Large v. Fremont Cnty., 10–8071.

670 F.3d 1133

James E. LARGE; Gary Collins; Emma Lucille McAdams; Patricia Bergie; Pete Calhoun, Plaintiffs–Appellees,

v.FREMONT COUNTY, WYOMING; Doug Thompson, Jane Adamson, Pat Hickerson, in their official capacity as Fremont County Commissioners; Julie Freese, in her official capacity as Fremont County Court Clerk, Defendants–Appellants.

No. 10–8071.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2012.

J. Scott Detamore of Mountain States Legal Foundation, Lakewood, CO, for Defendants–Appellants.

Laughlin McDonald of American Civil Liberties Union Foundation, Inc., Atlanta, GA (Andrew W. Baldwin, Berthenia Crocker, and Janet Millard of Baldwin, Crocker & Rudd, P.C., Lander, WY, with him on the brief), for Plaintiffs–Appellees.

Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

We are called upon in this appeal to decide what level of deference—if any—must be afforded to a local governmental entity's proffered plan to remedy an adjudged violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 (“Section 2”), when that proposed remedy unnecessarily conflicts with state law. We believe that when such plans in effectuating their remedial purposes do not adhere as closely as possible to the contours of the governing state law, they are not eligible for the deference customarily afforded legislative plans. Consequently, in this case, we affirm the district court's order that rejected the Fremont County Board of Commissioners' proposed remedial plan, and hold, under settled Supreme Court precedent that strongly favors single-member districts in court-ordered plans, that the district court did not abuse its discretion in fashioning a remedial plan solely consisting of single-member districts.

I. BACKGROUND

On October 5, 2005, residents of Fremont County, Wyoming, who are members of the Eastern Shoshone and Northern Arapaho Tribes (“Appellees”), filed suit against Fremont County (the “County”) ¹ alleging that its at-large system for electing commissioners to the Fremont County Board of Commissioners (the “Board”) violated Section 2 by preventing the politically cohesive Native American vote from electing a candidate of their choice due to racially polarized white-bloc voting. Although Native Americans made up 20.94% of the countywide population in 2000,² with a vast majority of these Native Americans living on the Wind River Indian Reservation, they had largely been unsuccessful in attaining representation on the five-member board, either through the election of a Native American or a Native American-preferred candidate. See Large, 709 F.Supp.2d at 1221. Notably, as of 2010, there had been eight Native American candidates for positions on the Board, with only one ever having been elected. See id. at 1221.

Following a nine-day bench trial, the district court entered judgment against the County, holding that the at-large election scheme diluted the Native American vote, and thus violated Section 2. See id. at 1231. The Board was subsequently ordered to present a remedial plan to cure the violation, which it did on June 25, 2010.

The Board's proposed plan—the subject of this appeal—consists of two districts: one single-seat majority Native American district, representing 19.2% of the county's population, and one four-seat majority white district encompassing the rest of the county and representing the remaining approximately 80.8% of the county population.³ Under this plan, the commissioners would be elected for four-year staggered terms. Candidates from the majority Native American district would be required to reside in the district and could only be voted on by members of the district. Meanwhile, the four remaining seats allocated to the majority white district would be elected by the remaining populace using an at-large scheme, with two board members elected every other year.

Of some importance to this appeal is the fact that this “hybrid” election scheme is not authorized under Wyoming law. See Wyo. Stat. Ann. § 18–3–501 (2010). More specifically, Wyoming law envisions only one of two scenarios for county-commissioner elections: at-large voting for all the commissioner seats, or the creation of five single-member districts where each commissioner “shall reside in and represent the district from which he is elected by the electors of that district.” Id. § 18–3–501(h).⁴

After entertaining oral arguments regarding the sufficiency of this remedial plan, the district court rejected the Board's proposal in favor of a plan with five single-member districts, as initially proposed by the Appellees. The district court acknowledged that “redistricting is [primarily] a legislative task.” Aplt.App. at 208 (Order on Remedial Plan, filed Aug. 10, 2010). Nevertheless, the court concluded that adopting the plan was inappropriate in light of the fact that the proposed plan violated Wyoming state law and also failed to cure the harm that it identified in the original voting scheme.

As the court explained, although “the Board is free to exercise its legislative judgment in proposing a plan to replace that stricken by the Court, ... when doing so, and insofar as possible, the Board is not free to disregard state law.” Id. at 212 (emphasis added). Given that Wyoming law did not anticipate the creation of a hybrid-district scheme, the court found that the Board's plan “do[es] not withstand scrutiny as [it is] not consistent with principles governing state law.” Id. at 216. Moreover, the district court found that the Board, in crafting such an overwhelmingly Native American district (one that, in essence, simply surrounded the Wind River Indian Reservation), presented a plan that “preserve[d] the racial separation in the county” and “perpetuate[d] the separation, isolation, and racial polarization in the County, guaranteeing that the non-Indian majority continues to cancel out the voting strength of the minority.” Id. In addition, the district court found it troubling that the proposed hybrid system allowed members of the white majority to vote for four commissioners as opposed to only one, which is “different from that opportunity for voting afforded the Native American population.” Id. at 218. In sum, the court concluded that the Board's “proposed plan[ ] suffer[s] from the same deficiencies [found in the original, at-large election scheme] and tend[s] to perpetuate the isolation and polarization that have existed in the past in Fremont County.” Id.

Following entry of the district court's order, this appeal ensued. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II. ANALYSIS

Section 2 proscribes any “voting qualification or prerequisite to voting or standard, practice, or procedure ... imposed or applied by any State or political subdivision ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color....” 42 U.S.C. § 1973(a).⁵ Chief among the ills Section 2 seeks to address is voter dilution, which occurs when a political entity “enact [s] a particular voting scheme ... [which] ‘minimize[s] or cancel[s] out the voting potential of racial or ethnic minorities.’ ” Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (quoting Mobile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)); see 42 U.S.C. § 1973(b) (stating that a Section 2 violation occurs “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a)”); Thornburg v. Gingles, 478 U.S. 30, 47–48, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (“This Court has long recognized that multimember districts and at-large voting schemes may operate to minimize or cancel out the voting strength of racial minorities in the voting population.” (alteration omitted) (quoting Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966)) (internal quotation marks omitted)); Simmons v. Galvin, 575 F.3d 24, 28 n. 2 (1st Cir.2009) (“Vote dilution claims comprise the vast majority of § 2 claims.”). Where, as here, a Section 2 violation has been found, based on a claim of voter dilution, the remedy is often some form of redistricting to rectify those factors that have resulted in the prohibited inequity. See, e.g., Sanchez v. Colorado, 97 F.3d 1303, 1329 (10th Cir.1996) (ordering, in a case involving a Section 2 violation, that Colorado “implement a remedial plan of redistricting consistent with ... the dictates of § 2”); see also Stephen Ansolabehere, Nathaniel Persily & Charles Stewart III, Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act, 123 Harv. L.Rev. 1385, 1391 (2010) ( “Section 2 litigation is almost exclusively concerned with vote dilution by way of at-large systems of representation or redistricting plans. When successful, it usually leads courts to create majority-minority districts that give minority voters a greater chance of electing their preferred candidates.” (footnotes omitted)).

Although in such circumstances the catalyst for redistricting is a federal-court order, the Supreme Court has routinely cautioned that “redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt.” Wise v. Lipscomb, 437 U.S. 535, 539, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) (plurality) (White, J.); see Connor v. Finch, 431 U.S. 407, 414–15, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); White v. Weiser, 412 U.S. 783, 794–95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).⁶ Consequently, “[w]hen a federal court declares an existing apportionment scheme unconstitutional, it is ... appropriate, whenever practicable, to afford a reasonable opportunity...