Tallahassee Branch of Naacp v. Leon County, Florida

827 F.2d 1436, 1987 U.S. App. LEXIS 12525

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 21, 1987
• Docket: 86-3464
• Status: Published

Opinions

HILL, Circuit Judge:

This appeal presents the narrow question of whether the reapportionment plan at issue was legislatively enacted or judicially imposed. In this case, county commissioners for Leon County, Florida (defendant-appellee) enacted a reapportionment plan which clearly complies with the Voting Rights Act and the United States Constitution. The plaintiff-appellant (NAACP) argues that because this plan was not adopted by a referendum as required by Florida law, the plan was not legislatively enacted; therefore the plaintiff contends that judicial precedent, not the constitution or the Voting Rights Act, requires the reapportionment plan be composed solely of single member districts. Thus, this is not a case in which it is alleged that the district court erred by permitting elections to be conducted in a manner which diluted the voting rights of minorities. Rather, appellant merely contends that the remedy which it proposes — election of county commissioners from single member districts— is the remedy required by binding precedent.

This suit was initiated by black voters of Leon County, Florida, under section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982). A continuance of the trial was granted to allow the county to submit an election plan to the electorate in which four county commissioners were to be elected by single member districts and three were to be elected at large. This plan was rejected by the voters. The county proceeded to concede liability in the present suit. After the district court held that the county’s at-large election system was in violation of the Voting Rights Act, the county commission enacted a reapportionment plan in which five commissioners were to be elected from single member districts and two were to be elected at large. Under state law, the Leon County Commissioners did not have authority to implement such a change without a referendum. The district court concluded that this plan had been legislatively enacted and therefore “entitied to the deference normally afforded legislative judgment in apportionment matters.”

Although both plans presented to the district court comply with the constitution, when a reapportionment plan is judicially imposed by the district court, single member districts are preferred. Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766 (1975). On the other hand, when a reapportionment plan is drafted by a legislative body of the state, the plan is not always required to be restricted to single member districts.

When a reapportionment plan is prepared by the district court, “equitable considerations demand a close scrutiny and mandate the fashioning of a near-optimal apportionment plan.” Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir.1985). Generally, single member districts are viewed as providing such an optimal remedy. The rationale of the Supreme Court creating this preference for single member districts was set forth in Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).

A reapportionment plan enacted by a state legislative body, however, is not scrutinized by the exacting standards used in evaluating a judicially imposed plan. Federal courts have long recognized that it is the function of state legislatures to conduct election proceedings. Only when the state is unable or refuses to reapportion itself in accordance with federal law will a federal district court undertake reapportionment. Accordingly, federal courts must defer to the judgment of a state legislative body in the area of reapportionment. Principles of federalism and common sense mandate deference to a plan which has been legislatively enacted. First, the elected representatives of the people understand the existing political system and the changes which would result from reapportionment. Rarely, if ever, will the federal district court have the benefit of such insight. Second, political compromise can produce a voting system tailored to the city, county, or state to be reapportioned. The district court, however, is required blindly to lay voting lines with mathematical exactness. Third, federalism is preserved when reapportionment is performed by a legislative body of the state. Reapportionment produces a fundamental change in state government and affects who will represent the people. Consequently, that determination is best left to the people rather than the federal judiciary. For these reasons, a legislatively enacted plan may include multimember districts while a judicially imposed plan, absent persuasive justifications, should not.

Recognizing the deference to be given state legislative bodies, we must resolve whether the plan at issue was in fact legislatively enacted. Under Florida law, a county is unable to change the structure of the county commission in the absence of a referendum. Fla.Stat.Ann. § 124.011(1) (West Supp.1987). Thus, we must determine whether deference should be granted to a reapportionment plan proposed by the commissioners of Leon County even though the County Commission does not have the power under state law to reapportion itself. We begin with the Supreme Court’s plurality opinion in Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978).

In Wise, the court considered whether a reapportionment plan submitted by the Dallas City Council was legislatively enacted or judicially imposed. At issue was whether the mixed plan (eight single member districts/three at large districts) proposed by the city council should be accepted by the district court or whether the court was restricted to single member districts. Justice White, announcing the judgment of the court, concluded that the Dallas City Council had the power to enact the proposed reapportionment plan. Although the Texas Constitution provided that a city charter could not be amended without a referendum, Justice White concluded that once the election provisions of the city charter were declared unconstitutional, then the council would be free, under Texas law, to enact an alternative reapportionment plan without the requirement of a referendum. Justice White therefore concluded the plan was legislatively enacted.

Significantly, Justice Powell (joined by the Chief Justice, Justice Blackmun, and Justice Rehnquist) concluded that whether the city council had authority under state law to enact the proposed plan was irrelevant. Justice Powell reasoned that whenever a reapportionment plan is submitted by the elected representatives of the people, that plan should be given deference:

[T]he plan proposed by the Dallas City Council in this case must be considered legislative, even if the council had no power to reapportion itself____

The essential point is 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. As we held in Burns [v. Richardson, 384 U.S. 73, 85 [86 S.Ct. 1286, 1293, 16 L.Ed.2d 376 (1966),] “a State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.” This rule of deference to local legislative judgments remains in force even if, as in Bums, our examination of state law suggests that the local body lacks authority to reapportion itself.

Id. at 548, 98 S.Ct. at 2501 (Powell, J., concurring). The Supreme Court’s later decision in McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981), implies that Justice Powell’s concurrence has been adopted by a majority of the court.

In McDaniel, the court again considered the distinctions between legislatively enacted and court-ordered reapportionment plans. In considering whether a plan was judicially adopted for purposes of the preclearance provisions of section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1982), the court stated:

As Justice Powell pointed out in Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, the essential characteristic of a legislative plan is the exercise of legislative judgment. The fact that particular requirements of state law may not be satisfied before a plan is proposed to a federal court does not alter this essential characteristic. The applicability of § 5 to specific remedial plans is a matter of federal law that federal courts should determine pursuant to a uniform federal rule.

McDaniel, 452 U.S. at 152-53, 101 S.Ct. at 2237-38. The court therefore concluded that the plan at issue was legislatively enacted regardless of whether the state legislative body possessed such authority under state law. Id. at 152 & n. 34, 101 S.Ct. at 2237 n. 34.

In contrast to McDaniel v. Sanchez stands the former Fifth Circuit’s opinion in McMillan v. Escambia County, 688 F.2d 960 (5th Cir.1982), vacated on other grounds, 466 U.S. 48, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984). In McMillan, the Fifth Circuit held that a reapportionment plan proposed by Escambia County, Florida was not legislatively enacted, because the county commission lacked authority under state law to make such a change in the absence of a referendum. Factually, McMillan is indistinguishable from the present case. In McMillan, the district court found the county’s at-large voting system to be in violation of the Voting Rights Act. While the suit was pending, County Commissioners adopted a reapportionment plan consisting of five single member districts and two at large districts. This plan was later rejected by the voters of Escambia County. Because this plan failed in the referendum, the district court proceeded to impose a plan consisting solely of single member districts. The Fifth Circuit affirmed, writing:

[Defendants (Escambia County) ] 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 voter’s rejection of the measure in the referendum election____

Applying [Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) (plurality) ] to this case, we conclude that the plan proposed by defendant — Escambia County Commissioners does not meet the requirements for a legislatively adopted plan____ [T]he 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 Commission does not possess the legislative authority to reapportion 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.

Id. at 971-72. At first glance, McMillan would appear to be binding precedent determinative of this appeal;¹ no subsequent decision of this court or intervening Supreme Court precedent has affected the validity of McMillan. Furthermore, McDaniel v. Sanchez was rendered one-year prior to McMillan. But see McMillan v. Escambia County, 559 F.Supp. 720, 723 (N.D.Fla.1984) (“[McDaniel ] was not mentioned in the appellate court’s decision for rehearing and, so this court is advised, the parties to the appeal did not call it to the appellate court’s attention.”), cert. denied, 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983). The Former Fifth Circuit’s opinion in McMillan, however, was vacated and remanded by the Supreme Court for reconsideration in light of the 1982 amendments to the Voting Rights Act. Escambia County v. McMillan, 466 U.S. 48, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) (per curiam). Although the Supreme Court’s opinion did not criticize the rationale of the Fifth Circuit, the portion of the opinion regarding the remedy to be imposed was never reinstated on remand. Thus, the Fifth Circuit’s opinion in McMillan has no binding precedential effect. County of Los Angeles v. Davis, 440 U.S. 625, 634 n. 6, 99 S.Ct. 1379, 1384 n. 6, 59 L.Ed.2d 642 (1979) (“Of necessity our decision ‘vacating the judgment of the Court of Appeals deprives that court’s opinion of precedential effect— ’”). Although we are free to consider McMillan persuasive, we are not bound by that decision.

Writing on a clean slate, we conclude that the rationale of McDaniel v. Sanchez applies with “equal force whether it is applied in a voting dilution suit or in a Section 5 preclearance action.” McMillan v. Escambia County, 559 F.Supp. 720, 724 (N.D.Fla.1983), cert. denied, 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983). First, we simply do not believe the Supreme Court would adopt different definitions of “legislatively enacted” for purposes of section 2 and section 5. This is particularly true in light of the fact that McDaniel is based upon cases in which the issue was whether the plan adopted by the district court could include at-large or multimember seats. Nothing in the opinion in McDaniel limits the effect of the decision to preclearance cases. Second, a broad definition of “legislatively enacted” leaves reapportionment to be performed by a legislative body of the state rather than the federal judiciary. This is not a case in which the legislative body is unwilling to draft an acceptable reapportionment plan.

The district court correctly concluded that the plan at issue was “legislatively enacted.” Accordingly, the judgment is

AFFIRMED.

1 . The first appellate decision in McMillan was rendered by the Fifth Circuit on February 19, 1981. McMillan v. Escambia County (Escambia I), 638 F.2d 1239 (former 5th Cir.1981). The decision in Escambia I was subsequently considered on rehearing by a panel of the former Fifth Circuit on September 24, 1982. McMillan v. Escambia County (Escambia II), 688 F.2d 960 (former 5th Cir.1982). As a decision of a non-unit panel of the former Fifth Circuit, we would be required to consider Escambia II as binding precedent had it not been vacated by the United States Supreme Court. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982).