*1 1488 indemnity arising out of the (citing paragraphs bution 63-64

began. Compl. H These agreement). cleaning According to up lease the site. 9 and 16 of the costs im- arguably provisions at least defendants, contractual or claims for contribution the to not the defendants pose duty upon lia- upon must common indemnity be based on hazardous wastes then leave dump and Dep’t bility. United Green v. States the site. Cir.1985). Labor, (8th F.2d Where liability principal no on the there can be respect negligence the to With claims, alleges corporation claim contribution or indemni- claim, that Soo Line corpo duty to conduct However, argument owed Soo Line cannot stand. ty due property on operations rate that all other presumes the Court dismisses law, ¶ At common Compl. 78-79. care. proper- Soo Line has claims in action. generally land owed possessor against ly pleaded several claims each to care and duty reasonable to exercise defendants; Court, therefore, will protect to visi so as premises maintain dismiss the claims for contribution not harm. risk of tors from an unreasonable indemnity. 328, 362 N.W.2d Congdon, v. Pietila Cf. Accordingly, foregoing, based law (Minn.1985) (noting common 332-33 files, proceedings upon all the records and action). The criminal duty in the context of herein, site on the discharge of hazardous wastes duty. Be a breach of could constitute mo- IT that defendants’ IS ORDERED alleged obli Line seems to cause Soo to state a claim tion dismiss for failure to through contract gations that arise may granted is upoh which relief denied. applica tort, opposed to retroactive statutes, the Court tion of environmental claims breach will let Soo Line's stand. negligence

contract Trespass, Liability, 3. Strict Pitts, NASH, Alvin Earl African Ameri Nuisance & Fund, Voting Legal Rights can Defense argue complaint that The defendants Inc., Troupe, Theodore Hos Charles liability, for strict to set forth claims fails kins, Hill, Plaintiffs, Ada Although par and nuisance. trespass, v. dis arguments, ties raise other BLUNT, Roy capacity official in his com puted issue seems be whether Secretary of of the State of State adjacent alleges property plaint that Defendant, Missouri, claim damaged. The defendants site was alleges only that site was Line Soo Stoff, Molloy, Neil Patrick Thomas adjacent to the damaged, property not Brady, Dougherty, Henry Buf Francis According to damaged. the defen site was kins, O’Neill, Chatfield, Matt Gail dants, permit the common does not law Auer, Dooley, Ron Melvin Charles bring actions property successors Paris, Lodwick, Weems, Myron John against landholders under previous DeCoster, Jr., Holland, Richard Jack Red E.g., v. these theories. Wiltse Childers, Carpenter, Pau David Sharon 255, 114, N.W. 99 Minn. Wing, Goward, Carter, Richard la Russell (1906); Realty v. Mo WellesleyHills Trust Dorsey, Intervenor-Defendants. (D.Mass. Corp., F.Supp. bil Oil 1990). assuming the defendants No. 91-0840-CV-W-2. correct, allege dam complaint does Court, United States District adjacent age property site. See Missouri, W.D. W.D. Court, 1172-73, 93. The there Compl. July fore, claims. will dismiss these Indemnity 4. Contribution or

Finally, allege the Court defendants contri- dismiss Line’s claims for

must Soo *3 GIBSON,

Before Senior Judge, Circuit SACHS, Judge, Chief District GAITAN, Judge. District GIBSON, Senior Judge. Circuit September 23, 1991, On 20 and lawsuits challenging the Missouri House Redistrict (hereinafter ing Commission’s “the Com mission”) redistricting house plan1 were filed the Eastern and Western Districts Missouri, respectively. On December *4 18, the two cases were consolidated before Pendleton, Mo., City, three-judge Edward L. Kansas court in the Western Dis trict plaintiffs for Alvin Nash Earl of Missouri. The Pitts. and defen dants entered into a proposed settlement Walton, Jr., Walton, Elbert A. A. Elbert and asked this court to set aside the Com P.C., Jr., Louis, Mo., plaintiff St. for Afri- duly mission’s promulgated plan and re Voting Rights Legal can American Defense place parties’ it with the plan. settlement Fund, Inc. time, At that we allowed certain interested parties to participate in proceedings as Jongenelen, McKay, Veronica & Benson Blunt, intervenor-defendants. Nash See v. Mo., City, Kansas for intervenors Melvin (W.D.Mo.1992)(memoran 140 F.R.D. 400 Weems, Paris, Jr., Myron Lodwick, John dum denying and order reconsideration of Holland, DeCoster, Jack Richard J. David intervention). Later, allowing orders after Childers, Q. Carpenter. Sharon held, public hearing a we determined Mo., Connaghan, Louis, Patrick J. authority we lacked displace the Com Osdol, Fitzgerald, D. Magru- Michael Van plan finding mission’s absent a P.C., der, Redmond, Erickson & James M. plan Commission’s violated law. Nash Crews, Smarat, Smart, Jr., Whitehead, Blunt, 24, (Jan. v. No. 91-0840-CV-W-2 Waits, Mo., Brownlee & Kansas Ste- 1992). going detail, great Without into our Garrett, Curtis, Heinz, Oetting, ven W. conclusion was based on the fact that redis Soule, P.C., Mo., Garrett & Clayton, for tricting, whether units or dis Stoff, Molloy, intervenors Thomas P. Neil state, up federal, set county, tricts to elect Dougherty, Brady, Patrick Francis R. Hen- officials, governmental or primari other Bufkins, O’Neill, Chatfield, ry 0. Gail Matt courts, ly legislative a function. The as Dooley Charles Ron Auer. coordinating government, third branch of body anointed to redistrict Charles, Mo., in- Maryella Kelly, St. of the various units for the election Dorsey. tervenor P. Richard of state or officials. The redistrict federal Carter, Representative Paula J. State being legislative ing process, primarily a Legislative City Dist. in 56th of St. act, usually by conducted either elected Louis, pro se. appointed acting or under constitu officials statutory princi tional and restraints and Goward, Representative Russell State ples. participants The courts are not Legislative Dist. in the 60th of St. rule, general redistricting activity as a Louis, pro se. jurisdiction should assume (1) Boicourt, Atty. redistricting procedure specifically Asst. Gen. Michael L. Jef- when (2) City, Mo., provided by adopted or an Roy ferson for defendant D. law where Blunt, Secretary challenged or capacity plan his official as constitutional stat utory principles the court finds after of State the State Missouri. Const, Ill, plan as art. § 1. The Commission’s became effective Missouri Constitution. Mo. adopted by it soon as was the Commission ¶10. procedures with the outlined in the accordance requires III, law there Missouri redistricting plan adopted HI. hearing § that the (163) sixty-three house dis- or statu one hundred of constitutional be is invalid because tricts, composed some of which must “be proscriptions. each tory directives or actively engaged territory compact may as contiguous as courts instances redistricting plan Additionally, population when other be.” Id. H adopting a to, unable fail or are near to 1/163 of bodies must governmental of each district Const, Ill, Id. art. do so. See to, possible. Mo. II3. total the state’s not failed in this process has legislative plan to constitute the order for H case, plan. being duly promulgated Commission, there it must product of the valid Thus, empowered to even fourteen) is not (or court approval from receive any proposed redistrict adopt Commissioners; thus, consider by litigants or provided ing plan, whether agree to a political parties must both itself, duly until current designed Secretary of can be filed with the before it Trial found invalid.2 adopted plan has been Id. State. H 30, 1992 and conclud on March commenced following census revealed the April 2. ed on population: Missouri’s data about challenge portions three *5 5,117,- is population The of Missouri total Representa House Missouri the 1991 population Consequently, the ideal 073. specifically, they redistricting plan; tives 31,393. each House district applies to St. Louis challenge plan as it 548,208 (or 10.7%) of Missouri’s citizens County,3 and Jackson Coun Louis St. are black. amended com ty. plaintiffs’ second The challenges legal on Section all plaint bases voting age population of Missouri is The Act, 42 Voting Rights seq. 2 et of the 369,239 (or 9.7%) voting 3,802,247. of the (1988) (hereinafter seq. 1973 et U.S.C. § population of the total age is black. 81.6% relief, Act”). re “the For voting age population in either lives 1) Commis quested declaration City, St. Louis or Jackson St. Louis Act, 2) replacement plan violated the sion’s County. the settle plan with of the Commission’s 633,232 County; people live in Jackson 3) preclear imposition of plan, ment of them are black. 21.4% on the State of Missouri. requirements ance below, plain 396,665 people City; live in Louis For the reasons stated St. is denied.4 request for relief of them black. tiffs’ are 47.5% 993,529 County; Louis people live 1. BACKGROUND of them black. are 14.0% census, Following 1990 decennial 472,417 County are of people in Jackson appointed eight an of Missouri Governor voting are age; of them black. 19.3% een-member,5 to re bipartisan commission 296,645 City are of people in St. Louis for the Missouri House draw the districts Const, voting age; of them are black. See Mo. art. Representatives. 42.7% file, days opin- dered within fifteen after We Missouri Constitution directs 2. note that the filed, redistricting expenses governor appoint a new com- an itemization of those ion receiving sixty days explanation notice within as to this court’s mission and fees and ah costs, reapportionment has been invalidat- ordering payment that a legal those basis for competent jurisdiction. Mo. ed Const, a court of attorneys' including The reasonable fees. other Ill, 2, 1. § ¶ art. days parties shall have fifteen after inter- file venor-defendants file material separate, geographically City both St. Louis 3. they responses desire. County politically, and is from St. county____" "recognized city as a and as a both major parties political nomi- 5. Each of the two Const, VI § Mo. art. Missouri’s candidates from each of nated two districts, governor Congressional and the request nine The have filed intervenor-defendants party's each nominee from expenses. then chose one of payment legal We will fees and Const, Ill, however, every Mo. art. request; ¶ or- district. See entertain their 749,134 people St. Louis are of district voting population had a black age voting age; of them black. 12.6% 68.7%.

The census showed: Following elections, the 1990 there were a total of representatives. thirteen black The Missouri total was Two came from districts with 4,916,766. Consequently, popula- ideal age populations less than 50%—Carson 30,164. tion for House was each Ross, 49,6 from district and Ronnie White (10.5%) 514,276 of Missouri’s citizens from district 63. were black. Eleven of the twelve districts with black voting age population of Missouri voting age populations greater than 60% 3,554,203. 331,303(9.3%) of the were represented by representatives; age population was black. (district 79) the twelfth was represented by 629,266 people County; lived in Jackson representative. 125,780 of them were black. parties’ two Commission members 452,801 people City; lived St. Louis divided the for drawing proposed task 206,170 approximately of them were black. maps differently. Republican Commis- 974,180 people County; lived St. Louis sioners primarily supplied relied on a staff 109,140 approximately them black. by Republican Party provide them 80,735 (17.6%) voting age popula- statistics, with maps, plans. and proposed tion in Jackson black. The Democratic Commissioners divided by Congressional district; their work each 134,750(40.3%) voting age popula- Democratic pri- Commissioner was to have tion St. Louis was black. *6 mary responsibility drawing the dis- 68,114 (9.6%) voting age popula- Congressional tricts in the district he or tion in Louis St. was black. input she lived in. In order to obtain from approved plan following in 1981 public, hearings the Commission in held created: census throughout various locations the state. hearings Witnesses at held in the St. Louis County. these, in districts Jackson Of area testified it would be undesirable populations exceeding four had black 65% city/county districts to cross line be- voting and age populations greater black cause the and needs concerns of St. Louis than 60%. County and City St. Louis were different City. these, 15 districts St. Louis Of and, times, mutually During exclusive. populations exceeding seven had black 65% held, period hearings were the Com- voting age populations greater and black amongst mission also them- members met than 60%. problems selves to discuss and concerns. County. in St. Louis Of caucuses, These meetings included these, had populations none black exceed- partisan meetings, were “breakout” 65%, ing (though popula- one had a black sessions, bipartisan meetings which were 60%), tion of approximately none had between Commissioners from various re- age populations greater voting black than gions. par- The Democratic caucuses 60%, (though voting one did have a black because, ticularly important individ- as the 51.3%). age population of ual need to Commissioners discovered the 1990, By population changes signifi- Congressional had cross district into another cantly makeup “capture” population the racial of only altered or “surrender” 79, district, required a one district. District located would not fit into County, voting age popu- opportunity had a black an discuss with the Louis matters Congres- initially neighboring lation of when it from drawn Commissioners 51.3% the 1990 census revealed the sional but districts. Ross, represent- geographic 6. Carson unlike the other black most black voters the three areas (and discussion) opinion Republican. under is a atives discussed unlike Jones, voting age populations districts had Democratic Com black Dr. Charlene 50%, Congressional though none greater the First than exceeded from missioner District, black Commissioner. 60%. supplied her materials consulted She plan for St. Louis drew 7 Dr. Jones’ (including the variety of sources from a voting age populations districts with black Apportionment Commission Missouri greater populations than and black 60% Handbook, the Missouri Office supplied by eighth Additionally, an greater than 65%. Administration), as as various laws well population had a black 42.5%. voting relating rights. regulations for St. Louis Dr. Jones’ these materials interpreted

Dr. Jones populations drew two districts with black legal had a obli indicating the Commission A district had a greater than third plan that created the 65%. gation to draw a and a had population of districts with black fourth possible number 64.9% maximum Dr. greater population than All four of populations 65%. black black 64.8%. to other Com expressed voting age popula- her views had Jones these districts black missioners, informally and at Commit both greater tions than 60%. support meetings, pledged to but none tee September the Commission On 15, 1991, August On Dr. Jones her efforts. approved plan a 14-4 vote.8 Dr. Jones presented the Committee with formally dissenting cast one of the votes. County, St. plan for proposed Jackson cre- County, Commission City that she and St. Louis 20 districts. Four of them had black ated optimally maximized believed greater populations than and black 65% strength in Dr. Jones did those areas. age greater populations than 60%. Committee members other

work with partial map, though she drawing this even Commission created St. Louis Second, Third, Fifth, Sev drew lines districts, popula five of which had black enth, Congressional Dis Ninth Eighth, and voting age popula tions over presented pro the time she her tricts. At Additionally, greater tions than 60%. ap any map Dr. insisted that posal, Jones had a sixth district by the had to include proved Committee voting age population and black 59.1% *7 satisfy to drawn order districts she had 51.2%.9 Act, formally the Committee asked In Commission cre- agree she had drawn to to use the districts popula- ated districts. had a black 32 One a starting efforts to draw point as a all 65%, greater tion than one had a black a died for lack of map. Dr. Jones’ motion 64.7%, popu- population of one had black thereafter, par second; Dr. Jones did not 61%, popula- had a black lation of one meetings, or ticipate in caucus breakout tion of Two them had black 58.5%. to leaving Commissioners other Democratic greater 60%, voting age than populations Congressional in the First draw the lines voting age population had a one District.7 56.1%, voting age and one had a black plan had Dr. Jones’ population of 54.3%. population greater with a black one district eight plan contained voting age population and a black than Commission’s legis districts which a white incumbent Additionally, four other greater than 60%. 64.2%, paired inc against lator was another white populations of had black 62.6%, 63.7%, All of these umbent.10 It also contained one four and 62.1%. unavoidable, configura- given incorporated, partial map er. This was Dr. Jones' 7. deviation, map. city. very demographics into settlement little tion and approved Republican Commissioners pairing from the 70th 10. We discount ninth ap- plan Commissioners The Democratic 9-0. district, matching Brady Robert Francis proved the 5-4. incumbents) (both Quinn Quinn because and Dr. Jones’ In both the Commission’s already he would not seek re- had announced high- actually plans, percentages much

1495 (district 61) in which a incumbent 35, a violation of the Act. Id. at legislator against paired another black Court, S.Ct. at 2758. The in considering a incumbent.11 to a challenge series of multimember dist ricts,12 following identified the “necessary II. DISCUSSION preconditions” to a 2 claim: § A. of a Elements Section Two Claim First, minority group must be able to provides Act Section of the as follows: demonstrate that it sufficiently large voting qualification prerequisite No or and geographically compact to constitute standard, practice, proce- or or single-member dis- imposed trict____ dure applied any shall be or Second, minority group State ... in a manner which results must able be to show it is politically that abridgement denial right any or of the Third, cohesive---- must citizen United of the States to vote on able demonstrate that the white ____ color, account or of race majority votes sufficiently as a bloc to 1973(a)(1988). determining U.S.C. § it—in enable of special absence cir- standard, practice, pro- whether a cumstances, such as the candi- prohibition, Congress cedure violates running date unopposed—usually to de- instructed the courts to total- examine “the minority’s feat the preferred candidate. ity of the circumstances” to ascertain 50-51, Gingles, 478 U.S. at 106 S.Ct. at processes whether political leading “the (footnotes 2766-67 and internal citations equally open nomination or election” omitted). preconditions Once these 1973(b). citizens of all races. Id. Courts met, a court must consider the factors iden may also consider extent to “[t]he tified in the Senate Report accompanying protected members of a class have been 48, the 1982 amendments. Id. at 106 S.Ct. office,” elected to but expressly the Act 2765; Clinton, see also v. Jeffers states it right does not establish “a to have 196, (E.D.Ark.1989) F.Supp. (three- protected members of a class elected in — court), U.S. —, judge aff'd, 111 S.Ct. equal proportion numbers to their (1991). 112 L.Ed.2d 656 Those factors population.” Id. are: Thornburg Gingles, Supreme v. history the extent of examined, official time, Court for the first the 1982 discrimination in 30, 34, political the state or the Act. amendments to 478 U.S. right (1986). subdivision touched the S.Ct. 92 L.Ed.2d 25 recognized minority group reg- The Court amend- members the 1982 ister, vote, ments made to participate clear intentional discrimi- or otherwise longer required nation process; was no in order to democratic *8 Secretary This, obviously, election and would instead run for election in November. was af- plan, State. ter the Commission filed its there is suggest in the no evidence record to the Com- for, run mission knew Williamson would much plaintiffs 11. The contend districts two other win, Clay’s seat. less involving pairings contained black incumbents: 64, matching (black Clay district cumbent) William in- Although Gingles challenge involved a to the 12. incumbent), (white against Tom Stoff expressly use of multi-member districts and did 57, matching against and district O.L. Shelton analysis appropriate not address chal (both incumbents). Frank Williamson districts, single-member lenges Gingles, see However, we do not consider match- these true 12, 12, at 478 U.S. analytical 46 n. 106 S.Ct. at 2764 n. its Clay ings. representative was the William from applied to framework has been cases 3, 1991, September district 64 until which at single-member challenged. in which special time he won a election to the Missouri Legislative Redistricting g.,E. Illinois Comm’n v. plan Senate. The Commission’s was filed LaPaille, 704, (N.D.Ill.1992) F.Supp. 786 711 20; thus, September filed, at the time the was Clinton, court); (three-judge v. 730 Jeffers actually was no from there incumbent 196, (E.D.Ark.1989) (three judge Supp. F. court), 205 Clay’s district. - 662, -, aff'd, U.S. 111 S.Ct. 112 October, Coleburn, (1991); special Williamson filed for 656 689 L.Ed.2d Neal v. 1426, (E.D.Va.1988). Clay's vacancy, F.Supp. election to fill and he won the 1435 Report As the Senate accom- population.” in the 2. to which the extent political subdivi- Act panying the state or the 1982 amendments to the elections of racially polarized; states, sion (which quoted language) added polit- provision “put[ state or rest 3. to which the intended to the extent ] unusually large has used ical subdivision any concerns that have been voiced about districts, require- majority vote 417, election quotas.” Sen.Rep. racial No. 97th ments, provisions, or oth- anti-single shot Cong., (1982), 2d reprinted Sess. 31 procedures that voting practices or er 1982 U.S.C.C.A.N. 208. Given Con- may opportunity for discrim- enhance the express Act does gress’ statement group; against minority ination proportional require representation, we not slating candidate 4. if there is a Congress intended the Act do believe the mi- process, whether members representation. maximum The con- require nority group have been denied access requirement verse of such would be a process; continuing duty representation to minimize to which members of the 5. extent probably by majority groups—a concept political group the state proportional repre- than more controversial effects of discrimi- bear the subdivision sentation, which, above, spe- as noted education, in such areas as em- nation cifically rejected by Congress. health, their ployment and which hinder interpreted contend ability participate effectively in the Jeffers requiring representa maximum the Act as political process; however, tion; has our review campaigns political whether Jeffers opinion in part uncovered no of the court’s by overt or subtle ra- been characterized re majority concluded the Act appeals; cial quired drawing possi of the maximum the extent to which members minority-controlled ble number of districts. pub- minority group have been elected to Though the did court consider jurisdiction. lic office Jeffers black-majority districts that number Sen.Rep. Cong., 97th 2d 28- No. Sess. drawn, only to could have it did so been (1982), reprinted U.S.C.C.A.N. whether the ascertain factors, however, This list of 206-07. “sufficiently large geographically exclusive;” comprehensive “is neither nor compact single- to constitute a may pertinent certain “be individual violations, required other member districts” as the first types of factors [and] may may also relevant and be consid essential factors identified Gin 45, 106 at Gingles, ered.” U.S. S.Ct. Jeffers, F.Supp. at 205. gles. examine re court went on to Jeffers factors, 208- maining two essential id. at B. Maximization 09, as well as the additional factors identi Act re assert the Report. fied in the Id. at 209-17. Senate body charged drawing quires that the Though ultimately court deter Jeffers many must dis new districts draw violated, had it did not mined the Act been containing tricts or more black resi legal upon the solely its conclusion base mathematically pos legally dents as is *9 minority-controlled that more districts fact reject argument We this for a varie sible. fact, in drawn. order could have been reasons, ty the of foremost of which is lack plan, the ing state officials to create new any language support in the Act to of to state that it' was “not court was careful position. only language The contained in holding requires the the creation law repre degree the the Act that discusses any particular majority-black number in required is 42 sentation that should be at 217. The court also sus districts.” Id. 1973(b), “nothing it where states U.S.C. § redistricting plan respect tained the right to in section establishes a have designed to cre Pulaski protected of a class elected members districts, even majority-black three equal proportion to their the ate numbers

1497 claim, though single four such member districts tive of a but rather is § determina possible. at 216-18. were Id. tive of claim. § plaintiffs’ argument We also believe 5 of requires Section the Act certain very by defeated existence preclear states and localities to any Supreme holding in As Gingles. Court’s changes in their voting procedures (includ II.A., supra, Gingles discussed in Part ing reapportionment) with the Attorney appropriate analytical Court identified the changes may General before those be uti analysis framework 2 claim. for a That § lized in an election. 42 U.S.C. 1973c § suggest requires does not the Act maxi (1988).16 purpose The provisions of these possible minority mum representation, nor has been by Supreme identified Court proving minority- does it suggest that more thusly: dominated could have been drawn “Section 5 response was a to a common will Gingles analysis. substitute practice in jurisdictions some staying Thus, plaintiffs though proven step one ahead of the by federal courts more districts could be drawn sacrific passing discriminatory new voting laws ing degree compactness, a certain soon the old had ones been struck prove plan fact does not the Commission’s practice That possible down. had been violates the Act.13 because each new law remained in effect until the Justice Department private or Retrogression C. plaintiffs were able to sustain the burden plaintiffs they The also contend can law, of proving too, that the new simply by proving a 2 violation discriminatory____ Congress therefore retrogression. Retrogression existence of decided, Supreme as the Court held it impo can occur through redistricting or the could, advantage to shift the of time and diluting plain sition vote devices. The from perpetrators inertia of the evil plan tiffs contend new retrogressive victim, by freezing proce- its election because it less creates controlled dures in covered areas unless the City (five) districts in St. Louis than there changes can be shown to be nondiscrimi- (seven).14 also natory.” abnormally high contend an percentage of States, 130, 140, legislators paired together in Beer v. United 425 U.S. 1357, 1363, (1976) plan, Commission’s which is another indica S.Ct. L.Ed.2d 94-196, retrogression may (quoting H.R.Rep. tor that Cong., have occurred.15 No. 94th (1975) retrogression (internal quotations is not 57-58 determina 1st Sess. 13. There has rela- been much discussion of the and that some of the districts that had black compactness plan majorities significantly underpop- tive of Dr. Jones’ 1990 were plan. inspection population. A Commission’s visual of that ulated because loss in plans plan by arguing percentage two Dr. demonstrates Jones' less counter however, compact plan; than the Commission’s blacks overall increased. Because of the nature passing regarding retrogression, we are not on the issue Dr. of whether of our decision we will lacking plan compactness dispute. Jones’ is so that it this factual resolve pass could not Constitutional muster. earlier, agree 15. As we do not with the noted also Jones’ defendants have attacked Dr. plaintiffs' regarding the calculation number of First, plan on two other fronts. contend Nonetheless, holding paired our incumbents. despite percentages in her of blacks obviates the to discuss the on this issue need districts, supposed minority controlled detail; greater paired effect of however, incumbents really voters will not control the Sec- elections. paired number of incum- ond, they her contend is undesirable underpopu- be due to the resultant bents could unpop- that it divides communities in a series of past the black ten- lation in districts over ular and Given absurd manners. the nature year period. today, our decision we do not make find- ings legal about these the truth effect of *10 Missouri, any of the 16. nor locales at Neither claims. suit, required pre- this to obtain issue in changes prior argue enacting to defendants loss of districts clearance procedures. due to the loss of in St. Louis 1498 resentation, a this fact serves as de purpose

omitted)).17 other words “In plaintiffs’ no The defen to to the suit. always been insure fense 5 has of § partially Gingles made held changes be correct. would dants voting-procedure minority in the retrogression a some candidates “proof to that would lead respect to with 2 minorities foreclose a position of racial elected does not § been of the electoral 75, effective exercise at 2779. their claim.” 478 U.S. at 106 S.Ct. 1364; 141, at 96 S.Ct. However, at proportional repre franchise.” Id. “persistent States, 460 v. United allega also Lockhart see is inconsistent with sentation [the] 998, 10, 125, S.Ct. 1004 n. 134 103 n. U.S. ability of black voters ... tion that the (1983). Though 10, retro 863 74 L.Ed.2d representatives elect of their choice not primary appears to be issue gression majori enjoyed by equal to that the white cases, no in which we have found cases 5§ This ty.” Id. at 106 S.Ct. at 2780.18 more, served to sat retrogression, without hardly surprising. statement law is 2 in a plaintiffs burden isfy all of § requires plaintiff 2 Gingles a successful § Bandemer, U.S. v. 478 case. Davis usually prove that voters vote to Cf. 2797, 2810, 109, 133, 92 L.Ed.2d 106 S.Ct. minority- gether as a to defeat block (indicat (dicta) (1986) opinion) (plurality 85 If can preferred candidate. defendants required by rule is ing no-retrogression proportional repre prove prior persistent Act). again rely on 5 of We once § sentation, virtually impossible it would be Supreme Gingles discussion Court’s prove white voters for the can plaintiffs' claim that reject the usually together minority- to defeat vote merely by prov 2 carry burden on their § preferred candidates. retrogression all if ing retrogression; proved be to demonstrate that need § what we believe violation, suspect Gingles we Court clarity, will the mer interest we address would have so indicated. its of the affirmative defense before ad dressing plaintiffs’ the merits of the case. say of retro proof This not to per has assessing whether there been unimportant wholly gression § proportional representation, we be sistent case; proof, such simply hold that we must be discussed: we lieve two elements alone, not the existence of a will history minority first must examine of factors Given that list violation. challenged geographi representation in the Report is ex in the Senate contained areas, we must cal and then determine haustive, retrogres we believe evidence of likely plan is whether the Commission ap (along any explanations) may sion with past proportional rep trend of continue along propriately be considered resentation. Re by the Senate other factors identified course, explained in Part II.A. port. Of Assessing history repre- minority Report’s factors are con supra, the Senate presents problem. Inasmuch sentation plaintiff proven has sidered after the (as protects opposed Act voters as the necessary preconditions three enunciat candidates), inquiry appropriate would in Gingles. ed analysis seem to be an of the success of However, preferred candidates. Proportional Repre- D. The Defense of defense, Gingles discussing sentation on the of mi- Court concentrated success candidates, nority and did not discuss the The defendants contend the Com preferred rep- candidates. proportional allows for success mission’s pri- S.Ct. at 2758. Justice We have drawn U.S. at O’Connor, note that retrogression mary support Burger, joined their claim from Chief Justice Jus- Beer, Powell, and have not cited case that found Rehnquist, expressed and Justice tice solely retrogression. § 2 violation based position. support S.Ct. Id. at J., (O'Connor, concurring). joined Only Brennan in Justice White Justice portion opinion. Gingles, 478 Court’s

1499 77, choice, 478 U.S. at at 2780.19 There select the S.Ct. candidate their we will fore, prior begin our analysis we will consider success of by assuming of the 60% voting regard age population black candidates without to whether is the appropriate target predominately percentage. were elected from black districts. Finally, pro contend portional representation meaningless is un dispute regarding

There is a also less percentage representa of black how to measure black voters whether approximates tives percentage a fair elect the opportunity to candidate of living blacks disagree. state. We their choice. insist the anal 85,200 (or Approximately 15.5%) of Mis ysis begin by assuming must of the 65% souri’s black residents live outside the population district’s total must be black. three areas at issue in this case. It valid, this is agree defendants but con undisputed that portion of Missouri’s starting superior assumption tend a is that population black geograph is too small and age population of the must be 60% ically disbursed to a majority constitute Byrne, v. In Ketchum black. F.2d district,20 and there is no authority to denied, (7th Cir.1984), cert. U.S. suggest inability these citizens’ to be 1135, 2673, (1985), 105 S.Ct. L.Ed.2d 692 together included in one or more districts prac court commented that the usual should be up” increasing “made simple tice “augment[] was to number of minority controlled districts in young with an for population, additional 5% those areas of the state where black citi registration for low voter 5% 5% zens are most concentrated. Because the turn-out, low voter for a total increment of starting point of requires claim Id. at 1415. population.” of total 15% the minority population be sufficiently nu These are to corrective estimates be used compact merous and majori to constitute a unavailable, id. when the actual data district, ty in a appropriate think it we 1416, if, instance, “voting age popu but focus our analysis attention and on those used, lation drop statistics are would 5% portions of the state where this condition formula, leaving something out of the exists. Consequently, we will endeavor to voting age the vicinity population 60% ascertain propor whether there has been Id. at 1415. target percentage.” as the representation tional in Jackson 1980, recently Until as reliable census County. and St. Louis relating age populations data recorded, there was hence a need to County Jackson rely equalize on some estimate 1980s, factor. Throughout percent census data regarding voting age age contained living County statistics of blacks in Jackson Ketchum, populations. Following approximately the su Until the districts 20%. perior analysis consider were would redrawn in had 60% voting age population relying twenty-one instead of districts.21 which was historically the additional needed the first election after 1981 districts factor. See id. at 1413. went equalize age effect, representatives into 4 black Therefore, determining representatives whether elected. Four black an likely opportunity voters are to have to were elected in 1984 1986 as well. often, categories always, enough 19. The two but not could not do so there were not because case, thing. In this majority, describe stance, same for in- black residents to form a much less a Ross, we would Carson include supermajority. representative predomi- elected from a who was (district 49), nately white district but would not roughly corresponds 21. This to the number of Brady, representative include a white Francis to, County was entitled districts Jackson predominately who was elected from by dividing of Jack- calculated (district 79). district County by son size. This calcu- the ideal district lation indicates Jackson was entitled to attempted 20. Dr. Jones testified she to form a 20.86 districts. Springfield, minority-controlled but *12 1500 repre representatives reapportionment, 1981 seven black black five

1988 Thus, past rep during the dec- elected. Seven black sentatives were were elected. legislators ade, of black proportion the in 1984 and were also elected resentatives ex- County has been almost Jackson legisla from eight In black 1988 of citi- equal proportion to the black actly Thus, throughout the tors were elected. County. in living zens Jackson 1980s, proportion legislators of black the nearly City approximat St. has from Louis 20 in plan created districts The 1991 living citizens proportion ed the of black of one district County. The loss Jackson County City. Louis to the fact Jackson St. was attributed of portions other the population while lost Commission contains 13 1991 fact, if the population. gained state City; as was the case districts in St. Louis County by is divided Jackson population of the decrease districts size, one would discover district the ideal population. due a substantial loss of ap County was entitled that Jackson size and Based on the ideal district the of districts. Four the proximately 20.17 approxi- city’s population, there should be voting age popu twenty districts had mately City. 12.63 districts St. Louis Of districts greater than These lations 60%. districts, voting age five have black range sug permissible fit well within the greater than A sixth dis- 60%. Ketchum, by and we believe these gested voting age population has of trict a black districts; minority effective districts are Though signifi- this district is 51.2%. latter is, minority will have a fair voters suggested cantly benchmark below 60% representatives opportunity to elect Ketchum, by we it to be an effec- believe holding is bolstered not Our their choice. First, minority tive district. experts, but also only by the defendants’ incumbent—Representa- will have a black plaintiffs’ expert, who testified that previously Ronnie White—who was strong political organization tive unusually would elected from a district with voters in Jackson true, probably of effective minori If it age population allow creation is as 36.1%. ty percentages less than contend, districts with plaintiffs White was Finally, we suggested candidate, in Ketchum. those preferred his of effective percentage note prospects for reelection have been en- nearly (20%) is the same districts by increasing percentage of mi- hanced percentage residents in Jackson of black from norities in his district 36% 51%. Thus, (21.4%). conclude that we fact, understanding it our that White history ten-year has at least there been (presumably practical politician) is satis- representation,22 well as proportional Secondly, with his new district. fied there will be certain likelihood that near parties key winning elec- concede the representation for the next proportional winning City tions St. Louis lies Therefore, find the defendants we decade. primary primary. The can be democratic successfully proved the elements of have vote, by a effec- plurality won defense, affirmative tively percentage lowers the of votes need- City Louis St. all Nearly ed to win. black voters 90% democratic, giving the thus black vot- 1980s,

Throughout the black citi political weight if there greater ers than approximately constituted zens requirement. Fur- were a vote population. During the last City’s thermore, City pre- as a whole St. Louis decade, in St. Louis there were democratic, following dominately so winner of In the first election the- City.23 history sary analyze proportion representation provided year than 1982. political ten earlier in Missouri in blacks in office present. increments from 1900 the factor, Gittgles go discussing supra did described in note 21 23. The calculation nearly Gingles, at entitled to 15.01 so far. U.S. S.Ct. indicates St. Louis reapportionment plan. do it neces- districts in 2780. We therefore not believe primary the democratic an campaign stands excellent financing. winning general

chance of election. *13 also it contend has been judicially estab- us These two factors convince that all six lished that a black population of 66% is districts, of the these of total dis- 46% necessary in County St. Louis in order to tricts, minority oppor- will allow voters an insure minorities a fair opportunity par- tunity fairly participate political in the ticipate in process. the electoral reject We process, very percentage which is near the of arguments. each these in City. black residents St. Louis Given As Ketchum makes abundantly of, past history the and prospects future clear, the figures and only 60% 65% for, representation in proportional St. Louis guidelines toas what constitute effective City, we find the have defendants met their precise districts. The number is a regard burden with to this defense insofar question of that may fact differ depending as Louis St. concerned. upon the circumstances. Fletcher v. Gold County 3. Louis St. er, (8th 959 F.2d Cir.1992). Using redistricting plan thirty- The 1981 drew both homogeneous precinct analysis25 and County.24 one districts in St. Louis ecological bivariate regression,26 the defen decade, Throughout the percentage the experts dants’ the percentage calculated living blacks in St. Louis rose from actually black and white voters who cast approximately approximately 11% 14%. in votes the last three elections. This was However, only legislator one black by done applying the above-described sta County during elected from St. Louis the tistical techniques to the number of votes 1980s, he in and was defeated highest for cast the in office the election The 1991 creates thirty-two districts and the results local elections. This County. in Louis St. The increase in dis- equalize would for all three factors for tricts can attributed to an increase in suggests which Ketchum enhance 5% county. in the Based on the ment; the experts’ analysis, by calculating population, expect one would St. Louis percentages the of whites and non-whites County to approximately have dis- 31.65 votes, actually casting takes into account districts, Of tricts. these two have black age, registration, and turn-out rate. This 60%; voting age populations greater than experts the enabled to calculate the true age voting two other districts have black equalizing percentage, obviating the need 54.3%, populations respective- 56.1% rely on the estimates from Ketchum. ly. contend will not representation analysis sug The results of proportional assure gests the equalizing percentage future because fall true St. two districts mark, Though below the Louis is is inade- somewhere around 60% 60% 55%. quate accuracy event because it does not we have some take doubts about incumbency into account such factors percentage,27 testimony we think the According to the calculation described in drawn that minimizes the distance between line; supra, graph note points entitled to each of the on the and the 32.29 districts. represents relationship this line between by race and the votes received the candidate. Homogeneous analysis precinct compares voting patterns voting districts that are at First, primary 27. We have two concerns. voting patterns least 90% white with the by using highest data starts the votes cast for the districts that are at least 90% black. This allows ballot, opposed on office to the votes cast preferences approximate one to of the black particular being race studied. This dis- voters. crepancy that Mis- is necessitated fact souri does not tabulate the votes cast for each ecological regression 26. Bivariate considers office; only for the it tabulates the votes cast voting voting by plotting all Thus, highest way to office. there is no mea- graph. represents The X results on axis is, off;” “drop voting age sure the number of populations, by percentage, highest voting represents people who vote for the office each The Y axis district. opportunity by particular ballot eschew to vote of votes number received candi- each line There is no indication how date in district. A is then others. also per- compensate for the additional factors equalizing suggesting useful for plaintiffs. age suggested by the than centage is less 60% Therefore, conclude it we population. Finally, the contend voting age popula- not fatal that the black already federal court has ruled a that a minority controlled districts tion all four County must district in St. Louis two the districts is less than when 60% population of at least order to other two and the 56.1% are over 60% be an effective district. See *14 54.3%, respectively. Golder, 91-2314C(7), slip v. No. Fletcher 15-17, (E.D.Mo.), op. WL 105910 we must plaintiffs’ claims that (8th Cir.1992). aff'd, 959 F.2d 106 We be percentage upward to take into adjust the in differ lieve the circumstances Fletcher incumbency reelection factor account in this from circumstances ease. financing disparity not campaign Fletcher, the court was called on to draw not supported in the law. The Act does for the St. Louis Coun districts requirement, and do not impose this we process designed legislative cil because the per try to to estimate the it wise believe lines had to do to redraw the district failed necessary to “make centage of black voters Generally, so. when a federal court is accept We as true up” for these obstacles. lines, re on to draw district it is called frequently returned that incumbents are quired to standards than the follow stricter office, tend to receive that incumbents body charged legislative with the initial campaign than chal more contributions See, responsibility redrawing districts. lengers, that candidates receive 535, 540, Lipscomb, e.g., v. 437 U.S. Wise can than white campaign less contributions 2493, 2497, (1978) 57 L.Ed.2d 411 98 S.Ct. Nonetheless, we do not think the didates. words, (plurality opinion). In other political designed equalize all Act was seeking to Fletcher court was create ideal increasing per disparities by further districts; legal only are concerned we with voting districts. centage of minorities in permissibility. also note the evidence We there, presented in Fletcher was different: Even if these factors should somehow popula how do a testified that equalized, and even if we knew witness so, had in order equal- should be tion in district to be black we are not sure instance, opportuni a For one for the minorities to have fair ized in all four districts. 69) nobody (district ty; in this case testified that such a of the districts will have case, necessary. percentage In this voting age population of 56.1% expert testimony indicating in- that representative; it seems we heard no incumbent incumbency four and financ- these districts appropriate to take districts; no incum- would be effective ing into account when there is Fletcher, Furthermore, expert the in- the court heard evidence bent. (which indicating certain representative had been elected that cumbent age part plan ultimately rejected by popu- had a district that a black court) provide with Though plaintiffs sug- would not minorities lation of 68.7%. Fletcher, op. slip at 17. opportunities. not the fair gest representative this is white, ultimately ap Finally, is court preferred because he Fletcher candidate probative proved a district with a black offer no evidence figure is less than one of the support attempt This this claim. We will 65.1%. not; almost same he or we districts in this case and determine is whether Though figure slightly this mention situation to demon- a second. merely remaining two districts in trying have more than the difficulty strate the we would voters, direction, much, higher presidential discrepancy is much when in what may skew the results. the few election is on the ballot. experts many took of the races elections examined We are also concerned year (with produced place studied were in with one and 1990 uniformly recog- presidential It election. exception) similar results. turn-out, among particularly nized that voter

15Q3 case, we have no idea how the districts ferred candidate.29 We will examine this compare age popu- terms of black issue in each of the issue, three locales at lation, already which we have indicated is though even proven defendants have superior comparison. basis for In their affirmative defense respect short, the differences in evidence and two of them. judicial our roles indicates we are not 1. Jackson County by Fletcher, were, bound and even if we key battleground in Jackson ap- we are not convinced that we (as County elections is the case in St. Louis proved anything truly that is a radical de- elections) is the Primary. Democratic parture from Fletcher. particularly portions those Logically, finding our likely there is within City city limits, the Kansas consists proportional to be representation during primarily democrats; whichever candi the next decade should save the St. Louis date primary, regardless survives the County districts from an attack under the *15 race, likely general to win the election. However, Act. under the current status of primaries, These like those in St. Louis the Gingles, law as contained in the defen- City, can by plurality be won a of the vote. may obligated prove prior pro- dants to contrast, In municipal elections in Kansas portional representation, they have City30 partisan are non and must be won not respect County. done with to St. Louis by majority of the vote. Therefore, we hold the defendants have failed to their affirmative defense regard specific With elections in Jack respect St. Louis because son County, plaintiffs’ the expert did not history persistent there has not been a analysis conduct a statistical of the proportional representation. patterns in County, Jackson but she did study discuss the results of another involv Application E. Gingles of the Precondi- ing three County-area political Jackson tions to the Present Case races: the 1979 mayoral and 1991 races in disagreement among There is little the City Congressional Kansas and the 1982 parties that the is suffi black race for the Fifth District.31 In ciently large geographically compact and to Bruce Watkins received of the black 80% majorities single-member constitute mayoral primary, dis vote in the and finished geographic tricts areas at issue in general first overall. in the elec tion, Similarly, (58.1% this case. we decisively find that black Watkins lost to 41.- politically 9%), voters in these despite garnering areas cohes of the black 90% parties ive.28 The have focused vote and of the white In the 20% vote. third Primary Congress element: whether the white voters 1982 Democratic for man, together have voted as a block sufficient Alan Wheat received of the black 95% usually minority vote, vote, pre- numbers to defeat the of the overall 31.4% Though it is true there have been some in- views to black citizens as a whole. Absent some split among particular stances in which the black vote has indication that a white candidate was candidates, majority truly two or more in the vast preferred despite receiving not over 65% solidly vote, elections black voters were behind a particular of the black or that a single viable, candidate. candidate was not we will not assume particular political that the voters in a contest have, purposes opinion, 29. We for of this arbi- would have voted for someone other than the trarily any receiving deemed candidate more for, person they voted nor will we assume that a "minority preferred.” than black vote 65% receiving white over of the black candidate testimony some There was to the effect that preferred by vote was not voters. voters, choice, given would vote for candidates, black receiving majority and that a white candidate Most, all, but not of Kansas is located in prob- black vote was (but all) of Jack- and most not ably preference. not "true” There was also City. son is located Kansas testimony indicating person if a white re- vote, ceived a of the black encompasses probably Congressional 31. The Fifth District candidates were not viable candidates. most, all, County. impart We refuse to these individual witnesses’ but not of Jackson 1504 allowing escape pri- Primary over seven black candidates to Democratic

won the pluralities. plaintiffs fur- on to win maries with Wheat went other candidates. pre- (57.9% 40.2%) contend that unless the general ther decisively a majority ob ferred candidate receives Emanuel Cleaver election.32 vote, have satisfied the vote—over twice overall tained 36.7% of mayoral disagree. purpose competitor—in burden. We of his nearest their general primary, inquiry on to win the determine whether the went of our presence spite minority’s of a tradi “submergence election in in a white ... mechanism, majori vote-diluting impedes ability cho- tional its to elect its ty requirement. Cleaver received 78% representative,” vote at Gingles, sen U.S. primary and 90% 51, Thus, inquiry the black vote our S.Ct. general election. capable of vot- not whether whites minority pre- ing as a block defeat the experts analyzed a vari The defendants’ ferred candidate—it is whether elections, ety county as well as some impose a mini- done so. The act does county City. from Kansas elections degree support mum standard analyzed races included33 minority preferred offer voters must county execu primary democratic fact, Supreme Court ex- candidate. tive, primary coun democratic recognized polar- pressly degree two), (district ty the 1988 democrat council necessary viola- ization to establish *16 primary prosecuting attorney, and ic for may vary depend- from locale locale tion general county council the 1986 election for factors, ing upon variety including the a of 2). races, (district the In two of these diluting presence of vote factors. Id. at lost. In two minority preferred candidate 106 S.Ct. at 2769. Jackson elec- them, minority preferred of candidate tions, following pattern emerged: has won; support of over one with 50% to win the black candidates have been able voters, support the other with and primary plurality a democratic with In the fifth over of the white voters. 45% vote, general and then election win race, evenly split the black vote was almost republican against candidate. Inas- candidates, mi there was no for two thus much as Missouri has decided to avoid nority preferred candidate.34 diluting vote re- vote effects analyzed city included The races elections, it quirements county in and state 3, 5, in city races for council analyze inappropriate would for us to in minority preferred candidate 6.35 The diluting if the vote mechanism elections as minority preferred can district 3 lost. The (and effect) present. We associated were in 5 and 6 both won their didates usually cannot the white voters conclude run-offs; respective approximately one had minority pre- vote a block to defeat the had the white vote and the other 35% candidate, plaintiffs ferred white vote. over necessary precondition failed to (cid:127) apparent discount these County. respect to Jackson successes, claiming would these victories City 2. St. Louis not have had there not been occurred municipal political enough in the democratic contests white candidates Unlike vote, split thereby in for offices in St. primary to the white Kansas elections support Congressman three the black voters had combined their Wheat has been reelected times, plaintiffs’ expert candidates, thereby creating single, her but neither the nor a one dynamics candidate, these source material discussed the minority preferred clear that candi- later elections. by primary date still have lost the would margin. sizeable analyzed, ex- other but the Two races perts regarding were unable to derive data analyzed experts Cleav- 35. The defendants’ also pattern in those races. very victory in and found results sim- er’s primary referring to the 1988 34. This already discussed. ilar those prosecuting attorney. point if We out that even City partisan. usually that, as in Louis occur. She also testified occasions, City several minority preferred races St. Louis white, pri- candidate was usually won or lost the democratic that on several decades, citywide occasions white candidates had mary; the last two no received the support of politicians, influential black Republican. office has been held even when running black candidates where majority-vote requirement There is no primary. the democratic primaries. proves The evidence in St. plaintiffs’ expert used what she de City polarized along Louis racial lines. homogenous analysis scribed as ana However, the evidence falls far short of city-wide prima lyze thirteen Democratic proving polarization is so severe primary ries and one state that took Senate usually that white voters together vote place between 1980 to defeat minority preferred block analyzed city-wide 1988. She also five candidate. Black candidates have been primaries place Democratic took be elections; city-wide successful in more im- 1991, using tween 1989 and both the ho portantly, minority preferred candidates mogenous method and some form of re race) (regardless of have been elected to gression analysis.36 her cal Our review of public office. We therefore plain- find the culations convinces us that of those nine satisfy preconditions tiffs have failed to races, deny teen whites voted as a block to City. for a claim St. Louis victory minority-preferred to the candidate races, no more than seven times. three 3. St. Louis sufficiently split the white vote was to al offered no statistical minority preferred candidate to low win analyses County. of elections in St. Louis plurality of the vote and advance to explain We are therefore at a loss to how races, general election. In suffi four usually we can conclude that white voters supported the mi cient numbers whites together vote as a block to defeat nority-preferred candidate to allow that preferred candidates. We earlier noted *17 candidate to win a of vote. had, County by that St. Louis the end of races, four voters were not suffi 1980s, voting one district with a black ciently unified to allow us to determine 68.7%, age population of and that this dis minority preferred who the candidate was. represented by person. trict was a white race, Finally, winning in candidate one proved repre The have not support had the of of the whites and 70% minority preferred sentative was not the blacks, making thereby candidate, proved they nor have whites vot of choice both candidate the candidate of. together him instead ed as a block to elect races. preferred minority of a candidate. expert discussed the re- defendants’ relating in the record only evidence study of a she had conducted for sults voting patterns County’s to Louis racial St. trial. This purposes unrelated to this supplied by the defendants. This evi- city- study analyzed the results of certain suggested vot- generally dence that white occurring elections between 1982 and together minority wide to defeat ers did not vote However, expert analy- also discussed her preferred candidates. one pri- occurred after sis of several elections that elections was a democratic of these though significant there study, mary; her and testified that this caveat is because democratic, and will when white voters most voters are some instances candidate together to defeat vote for the democratic voted as block election, candidate, regardless of that candi- general minority preferred this did not Gingles, given Supreme and plaintiffs’ Court in contend the ex- 36. The defendants methods, numerical conclu- of her her pert’s are unreliable be- nature data and conclusions probably slightly None- proper techniques inaccurate. expert sions are theless, did not use cause the may slightly though detailing numbers her Without the con- and calculations. inaccurate, accurately portray methods, agree plaintiffs' we believe trasting we that by elections. approved behavior in these expert the voters’ did not utilize the methods SACHS, Nonetheless, Judge, concurring. Chief light race. date’s present evidence plaintiffs’ failure opinion my agree- general This records burden, we conclude carry cannot their opinion with Judge with ment Gibson’s usually the election block voters aspects are the result. There certain St. preferred candidates litigation my deserve judgment County. Louis comment, individual because further significance in this cases. their and other III. CONCLUSION agree- stating my It seems worth Louis Both Jackson St. rep- Voting ten-year history proportional Judge Eisele that have a ment Rep- leg- in the Missouri House Rights resentation Act is not “affirmative action” resentatives, plan is and the Commission’s in the a constant sense that there is islation the next likely to continue this trend for legal duty imposed responsible on those findings a le- years. These constitute ten plans redistricting devise that maximize plaintiffs’ 2 claim. gal defense to the power. voting Turner v. group Arkansas, 572-7 F.Supp. State Elections in Jackson court). (three (E.D.Ark.1991) judge Such all marked City, and St. Louis are racially polarized voting, law, misunderstanding widespread and the sufficiently populations in those areas are be, may it to have caused seems majori compact to numerous and allow cases, filing of or at the one these least single ties in member districts. probably Dr. Jones to Kansas led presented evidence trial did uncompromising and role on an ineffective signif so racial block Redistricting While redis- Commission. usually voted as a block icant that whites plans must devise that are fair tricters minority pre prevent the election of equitable groups racial fact, opposite ferred candidates. generally population, within discretion minority preferred to be true: can appears bodies, objec- granted such overall to office. frequently didates are elected tive, it, ultimately I “race see is to be offi is due to fact that most elected This commentary P. of James neutral.” See democrats, minority pre most cials Minority Turner Vot- Controversies democrats, and the ferred candidates Davidson, (1992), p. Grofman and ed. ing, primaries can with a democratic be won vote; therefore, degree plurality of *18 is proportional representation 2. While necessary the to cause white-block test, mandated, I it is a useful not believe can preferred defeat of the usual understood, and, properly may sometimes higher racial degree than of didates dispositive rejecting in of viola- be claim present in St. polarization Conseq case, present In the tion of Act. County.37 Louis Louis St. City plaintiffs us in their Kansas asked prove have to uently,38 failed eight claim, pleadings to concentrate attention necessary preconditions to a specified City. in Kansas Four DE districts requests their for relief must be now, almost those districts are and will NIED. (instead minority emphasize uniqueness republicans preferred win- again We once landscape just in political primary) we have reviewed in sufficient ners of democratic majority requirement in there is no vote that prevent preferred candi- to numbers elections, primary of the the winner Missouri’s winning general dates election. from primary likely vic- most be the democratic will election, general and white voters tor in three Given relief will be denied in all they usually polarized that have not been so carry plaintiffs’ their due to failure to areas minority preferred prevent from candidates preconditions as to and denied burden analysis winning primary. the democratic Our defense, we areas the affirmative two because of obviously inapplicable if a run-off would be findings respect no need with to see to make primary required had insure the winner to Report. factors contained in Senate vote, (partic- majority of or if white voters a ularly democrats) usually voted for white white remain, certainly subject slight gain to black voter con- also foresee a net in the number likely The four other districts are to trol. of black-controlled districts. subject majority group to control. remain 3. The much-touted' supermajority apparently slightly population (65% guideline requirement or pop total than half the total of the less voting population) ulation or 60% districts; eight therefore it seems obvious relied on in the leading case of Ketchum v. district, no “entitlement” to a fifth there is Byrne, (7th Cir.1984), 740 F.2d 1398 does control, designed leaving only for black ease, present make sense in the where subject to control three districts dealing we are major with the hurdle of eight white districts. winning primary elections2 and where analysis reasonably makes it Similar there is evidence that of the black 90% clear there is no black entitlement more voters are Democrats. There is no evi City, given Louis the racial party dence of the affiliation of white vot makeup city. contrary ruling A question. ers the areas in It cannot be grant force redistricters more would assumed that the white vote has the same proportional representation than blacks. not, extraordinary political polarization. If agree I that St. blacks find it much will easier to Dem win If County problematic. blacks indeed primaries, ocratic to the extent the white districts, approxi control four Republican vote is either drained into the mately proportional representation, which primary independent or is too to vote in the is more than the Act mandates. The issue primary. gives Democratic This blacks a ability may “usual” control exercise advantage built-in which counterbalances debatable, agree panel I be but with the (wholly part) supposedly or the factors opinion present record does not requiring supermajority.3 It seems to me

permit ruling in St. Louis blacks analytical to be a statistical error of (or metropolitan in the St. Louis whole) magnitude ignore considerable likely area as a to be under represented the new districts.1 We can factor. To the extent the 65-60 rule is possible panel opinion places simple logic, 1. It is that the an 3. This conclusion is based on if the by requiring excessive burden on defendants Republican materially higher has vote history propor- them to show an extensive vote, percentage Republican than the black representation. Gingles tional test is one of entirely likely. seems Judicial notice two persistence. 478 U.S. at 106 S.Ct. at 2780. Congressional races tends to the sound- may long-term, simply mean as distin- This ness of the comment. the black temporary guished from uating the four new or occasional. In eval- age population was rated at 20% in the Fifth districts, one is Congressional District. Almanac American predict guessing forced to the future in whether contender, 1988, p. The black Alan Politics likely control will be the usual situation Wheat, expected to win as much would not below, during this decade. For reasons stated I vote, using the as 20% of that conventional probable. this is think discounting process. pri- In the Democratic however, history tending mary, he won and was nominat- 2. No has been established opposition. show that white Democrats Missouri will ed because of divided Id. at 679. Republican generally vote to defeat nominated *19 the district on Demo- He thereafter carried representative or sim- black Democrat for state year, redistrict- cratic ticket. In the after same There are a substantial number of ilar office. ing, Congressman Clay’sdistrict in Eastern Mis- races in Jackson where black nominees voting having as a 46% black souri was rated prevailed political pre- districts that are have dominantly According age population. Id. at 671. to white, few, any, if instances formula, he could not have been conventional proof judicial notice or the trial could where primary against expected to win the Democratic general that elections have been lost confirm opponent (particularly prominent when white of a racial crossover to elect white because Republican aspects his recent controversial there were frequently The cited nominees. Almanac). career, by as one is reminded mayor Berkley-Watkins in 1979 should race 61%, primary by Democratic He won the counted, municipal perhaps not be elections trouble as the district with little carried the officially nonpartisan, and Bruce Watkins Id. at 671. Democratic nominee. advantage of a Democratic did not have the counted, however, listing. it is Even if ballot pattern. part of a discernible not White’s),5 (Ronnie insufficiency of and the throughout coun- applicable generally proof from ex- the St. Louis area has a usual try, Judge Hamilton assumed that relating testimony to St. Louis pert history favoring over white candidates only fairly applicable when the it seems with a black candidates districts credible particular voting is in a entire voting age me to majority, black causes election, in- reasonably it or where can be that have failed to conclude polarization of political white ferred that proportional I also their case. believe party primary in a and black voters representation probably defense dictates similar. Judgment en similar result. should be in favor of defendants. tered voting population in the age If the white black-majority vulnerable most 46%) County (approximately St. Louis GAITAN, Judge, concurring. District enough strength to should be deemed opinion I agree majority with the pri Democratic routinely to dominate the by issues artfully addresses the faced district,

mary in that black voters selection Additionally, judge panel. I concur three of the 32 would be able control 9.4% paragraph Judge with Sachs in numbered County, while legislative districts in the concurring opinion. I voting age population, one of his will having of the 12.6% undispersed. the content of either here. How- generally This would create restate me; ever, I compelled current law I to state questions for under feel the obvious. might county-line defense fully acknowledges conclude here evidence duty to avoid a to cross into patterns po- is insufficient American African City pick up of the excess some opinion This should not leave the larized. voting strength there order to black impression that the white American vote four in the establish at least districts Coun polarized. be That considered to less by ty normally controlled the black vote.4 might ap- improperly by inferred what be has pears to be a cushion of comfort which however, record, present I am On the lowering supermajority resulted in the the white unable to conclude that proposed by majority both the restrictions (46%) likely District population of concurring opinion. historical general sufficient exercise control be supports data results reached in these primary in that dis- over the Democratic Voting in both cases. districts trict, acquiescence voter absent black with less than and Jackson representative, popular choice of a white voting age popula- African American Molloy. par- currently Representative elect the vote, tion have been able to candidates of the ty polarization lack years during choice reviewed their polarization of proof of similar always We that was not vote, these cases. know apparent sufficiency of 51.2% hope it will we voting age majority to control the case. party primary in District 63 continue to be the case. Democratic however, (The note, ing. accomplish- an unusual This means it is I that the Seventh Circuit circuit) prevail has introduced distinction Ketchum ment for black candidates liability stage remedial minority, particu- between where find themselves superma- litigation, avoid state of which would my minority. perception larly It is a decided analysis jority case. Dickinson v. here in that a law and current realism Missouri Board, Election 933 F.2d Indiana State voting age dis- district or a 55% (7th Cir.1991). concurring opinion in In his relatively easy control trict should case, Judge Gaitan discomfort indicates (with only temporary or intermit- black voters supermajority "lowering any general primary—and exceptions) in Democratic *20 tent expresses restrictions” and concern about thereafter, label, Democratic with the polarized be- vote. I have no reason to white general election. lieve politan white vote in the Missouri metro- that the racially polarized is less than the areas according unopposed, to the reelection His pride of racial black vote. The element 1992, Post-Dispatch April thus St. Louis vote is more admirable trait affects the black intimidating strength. suggesting continuing prejudice es- than and sense of trangement frequently affects vot- that too majority opinion points out the elec- Congressman Mayor tions of Wheat and Ricky HISEL, Lee S. James Cello- Cleaver to show how far we have come. Jr., Whitney, and James M. congression- The initial election the fifth Shuff, Plaintiffs, Congressman al district of Alan Wheat v. mayor 1982 and of Emanuel Cleaver II as UPCHURCH, R. James City, Kansas Missouri al., et Defendants. merely plurality that a of voters were able racially polarized to overcome the voters. (MM). No. CIV 89-1666-PHX-EHC Had the white voters not been divided Court, United States District among candidates, polar- two or more their D. Arizona. ized could have defeated the minori- ty candidate. Had there been two April elections, candidates each of these one American, white and one African neither

public likely official would serving to-

day. Congressman Wheat has been re-

elected four consecutive terms. He was

given opportunity an to show his constitu- interest, represent

ents he could their race

notwithstanding. Mayor Cleaver has a year

four term. While he runs in non-

partisan election, historically the Kansas

City, mayoral Missouri election has been

very partisan.

What does this mean? That the voters and Kansas Mis

souri while racially polarized willing

manner are at least to consider a primary

candidate who survives the regardless

serves their interest of race. long ago it has not been so

racial attitudes were different.1 We should begin lowering

be mindful that when we rights

restrictions on such valuable I opinion unique

these. believe this has

application to these facts. city,

1. The Bruce Watkins defeat a reminder but was African American and cratic surviving primary guarantee victory. soundly White voters voted race and does not defeated. heavily party Mr. Watkins was a Democrat in a Demo- affiliation.