Lewis v. Alamance County NC ( 1996 )

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNESTINE LEWIS; SYLVESTER J.
LEWIS,
Plaintiffs-Appellants,
and
MINNETTA E. HILL,
Plaintiff,
No. 95-2002
v.
ALAMANCE COUNTY, NORTH
CAROLINA, including its Board of
Commissioners and Board of
Elections,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CA-92-614)
Argued: March 5, 1996
Decided: November 4, 1996
Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Chief Judge Wilkinson joined. Chief Judge Wilkinson
wrote a concurring opinion. Judge Michael wrote a dissenting opin-
ion.
_________________________________________________________________
COUNSEL
ARGUED: Donnell Van Noppen, III, PATTERSON, HARKAVY &
LAWRENCE, Raleigh, North Carolina, for Appellants. J. Michael
Crowell, THARRINGTON, SMITH, Raleigh, North Carolina, for
Appellees. ON BRIEF: E. Hardy Lewis, THARRINGTON, SMITH,
Raleigh, North Carolina; S. C. Kitchen, Alamance County Attorney,
Graham, North Carolina, for Appellees.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Appellants Ernestine and Sylvester Lewis, black voters of appellee
Alamance County, North Carolina, challenged the County's at-large
method of electing county commissioners, arguing that black citizens
have been denied an equal opportunity to elect representatives of their
choice through vote dilution, in violation of Section 2 of the Voting
Rights Act, 42 U.S.C. § 1973. The district court granted summary
judgment for the County, holding that plaintiffs failed to demonstrate
that minority-preferred candidates are usually defeated by white bloc
voting, as required by Thornburg v. Gingles, 478 U.S. 30 (1986). For
the reasons that follow, we affirm.
I.
Alamance County is governed by a Board of Commissioners, the
five members of which are elected, in at-large partisan elections, to
four-year staggered terms. Voters are allowed to cast votes for as
many candidates as there are vacant seats, but they cannot cast more
than one vote for any one candidate. Since the 1965 passage of the
Voting Rights Act, black candidates have run for seats on the Board
in eight of fourteen election cycles. Only one black candidate, Jack
O'Kelley, has been elected, although he was elected three times, in
2
1974 (after first being appointed to fill a vacancy), 1976, and 1980.
Moreover, white candidates supported by a majority (often substan-
tial) of black voters, either in the primary election, the general elec-
tion, or both, have repeatedly won election.1
Section 2(a) of the Voting Rights Act of 1965 prohibits a State or
its political subdivisions from imposing any voting practice "in a
manner which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color." 42
U.S.C. § 1973(a). Section 2(b) of the Act, as amended in 1982, further
provides that a violation of § 2(a) occurs,
if, based on the totality of circumstances, it is shown that the
political processes leading to nomination or election in the
State or political subdivision are not equally open to partici-
pation by members of a class of citizens protected by sub-
section (a) of this section in that its members have less
opportunity than other members of the electorate to partici-
pate in the political process and to elect representatives of
their choice.
42 U.S.C. § 1973(b) (emphasis added).2
_________________________________________________________________
1 The census data of 1990 shows that Alamance County's population
is 79.8% white, 19.2% black. Voting age population is 81.2% white,
18.0% black. As of April 1994, the population of registered voters was
84.1% white, 15.5% black. While 59% of all registered voters in the
county are Democrats, blacks in Alamance County are overwhelmingly
Democrats (94%). For this latter reason, when we refer to primary elec-
tions, we are referring only to the Democratic primaries.
2 The full statute provides as follows:
(a) No voting qualification or prerequisite to voting or stan-
dard, practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United
States to vote on account of race or color, or in contravention of
the guarantees set forth in section 1973b(f)(2) of this title, as pro-
vided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established
if, based on the totality of circumstances, it is shown that the
3
In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court
interpreted the amended Voting Rights Act as it applied to a challenge
to multi-member districts in which candidates were elected at large.
Rejecting the claim that an at-large election scheme is per se violative
of the Voting Rights Act, id. at 48, the Court established three precon-
ditions to proving that such a voting system dilutes minority group
voting strength sufficiently to violate the Act:
First, the minority group must be able to demonstrate that
it is sufficiently large and geographically compact to consti-
tute a majority in a single-member district. . . .
Second, the minority group must be able to show that it is
politically cohesive. . . .
Third, the minority must be able to demonstrate that the
white majority votes sufficiently as a bloc to enable it . . .
usually to defeat the minority's preferred candidate.
478 U.S. at 50-51. If these preconditions are met, the court must then
determine under the "totality of circumstances" whether there has
been a violation of Section 2. See Johnson v. De Grandy, 114 S. Ct.
2647, 2657 (1994); Collins v. City of Norfolk, Va., 816 F.2d 932, 938
(4th Cir. 1987) ("Collins I") ("[The] ultimate determination [of vote
dilution under the Voting Rights Act] still must be made on the basis
of the `totality of the circumstances.'").
In an effort to meet Gingles' second and third preconditions, plain-
_________________________________________________________________
political processes leading to nomination or election in the State
or political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) of this
section 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. The extent to which
members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may be
considered: Provided, That nothing in this section establishes a
right to have members of a protected class elected in numbers
equal to their proportion in the population.
4
tiffs' expert in this case conducted bivariate ecological regression
analyses on the eleven primary and general elections in which a black
candidate was on the ballot. Based on those regression analyses, the
expert estimated the level of support among black voters for each
candidate.3 Plaintiffs then proffered the voter preference estimates as
_________________________________________________________________
3 In the face of the County's intended challenge to the use of such sta-
tistical evidence, we again caution against overreliance on bivariate eco-
logical regression analysis in the estimation of voter preferences for
purposes of a vote dilution claim. See, e.g., Smith v. Brunswick County,
Va., Bd. of Supervisors, 984 F.2d 1393, 1400 n.6 (4th Cir. 1993). Bivari-
ate regression analysis, as used in Voting Rights Act cases, only allows
one to determine the correlation between the percentage of the vote
received by a particular candidate and the racial composition of voting
precincts. See, e.g., Jenkins v. Red Clay Consol. School Dist. Bd. of
Educ., 4 F.3d 1103, 1119 n.10 (3d Cir. 1993) (citing Richard L. Eng-
strom & Michael D. McDonald, Qualitative Evidence in Vote Dilution
Litigation: Political Participation and Polarized Voting, 17 URB. LAW.
369, 374 (Summer 1985)), cert. denied , 114 S. Ct. 2779 (1994); City of
Carrollton Branch of the NAACP v. Stallings , 829 F.2d 1547, 1556 (11th
Cir. 1987), cert. denied, 485 U.S. 936 (1988). The relevant correlation
for vote dilution claims, however, is that between the race of the voters
and the votes cast for a particular candidate, not that between the racial
composition of precincts and the votes cast for a particular candidate, for
it is only the former from which one can accurately estimate actual voter
preferences. One can derive estimates of voter preferences from the
regressions employed here only by assuming that the level of minority
support for the candidate is fairly constant across precincts -- an "eco-
logical" assumption that runs counter to the common sense observation
that blacks and whites who live in integrated neighborhoods are more
likely to vote for candidates of another race. See, e.g., Bernard Grofman
et al., Minority Representation and the Quest for Voting Equality 89
(1992) ("The principal disadvantage [of ecological regression is] the pos-
sibility of errors owing to ecological inference."); id. ("[T]he `ecological
fallacy' . . . is the error of attributing the average behavior of voters in
a given geographic area (ecological unit) to all voters in that area."). In
other words, the bivariate ecological regression analysis merely assumes
that which it is the purpose of the analysis to prove -- political cohesive-
ness and constancy of candidate preference among minority voters and
racial bloc voting among majority voters. See Overton v. City of Austin,
871 F.2d 529, 539 n.12 (5th Cir. 1989) ("[Bivariate ecological regression
analysis] assumes that the voters in most precincts voted according to
their ethnicity."); id. at 539 ("[T]rial court should not ignore the imper-
fections of the data used nor the limitations of[bivariate ecological
regression] analysis").
5
proof of both black voter cohesion (the second Gingles element) and
white bloc voting sufficient to usually defeat black-preferred candi-
dates (the third Gingles element). After reviewing the voter prefer-
ence estimates from plaintiffs' expert on these selected elections, the
district court held that plaintiffs had failed to provide evidence suffi-
cient to satisfy the third Gingles element, because they had not shown
that black-preferred candidates were usually defeated. Based upon the
limited data before the court, this conclusion was fully supported even
by plaintiffs' own expert witness, who admitted during his deposition
that twenty of the thirty-one candidates "generally preferred" by black
voters in the select number of elections he analyzed won election or
nomination, thirteen of twenty-two "strongly preferred" candidates
won election or nomination, and eleven of the seventeen "strongest
preferred" candidates won election or nomination. If only the five
general elections analyzed by plaintiffs' expert are considered, eight
of the eleven candidates most strongly preferred by black voters were
elected to seats on the Board.
Plaintiffs advance on appeal four arguments as to why the district
court's conclusion was in error. We reject plaintiffs' claim that those
white candidates who received overwhelming support from black vot-
ers in general elections, assertedly only because they were Democrats,
should not have been considered as black-preferred candidates by the
district court. And we also reject plaintiffs' argument that the district
court erred in not discounting the repeated success of one of the
minority-preferred candidates because of the alleged effects of incum-
bency. We agree with plaintiffs, however, that the district court
improperly aggregated primary and general election results, and also
that it failed to conduct an individualized determination into whether
some candidates should be treated as black-preferred candidates.
Additionally, we conclude that the district court erred in a third
respect, by basing its decision exclusively on data from elections in
which a black candidate was on the ballot, rather than on a more rep-
resentative sample of elections. By limiting its consideration to elec-
tions in which a candidate of the minority's race was on the ballot,
the district court may have failed to include as black-preferred candi-
dates some white candidates who may very well have been the repre-
sentatives of choice of the black community.
6
II.
Turning first to what we perceive to be the overarching error, we
believe that, by considering only elections in which a black candidate
was on the ballot, the district court failed to analyze a sufficient num-
ber of elections to enable it to determine whether white bloc voting
usually operates to defeat minority-preferred candidates. As noted, the
district court considered only election data from eleven of the twenty-
eight primary and general elections held since passage of the Voting
Rights Act -- six of fourteen primary elections and only five of four-
teen general elections. Although we recognize that this election data
was the only data proffered by plaintiffs, we believe that, without a
larger, more representative sample of elections, the district court sim-
ply did not have before it sufficient evidence to determine whether the
black-preferred candidates usually were defeated,4 unless one is will-
_________________________________________________________________
4 We do not imply that the third Gingles element is met if plaintiffs
merely show that white bloc voting defeats the minority-preferred candi-
date more often than not. The terms used by the Gingles Court are "usu-
ally," "normally," and "generally." 478 U.S. at 49, 51, 56. We need not
in this case specify a meaning for these terms; suffice it to say that they
mean something more than just 51%. See Clarke v. City of Cincinnati,
40 F.3d 807, 812-13 (6th Cir. 1994) (finding that 47% success rate was
"no reason to find that blacks' preferred black candidates have `usually'
been defeated."), cert. denied, 115 S. Ct. 1960 (1995); Uno v. City of
Holyoke, 72 F.3d 973, 985 (1st Cir. 1995) ("[T]o be legally significant,
racially polarized voting in a specific community must be such that, over
a period of years, whites vote sufficiently as a bloc to defeat minority
[-preferred] candidates most of the time ." (emphasis added)). Indeed, Jus-
tice O'Connor suggested in Gingles that a finding of "usually defeated"
should be based on a success rate by minority-preferred candidates that
is less than proportional representation, although greater than mere
tokenism. 478 U.S. at 99-100 (O'Connor, J., concurring in judgment)
("[A] reviewing court should be required to find more than simply that
the minority group does not usually attain an undiluted [that is, propor-
tional] measure of electoral success. The court must find that even sub-
stantial [that is, less than proportional but more than token] minority
success will be highly infrequent under the challenged plan before it may
conclude, on this basis alone, that the plan operates `to cancel out or min-
imize the voting strength of [the] racial grou[p].'" (quoting White v.
Regester, 412 U.S. 755, 765 (1973))); see also Jenkins, 4 F.3d at 1122("If minority-preferred candidates are consistently able to prevail in rep-
resentative numbers . . . , then it cannot be said that white voters vote
sufficiently as a bloc usually to prevent the election of the minority pre-
ferred candidates." (emphasis added)).
7
ing to assume (which we are not) that the black community will never
have a preferred candidate in an election in which no black candidate
is on the ballot, or, more fundamentally, that a black voter can never
prefer a candidate who is white.
Although the district court erred in this regard, we do not reverse
its judgment because of this error, for it is the plaintiffs' burden to
establish a violation of Section 2, and therefore their burden to proffer
data from a sufficient number of elections to enable the district court
to determine whether white bloc voting usually defeats minority-
preferred candidates. Where, as here, plaintiffs fail to carry their bur-
den to proffer sufficient evidence, and the district court correctly con-
cludes on the basis of the proffered evidence that no Section 2
violation has been established, then the plaintiffs cannot be heard to
complain.
A.
Section 2 of the Voting Rights Act prohibits the use of voting pro-
cedures, such as at-large elections, that afford minority voters less
opportunity than other members of the electorate"to elect
representatives of their choice," 42 U.S.C.§ 1973(b) (emphasis
added), or, in the language of Gingles, that afford minority voters less
opportunity to elect minority-preferred candidates. Gingles, 478 U.S.
at 51. The only possible interpretation of this unambiguous language
is that Section 2 prohibits any election procedure which operates to
deny to minorities an equal opportunity to elect those candidates
whom they prefer, whether or not those candidates are themselves of
the minority race. As Justice Brennan observed in Gingles, "it is the
status of the candidate as the chosen representative of a particular
racial group, not the race of the candidate," which is relevant in
determining whether Gingles' third precondition is satisfied. Gingles,
478 U.S. at 68 (plurality opinion of Brennan, J., joined by Blackmun,
Marshall, and Stevens, JJ.); see Collins I, 816 F.2d at 937 n.5 ("The
question is not . . . so simple as how many blacks versus whites were
elected. The court must examine the parties' studies of voting prefer-
ences to determine which were the preferred candidates of the major-
ity and minority communities."); see also Lani Guinier, The Triumph
of Tokenism: The Voting Rights Act and the Theory of Black Electoral
Success, 89 MICH. L. REV. 1077, 1103 n.115 (1991) ("Authentic repre-
8
sentatives [of the black community] need not be black as long as the
source of their authority, legitimacy, and power base is the black
community."). That is, a minority-preferred candidate may be a non-
minority, just as a minority candidate may be the preferred candidate
of the voters of the majority's race. The black community may prefer
a white candidate, as the white community may prefer a black candi-
date. A Martin Luther King, Jr. or a Colin Powell can represent white
Americans, no less than a John Fitzgerald Kennedy or a Hubert Hum-
phrey can represent black Americans. To indulge the contrary pre-
sumption, that every black person necessarily prefers a black
candidate over a white candidate, or that every white person necessar-
ily prefers a white candidate over a black candidate, would itself con-
stitute invidious discrimination of the kind that the Voting Rights Act
was enacted to eradicate, effectively disenfranchising every minority
citizen who casts his or her vote for a non-minority candidate. To
acquiesce in such a presumption would be not merely to resign our-
selves to, but to place the imprimatur of law behind, a segregated
political system -- in Judge Cabranes' words, an"electoral apart-
heid," NAACP v. City of Niagara Falls, N.Y., 65 F.3d 1002, 1016 (2d
Cir. 1995) -- in derogation of the most fundamental principles of our
representative democracy and in betrayal of our most cherished
beliefs about individual autonomy and political self-determination.
Our understanding of Section 2 that the minority-preferred candi-
date may be either a minority or a non-minority, and therefore that
both elections in which the candidates are of the same race and elec-
tions in which the candidates are of different races must be considered
in order to determine whether white bloc voting usually defeats the
minority-preferred candidate, is confirmed within Section 2 itself, by
the express proviso that "[t]he extent to which members of a protected
class have been elected to office" is but "one circumstance which may
be considered" in assessing whether minority voters have been denied
an equal opportunity "to participate in the political process and to
elect representatives of their choice." See 42 U.S.C. § 1973(b); see
also id. ("[N]othing in this section establishes a right to have mem-
bers of a protected class elected in numbers equal to their proportion
in the population."). Were this proviso, coupled with the statute's
plain reference to the minority's representatives"of choice," not
enough, the plurality in Gingles itself, as noted, expressly stated that
"only the race of the voter, not the race of the candidate, is relevant"
9
in determining whether a plaintiff has met Gingles' preconditions,
Gingles, 478 U.S. at 68 (emphasis added), and not a single Justice
suggested that only candidates of the minority race could be consid-
ered minority-preferred candidates, see infra note 5. Indeed, as the
Third Circuit has held, a candidate of the minority's race need not
even be the minority-preferred candidate. Jenkins v. Red Clay Consol.
School Dist. Bd. of Educ., 4 F.3d 1103, 1126 (3d Cir. 1993), cert.
denied, 114 S. Ct. 2779 (1994).
Although at times they suggest otherwise, see Appellant's Br. at 30
("Under the law, black voters must have an opportunity not just to
elect candidates of their choice, but to elect black candidates of their
choice"), plaintiffs no doubt agree with our interpretation of Section
2. They themselves conducted a bivariate regression analysis on the
eleven elections in which a black candidate was on the ballot pre-
cisely in order to determine whether the black candidate or the white
candidate was the minority-preferred candidate in those elections.
Had they not believed, as we do, that a white candidate may be the
minority-preferred candidate, then they would have advanced their
claim solely on the basis that only one black candidate had actually
won in these elections. To conduct a regression analysis with respect
to a black-white election, ostensibly in part to identify the black-
preferred candidate, makes sense only if it is possible for the preferred
candidate not to be the black candidate.
We recognize that the plaintiffs' expert in Gingles had only ana-
lyzed elections in which a black candidate had appeared on the ballot,
see Gingles, 478 U.S. at 52, and that the Court there relied upon that
data in invalidating North Carolina's at-large election scheme. The
Court in Gingles, however, never addressed the question of whether
plaintiffs' exclusion of evidence from white-white races rendered
their proffer insufficient; it merely assumed for purposes of that case
that the black candidates there were the representatives of choice of
black voters. Justice Brennan, in fact, could not have been clearer in
this regard:
Because both minority and majority voters often select
members of their own race as their preferred representatives,
it will frequently be the case that a black candidate is the
choice of blacks, while a white candidate is the choice of
10
whites. . . . Indeed, the facts of this case illustrate that ten-
dency -- blacks preferred black candidates, whites preferred
white candidates. Thus, as a matter of convenience, we and
the District Court may refer to the preferred representative
of black voters as the "black candidate" and to the preferred
representative of white voters as the "white candidate."
Nonetheless, the fact that race of voter and race of candi-
date is often correlated is not directly pertinent to a § 2
inquiry. Under § 2, it is the status of the candidate as the
chosen representative of a particular racial group, not the
race of the candidate, that is important.
Id. at 68 (emphasis added, in part) (plurality opinion);5 cf. Harvell v.
Blytheville School District No. 5, 71 F.3d 1382, 1386 (8th Cir. 1995)
(en banc) ("We do not categorically state that a candidate is the
minority-preferred candidate simply because that candidate is a mem-
ber of the minority. Such stereotyping runs afoul of the principles
embodied in the Equal Protection Clause." (citing Miller v. Johnson,
115 S. Ct. 2475, 2486 (1995))), cert. denied, 116 S. Ct. 1876 (1996).
Where the results of not even a majority, much less a substantial
majority, of elections are considered, it is simply not possible for the
district court to determine whether minority-preferred candidates are
"usually" defeated. We therefore hold that, in assessing whether "the
white majority votes sufficiently as a bloc to enable it . . . usually to
defeat the minority's preferred candidate," a district court must con-
sider, at a minimum, a representative cross-section of elections, and
not merely those in which a minority candidate appeared on the bal-
lot, at least where elections in which minorities were on the ballot do
_________________________________________________________________
5 Although Justice White, who joined the remainder of Justice Bren-
nan's opinion, did not join this portion of the opinion, neither Justice
White nor Justice O'Connor, who concurred only in the judgment, as
much as hinted that only elections in which a black candidate was on the
ballot need be considered; they each merely argued that Justice Bren-
nan's conclusion that the race of the candidate is always irrelevant was
in conflict with Whitcomb v. Chavis , 403 U.S. 124 (1971), and was not
necessary to the disposition of the case. Id . at 82, 83 (White, J., concur-
ring); id. at 83, 101 (O'Connor, J., concurring in the judgment, joined by
Burger, C.J., and Powell and Rehnquist, JJ.).
11
not constitute a substantial majority of the total number of elections.
Cf. Niagara Falls, 65 F.3d at 1016-17 ("The trial court . . . properly
attempted to analyze white-white elections, as well as to evaluate the
success of white candidates in black-white elections, to determine
whether whites voted as a bloc to defeat blacks' preferred candi-
dates."). Only by considering such a representative sample can the
district court meaningfully determine whether a white voting bloc
usually defeats the minority-preferred candidate. See, e.g., Uno v.
City of Holyoke, 72 F.3d 973, 985 (1st Cir. 1995) ("[T]o be legally
significant, racially polarized voting in a specific community must be
such that, over a period of years, whites vote sufficiently as a bloc to
defeat minority[-preferred]6 candidates most of the time. . . . In order
reliably to tell whether racial groups do (or do not) band together
behind particular candidates with regularity, all elections in the rele-
vant time frame (or, at least, a representative sampling of them) must
be studied -- not just those elections that, taken in isolation, reveal
the cicatrices of racially polarized voting." (emphasis added)). By
focusing exclusively on elections in which a minority candidate
appeared on the ballot, it can only be determined whether the "minor-
ity candidate" is usually defeated, not, as required by Section 2,
whether the "minority-preferred candidate" is usually defeated. See,
e.g., Harvell, 71 F.3d at 1393 n.2.
Our sister circuits interpret section 2 and the third Gingles element
as do we. As the Tenth Circuit recognized in affirming a district
court's finding that plaintiffs' evidence was "inadequate" to measure
the success of minority-preferred candidates because it did not con-
sider elections in which only whites were on the ballot:
[A] per se rule against examining races that have only white
candidates . . . would be clearly contrary to the [Gingles]
plurality opinion, which views the race of the candidates as
irrelevant in voting analysis [and] . . . is questionable in light
_________________________________________________________________
6 Although the First Circuit referred in this passage to "minority candi-
dates," not to "minority-preferred candidates," it is evident from its cita-
tion to Gingles at p. 56 that the court meant by "minority candidate" the
"minority-preferred candidate." At that page in Gingles, the Supreme
Court refers only to the "minority's preferred candidates" and the "repre-
sentatives of their choice." It does not once refer to minority candidates.
12
of the language of § 2, which seeks to give minorities equal
opportunity to "elect representatives of their choice."
Sanchez v. Bond, 875 F.2d 1488, 1495 (10th Cir. 1989), cert. denied,
498 U.S. 937 (1990); SCLC v. Sessions , 56 F.3d 1281, 1293-94 (11th
Cir. 1995) (en banc) (approving district court's conclusion that the
analysis by plaintiff's expert "was flawed because he only analyzed
elections . . . involving a black candidate."), cert. denied, 116 S. Ct.
704 (1996); see also Uno, 72 F.3d at 988 n.8 ("[T]he VRA does not
require for a successful section 2 showing that minority-preferred
candidates be members of the minority group . . . ."); Niagara Falls,
65 F.3d at 1016 (district court properly analyzed white-white elec-
tions to determine which candidates were black-preferred); Clarke v.
City of Cincinnati, 40 F.3d 807, 810 n.1 (6th Cir. 1994) ("Plaintiffs
suggest that white candidates cannot be included among blacks' pre-
ferred candidates, but we disagree." (quotation marks omitted)), cert.
denied, 115 S. Ct. 1960 (1995); Nipper v. Smith, 39 F.3d 1494, 1540
(11th Cir. 1994) (en banc) ("[W]e do not foreclose the consideration
of electoral races involving only white candidates where the record
indicates that one of the candidates was strongly preferred by black
voters."), cert. denied, 115 S. Ct. 1795 (1995); Jenkins, 4 F.3d at 1125("[T]here may be majority candidates who truly may be the minority
community's representative of choice."); Valladolid v. City of
National City, 976 F.2d 1293, 1297 (9th Cir. 1992) ("[Appellants'
argument] that minorities have long been underrepresented on the city
council, and that a significant number of minority candidates have
failed in their efforts to win election to that body. . . too easily
equate[s] the presence or absence of minority individuals on the coun-
cil with the victory or defeat of minority-preferred candidates.").7
_________________________________________________________________
7 See also Smith v. Clinton, 687 F. Supp. 1310, 1316 (E.D. Ark. 1988)
(three-judge panel) ("We assume without deciding that all of the evi-
dence [of white-white elections] offered by the defendants is admissible
and properly to be considered."); Brown v. Board of Commissioners of
the City of Chattanooga, 722 F. Supp. 380, 391 (E.D. Tenn. 1989) ("[A]
review of white/white elections as well as white/black elections is neces-
sary to determine the existence of racially polarized voting."); Southern
Christian Leadership Conference of Alabama v. Evans, 785 F. Supp.
1469, 1473 (M.D. Ala. 1992) ("Court will . . . consider political races
generally -- white on black and white on white-- in seeking to deter-
13
The Fifth Circuit in Citizens for a Better Gretna v. City of Gretna,
La., 834 F.2d 496 (5th Cir. 1987), cert. denied, 492 U.S. 905 (1989),
agreed that "Gingles is properly interpreted to hold that the race of the
candidate is in general of less significance than the race of the voter,"
id. at 503, and it even noted that "Justice Brennan's plurality opinion
is careful not to state that a black candidate is tantamount to the black
preference." Id. But, it found "implicit" in Gingles' undiscussed reli-
ance on data only from black-white elections "the notion that black
preference is determined from elections which offer the choice of a
black candidate," and thus concluded that the race of the candidate
was less significant than that of the voters "only within the context of
an election that offers voters the choice of supporting a viable minor-
ity candidate." Id. at 503-04; see also id. at 504 ("The various Gingles
concurring and dissenting opinions do not consider evidence of elec-
tions in which only whites were candidates. Hence, neither do we.");
Campos v. City of Baytown, Tex., 840 F.2d 1240, 1244 (5th Cir.
1988) ("The district court was warranted in its focus on those races
that had a minority member as a candidate." (citing Gretna, 834 F.2d
at 503)), cert. denied, 492 U.S. 905 (1989). However, the Fifth Circuit
has, since, substantially retreated from its dictum in Gretna in
Overton v. City of Austin, 871 F.2d 529 (5th Cir. 1989), holding that
it is, indeed, permissible to consider elections in which a minority is
not on the ballot. Id. at 538 (relying only on elections in which a
minority was on the ballot and on election results rather than extrinsic
factors "is not the only permissible way to approach § 2 claims."); cf.
LULAC v. Clements, 986 F.2d 728, 748 (5th Cir.) ("[A] court may
properly give more weight to elections in which the minority-
preferred candidate is a member of the minority group."), on reh'g en
banc, 999 F.2d 831, 864 (1993) ("This court has consistently held that
elections between white candidates are generally less probative in
examining the success of minority-preferred candidates . . . ."
(emphasis added) (citing Campos, 840 F.2d at 1245; Gretna, 834 F.2d
at 503)), cert. denied, 114 S. Ct. 878 (1994).
_________________________________________________________________
mine the question of whether the political process is open to minority
voters. The Court must keep in mind the mandate of the statute that Sec-
tion 2 does not require that minorities be given equal opportunity to elect
minority candidates, but that they be given equal opportunity to `elect
representatives of their choice.'").
14
In short, though some courts have held that black-white elections
are more probative than white-white elections, see, e.g., Uno, 72 F.3d
at 988 n.8; Jenkins, 4 F.3d at 1128; LULAC, 999 F.2d at 864; Smith,
687 F. Supp. at 1316,8 to our knowledge, no court has held that a
white candidate cannot, as a matter of law, be a minority-preferred
candidate, and therefore that white-white elections are irrelevant to
the Gingles third element inquiry.
B.
By failing to consider evidence of elections in which no minority
candidate appeared on the ballot, the district court, insofar as can be
discerned, could have understated (or overstated) the extent to which
minority-preferred candidates were usually defeated in Alamance
County.
For example, the record includes election data from the 1974 gen-
eral election because O'Kelley, a black candidate, was on the ballot
seeking election to the unexpired term of the seat to which he had
been appointed following a vacancy. But it does not include election
data from the 1974 primary election, notwithstanding that the two
Democrats elected in the primary for the two full-term seats, both of
whom were white, each received 99+% of the black vote in the gen-
eral election. Although it may well be that either or both of these can-
didates were the minority-preferred candidates in the 1974 primary,
and therefore would have counted as minority-preferred electoral suc-
cesses (both did receive a majority of black support in other primary
_________________________________________________________________
8 We do not decide here the extent to which, if any, white-white elec-
tions are deserving of less evidentiary weight than elections in which a
minority candidate is on the ballot. It seems to us, however, that if white-
white elections are entitled to less weight, then they are so only on the
question of whether racial polarization exists, not on the question of
whether, because of that polarization, minority-preferred candidates are
usually defeated. Cf. Harvell, 71 F.3d at 1382 (distinguishing between
"racial cohesiveness," the second Gingles precondition, and "racial polar-
ization, . . . the essential element of the third Gingles precondition," and
holding that in measuring whether racial polarization "permits the major-
ity usually to defeat the minority's preferred candidates," evidence such
as "elections in which there was no African-American candidate [on the
ballot] . . . become[s] relevant.").
15
elections -- Long received 84% in 1972, and Newlin 60%, in 1978),
it could be that neither was a minority-preferred candidate in the 1974
primary, in which case there were uncounted minority-preferred
defeats.
Similarly, the record does not include election results from the
1972 or 1978 general elections, although Long was successful in the
1972 primary with 84% of the black vote (second only to the 98%
received by Morris, a black candidate), and Newlin was successful in
the 1978 primary with 60% of the black vote (second only to the 78%
received by black candidate Harris). Based upon the record data from
other general elections, it may be that both of these candidates
received near unanimous support of the black community in their gen-
eral elections, and thus should have been considered the black-
preferred candidates in those elections. But, without the data from
these elections, it simply cannot be known whether they, or others,
were the black-preferred candidates, and therefore whether the black-
preferred candidates were successful or defeated.
And there are no election returns, general or primary, for the 1966,
1968, 1970, 1982, 1988, or 1990 election cycles. The district court
therefore likewise could not have known who were the representa-
tives of choice of black voters in those elections, or whether or not
they were defeated.
In making these observations, we do not suggest that the district
court need analyze every election since 1965 in order to determine
whether the minority-preferred candidates are usually defeated. We
leave to another day the question of precisely how many elections
must be considered in order for a district court's conclusions to be
adequately supported. Cf. Gingles, 478 U.S. at 57 ("[A] pattern of
racial bloc voting that extends over a period of time is more probative
of . . . legally significant polarization than are the results of a single
election."); Hines v. Mayor and Town Council of Ahoskie, 998 F.2d
1266, 1272 (4th Cir. 1993) ("[The] `results' test [of section 2 of the
VRA] `supposes the need to consider multiple electoral contests.'"
(quoting Baird v. Consolidated City of Indianapolis, 976 F.2d 357,
359 (7th Cir. 1992), cert. denied, 508 U.S. 907 (1993))); Baird, 976
F.2d at 359 ("Any approach that depends on outcomes supposes the
need to consider multiple electoral contests -- the same position over
16
many years, many positions during the same year, or both.");
Collins I, 816 F.2d at 936 ("[W]hether there is a `pattern of racial bloc
voting that extends over a period of time' [is] a critical factor in a
claim of vote dilution under § 2."); see also Uno, 72 F.3d at 985("[R]ace-conscious politics (or its absence, for that matter) can more
readily be seen by producing a documentary that spans a series of
elections than by taking an isolated snapshot of a single election.").
Today, we hold merely that it is insufficient to consider selectively
only those elections in which minority candidates were on the ballot,
at least where such elections are not such a substantial majority of the
total elections that a fair assessment can be made of whether the
minority-preferred candidates are usually defeated by white bloc vot-
ing.
III.
Plaintiffs challenge the methodology employed by the district court
on numerous other grounds. Specifically, plaintiffs urge: 1) that the
district court improperly viewed as minority-preferred candidates
some candidates who finished second and third among black voters;
2) that it improperly treated candidates in the general election as
black-preferred when those candidates assertedly received a majority
of black votes only because they were Democrats; 3) that it improp-
erly viewed success in the primary election as electoral success; and
4) that it failed to discount the weight attributed to the one repeatedly
successful black candidate due to the effects of incumbency. We
address each of these challenges in turn, finding no reversible error
by the district court.
A.
Plaintiffs first contend that, contrary to our holding in Collins v.
City of Norfolk, Va., 883 F.2d 1232 (4th Cir. 1989) ("Collins II"),cert.
denied, 498 U.S. 938 (1990), the district court considered as "black-
preferred" some successful candidates who finished second and third
among black voters, behind a successful black-preferred candidate.
We agree that the district court erred, but not in the manner plaintiffs
suggest. Rather, we conclude the district court erred in plaintiffs'
favor by not treating as "black-preferred" some successful candidates
who placed second or third among black voters (and with a significant
17
majority of black votes) behind an unsuccessful candidate who was
the first choice of black voters.
1.
Because Alamance County's Board of Commissioners is elected
from a single, multi-member district, citizens are permitted to vote for
either two or three candidates in both the primary and general elec-
tions, depending on the number of seats up for election in any given
year. Consequently, the district court in most cases treated the top two
or three vote-recipients among black voters as the black-preferred
candidates, as did plaintiffs' expert. If the first choice of black voters
did not win an election, however, the district court excluded from
consideration even as possible minority-preferred candidates those
candidates who placed second or third among black voters behind the
losing black-preferred candidate, in attempted reliance on our opinion
in Collins II, 883 F.2d at 1238. In so doing, the district court, as even
counsel for the plaintiffs conceded at oral argument, seems to have
misread our opinion in Collins II. We did not, in Collins II, adopt a
per se rule against considering, as minority-preferred, candidates who
finished second or third among minority voters behind an unsuccess-
ful candidate who was the minority community's first choice. We
held only that,
[t]he mere election of a candidate who appears to have
received votes from more than fifty percent of minority bal-
lots does not count as a minority electoral success, when
each ballot may contain votes for more than one candidate.
In such a situation, if there were other candidates, preferred
by a significantly higher percentage of the minority commu-
nity, who were defeated in the same election, then it cannot
be fairly said that the minority community has successfully
elected representatives of its choice. Each such situation
must be reviewed individually to determine whether the
elected candidates can be fairly considered as representa-
tives of the minority community. The presumption must be
that they cannot if some other candidate has received
significantly more minority votes.
Id. at 1238 (emphases added) (quoting Collins I, 816 F.2d at 937).
18
Collins II, in other words, requires that a two-step inquiry be
undertaken by the court in order to determine whether candidates who
receive less support from black voters than an unsuccessful first
choice may nevertheless be deemed black-preferred candidates in
multi-seat elections. First, if the unsuccessful candidate who was the
first choice among minority voters did not receive a"significantly
higher percentage" of the minority community's support than did
other candidates who also received a majority among minority voters,
Collins II, 883 F.2d at 1238 (quoting Collins I, 816 F.2d at 937); see
also id. at 1239 (referring to the level of support given to the unsuc-
cessful candidate as "much greater"), then the latter should also be
viewed by the district court as minority-preferred candidates. Cf.
Niagara Falls, 65 F.3d at 1018 (treating as black-preferred a candi-
date who finished behind an unsuccessful first choice among black
voters whose support "was not dramatically higher."). Second, if the
level of support received by the unsuccessful first-place finisher
among black voters was "significantly higher" than the support given
the second- and third-place finishers by those same voters, then suc-
cessful candidates who finished behind the unsuccessful first choice
"are presumed not to be the minority's preferred candidates or repre-
sentatives of choice." Id. at 1238. Even so, the district court must still
review "[e]ach such situation . . . individually to determine whether
the elected candidates can be fairly considered as representatives of
the minority community." Id. This is to say that Collins II requires an
individualized determination in the circumstance where the unsuc-
cessful first choice of black voters received significantly more support
than the next-place finishers of the black voters. In this circumstance,
the individualized determination is undertaken in order to ensure that
the second- or third-place finishers, who, based upon their substantial
support from the minority community would seem to be minority-
preferred candidates, may in fact fairly be characterized as such.
In this case, black candidate Morris, for example, received 98% of
the black vote in the 1972 Democratic primary election, and white
candidates Long, Fleming, and Horne received 84%, 29%, and 16%
of the black vote, respectively.9 Long, Fleming, and Horne won the
primary election. Notwithstanding the impressive support that Long
_________________________________________________________________
9 Three other white candidates received 9%, 8% and 5% of the black
vote, respectively.
19
received from black voters in the primary, the district court did not
even consider whether Long might have been a black-preferred candi-
date. Because Morris' support among black voters was not "signifi-
cantly higher" than Long's, the district court appears to have erred in
not automatically treating Long as a black-preferred candidate. But
even had Morris' level of support among black voters been signifi-
cantly higher than Long's, the district court still would have erred in
not making an individualized determination before rejecting Long as
a black-preferred candidate.
Morris' support was significantly higher than the 29% received by
Fleming. In such a circumstance, as in the case directly addressed by
Collins II,10 a presumption against viewing Fleming as black-
preferred is required by our holding in Collins II, which, as a panel,
we are bound by. However, the district court should have made an
individualized determination to assess whether that candidate, too,
could properly have been deemed black-preferred.
The district court also declined to treat successful white candidate
Newlin as a black-preferred candidate in the 1978 Democratic pri-
mary, merely because Harris, the first choice of black voters, lost.
There were two seats up for election that year, and Harris and Newlin
were the top two vote-recipients among black voters, by far, with an
estimated 78% and 60% of the black vote, respectively. Significantly,
the third place finisher among black voters was a black candidate,
who received only 12% of the black vote. Even were we to conclude
that Harris' support among black voters was "significantly higher"
_________________________________________________________________
10 Our holding in Collins II actually does not address this circumstance
directly, since Fleming received less than majority support among black
voters; Collins II addressed only the circumstance where a candidate
receives more than 50% of the minority community's vote. Nevertheless,
we do not believe that the mere failure to achieve a threshold of 50% in
a multi-candidate election necessarily means that a candidate cannot be
viewed as a black-preferred candidate. If the election had been held only
among black voters, a hypothetical inquiry given some credence by the
Gingles plurality, see 478 U.S. at 68 ("The essence of a submergence
claim is that minority group members prefer certain candidates whom
they could elect" if the election were held in a majority-black district),
then Fleming would have won, because he was the third-place finisher
among black voters in an election in which three seats were to be filled.
20
than Newlin's, an individualized determination would still have been
required before declining to treat Newlin as a black-preferred candi-
date. Again, we held in Collins II only that successful candidates who
receive more than 50% of the black vote should not automatically be
viewed as a black-preferred candidate if they receive significantly less
support from black voters than another, losing candidate, not that they
should never be treated as black-preferred.
2.
While the district court erred in automatically excluding, as possi-
ble minority-preferred candidates, the second- and third-place finish-
ers behind an unsuccessful first choice among black voters, we do not
believe the court erred, as plaintiffs contend, in not conducting an
individualized determination with respect to every candidate who fin-
ished second or third among black voters behind successful black-
preferred candidates, before treating them as black-preferred. Plain-
tiffs object to the fact that the district court considered some of the
second and/or third place finishers as black-preferred in the three pri-
mary elections in which the first choice of black voters was successful
-- 1976, 1980, and 1984. In the 1976 primary, for example, the dis-
trict court treated both successful black candidate O'Kelley, who won
99+% of the black vote, and successful white candidate Fleming, who
finished second among black voters with 47% of the vote, as black-
preferred. The district court did not, however, consider successful
white candidate Paris as black-preferred because he received only
16% of the black vote, even though that percentage placed him in a
tie for third among black voters and thus may have been sufficient to
win had the election been held only among black voters. See supra
note 10. All three candidates went on to win in the general election,
with 99+% of the black community's vote.
Plaintiffs object to the district court's treatment of these second and
third place finishers as black-preferred candidates on the ground that,
"[i]n most of these elections, . . . the black community fielded only
one [black] candidate," Appellant's Br. at 20. In advancing this argu-
ment, plaintiffs rely not on the holding in Collins II, but on a single
passage from that case in which we said the following:
If black voters exercised their right to cast all of their allot-
ted votes, they ran the risk that their second and third
21
choices would be declared their preferred candidates. Only
by single-shot voting -- withholding all votes save for their
first choice, and forfeiting the opportunity to cast all votes
allotted to each voter -- could the minority be assured that
its second and third choices would not be declared its pre-
ferred candidates. In contrast, under the at-large system, the
white voters can freely cast all votes allotted to them with-
out suffering the penalty imposed on the minority voters.
883 F.2d at 1239-40. Because Collins II, as explained above,
addressed only the treatment of second- and third-place finishers
behind an unsuccessful, not a successful, minority-preferred candi-
date, this passage is obviously dictum and not controlling here. And
even were it applicable, the passage does not suggest the level of sup-
port necessary in order for such candidates to be considered minority-
preferred.
We believe that it would be unwise to extend the holding in Collins II
to instances in which the first choice among black voters was success-
ful. Where the first choice of black voters was successful, there is
simply no reason to presume that the minority community has been
unsuccessful in electing representatives of its choice. Accordingly, we
now hold that, in multi-seat elections in which voters are permitted
to cast as many votes as there are seats, at the very least any candidate
who receives a majority of the minority vote and who finishes behind
a successful candidate who was the first choice among the minority
voters is automatically to be deemed a black-preferred candidate, just
like the successful first choice. Cf. Niagara Falls, 65 F.3d at 1018
n.18 (noting that parties did not dispute that candidates who received
more than 50% were black-preferred). Candidates who receive less
than 50% of the minority vote, but who would have been elected had
the election been held only among black voters, are presumed also to
be minority-preferred candidates, although an individualized assess-
ment should be made in order to confirm that such a candidate may
appropriately be so considered.
The district court appears generally to have conducted its analysis
in the manner that we have described as appropriate. It considered as
black-preferred candidates only those candidates who received sub-
22
stantial support from black voters;11 it did not unquestioningly denom-
inate as black-preferred the top two or three vote-recipients among the
black community. Moreover, the court seems to have made an indi-
vidualized determination before considering, as black-preferred, can-
didates such as Fleming who, in 1976, received slightly less than 50%
of the black vote (47%), and in rejecting Paris, who in that same elec-
tion only tied for third, with 16% of the black vote. We accordingly
discern no reason to disturb the district court's determinations with
respect to those candidates who finished second and third among
minority voters, behind the minority community's successful first
choice. Those determinations are not clearly erroneous. See Gingles,
478 U.S. at 77-79.
B.
Plaintiffs next object to the fact that the district court treated, as
black-preferred, Democratic candidates who received 99+% of the
black vote in general elections. Plaintiffs contend that to consider
these candidates as black-preferred ignores that blacks in Alamance
County overwhelmingly support Democrats in partisan elections.
They argue that Democrats should be treated as black-preferred only
if they were also black-preferred in the primary election. Therefore,
they would have us discount, for example, the general election victo-
ries of Fleming in 1976 and Paris in 1980, both of whom received
nearly unanimous black voter support, merely because they received
"only" 47% and 48%, respectively, of the black vote in the primary
elections. This argument is flawed in two fundamental respects.
First, as we discuss infra, acceptance of this argument would
require that we carry forward the candidates' black-preferred status
from the primary to the general election, when the Voting Rights Act
is clearly concerned with whether blacks have an equal opportunity
to elect the candidate of their choice in both nominations and elec-
tions. See 42 U.S.C. § 1973(b) ("A violation . . . is established if . . .
it is shown that the political processes leading to nomination or
election . . . are not equally open to participation by [citizens on
_________________________________________________________________
11 The level of support that may properly be deemed "substantial" will
vary, of course, depending on the number of candidates on the ballot and
the number of seats to be filled.
23
account of race or color]." (emphasis added)); cf. NAACP v. City of
Columbia, S.C., 850 F. Supp. 404, 417 (D. S.C. 1993) (noting, as
ironic, the fact that second choice of black voters, behind unsuccess-
ful first choice, who went on to prevail in run-off election with major-
ity of support from black voters, would not be considered preferred
by either blacks or whites if level of support received in the initial pri-
mary election was the benchmark), aff 'd as modified on other
grounds, 33 F.3d 52 (4th Cir. 1994) (per curiam), cert. denied, 115
S. Ct. 1095 (1995). Thus, candidates who receive 99+% of the black
vote in general elections are the black-preferred candidate in that
election, regardless of their level of support in the primary. We reject
the proposition that "success of a minority-preferred candidate in a
general election is entitled to less weight when a candidate with far
greater [minority] support was defeated in the primary." Niagara
Falls, 65 F.3d at 1018. Such a view is grounded in the belief that
minority voters essentially take their marbles and go home whenever
the candidate whom they prefer most in the primary does not prevail,
a belief about minority voters that we do not share. And such a view
ignores altogether the possibility that primary election winners will
become the minority's preferred candidate during the general election
campaign, or that where, as here, the overwhelming majority of
blacks vote in the Democratic primary, that a Republican could in fact
become the black-preferred candidate in the general election by
addressing himself to issues of interest to the minority community in
a way that appeals to them as participants in the political process.
Second, under plaintiffs' theory, the district court would be
required, contrary to Gingles, to assess the cause of the minority com-
munity's support of the candidate in determining whether the
minority-preferred candidates usually are defeated by white bloc vot-
ing. See infra note 12. In Gingles, defendants argued that the plaintiffs
were required to use multiple regression analysis, rather than bivariate
regression analysis, to ensure that only those defeats of black-
preferred candidates that were actually caused by race, and not some
other reason such as party affiliation, were considered defeats of
black-preferred candidates for purposes of a vote dilution claim. The
Gingles plurality explicitly rejected such a requirement in the context
24
of assessing the second and third Gingles preconditions. 478 U.S. at
62.12
Moreover, even the limited election data in this record demonstrate
that black voters do not vote monolithically, even in partisan general
elections. White Democrats Holt and Thompson only received 69%
and 83% of the black vote, respectively, in the 1984 general election,
and Democrat Morris, who is black, received only 57% of the black
vote in the 1986 general election -- behind Democrat Bennett, who
is white, who received 99+% of the black vote.
_________________________________________________________________
12 Although only a four-Member plurality joined Section III(C) of the
opinion, in which the rejection of defendant's multiple regression claim
is found, Section III(C) is lengthy, and the dispute that cost Justice
White's vote on the section was not over the "cause" issue.
Although most of our sister circuits have by now adopted the position
that an inquiry into cause is relevant, see, e.g., LULAC, 999 F.2d at 850("[The] rigorous protections [of the Voting Rights Act], as the text of § 2
suggests, extend only to defeats experienced by voters `on account of
race or color.'"), they are still in disagreement about the stage in the vote
dilution inquiry in which causation evidence is appropriate, compare
Nipper, 39 F.3d at 1515 ("[I]f the evidence shows, under the totality of
the circumstances, that the community is not motivated by racial bias in
its voting patterns, then a case of vote dilution has not been made.") with
Clarke, 40 F.3d at 812-14 (considering "cause" of the success rate of
black-preferred candidates in assessing third Gingles element). We think
the best reading of the several opinions in Gingles, however, is one that
treats causation as irrelevant in the inquiry into the three Gingles precon-
ditions, see Gingles, 478 U.S. at 62 (Brennan, J., plurality opinion), but
relevant in the totality of circumstances inquiry, see 478 U.S. at 100(O'Connor, J., concurring in judgment) (agreeing that use of racial polar-
ization data "solely" to prove Gingles second and third elements cannot
be rebutted by "evidence that the divergent racial voting patterns may be
explained in part by causes other than race," but disagreeing with plurali-
ty's claim "that such evidence can never affect the overall vote dilution
inquiry.").
Of course, whether causation is relevant to the second and third pre-
condition inquiries or to the totality of circumstances inquiry, it would
be just as relevant for determining whether particular minority-preferred
candidates lose for some reason other than racial polarization, as it would
be for determining, as plaintiffs urge, whether particular minority-
preferred candidates win merely because of party affiliation.
25
We therefore hold that the district court properly deemed all gen-
eral election candidates who received 99+% of the black community's
vote as black-preferred, without reference to the underlying primary
election.
C.
Plaintiffs next contend that the district court erred in not distin-
guishing between, and separately analyzing, primaries and general
elections, in determining whether black-preferred candidates were
"usually" successful. With this contention, we agree.
Section 2(b) of the Voting Rights Act provides that a violation
occurs if "the political processes leading to nomination or election . . .
are not equally open" to all voters. 42 U.S.C.§ 1973(b) (emphasis
added); see also 42 U.S.C. § 1973l(c)(1) ("The terms `vote' or `vot-
ing' shall include all action necessary to make a vote effective in any
primary, special, or general election . . . ."). The statute thus requires
that minorities have an equal opportunity to participate not only in
primary elections but also in general elections. From this, we believe
it follows that the results in these two phases of the single election
cycle must be separately considered and analyzed, and, in recognition
of this statutory requirement, that Gingles' third precondition can be
satisfied by proof that, in either the primary or the general election,
the minority-preferred candidate is usually defeated by white bloc
voting. Not to separately consider primary and general elections risks
masking regular defeat in one of these phases with repeated successes
in the other, and thereby misperceiving a process that is palpably in
violation of the Voting Rights Act, as not violative of the Act at all.
By way of illustration, an at-large voting method under which the
candidates preferred by the minority community are always success-
ful in the primary election but, because of white bloc voting, are
always defeated in the general election (or one in which minority-
preferred candidates are essentially barred from the general election
ballot because of racial-bloc voting in the primary, see White v.
Regester, 412 U.S. 755, 767 (1973) ("[T]he black community has
been effectively excluded from participation in the Democratic pri-
mary selection process.")), is a voting method under which minorities
are, because of white bloc voting, always unsuccessful in attaining
26
elective office. By aggregating primary and general elections, how-
ever, a court would ineluctably find in both circumstances that
minority-preferred candidates were successful fifty percent of the
time, and therefore not "usually" defeated by white bloc voting.
The Supreme Court has held, in an analogous context, that courts
must not rely on "aggregated" data "when considering several sepa-
rate vote dilution challenges in a single case." See Gingles, 478 U.S.
at 59 n.28; see also id. at 101 (O'Connor, J., concurring in judgment)
("The District Court clearly erred in aggregating data from all of the
challenged districts . . . ."). Because plaintiffs' challenge is, in reality,
two separate vote dilution challenges -- one to the at-large primary
election scheme, and one to the at-large general election scheme --
we believe that like reasoning must obtain here. Accordingly, we hold
that primary and general election results should not be aggregated for
purposes of determining whether black-preferred candidates are "usu-
ally" successful, and that the district court erred in so doing. Because
plaintiffs in this case would not prevail on their Section 2 claim even
were the primaries and general elections considered separately, how-
ever, we will not reverse the district court on account of this error.
D.
Plaintiffs' final claim is that the district court erred in not discount-
ing the weight attributed to O'Kelley's electoral successes because he
was an incumbent. See Gingles, 478 U.S. at 57 ("[S]pecial circum-
stances, such as the absence of an opponent, incumbency, or the utili-
zation of bullet voting, may explain minority electoral success in a
polarized contest." (emphasis added)); but see Smith, 687 F. Supp. at
1317 ("The materiality of [evidence of incumbency] is questionable."
(citing Gingles, 478 U.S. at 63 (plurality opinion))). O'Kelley, one of
the successful black-preferred candidates whom the district court con-
sidered in determining whether black-preferred candidates usually
were defeated, won three straight general elections (and, apparently,
5 elections total, including primaries) after first being appointed to a
vacant seat. Although the district court provided no explanation of its
decision not to discount O'Kelley's successes, we will not disturb that
decision, given that plaintiffs' own expert did not analyze the effects
of incumbency for O'Kelley or for any other candidate. To reverse as
clearly erroneous the district court's decision under these circum-
27
stances would be to transform what was at most a narrow or "special"
circumstance envisioned by the Court only in dicta into a categorical
rule that all electoral successes of a minority-preferred incumbent are
to be discounted. See, e.g., Clarke, 40 F.3d at 813-14 ("[I]ncumbency
plays a significant role in the vast majority of American elections. To
qualify as a `special' circumstance, then, incumbency must play an
unusually important role in the election at issue; a contrary rule would
confuse the ordinary with the special, and thus`make practically
every American election a "special circumstance."'" (quoting Collins
II, 883 F.2d at 1250 (Chapman, J., dissenting)). Of course, as the
defendants point out, and as counsel for the plaintiffs conceded at
argument, "if incumbency were to be considered to discount the
weight to be given to the success of one black candidate, O'Kelley,
it likewise would have to be used to discount the weight given to the
defeat of other black candidates who lost to incumbents, such as Har-
ris in 1978 and Freeman in 1984." Appellee's Br. at 24, citing Nipper
v. Smith, 39 F.3d 1494, 1538-39 (11th Cir. 1994)).
*****
The purpose of the Voting Rights Act is to ensure to minority citi-
zens an equal opportunity to participate in the democratic processes
and to elect candidates of their choice, candidates whom they believe
will best represent their political interests. The Act's purpose is not
to ensure the election of candidates of the minority's race, nor is it to
ensure the election of candidates of any particular political party. In
guaranteeing that minorities will be afforded an equal opportunity to
participate in the political processes and to elect representatives of
"their choice," the Act at once embodies the presumption and
embraces the ideal that, in this Country, a candidate of any color can
represent citizens of all colors, that a candidate of either party can
represent the interests of all parties. Few presumptions are more fun-
damental to our system of representative democracy or more reveal-
ing of our commitment to equality and individual autonomy.
At bottom, through their collective arguments, plaintiffs urge a
reading of the Supreme Court's decision in Gingles, and therefore an
interpretation of Section 2, that would be "at war" with this funda-
mental presumption, this ideal, which we believe not only informed
Congress' enactment of Section 2, but underlay the Court's interpreta-
28
tion of that provision in Gingles. The reading of Gingles urged upon
us would not simply guarantee to minority voters an equal opportu-
nity to elect representatives of their choice, but would require the
election of minority candidates: "Under the law, black voters must
have an opportunity not just to elect candidates of their choice, but to
elect black candidates of their choice." Appellant's Br. at 30. Such an
interpretation, of course, is grounded ultimately in the twin presump-
tions that all members of a particular racial group will always prefer
the same candidate and that that preferred candidate will always be
of that group's race. We simply disagree that Gingles requires, or
even permits, any such presumptions; indeed, we believe Gingles for-
bids such presumptions based upon race alone. And to the extent it
can be read otherwise, we are convinced the Court would not so read
the case today, given its unequivocal pronouncements that the princi-
ples of equal protection are offended by "assumption[s] that voters of
a particular race, because of their race, `think alike, share the same
political interests, and will prefer the same candidates at the polls'."
Miller v. Johnson, 115 S. Ct. 2475, 2486 (June 29, 1995) (quoting
Shaw v. Reno, 509 U.S. 630, 647 (1993)); see also Shaw, 509 U.S.
at 648 ("`The principle of equality is at war with the notion that Dis-
trict A must be represented by a Negro, as it is with the notion that
District B must be represented by a Caucasian, District C by a Jew,
District D by a Catholic, and so on.'" (quoting Wright v. Rockefeller,
376 U.S. 52, 66-67 (1964) (Douglas, J., dissenting))).
The judgment of the district court is affirmed.
AFFIRMED
29
Volume 2 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNESTINE LEWIS; SYLVESTER J.
LEWIS,
Plaintiffs-Appellants,
and
MINNETTA E. HILL,
Plaintiff,
No. 95-2002
v.
ALAMANCE COUNTY, NORTH
CAROLINA, including its Board of
Commissioners and Board of
Elections,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CA-92-614)
Argued: March 5, 1996
Decided: November 4, 1996
Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Chief Judge Wilkinson joined. Chief Judge Wilkinson
wrote a concurring opinion. Judge Michael wrote a dissenting opin-
ion.
_________________________________________________________________
COUNSEL
ARGUED: Donnell Van Noppen, III, PATTERSON, HARKAVY &
LAWRENCE, Raleigh, North Carolina, for Appellants. J. Michael
Crowell, THARRINGTON, SMITH, Raleigh, North Carolina, for
Appellees. ON BRIEF: E. Hardy Lewis, THARRINGTON, SMITH,
Raleigh, North Carolina; S. C. Kitchen, Alamance County Attorney,
Graham, North Carolina, for Appellees.
_________________________________________________________________
WILKINSON, Chief Judge, concurring:
I agree that the judgment of the district court should be affirmed,
and I concur in Judge Luttig's fine opinion. I write separately, how-
ever, to express my concern about the way in which my dissenting
colleague interprets Thornburg v. Gingles, 478 U.S. 30 (1986). That
case commands us, when analyzing claims of minority vote dilution,
to determine whether "the white majority votes sufficiently as a bloc
to enable it . . . usually to defeat the minority's preferred candidate."
Id. at 51.
The dissent's intensely race-conscious approach to that inquiry
seems to me at odds with three recent Supreme Court cases which
have held race-based redistricting schemes to be in violation of the
Constitution. See Bush v. Vera, 116 S.Ct. 1941 (1996); Shaw v. Hunt,
116 S.Ct. 1894 (1996); Miller v. Johnson, 115 S.Ct. 2475 (1995).
Gingles may require us to engage in an inquiry which focuses on
racial considerations, but it cannot be read to require us to adopt rules
that unconstitutionally tie American politics to racial identity. If my
dissenting brother's view of Gingles prevails, we will be well on our
way to the creation of racially separate electorates and a racially sepa-
rate society. Nothing in Supreme Court precedent compels us to take
America in that direction.
32
By reversing the district court, the dissent would lead us not only
to a relentlessly race-conscious trial, but also toward the restructuring
of Alamance County electoral districts along racial lines. This is just
what the Supreme Court does not allow. Bush, Shaw, and Miller did
not overrule Gingles, but they surely set limits on the ability of fed-
eral courts to cast voters as members of racial blocs rather than as
individuals. In order to identify the "minority-preferred" candidate,
we have been forced to wade into a bog of slippery assumptions and
statistics. In this case alone, we have been asked to assault such
impenetrable questions as: May a candidate who receives more than
50% of the minority vote, but who finishes behind a successful
minority-preferred candidate, also be considered preferred by the
minority? If the candidate who is most preferred by the minority is
unsuccessful, may other successful candidates who received substan-
tial minority support be considered as preferred by the minority?
Should votes for candidates cast by minority voters in general elec-
tions be held not to express their true preferences when a candidate
favored by minority voters in the primary election failed to win a
place on the ballot for the general election? And, should votes for a
minority-preferred candidate who is also an incumbent be disregarded
when analyzing the successes of minority-preferred candidates?
Where will this road of race-consciousness end? As the above
questions demonstrate, the Gingles inquiry is complicated enough in
a biracial community. Is the inquiry to become ever more refined and
ever more complex as America becomes more multicultural? How do
we identify minority-preferred candidates under Gingles when multi-
ple minorities are present? How shall we determine whether a candi-
date supported to a greater or lesser extent by different minorities is
the preferred candidate of a single minority? To what extent are the
electoral interests of different racial minorities to be aggregated or
kept separate? How broadly or narrowly are the categories of racial
minorities to be defined? At some point, this race-based calculus will
demonstrate only how far the law has set us on the path to disunion.
Entering this maze of racially laden inquiries reflects a view of
American political life as a competition between highly segregated
racial forces. Indeed, this is precisely the mistake of the dissent. The
dissent's interpretation of Gingles will not allow courts to accept the
votes of minority individuals as expressing their personal preferences.
33
Instead, the dissent mandates that we pass the votes of minority indi-
viduals under a microscope in order to determine the racial prefer-
ences expressed by those voters.
Under the dissent's view, all electoral behavior is reducible to race.
Thus, the dissent suggests that because voters prefer candidates of
their own race, elections in which no minority was a candidate need
not be counted. The dissent further suggests that minority votes for
a candidate in a general election do not express a preference by the
minority unless that candidate was also preferred by the minority in
the primary election; that a successful candidate who received more
than 50% of the minority vote, but finished behind a successful candi-
date who received a higher degree of minority support, should not
automatically be considered to be preferred by the minority; and that
certain electoral successes of incumbent, minority-preferred candi-
dates should not count towards the success of minority individuals in
electing their preferred candidate.
And these are but a few of the racially-driven factors that the dis-
sent would fasten upon the judicial review of American elections. In
its recent cases, the Supreme Court has made it clear that there is no
room in the Constitution for congressional redistricting schemes pred-
icated predominantly on the basis of race. See Bush v. Vera, 116 S.Ct.
1941 (1996); Shaw v. Hunt, 116 S.Ct. 1894 (1996); Miller v. Johnson,
115 S.Ct. 2475 (1995). The dissent's interpretation of Gingles flies in
the face of this command by proposing a set of intricate inquiries
designed to reinforce the view of American politics as a contest
between separate racial voting blocs. The tendency of such rules to
"disrupt[ ] nonracial bases of political identity," Bush, 116 S.Ct. at
1962 (plurality opinion), will be no less than that of drawing district
boundaries based on race, and they should be no more acceptable
under the Constitution. "It takes a shortsighted and unauthorized view
of the Voting Rights Act to invoke that statute, which has played a
decisive role in redressing some of our worst forms of discrimination,
to demand the very racial stereotyping the Fourteenth Amendment
forbids." Miller, 115 S.Ct. at 2494. In leading us ineluctably to elec-
toral remedies based on racial shares, the dissent"carr[ies] us further
from the goal of a political system in which race no longer matters
-- a goal that the Fourteenth and Fifteenth Amendments embody, and
34
to which the Nation continues to aspire." Shaw v. Reno, 113 S.Ct.
2816, 2832 (1993).*
It will be said that racial bloc voting is already ensconced in Amer-
ican political life and that courts must learn to embody in law what
is established in fact. A Constitution, however, has its aspirational as
well as descriptive aspect. It is informed by the way things ought to
be. Were the Fourteenth Amendment no more than a concession to
the racial realities of the day, Brown v. Board of Education would
have remained an untaken step. Separation of the races is no better for
America now than it was in 1954. It is a sad turn that has led the
courts to rebuild the walls they once brought down.
MICHAEL, Circuit Judge, dissenting:
Since 1980 no minority candidate has been elected to Alamance
County's five-member Board of Commissioners. Indeed, since the
Voting Rights Act was first passed in 1965, only one minority candi-
date has ever been elected to the Board of Commissioners. That can-
didate was initially appointed (not elected), and when he was first
elected after his appointment, he ran in a special election that was not
subject to Alamance County's at-large voting system. In light of this
history, I believe that members of the black community in Alamance
County would be truly surprised to learn that they enjoy the same
opportunity as white voters to elect their preferred candidates as
county commissioners. Yet, in light of this same history, the majority
_________________________________________________________________
*My good colleague suggests in dissent that the concurring opinion
fails to follow the law -- "even when it is a law that we might think
unwise or unnecessary in today's world." Of course, the district court fol-
lowed the law when it found that the Alamance County system con-
formed fully to section 2 of the Voting Rights Act and did not operate
to deny black citizens an equal opportunity to elect candidates of their
choice. In voting to reverse the district court, it is the dissent, I respect-
fully suggest, that has failed to follow the law, because it has mandated
a collection of intensely race-conscious inquiries destined to result by
way of remedy in the proportional allocation of electoral districts based
on race. To pursue this course in the wake of the Supreme Court's
repeated cautions against race-conscious districting is simply not sup-
portable.
35
concludes that the plaintiffs have failed to demonstrate that minority-
preferred candidates are usually defeated by white bloc voting and
affirms the award of summary judgment to the County.
The majority offers two main reasons for its decision. First, the
majority believes that the plaintiffs have failed to defeat the County's
motion for summary judgment because the plaintiffs have not "prof-
fer[ed] data from a sufficient number of elections to enable the district
court to determine whether white bloc voting usually defeats
minority-preferred candidates." Ante at 8. That is, because the plain-
tiffs have not proffered evidence from elections in which no minority
was a candidate, the County is entitled to judgment as a matter of law.
The majority reaches this conclusion even though the plaintiffs have
proffered election data from every election in which a minority was
a candidate, and even though the Supreme Court in Thornburg v.
Gingles, 478 U.S. 30 (1986), upheld a finding of vote dilution based
on an analysis of election data that included results from only those
elections in which a minority was a candidate and that covered only
three election years.
Second, the majority believes that even if we only consider the
election data that the plaintiffs have proffered, the plaintiffs have still
failed to establish a violation of section 2 of the Voting Rights Act,
42 U.S.C. § 1973. In particular, under the majority's approach for
determining who is and who is not a minority-preferred candidate, the
plaintiffs have failed to show that minority voters' preferred candidate
is usually defeated by white bloc voting. In reaching this conclusion,
the majority adopts a methodology that is unsound and unsupported
by precedent. For example, even though primary election results pro-
vide a means for assessing minority voter preference without the
effects of partisanship, under the majority's approach it is improper
to consider primary election data when determining who is and who
is not a minority-preferred candidate in the general election. Ante at
23-24. Thus, according to the majority, we should take raw election
data in isolation and disregard the probative value of considering gen-
eral election data in conjunction with primary election data (or in con-
junction with any other circumstance in most cases).
Because I believe that neither of the majority's two reasons provide
grounds for affirming the district court's grant of summary judgment,
36
I respectfully dissent. At the very least, I believe that it is clear that
the plaintiffs have offered ample evidence showing that there is a gen-
uine issue of material fact of whether minority-preferred candidates
are usually defeated by white bloc voting. Therefore, the district
court's order granting summary judgment should be reversed and the
case remanded for trial.
I.
The Supreme Court's decision in Gingles makes clear that the
plaintiffs have the burden of proving each of the Court's three precon-
ditions, see Gingles, 478 U.S. at 48, including whether "the white
majority votes sufficiently as a bloc to enable it--in the absence of
special circumstances, . . . usually to defeat the minority's preferred
candidate." Id. at 51 (citations omitted). And the plurality opinion of
Justice Brennan emphasizes that "it is the status of the candidate as
the chosen representative of a particular racial group, not the race of
the candidate, that is important." Id. at 68 (Brennan, J., plurality opin-
ion) (emphasis in original).1 Yet, the Court's decision in Gingles
notes that:
_________________________________________________________________
1 Justice Brennan's opinion on this point failed to gain a majority of the
Court, and it was joined by only Justices Marshall, Blackmun, and Ste-
vens. Justice White, who otherwise joined Justice Brennan's opinion,
rejected the notion that the race of the candidate is irrelevant. Id. at 83(White, J., concurring). Justice O'Connor, in an opinion joined by Chief
Justice Burger and Justices Powell and Rehnquist, agreed with Justice
White that race of the candidate might affect the overall vote dilution
inquiry. Id. at 101 (O'Connor, J., concurring). Justice White and Justice
O'Connor were concerned that ignoring the race of the candidate may
cause the successful election of a black candidate not to be counted for
purposes of identifying racial polarization. For instance, because black
voters often support the Democratic party, there was concern that the
election of a black Republican candidate would not be viewed as a
minority success. See id., 478 U.S. at 83 (White, J., concurring) ("This
is interest-group politics rather than a rule hedging against racial discrim-
ination."); id. at 101 (O'Connor, J., concurring) (agreeing with Justice
White that "Justice Brennan's conclusion that the race of the candidate
is always irrelevant in identifying racially polarized voting conflicts with
Whitcomb [v. Chavis, 403 U.S. 124 (1971)] and is not necessary to the
disposition of this case."). Of course, the majority opinion in the present
37
The number of elections that must be studied in order to
determine whether voting is polarized will vary according to
pertinent circumstances. One important circumstance is the
number of elections in which the minority group has spon-
sored candidates. Where a minority group has never been
able to sponsor a candidate, courts must rely on other factors
that tend to prove unequal access to the electoral process.
Similarly, where a minority group has begun to sponsor can-
didates just recently, the fact that statistics from only one or
a few elections are available for examination does not fore-
close a vote dilution claim.
Id. at 57 n.25; see Jenkins v. Red Clay Consol. School Dist. Bd. of
Educ., 4 F.3d 1103, 1130 (3d Cir. 1993) ("The Supreme Court's lan-
guage clearly indicates that an inability to offer statistical evidence on
a large number of elections should not foreclose a voting rights
claim.") cert. denied, 114 S. Ct. 2779 (1994); Citizens for a Better
Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987) ("Gingles
. . . suggests flexibility in the face of sparse data."), cert. denied, 492
U.S. 905 (1989).
Accordingly, the plaintiffs here, faced with the prospect of having
to establish their vote dilution claim at trial, conducted a statistical
analysis of all general and primary elections since 1972 in which a
minority candidate was on the ballot for county commissioner. In
total, the plaintiffs proffered election data from five general elections
and six primary elections extending over twenty years. The election
data included the general elections in 1974, 1976, 1980, 1984, and
1986, and the Democratic primaries in 1972, 1976, 1978, 1980, 1984,
and 1992. See Gingles, 478 U.S. at 57 ("a pattern of racial bloc voting
that extends over a period of time is more probative of a claim that
_________________________________________________________________
case turns the opinions of Justice Brennan, Justice White, and Justice
O'Connor on their collective heads. That is, whereas the Supreme Court
in Gingles was concerned with whether to count the election of a black
Republican for purposes of identifying racial polarization, the majority
holds that the plaintiffs' action cannot withstand summary judgment
because we must consider whether to count the election of white Demo-
crats for purposes of identifying racial polarization.
38
a district experiences legally significant polarization than are the
results of a single election").
In turn, the County proffered no election data of its own. Instead,
the County moved for summary judgment arguing that the plaintiffs'
own election data fails to support their contention that the minority
group's preferred candidates are usually defeated by bloc voting
among white voters of Alamance County. Neither before the district
court, nor in its briefs to this court, did the County argue that it was
entitled to summary judgment because the plaintiffs had only ana-
lyzed elections involving minority candidates. In essence, however,
that is what the majority has held here today.
I disagree with this result because I believe that the plaintiffs have
in fact offered sufficient evidence from which a fair assessment can
be made of whether minority-preferred candidates are usually
defeated by white bloc voting. In addition, I believe that if the County
wishes to rebut the plaintiffs' evidence of racial polarization based on
evidence from elections in which no minority was a candidate, then
the County should have the burden to produce such evidence.2 I will
elaborate on each of these points below.
A.
No court before today has ever dismissed a vote dilution claim
because the plaintiffs failed to proffer evidence of elections in which
_________________________________________________________________
2 Also, I do not share the majority's uneasiness with the plaintiffs' reli-
ance on bivariate regression analyses. See ante at 5 n.3. If the County
wishes to challenge the plaintiffs' statistical evidence as flawed, then it
should do so, and we should refrain from criticizing the statistical evi-
dence in the absence of such a challenge. For instance, while it may (or
may not) be true that "blacks and whites who live in integrated neighbor-
hoods are more likely to vote for candidates of another race," id., the
County has put forth no evidence or argument on this appeal that the
plaintiffs' election data is flawed because it treated minority preference
as constant across precincts. Cf. Smith v. Clinton, 687 F. Supp. 1310,
1315 n.6 (E.D. Ark.) (three-judge court) (noting that the defendants did
not dispute the fact that a regression analysis is the "standard method for
inferring the behavior of population groups from data collected for politi-
cal units") (internal quotes omitted), aff'd mem., 488 U.S. 988 (1988).
39
no minority was a candidate. And, of course, the majority does not
expressly say that is what it is doing here. According to the majority,
it "hold[s] merely that it is insufficient to consider selectively only
those elections in which minority candidates were on the ballot, at
least where such elections are not such a substantial majority of the
total elections that a fair assessment can be made of whether the
minority-preferred candidates are usually defeated by white bloc vot-
ing." Ante at 17. Yet, the majority makes clear that it believes that
"both elections in which the candidates are of the same race and elec-
tions in which the candidates are of different races must be considered
in order to determine whether white bloc voting usually defeats the
minority-preferred candidate . . . ." Id. at 9 (emphasis added).
Of course, I agree that there must be sufficient election data pres-
ented from which a "fair assessment can be made" of the third
Gingles precondition. I cannot, however, agree that a "fair assess-
ment" must be based on data from a "substantial majority of the total
elections." Nor can I agree that elections in which no minority was
a candidate must be considered in all circumstances.
Despite what the majority believes, there is no requirement under
section 2 of the Voting Rights Act or Supreme Court precedent that
the plaintiffs offer election data from "a substantial majority of the
total elections" in order to show that minority-preferred candidates are
usually defeated by white bloc voting. Likewise, even though "a
minority-preferred candidate may be either a minority or a non-
minority," neither section 2 of the Voting Rights Act nor Supreme
Court precedent requires, as the majority claims, that we "must" con-
sider (and plaintiffs must proffer) data from elections in which no
minority was a candidate. See ante at 9. As I have said, not only did
the decision in Gingles uphold vote dilution claims based on election
data that included only those elections in which a minority was a can-
didate, but the Court specifically noted that "[t]he number of elections
that must be studied in order to determine whether voting is polarized
will vary according to the pertinent circumstances." 468 U.S. at 57
n.25 (emphasis added). And no court (at least before today) has ever
said that there is a per se rule requiring that election data from elec-
tions in which no minority was a candidate "must" be proffered. Cf.
Sanchez v. Bond, 875 F.2d 1488, 1495 (10th Cir. 1989) ("We do not
believe that a per se rule against examining races that have only white
40
candidates is implicit in Gingles.") (emphasis added), cert. denied,
498 U.S. 937 (1990).3
This makes complete sense. While minority voters might prefer a
candidate from the majority (i.e., white) group, common experience
shows that minority voters frequently prefer minority candidates. The
opposite is true as well. Gingles, 478 U.S. at 68 (Brennan, J., plurality
opinion) ("Because both minority and majority voters often select
members of their own race as their preferred representatives, it will
frequently be the case that a black candidate is the choice of blacks,
while a white candidate is the choice of whites.") (citation omitted);
Jenkins, 4 F.3d at 1126 ("experience does demonstrate that minority
candidates will tend to be candidates of choice among the minority
community").
Moreover, even though voter preference is what matters, minority
sponsorship of a candidate is the basis for determining whether a can-
didate is minority preferred. Of course, sponsorship can be proven in
a number of different ways, and election data is only one of them.
However, when a defendant neither argues nor proffers evidence that
_________________________________________________________________
3 The majority cites the decision in Brown v. Board of Commissioners,
722 F. Supp. 380, 391 (E.D. Tenn. 1989), for the proposition that "a
review of white/white elections as well as white/black elections is neces-
sary to determine the existence of racially polarized voting." Ante at 13
n.7. What, however, the majority fails to say is that the district court
made this remark in the context of "this particular case." Brown, 722 F.
Supp. at 391 (providing overview of elections in Chattanooga and stating
that "blacks have . . . found themselves having to support white candi-
dates in an effort to achieve a measure of political influence"). See also
Sanchez, 875 F.2d at 1496 (affirming district court's decision to examine
elections in which no minority was a candidate because the evidence
showed that a candidate could not receive the nomination and support of
the Democratic party without receiving minority support). Also, a court's
leeway to examine elections in which no minority is a candidate does not
mean that a court must examine such elections before a vote dilution
claim can be established, and it certainly does not mean that a plaintiff
must proffer such evidence in all cases (and on summary judgment). Cf.
Jenkins, 4 F.3d at 1129 ("district court may, in its discretion, decide to
allow the defendants to introduce evidence on which, if any, white candi-
dates were minority-preferred") (emphasis added; footnote omitted).
41
the minority has sponsored such a significant number of white candi-
dates that a fair assessment can not be made without an analysis of
election data from elections in which no minority was a candidate, I
do not believe that we may require a plaintiff to proffer election data
from white/white elections before a vote dilution claim can be proven.
Indeed, when the minority's only choice is to vote for a white can-
didate or not to vote at all, such elections are, in general, less proba-
tive on the issue of racial polarization than elections involving both
black and white candidates. As the Fifth Circuit has said:
"[T]he evidence most probative of racially polarized voting
must be drawn from elections including both black and
white candidates." "[W]hen there are only white candidates
to choose from it is `virtually unavoidable that certain white
candidates would be supported by a large percentage . . . of
black voters.'" Thus, it is not particularly surprising--and
not particularly probative--that analysis of elections that
included only white candidates did not reveal any racial
polarization.
Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d
1109, 1119 n.15 (5th Cir. 1991) (Westwego III ) (citations omitted;
quoting Westwego I, 872 F.2d 1201, 1208 n.7 (5th Cir. 1989);
Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th
Cir. 1987), cert. denied, 492 U.S. 904 (1989)); see ante at 15 (listing
cases in which courts have held that black/white elections are more
probative than white/white elections). Therefore, if the defendant does
not bring forth evidence of particular circumstances showing that
minority voters often choose to sponsor, Gingles, 478 U.S. at 57 n.25,
and not merely vote for white candidates, I believe that "a fair assess-
ment can be made" of the third Gingles precondition without the prof-
fer of election data from elections in which no minority was a
candidate.
A fair assessment is just that, and the plaintiffs in this case have
offered more than sufficient election data from which we may discern
election patterns in Alamance County. The plaintiffs' election data
spans the twenty years preceding the filing of the plaintiffs' complaint
in October of 1992. During those twenty years, there were ten county
42
commissioner elections, and of those ten elections the plaintiffs have
offered election data from five general elections and six primary elec-
tions. In other words, the plaintiffs have offered election data from a
majority of the county commissioner elections held within the two
decades preceding the filing of their complaint. I believe it is clear
that the proffer of such extensive election data as this satisfies the
plaintiffs' burden to produce sufficient election data from which a fair
assessment can be made. See, e.g., Gingles, 478 U.S. at 61 (conclud-
ing that "the District Court's approach, which tested data derived
from three election years in each district, and which revealed that
blacks strongly supported black candidates, while, to the black candi-
dates' usual detriment, whites rarely did, satisfactorily addresses each
facet of the legal standard"); Uno v. City of Holyoke, 72 F.3d 973, 985
(1st Cir. 1995) ("race-conscious politics (or its absence, for that mat-
ter) can more readily be seen by producing a documentary that spans
a series of elections than by taking an isolated snapshot of a single
election").
B.
While the plaintiffs have the burden of proving the Gingles precon-
ditions, nothing prevents the defendant from offering election data of
its own. And, as I have said, black/white elections are generally more
probative than white/white elections. It therefore follows that if the
plaintiffs have proffered election data sufficient to provide a "fair
assessment" of the third Gingles precondition, and that election data
only involves black/white elections, the defendant is free to counter
with evidence of election data from elections in which no minority
was a candidate. As the Third Circuit has said:
We . . . do not believe that plaintiffs are required to pres-
ent evidence on white versus white elections if they do not
believe that those elections are probative. If the defendants
want to introduce evidence on those elections in an attempt
to rebut the plaintiffs' evidence of cohesiveness or white
bloc voting, they may do so. Nevertheless, because white
versus white elections tend to be less probative, there may
still be cases in which "[t]he evidence of polarized voting
. . . is so strong . . . that it cannot be overcome even when
43
all reasonable inferences are accorded to the evidence of
elections involving only white candidates."
Jenkins, 4 F.3d at 1128-29 (quoting Smith, 687 F. Supp. at 1317); see
Uno, 72 F.2d at 988 & n.8 (noting that when district court only exam-
ined elections involving minority candidates, "evidence exhumed
from `white only' elections may still be relevant in assessing the total-
ity of the circumstances in a vote dilution case, especially if it tends
to rebut the evidence of cohesion or white bloc voting extracted from
`mixed' elections") (emphasis added; citation omitted).
In this case, the County offered no evidence from white/white elec-
tions. And, in fact, the County has not even argued that such elections
are probative. Accordingly, the majority is simply wrong to uphold
the district court's decision granting summary judgment because the
plaintiffs have not offered evidence from elections in which no minor-
ity was a candidate.
II.
The majority is also wrong to conclude that if we only consider the
election data that the plaintiffs have proffered from black/white elec-
tions, the plaintiffs have still failed to establish a violation of section
2 of the Voting Rights Act, 42 U.S.C. § 1973. Ante at 8. In particular,
I believe that the majority's (and the district court's) methodology for
determining who is and who is not a minority-preferred candidate is
fundamentally flawed and that the County is not entitled to summary
judgment when the election data put forth by the plaintiffs is properly
considered.
Initially, I emphasize that the majority opinion does not squarely
address the issue of the procedural posture of this case. We are hear-
ing this case on appeal from the district court's grant of summary
judgment in favor of the County, and not after a trial on the merits.
Therefore, it is the moving party (i.e., the County) that has the burden
of showing that there is no genuine issue of material fact requiring a
trial, and we must draw all reasonable inferences in favor of the non-
moving party (i.e., the plaintiffs). In addition, while the plaintiffs here
bear the ultimate burden of persuasion on their vote dilution claim,
the County must show that there is an absence of evidence to support
44
the plaintiffs' claim in order to succeed on summary judgment. See,
e.g., Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.
Supp. 1022, 1030 (D. Md. 1994) (three-judge court) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). And while we have
previously said that plaintiffs in a vote dilution case cannot "pass the
summary judgment threshold" unless they establish all the Gingles
preconditions, McGhee v. Granville County, 860 F.2d 110, 117 (4th
Cir. 1988) (internal quotes and citation omitted), I believe that the
plaintiffs here have adequately established the Gingles preconditions
for purposes of defeating the County's motion for summary judgment.4
Moreover, because we are reviewing this case on summary judg-
ment, I do not believe that the district court's factual findings are enti-
tled to deference. The district court assessed a paper record, and we
should, as we normally do on summary judgment, review the court's
findings de novo. Cf. ante at 22-23, 27-28 (upholding district court's
factual findings under the clearly erroneous standard of Rule 52(a) of
the Federal Rules of Civil Procedure).5
_________________________________________________________________
4 As I have noted, the County has not even argued that the plaintiffs
must submit election data from white/white elections, nor has the County
submitted any such data. In short, the County has not shown that the
absence of data on white/white elections means that there is insufficient
evidence to support the plaintiffs' vote dilution claim. Therefore, under
basic summary judgment principles, I am at a loss as to how the majority
can conclude that the County is entitled to summary judgment because
the plaintiffs have not proffered election data from white/white elections.
5 The Court in Gingles did not discuss what level of deference an
appellate court is to accord a district court's factual findings on summary
judgment. The Court did, however, stress that because of the fact inten-
sive nature of a vote dilution claim, a district court's factual findings
made after trial are subject to the clearly erroneous standard of Rule
52(a). As the Court said:
We reaffirm our view that the clearly-erroneous test of Rule
52(a) is the appropriate standard of appellate review of a finding
of vote dilution. As both amended § 2 and its legislative history
make clear, in evaluating a statutory claim of vote dilution
through districting, the trial court is to consider the "totality of
the circumstances" and to determine, based "upon a searching
practical evaluation of `the past and present reality,'" [S. Rep.
45
Of course, the legal standards that the district court applied are not
entitled to any deference. And even if there had been a trial on the
merits in this case, we would still have the "power to correct errors
of law, including those that may infect a so-called mixed finding of
law and fact, or a finding of fact that is predicated on a misunder-
standing of the governing rule of law." Gingles, 478 U.S. at 79 (inter-
nal quotes and citations omitted). Accordingly, I turn now to the
errors of law that infected the district court's decision in this case--
errors that the majority has simply compounded.
A.
The plaintiffs challenge the methodology employed by the district
court on several grounds. First, the plaintiffs argue that the district
court erred "[b]y grouping together white candidates for whom black
voters voted only in the absence of other alternatives with candidates
who were enthusiastically and overwhelmingly supported by black
voters (and who were, with one exception, black) . .. ." Appellants'
Brief at 16. According to the plaintiffs, the fact that many white Dem-
ocratic candidates received substantial electoral support from black
voters in general elections does not show that these candidates are
minority preferred. Rather, it is a reflection of the fact that when the
only electoral choice is to vote for a white Republican or a white
Democrat, blacks in Alamance County usually choose the white Dem-
_________________________________________________________________
No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982
U.S.C.C.A.N. 177, 208 (footnote omitted)], whether the political
process is equally open to minority voters. "`This determination
is peculiarly dependent upon the facts of each case,'" Rodgers [v.
Lodge, 458 U.S. 613, 621 (1982)], quoting Nevett v. Sides, 571
F.2d 209, 224 (5th Cir. 1978), and requires "an intensely local
appraisal of the design and impact" of the contested electoral
mechanisms. 458 U.S. at 622.
Gingles, 478 U.S. at 79 (emphasis added). In the absence of a trial, it is
difficult to imagine how the district court can make"a searching practical
evaluation of `the past and present reality'" to determine who is and who
is not a minority-preferred candidate. Without such an evaluation, there
is no reason or basis for deferring to the district court's factual findings
under the clearly erroneous standard.
46
ocrat. Therefore, the district court should have conducted an individu-
alized assessment of each candidate that received a majority of the
minority's support in the general election to determine if that candi-
date was truly minority preferred. For example, the district court
should have examined primary election results (nominating elections
where the effects of partisan voting are minimized) to determine the
black community's true level of support for a particular candidate.
Second, while the district court failed to examine primary elections
to help determine who is and who is not minority preferred, the plain-
tiffs argue that the district court erred because it equated success in
primary elections with success in general elections. This, according
to the plaintiffs, is wrong because "winning the primary does not
place the winner in office." Id. at 25.
Finally, the plaintiffs believe that the district court erred because it
failed to discount the three election victories of Jack O'Kelley, the
only black candidate ever elected to Alamance County's Board of
Commissioners. Id. at 26. In particular, the plaintiffs contend that the
district court should not have counted O'Kelley's election victories
because O'Kelley first gained office by appointment, not election. In
other words, unlike every other county commissioner, O'Kelley has
always been an incumbent. Thus, the factual circumstances surround-
ing his election victories are not typical, and they provide little guid-
ance for determining whether white bloc voting usually defeats the
minority's preferred candidate.
The majority disagrees with much of what the plaintiffs argue,
though to its credit the majority does correctly recognize that "pri-
mary and general elections results should not be aggregated for pur-
poses of determining whether black-preferred candidates are `usually'
successful . . . ." Ante at 27. Thus, the majority evidently agrees with
the plaintiffs that even though a minority-preferred candidate wins in
the primary, this success alone does not count for purposes of deter-
mining whether the minority is usually able to elect its preferred can-
didates to office. And I too agree on this point.
Nevertheless, I cannot agree with the majority's conclusions with
respect to the plaintiffs' other assigned errors. According to the
majority, the district court actually "erred in plaintiffs' favor by not
47
treating as `black-preferred' some . . . candidates who placed second
or third among black voters (and with a significant majority of black
votes) behind an unsuccessful candidate who was the first choice of
black voters." Ante at 17-18. Also, the majority believes that the dis-
trict court did not err when it failed to conduct an individualized
determination of candidates who placed second or third among minor-
ity voters when the minority's first choice was successful. Ante at 22-
23. Furthermore, the majority rejects the plaintiffs' argument that pri-
mary election results provide a basis to help determine whether a can-
didate is minority preferred in the general election. See ante at 23-26.
And the majority believes that the district court did not err in giving
full weight to the three election victories of Jack O'Kelley. Ante at 27.
I believe that in reaching these conclusions the majority has seri-
ously misread the Supreme Court's decision in Gingles, our own pre-
cedent, and precedent from our sister circuits. As I explain below, the
critical error that both the majority and the district court make is to
isolate election data from the actual circumstances surrounding an
election and then to treat such data as dispositive for purposes of
determining who is a minority-preferred candidate (though, under
most circumstances, the majority does not treat the data as dispositive
for purposes of determining who is not a minority-preferred candidate).6
Granted, election data (taken in isolation) provides some guidance in
making a determination of who is and who is not a minority-preferred
candidate. However, both section 2 of the Voting Rights Act and
Gingles demand a more searching inquiry than mere reference to the
percentage of minority voter support that a candidate has received,
particularly when the candidate is not a minority and an at-large vot-
ing system is employed. At the very least, we must examine the par-
ticular circumstances of each case to discern whether the electoral
support that minority voters give a candidate (especially in general
elections) truly reflects minority voters' preference or whether such
support is itself a manifestation of a structural inequality in the chal-
lenged voting system.
_________________________________________________________________
6 When questioned at his deposition, the plaintiffs' expert fell into
somewhat the same trap as the majority and the district court, acknowl-
edging minority-preferred candidates based on election data taken in iso-
lation.
48
1.
We have covered much of this ground before. See Collins v. City
of Norfolk, 883 F.2d 1232 (4th Cir. 1989) (Collins II), cert. denied,
498 U.S. 938 (1990).7 At-large voting schemes may work to create
the appearance of minority preference where none actually exists
because once the number of seats up for election exceeds the number
of candidates that minority voters "prefer," minority voters face the
choice of either voting for a candidate that they do not actually prefer
or not voting at all. Thus, the fact that a candidate receives a majority
of the minority vote does not automatically make that candidate a
minority-preferred candidate for purposes of the third Gingles precon-
dition. As we explained in Collins II:
The mere election of a candidate who appears to have
received votes from more than fifty percent of minority bal-
lots does not count as a minority electoral success, when
each ballot may contain votes for more than one candidate.
In such a situation, if there were other candidates, preferred
by a significantly higher percentage of the minority commu-
nity, who were defeated in the same election, then it cannot
_________________________________________________________________
7 In Collins II the minority plaintiffs challenged the at-large voting sys-
tem used to elect the City Council in Norfolk, Virginia. We 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 candidates.'" Id. at 1236 (quoting Gingles, 478 U.S. at
47). We then stated that "[t]he proper identification of minority voters'
`representatives of their choice' is critical." Id. at 1237. And, we recog-
nized that the plaintiffs' primary complaint was not that minority voters
were unable to elect their first choice to the city council, but rather that
the at-large voting system prevented minority voters from electing a sec-
ond preferred candidate as well. Id. at 1240 ("In the context of this case
it is necessary to apply Gingles' teaching to the black community's
attempt to elect a second black councilman."). For this reason alone, the
majority is wrong to say that Collins II left open the question of how to
treat second- and third-place finishers when the minority's first choice is
successful. See ante at 22. Because minority voters in Norfolk were able
to elect one candidate, Collins II clearly addresses the situation where
there is a successful minority-preferred candidate.
49
fairly be said that the minority community has successfully
elected representatives of its choice. Each situation must be
reviewed individually to determine whether the elected can-
didates can be fairly considered as representatives of the
minority community. The presumption must be that they
cannot, if some other candidate has received significantly
more minority votes.
883 F.2d at 1238 (emphasis added; quoting Collins IV, 816 F.2d 932,
937 (4th Cir. 1987)).
Collins II thus demands a two-step inquiry. In the first step we
decide whether there is a presumption that a candidate is or is not
minority preferred. When an unsuccessful candidate receives a signif-
icantly higher percentage of the minority vote than candidates who
win election with a majority of the minority vote, the elected candi-
dates are presumed not to be minority preferred. When, however, an
unsuccessful candidate receives a percentage of the minority vote
which is not significantly higher than that of the elected second- and
third-place finishers, we presume that the second- and third-place fin-
ishers are minority preferred. Either way, however, the election data
only creates a presumption.
In the second step of the inquiry the district court must determine
whether the presumption is supported by other facts. The court must
make an individualized determination of "whether the elected candi-
dates can be fairly considered as representatives of the minority com-
munity." Depending on the outcome of the first step, there may be a
presumption for or against finding that a candidate is minority pre-
ferred, but regardless of the presumption the district court must make
an individualized determination in "[e]ach situation." Such an individ-
ualized determination is required, because as both Congress and the
Supreme Court recognize, "whether the political processes are equally
open depends upon a searching practical evaluation of the past and
present reality, and on a functional view of the political process." S.
Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982
U.S.C.C.A.N. 177, 208; Gingles, 478 U.S. at 45 & 79.
The majority recognizes that Collins II demands a two-step inquiry.
See ante at 19. The majority, however, misconstrues the inquiry.
50
Under the first step, according to the majority, a second- or third-
place finisher is minority preferred if the unsuccessful first choice
received a percentage of the minority vote which is not significantly
higher than that of the elected second- and third-place finishers. Id.In this situation, the majority believes that a district court need not
(and evidently cannot) proceed to the second step of the inquiry in
order to make the individualized determination required under the Act
and Gingles. Id. at 20 ("Because[unsuccessful candidate] Morris'
support among black voters was not `significantly higher' than [suc-
cessful candidate] Long's, the district court appears to have erred in
not automatically treating Long as a black-preferred candidate.")
(emphasis added).
Needless to say, cutting off the inquiry at the first step makes a
court's "searching practical evaluation of the past and present reality"
dependent exclusively upon election results taken in isolation. Yet,
because at-large voting systems often fail to provide an accurate view
of the political process (among other things, they may create the
appearance of minority preference), I believe that a court must pro-
ceed to the second step of the inquiry even when"the unsuccessful
first choice among minority voters did not receive a`significant
higher percentage' of the minority community's support."
Of course, when the level of support received by the unsuccessful
first-place finisher among minority voters is "significantly higher"
than the support given the second- and third-place finishers by those
same voters, the majority agrees that only a presumption is created
against finding that the second- and third-place finishers are minority
preferred. Id. at 21 (asserting that "we held in Collins II (sic) only that
successful candidates who receive more than 50% of the black vote
should not automatically be viewed as a black-preferred candidate if
they receive significantly less support from black voters than another,
losing candidate, not that they should never be treated as black-
preferred") (emphasis in original). I fail, however, to discern any rea-
son for creating the presumption (and proceeding to the second step)
only when an unsuccessful first-place finisher receives a significantly
higher percentage of the minority vote, and neither the Act, nor
Gingles, nor Collins II supports the majority's conclusion to the con-
trary.
51
For much the same reason, the majority is also wrong to conclude
that "any candidate who receives a majority of the minority vote and
who finishes behind a successful candidate who was the first choice
among the minority voters is automatically to be deemed a black-
preferred candidate . . . ." Ante at 22 (emphasis in original). Indeed,
under the majority's theory even when a successful minority-preferred
candidate garners significantly higher minority support than success-
ful second- and third-place finishers (who receive over 50 percent of
the minority vote), a district court must automatically treat the suc-
cessful second-and third-place finishers as minority-preferred candi-
dates. And, in fact, the majority goes so far as to conclude that even
though a candidate fails to gain a majority of the minority vote, there
is a presumption that the candidate is minority preferred provided that
the candidate would have won a seat in an at-large election among
black voters. Id. at 22 (stating that "[c]andidates who receive less than
50% of the minority vote, but who would have been elected had the
election been held only among black voters, are presumed also to be
minority-preferred candidates, although an individualized assessment
should be made in order to confirm that such a candidate may appro-
priately be so considered"). That has never been the law, nor should
it be.8
_________________________________________________________________
8 The flaw in the majority's approach is illustrated by the following
hypothetical. An at-large election for four slots is held. There are eight
candidates. Candidate number 1 wins with 99 percent of the minority
vote; candidate number 2 loses with 95 percent of the minority vote; can-
didate number 3 wins with 51 percent of the minority vote; candidate
number 4 wins with 20 percent of the minority vote; candidate number
5 loses with 15 percent of the minority vote; candidate number 6 loses
with 10 percent of the minority vote; candidate number 7 loses with 5
percent of the minority vote; and candidate number 8 wins with 3 percent
of the minority vote. According to the majority, we must automatically
treat candidate number 3 as minority preferred even though that candi-
date received far less support than candidate number 1 or candidate num-
ber 2. Also, according to the majority, there is a presumption that
candidate number 4 is minority preferred even though that candidate
received the support of only one in five minority voters. That cannot be
right. It also directly conflicts with our holding in Collins II, because as
I have previously noted, see supra at 49 n.7, in Collins II (as in the above
hypothetical), the minority was successful in electing its first candidate
of choice. See 883 F.2d at 1240.
52
The only way that the majority can reach these conclusions is to
disregard our clear language in Collins II and other precedent
throughout the circuits. These are decisions that hold that a successful
candidate is not automatically minority preferred merely because that
candidate receives more than 50% of the minority vote. And these are
decisions that either hold or assume that a candidate who receives less
than 50% of the minority vote cannot (by definition) be minority pre-
ferred. As we stated in Collins II:
The district court's error in finding successful candidates
who received over 50% of the minority vote to be the cho-
sen representatives of the minority community, despite the
fact that other candidates received a much greater percent-
age of the minority vote, is not simply technical or semantic.
...
A moment's reflection shows how the district court's
method of identifying the black community's representa-
tives of choice defeats a primary purpose of the Act. In
1974, 21 candidates sought the 4 open seats on the council.
In 1980, 12 candidates vied for 3 open seats. In 1974, each
voter--black and white--could cast four votes and in 1980
three votes. If black voters exercised their right to cast all
of their allotted votes, they ran the risk that their second and
third choices would be declared their preferred candidates.
Only by single-shot voting--withholding all votes save for
their first choice, and forfeiting the opportunity to cast all
votes allotted to each voter--could the minority be assured
that its second and third choices would not be declared its
preferred candidates. In contrast, under the at-large system,
the white voters can freely cast all votes allotted to them
without suffering the penalty imposed on the minority vot-
ers. The district court's construction of the Act defeats the
congressional purpose of assuring that the opportunity to
participate in the electoral process is open to all citizens.
We are aware of no case that supports the district court's
construction of the Act.
883 F.2d at 1239-40 (emphasis added); see NAACP v. Niagara Falls,
65 F.3d 1002, 1019 (2d Cir. 1995) ("a candidate cannot be `minority-
53
preferred' if that candidate receives support from fewer than 50% of
minority voters.") (emphasis added); id. ("even if a candidate receives
50% or more of the minority vote, a court need not treat the candidate
as minority-preferred if another candidate receives significantly
higher support"); Jenkins, 4 F.3d at 1126 ("it is important to look
beyond whether a white candidate received a majority of the minority
community's vote and determine whether that white candidate is truly
the minority community's representative of choice"); Campos v. City
of Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988) (rejecting the argu-
ment that "any time a candidate gets a majority of the minority votes
he is the `chosen representative' of the minority group"), cert. denied,
492 U.S. 905 (1989). See also Uno, 72 F.3d at 989 ("[D]etermining
whether racial bloc voting exists is not merely an arithmetic exercise
that consists of toting up columns of numbers, and nothing more. To
the contrary, the district court should not confine itself to raw num-
bers, but must make a practical, commonsense assay of all the evi-
dence.") (citations omitted).
The effect of the majority's unprecedented decision will be to
undermine the Voting Rights Act. After today, structural inequalities
that may be at work in at-large voting systems will be masked by the
structure itself, perpetuating those very inequalities that the Act is
intended to remedy. The reason for this is simple. As I have
explained, at-large voting systems may work to create the appearance
of minority preference where none actually exists. Thus, to allow
election results alone to dictate whether a candidate is minority pre-
ferred is to validate the structural inequalities which may be present
in at-large voting systems based on the system itself. That is circular
reasoning, I believe.
We are bound to follow Collins II. In sum, therefore, we should
hold that a district court must always make an individualized determi-
nation of whether any second- or third-place finisher who receives a
majority of the minority vote is actually minority preferred. When a
minority-preferred candidate (whether successful or not) receives a
significantly higher percentage of the minority vote, we must presume
that the second- or third-place finisher who receives a majority of the
minority vote is not minority preferred. When a minority-preferred
candidate (whether successful or not) does not receive a significantly
higher percentage of the minority vote, we must presume that the sec-
54
ond-or third-place finisher is minority preferred, provided that the
second- or third-place finisher received a majority of the minority
vote. And when any candidate receives less than a majority of the
minority vote, that candidate can never be deemed minority preferred.
2.
I also believe that it is clear that when making an individualized
determination of who is and who is not a minority-preferred candi-
date, a district court must examine the particular facts and circum-
stances surrounding each election and candidate in order to ascertain
which, if any, candidate or candidates the minority community has
sponsored. See Gingles, 478 U.S. at 57 n.25. In other words, the dis-
trict court must look at the totality of the circumstances in each situa-
tion.
There is nothing unique about this approach, and depending on the
facts, it may help or hurt plaintiffs' ability to prevail in a vote dilution
case. See, e.g., Uno, 72 F.3d at 989 (criticizing district court for fail-
ing to take into account city's "rapidly changing political environ-
ment" which may have allowed the minority group to sponsor
successful candidates); Jenkins, 4 F.3d at 1129 ("In deciding which,
if any, of the white candidates were minority preferred, the court must
engage in a detailed, practical evaluation of the extent to which any
particular white candidate was, as a realistic matter, the minority vot-
ers' representative of choice."); Collins II , 883 F.2d at 1238 ("in addi-
tion to the bare statistics, it is appropriate to consider testimony
revealing how political observers and the candidates themselves
viewed the city's claim that [the candidates] were the minority's pre-
ferred candidates and representatives of choice"); Smith, 687 F. Supp.
at 1316-17 (emphasizing that "considerable weight" should be given
to elections between black and white candidates, but still examining
multiple factors to determine minority voters' representatives of
choice).
Because we should examine the totality of the circumstances, a dis-
trict court should not hesitate to look at any evidence that might be
probative. Accordingly, I can not agree with the majority that primary
election results do not bear on the question of who is and who is not
a minority-preferred candidate. See ante at 23-26. Cf. Niagara Falls,
55
65 F.3d at 1019 ("When a candidate receives support from 50% or
more of minority voters in a general election, a court need not treat
the candidate as minority-preferred when another candidate receiving
greater support in the primary failed to reach the general election.");
Sanchez, 875 F.2d at 1496 (examining totality of the circumstances,
including "testimony to the effect that no candidate could secure the
Democratic slot in county races without the support of a group of His-
panics that included some of the plaintiffs"). Moreover, I believe that
while the race of the candidate is not dispositive, it too is a fact which
in the totality of the circumstances the court may consider. See
Jenkins, 4 F.3d at 1129. Again, "whether the political processes are
equally open depends upon a searching practical evaluation of the
past and present reality, and on a functional view of the political pro-
cess." S. Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in
1982 U.S.C.C.A.N. 177, 208; Gingles, 478 U.S. at 45 & 79. A district
court should not therefore refrain from examining election data from
primaries in order to help determine who is and who is not a minority-
preferred candidate. Nor should the district court ignore the fact that
minority voters often support minority candidates.
When, for example, a white candidate fails to gain a majority of the
minority vote in the primary election (yet still wins nomination), the
fact that such a candidate subsequently gains a majority of the minor-
ity vote in the general election is of minimal probative value. This is
especially true when minority voters strongly support a losing minor-
ity candidate in the primary election process.9 Simply put, while the
majority may be correct to say that minority voters do not "take their
marbles and go home whenever the candidate whom they prefer most
in the primary does not prevail," ante at 24, the requirements of the
_________________________________________________________________
9 Obviously, while we should treat the defeat of a minority-preferred
candidate in a primary as a defeat for purposes of determining whether
Gingles' third precondition has been met, we should not treat the success
of a minority-preferred candidate in receiving his or her party's nomina-
tion as a success for purposes of the same inquiry. Only if a minority-
preferred candidate is actually elected has the minority succeeded in the
electoral process. Winning the primary is all to the good, but without
winning the general election, white majority bloc voting may have still
succeeded in defeating the minority-preferred candidate or candidates.
56
Voting Rights Act are not met if "[c]andidates favored by blacks can
win, but only if the candidates are white." Smith, 687 F. Supp. at 1318.10
3.
As a district court must examine the totality of the circumstances
to determine who is and who is not a minority-preferred candidate, a
district court must also examine whether "special circumstances" have
resulted in a minority-preferred candidate winning a particular elec-
tion or elections. Gingles, 478 U.S. at 51 & 57. In such a case, a claim
of vote dilution may still succeed because a pattern of racial bloc vot-
ing may still result in the defeat of minority-preferred candidates
under normal election conditions. See id. at 57 ("the success of a
minority candidate in a particular election does not necessarily prove
that the district did not experience polarized voting in that election;
special circumstances, such as the absence of an opponent, incum-
_________________________________________________________________
10 In Jenkins the Third Circuit outlined the following non-exhaustive
list of factors that a court should examine when deciding whether a white
candidate may properly be considered minority preferred:
One relevant consideration is the extent to which the minority
community can be said to have sponsored the candidate. In
determining whether the minority community sponsored the can-
didate, the court should look to the level of minority involvement
in initially advancing the particular candidate and in conducting
or financing that candidate's campaign.
Additionally, the attention which the candidate gave to the
particular needs and interests of the minority community, includ-
ing the extent to which the candidate campaigned in predomi-
nately minority areas or addressed predominately minority
crowds and interests, may be relevant factors.
Another relevant consideration would be the rates at which
black voters turned out when a minority candidate sought office
as compared to elections involving only white candidates.
Finally, bearing in mind the disincentives that may exist for
minority candidates to seek office, the extent to which minority
candidates have run for office and the ease or difficulty with
which a minority candidate can qualify to run for office may be
relevant considerations.
4 F.3d at 1129 (citations omitted).
57
bency, or the utilization of bullet voting, may explain minority elec-
toral success in a polarized contest") (footnote omitted).
Here, for example, I believe that the district court erred when it
counted as minority electoral success all three election victories of
black candidate Jack O'Kelley. At the very least the district court
should have discounted O'Kelley's first election victory in 1974. That
election and the candidacy of O'Kelley were atypical for two reasons.
First, O'Kelley was initially appointed (not elected) to fill a vacant
slot on the Board of Commissioners. He thus ran as an incumbent
even though he had never been elected. Second, and more impor-
tantly, the 1974 general election was both a special election for the
seat to which O'Kelley had previously been appointed, and it was an
at-large election for two other seats on the Commission. And, of
course, O'Kelley ran in the special election, not the at-large election.
Thus, I would hold that as a matter of law O'Kelley's incumbency,
coupled with his appointment and the unique nature of his 1974 elec-
tion, constitute special circumstances requiring that we discount this
election victory.
As for O'Kelley's second and third elections in 1976 and 1980, it
may or may not be appropriate to count these elections as instances
where the minority was successful in electing its preferred candidate.
Because of the odd nature of the 1974 election, O'Kelley was forced
to run for reelection after only two years (not the normal four years).
Accordingly, there is evidence that "special circumstances" exist that
also might require us to discount O'Kelley's 1976 election. As for the
1980 election, the effects of O'Kelley's initial appointment, coupled
with his incumbency, may still persist. And, as the Court in Gingles
expressly recognizes, incumbency may constitute a special circum-
stance in certain situations. 478 U.S. at 57. Accordingly, because we
hear this case on an appeal from summary judgment, I would hold
that there are genuine issues of material fact as to whether O'Kelley's
second and third election victories should be counted for purposes of
Gingles' third precondition. These fact issues should be resolved at
trial, after the district court has examined the totality of the circum-
stances surrounding O'Kelley's second and third election victories.
B.
In light of the proper methodology described above, I turn now to
examine the election data that the plaintiffs have proffered. Of course,
58
because there has been no trial, and thus no "individual determina-
tions" of who is and who is not a minority-preferred candidate, the
district court's grant of summary judgment should be reversed for this
reason alone. In addition, even if we merely examine the election
data, I believe it clear that the presumptions we recognized as appro-
priate in Collins II indicate that minority-preferred candidates have
rarely been successful. I would therefore hold that there is a genuine
issue of material fact as to whether minority-preferred candidates are
usually defeated by white bloc voting and that the case should be
remanded for trial.
The 1972 Election:
In 1972 Morris (a black candidate) received 98% of the black vote
in the Democratic primary but was defeated nonetheless. Long (a
white candidate) received 84% of the black vote and was nominated.
No other candidate received a majority of the minority vote. Thus,
assuming that 98% of the vote is not "significantly higher" than 84%
of the vote, there is a presumption that we have two minority-
preferred candidates--one of whom we know lost (Morris). Because
neither party has proffered election data from the 1972 general elec-
tion, it would appear that we cannot determine whether Long was suc-
cessful or not in the general election. However, candidate Long also
ran in the 1974 election. It is thus apparent that Long was not elected
in 1972. Accordingly, we may presume that minority voters were not
able to elect either of their preferred candidates in 1972.
The 1974 Election:
The parties have failed to provide the primary results from the
1974 Democratic primary, but Newlin (a white candidate) won the
general election with 99% of the black vote, and Long lost with 99%
of the black vote. I will therefore count Newlin as a successful
minority-preferred candidate and Long as an unsuccessful minority
candidate (though again the record is incomplete on this point). Also,
as I have said, O'Kelley's election is not counted because he had
recently been appointed to the Board of Commissioners, and he was
running to fill a single vacant seat. Thus, as of 1974 there is a pre-
sumption that there had been four minority-preferred candidates, one
candidate who was elected and three candidates who were not.
59
The 1976 Election:
In 1976 only O'Kelley received the support of a majority of black
voters in the Democratic primary election. Therefore, he is the only
candidate that should be presumed minority preferred. But again,
because O'Kelley did not serve a full term after his 1974 election, it
may be inappropriate to count his success in the general election.
Thus, as of 1976 there still had been only four minority-preferred can-
didates, only one of whom was elected.
The 1978 Election:
In the 1978 Democratic primary, Harris (a black candidate)
received 78% of the black vote but was not nominated, and Newlin
(a white candidate) received 60% of the black vote and was nomi-
nated. The majority does not disagree that Harris's support among
minority voters was significantly higher than Newlin's support. See
ante at 20-21. In addition, the district court reached the same conclu-
sion. We should therefore presume that there was only one minority-
preferred candidate in 1978 (Harris). Because he was unsuccessful, as
of 1978 there had been five minority-preferred candidates, one candi-
date who was elected and four candidates who were not.
The 1980 Election:
In the 1980 Democratic primary, O'Kelley received 99% of the
black vote and was nominated, and Fleming (a white candidate)
received 57% of the black vote but was not nominated. No other can-
didate received a majority of the minority vote in the primary. Thus,
for purposes of summary judgment I would not count either O'Kelley
or Fleming as minority preferred. The effects of O'Kelley's initial
appointment (coupled with his incumbency) may still persist, though
less so than in 1974 and 1976. And Fleming did not receive "signifi-
cantly" close to the same amount of support as O'Kelley. Accord-
ingly, as of 1980, there remained five minority-preferred candidates,
one candidate who was elected and four candidates who were not.
The 1984 Election:
In the 1984 Democratic primary, Freeman (a black candidate)
received 98% of the black vote and was nominated. Paris (a white
60
candidate) received 50% of the black vote but was not nominated.
Because Freeman's minority support was significantly higher than
Paris's, I would presume that Paris was not a minority-preferred can-
didate. In the general election, Freeman lost. Therefore, as of 1984
there had been six minority-preferred candidates, one who was
elected and five who were not.
The 1986 Election:
The parties have not provided primary results for 1986. In the gen-
eral election, however, Bennett (a white candidate) won with 99% of
the black vote. I will therefore count him as a successful minority-
preferred candidate. However, Morris (a black candidate) lost the
general election, though he got 57% of the black vote. Although Mor-
ris is a minority and received a majority of the minority vote, I will
nonetheless presume that he is not a minority-preferred candidate
because Bennett received significantly higher support. Therefore, as
of 1986 we should presume that there had been seven minority-
preferred candidates, two who were elected and five who were not.
The 1992 Election:
In the 1992 Democratic primary, Torain (a black candidate)
received 74% of the black vote in the primary but was not nominated.
No one other candidate received a majority of the black vote. I thus
presume that Torain was the only minority-preferred candidate in
1992.
In total, therefore, we should presume that there have been eight
minority-preferred candidates, two who were elected and six who
were not. Accordingly, based only upon the election data proffered,
I believe that the County is not entitled to summary judgment. See
Gingles, 478 U.S. at 75 ("the language of§2 and its legislative history
plainly demonstrate that proof that some minority candidates have
been elected does not foreclose a §2 claim"). And, I reemphasize, this
analysis only shows which candidate (whether black or white) the
court should presume to be minority preferred. An individual determi-
nation as to each candidate should be made after trial to ensure that
all minority-preferred candidates have been properly identified.
61
****
It is no doubt true that we may not (and should not) simply assume
that "`voters of a particular race, because of their race, "think alike,
share the same political interests, and will prefer the same candidates
at the polls".'" Ante at 29 (quoting Miller v. Johnson, 115 S. Ct. 2475,
2486 (1995) (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993))).
Some black voters may prefer white candidates, some white voters
may prefer black candidates, and most voters (I would hope) may not
care if their preferred candidate is black or white. Still, a particular
voting system may work to prevent black voters from having the
same opportunity to elect their chosen representatives as white voters,
and such a system violates the law. See Shaw, 509 U.S. at 652 (recog-
nizing that a vote dilution claim is "analytically distinct" from a claim
that the state has used race as a basis for separating voters into dis-
tricts). Accord Miller, 115 S. Ct. at 2485-86.11
Here, the plaintiffs have proffered sufficient evidence to defeat the
County's motion for summary judgment because that evidence shows
_________________________________________________________________
11 Evidently, however, under the views expressed in the concurring
opinion such a system would not violate the law. Of course, to reach that
conclusion we would have to read the Voting Rights Act out of exis-
tence, something I do not believe that the Supreme Court has done in
Bush v. Vera, 116 S. Ct. 1941 (1996), Shaw, supra, or Miller, supra.Indeed, I know of nothing unconstitutional about Congress forbidding
electoral schemes that "are not equally open" and that operate to provide
minority members with "less opportunity than other members of the elec-
torate to participate in the political process and to elect representatives
of their choice." 42 U.S.C. § 1973(b). Likewise, there is nothing uncon-
stitutional about requiring the trial court "to consider the totality of the
circumstances and to determine, based upon a searching practical evalua-
tion of the past and present reality, whether the political process is
equally open to minority voters." Gingles, 478 U.S. at 79 (citation and
internal quotes omitted). While we, as the appellate court, might there-
fore be faced with hard questions on review (though I doubt that they are
"impenetrable" ones), we must nonetheless decide whether the trial court
has correctly followed the law -- even when it is a law that we might
think unwise or unnecessary in today's world. And I must respectfully
differ with my concurring colleague if he regards that as an "intensely
race-conscious approach." See ante at 32.
62
that a genuine question of fact exists as to whether the at-large
method for electing commissioners in Alamance County deprives
black voters of the same opportunity to elect representatives of choice
as is enjoyed by white voters. The County may ultimately prevail on
that question, but without a trial neither we, nor the County, nor the
citizens of Alamance will know. Again, I respectfully dissent.
63