Southern Christian Leadership Conference v. Sessions

56 F.3d 1281, 1995 U.S. App. LEXIS 14638

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 14, 1995
• Docket: No. 92-6257
• Status: Published

Opinions

TJOFLAT, Chief Judge:

Appellant Southern Christian Leadership Conference (“SCLC”) and the individual appellants are the class representative of the black voters in Alabama.¹ They appeal the district court’s decision, Southern Christian Leadership Conference (“SCLC”) v. Evans, 785 F.Supp. 1469 (M.D.Ala.1992), reached following a bench trial, rejecting their claim that Alabama’s system for electing circuit and district judges in ten of Alabama’s judicial circuits affords the black voters in those circuits, on account of their race, “less opportunity ... to participate in the political process” than other members of the electorate are afforded in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988).²

The district court rejected appellants’ claim on two grounds. First, appellants’ opportunity to participate in the election of the judges in question is not being abridged on account of their race. Second, the remedies they seek are not feasible alternatives to the electoral systems presently in place. We affirm.

I.

A.

Alabama has a “unified judicial system” of trial and appellate courts. The trial courts of general jurisdiction are the circuit courts, and the district courts are courts of limited jurisdiction. Ala.Code § 12-1-2 (1986). Currently there are forty judicial circuits in Alabama, each designated by a number; each circuit contains one or more counties. See id. § 12-11-2 (Supp.1993).³ There is a separate district court within each county.⁴ Id. § 12-12-1 (1986).

Appellants challenge the system for electing circuit judges in the following ten judicial circuits:

Fourth Circuit — Bibb, Dallas, Hale, Perry, and Wilcox Counties

Fifth Circuit — Chambers, Macon, Randolph, and Tallapoosa Counties

Sixth Circuit — Tuscaloosa County

Seventh Circuit — Calhoun and Cleburne Counties

Tenth Circuit — Jefferson County

Thirteenth Circuit — Mobile County

Fifteenth Circuit — Montgomery County

Twentieth Circuit — Henry and Houston Counties

Twenty-Third Circuit — Madison County

Twenty-Sixth Circuit — Russell County

The appellants also challenge the district court election systems in Jefferson, Mobile, Montgomery, and Russell Counties. The challenged circuits include a majority of the state’s population and represent both urban and rural areas within Alabama. Basic demographic information about these circuits and districts⁵ is summarized in the following chart.

CHARACTERISTICS OF CHALLENGED CIRCUITS

Circuit Total Population % of Black Voting Age Population Circuit Judges (white/black) District Judges (white/black)

4th 106,531 49% 2/0

5th 120,511 38% 3/0

6th 150,522 23% 3/0

7th 128,764 16% 4/0

10th 651,525 32% 24/3 11/0

13th 378,643 28% 10/1 4/1

15th 209,085 38% 7/1 3/0

20th 96,705 22% 3/0

Circuit Total Population % of Black Circuit Voting Age Population Judges (white/black) District Judges (white/black)

23rd 238,912 ^ © 05 T — I

26th 46,860 o J>0 o © CO

Nine counties in Alabama have a black majority voting age population: Bullock, Dallas, Greene, Hale, Lowndes, Macon, Perry, Sumter, and Wilcox. These counties are currently grouped into five separate judicial circuits. Only one of the five circuits, the Seventeenth, has a black majority of the voting age population.⁶

Judicial elections in Alabama are partisan. See id. § 17-7-1 (Supp.1993). Judges on Alabama’s trial courts are elected at-large from their circuits or districts. Id. § 17-2-2. One of the challenged circuits has twenty-four circuit judges while others have as few as two. Each county, however, has at least one district judge. Candidates for judicial office in circuits or districts with more than one judge must run for a particular position (a “post”) on the ballot; this is known as a numbered place system.

The Governor has the authority to fill midterm judicial vacancies, such as those that occur when a sitting judge dies, resigns, retires, or is removed from office. Ala. Const, amend. 328, § 6.14. This power of appointment is limited in four of the challenged circuits by judicial nominating commissions⁷ that solicit candidates, review their credentials, and certify a list of names to the Governor. In all four of these circuits, the Governor must appoint one of the people from the list to the vacant position. These four circuits contain forty-five of the sixty-six challenged circuit judgeships.

B.

Alabama’s system of at-large election of circuit court judges dates from 1850 when article V, section 12 of Alabama’s 1819 Constitution was amended to require the General Assembly to “provide by law for the election of judges of the Circuit Courts by the qualified electors of their circuits respectively.” Ala. Const, amend. 3 (1850). The 1865 Constitution required that “judges of the circuit and probate courts, and of such other inferior courts as may be by law established, shall be elected by the qualified electors of the respective counties, cities, or districts for which such courts may be established.” Ala. Const, art. VI, § 11 (1865). Similar provisions were retained in the 1875 and 1901 Constitutions. See Ala. Const, art. VI, § 12 (1875); Ala. Const, art. VT, § 152 (1901). In 1973, Amendment 328, which is known as the Judicial Article, repealed article VI of the 1901 Constitution and provided that “[a]ll judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts.” Ala. Const, amend. 328, § 6.13 (1973).⁸ It is section 6.13 that currently requires at-large elections of circuit and district judges.

Similarly, Alabama has a long history of employing a numbered place system. The State first enacted statewide legislation requiring the use of at-large numbered positions for the election of circuit judges in 1927. At that time, there were no black attorneys in Alabama, and blacks were largely disfranchised. The historical context of the 1927 law reveals that the measure was promoted by conservative elements within the Democratic Party who felt threatened by victories in the 1926 elections by rival Progressive/Prohibitionist/Ku Klux Klan factions. In 1961, the Alabama Legislature passed Act 221, which expanded the use of numbered places to elect all multimember offices. Because judges were already elected under an at-large numbered place system, Act 221 did not change the judicial electoral process. The Judicial Article and reform movement of the 1970s also did not attempt changes from a popularly elected judiciary. Moving toward an appointment system would have garnered opposition from many Alabamians and would have lead to the defeat of the Judicial Article because enactment required voter approval. SCLC v. Evans, 785 F.Supp. at 1490.

C.

Judges must be licensed to practice law in Alabama. Ala. Const, amend. 328, § 6.07. Records of the Alabama State Bar reflect the following about the admission of black lawyers to the state bar:

CUMULATIVE ADMISSIONS INTO ALABAMA STATE BAR

Number Admitted Cumulative Total Admitted Year

0 1927

1 1937

2 1938

3 1947

5 1948

6 1950

8 1951

10 1953

11 1954

12 1957

15 1958

17 1959

18 1960

19 1961

20 1966

21 1967

23 1968

25 1971

28 1972

35 1973

42 1974

52 1975

65 1976

75 1977

80 1978

97 1979

107 1980

122 1981

150 1982

157 1983

177 1984

184 1985

192 1986

207 1987

229 1988

255 1989

274 1990

Year 1991 Number Admitted 21 Cumulative Total Admitted 295

The records of the Alabama State Bar indicate the following about the race of active lawyers holding a regular license to practice law in the challenged circuits:

ACTIVE LAWYERS BY CIRCUIT BY RACE

No. Black % Black No. White % White Circuit

77 83.7 4th

76 85.4 5th

357 96.7 6th

140 95.9 7th

2909 96.4 10th

934 97.8 13th

1003 94.7 15th

142 96.6 20th

445 96.3 23rd

49 92.4 26th

Until the late 1960s, black students were not admitted to the only accredited law school at that time in Alabama, the University of Alabama School of Law; the first black law student did not graduate until 1972. In the 1950s, the Alabama State Bar openly supported segregation legislation. Several local, voluntary bar associations effectively excluded blacks from membership — one until 1975. Currently, however, the University of Alabama School of Law and the Cumberland School of Law, a private institution, routinely admit black students. The Alabama State Bar has organized efforts to increase the number of blacks on the bench — as recently as 1990, by creating a Task Force on Minority Participation and Opportunity.

The Alabama Democratic Conference (“ADC”) is a statewide black political caucus that is an arm of the state Democratic Party. It has had success in recruiting black candidates and supporting their campaigns. The ADC has also been active in choosing among white judicial candidates and organizing support for its preferred candidates.⁹

Only one black candidate for the trial bench who was not an incumbent has prevailed in a judicial election contest in a majority white jurisdiction. In 1976, Ralph Cook won a primary election in the Bessemer division of Jefferson County and ran unopposed in the general election for a district court judgeship. Five other nonincumbents have run for judicial office in majority white jurisdictions and lost:

1. Nathaniel Owens

In 1980, Nathaniel Owens was elected district judge in the 7th Circuit, defeating a white opponent. During his term on the district court, he unsuccessfully attempted to unseat a white incumbent circuit judge. He ran despite the discouragement of the black community. In 1986, Judge Owens ran unsuccessfully as a Republican for reelection to the district court. He did not gamer the support of the black vote or of black political organizations, such as the ADC, which instead supported the white Democratic candidate.¹⁰

2. Emory Anthony and Raymond Cham-bliss

In the 1988 general election for district court in Jefferson County, Emory Anthony and Raymond Chambliss, both black Democrats, were defeated by white Republicans. The election results were driven largely by partisan politics. The black Democratic judicial candidates each received approximately 24 percent of the white vote while Governor Michael Dukakis, the Democratic candidate for President, received only 17 percent of the white vote in Jefferson County. The top white Democratic vote-getter received less than 40 percent of the white vote in the circuit.

3. Frankie Fields Smith

Frankie Fields Smith of the Thirteenth Circuit lost to a white candidate in the 1980 Mobile County district court primary election and to two white candidates in the 1986 Mobile County district court general election. In 1980, she was not rated as being well qualified by the bar¹¹ and got little support. In 1986, she was not the candidate preferred by black voters. She ran as an independent because she entered the race too late to qualify as a Democrat and, consequently, a substantial majority of black support went to the white Democratic candidate.

4. A1 Beckles

In the Twenty-Third Circuit, Madison County, there has been only one judicial election involving a black candidate. A1 Beckles, a black lawyer, was defeated in the 1990 Democratic primary election for district judge by a former assistant district attorney, who was a lifelong resident with strong connections countywide. The campaign was not marred by racial passion; indeed, the ADC gave the white candidate its co-endorsement.

Alabama’s first black circuit judge was appointed in 1979. Since 1865, there have been five black circuit judges — all of whom first obtained that office by appointment. A black district judge was first appointed in 1977 in majority black Macon County. There have been nine black district court judges — one was grandfathered into office, three were elected, and five initially took office by appointment.

Once appointed, black judges have in most instances retained their positions. Justice Oscar Adams, for example, who had been the first black person elected to statewide office in Alabama, was appointed by the Governor in 1980 to serve on the Supreme Court of Alabama. Justice Adams won reelection in statewide races against well-known white opponents in the 1982 Democratic primary, the 1982 primary runoff, and the 1988 general election.¹² The current black circuit judges, all of whom were appointed to the bench, have, with one exception, been reelected without opposition. Only Judge Ralph Cook had a contested reelection bid; he was opposed by a white candidate shortly after his appointment in 1981, and was victorious. Judge Cook had no opposition in the 1988 election. Justice Adams retired from the Alabama Supreme Court in 1993, two years before the end of his term; Judge Cook was appointed to replace him on the court.¹³

II.

This action was filed on May 11, 1988. Appellants named as defendants the Alabama Attorney General, the Chief Justice of the Alabama Supreme Court, the Alabama Secretary of State, and the county probate judges who administer the electoral systems in question.¹⁴ Appellants alleged that the numbered, at-large elections these systems employ minimize the black voters’ opportunity to participate in the political process and to elect representatives of their choice, and thus dilute their voting strength in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988). Appellants also claimed that the judicial circuit boundary lines were drawn with the intent to fragment high concentrations of the black population, so that they could not elect blacks to office.¹⁵

To remedy this situation at the circuit court level, appellants sought an injunction that would realign the circuit boundaries and then divide the circuits into single or multi-member electoral districts in a manner that would ensure that the black voters could elect candidates of their choice to office. To eliminate the vote dilution at the district court level, appellants asked the court to divide the four counties in question into districts, again to ensure the election of blacks to office.¹⁶ Appellants acknowledged that, if implemented, these remedies would eliminate the linkage between the judge’s territorial jurisdictions and their electorate and, moreover, would disfranchise the voters in their jurisdictions who reside outside the new electoral districts.

Appellees, in their answer, denied that the challenged election systems afford appellants less opportunity than other members of the electorate to participate in the political process and elect candidates of choice. Moreover, appellees contended that appellants’ proposed remedies were unfeasible, given the State’s legitimate interest in maintaining the linkage between a trial judge’s jurisdiction and elective base and guaranteeing a pool of potential candidates large enough to give the voters a reasonable choice.

The district court tried this case, in December, 1991, in accordance with the teaching of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), a section 2 challenge to North Carolina’s multimember legislative district scheme. Gingles holds that, to obtain relief under section 2 of the Voting Rights Act, the plaintiffs must establish the following: First, the plaintiffs must show that an appropriate remedy can be fashioned. In Gingles, the remedy was the creation of single-member districts in which the minority group the plaintiffs represented would constitute a majority sufficient to elect representatives of their choice. Second, the plaintiffs must show that the minority voters around whom the district is to be drawn are “politically cohesive.” Third, the plaintiffs must show repeated bloc voting by the white majority such that the white majority usually defeats the minorities’ preferred candidate. Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67.

In ordering the proof, the district court initially focused on the third Gingles prong: “whether there is polarized voting so that minorities have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” SCLC v. Evans, 785 F.Supp. at 1472-73.¹⁷ On this issue, both sides offered voluminous statistical evidence and expert testimony interpreting that evidence. The experts are veterans of voting rights litigation. The appellants relied on the testimony of Dr. Allan Lichtman, Professor of History at American University in Washington, D.C. The appellees offered the testimony of Dr. Ronald Weber, Professor of Government at the University of Wisconsin. The experts in this ease used substantially the same techniques — ecological regression and extreme ease analysis — that were approved and utilized by the Supreme Court in Gingles. See Gingles, 478 U.S. at 61, 106 S.Ct. at 2772. Although the experts used the same or similar techniques, they differed sharply over which elections should be analyzed to determine whether voting has been and continues to be racially polarized.

Dr. Lichtman studied elections in which black candidates competed against white candidates and did not confine his analysis to judicial elections. He analyzed approximately 300 elections of twenty different offices over a ten-year period. Dr. Lichtman’s conclusions are summarized below:

BLACK COHESION AND WHITE CROSSOVER: 1980S ELECTIONS

Circuit Black Cohesion White Crossover

4th 85 15

5th 74 21

6th 76 20

7th 79 25

10th 88 22

13th 77 20

15th 70 22

20th 73 20

23rd 84 22

26th 73 16

Dr. Weber, however, declined to limit his analysis to campaigns in which black candidates participated. He analyzed all judicial elections, even those in which only white candidates participated, beginning his analysis in 1976 with the first elections following the enactment of the Judicial Article. Of the 353 judicial elections analyzed by Dr. Weber, 43 (12 percent) involved black candidates. Thirty of the 43 involved Oscar Adams.¹⁸ Dr. Weber essentially found that in 76 percent of circuit judge elections and 77 percent of district court elections the candidate preferred by black voters won.¹⁹ In statewide judicial elections, Dr. Weber concluded the candidate preferred by black voters won 83 percent of the elections.

After weighing all of the evidence, the district court concluded that appellants had failed to satisfy the third prong of the Gin-gles test and thus to establish a violation of section 2. Specifically, appellants failed to show that they “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” SCLC v. Evans, 785 F.Supp. at 1473. The court found that “for many years there has been no impediment to black voting in Alabama”; that “blacks and whites are registered in comparable percentages”; that “the black minority ... has had increasing political impact in all political contests”; and that “blacks have been largely successful in having the candidate of their choice win in contested judicial elections.” Id. at 1486-87. In the court’s view, “[n]o one could find that election schemes in Alabama have reduced the minority vote to an empty formality or prevented minorities from substantially influencing election outcomes.... [T]he black electorate is decisive in ‘influencing the outcome’ of elections and having their preferred candidate elected. This is a great credit to the sagacity of the black political leadership in Alabama.” Id. at 1487.

Turning to appellants’ claim that the judicial circuit boundary lines had been drawn with the intent to dilute their voting strength, the district court observed that appellants “offered no evidence that the at-large voting system for electing judges was racially motivated.” Id. at 1488 n. 3.²⁰ On the evidence that was before it, the court found that “Alabama’s procedure for electing judges at large (one hundred forty-two years) and for numbered places (sixty-five years)” and “the size of judicial circuits and districts were established with no racial discriminatory intent.” Id. at 1487. In sum, the court found “no discriminatory purpose in the at-large voting system.” Id. at 1488 n. 3.

The district court also concluded that the remedies appellants proposed are not feasible alternatives to the electoral systems now in place. The court advanced several reasons for its conclusion. For example, Alabama has “a legitimate state interest in having a judge’s jurisdiction correspond to his constituency,” id. at 1487; appellants’ dis-tricting remedies would destroy this linkage and effectively disfranchise the voters residing beyond the judge’s district. Appellants’ influence in elections outside their district would diminish. “ ‘[T]he great majority ... of judges [would] be elected from new voting subdistricts with negligible minority populations and, consequently, negligible minority political influence on the outcome of those elections.’ ” Id. at 1479 (quoting League of United Latin American Citizens Council v. Clements, 914 F.2d 620, 649-50 (5th Cir.1990) (en banc)).

Appellants’ proposals would eliminate the numbered place system and force judges to run against one another. In the court’s view, “a worse system could not be imagined.” Id. at 1490.

[I]t is difficult ... to conceive of a more inefficient and damaging way of electing judges than to have them all run in competition with each other.... There is a problem now of getting the best qualified lawyers to seek judgeships. This problem would be compounded if potential judicial candidates realized that at election time all judges would have as opponents their colleagues on the bench. Such a system would hardly tend to cause harmonious collegiality on the bench, and the heightened probability that one would have the costly task of running for reelection at the conclusion of each term would make seeking judicial office substantially less attractive.

Id. at 1477.

The district court’s decision rejecting appellants’ claims issued on March 18, 1992. A panel of this court subsequently vacated that decision and remanded the case for reconsideration in light of Nipper v. Smith, 1 F.3d 1171 (11th Cir.1993). After we took Nipper en banc, Nipper v. Smith, 17 F.3d 1352 (11th Cir.1994), we granted rehearing en banc and vacated the panel opinion in this case. SCLC v. Evans, 18 F.3d 897 (11th Cir.1994).

III.

Appellants contend that the district court’s finding that the challenged electoral systems do not afford them less opportunity than other members of the electorate to participate in the political process and to elect candidates of choice is clearly erroneous. According to appellants, the district court should have found to the contrary as a matter of law. Appellants also contend that the court erred in concluding that the remedies they proposed were unfeasible. Appellants, therefore, ask that we vacate the district court’s judgment and remand the ease for the imposition of the injunctive relief they are seeking. We consider these issues in turn.

We review the district court’s findings of fact under the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. Gingles, 478 U.S. at 79, 106 S.Ct. at 2781. The only finding of fact appellants challenge in this appeal is the district court’s finding on the ultimate factual issue: whether appellants’ voting strength is being diluted on account of appellants’ race. Appellants do not question any of the district court’s findings on the subsidiary issues of historical fact.²¹

As noted supra, the district court, focusing on the third prong of the Gingles test, asked whether the voting patterns in the challenged jurisdictions reflected “polarized voting so that minorities have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” SCLC v. Evans, 785 F.Supp. at 1472-73. Specifically, the court asked whether whites and blacks voted for a judicial candidate on account of the candidate’s race or for some other reason, such as the candidate’s qualifications, political affiliation, or whether the candidate had received any endorsements. In considering the evidence on this issue and the relative weight it should be given, the district court undertook the requisite practical, searching inquiry required in section 2 cases. Gingles, 478 U.S. at 45, 106 S.Ct. at 2764. The court appropriately considered all of the circumstantial evidence — both statistical and anecdotal — that was offered.

We begin our assessment of the district court’s finding on the ultimate issue by noting that there was no evidence that the at-large, majority vote, and numbered place requirements were instituted or are being maintained for discriminatory purposes, to dilute the appellants’ voting strength on account of race. In addition, there was no evidence that the size of the judicial districts and circuits were established or are being maintained with such discriminatory intent. The appellants, therefore, have been basing their ease for injunctive relief on the contention that, unless the challenged electoral systems are changed, vote dilution, given past voting patterns, will likely occur in the future.

Appellants contend that the district court’s finding on the ultimate factual issue must be set aside because the court erred in its treatment of Dr. Lichtman’s testimony. In its dispositive memorandum opinion, the court found Dr. Lichtman’s analysis to be flawed. SCLC v. Evans, 785 F.Supp. at 1474-75. Dr. Liehtman’s analysis was flawed because he only analyzed elections (both judicial and nonjudicial) involving a black candidate; moreover, he failed to appropriately consider the effect on judicial election results of the power of incumbency and, with respect to incumbents who had been appointed to office, the prestige of merit selection.²² Id.

The district court correctly acknowledged this analytical omission: Lumping together all elections, judicial and nonjudicial alike, creates a risk of glossing over the significant differences between the legislative and judicial arenas. This is not to say that the approach of the appellees’ expert, which only included judicial elections, was more appropriate. The district court also perceived flaws in Dr. Weber’s analysis. Dr. Weber’s analysis omits many nonjudicial electoral races in which black candidates participated; such races are certainly relevant to the inquiry the district court was conducting.

Although it was urged to do so by the respective experts, the court refused to ignore relevant evidence. In the district court’s view, any evidence that explained election results was relevant. That is, the court considered both nonjudicial and judicial elections, elections involving a black candidate, and elections in which no black candidate ran, all the while being mindful of the differences between these types of elections. The court also took into account the contextual materials offered. For example, the court reviewed evidence concerning, among other things, the extent of past official discrimination in Alabama, the lingering socioeconomic effects of that discrimination, and the extent to which the black community has been able to organize into an influential and successful political force. The court made clear that it discounted what were, in effect, arguments offered by the experts, albeit in the form of “opinions,” as to how the court should resolve the ultimate fact to be decided in the case: whether the voting strength of minority voters is being diluted on account of their race.²³ Although the court may have rejected these “opinions,” as it was permitted to do, the court emphasized that it was not ignoring any of the relevant, circumstantial evidence — both testimonial and documentary — presented. The court concluded that “greater weight should be given to judicial elections ... and white on black judicial elections, but [that it would] also consider political races generally — white on black and white on white — in seeking to determine the question of whether the political process is open to minority voters.” Id. at 1473 (citations omitted).

In sum, the district court engaged in a searching and meaningful evaluation of all the relevant evidence concerning the challenged trial court jurisdictions. As the court’s dispositive memorandum opinion details, there was ample evidence in the record to support the court’s conclusion that factors other than race, such as party politics and availability of qualified candidates, were driving the election results and that racially polarized voting did not leave minorities with “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Id. We find no cause to set aside the district court’s finding on the ultimate issue of fact in this case. Appellants’ claim under section 2 of the Voting Rights Act therefore fails.

We read as an alternative holding the district court’s discussion of the appropriateness and feasibility of appellants’ proposed remedies. We agree with the court’s conclusion that, assuming that appellants’ opportunity to participate in the challenged elections was being abridged, no remedy is available in this case. When determining whether the remedy a plaintiff seeks is a feasible alternative to the challenged electoral system, a state’s interest in maintaining the challenged system is a legitimate factor to be considered. Houston Lawyers’ Ass’n v. Attorney Gen., 501 U.S. 419, 426-27, 111 S.Ct. 2376, 2381, 115 L.Ed.2d 379 (1991) (citing Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir.1973) (en banc), aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976)). The challenged system fosters several legitimate state policies; two of them in particular appear to dominate the analysis: (1) maintaining the link between a trial judge’s jurisdiction and elective base; and (2) ensuring that a pool of potential judicial candidates is large enough to give the voters a reasonable choice. Accordingly, we address each of appellants’ proposed remedies in light of the policies that the state’s interests advance.

1.

The first remedial option suggested by appellants is a reconfiguration of certain circuits. As we note supra, appellants presented no evidence indicating that the current circuit configuration was racially inspired. Under the proposed plan, five counties would be shifted into alternative circuits as follows:

REAPPORTIONMENT PLAN: CURRENT CIRCUIT DATA

Current Total Black % % Circuits Pop. Pop. Black Black VAP

Second

Butler 35 40 21,892 QO 05 t> OO

Crenshaw 24 26 13,635 ^ lO CO

Lowndes 70 75 12,658 LO ^ 05

21,798 40 45 48,185

Third

11,194 40 44 Barbour r-i UO CM

7,986 67 72 Bullock CM T-i i-H

36,459 19,180 48 53

Fourth

Bibb 16,576 3,478 21 18

Dallas 48,130 27,825 58 53

Hale 15,498 9,214 59 55

Perry 12,759 8,219 64 57

Wilcox 13,568 9,353 69 63

106,531 58,089 55 49

Fifth

32 36 Chambers 36,876 r-H CM CM CO H

84 86 Macon 24,928 O ^ CO tH (M

21 24 Randolph 19,881 nn gg _iT ^

23 26 Tallapoosa 38,826 CM tH CM H

49,459 38 41 120,511

Current Total Black % %

Circuits Pop. Pop. Black Black VAP

Thirty-Fifth

38 42 Conecuh co to CR LO ^ r-i

35 39 Monroe co -3 to 00 CD co oa

38,022 15,297 36 40

REAPPORTIONMENT PLAN: PROPOSED CIRCUIT DATA

Proposed Total Black %

Barbour 25,417 11,194 44 40

Bullock 11,042 7,986 72 67

Macon 24,928 21,340 86 84

61,387 40,520 66

Dallas 48,130 53 58

Hale 15,498 55 59 co

Perry 12,759 57 64 oo

45,258 76,387 54 59

70 75 Lowndes 12,658 ÜT 03

35 39 Monroe 23,968 CO -3 bo

63 69 Wilcox 13,568 CO CR OO

28,181 51 56 50,194

Caseload, population, population density, square miles per judge, attorneys per judge and other factors contribute to the allocation of judicial resources. Therefore, the reallocation of counties among circuits would have ramifications across the state. For example, Bibb County, which is currently one of five counties in the Fourth Circuit, would become a single county circuit. Whether a county of 16,576 could reasonably and efficiently support its own circuit is uncertain.

Bibb County also exemplifies the disfranchisement that would occur under the proposed reconfiguration: In the majority white circuits, the voting power of blacks would be diluted to a degree greater than the dilution alleged to be presently existing; in the majority black circuits, the voting power of whites would be diluted. Although currently the overall percentage of the black population of Bibb County is 21 percent, with a black voting age population of 18 percent; the black population of the Fourth Circuit in its entirety is 55 percent, with a black voting age population of 49 percent. Recircuiting would drastically dilute the vote of the black voters in Bibb County in circuit judge elections — from 49 percent of the voting age population to 18 percent.

There was no evidence that justice in the challenged courts is being administered in a racially discriminatory manner. The purpose to be served by reconfiguring the circuits, therefore, would be, for the most part, to assist in the election of black judges. But the effect of having black judges accountable primarily to the black section of the circuit, and white judges answerable to the white section of the circuit (as would happen in Bibb County, for example), would threaten the administration of justice — race would become the linchpin of the judicial system. Massive restructuring for the purpose of earmarking judgeships would undermine the existing public confidence in judges as fair and impartial decisionmakers.

Given the appellants’ suggested plan, it is quite doubtful whether the goal of placing more black lawyers on the bench would be achieved. Two of the proposed majority black circuits would have 51 percent and 54 percent black voting age populations — the current Fourth Circuit has a 49 percent black voting age population. The few additional percentage points would not be enough to ensure the successful election of black judicial candidates.

Another serious obstacle to ensuring the election of black judicial candidates is the limited pool of eligible black lawyers. Under Alabama law, Ala. Const, amend. 328, § 6.07, judges must be licensed attorneys. This requirement limits the eligible pool of candidates in a way that candidates for other representative bodies are not so confined. Even with reconfiguration, there is no guarantee that a black lawyer from the small number of those eligible would even seek to become a candidate. For example, the Fifth Circuit is currently composed of four counties and is allotted three circuit judges. In three of those four counties there is no black lawyer. In seven of the nineteen counties that comprise the challenged circuits, there are no black attorneys. Only the Tenth Circuit, Jefferson County, has more than one hundred black lawyers, with 105. The Fifteenth Circuit, Montgomery County, has 56, and no other circuit has more than 20. Of more than 9600 licensed lawyers in Alabama, only 295 are black. Approximately one-third of all of the black attorneys who have ever been licensed in Alabama were granted licenses in the past five years. Most judges practice law for several years before seeking a position on the bench; this experience time-lag also must be factored in when calculating the available pool of black potential candidates. The State’s interest in having a pool of black lawyers large enough to give the voters a reasonable choice from which to select a qualified candidate must be considered when evaluating suggested remedies.

For the foregoing reasons, the district court did not err in rejecting appellants’ first remedial option.

2.

The second remedial option calls for carving the circuits and counties into districts — “either single-member districts or multi-member subdistriets with numbered places.”²⁴ Appellants proposed that “[i]n Jefferson County, for example, two multimember districts could be drawn — a majority black ‘city division’ from which a number of judges could run at-large for numbered places and a majority white ‘county division’ from which the remaining judges could run in a similar fashion.” Record, vol. 5, at 49, No. 143.

In addition to raising the same questions of the available pool of qualified black potential judicial candidates that we discussed, swpra, in the context of circuit reconfiguration, subdistricting would directly implicate the State’s linkage interest. Linking a trial court judge’s territorial jurisdiction and electoral base serves to preserve judicial accountability. The Alabama model reflects a belief that voters should have the right to hold a judge accountable for his or her performance. Subdistricting, however, would strip every voter residing beyond a judge’s subdistrict of his or her participation in the judicial selection process — leaving the judge accountable only to those voters in his or her subdistrict. Even in the judge’s own subdis-trict, voters would be disfranchised: In white subdistricts the voting power of blacks would be diluted; in black subdistricts the voting power of whites would be diluted. The likely effects of the loss of minority influence would be more pronounced in this context of a lone decisionmaker, a trial judge, who would lack input from the colleagues elected by the rest of the citizenry of the jurisdiction.²⁵

In linking the size of judicial electoral units and the trial court’s territorial jurisdiction, Alabama has attempted to balance the desire for accountability of judges to their electorate along with the need to maintain judicial independence. Breaking this link would undermine the Alabama system of fostering an independent judiciary by holding judges accountable to a broad section of the population. Although utilizing partisan politics may inject a degree of “responsiveness” into the dynamic, any districting remedy that would further minimize the electoral base would encourage even greater “responsiveness” on the part of judges to the special interests of the people who elected them. It has been written that remedial plans in the legislative context may “reinforce[ ] racial stereotypes and threaten[ ] to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole.” Shaw v. Reno, — U.S. -, -, 113 S.Ct. 2816, 2828, 125 L.Ed.2d 511 (1993). This proposition seems quite accurate in the context of state trial court judges who must not engage in traditional legislative “responsiveness.”

Subdistricting would also increase the specter of “home cooking”: Creating a smaller electorate would increase the pressure to favor constituents. Everyone agrees that in some politically volatile and controversial cases it is beneficial to have the electorate come from the entire circuit rather than some smaller portion. Appellants suggest that the judicial ethical code and the appellate process provide sufficient safeguards against favoritism concerns. But once court-ordered subdistricting sends the message, as it inevitably would, that race matters in the administration of justice, no procedure could mitigate the devastating effects. If favoritism concerns were rooted in racial issues, the fundamental fairness of the judicial system would continually be questioned. Such a redistricting remedy would reintroduce, to a greater degree, the very vices from which the appellants seek relief.

The district court did not err in rejecting appellants’ second remedial option.

In sum, the many state policy interests we have discussed, including maintaining the link between a trial judge’s electoral base and jurisdiction and ensuring a reasonable pool of qualified potential candidates, preclude the remedies appellants’ propose; moreover these interests outweigh whatever possible vote dilution may have been shown in this case. The judgment of the district court is, therefore, AFFIRMED.

IT IS SO ORDERED.

1 . For ease of discussion we refer to appellants as the black voters in the ten judicial circuits under scrutiny in this case.

2 . Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988), provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color....

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

3 . The legislature, with the advice of the Alabama Supreme Court, has the authority to change the number and boundaries of the circuits. Ala. Const, amend. 328, § 6.12.

4 . Court business is conducted largely at the county level. Venue is defined in terms of counties. Ala.Code § 6-3-2 (1986). Each county has a courthouse, see id. § 12-11-3, circuit court clerk, id. § 12-17-90, and separate jury commission, id. § 12-16-30.

5 . This is the demographic information that was presented to the district court.

6 . The election systems in the Seventeenth Circuit and Bullock, Greene, Lowndes, and Sumter Counties have not been directly challenged by appellants.

7 . The various nominating commissions came into being at different times: The Birmingham Division of the Tenth Circuit (Jefferson County) has had a nominating commission since 1951; the Twenty-Third Circuit (Madison County) has had one since 1974; the Thirteenth Circuit (Mobile County) has had one since 1982; and the Sixth Circuit (Tuscaloosa County) since 1990. See Ala. Const, amends. 83, 110, 334, 408; Ala. Acts, 90-627.

8 .District judges are required to have resided in their districts for at least 12 months prior to their election or appointment and must continue to reside in their district during their tenure in office. Ala.Code § 12-17-64 (1986). Similarly, circuit judges are required to have resided in their circuits for at least 12 months prior to their election or appointment to office and must continue to reside in the circuit while in office. Ala. Const, art. VI, § 142 (1901); Ala.Code § 12-17-22 (1986).

9 . The stated purpose of the ADC is to "endorse black and white candidates who will be responsive to the needs of blacks and poor people in Alabama.” The majority of ADC endorsements have gone to white candidates.

10 . Judge Owens had alienated the black community by joining a white church, enrolling his children in a private school, supporting the white community's position in a controversial school location issue, and becoming a Republican, claiming that God had called on him to change his party affiliation.

11 . The record does not specify exactly what Frankie Fields Smith’s bar rating was — it merely reflects that she did not receive a rating of "well qualified."

12 . The record does not indicate whether Justice Adams had opposition in the 1982 general election. We assume that, having won the primary runoff, he ran unopposed.

13 .To provide a current depiction of the composition of the bench we have taken judicial notice of information not available at the time the district court rendered its decision. Under Rule 201 of the Federal Rules of Evidence, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

14 . Appellants did not name as defendants the circuit and district judges whose offices would be affected by the injunctive relief appellants seek. Appellants’ failure to name them, however, is not an issue in this appeal. Presumably, appellants sued the Attorney General, the Chief Justice, and the Secretary of State in the belief that these officers could create the new electoral system(s) such injunctive relief would mandate. The legislators, however, are the only officials who have the authority to alter the circuit boundaries in the manner appellants propose. See supra note 3.

15 . Appellants sought relief under the Fourteenth and Fifteenth Amendments to the United States Constitution as well as under § 2 of the Voting Rights Act. The district court found no constitutional violations and dismissed appellants Fourteenth and Fifteenth Amendment claims. Appellants do not challenge the dismissal of those claims in this appeal. Accordingly, no further mention of appellants' constitutional claims will be made in this opinion.

16 . At the time appellants brought this suit, the question was being debated whether § 2 of the Voting Rights Act applies to state judicial elections. In June 1989, the district court ruled that the Voting Rights Act does apply. SCLC v. Siegelman, 714 F.Supp. 511, 521 (M.D.Ala.1989). Shortly thereafter, the Fifth Circuit decided, in League of United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620, 631 (5th Cir.1990) (en banc) that judicial elections are not subject to § 2. Given this decision, the district court stayed the proceedings (other than discovery) in this case to allow appellees an opportunity to take an interlocutory appeal. When the Supreme Court held that state judicial elections are covered by § 2, see Chisom v. Roemer, 501 U.S. 380, 403, 111 S.Ct. 2354, 2368, 115 L.Ed.2d 348 (1991); Houston Lawyers’ Ass'n v. Attorney Gen., 501 U.S. 419, 424, 111 S.Ct. 2376, 2380, 115 L.Ed.2d 379 (1991) (reversing League of United Latin American Citizens), the proceedings in the instant case resumed.

17 . The court, and the parties, addressed the matter of polarized voting after the facts recited in part I supra had been established. Also established was Alabama’s history of discrimination against black citizens, including a legacy of disfranchisement and segregation in most areas of life. Blacks had been systematically excluded from law schools, grand and petit juries, had sat in segregated court rooms, and had been confined in segregated prisons. Statistical evidence showed that in every circuit at issue blacks have substantially lower median incomes than whites and are substantially more likely to have incomes that fall below the poverty line. Blacks have lower rates of high school and college graduation than whites and are more likely to be unemployed. Finally, racial appeals had been present in some judicial election contests; some were ineffective, however, and at least one backfired. As the district court observed:

One ... subtle racial appeal was in the Democratic Party primary in 1982 which involved a newspaper ad run by a white candidate contrasting the pictures of tire white candidate and Justice Adams. The appeal was ineffective as Justice Adams was the successful candidate. In the Twentieth [sic] Circuit (Mobile), the white candidate in the Democratic primary in the 1990 district judge race made a racial appeal intended to work against Judge Thomas, a black. The tactics in both races were condemned, and Judge Thomas credited his opponent's racial appeal with causing a backlash against the white candidate which aided his election.

SCLC v. Evans, 785 F.Supp. at 1473.

18 . Because Justice Adams was involved in three electoral contests (1982 primary, 1982 primary runoff, and 1988 general election) and there are 10 circuits being challenged. Dr. Weber counted 30 of Justice Adams’ races.

19 . Dr. Weber defined "black preferred candidate" or "black candidate of choice” as the candidate who received more than 50% of the black vote, without reference to the candidate's race.

20 .Moreover, in its amicus brief to the district court, the United States acknowledged "that the institution of the at-large, numbered place system was not driven by any desire to dilute black voting strength." SCLC v. Evans, 785 F.Supp. at 1487.

21 . Appellants, however, do question the district court's treatment of the expert testimony. See infra pp. 1306-07.

22 . Incumbency is often the determining factor in judicial elections and, therefore, is an important factor to be considered in vote dilution cases in the judicial context. Likewise, the effect of the appointment process, especially where nominating commissions were involved, should not be undervalued: Over two-thirds of the sitting circuit judges (72 of 106) who came to the challenged circuit courts between 1978 and 1991 were appointed.

23 . We refer to the experts' opinions as arguments because that is, in essence, what they were. The experts based their opinions on undisputed statistical evidence of demographics and voting results contained in the record. The experts presented no evidence of their own; they presented only their mathematical analyses of the portions of the statistical evidence they thought to be relevant. The experts applied their ecological regression and extreme case analyses to that evidence and opined as to whether voting has been racially polarized. Their conclusions differed because of the differences in the statistical evidence they chose to evaluate.

24 . Appellants make it clear on appeal that they have not advocated any remedy that would lead to judges having to run against each other, such as would be the case with cumulative voting. They recognize the invidious effects that such a system would have on the collegiality of the court as well as on lawyer interest in a judicial career. Accordingly, in proposing multimember subdis-tricts, appellants would have the judges run for numbered places on the ballot and thus avoid the prospect of running against one another.

In passing, appellants, in their reply briefs, suggest as a possible remedy the creation of court-ordered judicial nominating commissions in jurisdictions not currently employing them, as well as increased minority representation on the commissions. This is a dubious suggestion given that appellants have alleged discriminatory practices on the part of the currently operating judicial nominating commissions: If the commissions are doing such a poor job, it is difficult to conclude that expanding their use would be beneficial. We note, additionally, that it is an open issue as to whether this type of remedy is permissible under the Voting Rights Act. The Act guarantees the right to elect representatives of choice. Judicial nominating commissions and the appointment process in general remove any choice from the voters — the initial choosing of "representatives” is no longer done by means of electoral voting procedures. Likewise, removing the power to elect judges from the citizens of Alabama would trample the longstanding value the State places on electing all of its public officials, even those officials other states have long since appointed. Today, however, we do not decide whether such a remedy is within the ambit of the Act.

25 . We understand, however, that the Voting Rights Act guarantees voters the right to elect candidates of their choice, not merely the right to influence election results. See Solomon v. Liberty County, 865 F.2d 1566, 1583 (11th Cir.1988) ("Today, the goal of section 2 is not to maximize the political clout of minorities, but rather to ensure minority representation in government.”), vacated and reh'g en banc granted, 873 F.2d 248 (11th Cir.1989).