Cottier v. City of Martin

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-1628
___________

Pearl Cottier; Rebecca Three Stars, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
City of Martin; Todd Alexander; *
Rod Anderson; Scott Larson; *
Don Moore; Brad Otte; Molly Risse, *
in their official capacities as members *
of the Martin City Council; *
Janet Speidel, in her official capacity *
as Finance Officer of the *
City of Martin, *
*
Appellants. *
___________

Submitted: September 23, 2009
Filed: May 5, 2010
___________

Before RILEY, Chief Judge,1 WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit
Judges.
___________

1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010, succeeding the Honorable
James B. Loken, who was Chief Judge when this case was submitted.
COLLOTON, Circuit Judge.

This appeal involves a claim that the City of Martin, South Dakota, and several
of its officials violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C.
§ 1973(b). The plaintiffs contend that the defendants adopted and maintained an
ordinance that impaired the ability of Native American Indians to participate in the
political process and to elect representatives of their choice in city elections. Sitting
en banc, we conclude that the district court properly dismissed the action in its order
of March 22, 2005, which was reversed by a panel of this court. We therefore vacate
the court’s later judgment of February 9, 2007, and remand with directions to dismiss
the action.

I.

Pearl Cottier and Rebecca Three Stars, members of the Oglala Sioux Tribe and
residents of Martin, brought suit against the City, several members of the city council,
and the City’s former finance director, alleging violations of the Voting Rights Act
and the Constitution. The plaintiffs alleged that the City’s Ordinance 122, which
established boundaries for three voting wards within the City, diluted the votes of
Indians in each ward, and thereby violated Section 2. They also alleged that the City
enacted and maintained Ordinance 122 with a racially discriminatory purpose, in
violation of Section 2 and the Fourteenth and Fifteenth Amendments.

After an eleven-day bench trial, the district court rejected the plaintiffs’ claims
and dismissed the action. Cottier v. City of Martin, No. 02-5021, slip op. (D.S.D.
Mar. 22, 2005) (hereafter “March 2005 Order”). With respect to the Section 2 vote
dilution claim, the court found that although the plaintiffs satisfied two of the three
preconditions for liability that were established in Thornburg v. Gingles, 478 U.S. 30
(1986), they failed to show the third precondition, namely, that the “white majority”
in the City voted “sufficiently as a bloc to enable it . . . usually to defeat the [Indian]

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preferred candidate.” Id. at 51. The court also found no evidence of discriminatory
intent in the passage of Ordinance 122, and dismissed the plaintiffs’ alternative
Section 2 claim and the constitutional claims on that basis.

On appeal, a divided panel of this court reversed on the vote dilution claim.
Cottier v. City of Martin, 445 F.3d 1113 (8th Cir. 2006) (Cottier I). The court
affirmed the district court’s findings regarding the first two Gingles preconditions, but
concluded that the district court clearly erred in finding that the third precondition was
not satisfied. The court remanded to the district court with instructions to determine
whether, in view of this court’s ruling that the plaintiffs had met all three Gingles
preconditions, the plaintiffs were entitled to relief under the totality of the
circumstances. If so, the district court was directed to devise and implement an
appropriate remedy. The City’s petition for rehearing en banc was denied, with five
judges voting to grant it.

On remand, having been directed to accept that the plaintiffs established all
three Gingles preconditions for a Section 2 vote dilution claim, the district court found
based on the totality of the circumstances that Ordinance 122 violated Section 2.
Cottier v. City of Martin, 466 F. Supp. 2d 1175 (D.S.D. 2006). The City declined to
propose a remedy, asserting that there was no possible remedy for the violation found
by the court. The district court considered three remedies proposed by the plaintiffs,
and adopted the plaintiffs’ Plan C. Cottier v. City of Martin, 475 F. Supp. 2d 932
(D.S.D. 2007). Plan C did not divide the City into aldermanic wards, but rather
adopted an at-large voting scheme using cumulative voting. Although the district
court concluded in its March 2005 order that it lacked authority to order such a
remedy, because it was not authorized by South Dakota law, see March 2005 Order
at 21 n.4 (citing Cane v. Worcester County, 59 F.3d 165, 1995 WL 371008 (4th Cir.
1995) (unpublished), and Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994)), the
court on remand determined that Plan C was permissible. The court ruled that it was
“bound to follow” dicta from this court’s opinion in Cottier I, 445 F.3d at 1123 n.7,

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which stated that “[i]f, at the remedy stage, a redistricting of Martin’s wards appears
unworkable, it appears that [Plan C] would be a viable option.” See 475 F. Supp. 2d
at 937.

The City appealed both the finding of a Section 2 violation and the remedy, and
a divided panel of this court affirmed. Cottier v. City of Martin, 551 F.3d 733 (8th
Cir. 2008) (Cottier II). The court then granted rehearing en banc and vacated the
panel opinion in Cottier II. The en banc court notified the parties that the court may
wish to consider issues decided in Cottier I, as well as those briefed in Cottier II.

II.

As the case is before the en banc court for the first time, we must first consider
the scope of our review. The present appeal arises from the district court’s rulings on
remand from Cottier I, but this does not mean that we are constrained as a matter of
law to accept the panel decision in Cottier I. The en banc court does not lightly
review a prior panel decision in the same case, but we have the power to do so.

When sitting en banc, the court has authority to overrule a prior panel opinion,
whether in the same case or in a different case. The en banc court has not considered
the questions decided in Cottier I, and the law of the case does not preclude our
consideration of those issues at this stage. The law of the case doctrine “expresses the
practice of courts generally to refuse to reopen what has been decided,” but it is “not
a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912); see
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). The doctrine,
moreover, holds less sway with respect to an en banc court that is considering issues
previously decided by a three-judge panel. That the court previously denied a petition
for rehearing en banc is not controlling, because the decision to deny rehearing en
banc is a pure exercise of discretion. It is not a ruling on the merits.

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 The parties have no justifiable expectation that a denial of rehearing en banc at
an interlocutory stage resolves issues for all time. A remand order is not final until
the Supreme Court denies certiorari at the end of the case. See Christianson, 486 U.S.
at 817 (“A petition for writ of certiorari can expose the entire case to review.”);
Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n.1 (1973) (holding
that a prior dismissal of a writ of certiorari at an interlocutory stage did not establish
law of the case or amount to res judicata on the points raised); E. Gressman et al.,
Supreme Court Practice 82-83 (9th ed. 2007) (“The Court can reach back and correct
errors in the interlocutory proceedings below, even though no attempt was made at the
time to secure review of the interlocutory decree or even though such an attempt was
made without success.”). The parties likewise must recognize that when the court of
appeals declines in its discretion to rehear a case en banc after a panel orders a
remand, the court retains authority to rehear the matter en banc at a subsequent stage
of the proceedings.

To the extent that a footnote in Robertson Oil Co. v. Phillips Petroleum Co., 14
F.3d 373, 376 n.5 (8th Cir. 1993) (en banc), purports to restrict the authority of an en
banc court to consider prior panel decisions, we overrule it. Robertson cited law of
the case principles that constrain a subsequent three-judge panel, see Liberty Mut. Ins.
Co. v. Elgin Warehouse & Equip., 4 F.3d 567, 573 (8th Cir. 1993) (order denying
rehearing en banc), and seemed to apply them to an en banc court. We reject this
view, and align ourselves instead with the uniform position of the circuits that an en
banc court may overrule an erroneous panel opinion filed at an earlier stage of the
same case. See Irving v. United States, 162 F.3d 154, 161 & n.7 (1st Cir. 1998) (en
banc); Watkins v. U.S. Army, 875 F.2d 699, 704-05 n.8 (9th Cir. 1989) (en banc);
Shimman v. Int’l Union of Operating Eng’rs, Local 18, 744 F.2d 1226, 1229 n.3 (6th
Cir. 1984) (en banc); Van Gemert v. Boeing Co., 590 F.2d 433, 437 n.9 (2d Cir. 1978)
(en banc); In re Cent. R.R. Co. of N.J., 485 F.2d 208, 210-11 (3d Cir. 1973) (en banc);
see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4478.2 (2d ed. 2002).

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 We conclude that it is appropriate in this case for the en banc court to consider
the panel decision in Cottier I. For the reasons set forth below, we hold that Cottier
I erred in reversing the district court’s dismissal of the action and remanding for
further proceedings on liability and remedy. A federal court order directing a city to
redraw its election ward boundaries, or to alter fundamentally its voting system, raises
significant issues of federalism. See Voinovich v. Quilter, 507 U.S. 146, 156-57
(1993). We think it exceptionally important for a federal court to ensure that there is
a proven violation of Section 2 before ordering a city in South Dakota to undertake
significant changes in its electoral process. Therefore, we will not overlook the error
in Cottier I and proceed to contemplate an order directing the City of Martin to
implement a remedy for a non-existent violation of the Voting Rights Act.2

2
The dissent, while seeming to accept that the en banc court has discretionary
authority to “overrule any panel decision that a majority of the active judges believes
was wrongly decided,” post, at 17 (internal quotation omitted), suggests criteria for
the exercise of this “discretion” that would give the en banc court virtually no ability
to correct an erroneous panel opinion from an earlier stage of the proceedings. If the
en banc court could act only when “factual circumstances have changed,” post, at 19,
then the en banc court would be limited to resolving a different dispute based on
different facts. And even if the en banc court should refrain from overruling a prior
panel opinion where a party “would be seriously prejudiced as a result,” post, at 17,
a mere showing that one party “functioned with the belief” that it prevailed on issues
before the original panel, post, at 19, is not sufficient to establish unfair prejudice. If
it were, then every case could present such prejudice, and the en banc court’s authority
to correct an earlier panel decision would be illusory. Cf. Irving, 162 F.3d at 162
(“Prejudice to a party, while always regrettable, cannot furnish a viable rationale for
overlooking a federal court’s lack of power to grant a remedy in the first place.”).

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 III.

A.

In its March 2005 order, the district court considered the three preconditions for
a Section 2 vote dilution claim, as described by the Supreme Court in Gingles:

First, the minority group must be able to demonstrate that it is
sufficiently large and geographically compact to constitute a majority in
a single-member district. . . . Second, the minority group must be able
to show that it is politically cohesive. . . . Third, the minority must be
able to demonstrate that the white majority votes sufficiently as a bloc
to enable it – in the absence of special circumstances, such as the
minority candidate running unopposed – usually to defeat the minority’s
preferred candidate.

Gingles, 478 U.S. at 50-51 (internal citation omitted).

On the first precondition, the district court found that two illustrative
redistricting plans introduced by the plaintiffs showed that the Native American group
in the city was sufficiently large and geographically compact to constitute a majority
in a single-member district. The court rejected the City’s contentions that the majority
was not large enough and that it was too fragile. The court also held that the proposed
plans were not “so irregular on their face that they appear to be solely an effort to
segregate races for the purposes of voting.” Rather, the court credited the testimony
of the plaintiffs’ expert that he applied “traditional districting principles” to create
these illustrative plans, and held that some consideration of race in fashioning the
plans did not make them impermissible remedies for a Section 2 violation.

With respect to the second precondition, the court considered statistical analysis
presented by experts for both parties concerning elections within the city and outside

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the city. The court found that three statistical methods employed by one or both
experts were reliable, and that the analyses demonstrated political cohesiveness among
Indians in Martin. Considering the statistical evidence together with historical
evidence and contemporary lay testimony, the court found that the plaintiffs satisfied
the second Gingles precondition.

Considering the third precondition, however, the district court found that the
plaintiffs failed to meet their burden to show that “the white majority votes
sufficiently as a bloc to enable it – in the absence of special circumstances, such as the
minority candidate running unopposed – usually to defeat the minority’s preferred
candidate.” Gingles, 478 U.S. at 51 (internal citation omitted). The court first
evaluated an exit poll offered by the plaintiffs to show bloc voting in two city council
races, but gave no weight to the poll due to shortcomings in its methodology.

The court then considered statistical analysis of election results from
jurisdictions outside the city, which the court described as “exogenous” races. The
court divided these exogenous races into several categories and made findings with
respect to each. The court found that in countywide elections between candidates of
different races, countywide elections between white candidates, and state and federal
elections between white candidates, white voters did not vote sufficiently as a bloc
usually to defeat the Indian-preferred candidate. In one category, statewide elections
between candidates of different races, the court found that white voters did vote
sufficiently as a bloc usually to defeat the Indian-preferred candidate. The court
reasoned that interracial contests were entitled to more weight than contests among
candidates of the same race, and that countywide elections should receive greater
weight than state and federal elections. Finding that only one category of exogenous
elections showed bloc voting by a white majority to defeat Indian-preferred
candidates, the court concluded that the overall statistical evidence did not
demonstrate the bloc voting required by Gingles.

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 The court also evaluated the testimony of lay witnesses who said that they could
identify Indian-preferred candidates in city council elections, and that those candidates
consistently lost. The plaintiffs urged that white bloc voting was the only possible
explanation for the defeat of Indian-preferred candidates, but the district court found
that the lay testimony did not eliminate other reasons for candidate losses. The court
ultimately found that “[i]n light of the overwhelming statistical evidence, this lay
testimony is not sufficient to meet plaintiffs’ burden of demonstrating the usual defeat
of the Indian-preferred candidate.”

Having determined that the plaintiffs failed to satisfy the third Gingles
precondition, the court entered judgment for the City on the plaintiffs’ claim of vote
dilution in violation of Section 2. The plaintiffs appealed, and this court filed its
opinion in Cottier I. We now consider the issues raised in that appeal.

B.

Vote dilution claims are “peculiarly dependent upon the facts of each case,”
requiring “an intensely local appraisal of the design and impact of the contested
electoral mechanisms.” Gingles, 478 U.S. at 79 (internal quotations omitted). To
“preserve[] the benefit of the trial court’s particular familiarity with the indigenous
political reality,” id., we apply a “clear error” standard of review both to the predicate
factual determinations and to the ultimate finding regarding vote dilution. Id.; Abrams
v. Johnson, 521 U.S. 74, 91, 93 (1997). It is the plaintiffs’ burden to demonstrate the
existence of vote dilution. Voinovich v. Quilter, 507 U.S. 146, 155-56 (1993).

We conclude that the district court did not commit clear error in finding that the
plaintiffs failed to meet the third Gingles precondition, i.e., that the white majority in
Martin voted sufficiently as a bloc to enable it usually to defeat the minority’s
preferred candidate in city council elections. We therefore overrule the panel decision
in Cottier I.

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 First, the district court did not clearly err in giving no weight to the 2003 exit
poll offered by the plaintiffs to show bloc voting by a white majority in city council
elections. The court gave specific and cogent reasons for declining to credit the
results of this poll. After observing that exit polls generally are “prone to high
nonresponse rates which can seriously bias estimates and distort inferences,” March
2005 Order at 41, and that “exit poll respondents may lie,” id., the court found
shortcomings in the specific exit poll conducted in Martin.

The court explained that the plaintiffs’ own expert admitted that the exit poll
sample “under-represented non-Indians, over-represented Indians, and slightly over-
represented females,” so that it was “not a representative sample of voters as a whole.”
Id. The court found that the “high nonresponse rates of non-Indians seriously
distorted inferences that could be drawn from the exit poll.” Id. at 42. The court also
reasoned that “[a] truly representative poll of the votes actually cast should logically
demonstrate some consistency between the responses to the poll and the actual
returns,” id. at 41, but determined that the exit poll offered by the plaintiffs failed to
demonstrate such consistency. Id. at 41-42. Although it was “troubled by the fact that
some of the poll takers were related to one of the plaintiffs,” id. at 42, the court found
it unnecessary to determine whether this fact alone was a sufficient basis to disregard
the data.

It was not clear error for the court to view the poll as unreliable evidence of
voting behavior by residents of Martin. There were reasonable grounds for the district
court to believe that the poll results understated the number of Indians who favored
the non-Indian-preferred candidate, understated the number of white voters who
favored the Indian-preferred candidate, and failed to reflect truthful answers of those
who responded.

Second, the plaintiffs’ challenge to the district court’s statistical analysis does
not demonstrate clear error. The Cottier I panel concluded that the district court

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improperly relied on statewide and national election results in determining that the
plaintiffs failed to meet their burden, but we disagree. Although the district court did
use data from state and national elections, the district court did not rely on the state
and national outcomes in tabulating the wins and losses of Indian-preferred
candidates. Rather, the district court relied on the precinct-level results for those
elections, which were reported by the plaintiffs’ expert and cited by the plaintiffs as
the election results for the City of Martin.

The city election results derived from exogenous elections do not demonstrate
that the district court’s overall finding as to the third Gingles factor was clearly
erroneous. The number of interracial elections presented to the district court was very
small. There were only four head-to-head interracial countywide races; one race was
non-polarized, and the non-Indian-preferred candidate won the other three in the city.
Appellants’ App. 555-56. There were only three statewide interracial head-to-head
races, and the non-Indian-preferred candidate won those in the city. Appellants’ App.
555-56. But there were twenty-five state and federal races with white-only
candidates, and the Indian-preferred candidate won fifteen of those contests in the
city. Appellants’ App. 573-577. There were three white-only countywide races; one
contest was non-polarized, and the Indian-preferred candidate was victorious in one
of the other two in the city. Appellants’ App. 574-76. These results taken as a whole
show almost equal numbers of victories for Indian-preferred candidates and non-
Indian-preferred candidates. They do not compel a finding that a white majority in
Martin votes sufficiently as a bloc usually to defeat the Indian-preferred candidate.
Cf. Johnson v. Hamrick, 296 F.3d 1065, 1078 (11th Cir. 2002) (“Although we have
on various occasions held that district courts deciding [minority] vote dilution claims
may give more weight to elections involving [minority] candidates than those

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involving all white contestants, there is no requirement that a district court must do
so.”) (citations omitted).3

The district court did, for a subset of elections, rely on county election results,
rather than city results, but this portion of the analysis does not establish clear error.
The results in six of these contests, involving state and federal elections with multiple
white candidates, actually favored the plaintiffs, because the Indian-preferred
candidates prevailed in only two of the six. Appellants’ App. 559-60, 562, 564. Nine
other contests in this subset were multi-candidate races in Bennett County that
involved both Indian and non-Indian candidates. The plaintiffs’ expert proffered these
results as part of his analysis of the second Gingles precondition, but concluded that
it was not possible to include these multi-candidate elections in his statistical analysis
of the third precondition. Appellants’ App. 531-32. The City’s expert replied that the
plaintiffs’ expert was “dead wrong” that these elections could not be incorporated into
the analysis of the third precondition, Appellants’ App. 796, but the plaintiffs still
submitted no city-level data concerning these elections. The district court evidently
agreed with the City’s expert that the multi-candidate elections should be considered,

3
The plaintiffs contend on appeal that the district court erred by aggregating
election results from four primary contests with results from general election contests.
See Lewis v. Alamance County, 99 F.3d 600, 616-17 (4th Cir. 1996). In the district
court, however, their submissions analyzed a 2002 primary election for governor in
the midst of several general election contests, and used the primary to support their
expert’s conclusion that “[c]andidates preferred by Indians in the City of Martin are
usually defeated by the non-Indian majority voting as a bloc.” Appellants’ App. 536-
38, 546; R. Doc. 360, ¶¶ 378, 390, 393. The plaintiffs never suggested that they
advanced two separate vote dilution challenges based on primary elections and general
elections, see Lewis, 99 F.3d at 617, and they cannot now challenge the district court’s
ruling based on an analysis that they invited. Ark. State Highway Comm’n v. Ark.
River Co., 271 F.3d 753, 760 (8th Cir. 2001). In any event, although the primary
results pointed in both directions, they favored the plaintiffs’ case with respect to the
city-level results that the plaintiffs contend are most probative, because the Indian-
preferred candidate lost the gubernatorial primary.

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and then evaluated the only data available in the record about those elections – i.e.,
county-level results showing that the Indian-preferred candidates won five of the nine
contests. March 2005 Order at 55-56; Appellants’ App. 547, 549-50. The court’s
approach was more favorable to the plaintiffs than if the court had simply counted all
nine elections against the plaintiffs based on a failure of proof.4

Overall, even if we accord little or no weight to the county results cited by the
district court, the statistical evidence on the third Gingles precondition is mixed.5 The
district court found insufficient proof, based on exogenous elections, that white voters

4
We reject the plaintiffs’ suggestion that we should take judicial notice of
additional data concerning these nine elections based on documents that are appended
to the plaintiffs’ appellate brief in Cottier I. Aside from whether the documents are
properly authenticated, we decline through judicial notice to allow one party to
augment its evidentiary presentation in a case involving extensive statistics that were
the subject of complex analysis by experts for both parties. See generally United
States v. Bregnard, 951 F.2d 457, 460 n.2 (1st Cir. 1991); Melong v. Micronesian
Claims Comm’n, 643 F.2d 10, 12 n.5 (D.C. Cir. 1980); United States v. Campbell, 351
F.2d 336, 341 (2d Cir. 1965); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence § 201.32[3][a], at 201-78 to 201-78.1 (Joseph M. McLaughlin ed.,
2d ed. 2009) (“Judicial notice should not be used as a device to correct on appeal a
failure to present adequate evidence to the trial court.”).
5
We do not accept the plaintiffs’ argument that the district court clearly erred
by failing to attribute the success of Indian-preferred candidates to “special
circumstances” of incumbency and “vote-splitting” by white voters. See Gingles, 478
U.S. at 57. Incumbency is the “least ‘special’” of the special circumstances, Harvell
v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1389 n.7 (8th Cir. 1995), and
incumbency “must play an unusually important role” before a court is required to
disregard an electoral victory of a minority-preferred candidate. Clarke v. City of
Cincinnati, 40 F.3d 807, 813-14 (6th Cir. 1994). The record does not compel such a
finding here, particularly given that the plaintiffs’ expert did not even cite the effects
of incumbency in his report. Even accepting that “vote-splitting” is a special
circumstance that must be given weight, the only two contests cited by the plaintiffs
on this point involve county-level results that do not affect our overall conclusion that
the statistical evidence is mixed.
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typically vote as a bloc to defeat Indian-preferred candidates in the City. The data in
the record fall short of demonstrating that this conclusion is clearly erroneous. See
Gingles, 478 U.S. at 101 (O’Connor, J., concurring in judgment) (concluding that
even where the district court clearly erred by aggregating certain data and relying on
it to find racial bloc voting, the district court’s ultimate conclusion was not clearly
erroneous in light of other evidence that the court also considered).

Third, we disagree with the Cottier I panel that the district court clearly erred
when it declined to consider the results of aldermanic elections from 2002-2004 as
evidence of racial bloc voting. Other than the 2003 exit poll that the district court
permissibly found unreliable, there was no statistical evidence regarding these
elections. The only other evidence about these contests was the testimony of lay
witnesses who expressed an opinion about which candidates were preferred by Indian
voters, and whether those candidates won or lost. This testimony was disputed. Some
witnesses presented by the plaintiffs did not even live in Martin. The defendants
introduced testimony from Indian voters who did reside in Martin, and this evidence
tended to show that Indians, in fact, have varied opinions on issues of the day and on
preferred candidates for elective office. The district court considered the lay
testimony, but found that it did not show that Indian-preferred candidates lost because
of white bloc voting. The court concluded that in view of the statistical evidence, the
testimony was insufficient to meet the plaintiffs’ burden to satisfy the third Gingles
precondition. This is a factual finding that addresses the relative persuasiveness of
disputed lay testimony and statistical evidence unfavorable to the plaintiffs. There is
no clear error in the district court’s weighing of the evidence.

The record evidence in support of the plaintiffs’ case on the third Gingles
precondition is not so strong as to generate a “definite and firm conviction” that the
district court mistakenly dismissed the Section 2 vote dilution claim. See Anderson
v. Bessemer City, 470 U.S. 564, 573 (1985). For the reasons set forth by the district
court, we also agree that the evidence is not sufficient to support a finding that
Ordinance 122 was adopted and maintained for a discriminatory purpose. We
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therefore conclude that the district court’s judgment of March 22, 2005, should have
been affirmed. Because the Section 2 vote dilution claim was properly dismissed
based on the third Gingles precondition, we need not consider the City’s contentions
regarding the other Gingles preconditions, the district court’s analysis of the totality
of the circumstances on remand, or the permissibility of any remedies proposed by the
plaintiffs. The panel opinion in Cottier I is set aside in its entirety, and it should not
be treated as binding circuit precedent.

For the foregoing reasons, the district court’s judgment of February 9, 2007, is
vacated, and the case is remanded with directions to dismiss.

SMITH, Circuit Judge, with whom MURPHY, BYE, and MELLOY, Circuit Judges,
join, dissenting.

I respectfully dissent because I conclude that (1) this court should not, under the
present circumstances, reconsider Cottier I and (2) we should grant the plaintiffs'
motion requesting that this court vacate the district court's remedial order and remand
to the district court for reconsideration of the appropriate remedy in light of the
Supreme Court's recent decision in Bartlett v. Strickland, 129 S. Ct. 1231 (2009).

A. Reconsideration of Cottier I

In Robertson Oil, this court, sitting en banc, concluded that the court "should
not" "accept a party's motion for rehearing en banc of a decision after a second remand
to open up the entire litigation." 14 F.3d at 376 n.5 (emphasis added). Specifically, the
court observed that

[t]he dissent's willing acceptance of this opportunity reveals a different
view of the principles of the law of the case which a majority of the
judges of this court so firmly endorsed in our order denying rehearing en
banc in Liberty Mutual Insurance Co. v. Elgin Warehouse and

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 Equipment, 4 F.3d 567, 573 (8th Cir. 1993). Indeed, the dissent would
take this rehearing of Robertson III to vacate Robertson I, in which we
denied rehearing, and vacate Robertson II, in which we denied rehearing,
and remand the case for a new trial.

Id.

The majority is correct that the view expressed in Robertson Oil is contrary to
the prevailing view among our sister circuits that "[a] ruling by a panel . . . does not
. . . establish the law of the case if a later appeal is heard by the court en banc." 18B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 4478.2 (2d ed. 2002). The prevailing view maintains that

[a] court en banc surely is free to limit the matters it considers en banc,
and may exercise its discretion to refuse reconsideration of some issues
resolved by a panel on an earlier appeal. There is no reason why en
banc reconsideration of all issues must follow the determination that one
or more issues in a case warrant the grudgingly rationed resource of en
banc consideration. All ordinary law-of-the-case concerns supplement
this particular concern. Nonetheless, the court en banc has a special
authority that supports a special freedom to redetermine important issues
without feeling bound in the same way as successive panels.

Should successive appeals in the same case come to be heard by the
court en banc, there is force in the view that ordinary law-of-the-case
principles should apply. The en banc court, however, has a special
authority and responsibility for the law of the circuit, and may properly
assert an extra measure of freedom to reconsider important issues.

Id. (emphasis added) (footnote omitted).

But even if this court, sitting en banc, possesses the power to "overrule any
panel decision that a majority of the active judges believes was wrongly decided," Van
Gemert v. Boeing Co., 590 F.2d 433, 437 n.9 (2d. Cir. 1978) (en banc), including in
cases where prior en banc review of the panel's decision was previously denied, the
-16-
relevant question is under what circumstances the court should exercise this
discretionary power.

I respectfully suggest that we should not exercise such power if "a party would
be seriously prejudiced as a result," id., or if reconsideration of a prior panel's opinion
would undermine "stability in the law—a sort of permanence and sureness in decision
apart from the make-up or composition of the particular tribunal so far as the person
of the Judges is concerned, " Lincoln Nat'l Life Ins. Co. v. Roosth, 306 F.2d 110, 113
(5th Cir. 1962). As the Fifth Circuit explained:

In more tranquil days and times, an appeal from a second trial would be
heard by the same Court as the first appeal. Now, that is highly unlikely,
and where it occurs, it is—at least in this Court—due entirely to the laws
of chance. That puts a premium on multiple appeals. That is so because,
without implying any improper purpose to litigants or their counsel, or
acknowledging anything more than, as human beings, Judges will
unavoidably have differences in emphasis, approach, or views on close
questions in given areas, if the practice is followed for each succeeding
panel to arrive at its own decisions, the losing party on the first appeal
will naturally strive to bring it back a second, or a third, or a fourth time
until all are exhausted. This possibility involves something other than
simply more grist for our mill and as to which we should be indifferent.

***

We think that in a multi-Judge Court it is most essential that it acquire
an institutional stability by which the immediate litigants of any given
case, and equally important, the bar who must advise clients or litigants
in situations yet to come, will know that in the absence of most
compelling circumstances, the decision on identical questions, once
made, will not be re-examined and re-decided merely because of a
change in the composition of the Court or of the new panel hearing the
case.

Id. at 114 (emphasis added).

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 In the present case, I conclude that

nothing about this case warrants our exercising the undoubted power to
overrule the prior decision reached by the Court on the first appeal. On
the contrary, any effort to re-examine the merits and now declare a
result—either the same or a different one—independent of the former
decision leads to consequences much more serious to the permanent,
objective, administration of justice under law than any supposed
individualized injustice to one or all of the litigants.

Id. First, neither party asked this court to reconsider the prior panel decision in Cottier
I; instead, the en banc court sua sponte raised the question.

Second, no factual circumstances have changed since Cottier I was decided to
justify reconsideration of the panel's opinion; instead, a majority of the court—sitting
three years later—would merely apply the law to the same facts differently. We
should not encourage parties to bring multiple appeals in the same litigation in the
hope that the en banc court will overrule long-established prior panel opinions in that
litigation. See Lincoln, 306 F.2d at 114.

Lastly, reconsideration of Cottier I unfairly prejudices plaintiffs. Plaintiffs
commenced the instant litigation on April 3, 2002. Cottier, 466 F. Supp. 2d at 1181.
The district court's decision rejecting plaintiffs' claims was entered on March 22,
2005. See March 2005 Order. The appeal in Cottier I was orally argued on January
9, 2006, and the panel filed its opinion, as corrected, on May 8, 2006. This court
denied rehearing en banc on June 28, 2006. Thus, at the time this case was orally
argued to the en banc court on September 23, 2009, over three years elapsed since
Cottier I was first submitted to this court. During this period of time, plaintiffs have
functioned with the belief that they established the City's § 2 liability under the VRA.
No compelling circumstances, such as changed facts or law, justify reexamining and
redeciding Cottier I. Indeed, applying Rule 35(a) of the Federal Rules of Appellate
Procedure, this case, at its present posture, neither presents a necessity "to secure or

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maintain uniformity of the court's decisions" nor "involves a question of exceptional
importance."6

B. Motion To Remand

Even though I would decline to reexamine Cottier I, I would not reach the
merits of the City's argument that the district court lacked the authority to impose
remedial Plan C. Prior to oral argument, plaintiffs filed a motion requesting that this
court vacate the district court's remedial order and remand to the district court for
reconsideration of the appropriate remedy in light of the Supreme Court's recent
decision in Bartlett, in which the Court declared that "the majority-minority rule relies
on an objective, numerical test: Do minorities make up more than 50 percent of the
voting-age population in the relevant geographic area?" 129 S. Ct. at 1245.

According to plaintiffs, the Supreme Court's intervening decision in Bartlett
alters the law on which the district court's remedial order was premised. They cite to
the district court's belief that "[a]n effective majority, and thus an adequate remedy [to
a § 2 claim], requires approximately 60 percent minority VAP." Cottier, 475 F. Supp.
2d at 938 (citing Jeffers v. Clinton, 756 F. Supp. 1195, 1198 (E.D. Ark. 1990)).
Because the district court imposed a 60-percent-minority-VAP requirement, plaintiffs
contend that the district court erroneously rejected their proposed Plan A. Plan A
provided for three dual-member districts, and its only majority-minority district had

6
The majority holds that "Cottier I erred in reversing the district court's
dismissal of the action and remanding for further proceedings on liability and remedy"
and observes that "[a] federal court order directing a city to redraw its election ward
boundaries, or to alter fundamentally its voting system, raises significant issues of
federalism." See supra Part II. Presumably, the majority is attempting to justify its
decision to exercise its discretionary power to reconsider the prior panel decision in
Cottier I—a decision that only addressed the City's liability, not the district court's
imposition of remedy for the violation. But the court need not reopen Cottier I to
prevent implementation of Plan C, which does alter the City's voting system.
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an Indian VAP of 54.55 percent. The district court concluded that "Plan A fail[ed] to
provide an effective majority because it falls well short of the 60 percent VAP
guideline." Id. at 938. Plaintiffs also argue that, for the same reason, the district court
improperly rejected Plan B, which proposed six single-member districts, with "Ward
1 . . . contain[ing] 53.51 percent Indian VAP" and "Ward 2 . . . contain[ing] 52.73
percent VAP." Id. at 940.

In response, Martin maintains that Bartlett only discusses the liability stage of
a § 2 case; it does not discuss an effective remedy or how a district court should
determine remedies to a § 2 violation. According to Martin, Bartlett merely
determined the minimum size minority group necessary to satisfy the first Gingles
precondition in the liability phase. In support of its argument, Martin notes that even
the dissenting justices in Bartlett emphasized that the Gingles preconditions do not
state the ultimate standard under § 2. The dissent stated that "the threshold population
sufficient to provide minority voters with an opportunity to elect their candidates of
choice is elastic, and the proportions will likely shift in the future, as they have in the
past," citing that some courts use a requisite 65 percent majority-black population to
constitute a safe district. Bartlett, 129 S. Ct. at 1254 (Souter, J., dissenting).

In this case, the district court applied a per se rule that "[a]n effective majority,
and thus an adequate remedy, requires approximately 60 percent minority VAP."
Cottier, 475 F. Supp. 2d at 938. In light of Bartlett, I will consider the evolution of
this per se rule and its post-Bartlett viability.

1. Pre-Bartlett Cases and Origins of the 60/65-percent Rule

"In cases dealing with minority vote dilution, courts have confronted the
question of what level of [minority] population is sufficient to provide the group with
a 'realistic opportunity to elect officials of their choice . . . .'" Kimball Brace et al.,
Minority Voting Equality: The 65 Percent Rule in Theory and Practice, 10 Law &
Pol'y 43, 45 (1988) (quoting Kirksey v. Bd. of Supervisors of Hinds County, 402 F.
-20-
Supp. 658, 673, 676 (S.D. Miss. 1975)). "This percentage has been called the
'effective majority.'" Id.

"[A] rule of thumb has evolved that sets a 65 percent minority population as the
basis for an effective majority." Id. The 65-percent rule was allegedly supported by
the Justice Department and "given the imprimatur of the U.S. Supreme Court in
United Jewish Organization of Williamsburgh v. Carey[, 430 U.S. 144] (1977)." Id.
But "[n]either of these assertions is correct." Id.

United Jewish Organization involved the Attorney General's preclearance
review of a redistricting plan under § 5 of the VRA. In that case, the Supreme Court
stated that "[a]t a minimum and by definition, a 'black majority district' must be more
than 50% black." 430 U.S. at 162. The Court then determined that "it was reasonable
for the Attorney General to conclude in this case that a substantial nonwhite
population majority—in the vicinity of 65%—would be required to achieve a
nonwhite majority of eligible voters." Id. at 164. The Court's conclusion was based on
its determination that the size of the minority population in the minority districts must
reflect "the need to take account of the substantial difference between the nonwhite
percentage of the total population in a district and the nonwhite percentage of the
voting-age population." Id. at 163–64. Thus, the Court held that "the Justice
Department had the authority . . . to deny preclearance to a plan with insufficient
Hispanic concentrations in certain districts in Brooklyn on the grounds that the plan
failed to provide Hispanics an opportunity to elect candidates of their choice." Brace,
supra, at 45.

Notably, the Court did not "suggest that the 65 percent rule is appropriate in all
circumstances. Indeed, there is no discussion [in the case] of the empirical basis for
the choice of the 65 percent figure." Id.; see also Jack Quinn et al., Congressional
Redistricting in the 1990s: The Impact of the 1982 Amendments to the Voting Rights
Act, 1 Geo. Mason U. Civ. Rts. L.J. 207, 236 n.120 (1990) ("The Court [in United
Jewish Organization] did not otherwise explain or justify its acceptance of the 65%
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figure."). Scholars have researched the origins of the 65-percent rule but have not
found it in a holding of the Supreme Court.7

7
"Legend has it that the rule came about because someone in the Justice
Department took 50 percent and simply added 5 percent to compensate for the higher
proportion of Hispanic noncitizens, 5 percent for lower Hispanic voting age
population (VAP), and 5 percent for lower Hispanic registration and turnout." Brace,
supra, at 45; see also Adam J. Chill, The Fourteenth and Fifteenth Amendments with
Respect to the Voting Franchise: A Constitutional Quandary, 25 Colum. J.L. & Soc.
Probs. 645, 659 n.77 (1992) ("The notion of a minimum 65% minority population has
its roots in New York State redistricting efforts. The figure derives from the Justice
Department requiring New York State officials to utilize that percentage figure as a
condition for obtaining pre-clearance of the 1972 redistricting plan for Kings County.
In the ensuing litigation, United Jewish Orgs. v. Carey, 430 U.S. 144 (1977), the
Supreme Court endorsed the use of this figure as establishing compliance with the
Voting Rights Act."); Quinn, supra, at 236 ("[I]n order to ensure that the new minority
district is a 'safe' one, both the Department of Justice and the courts have required a
higher percentage of minority population than a bare majority.").

But Justice Department officials in the 1980's never "regard[ed] the 65 percent
figure as having any special significance." Brace, supra, at 45 (citing Brief in
Opposition to Writ of Certiorari, City Council of Chicago v. Ketchum, 471 U.S. 1135
(1985) (No. 84-627, at 10) ("[W]e attach no particular significance to a 65% figure.")).
Instead, "each case is to be investigated in terms of the facts special to it." Id. (citing
Paul Hancock, U.S. Department of Justice, Voting Rights Section, personal
communication, October 1986). In fact, in 1985, the Assistant Attorney General stated
that "'[t]here is no 65 percent threshold population figure applied as a rule of thumb
by the Department in redistricting matters reviewed under Section 5.'" James v. City
of Sarasota, 611 F. Supp. 25, 32 (M.D. Fla. 1985) (quoting Letter of April 9, 1985,
from William Bradford Reynolds, Assistant Attorney General, to the Honorable
George C. Carr).

Furthermore, "[c]ontrary to widespread belief . . . the Voting Rights Act does
not impose a requirement that minority districts contain at least sixty-five percent
minority members." Quinn, supra, at 236. The statute contains "no fixed numerical
requirement." Id.

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 In 1986, the Supreme Court decided Gingles, the seminal § 2 VRA case. 478
U.S. at 30. The Court determined that, to establish a § 2 violation, a plaintiff must
prove that "a bloc voting majority must usually be able to defeat candidates supported
by a politically cohesive, geographically insular minority group." Id. at 49. This test
requires plaintiffs to make three separate showings. "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." Id. at 50. "Second, the minority
group must be able to show that it is politically cohesive. If the minority group is not
politically cohesive, it cannot be said that the selection of a multimember electoral
structure thwarts distinctive minority group interests." Id. at 51. "Third, the minority
must be able to demonstrate that the white majority votes sufficiently as a bloc to
enable it—in the absence of special circumstances, such as the minority candidate
running unopposed, . . . to defeat the minority's preferred candidate." Id.

Gingles did not explain "what the Court meant by the term 'majority.' It is
unclear both as to what percentage Justice Brennan was referring to as being sufficient
to constitute a majority for purposes of this test, and who could be included in
calculating this figure." Rick Strange, Application of Voting Rights Act to
Communities Containing Two or More Minority Groups—When is the Whole Greater
Than the Sum of the Parts?, 20 Tex. Tech. L. Rev. 95, 140 (1989). Gingles does not
specify whether plaintiffs must show only a bare majority, whether they must show
sufficient numbers so as to be able to effectively control a district, or who the court
counts in calculating the majority. Id. The Court never discussed "whether the
plaintiffs are required to constitute a majority of the proposed district's total
population, total voting age population, or total registered voters." Id. Of course, the
"ordinary meaning of majority is fifty percent plus one." Id.

Post-Gingles, district courts within this circuit expressly applied a 60-percent
or 65-percent rule. See, e.g., Smith v. Clinton, 687 F. Supp. 1361, 1363 (E.D. Ark.
-23-
1988) ("A guideline of 65% of total population is frequently used, and is derived by
supplementing a simple majority with an additional 5% to offset the fact that minority
population tends to be younger than that of whites, 5% for the well-documented
pattern of low voter registration, and 5% for low voter turnout among minorities.
When voting-age population figures are used, a 60% nonwhite majority is
appropriate."); Jeffers, 756 F. Supp. at 1198 ("It was just this reasoning that led this
Court, less than two years ago, to hold unanimously that something on the order of a
60% BVAP is required to remedy a vote-dilution violation of the Voting Rights
Act."). And this court recognized that "'[h]istorically disadvantaged minorities require
more than a simple majority in a voting district in order to have . . . a practical
opportunity to elect candidates of their choice.'" Whitfield v. Democratic Party of Ark.,
890 F.2d 1423, 1428 (8th Cir. 1989) (quoting Smith, 687 F. Supp. at 1362).

Nevertheless, "by 1990, the 65% rule was considered exceptional." Richard 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, 1527 (2002). "As one of the leading
analyses concluded in the mid-1990s, districts with 55% [minority] populations were
generally sufficient to enable [minority] voters to defeat racial bloc voting, while
districts less than 45% [minority] almost never elected [minority] representatives." Id.
(citing David Lublin, The Paradox of Representation: Racial Gerrymandering and
Minority Interests in Congress 46–47 (1997)). And, the Department of Justice
"expressly disclaimed any reliance on a sixty-five percent standard." Quinn, supra, at
239. On November 17, 1990, the chief of the Voting Section of the Civil Rights
Division stated:

"Let me also take this opportunity to give you the Department of
Justice's position on the so-called '65% Rule,' i.e., whether a minority
district must be at least 65% in order to satisfy Department of Justice
requirements. We attach no particular significance to a 65% figure. The
Department has frequently concluded, based on the facts presented in a
particular submission, that districts containing a minority population
significantly less than 65% (and even 50%) of the total may be entitled
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 to Section 5 preclearance. We have also rejected plans where the
minority percentage in a district exceeded 65%. Each Section 5
submission must be evaluated in light of the particular factual
circumstances—not on the basis of some preordained population
percentage."

Id. (quoting Remarks of J. Gerald Hebert, Acting Chief, Voting Section, Civil Rights
Division, Department of Justice at Conference on Fair Redistricting in Texas (Nov.
17, 1990)) (emphasis added by Quinn).

Despite the trend away from the 65-percent rule in the 1990s, in our most recent
case regarding § 2 of the VRA, we continued to apply 65 percent as a "guideline."
Bone Shirt v. Hazeltine, 461 F.3d 1011, 1023 (8th Cir. 2006). In Bone Shirt, we
upheld the remedial plan adopted by the district court, finding that the plan "assures
Native-American voters the opportunity to elect representatives of their choice and
meaningful participation in the political process." Id. We concluded that "the remedial
plan affords Native-Americans more than a 65 percent majority in District 27 and a
74 percent majority in District 26A." Id. In support of this holding, we cited Ketchum
v. Byrne, 740 F.2d 1398, 1402 (7th Cir. 1984), as acknowledging the 65-percent
guideline and Neal v. Coleburn, 689 F. Supp. 1426, 1438 (E.D. Va. 1988), for the
following proposition: "'[T]he general 65% guideline for remedial districts is not a
required minimum which the plaintiffs must meet before they can be awarded any
relief under § 2 . . . . Rather, the 65% standard is a flexible and practical guideline to
consider in fashioning relief for a § 2 violation.'" Id. We also found that the district
court "correctly considered other factors, including turnout rate and incumbency in
formulating the plan." Id. (holding that "all that is required [under § 2] is that the
remedy afford Native-Americans a realistic opportunity to elect representatives of
their choice").

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 2. Bartlett v. Strickland

Did the Supreme Court's decision in Bartlett modify what constitutes an
"effective majority" for purposes of § 2? I conclude that it does. The case arose "in a
somewhat unusual posture" in which the State of North Carolina invoked § 2 as a
defense to a new district that it created. Bartlett, 129 S. Ct. at 1239. According to the
State, "§ 2 required [it] to draw the district in question in a particular way," despite a
provision of the North Carolina Constitution that prohibited the state legislature from
"dividing counties when drawing legislative districts for the State House and Senate."
Id. The Court granted certiorari to determine

whether [§ 2] can be invoked to require state officials to draw
election-district lines to allow a racial minority to join with other voters
to elect the minority's candidate of choice, even where the racial minority
is less than 50 percent of the voting-age population in the district to be
drawn. To use election-law terminology: In a district that is not a
majority-minority district, if a racial minority could elect its candidate of
choice with support from crossover majority voters, can § 2 require the
district to be drawn to accommodate this potential?

Id. at 1238. Ultimately, the Court held that such "crossover districts" do not satisfy the
Gingles requirement that the minority population be large enough and yet sufficiently
geographically compact to constitute a majority in a single-member district. Id. at
1243.

In reaching this holding, the Court began its analysis by noting that the case
"turn[ed] on whether the first Gingles requirement can be satisfied when the minority
group makes up less than 50 percent of the voting-age population in the potential
election district." Id. at 1241. The "dispositive question" was "[w]hat size minority
group is sufficient to satisfy the first Gingles requirement?" Id. at 1242. The Court
observed that

-26-
 [a]t the outset the answer might not appear difficult to reach, for the
Gingles Court said the minority group must "demonstrate that it is
sufficiently large and geographically compact to constitute a majority in
a single-member district." 478 U.S., at 50, 106 S. Ct. 2752. This would
seem to end the matter, as it indicates the minority group must
demonstrate it can constitute "a majority." But in Gingles and again in
Growe [v. Emison, 507 U.S. 25 (1993),] the Court reserved what it
considered to be a separate question—whether, "when a plaintiff alleges
that a voting practice or procedure impairs a minority's ability to
influence, rather than alter, election results, a showing of geographical
compactness of a minority group not sufficiently large to constitute a
majority will suffice." Growe, supra, at 41, n. 5, 113 S. Ct. 1075; see
also Gingles, supra, at 46–47, n. 12, 106 S. Ct. 2752. The Court has
since applied the Gingles requirements in § 2 cases but has declined to
decide the minimum size minority group necessary to satisfy the first
requirement. See Voinovich v. Quilter, 507 U.S. 146, 154, 113 S. Ct.
1149, 122 L. Ed.2d 500 (1993); [Johnson v.] De Grandy, [512 U.S. 997,
1009 (1994)]; League of United Latin American Citizens v. Perry, 548
U.S. 399, 443, 126 S. Ct. 2594, 165 L. Ed.2d 609 (2006) (opinion of
KENNEDY, J.) (LULAC). We must consider the minimum-size question
in this case.

Id. (emphasis added).

In rejecting the State's argument that § 2 required the creation of crossover
districts, the Court explained that permitting such claims

would require us to revise and reformulate the Gingles threshold inquiry
that has been the baseline of our § 2 jurisprudence. Mandatory
recognition of claims in which success for a minority depends upon
crossover majority voters would create serious tension with the third
Gingles requirement that the majority votes as a bloc to defeat
minority-preferred candidates. It is difficult to see how the
majority-bloc-voting requirement could be met in a district where, by
definition, white voters join in sufficient numbers with minority voters
to elect the minority's preferred candidate.

Id. at 1244.
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 The Court "f[ou]nd support for the majority-minority requirement in the need
for workable standards and sound judicial and legislative administration" because such
a "rule draws clear lines for courts and legislatures alike." Id. "Unlike any of the
standards proposed to allow crossover-district claims, the majority-minority rule relies
on an objective, numerical test: Do minorities make up more than 50 percent of the
voting-age population in the relevant geographic area?" Id. at 1245 (emphasis added).
According to the Court, such a rule gives courts and officials charged with
redistricting "straightforward guidance" as to what § 2 requires. Id.

Where an election district could be drawn in which minority voters form
a majority but such a district is not drawn, or where a majority-minority
district is cracked by assigning some voters elsewhere, then—assuming
the other Gingles factors are also satisfied—denial of the opportunity to
elect a candidate of choice is a present and discernible wrong that is not
subject to the high degree of speculation and prediction attendant upon
the analysis of crossover claims. Not an arbitrary invention, the
majority-minority rule has its foundation in principles of democratic
governance. The special significance, in the democratic process, of a
majority means it is a special wrong when a minority group has 50
percent or more of the voting population and could constitute a compact
voting majority but, despite racially polarized bloc voting, that group is
not put into a district.

Id. (emphasis added). Thus, the Court determined that it "remain[ed] the rule . . . that
a party asserting § 2 liability must show by a preponderance of the evidence that the
minority population in the potential election district is greater than 50 percent." Id.
at 1246 (emphasis added). "The majority-minority rule . . . is not at odds with § 2's
totality-of-the-circumstances test" because "the Gingles requirements are
preconditions, consistent with the text and purpose of § 2, to help courts determine
which claims could meet the totality-of-the-circumstances standard for a § 2
violation." Id. at 1247. According to the Court, "De Grandy confirmed 'the error of
treating the three Gingles conditions as exhausting the enquiry required by § 2.'" Id.
(quoting De Grandy, 512 U. S. at 1013).

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 3. Effect of Bartlett on Remedial Phase of § 2 Litigation

Admittedly, Bartlett concerned only the liability stage of a § 2 case, not the
remedial stage. The question is whether Bartlett's clarification of the minimum size
minority group necessary to satisfy the first threshold Gingles requirement impacts
what constitutes an "effective majority" in fashioning a remedy for a § 2 violation.

I find Bartlett instructive to the present case for two reasons. First, although the
Court in Gingles and its progeny never definitively stated the minimum size minority
group necessary for purposes of a § 2 vote-dilution claim, the Court in Bartlett did
establish a numerical threshold and defined the term "majority." The Court stated that,
under the first Gingles factor, "the majority-minority rule" provides that a minority
group must "make up more than 50 percent of the voting-age population in the
relevant geographic area." See Bartlett, 129 S. Ct. at 1245 (emphasis added). Thus, "a
party asserting § 2 liability must show by a preponderance of the evidence that the
minority population in the potential election district is greater than 50 percent." Id.
at 1246 (emphasis added).

Second, Bartlett's explanation of the majority-minority rule with regard to
liability directly affects the imposition of a § 2 remedy, as issues of liability and
remedy are inextricably intertwined. See, e.g., Nipper v. Smith, 39 F.3d 1494, 1530–31
(11th Cir. 1994) (en banc) ("The inquiries into remedy and liability . . . cannot be
separated: A district court must determine as part of the Gingles threshold inquiry
whether it can fashion a permissible remedy in the particular context of the challenged
system."); accord Sanchez v. State of Colo., 97 F.3d 1303, 1311 (10th Cir. 1996).

In addition to Bartlett, the per se 60-percent rule that the district court applied
in the present case finds no reasoned basis in case law8 or statutory law, apart from the

8
Although we previously approved 65 percent as a "guideline," see, e.g., Bone
Shirt, 461 F.3d at 1023, we have never suggested that such a guideline constitutes a
per se rule that applies in all circumstances in formulating a remedy for § 2 violations.
-29-
Court's approval as "reasonable" the Attorney General's decision that "a substantial
nonwhite population majority—in the vicinity of 65%—would be required to achieve
a nonwhite majority of eligible voters." United States Jewish Organization, 430 U.S.
at 164. "[T]he 65% benchmark is an artificial one because it does not necessarily
reflect a minority group's true potential to control a district." Angelo N. Ancheta &
Kathryn K. Imahara, Multi-Ethnic Voting Rights: Redefining Vote Dilution in
Communities of Color, 27 U.S.F. L. Rev. 815, 867 (1993).

Therefore, in light of the 50-percent numerical threshold requirement in
Bartlett, the interrelation between remedy and liability, and the lack of reasoned
authority for imposing a 60-percent or 65-percent per se rule, I would remand to the
district court for reconsideration of plaintiffs' Plan A and Plan B. I would direct the
district court to gather any additional statistical evidence, evaluate such evidence, and
conduct a particularized inquiry to determine what percentage of minority voters is
necessary to provide such voters with a reasonable opportunity to elect a
representative of their choice. In conducting this inquiry, I would advise the district
court to remain mindful that liability and remedy are inextricably intertwined. While
60 to 65 percent may, in some cases, constitute a sufficient minority population, it
does not necessarily follow that such percentages also constitute the minimum
sufficient percentage in every case. Under Bartlett, a minority need only make up
"more than 50 percent of the voting-age population in the relevant geographic area"
to satisfy the first Gingles factor. 129 S. Ct. at 1245 (emphasis added).

C. Conclusion

Accordingly, I would grant plaintiffs' motion to vacate the district court's
remedial order and remand to the district court for reconsideration of a proper remedy
in accordance with the foregoing instructions.
______________________________

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