                      Rose JOHNSON, Willie Faye Bush, et al., Plaintiffs-Appellees,

                                                       v.

                 Robert HAMRICK, Emily Lawson, Mayor, et al., Defendants-Appellants.

                                                 No. 98-8896.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                Nov. 19, 1999.

Appeal from the United States District Court for the Northern District of Georgia. (No. 2:91-CV-02-WCO),
William C. O’Kelley, Judge.

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER*, District Judge.

        BLACK, Circuit Judge:

        Defendants-Appellants, who are the current members of the Gainesville City Council, the current

clerk of the Gainesville City Council, and the current City Manager for Gainesville (Appellants), appeal the

judgment of the district court finding Gainesville's at-large method of electing city council members violates

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 (Section 2), and enjoining

Gainesville from conducting further city council elections under the at-large system. We hold that the district

court's findings of fact and conclusions of law are not sufficiently detailed that we can ascertain the bases for

the district court's ultimate conclusion. We therefore vacate the district court's judgment and remand for more

specific findings of fact and conclusions of law consistent with this opinion.

                                              I. BACKGROUND

        Gainesville is located in Hall County, Georgia.          According to the 1990 Census, 23.5% of

Gainesville's nearly 20,000 residents and 20.2% of its total voting-age population are black. The Gainesville

City Council has five members, all of whom are elected at large. Although one council member must reside

in each of the city's five wards, all voters in the city may vote on the representative from each ward. While



    *
     Honorable J. Owen Forrester, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
a majority of the voters in Ward 3 are black, a majority of the voters in the other four wards are white. The

council members' terms are staggered. There is a majority-vote requirement, so a runoff election is required

if no candidate receives more than 50% of the vote in the general election.

         Three contested Gainesville City Council elections have featured a black candidate. In 1978, the two

candidates for the Ward 3 seat were black: John W. Morrow, Jr., defeated Reverend C.T. Hester. Morrow

was reelected without opposition until 1990. In 1990, Morrow ran for the Ward 3 seat against another black

candidate, Plaintiff Rose Johnson. Morrow won reelection. As Johnson received nearly two-thirds of the

black vote in the 1990 election, the parties do not dispute she was the preferred candidate of black voters.

In the last contested Ward 3 election, which took place in 1995, Morrow again ran against Johnson. Once

again, although Johnson received well over two-thirds of the black vote, Morrow defeated her.1

         After losing her first contest against Morrow, Johnson along with four other black registered voters

in Gainesville (Appellees) filed a complaint on January 11, 1991, in the United States District Court for the

Northern District of Georgia, alleging that Gainesville's at-large method of electing city council members

dilutes the voting strength of black citizens, in violation of Section 2, and that Appellants maintained the

at-large system for racially discriminatory purposes, in violation of the Fourteenth and Fifteenth Amendments

to the United States Constitution. The district court denied cross-motions for summary judgment in January

1993. Following a three-day bench trial in 1994, the district court entered an order finding the at-large system

did not violate Section 2, but specifically declining to rule on Appellees' constitutional claim. Appellees

appealed that decision. This Court dismissed the appeal for lack of appellate jurisdiction, holding the district

court had not issued a final judgment because it had not ruled on Appellees' constitutional claims, which, if

successful, would have altered the judgment. Johnson v. Hamrick, 11th Cir., 1996, (No. 94-9203, Jan. 25,

1996).




    1
    Morrow died in office during the pendency of this litigation and was replaced by Defendant Myrtle
Figueras.

                                                       2
          In March 1997, the district court granted Appellees' motion to reopen the case to take additional

evidence of post-trial elections. In so ruling, the court also stated it would consider the constitutional claim.

On the morning of July 11, 1997, the district court held an evidentiary hearing to take additional evidence

of elections occurring since the fall of 1994. Almost one year later, on June 10, 1998, the district court issued

its new opinion on the merits of the case. This time, the court ruled in favor of Appellees, finding the at-large

system violated Section 2 and rejecting Appellants' constitutional challenge to Section 2. The district court

again declined to rule upon Appellees' constitutional claims.2 Appellants filed this appeal of the district

court's 1997 judgment, asserting the district court erred in its ultimate determination of vote dilution.3

                                        II. STANDARD OF REVIEW

          We review a district court's factual findings regarding Section 2 violations and its determination of

whether vote dilution has occurred for clear error. Fed.R.Civ.P. 52(a); Thornburg v. Gingles, 478 U.S. 30,

79, 106 S.Ct. 2752, 2781, 92 L.Ed.2d 25 (1986). Rule 52(a) does not, however, hinder our "power to correct

errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact

that is predicated on a misunderstanding of the governing rule of law." Gingles, 478 U.S. at 79, 106 S.Ct.

at 2781 (quotation and citations omitted). In addition, Rule 52(a) requires that a district court's findings of

fact and conclusions of law "be sufficiently detailed that [we] can ascertain the factual and legal basis for the

district court's ultimate conclusion." Cross v. Baxter, 604 F.2d 875, 879 (5th Cir.1979) (citation omitted).4

                                              III. DISCUSSION




  2
   The court properly declined to rule upon the constitutional claims. See Ashwander v. TVA, 297 U.S. 288,
347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (federal courts should avoid ruling on
constitutional issues when non-constitutional grounds for a decision exist).
  3
  Appellants' other argument on appeal, that Section 2 is unconstitutional, is foreclosed by, inter alia, this
Court's decision in United States v. Marengo County Comm'n, 731 F.2d 1546, 1556-63 (11th Cir.1984).
      4
    In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on
September 30, 1981.

                                                       3
        A Section 2 violation occurs when, "based on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the State or political subdivisions are not equally open

to participation by members of a [protected] class of citizens ... 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." 42 U.S.C. § 1973(b).

          At a minimum, Section 2 plaintiffs must prove "the three now-familiar Gingles factors

(compactness/numerousness, minority cohesion or bloc voting, and majority bloc voting)." Johnson v. De

Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994). Other factors may, however,

in the totality of circumstances, be relevant to a claim of racial vote dilution. Derived from the Senate Report

accompanying the 1982 amendment to Section 2, those factors include: (1) "the extent of any history of

official discrimination in the state or political subdivision that touched the right of the members of the

minority group to register, to vote, or otherwise to participate in the democratic process;" (2) "the extent to

which voting in the elections of the state or political subdivision is racially polarized;" (3) "the extent to

which the state or political subdivision has used unusually large election districts, majority vote requirements,

anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for

discrimination against the minority group;" (4) "if there is a candidate slating process, whether the members

of the minority group have been denied access to that process;" (5) "the extent to which members of the

minority group in the state or political subdivision bear the effects of discrimination in such areas as

education, employment and health, which hinder their ability to participate effectively in the political

process;" (6) "whether political campaigns have been characterized by overt or subtle racial appeals;" and (7)

"the extent to which members of the minority group have been elected to public office in the jurisdiction."

Gingles, 478 U.S. at 36-37, 106 S.Ct. at 2759 (quoting S.Rep. No. 97-417, at 28-29, reprinted in 1982

U.S.C.C.A.N. 177, 206-07). Additional factors that may be probative of vote dilution in some cases are: (1)

"whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs



                                                        4
of the members of the minority group;" and (2) "whether the policy underlying the state or political

subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is

tenuous." Gingles, 478 U.S. at 37, 106 S.Ct. at 2759 (quoting S.Rep. No. 97-417, at 28-29, reprinted in 1982

U.S.C.C.A.N. 177, 206-07). Also, in a Section 2 case involving state legislative single-member districts, the

Supreme Court announced another factor, proportionality, that it defined as the relationship between "the

number of majority-minority voting districts [and] minority members' share of the relevant population." De

Grandy, 512 U.S. at 1013-14 & n. 11, 114 S.Ct. at 2658 & n. 11. Finally, two judges of this Court consider

racial bias in the voting community to be a relevant factor. Nipper v. Smith, 39 F.3d 1494, 1524 (11th

Cir.1994) (en banc) (plurality opinion of Tjoflat, C.J., joined by Anderson, J.) ("The defendant may rebut the

plaintiff's evidence by demonstrating the absence of racial bias in the voting community.").

        The parties agree that the analytical framework to be applied to Appellees' claim is as follows. First,

a plaintiff must demonstrate the three Gingles factors of compactness/numerousness, minority cohesion or

bloc voting, and majority bloc voting. If one or more of the Gingles factors is not shown, then the defendants

prevail. If all three factors are shown, then the district court must review all relevant evidence under the

totality of the circumstances. The defendants may present evidence of the lack of racial bias in the

community, proportionate representation, past and present electoral success, as well as proof of the other

factors which are indicative of the existence or non-existence of vote dilution. The plaintiffs may respond

in kind. Without treating any single factor as dispositive, the district court then determines whether the

members of the minority group are denied equal political opportunity with respect to their race or color. If

they are, a claim under Section 2 has been established.

        The parties do not dispute the legal accuracy of this framework. Rather, they dispute the district

court's application of it, as well as its view of the dilution factors. Appellants argue the district court clearly

erred in rendering findings adverse to them, including its ultimate determination of vote dilution. Appellees




                                                        5
defend the district court's judgment, contending it properly resolved conflicts in the evidence and considered

the totality of the circumstances.

        In the judgment from which Appellants appeal, the district court found Appellees had established the

three Gingles factors. In particular, the district court reconsidered its previous ruling and found Appellees

had demonstrated the existence of the third Gingles factor. Next, the district court considered the totality of

the circumstances and found black voters enjoyed less political opportunity. Accordingly, the district court

found that Gainesville's at-large electoral system violated Section 2.

        Appellants do not dispute Appellees proved the first two prongs of Gingles. Rather, Appellants assert

the district court erred in finding Appellees had proved the third Gingles factor: that "the white majority votes

sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate

running unopposed—usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct.

at 2766-67 (citations omitted).5

        Appellants assert the district court made three errors in its analysis of the third Gingles factor. First,

Appellants argue the district court erred by giving more weight to the three elections involving black

candidates than to any other elections. Second, Appellants argue the district court erred by viewing

endogenous elections (those involving only city voters; for instance, Gainesville City Council elections) as

more probative than exogenous elections (those involving non-city voters; for instance, county-wide

elections). Finally, Appellants argue the district court erred by using so-called "split-preference" analysis to

examine the elections in which only white candidates ran.

         To establish the third Gingles factor, a plaintiff must show not only that whites vote as a bloc, but

also that white bloc voting regularly causes the candidate preferred by black voters to lose; in addition,

plaintiffs must show not only that blacks and whites sometimes prefer different candidates, but that blacks

  5
    Alternatively, Appellants assert that, even assuming Appellees established the three Gingles factors, the
district court erred by finding the totality of the circumstances demonstrated black voters enjoyed less
political opportunity. We limit our analysis to the third Gingles factor, however, as on that basis we conclude
the case needs to be remanded.

                                                       6
and whites consistently prefer different candidates. See Gingles, 478 U.S. at 48, 106 S.Ct. at 2765 ("The

theoretical basis for this type of impairment is that where minority and majority voters consistently prefer

different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of

minority voters." (citation and footnote omitted)).

         The district court did not clearly err by giving more weight to elections involving black candidates.

There is case law from this Circuit indicating elections involving black candidates may be given more weight

in determining vote dilution. See, e.g., Davis v. Chiles, 139 F.3d 1414, 1417 n. 5 (11th Cir.1998), cert.

denied, --- U.S. ----, 119 S.Ct. 1139, 143 L.Ed.2d 208 (1999) (noting evidence drawn from elections

involving black candidates is more probative); Southern Christian Leadership Conference v. Sessions, 56

F.3d 1281, 1293 (11th Cir.1995) (stating there was no cause to set aside the district court's finding on the

ultimate issue of fact (vote dilution) where the district 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" (internal punctuation omitted)). We do not mean to imply district courts

should give elections involving black candidates more weight; rather, we merely note that in light of existing

case law district courts may do so without committing clear error.6 Besides, it is not clear in this case that

the district court in fact gave more weight to the three elections involving black candidates than to those

involving only white candidates. The district court did pay particular attention to the two city council

  6
   We point out, however, that this Court "will not automatically assume that the black community can only
be satisfied by black candidates." Askew v. City of Rome, 127 F.3d 1355, 1378 (11th Cir.1997) (citations
omitted). As Justice Kennedy put it:

                 The assumption that majority-minority districts elect only minority representatives, or that
                 majority-white districts elect only white representatives, is false as an empirical matter. And
                 on a more fundamental level, the assumption reflects the demeaning notion that members of
                 the defined racial groups ascribe to certain minority views that must be different from those
                 of other citizens.

        Johnson v. DeGrandy, 512 U.S. at 1027, 114 S.Ct. at 2665 (1994) (Kennedy, J., concurring in part
        and concurring in the judgment) (internal quotations and citations omitted).

                                                       7
elections pitting Morrow against Johnson, in which Johnson, the black candidate preferred by black voters,

lost.7 See Dist. Ct. Order at 12-13. However, the district court examined all endogenous (involving only city

voters) elections, including those that did not involve a black candidate, and found:

        It is also important to recognize that white voters have been able to elect the candidate of their choice
        in all eight (8) of the contested city council elections in which they expressed a preference.
        Conversely, black voters have been able to elect the black preferred candidate in only three (3)
        elections which featured only white candidates and the successful candidate was also the white
        preferred candidate.

District Ct. Order at 11 (internal footnote omitted).

         The district court also did not clearly err by viewing endogenous elections as more probative than

exogenous elections. Although the district court examined some exogenous elections, it did seem to focus

on endogenous elections and found "the endogenous elections to be more probative." Dist. Ct. Order at 11.

Not only does that make sense, but it also is the law of this Circuit. In City of Carrollton Branch of the

NAACP v. Stallings, 829 F.2d 1547 (11th Cir.1987), this Court disagreed with the district court's reliance on

municipal elections to indicate voting behavior in a Georgia county, the jurisdiction at issue in the case:

        The district court's reliance on municipal elections in Carroll County as proof of minority electoral
        success of a county electoral scheme is obviously misplaced. The political jurisdiction in question
        here is the county, not the cities of Villa Rica, Whitesburg, or Carrollton.

Id. at 1560. Gainesville is the jurisdiction at issue here, and thus the district court properly assigned more

probative value to its elections.

          With respect to Appellants' argument that the district court erred in its application of

"split-preference" analysis to elections in which only white candidates ran, however, we conclude the district

court made insufficient findings for us to review. In conducting "split-preference" analysis, a court gives

more weight to split-preference elections: those in which black and white voters preferred different

candidates. Davis, 139 F.3d at 1417. In this case, five of the nine endogenous elections, including the two

involving black candidates, were split-preference elections. In all five, the black preferred candidate was

   7
    No election returns are available for the other city council race involving a black candidate, the 1978
contest between Morrow and Hester.

                                                        8
unsuccessful. The district court concluded that the five split-preference endogenous elections showed legally

significant white bloc voting.

        Although the law as to split-preference analysis is hardly well-settled, we doubt it would be clear

error to pay particular attention to split-preference elections. We do, however, need a sufficiently detailed

explanation of the district court's basis for weighing the elections. We have strictly adhered to the

Fed.R.Civ.P. 52(a) requirement of a definite record in voting rights cases. As we have explained:

        Because the resolution of a voting dilution claim requires close analysis of unusually complex factual
        patterns, and because the decision of such a case has the potential for serious interference with state
        functions, we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have
        required district courts to explain with particularity their reasoning and the subsidiary factual
        conclusions underlying their reasoning.

Cross, 604 F.2d at 879 (citations omitted).

        In conducting its version of split-preference analysis, the district court completely disregarded the

four elections in which the preferences of white and black voters were the same, stating that one "add[ed]

little to the court's analysis" and the other three "lack[ed] probative value." Dist. Ct. Order at 13-14. In this

case, black and white voters preferred different candidates in five of nine elections, or 56% of the time. The

district court concluded without any explanation that this ratio suggested black and white voters consistently

preferred different candidates. This is not correct split-preference analysis. Indeed, at least as an initial

inference, elections in which black and white voters prefer the same winning candidate weigh just as heavily

against Appellees' establishing the third factor of Gingles as any evidence on the other side of the scale. Such

elections provide evidence that the interests of the black and white communities may be merging. The district

court did not tell us what evidence it found to controvert that inference.

        Whether or not a consistent pattern of voting emerges from these data is for the district court to

answer, but we believe the question is at least close enough for us to require some explanation for the district

court's conclusion. Moreover, at least arguably, in two of those five split-preference elections, white voting

did not constitute a bloc and black voting did not demonstrate a preference. In the 1986 Ward 1 runoff



                                                       9
election, only 50.4% of white voters voted for the winner, who received 45.6% of the black vote. In the 1986

Ward 4 election, only 52.8% of white voters voted for the winner, who received 47.7% of the black vote.

Indeed, these numbers were so close the district court in its first opinion did not regard these two elections

as evidence of white bloc voting or black-preferred candidates losing:

        There is no evidence in the record to suggest that 50.4% constitutes a "bloc," and this court has
        reservations about deeming 52.8% a "bloc" as that term is used in voting rights cases. This is
        particularly true in light of the fact that these percentages are estimates, and thus necessarily contain
        a statistical margin of error. It therefore cannot be said, in regard to endogenous elections, that white
        voters usually vote as a bloc to defeat the black preferred candidate.

Dist. Ct. (Sept. 27, 1994) Order at 25-26 (emphasis in original). In its second opinion, the district court

changed its mind without any explanation, finding not only that the two 1986 elections were evidence of

white bloc voting defeating black-preferred candidates, but also that white bloc voting usually defeated

black-preferred candidates.

        We emphasize, of course, courts are free to change their minds. Irrespective of whether the district

court changed its mind, however, to conduct our review we need more specific factual findings and legal

conclusions as to why it decided this issue and this case the way it did. The district court's opinion does not

elucidate what evidence it had that the two 1986 elections were examples of white bloc voting defeating black

preferences. Even more troublesome, the district court does not explain what evidence it had that white bloc

voting usually defeated black-preferred candidates. We do not hold the district court clearly erred by finding

Appellees established the third Gingles factor, but we do believe the issue is extremely close and warrants

additional and more specific findings of fact and conclusions of law, especially considering the district court

changed its mind.

        The district court need not necessarily include the required findings of fact or conclusions of law in

its analysis of the Gingles factors; the findings and conclusions could just as well fall under the rubric of the

totality of circumstances analysis. We do not favor form over substance and will defer to findings and

conclusions no matter where they are. In this case, however, not only was the district court's analysis of the



                                                       10
third Gingles factor lacking, but its analysis of the totality of the circumstances was quite sparse. The district

court addressed only three of the eleven possible factors. First, as to the first Senate factor, the district court

averred that "[t]he State of Georgia and Gainesville have a history of official discrimination against blacks."

Of course, that does little to distinguish Gainesville or Georgia from any other Southern state or city. Second,

as to the third Senate factor, the district court found that Gainesville's electoral system contained two features

that have enhanced the discriminatory impact of the at-large electoral system: a majority-vote requirement

with a run-off and the use of a subdistrict residency requirement with staggered terms. Finally, as to the fifth

Senate factor, the district court considered testimony regarding discrimination against blacks in housing,

employment, and education. The district court neglected to mention, however, how this discrimination

"hinder[ed] their ability to participate effectively in the political process." Gingles, 478 U.S. at 37, 106 S.Ct.

at 2759. In sum, the district court did not adequately state what evidence it relied upon to conclude that

Gainesville's black voters were denied equal political opportunity.

        We must emphasize we do not express any opinion about the merits of Appellees' claims; we do not

suggest the record in this case cannot support a finding of vote dilution. Moreover, whether Appellees

establish the third Gingles factor and whether the totality of circumstances demonstrates black voters are

denied equal political opportunity are unusually complex, fact-intensive questions for the district court to

answer. Our task is merely to ensure the district court made its findings as to those questions without

committing clear error. Regardless of how we would have weighed the evidence, we must defer to the district

court's findings. Precisely because the issues are so complex and fact-intensive, however, we need something

to which to defer.

        Here, the district court's findings were inadequate to permit any meaningful appellate review. We

reach this conclusion reluctantly, for we are loathe to further ritualize the district court's fact-specific inquiry

by requiring findings of fact that may appear obvious to a judge so familiar with Gainesville and its electorate.

Nevertheless, our review of the district court's judgment is itself a fact-specific inquiry.



                                                        11
                                           IV. CONCLUSION

        We conclude the district court's findings were insufficient to permit review. Accordingly, we vacate

the judgment of the district court and remand the case for specific findings of fact and conclusions of law

consistent with this opinion.

        VACATED AND REMANDED.




                                                    12
