Rural W TN African v. Sundquist

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0134P (6th Cir.) File Name: 00a0134p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  RURAL WEST TENNESSEE  AFRICAN AMERICAN-AFFAIRS  COUNCIL, et al. (98-6718),  Nos. 98-6718/6778 PHILLIP R. LANGSDON, et al.  (98-6778), > Plaintiffs-Appellees,     v.

DON SUNDQUIST, Governor of   the State of Tennessee, et al.,  Defendants-Appellants.  1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 92-02407; 92-02415—Jerome Turner, District Judge. Argued: March 16, 2000 Decided and Filed: April 3, 2000* Before: JONES, BATCHELDER, and CLAY, Circuit Judges.

* This decision was originally issued on April 3, 2000. It is now being issued to incorporate Judge Jones’ separate concurring opinion.

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_________________ long as it grants equal opportunity to some other set of minority voters. This conclusion is contrary to the Supreme COUNSEL Court’s interpretation of § 2, which clearly provides that a state may not remedy vote dilution in one area by legal ARGUED: Michael W. Catalano, OFFICE OF THE compliance in another. ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Laughlin McDonald, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Atlanta, Georgia, John L. Ryder, APPERSON, CRUMP & MAXWELL, Memphis, Tennessee, for Appellees. ON BRIEF: Michael W. Catalano, Paul G. Summers, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Laughlin McDonald, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Atlanta, Georgia, John L. Ryder, APPERSON, CRUMP & MAXWELL, Memphis, Tennessee, John R. Walker, BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tennessee, Richard H. Dinkins, DODSON, PARKER, DINKINS & BEHM, Nashville, Tennessee, for Appellees. BATCHELDER J., delivered the opinion of the court, in which CLAY, J., joined. JONES, J. (pp. 18-23), issued a separate concurring opinion. _________________ OPINION _________________ BATCHELDER, Circuit Judge. Don Sundquist, Governor of the State of Tennessee, and other state officials appeal from a district court order finding that a districting plan for the Tennessee House of Representatives unlawfully dilutes African-American voting strength in violation of § 2 of the Voting Rights Act, 42 U.S.C. § 1973, and enjoining further use of that plan. The State further requests a stay of the district court’s order for elections scheduled to begin in August of 2000. For the reasons set forth below, we affirm the order of the district court, and deny the motion for a stay as moot.

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(W.D. Tenn. 1998). While one might expect a political group I to wield significant influence in a district in which it comprises at least one-quarter of the voting age population, In April of 1992, the Tennessee General Assembly enacted the realities of white bloc voting command that we apply a legislation reapportioning the State’s single-member House of more flexible standard in assessing the extent to which Representatives and Senate districts. Tenn. Code Ann. §§ 3- purported influence districts provide minorities with an equal 1-102 & 103 (1992) (repealed 1994). Prior to the 1992 opportunity to elect representatives of choice. primaries, the Rural West Tennessee African-American Notwithstanding a minority population that may even Affairs Council (“RWTAAC”) and certain registered voters approach upwards of 40% in a district, when, as here, 90% of in Tennessee filed suit charging that both the Senate Plan and whites coalesce along racial lines to defeat the black the House Plan violated § 2 of the Voting Rights Act and the community’s preferred candidate of choice, the ability of Thirteenth, Fourteenth, and Fifteenth Amendments to the blacks to “influence” elections in these circumstances is United States Constitution. Phillip R. Langsdon and other specious. The bright-line 25% rule obscures the realities of registered voters in Tennessee filed suit challenging the white bloc voting, and implies black “influence” that may not validity of the House Plan on the grounds that it violated § 2 in fact exist. Accordingly, I would expressly reject the 25% of Voting Rights Act and the “one person, one vote” doctrine rule, and adopt a more flexible, case-by-case standard that of the Fourteenth Amendment; the plaintiffs also challenged takes white bloc voting into account. the House Plan on other grounds subsequently dismissed. Second, the majority concludes that “neither over- A three-judge panel of the district court convened and proportionality in one area of the State nor substantial ordered the two cases consolidated. On September 15, 1993, proportionality in the State as a whole should ordinarily be the panel held that the House Plan was unconstitutional used to offset a problem of vote dilution in one discrete area because it violated the one person, one vote doctrine of the of the State.” Ante at 14 (emphasis added). For this Equal Protection Clause. RWTAAC v. McWherter, 836 F. conclusion, the majority relies upon the Supreme Court’s Supp. 447, 452 (W.D. Tenn. 1993). The court ordered the holdings in Shaw v. Hunt, 517 U.S. 899 (1996) and Johnson defendants to prepare and submit a constitutional v. DeGrandy, 512 U.S. 997 (1994), which collectively apportionment plan by January 25, 1994. Id. The State provide that a state may not remedy vote dilution in one area appealed to the United States Supreme Court. of a state by compliance with § 2 in another area. Indeed, as the majority acknowledges, the DeGrandy court scathingly On November 4, 1993, the district court ruled that the critiqued the premise that “the rights of some minority voters Senate Plan violated § 2 of the Voting Rights Act by under § 2 may be traded off against the rights of other affording African-American voters in west Tennessee less members of the same minority class,” 512 U.S. at 1019, and opportunity than other members of the electorate to the Shaw court plainly ruled that “the vote-dilution injuries participate in the political process and to elect representatives suffered by . . . persons [in one area of the State] are not of their choice. RWTAAC v. McWherter, 836 F. Supp. 453, remedied by creating a safe majority-black district somewhere 466 (W.D. Tenn. 1993) (“RWTAAC I”). The State appealed, else in the State.” 517 U.S. at 917. Inexplicably, the majority and the Supreme Court vacated the panel’s order and reads ambiguity into these conclusions, and thereby leaves the remanded for further consideration in light of Johnson v. door open to the notion that a state may dilute the vote of DeGrandy, 512 U.S. 997 (1994). RWTAAC v. McWherter, minority voters in ways that would otherwise violate § 2, as 512 U.S. 1249 (1994). On remand, the district court reversed

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its decision in RWTAAC I and held that the Senate Plan least of all a rule interpreting a statute designed to implement conformed to the Voting Rights Act. RWTAAC v. the Fourteenth and Fifteenth Amendments to the McWherter, 877 F. Supp. 1096, 1098 (W.D. Tenn. 1995) Constitution.” NAACP v. City of Niagra Falls, 65 F.3d 1002, (“RWTAAC II”). The plaintiffs appealed. 1016 (2d Cir. 1995). Indeed, the district court properly evaluated the success of the black community’s preferred While the appeals in the Senate and House Plan cases were candidate in white-white elections because of our refusal to pending, the Tennessee General Assembly adopted a new conclude that racial representation per se is the lynchpin of a House Plan and submitted it to the district court. Tenn. Code dilution determination. See Cousin, 145 F.3d at 825. Not Ann. § 3-1-103 (1994). The court found that the new Plan only is such an abstracted presumption abhorrent to the complied with the Equal Protection Clause’s one person, one colorblind goals of the Equal Protection Clause, see, e.g., vote requirement. It delayed consideration of the other Miller v. Johnson, 515 U.S. 900, 911-12 (1995), but it directly challenges to the House Plan until the Supreme Court ruled conflicts with § 2's dictate that nothing in the Voting Rights on the appeals pending in the Senate case. Act shall be construed to require proportional representation. See 42 U.S.C. § 1973(b). The Supreme Court affirmed the dismissal of the plaintiffs’ claims as to the Senate Plan on October 4, 1995. RWTAAC v. By granting greater weight to black-white elections when Sundquist, 516 U.S. 801 (1995). RWTAAC then amended its white bloc voting is targeted against black candidates, we do complaint to challenge the House Plan on the sole ground that not disrespect this principle. We merely recognize the it violated § 2 of the Voting Rights Act. Because the established realities of white bloc voting in rural west amended complaint contained no constitutional claims, the Tennessee, and conclude uncontroversially that blacks do not three-judge court disbanded itself. After a trial on the merits enjoy an equal opportunity “to participate in the political of the plaintiffs’ consolidated claim of vote dilution, the process and to elect representatives of their choice” when they Honorable Jerome Turner, on November 6, 1998, declared the can elect only those candidates sanctioned by the white 1994 House Plan to be violative of the Voting Rights Act and majority. enjoined the defendants from using it in future elections. RWTAAC v. Sundquist, 29 F. Supp. 2d 448, 450 (W.D. Tenn. II. 1998). The state defendants bring this timely appeal. I also write separately to express disagreement with both II the district court’s definition of “influence” districts for the purposes of the “totality of the circumstances” analysis, and "A district court's factual findings regarding Section 2 the majority’s implicit recognition that, under certain violations and the determination of whether vote dilution has unspecified circumstances, a state may remedy vote dilution occurred are ordinarily reviewed for clear error." Cousin v. in one area of a state by compliance with § 2 in another. McWherter, 46 F.3d 568, 574 (6th Cir. 1995) (citing Fed. R. Civ. P. 52(a) and Thornburg v. Gingles, 478 U.S. 30, 79 First, the district court erred in adopting the RWTAAC II (1986)). However, "Rule 52(a) does not inhibit an appellate court’s bright-line definition of “influence” districts as any court's power to correct errors of law, including those that district where a minority group comprises between 25% and may infect a so-called mixed finding of law and fact, or a 55% of the district. Rural West Tennessee African American finding of fact that is predicated on a misunderstanding of the Affairs Council, Inc. v. Sundquist, 29 F.Supp.2d 448, 461

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candidates of their race at the polls. Cf. Shaw v. Reno, 509 governing rule of law." Gingles, 478 U.S. at 79 (internal U.S. 630, 647 (1993) (asserting that intentionally-created quotation marks omitted). majority-minority districts may “reinforce[] the perception that members of the same racial group . . . think alike, share A the same political interests, and will prefer the same candidates at the polls”). In this case, the record shows that Section 2 of the Voting Rights Act provides: 60% of whites vote against the black community’s preferred candidate in white-white elections, yet almost 90% of whites (a) No voting qualification or prerequisite to voting or vote for the white candidate in black-white elections. The standard, practice, or procedure shall be imposed or record therefore reveals almost total white bloc voting when applied by any State or political subdivision in a manner a politically cohesive group of blacks attempts to elect a which results in a denial or abridgement of the right of member of their racial group. These facts depict the any citizen of the United States to vote on account of undisputed racial realities of politics in rural west Tennessee, race or color, or in contravention of the guarantees set and we cannot wish away these hard political facts in hopes forth in section 1973b(f)(2) of this title, as provided in of achieving a colorblind ideal that, as of yet, does not subsection (b) of this section. comport with empirical reality. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is Moreover, absent compelling evidence that a white shown that the political processes leading to nomination candidate in a white-white election is genuinely the black or election in the State or political subdivision are not community’s preferred candidate, courts must assess black- equally open to participation by members of a class of white elections to determine whether a politically cohesive citizens protected by subsection (a) of this section in that minority group actually has a viable candidate of choice, or its members have less opportunity than other members of merely an opportunity to mitigate the impact of white the electorate to participate in the political process and to electoral hegemony. See Cousin, 145 F.3d at 825 (providing elect representatives of their choice. The extent to which that white-white elections are relevant when “one of the members of a protected class have been elected to office candidates [is] strongly preferred by black voters” or “[w]here in the State or political subdivision is one circumstance black voters have a genuine candidate of choice”) (citation which may be considered: Provided, That nothing in this omitted); cf. Citizens for a Better Gretna v. Gretna, 834 F.2d section establishes a right to have members of a protected 496, 503 (5th Cir. 1987) (concluding that a candidate’s race class elected in numbers equal to their proportion in the is most relevant when the election “offers voters the choice of population. supporting a viable minority candidate”). 42 U.S.C. § 1973. Recognizing the relevance of a candidate’s race when the record shows minority political cohesion and especially strong Before considering whether the House Plan dilutes minority white cohesion in elections involving black candidates does voting strength in rural west Tennessee and thus denies not preempt the possibility that a white candidate may be the members of the minority group a fair opportunity to elect black community’s genuine and actual candidate of choice. representatives of their choice, we must determine whether As the Second Circuit rightly concluded, “[n]o legal rule the plaintiffs have met the three preconditions announced by should presuppose the inevitability of electoral apartheid – the Supreme Court in Thornburg v. Gingles, 478 U.S. at 50-

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51. The plaintiffs must demonstrate that 1) the minority white candidates than those involving only white candidates. group is sufficiently large and geographically compact to Ante at 9. The majority is wise to reach these conclusions, constitute a majority in a single-member district; 2) the because “[w]hen white bloc voting is ‘targeted’ against black minority group is politically cohesive; and 3) the white candidates, black voters are denied an opportunity enjoyed by majority votes sufficiently as a bloc to enable it usually to white voters, namely, the opportunity to elect a candidate of defeat the minority’s preferred candidate. Id. The parties their own race.” Clarke, 40 F.3d at 812. Certainly, when agree that the first two Gingles preconditions have been white voters have the opportunity to elect preferred candidates satisfied. They clash on the question whether whites vote as of all races, yet black voters may only elect white candidates, a bloc usually to defeat the candidates of choice of African- black voters patently do not enjoy an opportunity to “elect American voters, contesting most hotly the weight to be given [their] candidate of choice on an equal basis with other to particular sets of election data. voters.” Voinovich v. Quilter, 507 U.S. 146, 153 (1993). B This conclusion does not blur the reality that § 2 is ultimately concerned with “whether minority-preferred Chapter 536 of the Public Acts of 1994 provides a three- candidates, whatever their race, usually lose” because of part reapportionment plan for Tennessee’s ninety-nine house white bloc voting. Cousin v. Sundquist, 145 F.3d 818, 825 districts. Plan A, at issue in this case, creates twelve (6th Cir. 1998). It merely recognizes that when a court has majority-African-American districts. None of these districts, found both that a minority group politically coalesces along however, lies in the area that plaintiffs describe as rural west racial lines, and that whites politically coalesce along racial Tennessee, which includes Madison, Haywood, Hardeman, lines in elections involving a member of that minority group, Tipton, Fayette, and Lauderdale counties. Chapter 536 it defies logic for a court to attempt to assess equal access in provides that should a court find that Plan A unlawfully a colorblind fashion. In these circumstances, a court is faced dilutes minority voting strength, Plan B, which creates with race-conscious political action among both the white thirteen majority-African-American house districts, including majority and the black minority, and the Voting Rights Act one in rural west Tennessee, will take effect. Plan C, which clearly protects the racial minority from the political tyranny would have reinstated the 1992 house redistricting plan had of the racial majority. See 42 U.S.C. § 1973(b). If a court, the State prevailed on its claim that the 1992 plan complied however, fails to apply a race-conscious standard that with the Equal Protection Clause, is moot. See Millsaps v. accounts for acute white bloc voting in black-white elections, Langsdon, 510 U.S. 1160 (1994) (affirming the district it may allow less dramatic polarization in white-white court’s ruling that the 1992 house redistricting plan violated elections to obscure the reality of black political exclusion in the “one person, one vote” doctrine). black-black elections. It is syllogistic that a court cannot discern color-conscious discrimination through colorblind At trial, both parties presented expert testimony regarding lenses. voter behavior in rural west Tennessee. Plaintiffs’ expert, Dr. Steven Cole, analyzed eleven legislative elections which had The VRA’s command that we inquire into a candidate’s both black and white candidates from 1974 to 1996 using race when faced with black political cohesion and intense bivariate ecological regression analysis, and found that the white bloc voting stems from findings pertaining to the black preferred candidates lost nine times (82%). Average empirical realities of race-conscious political action, not racial black cohesion was 67%, and average white cohesion was presumptions that blacks, or whites, will only prefer

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_____________________ 89%. An analysis of homogenous white precincts for legislative contests from 1994 to 1996 showed that on average CONCURRENCE 80% of whites voted for the white candidates over the black _____________________ candidates. There were no homogenous black precincts. Based on this evidence, Dr. Cole concluded that white voters NATHANIEL R. JONES, Circuit Judge, concurring. tend to vote as a bloc so as usually to defeat the candidate of Although I fully concur in the result reached by the majority choice of African-American voters. and in much of its well-reasoned analysis, I write separately to make three points. In concluding that the district court did The State’s experts, Dr. William Lyons and Dr. Michael not err in finding that whites vote as a bloc usually to defeat Gant, analyzed ten black-white legislative contests in rural the preferred candidate of blacks in rural west Tennessee, the west Tennessee from 1986 to 1996, and found that the majority acknowledges that “the Voting Rights Act’s minority—preferred candidates had been defeated nine times guarantee of equal opportunity is not met when ‘candidates (90%). Average black cohesion was 64%, and average white favored by blacks can win, but only if the candidates are cohesion was 86%. Because black voter turnout was roughly white.’” Ante at 9 (quoting Smith v. Clinton, 687 F.Supp. equal to white voter turnout in black-white elections and in 1310, 1318 (E.D. Ark. 1988) (three judge panel)). It is on this elections that had only white candidates, Drs. Lyons and Gant presupposition that the majority rests its conclusion that, in also analyzed eleven white-white legislative contests from this case, black-white elections are more probative of vote 1986 to 1996. Adding the results to those from the black- dilution than white-white elections. I agree with this holding; white contests, Drs. Lyons and Gant found that the preferred however, I think it is necessary to explicate further why it candidate of black voters was defeated eleven out of twenty- matters under the Voting Rights Act (“VRA”) when a one times (52.38%). minority group’s only electable candidates of choice are white. I also write separately to note my differences with the While Drs. Lyons and Gant acknowledged that the district court’s definition of “influence” districts, and the minority-preferred candidate usually lost, and hence that the majority’s conclusion that, in certain unspecified results of state legislative contests in rural west Tennessee circumstances, compliance with § 2 in one area of a state may were indicative of minority vote dilution, they noted that a offset vote dilution in another area. difference in one election would change this outcome. They therefore examined twenty-four black-white and twenty-six I. white-white countywide elections from 1986 to 1996. In the black-white contests, they found that the black-preferred I am of the view that it is wise to explain more fully the candidate was defeated thirteen times (54%). For white-white substantive and jurisprudential support animating our holding countywide elections, the black-preferred candidate lost six that equal opportunity in voting is not achieved when a times (23%). Combining all the countywide contest from minority group may elect representatives of choice when they 1986 to 1996, the black-preferred candidate lost eighteen out are white, but are unsuccessful in electing members of their of fifty times (36%). Noting that if all of the countywide own group. See id.; see also Clarke v. City of Cincinnati, 40 elections were combined with all of the legislative elections, F.3d 807, 812 (6th Cir. 1994). Based primarily on this the results showed that the black-preferred candidate lost only predicate, the majority concludes that the district court did not twenty-nine of seventy-one elections (41%), the defense err in granting more weight to elections involving black and

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experts concluded that election results in rural west Tennessee elections in the six county area are racially polarized, and no were not, in general, indicative of minority vote dilution. African-American has ever won one. These circumstances simply overwhelm those factors that might favor the State of After hearing this testimony, the district court held that the Tennessee (such as a lack of suspect electoral practices, plaintiffs had made a showing sufficient to satisfy the third responsive (albeit mainly white) state legislators, and the Gingles precondition. The district court placed primary possibility that minority voters in minority-African-American emphasis on the results of the black-white contests and, due districts will be able to influence electoral outcomes). The to the significant number of legislative elections analyzed, district court therefore properly held that the plaintiffs had determined that the results from the countywide contests were proved a § 2 violation. The remedy that the plaintiffs seek for not particularly useful or necessary. In light of its limited this violation, creation of one majority-African-American probativeness, the district court concluded, the white-white house district in rural west Tennessee through implementation and countywide evidence was insufficient to overcome the of Plan B of Chapter 536, will take place as a matter of state fact that a white voting bloc defeats the minority-preferred law. candidate at least 82% of the time in interracial legislative elections in rural west Tennessee. IV On appeal, the State argues that the district court erred. The The late Judge Turner ably considered a complex body of State contends, in essence, that the district court was obliged statistical and anecdotal evidence to determine that Plan A of to give equal and controlling weight to white-white and non- Chapter 536 unlawfully dilutes African-American voting legislative contests in its analysis under the third Gingles strength in rural west Tennessee. His order enjoining use of factor. the House Plan in future elections is hereby affirmed. The defendants’ motion for a stay pending appeal is denied as C moot. This court has made clear that white-white elections are relevant in the analysis of a voting dilution claim. In Cousin v. Sundquist, we considered a § 2 challenge to the at-large method of electing judges utilized by Hamilton County, Tennessee. Cousin, 145 F.3d 818, 820 (6th Cir. 1998). The plaintiffs’ expert used average cohesion figures from black- white elections in connection with voter turnout information to determine that, in order to succeed in a Hamilton County election, a hypothetical black candidate would need a number of white crossover votes exceeding the average crossover suggested by the cohesion figures. Id. at 824. The defendants’ expert, by contrast, used both black-white and white-white election results, identified the minority’s preferred candidate in each, and determined that the white majority did not regularly vote in such a way as to deprive

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selected because to do so would require us to trade the § 2 black voters in Hamilton County of the opportunity to elect rights of individual African-Americans in rural west their candidate of choice. Id. In preferring the methodology Tennessee against those of African-American groups of the defense expert, we noted: “The proper inquiry is not elsewhere in the State. whether white candidates do or do not usually defeat black candidates, but whether minority-preferred candidates, The State complains that by allowing the plaintiffs to define whatever their race, usually lose.” Id. at 825. the frame of reference for their § 2 claim, we will enable future litigants to carve up successively smaller areas of the While the plain import of Cousin is that courts are not State until they are able to maximize the number of majority- foreclosed from considering electoral races involving only minority legislative districts—a result not countenanced by white candidates, that case does not suggest (as the State the Voting Rights Act. See De Grandy, 512 U.S. at 1017 seems to argue) that white-white contests are necessarily (“Failure to maximize cannot be the measure of § 2.”). As the entitled to the same weight as those involving a minority district court pointed out, however, the Gingles preconditions candidate. As Judge Richard Arnold has pithily stated, the operate to prevent just the sort of limitlessly small “reverse Voting Rights Act’s guarantee of equal opportunity is not met gerrymander” whose specter the State raises here. See, e.g., when “[c]andidates favored by blacks can win, but only if the Campos v. City of Houston, 113 F.3d 544, 547-48 (5th Cir. candidates are white.” Smith v. Clinton, 687 F. Supp. 1310, 1997) (holding that minority group was not sufficiently large 1318 (E.D. Ark. 1988) (three judge panel). This court, along and geographically compact to sustain a § 2 claim). In this with others, has accordingly held that a candidate’s race can regard, we note that the region selected by the plaintiffs in this be relevant to a § 2 inquiry under certain circumstances. See case is a sensible one—indeed, more sensible than the seven- Clarke v. City of Cincinnati, 40 F.3d 807, 812 (6th Cir. 1994); county area including Shelby County urged by the State. see also, e.g., Nipper v. Smith, 39 F.3d 1494, 1540 (11th Cir. While Shelby County is the southernmost and westernmost 1994) (en banc) (holding that white-white elections may be county in the State, and, like the six neighboring counties of considered, but are less probative than those involving black rural west Tennessee, has a large African-American candidates). One such circumstance occurs when white bloc population, the seven counties do not form a coherent voting is “targeted” against black candidates. Clarke, 40 F.3d demographic unit. The African-American population in at 812. Shelby County is concentrated in inner-city Memphis, and is largely set off from rural west Tennessee by a “buffer zone” In this case, there is marked evidence of targeting; the of white suburbs. As a result, the African-American experts for both the plaintiffs and the defendants agreed that populations in these two areas are not likely to be particularly white voter cohesion in rural west Tennessee increases from cohesive. For this reason, the district court properly restricted 59% in white-white elections to 86% in black-white elections. the geographic scope of relevant statistical data to the six Perhaps not unrelatedly, no African-American candidate has counties of rural west Tennessee. ever won an interracial legislative contest in the six-county area, despite many candidacies. In view of such evidence that Having correctly defined its frame of reference, the district a white voting bloc coalesces to frustrate African-American court made no clear error in weighing the totality of the candidacies, the district court properly considered the race of circumstances. Rural west Tennessee has an African- candidates in its § 2 analysis, and accorded greater weight to American voting age population of 31%, but none of its five the results of black-white elections. house districts is majority-African-American. Legislative

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Similarly, the district court was correct to discount the Critiquing this “safe harbor” argument, the Supreme Court results of countywide contests. The parties stipulated that remarked on the State’s “unexplored premise of highly legislative elections were the most legally relevant, and the suspect validity:” rulings of our sister circuits support the parties’ appraisal. See, e.g., Citizens for a Better Gretna v. City of Gretna, 834 that in any given voting jurisdiction (or portion of that F.2d 496, 502 (5th Cir. 1987) (suggesting that exogenous jurisdiction under consideration), the rights of some elections alone cannot prove racially polarized voting, but can minority voters under § 2 may be traded off against the be considered as “additional evidence”). At trial, data were rights of other members of the same minority class. presented from twenty-one legislative elections over a period Under the State’s view, the most blatant racial of ten years—a substantial body of evidence. See Jenkins v. gerrymandering in half of a county’s single-member Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1130 districts would be irrelevant under § 2 if offset by (3d Cir. 1993) (holding that seven elections over a period of political gerrymandering in the other half, so long as ten years was a suitable sample such that the court could proportionality was the bottom line. discern the presence of a pattern of white bloc voting usually defeating the minority voters’ candidate of choice). The State Id. at 1019. Similarly, in Shaw, the Court considered North nevertheless advocates the inclusion of the countywide Carolina’s argument that a bizarrely shaped majority-black elections on the ground that a different outcome in one of the congressional district was a narrowly tailored remedy for a § 2 eleven legislative elections in which the preferred candidate violation elsewhere in the State. Shaw, 517 U.S. at 916-17. of African-Americans was defeated would alter the minority Finding this position “singularly unpersuasive,” the Court vote dilution determination. But the record contains no stated: information that would allow us to evaluate the claimed marginal character of the statistics derived from the legislative If a § 2 violation is proved for a particular area, it flows contests. More importantly, the State’s claim rests on the from the fact that individuals in this area “have less assumption that black-white and white-white legislative opportunity than other members of the electorate to elections should be given equal weight. As we have pointed participate in the political process and to elect out, however, that assumption is not valid in this case. representatives of their choice.” 42 U.S.C. § 1973(b). The vote-dilution injuries suffered by these persons are In sum, we find no clear error in the district court’s not remedied by creating a safe majority-black district determination that the plaintiffs have satisfied the third somewhere else in the State . . . . Gingles precondition. The data from the legislative elections . . . To accept that the district may be placed anywhere were sufficiently robust for the district court to discern implies that the claim, and hence the coordinate right to whether there existed a pattern of white bloc voting. When an undiluted vote (to cast a ballot equal among voters), the black-white legislative elections are afforded greater belongs to the minority as a group and not to its weight, the data show that the white majority votes individual members. It does not. sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate in rural west Tennessee. Id. at 917. Taken together, the admonitions of De Grandy and Shaw dissuade us from accepting the Tennessee’s invitation to append Shelby County, or the State as whole, to the geographical frame of reference that the plaintiffs have

14 Rural West Tennessee, et al. Nos. 98-6718/6778 Nos. 98-6718/6778 Rural West Tennessee, et al. 11 v. Sundquist, et al. v. Sundquist, et al.

conducting the proportionality analysis.1 The State argues III that the court should have considered proportionality in the entire state or, in the alternative, in an area that includes Having determined that the plaintiffs have met the three Shelby County along with the six counties of rural west Gingles preconditions, we turn to the question whether, given Tennessee. On a statewide basis, there are twelve majority the "totality of the circumstances," the House Plan has in fact black house districts out of a total of ninety-nine, which, the "diluted" African-American electoral strength and thus denied State contends, is substantially proportional to Tennessee’s African-Americans in rural west Tennessee a fair opportunity black voting age population of 14.4%. In the seven-county to elect representatives of their choice. See Clarke, 40 F.3d area that includes Shelby County, the black voting age at 811. The Senate Report which accompanied the 1982 population is 37.9%; since 42.85% of the house districts are amendments to the Voting Rights Act specifies factors which majority black in that seven-county area, the State says, typically may be relevant to a § 2 claim: the history of blacks are in fact overrepresented. voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the B State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting In Johnson v. De Grandy, the Supreme Court explicitly left practices or procedures that tend to enhance the opportunity open the question of the proper frame of reference for for discrimination against the minority group, such as analyzing § 2 claims. De Grandy, 512 U.S. at 1022 (“[W]e unusually large election districts, majority vote requirements, have no occasion to decide which frame of reference should and prohibitions against bullet voting; the exclusion of have been used if the parties had not apparently agreed in the members of the minority group from candidate slating District Court on the appropriate geographical scope for processes; the extent to which minority group members bear analyzing the alleged § 2 violation and devising its remedy.”). the effects of past discrimination in areas such as education, Nevertheless, the reasoning in that case, and in Shaw v. Hunt, employment, and health, which hinder their ability to 517 U.S. 899, 917 (1996), persuades us that neither over- participate effectively in the political process; the use of overt proportionality in one area of the State nor substantial or subtle racial appeals in political campaigns; and the extent proportionality in the State as a whole should ordinarily be to which members of the minority group have been elected to used to offset a problem of vote dilution in one discrete area public office in the jurisdiction. Gingles, 478 U.S. at 44-45 of the State. (citing S. Rep. No. 97-417, at 28-29 (1982)). The Report notes also that there may be probative value to evidence In De Grandy, the State of Florida argued that, as a matter demonstrating that elected officials are unresponsive to the of law, no dilution occurs whenever the percentage of single- particularized needs of the members of the minority group member districts in which minority voters form an effective and that the policy underlying the State's or the political majority mirrors the minority voters’ percentage of the subdivision's use of the contested practice or structure is relevant population. De Grandy, 512 U.S. at 1017. tenuous. Id. at 45. The Supreme Court has recently highlighted a new 1 element—proportionality—to be weighed in the totality of the The State also challenges the district court’s finding regarding the history of official discrimination in voting in western Tennessee. We circumstances. In Johnson v. De Grandy, a case involving a have carefully considered this question, and find no error in the district challenge to Florida’s legislative reapportionment plan, the court’s determination.

12 Rural West Tennessee, et al. Nos. 98-6718/6778 Nos. 98-6718/6778 Rural West Tennessee, et al. 13 v. Sundquist, et al. v. Sundquist, et al.

Court concluded that § 2 relief should not be granted because, process). The court concluded that as a result of those notwithstanding the presence of continued discrimination and ongoing violations, African-Americans had suffered racial bloc voting, minority voters were able to form effective disadvantages in such areas as education, employment, and voting majorities in a number of legislative districts that were health. roughly proportional to their respective shares in the voting age population. De Grandy, 512 U.S. 997, 1024 (1994). The The district court further found that the Tennessee House of Court emphasized, however, that proportionality is not a “safe Representatives was responsive to the needs of black voters harbor :” “the degree of probative value assigned to in the rural western part of the state, a factor upon which this proportionality may vary with other facts. No single statistic court has laid heavy emphasis in the past. See Cousin, 145 provides courts with a shortcut to determine whether a set of F.3d at 833. The district court questioned the state policy of single-member districts unlawfully dilute minority voting maintaining municipal boundaries wherever possible in strength.” Id. at 1020-21. configuring the legislative districts, since the plan itself fractured certain cities. Under the heading of “miscellaneous” A factors, the court concluded that there was no evidence of suspect electoral practices, racial appeals in political The district court found that the totality of the campaigns, or a slating process or other mechanism used to circumstances indicated that the House Plan unlawfully prevent minority candidacies. dilutes minority voting strength in rural west Tennessee. Beginning with the two factors that the Supreme Court has Turning to the question of proportionality, the district court declared are the most important in balancing the totality of the noted that blacks make up 31.01% of the voting age circumstances, see Gingles, 478 U.S. at 48 n.15, the court population of the six counties comprising rural western found that no African-American had been elected to the state Tennessee, but that none of the five house districts covering legislature from the six-county area, and that the experts at the that area contains a majority of black voters. The court trial agreed that voting in the area is racially polarized. The acknowledged that in four of the five districts minority court next took judicial notice of findings from the Senate members make up 25-55% of the population and hence could Plan cases, RWTAAC I & II, regarding the history and effect meaningfully affect election outcomes in those four districts, of discrimination in voting in western Tennessee. The court but concluded that in the absence of a single majority black in the Senate Plan cases had recounted the entire history of district, this fact had little probative significance. Balancing official discrimination from the pre-Civil War era, a time- the lack of proportionality with the other factors from the frame whose use we disapproved of in the Cousin case, 145 Senate Report, the court concluded that black voters in rural F.2d at 832, but went on to cite two cases from the 1980s west Tennessee do not have equal opportunity in the political which indicate that voting rights violations by public officials process. in rural west Tennessee are ongoing. See Taylor v. Haywood County, 544 F. Supp. 1122, 1131 (W.D. Tenn. 1982) (holding The State’s primary quarrel with this determination that change to an at-large election scheme was a result of concerns the geographical area on which the court focused in purposeful intention to dilute black voting strength); Bills v. Alexander, No. 83-12220 (W.D. Tenn. 1983) (approving settlement setting up a new system to ensure the opportunity of black citizens to participate meaningfully in the political