Metts v. MurphyMetts v. Murphy
- Reporters:
- Before:
- Selya, Stahl, Lynch
The district court dismissed the claim under
I.
On May 2, 2002, a group of individual plaintiffs and advocacy organizations challenged the redistricting plan in the United States District Court for the District of Rhode Island under
When reviewing the dismissal of a complaint under
On February 23, 2002, the Rhode Island General Assembly voted to pass a redistricting plan for the state senate. An alteration was necessary for two reasons. First, there was a need to adjust the senate districts to account for shifts in state population. Second, a recent state constitutional amendment reduced the number of senate districts from fifty to thirty-eight, necessitating an entirely new district map with larger districts.
The new senate district plan was highly controversial. There were concerns from the beginning that the plan might make it more difficult for African-American voters to elect candidates of their choice. Various community groups and individuals testified before the legislature against the plan on the grounds that it would not give African-American voters “an equal opportunity to elect candidates of their choice” to the state senate, and that the plan unnecessarily abridged the voting rights of African-American voters in violation of the VRA. Nonetheless, the senate‘s judiciary committee “approved the plan[] without taking the time to evaluate the proposals and comments of those opposed to the plan.” It is fair to infer, given that there was only one African-American senator, that the plan was approved over the objections of the African-American community and its representative. Governor Lincoln Almond refused to sign the legislation, explicitly
The population of Rhode Island is four percent African-American,4 over half of whom live in Providence. The state‘s African-American citizens continue to suffer from past official discrimination in housing, education, health care, and employment. By common measures of socio-economic status, educational attainment, and access to political resources, they continue to lag behind the rest of the state. Only one African-American state senator, the chosen candidate of the African-American community, has ever been elected in Rhode Island; that senator, Charles D. Walton, represented the old Senate District 9 until the redistricting. According to the census data from the year 2000, that district was 25.69% African-American and 41.08% Hispanic. Much of Providence‘s African-American population is now within the new Senate District 2. The population of this new district is 21.42% African-American and 46.74% Hispanic, and the voting age population is 21.43% African-American and 43.12% Hispanic.5
Plaintiffs plead that the African-American voters in Rhode Island are themselves politically cohesive, and that they are not cohesive with Hispanic or white voters. Although no alternative plans were appended to the complaint, plaintiffs claim that it is possible to divide the state into thirty-eight districts such that one senate district would have a population that is at least twenty-six percent African-American, and in such a district it would be possible for “an African-American candidate preferred by African-American voters” to win election due to white and Hispanic crossover support. However, if a district is less than twenty-six percent African-American, “[t]he white and Hispanic communities vote sufficiently in a bloc usually to defeat the candidate of choice of African-American voters.”
II.
Without filing a responsive pleading, the defendants quickly moved to dismiss on the basis of
On September 9, 2002, the district court granted the defendants’ motion. Metts v. Almond, 217 F. Supp. 2d 252 (D.R.I. 2002). The district court analyzed the plaintiffs’ complaint as both an “ability to influence” claim and an “ability to elect” claim. As to the former, it found that influence claims are not cognizable under § 2. Id. at 257. As to the latter, it held that Gingles requires that a minority group be able to constitute a majority without the help of crossover votes from other groups. Id. at 260. Finally, the district court also dismissed the complaint based upon a failure to demonstrate that the majority in Senate District 9 votes as a bloc, another requirement set out in Gingles. Id. at 260-61. The plaintiffs appeal the dismissal of their claim.
III.
A. Standard of Review
We review de novo a district court‘s dismissal of a complaint for failure to state a claim under Rule 12(b)(6), Morales-Villalobos v. Garcia-Llorens, 316 F.3d 51, 52 (1st Cir. 2003), taking well-pleaded facts in the complaint as true and making all reasonable inferences in favor of the plaintiffs. Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002). Rule 12(b)(6) permits dismissal of a complaint for “failure of the pleading to state a claim upon which relief can be granted.” For the purposes of Rule 12(b)(6), “it is enough for a plaintiff to sketch a scenario which, if subsequently fleshed out by means of appropriate facts, could support an actionable claim.” Garrett v. Tandy Corp., 295 F.3d 94, 105 (1st Cir. 2002). We must reverse if the plaintiffs have included in their complaint well-pleaded facts which, taken as true, “justify recovery on any supportable legal theory.” Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000).
B. Legal Background
Section 2 of the VRA forbids any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
The Supreme Court first construed the post-amendment VRA
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority‘s preferred candidate.
Id. at 50-51. The Supreme Court has, in subsequent cases, held that some form of these three preconditions should also apply to challenges to single-member legislative districts. Growe v. Emison, 507 U.S. 25, 40-41 (1993) (applying the second precondition); see also Voinovich v. Quilter, 507 U.S. 146, 157-58 (1993) (applying the third precondition). The Court has summarized the three in shorthand terms as “compactness/numerousness, minority cohesion or bloc voting, and majority bloc voting.” Johnson v. De Grandy, 512 U.S. 997, 1011 (1994). As a matter of pleading, the complaint explicitly pleads the second and third of the Gingles preconditions as well as geographic compactness under the first precondition.
This is not a case, as in De Grandy, where minority voters hold a majority in some districts and the issue is whether § 2 of the VRA requires courts to maximize the number of districts
C. First Precondition: Compactness & Numerousness
1. Ability to Influence and Crossover Voting
The district court characterized plaintiffs’ claim as alternately an “ability to influence” claim and an “ability to elect” claim. The Gingles Court, when fashioning the three preconditions to a redistricting challenge to a multimember district, expressly reserved the question of whether § 2 permitted claims by a minority group “alleging that the use of a multimember district impairs its ability to influence elections,” and whether the three preconditions would apply unabated to such a claim. 478 U.S. at 46 n.12 (emphasis in original). The same question of the meaning of an ability to elect as opposed to an ability to influence arises in challenges to single member districts. See De Grandy, 512 U.S. at 1008-09; Voinovich, 507 U.S. at 154.
Since Gingles, there has been much confusion over the
The confusion stems from the intersection of this type of influence claim and another type, in which a minority group constituting less than fifty percent of the electorate can elect a candidate of its choice with the help of crossover votes from voters in the majority group. See R.H. Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. Rev. 1517, 1539-40 & n.60 (2002) (referring to this latter type of district as a “coalitional district“); Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209-10 & n.13 (2003). We will refer to this second type of influence claim as a
Plaintiffs, for their part, forswear any claim under the ability to influence rubric, choosing to stand or fall entirely on an ability to elect claim. However, they do so only as far as the
The Supreme Court has expressly held open the question of whether the Gingles preconditions should apply to influence claims. See De Grandy, 512 U.S. at 1009; Voinovich, 507 U.S. at 154; Gingles, 478 U.S. at 46 n.12. We read the language of these cases, especially Gingles and Voinovich, to profess a willingness to consider a crossover district claim such as the one plaintiffs plead. The Gingles language setting aside the question of an influence claim did not differentiate between crossover district claims and claims in which plaintiffs profess only an ability to affect, not determine, electoral outcomes. But the Court has not flatly refused to consider a crossover district despite the opportunity to do so. See Voinovich, 507 U.S. at 154.
The Supreme Court‘s recent opinion in Georgia v. Ashcroft, 123 S.Ct. 2498 (2003), also supports our conclusion that crossover districts should be considered in the § 2 context.
Georgia held that when assessing retrogression, courts must consider not only majority-minority districts but also the existence of influence districts, including crossover districts. 123 S.Ct. at 2512. The state‘s plan created two additional districts with a minority population of between thirty and fifty percent, and two districts with a population of between twenty-five and thirty percent. These districts, the Court found, were crucial to determining the overall effect of the new redistricting plan. Id. at 2515. Indeed, the Court was unanimous that crossover districts should be considered in the § 5 analysis; the dissent objected only to the use of those influence districts in which it was not clear that minority voters would have an ability to elect even with crossover support. See id. at 2513, 2514; id. at 2518-19 (Souter, J., dissenting). If crossover districts are important
Given these Supreme Court precedents, we believe that whatever the status of other influence claims, at least crossover district claims are cognizable under § 2 of the VRA. We decline to hold, as a matter of law, that they are not.
This conclusion is consistent with our decision in Vecinos de Barrio Uno, supra, where this court held that an “influence district” that was twenty-eight percent Hispanic should be considered in the determination of whether the minority population‘s voting strength had been diluted. 72 F.3d at 990-91 (“[T]he voting strength of a minority group is not necessarily limited to districts in which its members constitute a majority of the voting age population, but also extends to every district in which its members are sufficiently numerous to have a significant impact at the ballot box most of the time.“). Unlike the present case, the influence district in Vecinos de Barrio Uno was used by the defendant city as evidence that the minority population retained political power. Moreover, the city was not alleging that the minority group could elect its own candidate with crossover support, but only that it was large enough to wield influence over the outcome. Despite these factual differences, this court‘s
Though Gingles did not apply the preconditions to influence claims, however they are defined, some preconditions must apply in order to link the complained-of voting practice with the harm the plaintiffs allege. Gingles, 478 U.S. at 48-51; see Vecinos, 72 F.3d at 979 n.2 (“[The first] precondition will have to be reconfigured to the extent that the courts eventually validate so-called influence dilution claims.“). For the purposes of this discussion, we assume that plaintiffs’ claim must satisfy the second and third Gingles preconditions, and that some form of the first precondition will also apply.
2. Majority Requirement
The first Gingles precondition requires that “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” 478 U.S. at 50. Some courts have read this literally to mean that unless plaintiffs can show that they can constitute an absolute majority in a single district -- that is, more than fifty percent -- then there is no possible § 2
We reject the conclusion that no § 2 cause of action is ever stated, regardless of the nature of the claim, unless plaintiffs can show that a minority group would be a literal majority in a single district. The approach is inconsistent with the Supreme Court‘s own descriptions of the functions served by the first Gingles precondition. It is also inconsistent with the variety of political realities the VRA was meant to address; a demographic fact of life in some areas of the country is that no single racial group constitutes an absolute majority. And finally, it contravenes the plain text of § 2, which requires courts to consider the “totality of the circumstances.”
In the context of this case, that pleading suffices to satisfy the interests identified by the Supreme Court for the first Gingles precondition. That precondition should not be read without regard to its function: to determine whether “the ability of minority voters to elect representatives of their choice” is impeded. Gingles, 478 U.S. at 48. As the Court has noted, “the Gingles factors cannot be applied mechanically and without regard to the nature of the claim.” Voinovich, 507 U.S. at 158.12 Gingles
This functional approach also better accounts for various political realities. In electoral schemes in which representatives
Georgia v. Ashcroft, supra, confirms that influence
We also consider relevant both modern and historical political realities. During the 1970s and 1980s, African-American populations usually could not elect representatives of their choice unless they constituted a majority in an electoral district. See generally Quiet Revolution in the South (C. Davidson & B. Grofman eds., 1994). Indeed, usually a mere majority was not sufficient; many believed that to overcome racial bloc voting patterns, the total minority population needed to be sixty-five percent. See Ketchum v. Byrne, 740 F.2d 1398, 1415-16 (7th Cir. 1984) (collecting sources). But the percentage of minority population
In sum, it is not an absolute bar to a claim under § 2 of the VRA that some amount of crossover voting is needed for a minority group to elect a candidate of its choice.14 See Armour v. Ohio, 775 F. Supp. 1044, 1059-61 (N.D. Ohio 1991) (three-judge court); see also McNeil, 828 A.2d at 852-53; Powers, 263 F. Supp. 2d at 1109-1113 (three-judge court) (Gwin, J., concurring in judgment); West v. Clinton, 786 F. Supp. 803, 807 & n.2 (W.D. Ark. 1992) (three-judge court).
Though a claim that includes crossover voting may be cognizable under the first precondition for a § 2 cause of action, not every such claim will pass muster. It would be discordant with the Act, for instance, to consider a crossover district claim from a numerically tiny minority population that can only claim a hope to elect a candidate with an overwhelming number of crossover votes. Several limiting principles readily present themselves.15
The second is the statutory requirement that a minority population be able to elect, in a potential district, ”representatives of their choice.”
The third limitation is expressed in the third Gingles precondition: “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority‘s preferred candidate.” 478 U.S. at 51. A minority population that is too small, and that therefore requires too high a level of crossover support, will not be able to meet the third precondition. If the majority population is willing to provide crossover support to minority-chosen candidates at very high levels, then it cannot be said to be voting as a bloc against these candidates. For the reasons described below, the plaintiffs’ complaint offers enough on the third precondition to render a
Finally, we note that this is not a situation, as in Georgia v. Ashcroft, supra, where the leaders of the African-American community developed the redistricting plan at issue. The contrary is true here. With only one state senator out of fifty, the African-American community had precious little political strength in the senate before the redistricting. After the plan
D. Third Precondition: Majority Bloc Voting
The third Gingles precondition requires that “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority‘s preferred candidate.” 478 U.S. at 51. Again, this is part of a functional approach to the Act. See id. (“In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.“). This court has described the third condition as addressing “whether the challenged practice, procedure, or structure is the cause of the minority group‘s inability to mobilize its potential voting power and elect its preferred candidates,” Vecinos, 72 F.3d at 980, and referred to the bloc simply as a “majoritarian” bloc, id. at 981, 982.
The district court held that the plaintiffs’ complaint failed to satisfy this third condition. First, it read Gingles
This reasoning has several flaws. Inherent in the court‘s analysis is the assumption that the electoral contest would have only two candidates. That is not necessarily so, particularly in primaries. In many jurisdictions, the winner of a particular party‘s primary is de facto the winner of the general election; it may be inferred that this was historically the case in the old Senate District 9 and it remains true in the reconfigured Senate District 2. The court also allocated the crossover vote half to whites and half to Hispanics, but there is simply no evidence of the racial composition of the crossover votes, either historically or in a proposed alternative district.
The VRA does not, by its terms, afford protection to or against any particular racial or ethnic group; if it did, it might well be suspect under the Equal Protection Clause.
Nor must the majority bloc be comprised of only one race. While the “protected class” being discriminated against must be constituted of a particular “race or color,” see
The district court‘s rationale does, however, highlight a potential difficulty with the plaintiffs’ complaint. In the plaintiffs’ proposed remedial district, the African-American population would be at least twenty-six percent. Depending on how the facts are developed, that number may raise issues related to the third precondition. If it is true that a majority (rather than only a plurality) is needed to elect a candidate, if the racial
At the
More importantly, even if the facts show that crossover
One important factor about which the record is undeveloped is the pattern of voting behavior over time. Gingles stressed the importance of determining whether racial bloc voting is a pattern extending over time or merely a phenomenon in a single election. 478 U.S. at 57. The reverse is also true: the success of a minority candidate, or the absence of bloc voting in a few elections, cannot be taken to mean that the district does not experience racial bloc voting overall. Id.
Furthermore, a crossover rate of thirty-two percent is within the range of fact patterns in which courts have found
At this stage of the litigation there is no evidence of the degree or effect, if any, of racially polarized voting, or whether a voting district could have been constituted to protect the ability of both African-American and Hispanic voters to elect candidates of their choice.
The district court‘s dismissal of the plaintiffs’ complaint under
IV.
Congress, in enacting the Voting Rights Act, was cognizant of this country‘s long and shameful history of excluding African-Americans from our political processes. In light of the purposes of the Fourteenth Amendment and its guarantee of equal protection of the laws, it is no answer to say, as the dissent does, that the federal courts should close their doors to possibly meritorious complaints under the Voting Rights Act out of deference
The plaintiffs must be given the opportunity to prove their case. We express no view as to the outcome. The dismissal of the plaintiffs’ complaint is reversed and the case is remanded for proceedings consistent with this opinion.
My reasoning is rooted in precedent. The Supreme Court has made it reasonably clear that, as a threshold requirement for the maintenance of a vote dilution claim in a single-member district, plaintiffs must show (1) that they are part of a minority group that is sufficiently large and geographically compact to constitute a majority in some plausible iteration of the affected district; (2) that the group is politically cohesive; and (3) that other racial groups engage in bloc voting significant enough to defeat the minority group‘s preferred candidate. Voinovich v. Quilter, 507 U.S. 146, 157-158 (1993) (applying Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), to single-member districts); Growe v. Emison, 507 U.S. 25, 40 (1993) (same). Given the nature of their claim, I think it is fairly clear that the appellants cannot satisfy the first precondition. It is absolutely clear,
I start with the first Gingles precondition. The appellants concede that they are unable to show that African-Americans can constitute a literal majority in any plausible iteration of Senate District 2. Rather, their complaint rests on the novel premise that a minority group whose members cannot conceivably comprise a numerical majority, even in what is from their point of view an ideally configured single-member district, nonetheless can mount a viable vote dilution claim by demonstrating that the district‘s lines could have been drawn in such a way as to give the minority group the ability to elect the candidate its members prefer. Whether or not this type of claim ever can fall within the purview of section 2 of the Voting Rights Act (VRA),
It is common ground that courts must apply the Gingles preconditions to the ideal district proposed by those who challenge a redistricting plan. See Holder v. Hall, 512 U.S. 874, 880 (1994) (opinion of Kennedy, J.); Negrón v. City of Miami Beach, 113 F.3d 1563, 1571 (11th Cir. 1997). In this case, the appellants concede that the adoption of a constitutional amendment downsizing the General Assembly required redistricting of the state senate. Thus,
My colleagues suggest that we can change the paradigm because the appellants may have been deprived of a “crossover district” — a kind of “influence district” in which a numerical minority is so positioned that it has an ability to swing elections. See generally id. at 154 (describing an influence district as one in which minority group members “could not dictate electoral outcomes independently [but] could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters“). The Supreme Court has repeatedly refrained from deciding the cognizability of claims based on legislative dismantling of crossover districts, e.g., Johnson v. De Grandy, 512 U.S. 997, 1008-09 (1994); Voinovich, 507 U.S. at 154, and, until today, this
To be sure, the preservation of influence or crossover districts may constitute a relevant factor in defending against a vote dilution claim. See, e.g., De Grandy, 512 U.S. at 1020; Vecinos, 72 F.3d at 990-91 & n.13; Latino Political Action Comm. v. City of Boston, 784 F.2d 409, 414-15 (1st Cir. 1986). But to say that a court may consider crossover districts in deferring to a state‘s redistricting plan is very different from saying that a minority has the legal right, under section 2 of the VRA, to demand that the legislature establish such a district. The ultimate goal of the VRA is “transition to a society where race no longer matters.” Georgia v. Ashcroft, 123 S. Ct. 2498, 2517 (2003). Thus, minorities still bear the burden “to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.” Id. at 2512 (quoting De Grandy, 512 U.S. at 1020) (internal quotations marks omitted). My colleagues’ freshly minted “functional approach” would significantly lighten this burden.
In all events, deciding this case does not require us to go so far as to rule out all section 2 claims based on a legislature‘s failure either to assemble or to preserve a crossover district. Here, the raw numbers are inimical to such a claim. The
Stripped of rhetorical flourishes, the appellants’ thesis proceeds along the following lines. Whenever a candidate preferred by African-Americans runs for the state senate in the new district, he or she will receive all the African-American votes plus no less than 32% but no more than 37% of the combined white and Hispanic votes (these being the percentages of all white and Hispanic voters necessary to form a majority in conjunction with African-American voters when African-Americans constitute 26% and 21% of the population, respectively).18 In the appellants’ view, those crossover voters will favor the African-Americans’ preferred candidate regardless of the race or politics of his or her opponent(s). Consequently, the redistricting plan is vulnerable under section 2 of the VRA because the electorate‘s polarization is
Whether viewed as a matter of logic, political science, or human behavior, this prediction strikes me as utterly conjectural. For good reason, a difference of a few percentage points in the minority population of a single-member district generally has been thought unlikely to affect election outcomes. See S. Christian Leadership Conf. v. Sessions, 56 F.3d 1281, 1296 (11th Cir. 1995) (en banc). The appellant‘s claim flies in the teeth of this conventional wisdom — and the mere fact that one very popular candidate, running uphill, had a series of successes in the “old” district does not validate the appellants’ claim.
Even if I must indulge the claim because the district court chose to act at the Rule 12(b)(6) stage, the most that can be said is that the appellants had forged a sort of functional majority in former Senate District 9. By that I mean that African-Americans, though neither numerous nor concentrated enough to comprise a majority in the district, exhibited an ability to elect a particularly appealing candidate with the aid of a large and predictable non-African-American crossover vote. But whatever may be said for functional majority claims in general, the appellants’ functional majority claim is a non-starter. Where, as here, a minority group comprises only a relatively small fraction of the total population of an electoral district before redistricting, the
The figures tell the tale. In the appellants’ idealized district, whites and Hispanics would have to cast almost half of the votes needed for a successful senatorial candidacy. Those votes would not correlate with the individual voter‘s race, but, rather, with the race of the candidate, or, alternatively, with the race of the minority group members with whom the crossover voters identify. This fact has two important implications. In the first place, it confirms that, regardless of how the district‘s lines are drawn, African-Americans by themselves do not have anything close to an ability to elect the candidate of their choice. In the second place, it demonstrates that the appellants’ claim puts the emphasis not on assuring equal opportunity for minority voters but on assuring a victory by the African-Americans’ preferred candidate. That is the wrong emphasis. See
The existence of this misdirected emphasis is borne out by the fact that the appellants’ proposed reconfiguration of Senate District 2 would strengthen the electoral power not only of the African-American community but also of the sizable white and Hispanic crossover vote. That increased political clout would come at the expense of the remaining two-thirds of the white and Hispanic voters. The VRA empowers courts to protect the rights of a minority group to participate in the electoral process so that such a group, if treated fairly, can become a majority. It does not give courts the raw power to privilege the interests of the few over the interests of the many, much less the power to override the normal functioning of the majoritarian process. See Vecinos, 72 F.3d at 982; Smith, 984 F.2d at 1400-02.
The democratic system remains the best and fairest electoral system ever devised. Even so, the realities of democracy are sometimes harsh. The appellants seek to avoid these realities
That is the picture painted by the amended complaint. Where, as in this case, the bricolage comprises a roughly equal mix of minority and crossover voters, allowing a vote dilution claim to go forward would make sense only if the end game were to ensure the success of candidates favored by minority groups. As I already have explained, however, that is not the objective of the VRA. Nor should it be; my colleagues’ “functional approach” would create a topsy-turvy world in which legislatures would have to base redistricting plans not on the need to preserve legitimate majority/minority districts, but, rather, on guesswork about the way in which each constituent was likely to vote.19
My colleagues attempt to blunt the force of this reasoning in two ways. First, they posit that vote dilution claims must be decided based on the totality of the circumstances. That is so — but the statutory provision they cite,
My colleagues’ second gambit is to stress that Rhode Island elects its state senators under what amounts to a plurality system. This seems to me to be a bit of a red herring. On the one hand, cases holding plaintiffs to the requirements of the first Gingles precondition despite the existence of a plurality election system are ubiquitous.20 See, e.g., Perez v. Pasadena Indep. Sch. Dist., 165 F.3d 368, 370-71 (5th Cir. 1999); Stabler v. County of Thurston, 129 F.3d 1015, 1025 (8th Cir. 1997); Cane v. Worcester County, 35 F.3d 921, 924 n.4, 925 (4th Cir. 1994); McNeil v. Springfield Park Dist., 851 F.2d 937, 943-44 (7th Cir. 1988). On the other hand, cases in which courts have recognized a section 2 claim by members of a small minority group simply because they reside in a jurisdiction that employs a plurality election system are nonexistent. Moreover, plurality election rules are, as my colleagues apparently concede, more responsive to minority voters than simple majority election rules. It would be ironic to relax the first Gingles precondition for vote dilution claims arising
Last — but far from least — my colleagues’ reliance on the existence of a plurality election system ignores the vicissitudes of such systems. For example, in elections in which only two candidates are on the ballot or in which one of several candidates enjoys great popularity, minorities will have to muster a clear majority of all votes cast in order to elect the candidate of their choice. The permutations are endless. To my mind, this means that the putative effects of a plurality voting system are simply too speculative to provide a basis for a convincing vote dilution claim. See Brewer v. Ham, 876 F.2d 448, 455-56 (5th Cir. 1989); McNeil, 851 F.2d at 944. These problems may explain why the appellants never made reference to Rhode Island‘s plurality election laws in their amended complaint or their appellate briefs.
That ends this aspect of the matter. While I am willing to leave open the possibility that a racial minority group constituting less than 50% of the electorate in a particular single-member district may in special circumstances satisfy the
If more were needed — and I doubt that it is — the appellants’ claim also fails to satisfy the third Gingles precondition. That precondition requires a showing of nonminority bloc voting (which, for purposes of this case, encompasses the combined voting power of whites and Hispanics). Here, such a showing is inconsistent with the theme around which the appellants’ case is constructed.
The appellants showcase Senator Walton‘s past electoral successes as proof of the cogency of their ability to elect claim — but this is a two-edged sword. Consistent electoral success on the part of a racial or ethnic minority group that comprises considerably less than a numerical majority of the electorate is indicative of the absence of nonminority bloc voting and, thus, is presumptively inconsistent with the third Gingles precondition.
To be sure, the appellants asseverate that their past victories occurred only because the “old” district (in which African-Americans comprised approximately 26% of the population) was different than the “new” district (in which African-Americans comprise approximately 21% of the population). But this modest change in the level of African-American penetration does not render the voters’ track record irrelevant. Whatever the precise numbers, African-Americans were and are a numerical minority in the district — and the appellants are in effect arguing that whenever crossover voting is large enough to secure the success of a minority-preferred candidate, that crossover voting cannot be used to disprove nonminority bloc voting. Such a rule would conflict with both the realities of modern politics and the objectives of section 2. The better rule is that when African-Americans constitute a relatively small numerical minority yet repeatedly attract a crossover vote sizable enough to elect their preferred candidate,
In a final effort to salvage the vote dilution claim, my colleagues posit that we cannot make any determinations as to the third Gingles precondition until we have evidence of voter registration, turnout, and voting patterns. That might ordinarily be true — but the appellants have not presented us with an ordinary vote dilution claim. Rather, they make a very specific and highly idiosyncratic claim premised on the notion that at least 32% of the white and Hispanic population can be expected regularly to cross over in order to form the majority required by the first Gingles precondition. This approach inextricably intertwines the first and third Gingles preconditions, so that allowances given as to one necessarily have repercussions as to the other. See Sanchez v. Colorado, 97 F.3d 1303, 1315 (10th Cir. 1996) (remarking the interrelatedness of these preconditions); Jenkins, 4 F.3d at 1133 n.32 (same). That is one reason why this case cannot survive a motion to dismiss.
Although “the degree of racial bloc voting that is cognizable as an element of a § 2 vote dilution claim will vary according to a variety of factual circumstances,” Gingles, 478 U.S. at 57-58, the touchstone of the third Gingles precondition is whether the majority votes sufficiently as a bloc to enable it to defeat the minority‘s preferred candidate most of the time. See
I give the majority its due. In the ordinary course, district courts should allow colorable vote dilution claims to proceed beyond the Rule 12(b)(6) stage. And, moreover, if one is willing to split an infinite number of hairs, it always will be possible to conjure up remote scenarios that might be disinterred during discovery (and, thus, prevent the entry of a motion to dismiss). But Rule 12(b)(6) does not invite courts to engage in such endless conjecture. See Garrett v. Tandy Corp., 295 F.3d 94, 105 (1st Cir. 2002) (“The method of Rule 12(b)(6) requires courts . . . to resolve all realistic possibilities in the pleader‘s favor.” (emphasis supplied)). Some cases are sufficiently clear that, on any rational view of the facts alleged, a vote dilution
I add a coda. Reapportionment and redistricting are thorny matters — and matters in which state legislatures are best suited to lead. Within wide limits, courts ought to respect legislative choices. See Voinovich, 507 U.S. at 156-57 (collecting cases). I understand that respect is not equivalent to blind allegiance, and if there were signs that the Rhode Island General Assembly had acted in derogation of the Constitution or federal law, I would not hesitate to support judicial intervention. But such signs are lacking here, so respect counsels restraint.
Given the mixed racial and ethnic composition of South Providence, the Rhode Island General Assembly was caught between a rock and a hard place. It made a series of difficult choices, not perfectly, but within the compass of its legal and constitutional authority. Whether or not I would have drawn the lines of the
I have said my piece. Because the appellants fail to allege the kind of impermissibly race-based distortion of electoral opportunity that would sustain a claim under section 2 of the VRA, I respectfully dissent.
Notes
We take no position on that issue. Plaintiffs do not allege that they and another minority group form a minority coalition and that such a coalition may qualify as a “class” under § 2. Rather, this suit appears to posit that the interests of African-American voters have been pitted against the interests of Hispanic voters.
Further, the dissent assumes that “whites and Hispanics would have to cast almost half of the votes needed for a successful senatorial candidacy.” In a plurality race, as the dissent apparently concedes, that is almost certainly untrue. Even in a two-candidate race, it may be untrue -- given, for example, low overall voter turnout, high African-American turnout, and African-American bloc voting. Similarly, the dissent assumes that a 5% reduction in the African-American population is insignificant. But the former African-American state senator may have lost the election by that 5%.
Each of these assumptions reflects factual inferences that, by law, must be made in plaintiffs’ favor on a motion to dismiss. United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992).