Nipper v. Smith

1 F.3d 1171, 1993 WL 326663
Court of Appeals for the Eleventh Circuit·Decided September 15, 1993·No. No. 92-2588·Published·Cited by 15 cases

Opinion

ATKINS, Senior District Judge:

The plaintiffs/appellants are (1) Jesse L. Nipper, Donald A. Carter, Annie Ruth Williams, Selendra Williams, Katrina Miles, Desi Wayne Dunlap, Carol D. Days, and Anthony Days, black adult citizens of the United States and residents and registered voters of Duval County, Florida, and the Fourth Judicial Circuit, and (2) D.W. Perkins Bar Association, an unincorporated association of black attorneys in Duval County, Florida. They appeal from the judgment entered against them by the district court, following entry of an order finding that appellants failed to establish a violation of their rights under the Fourteenth and Fifteenth Amendments of the United States Constitution and section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 795 F.Supp. 1525.

Appellants challenge the method of at-large circuitwide and countywide election of judges to the Fourth Judicial Circuit Court of Florida and the Duval County Court. While appellants disagree with the district court’s ruling on the constitutional issue, they seek only a review of the ruling on the section 2 claim. Appellants’ Brief at 2.

For the reasons discussed below, we find that the district court erred in holding (a) that appellants failed to establish the existence of polarized voting and (b) given the presence of the Gingles threshold factors, that the appellees discharged their burden of defeating a section 2 claim, in terms of the totality of circumstances. Accordingly, we REVERSE AND REMAND.

I. BACKGROUND1

Duval County’s population is 24.4% black and the population of the Fourth Judicial [1174] Circuit is 21% black.2 The twenty-eight judges on the Fourth Judicial Circuit Court are elected cireuitwide and the twelve judges on the Duval County Court are elected countywide in these majority white election districts. R6-125-6. The at-large judicial elections for the Fourth Circuit and the Duval County Court are characterized by a majority vote requirement, a numbered-place system, and the use of staggered terms. R6-125-11. The election districts are very large: the Fourth Circuit covers approximately 2,017 square miles and contains a 1990 census population of 822,898; Duval County covers approximately 776 square miles and contains a 1990 census population of 672,971. Id. at 6. In order to qualify to run for a judgeship, a candidate must pay a filing fee of approximately $4,400 for county court and $5,000 for circuit court, although a candidate can avoid the fee by a petition process with a number of signatures from registered voters. Id. at 6-7. .

Although the voting age populations of the Fourth Judicial Circuit and Duval County are 19% and 22% black, respectively, no black candidate has ever won a contested election. Between 1972 and 1990, five black candidates ran for seats on the two courts in six contested elections.3 As the district court found, each of those election contests was characterized by severe polarized voting, with the majority of black voters choosing the black candidate and the vast majority of white voters supporting the white candidate, resulting in the consistent defeat of the black candidates. R6-125-9-10, 21. For example, Leander Shaw, former Chief Justice of the Florida Supreme Court, advanced to a runoff in the 1972 primary after gaining less than 25% of the white vote but 93% of the black vote in Duval County. However, he lost in the runoff against the white candidate even though Shaw had 98% of the black vote.4 [1175] Summarizing the analyses of the six elections, the district court stated as follows:

On their face, the voting estimates for the Shaw, Buggs, Washington, Prescod, and Micks elections indicate that voting was racially polarized in those elections. Stated differently, the estimates show that blacks were politically cohesive in those judicial elections, and that the white majority voted sufficiently as a bloc to enable the majority to usually defeat the black minority’s preferred candidate. The regression estimates and extreme case analyses show that in these elections, black support for the black candidates ranged from 73% to 98%, white support for the black candidate ranged from 3% to 33%, black support for the white candidate ranged from 2 to 27%, and white support for the white candidate ranged from 67% to 97%.

Id. at 21.

Testimony indicated there would have been additional black candidates but for the apparent futility of running in the existing majority white election districts in the face of such severe white bloc voting. R11-8-14 (testimony of Brian Davis); R10-118-120 (testimony of Judge Henry Adams).

At the time appellants filed this action, only one black judge had ever served on the circuit court and only one on the county court. Both reached office by way of midterm appointments to vacancies. Id. at 14-15, 32-33; R4-64-11. At the time of trial, only one of the twenty-eight circuit judges and two of the twelve county judges were black. Id5

Appellants established at trial that an election subdistrict easily could be drawn in the northwest quadrant of Duval County with a 60 percent black voting age majority and with sufficient population to elect six of the twenty-eight circuit court judges and three of the twelve county court judges. R6-125-7, 20; Plaintiffs’ Exhibits 4A and 5. Appellants have not contended this would be the only remedy available; rather, they submitted evidence of the subdistrict to demonstrate that a new electoral configuration could increase the ability of black voters to elect candidates of choice. R10-160, 164 (testimony of plaintiffs’ expert demographer Jerry Wilson).

As the district court found, Florida has a long history of racial discrimination in elections and in other aspects of life. R6-125-11-12. For example, until 1958, the State of Florida prohibited black citizens from attending the University of Florida College of Law. Florida A & M Law School was created in 1951 for black students, but was not accredited until several years later. When the state opened another law school in Tallahassee in 1967 at Florida State University, it closed Florida A & M Law School. R6-125-12.6 The district court also found that “black citizens in Florida still suffer in some ways from the effects of Florida’s history of purposeful discrimination,” particularly in terms of pronounced socio-economic disparities. R6-125-13.

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Nipper v. Smith, 1 F.3d 1171, 1993 WL 326663 (11th Cir. 1993).

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