Solomon v. Liberty County Comrs.

BLACK, Circuit Judge, dissenting: I respectfully dissent because the district court’s factual findings were not clearly erroneous.

The parties, the Court, and I all agree as to the applicable law in this case. We agree that the district court weighs several factors and there can be no liability unless the totality of the circumstances demonstrates that “the members of the minority group are denied equal political opportunity with respect to their race or color.” Opinion at (quoting Solomon v. Liberty County, 957 F. Supp. 1522, 1554 (N.D. Fla. 1997)).

In addition, we agree that we review a district court’s finding of no vote dilution for clear error. See Thornburg v. Gingles, 478 U.S. 30, 79, 106 S. Ct. 2752, 2781 (1986).

“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985).

In this case, the district court conducted its fact-intensive inquiry and found no vote dilution. I have come to the conclusion that the district court did not clearly err.

I do not suggest it is impossible that another trier of fact could have reached a different result from that reached by the district court. What I do state, however, is that the findings the district court made on remand after taking supplemental evidence in this fact-intensive case were not clearly erroneous.

The Court holds that the district clearly erred by (1) considering the electoral success of Earl Jennings, a black county commissioner,1 and (2) finding the policy underlying at-large election of school board members, adopted in 1953, was not tenuous. The Court believes that these two errors tainted the district court’s weighing of three factors—Senate Factors 4, 7, and 9—and resulted in an erroneous ultimate finding of no vote dilution. See Opinion at 25, 30-32.

The district court did not clearly err by considering Jennings’ electoral success.

The Supreme Court has stated that a district court “could appropriately take account of the circumstances surrounding recent black electoral success in deciding its significance.” Gingles, 478 U.S. at 76, 106 S. Ct. at 2779. The Supreme Court said that a district court could “view with caution” black candidates’ electoral success following the filing of a lawsuit and that proof that some minority candidates have been elected does not automatically foreclose a § 2 claim. How much weight to assign to Jennings’ sustained electoral success is within the discretion of the district court; a § 2 determination as to vote dilution requires “an intensely local appraisal of the design and impact of the contested electoral mechanisms.” Id. at 79, 106 S. Ct. at 2781 (internal quotations and citation omitted).

Upon closely scrutinizing Jennings’ election and re-elections, the district court found no evidence of any special circumstances that would require it to disregard Jennings’ electoral success. The district court found that black voters preferred Jennings. This finding was not clearly erroneous. In the Eleventh Circuit, “[w]hether a given minority candidate who has long enjoyed electoral success is the preferred representative requires appraisal of local facts within the ken of the district court and best left to it.” Meek v. Metropolitan Dade County, 908 F.2d 1540, 1548 (11th Cir. 1990).2

The Court nonetheless speculates that white voters somehow manipulated Jennings’ election to defeat this lawsuit, even though plaintiffs have offered us no such evidence.3 See Opinion at 16-18. The Court seems to place the burden on the defendants to disprove its supposition of manipulation. See Opinion at 18. However, once the defendants produce evidence of Jennings’ repeated success, it is the plaintiffs who shoulder the burden of controverting such success. See Gingles, 478 U.S. at 77, 106 S. Ct. at 2780 (“In some situations, it may be possible for § 2 plaintiffs to demonstrate that such sustained success does not accurately reflect the minority group’s ability to elect its preferred representatives.”) (footnote omitted).

The district court also did not clearly err by finding that the policy underlying at-large school board elections in Liberty County was not tenuous. Although the statute passed by the Florida legislature in 1947 may have been designed to dilute the voting power of the black community, this case is not about statewide legislation.

Rather, this case is about the adoption and continued maintenance of at-large elections by Liberty County. The Court emphasizes that the 1947 Florida statute required the adoption of at-large school board elections. See Opinion at 31. While this may have been so as a general rule, counties could opt out of at-large elections by population act. Indeed, Liberty County used population acts to keep its single-member district system until 1953, a fact of which the plaintiffs’ expert Dr. Schofner was unaware.

Solomon, 957 F. Supp. at 1568 n.107. After considering conflicting expert testimony and evidence from both sides, the district court found that Liberty County adopted at-large school board elections in 1953 as a result of a citizen’s reform movement to abolish the existing ward-type political system.4 This finding was not clearly erroneous.

After subtracting the three factors implicated by the two errors it perceives, the Court weighs the evidence for itself and finds that the evidence favoring appellees does not “tip the scales in appellees’ favor.” See Opinion at 32. Because it would have weighed the evidence differently, the Court concludes that the district court’s finding of no vote dilution is clearly erroneous. By so doing, the Court duplicates the role of the district court and thereby “oversteps the bounds of its duty under Rule 52(a).” Anderson, 470 U.S. at 573, 105 S. Ct. at 1511. Accordingly, I respectfully dissent.