Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 1 of 210 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALABAMA STATE CONFERENCE ) OF THE NATIONAL ASSOCIATION ) FOR THE ADVANCEMENT OF ) COLORED PEOPLE, SHERMAN ) NORFLEET, CLARENCE ) MUHAMMAD, CURTIS TRAVIS, ) and JOHN HARRIS, ) ) Plaintiffs, ) ) v. ) CASE NO. 2:16-CV-731-WKW ) [WO] STATE OF ALABAMA and JOHN H. ) MERRILL, in his official capacity as ) Alabama Secretary of State, ) ) Defendants. ) MEMORANDUM OPINION AND ORDER TABLE OF CONTENTS I. INTRODUCTION — 4 II. JURISDICTION AND VENUE —10 III. BACKGROUND — 11 IV. STANDARD OF REVIEW FOR BENCH TRIALS —19 V. DISCUSSION — 20 A. Section 2 Vote Dilution — 20 1. Section 2: The Statute — 20 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 2 of 210 2. Burden of Proof — 21 3. The Meaning of Section 2 — 23 a. Legislative History — 23 b. Gingles Preconditions and Totality-of-Circumstances Test — 25 4. Section 2 and At-Large Judicial Elections — 29 a. Nipper v. Smith and Later Eleventh Circuit Caselaw Developments — 35 i. The Importance of a State’s Interests — 36 ii. Nipper’s Applicability to Appellate Judicial Elections — 40 iii. The Role of Causation in the § 2 Vote Dilution Analysis — 41 b. Summary — 44 5. Analysis of the Gingles Preconditions — 45 a. Introduction — 45 b. The First Gingles Precondition — 46 i. The Inextricably Intertwined Nature of Liability and Remedy in the Eleventh Circuit — 47 ii. Factors Governing the First Gingles Precondition — 48 iii. Plaintiffs’ Illustrative Plans for Alabama’s Appellate Courts — 54 iv. Whether the Illustrative Plans for the Alabama Supreme Court Satisfy the First Gingles Precondition — 55 v. Whether the Illustrative Plans for Alabama’s Intermediate Courts Satisfy the First Gingles Precondition — 57 2 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 3 of 210 c. The Second and Third Gingles Preconditions — 68 i. Proof of the Second and Third Gingles Preconditions: Generally — 71 ii. Plaintiffs’ Statistical Evidence of Racially Polarized Voting — 75 iii. Findings of Fact and Conclusions of Law: Racially Polarized Voting — 88 6. The Totality of Circumstances — 99 a. Senate Factors 1 and 5: Alabama’s History of Discrimination and Its Lingering Effects — 102 i. Senate Factor 1: History of Discrimination in Voting — 102 ii. Senate Factor 5: Discrimination in Education, Employment, and Health — 106 iii. Evaluation and Weighing of Senate Factors 1 and 5 — 109 b. Senate Factor 2: The Extent of Racially Polarized Voting (Causation) — 111 i. Party Alignment in Alabama — 112 ii. The Relative Strength of the Two Parties — 116 iii. Partisan Judicial Elections — 121 iv. Straight-Ticket Voting — 123 v. The Competitiveness of Black-Preferred Candidates in Appellate Judicial Races — 125 vi. Whether Party Is a Proxy for Race — 127 vii. Weighing of Senate Factor 2 — 145 c. Senate Factor 3: Election Devices that Enhance Potential for Discrimination — 146 d. Senate Factor 4: Slating — 150 e. Senate Factor 6: Racial Appeals — 152 3 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 4 of 210 f. Senate Factor 7: Extent of Minority Success — 158 g. Senate Factor 8: Responsiveness to Minority Needs — 167 h. Senate Factor 9: Whether the State’s Policy Is Tenuous — 168 i. Conclusion: Totality of Circumstances — 168 7. Remedy: Balancing the State’s Interests Against Plaintiffs’ Interests in Remedial Districting – 171 a. Interference with Alabama’s Constitutional Model — 171 b. Linkage Between Appellate Judges’ Jurisdictions and Electoral Base — 176 i. Impartial Administration of Justice in Alabama’s Appellate Courts — 177 ii. Judicial Accountability and Independence — 179 iii. A Matter of Law, Not Fact — 190 c. The Pool of Candidates — 192 d. Weighing of the Interests — 194 B. Constitutional Claims — 197 VI. CONCLUSION — 206 I. INTRODUCTION In 1868, Alabama adopted an at-large, statewide method of electing its Supreme Court. That method has been in place for 152 years. “At-large” means that justices of the Alabama Supreme Court run statewide, not in districts. There presently are nine seats on the Alabama Supreme Court. Justices are elected in 4 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 5 of 210 partisan, staggered elections on a rotating basis of one, three, and five justices, every two years (to fill six-year terms). Eight of the justices run in numbered places to avoid having to run against each other, with the ninth being the position of Chief Justice. In 1911, the Alabama Legislature created an intermediate Court of Appeals, and in 1969 it divided the Court of Appeals into the Court of Criminal Appeals and the Court of Civil Appeals. Since 1911, a partisan at-large, statewide election structure has been in place for Alabama’s intermediate appellate courts. There presently are five seats on each court of appeals, and the judges are elected to numbered places for six-year, staggered terms. Judges of the Court of Criminal Appeals elect the presiding judge, while the most senior judge on the Court of Civil Appeals serves as the presiding judge. Mid-term vacancies in the appellate courts are filled by gubernatorial appointment. Plaintiffs — the Alabama State Conference of the National Association for the Advancement of Colored People and registered Alabama voters (Sherman Norfleet, Clarence Muhammad, Curtis Travis, and John Harris) — seek an injunction against the enforcement of the State’s at-large method of electing its appellate judges on grounds that the method contravenes § 2 of the Voting Rights Act of 1965 (“VRA”), as amended, and the Fourteenth and Fifteenth Amendments’ prohibition against intentional racial discrimination. See U.S Const. amend. XIV, 5 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 6 of 210 § 1, XV; Voting Rights Act of 1965, § 2, 52 U.S.C. § 10301 (2018). Plaintiffs also seek a federal court order directing the State to create a new method of election for Alabama’s appellate courts that complies with § 2 of the VRA and the Constitution; their proposed remedy is single-member districts for partisan elections of appellate judges. Defendants are the State of Alabama and John H. Merrill, in his official capacity as Alabama Secretary of State.1 Plaintiffs allege that the at-large method “dilutes” the votes of African- American Alabamians “on account of race.” The phrase “on account of race” is taken directly from § 2 of the VRA. The political history of Alabama confirms that the 1965 VRA was passed with the impetus of the famous Selma-to-Montgomery March in the spring of that year, led by Dr. Martin Luther King, and managed by Judge Frank M. Johnson, Jr. of this court (for whom this court complex is named). And the momentum behind the 1982 VRA amendment arose out of an Alabama federal court case. See Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. Ala. 1976), aff’d, 571 F.2d 238 (5th Cir. 1978), rev’d, 446 U.S. 55 (1980). In fact, the political history of Alabama intersects with the modern Civil Rights Movement at almost every major turn. But Alabama history did not begin and end with the Civil Rights Movement. Since the early 1900s, that history has 1 On February 3, 2020, the Eleventh Circuit Court of Appeals affirmed on interlocutory appeal this court’s order denying the State of Alabama’s motion to dismiss on grounds of sovereign immunity. (Doc. # 179.) In this opinion, for simplicity, Defendants are referred to collectively as “the State.” 6 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 7 of 210 intersected in interesting and unusual ways with the federal court system and with Alabama’s own state courts. Courts at both the state and federal level have dominated the civic life of Alabamians, often as a refuge of justice and fairness and sometimes to the point of exasperation (both of the courts and Alabama politicians). More of that later. “Dilution” of a vote “on account of race” does not intrinsically help the reader understand the concept. Vote dilution, in the § 2 “sense, . refers to the impermissible discriminatory effect that a multimember or other districting plan has when it operates ‘to cancel out or minimize the voting strength of racial groups.’” Thornburg v. Gingles, 478 U.S. 30, 87 (1986) (O’Connor, J., concurring in the judgment) (quoting White v. Regester, 412 U.S. 755, 765 (1973)). In its simplistic form, if a vote is diluted, it has less strength — “weight” in judge-speak — than other votes.2 Vote dilution matters politically when Alabama is approximately 69% white and 26% black and when candidates supported by a majority of white voters have won all of the races for appellate court positions lately. But analyzing the political 2 For example, if all African Americans in Alabama were crammed into one state senate district out of thirty-five districts, the votes of those African Americans would be watered down on a statewide basis — worth less, or less effective — than those of other races. Thus, African Americans would have less political influence. In fact, there are eight minority senate districts in Alabama. The composition of the state legislature today is roughly proportional to the percentage of African-American citizens in Alabama. 7 Case 2:16-cv-00731-WKW-SMD Document 181 Filed 02/05/20 Page 8 of 210 losses of black-preferred candidates under § 2 is anything but simple, especially when causation “on account of race” is the measure by which an illegal condition is said to exist in state politics.3 Dilution can occur on account of intentional racial discrimination by the State, but intentional discrimination is not required for Plaintiffs to prevail under § 2.