Vecinos De Barrio Uno v. City of Holyoke

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1581

VECINOS DE BARRIO UNO, ET AL.,

Plaintiffs, Appellees,

v.

CITY OF HOLYOKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Cyr and Stahl,

Circuit Judges.

Steven P. Perlmutter, with whom Michael D. Lurie, Robinson &

Cole, and Edward R. Mitnick, Acting City Solicitor, were on

brief, for appellant.
Daniel J. Gleason, with whom Nelson G. Apjohn, Nutter,

McClennen & Fish, Alan J. Rom, Law Office of Sherwin Kantrovitz,

P.C., David P. Hoose, and Katz, Sasson, Hoose & Turnbull were on

brief, for appellees.

December 29, 1995

SELYA, Circuit Judge. In 1965, Congress enacted the
SELYA, Circuit Judge.

Voting Rights Act (the VRA), Pub. L. No. 89-110, 79 Stat. 437

(codified at 42 U.S.C. 1973-1973o). Three decades later, the

legislation remains a Serbonian bog in which plaintiffs and

defendants, pundits and policymakers, judges and justices find

themselves bemired.

The case before us opens yet another window on the

conceptual complexity that has engulfed the VRA. It arises

against the backdrop of the biennial elections that are held for

city council in Holyoke, Massachusetts. The plaintiffs, two

nonprofit organizations with ties to the Hispanic community and

eight voters of Hispanic descent, complain that the electoral

structure violates section 2 of the VRA by denying Hispanics

equal opportunity to "participate in the political process and to

elect representatives of their choice." 42 U.S.C. 1973(b).

The district court found merit in the plaintiffs' complaint with

regard to councilmanic elections and granted relief. See Vecinos

de Barrio Uno v. City of Holyoke, 880 F. Supp. 911 (D. Mass.

1995).1 After careful consideration of a bulky record, we are

unable to square the lower court's factual findings with its

ultimate conclusion of vote dilution. Consequently, we vacate

the judgment and remand for further proceedings.

1The plaintiffs also challenged the way in which members of
the school committee were elected. The district court repulsed
that challenge, see Holyoke, 880 F. Supp. at 928, and the

plaintiffs do not press the point on appeal.

2

I. BACKGROUND
I. BACKGROUND

We sketch the background, reserving a more exegetic

treatment of the facts pending our discussion of specific issues.

We refer those readers who yearn for an immediate rush of details

to the district court's informative opinion. See id. at 917-25.

Since 1963, the Holyoke city council has been composed

of fifteen members, eight elected at large and seven elected by

ward. Candidates run without party labels for two-year terms.

Each voter is entitled to cast a ballot for a candidate in his or

her ward, and to vote for up to eight at-large candidates.

The Hispanic community in Holyoke has grown

dramatically over the past two decades. By 1990, persons of

Hispanic origin accounted for 31.06% of the total population

(compared to 13.8% in 1980). Under the current districting

scheme the ward lines were last redrawn in 1992 Hispanic

voters comprise a clear majority in two wards and account for

nearly one-third of the population in a third ward. Yet, while

Hispanic-preferred city council candidates have prevailed in the

two "Hispanic majority" wards, no person of Hispanic descent ever

has been elected to an at-large seat. This discrepancy

crystallizes into the nub of the plaintiffs' case: their vote

dilution claim is that, while Hispanics now constitute 21.89% of

Holyoke's voting age population, the electoral structure limits

the Hispanic community's ability to elect the candidates its

members prefer to only 14% of the available city council seats

(two of fifteen).

3

The district court agreed with the plaintiffs that the

Hispanic vote had been impermissibly diluted. See id. at 925-27.

To remedy the perceived inequity, the court by separate order

left the ward lines and representation intact, but cut back the

number of at-large seats from eight to two (thus shrinking the

council from fifteen to nine members, and making its electoral

structure congruent with that of the school committee). See

Vecinos de Barrio Uno v. City of Holyoke, 882 F. Supp. 9, 10 (D.

Mass. 1995) (Holyoke II). The court reasoned that, under the

revised format, Hispanics probably would continue to control two

of the ward seats, and that decreasing the size of the council

would boost Hispanics' percentage representation to a level that

would compare favorably with their percentage of the voting age

population as a whole. See id. at 12.

The district court, striving to put its remedial order

in place in time for the November 1995 municipal election cycle,

see id. at 13, entered the order under pressure of time. The

city appealed and simultaneously moved for a stay. By an

unpublished order, we expedited the appeal and granted the stay.

Hence, the November 1995 elections were held under the

preexisting scheme.

II. STANDARD OF REVIEW
II. STANDARD OF REVIEW

The bedrock on which the district court's opinion rests

is its conclusion that the at-large component of the electoral

structure unlawfully dilutes the Hispanic community's voting

power. As a general matter, a finding of vote dilution made

4

after a bench trial is a finding of fact subject to review under

the "clearly erroneous" rubric. See Thornburg v. Gingles, 478

U.S 30, 78-79 (1986); Houston v. Lafayette County, 56 F.3d 606,

610 (5th Cir. 1995); Jenkins v. Red Clay Consol. Sch. Dist. Bd.

of Educ., 4 F.3d 1103, 1116 (3d Cir. 1993), cert. denied, 114 S.

Ct. 2779 (1994); see also Fed. R. Civ. P. 52(a). This means that

a reviewing court ought not to disturb such a finding "unless, on

the whole of the record, [the court] form[s] a strong, unyielding

belief that a mistake has been made." Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

Though the clear error standard is formidable, it is

not a juggernaut that crushes everything in its path. One

important qualification is that the jurisprudence of clear error

"does not inhibit an appellate court's power to correct errors of

law, including those that may infect a so-called mixed finding of

law and fact, or a finding of fact that is predicated on a

misunderstanding of the governing rule of law." Gingles, 478

U.S. at 106 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485,

501 (1984)); accord LoVuolo v. Gunning, 925 F.2d 22, 25 (1st Cir.

1991). Considering asserted errors of law entails nondeferential

review. See In re Extradition of Howard, 996 F.2d 1320, 1327

(1st Cir. 1993).

III. PROVING VOTE DILUTION
III. PROVING VOTE DILUTION

In order to sharpen the focus of our inquiry, we first

limn the statutory framework and elucidate the requirements that

attend a proper showing of vote dilution.

5

Section 2 of the VRA, as amended in 1982, prohibits any

standard, practice, or procedure "which results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color." 42 U.S.C. 1973(a). A

denial or abridgement of the right to vote is established when,

based on the totality of circumstances, it is
shown that the political processes leading to
nomination or election . . . are not equally
open to participation by all members of a
[protected] class of citizens . . . in that
its members have less opportunity than other
members of the electorate to participate in
the political process and to elect
representatives of their choice. The extent
to which members of a protected class have
been elected to office . . . is one
circumstance which may be considered:
Provided, That nothing in this section

establishes a right to have members of a
protected class elected in numbers equal to
their proportion in the population.

42 U.S.C. 1973(b). While the statutory scheme does not provide

an assurance of success at the polls for minority candidates, see

Johnson v. De Grandy, 114 S. Ct. 2647, 2658 n.11 (1994), it does

provide an assurance of fairness. Thus, when "a certain

electoral law, practice, or structure interacts with social and

historical conditions to cause an inequality in the opportunities

enjoyed by [minority] and white voters to elect their preferred

representatives," a section 2 claim lies. Gingles, 478 U.S. at

47.

The platform required to launch a vote dilution claim

must contain three interleaved planks. First, the plaintiffs

must prove that they are part of a minority group that is

"sufficiently large and geographically compact to constitute a

6

majority in a single-member district." Id. at 50.2 Second,

they must show that the group is "politically cohesive." Id. at

51. Third, they must demonstrate significant bloc voting by non-

minorities. See id. Each of these showings must be specific to

the electoral unit that is under fire.

The first two Gingles preconditions look to whether,

putting the challenged practice, procedure, or structure to one

side, minority voters within a given constituency have the

potential to elect representatives of their choice. See Growe v.

Emison, 113 S. Ct. 1075, 1084 (1993); Gingles, 478 U.S. at 50

n.17. If, for example, minority voters in an at-large system are

so widely dispersed that they could not elect preferred

candidates under some reasonable alternative scheme, then the

"at-large system cannot be responsible for that group's inability

to elect its candidates." Solomon v. Liberty County, 899 F.2d

2This precondition will have to be reconfigured to the
extent that the courts eventually validate so-called influence
dilution claims. See Voinovich v. Quilter, 113 S. Ct. 1149,

1157-58 (1993) (discussing treatment of claims brought on behalf
of persons who constitute a potentially influential bloc, but
less than the majority, within the relevant electorate, and
raising prospect that the first Gingles precondition may have to

be "modified or eliminated"). The lower courts are divided on
the subject, compare Armour v. Ohio, 775 F. Supp. 1044, 1052

(N.D. Ohio 1991) (three-judge panel) (recognizing influence
dilution claim) with McNeil v. Springfield Park Dist., 851 F.2d

937, 947 (7th Cir. 1988) (rejecting influence dilution claim),
cert. denied, 490 U.S. 1031 (1989), and the Supreme Court has

declined on four occasions to decide whether such claims are
cognizable under VRA 2. See De Grandy, 114 S. Ct. at 2656;

Voinovich, 113 S. Ct. at 1157-58; Growe v. Emison, 113 S. Ct.

1075, 1084 n.5 (1993); Gingles, 478 U.S. at 46-47 n.12. We take

no view of the matter today (although we do discuss the potential
relevance of evidence from elections in a particular "influence
district" on the plaintiffs' claims, see infra Part V).

7

1012, 1018 (11th Cir. 1990), cert. denied, 498 U.S. 1023 (1991).

Similarly, unless the minority group is politically cohesive, "it

cannot be said that the selection of a [particular] electoral

structure thwarts distinctive minority group interests."

Gingles, 478 U.S. at 51. The third Gingles precondition which

embodies a showing that the majority votes sufficiently as a bloc

to enable it, in the ordinary course, to trounce minority-

preferred candidates most of the time, see Voinovich v. Quilter,

113 S. Ct. 1149, 1157 (1993) addresses whether the challenged

practice, procedure, or structure is the cause of the minority

group's inability to mobilize its potential voting power and

elect its preferred candidates. See De Grandy, 114 S. Ct. at

2657; Gingles, 478 U.S. at 51.

Proof of all three preconditions creates an inference

that members of the minority are in fact harmed by the challenged

electoral practice, procedure, or structure. However, the

inference is rebuttable. As a result, establishing the three

Gingles preconditions is necessary, but not always in itself

sufficient, to ensure success on a section 2 claim. That is to

say, because the inference of vote dilution can be rebutted by

the force of other evidence, proof of the three preconditions,

without more, will not invariably carry the day. See De Grandy,

114 S. Ct. at 2657. Put another way, the critical question in a

vote dilution case is whether minority voters have an equal

opportunity to participate in the electoral process. While the

threshold elements catalogued by the Gingles Court shed

8

considerable light on this inquiry, they do not comprise the only

conceivable source of illumination. Completing the inquiry

demands "comprehensive, not limited, canvassing of relevant

facts." Id.

Consistent with this approach, courts must be careful

not to wear blinders. The judge must sift the evidence produced

at trial and gather enough information to paint a true picture of

the attendant facts and circumstances. He or she must then make

a realistic appraisal of what the picture discloses. See

Gingles, 478 U.S. at 45 (advocating achievement of a "practical

evaluation of the past and present reality" through a "functional

view of the political process"). Some guidance can be found in a

list of factors highlighted in the congressional report that

accompanied the 1982 amendment to VRA 2, see S. Rep. No. 417,

97th Cong., 2d Sess., at 28-29 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 206-07, but the judge should not stop there.

Though helpful, the list is not all-encompassing. See Gingles,

478 U.S. at 45; Little Rock Sch. Dist. v. Pulaski County Special

Sch. Dist., 56 F.3d 904, 910 (8th Cir. 1995). Since communities

differ, and elections play out differently in different venues at

different times, the judge must make a case-specific

determination, giving due weight to the idiosyncracies that bear

upon the particular situation. See Jenkins, 4 F.3d at 1115.

One road that we believe remains open to a court called

upon to examine the totality of the circumstances in a vote

dilution case is to mull other factors, apart from racial bias,

9

that may have caused the white bloc voting identified in the

third Gingles precondition.3 While the Gingles Court split on

this question, compare Gingles, 478 U.S. at 63-64 (opinion of

Brennan, J.) (stating for four justices that the etiology of

racially polarized voting is irrelevant under VRA 2) with id.

at 100-02 (O'Connor, J., concurring in the judgment) (stating for

four justices that the reasons why white voters reject minority

candidates are relevant) and id. at 82-83 (White, J., concurring)

(rejecting, without explanation, Justice Brennan's view), and

controversy has raged since then, see, e.g., Nipper v. Smith, 39

F.3d 1494, 1513-14 (11th Cir. 1994) (en banc) (holding for two

judges, with two judges dissenting, that the existence of racial

bias in the community is relevant to a section 2 claim), cert.

denied, 115 S. Ct. 1795 (1995); League of United Latin Am.

Citizens, Council No, 4434 [LULAC] v. Clements, 999 F.2d 831,

850-63 (5th Cir. 1993) (en banc) (reaching similar conclusion,

3We recognize that such widely used terms of art as "white
bloc voting" and "racially polarized voting" may not always
capture the subtleties of specific problems that arise in the
political process. The case at bar, for example, involves the
voting patterns of the majority (loosely termed "white") and the
specific minority symbolized by the plaintiffs (loosely termed
"Hispanics"). Concededly, this taxonomy is imprecise; for
example, not all people who are considered "Hispanic" necessarily
consider themselves "non-white." To that extent, then, the
phrase "white bloc voting," though used repeatedly throughout the
decided cases, may be somewhat inaccurate or even slightly
misleading. Similarly, VRA 2 applies to denials of the right
to vote on account of either race or color, yet the opinions harp

on the phrase "racially polarized voting." To that extent, the
idiom of the case law may neglect potentially important
distinctions between the concepts of "race" and "color." While
acknowledging these limitations, we can think of no universal
solution, and, thus, take refuge in the pat terminology.

10

with three judges dissenting), cert. denied, 114 S. Ct. 878

(1994), we are of the view that De Grandy has removed much of the

doubt.

Even when the Gingles preconditions coalesce and

thereby create an inference of discrimination, lack of equal

electoral opportunity remains the central focus of the inquiry.

Furthermore, that question "must still be addressed explicitly,

and without isolating any other arguably relevant facts from the

act of judgment." De Grandy, 114 S. Ct. at 2657. It seems self-

evident that the presence or absence of bias is at least

"arguably relevant" to the question of whether a minority lacks

equal electoral opportunity. After all, a minority group's

prospects for electoral success in a community riven along racial

lines differ significantly from its prospects in a more unified

community. We agree with the Fifth Circuit that "[a] tendency

among whites to cast their votes on the basis of race presents a

far more durable obstacle to the coalition-building upon which

minority electoral success depends than disagreements over

ideology." LULAC, 999 F.2d at 858.

By like token, however, sentiments unrelated to race

also can be powerful stimuli. When it can be shown that, in a

particular community, voters are moved primarily by causes

unrelated to race, it is reasonable to assume that a minority-

preferred candidate who embodies these values might equally be

able to engender majoritarian (white) support. See Gingles, 478

U.S. at 100-01 (O'Connor, J., concurring). Thus:

11

Evidence that a candidate preferred by the
minority group in a particular election was
rejected by white voters for reasons other
than those which made that candidate the
preferred choice of the minority group would
seem clearly relevant in answering the
question whether bloc voting by white voters
will consistently defeat minority candidates.

Id. at 100.

The upshot is that when racial antagonism is not the

cause of an electoral defeat suffered by a minority candidate,

the defeat does not prove a lack of electoral opportunity but a

lack of whatever else it takes to be successful in politics (say,

failure to support popular programmatic initiatives, or failure

to reflect the majority's ideological viewpoints, or failure to

appreciate the popularity of an incumbent). Section 2 does not

bridge that gap nor should it. See De Grandy, 114 S. Ct. at

2658 n.11; see also Baird v. Consolidated City of Indianapolis,

976 F.2d 357, 361 (7th Cir. 1992) (explaining that section 2 "is

a balm for racial minorities, not political ones even though

the two often coincide"), cert. denied, 113 S. Ct. 2334 (1993).

We believe it follows that, after De Grandy, plaintiffs cannot

prevail on a VRA 2 claim if there is significantly probative

evidence that whites voted as a bloc for reasons wholly unrelated

to racial animus. We so hold.

This holding draws sustenance from the language of

section 2 itself, particularly the statute's prohibition of

electoral structures that result in a denial or abridgement of

the right to vote "on account of race or color." 42 U.S.C.

1973(a). Other courts have found this language determinative of

12

the question, see, e.g., Nipper, 39 F.3d at 1515-17; LULAC, 999

F.2d at 850, especially when coupled with legislative history

indicating that an electoral scheme violates VRA 2 only when it

"interacts with racial bias in the community and allows that bias

to dilute the voting strength of the minority group." Nipper, 39

F.2d at 1520 (commenting upon legislative history).

Those including the present plaintiffs who favor a

more single-minded interpretation of section 2 marshal a regiment

of counterarguments. Their most serious objection questions the

compatibility of our holding with Congress's action in amending

section 2 to scrap the "intent" test imposed by City of Mobile v.

Bolden, 446 U.S. 55, 62 (1980), and to insert in its place the

"results" test earlier adumbrated in White v. Regester, 412 U.S.

755, 765-66 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 143

(1971). This substitution permits plaintiffs to show vote

dilution by proving that electoral structures "result[] in a

denial or abridgement of the right of any citizen of the United

States to vote on account of race or color," 42 U.S.C. 1973(a),

and, concomitantly, relieves them of the burden of proving that

the structures were set in place to advance a racially

discrimination purpose. Against this mise-en-scene, some have

equated Congress's adoption of the "results" test with an

intention to foreclose any inquiry whatever into the reasons why

minority groups lack opportunities for electoral participation.

We do not believe that the 1982 amendment lends itself

to this restrictive conclusion. The now-discarded "intent" test

13

specifically required plaintiffs to prove that government created

or maintained the challenged electoral structure with a

discriminatory purpose, actually intending that a structure would

disadvantage minority voters. See Mobile, 446 U.S. at 62-63. In

enacting the amendment, Congress shifted the law's focus:

plaintiffs no longer have to prove discriminatory intent but

instead have to carry the burden of proving that the challenged

electoral structure results in a denial of equal opportunity on

account of race.

Properly conceived, the results test protects racial

minorities against a stacked deck but does not guarantee that

they will be dealt a winning hand. Whitcomb an opinion

purportedly codified in the 1982 amendment illustrates the

point. There, the Court discerned no denial of equal opportunity

when a minority group's failure to elect its preferred candidates

"emerges more as a function of losing elections than of built-in

bias" directed by the establishment majority against the minority

group. Whitcomb, 403 U.S. at 153. The lesson to be learned is

that, even when election returns in effect short-circuit a

minority group's voting power, the electoral structure is not

illegal if the defeat represents nothing more than the routine

operation of political factors. See id. In other words, even

under the 1982 amendment, a lack of electoral success unrelated

to race is not a proxy for a lack of opportunity to succeed.

Hence, VRA 2, as amended, despite its focus on results, does

not require courts to ignore evidence that factors other than

14

race are the real obstacles to the political success of a

minority group. See Gingles, 478 U.S. at 101 (O'Connor, J.,

concurring) ("The overall vote dilution inquiry neither requires

nor permits an arbitrary rule against consideration of all

evidence concerning voting preferences other than statistical

evidence of racial voting patterns.").

We recognize, of course, that permitting inquiry into

the causes of white bloc voting potentially jeopardizes the

remedial purposes of the VRA in the sense that it may make proof

of vote dilution more difficult. Courts have expressed concern

on this score, see, e.g., id. at 72 (opinion of Brennan, J.);

LULAC, 999 F.2d at 860, and these concerns are not without

foundation. Yet, two responses spring to mind. First, the VRA

is designed to ensure that the electoral process is fair and the

opportunities for access to it are equal. Forcing courts to turn

a blind eye to other causes of majoritarian bloc voting serves

neither of these ends, but, rather, facilitates a back-door

approach to proportional representation. That is not a door

through which Congress desired courts to pass. See 42 U.S.C.

1973(b) (stating that nothing in the VRA "establishes a right to

have members of a protected class elected in numbers equal to

their proportion in the population").

Second, we suspect that at bottom the skeptics

misapprehend the nature of the showing needed to support a

section 2 claim. As amended, the statute allows plaintiffs to

establish a prima facie case of vote dilution by proving the

15

three Gingles preconditions. The second and third preconditions

are designed to assay whether racial cleavages in voting patterns

exist and, if so, whether those cleavages are deep enough to

defeat minority-preferred candidates time and again. If proven,

these preconditions give rise to an inference that racial bias is

operating through the medium of the targeted electoral structure

to impair minority political opportunities. See De Grandy, 114

S. Ct. at 2657 (noting that a "lack of equal electoral

opportunity may be readily imagined and unsurprising when

demonstrated under circumstances that include the three essential

Gingles factors"); Nipper, 39 F.3d at 1525 (stating that "proof

of the second and third Gingles factors will ordinarily create a

sufficient inference that racial bias is at work"); United States

v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir.)

(stating that the second and third Gingles preconditions remain

the "surest indication of race-conscious politics"), cert.

denied, 469 U.S. 976 (1984).

The resultant inference is not immutable, but it is

strong; it will endure unless and until the defendant adduces

credible evidence tending to prove that detected voting patterns

can most logically be explained by factors unconnected to the

intersection of race with the electoral system.4 See Nipper, 39

F.3d at 1524. It is only when such evidence possesses convictive

4Such factors might include, for example, organizational
disarray, lack of funds, want of campaign experience, the
unattractiveness of particular candidates, or the universal
popularity of an opponent.

16

force that the inference of racial animus will be called into

serious question. See De Grandy, 114 S. Ct. at 2658.

Even if such proof is forthcoming, the defendant does

not automatically triumph. Instead, the court must determine

whether, based on the totality of the circumstances (including

the original inference and the factual predicate that undergirds

it), the plaintiffs have proven that the minority group was

denied meaningful access to the political system on account of

race. The burden of proof at all times remains with the

plaintiffs; defendant's burden is an entry-level burden of

production. Thus, once the defendant proffers enough evidence to

raise a legitimate question in regard to whether nonracial

factors adequately explain racial voting patterns, the ultimate

burden of persuading the factfinder that the voting patterns were

engendered by race rests with the plaintiffs.

Despite the allocation of the burden of proof, this

framework imposes a high hurdle for those who seek to defend the

existing system despite meaningful statistical evidence that

suggests bloc voting along racial lines.5 See Jenkins, 4 F.3d

5The proceedings below illustrate this point. The district
court acknowledged but did not accept the City's attribution
of the Hispanic community's lack of electoral success to "factors
other than the at-large system itself, including voter apathy,
unattractive candidates, poor campaign organizations and the like
all evidenced by low voter turnout." Holyoke, 880 F. Supp. at

926. The court seemingly rejected the City's alternative
explanations as a matter of fact. See id. (concluding that,

based on the overall evidence, an Hispanic candidate, "no matter
how attractive and no matter how effective at bringing out the
Hispanic vote, [would not have had] a fair opportunity to win any
at-large election in Holyoke during this period"). Having used
this illustration, we hasten to add that, on remand, the court is

17

at 1135. We predict that cases will be rare in which plaintiffs

establish the Gingles preconditions yet fail on a section 2 claim

because other facts undermine the original inference. In this

regard, we emphasize that establishing vote dilution does not

require the plaintiffs affirmatively to disprove every other

possible explanation for racially polarized voting. Rather,

plaintiffs must simply prove that the three threshold

preconditions (alone or in combination with the totality of the

circumstances) are strong enough in a given case that,

notwithstanding the countervailing evidence of other causative

agents mustered by the defendant, the record sustains a claim

that racial politics specifically, the interaction of race and

the electoral system have resulted in significantly diminished

opportunities for minority participation in elective government.

IV. THE ASSIGNMENTS OF ERROR
IV. THE ASSIGNMENTS OF ERROR

Having cemented into place the general framework for

evaluating vote dilution claims, we shine the light of our

gleaned understanding on the City's objections to the decision

below. We divide our discussion into four segments.

A. The Analytic Model.
A. The Analytic Model.

In this case, the district court analyzed fifteen

different races in six different election years spanning a ten-

year period from 1983 through 1993. Taking this evidence as an

undifferentiated whole, the court found a pattern of racially

free to revisit the evidence and reconsider all its findings,
including those that touch upon other possible causes of racially
polarized voting.

18

polarized voting sufficient to support the plaintiffs' prayer for

relief. The City assigns error, positing that racially polarized

voting cannot be deduced from an overview which blends data from

a series of separate elections, some suspect and some

unexceptionable. The City's point is that only evidence from

"legally significant" elections can be relevant to, or can

underbrace, a finding that VRA 2 has been abridged. Warming to

this theme, the City asserts that each of the three Gingles

preconditions must be shown to exist vis-a-vis a particular

election before a court may mull what transpired at that election

as a link in the evidentiary chain that leads to a determination

of vote dilution. If this approach were adopted, the court

below, in considering whether the plaintiffs had established a

pattern of racially polarized voting over the years, could not

have relied upon evidence drawn from any discrete election unless

the plaintiffs first proved a violation of the VRA in regard to

that election.6 We reject the City's approach.

In this enlightened day and age, bigots rarely

advertise an intention to engage in race-conscious politics. Not

surprisingly, therefore, racially polarized voting tends to be a

silent, shadowy thief of the minority's rights. Where such

6To give concrete examples, Holyoke contends that in 1983
Hispanics did not constitute a sufficiently compact group to
satisfy the first Gingles precondition, thus rendering any

evidence of white bloc voting in that year legally irrelevant.
In the same vein, the City insists that the district court should
have ignored evidence of racially polarized voting in any
elections won by minority candidates or in which Hispanics did
not sufficiently cohere.

19

activity is detected at all, the process of detection typically

involves resort to a multifaceted array of evidence including

demographics, election results, voting patterns, campaign

conduct, and the like. Usually, such evidence is not neatly

packaged but must be pieced together bit by bit from data

accumulated in a series of elections. See Gingles, 478 U.S. at

57; Jenkins, 4 F.3d at 1119; Gomez v. City of Watsonville, 863

F.2d 1407, 1417 (9th Cir. 1988), cert. denied, 489 U.S. 1080

(1989); City of Carrollton Branch of NAACP v. Stallings, 829 F.2d

1547, 1557 (11th Cir. 1987), cert. denied, 485 U.S. 936 (1988).

Thus, the question whether a given electoral district experiences

racially polarized voting to a legally significant extent demands

a series of discrete inquiries not only into election results but

also into minority and white voting practices over time.

We think that this analysis exposes the principal flaw

in Holyoke's thesis. The requirement of "legal significance" is

not a barometer for deciding what evidence of racially polarized

voting may be considered; rather, it is the benchmark against

which all the evidence, taken in sum, must be measured. And

although weaknesses in plot lines siphoned from individual

elections may well imperil an overall conclusion of legally

significant racially polarized voting the whole is frequently

not greater than the sum of the parts such weaknesses do not

render evidence from those elections inadmissible. It follows

that reliance on such evidence does not necessarily invalidate an

overall conclusion that unlawful vote dilution exists. See

20

Gingles, 478 U.S. at 57 (explaining that "in a district where

elections are shown usually to be polarized, the fact that

racially polarized voting is not present in one or a few

individual elections does not necessarily negate the conclusion

that the district experiences legally significant bloc voting").

This paradigm is fully consistent with the reality of

events. One swallow does not a summer make, and the results of a

single election are unlikely, without more, to prove the

existence or nonexistence of embedded racial cleavages. Thus,

race-conscious politics (or its absence, for that matter) can

more readily be seen by producing a documentary that spans a

series of elections than by taking an isolated snapshot of a

single election. After all, to be legally significant, racially

polarized voting in a specific community must be such that, over

a period of years, whites vote sufficiently as a bloc to defeat

minority candidates most of the time. See id. at 56. In order

reliably to tell whether racial groups do (or do not) band

together behind particular candidates with regularity, all

elections in the relevant time frame (or, at least, a

representative sampling of them) must be studied not just those

elections that, taken in isolation, reveal the cicatrices of

racially polarized voting.

On this basis, we reject the City's contention that the

failure to prove any one Gingles precondition in any one election

eliminates that election from judicial consideration. The

preconditions are necessary to prove an overall conclusion of

21

vote dilution, not to demonstrate the relevance vel non of

particular morsels of evidence. Hence, the court below had every

right to analyze all the elections (suspect and non-suspect) in

its effort to ascertain both whether (1) the Hispanic community

usually coheres behind particular candidates, and (2) Holyoke's

white citizens usually vote against Hispanic-preferred candidates

in sufficient numbers to prevent their election.

B. Compactness.
B. Compactness.

Holyoke's city council model seven ward seats and

eight at-large seats dates back more than three decades (to an

era when few persons of Hispanic descent dwelt in the

municipality). Currently, the Hispanic community effectively

controls two of the fifteen city council seats (Wards 1 and 2).

In addition, Hispanics constitute about 28% of the voting age

population in Ward 4. Based on these population statistics, the

City strives to persuade us that the plaintiffs cannot satisfy

the Gingles preconditions because Hispanics, as a group, are

insufficiently compact to constitute the majority in a third

ward. We are unconvinced for two reasons.

First, the City failed to make this claim in its brief,

asserting it for the first time at oral argument. Thinking on

one's feet is a useful tool of appellate advocacy only if the

thinker has a suitable foothold in the record. Here, the thought

was too little too late. See United States v. Gertner, 65 F.3d

963, 971 n.7 (1st Cir. 1995) (refusing to entertain an argument

not raised in the government's appellate brief); see also Fed. R.

22

App. P. 28(a).

In all events, the City's spur-of-the-moment retort is

founded on a faulty premise. It assumes that the relevant

benchmarks for matching the Hispanic population and its

opportunity for access are the seven single-member wards. This

assumption is faulty because the litigation challenges Holyoke's

electoral system as a whole, and, to the extent the challenge is

scissile, its cynosure is not the wards but the system's at-large

component a component that allegedly dilutes the plaintiffs'

opportunity for full political participation in municipal

affairs. Refined to bare essence, the plaintiffs' theory is

that, because of the combined impact of the at-large electoral

structure and an incipient pattern of racially polarized voting,

Hispanics can only hope to elect candidates to two of the fifteen

city council seats (i.e., about 14% of the seats) even though

they comprise at least 22% of Holyoke's total population. Thus,

the City's emphasis on the seven wards misses the point.

This does not mean that the wards are an irrelevancy.

A successful vote dilution challenge "must find a reasonable

alternative practice as a benchmark against which to measure the

existing voting practice." Holder v. Hall, 114 S. Ct. 2581, 2585

(1994). In that sense, the single-member districts are relevant

to an assessment of the system's at-large component. While it

may be theoretically possible to analogize the plaintiffs' claim

to a challenge addressed to a multimember at-large district in

which case the court would have to compare Hispanic opportunities

23

to elect candidates to one of the eight undifferentiated at-large

seats to the potential opportunities that might exist if the

multimember district were divided into eight contiguous single-

member districts, see, e.g., id. at 2589 (O'Connor, J.,

concurring) ("In a challenge to a multimember at-large system . .

. a court may compare it to a system of multiple single-member

districts.") the analogy cannot be carried past its logical

limits. Here, the analogy would be imperfect because the

plaintiffs' challenge is addressed to Holyoke's electoral system

as a whole. Accordingly, the district court had an obligation to

consider whether that system not just its at-large component

provides minorities with an equal opportunity to elect candidates

of their choice. See Baird, 976 F.2d at 360; NAACP v. City of

Columbia, 850 F. Supp. 404, 429 (D.S.C. 1993), aff'd, 33 F.3d 52

(4th Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995).

Bearing this in mind, we think that the lower court

constructed a reasonable benchmark by comparing current Hispanic

opportunities to potential opportunities that would exist if the

municipality were divided into fifteen single-member councilmanic

districts. And since we find no clear error in the court's

conclusion that, under its projected set of circumstances,

Hispanics would constitute a majority of the votes in at least

three of fifteen reconstituted wards, we cannot set aside its

finding that Hispanics are a sufficiently compact group.

C. Low Voter Turnout.
C. Low Voter Turnout.

The City also asserts that, given the consistently low

24

turnout among Holyoke's Hispanic voters, see Holyoke, 880 F.

Supp. at 925 ("Hispanic turnout rates in Holyoke have varied from

22% to as low as 2% over a ten-year period, . . . differing

considerably from election to election and from precinct to

precinct."), the district court erred as a matter of law in

declaring the Hispanic community to be politically cohesive. In

the City's view, low turnout betokens voter apathy and precludes

a finding that particular candidates received significant

minority support (as required to show minority political cohesion

under Gingles, 478 U.S. at 56). The plaintiffs concede the

anemic turnout but argue that it is irrelevant to the political

cohesion inquiry. They take the position that courts should

frame answers to such inquiries after considering the behavior of

those minority voters who actually opt to participate in the

electoral process, and not gaze beyond that group (whatever its

size) to count the number that sit on the sidelines.

We walk a middle path. A principal objective of the

VRA is to provide a level playing field on which minority

candidates like all candidates will be exposed only to the

routine vicissitudes of the electoral process, not to special

impediments arising out of the intersection of race and the

electoral system. So, if a defeat at the polls (or even a string

of defeats) is caused by, say, a candidate's lack of merit or a

campaign's lack of focus, the Voting Rights Act is not infringed.

See Whitfield v. Democratic Party of State of Ark., 890 F.2d

1423, 1430 (8th Cir. 1989) (explaining that a "causal connection

25

between the challenged practice . . . and the diluted voting

power of the minority must be established"). By like token, if

the defeat of minority candidates occurs because the votes of the

members of the minority community are scattered due to their

diverse interests, then the requisite causal connection is

lacking. See Gingles, 478 U.S. at 51. Under such circumstances,

the interaction of race with the electoral system cannot justly

be blamed for a minority group's lack of success at the polls.

In the case of low voter turnout, the electoral system

may not always be so easily absolved. For one thing, even with a

modest turnout, the actual votes cast may be probative of

minority cohesion if a sufficiently strong pattern emerges. See,

e.g., United States v. Dallas County Comm'n, 739 F.2d 1529, 1536

n.4 (11th Cir. 1984). For another thing, low voter turnout in

the minority community sometimes may result from the interaction

of the electoral system with the effects of past discrimination,

which together operate to discourage meaningful electoral

participation. In such instances, low turnout itself may

actually be probative of vote dilution. See, e.g., Gingles, 478

U.S. at 69 (opinion of Brennan, J.); see also Gomez, 863 F.2d at

1416 n.4 (suggesting that voter apathy traceable to past

discrimination is "evidence of minority voters' lack of ability

to participate effectively in the political process"); Kirksey v.

Board of Supervisors, 554 F.2d 139, 145 n.13 (5th Cir.)

(observing that failure to register may be a residual effect of

previous lack of access or feelings of futility in light of white

26

bloc voting), cert. denied, 434 U.S. 968 (1977); see also

Buckanaga v. Sisseton Indep. Sch. Dist., 804 F.2d 469, 475 (8th

Cir. 1986). When low turnout results from the very problems that

the Voting Rights Act is intended to ameliorate, it would be

mindless for courts to ignore the evidence of minority cohesion

that can be culled from the actual ballot tallies.

This is not to say, as the plaintiffs would have it,

either that low voter turnout is altogether irrelevant to a vote

dilution inquiry, or that courts should look only to actual

voting results. The cause of poor turnout is often difficult to

detect. If minority voters have not made reasonable efforts to

organize and participate in the electoral system, courts cannot

accurately gauge the effects of the system on the minority

group's political aspirations. See City of Columbia, 850 F.

Supp. at 415-16. Furthermore, low turnout sometimes may be an

indicium of ebbing community support for a particular minority

candidate. See id. at 418-19. Hence, evidence of this nature

may or may not be probative on the issue of minority

cohesion.

In the final analysis, the question of whether low

minority voter turnout helps or hurts a claim of vote dilution,

and the related question of whether actual votes cast provide a

sufficient (or better) measure of minority political cohesion

without regard to turnout, both depend on the facts and

circumstances of the particular case. Consequently, courts

cannot resort to the easy visibility of a bright-line rule. On

27

this delicate, fact-sensitive issue, only a case-by-case approach

satisfactorily permits courts to peel away the layers and conduct

the functional vote dilution inquiry that the VRA requires.

In the case at hand, the district court made reasonably

detailed findings concerning the relationship between depressed

turnout among Hispanics and the structural attributes of

Holyoke's electoral system. The court determined that the City

imposed or neglected to remove a variety of obstacles to

Hispanic political participation. The court mentioned, inter

alia, the City's niggardly deployment of bilingual registrars and

poll workers, its removal from voter registration rolls of

Hispanics who did not fill out English-language census forms, and

its failure to print ballot information posters in Spanish. See

Holyoke, 880 F. Supp. at 925. In the court's estimation, these

deficiencies, along with downtrodden socioeconomic conditions,

accounted for the low turnout among Hispanic voters. Id. And to

cap matters, the court found that the actual turnout, though

small, was adequate to reflect political cohesion in the Hispanic

community. Id.

We believe that these findings are supportable. In a

vote dilution case characterized by meager turnout among minority

voters, plaintiffs need not show that the sole cause of low

numbers is the interaction between racial divisions in the

community and identifiable elements of the electoral system. It

is sufficient if the plaintiffs persuade the trial court that

considerations implicating race contributed substantially to

28

repressing minority participation. In light of the aggregate

facts and circumstances, coupled with the district court's

explicit findings, we believe that the plaintiffs satisfied this

burden here. Thus, the evidence of low Hispanic turnout does not

undercut the court's ultimate conclusion that the plaintiffs

established minority political cohesion.7

D. Adequacy of the Findings.
D. Adequacy of the Findings.

The City's most telling point involves the lower

court's application of relevant legal principles to discerned

facts. In condoning the necessary appraisal, we are mindful that

a district judge sitting without a jury cannot paint with too

broad a brush. Rule 52(a) requires the judge to make findings of

fact and conclusions of law that are sufficiently detailed to

permit a reviewing court to ascertain the factual core of, and

the legal foundation for, the rulings below. See Touch v. Master

Unit Die Prods., Inc., 43 F.3d 754, 759 (1st Cir. 1995); Pearson

v. Fair, 808 F.2d 163, 165-66 & n.2 (1st Cir. 1986) (per curiam).

This bedrock rule has particular force in cases of this

genre. Vote dilution claims are often marked by a significant

degree of complexity. Typically, the resolution of such claims

demands a careful sifting of imbricated, highly ramified fact

patterns. The legal principles that must be applied are

7We leave open the possibility that especially low minority
voter turnout in a particular election may be evidence that
factors other than racially based politics (say, poor political
organization or lack of minority community support) were the
cause of the minority community's inability to elect its
preferred candidate in that election.

29

convoluted, and they almost always touch upon constitutional

precepts, together with important issues of federalism and the

separation of powers. Accordingly, a trial court that decides a

vote dilution case must be scrupulous in chronicling the relevant

facts and delineating the linkages between those facts and the

ultimate conclusion of vote dilution vel non. See Cousin v.

McWherter, 46 F.3d 568, 574-75 (6th Cir. 1995); Buckanaga, 804

F.2d at 472; Velasquez v. City of Abilene, 725 F.2d 1017, 1020

(5th Cir. 1984). To this end, the district court must discuss

"not only the evidence that supports its decision but also all

the substantial evidence contrary to its opinion." Harvell v.

Ladd, 958 F.2d 226, 229 (8th Cir. 1992) (quoting Buckanaga, 804

F.2d at 472); see also Houston, 56 F.3d at 612 n.6 (similar;

collecting cases). Despite the district judge's obvious

investment of time and effort in the proceedings below, and his

thoughtful analysis of difficult legal issues, the findings of

fact in the instant case fail to satisfy these demanding

criteria.

In any claim brought under VRA 2, the Gingles

preconditions are central to the plaintiffs' success. Here, the

trial court sounded an uncertain trumpet in respect to both the

second and third preconditions. This uncertainty stems from a

lack of congruence between the court's subsidiary findings anent

the particular elections it studied and its overall findings of

minority cohesion and white bloc voting in Holyoke. We explain

briefly.

30

The lower court analyzed fifteen elections in which

Hispanic candidates ran for office.8 Of these, only four were

at-large elections; the rest were ward elections for either city

council or school committee seats. In four of the eleven ward

elections, Hispanic candidates ran unopposed. These elections

reveal little about either minority cohesion or white bloc

voting.9 The district court found neither minority cohesion

behind Hispanic candidates nor racially polarized voting in seven

of the eleven elections in which Hispanic candidates ran against

non-Hispanic opponents. The court found minority cohesion in the

four remaining elections, and found white bloc voting only in the

8Although the VRA does not require for a successful section
2 showing that minority-preferred candidates be members of the
minority group, see Clarke v. City of Cincinnati, 40 F.3d 807,

810 n.1 (6th Cir. 1994), cert. denied, 115 S. Ct. 1960 (1995);

Sanchez v. Bond, 875 F.2d 1488, 1495 (10th Cir. 1989), cert.

denied, 498 U.S. 937 (1990), elections in which minority

candidates run are often especially probative on the issue of
racial bloc voting. See, e.g., Jenkins, 4 F.3d at 1128; Magnolia

Bar Ass'n, Inc. v. Lee, 994 F.2d 1143, 1149 (5th Cir.), cert.

denied, 114 S. Ct. 555 (1993). But evidence exhumed from "white

only" elections may still be relevant in assessing the totality
of the circumstances in a vote dilution case, especially if it
tends to rebut the evidence of cohesion or white bloc voting
extracted from "mixed" elections. See Jenkins, 4 F.3d at 1128.

9To be sure, the district court implied that blank ballots
cast in three of these four elections (the 1989 and 1993 school
committee elections in Ward 2, and the 1993 city council race in
the same ward) evinced white bloc voting. See Holyoke, 880 F.

Supp. at 923-24. But the record furnishes no foundation for the
implication that white voters cast blank ballots as a protest
against unopposed Hispanic candidates. In 1989, for example, the
highest percentage of blank ballots was recorded in the precinct
that had the highest percentage of Hispanic voters.

31

three that occurred before 1988.10 See Holyoke, 880 F. Supp.

at 921-24.

Viewed from a different angle, the court's finding that

so few elections exhibited telltale signs of minority cohesion

and/or white bloc voting seems to be tantamount to a finding that

those characteristics were absent from approximately two-thirds

of the analyzed elections. The finding also seems to contradict

the district court's conclusion that the plaintiffs established

the second and third Gingles preconditions. Of course, it is

possible that the apparent contradiction can be explained away:

we recognize that determining whether racial bloc voting exists

is not merely an arithmetic exercise that consists of totting up

columns of numbers, and nothing more. To the contrary, the

district court should not confine itself to raw numbers, but must

make a practical, commonsense assay of all the evidence. See

Magnolia Bar Ass'n, Inc. v. Lee, 994 F.2d 1143, 1147 (5th Cir.),

cert. denied, 114 S. Ct. 555 (1993); see also S. Rep. No. 417,

supra, at 29-30 & n. 118, reprinted in 1982 U.S.C.C.A.N. at 207-

08. But allowing for the possibility of a sophisticated

evaluative judgment does not dissipate the need to explain that

10The district court also found that the minority community
had cohered behind a non-Hispanic candidate, Elaine Pluta, in her
successful 1991 bid for an at-large seat on the city council. In
fact, Pluta ranked ahead of a Hispanic candidate on Hispanic
voters' ballots. However, she received strong support from non-
Hispanic voters as well; that segment of the electorate ranked
her fifth (out of sixteen) among at-large candidates. Thus,
while there may have been minority cohesion behind Pluta, the
record reflects no evidence of white bloc voting against the
candidate that minority voters preferred.

32

judgment.

The district court, forced to juggle several issues at

once, offered no explanation of this seeming contradiction. The

court not only glossed over the raw numbers but also failed to

clarify why evidence reflecting racially polarized voting in at

most three or four elections (out of eleven) justified a finding

of vote dilution. While we are unprepared to say, here and now,

that such a finding is incorrect as a matter of law, we cannot

accept it without a better articulated rationale. Thus, because

we are unable to follow the district judge's thought processes in

this regard, we must return the case to him for a more detailed

explication of his reasoning. See Houston, 56 F.3d at 612-13 &

n.8 (remanding because the "district court findings are too

general to allow us to conduct our appellate review") (citing

cases); Cousin, 46 F.3d at 575 (remanding because the "record

fails to provide the bases for the district court reasoning");

Velasquez, 725 F.2d at 1021 (similar); cf. Westwego Citizens for

Better Gov't v. City of Westwego, 946 F.2d 1109, 1119 (5th Cir.

1991) (ascribing error when district court's facially

inconsistent findings were not explained).

We take this step reluctantly, mindful that district

courts have heavy workloads and that appellate tribunals should

not stand unduly on ceremony, but should fill in blanks in the

district court's account when the record and the circumstances

permit this to be done without short-changing the parties. See

Applewood Landscape & Nursery Co. v. Hollingsworth, 884 F.2d

33

1502, 1503-04 (1st Cir. 1989) (collecting cases). In this

situation, however, the record does not lend itself to curing the

omissions in this fashion.

We are fortified in this cautious approach by what we

envision as the distinct possibility that the district court may

have undervalued the import of Holyoke's rapidly changing

political environment. During the decade analyzed by the court,

1983 to 1993, the embryonic Hispanic community grew to maturity,

gathering both numbers and political muscle. Hispanic leaders

mounted a "successful community-based voter registration drive"

in the mid-1980s and boosted voter turnout dramatically.

Holyoke, 880 F. Supp. at 922. In 1985, Holyoke voters elected an

Hispanic to political office for the first time in Massachusetts'

history. See id. at 921. Hot on the heels of this signal

victory, the 1987 municipal elections witnessed the "most

successful city-wide campaign ever run by an Hispanic in

Holyoke." Id. at 922.11 Those elections also witnessed the

last contest in which the district court supportably found white

bloc voting. From that time forward, Hispanics have maintained

political dominance over two wards and have represented those

wards on both the school committee and the city council. See id.

at 921-24.

This rise in the Hispanic community's political

11Success is, of course, relative; the Hispanic candidate
came close but nevertheless lost. While some might say that
close only counts in horseshoes, hand grenades, and ballroom
dancing, we think that progress of this sort, even short of an
electoral win, is significant.

34

fortunes is significant. The ultimate question in any section 2

case must be posed in the present tense, not the past tense. The

court must determine whether the challenged electoral structure

deprives a racial minority of equal opportunity to participate in

the political process at present. Though past elections may be

probative of racially polarized voting, they become less so as

environmental change occurs. In particular, elections that

provide insights into past history are less probative than those

that mirror the current political reality. See LULAC, 999 F.2d

at 891; Meek v. Metropolitan Dade County, 985 F.2d 1471, 1482-83

(11th Cir. 1993).

In this instance, the district court alluded to

Holyoke's political evolution, see, e.g., Holyoke, 880 F. Supp.

at 927, but does not appear to have given it weight in evaluating

either the Gingles preconditions or the strength of any inference

to be drawn therefrom. Under these circumstances, we think it is

incumbent upon the court to explain more fully its view that vote

dilution persists in spite of improved political conditions.

V. ADDITIONAL MATTERS
V. ADDITIONAL MATTERS

Because remand is required, we take this opportunity to

comment briefly on two other areas of continuing interest.

First, the shortcomings we have catalogued in the

district court's findings cloud the relationship between evidence

of racially polarized voting in the ward elections and the trial

court's conclusion that the at-large component of the electoral

system unlawfully dilutes the Hispanic vote. Though we do not

35

quarrel with the court's decision to consider evidence from the

ward elections in analyzing racial polarization in the at-large

elections as we have indicated supra, a court has a duty to

ponder all available evidence concerning racially polarized

voting that promises to cast light on the factors at work in a

particular electoral scheme, see, e.g., Citizens for a Better

Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987)

(approving use of data from exogenous elections when other

evidence is sparse), cert. denied, 492 U.S. 905 (1989) we

remain at a loss, on the record as it stands, to comprehend why

and how the court thought that the evidence from the ward

elections informed the analysis of what had transpired in the

contests for at-large seats on the city council. These

questions, too, demand more specific findings. See Monroe v.

City of Woodville, 881 F.2d 1327, 1330 (5th Cir.) (holding that

when a trial court relies on information from exogenous

elections, it should undertake fact-specific assessments of their

relevance and probative worth), modified in other respects, 897

F.2d 763, cert. denied, 498 U.S. 822 (1990).

Second, we think that the district court, which made no

reference to Ward 4 in its initial assessment, must meet head-on

the City's contention that this ward (in which Hispanics comprise

approximately 28% of the voting age population) constitutes a so-

called influence district and therefore should be taken into

account in evaluating whether Hispanic voting strength has been

illegally diluted.

36

Although "society's racial and ethnic cleavages

sometimes necessitate majority-minority districts to ensure equal

political and electoral opportunity, that should not obscure the

fact that there are communities in which minority citizens are

able to form coalitions with voters from other racial and ethnic

groups, having no need to be a majority within a single district

in order to elect candidates of their choice." De Grandy, 114 S.

Ct. at 2661; see also Chisom v. Roemer, 501 U.S. 380, 397 n.24

(1991) (rejecting "the erroneous assumption that a small group of

voters can never influence the outcome of an election"); Gingles,

478 U.S. at 87-88 (O'Connor, J., concurring) (intimating that a

group's voting strength should be assessed with reference not

only to its prospects for electoral success but also in terms of

"other avenues of political influence"). These precedents merely

confirm the lessons of practical politics: the voting strength

of a minority group is not necessarily limited to districts in

which its members constitute a majority of the voting age

population, but also extends to every district in which its

members are sufficiently numerous to have a significant impact at

the ballot box most of the time. See Latino Political Action

Comm., Inc. v. Boston, 609 F. Supp. 739, 747-48 (D. Mass. 1985),

aff'd, 784 F.2d 409 (1st Cir. 1986); see also Rural W. Tenn.

African-Am. Affairs Council, Inc. v. McWherter, 877 F. Supp.

1096, 1105 (W.D. Tenn.) (three-judge court) (holding that an

influence district exists if a minority group constitutes at

least one-quarter of the voting age population because the group

37

then "ha[s] significant influence on candidates in virtually

every election"), aff'd, 116 S. Ct. 42 (1995); City of Columbia,

850 F. Supp. at 429 (discussing minority's "shared influence"

over at-large seats in districts where the minority comprises 40%

of the total voting age population).

Although we are unwilling to prescribe any numerical

floor above which a minority is automatically deemed large enough

to convert a district into an influence district, we believe that

when, as now, a minority group constitutes 28% of the voting age

population, its potential influence is relevant to a

determination of whether the group lacks a meaningful opportunity

to participate in the electoral system. Accord McWherter, 877 F.

Supp. at 1102. As is true of other factors, the district court

should make a searching evaluation of the degree of influence

exercisable by the minority, consistent with the political

realities, past and present, and should enter its findings and

conclusions as to how (if at all) the voting strength of

Hispanics in Ward 4 affects the section 2 calculus.

In requiring that influence districts be considered in

section 2 cases, we are guided by the Court's recent admonition

that the VRA's goals include "eradicating invidious

discrimination from the electoral process and enhancing the

legitimacy of our political institutions." Miller v. Johnson,

115 S. Ct. 2475, 2494 (1995). These goals are poorly served by

balkanizing electorates and carving them into racial fiefdoms.

See id. Influence districts, on the other hand, are to be prized

38

as a means of encouraging both voters and candidates to dismantle

the barriers that wall off racial groups and replace those

barriers with voting coalitions.12 In fine, influence

districts bring us closer to "the goal of a political system in

which race no longer matters." Shaw v. Reno, 113 S. Ct. 2816,

2832 (1993); see also De Grandy, 114 S. Ct. at 2661 (reflecting

that "minority voters are not immune from the obligation to pull,

haul, and trade to find common political ground, the virtue of

which is not to be slighted in applying a statute meant to hasten

the waning of racism in American politics").13

VI. CONCLUSION
VI. CONCLUSION

To recapitulate, the district court's opinion is well-

considered and in many respects deftly navigates the marshy

terrain of voting rights jurisprudence. Yet, at the risk of

seeming unappreciative of a job well done, we believe the court's

opinion lacks essential clarity in its factual findings. For one

12Factoring influence districts into the calculus also helps
ease the tension between Congress's desire to permit vote
dilution claims to be brought under section 2 and its intent to
avoid creating a right to proportional representation. See

Gingles, 478 U.S. at 84 (O'Connor, J., concurring) (discussing

"inherent tension between what Congress wished to do and what it
wished to avoid").

13It is important to realize that influence districts serve
these goals only to the extent that they reflect a meaningful
opportunity for minority voters to participate in the political
process. Consequently, before the existence of an influence
district is given significant weight in the balance, the evidence
must reveal that minority voters in the district have in fact
joined with other voters to elect representatives of their
choice. Moreover, the record must show that elected
representatives from such a district serve, at least in part, the
interests of the minority community and vie for its support.

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thing, the court neither acknowledges nor discusses critical

evidence that appears to contradict its ultimate conclusion of

vote dilution. For another thing, it never adequately explains

the relevance of some evidence upon which it relies quite heavily

to support this conclusion. And, finally, it omits any

meaningful mention of potentially salient factors (such as

influence districts). Rather than guess at the missing elements,

we think that the course of prudence is to vacate and remand.

We leave the procedure to be followed on remand to the

lower court's informed discretion, without endeavoring to set an

outer limit on its range of options. See Lussier v. Runyon, 50

F.3d 1103, 1115 (1st Cir.), cert. denied, 116 S. Ct. 69 (1995).

At a minimum, the court must discuss the evidence we have

identified as troubling (or as possibly overlooked) and explain

the relationship of this evidence to the issue of vote dilution.

The court need not stop there, however; it is free to reopen the

record, to take additional evidence, and/or to reconsider all (or

any part) of its findings in light of the comments contained in

this opinion. To this end, while we neither require nor

anticipate an entirely new trial, the court in its discretion may

permit the parties to supplement the existing record with

additional facts (including, but not limited to, evidence gleaned

from the new round of municipal elections that have recently been

completed). See Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure 2577 (2d ed. 1995).

We are mindful that, in addition to the assignments of

40

error that we have discussed, the City strenuously objects to the

remedy fashioned by the court below. We do not address this

objection today. If the district court, after further

consideration, again finds that Holyoke's electoral structure

violates section 2 of the VRA and we do not intimate any

expectancy in this regard we anticipate that it will then

revisit the question of how best to mold an appropriate remedy.

Withal and, perhaps, at the expense of remarking the obvious

we offer two brief bits of general guidance that may be helpful

if this contingency materializes.

First, the court must be sure to analyze the question

of remedy in light of any new findings that it makes on remand.

Second, the court now has and should take advantage of the

luxury of time. The court originally attempted to craft a remedy

in time for the 1995 municipal elections. That cycle has turned,

and the next is well in the future. Given this window of

opportunity, the option of choice (assuming that the court finds

a section 2 transgression) is to give the defendant the first

chance to assemble a remedial plan. We think it is a fundamental

tenet of voting rights law that, time permitting, a federal court

should defer in the first instance to an affected state's or

city's choice among legally permissible remedies. See Cane v.

Worcester County, 35 F.3d 921, 927 (4th Cir. 1994), cert. denied,

115 S. Ct. 1097 (1995); Westwego, 946 F.2d at 1124.

If, and only if, the City fails to formulate a

satisfactory remedial plan should the district court step in and

41

fashion the appropriate anodyne ex proprio vigore. See Miller,

115 S. Ct. at 2488. It goes almost without saying that this

authority must be exercised responsibly and with due attention to

the Supreme Court's recent warnings about the social and

political costs of dividing communities along racial lines in the

name of improving electoral systems. See, e.g., Shaw, 113 S. Ct.

at 2832 (observing that "[r]acial gerrymandering, even for

remedial purposes, may balkanize us into competing racial

factions").

Vacated and remanded. All parties will bear their own
Vacated and remanded. All parties will bear their own

costs on this appeal.
costs on this appeal.

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