     Case: 15-60637      Document: 00513774935         Page: 1    Date Filed: 11/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                          November 28, 2016
                                      No. 15-60637
                                                                             Lyle W. Cayce
                                                                                  Clerk
REVEREND KENNETH E. FAIRLEY, SR.; REVEREND D. FRANKLIN
BROWNE; DENNIS D. HENDERSON; CARLOS WILSON; FRED BURNS;
CHARLES BARTLEY; CLARENCE MAGEE,

               Plaintiffs - Appellants

v.

HATTIESBURG MISSISSIPPI; HATTIESBURG MISSISSIPPI
DEMOCRATIC EXECUTIVE COMMITTEE; HATTIESBURG MISSISSIPPI
REPUBLICAN EXECUTIVE COMMITTEE; HATTIESBURG MISSISSIPPI
ELECTION COMMISSION,

               Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:13-CV-18


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
PER CURIAM:*
       Reverend Kenneth E. Fairley, Sr., Reverend D. Franklin Browne, Dennis
D. Henderson, Carlos Wilson, Fred Burns, Charles Bartley, and Clarence



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 15-60637
Magee (collectively, “Plaintiffs”) brought suit against Hattiesburg, Mississippi
(“Hattiesburg”). The complaint alleged causes of action under Section 2 of the
Voting Rights Act, the Equal Protection Clause, and the Fifteenth
Amendment. 1 After a bench trial, the district court entered judgment in favor
of Hattiesburg on Plaintiffs’ claim under Section 2 of the Voting Rights Act.
Plaintiffs appealed. Finding no error, we AFFIRM.
                                            I.
                                            A.
       Hattiesburg has a mayor-council form of government, under which a
mayor exercises the city’s executive power, MISS. CODE ANN. § 21-8-15, and a
five-member city council serves as the city’s legislative body, id. § 21-8-9.
Whereas the mayor is elected citywide, each city council member is elected by
ward, and each of the five wards must contain “as nearly as possible” a fifth of
the population “as shown by the most recent decennial census.” Id. § 21-8-
7(4)(a), (b). The city council must redistrict when necessary after each census.
Id. § 21-8-7(4)(c)(i).
       Prior to the 2010 census, Hattiesburg had a majority white total
population and voting-age population.             The 2010 census data revealed,
however, that African Americans are now a majority of the total population
and a plurality of the voting-age population. Specifically, 53.92% of the total
population was “any part black,” and 40.48% of the total population was “non-
Hispanic white.” As to the voting-age population, 48.50% was “any part black,”
and 45.98% was “non-Hispanic white.”
       Following the 2010 census, the city council hired Chris Watson to assist
with the requisite redistricting. Watson began by reviewing the degree of



      1 Following trial, Plaintiffs withdrew their claims under the Equal Protection Clause
and the Fifteenth Amendment. These claims are not at issue on appeal.
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                                       No. 15-60637
imbalance and how much numerical change each ward would have to undergo
to correct that imbalance. His review revealed a significant imbalance that
would require redistricting. Watson submitted various redistricting plans to
the city council, and these plans were the subject of several public hearings.
        At the end of this process, the city council effectively had three plans
from which to choose.          The city council eventually adopted the Revised
Proposed Redistricting Plan (“Adopted Plan”), which Chris Watson originated.
The Adopted Plan would create three majority white wards (Wards 1, 3, and
4) and two majority African-American wards (Wards 2 and 5). The Community
Political Action Committee (“CPAC”) submitted a plan (“CPAC Plan”) that
would create three majority African-American wards (Wards 1, 2, and 5) and
two majority white wards (Wards 3 and 4). Finally, Councilman Henry Naylor
worked with Watson to create a plan (“Naylor Plan”) that would create three
majority African-American wards (Wards 1, 2, and 5) and two majority white
wards (Wards 3 and 4). 2           When the city council voted on what plan to
implement, the Adopted Plan received three votes, the CPAC plan received one
vote, and the Naylor Plan received one vote. The Adopted Plan then received
preclearance from the Justice Department under Section 5 of the Voting Rights
Act.
                                             B.
        Prior to trial, the parties stipulated to the following facts, among others:
              The City council elected in 2001 consisted of three
              white councilpersons and two African-American
              councilpersons.
              ....




        2 Although the possibility of a swing ward was discussed, Plaintiff’s counsel conceded
at oral argument that, in terms of plans submitted to the council for consideration, “no plans
showed a fifth competitive [swing] ward.”
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            The City council elected in 2009 consisted of three
            white councilpersons and two African-American
            councilpersons.
            ....
            In the City’s June 4, 2013 general election, each of the
            incumbent councilpersons was reelected.
            ....
            Johnny Dupree[, an] African American[,] won the
            contested city-wide general election in Hattiesburg,
            Mississippi, for Mayor, in 2001, 2005, and 2013.
            Mayor Dupree was elected without opposition in 2009.
            ....
            Legally significant racial bloc voting exists in white
            versus African American city elections in 2001, 2005,
            2009 and 2013 in Hattiesburg, Mississippi.
            Based on 2010 census data in Hattiesburg,
            Mississippi, a five (5) ward city council redistricting
            plan could be drawn with three (3) African American
            voting age population wards.
            The African American population in Hattiesburg,
            Mississippi, is sufficiently large and geographically
            compact to constitute a majority of the voting age
            population in three (3) of the five (5) wards.
The parties further stipulated to the specific results in various elections and to
the racial composition of the wards under the Adopted Plan. The district court
also granted a motion to take judicial notice of various facts related to a prior
lawsuit involving Hattiesburg stemming from a 2004 redistricting plan. See
Fairley v. Hattiesburg (Fairley I), 584 F.3d 660 (5th Cir. 2009).
      The district court held a three-day bench trial.       The parties put on
evidence regarding the plans that the city council considered, the extent to
which voting in Hattiesburg is racially polarized, and the extent to which the
city council was receptive to the needs of the African-American community.



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The district court entered final judgment in favor of Hattiesburg, and Plaintiffs
timely appealed.
                                        II.
      We have jurisdiction over this appeal of a final judgment. 28 U.S.C.
§ 1291. “In reviewing a district court’s decision regarding an alleged violation
of Section 2 of the Voting Rights Act, this court analyzes the legal standards
applied by a district court de novo and the factual findings for clear error.”
Rodriguez v. Bexar Cty., 385 F.3d 853, 860 (5th Cir. 2004) (citation omitted).
Under the clear error standard, “[i]f the district court’s findings are plausible
in light of the record viewed in its entirety, we must accept them, even though
we might have weighed the evidence differently if we had been sitting as a trier
of fact.” Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991)
(quoting Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 255 (5th Cir.
1990)).
                                       III.
                                        A.
      Section 2 of the Voting Rights Act prohibits the imposition of a “voting
qualification or prerequisite to voting or standard, practice, or procedure . . .
which results in a denial or abridgement of the right of any citizen . . . to vote
on account of race or color.” 52 U.S.C. § 10301(a). Section 2(b) creates a
“results test,” which evaluates whether, based on the totality of the
circumstances, “the political processes leading to nomination or election . . . are
not equally open to participation by members of a 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.”
Id. § 10301(b).
      There are three threshold preconditions that must be satisfied before a
Section 2 violation can be established: (1) the racial group must be “sufficiently
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                                  No. 15-60637
large and geographically compact to constitute a majority in a single-member
district”; (2) the racial group must be “politically cohesive”; and (3) the majority
must “vot[e] sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” League of United Latin Am. Citizens v. Perry
(LULAC v. Perry), 548 U.S. 399, 425 (2006) (quoting Thornburg v. Gingles, 478
U.S. 30, 50–51 (1986)).      Hattiesburg conceded that these three Gingles
preconditions were satisfied, and we therefore do not address them on appeal.
      If the three Gingles preconditions are satisfied, we must “consider the
‘totality of circumstances’ to determine whether members of a racial group
have less opportunity than do other members of the electorate.” LULAC v.
Perry, 548 U.S. at 425–26. In assessing the totality of the circumstances, “the
Court has referred to the Senate Report on the 1982 amendments to the Voting
Rights Act, which identifies factors typically relevant to a § 2 claim[.]” Id. at
426. These so-called “Senate Factors” are as follows:
            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,
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                                  No. 15-60637
            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;
            7. the extent to which members of the minority group
            have been elected to public office in the jurisdiction.
            ....
            [8.] whether there is a significant lack of
            responsiveness on the part of elected officials to the
            particularized needs of the members of the minority
            group[; and]
            [9.] 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 36–37 (quoting S. REP. NO. 97-417, at 28–29 (1982), as
reprinted in 1982 U.S.C.C.A.N. 177, 206–07). “Another relevant consideration
is whether the number of districts in which the minority group forms an
effective majority is roughly proportional to its share of the population in the
relevant area.” LULAC v. Perry, 548 U.S. at 426 (citing Johnson v. De Grandy,
512 U.S. 997, 1000 (1994)). “[T]he existence of racially polarized voting and
the extent to which minorities are elected to public office remain the two most
important factors considered in the totality-of-circumstances inquiry.” Clark
v. Calhoun Cty. (Clark II), 88 F.3d 1393, 1397 (5th Cir. 1996).
      This list of factors is not exhaustive, and “there is no requirement that
any particular number of factors be proved, or that a majority of them point
one way or the other.” Gingles, 478 U.S. at 45 (quoting S. REP. NO. 97-417, at
29). Moreover, “[n]ot every factor will be relevant in every case.” Veasey v.
Abbott, 830 F.3d 216, 246 (5th Cir.) (en banc), petition for cert. filed, No. 16-393
(Sept. 23, 2016). Rather, “the proper assessment of vote dilution claims is
‘peculiarly dependent upon the facts of each case’ and requires ‘an intensely

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local appraisal of the design and impact of the contested electoral
mechanisms.’” Rodriguez, 385 F.3d at 860 (quoting Gingles, 478 U.S. at 79).
      We have agreed that “it will be only the very unusual case in which the
plaintiffs can establish the existence of the three Gingles [preconditions] but
still have failed to establish a violation of § 2 under the totality of
circumstances.” Clark v. Calhoun Cty. (Clark I), 21 F.3d 92, 97 (5th Cir. 1994)
(quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135
(3d Cir. 1993)). Yet the totality of the circumstances inquiry is not an empty
formalism, and satisfying the Gingles preconditions does not necessitate
liability. Clark II, 88 F.3d at 1396–97. “To the contrary, this final inquiry can
be powerful indeed.” Id. at 1397.
      “[I]f a district court uses the correct legal standards, its findings will not
be reversed unless its account was implausible based upon the entirety of the
record or the reviewing court is left with the ‘definite and firm conviction that
a mistake has been committed.’” N.A.A.C.P. v. Fordice, 252 F.3d 361, 365 (5th
Cir. 2001) (quoting Magnolia Bar Ass’n v. Lee, 994 F.2d 1143, 1147 (5th Cir.
1993)). This standard “preserves the benefit of the trial court’s particular
familiarity with the indigenous political reality without endangering the rule
of law.” Gingles, 478 U.S. at 79.
                                         B.
      The district court summarized its findings relating to the totality of the
circumstances as follows:
            1. Hattiesburg has a history of official racial
            discrimination, but all such practices ceased many
            years ago. This factor weighs slightly in favor of
            Plaintiffs.
            2. Voting is highly polarized along racial lines in
            Hattiesburg. Blacks most often vote for blacks, and
            whites most often vote for whites. This factor weighs
            in favor of Plaintiffs.
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                                No. 15-60637
           3. There is no evidence that the majority-vote
           requirement hinders African-American electoral
           opportunity.  This factor weighs in favor of
           Defendants.
           4. Although there exists a substantial socioeconomic
           disparity between Hattiesburg’s African-American
           citizens and its white ones, it does not hinder African-
           Americans’ voting and participation in the City’s
           political process. This factor weighs in favor of
           Defendants.
           5. There is no evidence of racial appeals in
           Hattiesburg’s city elections. This factor weighs in
           favor of Defendants.
           6. No African-American has ever been elected to the
           City Council from Wards 1, 3, or 4. However,
           Hattiesburg’s African-American mayor has enjoyed
           substantial electoral success, and he wields a
           considerable amount of power in the mayor-council
           form of municipal government. This factor weighs
           slightly in favor of Plaintiffs.
           7. The evidence overwhelmingly demonstrates that
           Hattiesburg’s elected officials, including its white City
           Council members, are responsive to the needs of the
           African-American community. This factor weighs in
           favor of Defendants.
           8. The Council Plan furthers the City’s legitimate, non-
           tenuous interests. This factor weighs in favor of
           Defendants.
           9. The number of districts in which African-Americans
           form an effective majority is roughly proportional to
           their share of the City’s population, particularly when
           one considers voting-age population. This factor
           weighs in favor of Defendants.
The district court ultimately concluded that “Hattiesburg’s current ward plan
does not practically hinder African-Americans’ opportunity to participate in
the political process and elect representatives of their choice. The evidence
demonstrates that African-Americans in Hattiesburg enjoy political power in

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                                  No. 15-60637
rough proportion to their share of the voting-age population, and that they
actively exercise such power through the political process.”
                                        C.
                                        1.
       Plaintiffs maintain that the district court incorrectly relied upon the
election of Hattiesburg’s African-American mayor to diminish the significance
of two of the Senate Factors: the extent to which minority group members have
been elected to public office and the extent to which voting is racially polarized.
However, we have approved the use of so-called exogenous elections, see
Rodriguez, 385 F.3d at 860 n.5, although we recognize their limited probative
value, see Clark II, 88 F.3d at 1397 (“[E]xogenous elections . . . are less
probative than elections involving the specific office that is the subject of the
litigation.”).   In accordance with this precedent, the district court
acknowledged that the mayoral election was of limited relevance and even
discounted the significance of the state and national election data. In light of
our acceptance of the limited use of exogenous elections, the district court did
not err in relying on the citywide election of an African-American mayor in its
findings as to these two Senate Factors.
                                        2.
       Plaintiffs also take issue with the district court’s finding regarding the
effects of discrimination on the ability of African Americans to participate in
the political process, highlighting the evidence of socioeconomic disparities
that was presented at trial. However, “proof of socioeconomic disparities and
a history of discrimination ‘without more’” does not demonstrate that a group
of citizens has less opportunity to participate in the political process. Clark II,
88 F.3d at 1399. Indeed, Congress “clearly did not dispense with proof that
participation in the political process is in fact depressed among minority
citizens.” League of United Latin Am. Citizens, Council No. 4434 v. Clements
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                                  No. 15-60637
(LULAC v. Clements), 999 F.2d 831, 867 (5th Cir. 1993) (en banc). As evidence
that participation is depressed, Plaintiffs point to the analysis of their expert,
Allan Lichtman, who concluded that “[s]ocio-economic disadvantages make it
more difficult for African Americans than whites to find qualified candidates
for political office, to fund campaigns, and to must[er] supporters to the polls.”
      Testimony regarding depressed political participation relevant to a local
election must be grounded in a local appraisal of the facts. See Fordice, 252
F.3d at 368 (noting that “to support a favorable finding on [whether
socioeconomic disparity hampers the ability of minorities to participate], [the
plaintiff] bore the burden to demonstrate that the African-American citizens of
Mississippi ‘do not in fact participate to the same extent as other citizens’”
(emphasis added) (quoting LULAC v. Clements, 999 F.2d at 866)); see also
Clark II, 88 F.3d at 1399 (rejecting an expert’s testimony that “individuals of
lower socioeconomic status were not as likely to vote as individuals of higher
socioeconomic status” because it was not based on “an intensely local appraisal
of the social and political climate”). Lichtman’s testimony and report are not
evidence that African Americans in Hattiesburg actually have depressed
political participation, but rather support the theory that socioeconomic
disparity can effect political participation generally. The district court was not
required to accept Lichtman’s testimony on this point. See LULAC v. Clements,
999 F.2d at 867–68 (concluding that Plaintiffs “ha[d] not established that the
effects of past discrimination ha[d] hindered their ability to participate in the
political process” where their expert’s testimony amounted to “support for the
common sense proposition that depressed political participation typically
accompanies poverty and a lack of education[] . . . [and was not] proof that




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                                        No. 15-60637
minority voters in this case failed to participate equally in the political
processes” (emphasis in original)). 3
                                               3.
       Plaintiffs    also    challenge      the     district    court’s    finding   regarding
Hattiesburg’s responsiveness to the African-American community. According
to Plaintiffs, the district court incorrectly relied on the fact that over 90% of
the city council votes were unanimous.                         To Plaintiffs, the relevant
consideration is the percentage of divided city council votes that are divided on
racial lines. Not only do Plaintiffs cite no authority that the responsiveness
factor somehow turns on this metric, but also Plaintiffs fail to address the
plethora of evidence supporting the district court’s finding that Hattiesburg
was responsive. 4 See Westwego Citizens for Better Gov’t v. City of Westwego,
946 F.2d 1109, 1118 (5th Cir. 1991) (“A finding of fact is ‘clearly erroneous’ only
when although there may be evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has
been committed.” (citing Campos v. City of Baytown, 840 F.2d 1240, 1243 (5th
Cir. 1988))). In fact, we have previously noted that this factor has two facets:
“the provisions of municipal services to neighborhoods populated by minority



       3 Indeed, the district court noted that the evidence at trial affirmatively demonstrated
that “although Hattiesburg’s African-American citizens have lower incomes, educational
levels, and standards of living than its white citizens, they participate in the political process
at the same or higher levels.” For example, Hattiesburg’s African-American citizens
historically registered and voted in greater numbers than its white citizens. African
Americans in Hattiesburg also participated in the public hearings about redistricting and the
City Council’s weekly “Citizens Forum.” The district court further noted that African
Americans’ participation in Hattiesburg’s democratic process was “robust.”
       4  The district court discussed Chris Watson’s testimony that he found no racial
disparity in how Hattiesburg funded city services, and that over half of city employees were
African American. It further examined two development projects, the relationship between
city council and the mayor, and the history of the council’s “Citizens Forum.” Indeed, the
district court examined council voting patterns as just one of seven separate considerations
under the responsiveness factor.
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                                  No. 15-60637
group members [and] the distribution of municipal jobs and appointments to
various boards and commissions.” David v. Garrison, 553 F.2d 923, 929 (5th
Cir. 1977); see also Jones v. City of Lubbock, 727 F.2d 364, 381 (5th Cir. 1984)
(examining municipal services, minorities in public employment, and projects
of interest to the minority community). As to both of these facets, the district
court found in favor of Hattiesburg. Finding no error, we will not disrupt the
district court’s finding as to responsiveness.
                                        4.
      Next, Plaintiffs criticize the district court’s finding as to tenuousness. As
to this factor, the district court discussed the testimony of councilmembers that
the primary goal in redistricting was to correct the deviation in the wards’
population with as little change to the ward lines as possible. It also noted the
testimony of Chris Watson that he created the Adopted Plan with the goal of
correcting the population deviation and “causing as little change to the existing
ward lines as possible, causing as few voters to change voting precincts as
possible, maintaining all of the communities of interest, and respecting
traditional geographical boundaries.”        These goals align with traditional
districting principles. See Chen v. City of Houston, 206 F.3d 502, 512 (5th Cir.
2000); see also Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016) (“[W]hen
drawing state and local legislative districts, jurisdictions are permitted to
deviate somewhat from perfect population equality to accommodate traditional
districting objectives, among them, preserving the integrity of political
subdivisions, maintaining communities of interest, and creating geographic
compactness.”). Plaintiffs have failed to establish how this finding was clearly
erroneous.
                                        5.
      The focus of Plaintiffs’ appeal concerns the district court’s treatment of
rough proportionality. The district court ultimately found that “[t]he number
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                                       No. 15-60637
of districts in which African-Americans form an effective majority is roughly
proportional to their share of the City’s population, particularly when one
considers voting-age population. This factor weighs in favor of Defendants.”
In making this finding, the district court noted that, on the facts of the case:
              Strict proportionality is impossible. Regardless of the
              result, one side of this dispute will get forty percent of
              the voting power (2 out of 5 Council positions), while
              the other will get sixty percent (3 out of 5). With the
              current population numbers, there is no way to
              apportion five seats and achieve strict proportionality.
              There will necessarily be an imbalance in one direction
              or the other.
Among other arguments, Plaintiffs contend the district court failed to consider
the possibility of a plan that contained a competitive (or “swing”) third ward.
       The Supreme Court has noted that “‘[p]roportionality’ as the term is used
[in the totality of circumstances analysis] links the number of majority-
minority voting districts to minority members’ share of the relevant
population.” 5 De Grandy, 512 U.S. at 1014 n.11. The proportionality analysis
discussed by the Supreme Court in De Grandy utilized voting-age population,
but the Supreme Court has declined to endorse the use of voting-age population
over total population or vice-versa. See id. at 1014, 1017 n.14. In accordance
with this authority, we have determined that a district court’s use of voting-
age population is not clearly erroneous. Fairley I, 584 F.3d at 674; see also
African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1352–
53 (8th Cir. 1995). Furthermore, the Supreme Court has cautioned that there


       5 Notably, the Court distinguished proportionality as a factor to be considered in the
totality of the circumstances analysis “from the subject of the proportional representation
clause of § 2, which provides that ‘nothing in this section establishes a right to have members
of a protected class elected in numbers equal to their proportion in the population.’” De
Grandy, 512 U.S. at 1014 n.11 (quoting 52 U.S.C. § 10301(b)). “[I]t is important to keep the
concepts of ‘proportionality’ and ‘proportional representation’ distinct.” Solomon v. Liberty
Cty. Comm’rs, 221 F.3d 1218, 1224 n.5 (11th Cir. 2000).
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is no “magic parameter” and that proportionality “must allow for some
deviations.” LULAC v. Perry, 548 U.S. at 438; see also De Grandy, 512 U.S. at
1017 n.14. Indeed, if a city drew district lines with the predominant purpose
of achieving strict racial proportionality, the city would have to defend the
resulting districts under a strict scrutiny analysis. See Miller v. Johnson, 515
U.S. 900, 915–16 (1995); see also Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257, 1267 (2015) (“[A] policy of prioritizing mechanical racial
targets above all other districting criteria (save one-person, one-vote) provides
evidence that race motivated the drawing of particular lines in multiple
districts in the State.”); Bush v. Vera, 517 U.S. 952, 986 (1996) (plurality
opinion) (affirming a district court’s decision declaring Texas’s congressional
redistricting effort unconstitutional because of racial gerrymandering to create
a majority Hispanic district and majority African-American districts); Miller,
515 U.S. at 927–28 (“It takes a shortsighted and unauthorized view of the
Voting Rights Act to invoke that statute, which has played a decisive role in
redressing some of our worst forms of discrimination, to demand the very racial
stereotyping the Fourteenth Amendment forbids.”). “In the end, ‘substantial
proportionality’ is what matters in the totality-of-circumstances analysis.”
Fairley I, 584 F.3d at 674 (citing De Grandy, 512 U.S. at 1015–16).
      Finally, we reject Plaintiffs’ argument that the district court treated
rough proportionality as a safe harbor in contravention of LULAC v. Perry, 548
U.S. at 436. Although the district court gave proportionality great weight, it
also gave significant weight to the fact that African Americans in Hattiesburg
participate in the political process. According to the language of the district
court’s 46-page opinion, proportionality was not, in and of itself, dispositive.
See Villa, 54 F.3d at 1356 (“Although the district court’s opinion focuses heavily
upon proportionality, it addresses the various other factors.”). Moreover, in


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                                 No. 15-60637
accordance with the clear error standard, we will not reweigh the evidence.
Fordice, 252 F.3d at 365.
      With these principles and considerations in mind, we cannot say that the
district court’s finding regarding rough proportionality was clearly erroneous
or the result of legal error.   Rather, the district court properly took into
consideration the local situation in Hattiesburg, including the existence of only
five wards and the voting-age population of the city. Although we might have
reached a different conclusion based on the evidence, that is not the
appropriate test on appeal. See Price, 945 F.2d at 1312.
                                      IV.
      The district court fulfilled its role in conducting an intensely local
appraisal of the facts. It did not commit reversible error, so we AFFIRM.




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                                  No. 15-60637
CARL E. STEWART, Chief Judge, dissenting:
       Unlike most § 2 appeals, this case does not turn on the district court’s
factual determinations, as the facts are virtually undisputed. Rather, this case
concerns the trial court’s application of precedent in its pivotal “totality of the
circumstances” analysis. Thus, my departure from the panel majority is based
not on the district court’s factual determinations but rather the manner in
which the court applied the controlling legal standards to these facts. The
majority opinion affirms the district court’s judgment based on its factual
findings and determines that the court’s totality of the circumstances analysis
was legally tenable. Because I am convinced a deeper analysis is required and
that, under such an analysis, Hattiesburg’s electoral scheme violates the
Voting Rights Act, I respectfully dissent.
      “The essence of a § 2 claim is that a certain electoral law, practice, or
structure interacts with social and historical conditions to cause an inequality
in the opportunities enjoyed by black and white voters to elect their preferred
representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986). The totality of
the circumstances test is a functional appraisal of whether “minorities have
been denied an ‘equal opportunity’ to participate in the political process and to
elect representatives of their choice.” Abrams v. Johnson, 521 U.S. 74, 91
(1997) (quoting 42 U.S.C. § 1973(b)).        “The need for such ‘totality’ review
springs from the demonstrated ingenuity of state and local governments in
hobbling minority voting power, a point recognized by Congress when it
amended the statute in 1982.” Johnson v. De Grandy, 512 U.S. 997, 1018
(1994) (internal citations omitted).
      Although district courts are afforded considerable discretion in weighing
the totality of the circumstances so that they may conduct “an intensely local
appraisal of the design and the impact of the contested electoral mechanisms,”
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                                  No. 15-60637
Gingles, 478 U.S. at 79 (quotation omitted), U.S. Supreme Court and Fifth
Circuit precedent has established certain base principles. First, we follow
Clark v. Calhoun Cty. (Clark I)’s lodestar rule that “it will be only the very
unusual case in which the plaintiffs can establish the existence of the three
Gingles factors but still have failed to establish a violation of § 2 under the
totality of the circumstances.” 21 F.3d 92, 97 (5th Cir. 1994) (citation omitted);
see also NAACP v. Fordice, 252 F.3d 361, 374 (5th Cir. 2001); Teague v. Attala
Cty., 92 F.3d 283, 293 (5th Cir. 1996). “In such cases, the district court must
explain with particularity” why it has reached such a conclusion. Clark I, 21
F.3d at 97 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d
1103, 1135 (3d Cir. 1993)). Second, courts have held that the most important
Senate Factors are “the extent to which minority group members have been
elected to public office in the jurisdiction” and the “extent to which voting in
the elections of the state or political subdivision is racially polarized.” Gingles,
478 U.S. at 48 n.15.     Third, exogenous elections “are less probative than
elections involving the specific office that is the subject of litigation.” Clark v.
Calhoun Cty. (Clark II), 88 F.3d 1393, 1397 (5th Cir. 1996). And, fourth,
“[p]roportionality is not a safe harbor,” and its presence does not “prove the
absence of dilution.” De Grandy, 512 U.S. at 1026 (O’Connor, J., concurring).
       Here, both parties stipulated that the Gingles preconditions had been
met.    Thus, the district court should have started its inquiry from the
established benchmark that a § 2 violation had occurred and then “explain[ed]
with particularity” why this was the “very unusual” case where the plaintiffs
failed to demonstrate a violation under the totality of the circumstances results
test. See Clark I, 21 F.3d at 97. Instead, the district court inverted the
analysis: it enunciated the Clark I rule, disregarded it, and proceeded directly


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                                         No. 15-60637
to the results test, placing the burden on the plaintiffs to establish that the
factual evidence amounted to a § 2 violation. This was legal error.
       Moreover, there is insufficient probative evidence in the record to justify
a deviation from the Clark I benchmark; thus, the district court’s conclusion
that no § 2 violation existed despite the presence of all three Gingles
preconditions—a determination courts have made in only a handful of cases
nationwide—was also erroneous.                The few courts that have found no § 2
violation despite the fact that the Gingles factors were satisfied or assumed did
so where, for example, the record did not demonstrate “a history of persistent
discrimination reflected in the larger society” or that “bloc-voting behavior
portend[ed] any dilutive effect.” See NAACP v. City of Niagara Falls, 65 F.3d
1002, 1023 (2d Cir. 1995). Courts have similarly found no § 2 violation where
the adopted system arguably increased the opportunity for minority voters to
elect representatives of their choice or where minority voters had achieved
proportional representation within that system. See Jenkins v. Manning, 116
F.3d 685, 692, 696 (3d Cir. 1997); Niagara Falls, 65 F.3d at 1022; Little Rock
Sch. Dist. v. Pulaski Cty. Special Sch. Dist. #1, 56 F.3d 904, 911–12 (8th Cir.
1995).     The Fifth Circuit determined that a case was the “very unusual”
exception where only one, non-predominant Senate Factor weighed in favor of
the plaintiffs, and all other factors weighed in favor of the defendants. See
Fordice, 252 F.3d at 374. 1




       1 In Fordice, this court stated: “We find that the district court met th[e] requirement
[to explain with particularity why it concluded that the contested electoral districts did not
violate § 2] . . . . In summary, the district court found that, although Mississippi has an
undeniable history of official discrimination . . . [the plaintiffs] failed to demonstrate that this
reality hindered the ability of Mississippi’s African-American citizens to participate
effectively in the state’s political process.” Fordice, 252 F.3d at 374.
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                                     No. 15-60637
      None of these situations is present here. Rather, the district court found,
inter alia, that Hattiesburg “has a long, well-established history of official
discrimination against African-Americans for the purpose of limiting their
participation in the democratic process”; that no black candidate has ever been
elected to the Hattiesburg City Council from a majority-white district; and
that, despite black citizens comprising over fifty percent of Hattiesburg’s
population, black candidates have never secured more than two seats on the
five-seat City Council. Additionally, here—unlike in any of the previously cited
cases—both predominant Senate Factors weighed in favor of the plaintiffs.
Thus, the district court’s judgment, if sustained by the panel majority, will be
the outlier case where no § 2 violation exists even though the three Gingles
preconditions were indisputably satisfied and the court determined (1) that
voting was highly racially polarized and (2) that members of the minority
group struggled to be elected to public office in the jurisdiction. 2
      Yet, the district court never explained, with the requisite particularity
or otherwise, how it reached this exceptional result. See Clark I, 21 F.3d at 97
(citation omitted). Instead, after determining that the Gingles preconditions
were satisfied and three of the Senate Factors—including the two predominant
factors—weighed in the plaintiffs’ favor, the district court summarized its
conclusion as follows:
      After spending a great deal of time considering the evidence, the
      Court concludes that Hattiesburg’s current ward plan does not
      practically hinder African-Americans’ opportunity to participate in
      the political process and elect representatives of their choice. The
      evidence demonstrates that African-Americans in Hattiesburg

      2  The Supreme Court identified these Senate Factors as the “most important” in order
to “effectuate[] the intent of Congress.” See Gingles, 478 U.S. at 48 n.15. Diminishing the
importance of these key factors without a well-grounded reason therefore runs afoul of § 2
and its intended purpose.
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                                       No. 15-60637
       enjoy political power in rough proportion to their share of the
       voting-age population, and that they actively exercise such power
       through the political process.
       For these reasons, the Court finds that Hattiesburg, Mississippi’s
       current ward plan does not dilute the voting or political power of
       African-American citizens in violation of Section 2 of the Voting
       Rights Act.

       Although the record is unclear as to how much weight the district court
assigned it, the language of the district court’s opinion strongly evinces that
the repeated success of black mayor Johnny Dupree in exogenous mayoral
elections was an essential, if not dispositive, consideration in the court’s
determination that no § 2 violation existed. For example, in assessing the
extent to which minority group members have been elected to public office in
the jurisdiction—one of the predominant Senate Factors—the district court
“note[d] that, as mayor, Dupree wields considerable power.” 3 Thus, although
the fact that no black candidate had ever been elected to the City Council from
Wards 1, 3, or 4 “tilt[ed] this factor in Plaintiffs’ favor,” the court ultimately
concluded that “that fact is mitigated by Mayor Dupree’s success in citywide



       3 The court explained, for instance, that Mayor Dupree “enjoys superintending control
of all the offices and affairs of the municipality,” “supervise[s] all of the departments of the
municipal government,” must approve any ordinance passed by the City Council (although
the City Council can override his veto with a two-thirds vote), and “may attend meetings of
the council and take part in [its] discussions” (internal quotation marks omitted).

       However, it is also clear that Mayor Dupree’s power is limited and that Hattiesburg’s
electoral scheme has thwarted the interests of the black community on matters of vital
importance. Although the district court noted that between October 2011 and September
2014, 91.2% of the City Council’s votes were unanimous, black councilmembers have been
unable to prevail on issues of particular concern to the black community. For example, votes
on the adoption of the redistricting plan currently in dispute and a proposed property tax
increase to meet the school board’s funding request (over 90% of the students in the
Hattiesburg Public School District are black) broke down along racial lines, with the result
that black councilmembers were outvoted.
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                                      No. 15-60637
elections.” 4   Additionally, in analyzing the extent of racial polarization in
Hattiesburg—the other key Senate Factor—the district court stated that it
“[did] not accept Plaintiffs’ argument that voters are polarized at the
‘mathematical maximum’ level,” because a black candidate had won the 2013
citywide mayoral election. Further, despite its disclaimer to the contrary, the
district court considered the exogenous mayoral elections in concluding that
the effects of Mississippi’s past discrimination do not hinder black citizens’
ability to participate in the political process today. According to the district
court, black citizens’ ability to elect a black mayor in four consecutive citywide
elections provides “evidence of African-Americans’ robust participation in
Hattiesburg’s democratic process.” This comparison, however, is inapposite.
       Although the district court was permitted by precedent to consider the
results of the exogenous mayor election in its analysis, the court was not
permitted to use these results to fatally diminish the impact of the
predominant Senate Factors or otherwise tilt the balance in favor of the
defendants where the court articulated no other compelling reason for finding
that no § 2 violation existed. See Clark II, 88 F.3d at 1397 (exogenous elections
“are less probative than elections involving the specific office that is the subject
of litigation”). Thus, the district court’s reliance on Mayor Dupree’s electoral
success throughout its totality of the circumstances analysis was improper and
legally erroneous.




       4 Although the district court focused on Mayor Dupree’s “considerable power” in its
analysis of this Senate Factor, the court cites no authority—nor does any appear to exist—
that such a consideration is part of the inquiry into “the extent to which minority group
members have been elected to public office in the jurisdiction.” See Gingles, 478 U.S. at 48
n.15.
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                                    No. 15-60637
      The language of the district court’s opinion also evinces that its finding
that the number of majority-black districts is “roughly proportional” to black
citizens’ share of the voting-age population may have impermissibly affected
the outcome of the court’s analysis. Not only is proportionality “not a safe
harbor,” see De Grandy, 512 U.S. at 1026 (O’Connor, J., concurring)
(“[p]roportionality is not a safe harbor,” and its presence does not “prove the
absence of dilution”), but the court’s proportionality analysis itself was flawed.
The district court determined that black citizens, who comprise 53.04% of
Hattiesburg’s total population and 47.95% of its voting-age population but
have 40% representation on the City Council, enjoyed electoral success that
was “roughly proportional” to their share of the population. 5 The court stated
that because “[s]trict proportionality is impossible,” there would “necessarily
be an imbalance in one direction or the other.” It explained that it “need not
reject one roughly proportional plan because there exists another which may
be slightly more roughly proportional” and asserted that the plaintiffs were
seeking to “maximize African-American electoral opportunity.”                 For this
reason, the district court determined that the proportionality factor weighed
in favor of the defendants.
      However, the court failed to consider that the City Council was not
limited to creating either three majority-black and two majority-white wards
or three majority-white and two majority-black wards.               Rather, the City
Council was also presented with the option of creating two majority-black
wards, two majority-white wards, and one equal opportunity swing ward. This
option would also have been more proportional than the plan ultimately



      5 By contrast, white citizens make up 40.48% of Hattiesburg’s total population and
45.98% of its voting-age population but have 60% representation on the City Council.
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                                  No. 15-60637
adopted by the city. While the district court may be correct that Hattiesburg
was not legally required to choose the most proportional plan, that the court
gave the proportionality factor, at minimum, a significant role in its totality of
the circumstances analysis where the city chose the least proportional plan out
of several available options was anomalous at best and legally incorrect at
worst.
      Thus, although the district court did not explain on what basis it
determined that the totality of the circumstances outweighed the satisfaction
of the Gingles factors and the predominant Senate Factors, that the results of
the exogenous mayoral election shifted the balance in favor of the defendants
cannot be the reason for this conclusion. See Clark II, 88 F.3d at 1397. Nor
can the court’s finding of “rough” proportionality have changed the outcome of
the analysis. See De Grandy, 512 U.S. at 1026 (O’Connor, J., concurring).
Either of these rationales would be legally impermissible. Absent any other
explanation for why the district court strayed from the Clark I benchmark, we
are left with the strong probability that the district court misapplied the legal
standards.
      In my view, the district court’s decision unnecessarily weakens Clark I’s
benchmark guidance that “it will be only the very unusual case in which the
plaintiffs can establish the existence of the three Gingles factors but still have
failed to establish a violation of § 2 under the totality of the circumstances.”
Clark I, 21 F.3d at 97 (citation omitted). If no § 2 violation exists where the
Gingles preconditions were indisputably met; both predominant Senate
Factors were satisfied; and the trial court acknowledged that the municipality
has a long, extensive history of purposeful discrimination against black voters
to limit their participation in the political process, that no black City Council
candidate has ever been elected from a majority-white ward, and that black
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                                  No. 15-60637
citizens have never achieved proportional representation under the current
electoral scheme, virtually no case will ever exist where a § 2 violation is found
in this context. For this reason, I respectfully dissent.




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