Lead Opinion
Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Chief Judge WILKINSON joined.
Chief Judge WILKINSON wrote a concurring opinion. Judge MICHAEL wrote a dissenting opinion.
OPINION
Appellants Ernestine and Sylvester Lewis, black voters of appellee Alamance County, North Carolina, challenged the County’s at-large method of electing county commissioners, arguing that black citizens have been denied an equal opportunity to elect representatives of their choice through vote dilution, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The district court granted summary judgment for the County, holding that plaintiffs failed to demonstrate that minority-preferred candidates are usually defeated by white bloc voting, as required by Thornburg v. Gingles,
I.
Alamance County is governed by a Board of Commissioners, the five members of which are elected, in at-large partisan.elections, to four-year staggered terms. Voters are allowed to cast votes for as many candidates as there are vacant seats, but they cannot cast more than one vote for any one candidate. Since the 1965 passage of the Voting Rights Act, black candidates have run for seats on the Board in eight of fourteen election cycles. Only one black candidate, Jack O’Kelley, has been elected, although he was elected three times, in 1974 (after first being appointed to fill a vacancy), 1976, and 1980. Moreover, white candidates supported by a majority (often substantial) of black voters, either in the primary election, the general election, or both, have repeatedly won election.
Section 2(a) of the Voting Rights Act of 1965 prohibits a State or its political subdivisions from imposing any voting practice “in a
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.
42 U.S.C. § 1973(b) (emphasis added).
In Thornburg v. Gingles,
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district_
Second, the minority group must be able to show that it is politically cohesive....
Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.
In an effort to meet Gingles ’ second and third preconditions, plaintiffs’ expert in this case conducted bivariate ecological regression analyses on the eleven primary and general elections in which a black candidate was on the ballot. Based on those regression analyses, the expert estimated the level of support among black voters for each candidate.
Plaintiffs advance on appeal four arguments as to why the district court’s conclusion was in error. We reject plaintiffs’ claim that those white candidates who received overwhelming support from black voters in general elections, assertedly only because they were Democrats, should not have been considered as black-preferred candidates by the district court. And we also reject plaintiffs’ argument that the district court erred in not discounting the repeated success of one of the minority-preferred candidates because of the alleged effects of incumbency. We agree with plaintiffs, however, that the district court improperly aggregated primary and general election results, and also that it faded to conduct an individualized determination into whether some candidates should be treated as black-preferred candidates. Additionally, we conclude that the district court erred in a third respect, by basing its decision exclusively on data from elections in which a black candidate was on the ballot, rather than on a more representative sample of elections. By limiting its consideration to elections in which a candidate of the minority’s race was on the ballot, the district court may have failed to include as black-preferred candidates some white candidates who may very well have been the representatives of choice of the black community.
II.
Turning first to what we perceive to be the overarching error, we believe that, by considering only elections in which a black candidate was on the ballot, the district court failed to analyze a sufficient number of elections to enable it to determine whether white bloc voting usually operates to defeat minority-preferred candidates. As noted, the district court considered only election data from eleven of the twenty-eight primary and general elections held since passage of the Voting Bights Act — six of fourteen primary elections and only five of fourteen general elections. Although we recognize that this election data was the only data proffered
Although the district court erred in this regard, we do not reverse its judgment because of this error, for it is the plaintiffs’ burden to establish a violation of Section 2, and therefore their burden to proffer data from a sufficient number of elections to enable the district court to determine whether white bloc voting usually defeats minority-preferred candidates. Where, as here, plaintiffs fail to carry their burden to proffer sufficient evidence, and the district court correctly concludes on the basis of the proffered evidence that no Section 2 violation has been established, then the plaintiffs cannot be heard to complain.
A
Section 2 of the Voting Rights Act prohibits the use of voting procedures, such as at-large elections, that afford minority voters less opportunity than other members of the electorate “to elect representatives of their choice,” 42 U.S.C. § 1973(b) (emphasis added), or, in the language of Gingles, that afford minority voters less opportunity to elect minority-preferred, candidates. Gingles,
Our understanding of Section 2 that the minority-preferred candidate may be either a minority or a non-minority, and therefore that both elections in which the candidates are of the same race and elections in which the candidates are of different races must be considered in order to determine whether white bloc voting usually defeats the minority-preferred candidate, is confirmed within Section 2 itself, by the express proviso that “[t]he extent to which members of a protected class have been elected to office” is but “one circumstance which may be considered” in assessing whether minority voters have been denied an equal opportunity “to participate in the political process and to elect representatives of their choice.” See 42 U.S.C. § 1973(b); see also id. (“[Njothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population”). Were this proviso, coupled with the statute’s plain reference to the minority’s representatives “of choice,” not enough, the plurality in Gingles itself, as noted, expressly stated that “only the race of the voter, not the race of the candidate, is relevant” in determining whether a plaintiff has met Gingles ’ preconditions, Gingles,
Although at times they suggest otherwise, see Appellant’s Br. at 30 (“Under the law, black voters must have an opportunity not just to elect candidates of their choice, but to elect black candidates of their choice”), plaintiffs no doubt agree with our interpretation of Section 2. They themselves conducted a bivariate regression analysis on the eleven elections in which a black candidate was on the ballot precisely in order to determine whether the black candidate or the white candidate was the minority-preferred candidate in those elections. Had they not believed, as we do, that a white candidate may be the minority-preferred candidate, then they would have advanced their claim solely on the basis that only one black candidate had actually won in these elections. To conduct a regression analysis with respect to a black-white election, ostensibly in part to identify the black-preferred candidate, makes sense only if it is possible for the preferred candidate not to be the black candidate.
We recognize that the plaintiffs’ expert in Gingles had only analyzed elections in which a black candidate had appeared on the ballot, see Gingles,
Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites.... Indeed, the facts of this case illustrate that tendency — blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the “black candidate” and to the preferred representative of white voters as the “white candidate." Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a § 2 inquiry. Under § 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important.
Id. at 68,
Where the results of not even a majority, much less a substantial majority, of elections are considered, it is simply not possible for the district court to determine whether minority-preferred candidates are “usually” defeated. We therefore hold that, in assessing whether “the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate,” a district court must consider, at a minimum, a representative cross-section of elections, and not merely those in which a minority candidate appeared on the ballot, at least where elections in which minorities were on the ballot do not constitute a substantial majority of the total number of elections. Cf. Niagara Falls,
Our sister circuits interpret section 2 and the third Gingles element as do we. As the Tenth Circuit recognized in affirming a district court’s finding that plaintiffs’ evidence was “inadequate” to measure the success of minority-preferred candidates because it did not consider elections in which only whites were on the ballot:
[A] per se rule against examining races that have only white candidates ... would be clearly contrary to the [Gingles] plurality opinion, which views the race of the candidates as irrelevant in voting analysis [and] ... is questionable in light of the language of § 2, which seeks to give minorities equal opportunity to “elect representatives of their choice.”
Sanchez v. Bond,
The Fifth Circuit in Citizens for a Better Gretna v. City of Gretna, La.,
In short, though some courts have held that black-white elections are more probative than white-white elections, see, e.g., Uno,
B.
By failing to consider evidence of elections in which no minority candidate appeared on the ballot, the district court, insofar as can be discerned, could have understated (or overstated) the extent to which minority-preferred candidates were usually defeated in Alamance County.
For example, the record includes election data from the 1974 general election because O’Kelley, a black candidate, was on the ballot seeking election to the unexpired term of the seat to which he had been appointed following a vacancy. But it does not include election data from the 1974 primary election, notwithstanding that the two Democrats elected in the primary for the two full-term seats, both of whom were white, each received 99 + % of the black vote in the general election. Although it may well be that either or both of these candidates were the minority-preferred candidates in the 1974 primary, and therefore would have counted as minority-preferred electoral successes (both did receive a majority of black support in other primary elections — Long received 84% in 1972, and Newlin 60%, in 1978), it could be that neither was a minority-preferred candidate in the 1974 primary, in which case there were uncounted minority-preferred defeats.
Similarly, the record does not include election results from the 1972 or 1978 general elections, although Long was successful in the 1972 primary with 84% of the black vote (second only to the 98% received by Morris, a black candidate), and Newlin was successful in the 1978 primary with 60% of the black vote (second only to the 78% received by black candidate Harris). Based upon the record data from other general elections, it
And there are no election returns, general or primary, for the 1966, 1968, 1970, 1982, 1988, or 1990 election cycles. The district court therefore likewise could not have known who were the representatives of choice of black voters in those elections, or whether or not they were defeated.
In making these observations, we do not suggest that the district court need analyze every election since 1965 in order to determine whether the minority-preferred candidates are usually defeated. We leave to another day the question of precisely how many elections must be considered in order for a district court’s conclusions to be adequately supported. Cf. Gingles,
III.
Plaintiffs challenge the methodology employed by the district court on numerous other grounds. Specifically, plaintiffs urge: 1) that the district court improperly viewed as minority-preferred candidates some candidates who finished second and third among black voters; 2) that it improperly treated candidates in the general election as black-preferred when those candidates- assertedly received a majority of black votes only because they were Democrats; 3) that it improperly viewed success in the primary election as electoral success; and 4) that it failed to discount the weight attributed to the one repeatedly successful black candidate due to the effects of incumbency. We address each of these challenges in turn, finding no reversible error by the district court.
A.
Plaintiffs first contend that, contrary to our holding in Collins v. City of Norfolk, Va.,
Because Alamance County’s Board of Commissioners is elected from a single, multi-member district, citizens are permitted to vote for either two or three candidates in both the primary and general elections, depending on the number of seats up for election in any given year. Consequently, the district court in most cases treated the top two or three vote-recipients among black voters as the black-preferred candidates, as did plaintiffs’ expert. If the first choice of black voters did not win an election, however, the district court excluded from consideration even as possible minority-preferred candidates those candidates who placed second or third among black voters behind the losing black-preferred candidate, in attempted reliance on our opinion in Collins II,
[t]he mere election of a candidate who appears to have received votes from more than fifty percent of minority ballots does not count as a minority electoral success, when each ballot may contain votes for more than one candidate. In such a situation, if there were other candidates, preferred by a significantly higher percentage of the minority community, who were defeated in the same election, then it cannot be fairly said that the minority community has successfully elected representatives of its choice. Each such situation must be reviewed individually to determine whether the elected candidates can be fairly considered as representatives of the minority community. The presumption must be that they cannot if some other candidate has received significantly more minority votes.
Id. at 1238 (emphases added) (quoting Collins I,
Collins II, in other words, requires that a two-step inquiry be undertaken by the court in order to determine whether candidates who receive less support from black voters than an unsuccessful first choice may nevertheless be deemed black-preferred candidates in multi-seat elections. First, if the unsuccessful candidate who was the first choice among minority voters did not receive a “significantly higher percentage” of the minority community’s support than did other candidates who also received a majority among minority voters, Collins II,
In this case, black candidate Morris, for example, received 98% of the black vote in the 1972 Democratic primary election, and white candidates Long, Fleming, and Horne
Morris’ support was significantly higher than the 29% received by Fleming. In such a circumstance, as in the case directly addressed by Collins II,
The district court also declined to treat successful white candidate Newlin as a black-preferred candidate in the 1978 Democratic primary, merely because Harris, the first choice of black voters, lost. There were two seats up for election that year, and Harris and Newlin were the top two vote-recipients among black voters, by far, with an estimated 78% and 60% of the black vote, respectively. Significantly, the third place finisher among black voters was a black candidate, who received only 12% of the black vote. Even were we to conclude that Harris’ support among black voters was “significantly higher” than- Newlin’s, an individualized determination would still have been required before declining to treat Newlin as a black-preferred candidate. Again, we held in Collins II only that successful candidates who receive more than 50% of the black vote should not automatically be viewed as a black-preferred candidate if they receive significantly less support from black voters than another, losing candidate, not that they should never be treated as black-preferred.
2.
While the district court erred in automatically excluding, as possible minority-preferred candidates, the second- and third-place finishers behind an unsuccessful first choice among black voters, we do not believe the court erred, as plaintiffs contend, in not conducting an individualized determination with respect to every candidate who finished second or third among black voters behind successful black-preferred candidates, before treating them as black-preferred. Plaintiffs object to the fact that the district court considered some of the second and/or third place finishers as black-preferred in the three primary elections in which the first choice of black voters was successful — 1976, 1980, and 1984. In the 1976 primary, for example, the district court treated both successful black candidate O’Kelley, who won 99 + % of the black vote, and successful white candidate Fleming, who finished second among black voters with 47% of the vote, as black-preferred. The district court did not, however, consider successful white candidate Paris as black-preferred because he received only 16% of the black vote, even though that percentage placed him in a tie for third
Plaintiffs object to the district court’s treatment of these second and third place finishers as black-preferred candidates on the ground that, “[i]n most of these elections, ... the black community fielded only one [black] candidate,” Appellant’s Br. at 20. In advancing this argument, plaintiffs rely not on the holding in Collins II, but on a single passage from that case in which we said the following:
If black voters exercised their right to cast all of their allotted votes, they ran the risk that their second and third choices would be declared their preferred candidates. Only by single-shot voting — withholding all votes save for their first choice, and forfeiting the opportunity to east all votes allotted to each voter — could the minority be assured that its second and third choices would not be declared its preferred candidates. In contrast, under the at-large system, the white voters can freely east all votes allotted to them without suffering the penalty imposed on the minority voters.
We believe that it would be unwise to extend the holding in Collins II to instances in which the first choice among black voters was successful. Where the first choice of black voters was successful, there is simply no reason to presume that the minority community has been unsuccessful in electing representatives of its choice. Accordingly, we now hold that, in multi-seat elections in which voters are permitted to cast as many votes as there are seats, at the very least any candidate who receives a majority of the minority vote and who finishes behind a successful candidate who was the first choice among the minority voters is automatically to be deemed a black-preferred candidate, just like the successful first choice. Cf. Niagara Falls,
The district court appears generally to have conducted its analysis in the manner that we have described as appropriate. It considered as black-preferred candidates only those candidates who received substantial support from black voters;
B.
Plaintiffs next object to the fact that the district court treated, as black-preferred, Democratic candidates who received 99 + % of the black vote in general elections. Plaintiffs contend that to consider these candi
First, as we discuss infra, acceptance of this argument would require that we carry forward the candidates’ black-preferred status from the primary to the general election, when the Voting Rights Act is clearly concerned with whether blacks have an equal opportunity to elect the candidate of their choice in both nominations and elections. See 42 U.S.C. § 1973(b) (“A violation ... is established if ... it is shown that the political processes leading to nomination or election ... are not equally open to participation by [citizens on account of race or color].” (emphasis added)); cf. NAACP v. City of Columbia, S.C.,
Second, under plaintiffs’ theory, the district court would be required, contrary to Gingles, to assess the cause of the minority community’s support of the candidate in determining whether the minority-preferred candidates usually are defeated by white bloc voting. See infra note 12. In Gingles, defendants argued that the plaintiffs were required to use multiple regression analysis, rather than bivariate regression analysis, to ensure that only those defeats of black-preferred candidates that were actually caused by race, and not some other reason such as party affiliation, were considered defeats of black-preferred candidates for purposes of a vote dilution claim. The Gingles plurality explicitly rejected such a requirement in the context of assessing the second and third Gingles preconditions.
We therefore hold that the district court properly deemed all general election candidates who received 99 + % of the black community’s vote as black-preferred, without reference to the underlying primary election.
C.
Plaintiffs next contend that the district court erred in not distinguishing between, and separately analyzing, primaries and general elections, in determining whether black-preferred candidates were “usually” successful. With this contention, we agree.
Section 2(b) of the Voting Rights Act provides that a violation occurs if “the political processes leading to nomination or election ... are not equally open” to all voters. 42 U.S.C. § 1973(b) (emphasis added); see also 42 U.S.C. § 1973i(c)(1) (“The terms Vote’ or ‘voting’ shall include all action necessary to make a vote effective in any primary, special, or general election_”). The statute thus requires that minorities have an equal opportunity to participate not only in primary elections but also in general elections. From this, we believe it follows that the results in these two phases of the single election cycle must be separately considered and analyzed, and, in recognition of this statutory requirement, that Gingles ’ third precondition can be satisfied by proof that, in either the primary or the general election, the minority-preferred candidate is usually defeated by white bloc voting. Not to separately consider primary and general elections risks masking regular defeat in one of these phases with repeated successes in the other, and thereby misperceiving a process that is palpably in violation of the Voting Rights Act, as not violative of the Act at all.
By way of illustration, an at-large voting method under which the candidates preferred by the minority community are always successful in the primary election but, because of white bloc voting, are always defeated in the general election (or one in which minority-preferred candidates are essentially barred from the general election ballot because of racial-bloc voting in the primary, see White v. Regester,
The Supreme Court has held, in an analogous context, that courts must not rely on “aggregated” data “when considering several separate vote dilution challenges in a single case.” See Gingles,
D.
Plaintiffs’ final claim is that the district court erred in not discounting the weight attributed to O’Kelley’s electoral successes because he was an incumbent. See Gingles,
# * * * * *
The purpose of the Voting Rights Act is to ensure to minority citizens an equal opportunity to participate in the democratic processes and to elect candidates of their choice, candidates whom they believe will best represent their political interests. The Act’s purpose is not to ensure the election of candidates of the minority’s race, nor is it to ensure the election of candidates of any particular political party. In guaranteeing that minorities will be afforded an equal opportunity to participate in the political processes and to elect representatives of “their choice,” the Act at once embodies the presumption and embraces the ideal that, in this Country, a candidate of any color can represent citizens of all colors, that a candidate of either party can represent the interests of all parties. Few presumptions are more fundamental to our system of representative democracy or more revealing of our commitment to equality and individual autonomy.
At bottom, through their collective arguments, plaintiffs urge a reading of the Supreme Court’s decision in Gingles, and therefore an interpretation of Section 2, that would be “at war” with this fundamental presumption, this ideal, which we believe not only informed Congress’ enactment of Section 2, but underlay the Court’s* interpreta
The judgment of the district court is affirmed.
AFFIRMED.
Notes
. The census data of 1990 shows that Alamance County’s population is 79.8% white, 19.2% black. Voting age population is 81.2% white, 18.0% black. As of April 1994, the population of registered voters was 84.1% white, 15.5% black. While 59% of all registered voters in the county are Democrats, blacks in Alamance County are overwhelmingly Democrats (94%). For this latter reason, when we refer to primary elections, we are referring only to the Democratic primaries.
. The full statute provides as follows:
(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 1973b(f)(2) of this title, as provided 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 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.
. In the face of the County’s intended challenge to the use of such statistical evidence, we again caution against overreliance on bivariate ecological regression analysis in the estimation of voter preferences for purposes of a vote dilution claim. See, e.g., Smith v. Brunswick County, Va., Bd. of Supervisors,
. We do not imply that the third Gingles element is met if plaintiffs merely show that white bloc voting defeats the minority-preferred candidate more often than not. The terms used by the Gingles Court are “usually," “normally,” and "generally.”
. Although Justice White, who joined the remainder of Justice Brennan’s opinion, did not join this portion of the opinion, neither Justice White nor Justice O’Connor, who concurred only in the judgment, as much as hinted that only elections in which a black candidate was on the ballot need be considered; they each merely argued that Justice Brennan’s conclusion that the race of the candidate is always irrelevant was in conflict with Whitcomb v. Chavis,
. Although the First Circuit referred in this passage to "minority candidates,” not to "minority-preferred candidates,” it is evident from its citation to Gingles at p. 56,
. See also Smith v. Clinton,
. We do not decide here the extent to which, if any, white-white elections are deserving of less evidentiary weight than elections in which a minority candidate is on the ballot. It seems to us, however, that if white-white elections are entitled to less weight, then they are so only on the question of whether racial polarization exists, not on the question of whether, because of that polarization, minority-preferred candidates are usually defeated. Cf. Harvell,
. Three other white candidates received 9%, 8% and 5% of the black vote, respectively.
. Our holding in Collins II actually does not address this circumstance directly, since Fleming received less than majority support among black voters; Collins II addressed only the circumstance where a candidate receives more than 50% of the minority community's vote. Nevertheless, we do not believe that the mere failure to achieve a threshold of 50% in a multi-candidate election necessarily means that a candidate cannot be viewed as a black-preferred candidate. If the election had been held only among black voters, a hypothetical inquiry given some credence by the Gingles plurality, see
. The level of support that may properly be deemed "substantial” will vaiy, of course, depending on the number of candidates on the ballot and the number of seats to be filled.
. Although only a four-Member plurality joined Section III(C) of the opinion, in which the rejection of defendant's multiple regression claim is found, Section III(C) is lengthy, and the dispute that cost Justice White's vote on the section was not over the "cause” issue.
Although most of our sister circuits have by now adopted the position that an inquiry into cause is relevant, see, e.g., LULAC,
Of course, whether causation is relevant to the second and third precondition inquiries or to the totality of circumstances inquiry, it would be just as relevant for determining whether particular minority-preferred candidates lose for some reason other than racial polarization, as it would be for determining, as plaintiffs urge, whether particular minority-preferred candidates win merely because of party affiliation.
Concurrence Opinion
concurring:
I agree that the judgment of the district court should be affirmed, and I concur in Judge Luttig’s fine opinion. I write separately, however, to express my concern about the way in which my dissenting colleague interprets Thornburg v. Gingles,
The dissent’s intensely race-conscious approach to that inquiry seems to me at odds with three recent Supreme Court cases whieh have held race-based redistrieting schemes to be in violation of the Constitution. See Bush v. Vera, — U.S.-,
By reversing the district court, the dissent would lead us not only to a relentlessly race-conscious trial, but also toward the restructuring of Alamance County electoral districts along racial lines. This is just what the Supreme Court does not allow. Bush, Shaw, and Miller did not overrule Gingles, but they surely set limits on the ability of federal courts to cast voters as members of racial blocs rather than as individuals. In order to identify the “minority-preferred” candidate, we have been forced to wade into a bog of slippery assumptions and statistics. In this case alone, we have been asked to assault such .impenetrable questions as: May a candidate who receives more than 50% of the minority vote, but who finishes behind a successful minority-preferred candidate, also be considered preferred by the minority? If the candidate who is most preferred by the minority is unsuccessful, may other successful candidates who received substantial minority support be considered as preferred by the minority? Should votes for candidates cast by minority voters in general elections be
Where will this road of race-consciousness end? As the above questions demonstrate, the Gingles inquiry is complicated enough in a biracial community. Is the inquiry to become ever more refined and ever more complex as America becomes more multicultural? How do we identify minority-preferred candidates under Gingles when multiple minorities are present? How shall we determine whether a candidate supported to a greater or lesser extent by different minorities is the preferred candidate of a single minority? To what extent are the electoral interests of different racial minorities to be aggregated or kept separate? How broadly or narrowly are the categories of racial minorities to be defined? At some point, this race-based calculus will demonstrate only how far the law has set us on the path to disunion.
Entering this maze of racially laden inquiries reflects a view of American political life as a competition between highly segregated racial forces. Indeed, this is precisely the mistake of the dissent. The dissent’s interpretation of Gingles will not allow courts to accept the votes of minority individuals as expressing their personal preferences. Instead, the dissent mandates that we pass the votes of minority individuals under a microscope in order to determine the racial preferences expressed by those voters.
Under the dissent’s view, all electoral behavior is reducible to race. Thus, the dissent suggests that because voters prefer candidates of their own race, elections in which no minority was a candidate need not be counted. The dissent further suggests that minority votes for a candidate in a general election do not express a preference by the minority unless that candidate was also preferred by the minority in the primary election; that a successful candidate who received more than 50% of the minority vote, but finished behind a successful candidate who received a higher degree of minority support, should not automatically be considered to be preferred by the minority; and that certain electoral successes of incumbent, minority-preferred candidates should not count towards the success of minority individuals in electing their preferred candidate.
And these are but a few of the racially-driven factors that the dissent would fasten upon the judicial review of American elections. In its recent cases, the Supreme Court has made it clear that there is no room in the Constitution for congressional redistricting schemes predicated predominantly on the basis of race. See Bush v. Vera, — U.S. -,
My good colleague suggests in dissent that the concurring opinion fails to follow the law — “even when it is a law that we might think unwise or unnecessary in today's world.” Of course, the
Dissenting Opinion
dissenting:
Since 1980 no minority candidate has been elected to Alamance County’s five-member Board of Commissioners. Indeed, since the Voting Rights Act was first passed in 1965, only one minority candidate has ever been elected to the Board of Commissioners. That candidate was initially appointed (not elected), and when he was first elected after his appointment, he ran in a special election that was not subject to Alamance County’s at-large voting system. In light of this history, I believe that members of the black community in Alamance County would be truly surprised to learn that they enjoy the same opportunity as white voters to elect their preferred candidates as county commissioners. Yet, in light of this same history, the majority concludes that the plaintiffs have failed to demonstrate that minority-preferred candidates are usually defeated by white bloc voting and affirms the award of summary judgment to the County.
The majority offers two main reasons for its decision. First, the majority believes that the plaintiffs have failed to defeat the County’s motion for summary judgment because the plaintiffs have not “proffer[ed] data from a sufficient number of elections to enable the district court to determine whether white bloc voting usually defeats minority-preferred candidates.” Ante at 606. That is, because the plaintiffs have not proffered evidence from elections in which no minority was a candidate, the County is entitled to judgment as a matter of law. The majority reaches this conclusion even though the plaintiffs have proffered election data from every election in which a minority was a candidate, and even though the Supreme Court in Thornburg v. Gingles,
Second, the majority believes that even if we only consider the election data that the plaintiffs have proffered, the plaintiffs have still failed to establish a violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. In particular, under the majority’s approach for determining who is and who is not a minority-preferred candidate, the plaintiffs have failed to show that minority voters’ preferred candidate is usually defeated by white bloc voting. In reaching this conclusion, the majority adopts a methodology that is unsound and unsupported by precedent. For example, even though primary election results provide a means for assessing minority voter preference without the effects of partisanship, under the majority’s approach it is improper to consider primary election data when determining who is and who is not a minority-preferred candidate in the general election. Ante at 614-615. Thus, according to the majority, we should take raw election data in isolation and disregard the probative value of considering general election data in conjunction with primary election data (or in conjunction with any other circumstance in most cases).
Because I believe that neither of the majority’s two reasons provide grounds for affirming the district court’s grant of summary
I.
The Supreme Court’s decision in Gingles makes clear that the plaintiffs have the burden of proving each of the Court’s three preconditions, see Gingles,
The number of elections that must be studied in order to determine whether voting is polarized will vary according to pertinent circumstances. One important circumstance is the number of elections in which the minority group has sponsored candidates. Where a minority group has never been able to sponsor a candidate, courts must rely on other factors that tend to prove unequal access to the electoral process. Similarly, where a minority group has begun to sponsor candidates just recently, the fact that statistics from only one or a few elections are available for examination does not foreclose a vote dilution claim.
Id. at 57 n. 25,
Accordingly, the plaintiffs here, faced with the prospect of having to establish their vote dilution claim at trial, conducted a statistical analysis of all general and primary elections since 1972 in which a minority candidate was on the ballot for county commissioner. In total, the plaintiffs proffered election data from five general elections and six primary elections extending over twenty years. The election data included the general elections in
In turn, the County proffered no election data of its own. Instead, the County moved for summary judgment arguing that the plaintiffs’ own election data fails to support their contention that the minority group’s preferred candidates are usually defeated by bloc voting among white voters of Alamance County. Neither before the district court, nor in its briefs to this court, did the County argue that it was entitled to summary judgment because the plaintiffs had only analyzed elections involving minority candidates. In essence, however, that is what the majority has held here today.
I disagree with this result because I believe that the plaintiffs have in fact offered sufficient evidence from which a fair assessment can be made of whether minority-preferred candidates are usually defeated by white bloc voting. In addition, I believe that if the County wishes to rebut the plaintiffs’ evidence of racial polarization based on evidence from elections in which no minority was a candidate, then the County should have the burden to produce such evidence.
A.
No court before today has ever dismissed a vote dilution claim because the plaintiffs failed to proffer evidence of elections in which no minority was a candidate. And, of course, the majority does not expressly say that is what it is doing here. According to the majority, it “hold[s] merely that it is insufficient to consider selectively only those elections in which minority candidates were on the ballot, at least where such elections are not such a substantial majority of the total elections that a fair assessment can be made of whether the minority-preferred candidates are usually defeated by white bloc voting.” Ante at 611. Yet, the majority makes clear that it believes that “both elections in which the candidates are of the same race and elections in which the candidates are of different races must be considered in order to determine whether white bloc voting usually defeats the minority-preferred candidate....” Id. at 607 (emphasis added).
Of course, I agree that there must be sufficient election data presented from which a “fair assessment can be made” of the third Gingles precondition. I cannot, however, agree that a “fair assessment” must be based on data from a “substantial majority of the total elections.” Nor can I agree that elections in which no minority was a candidate must be considered in all circumstances.
Despite what the majority believes, there is no requirement under section 2 of the Voting Rights Act or Supreme Court precedent that the plaintiffs offer election data from “a substantial majority of the total elections” in order to show that minority-preferred candidates are usually defeated by white bloc voting. Likewise, even though “a minority-preferred candidate may be either a minority or a non-minority,” neither section 2 of the Voting Rights Act nor Supreme Court precedent requires, as the majority claims, that we “must” consider (and plaintiffs must proffer) data from elections in which no minority was a candidate. See ante at 607. As I have said, not only did the decision in Gingles uphold vote dilution claims based on election data that included only those elec
This makes complete sense. While minority voters might prefer a candidate from the majority (i.e., white) group, common experience shows that minority voters frequently prefer minority candidates. The opposite is true as well. Gingles,
Moreover, even though voter preference is what matters, minority sponsorship of a candidate is the basis for determining whether a candidate is minority preferred. Of course, sponsorship can be proven in a number of different ways, and election data is only one of them. However, when a defendant neither argues nor proffers evidence that the minority has sponsored such a significant number of white candidates that a fair assessment can not be made without an analysis of election data from elections in which no minority was a candidate, I do not believe that we may require a plaintiff to proffer election data from white/white elections before a vote dilution claim can be proven.
Indeed, when the minority’s only choice is to vote for a white candidate or not to vote at all, such elections are, in general, less probative on the issue of racial polarization than elections involving both black and white candidates. As the Fifth Circuit has said:
“[Tjhe evidence most probative of racially polarized voting must be drawn from elections including both black and white candidates.” “[Wlhen there are only white candidates to choose from it is “virtually unavoidable that certain white candidates would be supported by a large percentage ... of black voters.’ ” Thus, it is not particularly surprising — and not particularly probative — that analysis of elections that included only white candidates did not reveal any racial polarization.
Westwego Citizens for Better Gov’t v. City of Westwego,
A fair assessment is just that, and the plaintiffs in this case have offered more than sufficient election data from which we may discern election patterns in Alamance County. The plaintiffs’ election data spans the twenty years preceding the filing of the plaintiffs’ complaint in October of 1992. During those twenty years, there were ten county commissioner elections, and of those ten elections the plaintiffs have offered election data from five general elections and six primary elections. In other words, the plaintiffs have offered election data from a majority of the county commissioner elections held within the two decades preceding the filing of their complaint. I believe it is clear that the proffer of such extensive election data as this satisfies the plaintiffs’ burden to produce sufficient election data from which a fair assessment can be made. See, e.g., Gingles, 478 U.S. at 61,
B.
While the plaintiffs have the burden of proving the Gingles preconditions, nothing prevents the defendant from offering election data of its own. And, as I have said, black/ white elections are generally more probative than white/white elections. It therefore follows that if the plaintiffs have proffered election data sufficient to provide a “fair assessment” of the third Gingles precondition, and that election data only involves black/white elections, the defendant is free to counter with evidence of election data from elections in which no. minority was a candidate. As the Third Circuit has said:
We ... do not believe that plaintiffs are required to present evidence on white versus white elections if they do not believe that those elections are probative. If the defendants want to introduce evidence on those elections in an attempt to rebut the plaintiffs’ evidence of cohesiveness or white bloc voting, they may do so. Nevertheless, because white versus white elections tend to be less probative, there may still be eases in which “[t]he evidence of polarized voting ... is so strong ... that it cannot be overcome even when all reasonable inferences are accorded to the evidence of elections involving only white candidates.”
Jenkins,
In this case, the County offered no evidence from white/white elections. And, in fact, the County has not even argued that such elections are probative. Accordingly, the majority is simply wrong to uphold the district court’s decision granting summary judgment because the plaintiffs have not offered evidence from elections in which no minority was a candidate.
II.
The majority is also wrong to conclude that if we only consider the election data that the plaintiffs have proffered from black/white elections, the plaintiffs have still failed to establish h violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Ante at 606.
Initially, I emphasize that the majority opinion does not squarely address the issue of the procedural posture of this case. We are hearing this case on appeal from the district court’s grant of summary judgment in favor of the County, and not after a trial on the merits. Therefore, it is the moving party (i.e., the County) that has the burden of showing that there is no genuine issue of material fact requiring a trial, and we must draw all reasonable inferences in favor of the nonmoving party (i.e., the plaintiffs). In addition, while the plaintiffs here bear the ultimate burden of persuasion on their vote dilution claim, the County must show that there is an absence of evidence to support the plaintiffs’ claim in order to succeed on summary judgment. See, e.g., Marylanders for Fair Representation, Inc. v. Schaefer,
Moreover, because we are reviewing this case on summary judgment, I do not believe that the district court’s factual findings are entitled to deference. The district court assessed a paper record, and we should, as we normally do on summary judgment, review the court’s findings de novo. Cf. ante at 614-615, 616-617 (upholding district court’s factual findings under the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure).
Of course, the legal standards that the district court applied are not entitled to any deference. And even if there had been a trial on the merits in this case, we would still have the “power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.” Gingles, 478
A.
The plaintiffs challenge the methodology employed by the district court on several grounds. First, the plaintiffs argue that the district court erred “[b]y grouping together white candidates for whom black voters voted only in the absence of other alternatives with candidates who were enthusiastically and overwhelmingly supported by black voters (and who were, with one exception, black)_” Appellants’ Brief at 16. According to the plaintiffs, the fact that many white Democratic candidates received substantial electoral support from black voters in general elections does not show that these candidates are minority preferred. Rather, it is a reflection of the fact that when the only electoral choice is to vote for a white Republican or a white Democrat, blacks in Alamance County usually choose the white Democrat. Therefore, the district court should have conducted an individualized assessment of each candidate that received a majority of the minority’s support in the general election to determine if that candidate was truly minority preferred. For example, the district court should have examined primary election results (nominating elections where the effects of partisan voting are minimized) to determine the black community’s true level of support for a particular candidate.
Second, while the district court failed to examine primary elections to help determine who is and who is not minority preferred, the plaintiffs argue that the district court erred because it equated success in primary elections with success in general elections. This, according to the plaintiffs, is wrong because “winning the primary does not place the winner in office.” Id. at 26.
Finally, the plaintiffs believe that the district court erred because it failed to discount the three election victories of Jack O’Kelley, the only black candidate ever elected to Ala-mance County’s Board of Commissioners. Id. at 26. In particular, the plaintiffs contend that the district court should not have counted O’Kelley’s election victories because O’Kelley first gained office by appointment, not election. In other words, unlike every other county commissioner, O’Kelley has always been an incumbent. Thus, the factual circumstances surrounding his election victories are not typical, and they provide little guidance for determining whether white bloc voting usually defeats the minority’s preferred candidate.
The majority disagrees with much of what the plaintiffs argue, though to its credit the majority does correctly recognize that “primary and general elections results should not be aggregated for purposes of determining whether black-preferred candidates are ‘usually’ successful....” Ante at 616. Thus, the majority evidently agrees with the plaintiffs that even though a minority-preferred candidate wins in the primary, this success alone does not count for purposes of determining whether the minority is usually able to elect its preferred candidates to office. And I too agree on this point.
Nevertheless, I cannot agree with the majority’s conclusions with respect to the plaintiffs’ other assigned errors. According to the majority, the district court actually “erred in plaintiffs’ favor by not treating as ‘black-preferred’ some ... candidates who placed second or third among black voters (and with a significant majority of black votes) behind an unsuccessful candidate who was the first choice of black voters.” Ante at 611-612. Also, the majority believes that the district court did not err when it failed to conduct an individualized determination of candidates who placed second or third among minority voters when the minority’s first choice was successful. Ante at 614-616. Furthermore, the majority rejects the plaintiffs’ argument that primary election results provide a basis to help determine whether a candidate is minority preferred in the general election. See ante at 614-616. And the majority believes that the district court did not err in giving full weight to the three election victories of Jack O’Kelley. Ante at 617.
1.
We have covered much of this ground before. See Collins v. City of Norfolk,
The mere election of a candidate who appears' to have received votes from more than fifty percent of minority ballots does not count as a minority electoral success, when each ballot may contain votes for more than one candidate. In such a situation, if there were other candidates, preferred by a significantly higher percentage of the minority community, who were defeated in the same election, then it cannot fairly be said that the minority community has successfully elected representatives of its choice. Each situation must be reviewed individually to determine whether the elected candidates can be fairly considered as representatives of the minority community. The presumption must be that they cannot, if some other candidate has received significantly more minority votes.
In the second step of the inquiry the district court must determine whether the presumption is supported by other facts. The court must make an individualized determination of “whether the elected candidates can be fairly considered as representatives of the minority community.” Depending on the outcome of the first step, there may be a presumption for or against finding that a candidate is minority preferred, but regardless of the presumption the district court must make an individualized determination in “[e]ach situation.” Such an individualized determination is required, because as both Congress and the Supreme Court recognize, “whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality, and on a functional view of the political process.” S.Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 208; Gingles,
The majority recognizes that Collins II demands a two-step inquiry. See ante at 612. The majority, however, misconstrues the inquiry.
Under the first step, according to the majority, a second- or third-place finisher is minority preferred if the unsuccessful first choice received a percentage of the minority vote which is not significantly higher than that of the elected second- and third-place finishers. Id. In this situation, the majority believes that a district court need not (and evidently cannot) proceed to the second step of the inquiry in order to make the individualized determination required under the Act and Gingles. Id. at 613 (“Because [unsuccessful candidate] Morris’ support among black voters was not ‘significantly higher’ than [successful candidate] Long’s, the district court appears to have erred in not automatically treating Long as a black-preferred candidate.”) (emphasis added).
Needless to say, cutting off the inquiry at the first step makes a court’s “searching practical evaluation of the past and present reality” dependent exclusively upon election results taken in isolation. Yet, because at-large voting systems often fail to provide an accurate view of the political process (among other things, they may create the appearance of minority preference), I believe that a court must proceed to the second step of the inquiry even when “the unsuccessful first choice among minority voters did not receive a ‘significant higher percentage’ of the minority community’s support.”
Of course, when the level of support received by the unsuccessful first-place finisher among minority voters is “significantly higher” than the support given the second- and third-place finishers by those same voters, the majority agrees that only a presumption is created against finding that the second- and third-place finishers are minority preferred. Id. at 613 (asserting that “we held in Collins II (sic) only that successful candidates who receive more than 50% of the black vote should not automatically be viewed as a black-preferred candidate if they receive significantly less support from black voters than another, losing candidate, not that they should never be treated as black-preferred”) (emphasis in original). I fail, however, to discern any reason for creating the presumption (and proceeding to the second step) only when an unsuccessful first-place finisher receives a significantly higher percentage of the minority vote, and neither the Act, nor angles, nor Collins II supports the majority’s conclusion to the contrary.
For much the same reason, the majority is also wrong to conclude that “any candidate who receives a majority of the minority vote and who finishes behind a successful candi
The only way that the majority can reach these conclusions is to disregard our clear language in Collins II and other precedent throughout the circuits. These are decisions that hold that a successful candidate is not automatically minority preferred merely because that candidate receives more than 50% of the minority vote. And these are decisions that either hold or assume that a candidate who receives less than 50% of the minority vote cannot (by definition) be minority preferred. As we stated in Collins II:
The district court’s error in finding successful candidates who received over 50% of the minority vote to be the chosen representatives of the minority community, despite the fact that other candidates received a much greater percentage of the minority vote, is not simply technical or semantic....
A moment’s reflection shows how the district court’s method of identifying the black community’s representatives of choice defeats a primary purpose of the Act. In 1974, 21 candidates sought the 4 open seats on the council. In 1980, 12 candidates vied for 3 open seats. In 1974, each voter — black and white — could cast four votes and in 1980 three votes. If black voters exercised their right to cast all of their allotted votes, they ran the risk that their second and third choices would be declared their preferred candidates. Only by single-shot voting — withholding all votes save for their first choice, and forfeiting the opportunity to cast all votes allotted to each voter — could the minority be assured that its second and third choices would not be declared its preferred candidates. In contrast, under the at-large system, the white voters can freely east all votes allotted to them without suffering the penalty imposed on the minority voters. The district court’s construction of the Act defeats the congressional purpose of assuring that the opportunity to participate in the electoral process is open to all citizens.
We are aware of no case that supports the district court’s construction of the Act.
The effect of the majority’s unprecedented decision will be to -undermine the Voting Rights Act. After today, structural inequalities that may be at work in at-large voting systems will be masked by the structure itself, perpetuating those very inequalities that the Act is intended to remedy. The reason for this is simple. As I have explained, at-large voting systems may work to create the appearance of minority preference where none actually exists. Thus, to allow election results alone to dictate whether a candidate is minority preferred is to validate the structural inequalities which may be present in at-large voting systems based on the system itself. That is circular reasoning, I believe.
We are bound to follow Collins II. In sum, therefore, we should hold that a district court must always make an individualized determination of whether any second- or third-place finisher who receives a majority of the minority vote is actually minority preferred. When a minority-preferred candidate (whether successful or not) receives a significantly higher percentage of the minority vote, we must presume that the second- or third-place finisher who receives a majority of the minority vote is not minority preferred. When a minority-preferred candidate (whether successful or not) does not receive a significantly higher percentage of the minority vote, we must presume that the second-or third-place finisher is minority preferred, provided that the second- or third-place finisher received a majority of the minority vote. And when any candidate receives less than a majority of the minority vote, that candidate can never be deemed minority preferred.
2.
I also believe that it is clear that when making an individualized determination of who is and who is not a minority-preferred candidate, a district court must examine the particular facts and circumstances surrounding each election and candidate in order to ascertain which, if any, candidate or candidates the minority community has sponsored. See Gingles,
There is nothing unique about this approach, and depending on the facts, it may help or hurt plaintiffs’ ability to prevail in a vote dilution case. See, e.g., Uno,
Because we should examine the totality of the circumstances, a district court should not hesitate to look at any evidence that might be probative. Accordingly, I can not agree with the majority that primary election results do not bear on the question of who is and who is not a minority-preferred candidate. See ante at 614—616. Cf. Niagara Falls,
When, for example, a white candidate fails to gain a majority of the minority vote in the primary election (yet still wins nomination), the fact that such a candidate subsequently gains a majority of the minority vote in the general election is of minimal probative value. This is especially true when minority voters strongly support a losing minority candidate in the primary election process.
3.
As a district court must examine the totality of the circumstances to determine who is and who is not a minority-preferred candi
Here, for example, I believe that the district court erred when it counted as minority electoral success all three election victories of black candidate Jack O’Kelley. At the very least the district court should have discounted O’Kelley’s first election victory in 1974. That election and the candidacy of O’Kelley were atypical for two reasons. First, O’Kelley was initially appointed (not elected) to fill a vacant slot on the Board of Commissioners. He thus ran as an incumbent even though he had never been elected. Second, and more importantly, the 1974 general election was both a special election for the seat to which O’Kelley had previously been appointed, and it was an at-large election for two other seats on the Commission. And, of course, O’Kelley ran in the special election, not the at-large election. Thus, I would hold that as a matter of law O’Kelley’s incumbency, coupled with his appointment and the unique nature of his 1974 election, constitute special circumstances requiring that we discount this election victory.
As for O’Kelley’s second and third elections in 1976 and 1980, it may or may not be appropriate to count these elections as instances where the minority was successful in electing its preferred candidate. Because of the odd nature of the 1974 election, O’Kelley was forced to run for reelection after only two years (not the normal four years). Accordingly, there is evidence that “special circumstances” exist that also might require us to discount O’Kelley’s 1976 election. As for the 1980 election, the effects of O’Kelley’s initial appointment, coupled with his incumbency, may still persist. And, as the Court in Gingles expressly recognizes, incumbency may constitute a special circumstance in certain situations.
B.
In light of the proper methodology described above, I turn now to examine the election data that the plaintiffs have proffered. Of course, because there has been no trial, and thus no “individual determinations” of who is and who is not a minority-preferred candidate, the district court’s grant of summary judgment should be reversed for this reason alone. In addition, even if we merely examine the election data, I believe it clear that the presumptions we recognized as appropriate in Collins II indicate that minority-preferred candidates have rarely been successful. I would therefore hold that there is a genuine issue of material fact as to whether minority-preferred candidates are usually defeated by white bloc voting and that the case should be remanded for trial.
The 1972 Election:
In 1972 Morris (a black candidate) received 98% of the black vote in the Democratic primary but was defeated nonetheless. Long (a white candidate) received 84% of the black vote and was nominated. No other candidate received a majority of the minority vote. Thus, assuming that 98% of the vote is not “significantly higher” than 84% of the vote, there is a presumption that we have two minority-preferred candidates — one of whom we know lost (Morris). Because neither party has proffered election data from the 1972 general election, it would appear
The 197k Election:
The parties have failed to provide the primary results from the 1974 Democratic primary, but Newlin (a white candidate) won the general election with 99% of the black vote, and Long lost with 99% of the black vote. I will therefore count Newlin as a successful minority-preferred candidate and Long as an unsuccessful minority candidate (though again the record is incomplete on this point). Also, as I have said, O’Kelley’s election is not counted because he had recently been appointed to the Board of Commissioners, and he was running to fill a single vacant seat. Thus, as of 1974 there is a presumption that there had been four minority-preferred candidates, one candidate who was elected and three candidates who were not.
The 1976 Election:
In 1976 only O’Kelley received the support of a majority of black voters in the Democratic primary election. Therefore, he is the only candidate that should be presumed minority preferred. But again, because O’Kelley did not serve a full term after his 1974 election, it may be inappropriate to count his success in the general election. Thus, as of 1976 there still had been only four minority-preferred candidates, only one of whom was elected.
The 1978 Election:
In the 1978 Democratic primary, Harris (a black candidate) received 78% of the black vote but was not nominated, and Newlin (a white candidate) received 60% of the black vote and was nominated. The majority does not disagree that Harris’s support among minority voters was significantly higher than Newlin’s support. See ante at 613-614. In addition, the district court reached the same conclusion. We should therefore presume that there was only one minority-preferred candidate in 1978 (Harris). Because he was unsuccessful, as of 1978 there had been five minority-preferred candidates, one candidate who was elected and four candidates who were not.
The 1980 Election:
In the 1980 Democratic primary, O’Kelley received 99% of the black vote and was nominated, and Fleming (a white candidate) received 57% of the black vote but was not nominated. No other candidate received a majority of the minority vote in the primary. Thus, for purposes of summary judgment I would not count either O’Kelley or Fleming as minority preferred. The effects of O’Kelley’s initial appointment (coupled with his incumbency) may still persist, though less so than in 1974 and 1976. And Fleming did not receive “significantly” close to the same amount of support as O’Kelley. Accordingly, as of 1980, there remained five minority-preferred candidates, one candidate who was elected and four candidates who were not.
The 1984 Election:
In the 1984 Democratic primary, Freeman (a black candidate) received 98% of the black vote and was nominated. Paris (a white candidate) received 50% of the black vote but was not nominated. Because Freeman’s minority support was significantly higher than Paris’s, I would presume that Paris was not a minority-preferred candidate. In the general election, Freeman lost. Therefore, as of 1984 there had been six minority-preferred candidates, one who was elected and five who were not.
The 1986 Election:
The parties have not provided primary results for 1986. In the general election, however, Bennett (a white candidate) won with 99% of the black vote. I will therefore count him as a successful minority-preferred candidate. However, Morris (a black candidate) lost the general election, though he got 57% of the black vote. Although Morris is a minority and received a majority of the minority vote, I will nonetheless presume that he is not a minority-preferred candidate because Bennett received significantly higher support. Therefore, as of 1986 we should presume that there had been seven minority-
The 1992 Election:
In the 1992 Democratic primary, Torain (a black candidate) received 74% of the black vote in the primary but was not nominated. No one other candidate received a majority of the black vote. I thus presume that To-rain was the only minority-preferred candidate in 1992.
In total, therefore, we should presume that there have been eight minority-preferred candidates, two who were elected and six who were not. Accordingly, based only upon the election data proffered, I believe that the County is not entitled to summary judgment. See Gingles,
* * * * * *
It is no doubt true that we may not (and should not) simply assume that “ Voters of a particular race, because of their race, “think alike, share the same political interests, and will prefer the same candidates at the polls”.”’ Ante at 618 (quoting Miller v. Johnson, — U.S. -, -,
Here, the plaintiffs have proffered sufficient evidence to defeat the County’s motion for summary judgment because that evidence shows that a genuine question of fact exists as to whether the at-large method for electing commissioners in Alamance County deprives black voters of the same opportunity to elect representatives of choice as is enjoyed by white voters. The County may ultimately prevail on that question, but without a trial neither we, nor the County, nor the citizens of Alamance will know. Again, I respectfully dissent.
. Justice Brennan’s opinion on this point failed to gain a majority of the Court, and it was joined by only Justices Marshall, Blackmun, and Stevens. Justice White, who otherwise joined Justice Brennan’s opinion, rejected the notion that the race of the candidate is irrelevant. Id. at 83,
. Also, I do not share the majority's uneasiness with the plaintiffs' reliance on bivariate regression analyses. See ante at 604 n. 3. If the County wishes to challenge the plaintiffs' statistical evidence as flawed, then it should do so, and we should refrain from criticizing the statistical evidence in the absence of such a challenge. For instance, while it may (or may not) be true that "blacks and whites who live in integrated neighborhoods are more likely to vote for candidates of another race,” id., the County has put forth no evidence or argument on this appeal that the plaintiffs’ election data is flawed because it treated minority preference as constant across precincts. Cf. Smith v. Clinton,
. The majority cites the decision in Brown v. Board of Commissioners,
. As I have noted, the County has not even argued that the plaintiffs must submit election data from white/white elections, nor has the County submitted any such data. In short, the County has not shown that the absence of data on white/ white elections means that there is insufficient evidence to support the plaintiffs’ vote dilution claim. Therefore, under basic summary judgment principles, I am at a loss as to how the majority can conclude that the County is entitled to summary judgment because the plaintiffs have not proffered election data from- white/white elections.
. The Court in Gingles did not discuss what level of deference an appellate court is to accord a district court's factual findings on summary judgment. The Court did, however, stress that because of the fact intensive nature of a vote dilution claim, a district court’s factual findings made after trial are subject to the clearly erroneous standard of Rule 52(a). As the Court said:
We reaffirm our view that the clearly-erroneous test of Rule 52(a) is the appropriate standard of appellate review of a finding of vote dilution. As both amended § 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the “totality of the circumstances” and to determine, based "upon a searching practical evaluation of 'the past and present reality,' ” [S.Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 208 (footnote omitted)], whether the political process is equally open to minority voters. " 'This determination is peculiarly dependent upon the facts of each case,’ ” Rogers [v. Lodge,458 U.S. 613 , 621,102 S.Ct. 3272 , 3277,73 L.Ed.2d 1012 (1982)], quoting Nevett v. Sides,571 F.2d 209 , 224 (5th Cir.1978), and requires "an intensely local appraisal of the design and impact” of the contested electoral mechanisms.458 U.S. at 622 [102 S.Ct. at 3278 ].
Gingles,
. When questioned at his deposition, the plaintiffs' expert fell into somewhat the same trap as the majority and the district court, acknowledging minority-preferred candidates based on election data taken in isolation.
. In Collins II the minority plaintiffs challenged the at-large voting system used to elect the City Council in Norfolk, Virginia. We explained that " ‘[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred candidates.’ ” Id. at 1236 (quoting Gingles,
. The flaw in .the majority's approach is illustrated by the following hypothetical. An at-large election for four slots is held. There are eight candidates. Candidate number 1 wins with 99 percent of the minority vote; candidate number 2 loses with 95 percent of the minority vote; candidate number 3 wins with 51. percent of the minority vote; candidate number 4 wins with 20 percent of the minority vote; candidate number 5 loses with 15 percent of the minority vote; candidate number 6 loses with 10 percent of the minority vote; candidate number 7 loses with 5 percent' of the minority vote; and candidate number 8 wins with 3 percent of the minority vote. According to the majority, we must automatically treat candidate number 3 as minority preferred even though that candidate received far less support than candidate number 1 or candidate number 2. Also, according to the majority, there is a presumption that candidate number 4 is minority preferred even though that candidate received the support of only one in five minority voters. That cannot be right. It also directly conflicts with our holding in Collins II, because as I have previously noted, see supra at 627 n. 7, in Collins II (as in the above hypothetical), the minority was successful in electing its first, candidate of choice. See
. Obviously, while we should treat the defeat of a minority-preferred candidate in a primary as a defeat for purposes of determining whether Cin-gles ' third precondition has been met, we should not treat the success of a minority-preferred candidate in receiving his or her party's nomination as a success for purposes of the same inquiry. Only if a minority-preferred candidate is actually elected has the minority succeeded in the electoral process. Winning the primary is all to the good, but without winning the general election, white majority bloc voting may have, still succeeded in defeating the minorily-preferred candidate or candidates.
. In Jenkins the Third Circuit outlined the following non-exhaustive list of factors that a court should examine when deciding whether a white candidate may properly be considered minority preferred:
One relevant consideration is the extent to which the minority community can be said to have sponsored the candidate. In determining whether the minority community sponsored the candidate, the court should look to the level of minority involvement in initially advancing the particular candidate and in conducting or financing that candidate's campaign.
Additionally, the attention which the candidate gave to the particular needs and interests of the minority community, including the extent to which the candidate campaigned in predominately minority areas or addressed predominately minority crowds and interests, may be relevant factors.
Another relevant consideration would be the rates at which black voters turned out when a minority candidate sought office as compared to elections involving only white candidates. Finally, bearing in mind the disincentives that may exist for minority candidates to seek office, the extent to which minority candidates have run for office and the ease or difficulty with which a minority candidate can qualify to run for office may be relevant considerations.
. Evidently, however, under the views expressed in the concurring opinion such a system would not violate the law. Of course, to reach that conclusion we would have to read the Voting Rights Act out of existence, something I do not believe that the Supreme Court has done in Bush v. Vera, — U.S.-,