Metts v. Almond , 363 F.3d 8 ( 2003 )

United States Court of Appeals
For the First Circuit
No. 02-2204
HAROLD METTS; JEAN WIGGINS; BRYAN EVANS; STEPHANIE CRUZ;
URBAN LEAGUE; NAACP - PROVIDENCE;
BLACK AMERICAN CITIZENS POLITICAL ACTION COMMITTEE,
Plaintiffs, Appellants,
v.
WILLIAM J. MURPHY, Speaker of the House of Representatives;
ROGER N. BEGIN, in his official capacity as State Board of
Elections Chairman; MATTHEW A. BROWN, Secretary of State;
JOSEPH A. MONTALBANO, Senate Majority Leader,
Defendants, Appellees,
DONALD L. CARCIERI, Governor;
CHARLES FOGARTY, Lt. Governor and
Presiding Officer of the Senate,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Anita Hodgkiss, Lawyers' Committee for Civil Rights Under Law,
with whom Sunil R. Kulkarni, Morrison & Foerster LLP, Kelli
Reynolds, NAACP Legal Department, and Bruce G. Pollock were on
brief, for appellants.
Joseph M. Fernandez and Goldenberg & Muri LLP on brief for
Rhode Island Affiliate, American Civil Liberties Union, amicus
curiae.
Marlene Twaddell on brief for Puerto Rican Political Action
Committee and Direct Action for Rights and Equality, amici curiae.
John A. Tarantino, with whom Patricia K. Rocha, Victoria M.
Almeida, and Adler Pollock & Sheehan P.C. were on brief, for
appellee Senate Majority Leader.
Richard B. Woolley and Thomas A. Palombo, Assistant Attorneys
General, on brief for appellee Secretary of State.
Normand G. Benoit, Eugene G. Bernado, II and Partridge Snow &
Hahn LLP on brief for appellee Speaker of the House of
Representatives.
Raymond A. Marcaccio on brief for appellee Chairman of the
State Board of Elections.
October 28, 2003
LYNCH, Circuit Judge. A group of African-American voters
and related organizations brought a challenge under § 2 of the
Voting Rights Act, 42 U.S.C. § 1973 (2000), to the Rhode Island
state senate redistricting plan adopted in 2002. They allege that
although African-Americans did not constitute a numerical majority
in any state senate district before redistricting, they have
historically had the ability to elect a representative of their
choice with the help of crossover votes in one of the former
districts. They claim that as a result of the redistricting plan,
this opportunity has been adversely affected (indeed, eliminated)
by the reduction of the African-American percentage in the relevant
district. After the districts were redrawn, their candidate of
choice, at that time an incumbent, lost his seat in the Democratic
Party primary. Because of the makeup of the newly configured
district, the victor in the primary was effectively assured of
being the victor in the general election.1
The district court dismissed the claim under Fed. R. Civ.
P. 12(b)(6) because the African-American group could not form a
numerical majority in any district and because that group would
require crossover votes to elect a candidate of its choice. Under
1
While the loss of the incumbent, Charles D. Walton, in
Senate District 9 is not part of the plaintiffs' complaint, we take
judicial notice of this electoral outcome. The fact of his loss is
undisputed and has been referred to by the parties. It is also an
easy inference from the complaint that the African-American voters'
candidate of choice would lose after and as a result of the
redistricting process.
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the standard for Rule 12(b)(6) dismissal, which permits dismissal
of a complaint "only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),
we reverse the dismissal of the claim.2
I.
On May 2, 2002, a group of individual plaintiffs and
advocacy organizations challenged the redistricting plan in the
United States District Court for the District of Rhode Island under
§ 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973. The
plaintiffs named as defendants the Governor, the Lieutenant
Governor, the Speaker of the House of Representatives, the State
Board of Elections Chairman, the Secretary of State, and the Senate
Majority Leader.3
When reviewing the dismissal of a complaint under Fed.
R. Civ. P. 12(b)(6), "[w]e accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff's favor and determine whether the
complaint, so read, sets forth facts sufficient to justify recovery
on any cognizable theory." Martin v. Applied Cellular Tech., Inc.,
2
We express our appreciation to amici for their valuable
assistance.
3
Many of the defendants originally sued in their official
capacities no longer occupy their respective offices. The current
incumbents have been substituted as defendants for their
predecessors in office. See Fed. R. App. P. 43(c)(2).
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284 F.3d 1, 6 (1st Cir. 2002). Thus, the following facts are
derived from the plaintiffs' amended complaint.
On February 23, 2002, the Rhode Island General Assembly
voted to pass a redistricting plan for the state senate. An
alteration was necessary for two reasons. First, there was a need
to adjust the senate districts to account for shifts in state
population. Second, a recent state constitutional amendment
reduced the number of senate districts from fifty to thirty-eight,
necessitating an entirely new district map with larger districts.
The new senate district plan was highly controversial.
There were concerns from the beginning that the plan might make it
more difficult for African-American voters to elect candidates of
their choice. Various community groups and individuals testified
before the legislature against the plan on the grounds that it
would not give African-American voters "an equal opportunity to
elect candidates of their choice" to the state senate, and that the
plan unnecessarily abridged the voting rights of African-American
voters in violation of the VRA. Nonetheless, the senate's
judiciary committee "approved the plan[] without taking the time to
evaluate the proposals and comments of those opposed to the plan."
It is fair to infer, given that there was only one African-American
senator, that the plan was approved over the objections of the
African-American community and its representative. Governor
Lincoln Almond refused to sign the legislation, explicitly
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questioning its fairness to Rhode Island's minority populations.
He did not veto it, however, and the plan became law without his
signature on February 23, 2002.
The population of Rhode Island is four percent African-
American,4 over half of whom live in Providence. The state's
African-American citizens continue to suffer from past official
discrimination in housing, education, health care, and employment.
By common measures of socio-economic status, educational
attainment, and access to political resources, they continue to lag
behind the rest of the state. Only one African-American state
senator, the chosen candidate of the African-American community,
has ever been elected in Rhode Island; that senator, Charles D.
Walton, represented the old Senate District 9 until the
redistricting. According to the census data from the year 2000,
that district was 25.69% African-American and 41.08% Hispanic.
Much of Providence's African-American population is now within the
new Senate District 2. The population of this new district is
21.42% African-American and 46.74% Hispanic, and the voting age
population is 21.43% African-American and 43.12% Hispanic.5
4
The complaint makes a distinction between Hispanic voters
and "Non-Hispanic African-American" voters. We use "African-
American" to describe the latter group, as distinguished from
Hispanic African-Americans, whom the complaint counts as members of
the Hispanic community.
5
The complaint does not specify the voting age population
demographics of the old Senate District 9, nor does it specify the
percentage of the population that is white in either the old Senate
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Plaintiffs plead that the African-American voters in
Rhode Island are themselves politically cohesive, and that they are
not cohesive with Hispanic or white voters. Although no
alternative plans were appended to the complaint, plaintiffs claim
that it is possible to divide the state into thirty-eight districts
such that one senate district would have a population that is at
least twenty-six percent African-American, and in such a district
it would be possible for "an African-American candidate preferred
by African-American voters" to win election due to white and
Hispanic crossover support. However, if a district is less than
twenty-six percent African-American, "[t]he white and Hispanic
communities vote sufficiently in a bloc usually to defeat the
candidate of choice of African-American voters."
II.
Without filing a responsive pleading, the defendants
quickly moved to dismiss on the basis of Fed. R. Civ. P. 12(b)(6)
for failure to state a claim. They argued that the complaint fails
to allege that it is possible to create a senate district in which
African-Americans are a majority, and that such an allegation is
required by Thornburg v. Gingles, 478 U.S. 30 (1986), and its
progeny.
On September 9, 2002, the district court granted the
defendants' motion. Metts v. Almond, 217 F. Supp. 2d 252 (D.R.I.
District 9 or the new Senate District 2.
-7-
2002). The district court analyzed the plaintiffs' complaint as
both an "ability to influence" claim and an "ability to elect"
claim. As to the former, it found that influence claims are not
cognizable under § 2. Id. at 257. As to the latter, it held that
Gingles requires that a minority group be able to constitute a
majority without the help of crossover votes from other groups.
Id. at 260. Finally, the district court also dismissed the
complaint based upon a failure to demonstrate that the majority in
Senate District 9 votes as a bloc, another requirement set out in
Gingles. Id. at 260-61. The plaintiffs appeal the dismissal of
their claim.
III.
A. Standard of Review
We review de novo a district court's dismissal of a
complaint for failure to state a claim under Rule 12(b)(6),
Morales-Villalobos v. Garcia-Llorens, 316 F.3d 51, 52 (1st Cir.
2003), taking well-pleaded facts in the complaint as true and
making all reasonable inferences in favor of the plaintiffs.
Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002).
Rule 12(b)(6) permits dismissal of a complaint for "failure of the
pleading to state a claim upon which relief can be granted." For
the purposes of Rule 12(b)(6), "it is enough for a plaintiff to
sketch a scenario which, if subsequently fleshed out by means of
appropriate facts, could support an actionable claim." Garrett v.
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Tandy Corp., 295 F.3d 94, 105 (1st Cir. 2002). We must reverse if
the plaintiffs have included in their complaint well-pleaded facts
which, taken as true, "justify recovery on any supportable legal
theory." Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000).
B. Legal Background
Section 2 of the VRA forbids any "voting qualification or
prerequisite to voting or standard, practice, or procedure . . .
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). First passed in 1965, it was amended in 1982
to specify that the test is one of adverse impact to minority
communities and does not require a showing of discriminatory
intent.6 Pub. L. No. 89-110, tit. I, § 2, 79 Stat. 437, 437
(1965), amended by Pub. L. No. 97-205, § 3, 96 Stat. 131, 134
(1982). A violation is established "if, based on the totality of
circumstances, it is shown that . . . a class of citizens . . .
[has] less opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice." 42 U.S.C. § 1973(b).
The Supreme Court first construed the post-amendment VRA
6
The amendment was meant, in part, to overturn the Supreme
Court's interpretation of the VRA in City of Mobile v. Bolden, 446
U.S. 55, 61 (1980). See P. McCrary, Bringing Equality to Power:
How the Federal Courts Transformed the Electoral Structure of
Southern Politics, 1960-1990, 5 U. Pa. J. Const. L. 665, 697-699
(2003).
-9-
in Thornburg v. Gingles, supra. Gingles was a challenge to a
redistricting plan that included multimember districts, which are
legislative districts from which more than one representative is
elected at a time. 478 U.S. at 35. The Gingles court established
three "preconditions" for a VRA challenge to multimember districts.
First, the minority group must be able to demonstrate
that it is sufficiently large and geographically compact
to constitute 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.
Id. at 50-51. The Supreme Court has, in subsequent cases, held
that some form of these three preconditions should also apply to
challenges to single-member legislative districts. Growe v.
Emison, 507 U.S. 25, 40-41 (1993) (applying the second
precondition); see also Voinovich v. Quilter, 507 U.S. 146, 157-58
(1993) (applying the third precondition). The Court has summarized
the three in shorthand terms as "compactness/numerousness, minority
cohesion or bloc voting, and majority bloc voting." Johnson v. De
Grandy, 512 U.S. 997, 1011 (1994). As a matter of pleading, the
complaint explicitly pleads the second and third of the Gingles
preconditions as well as geographic compactness under the first
precondition.
This is not a case, as in De Grandy, where minority
voters hold a majority in some districts and the issue is whether
§ 2 of the VRA requires courts to maximize the number of districts
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in which minority voters may elect their candidates of choice.
Here, the only district in which African-American voters could
elect a candidate of their choice (with help from crossover voting)
was altered significantly; the result, plaintiffs say, is that
African-American voters can no longer elect a candidate of their
choice in any state senatorial district. Far from complaining that
the legislature has failed to maximize their political power, these
plaintiffs complain that their opportunity to elect a candidate of
their choice has been minimized -- indeed, eliminated.
C. First Precondition: Compactness & Numerousness
1. Ability to Influence and Crossover Voting
The district court characterized plaintiffs' claim as
alternately an "ability to influence" claim and an "ability to
elect" claim. The Gingles Court, when fashioning the three
preconditions to a redistricting challenge to a multimember
district, expressly reserved the question of whether § 2 permitted
claims by a minority group "alleging that the use of a multimember
district impairs its ability to influence elections," and whether
the three preconditions would apply unabated to such a claim. 478
U.S. at 46 n.12 (emphasis in original). The same question of the
meaning of an ability to elect as opposed to an ability to
influence arises in challenges to single member districts. See De
Grandy, 512 U.S. at 1008-09; Voinovich, 507 U.S. at 154.
Since Gingles, there has been much confusion over the
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definition of an influence claim under the VRA. Most often,
influence districts have been defined as ones "in which a minority
group has enough political heft to exert significant influence on
the choice of candidate though not enough to determine that
choice." Barnett v. City of Chicago, 141 F.3d 699, 703 (7th Cir.
1998) (reserving question of whether such a claim is cognizable);
see Cousin v. Sundquist, 145 F.3d 818, 828-29 (6th Cir. 1998)
(refusing to recognize such a claim under the VRA); McNeil v.
Legislative Apportionment Comm'n, 828 A.2d 840, 852-53 (N.J. 2003)
(recognizing influence dilution claims under the VRA). This court
has also used the "influence district" terminology in this sense.
Vecinos de Barrio Uno v. City of Holyoke, 72 F.3d 973, 990-91 (1st
Cir. 1995).
The confusion stems from the intersection of this type of
influence claim and another type, in which a minority group
constituting less than fifty percent of the electorate can elect a
candidate of its choice with the help of crossover votes from
voters in the majority group. See R.H. Pildes, Is Voting Rights
Law Now at War with Itself? Social Science and Voting Rights in
the 2000s, 80 N.C. L. Rev. 1517, 1539-40 & n.60 (2002) (referring
to this latter type of district as a "coalitional district"); Note,
The Future of Majority-Minority Districts in Light of Declining
Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209-10 & n.13
(2003). We will refer to this second type of influence claim as a
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"crossover district."7 The Supreme Court has not had the
opportunity to address this distinction;8 the Court in Voinovich
used the term "influence district" to describe a crossover district
-- one in which minorities could, despite the inability to form a
majority, "elect their candidate of choice nonetheless if they are
numerous enough and their candidate attracts sufficient cross-over
votes." 507 U.S. at 154.9
Plaintiffs, for their part, forswear any claim under the
ability to influence rubric, choosing to stand or fall entirely on
an ability to elect claim. However, they do so only as far as the
7
We use "crossover" in a specialized sense with regard to
racial blocs. The term is also used in a different sense when
members of one political party cross over to vote in the other
party's primary. See Easley v. Cromartie, 532 U.S. 234, 245
(2001).
8
The recent Supreme Court decision in Georgia v. Ashcroft,
123 S.Ct. 2498 (2003), considered influence districts and crossover
districts in the § 5 context, but did not resolve the relationship
between the two.
9
Crossover districts where plaintiffs allege an ability to
elect also may be confused with a third type of claim, a "minority
coalition" claim, in which two separate minority groups allege that
a district could be formed in which they could join forces to elect
a representative. See De Grandy, 512 U.S. at 1020 (describing such
a VRA claim); Concerned Citizens v. Hardee County Bd., 906 F.2d
524, 526-27 (11th Cir. 1990) (indicating that minority coalition
claims meet the first Gingles precondition); Brewer v. Ham, 876
F.2d 448, 453 (5th Cir. 1989) (same). But see Nixon v. Kent
County, 76 F.3d 1381, 1392 (6th Cir. 1996) (en banc) (rejecting a
minority coalition claim).
We take no position on that issue. Plaintiffs do not allege
that they and another minority group form a minority coalition and
that such a coalition may qualify as a "class" under § 2. Rather,
this suit appears to posit that the interests of African-American
voters have been pitted against the interests of Hispanic voters.
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term "influence district" describes one where a minority group is
unable to elect a candidate of its choice even with crossover
support. They use the term "influence district" in the complaint
to describe what we label a crossover district, in which African-
American voters have an ability to elect with crossover support.
We consider only this type of influence claim, and not the more
nebulous variety described in Barnett and disavowed by plaintiffs.
The Supreme Court has expressly held open the question
of whether the Gingles preconditions should apply to influence
claims. See De Grandy, 512 U.S. at 1009; Voinovich, 507 U.S. at
154; Gingles, 478 U.S. at 46 n.12. We read the language of these
cases, especially Gingles and Voinovich, to profess a willingness
to consider a crossover district claim such as the one plaintiffs
plead. The Gingles language setting aside the question of an
influence claim did not differentiate between crossover district
claims and claims in which plaintiffs profess only an ability to
affect, not determine, electoral outcomes. But the Court has not
flatly refused to consider a crossover district despite the
opportunity to do so. See Voinovich, 507 U.S. at 154.
The Supreme Court's recent opinion in Georgia v.
Ashcroft, 123 S.Ct. 2498 (2003), also supports our conclusion that
crossover districts should be considered in the § 2 context.
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Georgia interpreted § 5 of the VRA.10 The Court has repeatedly
warned that § 2 and § 5 "combat different evils and . . . impose
very different duties upon the States." Reno v. Bossier Parish
Sch. Bd., 520 U.S. 471, 476 (1997). Despite the differences
between § 2 and § 5 analysis, the Court's treatment of influence
and crossover districts in Georgia is highly instructive.
Georgia held that when assessing retrogression, courts
must consider not only majority-minority districts but also the
existence of influence districts, including crossover districts.
123 S.Ct. at 2512. The state's plan created two additional
districts with a minority population of between thirty and fifty
percent, and two districts with a population of between twenty-five
and thirty percent. These districts, the Court found, were crucial
to determining the overall effect of the new redistricting plan.
Id. at 2515. Indeed, the Court was unanimous that crossover
districts should be considered in the § 5 analysis; the dissent
objected only to the use of those influence districts in which it
was not clear that minority voters would have an ability to elect
even with crossover support. See id. at 2513, 2514; id. at 2518-19
(Souter, J., dissenting). If crossover districts are important
10
Under § 5, the Attorney General of the United States must
preclear a covered jurisdiction's "standard, practice, or
procedure." 42 U.S.C. § 1973c. Preclearance depends on whether
the change "would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the
electoral franchise." Beer v. United States, 425 U.S. 130, 141
(1976).
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enough to minority voters to be considered when assessing a
redistricting plan's retrogression, it would be an odd result if
the same voters could not bring a § 2 claim when such a crossover
district is eliminated by redistricting.
Given these Supreme Court precedents, we believe that
whatever the status of other influence claims, at least crossover
district claims are cognizable under § 2 of the VRA. We decline to
hold, as a matter of law, that they are not.
This conclusion is consistent with our decision in
Vecinos de Barrio Uno, supra, where this court held that an
"influence district" that was twenty-eight percent Hispanic should
be considered in the determination of whether the minority
population's voting strength had been diluted. 72 F.3d at 990-91("[T]he voting strength of a minority group is not necessarily
limited to districts in which its members constitute a majority of
the voting age population, but also extends to every district in
which its members are sufficiently numerous to have a significant
impact at the ballot box most of the time."). Unlike the present
case, the influence district in Vecinos de Barrio Uno was used by
the defendant city as evidence that the minority population
retained political power. Moreover, the city was not alleging that
the minority group could elect its own candidate with crossover
support, but only that it was large enough to wield influence over
the outcome. Despite these factual differences, this court's
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recognition that influence districts may be used to show the
existence of the political power of minority groups reinforces the
decision to recognize, at least in theory, a suit complaining that
a crossover district has been unjustly eliminated.
Though Gingles did not apply the preconditions to
influence claims, however they are defined, some preconditions must
apply in order to link the complained-of voting practice with the
harm the plaintiffs allege. Gingles, 478 U.S. at 48-51; see
Vecinos, 72 F.3d at 979 n.2 ("[The first] precondition will have to
be reconfigured to the extent that the courts eventually validate
so-called influence dilution claims."). For the purposes of this
discussion, we assume that plaintiffs' claim must satisfy the
second and third Gingles preconditions, and that some form of the
first precondition will also apply.
2. Majority Requirement
The first Gingles precondition requires that "the
minority group must be able to demonstrate that it is sufficiently
large and geographically compact to constitute a majority in a
single-member district." 478 U.S. at 50. Some courts have read
this literally to mean that unless plaintiffs can show that they
can constitute an absolute majority in a single district -- that
is, more than fifty percent -- then there is no possible § 2
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claim.11 See Valdespino v. Alamo Heights Indep. Sch. Dist., 168
F.3d 848, 852-53 (5th Cir. 1999), cert. denied, 528 U.S. 1114(2000); Perez v. Pasadena Indep. Sch. Dist., 165 F.3d 368, 371-73
(5th Cir. 1999), cert. denied, 528 U.S. 1114 (2000); see also
Negron v. City of Miami Beach, 113 F.3d 1563, 1571 (11th Cir.
1997); Parker v. Ohio, 263 F. Supp. 2d 1100, 1104-05 (S.D. Ohio
2003). That approach has been criticized as a "talismanic
requirement, divorced from any underlying functional reasons."
Pildes, supra, at 1555. If that approach were followed here,
plaintiffs' complaint would fail to meet the first precondition.
We reject the conclusion that no § 2 cause of action is
ever stated, regardless of the nature of the claim, unless
plaintiffs can show that a minority group would be a literal
majority in a single district. The approach is inconsistent with
the Supreme Court's own descriptions of the functions served by the
first Gingles precondition. It is also inconsistent with the
variety of political realities the VRA was meant to address; a
demographic fact of life in some areas of the country is that no
single racial group constitutes an absolute majority. And finally,
it contravenes the plain text of § 2, which requires courts to
consider the "totality of the circumstances."
11
On defendants' theory, a discrete, geographically compact
racial group (here, African-Americans) is not entitled to avail
itself of § 2 of the VRA until it is large enough to constitute a
numerical majority in any given district.
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Requiring the protected class to show that it is an
absolute majority ignores the reality that the class could elect
its preferred candidate without such numbers. Thus, a discussion
of whether the protected class forms a "majority" is not
necessarily helpful in determining whether an "electoral law,
practice, or structure interacts with social and historical
conditions," Gingles, 478 U.S. at 47, to impair the ability of the
class to vote. The plaintiffs here have alleged that African-
American voters formed a politically cohesive group that was able,
with the assistance of crossover voting, to elect the candidate of
its preference in a district that was less than fifty percent
African-American and that, in a properly drawn district, they could
continue to do so.
In the context of this case, that pleading suffices to
satisfy the interests identified by the Supreme Court for the first
Gingles precondition. That precondition should not be read without
regard to its function: to determine whether "the ability of
minority voters to elect representatives of their choice" is
impeded. Gingles, 478 U.S. at 48. As the Court has noted, "the
Gingles factors cannot be applied mechanically and without regard
to the nature of the claim." Voinovich, 507 U.S. at 158.12 Gingles
12
Consonant with its holding that the Gingles preconditions
are in some form applicable to single-member districts, the Supreme
Court has consistently avoided applying the first precondition to
challenges to such districts. See De Grandy, 512 U.S. at 1009(assuming the first precondition is satisfied); Voinovich, 507 U.S.
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itself, in reviewing a multi-member district, noted that the
function of the first precondition was to assure that there was a
causal relationship between the creation of the district lines and
the harm to the plaintiffs; if the minority group's candidate could
not prevail even in a single district, then "the multimember form
cannot be responsible for minority voters' inability to elect its
candidates." 478 U.S. at 50 (emphasis removed). Similarly, when
discussing majority bloc voting in the context of the third
precondition, Gingles defined it as that which is sufficient
usually to "defeat the combined strength of minority support plus
white crossover votes." Id. at 56 (internal quotation marks
omitted); see also Jenkins v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 4 F.3d 1103, 1123 (3d Cir. 1993) ("[T]he Gingles [third
precondition] standard presupposes the existence of crossover
voting."). Growe reinforced this functional analysis, noting that
"the 'geographically compact majority' and 'minority political
cohesion' showings are needed to establish that the minority has
the potential to elect a representative of its own choice in some
single-member district." 507 U.S. at 40. Such support for a
functional approach leaves room to include claims in which an
electoral majority is formed only with crossover support.
This functional approach also better accounts for various
political realities. In electoral schemes in which representatives
at 158 (same); Growe, 507 U.S. at 41 (same).
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can usually be elected with less than a majority of the vote,
Gingles should not be read to require that the minority group
nevertheless be able to form a literal majority in a reconfigured
district. Rhode Island law specifically provides that candidates
in both primary and general elections for state office may be
elected with a plurality of the vote. See R.I. Const. art. IV, §
2 (general elections); R.I. Gen. Laws § 17-15-29 (2002) (primary
elections). In such cases, constituting a majority would not be
necessary for minorities to "elect a representative of their
choice." 42 U.S.C. § 1973(b); see Romero v. Pomona, 883 F.2d 1418,
1424 n.7 (9th Cir. 1989), overruled on other grounds, 929 F.2d 1358(9th Cir. 1990).13 "To the extent that courts have read Gingles to
elevate the ability to create a district with a majority-black
electorate into a threshold requirement for establishing liability
in all vote dilution litigation, they have improperly applied one
particular theory of liability to other distinct types of vote
dilution." P.S. Karlan, Maps and Misreadings: The Role of
Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.
C.R.-C.L. L. Rev. 173, 202 (1989).
Georgia v. Ashcroft, supra, confirms that influence
13
But see Brewer, 876 F.2d at 454 (requiring a majority even
for plurality elections, reasoning that a "plurality feature is of
course more responsive to minority voter groups"); McNeil v.
Springfield Park Dist., 851 F.2d 937, 943-44 (7th Cir. 1988)
(rejecting any showing of less than an absolute majority as unduly
speculative).
-21-
districts, including crossover districts, are important to any
practical assessment of minority voting power. In Georgia, the
Court emphasized the fact-bound nature of VRA claims, holding that
the retrogression inquiry under § 5, like the dilution inquiry
under § 2, see 42 U.S.C. § 1973(b), requires an assessment of the
"totality of the circumstances." 123 S.Ct. at 2511. One reason
for this broad factual inquiry, the Court indicated, is that "[t]he
ability of minority voters to elect a candidate of their choice is
important but often complex in practice to determine." Id.Accordingly, the Court held, influence and crossover districts must
be considered as part of that determination in the retrogression
context. Id. at 2512. The Court also cited empirical studies
indicating that such districts may maximize minority voting
strength. Id. at 2512-13.
We also consider relevant both modern and historical
political realities. During the 1970s and 1980s, African-American
populations usually could not elect representatives of their choice
unless they constituted a majority in an electoral district. See
generally Quiet Revolution in the South (C. Davidson & B. Grofman
eds., 1994). Indeed, usually a mere majority was not sufficient;
many believed that to overcome racial bloc voting patterns, the
total minority population needed to be sixty-five percent.
See Ketchum v. Byrne, 740 F.2d 1398, 1415-16 (7th Cir. 1984)
(collecting sources). But the percentage of minority population
-22-
necessary to elect a candidate has been steadily declining. By
1990, fifty-five percent was generally considered sufficient. And
thereafter, due to increased white crossover voting, the number has
slipped below majority level. One study reported that during the
1990s, an African-American candidate could be elected from a
congressional district that was between thirty-three and thirty-
nine percent African-American. B. Grofman, L. Handley & D. Lublin,
Drawing Effective Minority Districts: A Conceptual Framework and
Some Empirical Evidence, 79 N.C. L. Rev. 1383, 1407-09 (2001). The
percentage of minority voters necessary to elect a candidate
depends heavily on the political makeup of the district as a whole,
see Pildes, supra, at 1535-36, a matter difficult to determine on
a motion to dismiss a complaint.
In sum, it is not an absolute bar to a claim under § 2 of
the VRA that some amount of crossover voting is needed for a
minority group to elect a candidate of its choice.14 See Armour v.
14
Our dissenting colleague engages in the sort of factual
predictions that courts are forbidden to indulge on a motion to
dismiss. See Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37
(1st Cir. 2001) (refusing to engage in "speculation" on appeal from
a Rule 12(b)(6) dismissal and instead assuming the truth of the
averments in the complaint). The dissent assumes that a minimum
level of crossover voting of 32% will be required for the African-
American minority to elect a candidate of its choice, and it
assumes that only two-candidate contests are relevant. It assumes
that the African-American voters' inability to elect their
preferred candidate "can much more readily be attributed to
candidate-specific issues" than to the reduction in the
representation of the African-American community in the political
process. It assumes that plaintiffs will establish no history of
discrimination against black citizens in the political process. It
-23-
Ohio, 775 F. Supp. 1044, 1059-61 (N.D. Ohio 1991) (three-judge
court); see also McNeil, 828 A.2d at 852-53; Powers, 263 F. Supp.
2d at 1109-1113 (three-judge court) (Gwin, J., concurring in
judgment); West v. Clinton, 786 F. Supp. 803, 807 & n.2 (W.D. Ark.
1992) (three-judge court).
Though a claim that includes crossover voting may be
cognizable under the first precondition for a § 2 cause of action,
not every such claim will pass muster. It would be discordant with
the Act, for instance, to consider a crossover district claim from
a numerically tiny minority population that can only claim a hope
to elect a candidate with an overwhelming number of crossover
votes. Several limiting principles readily present themselves.15
assumes that there will not be sufficient bloc voting by Hispanic
voters after the redistricting to defeat the African-American
community's candidate of choice.
Further, the dissent assumes that "whites and Hispanics would
have to cast almost half of the votes needed for a successful
senatorial candidacy." In a plurality race, as the dissent
apparently concedes, that is almost certainly untrue. Even in a
two-candidate race, it may be untrue -- given, for example, low
overall voter turnout, high African-American turnout, and African-
American bloc voting. Similarly, the dissent assumes that a 5%
reduction in the African-American population is insignificant. But
the former African-American state senator may have lost the
election by that 5%.
Each of these assumptions reflects factual inferences that,
by law, must be made in plaintiffs' favor on a motion to dismiss.
United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992).
15
We reach a determination only with regard to crossover
districts, the sole type of influence claim presented in this
appeal. We reach no conclusion concerning other types of influence
claims, which, if they are recognized, may require a different
application of the Gingles preconditions and different limiting
principles.
-24-
First, this case presents a claim not merely of an
abstract hope to elect the African-American voters' preferred
candidate through both African-American and crossover voting. The
alleged loss is much more concrete. Historically, the African-
American community's preferred candidate was consistently elected,
even though African-American voters were less than a numerical
majority in the district. The redistricting plan, however,
significantly reduced the percentage of African-American voters in
the district, and the candidate lost his bid for reelection.
African-American voters sued, saying they had been denied an equal
opportunity to elect the candidate of their choice, and on this
motion to dismiss, the redistricting plan must be taken as the
cause of the lost election. That is not to say that a history of
electoral success is a necessary part of a successful claim,
especially if the lack of success is due to historic vote dilution,
but the minority group's historical voting success makes this an
easier case.
The second is the statutory requirement that a minority
population be able to elect, in a potential district,
"representatives of their choice." 42 U.S.C. 1973(b) (emphasis
supplied). A minority group may require so many crossover votes
that it does not truly have the capacity to choose its own
candidate, but only to help elect candidates chosen by other
groups. If so, plaintiffs cannot make a crossover district claim.
-25-
Here, however, the plaintiffs clearly plead in their complaint that
the African-American community can elect its own candidate with
crossover support in a properly drawn district.
The third limitation is expressed in the third
Gingles precondition: "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 51. A minority population that is too small, and that
therefore requires too high a level of crossover support, will not
be able to meet the third precondition. If the majority population
is willing to provide crossover support to minority-chosen
candidates at very high levels, then it cannot be said to be voting
as a bloc against these candidates. For the reasons described
below, the plaintiffs' complaint offers enough on the third
precondition to render a Rule 12(b)(6) dismissal on that ground
inappropriate.16
Finally, we note that this is not a situation, as in
Georgia v. Ashcroft, supra, where the leaders of the African-
American community developed the redistricting plan at issue. The
contrary is true here. With only one state senator out of fifty,
the African-American community had precious little political
strength in the senate before the redistricting. After the plan
16
The parties agree that the second Gingles precondition is
met by the plaintiffs' pleading that "African-American voters in
the State of Rhode Island are politically cohesive."
-26-
was implemented, they lost their only representation. Similarly,
this is not a case about the failure to maximize potential African-
American voting power. Cf. Abrams v. Johnson, 521 U.S. 74 (1997).
Rather, this is a case about the elimination of African-American
voters' opportunity to elect the candidate of their choice, an
opportunity that they had consistently enjoyed prior to the
redistricting.
D. Third Precondition: Majority Bloc Voting
The third Gingles precondition requires that "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 51. Again, this is
part of a functional approach to the Act. See id. ("In
establishing this last circumstance, the minority group
demonstrates that submergence in a white multimember district
impedes its ability to elect its chosen representatives."). This
court has described the third condition as addressing "whether the
challenged practice, procedure, or structure is the cause of the
minority group's inability to mobilize its potential voting power
and elect its preferred candidates," Vecinos, 72 F.3d at 980, and
referred to the bloc simply as a "majoritarian" bloc, id. at 981,
982.
The district court held that the plaintiffs' complaint
failed to satisfy this third condition. First, it read Gingles
-27-
specifically to require that the majority bloc must be a white
numerical majority. While the complaint does not specify the white
population of Senate District 2, it can be no more than 31.84%
after subtracting the African-American and Hispanic population.
Furthermore, the court calculated that because the old district was
only twenty-six percent African-American, the crossover vote needed
to elect the candidate preferred by African-American voters would
have to constitute twenty-four percent of the electorate. If half
of that crossover vote were white, the court reasoned, then the
white population would be crossing over at a rate of about one-
third, which it thought too high to be consistent with "bloc
voting" needed to "defeat the minority's preferred candidate."
Metts, 217 F. Supp. 2d at 260-61.
This reasoning has several flaws. Inherent in the
court's analysis is the assumption that the electoral contest would
have only two candidates. That is not necessarily so, particularly
in primaries. In many jurisdictions, the winner of a particular
party's primary is de facto the winner of the general election; it
may be inferred that this was historically the case in the old
Senate District 9 and it remains true in the reconfigured Senate
District 2. The court also allocated the crossover vote half to
whites and half to Hispanics, but there is simply no evidence of
the racial composition of the crossover votes, either historically
or in a proposed alternative district.
-28-
Further, we reject the district court's impermissible
focus on only the white voters in Senate District 2 for purposes of
the third Gingles precondition. The plaintiffs, in their
complaint, claim that "[t]he white and Hispanic communities vote
sufficiently as a bloc usually to defeat the candidate of choice of
African-American voters when that candidate is African-American and
the district is less than twenty-six percent black in total
population." Under the standards of Rule 12(b)(6), such claims in
the complaint may be rejected only if they are "bald assertions" or
"unsupportable conclusions." Chongris v. Bd. of Appeals, 811 F.2d
36, 37 (1st Cir. 1987). Neither characterization can be said to be
true here.
The VRA does not, by its terms, afford protection to or
against any particular racial or ethnic group; if it did, it might
well be suspect under the Equal Protection Clause. U.S. Const.
amend. XIV, § 1. The language of Gingles referred to a "white
majority" only because that happened to be the composition of the
majority on the facts before the Court. See 478 U.S. at 51.
Nor must the majority bloc be comprised of only one race.
While the "protected class" being discriminated against must be
constituted of a particular "race or color," see 42 U.S.C.
§ 1973(a), there is no requirement in the VRA that a contrary
voting bloc be of just one race. Coalitions of certain races that
characteristically vote against the preferred candidate of a
-29-
different racial group may well constitute bloc voting for purposes
of the third Gingles precondition. In De Grandy, the Supreme Court
considered such a challenge to Florida's state legislative
districts. In one county, there were three large voter groups:
African-Americans, Hispanics, and whites. The trial court found,
based on expert testimony, that during elections pitting a minority
candidate against a white one, the white voters would vote as a
bloc along with the other minority group's voters to elect the
white candidate. De Grandy v. Wetherell, 815 F. Supp. 1550, 1572
(N.D. Fla. 1992) (three-judge court). The Supreme Court did not
find this fact pattern problematic as a means to satisfy the third
Gingles precondition. De Grandy, 512 U.S. at 1007. In a similar
case, also reviewing a challenge to a Florida redistricting plan,
the Eleventh Circuit found that "a coalition of Hispanics and Non
Latin Whites could form the relevant majority voting bloc for the
purpose of the third Gingles factor." Meek v. Metro. Dade County,
908 F.2d 1540, 1545-46 (11th Cir. 1990). We agree.
The district court's rationale does, however, highlight
a potential difficulty with the plaintiffs' complaint. In the
plaintiffs' proposed remedial district, the African-American
population would be at least twenty-six percent. Depending on how
the facts are developed, that number may raise issues related to
the third precondition. If it is true that a majority (rather than
only a plurality) is needed to elect a candidate, if the racial
-30-
makeup of the voters is proportional to the racial composition of
the district, and if, as the plaintiffs assert, the African-
American voters are politically cohesive, then crossover voting
would need to reach twenty-four percent. In that scenario, thirty-
two percent of the non-African-American voters would have to
support the African-American community's chosen candidate in order
to reach the majority needed. The district court believed that
such a high rate of crossover voting would be inconsistent with a
finding of bloc voting.
At the Rule 12(b)(6) stage, that conclusion is premature.
A series of factual assumptions would be required to judge the
average level of crossover support the plaintiffs are alleging,
assumptions that cannot be confirmed or repudiated at this stage of
the proceedings. While the complaint's description of a
reconfigured district includes total population figures, there is
no demographic information concerning the voting age population,
the number of registered voters, or the expected voters in any
given election, much less the typical voting patterns of various
groups. There are also no facts about the number of candidates
that typically run in the primary or general elections. Without
such information, it is impossible to know the percentage of
crossover support necessary to elect the candidate of the African-
American community's choice.
More importantly, even if the facts show that crossover
-31-
voting of thirty-two percent would be required, that number,
without more, does not warrant a Rule 12(b)(6) dismissal for
failure to state a claim in light of the third
Gingles precondition. The statute commands an examination of "the
totality of circumstances." 42 U.S.C. § 1973(b). An inquiry into
the third precondition is thus an inherently factual enterprise.
"[T]he degree of racial bloc voting that is cognizable as an
element of a § 2 vote dilution claim will vary according to a
variety of factual circumstances." Gingles, 478 U.S. at 57-58; see
Vecinos, 72 F.3d at 989. The Supreme Court has been chary of per
se rules in this area, whether the claim is that a device is a per
se violation of § 2, Voinovich, 507 U.S. 154, or whether the claim
is that a single factor is a safe harbor for defendants, De Grandy,
512 U.S. at 1017-18.
One important factor about which the record is
undeveloped is the pattern of voting behavior over time. Gingles
stressed the importance of determining whether racial bloc voting
is a pattern extending over time or merely a phenomenon in a single
election. 478 U.S. at 57. The reverse is also true: the success
of a minority candidate, or the absence of bloc voting in a few
elections, cannot be taken to mean that the district does not
experience racial bloc voting overall. Id.Furthermore, a crossover rate of thirty-two percent is
within the range of fact patterns in which courts have found
-32-
majority bloc voting. Gingles itself found majority bloc voting
where the majority group supported African-American candidates in
the general election at a rate between twenty-eight and forty-nine
percent, with an average support of one-third. Id. at 59; see
Campos v. Baytown, 840 F.2d 1240, 1249 (5th Cir. 1988) (finding
majority bloc voting when the crossover vote was thirty-seven
percent). Of course, that does not mean that a crossover rate less
than one-third would always disprove majority bloc voting: in other
circumstances, the Supreme Court has found a crossover rate
averaging between twenty-two and thirty-eight percent sufficient to
suggest "a general willingness of white voters to vote for black
candidates," especially when minority candidates have a record of
success.17 Abrams v. Johnson, 521 U.S. 74, 93 (1997) (internal
quotation marks omitted).
At this stage of the litigation there is no evidence of
the degree or effect, if any, of racially polarized voting, or
whether a voting district could have been constituted to protect
the ability of both African-American and Hispanic voters to elect
candidates of their choice.
17
The dissent's citation to Abrams v. Johnson, 521 U.S. 74,
92-93 (1997), does not assist it. Abrams was decided after trial
on a full record. The record revealed that there was, over time,
an increased general willingness of white voters to vote for black
candidates, and a corresponding decrease in racial polarization.
The Abrams Court did not purport to establish a mathematical litmus
test for screening cases under the third Gingles precondition on a
motion to dismiss.
-33-
The dissent misses the point when it objects that the VRA
is not meant "to ensure the success of candidates favored by
minority groups." In this case, it is undisputed that a minority
group's preferred candidate, an incumbent, failed to win reelection
in the first election after the state legislature adopted a
redistricting plan that decreased the percentage representation of
that minority in the candidate's home electoral district. No court
has ever held -- and it would be clear error for a court to hold --
that such a defeat is irrelevant to the question whether members of
that minority group "have less opportunity than other members of
the electorate to participate in the political process and to elect
representatives of their choice." 42 U.S.C. § 1973(b). Plaintiffs
seek equality of opportunity, not a guarantee of electoral success.
The district court's dismissal of the plaintiffs'
complaint under Rule 12(b)(6) for failure to meet the third Gingles
precondition was inappropriate.
IV.
Congress, in enacting the Voting Rights Act, was
cognizant of this country's long and shameful history of excluding
African-Americans from our political processes. In light of the
purposes of the Fourteenth Amendment and its guarantee of equal
protection of the laws, it is no answer to say, as the dissent
does, that the federal courts should close their doors to possibly
meritorious complaints under the Voting Rights Act out of deference
-34-
to majoritarian will and "difficult" legislative choices. That is
particularly true at this early stage of the litigation.
Plaintiffs must still prove their case; they must establish the
Gingles preconditions, as well as a substantive violation of the
VRA, with evidence. There is no frustration of majoritarian will
in requiring the defendants to respond to allegations that state a
claim under the Act. The dissent describes such a claim as a quest
for "unfair advantage." To the contrary, the complaint states a
claim of unfair disadvantage to African-American voters in the
exercise of the most important right in our American democracy. If
plaintiffs ultimately prevail, it will be because they have proven
that the Rhode Island legislature, acting for the majority, has
violated the Voting Rights Act by impermissibly denying members of
the African-American community in Providence an equal opportunity
to elect a state senator of their choice. As the Supreme Court
stated in Georgia v. Ashcroft, "[t]he purpose of the Voting Rights
Act is to prevent discrimination in the exercise of the electoral
franchise and to foster our transformation to a society that is no
longer fixated on race." 123 S.Ct. at 2517.
The plaintiffs must be given the opportunity to prove
their case. We express no view as to the outcome. The dismissal
of the plaintiffs' complaint is reversed and the case is remanded
for proceedings consistent with this opinion.
-35-
Dissenting opinion follows.
-36-
SELYA, Circuit Judge (dissenting). Although it is
regrettable that redistricting may make it more difficult for a
candidate preferred by African-American voters to win election to
the Rhode Island state senate, the Voting Rights Act is not
intended as a means of ensuring that every minority group has
exactly the district lines that it deems most advantageous. In the
circumstances of this case, I can discern no valid legal basis for
us to superimpose the appellants' will on that of the Rhode Island
General Assembly. I would therefore affirm the district court's
dismissal of the amended complaint.
My reasoning is rooted in precedent. The Supreme Court
has made it reasonably clear that, as a threshold requirement for
the maintenance of a vote dilution claim in a single-member
district, plaintiffs must show (1) that they are part of a minority
group that is sufficiently large and geographically compact to
constitute a majority in some plausible iteration of the affected
district; (2) that the group is politically cohesive; and (3) that
other racial groups engage in bloc voting significant enough to
defeat the minority group's preferred candidate. Voinovich v.
Quilter, 507 U.S. 146, 157-158 (1993) (applying Thornburg v.
Gingles, 478 U.S. 30, 50-51 (1986), to single-member districts);
Growe v. Emison, 507 U.S. 25, 40 (1993) (same). Given the nature
of their claim, I think it is fairly clear that the appellants
cannot satisfy the first precondition. It is absolutely clear,
-37-
however, that they cannot simultaneously satisfy both the first and
third preconditions.
I start with the first Gingles precondition. The
appellants concede that they are unable to show that African-
Americans can constitute a literal majority in any plausible
iteration of Senate District 2. Rather, their complaint rests on
the novel premise that a minority group whose members cannot
conceivably comprise a numerical majority, even in what is from
their point of view an ideally configured single-member district,
nonetheless can mount a viable vote dilution claim by demonstrating
that the district's lines could have been drawn in such a way as to
give the minority group the ability to elect the candidate its
members prefer. Whether or not this type of claim ever can fall
within the purview of section 2 of the Voting Rights Act (VRA), 42
U.S.C. § 1973, the instant claim does not. The identified minority
group is so small and its need to rely on crossover voting so great
that the appellants' section 2 claim necessarily fails.
It is common ground that courts must apply the Gingles
preconditions to the ideal district proposed by those who challenge
a redistricting plan. See Holder v. Hall, 512 U.S. 874, 880 (1994)
(opinion of Kennedy, J.); Negrón v. City of Miami Beach, 113 F.3d
1563, 1571 (11th Cir. 1997). In this case, the appellants concede
that the adoption of a constitutional amendment downsizing the
General Assembly required redistricting of the state senate. Thus,
-38-
Senate District 9 could not remain intact and had to be
reconfigured. With this in mind, the appellants describe their
ideal version of Senate District 2 as a district in which African-
Americans comprise roughly 26% of the population. This
configuration differentiates the appellants' case from the mine-
run. Typically, vote dilution claims address redistricting schemes
that take a racial minority group whose members have the potential
to comprise a numerical majority in a geographically compact
district and disperse the group across two or more districts (with
the result that its members constitute a majority in none). See
Voinovich, 507 U.S. at 153.
My colleagues suggest that we can change the paradigm
because the appellants may have been deprived of a "crossover
district" — a kind of "influence district" in which a numerical
minority is so positioned that it has an ability to swing
elections. See generally id. at 154 (describing an influence
district as one in which minority group members "could not dictate
electoral outcomes independently [but] could elect their candidate
of choice nonetheless if they are numerous enough and their
candidate attracts sufficient cross-over votes from white voters").
The Supreme Court has repeatedly refrained from deciding the
cognizability of claims based on legislative dismantling of
crossover districts, e.g., Johnson v. De Grandy, 512 U.S. 997,
1008-09 (1994); Voinovich, 507 U.S. at 154, and, until today, this
-39-
court has exhibited the same restraint, e.g., Vecinos de Barrio Uno
v. City of Holyoke, 72 F.3d 973, 979 n.2 (1st Cir. 1995).
To be sure, the preservation of influence or crossover
districts may constitute a relevant factor in defending against a
vote dilution claim. See, e.g., De Grandy, 512 U.S. at 1020;
Vecinos, 72 F.3d at 990-91 & n.13; Latino Political Action Comm. v.
City of Boston, 784 F.2d 409, 414-15 (1st Cir. 1986). But to say
that a court may consider crossover districts in deferring to a
state's redistricting plan is very different from saying that a
minority has the legal right, under section 2 of the VRA, to demand
that the legislature establish such a district. The ultimate goal
of the VRA is "transition to a society where race no longer
matters." Georgia v. Ashcroft, 123 S. Ct. 2498, 2517 (2003).
Thus, minorities still bear the burden "to pull, haul, and trade to
find common political ground, the virtue of which is not to be
slighted in applying a statute meant to hasten the waning of racism
in American politics." Id. at 2512 (quoting De Grandy, 512 U.S. at
1020) (internal quotations marks omitted). My colleagues' freshly
minted "functional approach" would significantly lighten this
burden.
In all events, deciding this case does not require us to
go so far as to rule out all section 2 claims based on a
legislature's failure either to assemble or to preserve a crossover
district. Here, the raw numbers are inimical to such a claim. The
-40-
pertinent demographic for analysis of the first Gingles
precondition is the voting age population. See Growe, 507 U.S. at38 n.4; Ketchum v. Byrne, 740 F.2d 1398, 1412-13 (7th Cir. 1984).
In this case, the appellants maintain that African-Americans
represented approximately 26% of the voting age population in
former Senate District 9 yet represent only 21% of the voting age
population in the new district (Senate District 2). They claim
that this 5% differential is a political kiss of death.
Stripped of rhetorical flourishes, the appellants' thesis
proceeds along the following lines. Whenever a candidate preferred
by African-Americans runs for the state senate in the new district,
he or she will receive all the African-American votes plus no less
than 32% but no more than 37% of the combined white and Hispanic
votes (these being the percentages of all white and Hispanic voters
necessary to form a majority in conjunction with African-American
voters when African-Americans constitute 26% and 21% of the
population, respectively).18 In the appellants' view, those
crossover voters will favor the African-Americans' preferred
candidate regardless of the race or politics of his or her
opponent(s). Consequently, the redistricting plan is vulnerable
under section 2 of the VRA because the electorate's polarization is
18
This estimate is conservative. To the extent that voter
registration or voter turnout differs, or that African-Americans
are not completely monolithic in their voting preferences, the
needed thresholds become harder to achieve.
-41-
so deeply entrenched that candidate-specific variations will
operate only within a 5% margin.
Whether viewed as a matter of logic, political science,
or human behavior, this prediction strikes me as utterly
conjectural. For good reason, a difference of a few percentage
points in the minority population of a single-member district
generally has been thought unlikely to affect election outcomes.
See S. Christian Leadership Conf. v. Sessions, 56 F.3d 1281, 1296
(11th Cir. 1995) (en banc). The appellant's claim flies in the
teeth of this conventional wisdom — and the mere fact that one very
popular candidate, running uphill, had a series of successes in the
"old" district does not validate the appellants' claim.
Even if I must indulge the claim because the district
court chose to act at the Rule 12(b)(6) stage, the most that can be
said is that the appellants had forged a sort of functional
majority in former Senate District 9. By that I mean that African-
Americans, though neither numerous nor concentrated enough to
comprise a majority in the district, exhibited an ability to elect
a particularly appealing candidate with the aid of a large and
predictable non-African-American crossover vote. But whatever may
be said for functional majority claims in general, the appellants'
functional majority claim is a non-starter. Where, as here, a
minority group comprises only a relatively small fraction of the
total population of an electoral district before redistricting, the
-42-
inability of group members to elect the candidate of their choice
after redistricting can much more readily be attributed to
candidate-specific issues than to a slight reduction in their
numbers. In all events, a minority group of that modest size must
rely so heavily on crossover votes, both before and after
redistricting, that section 2 of the VRA provides no safe harbor.
The figures tell the tale. In the appellants' idealized
district, whites and Hispanics would have to cast almost half of
the votes needed for a successful senatorial candidacy. Those
votes would not correlate with the individual voter's race, but,
rather, with the race of the candidate, or, alternatively, with the
race of the minority group members with whom the crossover voters
identify. This fact has two important implications. In the first
place, it confirms that, regardless of how the district's lines are
drawn, African-Americans by themselves do not have anything close
to an ability to elect the candidate of their choice. In the
second place, it demonstrates that the appellants' claim puts the
emphasis not on assuring equal opportunity for minority voters but
on assuring a victory by the African-Americans' preferred
candidate. That is the wrong emphasis. See 42 U.S.C. § 1973(b)
(identifying "members of a class of citizens," not candidates, as
the operative unit of statutory protection); see also De Grandy,
512 U.S. at 1014 n.11 (explaining that "the ultimate right of § 2
is equality of opportunity, not a guarantee of electoral success");
-43-
Smith v. Brunswick County Bd. of Supervisors, 984 F.2d 1393, 1400
(4th Cir. 1993) (abjuring classification of protected groups by the
way they vote rather than by their race; to do otherwise would
impermissibly "resolv[e] discrimination issues on the basis of
whether members of the protected group are elected"); cf. Gingles,
478 U.S. at 99-100 (O'Connor, J., concurring) (agreeing that, for
purposes of a section 2 claim, voting must correlate with the race
of the voter).
The existence of this misdirected emphasis is borne out
by the fact that the appellants' proposed reconfiguration of Senate
District 2 would strengthen the electoral power not only of the
African-American community but also of the sizable white and
Hispanic crossover vote. That increased political clout would come
at the expense of the remaining two-thirds of the white and
Hispanic voters. The VRA empowers courts to protect the rights of
a minority group to participate in the electoral process so that
such a group, if treated fairly, can become a majority. It does
not give courts the raw power to privilege the interests of the few
over the interests of the many, much less the power to override the
normal functioning of the majoritarian process. See Vecinos, 72
F.3d at 982; Smith, 984 F.2d at 1400-02.
The democratic system remains the best and fairest
electoral system ever devised. Even so, the realities of democracy
are sometimes harsh. The appellants seek to avoid these realities
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by tempting us to treat crossover voters as if they constitute part
of a protected minority within the purview of section 2. Fidelity
to core democratic values demands that we resist this temptation.
While the Gingles preconditions contemplate a certain degree of
crossover voting, see Gingles, 478 U.S. at 56; Jenkins v. Red Clay
Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1123 (3d Cir. 1993),
there is a point at which crossover voting becomes so large a part
of the picture as to crowd out the possibility of a legally
cognizable vote dilution claim.
That is the picture painted by the amended complaint.
Where, as in this case, the bricolage comprises a roughly equal mix
of minority and crossover voters, allowing a vote dilution claim to
go forward would make sense only if the end game were to ensure the
success of candidates favored by minority groups. As I already
have explained, however, that is not the objective of the VRA. Nor
should it be; my colleagues' "functional approach" would create a
topsy-turvy world in which legislatures would have to base
redistricting plans not on the need to preserve legitimate
majority/minority districts, but, rather, on guesswork about the
way in which each constituent was likely to vote.19
19
My colleagues write that "[i]n this case, it is undisputed
that a minority group's preferred candidate, an incumbent, failed
to win reelection in the first election after the state legislature
adopted a redistricting plan that decreased the percentage
representation of that minority in the candidate's home electoral
district." Maj. Op. at 34. That is not a relevant consideration.
When the appellants served their amended complaint (May 14, 2002)
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In short, I do not believe that section 2 of the VRA
authorizes vote dilution claims that are wholly dependent upon
massive crossover voting. There is a critical distinction between
minority-preferred candidates who lose because redistricting
excludes too much of the minority electorate from a particular
district (illegal vote dilution) and minority-preferred candidates
who lose because they do not attract enough votes from other folks
within the district (legal majoritarian rule). The amended
complaint, even when taken at face value, blurs this distinction.
My colleagues attempt to blunt the force of this
reasoning in two ways. First, they posit that vote dilution claims
must be decided based on the totality of the circumstances. That
is so — but the statutory provision they cite, 42 U.S.C. § 1973(b),
does not inoculate all such claims against Rule 12(b)(6)
challenges. A plaintiff class must do more than cry "vote
dilution" to engage the gears of the VRA. The Gingles
preconditions act as a sentry at the gates — a bright-line rule
that must be satisfied before the totality of the circumstances
comes into play. See Valdespino v. Alamo Heights Indep. Sch.
Dist., 168 F.3d 848, 852 (5th Cir. 1999) (collecting cases); City
of Carrollton Branch of N.A.A.C.P. v. Stallings, 829 F.2d 1547,
1550-51 (11th Cir. 1987). This framework helps ensure the
and when the district court dismissed the case (September 9, 2002),
no elections had yet been held under the redistricting plan.
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effectiveness of the remedy created by the VRA without distorting
either its scope or intent.
My colleagues' second gambit is to stress that Rhode
Island elects its state senators under what amounts to a plurality
system. This seems to me to be a bit of a red herring. On the one
hand, cases holding plaintiffs to the requirements of the first
Gingles precondition despite the existence of a plurality election
system are ubiquitous.20 See, e.g., Perez v. Pasadena Indep. Sch.
Dist., 165 F.3d 368, 370-71 (5th Cir. 1999); Stabler v. County of
Thurston, 129 F.3d 1015, 1025 (8th Cir. 1997); Cane v. Worcester
County, 35 F.3d 921, 924 n.4, 925 (4th Cir. 1994); McNeil v.
Springfield Park Dist., 851 F.2d 937, 943-44 (7th Cir. 1988). On
the other hand, cases in which courts have recognized a section 2
claim by members of a small minority group simply because they
reside in a jurisdiction that employs a plurality election system
are nonexistent. Moreover, plurality election rules are, as my
colleagues apparently concede, more responsive to minority voters
than simple majority election rules. It would be ironic to relax
the first Gingles precondition for vote dilution claims arising
20
Given the widespread popularity of plurality election
systems, the Supreme Court must certainly have taken their
existence into account in formulating the Gingles preconditions.
Cf. Voinovich, 507 U.S. at 157 (applying the Gingles preconditions
without making any allowance for Ohio's use of a plurality voting
system). I therefore see no reason why we should not adhere to the
Supreme Court's rendition of the first Gingles precondition without
engaging in rank speculation about the possibility of multiple
candidacies.
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under an electoral structure already more favorable to minorities.
It also would make little sense, politically or mathematically, to
proclaim that a plurality rule supports a minority group's ability
to elect when its members number 26% of the electorate yet utterly
forecloses that ability when they number 21% of the electorate.
Last — but far from least — my colleagues' reliance on
the existence of a plurality election system ignores the
vicissitudes of such systems. For example, in elections in which
only two candidates are on the ballot or in which one of several
candidates enjoys great popularity, minorities will have to muster
a clear majority of all votes cast in order to elect the candidate
of their choice. The permutations are endless. To my mind, this
means that the putative effects of a plurality voting system are
simply too speculative to provide a basis for a convincing vote
dilution claim. See Brewer v. Ham, 876 F.2d 448, 455-56 (5th Cir.
1989); McNeil, 851 F.2d at 944. These problems may explain why the
appellants never made reference to Rhode Island's plurality
election laws in their amended complaint or their appellate briefs.
That ends this aspect of the matter. While I am willing
to leave open the possibility that a racial minority group
constituting less than 50% of the electorate in a particular
single-member district may in special circumstances satisfy the
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first Gingles precondition,21 the facts alleged in this case reflect
no such special circumstances. I conclude, therefore, that the
appellants' claim does not and cannot satisfy the first Gingles
precondition.
If more were needed — and I doubt that it is — the
appellants' claim also fails to satisfy the third Gingles
precondition. That precondition requires a showing of nonminority
bloc voting (which, for purposes of this case, encompasses the
combined voting power of whites and Hispanics). Here, such a
showing is inconsistent with the theme around which the appellants'
case is constructed.
The appellants showcase Senator Walton's past electoral
successes as proof of the cogency of their ability to elect claim
— but this is a two-edged sword. Consistent electoral success on
the part of a racial or ethnic minority group that comprises
considerably less than a numerical majority of the electorate is
indicative of the absence of nonminority bloc voting and, thus, is
presumptively inconsistent with the third Gingles precondition.
21
Such a situation may occur, for example, where evidence of
intentional vote dilution exists, e.g., Garza v. County of Los
Angeles, 918 F.2d 763, 770-72 (9th Cir. 1990); Armour v. Ohio, 775
F. Supp. 1044, 1060-62 (N.D. Ohio 1991), or a minority group
comprises nearly 50% of the population of a particular district,
e.g., Martinez v. Bush, 234 F. Supp. 2d 1275, 1299 (S.D. Fla. 2002)
(three-judge court) (per curiam), or the demographic trend lines
are such that the affected minority group reasonably can be
expected to attain majority status in the near future, e.g.,
Solomon v. Liberty County, 899 F.2d 1012, 1018 n.7 (11th Cir. 1990)
(en banc) (Kravitch, J., specially concurring).
-49-
See Gingles, 478 U.S. at 102 (O'Connor, J., concurring); see also
S. Christian Leadership Conf., 56 F.3d at 1291-94 (finding no white
bloc voting where African-Americans, though less than a numerical
majority, had been largely successful in electing their preferred
candidates); Overton v. City of Austin, 871 F.2d 529, 540 (5th Cir.
1989) (per curiam) (similar); see also Brooks v. Miller, 158 F.3d
1230, 1241 (11th Cir. 1998) (noting that claims dependent on
substantial white crossover voting are inherently inconsistent with
fulfillment of the third Gingles precondition); Turner v. Arkansas,
784 F. Supp. 553, 570-71 (E.D. Ark. 1991) (three-judge court)
(similar). This line of cases reflects a common-sense proposition:
that the ability of a racial minority group actually to elect its
preferred candidate may depend upon such a high degree of crossover
voting that the third Gingles precondition inevitably fails of
satisfaction. So it is here: the appellants' reliance on a high
level of crossover voting, ranging upward from a minimum of 32% and
nearly equalling the whole of the African-American vote,
defenestrates their claim of illegal vote dilution.22
22
The appellants' argument necessarily presupposes that this
crossover voting peaks at a point below 37%. That is a purely
arbitrary figure and, as such, need not be credited (even for
purposes of a motion to dismiss). See, e.g., Dartmouth Review v.
Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (warning that
courts should be wary of "unsupported conclusions, subjective
characterizations, and problematic suppositions" when reviewing
dismissal orders under Rule 12(b)(6)).
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The appellants — and my colleagues — cite a few cases
suggesting (or so they say) that a high rate of crossover voting
does not necessarily preclude a finding of racially polarized
voting. See, e.g., Gingles, 478 U.S. at 59-61 (upholding lower
court's finding of white bloc voting despite white crossover voting
ranging from 8% to 50%); Campos v. City of Baytown, 840 F.2d 1240,
1249 (5th Cir. 1988) (upholding lower court's finding of white bloc
voting despite the fact that 3% to 37% of whites crossed over).
But all of these cases addressed multi-member or at-large districts
— situations that pose a much more subtle threat to minority
electoral strength precisely because they require higher levels of
crossover voting for minorities to prevail.23 See Growe, 507 U.S.
at 40; Cane, 35 F.3d at 926; see also S. Rep. No. 97-417, at 29
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206. In the realm of
challenges to single-member redistricting plans, no less an
authority than the Supreme Court has held average majority
crossover voting of 22% to 38% sufficient to demonstrate the
"general willingness of [majority] voters to vote for [minority]
23
The appellants do cite one case, Old Person v. Cooney, 230
F.3d 1113 (9th Cir. 2000), that involves single-member districts.
There, the Ninth Circuit found white bloc voting because white
voting in excess of 60% defeated minority candidates in most
elections. Id. at 1124-27. That case was not decided based on the
rate of crossover voting, but, rather, on the regularity with which
the white majority had banded together to defeat minority
candidates. See id. at 1127-28 (distinguishing Abrams v. Johnson,
521 U.S. 74, 92-93 (1997), on that very ground). For that reason,
the Ninth Circuit never specified what rate of crossover voting
actually existed.
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candidates," particularly in conjunction with a record of
significant success by minority candidates. Abrams v. Johnson, 521
U.S. 74, 92-93 (1997) (citation and internal quotation marks
omitted); cf. Voinovich, 507 U.S. at 151-52, 158 (approving lower
court's finding of no majority bloc voting where "black candidates
have been repeatedly elected from [single-member] districts with
only a 35% black population").
To be sure, the appellants asseverate that their past
victories occurred only because the "old" district (in which
African-Americans comprised approximately 26% of the population)
was different than the "new" district (in which African-Americans
comprise approximately 21% of the population). But this modest
change in the level of African-American penetration does not render
the voters' track record irrelevant. Whatever the precise numbers,
African-Americans were and are a numerical minority in the district
— and the appellants are in effect arguing that whenever crossover
voting is large enough to secure the success of a minority-
preferred candidate, that crossover voting cannot be used to
disprove nonminority bloc voting. Such a rule would conflict with
both the realities of modern politics and the objectives of section
2. The better rule is that when African-Americans constitute a
relatively small numerical minority yet repeatedly attract a
crossover vote sizable enough to elect their preferred candidate,
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that fact is highly relevant to (and, as here, may be conclusive
in) an analysis of the third Gingles precondition.
In a final effort to salvage the vote dilution claim, my
colleagues posit that we cannot make any determinations as to the
third Gingles precondition until we have evidence of voter
registration, turnout, and voting patterns. That might ordinarily
be true — but the appellants have not presented us with an ordinary
vote dilution claim. Rather, they make a very specific and highly
idiosyncratic claim premised on the notion that at least 32% of the
white and Hispanic population can be expected regularly to cross
over in order to form the majority required by the first Gingles
precondition. This approach inextricably intertwines the first and
third Gingles preconditions, so that allowances given as to one
necessarily have repercussions as to the other. See Sanchez v.
Colorado, 97 F.3d 1303, 1315 (10th Cir. 1996) (remarking the
interrelatedness of these preconditions); Jenkins, 4 F.3d at 1133
n.32 (same). That is one reason why this case cannot survive a
motion to dismiss.
Although "the degree of racial bloc voting that is
cognizable as an element of a § 2 vote dilution claim will vary
according to a variety of factual circumstances," Gingles, 478 U.S.
at 57-58, the touchstone of the third Gingles precondition is
whether the majority votes sufficiently as a bloc to enable it to
defeat the minority's preferred candidate most of the time. See
-53-
id. at 56; Sanchez, 97 F.3d at 1319. Crossover voting in South
Providence enabled African-American voters regularly to elect the
candidate of their choice despite the relatively small African-
American constituency in the predecessor district. This is a
telling bit of political history. See Gingles, 478 U.S. at 56(noting that the amount of nonminority bloc voting that is legally
significant varies in part with the size of the minority group
within the district); Rangel v. Morales, 8 F.3d 242, 245 (5th Cir.
1993) (same). It demonstrates to my satisfaction that no legally
cognizable anti-minority bloc voting exists here (and that,
therefore, the appellants have failed to meet the third Gingles
precondition).
I give the majority its due. In the ordinary course,
district courts should allow colorable vote dilution claims to
proceed beyond the Rule 12(b)(6) stage. And, moreover, if one is
willing to split an infinite number of hairs, it always will be
possible to conjure up remote scenarios that might be disinterred
during discovery (and, thus, prevent the entry of a motion to
dismiss). But Rule 12(b)(6) does not invite courts to engage in
such endless conjecture. See Garrett v. Tandy Corp., 295 F.3d 94,
105 (1st Cir. 2002) ("The method of Rule 12(b)(6) requires courts
. . . to resolve all realistic possibilities in the pleader's
favor." (emphasis supplied)). Some cases are sufficiently clear
that, on any rational view of the facts alleged, a vote dilution
-54-
claim is insupportable. See Mixson v. Ohio, 193 F.3d 389, 399-400,
406-08 (6th Cir. 1999) (affirming dismissal of section 2 claim
under Rule 12(b)(6)); Mirrione v. Anderson, 717 F.2d 743, 746 (2d
Cir. 1983) (similar); Martinez v. Bush, 234 F. Supp. 2d 1275, 1280
n.7 (S.D. Fla. 2002) (three-judge court) (per curiam) (granting
defendants' Rule 12(b)(6) motion with respect to a section 2
claim). This is such a case: the allegations are unapologetic,
the key facts are essentially undisputed, and the amended complaint
stands or falls on the cogency of the appellants' avant-garde legal
theory. Like the district court, I find that theory unacceptable.
I add a coda. Reapportionment and redistricting are
thorny matters — and matters in which state legislatures are best
suited to lead. Within wide limits, courts ought to respect
legislative choices. See Voinovich, 507 U.S. at 156-57 (collecting
cases). I understand that respect is not equivalent to blind
allegiance, and if there were signs that the Rhode Island General
Assembly had acted in derogation of the Constitution or federal
law, I would not hesitate to support judicial intervention. But
such signs are lacking here, so respect counsels restraint.
Given the mixed racial and ethnic composition of South
Providence, the Rhode Island General Assembly was caught between a
rock and a hard place. It made a series of difficult choices, not
perfectly, but within the compass of its legal and constitutional
authority. Whether or not I would have drawn the lines of the
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affected district in the same manner is beside the point. What
matters is that the General Assembly's line-drawing is a product of
legitimate legislative choices made within allowable limits.
Accepting the appellants' vote dilution claim would nullify these
choices and give an unfair advantage to a particular subset of
voters — an advantage beyond any that Congress contemplated in
drafting the VRA. In the bargain, accepting the claim would shrink
the district-wide Hispanic population, thereby disadvantaging
another group of minority voters.
I have said my piece. Because the appellants fail to
allege the kind of impermissibly race-based distortion of electoral
opportunity that would sustain a claim under section 2 of the VRA,
I respectfully dissent.
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