*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60793

Summary Calendar

_____________________

HOWARD GUNN, Individually, and on behalf of

all others similarly situated,

Plaintiff-Appellee,

versus

CHICKASAW COUNTY, MISSISSIPPI, ET AL.,

Defendants,

CHICKASAW COUNTY, MISSISSIPPI,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:92-CV-142

_________________________________________________________________

December 18, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Howard Gunn, individually, and on behalf of all others

similarly situated (the “plaintiffs”), filed the instant lawsuit

against Chickasaw County, Mississippi, alleging that Chickasaw

County’s justice court judge/constable reapportionment plan was

designed to dilute, minimize, and cancel the votes of the black
 

1The defendant contends that, because it argues that the

district court applied incorrect legal standards and made findings

of fact based on these standards, this court should review the

district court’s judgment de novo. Findings of fact in Section 2

cases, even when based on a misreading of the applicable law, are

reviewed for clear error. See Johnson v. De Grandy, 512 U.S. 997,

2

residents, thereby violating the Fourteenth and Fifteenth

Amendments of the United States Constitution. The plaintiffs

alleged that the electoral scheme also violated Sections 2 and 5 of

the Voting Rights Act of 1965, as amended.

After conducting a two-day bench trial, the district court

found that Chickasaw County’s current districting plan violated

Section 2 of the Voting Rights Act of 1965 (“Section 2"), as well

as the Fourteenth and Fifteenth Amendments. The district court

ordered the parties to submit a joint proposal creating a majorityblack justice court judge/constable district in Chickasaw County

within sixty days of the judgment and awarded Gunn his reasonable

attorney’s fees and costs. The defendant filed a timely notice of

appeal. The district court stayed its joint-proposal order pending

completion of the instant appeal. On appeal, the defendant argues

that the district court clearly erred in holding that Chickasaw

County’s justice court judge/constable districts violate Section 2.

Because we find that the district court did not err in reaching its

decision, we affirm.

I

A district court’s findings in a Section 2 case are reviewed

for clear error.1 Magnolia Bar Ass’n v. Lee, 994 F.2d 1143, 1147
1022 (1994)(holding ultimate finding of dilution in districting

that was based on misreading of governing law to be clearly

erroneous).

3

(5th Cir. 1993). If the district court applied the correct legal

standards, its findings should not be reversed if they are

plausible in the light of the record viewed as a whole. Id.

Section 2 states that:

No voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner

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 . . . .

42 U.S.C. § 1973(a). A plaintiff must initially prove three

preconditions in order to establish that an at-large voting scheme

dilutes minority voting strength, thereby violating Section 2.

Thornburg v. Gingles, 478 U.S. 30, 48-51 (1986). The minority

group must establish that: (1) “it is sufficiently large and

geographically compact to constitute a majority in a single-member

district”; (2) “it is politically cohesive”; and (3) “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.”

Id. at 50-51 (internal and external citations omitted). These socalled Gingles preconditions also apply to challenges to singlemember districts. Growe v. Emison, 507 U.S. 25, 39-41 (1993). 

After satisfying the Gingles preconditions, the minority group

must establish a Section 2 violation by showing that, based on the
4

totality of the circumstances, they “have less opportunity than

other members of the electorate to participate in the political

process and to elect representatives of their choice.” § 1973(b).

Section 2 makes clear that a violation may be proved by showing

discriminatory effect alone, thereby codifying the “results test”

set forth in White v. Regester, 412 U.S. 755 (1973). Gingles, 478

U.S. at 35. 

II

The defendant argues that the district court clearly erred in

determining that the black population of Chickasaw County was

sufficiently geographically compact to compose a majority in a

single-member district. The defendant argues that the plaintiffs’

proposed majority-black districts are so bizarrely-shaped that they

were obviously drawn solely based on race. Id.

“The first Gingles precondition does not require some

aesthetic ideal of compactness, but simply that the black

population be sufficiently compact to constitute a majority in a

single-member district.” Clark v. Calhoun County, 21 F.3d 92, 95

(5th Cir. 1994)(“Clark I”)(citation omitted). “[P]laintiffs’

proposed district is not cast in stone . . . [but] was simply

presented to demonstrate that a majority-black district is feasible

in [the county at issue].” Id. These districts must necessarily

be drawn based on race in order to qualify as majority-black

districts. The district court noted that the plaintiffs’ proposed

redistricting plan created a majority-black district by generally
 

2 Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)(en banc).

5

following supervisor-district lines with only two small splits.

Because it was plausible for the district court to find that the

plaintiffs’ proposed majority-black districts satisfied the first

Gingles precondition, the district court did not clearly err.

III

The defendant also argues that the district court clearly

erred in concluding that, based on the totality of the

circumstances, Chickasaw County’s justice court judge/constable

districts violated Section 2. Courts are guided in their totality

of the circumstances inquiry by the so-called Zimmer2 factors,

which include:

‘[T]he history of voting-related discrimination in the

State or political subdivision; the extent to which

voting in the elections of the States or political

subdivision is racially polarized; 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; the exclusion of members of the minority

group from candidate slating processes; 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; the use of overt or

subtle racial appeals in political campaigns; and the

extent to which members of the minority group have been

elected to public office in the jurisdiction.’

Clark v. Calhoun County, 88 F.3d 1393, 1396 (5th Cir. 1996) (“Clark

II”)(quoting Gingles, 478 U.S. at 44-45). The district court

should also consider “‘evidence demonstrating that elected
6

officials are unresponsive to the particularized needs of the

members of the minority group and that the policy underlying the

State’s or the political subdivision’s use of the contested

practice or structure is tenuous may have probative value.’” Id.

(quoting Gingles, 476 U.S. at 45).

The defendant argues that the district court clearly erred in

finding that evidence regarding the responsiveness of elected

officials to the needs of the black community did not favor either

party. Although the defendant cites to the testimony of two

witnesses regarding instances when elected officials responded to

the needs of the black community, the testimony of one of these

witnesses was rebutted by subsequent testimony. In sum, the

evidence cited by the defendant “do[es] not reflect the

comprehensive and systematic responsiveness to minority needs that

is entitled to substantial weight in the totality-of-circumstances

inquiry.” Clark II, 88 F.3d at 1401.

The district court further found that the plaintiffs had

established the two most relevant factors: “the extent to which

minority group members have been elected to public office in the

jurisdiction” and the “extent to which voting in the elections and

the state political subdivision is racially polarized.” R. 89-90;

see also Gingles, 478 U.S. at 48 n.15. The defendant argues that

the district court’s finding that voting in Chickasaw County was

racially polarized was not supported by sufficient evidence. The

district court noted, however, that the plaintiffs presented expert
7

testimony that voting in Chickasaw County was racially polarized

and that this testimony was supported by actual election results in

Chickasaw County.

The defendant also argues on appeal that the election of

several black candidates in various positions in Chickasaw County

indicates that blacks have previously been elected to public office

in Chickasaw County and contradicts the district court’s finding of

significant racial bloc voting. However, the fact that a black

candidate was elected in a political subdivision in which blacks

constitute a minority does not necessarily indicate significant

crossover-voting by whites, as a candidate may be uncontested or

may be elected by a minority in a race with multiple candidates.

See Gingles, 478 U.S. at 56 (black voters’ ability to elect

representatives of their choice is dependent on many factors, such

as number of seats open and number of candidates in field). In

this case, only one of the black candidates indicated by defendant

was elected as a constable and none was elected as a justice court

judge. See Gingles, 478 U.S. at 57 (fact that some individual

elections do not indicate racially polarized voting does not negate

conclusion that district experiences legally significant racial

bloc voting, and success of minority candidate in particular

election does not necessarily indicate that the district did not

experience racially polarized voting); Magnolia Bar Ass’n, 994 F.2d

at 1149 (elections involving particular office at issue are more

relevant than elections involving other offices). Racial
8

polarization in elections in Chickasaw County has been previously

established. See Gunn v. Chickasaw County, 705 F. Supp. 315, 320

(N.D. Miss. 1989)(ultimately holding Chickasaw County’s

redistricting plan for supervisory districts violated Section 2).

Because it was plausible that the plaintiffs established these two

critical factors based on the record as a whole, the district court

did not clearly err.

The defendant finally argues that the district court clearly

erred in finding a socio-economic difference between blacks and

whites in Chickasaw County, resulting in lower voter participation

by blacks. Expert testimony and lay testimony by Gunn supported

the district court’s finding. The district court also took

judicial notice of Mississippi’s and Chickasaw County’s history of

discrimination in the area of voting and the fact that Gunn was the

first black to register to vote in Chickasaw County, which was

accomplished in 1963 by order of the court.

Because its finding was plausible in the light of the record

as a whole, the district court did not clearly err.

IV

The defendant contends that the district court clearly erred

in concluding that a majority-black district could be created

without unduly subordinating race-neutral districting principles to

strict scrutiny racial considerations. The defendant argues that

the plaintiffs’ proposed majority-black district cannot withstand

strict scrutiny, as mandated by Miller v. Johnson, 515 U.S. 900,
9

916 (1995). The plaintiffs’ proposed majority-black district was

submitted for the purpose of satisfying the first Gingles

precondition. This court has held that Miller does not apply to

the first Gingles precondition. Clark II, 88 F.3d at 1406-07. The

defendant’s argument therefore has no merit.

V

After a thorough examination of the record and the briefs

submitted by the parties, we find no clear error. The district

court’s findings were plausible in the light of the record read as

a whole and the decision of the district court is therefore

A F F I R M E D.