Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Bryant

United States Court of Appeals, Fifth Circuit

September 3, 2019

JOSEPH THOMAS; VERNON AYERS; MELVIN LAWSON, Plaintiffs-Appellees
v.
PHIL BRYANT, Governor of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners; DELBERT HOSEMANN, Secretary of State of the State of Mississippi, all in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants-Appellants.

          Appeal from the United States District Court for the Southern District of Mississippi

          Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge.

         Section 2 of the Voting Rights Act of 1965, as amended in 1982, prohibits state and political subdivisions from redistricting "in a manner which results" in members of a protected class of racial and language minorities "hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."[1] Plaintiffs challenged the legislative boundaries for Mississippi State Senate District 22, arguing that the district, as drawn in 2012, diluted African-American voting strength. Following a two-day bench trial, the district court concluded that the evidence established a § 2 violation under the standards set forth in Thornburg v. Gingles.[2] We AFFIRM the district court's judgment declaring District 22 violative of § 2 of the Voting Rights Act. The State's appeal of the district court's judgment granting injunctive relief is DISMISSED AS MOOT.

         I.

         A.

         At least once every decade, the State of Mississippi redraws its legislative boundaries based in part on the decennial census. In 2012, the Mississippi Legislature realigned the contours of Senate District 22 to stretch over 100 miles, from north to south. The district then consisted of all or part of five counties in the Mississippi Delta-Bolivar, Humphreys, Sharkey, Washington, and Yazoo-as well as parts of one non-Delta county, Madison.[3]Since early times, concentrations of African Americans have occupied the Delta area, which has a unique history and character.[4]

         District 22 contains some very poor areas predominantly populated by African Americans. Based on the 2012 redistricting plan, the black voting age population (BVAP) in District 22 was 50.8%. In this district, almost 41.2% of African Americans lived in poverty; their median household income was $23, 741. But the district also contained some very wealthy areas, mainly in the southern portion of Madison County, inhabited primarily by white residents. The poverty rate for white residents in District 22 was approximately 8.8%; their median household income was $66, 736.

         Since 2003, Senate District 22 has been represented by Eugene Clark, who is white. The candidate, whether African-American or not, preferred by African-American voters has not occupied this office in that time.[5]

         B.

         On July 9, 2018, three African-American voters of District 22, Joseph Thomas, Melvin Lawson, and Vernon Ayers, filed a complaint under § 2 of the Voting Rights Act (VRA) against Mississippi Governor Phil Bryant, Secretary of State Delbert Hosemann, and Attorney General Jim Hood, who constitute the State Board of Election Commissioners (collectively, the "State"). Plaintiffs alleged that the boundary lines of District 22, as drawn under the 2012 legislative redistricting plan, diluted African-American voting strength and deprived African-American voters of an equal opportunity to elect candidates of their choice. According to Plaintiffs, the Mississippi Legislature's "addition of th[e] predominantly white areas from Madison County . . . limit[ed] the district's black voting age population to the present level of 50.8%, which combine[d] with white bloc voting and lower African-American turnout . . . dilute[d] African-American voting strength in the district." Plaintiffs contended that "[p]ast elections in Mississippi, particularly in District 22 and its surrounding area, have been marked by a clear pattern of racially polarized voting." Consequently, as Plaintiffs averred, no African-American or African-American-preferred candidate has represented District 22 in its current or previous form, including in 2015, when Plaintiff Thomas ran for the seat but lost, despite garnering a vast majority of African-American votes.

         In their complaint, Plaintiffs pointed out that while the State of Mississippi is at least 35% African-American in voting age population, only 25% of the members of the Mississippi Senate are African-American. They maintained that though African Americans made up a majority of the voting age population in District 22, that majority lacked "real electoral opportunity" under Supreme Court precedent interpreting § 2 of the VRA. Plaintiffs contended that District 22 could be redrawn to cure the § 2 violation with changes to only one or two adjacent districts; that the resulting districts would be more compact than in the 2012 plan; and that the alteration would not create Voting Rights Act violations in any other districts. Plaintiffs therefore asked the district court to declare that the 2012 districting plan violated § 2 of the VRA and enjoin the State from conducting any future elections in District 22-including the upcoming November 2019 election-under that plan.

         C.

         The district court conducted a bench trial from February 6-7, 2019. Under 28 U.S.C. § 2284(a), the State had requested a district court of three judges to hear the case, [6] but the court found that provision inapplicable to a standalone § 2 statutory claim.

         At trial, Plaintiffs provided demographic analyses and results from elections in 2003, 2007, 2011, and 2015, which showed that Clark (and white-preferred candidates for statewide offices, e.g., Governor and Secretary of State) consistently beat out candidates preferred by African Americans in District 22. Utilizing ecological inference (EI), Plaintiffs' expert, Dr. Maxwell Palmer, [7] highlighted consistent patterns of bloc voting by white residents and lower election turnout of African Americans. Plaintiffs further proffered evidence about the bleak socioeconomic realities of African Americans in District 22. Plaintiff Thomas, who ran for state senate in 2015, and Plaintiff Lawson also testified about the lack of transportation options to assist African-American voters in traveling to the polls to vote during odd-year elections. Plaintiffs' other expert, William Cooper, [8] presented the district court with three plans that would, in his opinion, increase the BVAP of District 22 while honoring traditional redistricting criteria.

         On the other hand, the State's expert, Dr. Peter Morrison, testified that African Americans have performed well in county and municipal races within District 22 and that African-American voters statewide have higher election turnout than white voters.[9] The State argued that District 22, as then drawn, was already a majority-minority district, so no relief was warranted.

         Applying the familiar test set forth in Gingles, the district court determined that District 22, as drawn in 2012, did in fact violate § 2 of the VRA. On February 13, 2019, the district court issued an order preliminarily advising the Mississippi Legislature of its conclusion that District 22 did not afford African Americans "an equal opportunity to participate in the political processes and to elect candidates of their choice." The district court noted that Plaintiffs had presented three different plans for redrawing District 22 that would remedy the § 2 violation, but the court acknowledged that the Mississippi Legislature was entitled to the first opportunity to redraw the district.

         On February 16, 2019, the district court issued a lengthy opinion, denying the State's laches defense and concluding that Plaintiffs had proven by a preponderance of the evidence that the boundaries of Mississippi Senate District 22 violated § 2.[10] The court, however, declined to order any specific relief "while the Mississippi Legislature consider[ed] whether to redraw the District and extend the qualification deadline."[11]

         The State thereafter appealed the district court's order and filed a motion for stay pending appeal in this court pursuant to 28 U.S.C. § 1292(a)(1), which provides appellate jurisdiction over a district court's interlocutory order granting an injunction.

         On February 21, 2019, the district court conducted a teleconference, joined by Secretary of State Hosemann; the parties "convinced the Court that no further hearings were necessary" regarding remedies.[12] On February 26, 2019, the State further informed the district court that the Mississippi Legislature "would take up the Court's suggestion to redraw District 22 only if the motions for stay were denied [at the district court] and in the Fifth Circuit."[13] On that same day, however, noting that the Mississippi Legislature had not redrawn the boundaries of District 22, the district court granted Plaintiffs' motion to extend the qualification deadline from March 1, 2019 to March 15, 2019. The district court also redrew the boundaries of District 22. Specifically, the district court adopted Plaintiffs' "Illustrative Plan 1," which affected the boundaries of Districts 22 and 23. Finally, the district court issued a final judgment "resolv[ing] all of the claims and defenses in th[e] case" and rendering judgment in favor of Plaintiffs and against the State.[14]

         D.

         On February 27, 2019, the State filed a notice of appeal of the district court's final judgment.[15] On March 8, 2019, the State filed in this court an emergency motion for stay of judgment. On March 15, 2019, a divided motions panel of this court granted in part and denied in part the State's motion and issued an opinion one week later providing its reasoning.[16] The panel first determined that the State did not have a strong likelihood of overturning the district court's judgment. Nevertheless, noting that the Mississippi Legislature should be afforded an additional opportunity to redraw District 22 and comply with the Voting Rights Act, the panel issued a temporary stay of the district court's judgment until April 3, 2019, and extended the candidate filing deadline for any affected districts until April 12, 2019.

         E.

         On March 26, 2019, the Mississippi Senate exercised its prerogative and redrew the legislative map, which the Mississippi House of Representatives approved the next day. The resulting legislation adopted new district boundaries-different from those of the court-mandated plan-affecting Senate Districts 22 and 13. The legislation provides:

[T]his resolution shall take effect and be in force from and after its passage; however, in the event that the appellants prevail in the appeal of the case of Joseph Thomas, et al. v. Phil Bryant, et al., No. 19-60133 (5th Cir. Mar. 15, 2019), this resolution shall be repealed and the districts as originally configured in Chapter 2234, Laws of 2012, shall take effect.[17]

         On April 4, 2019, Plaintiffs informed the district court that they would not challenge the State's newly drawn plan; thus, this is the operative plan for the 2019 state senate elections.

         F.

         We held oral argument in this matter on June 11, 2019. On August 1, 2019, we announced our holding, noting that detailed opinions would follow. Because we affirmed the district court's judgment, the Legislature's plan was used in the primary election on August 6, 2019. The general election is scheduled for November 5, 2019.

         II.

         Before addressing the merits of Plaintiffs' § 2 claim, we must examine de novo whether we have jurisdiction on appeal and whether the district court had jurisdiction to hear this case with a single judge notwithstanding the three-judge provision contained in 28 U.S.C. § 2284(a). We discuss each in turn.

         A.

         Article III, section 2 of the Constitution confines federal courts to the decision of "Cases" or "Controversies."[18] "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."[19]A case becomes moot "if an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief what[so]ever' to a prevailing party."[20] A legislative remedy to a challenged law may moot a case pending appeal because courts can no longer enjoin the enforcement of a repealed law that has no effect.[21] A case is moot when "(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation."[22]

         Prompted by our request for supplemental briefing on mootness, Plaintiffs assert that the State's appeal is moot because the Mississippi Legislature exercised its prerogative and adopted new boundaries for District 22-different from the district court's mandated electoral plan-to be used for the upcoming election. Plaintiffs do not challenge the Legislature's newly reconfigured boundaries for District 22. So, according to Plaintiffs, the Legislature's amendment to the 2012 redistricting plan mooted this case while our review was pending. We disagree.

         We find that the Legislature's revised boundaries for District 22 did not moot the State's appeal because the State asserts that it will restore the challenged boundaries if it "prevails" and we reverse the district court's judgment. We have previously declined to find that a legislature's responsive fix to an election statute mooted the appeal of the district court ruling that triggered the fix.[23] When the Mississippi Legislature redrew its district boundaries in March 2019, it specifically provided in the legislation that the amendments for Districts 22 and 13 "shall be repealed and the districts as originally configured" shall be used if the State prevails on this appeal.[24] So even though the primary election has passed, the State maintains that, if it prevails on appeal, it could then revert to using its original map and conduct special elections for Senate Districts 22 and 13. Because the State could gain effectual relief as a result of this appeal, we hold that this case is not moot with respect to the district court's declaratory judgment;[25] appellate jurisdiction therefore exists.

         B.

         1.

         We next determine whether 28 U.S.C. § 2284(a), as amended in 1976, required the district court to convene a three-judge panel to decide the merits of this case.[26] "When the plain language of a statute is unambiguous and does not 'lead[] to an absurd result,' 'our inquiry begins and ends with the plain meaning of that language.'"[27]

         Section 2284(a) provides: "A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body."[28] The question presented is whether "constitutionality of" modifies only "the apportionment of congressional districts" (as the State argues) or whether it also modifies "the apportionment of any statewide legislative body" (as Plaintiffs assert). In other words, pertinent here, the question is whether § 2284(a) requires a "district court of three judges" only when a plaintiff brings a constitutional-as opposed to a statutory-challenge to state legislative apportionment.

         The text of § 2284(a) is clear, so we apply the statute as written.[29] We read § 2284(a) to require a district court to convene as a three-judge district court "in cases challenging the constitutionality of state or federal legislative apportionment."[30] Leading civil procedure scholars share this view.[31] Indeed, for decades, district courts nationwide have routinely handled § 2 challenges to state legislative maps as single-judge matters-and circuit courts have reviewed their work without a hint of jurisdictional doubt.[32] This reflects the settled understanding of § 2284(a) that has prevailed since its enactment.[33]Moreover, in Harris v. Arizona Independent Redistricting Commission, a unanimous Supreme Court noted in a parenthetical explanation that § 2284(a) "provid[es] for the convention of [a three-judge district court] whenever an action is filed challenging the constitutionality of apportionment of legislative districts."[34] Both courts and preeminent treatises support this longstanding understanding of § 2284(a). The State identifies no caselaw or commentary to the contrary.[35]

         Furthermore, the "series modifier" canon of construction, even if applicable, confirms our reading of § 2284(a). A modifier ordinarily applies to an entire series of parallel terms.[36] So naturally, here, "constitutionality of" applies to both "the apportionment of congressional districts" and "the apportionment of any statewide legislative body." The State, supported by an amicus brief, argues the "the" coming before "apportionment of any statewide legislative body" interrupts the series modifier.[37] It asserts that this "determiner"-the "the" in § 2284(a)-breaks off the modifier to the "apportionment of any statewide legislative body." So the State concludes that a district court of three judges is required for all claims challenging state legislative seats. We disagree. The modifying clause in § 2284(a) "is applicable as much to the first . . . as [it is] to the last."[38] As a leading statutory interpretation guide recognizes, "[p]erhaps more than most of the other canons, [the series modifier canon] is highly sensitive to context."[39] It makes little sense to say that three judges are required to hear statutory claims challenging state legislative redistricting but not statutory claims challenging congressional redistricting.[40] The text of § 2284(a) gives no indication that Congress was "hid[ing] elephants in mouseholes."[41] Accordingly, we hold that the natural reading of § 2284(a) requires that "constitutionality of" be applied to both "the apportionment of congressional districts" and "the apportionment of any statewide legislative body."[42]

         2.

         In the alternative, the State argues that a § 2 challenge is a constitutional one because Congress passed the VRA to enforce the Fifteenth Amendment.[43] This argument is unavailing. As the Supreme Court noted in Gingles, Congress amended the VRA in 1982 to reject the Court's prior determination in City of Mobile v. Bolden.[44] The Bolden Court held that the prior version of § 2 "was intended to have an effect no different from that of the Fifteenth Amendment itself," such that proof of intentional discrimination was required to prove a § 2 vote dilution claim.[45] But Congress disagreed- amending the VRA to provide a scheme for plaintiffs to establish a § 2 case by "showing discriminatory effect alone."[46] Henceforth, constitutional challenges under, inter alia, the Fifteenth Amendment and statutory challenges under § 2 adhere to different legal precedents and evidentiary standards.[47] Indeed, as noted, courts have repeatedly treated § 2 claims as non-constitutional challenges.[48]

         The State's theory has a more basic problem. Every valid congressional enactment is based on some provision of the Constitution. Under the State's theory, federal criminal law and tax law-typically enacted via Congress's commerce, taxing, and necessary and proper powers-would all be constitutional matters. We find no legal or logical support for the State's position.

         Because § 2284(a) does not apply, and this suit only concerns a § 2 statutory challenge, we hold that the district court, sitting as a single judge, had proper authority to decide this case.[49]

         III.

         We now consider the State's laches defense. The State contends that this lawsuit comes too late-the challenged map was enacted in 2012, Plaintiff Thomas ran and lost the state senate race for District 22 in 2015, and the three plaintiffs here did not commence legal action until July 2018. The State asserts that Plaintiffs inexcusably delayed the filing of this suit, and the State contends that it suffered undue prejudice. It argues that the district court therefore erred by not dismissing this case based on laches. We review the district court's ruling on laches for abuse of discretion and its findings of fact underpinning that ruling for clear error.[50]

         Laches "is a defense developed by courts of equity, "[51] which applies where a plaintiff "unreasonably delays in filing a suit and as a result harms the defendant."[52] To successfully establish a laches defense, the defendant must prove "(1) a delay asserting a right or claim; (2) that the delay was inexcusable; [and] (3) that undue prejudice resulted from the delay."[53] As set forth below, we hold that the district court did not abuse its discretion in rejecting the State's laches defense.

         A.

         We first consider whether Plaintiffs unreasonably and inexcusably delayed in filing this suit. The State has proffered two different time periods in which it alleges Plaintiffs should have commenced legal action. In the district court, the State argued that Plaintiffs' claim accrued in September 2012 when the U.S. Department of Justice granted preclearance to the State's redistricting plan under § 5 of the VRA. The State argued that Mississippi's general three-year "catch-all" statute of limitations[54] applied and thus barred Plaintiffs' action because they delayed this action by six years. But now, on appeal, the State argues that Plaintiffs' claim accrued with the November 2015 election in District 22, when, according to the State, "all of the necessary facts were in place." The State concedes that "[t]here is no question that if this suit had been brought in 2015, when all the facts necessary to plaintiffs' case were known, orderly review and orderly deliberation could have taken place."

         As a threshold matter, "[t]he trial court cannot have erred as to matters which were not presented to it."[55] Because the State's laches argument at summary judgment identified September 2012 as the accrual date, we cannot fault the district court for not ruling on "arguments not presented below."[56]We agree, nonetheless, with the State's argument on appeal that the Plaintiffs' clock, for laches purposes, began to run after the November 2015 election.

         "Although laches is an equitable defense, it is usually applied with reference to the limitations period for the analogous action at law, which may be state law if no federal limitation law exists."[57] In the district court, the State argued that because the VRA does not contain a limitations period, the general three-year "catch-all" limitations period of Mississippi Code § 15-1-49 should bar Plaintiffs' § 2 claim. We use the state statute of limitations here as a reference point.[58] The first time Plaintiffs should have known of their claim is in November 2015. Significantly, the 2015 election was the first time the challenged map was implemented and used for District 22. To Plaintiffs, Thomas's loss confirmed their basis for an actionable § 2 claim; it bolstered their case showing a Voting Rights Act violation. It follows that under Mississippi's three-year "catch-all" period, Plaintiffs' suit-filed in July 2018- would be considered timely.[59]

         Furthermore, we note that resolving a laches defense is a fact-specific inquiry, and the State points to no evidence that Plaintiffs unreasonably delayed in filing this suit given the three-year analogous prescriptive period. For election cases, circuit courts have generally approved laches defenses only in cases filed much closer in time to the general election than this case.[60] Moreover, one circuit court has rejected a laches defense to § 2 relief ordered closer in time to the general election than the relief ordered here.[61] The State cites no binding Supreme Court authority on laches. Its lone circuit authority is White v. Daniel, a Fourth Circuit case in which plaintiffs challenged the map for a Virginia county's board of supervisors.[62] That case is easily distinguishable. There, the map was drawn in 1971 and retained after the 1980 census.[63] The last election under the map before the 1990 census was in 1987.[64] The plaintiffs sued after that election, in September 1988.[65] The plaintiffs' suit thus came too late to affect any election under the map and would have saddled the county with two redistricting processes in a short period.[66]

         Here, by contrast, Plaintiffs filed their complaint well before the elections: sixteen months before the general election and thirteen months before the primary election. To our knowledge, no circuit court has disturbed a district court's denial of a laches defense in any case where the suit was filed more than eight months before the election. Consequently, if we were to reverse the district court based on the doctrine of laches, we would be the circuit outlier. Accordingly, we find that the district court acted within its discretion.[67]

         B.

         Laches is not a doctrine concerned solely with timing. A defendant must also establish undue prejudice as an independent element of its defense.[68]"Measuring prejudice entails balancing equities."[69] Plaintiffs understandably consider their case of great importance, and it carries significant public implications. The State, however, argues that Plaintiffs' suit injects confusion and uncertainty into the November 2019 election. It argues that candidates do not know where to campaign or fundraise, and voters do not know their electoral options. Moreover, the State complains of the tight deadline the district court imposed for the Legislature to create a remedy.

         For purposes of a laches defense, forms of prejudice generally cognizable by courts in the election context include the burden of redistricting twice in a short span of time-that is, when a court orders redistricting shortly before the regular, decennial redistricting[70]-or upsetting the results of an election already conducted (e.g., a corresponding primary election).[71] The State principally relies on the cases discussing these sources of prejudice, but neither scenario applies. In this case, Plaintiffs filed their voting rights case sixteen months before the general election and thirteen months before the primaries; the parties had until January 18, 2019 (over six months) to conduct discovery; the district court conducted a bench trial in February 2019, nine months before the general election. Moreover, this suit was filed four years before 2022, the Mississippi Legislature's deadline to redistrict after the 2020 census.[72]

         We are satisfied that the district court did not clearly err in finding no undue prejudice.[73] Following the trial and the district court's judgment, the Legislature was able to redraw District 22. Under the state constitution, the Mississippi Legislature meets no more than ninety days annually.[74] This year's legislative session started on January 8, 2019 and concluded on March 29, 2019.[75] On February 13, 2019, six days after the bench trial concluded, the district court "advise[d] the Mississippi Legislature that the evidence supports the plaintiffs' allegations" and "[a]s [then] drawn, District 22 [did] not afford the plaintiffs 'an equal opportunity to participate in the political processes and to elect candidates of their choice.'" At that point, the Legislature had fifty-three days left of its regular session. When the district court issued its findings of fact and conclusions of law on February 16, it invited the Legislature to redraw District 22 if the State wished to do so. The district court correctly recognized that a "legislative plan is unequivocally to be preferred over a court-ordered plan."[76]

         On February 21, 2019, the district court held a teleconference, personally joined by Secretary of State Hosemann. In that meeting, based on the district court record, the parties "convinced the Court that no further hearings were necessary."[77]

         Then, on February 26, 2019, the State informed the district court that the Mississippi Legislature intended to redraw District 22 "should the stay motions pending before [the district court] and the Fifth Circuit be denied." But recognizing the fast-approaching election qualification deadline of March 1, the district court implemented a remedial plan for District 22 on February 26, 2019, and extended the qualification deadline to March 15, 2019. A motions panel of this Court later stayed the court-mandated plan until April 3, 2019, and provided the Legislature with another opportunity to redraw the boundaries for District 22. The Legislature then acted, and created new lines for Districts 22 and 13 on March 27, 2019, which Plaintiffs do not challenge.

         In short, the Legislature was able to redistrict District 22. It was unnecessary for the State, for instance, to extend the legislative calendar or call a special session to accomplish this task. This suit was about one district out of fifty-two in the Senate, and only one other district had to be changed in producing the new map. At base, just eight precincts were shifted. We find unpersuasive the State's claim of clear error as to undue prejudice here.

         Finally, we consider any prejudice to the candidates and voters. According to Plaintiffs, [78] the Legislature's new plan moves only five Bolivar County precincts previously in Senate District 22 to Senate District 13 and shifts three Sunflower County precincts from Senate District 13 to Senate District 22. The vast majority of District 22 remains unaffected: The newly drawn map shifts eight precincts. The Legislature's plan makes District 22 much more compact and reduces its geographic size, from over 100 miles to 87 miles from north to south. Candidates have time to continue fundraising and campaigning; voters still go to the same polls. We see no clear error by the district court as to undue prejudice here.[79]

         The dissent relies on one pending district court case, Chestnut v. Merrill, [80] for support that laches should bar Plaintiffs' request for injunctive relief.[81] Yet Chestnut is distinguishable: The delay and prejudice in that case were great. In Chestnut, the plaintiffs asked the court to redraw a majority of the congressional districts in Alabama-four out of seven.[82] Three elections (in 2012, 2014, and 2016) had already taken place under the challenged congressional district boundaries. In contrast, the instant case involves only one of fifty-two state senate districts, and the remedy affected just one other. And no election took place with the challenged Mississippi senate map until 2015. In sum, Chestnut is not helpful to the State and does not support the dissent's position.[83]

         Accordingly, we conclude that the district court did not abuse its discretion in denying the State's laches defense. The State did not meet its ultimate burden.

         IV.

         Turning to the merits, Plaintiffs asserted that the redistricting plan adopted by the Mississippi Legislature in 2012 violated § 2 of the VRA in that the boundary lines of District 22 diluted African-American voting strength and deprived African-American voters of an equal opportunity to elect candidates of their choice. They maintained that though African Americans made up a majority of the voting age population in District 22, that majority lacked "real electoral opportunity" under Supreme Court precedent interpreting § 2 of the VRA. Plaintiffs contended that District 22 could be redrawn to cure the § 2 violation with changes to only one or two adjacent districts; that the resulting districts would be more compact than in the 2012 plan; and that the alteration would not create Voting Rights Act violations in any other districts. After conducting a two-day bench trial, the district court determined that Plaintiffs met their burden of proof as to their § 2 vote-dilution claim and rendered judgment in their favor.

         A.

         Before we address the State's appellate challenges to the district court's decision, we set forth the law applicable to a § 2 vote-dilution claim and our standard of review. Subsection 2(a) of the VRA prohibits all states and political subdivisions from imposing "any standards, practices, or procedures which result in the denial or abridgement of the right to vote of any citizen who is a member of a protected class of racial and language minorities."[84] Subsection 2(b) provides that a violation of § 2(a) is established if:

[B]ased 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 [protected] class . . . 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.[85]

         Subsection 2(b) specifically provides that "one circumstance" which may be considered in determining whether § 2(a) has been violated is "[t]he extent to which members of a protected class have been elected to office in the State or political subdivision." However, it cautions "[t]hat nothing in [§ 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."[86]

         In Thornburg v. Gingles, the seminal vote-dilution case, the Supreme Court explained that "[t]he 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."[87] The Court further explained that Congress amended § 2 of the VRA in 1982 to "make clear that a [§ 2] violation could be proved by showing discriminatory effect alone" and that proof of discriminatory intent was not required.[88] The Court additionally noted that "[t]he Senate Judiciary Committee majority Report accompanying the bill that amended § 2 elaborate[d] on the circumstances that might be probative of a § 2 violation."[89]Those circumstances are frequently referred to as the "Senate factors" and include the following:

(1) the history of voting-related discrimination in the State or political subdivision;
(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 voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting;
(4) the exclusion of members of the minority group from candidate slating processes;
(5) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;
(6) the use of overt or subtle racial appeals in political campaigns; and
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.[90]

         The Senate Report stressed that the above list of factors was "neither comprehensive nor exclusive" and that there was "no requirement that any particular number of factors be proved, or that a majority of them point one way or the other."[91]

         The Gingles Court held that prior to establishing the Senate factors, minority voters asserting a § 2 vote-dilution claim must first prove three "necessary preconditions."[92] First, the minority group must show "that it is sufficiently large and geographically compact to constitute a majority in a single-member district."[93] Second, the minority group must demonstrate "that it is politically cohesive."[94] And third, the minority group must establish "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."[95]

         Finally, the Court "reaffirm[ed] its view that the clearly-erroneous test of Rule 52(a) is the appropriate standard for appellate review of a finding of vote dilution."[96] In reaffirming the proper standard of review, the Court noted that a district court's finding of vote dilution is "peculiarly dependent upon the facts of each case" and "requires an intensely local appraisal of the design and impact of the contested electoral mechanisms."[97] The Court additionally observed that the clearly-erroneous standard of "Rule 52(a) does not inhibit an appellate court's power to correct errors of law . . . or a finding of fact that is predicated on a misunderstanding of the governing rule of law."[98] Rather, "application of the clearly-erroneous standard to ultimate findings of vote dilution preserves the benefit of the trial court's particular familiarity with the indigenous political reality without endangering the rule of law."[99]

         B.

         The State first asserts that, as a matter of law, Plaintiffs were not entitled to assert a § 2 challenge to District 22 as drawn by the 2012 redistricting plan because African Americans already made up a majority of the voting age population (50.8%) in the district. The State contends that its argument is supported by Supreme Court precedent. We disagree.

         "Unimpeachable authority from our circuit has rejected any per se rule that a racial minority that is a majority in a political subdivision cannot experience vote dilution."[100] Other circuits have also rejected such a rule.[101]As interpreted by the Supreme Court in Gingles, § 2 of the Voting Rights Act protects the voting rights of "member[s] of a protected class of racial and language minorities."[102] We have held that § 2 "is concerned with protecting the minority in its capacity as a national racial or language group," and not with protecting "a numerical minority of voters in the jurisdiction at issue."[103]Importantly, the Supreme Court has specifically stated that "it may be possible for a citizen voting-age majority to lack real electoral opportunity," and thereby require the protection of § 2.[104]

         In asserting that Plaintiffs' § 2 claim is not legally cognizable at all because they represent a BVAP majority in District 22, the State relies on a Supreme Court case, Bartlett v. Strickland, [105] that involved a fundamentally different issue: crossover districts. The plaintiffs in Bartlett were county officials who contended that state officials had violated a provision of the state constitution prohibiting the partition of counties between legislative districts.[106] The defendants responded that § 2 of the VRA required them to preserve a district in which African-American voters consistently elected their preferred candidate with "crossover" voters from the white majority, which necessitated splitting the plaintiffs' county.[107] The Court rejected the defendants' argument, holding that "[n]othing in § 2 grants special protection to a minority group's right to form political coalitions."[108] The Court further observed: "There is a difference between a racial minority group's 'own choice' and the choice made by a coalition."[109]

         In rendering its holding, the Court clarified the meaning of the first Gingles precondition: A party asserting a § 2 claim must show by a preponderance of the evidence that the voting-age minority population in the potential election district is greater than 50%.[110] The Court did not hold, as the State incorrectly suggests, that if the district being challenged already contains a majority-minority population, then a § 2 claim is precluded. That situation did not arise in Bartlett, so the Court's holding did not address it. As observed by the Second Circuit, while the "creation of [majority-minority districts] with simple majority representation does not necessarily close the gate to a potential finding of vote dilution, plaintiffs need not show more than a simple majority at the first step of the Gingles analysis to open the gate to further Section 2 inquiry."[111]

         If anything, a close reading of Bartlett shows that it supports Plaintiffs' assertion of a § 2 claim here. The Court began its opinion in Bartlett by "review[ing] the terminology often used to describe various features of election districts in relation to the requirements of the [VRA]."[112] The Court then stated: "In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, § 2 can require the creation of these districts."[113] Here, although African Americans composed a bare numerical voting-age majority in District 22 under the 2012 plan, Plaintiffs alleged (and ultimately proved) that African Americans were not a working majority and that § 2 required creation of a working majority-minority district. The State's reliance on Bartlett, thus, is misplaced.

         Contrary to the State's contentions, the fact that Plaintiffs' § 2 challenge involves a single-member district, and not an at-large electoral district, does not render the above principles inapplicable. The Supreme Court has held that the Gingles framework is applicable in § 2 challenges to single-member districts.[114] And, in the Court's decision in LULAC v. Perry, the Court applied the Gingles framework and the above principles when considering a § 2 challenge to a single-member congressional district in Texas.[115] Specifically, the Court determined that although Latinos were a "bare majority of the voting-age population" in the challenged district, that majority was a "hollow" one, and plaintiffs had established that they "could have had an opportunity district in [the challenged single-member district] had its lines not been altered."[116] The Court ultimately determined that the plaintiffs were entitled to § 2 relief.[117] The State's argument in this case that Plaintiffs' § 2 claim is not legally cognizable because it challenges a majority-minority, single-member district has no merit.[118]

         Finally, we disagree with the State's assertion, which was never raised to the district court, that Plaintiffs' § 2 claim is "novel" because Plaintiffs' allegations did not contain the terms "cracking" (fragmentation of minority group among various districts so that it is a majority in none) or "packing" (concentration of minority group in a few number of districts where it constitutes an excessive majority). We find no statute or caselaw mandating that a plaintiff's allegations under § 2 include those terms.[119] Moreover, we note that specific allegations of "cracking" or "packing" were not made in LULAC v. Perry, yet the Court still determined that the plaintiffs were entitled to relief because the legislature's redrawing of a single-member district violated § 2.[120]

         Based on the foregoing, the district court did not err in determining that Plaintiffs' § 2 challenge to a majority-minority, single-member district was legally cognizable.

         C.

         Under the guidance of Gingles, this court uses a two-part framework for analyzing § 2 claims. First, plaintiffs must satisfy the three Gingles preconditions; "[f]ailure to establish all three elements defeats a § 2 claim."[121]Second, if the three preconditions are proved, plaintiffs must then show that based on the "totality of the circumstances" (as informed by the Senate factors), the challenged practice or structure results in plaintiffs' having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."[122] We have noted 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."[123]

         The State asserts that even if Plaintiffs can assert a legally cognizable § 2 challenge to a majority-minority, single-member district, they failed to prove the first Gingles precondition-that the minority group is sufficiently large and geographically compact to constitute a voting age majority in a single-member district-because District 22 already contained a majority-minority voting age population. It is an incontestable fact that African Americans can constitute a majority of the district; they already do, if only barely. The State's argument is simply a reassertion of its argument (discussed above) that Plaintiffs' § 2 claim is not legally cognizable. The State's attempt to reframe its argument in the context of the Gingles preconditions is unavailing. For the reasons previously stated, the State's argument challenging the first precondition has no merit.

         Regarding the second Gingles precondition-that the minority group is "politically cohesive"-the State does not directly challenge the district court's factual finding of this precondition as clearly erroneous. In fact, the State never disputed Plaintiffs' proof of the second Gingles precondition in the district court.[124]

         As to the third Gingles precondition-whether white bloc voting usually defeats the African-American community's preferred candidate-the State asserts primarily that Plaintiffs' evidence was flawed because it was based in part on the results of the 2015 senate election in District 22, which was not "properly conducted." Plaintiffs explain that the State is referring to an election error that occurred in Bolivar County during the 2015 senate election when most voters in two of District 22's fifty-two precincts were given ballots that did not include the District 22 election.

         The district court specifically addressed this issue in its decision. The district court noted that in the 2015 state senate election for District 22, "approximately 1, 500 voters in Bolivar County received ballots for the wrong Senate race."[125] Plaintiffs' expert, Dr. Palmer, agreed that this was a "significant election administration error," which was why he decided to exclude those precincts in that race from his ecological inference analysis.[126]Dr. Palmer explained that his analysis "remain[ed] valid because EI identifies the pattern of behavior running through a series of elections over time."[127] The 2015 election in District 22 still furnished fifty precincts from which to infer voter behavior, and other elections also furnished usable data. Furthermore, the State "presented no evidence indicating that Dr. Palmer's approach was in error or would cast any shadow on his conclusions."[128]

         Dr. Palmer testified that EI "is the process of extracting clues about individual behavior from information reported at the group or aggregate level." He contended it is useful in voting cases because "the secret ballot hinders the [research] process and surveys in racially polarized contexts are known to be of little value." Dr. Palmer further explained that EI "estimates the underlying propensity of each group to turn out for an election and to vote for a particular candidate using the estimation technique of maximum likelihood." Dr. Palmer believed that EI was a superior statistical method to use in this case because it allowed him to run 100, 000 simulations of each election in the sample, and provided valuable statistical checks, such as confidence intervals, on the results.

         Dr. Palmer also testified that he used precinct-level voting and census data to analyze ten elections in District 22. The elections consisted of three "endogenous" elections-the 2003, 2007, and 2015 Senate District 22 elections, and seven "exogenous" elections-the 2003 Lieutenant Governor and Treasurer elections, the 2007 Insurance Commissioner election, the 2011 Governor election, and the 2015 Governor, Secretary of State, and Agriculture Commissioner elections. The goal of the endogenous and exogenous comparisons was to see if findings were consistent between the Senate races and statewide races also held in odd years in District 22. All ten elections featured contests between white and African-American candidates. In all ten elections, the candidate preferred by African-American voters lost. Based on his analysis, Dr. Palmer appropriately concluded that white bloc voting usually defeats the African-American community's preferred candidate in District 22. The district court found "Dr. Palmer's thorough and largely unrebutted analysis to be persuasive."[129]

         By contrast, the State's expert, Dr. Morrison, did not analyze any District 22 elections or the results of statewide elections among the voters of District 22. He looked only at county and municipal elections within District 22's territory, without attending to the demographic differences between those smaller jurisdictions and District 22. Basic errors also infected the data that he analyzed.[130] Moreover, Dr. Morrison offered no opinion, critical or otherwise, on Dr. Palmer's analysis. Dr. Morrison's testimony thus did not rebut Dr. Palmer's report in any meaningful respect.

         On appeal, the State simply highlights the election administration error that occurred in the 2015 senate election for District 22. The State does not explain why Dr. Palmer's method of accounting for the error-deleting the affected precincts from his analysis-was incorrect or undermined his analysis in any way. The State fails to show any clear error in the district court's finding that District 22's white majority votes sufficiently as a bloc to enable it usually to defeat the African-American preferred candidate.

         Based on the foregoing, the district court did not clearly err in determining that Plaintiffs met their burden of proving the three Gingles preconditions.

         D.

         We next address the Senate factors, which are probative of the "totality of the circumstances" demonstrating a vote-dilution claim under § 2. The district court found persuasive the Plaintiffs' evidence regarding Senate factors one (the history of voting-related discrimination in the State or political subdivision), two (the extent to which voting in the elections of the State or political subdivision is racially polarized), five (the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process), and seven (the extent to which members of the minority group have been elected to public office in the jurisdiction).[131]

         As to factor one, the district court noted that "Mississippi plainly has a long history of official discrimination against African-Americans seeking to vote." The district court credited the State for acknowledging this fact. As to factor two, the district court noted that Plaintiffs presented evidence, through Dr. Palmer's testimony, that voting in District 22 features a "high level of racial polarization." The district court further noted that the State's expert also did not dispute this evidence.[132]

         The fifth Senate factor focuses on the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. As described above, the socioeconomic disparities between the white and African-American residents in District 22 are stark. They differ markedly by poverty rate, household income, educational attainment, and other measures of privation and status. Considering the unique history of the Delta, there can be no question that these disparities reflect the effects of slavery and segregation.

         The State argues that although Plaintiffs presented evidence that African Americans in District 22 trail white residents in socioeconomic categories, Plaintiffs "offered no proof to connect that fact to past discrimination." The State further asserts that Plaintiffs did not prove that the socioeconomic circumstances of African Americans in District 22 "hinder their ability to participate effectively in the political process." As the district court observed, however, we have held that where socioeconomic disparities are shown and where the level of African-American political participation is depressed, § 2 plaintiffs "need not prove any further causal nexus between their disparate socioeconomic status and the depressed level of political participation."[133] At trial, the State acknowledged this law, both when moving for judgment at the close of Plaintiffs' case and in closing arguments. The point the State now makes, that Plaintiffs did not offer evidence linking discrimination to depressed participation, thus is new on appeal, legally insignificant, and--in any event--belied by the record.

         In this case, Plaintiffs went beyond the requirements of our law and were able to show a causal nexus between the disparate socioeconomic circumstances of African Americans in District 22 and their depressed level of political participation. Specifically, Plaintiff Lawson testified that in the Delta, many African-American voters are uneducated, reside in the rural areas, and have no transportation to travel to the polls. The district court noted that this evidence "is consistent with the Supreme Court's recognition 'that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes.'"[134]

         The State acknowledges that Plaintiffs' expert, Dr. Palmer, presented a statistical estimate that African-American voter turnout in the 2015 Senate election was 29.6%, while the white turnout was 36.9%. But the State asserts that the estimate was inaccurate because Dr. Palmer admitted that he had excluded from his analysis the precincts in Bolivar County in which voters were given the wrong ballots. This is the same challenge to Dr. Palmer's analysis raised in the State's challenge to the third Gingles precondition. As discussed above, the State presented no evidence indicating that Dr. Palmer's approach was erroneous or would have cast any doubt on his conclusions. But in the context of voter turnout, the State argues that exclusion of the precincts was significant because the precincts included Delta State University, a predominantly white institution, and that college students are part of the voting age population in the census but notoriously unlikely to register and vote. The State submits that had those non-voting white students been considered in the turnout estimates, then white participation throughout District 22 would have fallen, making the difference between the percentage levels of white and African-American voter turnout not as great. But here again, the State can point to no evidence in the record supporting its supposition or in any other respect its challenge to Dr. Palmer's conclusion of depressed African-American voter turnout.[135]

         The State additionally asserts that Census Bureau statistics show that the statewide African-American voter turnout has exceeded white voter turnout by one to ten percent in even-numbered years since at least 2004. Based largely on this information, the State's expert, Dr. Morrison, opined that the existing socioeconomic differences no longer diminish African-American participation in the political process as they did in the past. However, the data used by Dr. Morrison had serious problems. It was self-reported, rather than based on official state records. It came from statewide elections, as opposed to District 22 elections, and from even-numbered years for federal elections (including presidential election years), as opposed to odd-numbered years for state elections. Accordingly, the district court, assessing this trial testimony in the first instance, held that Dr. Morrison's "data points fail to persuade" because "[t]hey look at the wrong jurisdiction, the wrong election years, and rely upon known issues with self-reported voting surveys-issues that [ecological inference], in contrast, seeks to overcome."

         The district court's conclusion that Dr. Palmer's analysis of voter turnout held more probative value than the data used by Dr. Morrison is consistent with our previous direction.[136] It is also consistent with the Supreme Court's pronouncements in Gingles that § 2 vote dilution determinations "require[] an intensely local appraisal of the design and impact of the contested electoral mechanisms."[137]

         Finally, the seventh Senate factor-the extent to which members of the minority group have been elected to public office in the jurisdiction-strongly favors Plaintiffs. No African American has been elected to the Mississippi Senate from District 22 in its previous or current form.

         We find that the district court did not clearly err in finding that Senate factors one, two, five, and seven demonstrated that District 22, as drawn in the 2012 legislative redistricting plan, resulted in African Americans' having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Plaintiffs proved the Gingles preconditions and presented persuasive evidence regarding several of the Senate factors, while the State scarcely entered any evidence to the contrary.

         The dissent acknowledges that § 2 of the VRA requires relief when a protected class has less opportunity to participate in the political process. Yet it turns a blind eye to the evidence produced by Plaintiffs showing the stark socioeconomic circumstances of African Americans in District 22 and how those circumstances have resulted in depressed voter turnout. Moreover, though the dissent states that "there are major disconnects among the district court's findings," and provides as an example "the minority turnout figures as well as minority electoral success in other races throughout the district," the dissent provides no explanation for its vague contention. Instead, the dissent challenges the district court's judgment in generalities and provides no analysis of the district court's extensive factual findings and legal analysis supporting its judgment declaring District 22 violative of § 2.[138]

         Accordingly, we hold that the district court did not clearly err in its ultimate finding of vote dilution. We further hold that the district court's conclusion that Plaintiffs were entitled to § 2 relief is fully supported by the record and not clearly erroneous.

         V.

         A.

         The State argues that the district court erred in adopting Plaintiffs' Illustrative Plan 1 to remedy the § 2 violation and requests that we vacate the district court's injunction mandating its use. Plaintiffs contend that the State's appeal as to this claim of error is moot. We agree. The unlawful 2012 legislative plan, which necessitated the district court's injunctive relief, was repealed by the Legislature in March 2019. Plaintiffs do not challenge the new plan. Although there is no question that the new plan governs the upcoming election, the State asserts that the district court's injunction should be vacated because, if not, the State could be forced to operate under the court-ordered plan. That is simply inaccurate. The Mississippi Legislature fashioned the 2019 plan in such a way that the only other redistricting plan that could possibly ever become effective is the original 2012 redistricting plan. In other words, no matter the resolution of the State's appeal, the court-ordered plan will never become operative. The State's request for relief from the district court's injunction is therefore moot.

         B.

         Even though the district court's remedial plan will not be used in any election because it has been replaced by the Legislature's plan, the dissent objects to the court's plan at length.[139] The dissent is particularly "alarmed" that the district court did not conduct an evidentiary hearing before adopting Plan 1. These concerns are moot, because the Legislature's plan is in place.[140] We nevertheless clarify that there is nothing alarming or unprecedented about what the district court did.

         1.

         We must set the facts straight-they bear repeating. In its February 16, 2019 opinion following the bench trial, the district court unequivocally "decline[d] to order any specific relief while the Mississippi Legislature considers whether to redraw the District and extend the candidate qualification deadline."[141] The court added: "A hearing will be set for the near future."[142] Later, as the record shows, at the February 21 teleconference, the district court asked "whether the parties sought additional hearings and whether the defendants would be submitting their own Plan."[143] In response, "[t]he parties convinced the Court that no further hearings were necessary."[144]And the "defendants said they would confer to be sure, then made no request at all."[145] So the dissent's focus on this moot point is incorrect: The State did not want another hearing.

         Furthermore, the bench trial in this case in fact involved both the merits and remedies. The State "had ample opportunity to present evidence at the remed[ies]" portion of the trial.[146] The State extensively cross-examined Plaintiffs' expert, William Cooper, about his proposed plans during discovery and at trial. In fact, Cooper incorporated the State's concerns and arguments after discovery by proposing two additional plans.[147] In Cooper's opinion, "District 22's boundaries could be reconfigured to increase the BVAP while honoring traditional redistricting criteria and minimizing disruption to adjacent Districts" and while "increas[ing] the BVAP by at least 10 additional percentage points."[148] As a result of the trial evidence, the district court concluded that "[a]ll of Cooper's illustrative plans satisfy traditional redistricting criteria. They are contiguous, reasonably compact, reasonably shaped, satisfy one-person one-vote, and do not dilute minority voting strength."[149] Moreover, the district court noted that the "incumbent Senator in District 23 remains in the same District."[150] Because the State later declined the district court's invitation for an additional hearing and had not presented a remedial plan, the district court adopted Cooper's Plan 1 as the best plan presented.

         In approving the district court's course of conduct, we draw guidance from Abrams v. Johnson. There, the Supreme Court upheld a district court's remedial plan, which resulted from a joint bench trial and remedial hearing, against parties' arguments that the district court should have held a further hearing on the court-drawn plan's compliance with § 2.[151] As the Court said there, "neither our precedents nor the [Voting Rights] Act require the court to hold a separate hearing on the adequacy under § 2 of a remedial plan."[152]

         In sum, the district court did not pull a remedial plan out of thin air. The district court offered the Legislature the first opportunity to redraw District 22. Yet the Legislature waited until after our motion panel denied a stay before it responded to the district court's request for a remedial plan, which is now the operative plan. Therefore, the court-ordered plan is moot-and so is the State's argument.

         2.

         Finally, the dissent suggests that a race-conscious remedy to a Voting Rights Act violation infringes upon the Fourteenth Amendment's Equal Protection Clause.[153] The dissent, however, is once again asserting arguments never raised by the State[154] and challenging the propriety of the district court's remedial plan, which is not before us. In any event, the Supreme Court in Abbott v. Perez has explained the interplay between the Equal Protection Clause and the Voting Rights Act as follows:

At the same time that the Equal Protection Clause restricts the consideration of race in the districting process, compliance with the Voting Rights Act pulls in the opposite direction: It often insists that districts be created precisely because of race. . . . In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed.[155]

         The Court further explains that in "technical terms," it has assumed that compliance with the VRA is a "compelling state interest."[156] Therefore, contrary to the dissent's assertion, race can be considered for remedying a § 2 violation.

         VI.

         Based on the foregoing, the district court's judgment declaring that the redistricting plan adopted by the Mississippi Legislature in 2012 violates § 2 of the Voting Rights Act, in that the boundary lines of District 22 dilute African-American voting strength and deprive African-American voters of an equal opportunity to elect candidates of their choice, is AFFIRMED. The State's appeal of the district court's judgment granting injunctive relief is DISMISSED AS MOOT.

          STEPHEN A. HIGGINSON, Circuit Judge, joined by W. EUGENE DAVIS, Circuit Judge, concurring:

         I join fully in Judge Davis's majority opinion. I write separately to elaborate on the law governing plaintiffs' causal burden when the protected class they represent is a numerical majority in the challenged jurisdiction. Some ambiguity seemed to me to exist in our law, stemming primarily from our decision in Salas v. Southwest Texas Junior College District, 964 F.2d 1542 (5th Cir. 1992).[1]

         In Salas, our court placed a "difficult burden" on plaintiffs who represent a protected class comprising a majority in their district to explain why, despite their numbers, their preferred candidates lost elections and why the plaintiffs still warranted relief under § 2. Id. at 1555. This enhanced burden varies from longstanding § 2 caselaw, indeed, notably from our subsequent en banc decision in LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 866-67 (5th Cir. 1993), which specifies a less demanding approach.

         On further inspection, there is neither ambiguity nor tension, however. Salas's "difficult burden" discussion is limited to the problem that its facts presented: "a registered voter majority" in the challenged jurisdiction. 964 F.2d at 1555. A protected class that has navigated the practical obstacles of voter registration in enough numbers to be a majority naturally has a harder time explaining why it continues to lose elections. Here, however, it was not established that Appellees represent such a majority, because registered-voter data for Mississippi State Senate District 22 was not in the record.

         ***

         The Voting Rights Act is an exercise of Congress's power to enact "appropriate legislation" enforcing the guarantees of the Fifteenth Amendment. See Shelby County, Ala. v. Holder, 570 U.S. 529, 536 (2013); Lopez v. Monterey County, 525 U.S. 266, 269 (1999); City of Rome v. United States, 446 U.S. 156, 173 (1980); Georgia v. United States, 411 U.S. 526, 535 (1973); South Carolina v. Katzenbach, 383 U.S. 301, 327 (1966). Section 2 of the Voting Rights Act prohibits any election practice or procedure "which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color" or membership in a language minority group. 52 U.S.C. § 10301(a). Denial or abridgment occurs if the "totality of the circumstances" shows that "the political processes leading to nomination or election . . . are not equally open to participation by members of [a protected class] 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).

         As explained in the majority opinion, Congress codified the § 2 results test in 1982, abrogating a Supreme Court decision two years earlier requiring a showing of discriminatory purpose. Thornburg v. Gingles, 478 U.S. 30, 35 (1986) (citing City of Mobile v. Bolden, 446 U.S. 55 (1980)); see The Law of Democracy: Legal Structure of the Political Process 603-54 (Samuel Issacharoff et al. eds., 4th ed., 2012).

         In Gingles, the Court supplied the framework for redistricting challenges we still use today. There, it explained the "essence" of a § 2 claim: "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." 478 U.S. at 47. As a guide to this inquiry, the Court endorsed a non-exclusive set of factors listed in the Senate committee report to the 1982 amendments and found in an earlier decision of this court. Id. at 36-37 & n.4 (citing Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976)).

         The fifth of these factors is "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." Gingles, 478 U.S. at 37 (citing S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. at 206- 07). Following the Supreme Court's guidance, we developed a framework for plaintiffs to show the interaction between a challenged election practice, social and historical conditions, and unequal political opportunity. Plaintiffs must make three showings: past discrimination; socioeconomic disparities arising therefrom; and depressed political participation. See LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 866-67 (5th Cir. 1993) (en banc) (citing S. Rep. No. 97-417, at 29 n.114). Plaintiffs may show depressed political participation in the form of reduced voter registration, lower turnout, or "any other factor tending to show that past discrimination has affected [the protected class's] ability to participate in the political process." Id. at 867. Once discrimination, disparity, and depressed participation are shown, "plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation." Id. (quoting S. Rep. No. 97-417, at 29 n.114).

         We have used this framework consistently since then. See Veasey v. Abbott, 830 F.3d 216, 258-61 (5th Cir. 2016) (en banc); N.A.A.C.P. v. Fordice, 252 F.3d 361, 367-68 (5th Cir. 2001); Teague v. Attala County, Miss., 92 F.3d 283, 293-94 (5th Cir. 1996); Clark v. Calhoun County, Miss., 88 F.3d 1393, 1399 (5th Cir. 1996). Under this framework, the fifth Senate factor does not favor plaintiffs when, for instance, the protected class's voter turnout is no less than white voter turnout, Fordice, 252 F.3d at 368, or when plaintiffs fail to put on evidence of depressed political participation at all, LULAC, 999 F.2d at 867.

         Appellants clearly and repeatedly urged this framework to the district court. At the close of Appellees' case, Appellants moved for judgment on partial findings, challenging the sufficiency of Appellees' evidence.[2] Responding to the motion, counsel for Appellees cited the portion of Veasey v. Abbott explaining the framework.[3] In rebuttal, counsel for Appellants concurred that the framework governed and conceded two of its three parts:

The constitutional chain of events that must be proven in order for Section 2 to be constitutionally applied is that the state did something unconstitutional. And you have evidence before you that the state has done a few unconstitutional things over the years and that those things led to socioeconomic disadvantages for black folks. And you have evidence before you that black folks do suffer socioeconomic advantages in that case. And then what Veasey says, I believe, is that if you have those two things proven, then you may conclude that those things have caused the political participation disparities that you see. You don't have to have proof of the causation; you may infer that causation.

         Counsel then proceeded to the factual argument, reiterated to us on appeal, that Appellees' evidence did not adequately show depressed political participation in the form of lower black turnout. At closing argument the next day, counsel for Appellants urged the same framework to the district court, again to set up an attack on Appellees' evidence of depressed turnout.[4]

         Our framework for establishing depressed political participation matters here because it is a compelling way to explain why a protected class constituting a bare majority in the challenged jurisdiction may nevertheless win relief under § 2. The facts in evidence showed that District 22 had a black voting-age majority just over 50% as of the 2010 Census, a turnout gap between black and white voters of roughly 10%, and a consistent single-digit margin of defeat for candidates preferred by black voters. Mississippi's history of discrimination, recognized by our court, [5] was conceded. The uncontroverted record showed stark socioeconomic disparity between black and white residents of District 22: five times the poverty rate; one-third the median household income; three times the high school dropout rate; three times the uninsured rate; and so on. Under both our law and common sense, and as the district court concluded, that record suffices to explain why the lines making up District 22 "interact[] with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47.

         This conclusion comports with our longstanding recognition that a protected class may constitute a numerical majority in the challenged jurisdiction but nevertheless obtain relief under § 2. See Salas, 964 F.2d at 1547; Monroe v. City of Woodville, Miss., 881 F.2d 1327, 1333 (5th Cir. 1989); Zimmer, 485 F.2d at 1303. Other circuit courts share that recognition. See, e.g., Mo. St. Conf. of NAACP v. Ferguson-Florissant Sch. Dist., 894 F.3d 924, 934 (8th Cir. 2018) ("[M]inority voters do not lose VRA protection simply because they represent a bare numerical majority within the district."); Pope v. County of Albany, 687 F.3d 565, 575 n.8 (2nd Cir. 2012) ("[T]he law allows plaintiffs to challenge legislatively created bare majority-minority districts on the ground that they do not present the 'real electoral opportunity' protected by Section 2.") (quoting LULAC v. Perry, 548 U.S. 399, 428 (2006)).

         This conclusion comports also with LULAC v. Perry, in which the Supreme Court recognized that "it may be possible for a citizen voting-age majority to lack real electoral opportunity." 548 U.S. at 428. Notably, the Court found there that a Texas congressional district violated § 2 where Latinos were "a bare majority of the voting-age population . . . but only in a hollow sense," owing to the legal restriction of voting rights to citizens. Id. at 429.

         Finding a § 2 violation despite a bare majority is likewise consistent with the Supreme Court's admonition that we are to "take a 'functional' view of the political process and conduct a searching and practical evaluation of reality." Gingles, 479 U.S. at 66 (quoting S. Rep. No. 97-417, at 30 n.119). In that vein, when assessing how large a protected class must be to have equal political opportunity, the Court has spoken variously of "effective majorities," Abbott v. Perez, 138 S.Ct. 2305, 2315 (2018) (quotation omitted); "a numerical, working majority," Bartlett v. Strickland, 556 U.S. 1, 13 (2009); and "an effective voting majority," Johnson v. DeGrandy, 512 U.S. 997, 1014 (1994).[6] Finding a § 2 violation despite a bare majority is consistent also with Abrams v. Johnson, 521 U.S. 74 (1997), in which the Court affirmed a district court's remedial plan setting a congressional district's black voting-age population (BVAP) "as close to 55% as possible" to ensure compliance with § 2 because, at 50% BVAP, black voters' preferred candidates were more likely than not to lose. Id. at 94.[7]

         New questions arise when registered-voter data enters the picture. In previous cases, it has often been true that a protected class made up a smaller share of registered voters than of voting-age population. See, e.g., Gingles, 478 U.S. at 39 (fourteen-point gap between black and white voter registration rates); Teague, 92 F.3d at 294 (twenty-point gap). It cannot be assumed that a protected class comprising a majority of voting-age population also comprises a majority of registered voters. In the present case, as counsel for Appellants conceded, no voter-registration data for District 22 was in the record.[8]

         But when voter-registration data is available, and it shows that the protected class is a registered-voter majority in the challenged jurisdiction, it becomes harder to contend that the protected class lacks political opportunity. See Salas, 964 F.2d at 1544. Salas concerned a junior college that conducted at-large elections for its governing board. Id. The Hispanic residents of the district were 63% of the population and 57% of the voting-age population, and the Spanish-surname voter-registration rate was 53%. Id. The parties evidently agreed that "Hispanics constitute[d] a slight majority of the registered voters in the District." Id.

         We said in Salas that an "inquiry into causation" underlies the Gingles analysis. 964 F.2d at 1154. Is it the challenged district or election practice that "explain[s] the lack of electoral success of voters within the protected class," or is it something else not cognizable under the Voting Rights Act? Id. This question is easier for plaintiffs to answer when, for instance, the protected class could be a working majority but is cracked apart. It is harder for them to answer when they have managed to register enough voters to constitute a majority and yet continue losing elections. The voter registration process presents one cluster of obstacles to the political participation of a protected class that bears the effects of discrimination. See Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991).[9] How to explain a lack of electoral success when a majority in the jurisdiction has managed to clear those obstacles?

         In Salas, we suggested ways that plaintiffs might prove that their "registered voter majority is illusory": evidence of inaccurate, or "soft," voter rolls; evidence of other "practical impediments to voting," like migratory work patterns at election time; or "low turnout at elections [that] was the result of prior official discrimination." Id. at 1555-56. We then refined the plaintiffs' required causal showing: plaintiffs should show "evidence directly linking this low turnout with past official discrimination." Id. at 1556 (emphasis added). This might seem to be in tension with our holdings in LULAC and other cases that a causal nexus between discrimination, socioeconomic disparity, and depressed participation can be inferred once those three phenomena are shown. But reconciling Salas is simple. The protected class's success at navigating the voter-registration process calls the inference of a causal nexus into question; hence, plaintiffs must produce more evidence to regain the preponderance.

         Counsel for Appellees suggested at oral argument that our en banc decision in LULAC v. Clements overruled Salas.[10] We certainly did not do so explicitly, and LULAC did not present the special problem of a registered-voter majority, nor has any case in our court ever since. Neither does this one. As noted, registered-voter data for District 22 was not in the record, so the problem confronted by Salas did not arise here. Moreover, Appellants passed on the many opportunities they had to argue that Salas should apply, acknowledging, instead, that the Veasey and LULAC framework controls.[11]

         ***

         A suit under the Voting Rights Act is a complicated undertaking, drawing together long and often painful local histories, tightly contested stakes, intricate legal inquiries, and a deep desire for electoral fairness. Whatever addition to that complexity might have come from the question of Salas's place in our law, I am hopeful this separate opinion may clarify it.

         APPENDIX

         (Image Omitted)

          DON R. WILLETT, Circuit Judge, dissenting:

         When President Lincoln issued the Emancipation Proclamation, declaring that slaves in rebel states "are, and henceforward shall be free, "[1] he remarked, "If my name ever goes into history, it will be for this act, and my whole soul is in it."[2] The war over America's original sin waged another two years. The Great Emancipator lived to see the Union preserved, but just barely. Appomattox was Palm Sunday, and Ford's Theatre was Good Friday.

         Earlier that week, President Lincoln had delivered a speech declaring his plans for peace and reconstruction. And perhaps healing would have taken hold under a second Lincoln term. But as it happened, the post-Lincoln American South was appallingly inhospitable to African-Americans.

         In 1870 the Fifteenth Amendment was ratified, commanding that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," and empowering Congress "to enforce this article by appropriate legislation." But Congress's first century of enforcement "can only be regarded as a failure"[3] as southern states erected barriers galore to disenfranchise African-American citizens. The institution of slavery- America's foundational failing-had ended, but the legacy of slavery had endured. For black Americans in the South, it seemed ineradicable, and racial injustice inescapable.

         Finally, in 1965, a full century after the Civil War ended, Congress passed the Voting Rights Act to make good on the promise of the Fifteenth Amendment by counteracting entrenched racial discrimination in voting. As the Supreme Court explained in upholding the VRA the year after it was enacted, Congress was aiming to combat "an insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution."[4] Section 2 of the VRA imposes a nationwide ban on voting discrimination, forbidding any "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color."[5]

         Nondiscrimination in voting is thus enshrined in the Constitution and laws of the United States. In my judgment, the Voting Rights Act is perhaps the noblest, most transformative legislation in American history.[6] And it "has proved immensely successful at redressing racial discrimination and integrating the voting process."[7]

         Also enshrined in American law is the broad power of States, "as provided in the Tenth Amendment . . . to regulate elections, "[8] including the power to shape congressional and state legislative districts.[9] Time and again, the Supreme Court has reaffirmed that electoral map-drawing "is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court."[10] Why? Because drawing district lines is, to quote the Supreme Court, "a most difficult subject, "[11] which is a G-rated way of describing a quintessentially political thicket besmeared with partisan point-scoring and one-upsmanship. Districting is the politics of politics. And the Framers, well acquainted with electoral maneuvering, wisely entrusted districting to political actors. Given the "complex interplay" of value-laden political forces at work, the Supreme Court says "the States must have discretion to exercise the political judgment necessary to balance competing interests."[12] This "allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States."[13] States are sovereign political entities in their own right, and when it comes to political map-making, "[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions."[14] This is particularly true when elections are fast approaching. In such cases, a wealth of election- law precedent counsels that it is often wiser for courts to push pause instead of fast-forward.

         To be sure, state prerogatives cannot override legal imperatives. As the Supreme Court recently recognized, "voting discrimination still exists; no one doubts that."[15] Maps must of course comply with both the Voting Rights Act and the Constitution, and courts undeniably have room to act swiftly when necessary. The issue in this case, though, is whether the district court's order transgressed settled principles of federal election law. To my mind, it did- alarmingly so.

         * * *

         Respectfully, but fervently, I dissent-for four main reasons:

1. The Supreme Court disapproves meddling in imminent elections.
2. The equitable defense of laches bars this suit.
3. The majority opinion's novel ยง 2 theory contradicts Supreme Court precedent, the VRA's plain text, and quite ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.