UNITED STATES OF AMERICA
Plaintiff,
-vs-
CASE NO. 6:05-cv-1053-ORL-31 DAB
OSCEOLA COUNTY, FLORIDA, and
and DONNA BRYANT, Supervisor of Elections,
Defendants.
__________________________________________
ORDER
On October 18, 2006 this Court issued
its finding that Defendants (collectively referred to herein as the County) had
violated Section 2 of the Voting Rights Act. (Doc. 89). That Opinion ordered the
parties to submit proposed remedial plans by November 22, 2006. A hearing on the
remedial plans was held on December 7, 2006.
The County's remedial plan was
legislatively enacted on November 13, 2006, following a public hearing, by adoption of
Resolution No. 06-078(R). That plan proposed to increase the number of county
commissioners from five to seven, with five single-member districts and two at-large
seats elected county-wide. The County proposes a special election to be held in the
Spring of 2007, at which time two single-member district commissioners would be
elected to four year terms: District 3 (the Hispanic majority district for which
there would be no incumbent) and District 4 (in which Ken Smith is the incumbent).
In addition, the two county-wide at-large seats would be elected-Group 1 for a
four-year term and Group 2 for a two-year term.1
The three commssioners elected in 2004, Messrs. Owen (District 1), Shipley (District 2)
and Land (District 5) would continue to serve the balance of their four-year terms.
The United States objected to the County's
plan, contending that the only appropriate remedy is a five-member single district plan.
The United States proposed two such plans with all five seats to be elected in the spring
special election. The single-member district plans proposed by the United States were drawn
based on 2000 Census data. Each plan contains a Hispanic majority district with no incumbent.
The plans are compact and within the allowable ten percent deviation. Also, with minor
necessary exceptions, both plans build districts using whole precincts. The only significant
difference between the two plans is that plan 2 separates two incumbent commissioners-Messrs.
Smith and Shipley.
For proportionality purposes, the County drew
its districts using certificate of occupancy data to update the Census data. Nothwithstanding
the County's effort to refine the data, the Court concluded that 2000 Census data should be used
for remedial purposes. (See this Court's Order at Doc. 96). On December 6, 2006, the parties
stipulated to using the districts outlined in the United States' second remedial plan.
(Doc. 97).2 Therefore, the only remaining issue in dispute
is whether the two additional at-large seats proposed by the County are consistent with the
remedial purposes of the Act.
The County contends that its legislative plan is
entitled to deference, and should be adopted unless it is in violation of the Act. Wise v.
Lipscomb, 437 U.S. 535, 540 (1978); Tallahassee Branch of NAACP v. Leon County, 827
F.2d 1436, 1438 (11th Cir. 1987). The United States, on the other hand, argues that this Court does
not have the authority to approve the County's plan because it increases the size of the legislative
body. The United States relies on a line of cases in the Eleventh Circuit stemming from the
United States' Supreme Court's decision in Holder v. Hall, 512 U.S. 874 (1994). None of
those cases, however provide clear direction under the circumstances presented here.
In Holder, the Court held that a Section 2
challenge based on the size of a legislative body could not be successful, because the Court
would have no guidance in choosing a benchmark against which to compare the current system.
Id. at 881, 885. Holder was about liability, not remedy. In this case, liability
has already been determined, and was not based on the size of the Board.
The Eleventh Circuit first applied Holder
in Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994). In Nipper, the Court
refused to find liability in a case in which all of the Plaintiffs' comparison plans involved
changes in the size of the governmental body. Again, the Court held that a liability challenge
based on the size of the body could be successful. The Nipper Court did state that, under
Holder "federal courts may not mandate, as a section 2 remedy that a state or
political subdivision alter the size of its elected bodies." Id at 1532 (emphasis supplied).
However, the holding does not necessarily preclude a court from approving a change in the
size of the electoral body as a part of a legislatively enacted Section 2 remedy.
Essentially, the line of cases cited by the United
States stand firmly for the principal that judicially enacted plans, or even plans proposed by the
parties, that increase the size of an elected body are impermissible. However, none of those cases
address remedial plans that were enacted by a legislative body, as is the case here. Furthermore,
none of them purport to overrule cases such as Wise and Leon County which support
the principal of deference to legislative plans, even when they alter the size of the elected
bodies. Therefore, it appears that the law regarding whether district courts have the power to
approve a legislatively enacted increase in the size of an elected body is unclear. However,
this Court need not decide that issue, because, in this case, the County's 5-2 plan is not a full
and adequate remedy and therefore cannot be approved in any case.
In Section 2 cases, it is clear that any remedy
sanctioned by the Court must completely remedy "the prior dilution of minority voting strength
and provide equal opportunity for minority citizens to participate and to elect candidates of choice."
White v. Alabama, 74 F.3d 1058, 1069 (11th Cir. 1996). While courts may not ensure or require
that minorities receive proportional representation in any elected body, the equal opportunity to elect
candidates is at the heart of the Section 2. Id. at 1072. The County's plan, in effect,
perpetuates the vote dilution that this case seeks to resolve.
Under the United States' plan, the Hispanic
community would have a reasonable opportunity to elect one out of five members of the Board (20%).
Under the County's plan, however, that opportunity is diluted to one out of seven members, the
Hispanic community should have a opportunity to elect two board members (28%), because if
Osceola County were to be split into seven districts, a plan can be drawn in which two of those
districts are majority Hispanic.3 As this Court has
already found, Hispanics in Osceola County have no reasonable opportunity to elect emembers in
an at-large election. Therefore, given the high degree of historically polarized voting, the
extra two at large seats are completely out of the reach of the Hispanic community. The County's
plan results in an unequal opportunity for Hispanics to elect members of the Board, and
therefore, is not a full and adequate remedy to the Section 2 violation.
Finally, the United States' agreed in open court
to the implementation of the schedule and pre-registration plan proposed by the County. Thus,
this Court approves the United States' Proposed Remedial Plan 24
as well as the County's proposed electoral schedule and pre-registration proposal.
5
DONE and ORDERED in Chambers, Orlando
on December 8, 2006.
_______/s/_____________
GREGORY A. PRESNELL
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Records
Unrepresented Party
_____________________________
1 The variance in term-lengths is necessary to create staggered elections.
2 See County Resolution No. 06-092(r), dated December 6, 2006.
3 In fact, in the seven district model, there is a third district that is 46%
Hispanic, and therefore Hispanics would have an opportunity to substantially influence the election
of three members of the Board.
4 A five single-member district plan, using the map contained in the
stipulation. (Doc. 97 at 7).
5 Outlined in the calendar attached to the County's Proposed Remedial PLan. (Doc 92 at 37-42).
