                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

            __________

           No. 97-1364
           ___________

Shirley M. Harvell; Emmanuel Lofton,     *
Reverend; Hattie Middlebrook; Mary       *
Alice Jones; Jacquelin Henton,           *
                                         *
              Appellees,                 *
                                         *
              v.                         *
                                         *
Blytheville School District No. 5, a     *
Public Body Corporate; William           *
Tomlinson, Individually and as Board     *
Member; Norvell Moore, Individually *
and as Board Member; William Sullivan, *     Appeals from the United States
Individually and as Board Member;        *   District Court for the
Harold Sudbury, Jr., Individually and    *   Eastern District of Arkansas
as Board Member; Helen Nunn, Dr.,        *
Individually and as Board Member;        *
Karen Fraser, Individually and as Board *
Member; Steve Littrell, Individually and *
as Board Member; William Stovall, III, *
Individually and as Board Member;        *
Blytheville School District No. 5,       *
Board of Directors, also known as Bill *
Stovall; Frank Ladd, Dr., Individually   *
and in his official capacity as          *
Superintendent of Blytheville School     *
District No. 5,                          *
                                         *
              Appellants.                *
            __________

           No. 97-1448
           ___________

Shirley M. Harvell; Emmanuel Lofton,     *
Reverend; Hattie Middlebrook; Mary       *
Alice Jones; Jacquelin Henton,           *
                                         *
              Appellants,                *
                                         *
              v.                         *
                                         *
Blytheville School District No. 5, a     *
Public Body Corporate; William           *
Tomlinson, Individually and as Board     *
Member; Norvell Moore, Individually *
and as Board Member; William Sullivan, *
Individually and as Board Member;        *
Harold Sudbury, Jr., Individually and    *
as Board Member; Helen Nunn, Dr.,        *
Individually and as Board Member;        *
Karen Fraser, Individually and as Board *
Member; Steve Littrell, Individually and *
as Board Member; William Stovall, III, *
also known as Bill Stovall, Individually *
and as Board Member; Blytheville         *
School District No. 5, Board of          *
Directors; Frank Ladd, Dr., Individually *
and in his official capacity as          *
Superintendent of Blytheville School     *
District No. 5,                          *
                                         *
              Appellees.                 *




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                                    ___________

                                Submitted: June 9, 1997

                                    Filed: September 25, 1997
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
      WOLLMAN, Circuit Judge.
                              ___________


WOLLMAN, Circuit Judge.

       In Harvell v. Blytheville School District #5, 71 F.3d 1382 (8th Cir. 1995) (en
banc), cert. denied, 116 S. Ct. 1876 (1996), we held that the plaintiffs had proved that
the at-large majority-vote electoral scheme implemented in 1987 for the Blytheville
school board violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (the Act).
We remanded the case to the district court1 for entry of an appropriate remedial decree.
Id. at 1391. The school district appeals from the decree entered on remand. The
plaintiffs have cross-appealed from the district court’s refusal to order a special
election. We affirm.

       On remand, the plaintiffs and the school district each proposed remedial
redistricting plans. According to 1990 census data, blacks account for 37.5% of
Blytheville’s population; the total black voting age population (BVAP) of the district
is 31.04%. The school district proposed the “5-2 plan,” which called for a seven-
member school board consisting of five representatives elected from single-member




      1
        The Honorable Steven M. Reasoner, Chief Judge, United States District Court
for the Eastern District of Arkansas.

                                          -3-
districts and two members elected at-large.2 Under the 5-2 plan, two of the single-
member zones would have a BVAP of greater than 60%. The plaintiffs proposed the
“Lynch plan,”3 which called for an eight-member school board consisting of
representatives elected from eight single-member districts. Under the Lynch plan, three
of the districts would be majority-minority districts, having a BVAP of 57.3% or
higher.

        We concluded our en banc opinion by cautioning that the district court should
“steer clear of the type of racial gerrymandering proscribed in Miller [v. Johnson, 115
S. Ct. 2475 (1995)], while keeping in mind the need to vindicate the rights of the
minority voters,” 71 F.3d at 1391. Referring to this admonition, the district court
indicated that it felt compelled to implement the Lynch plan. The district court
expressed its concern that race was the only reason for the redrawing of the districts.
The court also stated that it read our en banc opinion as prohibiting the adoption of any
election scheme composed in whole or in part of an at-large voting component. The
court went on to conclude, however, that the Lynch plan did not represent an exercise
in racial gerrymandering, finding that the districts created thereunder were compact in
nature and followed natural boundaries, streets, and neighborhoods. Accordingly, the
court ordered that the Lynch plan be implemented as soon as practicable.

      A state’s redistricting responsibility “should be accorded primacy to the extent
possible when a federal court exercises remedial power.” Lawyer v. Department of
Justice, 117 S. Ct. 2186, 2192-93 (1997). See also Abrams v. Johnson, 117 S. Ct.
1925, 1933 (1997); Upham v. Seamon, 456 U.S. 37, 42-43 (1982). The district court
need not defer to a state-proposed remedial plan, however, if the plan does not

      2
       This plan was prepared in accordance with Ark. Code Ann. § 6-13-
631(b)(1)(A). See Harvell, 71 F.3d at 1390 n.10.
      3
        Named for James Lynch, who prepared the eight-member plan on behalf of the
plaintiffs.

                                          -4-
completely remedy the violation or if the plan itself violates section 2 of the Act.
Williams v. City of Texarkana, Ark., 32 F.3d 1265, 1268 (8th Cir. 1994).

       Although we agree with the school district that the district court erred in reading
our en banc opinion as foreclosing any election plan that included an at-large voting
component, we do not agree that this misapprehension vitiates the district court’s
decision to adopt the Lynch plan. The district court acknowledged its duty to adopt a
plan that would steer clear of racial gerrymandering and yet would vindicate the rights
of the minority voters within the Blytheville School District. Given the history of
voting practices within the school district, we cannot say that the district court erred in
finding that the adoption of the Lynch plan was necessary to accomplish both goals.

       The school district acknowledges that proportionality is not a safe harbor, see
Johnson v. De Grandy, 512 U.S. 997, 1017-1021 (1994), but argues that the
proportionality created by the two majority-minority districts in its proposed 5-2 plan
alters the totality of the circumstances to such an extent that the inclusion of two at-
large districts does not violate Section 2 of the Act. The two majority-minority districts
would represent 28.5% of the school board, which is less than the BVAP of 31.04%
and the total black population of 37.5%. Even assuming that 28.5% of the school
board is relatively proportional to 31.04% BVAP, such proportionality does not
preclude a finding of a Section 2 violation. See Harvell, 71 F.3d at 1388. We
previously found racially polarized voting in Blytheville and the lack of a legally
significant white cross-over vote, and we noted that the previous at-large election
scheme removed the potential for minority-preferred candidates winning on the basis
of a split white vote. See id. at 1387, 1389-90. The inability of black voters to affect
the at-large elections under the 5-2 plan is no different from what it was under the
previous electoral scheme. The 5-2 plan thus creates an inequality in opportunity for
black voters to “participate in the political process and to elect representatives of their
choice.” 42 U.S.C. §1973(b); see Thornburg v. Gingles, 478 U.S. 30, 47 (1986);
Harvell, 71 F.3d at 1389-91.

                                           -5-
      The school district alleges that the Lynch plan violates the Equal Protection
Clause because race was the overriding criterion used in drawing the eight district
boundaries. See Shaw v. Reno, 509 U.S. 630, 649 (1993).

        To prove such a claim, it must be shown “either through circumstantial evidence
of a district’s shape and demographics or more direct evidence going to legislative
purpose, that race was the predominant factor” motivating the placement of “a
significant number of voters within or without a particular district.” Miller, 115 S. Ct.
at 2488. Strict scrutiny does not apply, however, merely because majority-minority
districts were intentionally created or the district lines were drawn with consciousness
of race. See Bush v. Vera, 116 S. Ct. 1941, 1951 (1996) (plurality opinion). There is
a distinction between “being aware of racial considerations and being motivated by
them,” and the awareness of race does not mean that it predominated in the redistricting
process. Miller, 115 S. Ct. at 2488. Where traditional districting principles such as
compactness, contiguity, and respect for political subdivisions or communities with
actual shared interests have not been subordinated to race, there is no equal protection
violation. See id..

        As indicated above, the district court found that the districts created under the
Lynch plan had not been “drawn in such a bizarre manner as to constitute the type of
racial gerrymandering proscribed in Miller . . . .” The court found that the districts “are
generally compact in nature and follow natural boundaries, streets, and neighborhoods.”

       Our review of the district boundaries established by the Lynch plan satisfies us
that the district court did not err in making these findings. The districts do not resemble
the bizarre shapes that were present in other cases. See Shaw, 509 U.S. at 635-36;
Miller, 115 S. Ct. at 2484, 2496; Bush, 116 S. Ct. at 1965-67. The districts do not split
voting precincts or other political units. Cf. Bush, 116 S. Ct. at 1959; Miller, 115 S. Ct.
at 2484; Shaw, 509 U.S. at 636. The Lynch plan was drawn against a background of
no pre-existing boundary lines, because there never before had been districts in


                                           -6-
Blytheville. Lynch testified that there were “four or five criteria that I try to make fit
in any kind of plan, and it’s tedious work, but it can be done.” He testified that those
criteria included developing majority black districts and avoiding dilution of the black
vote, complying with the one-person one-vote requirement, maintaining compactness
in districts, using existing natural and political boundaries, and districting voters in
accordance with the organization of the county clerk’s voter registration records.

       It is clear beyond question that the Lynch plan takes race into account. The plan
does not reject traditional, non-racial districting criteria, however. The circumstances
surrounding the drawing of the Lynch plan are not akin to the situations in Miller and
Shaw v. Hunt, 116 S. Ct. 1894 (1996), where the pressure from the Department of
Justice to maximize majority-minority districts (i.e. race) was the sole reason for
drawing the boundary lines as they were, or the situation in Bush, where, although
mixed motives were involved, race predominated over traditional districting criteria.
See Miller, 115 S. Ct. at 2489-90; Shaw, 116 S. Ct. at 1901; Bush, 116 S. Ct. at 1952-
60. This case is also unlike Abrams, in which the district court, in the course of
devising a remedial plan, found that a second majority-minority district could not be
drawn unless race was the only factor used in drawing district lines. See Abrams, 117
S. Ct. at 1934. As we pointed out in our en banc opinion, the black community in
Blytheville is compact and politically cohesive and the minority voters vote as a bloc.
See Harvell, 71 F.3d at 1386-87. In creating majority-minority districts, the Lynch plan
thus preserves communities with actual shared interests. Cf. Miller, 115 S. Ct. at 2490
(lack of actual shared interests).

      We conclude, therefore, that the district court did not err in adopting the Lynch
plan and in rejecting the school district’s 5-2 plan.

       The plaintiffs have cross-appealed, challenging the district court’s refusal to order
a special election and generally challenging the pace of implementation. Because no
stay of the district court’s order has been issued, the September 1997 school board


                                            -7-
elections will be held under the terms of the district court’s order. Thus the cross-
appeal is essentially moot.

      The judgment is affirmed.

      A true copy.

            Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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