filed: August 19, 1993; As Corrected November 15, 1993.
On Appeal From the United States District Court for the District of Delaware. (D.C. Civil No. 89-00230).
Before: Becker, Mansmann and Nygaard, Circuit Judges.
II. SECTION 2 OF THE VOTING RIGHTS ACT
IV. THE DISTRICT COURT'S OPINION
1. The Supreme Court Standard
2. The Plaintiff's Evidence Of White Bloc Voting
3. The District Court's Evaluation of the Plaintiffs' Evidence
4. Validity of The District Court's Plurality-Win Theory
5. Black Voters' Candidates of Choice
b. Were the Black Candidates the Candidates of Choice Among the Black Voters of Red Clay?
c. Were Any of the White Candidates in White Versus White Elections the Minority-Preferred Candidates?
d. Can the Court Determine a Pattern Based on the Limited Number of Elections Addressed by the Plaintiffs?
C. SUSTAINED PROPORTIONAL
D. POLITICAL COHESIVENESS OF THE
E. TOTALITY OF THE CIRCUMSTANCES
This appeal arises from a class action challenge brought pursuant to § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973 (1988) ("the Act"), to the at-large scheme for electing members of the school board for the Red Clay Consolidated School District in Delaware. The three named plaintiffs, Alden Jenkins, Harlan Roberts, and Gwendolyn Neal, brought the action on behalf of all eligible black voters in the district. They allege that the current method of electing the Red Clay Board of Education unlawfully dilutes the voting strength of the black citizens of Red Clay, thereby depriving them of an equal opportunity "to participate in the political process and to elect representatives of their choice," 42 U.S.C. § 1973(b). The plaintiffs seek declaratory and injunctive relief barring the use of the present at-large voting system, and mandatory injunctive relief establishing an alternative, non-discriminatory system for future elections. The defendants are the Red Clay Board of Education and the individual members of the Board in their official capacities. Following a bench trial, the district court found that the plaintiffs had failed to prove a § 2 violation, and therefore entered judgment for the defendants. See Jenkins v. Red Clay Consolidated School Dist. Bd. of Educ., 780 F. Supp. 221 (D. Del. 1991). Plaintiffs' appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
In Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), the Supreme Court established three preconditions (the "Gingles factors") to a finding that the dilutive effects of a multimember district violated § 2. We focus here predominately on the third Gingles factor, "that the white majority votes sufficiently as a bloc to enable it -- in the absence of special circumstances . . . -- usually to defeat the minority's preferred candidate," id. at 50-51, 106 S. Ct. at 2766-67, because we have determined that it is dispositive of this appeal.
We conclude that the district court committed reversible error with respect to the third Gingles factor by relying on the potential for black voters to elect their representatives of choice with a plurality of the vote (as is permitted under the Red Clay voting scheme), when the record demonstrated that no Red Clay candidate had won with a mere plurality since 1981. The district court thus erred in failing to ground its analysis in the actual, rather than the potential, effect that the plurality voting scheme had on the ability of black Red Clay voters fully to participate in the political process and to elect their representatives of choice. Concluding also that the judgment cannot be affirmed on alternative grounds, we will reverse and remand for further proceedings, and suggest that the district court receive additional evidence on remand.
The Red Clay Consolidated School District was established by the Delaware State Board of Education in November of 1980, pursuant to the authority of 62 Del. Law Ch. 351. The creation of the district was approved by the United States District Court for the District of Delaware, Evans v. Buchanan, 512 F. Supp. 839 (D. Del. 1981), as part of its ongoing oversight of the desegregation of the Delaware public school system. Red Clay combines a portion of the city of Wilmington with certain of its suburbs in New Castle County. While Wilmington as a whole has a black majority population, the portion of Wilmington included in the Red Clay School District has a white majority, as do the suburban portions of the district. In sum, according to 1990 census figures, the Red Clay School District has a total population of 132,674, with a total black population of 19,252 or 14.51%. The total voting age population is 102,196, of whom 13,257, or 12.97%, are black.
The School Board has seven members, each of whom normally serves a term of five years.*fn1 Each Board Member must be a resident of a different nominating district (denoted as districts A-G), and must run for the seat associated with that nominating district. Elections are staggered so that only one or two seats are up for election each May. Beyond the residency requirement, the only requirement for becoming a candidate is to submit a petition signed by twenty eligible district voters. Elections are conducted on an at-large, non-partisan basis. Voters may vote at any polling place in the district, and they may vote for a single candidate running for each of the seats up for election in that year. There is no voter registration; any resident of the district who is at least eighteen years of age may vote. The candidate who receives at least a plurality of the votes for a particular seat is elected.
In 1981, when the first elections were conducted under the reformulated Red Clay School District scheme, elections were held for six of the seven School Board seats.*fn2 For the district B seat, a black candidate, Harlan Roberts, was elected over five white candidates. Two other black candidates, William Anderson from district A and Gregory Connor from district E, also sought seats on the Board, but were defeated. All other candidates were white.
In 1982, two seats were up for election. Two white candidates ran for the seat in district C, and the white incumbent ran unopposed for the seat in district G.
In 1983, a black and a white candidate vied for the seat in district A. Similarly, the seat from district D was contested by a black and a white candidate. Both of these elections were won by the white candidates.
In 1984, three white candidates ran for the seat in district D, and two white candidates ran for the seat in district E.
In 1985, incumbent black candidate Roberts was defeated by a white candidate for the seat in district B. Additionally, the incumbent white candidate ran unopposed for the seat in district G.
In 1986, a white candidate was appointed to fill the seat in district C. Three white candidates ran for the seat in district F.
In 1987, the only election was for the seat in district C, in which there were four white candidates.
In 1988, a black candidate ran against two white candidates for the seat in district A. The seat was won by one of the white candidates. Additionally, an incumbent white candidate ran unopposed for the seat in district D.
In 1989, two white candidates ran for the seat in district E, the sole seat up for election.
In 1990, two black candidates, Carol Scotton and Rita Shockley, ran against each other for the seat in district B. Scotton was elected. Two white candidates ran against each other for the seat in district G.
In 1991, a black and a white candidate ran for the seat in district C, with the black candidate, Ronald Greene, winning. Two white candidates ran for the seat in district F. The 1991 election occurred after the trial. Neither party attempted to reopen the record to introduce evidence about the election, but the district court took judicial notice of the results.
In sum, in the period between 1981 and 1991, twenty-five vacant seats on the Red Clay School Board were filled. Twenty of these were filled through contested elections; three through uncontested races; and two were appointed. Ten black candidates ran in nine separate contested elections (the 1990 election for the seat in district B involved two black candidates running against each other).*fn3 Black candidates were elected in three of those races: Roberts in 1981, Scotton in 1990, and Greene in 1991. In contrast, sixty-five white candidates have sought twenty-four separate seats, including two seats that were appointed and three instances in which a white candidate ran unopposed. A white candidate ended up filling those seats on twenty-two of the twenty-four occasions.
II. SECTION 2 OF THE VOTING RIGHTS ACT
Section 2 of the Voting Rights Act, as amended, establishes that:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color . . . .
In 1980, the Supreme Court interpreted § 2 to require a plaintiff to prove discriminatory intent in the design or maintenance of the challenged scheme in order to establish a violation. City of Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980) (plurality opinion). Responding to Bolden, Congress in 1982 amended § 2 to make clear that a violation could be proved by showing a discriminatory effect and to establish that the "results test" that had been applied by the courts before Bolden was the appropriate legal standard. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S. Ct. 2752, 2758, 92 L. Ed. 2d 25 (1986).
In particular, Congress added the following provision setting out the general framework for proving a violation of § 2:
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 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.
Under this "totality of circumstances" analysis, the courts are to consider a wide variety of factors. To aid the analysis, the Senate Report accompanying amended § 2 set out a number of typical factors, which we refer to as "the Senate Factors." See S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07.*fn5 "There is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29, reprinted in 1982 U.S.C.C.A.N. at 207. "Rather, the Committee determined that the question whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality and on a functional view of the political process." Gingles, 478 U.S. at 45, 106 S. Ct. at 2763-64 (internal quotation and citation omitted).
In Gingles, the Court was presented with its first post-amendment § 2 challenge to a voting scheme. There, a class of all registered black citizens of North Carolina challenged the composition of seven state legislative districts established by a 1982 act of the North Carolina General Assembly that redistricted the state for elections of North Carolina's bicameral legislature. See Gingles v. Edmisten, 590 F. Supp. 345, 349-50 (E.D.N.C. 1984) (three Judge court). The plaintiffs alleged that in six of these seven districts the redistricting "plan impermissibly diluted the voting strength of the state's registered black voters by submerging black voting minorities in multi-member" districts. Id. at 349.
In evaluating the plaintiffs' challenge, the Supreme Court explained: "The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S. Ct. at 2764. As a gloss on the totality of the circumstances analysis of § 2, the Court set out three factors which it held to be "necessary preconditions" for a finding that multimember districts "operate to impair minority voters' ability to elect representatives of their choice": (1) "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"; (2) "the minority group must be able to show that it is politically cohesive"; and (3) "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it -- in the absence of special circumstances . . . -- usually to defeat the minority's preferred candidate." Id. at 50-51, 106 S. Ct. at 2766-67.
The Gingles factors, however, are merely threshold considerations. The ultimate determination under § 2 remains whether, under the totality of the circumstances, "the multimember districting scheme at issue in this case deprived black voters of an equal opportunity to participate in the political process and to elect representatives of their choice." Id. at 77, 106 S. Ct. at 2780; see also S. Rep. at 30, reprinted in 1982 U.S.C.C.A.N. at 207. Therefore, even after a court has determined that the plaintiffs proved each of the Gingles factors, it must go on to consider whether the totality of circumstances, evaluated under "a searching practical evaluation of the 'past and present reality'" and a "functional view of 'political process,'" establishes that the particular voting scheme diminishes the minority group's opportunity fully to participate in the political process. S. Rep. at 30 & n.120, reprinted in 1982 U.S.C.C.A.N. at 208 & n.120 (citation omitted); see Westwego Citizens for Better Gov't v. City of Westwego, 872 F.2d 1201, 1206 (5th Cir. 1989) (Westwego I) ("The final determination, however, must be made by an evaluation of the 'totality of the circumstances,' including the factors listed in the Senate Report."); see also Gingles, 478 U.S. at 79, 106 S. Ct. at 2781.*fn6
We will elaborate further on the Gingles factors in our Discussion of the merits.
The Supreme Court's opinion in Gingles includes specific guidance on the proper standard of appellate review in cases under the Voting Rights Act. The parties in Gingles argued that the district court's ultimate determination as to vote dilution constituted a mixed question of law and fact subject to de novo review. The Court, however, referencing the particularly local and fact-intensive nature of the inquiry, reaffirmed its view in prior voting cases "that the clearly-erroneous test of Rule 52(a) is the appropriate standard for appellate review of a finding of vote dilution." Gingles, 478 U.S. at 77-79, 106 S. Ct. at 2780-81; see also id. at 78, 106 S. Ct. at 2781 ("'we are not inclined to overturn these findings [that minority voters had less opportunity to participate in the political process], representing as they do a blend of history and an intensely local appraisal of the design and impact ...