Defendants-Appellants Noxubee County Democratic Executive Committee and its chairman, Ike Brown, are tasked, among other things, with organizing and orchestrating Noxubee County’s Democratic primary and runoff elections. After investigating the methods by which defendants conducted the county’s 2003 elections, the United States brought this suit on behalf of the county’s white voters — the minority in that county — for alleged violations of § 2 of the Voting Rights Act. The district court considered the evidence presented during a two-week bench trial and concluded that defendants indeed violated § 2 by intentionally diluting the voting power of white Democrats. With the 2007 primary elections fast approaching, however, the court delayed announcing a remedy. After that primary — and in large part due to the events of that primary — the district court tailored a remedial order to prevent the recurrence of electoi-al abuses. Defendants now challenge both the district court’s liability holding and its remedial order.
I. FACTS AND PROCEEDINGS
Because the facts of this case are well set out in the district court’s thorough
A. Mississippi Electoral Processes
In addition to serving as the local governing body of the Democratic Party, NDEC and its chair are responsible for conducting the county’s Democratic primary elections. See Miss.Code Ann. § 23-15-263(1) , 1 Such a task includes qualifying candidates, printing absentee ballots, preparing ballots for the polls, appointing and training poll managers and clerks to staff the polls on election day, and generally supervising the primary election. See id. § 23-15-263(l). 2 The district court’s determinations, in both the liability ruling and the remedial order, focus specifically on the defendants’ failures with regard to observing Mississippi’s absentee ballot requirements, applying Mississippi’s specific method for counting absentee ballots, and preventing the illegal assistance of voters.
Mississippi’s absentee voting provisions are “intended to ensure the integrity of absentee ballots,” and, accordingly, the Mississippi Supreme Court “requires strict compliance with the statutes concerning absentee ballots.”
Lewis v. Griffith,
On election day, the absentee ballots are inspected for compliance with the above statutes and, if compliant, are counted. Candidates or their representatives may observe this counting and may lodge challenges against a ballot or a ballot’s affidavit. See id. §§ 23-15-577, -581, -643. 3 The counting process is set out by § 23-15-639(1): first, the manager must announce the name, address, and precinct inscribed on each envelope; and second, the signature of the voter’s absentee ballot application must be compared to the signature on the absentee ballot’s envelope. See also id. § 23-15-643 (“If the officials are satisfied that the affidavit is sufficient and that the absentee voter is otherwise qualified to vote, an official shall announce the name of the voter and shall give any person present an opportunity to challenge in like manner....”). If the affidavit is insufficient or the signatures fail to match, then the ballot must be marked “REJECTED” and kept apart from the accepted ballots. See id. § 23-15-641.
Finally, Mississippi permits assisting voters while they cast their ballots at the poll, but this permission is not without limit. Assistance may only be provided after a voter requests it and if the voter is either blind, disabled, or unable to read.
See id. §
23-15-549 (“Any voter
who declares to the managers
of the election that he requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter’s choice .... ” (emphasis added));
see also O’Neal v. Simpson,
With this picture of Mississippi’s election requirements in mind, we turn to the district court’s findings regarding how defendants’ conduct abused this process to the detriment of the county’s white voters.
B. The Liability Proceedings
Noxubee County’s voting population is 65.7% black and 32.5% white. Of the county’s registered Democrats, 80% are black and 20% are white.
4
Additionally, the parties concede and the government’s expert showed that the county’s voting is racially polarized, meaning that “there is a
The alleged violations of white voters’ rights occurred during the 2003 primary and subsequent runoff elections. The district court concluded that during that time “defendants engaged in improper, and in some instances fraudulent conduct, and committed blatant violations of state election laws[ ] for the purpose of diluting white voting strength.”
Brown,
The rate of absentee voting in Noxubee County is abnormally high relative to that of its sister counties: the government’s expert reported that, while roughly 20% of the ballots in Noxubee County are absentee ballots, other Mississippi counties experience an absentee voter rate anywhere from 3% to 6%. To maximize the number of absentee ballots, a common and legitimate practice in Mississippi is for a candidate or her supporters to hire notaries and dispatch them so that they may call on possible constituents who have applied to vote absentee — Brown did no less, as the evidence showed that he financed the notary fees of more than fifty notaries. But the district court found evidence demonstrating that defendants went beyond any legitimate bounds of this practice. First, the court heard testimony concerning the actions of Carrie Kate Windham, an NDEC member whose notary fee was paid by Brown. In one instance, Windham recruited Nikki Halbert, a black voter who did not qualify to vote absentee, to vote by absentee ballot. Although Halbert did not apply to vote absentee, she received an absentee ballot in the mail and completed it. Windham returned to collect the ballot, which she carried away in its unsealed and unsigned envelope. When shown the signatures on the application and envelope at trial, Halbert maintained that neither was hers.
5
Two additional black voters testified that Windham recruited them to vote by absentee ballot despite the fact that they did not meet the requirements and had not applied to do so. More troubling, these two voters — -who did not request voting assistance — indicated that Windham selected candidates for the voters and marked their ballots for them. Second, Mable Jamison, an independent notary,
6
These examples illustrated defendants’ attempts to obtain a disproportionate number of absentee ballots from black voters; nonetheless, “[a]n absentee ballot can only be effective if it is counted.”
Id.
at 461. To that end, the evidence illustrated defendants’ permitting the improper counting of absentee ballots and defendants’ — specifically, Brown’s — direct influence over poll managers in counting the ballots. Defendants deviated from the state Democratic party’s practice of employing a racially representative corps of poll managers and clerks; instead, they raised a workforce of only 6% whites in a county where 20% of registered Democrats are white. While counting the absentee ballots, the workers failed to count the absentee ballots in accordance with Mississippi law by neglecting to read each voter’s name aloud, preventing candidates and their representatives from clearly observing the ballots as they were counted, and ignoring challenges brought by candidates and their representatives. NDEC members were involved in this conduct: at the Shuqualak precinct, poll managers were directed by Gary Naylor, an NDEC member, to continue briskly counting absentee ballots despite complaints from a candidate’s representative that the speed at which the managers were counting prevented the reasonable viewing and inspection of the ballots. At the Title One precinct, NDEC members Dorothy McCoy, a poll manager, and Windham, not a poll manager, ignored a challenge to an absentee ballot and summarily counted the ballot. As for Brown, his involvement was particularly pervasive. At the West Macon precinct, Octavia Stowers, a poll manager, called Brown on a cell phone to tell him that challenges were being lodged against absentee ballots; Stowers then announced, “Ain’t no ballots being challenged. I was instructed by Ike not to— can’t no ballots be challenged,” and she thereafter refused to consider further challenges.
Id.
at 464. At the East Macon precinct, managers were unsure how to proceed when the absentee ballot of a voter who later voted in person was mixed in with the remaining, uncounted absentee ballots. Brown, according to witness testimony, entered the scene and ordered the poll managers to “[c]ount every vote, count them every one right now. Pick up those absentee ballots that are on that table and bring them over here and put them in that machine right now.”
Id.
at 465. The poll managers complied without any further examination of the absentee ballots. Finally, at the Brooksville precinct during the 2003 primary runoff, testimony showed that Brown inspected the absentee ballots the night before the runoff and placed yellow post-it notes on select ballots that he wished to be rejected. On the note, he indicated the reason why he considered the ballot deficient. The next day, Brown told the poll managers “I’ve already went through these absentee ballots and I put y’all’s stick-on stickers on the ballots that I want rejected and the rest of them is all right to count.”
Id.
at 466. Brown’s directions were followed without deviation. All of the marked ballots were rejected, including white voters’
The district court also heard evidence concerning the illegal assistance of black voters at the polling places. Witnesses recounted that both black poll workers and unidentified black individuals repeatedly approached black voters, who made no request for assistance, in order to solicit the provision of assistance. This assistance involved marking the ballots for the voter without consultation, and no such assistance was proffered to white voters. Defendants’ witnesses denied that such assistance was made and contended that voting assistance was provided only when requested; again, the court considered the government’s witnesses credible.
Finally, the district court considered evidence bearing on defendants’ intent. The government presented a press release issued by Brown prior to the 2003 primary election. In it, Brown named 174 Democratic voters, all white, whom he intended to challenge were they to vote in the 2003 Democratic primary. The press release purported to base this prospective challenge either on asserting that the voter moved outside the county or on claiming that the voter was not loyal to the Democratic party.
7
As only white voters were listed, the district court considered it “not credible in the least that Brown was only aware of whites who had moved and were consequently no longer eligible to vote.”
Brown,
The court considered statements made by Brown both during and before his chairmanship of NDEC in which he referenced race as a means to garner support for black candidates. In 1995, he urged voters to “Keep Hope Alive [and] Vote Black in ’95” in an open letter to Noxubee County voters. As chair of the NDEC, Brown voiced the opinion that all of the county’s elected officials should be black; to that end, he baldly accused white elected officials of racism, without support, in an effort to arouse black voters to vote against a white official and to support a black challenger.
8
He also recruited black
Considering all of this evidence, the district court concluded that defendants engaged in a “pattern of episodic behavior intended to deny white voters equal participation in the political process.” Id. at 482. By soliciting large numbers of defective black absentee ballots, wielding their authority to ensure that these ballots were counted, and permitting the improper assistance of black voters — all with the intent to dilute the voting power of white Democrats — defendants were held to have violated § 2 of the Voting Rights Act.
C. The Remedial Proceedings
After concluding that defendants were liable under § 2, the court ordered that each party submit a proposed remedy. To that end, the court considered testimony at two evidentiary hearings: one held prior to the August 2007 primary election; the other, after the election. Upon considering the evidence, the district court issued its remedial order.
On July 80, 2007, the district court conducted the first evidentiary hearing. There, the court considered the respective remedies proffered by the government and defendants. The government urged the district court to appoint a Referee-Administrator to “carry out almost all aspects of Democratic Primary elections, though the [defendants would otherwise be permitted to operate party functions as usual.” The government further requested that the court delay the county’s upcoming primary election. Additionally, the government sought to limit defendants’ access to the Circuit Clerk’s office two weeks prior to each election and their access to polling places on election day. In their response, defendants asserted that they had undertaken various voluntary steps in an effort to improve the county’s electoral process and that these steps had cured the practices found violative of the Voting Rights Act. Defendants further represented to the court that Brown would not participate in the absentee ballot process, that absentee ballots would be properly counted, that candidates and their representatives would be permitted to challenge absentee ballots, that individuals would not be permitted to offer unsolicited assistance to voters, and that poll managers would generally be instructed according to the Mississippi Poll MANAGER Guide. During the hearing, Brown testified that the only part he intended to play in the primary election was to certify the results. In view of these representations, the parties jointly recommended that the court permit the August 2007 primary election to go forward and to delay the subsequent runoff; the district court acquiesced and issued an order accordingly. Federal observers were authorized and, in August, the primary election took place.
At the second hearing, convened August 22, 2007, the district court was presented with testimony concerning the events of the primary election. Despite defendants’ representations, the election replayed many of the faulty characteristics of the 2003 elections. First, Brown remained in
Having heard the above evidence, the district court issued its remedial order on August 27, 2007.
See United States v. Brown,
No. 4:05-CV-33TSL-LRA,
Defendants now appeal both the court’s finding of liability and order remedying § 2’s violation.
A. The Liability Holding
1. Standard Of Review
We review a finding of intentional discrimination in a § 2 vote dilution case for clear error under Rule 52 of the Federal Rules of Civil Procedure.
See Thornburg v. Gingles,
2. Section 2’s Standards
Section 2 of the Voting Rights Act prohibits a state or political subdivision from employing any “standard, practice, or procedure ... 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). The statute is violated if “under the totality of the circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens.”
Id.
§ 1973(b). Episodic practices, such as one-sided absentee-ballot counting, constitute a “practice” under § 2.
See Welch v. McKenzie,
Under the intent-based approach, “[r]acial discrimination need only be one purpose, and not even a primary purpose, of an official act” for a violation to occur.
Velasquez,
3. The District Court Did Not Clearly Err
Considering the above standards, we find no clear error in the district court’s conclusion. The district court held that defendants “administered and manipulated the political process in ways specifically intended and designed to impair and impede participation of white voters and to dilute their votes.”
Brown,
In addition to questioning the district court’s findings, defendants challenge the court’s credibility determinations and come dangerously close to suggesting, without support, that the court’s decision to credit the testimony of the government’s witnesses over that of the defendants’ was racially motivated. But other than complain of this credibility determination, defendants fail to point to any contradictory evidence or internal inconsistency in the district court’s finding.
See Anderson,
Next, defendants incorrectly claim that the district court’s findings im-permissibly burden them with demonstrating they did not violate § 2. This argument misconstrues the district court’s actual considerations here. It is true that the government, as the plaintiff, bears the initial burden of proving that § 2 has been violated.
See Voinovich v. Quilter,
Finally, we recognize that the Voting Rights Act does not “guarantee minority success at the polls,” but it does require that “minorities not have ‘less opportunity than other[s] ... to participate in the political processes and to elect representatives of their choice.’ ”
Seastrunk,
Having found no clear error in the district court’s conclusion, we next consider the court’s remedy.
B. The Remedial Order
1. Standard Of Review
The district court’s relief is reviewed for an abuse of discretion.
See E. Carroll Parish Sch. Bd. v. Marshall,
2. Remedial Order Considerations
When devising a remedy to a § 2 violation, the district court’s “first and foremost obligation ... is to correct the Section 2 violation.”
Bone Shirt v. Hazeltine,
In light of the record detailing the events of the August 2007 primary election, we cannot say that the court abused its discretion in fashioning the remedial order. Before issuing the order, the district court considered proposed remedies from both parties and permitted defendants to supervise the upcoming primary election. Despite their representations to the court and despite the court’s prior liability holding, defendants recidivated. In so doing, defendants demonstrated that they could not be relied upon to voluntarily remedy their § 2 violation. Correspondingly, the district court tailored the terms of its order “to prevent a recurrence of past transgressions.”
Brown,
The district court held two evidentiary hearings before determining the appropriate remedy. At the first hearing, the court considered whether to enjoin and delay the upcoming August 2007 primary election. Upon the defendants’ indication that Brown would not participate in the absentee-ballot process, that absentee ballots would be properly counted, that candidates would be permitted to challenge absentee ballots, and that improper assistance would be prevented, the parties agreed that the primary election would occur as planned. At the second hearing, the district court heard testimony concerning the events of that election: Brown remained involved in handling and distributing the absentee ballots to the polls; Brown contacted two poll managers by phone, resulting in one manager prematurely concluding the ballot-counting process and leaving absentee ballots unexamined; absentee ballots were not counted according to the proper procedure, which is outlined in the Mississippi Poll Manager Guide that defendants indicated would be used to train poll managers; candidates were prevented from challenging absentee ballots; and individuals were permitted to provide unsolicited assistance to black voters. For their part, defendants do not attempt to explain or excuse their conduct during the 2007 primary election in their brief to this court.
Though it is apparent that defendants’ own conduct has rendered the remedial order’s terms necessary to right the § 2 violation, defendants now challenge select provisions of the order. In so doing, defendants repeatedly urge that federal observers would constitute a sufficient remedy and argue that the district court failed to explain why such observers would be ineffective. The simple answer, of course, is that the presence of federal observers did nothing to dissuade defendants from engaging in the same conduct found to have violated § 2. Additionally, defendants’ own authority for their proposition that observers alone are sufficient,
United States v. Berks County,
First, defendants assert that the authority granted to the Referee-Administrator — “all electoral duties ... shall be executed by the Referee-Administrator,”
Brown,
Defendants next complain of the order’s restricting Brown’s ability to communicate with poll workers, limiting Brown’s presence at the polling places and Circuit Clerk’s office, and barring defendants from interfering with the Referee-Administrator. As the facts of the August 2007 primary show, however, the court specifically limited Brown’s involvement because of Brown’s demonstrated inability to refrain from interfering with the legitimate mechanics of the county’s primary elections. The district court’s order bars Brown from “giv[ing] any written or oral instructions or mak[ing] any suggestions to poll officials regarding their duties as poll officials” and bars poll managers while they “are reviewing absentee ballots ... from contacting or receiving communication from defendant Brown ... at any time regarding the review of the absentee ballots.”
Brown,
We are equally unpersuaded by defendants’ contention that the remedial order’s delegating “all electoral duties” and directing that Mississippi’s electioneering laws be enforced “equally” are im-permissibly vague. “ ‘The mere fact that ... interpretation is necessary does not render the injunction so vague and ambiguous that a party cannot know what is expected of him.’ ”
Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co.,
Defendants’ final argument likewise lacks merit. They assert that shackling them with these restrictions while not similarly doing so to the county’s Republican executive committee violates their right to equal protection of the laws. But, as the government points out, the Republican executive committee, unlike defendants, has not been found to have violated § 2.
Considering the above, we are convinced that the district court did not abuse its discretion.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s order entered June 29, 2007 and its order entered August 27, 2007.
Notes
. Section 23-15-263(1) states that:
[T]he county executive committee at primary elections shall perform all duties that relate to the qualification of candidates for primary elections, print ballots for primary elections, appoint the primary election officers, resolve contests in regard to primary elections, and perform all other duties required by law to be performed by the county executive committee ....
See abo id. § 23-15-401 (“The term 'officials in charge of the election' shall mean ... the county executive committee .... ”).
. With specific regard to manning the polls, the executive committee must meet no later than two weeks prior to a primary election in order to appoint managers and, where permitted, clerks to work at each polling precinct. See id. § 23-15-265(1). The committee must name at least three managers per precinct, see id. § 23-15-231, but it may designate up to an additional three persons to serve either as managers or clerks, see id. § 23-15-235. Additional clerks may be appointed if the voting precinct contains more than 500 registered voters. Id. The committee must then sponsor training sessions for the election managers no less than five days prior to the primary election. See id. § 23-15-239(1).
. Section 23-15-577 states that the poll managers must publicly count the ballots and that:
Each candidate shall have the right, either in person or by a representative to be named by him, to be present at the polling place, and the managers shall provide him and his representative with a suitable position from which he or his representative may be able to carefully inspect the manner in which the election is held. He or his representative shall be allowed to challenge the qualifications of any person offering to vote, and his challenge shall be considered and acted upon by the managers.
Regarding observation of the ballots, § 23-15-581 dictates that "[cjandidates or their duly authorized representatives shall have the right to reasonably view and inspect the ballots as and when they are taken from the box and counted.”
. All of the county's Republicans at the time were white.
. Additionally, the court permitted Halbert to testify a second time at trial because, after her initial testimony, Windham confronted Hal-bert about her testimony outside of court. According to Halbert, Windham arrived at Halbert's home, stated that "[w]e black people need to stick together,” and suggested that Halbert should "tell them that you probably didn’t understand what you was being asked, the reason you said what you said.” Id. at 460 n. 34. Despite this, Halbert's testimony remained unchanged.
. Jamison was "independent” in that she did not seek out absentee ballots for any particular candidate. She aided absentee voters on her own as a form of community service.
. The latter challenge relied on § 23-15-575, which states that "[n]o person shall be eligible to participate in any primary election unless he intends to support the nominations made in the primary in which he participates." Mississippi’s Attorney General issued an opinion addressing the enforceability of this provision and strongly cautioned against challenging voters in this regard.
See
Op. Miss. Att’y Gen. (July 21, 2003),
. We emphasize that Brown is not being punished for the content of his speech. The district court made clear that it considered Brown's statements only insofar as they illuminated his motive and intent in connection with the conduct that did violate § 2. See id, at 452 (stating that Brown's statements “give context and meaning to his actions as NDEC chairman”).
. For example, the Guide instructs poll managers, among other things, to "[a]nnounce the name, address, and precinct as shown on each absentee ballot envelope”; to "make sure the affidavit ... on the envelope and the application is sufficient”; and to "[g]ive anyone present the opportunity to challenge any absentee ballot.” Miss. Sec’y State, Mississippi Poll Manager Guide 28 (2008), available at http://www.sos.state.ms.us/elections/ Mississippi 20TSX% 20Poll% 20Managers% 20Guide.pdf.
. These factors include in pertinent part:
b. the extent to which voting in the elections of the state or political subdivision is racially polarized;
f. whether political campaigns have been characterized by overt or subtle racial appeals;
i. whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Magnolia Bar Ass’n v. Lee,
. We reiterate that Brown's statements are not, in themselves, at odds with § 2. His statements, however, bear on the nature of his intent in performing the conduct at issue here.
. The government asserts that defendants failed to object to the order’s provisions below and that, therefore, defendants have not preserved these arguments. We disagree. There is "[n]o bright-line rule ... for determining whether a matter was raised below.”
Castillo v. Cameron County,