Hall v. Commonwealth of VA

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOAN HALL; RICHARD PRUITT; 
THOMASINA PRUITT; VIVIAN CURRY;
EUNICE MCMILLAN; JAMES SPELLER;
ROBBIE GARNES; LESLIE SPEIGHT,
Plaintiffs-Appellants,
and
ELIJAH SHARPE,
Plaintiff,
v.
COMMONWEALTH OF VIRGINIA; JEAN
JENSEN, Secretary, State Board of
 No. 03-2113
Elections, in her official capacity;
JERRY W. KILGORE, in his official
capacity as Attorney General of the
Commonwealth of Virginia; GARY
THOMPSON; CHARLES BROWN; JAMES
BROWN; JAMES ALFRED CAREY;
EVELYN CHANDLER; CLIFTON E.
HAYES, JR.; QUENTIN E. HICKS; IRENE
HURST; WAYNE OSMORE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CA-03-151)
Argued: May 4, 2004
Decided: September 22, 2004
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
2 HALL v. COMMONWEALTH OF VIRGINIA
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Niemeyer and Judge Shedd joined.
COUNSEL
ARGUED: J. Gerald Hebert, Alexandria, Virginia, for Appellants.
Michael A. Carvin, JONES DAY, Washington, D.C.; Edward Meade
Macon, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Donald L. Morgan, CLEARY, GOTTLIEB,
STEEN & HAMILTON, Washington, D.C.; Anita S. Earls, UNC-
CENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for
Appellants. Jerry W. Kilgore, Attorney General of Virginia, Judith
Williams Jagdmann, Deputy Attorney General, James C. Stuchell,
Assistant Attorney General, Richmond, Virginia; Louis K. Fisher,
Shay Dvoretzky, Cody R. Smith, JONES DAY, Washington, D.C.,
for Appellees.
OPINION
DUNCAN, Circuit Judge:
At issue in this lawsuit under Section 2 of the Voting Rights Act
of 1965, 79 Stat. 439 (codified as amended at 42 U.S.C. § 1973
(2003)), is whether minority plaintiffs, who are not sufficiently
numerous to form a voting majority in any single-member district in
the Commonwealth of Virginia, may nevertheless claim that a legisla-
tive redistricting plan denies minority voters an equal opportunity to
elect candidates of their choice. The district court dismissed the com-
plaint on the grounds that the plaintiffs could not satisfy the require-
ment established in Thornburg v. Gingles that a minority group
seeking relief under Section 2 "demonstrate that it is sufficiently large
and geographically compact to constitute a majority in a single-
member district." 478 U.S. 30, 50 (1986). Because we agree that
Gingles establishes a numerical majority requirement for all Section
2 claims, we affirm the order of the district court dismissing the com-
plaint with prejudice.
HALL v. COMMONWEALTH OF VIRGINIA 3
I.
On June 19, 2001, the Commonwealth held a special election for
the United States House of Representatives seat in the Fourth Con-
gressional District. The seat had become vacant on account of the
death of longtime Democratic Representative Norman Sisisky on
March 29, 2001. In the special election, Republican Randy Forbes
defeated Democrat Louise Lucas to capture the Fourth District seat by
a 52 to 48 percent margin.
Shortly thereafter, on July 10, 2001, the Virginia General Assem-
bly enacted the existing congressional district plan (the "2001 Redis-
tricting Plan") based on the results of the 2000 census.1 Relevant to
this appeal, the 2001 Redistricting Plan redrew the boundaries of the
Fourth District, shifting a number of black2 citizens out of the Fourth
District and into the Third and Fifth Congressional Districts. Before
the enactment of the 2001 Redistricting Plan, blacks formed 39.4 per-
cent of the total population and 37.8 percent of the voting-age popula-
tion in the Fourth District.3 In the reconfigured Fourth District, blacks
constitute 33.6 percent of the total population and 32.3 percent of its
voting-age population.
1
The 2001 Redistricting Plan was duly signed into law by the Gover-
nor of Virginia and is codified at Va. Code Ann. § 24.2-302.1 (Michie
2004). The Department of Justice precleared the enacted plan pursuant
to Section 5 of the Voting Rights Act, which requires a showing that the
plan "does not have the purpose and will not have the effect of denying
or abridging the right to vote on account of race or color . . . ." 42 U.S.C.
§ 1973c.
2
For the purposes of this opinion, we use the terms "minority" and
"black" interchangeably.
3
The complaint provides only the total population statistics for the rel-
evant congressional districts. Voting-age population statistics, however,
are publicly available on the official redistricting website of the Virginia
Division of Legislative Services. We may properly take judicial notice
of this information in reviewing the dismissal of the complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Papasan v.
Allain, 478 U.S. 265, 268 n.1 (1986) ("Although this case comes to us
on a motion to dismiss under Federal Rule of Civil Procedure 12(b), we
are not precluded in our review of the complaint from taking notice of
items in the public record . . . .").
4 HALL v. COMMONWEALTH OF VIRGINIA
The 2001 Redistricting Plan left the total population and voting-age
population figures for blacks in the Third District virtually
unchanged. The Third District previously had a total black population
of 57 percent and a black voting-age population of 53.3 percent.
Under the new plan, blacks in the Third District comprise 56.8 per-
cent of the total population and 53.2 percent of the voting-age popula-
tion. Similarly, the total population and voting-age population
statistics for blacks in the Fifth District were largely unaffected by the
2001 Redistricting Plan. Blacks constituted 24.3 percent of the total
population in the Fifth District both before and after the enactment of
the plan. Black voting-age population, however, saw a slight increase
from 22.7 percent in the former Fifth District, to 22.8 percent in the
redrawn Fifth District.4
The plaintiffs are nine registered voters who either currently reside
in the Fourth District or were shifted out of the Fourth District as a
result of the 2001 Redistricting Plan. On February 21, 2003, the plain-
tiffs filed a federal complaint in the Eastern District of Virginia alleg-
ing that the reconfiguration of the Fourth District dilutes minority
voting strength in violation of Section 2 of the Voting Rights Act.5
4
No explanation appears on the face of the record as to why the 2001
Redistricting Plan did not result in greater population changes in the
Third and Fifth Districts.
5
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides that:
(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
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
HALL v. COMMONWEALTH OF VIRGINIA 5
More precisely, the complaint alleges that, in the former Fourth Dis-
trict, blacks were sufficiently numerous to combine with white voters
and thereby elect their preferred candidates to public office. The
plaintiffs contend that, in the newly-drawn Fourth District, blacks are
too small in number to form the same winning coalition with "cross-
over"6 white voters that existed before the enactment of the 2001
Redistricting Plan. The complaint further alleges that the new plan
dilutes minority voting strength in the Fourth District by shifting
black voters out of the Fourth and into the Third District. According
to the plaintiffs, the reassignment of black voters to this already safe
majority-minority district7 amounts to an unnecessary waste of black
votes. As affirmative relief, the plaintiffs requested an order: (1)
declaring that the 2001 Redistricting Plan dilutes minority voting
strength in violation of Section 2; (2) enjoining the defendants from
conducting any elections in the Fourth District under the 2001 Redis-
tricting Plan; and (3) restoring the Fourth District to approximately 40
percent in total black population.
Relying on the Supreme Court’s decision in United States v. Hays,
515 U.S. 737 (1995), the district court dismissed for lack of standing
the seven plaintiffs who no longer reside in the Fourth District as a
result of the 2001 Redistricting Plan. The Hays Court held that plain-
tiffs who do not live in a challenged district lack standing to claim
that the district has been racially gerrymandered in violation of the
Fourteenth Amendment. Id. at 744-45 ("Where a plaintiff resides in
a racially gerrymandered district . . . the plaintiff has been denied
equal treatment . . . and therefore has standing to challenge the legis-
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.
6
"Crossover" voters are persons outside a minority group who support
the minority group’s candidate in an election. See Gingles, 478 U.S. at
56.
7
A majority-minority district is a legislative district "in which a major-
ity of the population is a member of a specific minority group."
Voinovich v. Quilter, 507 U.S. 146, 149 (1993).
6 HALL v. COMMONWEALTH OF VIRGINIA
lature’s action."). Although Hays concerned a racial gerrymandering
claim under the Equal Protection Clause, rather than a vote dilution
claim under Section 2 of the Voting Rights Act, the district court was
persuaded that the principles of standing discussed in Hays apply
equally to the seven plaintiffs in this case who do not live in the chal-
lenged district, and thus can claim no more than a "‘generalized griev-
ance against governmental conduct of which [they] do[ ] not
approve.’" Hall v. Commonwealth of Va., 276 F. Supp. 2d 528, 531
(E.D. Va. 2003) (quoting Hays, 515 U.S. at 745). Accordingly, the
district court held that only Plaintiffs Joan Hall and Leslie Speight
have standing to challenge the newly-drawn Fourth District "by virtue
of their residency within the Fourth District." Id. at 531-32.
The district court ultimately dismissed the vote dilution claims of
Hall and Speight on the grounds that they failed to satisfy all of the
"necessary preconditions" for a Section 2 claim established by the
Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986). The
Gingles Court construed Section 2 in the context of a lawsuit claiming
that the election of candidates from a multimember district8 diluted
minority voting strength by submerging a cohesive racial minority
group within a bloc-voting white majority. The Court held that plain-
tiffs challenging the use of multimember districts under Section 2
must first establish three threshold conditions. The minority group
must be able to (1) "demonstrate that it is sufficiently large and com-
pact to constitute a majority in a single member district," (2) "show
that it is politically cohesive," and (3) "demonstrate that the white
8
Vote dilution challenges to legislative districts can arise either in the
case of "single-member" or "multimember" districts. The single-member
district "is the smallest political unit from which representatives are
elected." Gingles, 478 U.S. at 50 n.17. In these districts, one candidate
is elected to represent voters in the district. By contrast, in multimember
districts, "two or more legislators [are] elected at large by the voters of
the district." Whitcomb v. Chavis, 403 U.S. 124, 127-28 (1971). Because
of the greater size of multimember districts, a minority group "may be
unable to elect any representatives in an at-large election, yet may be
able to elect several representatives if the political unit is divided into
single-member districts." Rogers v. Lodge, 458 U.S. 613, 616 (1982).
HALL v. COMMONWEALTH OF VIRGINIA 7
majority votes sufficiently as a bloc to enable it . . . usually to defeat
the minority’s preferred candidate." Id. at 50-51.9
Proof of the Gingles preconditions is not alone sufficient to estab-
lish a claim of vote dilution under Section 2. "The ultimate determina-
tion of vote dilution under the Voting Rights Act still must be made
on the basis of the ‘totality of the circumstances.’" Lewis v. Alamance
County, 99 F.3d 600, 604 (4th Cir. 1996) (internal quotations omit-
ted). On the other hand, the failure of a minority group to satisfy all
of the Gingles preconditions means that it cannot sustain a claim
under Section 2 that the challenged electoral practice "impede[s] the
ability of minority voters to elect representatives of their choice."
Gingles, 478 U.S. at 48. After analyzing the vote dilution allegations
in the complaint, the district court held that Hall and Speight failed
to state a claim cognizable under Section 2, since blacks would not
form a population or voting-age majority in the Fourth District even
if they prevailed and the Fourth District was restored to approxi-
mately 40 percent in total black population. The district court there-
fore dismissed the complaint with prejudice pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
On appeal, the plaintiffs claim that the district court erred in treat-
ing the first Gingles precondition as "a bright-line numerical cut-off
requiring black voters to be a numerical majority in a single-member
district." Appellants’ Br. at 8. Although Gingles states very clearly
that Section 2 plaintiffs must demonstrate that a minority group is
large enough to form "a majority" in a district, Gingles, 478 U.S. at
50, the plaintiffs argue that nothing in the language of Section 2 or
Gingles requires that a minority group constitute a numerical majority
in a district in order to state a vote dilution claim. Instead, the plain-
tiffs contend that the first Gingles precondition is satisfied not only
when a minority group constitutes a numerical majority in a single-
member district, but also when minorities are sufficiently numerous
to form an "effective" or "functional" majority in a single-member
9
The Gingles preconditions are equally applicable in vote dilution
challenges to single-member legislative districts. See Johnson v. De
Grandy, 512 U.S. 997, 1006 (1994) (applying Gingles preconditions in
a single-member district dilution suit); see also Growe v. Emison, 507
U.S. 25, 40 (1993) (same).
8 HALL v. COMMONWEALTH OF VIRGINIA
district by combining with voters from other racial or ethnic groups.
Appellants’ Br. at 28. According to the plaintiffs, the purpose of Sec-
tion 2 is to remove obstacles that impair the ability of minorities to
elect their preferred candidates. Thus, they argue that if minorities can
elect a candidate by forming a majority in a single-member district in
combination with voters from another racial group, "then they have
demonstrated that a structure which prevents them from doing so is
dilutive." Id. at 22. Fundamentally, the plaintiffs contend that Section
2 authorizes a claim that an election law or practice dilutes the voting
strength of a multiracial coalition.
II.
We review de novo the dismissal of a complaint under Rule
12(b)(6), Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002), which
authorizes the dismissal of a complaint that "fail[s] to state a claim
upon which relief can be granted," Fed. R. Civ. P. 12(b)(6). Because
the purpose of Rule 12(b)(6) is to test the legal sufficiency of a com-
plaint, rather than the facts alleged in support of it, we "must accept
as true all well-pleaded allegations and must construe the factual alle-
gations in the light most favorable to the plaintiff." Randall v. United
States, 30 F.3d 518, 522 (4th Cir. 1994). Ultimately, a complaint
should not be dismissed under Rule 12(b)(6) "unless it appears certain
that the plaintiff can prove no set of facts which would support its
claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). With these principles in mind, we
consider whether the complaint states a valid claim under Section 2.10
However, before turning to the merits of the plaintiffs’ appeal, we set
forth below the concepts that give meaning to a vote dilution claim,
as well as the standards that keep it "within principled legal bounds."
McGhee v. Granville County, 860 F.2d 110, 116 (4th Cir. 1988).
10
We decline to address the arguments concerning whether the district
court erred in dismissing seven of the nine plaintiffs for lack of standing.
The question of standing in this appeal is purely academic. Two of the
named plaintiffs are both current and former residents of the Fourth Dis-
trict and, therefore, unquestionably have standing to claim that the Fourth
District dilutes minority voting strength in violation of Section 2.
HALL v. COMMONWEALTH OF VIRGINIA 9
III.
A.
A vote "dilution" claim alleges that a particular practice operates
"to cancel out or minimize the voting strength" of a minority group.
White v. Regester, 412 U.S. 755, 765 (1973). In turn, a minority
group’s "voting strength" is measured in terms of its ability to elect
candidates to public office. Gingles, 478 U.S. at 88 (O’Connor, J.,
concurring) (observing that "minority voting strength is to be assessed
solely in terms of the minority group’s ability to elect candidates it
prefers") (emphasis omitted)). In choosing the ability "to elect" its
preferred candidates as the measure of a minority group’s voting
strength, the Court declined to address whether Section 2 permits
claims, brought by a minority group too small to form a majority in
a single-member district, that a practice "impairs its ability to influ-
ence [rather than to win] elections."11 Id. at 46 n.12. Thus, under
existing Supreme Court authority, a vote dilution claim under Section
2 must be cast solely in terms of an allegation that a particular prac-
tice "impede[s] the ability of minority voters to elect representatives
of their choice." Id. at 48.
Any claim that the voting strength of a minority group has been
"diluted" must be measured against some reasonable benchmark of
"undiluted" minority voting strength. As Justice Frankfurter once
observed, "[t]alk of ‘debasement’ or ‘dilution’ is circular talk. One
cannot speak of ‘debasement’ or ‘dilution’ of the value of a vote until
11
The Supreme Court has repeatedly declined to rule on the viability
of "influence" dilution claims. See De Grandy, 512 U.S. at 1008-09;
Voinovich, 507 U.S. at 154 (1993); Growe, 507 U.S. at 41 n.5. An "influ-
ence" claim alleges that minorities "ha[ve] enough political heft to exert
significant influence on the choice of a candidate though not enough to
determine that choice." Barnett v. Chicago, 141 F.3d 699, 703 (7th Cir.
1998). On the other hand, the plaintiffs’ "coalition" claim alleges that
minorities can, in fact, elect a candidate of their choice with the support
of crossover voters from other racial or ethnic groups. See Georgia v.
Ashcroft, 539 U.S. 461, 481-82 (distinguishing "influence" and "coali-
tion" districts). Because the complaint does not raise an influence dilu-
tion claim, we do not consider the question here.
10 HALL v. COMMONWEALTH OF VIRGINIA
there is first defined a standard of reference as to what a vote should
be worth." Baker v. Carr, 369 U.S. 186, 300 (1962) (Frankfurter, J.,
dissenting); see also Gingles, 478 U.S. at 88 (O’Connor, J., concur-
ring) (noting that to evaluate a vote dilution claim, "it is . . . necessary
to construct a measure of ‘undiluted’ minority voting strength.").
The size, compactness, and cohesiveness requirements of the
Gingles preconditions are at the heart of the measure of undiluted vot-
ing strength that the Supreme Court has adopted for vote dilution
claims. In Gingles, Justice O’Connor observed that the first and sec-
ond preconditions establish a standard of undiluted minority voting
strength in terms of the voting power a minority group could wield
if its members were all concentrated within one, hypothetical single-
member district.
The Court’s definition of the elements of a vote dilution
claim is simple and invariable: a court should calculate
minority voting strength by assuming that the minority
group is concentrated in a single-member district in which
it constitutes a voting majority. Where the minority group is
not large enough, geographically concentrated enough, or
politically cohesive enough for this to be possible, the
minority group’s claim fails. Where the minority group
meets these requirements, the representatives that it could
elect in the hypothetical district or districts in which it con-
stitutes a majority will serve as the measure of its undiluted
voting strength. Whatever plan the State actually adopts
must be assessed in terms of the effect it has on this undi-
luted voting strength.
Gingles, 478 U.S. at 90-91 (O’Connor, J., concurring) (emphasis
added). The electoral ability of a group concentrated within a hypo-
thetical single-member district makes sense as the measure of undi-
luted minority voting strength, because: (1) voting strength is
measured in terms of a group’s "ability to elect" candidates; and (2)
"a minority group that could constitute a majority in a single-member
district ordinarily has the potential ability to elect representatives
without white support," while "a minority that could not constitute
such a majority does not." Id. at 89 n.1 (emphasis added).
HALL v. COMMONWEALTH OF VIRGINIA 11
Stated differently, minority voters have the potential to elect a can-
didate on the strength of their own ballots when they can form a
majority of the voters in some single-member district. When the vot-
ing potential of a minority group that is large enough to form a major-
ity in a district has been thwarted by the manipulation of district lines,12
minorities may justly claim that their "ability to elect" candidates has
been diluted in violation of Section 2. On the other hand, when minor-
ity voters, as a group, are too small or loosely distributed to form a
majority in a single-member district, they have no ability to elect can-
didates of their own choice, but must instead rely on the support of
other groups to elect candidates. Under these circumstances, minori-
ties cannot claim that their voting strength—that is, the potential to
independently decide the outcome of an election—has been diluted in
violation of Section 2. As the Supreme Court observed in Growe, a
minority group claiming vote dilution must establish that it "has the
potential to elect a representative of its own choice in some single-
member district." Growe, 507 U.S. at 40 (emphasis added). And
"[u]nless minority voters possess the potential to elect representatives
in the absence of the challenged structure or practice, they cannot
claim to have been injured by that structure or practice." Gingles, 478
U.S. at 50 n.17.
12
The Supreme Court has observed that an impermissible dilution of
minority voting strength can result from practices that spread a cohesive
minority group across several legislative districts "so that it is a majority
in none . . . ." Voinovich, 507 U.S. at 153. This practice is referred to as
"cracking" a potential voting majority of racial minorities. Vieth v.
Jubelirer, 124 S. Ct. 1769, 1781 n.7 (2004) ("‘Cracking’ involves the
splitting of a group or party among several districts to deny that group
or party a majority in any of those districts."). On the other hand, vote
dilution can also occur through "packing," a term that describes the "con-
centration of blacks into districts where they constitute an excessive
majority." Voinovich, 507 U.S. at 154 (internal quotations omitted). The
plaintiffs’ vote dilution claim alleges both dilution-by-cracking and
dilution-by-packing. Specifically, the plaintiffs allege that the 2001
Redistricting Plan reduces minority voting strength in the Fourth District
by fragmenting a cohesive population of black voters in the Fourth Dis-
trict across several legislative districts. In addition, the plaintiffs allege
that the new plan dilutes minority voting strength in the Fourth District
by removing black voters from that district and packing them into what
was already a majority-minority Third District.
12 HALL v. COMMONWEALTH OF VIRGINIA
Ultimately, the right to "undiluted" voting strength in Section 2 is
a guarantee of equal opportunity in voting, ensuring that a minority
group is not denied, on account of race, color, or language minority
status, the opportunity to exercise an electoral power that is commen-
surate with its population in the relevant jurisdiction. See Smith v.
Brunswick County, 984 F.2d 1393, 1400 (4th Cir. 1993) (explaining
that "the analysis [of a vote dilution claim] must consider whether the
protected voting group has a voting opportunity that relates favorably
to the group’s population in the jurisdiction for which the election is
being held."). This guarantee of equal opportunity in voting is evident
in the plain language of Section 2, which is violated whenever an
election law or practice leaves minorities with "less opportunity than
other members of the electorate . . . to elect representatives of their
choice." 42 U.S.C. § 1973(b); see also Voinovich, 507 U.S. at 155
("Only if the apportionment scheme has the effect of denying a pro-
tected class the equal opportunity to elect its candidate of choice does
it violate § 2; where such an effect has not been demonstrated, § 2
simply does not speak to the matter."). As a result, to establish a vote
dilution claim under Section 2, minorities must prove that they have
been unlawfully denied the political opportunity they would have
enjoyed as a voting-age majority in a single-member district: namely,
the opportunity to "dictate electoral outcomes independently" of other
voters in the jurisdiction. Voinovich, 507 U.S. at 154.
B.
In light of these principles informing a vote dilution claim under
Section 2, we must conclude that the complaint in this case fails to
state a claim upon which relief can be granted. The plaintiffs cannot
establish that black voters have been denied an equal opportunity to
elect candidates of their choice. The 2001 Redistricting Plan reduces
the voting-age population of blacks in the Fourth District from 37.8
to 32.3 percent. It does not follow, however, that the new plan dilutes
minority voting strength under Section 2. Section 2 and Gingles
instruct that a plan may not create a barrier to the ability of minorities
to elect their preferred candidates. As a group that could only form
a minority of the voters in the Fourth District even before the Plan’s
enactment, the ability to elect candidates of their own choice was
never within the plaintiffs’ grasp. See Cano v. Davis, 211 F. Supp. 2d
1208, 1231 (C.D. Cal. 2002) (observing that "unless the minority
HALL v. COMMONWEALTH OF VIRGINIA 13
group can establish that an effective majority-minority district can be
created, a vote dilution claim is not cognizable because there is no
minority voting power to dilute."), aff’d, 537 U.S. 1100 (2003). The
plaintiffs concede that black voters cannot form a majority in the
Fourth District, and thereby elect a candidate, without the support of
voters from other racial or ethnic groups.
The argument that a coalition of black and white voters may claim
that a redistricting plan dilutes their combined ability to elect candi-
dates confuses the purpose of Section 2. The objective of Section 2
is not to ensure that a candidate supported by minority voters can be
elected in a district. Rather, it is to guarantee that a minority group
will not be denied, on account of race, color, or language minority
status, the ability "to elect its candidate of choice on an equal basis
with other voters." Voinovich, 507 U.S. at 153. Section 2 is not vio-
lated unless minorities "have less opportunity than other members of
the electorate to . . . elect representatives of their choice." 42 U.S.C.
§ 1973(b) (emphasis supplied). As a result, the question facing the
plaintiffs is not whether a black-preferred candidate can be elected in
the Fourth District after the 2001 Redistricting Plan. The question is
whether black voters have less opportunity, in comparison to other
voters of similar strength in the jurisdiction, to form a majority in the
Fourth District, and thereby elect a candidate of their choice. See
Gingles, 478 U.S. at 44 ("The right question [in the Section 2 analy-
sis] is whether as a result of the challenged practice or structure plain-
tiffs do not have an equal opportunity to participate in the political
processes and to elect candidates of their choice.") (internal quota-
tions omitted)). As the Sixth Circuit observed in Nixon v. Kent
County, 76 F.3d 1381, 1392 (6th Cir. 1996), "the Voting Rights Act
[is] aimed only at ensuring equal political opportunity: that every per-
son’s chance to form a majority is the same, regardless of race or eth-
nic origin."
At roughly 38 percent of the voting-age population in the Fourth
District before the 2001 Redistricting Plan, blacks possessed the same
opportunity to elect a candidate as any group that cannot form a
majority of the voters in a district. A minority group that is too small
to form a majority may be able to join with other voters to elect a can-
didate it supports. However, such groups will be obliged "to pull,
haul, and trade to find common political ground" with other voters in
14 HALL v. COMMONWEALTH OF VIRGINIA
the district. De Grandy, 512 U.S. at 1020. The 2001 Redistricting
Plan does not change this fact for black voters in the Fourth District;
their political fortunes remain tied to the interests of other voters in
the district. Because the same is true for all other groups in the Fourth
District that are too small to dominate an election with their own
votes, the plaintiffs cannot establish that black voters in the Fourth
District have less opportunity "than other members of the electorate"
to elect candidates of their choice. 42 U.S.C. § 1973(b); see also Ses-
sion v. Perry, 298 F. Supp. 2d 451, 483 (E.D. Tex. 2004) ("A minor-
ity group lacking a majority cannot elect its candidate of choice, and
denying the group a separate district cannot be a denial of any oppor-
tunity protected by the Act.").
Furthermore, any construction of Section 2 that authorizes the vote
dilution claims of multiracial coalitions would transform the Voting
Rights Act from a law that removes disadvantages based on race, into
one that creates advantages for political coalitions that are not so
defined. "Congress enacted § 2 of the Voting Rights Act . . . to help
effectuate the Fifteenth Amendment’s guarantee that no citizen’s right
to vote shall ‘be denied or abridged . . . on account of race, color, or
previous condition of servitude.’" Voinovich, 507 U.S. at 152 (quoting
U.S. Const. amend. XV, § 1).
The purpose of the [Voting Rights] Act is to redress racial
or ethnic discrimination which manifests itself in voting pat-
terns or electoral structures. . . . If a minority group lacks a
common race or ethnicity, cohesion must rely principally on
shared values, socio-economic factors, and coalition forma-
tion, making the group almost indistinguishable from politi-
cal minorities as opposed to racial minorities.
Campos v. City of Baytown, 849 F.2d 943, 945 (5th Cir. 1988) (Hig-
ginbotham, J., dissenting from denial of reh’g en banc).
The essence of the plaintiffs’ claim in this action is the assertion
of a right to preserve their strength for the purposes of forging an
advantageous political alliance. This is understandable, to be sure.
However, we cannot find a basis for the protection of such a right in
Section 2. The Voting Rights Act "is a balm for racial minorities, not
political ones—even though the two often coincide." Baird v. Consol.
HALL v. COMMONWEALTH OF VIRGINIA 15
City of Indianapolis, 976 F.2d 357, 361 (1992). A redistricting plan
that does not adversely affect a minority group’s potential to form a
majority in a district, but rather diminishes its ability to form a politi-
cal coalition with other racial or ethnic groups, does not result in vote
dilution "on account of race" in violation of Section 2.13
IV.
Because the plaintiffs cannot establish that black voters in the
Fourth District can form a majority in a single-member district as
required by Gingles, the complaint fails to state a vote dilution claim
under Section 2. Accordingly, the district court’s order dismissing the
complaint with prejudice is
AFFIRMED.
13
The plaintiffs’ reliance on Georgia v. Ashcroft fails for the same rea-
son. The plaintiffs claim that the Supreme Court in Georgia retreated
from the Gingles rule that a minority group can claim no right under Sec-
tion 2 unless it can form a majority of the voters in a single-member dis-
trict. In Georgia, the Supreme Court noted that "[t]here are communities
in which minority citizens are able to form coalitions with voters from
other racial and ethnic groups, having no need to be a majority within a
single district in order to elect candidates of their choice." 539 U.S. at
481 (internal quotations omitted). We do not believe that this observation
alters the Gingles numerical majority requirement in any way. A coali-
tion of black and white voters can certainly join forces to elect a candi-
date, but Section 2 does not create an entitlement for minorities to form
an alliance with other voters in a district who do not share the same statu-
tory disability as the protected class.