specifically this issue, there is no doubt, particularly in light of
the plurality’s lengthy discussion of the district court’s
findings,90 that it too applied the clearly erroneous standard.
The difference in outcomes between Rogers and Bolden is at
tributable solely to the facts of each case, including the failure
of the district court in Bolden to make findings beyond the Zim
mer factors, and not to the application of a different legal stan
61 Id. at 3278 (quoting district court opinion).
seId.
S9Id. at 3278-79.
90446 U.S. at 71-75.
20
dard. The Fifth Circuit, therefore, erred severely in concluding
that Rogers established a different legal standard from the
plurality opinion in Bolden and in basing the reversal of its opi
nion in McMillan I on that conclusion.
B. There Is No Evidence that the At-Large Elec
tion System Was Created or Is Being Main
tained for Discriminatory Purposes.
Of additional concern is the Fifth Circuit’s application of the
clearly erroneous standard to the findings of the district court
because, evidently, the court interpreted this standard as
precluding it absolutely from reversing the district court’s find
ing of discriminatory intent. This is most dramatically il
lustrated by the Fifth Circuit’s discussion of the district court’s
interpretation of the County Commission’s responses to the
charter committees’ proposals for single-member districts,
which the Fifth Circuit concluded was the one indication that
the district court had not limited its inquiry to the Zimmer fac
tors.91
In McMillan / the court reviewed the entire record, including
the Commissioners’ testimony that they rejected the portion of
the charter proposal providing for single-member district elec
tions for good government reasons and the indication in ap
pellants’ post-trial memorandum that the Commissioners’ ac
tions also were based on the desire to retain their incumbency,
and found “no evidence of racial motivation by the County
Commissioners in retaining the at-large system.”92 In reaching
this conclusion, the court emphasized that appellees had failed
to offer any “contradictory evidence.”93
The Court did not alter this finding in McMillan III. Indeed,
with respect to the element which was of greatest significance to
the district court — the Commissioners’ desire to retain their in
91 McMillan III, 688 F.2d at 965.
92638 F.2d at 1244-45.
93 Id. at 1245.
21
cumbency — the court specifically noted that “we do not depart
from our prior conclusion that desire to maintain one’s in
cumbency does not equal racially discriminatory intent.”94 If
. the Zimmer factors, alone, may not equal discriminatory intent,
and the only additional factor shows an absence of such intent,
then it must be clearly erroneous for a court to find that an elec
tion system is being maintained for discriminatory purposes.
The Fifth Circuit erred in so failing to hold.
An equally fundamental reason why the courts below were
precluded from finding discriminatory intent is that, irrespec
tive of appellants’ actions, appellants in no way could be respon
sible for the creation or maintenance of the at-large election
system. That system is, and always has been, required by the
Florida Constitution. Appellants played no role whatsoever in
the enactment of the constitutional provision; and any change
in that provision would require an amendment to Florida’s Con
stitution, a process over which appellants have no control.95
Appellees not only failed to name as parties those persons or en
tities arguably responsible, at least in part, for the creation and
maintenance of the constitutional requirement of at-large elec
tions, e.g., the State of Florida, the Governor of Florida or the
members of the Florida Legislature, but, more importantly, also
failed to offer evidence, and the courts failed to find, that this
constitutional provision is being maintained for discriminatory
purposes.96
Although Fla. Stat. § 125.60 (1981) allows a majority of the
qualified electors of a non-charter county to adopt a charter
which provides a system for electing county officials, on
November 6, 1979, the people of Escambia rejected a proposal
for a change to a charter government.97 That proposal, inter
94McMillan III, 688 F.2d at 969 n. 19.
95See Fla. Const, art. XI.
96In a letter to counsel dated August, 4, 1977, Judge Arnow, with-
explanation, rejected appellants’ argument that the State and the
Governor should have been joined as parties.
91See supra p. 10-12. Sixty-two (62) of Florida’s sixty-seven (67)
counties have remained non-charter counties.
22
alia, provided for a seven-member county commission with five
members to be elected from single-member districts and two
members to be elected at-large.98 Even assuming that the actions
of the people of Escambia may be attributable to appellants, no
evidence was introduced and no finding was made showing that
racial considerations were a factor in the people’s rejection of
the charter proposal.99
Accordingly, because appellants were and are not a factor
behind the creation and maintenance of the at-large system of
electing members of the County Commission, the inquiry
should not have focused on their actions. Under these cir
cumstances, the courts could not have found that appellants are
maintaining the at-large system for discriminatory reasons.
Even assuming, arguendo, that the inquiry should have
focused on the actions of appellants, and, further, that the
presence of an aggregate of the Zimmer factors, alone, were suf
ficient to sustain appellees’ claims,100 there still is no evidence
that race is a motivating factor behind the maintenance of the
at-large system. In examining this case under the Zimmer
analysis, one is struck immediately by the dramatic difference
between the facts herein and the facts of Rogers. With respect to
the primary Zimmer factors, there may be no doubt, first, that
9»Id.
"Although the County Commission previously had played a role in
the presentation for referendum of a charter proposal and had
stricken from the proposal the provision for county commissioners to
be elected from single-member districts, as the Fifth Circuit concluded
in McMillan I, the uncontroverted evidence established that race was
not a factor behind that decision. 638 F.2d at 1245. As discussed at 20
supra, the Fifth Circuit did not depart from this conclusion in
McMillan III.
'"Appellants already have shown, and the Fifth Circuit has agreed,
that race was not a consideration behind the one factor which the
Fifth Circuit determined to be a non-Zimmer factor, supra pp. 14,
20- 21 .
23
blacks are afforded full access to the candidate selection process
and to the entire elector process. Unlike Rogers, where blacks
were a “substantial majority” of the population but a “distinct
minority” of the registered voters,101 blacks in Escambia con
stitute approximately the same percentage of the registered
voters as they do percentage of the population.102 Indeed, the
district court found that “active efforts” are made to encourage
blacks to vote, and that eligible blacks and whites register at ap
proximately the same rate.103 The court also found that there
are no slating organizations which deny blacks access to the
election system, and that white candidates “actively seek” the
support of blacks.104 Apart from these findings, the record
reveals that blacks are active in the Democratic Party.105
Also unlike Rogers, there is no “overwhelming evidence of
bloc voting along racial lines”106 in elections for the County
Commission. Although the court found racial polarization of
voting, its finding was based almost exclusively on statistical
evidence presented by appellees.107 In view of the fact that only
three blacks have run for the County Commission, that
statistical evidence and the finding derived therefrom are, at
best, dubious. This is confirmed by appellees’ own expert, Dr.
Charles L. Cottrell, who, in testifying about appellees’ statistical
101102 S.Q . at 3279.
,02See supra p. 5.
l03McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 10 (N.D.Fla. July 10, 1978).
'MId. at 10, 15.
105 See supra pp. 5-6.
106Rogers, 102 S.Ct. at 3279.
107McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 12-15, 17-18 (N.D. Fla. July 10, 1978). The court also
found that the filing fee denies blacks access to the candidate selection
process. Id. at 10. However, in making this finding the court failed to
discuss the reasons underlying the filing fee or to recognize the fact
that, if a candidate is unable to afford the fee, he or she may gain
ballot access through a petition signed by only three percent of the
registered voters in the county from the candidate’s party, see supra
note 11.
24
evidence, expressed doubt that a finding could be made on
racial polarization in elections for the County Commission
because of the small number of blacks who had run for that of
fice.108 In view of the highly questionable nature of the
statistical evidence on polarization, and the absence of corro-
bating evidence, there was no basis for any finding other than
that blacks are able to participate fully in all aspects of the
political process.109 The district court clearly erred in finding
l08Transcript, under separate cover, at 30-31. There are additional
flaws in the method appellees used to determine the existence of racial
polarization. For example, such factors as incumbency and the
relative qualifications of the candidates were not taken into account.
Transcript at 307-338 (testimony of appellees’ expert, Dr. Glenn D.
Curry). Also, racial polarization could be found where a black wins an
election, if blacks only vote for the black candidate and whites also
vote for the black candidate but to a lesser extent. Id. at 333-38; Id.,
under separate cover, at 50-51 (testimony of appellants’ expert, Dr.
Manning J. Dauer).
109The majority of the statistical evidence and testimony concerning
the polarization issue, as well as the court’s discussion of that issue,
centered on elections for the Pensacola City Council and the Escam
bia School Board, McMillan v. Escambia County, Fla., PCA No.
77-0432, typescript op. at 12-15 (N.D. Fla. July 10, 1978). A larger
number of blacks had run for those offices than had run for the Coun
ty Commission. Accordingly, there may have been more of a basis for
the court’s findings of polarization in those elections than in elections
for the County Commission. It appears that the court’s finding of
polarizaton in elections for the County Commission was based more
on its interest in consistency than on the facts presented concerning
County Commission elections.
This observation is applicable generally to other findings the court
made. As reflected in the court’s July 10, 1978 opinion, the evidence
which was presented centered on the facts surrounding the creation
and maintenance of the systems for electing persons to Escambia
School Board and the Pensacola City Council, which have no bearing
on the creation and maintenance of the system of electing county com
missioners. In view of the absence of evidence of discriminatory intent
in the County Commission aspect of this suit, it is evident that the
district court did not review the facts, and make its finding of intent,
independently of its findings on the School Board and City Council
25
otherwise.110
As to the remaining primary Zimmer factors, even the district
court found the County Commission to be responsive to the
needs of Escambia’s black citizens, and race not to be a motivat
ing factor behind Florida’s adoption of the at-large election
system."1 Additionally, for the reasons discussed at 20-21
supra, race is not a factor behind the maintenance of the at-
large system.
Because none of the primary Zimmer factors is present, there
is nothing to be enhanced, and it should be unnecessary to
consider the enhancing Zimmer factors. Even if considered,
however, these factors add nothing to appellees’ case; and,
again, the facts are distinguishable from the facts in Rogers. In
Rogers there was a majority vote requirement, no requirement
that candidates run from geographic subdistricts and a finding
that the size of Burke County impaired the access of blacks to
the political process.112 In the instant suit the district court
recognized that there is no anti-single shot voting provision, no
majority vote requirement in the general election, and a require
ment that candidates reside in the district from which they
run.113 Although the court found Escambia to be geographical
ly large, the court offered no explanation of this finding, par
ticularly in the context of its impact on the ability of blacks to * 11
election systems. Rather, the court apparently applied the evidence
concerning those elections systems to support its finding that the at-
large system of electing county commissioners is being maintained for
a discriminatory purpose.
11 “Under Zimmer, the fact that blacks are able to participate fully in
the elector process obviates the need to discuss past discrimination.
" 'Id . at 15, 25. In Rogers the district court found that elected of
ficials in Burke County were unresponsive to the needs of blacks and
that the at-large election system had been subverted to invidious pur
poses. 102 S.Ct. at 3280.
112105 S.Ct. at 3274, 3280-81.
'"McMillan v. Escambia County, Fla., PCA No. 77-0432, type
script op. at 18 (N.D.Fla. July 10, 1978).
26
participate in the political process.114 That finding, therefore, is
meaningless.
In sum, an aggregate of the Zimmer factors fails to support
and, in fact contradicts, the district court’s finding, and the
Fifth Circuit’s affirmance, that the at-large system of elec
tions to the County Commission is being maintained for a
discriminatory purpose. All that appellees have been able to
show is that blacks have not been elected to the County Com
mission in proportion to their percentage of the population.
Such a showing, however, provides an insufficient basis for
striking down as violative of the fourteenth amendment an at-
large election system.115 This Court must not permit the Fifth
Circuit to rewrite constitutional law to allow an at-large election
system to be struck down where there is no evidence that it was
established or is being maintained for discriminatory purposes.
II. The Imposition of a Court-Ordered System of Elec
tions To Remedy a Defect Found To Be Present in an
Existing Election System Is an Unwarranted Intrusion
into a Legislative Function Where the Legislative
Body Has the Power, Following a Decision In
validating as Applied a State Constitutional Provision
Requiring At-Large Elections, To Adopt a Remedy.
This Court consistently has held that the adoption of an elec
tion system is a legislative, not a judicial, function.116 The
" 4Id. It is noteworthy that Escambia is geographically smaller than
a majority of counties in Florida. Of Florida’s sixty-seven (67) coun
ties, thirty-seven (37) are smaller than Escambia. Bureau of the Cen
sus, U.S. Dept, of Commerce, PC80-1-A11, 1980 Census of Popuia-
tion-Florida 8 (1982).
115Bolden, 446 U.S. at 666 (plurality opinion); White v. Regester,
412 U.S. 755, 765-66 (1973); Whitcomb v. Chavis, 403 U.S. 124,
149-50 (1971).
1 l6Wise v. Lipscomb, 437 U.S. 535, 539-40, 550 (1978); Connor v.
Finch, 431 U.S. 407, 414 (1977); Chapman v. Meier, 420 U.S. 1,26-27
(1975); see Burns v. Richardson, 384 U.S. 73, 89 (1966).
27
courts below disregarded this teaching, and, rather than con
sidering the election system the County Commission adopted
and proposed to the district court, imposed a court-ordered
system.
Underlying both courts’ decisions was their interpretation of
Fla. Const, art. VIII, § 1(f) and Wise v. Lipscomb. As noted at
16 n. 80 supra, the Fifth Circuit specifically concluded that the
opinion of Justice White controlled the outcome of Wise, and,
therefore, adopted its interpretation of Justice White’s analysis
as the governing standard for the instant suit."7 Of particular
significance was Justice White’s observation that there was no
state constitutional, statutory or judicial prohibition on the au
thority of the Dallas City Council to enact a new election system
where its existing system had been held unconstitutional.17 118 The
courts below concluded that, unlike Texas law, Fla. Const, art.
VIII, § 1(f) “expressly limits the legislative powers of the Coun
ty Commission to those specifically authorized by state law,”
which does not include authorization for a non-charter county
commission to adopt a remedial election system.119 Even assum
ing that the courts were correct in adopting Justice White’s
analysis, the most cursory reading of the Florida Constitution
and statutes conclusively establishes that the courts erred in
holding that the powers of non-charter county commissions are
limited to those enumerated by state law, and that, therefore,
Florida law prohibits the County Commission from enacting a
remedial election system.
The portion of Fla. Const, art. VIII, § 1(f) which governed
the courts’ holding is the language which provides: “Counties
1I7The district court indicated that it too adopted as controlling the
analysis of Justice White. See McMillan v. Escambia County, Fla.,
PCA No. 77-0432, typescript op. at 2-3 (N.D. Fla. Sept. 24, 1979).
118McMillan III, 688 F.2d at 972; accord McMillan v. Escambia
County, Fla., PCA No. 77-0432, typescript op. at 2 (N.D. Fla. Sept.
24, 1979).
119McMillan III, 688 F.2d at 972; accord McMillan v. Escambia
County, Fla., PCA No. 77-0432, typescript op. at 3 (N.D. Fla. Sept.
24, 1979).
28
not operating under county charters shall have such power of
self-government as is provided by general or special law.”120
Both courts, however, ignored the remaining portion of that
section, as well as the Florida statutes and a Florida Supreme
Court decision on the powers of non-charter county govern
ments. Specifically, Fla. Const, art. VIII, § 1(f) also provides
that “[t]he board of county commissioners of a county not
operating under a charter may enact . . . county ordinances not
inconsistent with general or special law.”121 Florida statute pro
vides: “The legislative and governing body of a county shall
have the power to carry on county government. To the extent
not inconsistent with general or special law, this power shall in
clude, but shall not be restricted to . . . .”122 As interpreted by
the Florida Supreme Court,
[t]his provision of the Florida Constitution [art. VIII,
§ 1(f)] also authorizes the board of county commis
sioners of such a county to enact ordinances in the
manner prescribed by Chapter 125, Florida Statutes,
which are not inconsistent with general law.
The intent of the legislature in enacting the recent
amendments to Chapter 125, Florida Statutes, was to
enlarge the powers o f counties through home rule to
govern themselves.
. . . Unless the legislature has preempted a par
ticular subject relating to county government by
either general or special law, the county governing
120Both courts quoted Fla. Const, art. VIII, § 1(f). The district
court, however, erroneously quoted this section as providing that “the
Escambia County Commission has ‘only such power of self govern
ment [sic] as is provided by general or special law.’” McMillan v.
Escambia County, Fla., PCA No. 77-0432, typescript op. at 3 (N.D.
Fla. Sept. 24, 1979) (emphasis added). This inaccurate quotation ap
parently was a major factor in the court’s erroneous decision.
12‘(Emphasis added).
122Fla Stat. § 125.01 (1981) (emphasis added).
29
body, by reason of this sentence [in Fla. Stat.
§ 125.01] has authority to act through the exercise of
home rule power.123
As is readily apparent, the powers of non-charter county
commissions are expansive. Florida has not attempted to
preempt the power of a non-charter county government to
adopt by ordinance a remedial election system following a deci
sion invalidating the State’s constitutional provision requir
ing at-large elections. Therefore, even under Justice White’s
analysis in Wise, 124 the County Commission had the power to
adopt by ordinance a remedial election system, and the Fifth
Circuit should not have upheld the district court’s intrusion
upon this power.125
l23Speer v. Olson, 367 So.2d 207-11 (Fla. 1978) (emphasis added).
The interpretation of state law by the highest court of a state is, of
course, binding on this Court and all other federal courts. E.g.,
Brown v. Ohio, 342 U.S. 161, 167 (1977); Gurley v. Rhoden, 421 U.S.
200, 208 (1975); Garner v. Louisiana, 368 U.S. 157, 169 (1961).
124Presumably, if the courts below had adopted the analysis in Wise
of Justice Powell, they would have upheld the election system the
County Commission adopted. That analysis was not dependent at all
on whether a legislative body “became imbued” with the power to
adopt an election system after the existing system was struck down.
437 U.S. at 548. Instead, Justice Powell focused on the fact that the
Dallas City Council had “exercised a legislative judgment, reflecting
the policy choices of the elected representatives of the people, rather
than the remedial directive of a federal court.” Id.
125The Fifth Circuit did not address specifically the issue of the
reapportionment of the county commissioners’ districts. However, the
December 3, 1979 Order which the court affirmed in McMillan III
provided for the immediate imposition of a court-ordered reappor
tionment plan and, thereafter, for the County Commission, following
each decennial census, to reapportion the county commissioners’
districts in accordance with the principle of one-person, one-vote and
the orders of the court. The arguments which appellants have made
with respect to the imposition by the courts of a judicially created elec
tion system would have applied even more forcefully with respect to
the imposition of the court-ordered reapportionment plan because the
Florida Constitution and statutes expressly provide county commis-
30
CONCLUSION
For the foregoing reasons, the questions are substantial, and
the Court should note probable jurisdiction.
Respectfully submitted,
CHARLES S. RHYNE
Counsel o f Record
THOMAS D. SILVERSTEIN
Rhyne & Rhyne
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
PAULA G. DRUMMOND
28 West Government Street
Pensacola, Florida 32501
Attorneys for Appellants * 15
sions with the power and duty to reapportion county commissioners’
districts. Fla. Const, art. VIII, § 1(e); Fla. Stat. § 124.01 (1981).
Due to the fact that, prior to the decision in McMillan III, the Com
merce Department published the 1980 census and that, as discussed at
15 supra, the County Commission reapportioned the county commis
sioners’ districts, the judicially created reapportionment plan set forth
in the December 3, 1979 Order will not be imposed. On remand the
district court is at present determining whether or not to implement
the County Commission’s December 22, 1981 reapportionment plan,
appellees’ proposed plan or the court’s proposed plan.
APPENDIX A
Decision on Rehearing of the Fifth Circuit in
McMillan v. Escambia County, Florida, 688
F.2d 960 (5th Cir. 1982).
Henry T. McMILLAN et a l.s
Plaintiff-Appellees,
v.
ESCAMBIA COUNTY, FLORIDA et al.,
Defendants-Appellants.
Nos. 78-3507, 80-5011.
United States Court of Appeals,
Fifth Circuit.*
Sept. 24, 1982.
Paula G. Drummond, Pensacola, Fla., for Escambia
County.
Rhyne & Rhyne, Charles S. Rhyne, William S. Rhyne,
Washington, D .C., for all defendants-appellants.
Don J. Canton, City Atty., Pensacola, Fla; for City of
Pensacola.
C raw ford, Blacksher, Figures & Brown, J.U .
B lacksher, L arry M enefee, M obile, A la ., Kent
Spriggs,Tallahassee, Fla., Eric Schnapper, New York Ci
ty, Edward Still, Birmingham, Ala., for plaintiffs-
appellees.
Appeals from the United States District Court for the
Northern District of Florida.
*Former Fifth Circuit case, Section 9(1) of Public Law 96-452 -
October 14, 1980.
2a
Before COLEMAN, PECK** and KRAVITCH, Circuit
Judges.
ON PETITIONS FOR REHEARING
KRAVITCH, Circuit Judge:
Plaintiffs filed this class action in March 1977 challeng
ing the at-large systems for electing Escambia’s County
Commissioners and School Board members. The case was
consolidated with another class action suit challenging the
election scheme for the Pensacola City Council. The
district court held all three systems unconstitutional, and
defendants in each case appealed. We affirmed the district
court’s decision as to the School Board and City Council,
but reversed its holding as to the County Commission.
McMillan v. Escambia County, 638 F.2d 1239 (5th Cir.
1981) (appeal on merits); McMillan v. Escambia County,
638 F .2d 1249 (5th Cir. 1981) (appeal on remedy); Jenkins
v. Pensacola, 638 F.2d 1249 (5th Cir. 1981) (appeal on
remedy). Plaintiffs sought rehearing of our decision as to
the County Commission.1 We reserved ruling on the
petition for rehearing pending the United States Supreme
Court’s decision in a case raising similar issues. That case
has now been decided. See Rogers v. Lodge, ___U.S.
____, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Having
reviewed the Supreme Court’s opinion in Lodge, we con-
**Honorable John W. Peck, U.S. Circuit Judge for the Sixth Cir
cuit, sitting by designation.
'Neither the School Board nor the City Council sought rehearing. In
stead those defendants, jointly with the plaintiffs, filed motions re
questing issuance of the mandates, which we granted. Hence the con
stitutionality of the election systems for the School Board and City
Council is not before us. (The City of Pensacola filed a petition for
writ of certiorari to the Supreme Court. That petition, however, was
subsequently dismissed on the City’s own motion. See City o f Pen
sacola v. Jenkins, 453 U.S. 946, 102 S.Ct. 17, 69 L.Ed.2d 1033 (1981).
3a
elude that the standards it sets forth compel reversal of our
prior decision. We therefore grant plaintiffs-appellees’
motion for rehearing, vacate the portion of our original
opinion concerning the County Commission, No. 78-3507,
638 F.2d 1239, vacate opinion No. 80-5011, 638 F.2d
1249, and substitute the following.
I.
Background
The five members of Escambia County’s governing
body, the Board of County Commissioners, are elected for
staggered four-year terms in accordance with an at-large
voting system. Under this system candidates run for
numbered places corresponding to the districts in which
they live, but each must be elected by the voters o f the en
tire county. There is no majority-vote requirement for the
general election, although candidates must obtain a ma
jority of the votes cast in the party primaries to win party
nomination.
As of the date of trial, four blacks had run for the
County Commission, none of whom had been elected.
Plaintiffs, representing black citizens of Escambia Coun
ty, brought this action claiming that the county’s at-large
election scheme unconstitutionally2 dilutes their votes.
2Plaintiffs sought relief under the first, thirteenth, fourteenth, and
fifteenth amendments to the Constitution, the Civil Rights Act of
1957, 42 U.S.C. § 1971(a)(1), the Voting Rights Act of 1965, as
amended in 1975, 42 U.S.C. § 1973, and the Civil Rights Act of 1871,
42 U.S.C. § 1983. The district court held that the at-large system
violated plaintiffs’ rights under the fourteenth and fifteenth amend
ments and the Voting Rights Act of 1965, 42 U.S.C. § 1973, which
was enacted to carry out the purpose of the fifteenth amendment. It
rejected plaintiffs’ § 1971(a)(1) claim because that statute “concerns
4a
The district court found that blacks comprised seven
teen percent of the registered voters in Escambia County
and that in elections in which black candidates had run for
the County Commission there had been a consistent pat-
itself only with entitlement to cast one’s vote at elections, and such is
not presented in this voting dilution suit.” McMillan v. Escambia
County, PCA No. 77-0432, slip op. at 34 (N.D. Fla. July 10, 1978).
The court did not address plaintiffs’ claims based on the first and thir
teenth amendments.
The defendants appealed the district court’s holdings under the
fourteenth and fifteenth amendments and the Voting Rights Act.
Having the benefit of the Supreme Court decision in Mobile v.
Bolden, 446 U.S. 55, 110 S.Ct. 1490, 64 L.Ed.2d 47 (1980), see text in
fra at 4-5, we rejected plaintiffs’ fifteenth amendment and Voting
Rights Act claims in accordance with the Bolden plurality’s view that
vote-dilution claims are cognizable only under the fourteenth amend
ment. McMillan v. Escambia County, 638 F.2d at 1242-43 nn.8-9. The
Lodge decision expresses no view on the applicability of the fifteenth
amendment and Voting Rights Act to claims of this type, Rogers v.
Lodge;___ U.S. a t___ n. 6, 102 S.Ct. at 3276 n. 6, and hence pro
vides no basis for departing from the Bolden plurality’s analysis. Cor
gress’ recent amendment to Section 2 of the Voting Rights Act of
1965, 42 U.S.C. § 1973, encompasses a broader range of impediments
to minorities’ participation in the political process than those to which
the Bolden plurality suggested the original provision was limited.
Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3,
97th Cong., 2d Sess. (1982) (to be codified at 42 U.S.C. § 1973),
reprinted in 51 U.S.L.W. 2 (1982); see S. Rep. No. 417, 97th Cong.,
2d Sess. 2, 16, 28 & 30 n. 120 (1982), U.S. Code Cong. & Admin.
News 1982, p .____The amendment also eliminates the requirement
that plaintiffs demonstrate purposeful discrimination in the enact
ment or maintenance of the challenged voting system or practice.
Voting Rights Act Amendments of 1982, Pub. L. No. 97-205 § 3; S.
Rep. No. 417, 97th Cong., 2d Sess. 2, 16 & 27-30. Appellees argue in
their supplemental brief that we should reverse our prior decision and
affirm the district court’s holding that they are entitled to relief under
the fifteenth amendment and the Voting Rights Act, as amended.
While appellees have provided support for the proposition that the
the amendment was intended to apply to pending litigation, see 128
Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep. Sensen-
brenner); id. at S7095 (daily ed. June 17, 1982) (remarks of Sen. Ken
nedy), and have presented a cogent argument that the amended Act
5a
tern of racially polarized voting. The court found that the
at-large system, coupled with the above factors, prevented
black candidates from attaining a majority of the votes in
the County Commission elections.3 Having found that
the at-large system had such discriminatory effect, the
district court considered whether its purpose was
entitles them to relief, we decline to address the fifteenth amendment
and Voting Rights Act issues for the following reason. As a result of
this litigation, elections for the Escambia County Commission have
not been held since 1978. Pursuant to a stay of elections entered by
this court in 1980, the elections schedules for that year and for 1982
were cancelled. Because the term of office for Escambia County Com
missioner is four years, as of November 1982, none of the acting Com
missioners will be serving pursuant to democratic election. Appellees
have moved this court to dissolve the stay of elections so that “normal
democratic processes” may proceed in Escambia County. Although
appellees have briefed the fifteenth amendment and Voting Rights Act
issues and discussed the effect of the 1982 amendment on this case, ap
pellants have not yet been afforded opportunity to respond to ap
pellees’ argument. Accordingly, we could not render a decision on
such issues without taking additional time to allow appellants to re
spond and possibly to schedule oral argument on these questions of
first impression. See Rules 23(b), 24(a), Interim Rules of the United
States Court of Appeals for the Eleventh Circuit, 28 U.S.C.A. (West
Supp. 1982). Resolution of these issues could result in further delay
and disruption of the electoral process in Escambia County.
Moreover, our decision of these issues would not affect the outcome
of this case because we hold, infra, that appellees are entitled to relief
on their fourteenth amendment claim. Hence, we defer resolution of
the Voting Rights Act and fifteenth amendment issues until a later
day. The text of this opinion will be devoted to discussing the effect of
Lodge on the fourteenth-amendment standards governing vote-
dilution claims and the applicability of such standards to this case. See
McIntosh County Branch o f the NAACP v. City o f Darien, 605 F.2d
753, 756 n.l (5th Cir. 1980).
3Although there is no majority vote requirement for the general
election, there is such a provision for the primary election. Moreover,
the district court found that “as a practical matter, no one has in re
cent history won a general election without a majority.” McMillan v.
Escambia County, PCA No. 77-0432, slip op. at 18 (N.D. Fla. July
10, 1979).
6a
discriminatory. Although the court found that the at-large
system had not been enacted for a discriminatory
purpose,4 it concluded that the scheme had been main
tained for such a purpose. In finding intentional
discrimination, the court relied on a variety of factors, in
cluding the adverse effects of past discrimination by the
state and county governments on blacks’ exercise of their
suffrage rights and participation in the political system,
the unresponsiveness of elected County Commissioners to
some needs of black citizens,5 the depressed socio
economic status of blacks in the county, the tenuousness
of the state policy behind the at-large system, and other
features of the election system that enhanced its
discriminatory effect. In addition to the above circumstan
tial or Zimmer evidence,6 the district court found that the
4The at-large requirements of the general and primary elections for
the County Commission are based on a 1901 amendment to the
Florida Constitution. Fla. Const., art. 8, § 5. The district court found
that the historical background of the amendment suggested racial
motivation. Nonetheless, the court declined to find that such system
was enacted for a discriminatory purpose because a prior decision of
the Fifth Circuit had determined that there was no racial motivation
behind the amendment and because the plaintiff’s own expert had
substantiated this view.
5Although the court found that the elected commissioners had
generally been responsive to the needs of black citizens, it noted a lack
of responsiveness in two areas. See note 16 infra..
6In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc),
affd sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S.
636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1975) (per curiam), the former
Fifth Circuit set forth a list of factors relevant to the determination
whether multimember or at-large districting schemes are “rooted in
racial discrimination.” Id. at 1305. The factors mentioned by the court
were:
lack of access [by the minority] to the process of slating
candidates, the unresponsiveness of legislators to their par
ticularized interests, a tenuous state policy underlying the
preference for multi-member or at-large districting, [ ]
that the existence of past discrimination in general
7a
County Commissioners’ refusal to submit to voters a pro
posed referendum that would change the election system
from at-large to single-member districts further supported
a finding that the at-large system was being maintained for
a discriminatory purpose.
The district court decided this case prior to the Supreme
Court’s decision in Mobile v. Bolden, 446 U.S. 55, 100
S.Ct. 1490, 64 L.Ed.2d 47 (1980). The district judge,
however, apparently anticipated the holding of Bolden
that discriminatory purpose is a required element of a
vote-dilution claim under the fourteenth amendm ent.7 He
precludes the effective participation in the election
system,. . . the existence of large districts, majority vote
requirements, anti-single shot voting provisions and the
lack of provision for at-large candidates running from par
ticular geographical subdistricts.
Id.
7At the time the district court was considering this case, the
Supreme Court had decided two cases that foreshadowed the holding
in Bolden that discriminatory intent is a required element of an equal
protection based vote-dilution claim. In Washington v. Davis, 426
U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the Court held that a
showing of disproportionate impact was not alone sufficient to sup
port a claim of discrimination in employment under the fifth amend
ment. Instead, it held that discriminatory purpose is a required ele
ment of equal protection claims. In Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) the
Court applied the discriminatory intent requirement to a fourteenth
amendment claim of racially discriminatory zoning. Language in both
opinions suggested the intent requirement is applicable to other types
of equal protection claims. See Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. at 265, 97 S.Ct. at 563; Washington v.
Davis, 426 U.S. at 239-41, 244-45, 96 S.Ct. at 2047-48, 2049-50. The
district court relied on Arlington Heights and on the former Fifth Cir
cuit decision in Nevett v. Sides, 571 F.2d 209 (1978), in holding that
the plaintiffs were required to show discriminatory purpose as well as
discriminatory impact. McMillan v. Escambia County, PCA No.
77-0432, slip op. at 22-23 (N.D. Fla. July 10, 1978).
8a
therefore rendered findings on the issue of discriminatory
purpose, which we found sufficiently explicit to preclude
the necessity for a remand in light of Bolden, Instead of
remanding the case for further findings, we reviewed the
district court’s findings to determine whether they
reflected enough evidence of discriminatory purpose to
meet the standard set forth in Bolden. Concluding that the
district court’s subsidiary findings were not adequate to
support its ultimate finding of intent under the Bolden
standard, we reversed the decision o f the district court.
In Bolden, the Supreme Court reversed a decision of the
former Fifth Circuit that had invalidated an at-large elec
tion system as unconstitutionally diluting blacks’ voting
power. The Bolden C ourt explicitly held th a t
discriminatory purpose was a required element o f a vote-
dilution claim brought under the fourteenth amendment8
and reversed the lower court decision on the ground that
there was inadequate evidence that the election system had
been enacted or maintained for a discriminatory purpose.
No view by any of the Justices in Bolden commanded a
majority. Hence in interpreting that decision to determine
its effect on this case, we looked to the opinions of the
plurality and concurring Justices and attempted to discern
“the view with which a majority of the Court could agree.”
McMillan v. Escambia County, 638 F.2d at 1243.
At least five Justices agreed in Bolden that
“discriminatory purpose of some sort must be proven” in
vote-dilution cases. Id. Those Justices split on the stan
dee note 7 supra.
9a
dard of proof for intent, however.9 In view o f the diver
gence between the Justices, we adopted Justice Stewart’s
opinion, which commanded the greatest number o f votes.
See id. Accordingly, we followed the plurality’s directive
that the Zimmer factors, which the Fifth Circuit had
previously established as indicia of unconstitutional vote-
dilution, see note 6 supra, are insufficient, standing alone,
to support a finding of discriminatory purpose. See
Mobile v. Bolden, 446 U.S. at 173, 100 S.Ct. at 1503
(plurality opinion).10
As noted above, the district court based its finding of in
tent mainly on Zimmer factors although it also considered
the County Commissioners’ refusal to submit to the elec
torate a proposal to change the election system to a single
member district scheme. We interpreted Bolden as holding
that the Zimmer criteria could not adequately support a
finding of intentional discrimination and therefore fo
cused on the latter evidence cited by the district court in
reviewing its finding of intent. After examining the record,
we concluded the Commissioners’ actions in rejecting the
9Compare Mobile v. Bolden, 446 U.S. at 71-74, 100 S.Ct. at
1502-1503 (plurality opinion) with id. at 90-92, 100 S.Ct. at 1512-13
(Stevens, J. concurring in result). See also id at 80, 100 S.Ct. at 1507
(Blackmun, J., concurring in result); id. at 101-03, 100 S.Ct. at
1517-18 (White, J., dissenting).
10The plurality interpreted Zimmer as setting forth criteria relevant
only to discriminatory impact and as holding that such impact was
alone sufficient to establish an unconstitutional election system. See
Mobile v. Bolden, 446 U.S. at 71, 100 S.Ct. at 1502 (plurality
opinion). Justice White, who was of the view that sufficient evidence
of discriminatory intent was present in Bolden, pointed out that the
factors articulated in Zimmer were derived from prior Supreme Court
vote-dilution cases and had been considered as circumstantial evidence
of discriminatory purpose. Id. at 101, 100 S.Ct. at 1517 (White, J.,
dissenting).
10a
proposed referendum provided insufficient evidence of in
tent to discriminate against blacks. We noted that the
district court was entitled to discredit the Commissioners’
testimony that there was no racial motivation behind their
action but held that “disbelief of that testimony is not suf
ficient to support a contrary finding.” McMillan v. Escam
bia County, 638 F.2d at 1245. Because the only other
evidence of intent consisted of Zimmer factors, we revers
ed the district court’s finding that the county election
scheme was being maintained for a discriminatory pur
pose.
II.
Effect o f Rogers v. Lodge on Our Decision That
Plaintiffs Failed to Establish Unconstitutionality
o f Escambia County Commission Election System
As we noted in our prior opinion, the Bolden Court’s
divergent analyses on the intentional discrimination issue
left us somewhat “adrift on uncharted seas with respect to
how to proceed.” Id. at 1242 (quoting Mobile v. Bolden,
446 U.S. at 103, 100 S.Ct. at 1518 (White, J ., dissenting)).
In the more recent decision of Rogers v. L o d g e ,___ U.S.
____, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), the
Supreme Court substantially clarified the constitutional
standard governing vote-dilution claims. The Lodge opin
ion, which garnered a majority of the Justices,1 11 reaf
firmed the holding of Bolden that evidence of purposeful
discrimination is required to sustain an equal protection
1 'The Lodge majority comprised the three Justices who dissented in
Bolden (Justices White, Brennan, and Marshall), Justice O’Connor,
who joined the Court after Bolden was decided, and Chief Justice
Burger, who voted with the plurality in Bolden.
11a
challenge to an election system. Id. a t ____, 102 S.Ct. at
3275. The m ajority’s analysis of the standard governing
the type and amount of evidence necessary to show
discriminatory intent, however, reflects both a more
favorable view of the Zimmer factors and a greater
deference to the finding of the district court than the
analysis of the Bolden plurality.
Although the district court in Lodge had relied prim ari
ly on the Zimmer factors in finding purposeful discrimina
tion, the Supreme Court rejected the argument that the
decision was infirm under Bolden. Rather, the Court held
that the district court had applied the proper legal stan
dard. It noted that the district court’s decision had been
“rendered a considerable time after Washington v. Davis
and Arlington Heights” and that “the trial judge also had
the benefit of Nevett v. Sides,” 571 F.2d 209 (5th Cir.
1978), which applied the discriminatory intent standard of
the above cases to a vote-dilution claim {see note 6 supra).
Rogers v. Lodge, ____U.S. a t _____, 102 S.Ct. at 3276.
Moreover, the district court had explicitly recognized the
discriminatory intent requirement and had been aware
that Zimmer factors were not exclusive or absolute but
simply “were relevant to the question of discriminatory in
tent.” Id. The Court also declined to “disturb the District
Court’s finding that the at-large system in Burke County
was being maintained for the invidious purpose o f diluting
the voting strength of the black population.” Id. a t ____,
102 S.Ct. at 3278. The Court’s opinion requires appellate
courts to defer to district courts’ factual findings on intent
because such findings “represent[ ] . . . a blend of history
and an intensely local appraisal of the design and impact
of the [election system at issue] in light of past and present
reality, political and otherwise.” Id. at ____-____, 102
S.Ct. at 3278 (quoting White v. Regester, 412 U.S. 755,
12a
769-70, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973)). The
Court thus applied the clearly erroneous standard of Fed.
R. Civ. P. 52 to the district court’s finding of
discriminatory intent. Id. (citing Pullman-Standard v.
Swint, ____U.S. _____, 102 S.Ct. 1781, 72 L.Ed.2d 66
(1982) (applying Rule 52 to finding of intent in employ
ment discrimination suit)).
A. Did Court Below Apply Correct Constitutional
Standard?
[1] Applying the analysis adopted by the Lodge ma
jority to this case, we consider first whether the district
court applied the proper fourteenth amendment standard
to appellee’s vote-dilution claim. As we noted in our
original opinion, McMillan v. Escambia County, 638 F.2d
at 1243, “the district court below correctly anticipated that
the Arlington Heights requirement of purposeful
discrimination must be m et.” Indeed, the district court ex
pressly recognized that
[a]n at-large election system which operates to
dilute the vote of black citizens is not necessarily
violative of the Constitution. It must also be
shown that discrim inatory intent was a
motivating factor in the enactment of the system
or is a motivation in the present maintenance of
the system.
McMillan v. Escambia County, PC A No. 77-0432, slip op.
at 22-23 (N.D. Fla. July 10, 1978). As in Lodge, the
district court in this case had the benefit of Nevett v. Sides,
supra. The court below relied on Nevett in holding that
“[ijnvidious purposes in the maintenance of the system are
proved by the circumstances surrounding the operation of
the system and may be inferred from findings under the
13a
Zimmer factors.” McMillan v. Escambia County, PCA
No. 77-0432, slip op. at 23 (N.D. Fla. July 10, 1978)
(citing Nevett v. Sides, 571 F.2d at 222). The district
court’s consideration of the Commissioners’ response to
the single-member district proposal of the charter commit
tees indicates that the court did not view the Zimmer fac
tors as the exclusive criteria for determining dis
criminatory purpose. Rather, the court inferred from the
Commissioners’ action, together with the aggregate of the
findings under the Zimmer factors, that the at-large
system was being maintained for invidious purposes. See
McMillan v. Escambia County, PCA No. 77-0432, slip op.
at 19, 21 & n. 6, 29-31 (N.D. Fla. July 10, 1978). Compare
id. with Rogers v. L o d g e ,____U.S. a t ____ , 102 S.Ct. at
3276, 3279-80. The district court’s heavy reliance on Zim
mer criteria as circumstantial evidence o f intent to
discriminate, while at odds with our interpretation of the
standard for proving intent under Bolden, see text supra at
4-5, is fully consistent with the analysis adopted by a ma
jority o f the Supreme Court in Lodge. Hence, we conclude
the court below applied the correct legal standard to this
case.
B. Was District Court’s Finding o f Intentional
Discrimination Clearly Erroneous? 2
[2] In light of the Lodge Court’s reaffirm ation of the
validity of the Zimmer criteria as circumstantial evidence
of intent, we now conclude that the district court’s finding
of intent in this case - though based largely on the Zim
mer factors — was not clearly erroneous.
The district court found that blacks constitute twenty
percent of the population and seventeen percent of the
registered voters of Escambia County. Although black
14a
citizens had run for County Commission on four occa
sions, no black candidate had ever won an election. None
of the blacks who ran was able to obtain the majority of
votes necessary to win the Democratic primary. The court
found that in each of the races in which a black candidate
ran for County Commission the voting had been severely
polarized along racial lines.12 In other words, “whenever
a black challenges a white for countywide office, a consis
tent majority of the whites who vote will consistently vote
for the black’s opponent.13 The court found that the
numerical minority of blacks coupled with the white bloc
vote prevented blacks from attaining a majority of votes in
the county. Although the Supreme Court has consistently
maintained that racially polarized voting and inability of a
minority group to obtain legislative seats in proportion to
its voting potential are not alone sufficient to prove that a
multimember or at-large districting scheme is being used
invidiously to minimize the voting strength of the minority
12The R2 coefficient, which reflects the percentage of variation in
the vote attributable to the race of the registered voters in the races in
which black candidates ran, ranged from .85 to .98. McMillan v.
Escambia County, PCA No. 77-0432, Appendix A (N.D. Fla. July 10,
1978). The district court’s findings concerning racially polarized
voting in Escambia County elections are set forth in full in our
original opinion. McMillan v. Escambia County, 638 F.2d at 1241-42
n.6.
l3The district court noted that in the one countywide election in
which a black candidate ran unopposed in the Democratic primary,
that candidate lost the general election to a white Republican can
didate. That election, which was a race for a position on the County
School Board, was the first “in the modern history of Escambia Coun
ty [in which] a Republican had won any countywide office.” McMillan
v. Escambia County, PCA No. 77-0432, slip op. at 11 (N.D. Fla. July
10, 1978). Moreover, the Republican candidate received 22,523 votes
despite a total Republican registration in the County of only 7,268;
whereas in a prior election in which the same Republican had run
against a white Democrat, he had received only 10,721 votes.
15a
group, e.g., Rogers v. L o d g e ,____U.S. a t____ , 102 S.Ct.
at 3279; White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct.
2332, 2339-40, 37 L.Ed.2d 314 (1973); Whitcomb v.
Chavis, 403 U.S. 124, 149-50, 91 S.Ct. 1858, 1872, 29
L.Ed.2d 363 (1971), it has recognized that such facts “bear
heavily on the issue of purposeful discrimination.” Rogers
v. L o d g e ,____U.S. a t ____ , 102 S.Ct. at 3279.14
14As the Court stated:
Voting along racial lines allows those elected to ignore
black interests without fear of political consequences, and
without bloc voting the minority candidates would not lose
elections solely because of their race. Because it is sensible
to expect that at least some blacks would have been elected
in Burke County, the fact that none have ever been elected
is important evidence of purposeful exclusion.
Rogers v. Lodge,___ U.S. at___ , 102 S.Ct. at 3279.
Appellants argue that the facts in this case distinguish it from Lodge
because blacks comprise only 23% of the population and 17% of the
registered voters in Escambia County, whereas they made up a majori
ty of the population and 38% of the registered voters in Burke Coun
ty. Appellants contend that the Supreme Court’s assessment in Lodge
that some blacks likely would have been elected in Burke County had
the voting not occurred along racial lines does not hold true in Escam
bia County, where blacks constitute only a minority of the county’s
voting population. Appellants misunderstand the question at issue,
however. The Supreme Court’s premise is that “without bloc voting
the minority candidates would not lose elections solely because of
their race.” Id. Not accounting for other variables, elections would be
expected to produce a ratio of successful black and white candidates
corresponding roughly to the respective percentages of the population
comprised by each race. Under this analysis, blacks should have at
tained office in roughly 40% of the elections in Burke County,
whereas in Escambia County the projection would be closer to 20%.
Of course, this analysis omits many factors other than race that could
result in a lower proportion of successful black candidates. Certainly
some degree of deviation from proportionality to population would
neither be unusual nor indicative of intentional discrimination in the
election system. Here, as in Lodge however, the deviation is substan
tial; no black has ever served as Commissioner in Escambia County.
Although the number of blacks that reasonably could be expected to
16a
As in Lodge, the district court below also considered the
impact of past discrimination on the ability of blacks to
participate in the political process. It found that the Coun
ty Commission and School Board election systems “had
their genesis in the midst of a concerted state effort to in
stitutionalize white supremacy.” McMillan v. Escambia
County, PCA No. 77-0432, slip op. at 4 (N.D. Fla. July
10, 1978). Prior to 1901, County Commissioners were ap
pointed by the governor, and the court found that “ap
pointment was favored over election to ensure against the
possibility that blacks might be elected in majority black
counties.” Id. In 1889, Florida instituted a poll tax to
disenfranchise blacks. The court found that although the
tax was of limited success, “enough blacks were disenfran
chised to permit the state to allow at-large election of
county commissioners.” Id. at 5. The court found that
enactment of Jim Crow laws and exclusion of blacks from
the Democratic Party, beginning in 1900, further impeded
black participation in the electoral process. In 1907,
Florida enacted a law providing for primary elections of
County Commissioners in which candidates were elected
from single-member districts. 1907 Fla. Laws, ch. 5697,
§ 1. The district court found that the anomaly between the
hold office in Escambia County elections is smaller' than that in Burke
County, it is as sensible in this case as it was in Lodge to expect that
“at least some blacks would have been elected” absent racially polar
ized voting.
Finally, we emphasize our understanding of the limited role of
evidence of racially polarized voting and lack of success by minority
candidates. Such facts are reflective of the dilutive effect of an elec
tion system and, circumstantially, of intent to cause that effect. They
are “insufficient in themselves to prove purposeful discrimination,”
however, “absent other evidence such as proof that blacks have less
opportunity to participate in the political processes and to elect can
didates of their choice.” Id.
17a
white, districted primary elections and the at-large general
elections uniquely disadvantaged blacks: “Since blacks
could not vote in the Democratic Primary district elec
tions, they were forced to challenge white Democratic
nominees in at-large elections in which blacks had no voter
majorities. In effect, the white primary was the election.”
McMillan v. Escambia County, PCA No. 77-0432, slip op.
at 5 (N.D. Fla. July 10, 1978). The Florida Supreme Court
invalidated this dual system in 1945, and at-large voting
was instituted in the primaries several years later.
The district court found that there are no longer any
slating organizations that prevent blacks from par
ticipating in the election of County Commissioners nor
direct impediments to blacks’ registration and voting. The
court found “no significant difference” currently existing
between black and white voter registration. Id. at 6.
Nonetheless, it concluded that “other barriers . . . effec
tively operate to preclude access for blacks.” The court
cited the consistent inability of blacks to win elections and
a $1000 filing fee required of candidates for County Com
mission as factors that had discouraged blacks from runn
ing, with the result that the number of blacks seeking
countywide office in recent years was “far lower than one
would expect based on their percentage of the
population.” Id. at 10. Indeed, the court found that
because of these impediments no blacks had run for Coun
ty Commission since 1970. Id.
As additional evidence of exclusion of blacks from the
political process, the district court noted that state-
enforced segregation has created two separate societies in
Escambia County. Churches, clubs, neighborhoods, and
until recently, schools in the county have remained
segregated by race. The court found that this “continued
18a
separation [of blacks] from the dominant white society”
not only has “left blacks in an inferior social and economic
position, with generally inferior education,” but has also
“helped reduce black voting strength and participation in
government.” Id. at 17. Specifically, the court found that
the segregation of black and white citizens had helped
create bloc voting and resulted in white candidates’ failure
to arouse interest among blacks15 and in city and county
governing bodies’ failure to appoint blacks to governmen
tal advisory committees and boards.16
l5The court found that black voters have shown a consistent, nearly
unanimous preference for black candidates in races in which blacks
have run. McMillan v. Escambia County, PCA No. 77-0432, slip op.
at 13, 20-22 (N.D. Fla. July 10, 1978). Although white candidates ac
tively seek the votes of blacks, studies of voter turnouts indicated that
when whites run against whites black voter turnout is significantly
lower than when black candidates run for office. Id. at 13 & n. 4, 15.
These facts indicate that “blacks view the choice of white candidates as
irrelevant to their interests.” Id. at 15.
16Although the court found that the commissioners had generally
been responsive to the interests of black citizens, it noted two areas in
which they had not. It found that “[t]he commissioners have failed to
appoint any more than a token number of blacks to its committees
and boards. The black population representing 20% of the county is
thus served by an all-white board of commissioners which depends on
virtually (95%) all-white advisory panels.” McMillan v. Escambia
County, PCA No. 77-0432, slip op. at 15 (N.D. Fla. July 10, 1978).
The court found the “severe underrepresentation]’.’ of blacks on coun
ty committees “has independent significance because of the absence of
or near absence of blacks in elected positions. With such a paucity of
black elected and appointed representatives, blacks are excluded from
all positions of responsibility in the governmental policymaking
machinery.” Id. at 21. The court noted the former city mayor’s ex
planation of this failure as resulting from the relative nonvisibility to
him of black citizens as compared with whites. A former city council
member had referred to the black and white communities as the “black
and white ‘sides of the fence.’ ” Id. at 17.
Appellants argue that this case is distinguishable from Lodge
because the district court in Lodge found extensive evidence of
unresponsiveness by elected officials to the needs of blacks whereas
19a
The district court found the policy behind the at-large
system for electing County Commissioners tenuous. It
noted that although the at-large system had been in effect
for the general election since 1901, during most of that
period a single-district system was employed in the
Democratic primaries, which were then tantam ount to
election.17 Hence despite the state constitutional require
ment o f at-large elections, the effect o f this dual election
system was “to ensure that commissioners were elected
here the court found, with the above-noted exceptions, that the
Escambia County Commissioners had generally been responsive to the
needs of black citizens. Compare Rogers v. Lodge,___ U.S. a t___ ,
102 S.Ct. at 3279, with McMillan v. Escambia County, PCA No.
77-0432, slip op. at 15 (N.D. Fla. July 10, 1978). Moreover, appellants
argue that the district court’s finding that white candidates in Escam
bia County actively seek the votes of black citizens precludes a finding
of discriminatory intent. We addressed these arguments in our
original opinion, McMillan v. Escambia County, 638 F.2d at 1248-49,
and concluded that once discriminatory intent has been shown respon
siveness is irrelevant. The Fifth Circuit panel in the Lodge case subse
quently reached the opposite conclusion, holding that proof of
unresponsiveness is an essential element of a fourteenth amendment
vote-dilution claim. Lodge v. Buxton, 639 F.2d 1358, 1374-75 (5th
Cir. 1981). The Supreme Court resolved the issue in its opinion in
Lodge. It held that unresponsiveness, while an important factor to be
considered in determining whether discriminatory purpose may be in
ferred, is not essential to prove such purpose. Rogers v. Lodge,___
U.S. a t ___ n. 9, 102 S.Ct. at 3280 n. 9. In view of the Supreme
Court’s holding, we do not consider the district court’s finding that
Escambia County Commissioners were responsive to black citizens’
needs in most areas conclusive on the question of discriminatory in
tent.
17The Florida Supreme Court invalidated the white primary in 1945.
Davis v. State ex rel. Cromwell, 156 Fla. 181, 23 So.2d 85 (1945).
County commissioners continued to be nominated through single
member district primaries until 1954, when the Florida court held that
the anomaly between the single-member district primaries and the at-
large general election violated the state constitution. Ervin v. Richard
son, 70 So.2d 585 (Fla. 1954).
20a
from single-member districts.” Id. at 24.18 Several County
Commissioners explained the policy behind maintaining
the at-large system as rooted in the belief that such system
made each Commissioner responsive to the needs of the
whole community rather than to a particular district. The
district court found this explanation inconsistent with the
present operation of the Commission, however. In par
ticular, the court noted that “the residence district of each
commissioner is more or less regarded as the district of
that commissioner for which he has responsibility and for
whose needs he is the particular advocate on the commis
sion.” Id. at 30.19
Finally, the district court considered the so-called
“enhancing factors” that the courts have recognized as in
creasing the tendency of a multimember or at-large elec
18The court found evidence indicating racial motivation behind the
1901 amendment establishing the present at-large system, but declined
to depart from the finding in a prior case that the amendment was not
enacted for discriminatory purposes. See McGill v. Gadsden County,
535 F.2d 277 (5th Cir. 1976).
19Appellants asserted in the trial court that the Commissioners’ re
jection of the single-member district proposal reflected a desire to
maintain their own incumbency. We stated in our original opinion
that a motive to exclude all other potential candidates could not, ab
sent other evidence, be equated with a desire to exclude blacks in par
ticular. See McMillan v. Escambia County, 638 F.2d at 1245. Of
course, neither can incumbent legislators’ desire to remain in office
justify or legitimate an election scheme that is purposefully
discriminatory. Cf. Rogers v. Lodge,___ U.S. a t____ , 102 S.Ct. at
3287 (Stevens, J., concurring) (features of election system that dilute
minority voting power are invalid if only purpose they serve is to
perpetuate power of entrenched majority). In reversing our prior deci
sion and affirming the district court’s finding of intent we do not
depart from our prior conclusion that desire to maintain incumbency
does not equal racially discriminatory intent. Our affirmance simply
reflects consideration of a broader range of evidence than we
previously understood could be used to support a finding of
discriminatory purpose. See text supra at 963-965.
21a
tion system to dilute blacks’ voting strength. See Rogers v.
Lodge, ____ U.S. at ____ , 102 S.Ct. 3281; Zimmer v.
McKeithen, 485 F.2d at 1305. The lower court found that
the large population and geographical size of the county,
the majority-vote requirement for the primary election,
and the requirement that candidates run for numbered
places20 enhanced “the problems faced by blacks seeking
access to the political processes.” McMillan v. Escambia
County, PCA No. 77-0432, slip op. a 18, 19 (N.D. Fla. Ju
ly 10, 1978).
On the basis of the above findings, the district court
concluded:
To this court the reasonable inference to be
drawn from [the Commissioners’] actions in re
taining at-large districts is that they were
motivated, at least in part, by the possibility
single district elections might result in one or
more of them being displaced in subsequent elec
tions by blacks.
This conclusion is bolstered by the findings
under the Zimmer factors that black voting
preferences for blacks cannot be registered in the
present system and black candidates are other
wise denied access to that system.
Id. at 31. The evidence in the record fully supports the
district court’s subsidiary findings. The court relied on the
aggregate of these findings involving Zimmer factors and
other evidence in determining that the at-large system in
20The court found that this requirement had the effect “that blacks
are always pitted in head-on-head races with white candidates, and
that the black community cannot concentrate its votes in a large field
of candidates.” McMillan v. Escambia County, PCA No. 77-0432,
slip op. at 18 (N.D. Fla. July 10, 1978).
22a
Escambia County is being maintained for discriminatory
purposes. Applying the standard enunciated by the
Supreme Court in Lodge, we cannot say the district court’s
finding of intent was clearly erroneous.
III.
Validity o f Remedy Prescribed by
District Court
Having invalidated the election system for the Escambia
County Commission, the district judge ordered the parties
to submit proposals for a remedy to rectify the constitu
tional defect. The defendant-County Commissioners sub
mitted a plan, which they had adopted by ordinance, pro
viding for a mixed single-member district and at-large
scheme.21 A proposal for a new charter government
under which Commissioners would be elected by a system
similar to that proposed by defendant-Commissioners22
was then pending submission to the voters of Escambia
County in a referendum election. Defendants requested
that the district court adopt this mixed system as the
remedial plan of the court.
The Supreme Court cases addressing remedies for un
constitutional vote dilution have distinguished between
judicially imposed and legislatively adopted plans. The
2'Defendants’ proposal would establish a seven-member Board of
County Commissioners with five Commissioners to be elected from
single-member districts and two to be elected by the voters of the
county at large.
22The difference between the Commissioners’ proposal and the
ballot proposition was that the former included an apportionment
plan whereas the latter entrusted the establishment of district bound
aries to a reapportionment commission.
23a
Court has generally disapproved of multimember district
and at-large election schemes as components o f a judicial
ly fashioned remedy and has admonished district courts to
employ single-member districts. Connor v. Finch, 431
U.S. 407, 414-15, 97 S.Ct. 1828, 1833-34, 52 L.Ed.2d 465
(1977); East Carroll Parish School Board v. Marshall, 424
U.S. 636, 639, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296 (1976);
Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760,
1762, 29 L.Ed.2d 268 (1971). See also Rogers v. Lodge,
____U .S______ ______, 102 S.Ct. 3272, 3281, 73 L.Ed.2d
1012 (1982). In Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct.
2493, 57 L.Ed.2d 411 (1978), however, the Court sug
gested that greater deference will be accorded to
legislatively adopted reapportionment plans than to
remedies devised by district courts. Legislative plans thus
are not limited to the strict single-member district require
ment that applies to judicial reapportionment. Id. at
540-41, 98 S.Ct. at 2497-98. See Chapman v. Meier, 420
U.S. 1, 18, 27, 95 S.Ct. 751, 761, 766, 42 L.Ed.2d 766
(1975).
Because the election scheme proposed by defendants
was not a pure single-member district system, the district
court addressed whether the proposal should be treated as
a legislatively adopted or judicially imposed plan. The
court found that the voters of Escambia County were
authorized under the Florida Constitution to reapportion
the county by referendum. Hence, it concluded that if the
voters adopted the proposed new charter, the court should
treat the reapportionment scheme as a legislatively adopted
plan. The court held, however, that the Commission was
without authority under state law to enact such a system,
and that in the event the referendum was not passed by the
voters of the county the Commission’s ordinance adopting
essentially the same apportionment system could not be
treated as a legislatively adopted plan.
24a
On November 6, 1979, the voters of Escambia County
rejected the proposed charter government. Having deter
mined that only the voters, and not the Commission,
could enact a reapportionment scheme, the district court
concluded that a judicially imposed plan was required. It
held that
[ujnder the authorities before the court, a
judicially devised plan must require total use of
single member districts unless persuasive
justification to the contrary exists. No such per
suasive justification is here established. Because
of that, the plan heretofore submitted by the
county commission of Escambia County must be
disapproved by this court.
McMillan v. Escambia County, PCA No. 77-0432, slip op.
at 3 (N.D. Fla. Sept. 24, 1979). The court adopted a plan
reapportioning Escambia County into five single-member
districts and providing for elections of all members of the
County Commission in 1980.23
2,The plan adopted by the district court preserves the staggered
terms feature of the current Commission by providing for three of the
new Commissioners to serve four-year terms and two of the new Com
missioners to serve two-year terms. Thereafter all Commissioners
would be elected for four-year terms. The defendants objected to
holding elections for all five Commission positions at once and re
quested that the single-member plan be “phased-in” by permitting two
of the Commissioners then serving to remain in office until 1982 —
the expiration period for their terms. Defendants’ argued that such
procedure would minimize the disruption resulting from turnover on
the Commission and allow the two Commissioners whose terms were
unexpired to serve the full period to which they were entitled to be in
office. The district court rejected this proposal on the ground that
“where a governing authority is found to be holding office by virtue of
an election scheme which is constitutionally infirm, a court, under its
equitable authority, should take steps to correct such defects at the
earliest possible date.” Moreover, the court found that leaving two at-
25a
Defendants appealed from the district court’s decision
on the remedy. They argued that the Commission was not
prohibited by state law from enacting a reapportionment
scheme and that the Commission’s proposal should be
treated as a legislatively adopted plan irrespective of the
voters’ rejection of the measure in the referendum elec
tion. We initially reversed the district court’s relief order
because we had reversed its decision on the merits concern
ing the constitutionality of the Escambia County election
system. McMillan v. Escambia County, 638 F.2d 1249 (5th
Cir. 1981). Because we have reversed our own prior deci
sion on the merits, we must now address the validity of the
relief ordered by the district court. We agree with the
district court’s analysis of the remedy issue and according
ly affirm.
The district court based its determination that the Com
mission was unauthorized to enact a reapportionment
scheme on the Florida Constitution. Article VIII, section 1
of the Florida Constitution provides for two types of
county governments: (1) government established by
charter, which may be adopted or amended “only upon
vote of the electors of the county in a special election cal
led for that purpose,” Fla. Const, art. VIII, § 1(c); or (2)
noncharter government consisting of a five-member board
of commissioners elected at-large, id. § 1(e). The
legislative powers of noncharter governments are expressly
large Commissioners in office would temporarily give some citizens
greater representation than others. We need not decide whether the
district court abused its discretion in rejecting defendants’ proposed
“phased-in” version of the court’s remedial plan. The passage of time
since the district court rendered its decision has essentially eliminated
the objections defendants raised; none of the Commissioners current
ly in office will be serving pursuant to his elected term by the time elec
tions under the court’s apportionment scheme are held.
26a
limited to those “provided by general or special law,” id.
§ 1(f), whereas charter governments “have all powers of
local self-government not inconsistent with general law, or
with special law approved by vote of the electors,” id.
§ 1(g). The Escambia County Commission is a noncharter
government, and thus its legislative powers encompass on
ly those specifically provided by state law. Defendants cite
no state law empowering the Commission to reapportion
itself, but contend that, under the analysis of Wise v.
Lipscomb, supra, the Commission is implicitly vested
with power to reapportion when the existing apportion
ment scheme has been held unconstitutional. We reject
this argument because we are of the view that the district
court correctly distinguished this case from Wise.
In Wise the Dallas City Council adopted a reapportion
ment scheme with a combination of single-member and at-
large districts in response to a declaratory judgment by a
federal district court holding the existing at-large scheme
unconstitutional. Wise v. Lipscomb, 437 U.S. at 538, 98
S.Ct. at 2496. The at-large system had been established by
city charter, which under Texas law could be amended
only by referendum. Id. at 544, 98 S.Ct. at 2499. Despite
the absence of an express grant of legislative power to the
City Council to change the election system, the Supreme
Court upheld the system as a valid legislatively enacted
plan. Id. at 539-46, 98 S.Ct. at 2496-2500 (White and
Stewart, JJ.); id. at 547-49, 98 S.Ct. at 2500-01 (Powell,
Blackmun, and Rehnquist, JJ. and Burger, C .J., concur
ring in part and concurring in the judgment). Although six
members of the Court agreed that the plan was legisla
tively rather than judicially imposed, the Justices did not
agree on the analysis leading to that conclusion. The opin
ion of Justice White, concurred in by Justice Stewart, in
dicates that only those election schemes adopted by a
27a
governing body pursuant to its valid legislative powers will
be treated as legislative plans. Id. at 544-46, 98 S.Ct. at
2499-500. Justices White and Stewart stated that the
Dallas City Council plan met this requirement because
“[although the Council itself had no power to change the
at-large system as long as the Charter provision remained
intact, once the Charter provision was declared un
constitutional, and in effect, null and void, the Council
was free to exercise its legislative powers which it did by
enacting the [combined at-large and single-member
district] plan.” Id. at 544, 98 S.Ct. at 2499. The opinion
specifically notes, however, that “[t]he record suggests no
statutory, state constitutional, or judicial prohibition
upon the authority of the City Council to enact a
municipal election plan under circumstances such as this
and respondents have been unable to cite any support for
its [sic] contention that the City Council exceeded its
authority.” Id. n. 8, 98 S.Ct. 2499 n. 8. Justices Powell,
Blackmun, and Rehnquist and Chief Justice Burger
declined to adopt the legislative powers analysis ar
ticulated by Justice White. Instead they viewed the “essen
tial point” in distinguishing legislatively from judicially
imposed plans “that the Dallas City Council exercised a
legislative judgment, reflecting the policy choices of the
elected representatives of the people, rather than the
remedial directive of a federal court.” Id. at 548, 98 S.Ct.
at 2501 (Powell, Blackmun, and Rehnquist, JJ. and
Burger, C .J., concurring in part and concurring in the
judgment). In the view of these Justices, the “rule of
deference to local legislative judgments remains in force
even if, . . . our examination of state law suggests that the
local body lacks authority to reapportion itself.” Id.
Justice Marshall, joined by Justices Brennan and Stevens,
dissented. These Justices agreed with Justices White and
Stewart that only election systems adopted by a govern
28a
mental body pursuant to its valid legislative authority
should be treated as legislative plans. Id. at 550, 98 S.Ct.
at 2502 (Marshall, Brennan, and Stevens, J J . , dissenting).
The dissenting Justices were of the view, however, that the
Dallas plan “was not devised by the City Council in the
usual course of its legislative responsibilities” but was
“proposed as less a matter of legislative judgment than as a
response by a party litigant to the court’s invitation to aid
in devising a plan.” Id. at 552, 98 S.Ct. at 2503.
[3] Because the analysis of Justices White and Stewart
effectively controlled the outcome of the Wise case,24 we
adopt it as the governing standard for determining when
an election system proposed in response to a finding of
vote-dilution should be treated as a legislatively rather
than judicially imposed plan.25 Applying that analysis to
this case, we conclude that the plan proposed by
defendant-Escambia County Commissioners does not
meet the requirements for a legislatively adopted plan. The
facts here are similar to those in Wise in that the only
24Justices White and Stewart adopted a standard for legislative
plans that was more stringent than, that stated by the other four con
curring Justices, but less stringent than that articulated by the three
dissenting Justices.
25In Marshall v. Edwards, 582 F.2d 927, 932-33 (5th Cir. 1978),
Judge Wisdom extracted the major points from each of the three rele
vant opinions in Wise and considered all of them in deciding whether
the plan at issue was court-ordered or legislative in nature. As we
noted in a later case, the facts in Marshall indicated a court-ordered
plan under any of the Justices’ analyses. Jenkins v. City o f Pen
sacola, 638 F.2d 1249, 1252 (5th Cir. 1981). In Jenkins we found that
the considerations in the opinions of Justices White and Powell pointed
in both directions, but concluded that “[o]n balance” the plan was “bet
ter viewed as a legislative plan.” Id. In this case, however, we are
presented with a fact situation that under Justice White’s analysis
points to a court-imposed plan, but under Justice Powell’s analysis
would be considered a legislative plan. Hence we are forced to decide
which of the two approaches we should follow.
29a
method authorized by state law for adopting a county elec
tion system that is not at-large is for the voters of the
county to approve such a system by referendum. See text
supra at 17. Unlike the Texas Constitution, however, the
Florida Constitution expressly limits the legislative powers
of the County Commission to those specifically authorized
by state law. Hence, as the district court found, the Com
mission does not possess the legislative authority to reap
portion itself even where the existing apportionment
scheme has been held unconstitutional. On this ground,
the district court correctly held that a judicially devised
plan was necessary.
[4] Finally, we hold that the remedial plan adopted by
the district court was fully within its discretion. See East
Carroll Parish School B oard v. M arshall, 424 U.S. 636,
638-40, 96 S.Ct. 1083, 1084-85, 47 L.Ed.2d 296 (1976). Cf.
Chapm an v. M eier, 420 U.S. 1, 26-27, 95 S.Ct. 751,
765-66, 42 L.Ed.2d 766(1975)(court-ordered plans held to
higher standards than legislatively adopted plans); C order
v. K irksey, 585 F.2d 708, 713-15 (5th Cir. 1978)(mixed
scheme composed of both single-member districts and at-
large seats required justification). IV.
IV.
For the reasons stated above, we AFFIRM the district
court’s holding that the election system for the Escambia
County Commission violates the fourteenth amendment.
We also AFFIRM the remedial plan adopted by the court.
In view of the passage of time since the district court
issued its remedial order, we REMAND this case to the
court below with instructions to revise the scheduling
terms of its remedial order accordingly.
30a
APPENDIX B
Related Decisions.
1. Decision of the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1239 (5th
Cir. 1981).
Henry T. McMILLAN et al.,
Plaintiffs-Appellees,
v.
ESCAMBIA COUNTY, FLORIDA et al.,
Defendants-Appellants.
Elmer JENKINS et al.,
Plainti f f s-Appellees,
v.
CITY OF PENSACOLA et al.,
Defendants-Appellants.
No. 78-3507.
United States Court of Appeals,
Fifth Circuit.
Feb. 19, 1981.
Richard I. Lott, County A tty., John W. Flemming, Asst.
County Atty., Pensacola, Fla., for Escambia County.
Ray, Patterson & Kievit, Pensacola, Fla., for School
Board.
Charles S. Rhyne, William S. Rhyne, Washington,
D.C., for all defendants-appellants.
Don J. Canton, City Atty., Pensacola, Fla., for City of
Pensacola.
J.U. Blacksher, Larry Menefee, Mobile, Ala., Kent
Spriggs, Tallahassee, Fla., Jack Greenberg, Eric Schnap-
31a
per, New York City, Edward Still, Birmingham, Ala., for
plaintiffs-appellees.
Appeals from the United States District Court for the
Northern District of Florida.
Before COLEMAN, PECK* and KRAVITCH, Circuit
Judges.
KRAVITCH, Circuit Judge:
These consolidated cases arise from an attack on the
forms of government in the City of Pensacola and Escam
bia County, Florida. The County Commission, City
Council and School Board are all defendants. The district
court, after extensive hearings, found that the at-large
election systems used to elect each of the three defendant
bodies are unconstitutional.1 We affirm in part and
reverse in part. *
♦Senior Circuit Judge of the Sixth Circuit, sitting by designation.
'These appeals proceeded in a piecemeal manner. After the
district court held the three defendant bodies to be unconstitutional,
but before a remedy was ordered, the defendants filed a notice of ap
peal. The district judge had expresed his belief that his order finding
the systems unconstitutional was a final order, but certified it for in
terlocutory review in case he was in error.
While that appeal (No. 78-3507) was pending but before it was set
for oral argument, the district court entered its remedy order against
the city council. The plaintiffs filed a notice of appeal from the
remedy order which was docketed as 79-1633 and was consolidated
with 78-3507 for oral argument. That appeal is being decided today in
a separate opinion. Jenkins v. City o f Pensacola, 638 F.2d 1249 (5th
Cir. 1981).
After the district court entered its remedy order for the city council,
it entered remedy orders against the county commission and the
school board. The school board chose not to appeal the order entered
against it, but the county commission did appeal the remedy order.
That appeal, 80-5011, was consolidated with 78-3507 and 79-1633 for
oral argument and is being decided today in a separate opinion.
McMillan v. Escambia County, 638 F.2d 1249 (5th Cir. 1981).
32a
I. O verview o f P la in tiffs’ Claim
These class actions were filed simultaneously on March
18, 1977, by black voters of Pensacola and Escambia
County. The plaintiffs alleged that the at-large systems for
electing members of the area’s three major governing
bodies are unconstitutional as violative of their rights
under the First, Thirteenth, Fourteenth and Fifteenth
Amendments and are in violation of the Civil Rights Act
of 1957, 42 U.S.C. § 1971(a)(1), the Voting Rights Act of
1965, as amended in 1975, 42 U.S.C. § 1973, and the Civil
Rights Act of 1871, 42 U.S.C. § 1983.
The essence of the plaintiffs’ complaints is that the at-
large systems operate to preclude the black population,
which comprises one-third of the city population2 and
one-fifth of the county population,3 from electing
a member of its own race to any of the three governing
bodies.
The Board of County Commissioners is composed of
five members who serve staggered four-year terms.
Although they must run for numbered places correspond
ing to the districts in which they live, they are elected at-
large by the voters of the entire county. Each major party
is required to hold a primary in which only party members
may vote. Candidates run at-large for numbered places in
the primaries, and a majority vote is required for the party
nomination. There is no majority vote requirement in the
general election.
The School Board of Escambia County is composed of
seven members who serve staggered four-year terms. Five
of the members must reside in residential districts but two
2Blacks represent 23% of the registered voters in the City of Pen
sacola.
3Blacks represent 17% of the county’s registered voters.
33a
may reside anywhere in the county.4 Otherwise, the elec
tion process for the School Board is the same as that for
the County Commission.
The Pensacola City Council has ten members. Can
didates must run for numbered places corresponding to
the five wards, and must live in the corresponding ward.
The election, however, is at-large. There are no primaries,
but there is a majority vote requirement.
Since 1955, blacks have been candidates for the County
Commission four times, for the School Board five times
and for the City Council nineteen times. As o f the date of
trial, no black had ever been elected to either the County
Commission or the School Board,5 and only two blacks
had been elected to the City Council. The two black City
Council members had initially been appointed to the
Council to fill vacant seats and were then successful in
their bids for reelection.
The plaintiffs argue that because of racially polarized
voting,6 and because of the at-large system of elec
4The two seats without a residency requirement were added in 1976.
1976 Fla. Laws, ch. 76-356. This change is discussed in note 14, infra.
5After the trial in this case, Dr. Vernon McDaniel, a black educator,
was elected to the school board.
6Expert statistical evidence was presented which showed a very high
correlation between the percentage of blacks in a precinct and the
number of votes a black candidate receives in that precinct. The
district court discussed the racial polarization of voting at length.
There is in Escambia County a consistent racially
polarized or bloc voting pattern which operates to defeat
black candidates. There is in the county an active Klu Klux
Klan which has run at least one candidate for office and
obtained a significant number of votes. More importantly,
however, there is an even larger bloc of white voters who,
like almost all black voters, consistently vote for the can
didate of their race whenever black candidates face white
candidates.
The complete record of county elections since 1955 was
34a
tions, the votes of blacks in Pensacola and Escambia
County are being diluted. In essence, their argument is
brought before the court. The first black person to run for
a county-wide office was John Reed, who was a candidate
for the Escambia County Commission in May, 1966. He
failed to make the runoff in the Democratic Primary. The
R2 coefficient of the correlation between Mr. Reed’s vote
returns and race was 0.98. The first black person to seek
election to the Escambia County School Board was Otha
Leverette in 1970. Rev. Leverette got the Democratic Party
nomination without opposition; no other candidates
qualified for this place. Some efforts were made to hide the
fact he was black until the qualification date passed. But
Leverette was beaten in the general election by a white
Republican candidate, Richard Leeper. It was the first
time in the modern history of Escambia County that a
Republican had won any countywide office. Mr. Leeper
received 22,523 votes even though there were at that time
only 7,268 Republicans registered. There were 67,297
whites and only 13,037 blacks registered to vote. The R2
coefficient for the correlation between Leverette’s vote and
race was 0.76, indicating a severely racially polarized vote.
Richard Leeper had received only 10,712 votes in his race
against a white Democratic candidate, Kirkland, in the
1966 school board general election.
This pattern of black candidates losing in racially
polarized elections continues to the present. . . .
[Election] returns and regression statistics were analyzed
by political scientists. The analyses focused upon voting
returns from precincts which were 95% or more of one
race. These returns, combined with regression statistics on
all precincts, showed that whenever a black challenges a
white for countywide office a significant majority of the
whites who vote will consistently vote for the black’s oppo
nent. Sixty percent or more of the whites will do so in most
cases. There were some differences in the testimony of
plaintiffs’ experts and defendants’ expert. For example, the
defendants’ experts’ approach to statistical analyses of
polarization was somewhat different from that of plain
tiffs’ expert. Nonetheless, both found racial polarization in
most, if not all, elections in which blacks ran.
Even though turnout among black voters is as high as
that among white when black candidates run (it is regret-
that although blacks comprise a significant minority of the
area, they will never be able to elect members of their race
tably low for both races), and black voters vote almost
unanimously for the black candidates, black candidates
cannot attain a majority of the votes in the county because
of the numerical inferiority of blacks combined with the
white bloc vote. Several prominent white politicians
acknowledged this fact.
The situation is much the same respecting the city.
Although blacks constitute 33% of the city’s population
and 23% of its registered voters, with two noteworthy ex
ceptions, black candidates have been denied office by the
white bloc voting. All city election returns since 1955 were
analyzed in the same manner as the countywide returns
and again it was shown that most white voters showed a
consistent preference for white candidates over black can
didates resulting in consistent losses and frustration for the
minority candidates. . . .
There have been only two exceptions to the white bloc
vote in city elections. Two blacks, Dr. Spence and Hollice
Williams, have been appointed by the council to fill vacant
council seats and thereafter were both winners in their bids
for reelection. The evidence strongly suggests that the
absence of the white bloc vote against these two candidates
is due to the fact that both were chosen and thereafter
received public and private white political support. Indeed,
one of the two had run for the council prior to his appoint
ment, and was then soundly defeated by the usual white
bloc vote. This effect of endorsement by community
leaders is a common political phenomenon which is called
“cuing.” See V. O. Key, The Responsible Electorate.
Not all whites vote against blacks. In every race blacks
have received some white support. But the city, like the
county, is, by and large, a race conscious society. There is
an established pattern of sufficient polarized voting to
regularly defeat black candidates. White candidates do ac
tively seek the votes of blacks. The studies of voter turn
outs indicate, however, that when whites run against
whites, black voter turnout drops, indicating a lack of in
terest by blacks in the candidates. Defendants’ expert ad
mitted that this may indicate that blacks view the choice of
white candidates as irrelevant to their interests.
Dist.Ct.Order, pp. 11-15.
36a
to the governing bodies, and hence, their votes are worth
less than those of their white counterparts. This claim has
been presented to this court previously; see, e .g ., C ross v.
Baxter, 604 F.2d 875 (5th Cir. 1979); N eve tt v. Sides, 571
F.2d 209 (5th Cir. 1978); Blacks U nited f o r L asting
Leadership v. Shreveport, 571 F.2d 248 (5th Cir. 1978);
N A A C P v. Thom as County, Georgia, 571 F.2d 257 (5th
Cir. 1978); Zim m er v. M cKeithen, 485 F.2d 1297 (5th Cir.
1973) (en banc), a f f d sub nom . E ast Carroll Parish School
B oard v. M arshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.
296 (1976), and, more recently, to the Supreme Court in
C ity o f M obile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64
L .Ed.2d 47 (1980).
It should be noted that there is no allegation of any ac
tual impediment to blacks voting, such as a poll tax or
racially motivated gerrymandering of municipal boun
daries. Gom illion v. L igh tfoo t, 364 U.S. 339, 81 S.Ct.
125, 5 L .Ed.2d 110 (I960).7 Rather, the issue here is limited
to a claim of vote dilution.
II. C ity o f M obile v. Bolden
[1] C ity o f M obile v. Bolden, 446 U.S. 55, 100 S.Ct.
1490, 64 L.Ed.2d 47 (1980), was pending before the
Supreme Court when these cases were argued; according
ly, we postponed decision in these cases pending the
Bolden decision. After Bolden was announced, we re
quested supplemental briefs from the parties. As Justice
White predicted, however, we still are somewhat “adrift
on uncharted seas with respect to how to proceed.” 446
U.S. at 103, 100 S.Ct. at 1519.
7In fact, the district court found that “[n]o impediments are thrown
in the way of blacks to register and vote.” Dist.Ct.Order, p. 10.
37a
No view by the Supreme Court Justices commanded a
clear majority. Mr. Justice Stewart, who authored the
plurality opinion, joined by Justices Burger, Powell and
Rehnquist, was of the view that a vote dilution claim, as
opposed to an actual denial of the right to vote, is not a
Fifteenth Amendment8 claim at all, and that a Fourteenth
Amendment claim had not been proven because the plain
tiffs had not adduced adequate proof that the at-large
election system constituted intentional discrimination
against blacks, either in its inception or operation.
Although Justice Stevens considered a vote dilution
claim to be a proper Fifteenth Amendment claim, he
would require a plaintiff to prove that the system com
plained of is either “totally irrational or entirely motivated
by a desire to curtail the political strength of the
minority.” 446 U.S. at 90, 100 S.Ct. at 1512.
In dissent, Justices Brennan, White and Marshall, for
different reasons and in varying levels of vehemence,
disagreed with the plurality that discriminatory purpose
had not been shown in this case. Justice Marshall, joined
by Justice Brennan, went further, arguing that an ap
proach based on motivation is unworkable, and that proof
8Justice Stewart in Bolden gently chided this court and the district
court for failing to address the complainant’s statutory claim under
§ 2 of the Voting Rights Act of 1965. The plurality went on to hold,
however, that the Section 2 of the Voting Rights Act does no more
than elaborate on the Fifteenth Amendment. Under the plurality view,
the Bolden plaintiffs had no valid Fifteenth Amendment claim and
thus could not benefit from § 2 of the Voting Rights Act, either.
The plaintiffs here have urged this court to hold that there is an im
plied private cause of action under the Voting Rights Act and that they
made out a case. Assuming there is a private cause of action and ac
cepting the plurality opinion on the scope of § 2 (none of the other
opinions addressed the issue), the plaintiffs cannot succeed under § 2
unless they can succeed under the Fifteenth Amendment. For a discus
sion of the viability of the Fifteenth Amendment in vote dilution
cases, see note 9, infra.
38a
of discriminatory impact alone should be sufficient.
Justices White and Marshall both viewed the Bolden claim
as a legitimate Fifteenth Amendment claim. Justice Bren
nan took no position on this.
Justice Blackmun assumed that if Justice Stewart is cor
rect that discriminatory purpose must be shown, the
evidence would support a finding of intent. He concurred
in the result, however, because he disagreed with the
remedy ordered by the district court.
Because no one analysis captured five Justices, we must
determine the view with which a majority o f the Court
could agree. There were five clear votes (Stewart, Burger,
Powell, Rehnquist and Stevens, JJ.) against the proposi
tion that discriminatory impact alone is sufficient in vote
dilution cases. Accordingly, to win a majority of the
Court, in addition to impact, discriminatory purpose of
some sort must be proven. Justice Stevens articulated the
most conservative opinion on the extent to which such
purpose must be shown. Because no other Justice concur
red in his opinion, that discriminatory purpose must be the
only purpose, we reject that analysis. Instead, we adopt
Justice Stewart’s opinion, though it commanded only four
votes. If, in addition to impact, a discriminatory purpose
exists in the enactment or operation of a given electoral
system, all members of the Court save Justice Stevens
agree that that system is unconstitutional.9
9Here, as in Bolden, the plaintiffs’ complaint alleges violations of
the Fourteenth and Fifteenth Amendments. Because Justices Brennan
and Blackmun expressed no view as to the appropriate amendment
under which to analyze a vote dilution claim, the majority view is
unknown. Three Justices indicated this is a proper Fifteenth Amend
ment claim (Stevens, White and Marshall, JJ.); but the four Justice
plurality opinion indicated it is not. We adopt the plurality view that
vote dilution violates only the Fourteenth Amendment. Accordingly,
the plaintiffs cannot succeed under either the Fifteenth Amendment or
§ 2 of the Voting Rights Act. See note 8, supra.
39a
III. D o the A t-L arge E lectoral System s H ere Exist
B e c a u se o f P u r p o s e fu l D is c r im in a tio n ?
A rlington H eights v. M etropolitan H ousing C orp ., 429
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), teaches us
that an inquiry into legislative purpose is not an easy one.
“Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into
such circumstantial and direct evidence of intent as may be
available.” 429 U.S. at 266, 97 S.Ct. at 564. The Court
suggests several possible evidentiary sources for such a
determination. Among them are: (1) the historical
background of the action, particularly if a series of actions
have been taken for invidious purposes; (2) the specific se
quence of events leading up to the challenged action; (3)
any procedural departures from the normal procedural se
quence; (4) any substantive departures from normal pro
cedure, i.e., whether factors normally considered impor
tant by the decisionmaker strongly favor a decision con
trary to the one reached; and (5) the legislative history,
especially where contemporary statements by members of
the decisionmaking body exist. 429 U.S. at 267-68, 97
S.Ct. at 564.
The Stewart opinion in Bolden held that the so-called
Z im m er factors regarding discriminatory impact (see Z im
m er v. M cKeithen, 485 F.2d 1297 (5th Cir. 1973) (en
banc), a f f d s u b nom . E ast Carroll Parish School B oard v.
M arshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296
(1976)) were insufficient, standing alone, to support a
finding of discriminatory purpose. Fortunately, the
district court below correctly anticipated that the A rl
ington H eights requirement of purposeful discrimination
must be met, and thus made explicit findings concerning
intent in addition to and apart from its Z im m er findings.
Accordingly, there is no need to remand the case for a
40a
determination of whether purposeful discrimination ex
ists. See A rlington H eights v. M etropolitan H ousing
C orp., 429 U.S. 252, 272-73, 97 S.Ct. 555, 567, 50
L.Ed.2d 450 (White, J ., dissenting).
A. The C ounty Com m ission
[2] The at-large system for electing county commis
sioners is mandated by a 1901 amendment to the Florida
Constitution. Fla. Const., art. 8 § 5. There is considerable
evidence that at about that time the white citizens of
Florida adopted various legislative plans either denying
blacks the vote entirely or making their vote meaningless.
For example, Jim Crow laws were instituted in the early
1900’s, the Democratic Party established the white
prim ary10 * in 1900, and there was widespread disfranchise
ment of blacks.11
Although many actions in the early 1900’s had a clear in
vidious purpose, this court held in M cG ill v. Gadsden
C ounty Com m ission, 535 F.2d 277 (5th Cir. 1976), which
also involved an at-large system mandated by the 1901
amendment to the Florida Constitution, that no racial
motivation was behind the amendment. This, according to
M cG ill and Dr. Shofner, the plaintiffs expert historian, is
because there was such widespread disfranchisement of
blacks by that time that they did not represent a political
threat. Thus, relying upon M cG ill as reinforced by the
10Because the Democratic Primary was tantamount to the election,
the exclusion of blacks from the primary effectively denied them the
vote. Furthermore, the primary was conducted as a single-member
district election. In essence, therefore, commissioners were elected in
single-member districts though the general election was conducted at-
large.
"See generally C. Vann Woodward, The Strange Career o f Jim
Crow (3rd ed. 1974).
41a
conclusions of Dr. Shofner, the district court held that the
at-large system for electing county commissioners was not
adopted for discriminatory purposes. Based upon the
evidence, this finding of the district court was not clearly
erroneous and supported the court’s conclusion.
Although the at-large system did not have its genesis in a
purposeful attempt to exclude blacks from the political
process, under the Stewart analysis in Bolden, invidious
purpose in the operation o f the plan will also invalidate it.
446 U.S. at 65, 100 S.Ct. at 1499. The district court held
the at-large system for electing county commissioners is
being perpetuated for invidious purposes. According to
the district court, evidence o f such an intent can be found
in the fact that the County Commission has twice rejected
the recommendations of its own charter government com
mittees that the county change to single-member districts.
Four county commissioners testified at trial that race
did not motivate their refusal to submit the issue of single
member districts to the electorate. Each stated that it was
his personal belief that all voters of the county should be
allowed to vote on each of the commissioners so the board
would be more responsive to the needs of the community
as a whole. Thus, the commissioners asserted “good
government” reasons for perpetuation of the at-large
system.
The district court held, however, that the purpose of
perpetuating the present system was not legitimate.
In their post-trial memorandum, defendants ad
mit that the rejection of the single-member
district aspect of the charter proposal “reflects
the commissioners’ desire to maintain their in
cumbency.” This was also the court’s impression
at trial. Each of these commissioners had been
42a
elected in countywide elections. They could not
know how they would fare in single district elec
tions. Yet it is apparent that in such elections one
or more of them might be replaced by blacks.
To this court the reasonable inference to be
drawn from their actions in retaining at-large
districts is that they were motivated, at least in
part, by the possibility single district elections
might result in one or more of them being
displaced in subsequent elections by blacks.
That [the commissioners’] motivations may be
selfish rather than malicious toward blacks does
not alter the conclusion that their intent was to
continue the present dilution of black voting
strength. The present at-large election system for
county commissioners is being maintained for
discriminatory purposes.12
If the district court is correct in its conclusion that the
at-large election system is being maintained for
discriminatory purposes, then we must affirm its ultimate
decision that the system is unconstitutional.
We have reviewed the testimony, however, and found
no evidence of racial motivation by the county commis
sioners in retaining the at-large system. The trial court
stressed defendant’s statement in a post-trial memoran
dum that rejection of the charter proposal reflected the
commissioners’ desire to retain their incumbency. Reten
tion of incumbency was never mentioned in the testimony.
Moreover, in our view the desire to retain one’s incumben
l2Dist.Ct.Order, pp. 30-31.
43a
cy unaccompanied by other evidence ought not to be
equated with an intent to discriminate against blacks qua
blacks. The commissioners all testified that racial con
siderations played no role in their rejection of the charter
proposal; the plaintiffs introduced no evidence to the con
trary. The trial judge, o f course, was entitled not to believe
the commissioners’ testimony; in the absence of contradic
tory evidence, however, disbelief of that testimony is not
sufficient to support a contrary finding. See M oore v.
Chesapeake and O hio Railw ay, 340 U.S. 573, 576, 71
S.Ct. 428, 429, 95 L.Ed. 547 (1951). Therefore, the
evidence falls short “of showing that the appellants ‘con
ceived or operated [a] purposeful [device] to further racial
discrimination.’ ” 446 U.S. at 66, 100 S.Ct. at 1499,
quoting W hitcom b v. Chavis, 403 U.S. 124, 149, 91 S.Ct.
124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971).
B. The School B oard
[3] An at-large system for electing School Board
members was established by state law in 1947. Fla. Stat.
§§ 230.08, .10 (1975). The district court discussed the
enactment of that law, and, applying the A rlington
H eights criteria, found it to have been born from a desire
to exclude blacks.
From 1907, 1907 Fla.Laws, ch. 5697, § 1, until 1945
there was clear support for single-member district elec
tions for School Board members. During this period the
primary elections for School Board members were con
ducted as single-member district elections, while the
general elections were at-large. Because the all-white
Democratic primary was tantam ount to the election, from
1907 through 1945 the School Board was a de facto, if not
de jure, single member district body. Thus, in 1945 the
clear policy of the citizenry of Escambia County was to
44a
favor single-member district elections for School Board
members.
The 1945 decision in Davis v. State ex rel. Cromwell,
156 Fla. 181, 23 So.2d 85 (1945) (en banc), changed that,
however, by declaring unconstitutional the white primary.
In the very first legislative session following Davis, the
legislature enacted statutes requiring at-large elections in
both the primary, 1947 Fla.Laws, ch. 23726, § 7, and the
general election, 1947 Fla. Laws, ch. 23726, § 9.
Looking at the change from single-member districts to
at-large districts through Arlington Heights glasses, the
conclusion that the change had an invidious purpose is in
escapable. The specific sequence of events leading up to
the decision mandates the conclusion that the citizens of
Escambia County in 1945, with the demise of the white
primary, were not going to take any chances on blacks
gaining power and thus purposefully sought to dilute
black voting strength through the use of an at-large
system. Furthermore, the history of the county suggests a
substantive policy which favored single-member districts
for the election of School Board members. The abrupt,
unexplained departure from that forty-year policy upon
the heels of the white primary’s demise justifies the district
court’s conclusion that the change was racially motivated.
Accordingly, we concur in the statement of the district
court that “[t]he evidence of discriminatory motives
behind the at-large requirements of the 1947 system is
compelling.”
There is recent evidence of community awareness that
the effect of the at-large system is to dilute the voting
strength of blacks, and evidence that the dilutive effect
will be capitalized on by the white majority to keep the
School Board responsive to them. In 1975 the School
Board took a position favorable to black interests on the
45a
question of whether the nickname “Rebel” should con
tinue to be used at Escambia County High School.13
The district court found, that, in at least partial retalia
tion against the Board for its decision on the issue, the
legislative delegation introduced a bill to increase the size
of the Board to seven members, to change from an elective
to an appointive school superintendent, and to reduce the
salaries o f Board members. The bill as introduced had the
unanimous support of the local delegation.14 As is re
quired by state law, a referendum election was held to pre
sent the bill to the Escambia County electorate for ap
13In 1973, black students intervened in the federal school desegrega
tion suit to challenge the continued use of the nickname “Rebel” at
Escambia County High School. White students and parents also in
tervened, but in defense of the nickname. This provoked considerable
racial unrest in the school.
The district court enjoined further use of the “Rebel” name,
Augustus v. School Board o f Escambia County, 361 F.Supp. 383
(N.D.Fla. 1973), but the decree was modified on appeal. 507 F.2d 152
(5th Cir. 1975). The Fifth Circuit directed the district court to give the
Board the opportunity to resolve the “Rebel” issue on its own. The
Board’s solution was to permit reinstatement of the nickname if there
was a two-thirds majority vote in favor of doing so by the students at
the high school. The matter was voted on and though a majority of the
students voted in favor of reinstatement, it was not a two-thirds
majority.
There was an angry reaction to the result and at least one attempt
was made to influence a School Board member to vote to reinstate the
nickname notwithstanding its failure to garner the support of two-
thirds of the student body. The School Board did not capitulate, and
its tenacity led to the “Board packing” episode, infra.
' “•Changes in local governments are submitted to the Florida
Legislature through the local delegation, generally based on a resolu
tion by the local government. As a practical matter, local legislation
will pass the legislature if it has the unanimous support of the local
delegation. The proposed change is then submitted to the electorate in
the form of a referendum. Discriminatory intent at any stage will
infect legislation.
46a
proval. The proposals to increase the size of the Board and
to reduce members’ salaries passed overwhelmingly, but
the provision to change to an appointed superintendent
was defeated .'5 1
1 Generally, the change from a five-member to a seven-member
school board is accompanied by a change from an elected to an ap
pointed superintendent. By separately submitting the two proposals,
Escambia County is now the only county in Florida to have a seven-
member board and an elected superintendent.
The School Board challenged the change to a seven-member board
in court. The Florida Supreme Court held against the board, stating
that “[t]he political motivations of the legislature, if any . . . are not a
proper matter of inquiry for this Court.” School Bd. o f Escambia Co.
v. Florida, 353 So.2d 834, 839 (Fla. 1977) (Hatchett, J., dissented).
As a general rule, a court does not inquire into the political motiva
tions of legislators. The Supreme Court stated in Arlington Heights v.
Metropolitan Housing Corp., 429 U.S. 252 at 265-66, 97 S.Ct. 555 at
563:
[I]t is because legislators and administrators are properly
concerned with balancing numerous competing considera
tions that courts refrain from reviewing the merits of their
decisions, absent a showing of arbitrariness or irration
ality. But racial discrimination is not just another com
peting consideration. When there is a proof that a
discriminatory purpose has been a motivating factor in the
decision, this judicial deference is no longer justified.
(footnote omitted). It appears that the School Board did not argue in
state court that the plan to increase its number had an invidious pur
pose, and thus, the Florida Supreme Court cannot be faulted for
deferring to the legislature. In this court, however, the plaintiffs have
made it painfully obvious that invidious purposes still motivate some
of Florida’s legislators’ decisions. Such motivations were made not
simply undesirable but unconstitutional over one hundred years ago.
People have become more subtle and more careful in hiding their
motivations when they are racially based. This makes the district
court’s inquiry in the first instance and ours on review more difficult.
However, it is obviously equally important to invalidate actions
motivated by subtle, hidden invidious purposes as it is to do away with
more blatant forms of discrimination.
47a
It is impossible to know unequivocally what motivated
the electorate to vote to increase the size of the School
Board. However, the fact that an earlier referendum for
such an increase failed by a two-to-one margin, in con
junction with the racially charged atmosphere at the time
of the second referendum, strongly suggests the vote was
racially motivated. The district court described the situa
tion as follows:
The 1976 change in the school board’s election
system was avowedly to pack the board to make
it more responsive to the white majority on a par
ticular racially polarized issue . . . . This is a tell
ing indication o f the legislators’ and community’s
recognition and use of the at-large system as a
method of rendering black voters politically im
potent to the desires o f the white majority.
Dist.Ct.Order, p. 31.
The district court correctly held that the at-large system
of electing School Board members was developed with a
discriminatory purpose and is being utilized by the m ajor
ity population for such a purpose. Accordingly, the
district court was correct in holding the at-large system for
electing School Board members unconstitutional.16
16The district court, in determining that the School Board election
plan was being maintained for discriminatory purposes, stated that it
considered Zimmer factors in conjuction with other evidence. Zimmer
v. McKeithen has been invalidated by Bolden and any conclusion
based solely on Zimmer factors would be erroneous. Here, however,
the court’s conclusion that the plan had been maintained for
discriminatory purposes was based on other evidence, i.e., the 1976
referendum, in conjunction with the Zimmer factors. Moreover, as
regarding the School Board, a finding of discriminatory motive in
maintaining the system is not necessary to invalidate it; the court’s
finding of discriminatory intent in the creation and discriminatory im
pact suffice to satisfy the Bolden standard.
48a
C. City Council
In 1931 a council-manager form of government was in
stituted in Pensacola. As originally enacted, it provided
for ten council members: five were elected from single
member wards and five were elected at-large but with a
ward residency requirement.
In 1955, a black ran a very close race against a white for
one of the single-member district seats. There was
testimony that when the council next reapportioned the
wards, it purposefully gerrymandered that ward to in
crease its percentage of whites. Furthermore, three years
later,' the council asked the local legislative delegation to
change the law so that all the council members would run
at-large. A man who served on the city council at that time
testified at trial, and the following colloquy occurred:
THE COURT: And the reason for that change
[to 10 at-large seats] was what?
A. Was because then we wouldn’t have this
hassle of reapportioning to keep so many blacks
in this ward and so many whites in that ward and
keep the population in balance as to race.
(R. XVI-605).
Other evidence of an invidious purpose in changing
those five single-member district seats to at-large seats
came in testimony by then-Governor Reubin Askew. In
1959, Askew was a first-term state representative from
Escambia County. He testified that he did not have a
discriminatory motive in supporting the change to all at-
large seats, testimony which was credited by the district
court. He further testified that though he was unaware of
the council members’ motives generally, he was aware that
one council member had indicated the change was wanted
to avoid a “salt and pepper council.”
49a
On the eve of the referendum election at which the
change to all at-large seats was at issue, an editorial in the
Pensacola Journal stated that there would be advantages
to having all council members elected at-large. “One
reason is that small groups which might dominate one
ward could not choose a councilman. Thus, one ward
might conceivably elect a Negro councilman though the
city as a whole would not. This probably is the prime
reason behind the proposed change.”
It is not easy for a court in 1981 to decide what
motivated people in 1959. The series of events leading up
to the current system of electing the city council of Pen
sacola, however, certainly suggest racial motivation. Fur
thermore, though not legislative history, editorials written
contemporaneously with the action are probative evidence
of the motivation of the action.
The district court found that “[t]he conclusion of plain
tiffs’ expert historian that race was a concurrent
motivating factor in the 1959 change is inescapable (foot
note omitted).” We agree.
IV. Conclusion
Having found that the at-large systems for electing
school board members and city council members were
born out of a desire to keep blacks from being elected, our
inquiry is virtually complete.
[4] The Supreme Court in Bolden found proof of pur
pose to be the major stumbling block, apparently agreeing
that if the Mobile system had been established intentional
ly to keep blacks from being elected, then a constitutional
case17 would have been made. In other words, while
17See note 9, supra, for a discussion of which constitutional provi
sion has been violated.
50a
there is nothing per se unconstitutional about the at-large
system of electing local governmental bodies, e.g., White
v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314
(1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858,
29 L.Ed.2d 363 (1971), if the purpose of adopting or
operating that particular system is invidiously to minimize
or cancel out the voting potential of racial minorities, and
it has that effect, then it is unconstitutional.
In this case we agree with the district court that the at-
large systems for city council and school board were pur
posely adopted to minimize the voting strength of the
black community. Because it is undeniable that the
systems have in fact had that effect,18 we conclude that
they are unconstitutional.
The defendants argue that such a conclusion is not war
ranted because: (1) white candidates actively seek black
support; (2) the district court found them to be responsive
to the needs of the black community; and (3) as to the city,
there is no evidence that the system is being maintained for
invidious reasons.
18The defendants argued at length in their briefs and at oral argu
ment that there is no discriminatory effect in this case because whites
campaign for black votes and were found to be generally responsive to
the needs of the black community. The defendants’ argument misses
the point. That the governing body may be benevolent is not relevant.
The effect necessary for a case to be made is dilution of the votes of
the minority. This is generally proven by evidence that a substantial
minority is consistently unable to elect candidates of its choice.
In this case it is very clear that the at-large systems are having the ef
fect they were designed to have — blacks are consistently defeated in
their bids for elective office. This is not to be interpreted to mean, of
course, that every time a black is defeated in a head-to-head race
against a white that the election is tainted. We hope eventually we will
reach the point where local governing bodies can be elected on an at-
large basis, and people will vote for candidates based on their in
dividual merit and not on the color of their skin. Unfortunately, we
have not yet reached that stage.
51a
The first two arguments grow out of the district court’s
analysis of the now-discredited Zimmer criteria. After
Bolden it would seem that neither of those two factors,
whether whites campaign for black support or whether the
people in elective positions are responsive to minority
needs, is relevant to the constitutional inquiry. Rather, the
inquiry is more circumscribed — was the system pur
posefully designed or perpetuated to minimize the voting
strength of a recognizable, distinct class which has been
singled out for different treatment under the laws,
Castaneda v. Partita, 430 U.S. 482, 494, 97 S.Ct. 1272,
1280, 51 L.Ed.2d 498 (1977), and does it have that effect?
Whether current office holders are responsive to black
needs and campaign for black support is simply irrelevant
to that inquiry; a slave with a benevolent master is
nonetheless a slave.
We can similarly dispose of the city council’s argument
that because there is a finding that its at-large system is not
being perpetuated to minimize black voting strength, it is
immune from constitutional attack. Essentially, it argues
that the passage of time can transform an unconstitutional
system into a constitutional one. We disagree. If the
system was unconstitutional in its inception and if it con
tinues to have the effect it was designed to have, then the
pure hearts of current council members are immaterial.19
The judgment of the district court is AFFIRMED in
part and REVERSED in part.
19That is not to say pure hearts on the part of council members are
not desirable or laudable but only that this is not relevant to the issue
here presented. Our purpose is to correct a system which was set up to,
and does, minimize the voting strength of a sizeable minority of the
population. We are not here to punish or praise the current policies or
motivations of these council members — good people can be elected
by a bad system. It is the system that is unconstitutional and that must
be corrected.
52a
2. Decision of the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1249 (5th
Cir. 1981).
Henry T. McMILLAN et al.,
Plaintiffs-Appellees,
v.
ESCAMBIA COUNTY, FLORIDA, et al.,
Defendants-Appellants.
No. 80-5011.
United States Court of Appeals,
Fifth Circuit.
Feb. 19, 1981.
Appeals from the United States District Court for the
Northern District of Florida; Winston E. Arnow, Chief
Judge.
Richard I. Lott, County Atty., Ray, Patterson & Kievit,
P .A ., Pensacola, Fla., Rhyne & Rhyne, William S. Rhyne
and Charles S. Rhyne, Washington, D.C.; for defendants-
appellants.
Blacksher, Menefee & Stein, P .A ., J. U. Blacksher,
Mobile, Ala., Kent Spriggs, Tallahassee, Fla., Jack
Greenberg, New York City, Edward Still, Birmingham,
Ala., for plaintiffs-appellees.
Before COLEMAN, PECK* and KRAVITCH, Circuit
Judges.
♦Senior Circuit Judge of the Sixth Circuit, sitting by designation.
53a
KRAVITCH, Circuit Judge:
This is an appeal from the remedy ordered by the
district court to correct the found unconstitutionality of
the system for electing county commissioners. Because we
held today in No. 78-3507, 638 F.2d 1239, that the at-large
system for electing county commissioners is not un
constitutional, the order appealed from is hereby
VACATED.
54a
3. M emorandum Decision and Order o f the United
States for the Northern District o f Florida in
M cM illan v. Escam bia County, Florida, PCA
N o. 77-0432 (N .D . Fla. Dec. 3, 1979).
a. M emorandum Decision.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et al.,
Plaintiffs,
vs. PCA No: 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
Defendants.
__________________________________ /
M E M O R A N D U M D E C ISIO N
On September 24, 1979, this court in memorandum
decision held that Escambia County did not have the
legislative authority to reapportion itself so that, if the
voters rejected the proposed county charter, the court
would be forced to adopt a judicially devised plan for
redistricting that utilized five single-member districts. On
November 6, 1979, the voters of Escambia County re
jected the proposed charter and, accordingly, the court
held a hearing on November 26 to consider and determine
the exact plan to be approved and placed into effect as
judicially adopted by the court. In a letter to all counsel of
record, the court invited both sides to submit proposed
plans as to the appropriate district boundaries with the
55a
suggestion that there was some merit in having the districts
conform to those adopted for the election of members to
the Escambia County School Board.
At the hearing, the county declined to take a position as
to appropriate district lines. Plaintiffs found the school
board plan acceptable. Accordingly, it is the decision of
this court that, for purposes of electing members of the
Escambia County Board of County Commissioners,
Escambia County shall be reapportioned into five single
member districts, the boundaries of which shall conform
to those adopted by the court in its order of February 27,
1979, respecting election of members to the Escambia
County Board of Education.
The county did request that the single-member plan be
“phased-in” by permitting Commissioners John Frenkel
and Kenneth Kelson to serve out the balance of their terms
as commissioners, which expire in 1982. Under the
county’s plan, Commissioners Frenkel and Kelson would
complete the four year terms to which they had been
elected in the previous at-large election, with Districts 2
and 4 each electing no commissioner until 1982. Under the
county’s suggestion, Districts 1, 3 and 5 would elect
representatives to four year terms in 1980. District 3 is the
only district that has a black majority; that district would
be afforded opportunity to elect a commissioner at the
earliest possible opportunity, under the county’s proposal.
Plaintiffs oppose the county plan. Instead, plaintiffs
seek to have the entire commission elected in 1980 with the
representatives of Districts 1, 2 and 3 to serve four year
terms and the representatives of Districts 4 and 5 to serve
two year terms. In 1982, representatives of Districts 4 and
5 would be elected to four year terms and thus the system
of staggered elections would be preserved.
56a
Having reviewed the arguments presented at hearing,
the post-hearing briefs submitted by the parties, and its
own research into the question, the court finds that the
plaintiffs’ plan providing for the election of all members
of the County Commission in 1980 should be adopted.
The county contends that “phasing-in” the single
member plan will minimize any disruption that might
result from a complete turnover of commissioners in 1980
by enabling the two incumbents to lend their experience
and facilitate the transition from at-large to single
member districts. The county also asserts the two commis
sioners were duly elected to four year terms running
through 1982 and thereby have some degree of entitlement
to finish them. Moreover, permitting them to serve out
their full terms will avoid the expense of two elections in
1980 and will avoid forcing two commissioners elected in
1980 to serve truncated terms of only two years.
The court has considered these arguments but finds
there are compelling arguments to the contrary. Most im
portantly, where a governing authority is found to be
holding office by virtue of an election scheme which is
constitutionally infirm, a court, under its equitable
authority, should take steps to correct such defects at the
earliest possible date. Wallace v. House, 377 F.Supp. 1162
(W.D. La. 1974), a ffd , 538 F.2d 1138 (5th Cir. 1976) and
cases cited therein. Moreover, while “phasing-in” the
single-member plan, as suggested by the county, would
give, as would plaintiffs’ proposal, reasonable opportunity
to the plaintiff class to elect a commissioner at the earliest
possible opportunity, the county’s suggestion would also
create a situation in which some citizens of the county had
greater representation than others. From 1980 to 1982
three districts would have their own representatives while
57a
the other two would have representatives who were elected
by the entire county. Election of commissioners from all
districts in 1980 provides the speediest means to insure
equal representation for all citizens of Escambia County.
Furthermore, there are countervailing considerations to
other arguments advanced by the county. All candidates
for commissioner in the 1978 election ran with the
knowledge that, due to prior rulings in this suit, new elec
tions were likely to be held in 1980. Moreover, “[n]o office
holder has a vested right in an unconstitutional office any
more than he has a right to be elected to that office.”
Wallace v. House, supra at 1201, quoting Reynolds v.
State Election Board, 233 F.Supp. 323 (W.D. Okl. 1964)
(three judge court). Finally, as plaintiffs point out,
evidence adduced at earlier stages of the case indicates that
incumbents in Escambia County are reelected with some
degree of regularity. Thus, there is at least some possibility
that, if all members on the commission are elected in 1980,
there still will be some continuity in membership from the
prior commission.
Therefore, the court finds that election of all five
members of the Escambia County Board of County Com
missioners in 1980 under a single-member plan is ap
propriate.
In reaching this conclusion, the court has not over
looked the fact that, as the county points out, its request is
not without precedent. Suffice it to say that, in the factual
situation here presented, the court concludes its finding
here is the one it should make.
There remains the question of the best method to stag
ger the terms of the commissioners. Under the plan
adopted for election of members to the school board,
58a
Districts 1, 2 and 3 are to elect representatives in 19»u to
serve two year terms, while Districts 4 and 5 elect members
to four year terms. The rationale for such is that it pro
vides for the election every two years of three school
district officials, with three of them being school board
members, and the other three being two school board
members and the superintendent of schools. As the
superintendent’s elected term expires in 1980, there was
provided for the election of only two members to serve
four year terms commencing in 1980. As plaintiffs point
out, adoption of a “mirror-image” plan for election of
county commissioners will ensure that each district in the
county will have one major county board office to vote for
in each major election year. Moreover, adoption of a plan
that calls for election in 1980 of three commissioners to
four year terms will present a savings in expense to the
county and the candidates. It will also mean three, instead
of two, are elected in 1980 to the normal four year term.
Therefore, the court finds that a proper plan calls for elec
tion of all commissioners in 1980 with representatives of
Districts 1, 2 and 3 to serve terms of four years and
representatives of Districts 4 and 5 to serve initial terms of
two years. In subsequent elections, the terms of all elected
will be for four years.
Order of this court will be entered in accordance with
the foregoing.
DATED this 3 day of December, 1979.
/%/ Winston E. Arnow
WINSTON E. ARNOW, Chief Judge
59a
b. Order.
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et al.,
Plaintiffs,
vs. PCA No. 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
Defendants. * 1
ORDER
Pursuant to and in accordance with Memorandum Deci
sion of this date, it is
ORDERED AND ADJUDGED as follows:
1. For the purposes of electing members of the Escam
bia County Board of County Commissioners, Escambia
County shall be reapportioned into five single-member
districts, the boundaries of which shall conform to those
adopted by this court in its Order of February 27, 1979,
respecting election of members to the Escambia County
Board of Education, a description of which shall be at
tached as an appendix to this order. A map of such plan
shall be available for inspection in the office of the clerk of
this court.
2. At the next regularly scheduled primary and general
elections in 1980, commissioners representing all five
single-member districts shall then be elected; provided,
however, the court retains the power to alter the date of
the aforesaid elections, upon the appropriate motion of
60a
one or more of the parties or upon its own motion,
depending in particular upon the course of future events in
connection with appeals of this court’s judgment or in
related cases.
3. To preserve the staggered terms now provided by
law for members of the Escambia County Board of Coun
ty Commissioners, following their election in 1980, those
commissioners elected from Districts 1, 2 and 3 shall serve
terms of four years, while those elected from Districts 4
and 5 shall serve terms of two years, initially. Thereafter,
all board members shall be elected for terms of four years.
4. Following the publication of each federal decennial
census, the districts from which members of the Escambia
County Board of County Commissioners are elected shall
be reapportioned to fairly comply with one-person, one-
vote requirements and the decrees of this court.
It is further ORDERED AND ADJUDGED that the
defendants, Escambia County, the Board of County Com
missioners of Escambia County, Gerald W oolard, Ken
neth Kelson, Zearl Lancaster, John E. Frenkel, Jr., and
Marvin Beck, individually and in their official capacities
as members of the Escambia County Board of County
Commissioners; Joe Oldmixon, individually and in his of
ficial capacity as Supervisor of Elections for Escambia
County, their successors, officers, agents, servants,
employees, and attorneys, and those persons in active con
cert of participation with them who receive actual notice
of this order by personal service or otherwise, are hereby
enjoined from failing to:
(1) Redistrict and reapportion as set out above;
(2) Make and hold the elections as redistricted and
ordered above.
61a
Pursuant to Section 3 of the Voting Rights Act of 1965,
as amended in 1975, 42 U.S.C. § 1973a, the court retains
jurisdiction of this action for a period of five years unless
such period is shortened or extended by further order of
this court. During the period of retained jurisdiction, no
voting qualification or prerequisite to voting, or standard,
practice or procedure with respect to voting different from
that in force or effect at the time this action was com
menced shall be enforced unless and until the court finds
that such qualification, prerequisite, standard, practice, or
procedure does not have the purpose and will not have the
effect of denying or abridging the right to vote on account
of race or color; provided that such qualification, prere
quisite, standard, practice, or procedure may be enforced
if the qualification, prerequisite, standard, practice, or
procedure has been submitted by the chief legal officer or
other appropriate official of Florida or of Escambia
County to the Attorney General of the United States and
the Attorney General has not interposed an objection
within sixty (60) days after such submission, except that
neither this court’s findings nor the Attorney General’s
failure to object shall bar a subsequent action to enjoin en
forcement of such qualification, prerequisite, standard,
practice or procedure.
DONE AND ORDERED this 3 day of December, 1979.
/ s / Winston E. Arnow
WINSTON E. ARNOW, Chief Judge
62a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et a l., )
Plaintiffs, )
vs. ) CIVIL ACTION
No: 77-0432
ESCAMBIA COUNTY, FLORIDA, )
e ta l., )
Defendants. )
_____________________________________________________________ - _____________)
E L E C T O N P L A N O F D E F E N D A N T
SC H O O L B O A R D
In response to the Court’s final judgment-dated July 10,
1978, Defendant School Board has adopted an election
plan to be implemented in the event that the Court’s judg
ment against Defendant School Board is ultimately af
firmed. The plan is described as follows:
There shall be five School Board districts of contiguous
territory as nearly equal in population as practicable. One
School Board member shall reside in each district. The
districts are defined by the numbers of the voting precincts
as they existed on August 23, 1978, contained within each
district as follows:
63a
District 1 District 2 District 3 District 4 District 5
Population Population Population Population Population
41,238 40,845 40,525 41,530 39,785
Precincts: Precincts: Precincts: Precincts: Precincts:
1 2 12 4 6
5 3 13 17 7
26 24 14 35 8
28 25 15 39 10
41 32 27 40 11
43 34 31 42 16
54 44 48 46 18
55 47 49 50 19
61 57 56 51 20
70 58 62 63 21
83 59 76 64 22
87 65 90 66 23
97 71 72 33
99 77 93 36
100 78 94 37
102 79 96 45
105 80 98 53
113 81 106 69
82 107 101
84 108 111
103 109 112
104 110
114
The population of each district estimated from 1970
U.S. Census date is set forth in the table.
District 3 was deliberately designed to effectuate a 55
per cent black population majority and a 60 per cent black
electoral majority within the district. All other districts
were designed without regard to race.
The electors residing in each of the five districts will
elect a single School Board member who will reside within
the district. In addition, the electors residing in the county
64a
will elect two other School Board members to serve in
numbered places without regard to the candidates’ places
of residence within or without a particular district.
In the first election to apply this plan, School Board
members residing in Districts 1 and 2 and one of the
School Board members elected at large will be elected to
serve two-year terms; School Board members residing in
Districts 3, 4 and 5, and the other School Board member
elected at large will be elected to serve four-year terms.
Thereafter, all School Board members shall be elected to
serve staggered terms of four years.
Respectfully submitted,
LOUIS F. RAY, JR., P.A.
By / s / Louis F. Ray, Jr._______
Louis F. Ray, Jr.
A member of the firm
Attorneys for Defendant
School Board, et al.
Sixth Floor, Seville Tower
226 South Palafox Street
Pensacola, Florida 32501
and
RHYNE & RHYNE
By: Charles S. Rhyne
A member of the firm
Of Counsel to
Attorneys for Defendant
School Board, et al.
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
65a
CERTIFICATE OF SERVICE
We hereby certify that a copy of the foregoing has been
furnished to: J.U . Blacksher, Esquire and Larry T.
Menefee, Esquire of Crawford, Blacksher, Figures &
Brown, 1407 Davis Avenue, Mobile, Alabama 36603,
Kent Spriggs, Esquire, 324 West College Avenue,
Tallahassee, Florida 32301, Jack Greenberg, Esquire and
Eric Schnapper, Esquire, Suite 2030, 10 Columbus Circle,
New York, New York 10019, W. Edward Still, Esquire,
601 Title Building, Birmingham, Alabama 35203, At
torneys for Plaintiffs, and Don J. Caton, Esquire, Second
Floor, City Hall, Pensacola, Florida, Attorney for
Defendant City of Pensacola, and Richard I. Lott, Es
quire, 28 West Government Street, Pensacola, Florida
32501, Attorney for Defendant Escambia County, by U.S.
mail this 24th day of August, 1978.
/ s / Louis F. Ray, Jr.
LOUIS F. RAY, JR.
66a
4. M emorandum Decision o f the United States
District Court for the Northern District o f
Florida in M cM illan v. Escam bia County,
Florida, PC A N o . 77-0432 (N .D . Fla. Sept. 24,
1979).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et al.,
Plaintiffs,
vs. PCA No: 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
Defendants.^,
M E M O R A N D U M D E C ISIO N
This matter is before the court on the question of ap
proval of a plan for electing county commissioners.
Heretofore the county commissioners in this county
have proposed to this court a plan, by an ordinance
adopted on September 21, 1978, providing for a seven
member board of county commissioners, with five
members to be elected from single member districts and
two members to be elected by the voters of the county at
large.
Because Escambia County was considering a change to
a charter form of county government, plaintiffs requested
the court to withhold action on that plan until a future
date when the proposed form of charter government
would be known. The defendants did not oppose such re
quest and so the court has withheld action.
67a
Now before the court is the fact that a charter commis
sion appointed by the local legislative delegation of the
Florida Legislature has proposed a county charter for the
governing of Escambia County. A referendum election on
that charter question has now been set for November 6,
1979, at which time the voters may approve or disapprove
of the charter.
Parties before the court agree that the time is now ripe
for this court to take action, both on the plan heretofore
proposed by the county commissioners, and the one pro
vided for in the proposed county charter.
The plan provided for in the proposed county charter
calls also for a seven member board of county commis
sioners with five members to be elected from single
member districts and two members to be elected by the
voters of the county at large. Thus, the two plans before
the court are strikingly similar. There is a difference in
that, while the plan submitted to the court by the defend
ant county commissioners fixes the boundaries of con
tiguous and compact districts conforming as nearly as
possible with the one man one vote requirement, such task
under the charter government proposal would be under
taken by a reapportionment commission.
In Wise v. Lipscomb, 437 U.S. 535 (1978), the court
held that a plan of reapportionment submitted by the City
of Dallas should be considered not as judicially imposed,
but as legislatively enacted, and accorded deference as
such. Five of the justices said that legislative authority was
required before the plan could be considered as legislative
in nature; four said the plan should be so considered even
though the commission had no legislative authority. Of
the five justices, two found that the record before the
court suggested no statutory, state constitutional, or
68a
judicial prohibition on the authority of the city council to
enact a municipal election plan under circumstances such
as those presented there and that the court was in no posi
tion to overturn the district court’s acceptance of the city
ordinance as a valid legislative response to the court’s
declaration of unconstitutionality. The other three justices
said that the legislative authority did not exist.
As this court understands the decision, a majority of the
court, therefore, holds that in a situation like the one
presented here there must exist legislative power before
any plan adopted by the board of county commissioners
of this county may be considered by this court as
legislatively adopted.
The Constitution of Florida prohibits any form of elec
tion for county commissioners other than the at large
system. It was that system that has been found unconstitu
tional by this court, insofar as these defendants are con
cerned.
However, the Florida Constitution also provides that
the Escambia County Commission has “only such power
of self government as is provided by general or special
law.” Thus the county commission of Escambia County
does not now possess the legislative authority to reappor
tion itself so that the plan adopted by it may not, under
Wise, be given legislative deference. Instead, any plan sub
mitted by it must be treated instead as one judicially de
vised and imposed.
Under the authorities before the court, a judicially
devised plan must require total use of single member
districts unless persuasive justification to the contrary ex
ists. No such persuasive justification is here established.
Because of that, the plan heretofore submitted by the
county commission of Escambia County must be disap
proved by this court.
69a
However, respecting the proposed charter commission
plan, even though it is substantially the same election plan,
the test to be applied by this court is a different one. Under
Florida’s Constitution, counties operating under charters
have all powers of local self government not inconsistent
with general law or with a special law approved by the vote
of the electors. Thus, if the voters of Escambia County
had, by referendum, approved the proposed charter so
that it then becomes effective, the seven member plan in
corporated in it should be treated by this court as a
legislatively adopted plan.
In motion before this court, plaintiffs have stated that:
3. In consideration of the opportunity for a
speedier reapportionm ent providing single
member districts, and for the limited purpose of
this motion for court action prior to the
November 6 charter referendum, plaintiffs waive
any objection they may have to the five-two
reapportionm ent scheme proposed by the
Charter Commission, subject to the condition
that district boundaries subsequently drawn if
the charter is approved remain subject to review
by this court for compliance with the remedial
purposes of its prior judgments herein.
In Wise, the legislative remedy plan which was approved
contained two black districts out of eleven. Dallas was at
that time approximately 25% black. Thus, the districts in
which the blacks were reasonably assured of being able to
obtain black representation constituted approximately
18% of the total districts and so, to that extent, was not
proportional to the black population percentage.
In the instant case blacks constitute approximately 20%
of the population of Escambia County. The evidence
before the court does establish that the county may be
70a
drawn into five single member districts, complying with
the one man one vote requirement, and with one of those
districts having sufficient number of blacks so as to
reasonably assure the ability to elect a black candidate in
one district.
Thus, there is presented before this court a situation in
which blacks may be reasonably assured of only one of the
seven seats on the county commission, or 14.3% of the
total number of seats. As in the Wise case, they are not
reasonably assured of seats in proportion to their popula
tion.
However, in view of the plaintiffs’ position taken before
this court, and at least similarities in percentages between
the situation here presented and the situation existing in
Wise, the court concludes it should give its tentative ap
proval, as suggested by the parties, to the reapportionment
plan contained in the proposed Escambia County charter
to be submitted to the referendum election on November
6, 1979.
Such approval is subject to the condition that the single
member district boundaries that may subsequently be
drawn by the reapportionment commission, if the pro
posed Escambia County charter is approved, shall be sub
mitted to the court for its review and approval as an ade
quate remedy for the present racially discriminatory elec
tion system.
DATED this 24th day of September, 1979.
/s / Winston E. Arnow
WINSTON E. ARNOW, Chief Judge
71a
5. M emorandum Decision and Judgm ent o f the
United States District Court for the Northern
District o f Florida in M cM illan v. Escam bia
County, Florida, PC A N o. 77-0432 (N .D . Fia.
July 10, 1978).
a. M emorandum D ecision.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et al.,
Plaintiffs,
vs. PCA No. 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
Defendants.
ELMER JENKINS, et al.,
Plaintiffs,
vs. PCA No. 77-0433
CITY OF PENSACOLA, et al.,
Defendants.
M E M O R A N D U M D E C ISIO N
These consolidated actions were filed on March 18, 1977
by black citizens of Pensacola and Escambia County,
Florida alleging that the at-large systems of electing
members of the Board of County Commissioners of
Escambia County, the School Board of Escambia County,
and the City of Pensacola Council deny black citizens
equal access to the political process leading to nomination
and election to such governmental bodies. Plaintiffs con
tend that, accordingly, the at-large election systems are
72a
fundamentally unfair, with respect to black citizens, and
violate their rights protected by the first, thirteenth and
fifteenth amendments to the Constitution of the United
States; both the Due Process and Equal Protection clauses
of the fourteenth amendment; the Civil Rights Act of
1870, 42 U.S.C. § 1971(a)(1); and the Voting Rights Act
of 1965, 42 U.S.C. § 1973.
Defendants in Civil Action No. 77-0432 are Escambia
County, Florida; the incumbent members of the Board of
County Commissioners of Escambia County, who are
sued individually and in their official capacities; the
School District of Escambia County; the School Board of
Escambia County; the members of the School Board of
Escambia County, who are sued individually and in their
official capacities; and the incumbent Supervisor of Elec
tions for Escambia County, who is sued individually and
in his official capacity. The defendants in Civil Action No.
77-0433 are the City of Pensacola, Florida; the incumbent
members of the Pensacola City Council, who are sued in
dividually and in their official capacities; the Clerk for the
City of Pensacola, who is sued individually and in his of
ficial capacity; and the Supervisor of Elections for Escam
bia County, who is sued individually and in his official
capacity.
By way of relief plaintiffs seek a declaratory judgment
and injunction against the present at-large election systems
and an order requiring that the aforesaid local governmen
tal bodies be apportioned into single-member districts so
that all members of the county commission, the school
board and the City Council of Pensacola will be elected in
a manner that avoids debasing, diluting, minimizing or
cancelling out the voting strength of black citizens. Plain
tiffs also seek an award of their attorneys’ fees and costs
and other general equitable relief.
73a
Many of the facts and much of the law in these two
cases are the same. Because this is so, to avoid repetition,
one memorandum decision containing findings of fact and
conclusions of law will be entered in the consolidated
cases. Varying factual matter and points of law between
the cases will, to the extent necessary, be dealt with
separately in this decision.
TH E B A C K G R O U N D O F TH E TH REE
E L E C T IO N SYSTE M S
The Board of County Commissioners is the legislative
and governing body of Escambia County. The board is
composed of five members who serve for four years stag
gered terms and receive annual salaries of $20,402.88.
Although they each must run for numbered places cor
responding to the individual districts, in which they live,
repectively, they are elected at-large by the qualified voters
of the entire county. Thus they must each run for office in
a single district covering approximately 657 square miles
(fifty-one miles in length) with a population of 205,334 in
1970 and a projected population of 269,508 in 1980. 1970
United States Census. There is no majority vote require
ment to be elected, although no one has ever been elected
without a majority. Political parties given major party
status by the state are required to hold primaries in which
only party members vote. Candidates also run at-large for
numbered places in the primaries, and a majoriy vote is re
quired for the nomination.
The School Board of Escambia County is the local
governmental body charged with organizing and control
ling the public schools of the School District of Escambia
County. The School Board is composed of seven members
who serve four year staggered terms. Five of the members
74a
must reside in residency districts; two may reside anywhere
in the county. All of them run for numbered places and
are elected at-large in the county just as the county com
missioners are. There is no majority vote requirement, but
no one has been elected without a majority. The party
nominating procedure is identical to that of the county
commissioners.
The Pensacola City Council is a ten-member panel
which serves as the city’s policymaking body. The
members must run for numbered places, two from each of
five wards in which they must reside. They must, however,
run at-large in a city with a projected 1980 population of
62,547 (59,507 in 1970). 1970 United States Census. Elec
tions are nonpartisan with a majority vote requirement.
The board of county commissioners and school board
election system had their genesis in the midst of a con
certed state effort to institutionalize white supremacy. Un
til 1901, the county commissioners were appointed by the
governor. The evidence shows that appointment was
favored over election to ensure against the possibility that
blacks might be elected in majority black counties. Efforts
to keep blacks out of government at the county level began
during Reconstruction and were greatly intensified during
the state’s “redemption” by white Democrats. To ensure
that blacks were not elected in majority black counties,
county commissioners were appointed by the governor
from 1868 to 1901. The poll tax was instituted in 1889 to
disenfranchise blacks. 1889 Fla. Laws, ch. 3850, § 1.
Although black voter registration remained high, at least
in some parts of the state, up until the turn of the century,
enough blacks were disenfranchised to permit the state to
allow at-large election of county commissioners, Fla.
Const., art. 8, § 5 (1901), and the members of the newly
75 a
created boards of public instruction (counterpart of
today’s school boards).1 1895 Fla. Laws, ch. 4328.
Black participation in the electoral process was further
hampered by the Jim Crow laws and the exclusion of
blacks from the Democratic Party, both of which began in
1900. A few years later, the state provided for primary
elections of county commissioners and board members in
which the candidates were elected from single-member
districts. 1907 Fla. Laws, ch. 5697, § 1. By that time the
white primary system, effectively disenfranchising black
voters, was firmly established. The resulting anomaly be
tween having district primary elections and at-large
general elections worked, not surprisingly, to the unique
disadvantage of blacks. Since blacks could not vote in the
Democratic Primary district elections, they were forced to
challenge white Democratic nominees in at-large elections
in which blacks had no voter majorities. In effect, the
white primary was the election. Because blacks were ex
cluded it was finally struck down by the Florida Supreme
Court in 1945. Davis v. State ex rel. Cromwell, 156 Fla.
181, 23 So.2d 85 (1945).
The at-large concept was thereafter instituted in the
primaries. In the case of the School Board, the legislature
enacted such a requirement in the very first legislative ses
sion after the white primary was struck down, providing
for at-large elections for both general and primary elec
tions. Fla. Stat. §§ 230.08, .10 (1977). County commis
sioners continued to be nominated by district elections un
til 1954 when the anomaly between single-member district
primary elections and at-large general elections was struck *
'Members of the boards of public instruction were initially, in 1893,
elected from single-member districts. There is no explanation for the
quick change to at-large elections in 1895.
76a
down by the Florida Supreme Court as contrary to the
state’s constitution. Ervin v. Richardson, 70 So.2d 585
(Fla. 1954).
To bring things up to date, there was a change in 1976
which added to the school board the two seats having no
residence requirement. 1976 Fla. Laws, ch. 76-356. The
purpose behind this change was avowedly to pack the
board to make it more sympathetic to the white majority
respecting a racial issue at a local school concerning the
use of the nickname “Rebels.” The change was in response
to a board vote on that issue which coincided with the in
terests of the black community rather than the white.
Although one area legislator stated that the change was
unrelated to the school controversy, his testimony was
convincingly im peached. F u rtherm ore , evidence,
unrefuted, of statements by other legislators shows this
was the purpose. One legislator even told a board member
he would block the change if the board would reverse its
position on the “Rebel” issue. The board did not. It is also
interesting to note that board members’ salaries were
reduced. Although two local civic organizations had been
suggesting the change from five to seven members for
some time2 as a counterpart to having an appointed
rather than elected school superintendent, the latter pro
posal was submitted separately for voter approval and was
rejected.
In Florida a change from a five to seven-member board
usually accompanies a change from elective to appointive
superintendent. Yet the two proposals were not submitted
to the electorate as a package by the legislative delegation.
2They did so for “good government” reasons, although in so doing
they gave no consideration to possible impact on black votes. The
racial motivation here was found in the legislative delegation.
77a
The only evidence presented bearing on their reason for
not so doing was the “packing” of the board. The board,
in challenging the action, urged this contention upon the
Supreme Court of Florida. In holding against the board,
that court addressed this contention by stating only that
“[t]he political motivations of the legislature, if any . . .
are not a proper matter of inquiry for this C ourt.” School
Bd. o f Escambia County v. Florida, 353 So.2d 834, 839
(Fla. 1977).
While today in Florida there are some counties having
seven-member boards, Escambia County is the only one
having both a seven-member board and an elective
superintendent.
In a more recent development, the county commis
sioners have twice, in 1975 and 1977, appointed commit
tees to study the advisability of charter government for the
county. Both committees recommended a change to
single-member districts. Blacks in the community also
argued in favor of the change. The commissioners,
however, rejected the change and did not permit the elec
torate to vote on that provision. The commissioners’ deci
sion was unanimous even though one commissioner had
served on one of the committees and joined in the recom
mendation of single-member districts. The commissioners
testifying in this case were also unanimous in their ra
tionale. They stated that single-member districts would
cause commissioners to cease serving the interests of the
county and concern themselves only with their districts.
Like the state, the City of Pensacola adopted the white
primary and Jim Crow ordinances in the early 1900’s when
black voter registration and participation was high. Black
registration and participation was, however, steadily
reduced until the late 1930’s. In 1931, the city adopted the
council-manager form of government which is presently in
78a
effect. At that time, when the poll tax and white primary
were in effect and blacks were politically impotent, five of
the ten councilmen were elected from single-member
districts.
Times changed. The poll tax was repealed in 1937, the
white primary was abolished in 1945 and black registration
made dramatic rises into the 1950’s. In 1955 the first black
sought office in the W ard 2 single-member district and ran
a close race, losing to the incumbent who served as mayor.
That election caused concern among members of the coun
cil, and in 1956 Ward 2 was gerrymandered to bring in
more whites.
By 1959, the council decided to change the election
system to require all councilmen to run at-large. The
testimony of a former councilman and remarks made by
another former councilman indicate that race was a
motivating factor in the final decision. The council thus
called upon their local state legislators to introduce the
change. The change was enacted into law and approved by
the electorate that same year. 1959 Fla. Laws, ch. 59-1730.
Plaintiffs challenge the city’s election system, along with
those of the board of county commissioners and school
board, arguing that each dilutes the votes of their respec
tive black electorates. This type voting dilution case has
been thoroughly treated by the Fifth Circuit in four recent
cases. N eve tt v. Sides, (N eve tt II), 571 F.2d 209 (5th Cir.
1978); Bolden v. M obile, 571 F.2d 238 (5th Cir. 1978);
B .U .L .L . v. Shreveport, 571 F.2d 248 (5th Cir. 1978);
N A A C P v. Thom as C ounty, 571 F.2d 257 (5th Cir. 1978).
The court in N evett II restated an earlier mandate that
in cases such as this, of “qualitative reapportionm ent,” a
district court must consider certain factors set out in Z im
m er v. M cKeithen, 485 F.2d 1297 (5th Cir. 1973) (en
79a
banc), a f f d sub nom , E ast Carroll Parish School Bd. v.
M arshall, 424 U.S. 636 (1976). These factors were sum
marized in N eve tt II as follows:
The court in Z im m er established two categories,
one containing criteria going primarily to the
issue of denial of access or dilution, the other
containing inquiries as to the existence of certain
structural voting devices that may enhance the
underlying dilution. The ‘primary’ factors in
clude: the group’s accessibility to political pro
cesses (such as the slating of candidates), the
responsiveness of representatives to the ‘par
ticularized interests’ of the group, the weight of
the state policy behind at-large districting, and
the effect of past discrimination upon the group’s
participation in the election system. 485 F.2d at
1305. The ‘enhancing’ factors include: the size of
the district; the portion of the vote necessary for
election (majority or plurality); where the posi
tions are not contested for individually, the
number of candidates for which an elector must
vote; and whether candidates must reside in sub
districts.
571 F.2d at 217 (citations omitted).
The court thus makes the following findings of fact
under each of the above criteria for the three governmen
tal systems involved in this case:
A C C E S S IB IL IT Y
There are no slating organizations which serve to bar
blacks from participating in the election systems of the
county or city. No impediments are thrown in the way of
blacks to register and vote. Active efforts are made to en
courage eligible citizens, both black and white, to register
80a
and to vote. The percentage of blacks registering to vote
has steadily increased in recent years. Today there is no
significant difference between blacks and whites in that
respect in the county, although there is in the city. The
evidence shows, however, that there are other barriers in
each system which effectively operate to preclude access
for blacks.
Although blacks constitute 20% of the county’s popula
tion and 17% of its registered voters, no black has ever
been elected under the county’s two at-large election
systems. Blacks have run time and again, and always lost.
Former black candidates claim that they are frustrated and
will not run again because blacks cannot win. Their
frustration is evidenced by the fact that though several
blacks have in the past run for the board of county com
missioners, none has sought the office since 1970. Since
1970 blacks have run for the school board, but there they
are not faced, as they are with the county commission,
with the requirement of a filing fee of approximately
$1,000.00. The evidence further shows that the number of
blacks seeking both offices in recent years is far lower than
one would expect based on their percentage of the popula
tion. The fact that they cannot win is evidenced by an
analysis of the election returns.
There is in Escambia County a consistent racially
polarized or bloc voting pattern which operates to defeat
black candidates. There is in the county an active Ku Klux
Klan which has run at least one candidate for office and
obtained a significant number of votes.2 More impor
tantly, however, there is an even larger bloc of white
voters who, like almost all black voters, consistently vote
2The 3,000 votes that candidate received were larger than the
margin in which black candidates were defeated in several close races.
81a
for the candidate of their race whenever black candidates
face white candidates.
The complete record of county elections since 1955 was
brought before the court. The first black person to run for
a countywide office was John Reed, who was a candidate
for the Escambia County Commission in May, 1966. He
failed to make the runoff in the Democratic Primary. The
R 2 coefficient of the correlation between Mr. Reed’s vote
returns and race3 was 0.98. The first black person to
seek election to the Escambia County School Board was
Otha Leverette in 1970. Rev. Leverette got the Democratic
Party nomination without opposition; no other candidates
qualified for this place. Some efforts were made to hide
the fact he was black until the qualification date passed.
But Leverette was beaten in the general election by a white
Republican candidate, Richard Leeper. It was the first
time in the modern history of Escambia County that a
Republican had won any countywide office. Mr. Leeper
received 22,523 votes even though there were at that time
only 7,268 Republicans registered. There were 67,297
whites and only 13,037 blacks registered to vote. The R2
coefficient for the correlation between Leverette’s vote
and race was 0.76, indicating a severely racially polarized
vote. Richard Leeper had received only 10,712 votes in his
race against a white Democratic candidate, Kirkland, in
the 1966 school board general election.
This pattern of black candidates losing in racially
polarized elections continues to the present. Appendices A
and B summarize the results of all county commission and
school board races in which there was a black candidate,
’Percentage of variation in the vote attributable to the race of the
registered voters by precinct.
82a
indicating votes received, the number of black and white
registered voters and the R 2coefficient for the correlation
between percentage of votes received by the black can
didate in each precinct and the percentage of blacks
among registered voters in each precinct.
These returns and regression statistics were analyzed by
political scientists. The analyses focused upon voting
returns from precincts which were 95% or more of one
race. These returns, combined with regression statistics on
all precincts, showed that whenever a black challenges a
white for countywide office, a significant majority of the
whites who vote will consistently vote for the black’s oppo
nent. Sixty percent or more of the whites will do so in most
cases. There were some differences in the testimony of
plaintiffs’ experts and defendants’ expert. For example,
the defendants’ experts’ approach to statistical analyses of
polarization was somewhat different from that of plain
tiffs’ expert. Nonetheless, both found racial polarization
in most, if not all, elections in which blacks ran.
Even though turnout among black voters is as high as
that among white4 when black candidates run (it is regret
tably low for both races), and black voters vote almost
unanimously for the black candidates, black candidates
cannot attain a majority of the votes in the county because
of the numerical inferiority of blacks combined with the
white bloc vote. Several prominent white politicians
acknowledged this fact.
The situation is much the same respecting the city.
Although blacks constitute 33°7o of the city’s population
“Voter turnout among blacks is significantly lower when the field or
pair of candidates is all white.
83 a
and 23% of its registered voters, with two noteworthy ex
ceptions, black candidates have been denied office by the
white bloc voting. All city election returns since 1955 were
analyzed in the same manner as the countywide returns
and again it was shown that most white voters showed
consistent preference for white candidates over black can
didates resulting in consistent losses and frustration for
the minority candidates.
The first time in present memory that a black person
sought elective office in the city was 1955 when Charlie
Taite ran a close race against Admiral C .P. Mason in a
single-member district in what was then W ard 2. In 1963
Dr. Donald Spence, a black dentist, ran for the city coun
cil seat designated W ard 4, Group 2. He was the second
highest vote getter in the first election, trailing the first
place finisher, Soule, by 1,639 votes. There was an ex
tremely high racial polarization of the votes; votes for Dr.
Spence correlated with the percentage of blacks registered
in each precinct with an R 2 of 0.95. Subsequently, Dr.
Spence was defeated by Mr. Soule in a runoff by a margin
of 2,829 votes. Black candidates, A.R. Jones and W.R.
Hendrieth, were also defeated in at-large voting, without
runoffs, in their bids for city council in 1965. Again the
voting was highly racially polarized, with R2’s of 0.98 and
0.97 indicating the correlation between the black can
didates’ votes and race of the registered voters. Appendix
C summarizes the results of the city races in which black
candidates ran.
There have been only two exceptions to the white bloc
vote in city elections. Two blacks, Dr. Spence and Hollice
Williams, have been appointed by the council to fill vacant
council seats and thereafter were both winners in their bids
for reelection. The evidence strongly suggests that the
absence of the white bloc vote against these two candidates
84a
is due to the fact that both were chosen and thereafter
received public and private white political support. In
deed, one of the two had run for the council prior to his
appointment and was then soundly defeated by the usual
white bloc vote. This effect of endorsement by community
leaders is a common political phenomenon which is called
“cuing.” See V.O. Key The Responsible Electorate.
Not all whites vote against blacks. In every race blacks
have received some white support. But the city, like the
county, is, by and large, a race conscious society. There is
an established pattern of sufficient polarized voting to
regularly defeat black candidates. White candidates do ac
tively seek the votes of blacks. The studies of voter turn
outs indicate, however, that when whites run against
whites, black voter turnout drops, indicating a lack of in
terest by blacks in the candidates. Defendants’ expert ad
mitted that this may indicate that blacks view the choice of
white candidates as irrelevant to their interests. White
solicitation of black votes is not controlling here. As the
Fifth Circuit held in Bolden: “Although failure of black
candidates because of polarized voting is not sufficient to
invalidate a plan, . . . it is an indication of lack of access
to the political process.” 571 F.2d at 243 (citations
omitted).
It was shown at trial that access by blacks is further in
hibited by filing fees (5% of the salaries of county com
missioners and school board members; $50.00 for city
councilmen).
RESPONSIVENESS
Plaintiffs were able to show that the county commis
sioners were unresponsive in two areas. The commis
sioners have failed to appoint any more than a token
85a
number of blacks to its committees and boards. The black
population representing 20% of the county is thus served
by an all-white board of commissioners which depends on
virtually (95%) all-white advisory panels. A second possi
ble area of unresponsiveness has been housing policy.
Special studies have indicated there may be housing
discrimination within the county which has been igrtored
by the commissioners.
By and large, the commissioners were not shown to be
unresponsive to the needs of the black community. Their
efforts in employment and public recreation were im
pressive. It was also shown that the commissioners listen
to and act upon requests and complaints by blacks. There
was no significant discrepancy shown between service to
blacks and whites.
The school board was not shown to be unresponsive to
the needs of blacks. Its discipline policies were shown to be
fair and sensitive to racial concerns. In a severe racially
polarized issue involving the use of the nickname
“Rebels,” the board showed sensitivity to the desires of the
black community. No discrimination was shown in ad
ministrative appointments.
The city council, like the board of county commis
sioners, has made a poor showing respecting appointments
and housing policy. Only three of the nineteen advisory
committees or boards have any black members, though
blacks make up 33% of the city’s population. Housing
discrimination in the city has evoked no response from the
council. The council has, however, been shown to be as
responsive in providing services for blacks as it does for
whites, and the court was impressed with the sincerity of
its efforts in the area of employment. The city has in
vestigated and acted upon complaints from the black com
86a
munity respecting matters such as police brutality. The
plaintiffs failed to show that the city council was generally
unresponsive to the needs of the black community.
S T A T E P O L IC Y
The policies behind the at-large systems will be more
fully discussed in the court’s findings on the intent behind
the official action setting up the present election systems.
Suffice it to say at this point that the evidence shows a
tenuous policy behind the at-large requirement of each
system. At-large requirements have been in effect for
general elections of county commissioners and school
board members since 1901 and 1895, respectively.
However, in the primaries, which were then tantam ount to
election, the commissioners were elected in single-member
districts from 1907 to 1954, and school board members
from 1907 to 1947. Half the city council was elected from
single-member districts until 1959. Moreover, the evidence
shows, as will be more fully developed in the court’s fin
dings on intent, that there were racial motivations con
nected with the at-large requirements of each of these elec
tion systems.
P A S T D ISC R IM IN A T IO N
State enforced segregation and discrimination have
helped create two societies in the city and county —
segregated churches, clubs, neighborhoods and, until a
few years ago, schools. These laws left blacks in an in
ferior social and economic position, with generally in
ferior education. The lingering effects upon black in
dividuals, coupled with their continued separation from
the dominant white society, have helped reduce black
voting strength and participation in government. Past
87a
discrimination has helped create bloc voting, a failure of
white candidates to arouse interest among blacks and a
failure of the city and county governing bodies to appoint
blacks to advisory committees and boards. In explaining
his failure to appoint blacks to such advisory bodies, the
former city mayor stated that the qualified black members
of the community were not as visible to him as were the
white members. Another white former city council
member referred to the black and white communities as
the black and white “sides of the fence.” That fence, large
ly the result of past discrimination, is a basic cause or con
tributing factor to the fundamental problems involved in
this suit. The racially polarized voting patterns, resulting
from the prior state enforced segregation of the races, and
the separate white and black societies it left behind, con
tinue to exist.
EN H AN C IN G FAC TO RS
Both the city and county are large election districts. The
city has a projected population of over 62,000 for 1980.
The county’s projected population for that year is over
269,000, and it is geographically large (657 square miles,
fifty-one miles in length).
There is no majority vote requirement in the general
elections for county commissioners and school board
members. There is, however, a majority requirement in
the primaries. See White v. Register, 412 U.S. 755 (1973).
Moreover, as a practical matter, no one has in recent
history won a general election without a majority. There is
a formal majority requirement for city councilmen.
There is no anti-single-shot requirement in the three
election systems, but candidates do run for numbered
places. This means that blacks are always pitted in head-
88a
on-head races with white candidates, and that the black
community cannot concentrate its votes in a large field of
candidates.
There are residency requirements for all county commis
sioners, five of the seven school board members and all
city councilmen.
TH E A G G R E G A T E
The court in N eve tt II restated the basic principle that
the findings under the Z im m er factors must be weighed
and that they must point to dilution “in the aggregate” to
support such a finding. 571 F.2d at 217, citing H endrix v.
Joseph, 559 F.2d 1265 (5th Cir. 1977); D a v id v. Garrison,
553 F.2d 923, 929 (5th Cir. 1977); N eve tt v. Sides, 533
F.2d 1361, 1365 (5th Cir. 1976); Zim m er, 485 F.2d at
1305.
The findings under the factors are in summary form as
follows:
(1) Blacks are denied access to the political processes
of the county and city because of the interaction of the
polarized voting patterns with each of the present at-large
election systems. Blacks are further frustrated by the filing
fee requirements of the three systems.
(2) The three governmental units have been generally
responsive to the needs of the black community. Though
two were lacking in appointments of blacks to advisory
boards and committees, and in housing policies, the
systems cannot, on the whole, be found unresponsive.
(3) The state and city policies behind the at-large re
quirement are tenuous and to some degree rooted in an in
tent to discriminate.
89a
(4) Past discrimination has created barriers to the full
participation of blacks in the present political processes.
(5) The problems faced by blacks seeking access to the
political processes are enhanced by the size or the at-large
districts involved, the practical necessity or legal re
quirements of getting a majority vote to be elected, and
the requirement that candidates run in numbered places.
When weighed together, all these factors demonstrate a
dilution of black voting strength. The finding of general
responsiveness of each governmental entity does not
foreclose this conclusion. The court in Nevett II, 571 F.2d
at 223 and in the Shreveport case, 571 F.2d at 254, did
stress the importance of that factor in the context of infer
ring intentional discrimination in the maintenance of the
at-large system. If such intent is to be inferred in the
operation of the system, it is clear that responsiveness is a
key indicator. The effect of dilution, however, may exist
apart from the unresponsiveness of politicians. In the
Zimmer case, dilution was found even though there was
no proof of unresponsiveness.5 485 F.2d 1306-07. The
Fifth Circuit has not held, as defendants contend, that the
purpose of the Zimmer test is to measure the necessity of
official unresponsiveness to black concerns or that dilu
5This court does not read footnote 26 to mean that if it can be
measured, unresponsiveness must be proved to establish dilution. 485
F.2d at 1306-07. The court in Zimmer did find that the absence of
proof as to unresponsiveness might be explained by the type functions
performed by the police jury (though not in the case of the school
board). The Fifth Circuit also, however, reached a general conclusion
that the absence of unresponsiveness could not foreclose a finding of
unconstitutional voting dilution. Id. This general holding was reaf
firmed by the court in McGill v. Gadsden County Commission, 535
F.2d 277, 280 n. 7 (5th Cir. 1976).
90a
tion cannot be found unless elected officials are free to ig
nore the needs of blacks. Although the elected officials in
this case generally desire and actively seek the black vote
and are generally responsive to grievances aired by black
citizens, dilution is evident. This is so because the Zimmer
criteria ultimately measure not the responsiveness of the
politicians, but the responsiveness of the entire political
system. Blacks have shown a consistent and near
unanimous voting preference for black candidates and
have shown a lack of interest in races between white can
didates. The effects of past discrimination such as lower
registration, inferior socioeconomic status and especially
racially polarized voting, when combined with the at-large
system and attendant barriers such as filing fees, large
districts, majority vote requirements and numbered place
ballots, have effectively stifled that strong preference.
Although elected officials have been responsive, these fac
tors show, in the aggregate, that the voting strength of
blacks is effectively diluted under the present election
systems of the county and city.6
In addition, the evidence show'ed blacks to be severely
underrepresented in advisory panels of the county com
missioners and city council. The Zimmer factors are not
exclusive in voting dilution cases, Nevett II, 571 F.2d at
224; quoting Kirksey v. Board o f Supervisors, 554 F.2d
139 (5th Cir.) (en banc), cert, den ied ,__ _ U.S.____, 920
S.Ct. 412 (1977), and the lack of black appointees has in
dependent significance in this case because of the absence
or near absence of blacks in elected positions. With such a
6The state policy criterion was not of major significance in this find
ing of the effect of dilution. It is, however, probative of intent to
discriminate, Nevett II, 571 F.2d at 224, and is a part of the court’s
analysis of that issue.
91a
paucity of black elected and appointed representatives,
blacks are excluded from almost all positions of respon
sibility in the governmental policymaking machinery.
Although it is not necessary to the finding of dilution in
this case, the court finds that the lack of black appointees
exacerbates the inability of blacks to participate fully in
the political process and is further evidence of dilution.
The finding of dilution on the part of the city’s election
system is not weakened by the fact that two blacks have
been elected to the council. The court in Zimmer held that
election of blacks did not necessarily indicate access to the
system. 485 F.2d at 1307. The court noted that the cir
cumstances of particular elections might indicate other
factors at work. Id. In the case of the city, the only blacks
who were elected were two men previously appointed and
publicly endorsed by the white city leaders. That the white
political establishment can at times choose a black man of
its own liking and help get him elected certainly does not
indicate that black votes are not diluted. Such access as
may be given or taken away by the white politicians is not
a real access to the political system which is possessed by
the black community. See id.; Graves v. Barnes, 343 F.
Supp. 704, 726 (W.D. Tex. 1972). Though the adoption of
blacks by the city council and white establishment was well
intentioned,7 the resulting appearance of access by blacks
is a facade which cannot hide the impotence of black
voters in electing candidates of their choice.
IN T E N T
An at-large election system which operates to dilute the
vote of black citizens is not necessarily violative of the
Constitution. It must also be shown that discriminatory
7The testimony at trial in this respect was convincing to this court.
92a
intent was a motivating factor in the enactment of the
system or is a motivation in the present maintenance of the
system. Nevett II, 571 F.2d at 222. Discriminatory intent
in the enactment is proved by the criteria set down in A rl
ington Heights v. Metropolitan Housing Corp. 429 U.S.
252, 266-68 (1977). Invidious purposes in the maintenance
of the system are proved by the circumstances surrounding
the operation of the system and may be inferred from
findings under the Zimmer factors. Nevett II, 571 F.2d at
222.
In Arlington Heights the Supreme Court set out several
factors indicative of discriminatory intent. They are (1) the
effect of the official action, (2) the historical background
of the decision, “particularly if it reveals a series of official
actions taken for invidious purposes,” (3) the sequence of
events, (4) substantive and procedural departures, (5)
legislative history. 429 U.S. at 266-68. These criteria must
be applied to the official act or acts which give rise to the
respective election systems in this case.
The at-large requirements of the election system (both
general election and primaries) of the board of county
commissioners are based on the 1901 amendment to the
Florida Constitution. Fla. Const., art. 8, § 5. The
historical background of the 1901 amendment includes a
general pattern of disenfranchisement and other
discrimination at the hands of the state. The other laws of
the period relating to selection of commissioners — guber
natorial appointment prior to 1901 and single-member
district white primary after 1907 — were clearly race
related. The Jim Crow laws were also being instituted in
the early 1900’s. The sequence of testified that in Pen
sacola black registration was high in 1900, and it was only
thereafter that they were effectively excluded from the
political process.
93a
Despite this evidence indicating racial motivation in the
1901 amendment, the conclusion of the Fifth Circuit in
McGill was reinforced by the conclusions drawn by plain
tiffs’ own expert historian, Dr. Shofner. For this reason,
the holdings of McGill should not be disturbed and no
discriminatory intent can be found as a motivating factor
behind the 1901 am endm ent.8
The present election system of the school board, involv
ing an at-large requirement in both general and primary
elections, was enacted by statute in 1947. Fla.
Stat.§§ 230.08, .10 (1975). The history and sequence of
events strongly suggest racial motivations. From 1907 un
til 1945 the white primary was in effect. This was a period
in which the Jim Crow laws were also in effect and in
which the white government was unwilling or unable to
prevent a shocking degree of violence and intimidation
suffered by blacks at the hands of whites. The state policy
of excluding blacks from the primary election was finally
declared unconstitutional in Davis v. State ex rel.
Cromwell, 156 Fla. 181, 23 So.2d 85 (1945). Then in the
very first legislative session following the decision, the
legislature enacted statutes providing for an at-large re
quirement in both the general election, 1947 Fla. Laws, ch.
23726, § 9, and the primaries, 1947 Fla. Laws, ch. 23726,
§ 7. This marked a major substantive change from a
system in which all members had been elected from single
member districts in the primaries, which were tantam ount
to election. The effect of the change was to prevent blacks
from running in single-member district primaries which
had existed up until that time. It was the testimony of
8Though it may have been acting in a race-proof situation in 1091,
there is little chance that the legislature would have created single
member districts if blacks could have been elected in them. See Bolden
v. Mobile, 423 F.Supp. 397 (S.D. Ala. 1976).
94a
plaintiffs’ expert historian that the 1947 election system
resulted from racial motivations. The evidence of
discriminatory motives behind the at-large requirements
of the 1947 system is compelling. The court finds that
racial motivations were a main force behind the enactment
in 1947 of the current at-large election system.
The present council-manager form of government,
adopted in 1931, originally provided for five of the ten
councilmen to run in single-member districts. Prior to
1931, Pensacola, like most other southern cities, had
adopted the white primary and Jim Crow ordinances. In
the 1940’s and 50’s, however, black voter registration made
dramatic increases and apprehension about black voting
strength was voiced in the community. In 1955 a black
man ran a close race against the mayor in one of the single
member districts. In 1956, that district was gerrymandered
to bring in more whites. A former councilman who served
at that time said the gerrymander was for racial purposes.
In 1959 the council requested the area legislators to initiate
legislation to make all seats on the council elected at-large.
The former councilman again testified that the council’s
motivations were racial. It was also related that in presen
ting the proposed change to the area legislators, another
former councilman stated that “a salt and pepper council”
was not wanted. The legislation was passed that year. 1959
Fla. Laws, ch. 59-1730. When the new system was placed
before the voters, the newspaper stated that the “prime”
reason for the proposed change was to prevent blacks
from being elected. It is clear from the testimony of
Governor Reubin Askew, then a member of the Escambia
County legislative delegation which presented the legisla
tion, that racial motivation played no part in the
legislature’s enactment, and that he did not believe at the
time race was really a factor in the proposed change.
95a
Governor Askew did not, of course, have the benefit of all
the testimony before this court. Race was not a factor in
the advocacy of the change by such organizations as the
Pensacola Chamber of Commerce and the League of
Women Voters. But it was a factor in the recommendation
of the council for the change. Governor Askew testified
that it was then the practice of the local legislative delega
tion to enact legislation concerning city government only if
the measure was unanimously approved and proposed to
the delegation by the city council.
The conclusion of plaintiffs’ expert historian that race
was a concurrent motivating factor in the 1959 change is
inescapable.9 A preponderance of the evidence shows that
race was a motivating factor.
In the case of the city, as with the school board, racial
motivation was not the only factor behind the change. The
existence of other motivation is not controlling.
The Supreme Court stated in Arlington Heights v.
Metropolitan Housing Corp., 429 U.S. 252, 265 (1976):
Davis does not require a plaintiff to prove that
the challenged action rested solely on racially
discriminatory purposes. Rarely can it be said
that a legislature or administrative body
operating under a broad mandate made a deci
sion motivated solely by a single concern, or even
that a particular purpose was the ‘dom inant’ or
‘primary’ one. In fact, it is because legislators
and administrators are properly concerned with
9The fact that the showing of racial motivation is largely focused
upon the city council and not the legislators who voted on the pro
posal is not controlling. Changes in local government were ac
complished in a three step process — resolution by the city govern
ment, legislative proposal, ratification by the electorate.
Discriminatory intent at any stage infects the entire process.
96a
balancing numerous competing considerations
that courts refrain from reviewing the merits of
their decisions, absent a showing of arbitrariness
or irrationality. But racial discrimination is not
just another competing consideration. When
there is proof that a discriminatory purpose has
been a motivating factor in the decision, this
judicial deference is no longer justified.
Discriminatory intent in the maintenance of the at-large
requirement of the election systems, though often more
difficult to prove, may be shown by circumstantial
evidence. It may be inferred from the aggregate of theZ/m-
mer factors.
Thus, an inference of intent may be raised. A finding of
unresponsiveness is of “momentous” importance in infer
ring a present intent. B.U .L .L . v. Shreveport, 571 F.2d at
254. Unresponsiveness has not been found in any of the
three systems. Such does not, however, preclude a finding
of present discriminatory intent in maintenance.
There is other circumstantial evidence surrounding the
present maintenance of the at-large requirement in the
election of county commissioners and school board
members.
The county commissioners’ two charter government
committees, appointed in 1975 and 1977, both unanimous
ly recommended a change to single-member districts. Ig
noring the expressed concerns of the black voters and the
recommendations of both study committees, however, the
county commissioners struck the single-member districts
from the charter referendum. The electorate was not given
the opportunity to decide on the election changes; the
charter referendum was defeated.
The four county commissioners testifying at trial all
97a
claimed that they struck single-member district elections
from the proposal for reasons unrelated to race. Each said
it was his personal belief that all of the voters of the coun
ty should be allowed to vote on each of the commissioners
because they felt that the at-large requirement made the
board more responsive to the needs of the community. No
one of them gave any other reason, and none expressed
any concern about the effect the change would have on the
opportunities of candidates preferred by blacks.
One commissioner expressed the opinion that commis
sioners elected solely by the voters of their districts would
not have to be fair in the apportionment of funds to other
districts. But he could not explain how this result would
necessarily occur when the commissioners were sworn to
represent the interests of the whole county.
One of their members had served on one of these com
mittees and agreed in the report submitted with the recom
mendation for single-member districts. Yet when the
report went to the commission he changed his position and
voted against it. He gave no adequate explanation of why
he changed his position.
The testimony also showed that the residence district of
each commissioner is more or less regarded at the district
of that commissioner for which he has responsibility and
for whose needs he is the particular advocate on the com
mission. As an example of the commission’s practice, road
funds are arbitrarily allocated with 20% going to each
residence district, and the individual members with greater
needs for their particular districts must convince other
commissioners to give up parts of their shares. No
testimony was presented showing why the commission,
representing the county at-large, did not initially itself try
as a body to spend road funds where needed in the county
98a
without regard to residence districts. Their expressed con
cern about countywide elections and representation does
not stand foursquare with the present operation of the
commission and its business.
In their post-trial memorandum, defendants admit that
the rejection of the single-member district aspect of the
charter proposal “reflects the commissioners’ desire to
maintain their incumbency.” This was also the court’s im
pression at trial. Each of these commissioners had been
elected in county wide elections. They could not know how
they would fare in single district elections. Yet it is ap
parent that in such elections one or more of them might be
replaced by blacks.
To this court the reasonable inference to be drawn from
their actions in retaining at-large districts is that they were
motivated, at least in part, by the possibility single district
elections might result in one or more of them being
displaced in subsequent elections by blacks.10
This conclusion is bolstered by the findings under the
Zimmer factors that black voting preferences for
blacks cannot be registered in the present system and black
candidates are otherwise denied access to that system.
That their motivations may be selfish rather than
malicious toward blacks does not alter the conclusion that
their intent was to continue the present dilution of black
voting strength. The present at-large election system for
county com m issioners is being m ain tained for
discriminatory purposes.
10It was stipulated that a fairly constructed single-member district
system for the election of Escambia County Commissioners and
Escambia County School Board members would produce one black
majority county commission and school board district each out of
five.
99a
The 1976 change in the school board’s election system
was avowedly to pack the board to make it more respon
sive to the white majority on a particular racially polarized
issue. The evidence showed that the seven member pro
posal was used as a threat by area legislators who knew
that the white majority would have its way at the polls.
This is a telling indication of the legislators’ and communi
ty’s recognition and use of the at-large system as a method
of rendering black voters politically impotent to the
desires of the white majority. This action by the
legislators, in conjunction with this court’s findings under
theZimmer factors, shows that the present at-large system
of electing school board members is being maintained, at
least in part, by racially discriminatory motives.
This court cannot find, based on the evidence before it,
that the city presently maintains its at-large system for
discriminatory purposes. The lack of access, the tenuous
policy, the present effects of past discrimination and the
enhancing factors afford room for inference of such pre
sent discriminatory maintenance as they do with the com
mission and school board. W ith the city, however, there is
no recent racially motivated action corroborating and sup
porting a finding of present racially motivated
maintenance as there is with the commission and school
board. Based on the evidence here presented, without a
finding of unresponsiveness, and with no evidence justify
ing or corroborating an inference of intent drawn from the
Zimmer factors, the court cannot find that the city’s at-
large system is presently intentionally maintained as a
vehicle for racial discrimination.
In sum, a preponderance of the evidence shows that the
election system of the board of county commissioners ef
fectively dilutes the votes of black citizens. Though the
court does not conclude that the system was enacted for
100a
invidious purposes, the evidence does show that it is being
maintained at least in part for discriminatory reasons.
Thus, the present election system violates the fourteenth
and fifteenth amendments.
The evidence shows that the election system of the
school board dilutes the votes of black citizens. The court
finds discriminatory intent in both the enactment and
maintenance of the present system. That system violates
the fourteenth and fifteenth amendments.
Insofar as the city council is concerned, there is no cur
rent evidence respecting the present maintenance of the
system such as there is with the commission and the school
board. However, the present election system of the city
council has been shown to have the present effect of
diluting the votes of black citizens. As pointed out
previously, racial motivations played a part in the change
to a uniform at-large requirement. The system violates the
fourteenth and fifteenth amendments.
This court is cognizant of the general principle that
federal courts should avoid decision on constitutional
grounds if adequate statutory grounds are available. In
Bolden v. Mobile, 571 F.2d 238 (5th Cir. 1978), the court,
in its footnote 3, page 242, pointed out that the statutory
claim here at best is problematic. This court concludes, as
did the court in Parnell v. Rapides Parish School Bd., 425
F.Supp. 399 (W.D. La. 1976), that the interest of judicial
economy and the need for prompt final resolution dictate
that the court here reach the constitutional questions. As
the footnote in Bolden points out, under similar cir
cumstances, the Supreme Court has avoided an abusive
application of the constitutional-decision-avoidance rule.
Plaintiffs also seek relief under the Civil Rights Act of
101a
1970, 42 U.S.C. 1971(a)(1) and under the Voting Rights
Act of 1965, 42 U.S.C. § 1973.
Throughout this litigation the parties to this litigation
have provided this court with well prepared and thorough
legal memoranda. Influenced perhaps, however, by the
Bolden court’s treatment of a similar situation, 571 F.2d at
242 n. 3, they have provided this court with no memoran
da addressed to these statutory claims. As the appellate
court pointed out in that footnote, the statutory claim is at
best problematic. Like the appellate court, this court
knows of no successful dilution claim expressly founded
on 42 U.S.C. § 1973. Judge Wisdom, in his concurring
opinion in Nevett II, appeared to have no doubt of its ap
plication and discussed the question whether intent was a
necessary element of a claim under the statute.
The plaintiffs here have not established a claim for relief
under the Civil Rights Act of 1870, 42 U.S.C.
§ 1971(a)(1). That section concerns itself only with the en
titlement to cast one’s vote at elections, and such is not
presented in this voting dilution suit.
Respecting 42 U.S.C. § 1973, the court concludes that
the plaintiffs have established claims for relief under this
section. This section, passed to carry out the purpose of
the fifteenth amendment, tracks its language in respect to
denial or abridgement of the right to vote on account of
race.
The findings in this case which constitute violations of
fifteenth amendment must also constitute violations of
this statute. The right to vote protected by the statute has,
like that of the fifteenth amendment, been given a broad
meaning. Allen v. State Bd. o f Elections, 393 U.S. 544
(1969).
102a
Inasmuch as the court has found the evidence of intent
in its consideration of the constitutional questions in
volved, it need not and does not decide whether proof of
intent is required under 42 U.S.C. § 1973.
IN SU M M A TIO N
Florida, like other southern states, has a long historical
background of black race discrimination in its govern
ment. The demise of its poll tax and other Jim Crow laws
and of its white primary served as catalysts in impelling it
toward a society organized and governing itself as one free
of racial motivations. More importantly, there has been,
particularly in more recent years, a growing awareness
among many responsible white citizens that race
discrimination not only has no place in the ongoing pro
gress of the government of our nation, but that improving
the lot of the disadvantaged portion of the nation in the
long run will benefit all the nation.
That has happened here. Escambia County and Pen
sacola have come a long way in the past twenty-five or
thirty years. But discrimination against blacks, stemming
from long years of conscious and deliberate oppression
and discrimination against blacks by whites, does not
disappear quickly. It is a gradual and ongoing process,
and the process is still going on here. The race discrimina
tion that was so manifest in the earlier years in this state,
and in this county and city, though diminished, has not yet
disappeared.
Because this county and this city have made so much
progress in complying with the commands of the Constitu
tion and the law in these recent years, this case is not an
easy one to decide.
103a
The conclusion impelled and reached is that at least the
preponderance — though not an overwhelming
preponderance — of the evidence supports plaintiffs’ con
tentions so that judgment must be entered for them.
One day, hopefully, the time will come in our nation’s
ongoing progress when we as a people, or at least a suffi
cient number of us, have so eliminated race consciousness
and discrimination from our hearts and minds that such is
not reflected in governmental processes and procedures.
Then there will be no need for suits such as these. Then
there will be no justification for orders such as the ones
entered here that interfere with the right of the people to
establish for themselves the details of their government
because, in doing so, they themselves will have complied
with constitutional and legal requirements. As it has not in
so many other places in our nation, that day has not yet
come to Escambia County and to Pensacola.
RE M ED Y
The Supreme Court of the United States has laid down
the general principle that “when district courts are forced
to fashion apportionment plans, single-member districts
are preferable to large multi-member districts as a general
m atter.” Conner v. Johnson, 402 U.S. 690 (1971); see also
East Carroll Parish School Bd. v. Marshall, 424 U.S. 636
(1976); and Wallace v. House, 425 U.S. 947 (1976). In ap
proving single-member districts as a remedy for un
constitutional dilution, even where such a reapportion
ment required a complete change in a form of government
from a city commission to a mayor-council, the Fifth Cir
cuit has reminded the district courts of these principles laid
down in their cases.
104a
The Fifth Circuit in Bolden stated:
The district courts have been repeatedly ad
monished by the Supreme Court to avoid the
employment of at-large seats in their remedial
plans, unless some special circumstance required
that such seats be used.
571 F.2d at 246.
However, these pronouncements of Fifth Circuit
antedated the Supreme Court’s opinion in Wise v.
Lipscomb, ____U .S______ _ 46 U.S.L.W . 4777 (June 22,
1978). In that case it was pointed out that the plan
presented by the city was legislative and was not to be
viewed as judicial. It distinguished the case from the East
Carroll Parish School Board case by pointing out that the
Dallas City Council validly met its responsibility of replac
ing the invalid apportionment provision with one which
could survive constitutional scrutiny.
Under the holding of the case, when an existing appor
tionment scheme has been declared to be unconstitutional,
it is appropriate whenever practicable to afford a
reasonable opportunity for the legislative body itself to
meet constitutional requirements by adopting a substitute
measure rather than for the federal court to devise and
order into effect its own plan.
Unlike the situation presented in East Carroll Parish
School Board, Escambia County and the City of Pen
sacola have not been brought under the Voting Rights Act
of 1965 so that approval of the Attorney General must be
obtained for any such legislative changes. Moreover,
unlike the situation presented in other cases, the defen
dants in these cases are ready and willing to assume the
responsibility of providing what they believe will be an ef
fective remedy for the dilution found by this court to exist.
105a
In each of these cases the judgments to be entered will
require the parties within 45 days after date thereof to sub
mit proposals that they believe provide an effective
remedy for the dilution found by this court to exist.
The plaintiffs’ claims for attorneys’ fees in each of these
cases will be determined after a hearing on these issues.
The judgments to be entered will retain jurisdiction for
all necessary and proper purposes.
The court concludes that the shortness of time renders it
impracticable for the remedial systems, yet to be presented
and approved, to be used in the September, 1978 primary
election and the subsequent general election this year for
the county commission and the school board.
These remedial systems should therefore become effec
tive for the next ensuing primary and general elections
which will occur in the year 1980.
There is yet another reason why such remedial systems
should not become effective until 1980 insofar as the
members of the county commission and the school board
are concerned.
The defendant officeholders on such commission and
board have each been elected for specific four year terms
of office. They were elected prior to institution of this suit,
and neither they nor those electing them could reasonably
have foreseen this decision. It is reasonable and proper
that they should be allowed to finish out the terms for
which they were elected.
This does not mean that any elected after this date shall
also be allowed to finish out their elected terms. Any can
didates seeking election after this date for any of the of
fices involved may reasonably be considered to have notice
106a
of this decision and of the possibility that because of it the
terms to which they are elected may be cut short.
There are some of the defendant county commissioners
and school board members whose elected terms will expire
this year. However, there are also members serving on
both these boards whose elected terms will not expire until
the 1980 elections. Postponing the effective date of the
remedial systems until 1980 will allow all of these office
holders now serving to finish out the terms for which they
were elected.
Inasmuch as the next Pensacola City Council election is
in May of 1979, at which time all terms expire, the changes
approved by this court could become effective in time for
those elections without disturbing or shortening the terms
for which present councilmen are elected. Thus the
remedial system to be employed insofar as the city council
is concerned should become effective in time for its
employment in the May, 1979 city council election.
This court believes that the judgments entered will be
final judgments from which appeals may be taken.
However, in the event such would not be considered an ap
pealable judgment, the court will of its own motion, pur
suant to 28 U.S.C. § 1292(b), include in each judgment a
finding that the judgment entered involves a controlling
question of law as to which there is a substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate deter
mination of the litigation.
DATED this 10 day of July, 1978.
/ s / Winston E. Arnow
WINSTON E. ARNOW
Chief Judge
107a
APPENDIX A
Summary of Black Candidacies in County
Commission Elections
No. No.
Bs. Ws.
Votes regis. regis.
1966: 1st Primary
District 2
Cobb 14,592
Fredrickson 9,017
(B) Reed 8,225 13,250 55,754
Ward 4,298
1968: 1st Primary
District 5
Armour 19,168
Gindl 8,159
(B) Jenkins 9,704 13,214 60,650
Whatley 4,901
Runoff
District 5
Armour 24,408
(B) Jenkins 14,636 13,214 60,650
1970: 1st Primary
District 4
Davis 8,658
(B) Dedmond 7,373 13,037* 67,297*
Kenney 19,700
District 2
Barnes 11,840
Cobb 9,557
Kelson 9,037
(B) Reed 5,240 13,037* 67,297*
"“Includes Republicans and Independents. Total Democrats
71,803.
R2
for
race
0.98
0.95
0.91
0.85
were
108a
APPENDIX B
Summary of Black Candidacies in School
Board Elections
No. No. R2
Bs. Ws. for
Votes regis. regis. race
1970: General Election
Place 4
Leeper 22,523
(B) Leverette 21,065 13,037 67,297 0.76
1974: 1st Primary
Place 3
(B) Jenkins 12,275 13,836 65,129 0.77
Sanders 10,933
General Election
Place 3
(B) Jenkins 21,098 14,207 79,208 0.87
Leeper 22,547
Place 1
Bell 32,612
(B) Stallworth 9,673 14,207 79,208 0.69
1976: 1st Primary
Place 4
Marshall 16,079
(B) Spence 15,956 15,441 85,595 0.91
Smith 10,717
109a
Place 7
Bailey
Forester
(B) Jenkins
King
Lee
MacGill
Southhard
Runoff
Place 4
Marshall
(B) Spence
Place 7
Bailey
(B) Jenkins
9,765
5,244
12,257
1,362
5,606
5,071
1,173
29,106
19,176
26,786
20,526
15,441
15,441
15,441
85,595
86,595
85,595
0.95
0.91
0.87
APPENDIX C
Summary of Black Candidacies in City Elections
Votes
1955: Ward 2
(B) Charlie L. Taite 765
C.P. Mason 925
1,690
1963: Ward 4
Group 2
Booker 851
Gonzales 1,075
Soule 4,717
(B) Spence 3,078
Tennant 2,045
11,766
Runoff
Soule 7,055
(B) Spence 4,226
11,281
No. No. R2
Bs. Ws. for
regis. regis. race
(May 1964)
6,426 19,427 0.95
(45.5%)
(43.6%)
1965: Ward 2
______Group 2
A. D. Bowman 7,771
B. J. Godwin 553
(B) A.R. Jones 2,740
C. S. Jones, Jr. 3,302
(Oct. 1966)
7,578 17,613 0.98
14,366 (57.0%)
I l i a
(B) W.F. Hendrith 1,877
E.J. Johnston 4,084
R.G. MacDonald 4,519
10,480 (41.6%)
W ard 3
Group 1
1967: Ward 3
Group 2
J.E. Frenkel, Jr.
(B) William F. Flendrieth
6,808 (April 1968)
3,020 7,177
9,828 (35.1%)
1969: Ward 2
Group 1
Eugene P. Elebash
(B) William H. Marshall
6,277 (Oct. 1968)
3,832 5,659
10,109 (40.2%)
20,784
19,470
Ward 3
Group 2
John E. Frenkel
(B) William F. Hendrith 2,120
Ward E. King 2,071
4,191 (16.7%)
1971: Ward 2
______ Group 1
Robert Brockett, Jr. 5,233 (Aug. 1970)
Robert A. Craighead 400
(B) William H. Marshall 2,677 6,795 21,543
0.97
0.84
0.77
0.84
0.92
8,310 (29.3%)
W ard 2
Group 2
112a
(B) William F. Hendreith 2,008
J.J. Alfred 2,286
William H. Northrup 3,837
Rodney C. Jones 330
1971: Ward 3
______Group 2
John E. Frenkel, Jr. 6,108
(B) F.L. Henderson 2,270
Ward 5
Group 2
(B) Hollice T. Williams 6,225
J.C. Adams 1,670
Charles Van Wilson 895
1973: Ward 3
______ Group 1
(B) Orellia F. Benjamin 2,334
W.J. Paulk 2,873
0.96
0.89
0.62
(Oct. 1972)
7,680 26,568
Ward 5
Group 2
(B) Hollice Williams Unopposed
1975: Ward 4
______Group 2
(B) Dr. Donald Spence 4,308
Robert Gilmore 3,102
Ward 5
Group 1
Dr. V. Paul Bruno 5,387
(B) James L. Brewer 1,824
0.82
0.86
113a
(B) Hollice Williams 5,093
Sal Ferraro 893
Chuck Porter 1,599
W ard 5
G roup 2
1977: Ward 2
_______ Group 1
Ann Belleau
Rick Fountain
Franklin Pryor
(B) William Hendreith
2,874
1,455
2,737
1,061 9,245
Ward 5
Group 1
Mike Bass 4,271
(B) Ruby Gainer 3,985
Ward 5
Group 2
25,569
0.67
0.79
0.82
(B) Hollice Williams Unopposed
b. Judgment.
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, et al.,
Plaintiffs,
vs. PCA No. 77-0432
ESCAMBIA COUNTY, FLORIDA,
et al.,
Defendants.
JU D G M ENT
Pursuant to and in accordance with M emorandum Deci
sion of this date, it is,
ORDERED AND ADJUDGED as follows:
1. Judgment is hereby entered in favor of the plaintiffs
and against the defendants, with costs taxed against the
defendants.
2. Within 45 days after this date, the parties will sub
mit proposals that they believe provide an effective
remedy for the dilution found by this court to exist.
3. The remedial systems, as finally approved and
adopted by this court, shall not be effective for the
primary and general elections occurring in 1978, but shall
become effective for the next ensuing primary and general
elections which will occur in the year 1980.
4. This court retains jurisdiction for all necessary or
proper purposes, including but not limited to determina
115a
tion of the plaintiffs’ claims for attorneys’ fees after hear
ing thereon.
5. Pursuant to 28 U.S.C. § 1292(b), the court finds
that the judgment here entered involves a controlling ques
tion of law as to which there is a substantial ground for
difference of opinion and that an immediate appeal from
the order may materially advance the ultimate decision of
the litigation.
DONE AND ORDERED this 10 day of July, 1978.
/ s / Winston E. Arnow
WINSTON E. ARNOW
Chief Judge
116a
A P PE N D IX C
Judgm ent in, and Order Denying Appellants’
Suggestion o f R ehearing En Banc o f ,
M cM illan v. Escam bia C ounty, Florida, 688
F.2d 960 (5th Cir. 1982).
1. Judgm ent.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT*
UNIT B
No. 78-3507
80-5011
D.C. Docket No. PCA 77-0432
HENRY T. McMILLAN, e t a l .,
Plaintiffs-Appellees,
PCA No. 77-0432
ESCAMBIA COUNTY, FLORIDA,
ET AL.,
Def endants- Appellants.
Appeals from the United States District Court
for the Northern District of Florida
Before COLEMAN, PECK** and KRAVITCH, Circuit
Judges.
*Former Fifth Circuit case, Sec. 9(1) of Public Law 96-452 — Oct.
14, 1980.
**Honorable John W. Peck, U.S. Circuit Judge for the Sixth Cir
cuit, sitting by designation.
117a
This cause came on to be heard on plaintiffs-appellees’
petition for rehearing;
ON CONSIDERATION W HEREOF, it is now here
ordered and adjudged by this Court that the opinion
originally entered by this Court on February 19, 1981 is
VACATED in No. 78-3507 concerning the County Com
mission, and VACATED entirely in No. 80-5011; and the
judgm ent o f the said District Court appealed from is AF
FIRM ED; and that this cause be, and the same is hereby
R E M A N D ED to said District Court in accordance with
the opinion o f this Court;
It is further ordered that defendants-appellants pay to
plaintiffs-appellees, the costs on appeal to be taxed by the
Clerk of this Court.
September 24, 1982
ISSUED AS MANDATE: NOV. 23, 1982
118a
2. Order.
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT*
No. 78-3507
No. 80-5011
HENRY T. McMILLAN, e t a l .,
Plaintiffs-Appellees,
versus
ESCAMBIA COUNTY, FLORIDA, ET AL.,
Def endants-Appellants.
Appeal from the United States District Court
for the Northern District of Florida
O N P ETITIO N FOR REH EARIN G A N D
P E TITIO N FOR REH EARIN G E N BA N C
(Opinion SEPTEMBER 24, 5 Cir., 1982,____F .2 d ____ ).
(NOV 4 1982)
Before COLEMAN, PECK** and KRAVITCH, Circuit
Judges.
“"Former Fifth Circuit case, Section 9(1) of Public Law 96-452-Oct.
14, 1980.
“"“"Honorable John W. Peck, U.S. Circuit Judge for the Sixth Cir
cuit, sitting by designation.
119a
PER CURIAM:
The Petition for Rehearing is DENIED and no
member of this panel nor Judge in regular active service on
the Court having requested that the Court be polled on
rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure; Local Fifth Circuit Rule 16), the Petition for
Rehearing En Banc is DENIED.
( ) The Petition for Rehearing is DENIED and the
Court having been polled at the request of one of the
members of the Court and a majority of the Circuit Judges
who are in regular active service not having voted in favor
of it (Rule 35, Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 16), the Petition for Rehearing En
Banc is also DENIED.
( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en
banc, and a majority of the judges in active service not
having voted in favor of it, rehearing en banc is DENIED.
ENTERED FOR THE COURT:
/ s / Phyllis Kravitch
United States Circuit Judge
120a
APPENDIX D
Notice of Appeal of McMillan v. Escambia County,
Florida, 688 F.2d 960 (5th Cir. 1982).
No. 78-3507
No. 78-5011
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FILED
NOV 30 1982
Norman E. Zoller
Clerk
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
HENRY T. McMILLAN, et al.,
Plain tiffs-Appellees,
v.
ESCAMBIA COUNTY, Florida, et al.,
Defendan ts-A ppellan ts.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
FLORIDA
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that defendants-appellants Escam
bia County, Florida, the members of its Board of County
Commissioners and the Supervisor of Elections hereby ap
peal to the Supreme Court of the United States the
September 24, 1982 decision by this Court in the above-
captioned action. The suggestion by defendants-appellants
of rehearing en banc was denied by the Court on
November 4, 1982.
121a
This appeal is taken pursuant to 28 U.S.C. § 1254(2)
(1976).
Respectfully submitted,
/s / Charles S. Rhyne
PAULA G. DRUMMOND
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
CHARLES S. RHYNE
THOMAS D. SILVERSTEIN
Rhyne & Rhyne
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
Counsel for Defendants-Appellants
122a
A P P E N D IX E
Constitutional and Statutory Provisions
1. U .S . Const, amend. XIV , § 1.
AMENDMENT XIV
Section 1. All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; or shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
123a
2. Fla. Const, art. VIII, § 1.
ARTICLE VIII - LOCAL GOVERNMENT
§ 1. Counties
(a) Political subdivisions. The state shall be divided by
law into political subdivisions called counties. Counties
may be created, abolished or changed by law, with provi
sion for payment or apportionment of the public debt.
(b) County funds. The care, custody and method of
disbursing county funds shall be provided by general law.
(c) Government. Pursuant to general or special law, a
county government may be established by charter which
shall be adopted, amended or repealed only upon vote of
the electors of the county in a special election called for
that purpose.
(d) County officers. There shall be elected by the elec
tors of each county, for terms of four years, a sheriff, a
tax collector, a property appraiser, a supervisor of elec
tions, and a clerk of the circuit court; except when provid
ed by county charter or special law approved by vote of
the electors of the county, any county officer may be
chosen in another manner therein specified, or any county
office may be abolished when all the duties of the office
prescribed by general law are transferred to another of
fice. When not otherwise provided by county charter or
special law approved by vote of the electors, the clerk of
the circuit court shall be ex officio clerk of the board of
county commissioners, auditor, recorder and custodian of
all county funds.
(e) Commissioners. Except when otherwise provided
by county charter, the governing body of each county shall
be a board of county commissioners composed of five
members serving staggered terms of four years. After each
124a
decennial census the board of county commissioners shall
divide the county into districts of contiguous territory as
nearly equal in population as practicable. One commis
sioner residing in each district shall be elected by the elec
tors of the county.
(f) Non-charter government. Counties not operating
under county charters shall have such power of self-
government as is provided by general or special law. The
board of county commissioners of a county not operating
under a charter may enact, in a manner prescribed by
general law, county ordinances not inconsistent with
general or special law, but an ordinance in conflict with a
municipal ordinance shall not be effective within the
municipality to the extent of such conflict.
(g) Charter government. Counties operating under
county charters shall have all powers of local self-
government not inconsistent with general law, or with
special law approved by vote of the electors. The govern
ing body of a county operating under a charter may enact
county ordinances not inconsistent with general law. The
charter shall provide which shall prevail in the event of
conflict between county and municipal ordinances.
(h) Taxes; lim itation. P roperty situate within
municipalities shall not be subject to taxation for services
rendered by the county exclusively for the benefit of the
property or residents in unincorporated areas.
(i) County ordinances. Each county ordinance shall
be filed with the secretary of state and shall become effec
tive at such time thereafter as is provided by general law.
(j) Violation o f ordinances. Persons violating county
ordinances shall be prosecuted and punished as provided
by law.
125a
(k) County seat. In every county there shall be a coun
ty seat at which shall be located the principal offices and
permanent records of all county officers. The county seat
may not be moved except as provided by general law.
Branch offices for the conduct of county business may be
established elsewhere in the county by resolution of the
governing body of the county in the manner prescribed by
law. No instrument shall be deemed recorded in the county
until filed at the county seat according to law.
Amended, general election, Nov, 5, 1974.
126a
3. Selected Provisions o f Fla. Stat. ch. 125 (1981).
125.01 Powers and duties. —
(1) The legislative and governing body of a county
shall have the power to carry on county government. To
the extent not inconsistent with general or special law, this
power shall include, but shall not be restricted to, the
power to: . . .
125.60 A doption o f county charter. — Any county not
having a chartered form of consolidated government may,
pursuant to the provisions of ss. 125.60-125.64, locally in
itiate and adopt by a majority vote of the qualified electors
of the county a county home rule charter.
125.61 Charter com m ission .—
(1) Following the adoption of a resolution by the
board of county commissioners or upon the submission of
a petition to the county commission signed by at least 15
percent of the qualified electors of the county requesting
that a charter commission be established, a charter com
mission shall be appointed pursuant to subsection (2)
within 30 days of the adoption of said resolution or of the
filing of said petition.
(2) The charter commission shall be composed of an
odd number of not less than 11 or more than 15 members.
The members of the commission shall be appointed by the
board of county commissioners of said county or, if so
directed in the initiative petition, by the legislative delega
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tion. No member of the Legislature or board of county
commissioners shall be a member of the charter commis
sion. Vacancies shall be filled within 30 days in the same
manner as the original appointments.
125.62 Charter com m ission; organization. —
(1) A charter commission appointed pursuant to s.
125.61 shall meet for the purpose of organization within
30 days after the appointments have been made. The
charter commission shall elect a chairman and vice chair
man from among its membership. Further meetings of the
commission shall be held upon the call of the chairman or
a majority of the members of the commission. All
meetings shall be open to the public. A majority of the
members of the charter commission shall constitute a
quorum. The commission may adopt such other rules for
its operations and proceedings as it deems desirable.
Members of the commission shall receive no compensation
but shall be reimbursed for necessary expenses pursuant to
law.
(2) Expenses of the charter commission shall be
verified by a majority vote of the commission forwarded
to the board of county commissioners for payment from
the general fund of the county. The charter commission
may employ a staff, consult and retain experts, and pur
chase, lease, or otherwise provide for such supplies,
materials, equipment and facilities as it deems necessary
and desirable. The board of county commissioners may
accept funds, grants, gifts, and services for the charter
commission from the state, the Government of the United
States, or other sources, public or private.
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125.63 Proposal o f county charter.— The charter com
mission shall conduct a comprehensive study of the opera
tion of county government and of the ways in which the
conduct of county government might be improved or
reorganized. Within 18 months of its initial meeting,
unless such time is extended by appropriate resolution of
the board of county commissioners, the charter commis
sion shall present to the board of county commissioners a
proposed charter, upon which it shall have held three
public hearings at intervals of not less than 10 nor more
than 20 days. At the final hearing the charter commission
shall incorporate any amendments it deems desirable, vote
upon a proposed charter, and forward said charter to the
board of county commissioners for the holding of a
referendum election as provided in s. 125.64.
125.64 A doption o f charter; dissolution of
com m ission. —
(1) Upon submission to the board of county commis
sioners of a charter by the charter commission, the board
of county commissioners shall call a special election to be
held not more than 90 nor less than 45 days subsequent to
its receipt of the proposed charter, at which special elec
tion a referendum of the qualified electors within the
county shall be held to determine whether the proposed
charter shall be adopted. Notice of the election on the pro
posed charter shall be published in a newspaper of general
circulation in the county not less than 30 nor more than 45
days before the election.
(2) If a majority of those voting on the question favor
the adoption of the new charter, it shall become effective
January 1 of the succeeding year or at such other time as
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the charter shall provide. Such charter, once adopted by
the electors, may be amended only by the electors of the
county. The charter shall provide a method for submitting
future charter revisions and amendments to the electors of
the county.
(3) If a majority of the voters disapprove the proposed
charter, no new referendum may be held during the next 2
years following the date of such disapproval.
(4) Upon acceptance or rejection of the proposed
charter by the qualified electors, the charter commission
will be dissolved, and all property of the charter commis
sion will thereupon become the property of the county.