JULIO CLERVEAUX, CHEVON DOS REIS, ERIC GOODWIN, JOSE VITELIO GREGORIO, DOROTHY MILLER, HILLARY MOREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, SPRING VALLEY BRANCH v. EAST RAMAPO CENTRAL SCHOOL DISTRICT
20-1668
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
January 6, 2021
August Term, 2020
Argued: August 19, 2020
Plaintiffs-Appellees,
v.
EAST RAMAPO CENTRAL SCHOOL DISTRICT,
Defendant-Appellant.1
RANDALL M. LEVINE, Morgan, Lewis & Bоckius LLP (David J. Butler, William S.D. Cravens, Clara Kollm, David B. Salmons, Bryan Killian, Stephanie Schuster, on the brief), Washington, D.C., for Defendant-Appellant East Ramapo Central School District.
CHARLES S. DAMERON, Latham & Watkins LLP (Andrew Clubok, Claudia T. Salomon, Corey A. Calabrese, Marc N. Zubick, Russell D. Mangas, on the brief), Washington, D.C., for Plaintiffs-Appellees.
Arthur N. Eisenberg, Perry M. Grossman, New York Civil Liberties Union Foundation (on the brief), New York, N.Y., for Plaintiffs-Appellees.
Nathan Lewin, Lewin & Lewin, LLP, Washington, D.C., for Agudath Israel of America, amicus curiae.
Defendant-Appellant East Ramapo Central School District (“District“) appeals from the May 25, 2020 decision and order of the United States District Court for the Southern District of New York (Seibel, J.), issued after a bench trial, holding that the at-large election system used by the District to elect members to its Board of Education (“Board“) resulted in dilution of black and Latino residents’ votes in violation of Section 2 of the Voting Rights Act of 1965,
We reject these arguments. We hold that Section 2 does not require racial causation, though the existence or absence of such causation is a relevant factor for consideration. We further hold that the district court did not err in concluding that the analysis using BISG is reliable and superior to analysis using
AFFIRMED.
Few rights are more sacred than the right to vote. Indeed, the right to vote is preservative of all other rights, see Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), but historically it has not been granted equally in this country. To rectify this deprivation, Congress passed the Voting Rights Act. Section 2 of that statute prohibits states or political subdivisions from structuring elections “in a manner which results in a denial or abridgement of the right of any citizen of the United of the United States to vote on account of race or color,” such that minority citizens “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
East Ramapo Central School District (“District“) appeals from the May 25, 2020 decision and order of the United States District Court for the Southern District of New York (Seibel, J.), issued following a bench trial, holding that the at-large election system used by the District to elect members to its Board of
We reject these arguments. We hold that Section 2 does not require racial causation, though the existence or absence of such causation is a relevant factor for consideration. We further hold that the district court did not err in concluding that the analysis using BISG is reliable and superior to analysis using CVAP. Lastly, we hold that the totality of the circumstances supports the finding of a Section 2 violation given the near-perfect correlation between race and school-type; the scant evidence supporting the District‘s claim that policy preferences, not race, caused election results; the Board‘s blatant neglect of minority needs; the lack of minority-preferred success in elections; the exclusive,
The order of the district court enjoining Board elections until the District proposes and executes a remedial plan, before us through an interlocutory appeal, is accordingly affirmed. On December 23, 2020, the District moved to stay the district court‘s injunction pending the resolution of this appeal. As this opinion resolves the appeal and affirms the district court‘s order, the District‘s motion is denied as moot.
BACKGROUND
I. Factual Background3
A. The District and Board Elections
Plaintiffs-Appellees are the Spring Valley Branch of the National Association for the Advancement of Colоred People and Julio Clerveaux, Chevon Dos Reis, Eric Goodwin, and Dorothy Miller, who are minorities and registered voters in the District. Since 2008, every candidate these individuals
The District is a highly segregated political subdivision of New York State located in Rockland County. The population in the District is approximately 65.7% white, 19.1% black, 10.7% Latino, and 3.3% Asian. During the 2017-2018 school year, approximately 8,843 students attended public schools, while 29,279 students attended private schools. The private-school community consists primarily of white Orthodox and Hasidic Jewish residents who educate their children in yeshivas, while the public-school community consists of primarily black and Latino residents whose children attend public schools. The correlation between race and school attended in the District is near perfect: 92% of public-school students are black or Latino, while 98% of private-school students are white.
The District is governed by a Board, which consists of nine members whose responsibilities include selecting the Superintendent of Schools and approving other personnel, setting the budget and levying taxes, establishing
Board elections are staggered so that three seats, each carrying a three-year term, are open every year (absent special circumstances, such as death or resignation of a member, in which case an extra seat may be available that year). Candidates run for a specific, individually numbered seat. The elections are at-large, meaning that all eligible voters in the District vote in each race. The following table summarizes the results of Board elections from 2008-2018 (with “W” designating white candidates, “B” designating black candidates, and “L” designating Latino candidates).4
| Yr. | Seat 1 | Seat 2 | Seat 3 | Seat 4 | TOTAL VOTE COUNT | |
|---|---|---|---|---|---|---|
| 2008 | Aaron Wieder (W) (6,261)* Steve White (W) (2,415) | Moshe Hopstein (W) (6,533)* | Nathan Rothschild (W) (5,103)* | 9,163 | ||
| 2009 | Morris Kohn (W) (8,768)* | Leonardo Vera (L) (4,548) | Carolyn Watson (W) (566) Margaret Hatton (W) (4,236) Eliyahu Solomon (W) (8,578)* | Emilia White (B) (4,149) Richard Stone (W) (9,224)* | 13,708 | |
| 2010 | Antonio Luciano (W) (7,622) | Moses Freidman (W) (7,926)* | Stephen Price (W) (13,612)* | Suzanne Young-Mercer (B) (13,839)* | 16,056 | |
| 2011 | Moshe Hopstein (W) (9,904)* | M. Hatton (W) (7,907) | Yehuda Weissmandl (W) (9,923)* A. Luciano (W) (7,909) | Daniel Schwartz (W) (9,947)* Carole Anderson (B) (7,818) | Joanne Thompson (B) (13,958)* | 18,206 |
| 2012 | Hiram Rivera (L) (6,315) | Jacob Lefkowitz (W) (8,474)* | Kim Foskew (W) (6,276)* | E. Solomon (W) (8,460)* | Yonah Rothman (W) (8,521)* J. Thompson (B) (6,335) | 15,091 |
| 2013 | Maraluz Corado (L) (6,806)* | Margaret Tuck (B) (5,244) | Eustache Clerveaux (B) (5,085) Pierre Germain (B) (6,899)* | Robert Forrest (B) (5,175) Bernard Charles (B) (6,833)* | 12,317 | |
| 2014 | M. Hopstein (W) (2,388)* | Harry Grossman (W) (2,652)* | Yakov Engel (W) (2,381)* | Y. Weissmandl (W) (2,379)* | 4,998 | |
| 2015 | Sabrina Charles-Pierre (B) (4,600) | Jacob Lefkowitz (W) (6,380)* Alan Jones (B) (468) | Y. Rothman (W) (6,523)* Natashia Morales (L) (4,864) | S. White (W) (4,615) Yisroel Eisenbach (W) (556) Juan Pablo Ramirez (L) (6,293)* | 11,694 | |
| 2016 | B. Charles (B) (7,973)* | K. Foskew (W) (3,972) | P. Germain (B) (7,860)* Jean Fields (B) (4,137) | Y. Weissmandl (W) (7,626)* N. Morales (L) (4,401) | S. Charles-Pierre (B) (5,014)* | 12,311 |
| 2017 | Alexandra Manigo (W) (4,964) | Mark Berkowitz (W) (9,158)* Eric Goodwin (B) (4,910) | H. Grossman (W) (9,137)* | Joel Frielich (W) (9,530)* Chevon Dos Reis (L) (4,503) | 14,343 | |
| 2018 | S. Charles-Pierre (B) (9,180)* | Yoel Trieger (W) (7,179)* (W) (1,996) | Miriam Moster (W) (6,977)* E. Weissmandl (W) (2,308) | Joselito Cintron (L) (2,308) | 9,714 |
Key: An * denotes the election winner, Bold denotes the incumbent candidate
Influential members of the white, private-school community have an informal slating process by which preferred Board candidates are selected, endorsed, promoted, and elected. Rabbi Yehuda Oshry, an influential Orthodox community leader, selects and approves candidates, controls access to the slating process, and submits petitions on behalf of candidates. Private-school advocate Shaya Glick also helps select candidates and publicizes their candidacy. Yakov Horowitz, a leader in the Orthodox community, connects potential candidates to Rabbi Oshry and approves candidates. The slating organization (the “Organization“) has secured victory for the white community‘s preferred candidate in each contested election. Although some minority candidates have been slated by the Organization and have won seats on the Board, minority voters did not prefer these candidates.
The Organization does not hold an open call for candidates, and only those with connections to the Organization or its leaders have been introduced, vetted, and selected. When vetted, candidates were not asked about their policy views. Multiple successful private-school candidates did not campaign or spend money
For instance, Charles, a black man who won multiple Board elections after being slated by the Organization, was connected to Rabbi Rosenfeld through a mutual acquaintance. Rabbi Rosenfeld met with Charles, but he did not ask Charles about his policy platform. Rabbi Rosenfeld did, however, require interviews with Charles‘s running mates, and Charles needed Rabbi Rosenfeld‘s approval to add his running mates to his slate.
Charles‘s situation contrasts with that of public-school candidate and plaintiff Goodwin. Goodwin “genuinely impressed” a former Board member from the private-school community, but he was nonetheless not introduced to anyone in the Orthodox community for endorsement. Supp. App‘x at 94. Charles believed that “when it comes to running for the school board . . . you‘re either working with [the] white community or you‘re working with the other community.” Supp. App‘x at AA 146.
C. Minority Board Members
Minority candidates have won seven out of thirty-two contested Board elections in the District from 2005 to 2018. However, from 2008 to 2018, no
Most notable are Charles and Pierre Germain, both black men who won four of the elections analyzed. Both were vetted and endorsed by the Organization. Neither candidate campaigned in, nor sought to appeal to the public-school community given that they had already secured the Organization‘s endorsement and with it the support of the white community. Minority voters did not support Charles and Germain. Once elected, Charles and Germain allied with private-school interests and against public-school interests. For example, Charles did not support the appointment of Charles-Pierre, a black woman, to the Board because he believed she was aligned with public-school advocates. Charles testified that Charles-Pierre was “on the opposing side” and “the lamb who will certainly lead to a slaughter of this board.” Trial Tr. at 1851:5-8. While Germain supported Charles-Pierre, he told his fellow Board members that “we can have better control of Sabrina than the Spanish girl,” a reference to another public-school community candidate who Germain considered “aggressive.” Supp. App‘x at 96-97. In addition, Charles “went along” with the decision of
Two other minority candidates, Maraluz Corado and Juan Pablo Ramirez, won with the support of the white community in 2013 and 2015, respectively. Both resigned from the Board shortly thereafter. The Board appointed Grossman to fill Corado‘s seat, choosing him over a minority candidate who had also applied to fill thе seat. In appointing Grossman, the Board did not interview him publicly, as was required by the District‘s protocol.
The Board appointed Charles-Pierre to fill Ramirez‘s seat after a state-appointed monitor pressed the Board to include a public-school parent. Charles-Pierre subsequently won an uncontested election in 2016. Grossman told Charles-Pierre that Yehuda Weissmandl had said, “The only reason [Charles-Pierre] is there and ran unopposed is because the board wants to do what [the state-appointed monitor] said.” NAACP v. E. Ramapo Cent. Sch. Dist., 462 F. Supp. 3d 368, 393 (S.D.N.Y. 2020) (alterations in original) (internal quotation marks omitted). Charles-Pierre was reminded repeatedly that her presence on the Board
In 2019, Ashley Leveille, a black public-school candidate, won a contested race. This occurred after Grossman sent a message to Horowitz in April 2018 regarding this very litigation, saying, “Spoke to David Butler today. He asked me to convey message that it would be goоd for the case to have a minority to run against Sabrina that the community could support.” Supp. App‘x at 128. David Butler is counsel for the District in the present litigation. Originally, Leveille ran unopposed. At that time, another candidate, Pastor Jose Cintron, was collecting
D. The Board‘s Favoritism Towards Private-School Interests
In 2014, a state-appointed monitor investigated the Board‘s activities and made the “[m]ost disturbing” finding that the “Board appears to favor the interests of private schools over public schools.” Supp. App‘x at 280. “Beginning in 2009[,] [the] Board made draconian spending cuts to public school programs and services in order to balance its budgets.” Supp. App‘x at 280. Meanwhile, “spending on programs benefitting private schools increased.” Supp. App‘x at 284. “No meaningful effort [was] made to distribute [the] pain of deep budget
The Board‘s actions support the monitor‘s findings of favoritism towards private schools. For example, the Board closed two public schools over minority opposition and made a sweetheart deal with a yeshiva to sell it one of the closed schools at a discounted price. In addition, the Board increased nonmandated private-school services, such as transportation, without restoring public schools’ budgets to pre-cut levels. In fact, from 2017 to 2019, the District paid yeshiva contractors to bus 1,172 more private-school students than were even registered to use private-school transportation services, creating $832,584 in unsubstantiated costs. The Board also made accommodations at Board meetings for Yiddish-speaking parents but did not do so for Spanish-speaking parents, resulting in New York State issuing a corrective action plan.
In a hallway during the meeting, the Board‘s attorney, without provocation, directed profanity and threatening language at a seventeen-year-old black student on the honor roll. The student was distressed by the incident, and Castor informed the Board of the occurrence and requested that the attorney be removed from his position. The Board, however, did not address the incident.
Similarly, the Board failed to act timely after the former District Superintendent, Joel Klein, made derogatory comments about immigrant students. Klein stated that the influx of “illegal” immigrants from “the southern border” would skew the District‘s graduation rates “because we know everyone
II. Procedural History
A. Commencement of the Lawsuit
Plaintiffs filed suit on November 16, 2017. Plaintiffs challenged the District‘s use of at-large voting for Board elections on the ground that it denies black and Latino citizens equal opportunity to participate in the political process and elect candidates of their choice, in violation of Section 2 of the Voting Rights Act,
1. Plaintiffs’ Expert: Dr. Matthew Barreto
Dr. Matthew A. Barreto, a professor of political science at the University of California, Los Angeles, served as Plaintiffs’ expert. Dr. Barreto, working with his colleague Dr. Loren Collingwood, sought “to examine whether evidence of racially polarized voting exists in elections for East Ramapo and to determine if black and Latino eligible voters have their electoral interest blocked by a combination of institutional arrangements and white bloc-voting.” Supp. App‘x at 351. Dr. Barreto concluded that there was “very strong evidence of racially polarized voting” in Board elections from 2013 to 2018; that minority-preferred candidates had not won a single contested election during that time; and that the electoral system in the District contains many features known to reduce minority voter participation and the opportunities to elect minority-preferred candidates. Supp. App‘x at 351-52. Dr. Barreto found that blacks and Latinos voted cohesively and that whites voted in a bloc in favor of the winning candidate in each election.
To determine how groups voted, Dr. Barreto and Dr. Collingwood used ecological inference (“EI“) models, which draw an inference of how groups vote
The aggregate ecological data input into King‘s EI or EI:RxC can come from a few source methodologies. Dr. Barreto used BISG. In broad strokes, BISG can provide a probability assessment of an individual‘s race based on the individual‘s surname and location. BISG does this by using Census Bureau data to determine what percentage of the national population with the individual‘s surname is black, white, Latino, Asian, or other. That national data is then combined with Census Bureau data pertaining to the individual‘s geographic “block” (which covers the geographic distance of roughly one city block) to see what percentage of the residents in that block area is black, white, Latino, Asian,
Take the following illustrative example. If we sought to determine the probability that an individual with the surname Smith living in New York City was black, white, Latino, Asian, or other, we would first look at the Census Bureau data to see what percentage of individuals in the United States with the surname Smith fall into one of these groups. We then look at our specific Smith‘s residential block in New York City to determine what percentage of residents on this block are black, white, Lаtino, Asian, or other. Cross-referencing these percentages can provide a probability estimate as to whether Smith is black, white, Latino, Asian, or other.
BISG allowed Dr. Barreto to compile and input actual voter data, as opposed to using CVAP data, which is data of all eligible voters.5 Dr. Barreto started with each voter‘s “file,” which contains the voter‘s name and address.
2. The District‘s Expert: Dr. John Alford
Dr. John Alford, a professor of political science at Rice University, served as the District‘s primary expert. Contrary to Dr. Barreto, Dr. Alford concluded that the evidence does not support a finding of minority voter cohesion or legally significant, racially polarized voting in the District. While Dr. Alford also used EI, he used CVAP for the source data. As mentioned above, CVAP data consists of “a precinct-level summary of the racial breakdown of the eligible voter population.” App‘x at 1073. CVAP data comes from the American Community Survey, which is completed by two percent of the population, for each of five
3. The District Court‘s Admissibility Determination
Before trial, the District moved to exclude Dr. Barreto‘s expert testimony. The district court issued an oral decision finding the testimony admissible and denying the motion. While the District made numerous arguments as to the reliability of BISG data, the district court repeatedly noted that these arguments went to the weight of the evidence as opposed to its admissibility. The district court further informed the parties that it would make its decision as to reliability following trial.
As to admissibility, the district court addressed each of the four factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). With respect to the first factor—whether the theory or technique could be tested—the district court concluded that it could. The District‘s primary argument was that Dr. Barreto had not turned over all the materials necessary to replicate his analysis. But the district court dismissed this argument, pointing out that “one of
With respect to the second factor—whether the theory or technique has been subject to peer review—the district court found that the use of BISG on precinct-level voter data had been peer reviewed. It cited to аn article authored by scholars Imai and Khanna, which proposed the use of BISG for voting rights litigation. With respect to the third factor—the error rate of the methodology—the district court found the methodology to be admissible given the strong concordance, from ninety to ninety-six percent, between self-reported race and BISG estimates.
With respect to the fourth factor—whether the methodology has been generally accepted by the academic or scientific community—the district court did not explicitly address the factor. The district court discussed academic articles involving the use of BISG; the District argued these articles did not
Ultimately, the district court concluded that there “are indications of scientific reliability supporting the opinions’ admissibility,” and “Plaintiffs have made a sufficient showing that I should hear the testimony and give it whatever weight I find it deserves.” App‘x at 893. Accordingly, the district court admitted Dr. Barreto‘s testimony and determined that it would revisit how much weight to give the testimony following the trial.
C. The Trial
A bench trial was held across the span of seventeen days. The witnesses at trial included the parties’ experts, Dr. Barreto and Dr. Alford; members of the public-school community; Plaintiffs; former and current Board members; and influential private-school community leaders involved in slating, such as Hersh Horowitz and Rabbi Oshry.6
Following the bench trial, the district court ruled in favor of Plaintiffs, holding that the at-large Board elections violated Section 2 and resulted in impermissible vote dilution for black and Latino residents.
In reaching this conclusion, the district court relied on the testimony of Dr. Barretо and discounted the testimony of Dr. Alford, primarily because it considered the analysis using BISG to be superior to that using CVAP. Accordingly, the district court concluded that, as Dr. Barreto found, the District‘s black and Latino communities were politically cohesive and that the white majority votes as a bloc in Board elections such that no minority-preferred candidate won a contested election since 2008.
The district court also found several Board members and witnesses associated with the private school community not credible. For instance, the district court concluded that Grossman “seems to have no compunction about compromising his legal obligations when it suits his purposes.” NAACP, 462 F. Supp. 3d at 396. Grossman was impeached at least three times. He also testified that he was not aware of any slating organization in the District, but numerous pieces of testimony indicated that he clearly participated in slating with
The district court also found the totality of the circumstances weighed firmly in Plaintiffs’ favor. In relevant part, while the district court found no evidence of officiаl discrimination in the District and no overt or subtle racial appeals in campaigning, it concluded that the racially polarized voting in the District was not explained by policy preferences. The district court also found that an exclusive slating process tightly controlled by a few white individuals existed in the District. The district court further concluded that while there had been some minority success in elections, the only minority candidates who had
As a result of Plaintiffs’ success in proving a Section 2 violation, the district court enjoined the District from holding any further elections under its at-large system, including the election that was scheduled to take place in June 2020. The District timely appealed.
DISCUSSION
“[The] resolution of the question of vote dilution is a fact intensive enterprise to be undertaken by the district court. And while we are required to see to the proper application of governing legal principles under a de novo standard of review, we are constrained to apply a clearly erroneous standard of review to the district court‘s ultimate findings of vote dilution, thereby preserving the benefit of the trial court‘s particular familiarity with the indigenous political reality without endangering the rule of law.” Goosby v. Town Bd., 180 F.3d 476, 492 (2d Cir. 1999)
The question is not whether we would reach the same findings from the same record. These District Court findings entailed primarily . . . factual work and therefore are reviewed only for clear error. Clear error review follows from a candid appraisal of the comparative advantages of trial courts and appellate courts. While we review transcripts for a living, they listen to witnesses for a living. While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living.
June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2141 (2020) (Roberts, C.J., concurring) (internal alterations, citations, and quotation marks omitted).
Section 2 of the Voting Rights Act provides in its entirety that:
(a) 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 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 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) 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) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives оf 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.
Congress amended the Voting Rights Act in 1982 to clarify that plaintiffs need not prove intent to discriminate.
The Supreme Court set forth the framework for analyzing claims of unlawful vote dilution in Thornburg v. Gingles, 478 U.S. 30. There, a majority of the Court held that a plaintiff must establish three “necessary preconditions” when bringing a Section 2 vote dilution claim: (1) “that [the minority group] is sufficiently large and geographically compact tо constitute a majority in a single member district“; (2) “that it is politically cohesive“; and (3) “that the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate running unopposed—usually to defeat the minority‘s preferred candidate.” Id. at 50-51.
If a plaintiff successfully shows the Gingles preconditions, the court must next assess whether the totality of the circumstances, based on the following factors, supports the plaintiff‘s claim:
the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State
or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.
Id. at 44-45 (citing 1982 Senate Report at 28-29). These factors (the “Senate Factors“) come from the Senate Judiciary Committee Report accompanying the passage of the 1982 amendment. Two other factors in the Senate Judiciary Committee Report (the “Additional Factоrs“) are also probative in some cases: (1) “evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group“; and (2) evidence “that the policy underlying the State‘s or the political subdivision‘s use of the contested practice or structure is tenuous.” Id. at 45.
This list of nine factors is “neither exclusive nor comprehensive.” Goosby, 180 F.3d at 492. “[N]o specified number of factors need be proved, and [] it is not necessary for a majority of the factors to favor one position or another.” Id. “[T]he ultimate conclusions about equality or inequality of opportunity were intended
In the present case, the District first argues that Section 2 requires a showing that racial motivations caused the election results at issue. Second, the District contends that Plaintiffs have failed to show the second and third Gingles preconditions, which includes a challenge to the district court‘s decision to admit and find reliable Dr. Barreto‘s expert analysis and testimony. Third, the District argues that Plaintiffs failed to demonstrate that a totality of the circumstances supports their claim because Senate Factors 2, 4, 7, and Additional Factor 9 weigh in favor of the District, not Plaintiffs. We address each argument in turn.
I. There is no requirement that a plaintiff must prove racial animus to establish a Section 2 vote-dilution claim.
Our Circuit considered an argument similar to that the District makes here in Goosby v. Town Board, 180 F.3d at 493. There, the defendant Town Board of the Town of Hempstead, New York (“the Town Board“) argued that political partisanship, and not race, explained the adverse election results. Id. Therefore, the Town Board claimed that the white bloc voting patterns in the elections could not be legally significant under the third Gingles precondition. Id. Our Circuit
The District, however, is not concerned with where in the analysis causation is analyzed. Instead, the District urges us to hold that a plaintiff bringing a Section 2 Voting Rights Act claim must prove, at some point, that racial animus caused the challenged election result. Appellants’ Br. at 37 (“There must be evidence that racial animus is a but-for cause of election results . . . .” (emphasis in original)).
That is not so. The District‘s argument rests on a fundamental misunderstanding of our precedent, Supreme Court precedent, and the framework for Section 2 claims. See Gingles, 478 U.S. at 47; id. at 100-01 (O‘Connor, J., concurring); Goosby, 180 F.3d at 491-92; 1982 Senate Report at 15-16, 27-28, 36-37. The only facts that must be proven without exception for a Section 2 claim are the Gingles preconditions; this is why they are termed
Goosby holds that the absence or existence of racial causation is a factor properly considered at the totality-of-the-circumstances step. Id. at 493 (“We think the best reading of the several opinions in Gingles, however, is one that treats causation as irrelevant in the inquiry into the three Gingles preconditions but relevant in the totality of circumstances inquiry.” (citation omitted)); see also Lewis v. Alamance County, N.C., 99 F.3d 600, 615 n.12 (4th Cir. 1996) (causation is relevant to the totality of the circumstances inquiry and irrelevant when considering the Gingles preconditions); Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995) (non-racial reasons for divergent voting patterns to be considered
For this reason, the District‘s reliance on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is not persuasive. The District focuses on Section 2‘s language prohibiting the denial or abridgement of the right to vote “on account of race or color” and argues that similar language in Title VII (which prohibits discrimination “because of” sex) was interpreted in Bostock to require but-for causation, see Bostock, 140 S. Ct. at 1739. As an initial point, the District fails to acknowledge that the Supreme Court has elsewhere interpreted “because of” language to not require proof of race-based intent in the Title VII context. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (recognizing that Title VII claims may be proved based on a disparate impact). Regardless, however, the Supreme Court has “not hesitated to give a different reading to the same language—whether appearing in separatе statutes or in separate provisions of the same statute—if there is strong evidence that Congress did not intend the language to be used uniformly.” Smith v. City of Jackson, 544 U.S. 228, 260-61 (2005) (O‘Connor, J., concurring in the judgment). Here, the unique context of the Voting Rights Act and Congress‘s clear desire not to require a showing of racial
In sum, our precedent and the legislative history make manifest that Section 2 claims do not require a showing of racial causation. Racial causation is one factor, of many, to be considered when assessing the totality of the circumstances. Goosby, 180 F.3d at 493. The existence of such causation may be sufficient for a Section 2 violation, but it is not necessary. See id. at 492, 493.
II. The second and third Gingles preconditions are met.
The District next contends that Plaintiffs failed to adduce sufficient evidence to satisfy the second and third Gingles preconditions of whether black and Latino residents voted cohesively and whether the white majority voted as a bloc to defeat minority-preferred candidates. Specifically, the District argues that the district court improperly admitted and relied on the testimony and findings of Dr. Barreto, Plaintiffs’ expert, establishing that black and Latino residents were politically cohesive and that white residents voted as a bloc.
We review the district court‘s decision to admit Dr. Barreto‘s expert testimony for abuse of discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
A. The district court did not abuse its discretion in admitting Dr. Bаrreto‘s testimony.
“In assessing reliability, the district court should consider the indicia of reliability identified in [Federal Rule of Evidence] 702, namely, (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case.” United States v.
Although the District argues that the BISG methodology fails to satisfy the Daubert test, the district court properly considered the Daubert factors and did not exceed its discretion by admitting Dr. Barreto‘s expert testimony.
1. Whether the methodology could be tested
Turning to the first Daubert factor, the District argues that Dr. Barreto‘s analysis “cannot be tested,” is “unprecedented,” and claims that he “destroyed his bespoke data sets before trial.” Appellant‘s Br. at 56-57. The district court rejected these arguments and correctly concluded that the BISG methodology Dr.
Although the District on appeal claims that Dr. Barreto failed to preserve “a spreadsheet whose rows identified voters by surname, address, and race probabilities” needed to replicate his analysis, Appellant‘s Br. at 55, the district court found that Dr. Barreto credibly testified that no such spreadsheet exists. Dr. Barreto explained that no “interim printout of BISG race estimates” existed because “[t]hose are just generated in the background of the [WRU] program, and as those BISG estimates get generated, they then just get plugged into the precincts and then the precinct analysis is done.” Supp. App‘x at 54. Dr. Barreto testified that he had “turned over everything that [he] ran and detailed how the script could be used to generate those race estimates.” Supp. App‘x at 54. Given
2. Whether the methodology had been peer-reviewed
Turning to the second Daubert factor, the district court properly concluded that the use of BISG to estimate voter race for precinct-level populations has been subjected to peer review. The district court supported this finding by referencing several peer-reviewed articles, see NAACP, 462 F. Supp. 3d at 383, including one written by Imai and Khanna that proposed the use of BISG for voting-rights litigation. As Dr. Barreto explained, the purpose of this article was “to see if [the BISG methodology] could improve our estimates of race and ethnicity at the precinct level.” Supp. App‘x at 49 (emphasis added); see also App‘x at 1372 (“We now estimate voter turnout by racial category and validate our estimates against actual turnout by race at the precinct and congressional district levels in Florida.” (emphasis added)). Imai and Khanna were successful and concluded that BISG “enables academic researchers and litigators to conduct more reliable ecological inference in states where registered voters are not asked to report their race.”
Other evidence, such as a footnote in an article co-authored by one of the District‘s experts, also supports the conclusion that BISG could “assign a race to registrants in a voter file where this quantity is not present and then aggregate these individuals by geographic unit such as a voting precinct.” App‘x at 1276 n.21 (emphasis added).9 Thus, the district court did not err in finding that the BISG methodology as used by Dr. Barreto had been subjected to peer review.
3. The error rate
Turning to the third Daubert factor, the District argues that the BISG methodology has a high potential rate of error. This is untrue. The district court discussed two studies finding that “self-reported race matched with ... BISG race estimate[s]” over 90% of the time: one study found that the probability was 95% for Hispanics and 93% for blacks and whites and the other found a range of 90-96%. NAACP, 462 F. Supp. 3d at 383. The District does not challenge this
The District fails to understand how the BISG methodology works. As the district court recognized, error rates are not necessary to calculate seрarately in the BISG analysis because BISG provides racial probabilities—that is, the likelihood that an individual is black, white, Latino, or other. As such, error rates are “built into the model.” App‘x at 969.10 While miscoding (i.e., improperly coding a white person as having a higher probability of being black, or vice versa) can occur, Dr. Barreto said that this had “no impact on the conclusions [he drew] at all” because he followed “the prescribed methodology of aggregating those probabilities down to a precinct.” Supp. App‘x at 56. In other words, Dr. Barreto was “not attempting to look at one individual on the file and say this person is black, white, or Hispanic. . . . So where there might be an error, the literature suggests that those things often cancel out and that‘s why you aggregate the probabilities and then your estimates are extremely accurate.”
4. Whether the methodology has been generally accepted by the scientific or academic community
Finally, while the use of BISG may be novel in voting-rights litigation, it certainly is not otherwise novel. The record is replete with studies validating the use of BISG, which the district court cited in finding the methodology reliable. The district court found that BISG “has been extensively validated by experts,” and that “[m]any respected scholars have used and validated BISG in the political science context and across a variety of disciplines.” NAACP, 462 F. Supp. 3d at 383; see also id. at 392 (“The method hаs been endorsed by respected social scientists in leading publications.“). Although the district court acknowledged “[t]his may be the first time that voter-preference estimates based on BISG have been admitted into evidence at a VRA trial,” id. at 392, the court thoughtfully considered how this case was uniquely suited for the use of BISG data based on the fact that the District was very diverse and highly segregated: “BISG is
In conclusion, because the district court has significant latitude in deciding how to determine reliability, see Restivo, 846 F.3d at 575-56, and because the district court conducted a thorough review of the Daubert factors, see NAACP, 462 F. Supp. 3d at 382-92; see also App‘x at 885-903 (district court‘s oral ruling on
B. The district court did not abuse its discretion by according more weight to Dr. Barreto‘s expert testimony than it did to Dr. Alford‘s expert testimony.
The district court ultimately relied on Dr. Barreto‘s testimony and discounted Dr. Alford‘s, finding that “given the unique characteristics of the District, BISG is a better data set than CVAP for use as an input for ecological inference, and Dr. Barreto therefore used the superior methodology.” NAACP, 462 F. Supp. 3d at 387. As discussed above, we review for abuse of discretion the weight a district court assigns to expert testimony. Pope, 687 F.3d at 581.
Here, the district court‘s ultimate decision to give greater weight to Dr. Barreto‘s testimony was not an abuse of discretion, and the factual findings underpinning its determination were not clearly erroneous. As the district court explained, it found the BISG data set more reliable than CVAP for three main reasons. NAACP, 462 F. Supp. 3d at 387-88.
First, CVAP data is less precise than BISG data because CVAP data comes from the American Community Survey which contains all eligible voters in a
Second, CVAP data is less precise than BISG data because of geographic misalignment between CVAP data and the data needed for analyzing voting patterns in a precinct. CVAP data provides racial proportions within census block groups, but census blocks are smaller geographically than precincts, see Brian Amos, Michael P. McDonald, Russell Watkins, When Boundaries Collide, 81 Pub. Opinion Q. 385, 387 (2017), thereby causing a misalignment. Because BISG data, however, uses information on actual voters in the precinct, the BISG methodology generates racial probabilities at the precinct level, making it superior for analyzing voting pаtterns in a precinct.
Finally, CVAP data is overinclusive. Because CVAP data reflects information on all eligible voters, rather than actual voters like BISG does, CVAP
Any one of these three reasons, which are all supported by sound factual findings drawn from sufficient record evidence, suffices to support the district court‘s conclusion that BISG is the superior data set, at least in this case. Therefore, the district court did not abuse its discretion by concluding Dr. Barreto‘s expert testimony and analysis was more reliable than that of Dr. Alford.
In sum, because Dr. Barreto‘s expert findings of political cohesion amongst black and Latino voters and of a white voting bloc are admissible and reliable and were afforded greater weight than those of Dr. Alford, the district court did not clearly err in concluding that Plaintiffs have adduced sufficient evidence to establish the second and third Gingles preconditions.
The District‘s final contention is that Plaintiffs failed to demonstrate that a totality of the circumstances supports their vote-dilution claim. On appeal, the District does not challenge the district court‘s findings as to Senate Factors 1, 3, 5, 6, and Additional Factor 8. Those findings, in any event, are fully supported in the record. The District challenges only the district court‘s findings that Senate Factors 2, 4, 7, and Additional Factor 9 weigh in Plaintiffs’ favor.
A. Senate Factor 2
Senate Factor 2 requires courts to consider “the extent to which voting in the elections of the State or political subdivisions is racially polarized.” Goosby, 180 F.3d at 491 (quoting Gingles, 478 U.S. at 44-45). It is under this factor that racial causation or alternative explanations, such as partisanship, are properly considered. Id. at 493.
The District argues, as it did before the district court, that the primary driver of election results is not race, but rather, the public-private school divide. The District claims that a majority of voters prefer policies, such as lower
The district court did not clearly err when it found that the Board election results were caused by race and not policy preferences. There is a near-perfect correlation between race and schooltype. While correlation is not necessarily causation, the circumstances indicate that schooltype is a proxy for race. Those policies favorable to the private-school community come at the cost of the public-school community. This is apparent from facts in the record, including the Board‘s closure of two public schools over minority opposition; the Board‘s subsequent attempt to sell one of the school‘s buildings to a yeshiva at a deep discount; and the increase in nonmandated private-school transportation while public school cuts werе left unrestored. It defies reality to say that those who vote for private-school-friendly policies would be ignorant that the brunt of these policies is borne by minority children. And a finding of vote dilution “depends upon a searching practical evaluation of the past and present reality.” Gingles, 478 U.S. at 45 (emphasis added) (internal quotation marks and citation omitted). Given this evidence, the public-school community “can be viewed as a vehicle
In addition, as the district court found, there is scant—if any—evidence that Board candidates campaigned on specific policies, a fact that seriously undermines the District‘s policy-preferences argument. There is no evidence in the record to suggest that private-school candidates campaigned on specific pro-private-school policies, to the extent that they campaigned at all, and there is no evidence that public-school candidates advocated for raising taxes or cutting private-school services. The District does not dispute the absence of this evidence and instead argues that campaigning on particular policies was unnecessary because the voters knew what policies the private-school candidates supported. Even if the voters assumed what the private-school candidates stood for, the leaders who slated these candidates did not ensure that candidates aligned with their policy views. Multiple candidates slated by the Organization testified that they were not asked about their policy positions; the Organization essentially selects election winners by virtue of adding them to the private-school slate. The fact that candidates were not asked about policy positions casts serious doubt on the argument that policy preferences drove election results.
The fourth Senate Factor assesses, “if there is a candidate slating process, whether the members of the minority group have been denied access to that process.” Gingles, 478 U.S. at 37NAACP, 462 F. Supp. 3d at 406.
We first take up the District‘s argument that the lack of minority input and the failure to slate minority-preferred candidates are irrelevant facts. In light of the governing precedent, this argument falls flat. Our Circuit made clear in Goosby that the focus is properly on whether minority-preferred, not simply minority, candidates have been slated. See 180 F.3d at 496 (stressing that the failure to slate black candidates meant that “blacks simply are unable to have any preferred candidate elected to the Town Board” (emphasis added)).
Additionally, Supreme Court precedent indicates that consideration of the lack of minority input is both appropriate and important. In White v. Regester, 412 U.S. 755 (1973), the Court focused on evidence showing that black residents were
Here, the largely uncontested facts that the district court relied on, such as the failure to conduct open calls for candidates, the inside connections necessary to be slated, the vetting process, and the use of only “safe” or politically or legally expedient minority candidates, all support the finding that minority candidates and residents were denied meaningful access to the slating process. These facts underscore the significant control of the white private-school leaders over the slating process, which worked to exclude minority interests and viewpoints from the slate and ultimately the Board.
Bernard Charles‘s situation does not alter this conclusion. Although Charles was accepted by the Organization after being vetted, Charles testified
As for the District‘s claim that policy preferences explain why minority-preferred candidates were not slated, we reject this argument for the same reasons given with respect to Senate Factor 2. The candidates approved for the private-school slate, such as Charles, were not asked about any specific policy platforms before being slated, and there is no evidence that public-school
For these reasons, the district court did not err in concluding that the Organization excludes minority-preferred candidates and minority voices from the slating process. Senate Factor 4 weighs in favor of Plaintiffs.
C. Senate Factor 7
Senate Factor 7 considers “the extent to which members of the minority group have been elected to public office in the jurisdiction.” Gingles, 478 U.S. at 37. We focus primarily on the elected office at issue. See Goosby, 180 F.3d at 497. We consider not only whether minority candidates have been elected, but whether minority residents can “elect their preferred candidates.” Id. at 495-97 (emphases added) (discounting the placement of a black attorney on Town Board and minority success in exogenous elections because the candidates were not preferred by black residents). Similarly, “the election of a few minority candidates does not necessarily foreclose the possibility of dilution of the black vote, in violation of this section,” because “majority citizens might evade the section ... by manipulating the election of a ‘safe’ minority candidate.” 1982 Senate Report at 29 n.115 (internal quotation marks and citation omitted). The
The district court concluded that this factor weighs in favor of Plaintiffs because, although minority candidates have won some contested races, between 2008 and 2018, no minority-preferred candidate won a contested election. The court held that “every candidate of color who won was either perceived as ‘safe’ by the white slating [O]rganization or affected by special circumstances.” NAACP, 462 F. Supp. 3d at 409.
The District challenges this conclusion on two grounds. First, the District argues that the district court erroneously focused on whether minority-preferred candidates, as opposed to minority candidates, have succeeded. Second, it argues that the district court misapplied the safe-candidate doctrine. We reject both grounds.
The District‘s belief that the subject of our inquiry is minority candidates, not minority-preferred candidates, is wrong as a matter of law. “Were we to hold
The district court also did not err in finding that the successful minority candidates have been perceived as “safe” or otherwise resulted from unusual circumstances. The district court primarily discussed four candidates in its analysis: Charles, Germain, Charles-Pierre, and Leveille.
Charles and Germain, two black men who won four of six contested elections, were heavily vetted and slated by the Organization. They were not minority-preferred candidates. Once elected, they aligned with the white majority and took positions counter to minority interests. For instance, Charles
Charles-Pierre was selected after Board members recognized that they needed to follow the state-imposed monitor‘s instructions of having аt least one public-school parent on the Board. After her election, Grossman constantly reminded Charles-Pierre that she could be removed at the Orthodox community‘s will, and he believed she had “zero control or influence.” Supp. App‘x at 169. Because this evidence indicates that Charles-Pierre was selected to assuage the state monitor, it was appropriate to discount her election as well. See Zimmer, 485 F.2d at 1307 (explaining that minority success attributable to
The latest successful minority candidate, Leveille, was elected in 2019. The district court found that her election was “engineered,” NAACP, 462 F. Supp. 3d at 406, a finding supported by the record. In 2018, counsel for the District suggested that “it would be good for th[is] case to have a minority to run against [Charles-Pierre] that the community could support.” Supp. App‘x at 128.15 Originally, Leveille and another minority candidate, Pastor Cintron, were running unopposed for different seats. When Yehuda Weissmandl decided to run again for the seat Cintron was running for, Cintron switched to run against Leveille. The Organization purported to support Cintron. Cintron told Leveille that the rabbis promised him the election if he ran against Leveille, and both he and Leveille believed he would win. But because voter turnout was unusually
The District does not challenge these facts in arguing that the district court erred. Instead, it argues that the district court misapplied the safe-candidate doctrine, which it says “allows courts to discount suspicious elections of a minority сandidate after a Section 2 case has been filed.” Appellant‘s Br. at 42. But this assertion has no basis in the case law. Zimmer, the precedent upon which Congress and the Supreme Court relied for the safe-candidate doctrine, contains no such requirement. Zimmer states that minority success may be discounted when it is meant to “thwart successful challenges to electoral schemes on dilution grounds” without any requirement that such efforts postdate litigation. See Zimmer, 485 F.2d at 1307.
For these reasons, the district court did not err in focusing on minority-preferred candidates’ success and in finding that the successful minority candidates were perceived as safe. Thus, Senate Factor 7 weighs in favor of Plaintiffs.
D. Additional Factor 9
The District does not challenge the district court‘s credibility findings or reliance on Leveille‘s election, facts which in any event are substantiated in the record. Nor does the District challenge the factual finding that Board members were affirmatively misled about settlement negotiations. The District‘s only argument as to Additional Factor 9 is that the district court improperly relied on out-of-court settlement negotiations to reach speculative presumptions about Board members’ motivations.
There was nothing improper about the district court‘s reliance on the Board members’ actions in failing to provide minority Board members with accurate settlement information. Evidence pertaining to settlement negotiations may be used when “offered for a purpose other than to prove the validity, invalidity, or amount of a disputed claim.” Fed. R. Evid. 408 advisory committee‘s note to 2006 amendment. Accordingly, evidence of settlement negotiations may be used to demonstrate bad faith. Id. (citing Athey v. Farmer‘s Ins. Exch., 234 F.3d 357, 362 (8th Cir. 2000)). And bad faith on the District‘s part is probative of whether the District‘s reasons for maintaining at-large voting are
CONCLUSION
For the foregoing reasons, the order of the district court is affirmed. As mentioned above, the District‘s motion for a stay of the district court‘s injunction is dismissed as moot.