Metts v. Almond

United States Court of Appeals
For the First Circuit

No. 02-2204

HAROLD METTS, ET AL.,

Plaintiffs, Appellants,

v.

WILLIAM J. MURPHY, ETC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Selya, Circuit Judges,
Stahl, Senior Circuit Judge,
Lynch, Lipez and Howard, Circuit Judges.

Anita Earls, UNC-Center for Civil Rights, with whom Sunil R.
Kulkarni, Morrison & Foerster LLP, Cara Fineman, Lawyers' Committee
for Civil Rights Under Law, Dennis Hayes, NAACP Legal Department,
and Bruce G. Pollock were on supplemental opening brief for
appellants.
Nadine Cohen, Lawyers' Committee For Civil Rights Under Law of
the Boston Bar Association, Rudolph F. Pierce, Barbara Van Gorder,
Heather Butterfield and Goulston & Storrs, P.C. on brief for Angel
Meza, Gabriel Valerio, Juan Vega, Chelsea's Commission on Hispanic
Affairs, Inc., and ¿Oiste?: The Massachusetts Statewide Latino
Organization, Amicus Curiae.
Katherine A. Fallow, Sam Hirsch and Jenner & Block LLP on
supplementary brief for the Puerto Rican Political Action Committee
and Direct Action for Rights and Equality, Amicus Curiae.
 Neil Bradley, ACLU Foundation Inc., and Laughlin McDonald,
ACLU Foundation Inc., on supplemental brief for American Civil
Liberties Union and Rhode Island Affiliate of the American Civil
Liberties Union, Amicus Curiae.
John A. Tarantino with whom Patricia K. Rocha, Victoria M.
Almeida, Adler Pollock & Sheehan P.C., Normand G. Benoit, Eugene G.
Bernardo, II, Partridge, Snow & Hahn LLP, Richard B. Woolley,
Department of Attorney General, Thomas A. Palombo, Department of
Attorney General, and Raymond A. Marcaccio were on brief for
appellees Joseph A. Montalbano, Senate President, William J.
Murphy, Speaker of the House of Representatives, Matthew A. Brown,
Secretary of State, and Roger Begin, State Board of Elections
Chairman.

_____________________

OPINION EN BANC

March 30, 2004
 Per Curiam. In February 2002, the Rhode Island

legislature adopted a redistricting plan in response to the 2000

census and a state constitutional amendment reducing the number of

seats in both houses. Based on the allegations in the complaint,

it appears that African-Americans are about 4 percent of Rhode

Island's population, but more than half live in Providence. Prior

to redistricting, State Senate District 9 in Providence was 25.69

percent African-American and 41.08 percent Hispanic. Until

redistricting, an African-American, Charles Walton, had represented

District 9 for many years.

Under the 2002 redistricting plan, much of the same

African-American population now lies within the new District 2,

which allegedly is 21.42 percent African-American and 46.74 percent

Hispanic. In the 2002 primary after redistricting, a Latino

challenger defeated Walton and went on to win the election. Well

before the primary, in May 2002, a number of individual African-

American voters and related organizations brought the present suit

under section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (2000),

to challenge the redistricting plan.

In September 2002, the district court granted a motion

under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, Metts v.

Almond, 217 F. Supp. 2d 252 (D.R.I. 2002), holding that the claim

failed two of the three threshold tests for a section 2 case under

Thornburg v. Gingles, 478 U.S. 30 (1986). On appeal, a divided

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panel of this court reversed, remanding for further proceedings.

Metts v. Murphy, 347 F.3d 346 (1st Cir. 2003).

We granted the defendants' petition for rehearing en banc

and vacated the panel opinion. Metts v. Murphy, No. 02-2204, 2003

U.S. App. LEXIS 24313 (1st Cir. Dec. 3, 2003). We now review and

vacate the district court's judgment of dismissal and remand for

further proceedings. The reason for our remand is to allow a

fuller development of the evidence, and further legal analysis

based on that evidence, before any final determination is made.

Section 2, adopted as part of the Voting Rights Act of

1965, forbids voting-related measures that deny or abridge the

right to vote "on account of race or color." 42 U.S.C. § 1973.

Under a 1982 amendment, a violation is established "if, based on

the totality of circumstances, it is shown that . . . members of a

class of citizens . . . have less opportunity than other members of

the electorate to participate in the political process and to elect

representatives of their choice." § 1973(b).

The Delphic language of the amendment can be understood

only against the background of its legislative history and

subsequent Supreme Court interpretation. The former tells us that

discriminatory intent is not a necessary element in a violation and

that Congress intended a broad range of factors to be taken into

account. These points, and the relevant citations, are developed

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in Gingles, the first post-amendment decision on section 2 by the

Court and still the leading authority. 478 U.S. at 43-46.

However, Gingles was primarily concerned with the use of

multi-member districts, which have an obvious potential to submerge

the electoral power of even a substantial and cohesive minority

bloc. 478 U.S. at 46-48 & nn.11-13. If such a group represents a

majority of votes in a single member district but a numerical

minority when combined with an adjoining district or districts, the

combining of those districts into one multi-member district can

easily eliminate the minority's ability to elect one of their own

to any of the seats.

In Gingles, the Supreme Court set up a three-part test,

ruling that section 2 would ordinarily not be violated by multi-

member districts unless three conditions were met: that the

minority challenging such a district would be "a majority" in a

compact single member district; that the minority was politically

cohesive (so it would bloc vote in such a district); and that the

multi-district majority voted as a bloc (so it would usually defeat

the minority's candidate in a multi-member district). Gingles, 478

U.S. at 50-51. If satisfied, these preconditions would not end the

case but would raise a presumption of a violation. Vecinos De

Barrio Uno v. City of Holyoke, 72 F.3d 973, 980 (1st Cir. 1995);

see also Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994) (Gingles

preconditions necessary but not sufficient to establish claim).

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 Gingles was directed to a particular practice--multi-

member districts--which the Court suggested was particularly

problematic, 478 U.S. at 47-48; Growe v. Emison, 507 U.S. 25, 40

(1993), and the decision did not purport to offer a general or

exclusive gloss on section 2 for all situations, Gingles, 478 U.S.

at 46 n.12. But the concreteness of the Gingles test, set against

the vagueness of the statute and plethora of criteria, has made it

a focus in subsequent cases dealing with quite different problems.

Indeed, the Supreme Court has said several times that Gingles

applies to vote dilution claims directed against single member

districts, see, e.g., Voinovich v. Quilter, 507 U.S. 146, 158

(1993); Growe, 507 U.S. at 40-41, but it has effectively qualified

this statement in two different ways.

First, several Supreme Court opinions after Gingles have

offered the prospect, or at least clearly reserved the possibility,

that Gingles' first precondition--that a racial minority must be

able to constitute a "majority" in a single-member district--could

extend to a group that was a numerical minority but had predictable

cross-over support from other groups. DeGrandy, 512 U.S. at 1008-

09; Voinovich, 507 U.S. at 158 ("[T]he first Gingles precondition,

the requirement that the group be sufficiently large to constitute

a majority in a single district, would have to be modified or

eliminated when analyzing the influence-dilution claim we assume,

arguendo, to be actionable today."). Further, the Court has so far

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reserved judgment on a second-cousin question: whether dilution of

a minority racial group's influence, as opposed to the power to

elect, could violate section 2--a position that would require

substantial modification of Gingles' first-prong "majority"

precondition. Growe, 507 U.S. at 41 n.5; Vecinos de Barrio Uno,

72 F.3d at 990-91.

Second, where single member districts are at issue--as in

our case--opinions have increasingly emphasized the open-ended,

multi-factor inquiry that Congress intended for section 2 claims.

Voinovich, 507 U.S. at 158 ("Of course, the Gingles factors cannot

be applied mechanically and without regard to the nature of the

claim."); DeGrandy, 512 U.S. at 1007 (same). To say that Gingles

applies as a precondition to section 2 liability may not tell one

very much if Gingles itself is no longer to be "mechanically"

applied. Gingles was in its original incarnation a mechanical

first-step evaluation for a particular problem, so its rationale is

not easily adapted by lower courts to a different set of problems.

The present case concerns not multi-member districts but

a redrawing of single-member district boundaries. In one key

district this has produced a modest re-adjustment in the

proportionate sizes of the two large minority groups--but a

readjustment that certainly can affect who wins the election. So

far the parties' argument has been about whether and how to squeeze

this case into the Gingles preconditions--raising difficult

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questions about whether the "majority" requirement in Gingles is a

numerical majority or an effective majority that could be

constructed out of cross-over votes; how rigidly the Gingles

preconditions apply when moving away from multi-member districts;

and how to apply Gingles when no racial group makes up more than 50

percent of the district.

It is no accident that most cases under section 2 have

been decided on summary judgment or after a verdict, and not on a

motion to dismiss. This caution is especially apt where, as here,

we are dealing with a major variant not addressed in Gingles

itself--the single member district--and one with a relatively

unusual history. As courts get more experience dealing with these

cases and the rules firm up, it may be more feasible to dismiss

weaker cases on the pleadings, but in the case before us we think

that the plaintiffs are entitled to an opportunity to develop

evidence before the merits are resolved.

We are thus unwilling at the complaint stage to foreclose

the possibility that a section 2 claim can ever be made out where

the African-American population of a single member district is

reduced in redistricting legislation from 26 to 21 percent. Yes,

one would ordinarily expect the consequences to be small, but not

always, and arguably not here (based on past history). At this

point we know practically nothing about the motive for the change

in district or the selection of the present configuration, the

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contours of the district chosen or the feasible alternatives, the

impact of alternative districts on other minorities, or anything

else that would help gauge how mechanically or flexibly the Gingles

factors should be applied.

On the other hand, the plaintiffs cannot prevail merely

by showing that an alternative plan gives them a greater

opportunity to win the election, DeGrandy, 512 U.S. at 1017

("Failure to maximize cannot be the measure of § 2."), or that an

otherwise justified boundary change happened to cost African-

Americans a seat. This would convert section 2's all-circumstances

test into the far more stringent "anti-retrogression" test of

section 5, which imposes rigorous pre-clearance requirements on

covered states to prevent redistricting plans with retrogressive

consequences for African-American voters. Compare 42 U.S.C. §

1973(a)-(b) (2000), with 42 U.S.C. § 1973c (2000). See generally

Beer v. United States, 425 U.S. 130, 141 (1976) (anti-retrogression

test); Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 476-80 (1997)

(discussing differences between sections 2 and 5). Rhode Island is

not a covered state.

As the district court correctly pointed out, there is

tension in this case for plaintiffs in any effort to satisfy both

the first and third prong of Gingles. To the extent that African-

American voters have to rely on cross-over voting to prove they

have the "ability to elect" a candidate of their choosing, their

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argument that the majority votes as a bloc against their preferred

candidate is undercut. But it is not clear on the pleadings alone

how many cross-over votes are needed to win an election--unlike in

Gingles, Rhode Island law allows a candidate to win with less than

an absolute majority, see R.I. Const. art. IV, § 2 (general

elections); R.I. Gen. Laws § 17-15-29 (2002) (primary elections)--

nor do we have any evidence at this stage about how vigorously the

majority votes as a bloc over time, nor the impact of the fact that

the "majority" here is made up of both Hispanics and whites.

Gingles itself warned that "there is no simple doctrinal test for

the existence of legally significant racial bloc voting," 478 U.S.

at 58, a further warning against deciding such issues in the

abstract.

The burden of inquiry is on the plaintiffs--they are the

ones challenging the redistricting plan--but in this case they are

entitled (within ordinary limits) to develop the evidence that they

think might help them. Whether a full-scale trial is needed is an

entirely different matter; perhaps summary judgment will suffice

depending on how the evidence develops and the ultimate theory or

theories offered by both sides--theories that hopefully will go

beyond dueling claims as to what Gingles means. In all events, it

is premature to close the door now.

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 The judgment of the district court is vacated and the

matter remanded for further proceedings consistent with this

opinion. Each side shall bear its own costs on this appeal.

It is so ordered.

Dissent follows.

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 SELYA, Circuit Judge, with whom TORRUELLA, Circuit Judge,

joins, dissenting. I appreciate the measured tone of the majority

opinion, and I agree with much of what the court writes: section

2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973, verges on the

opaque and the Supreme Court precedent interpreting it leaves many

questions unanswered. Moreover, I acknowledge that, in the

ordinary course, district courts should allow vote dilution claims

to proceed beyond the Rule 12(b)(6) stage. Thus, were this an

arguable case, factual development would be preferable to outright

dismissal.

Here, however, the case is not arguable.1 The

plaintiffs' claim depends upon a radical premise: that a minority

group whose members cannot conceivably comprise anything close to

a numerical majority, even in what is from their point of view an

ideally configured single-member district, can mount a vote

dilution claim. Given the small size of the identified minority

group in this case and the magnitude of the crossover voting on

which it must rely, the claim necessarily fails. See Valdespino v.

1
There are obvious dangers in applying the principle favoring
further factual development too liberally. If one is willing to
split an infinite number of hairs, it always will be possible to
conjure up remote scenarios that might be disinterred during
discovery (and, thus, might prevent the allowance of a motion to
dismiss). Rule 12(b)(6) does not invite courts to engage in such
endless surmise; rather, "[t]he method of Rule 12(b)(6) requires
courts . . . to resolve all realistic possibilities in the
pleader's favor." Garrett v. Tandy Corp., 295 F.3d 94, 105 (1st
Cir. 2002) (emphasis supplied).

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Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852-53 (5th Cir.

1999); Cousin v. Sundquist, 145 F.3d 818, 828-29 (6th Cir. 1998);

McNeil v. Springfield Park Dist., 851 F.2d 937, 943-45 (7th Cir.

1988); Parker v. Ohio, 263 F. Supp. 2d 1100, 1104-05 (S.D. Ohio)

(three-judge court), aff'd mem., 124 S. Ct. 574 (2003). Further

factual development, therefore, will only raise false hopes in the

African-American community while at the same time squandering

scarce judicial resources.

I will be brief. The plaintiffs allege that African-

Americans represented approximately 26% of the relevant population

in former Senate District 9 yet represent only 21% of the

population in the new district (Senate District 2). They

characterize this 5% differential as a political kiss of death and

ask that the district lines be redrawn so that, in their ideal

district, African-Americans again will number 26% of the

population.

Stripped of rhetorical flourishes, the postulate

underlying the plaintiffs' claim proceeds along the following

lines. Whenever a candidate preferred by African-Americans runs

for the state senate in the new district, he or she will receive

all the African-American votes plus no less than 32% but no more

than 37% of the combined white and Hispanic votes (these being the

percentages of all white and Hispanic voters necessary to form a

majority in conjunction with a monolithic African-American vote

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when African-Americans constitute 26% and 21% of the population,

respectively). Whether viewed as a matter of logic, political

science, or human behavior, this postulate, which assumes that the

electorate's polarization is so deeply entrenched that candidate-

specific variations will operate only within a 5% margin, strikes

me as fanciful. Moreover, the impetus behind it is the plaintiffs'

conviction that they can forge some sort of functional majority,

i.e., that African-Americans, though not numerous enough to

comprise anything close to a majority in their ideal district,

nonetheless will have the ability to elect a particular candidate

with the aid of a large and predictable non-African-American

crossover vote. Whatever may be said for functional majority

claims in general — a matter on which I take no view — the

plaintiffs' functional majority claim lies well beyond the

prophylaxis of section 2. The minority group described in the

amended complaint comprises too small a fraction of the district's

total population and, therefore, must rely too heavily on crossover

votes.

The plaintiffs seek to blink this reality by treating

crossover voters as if they constitute part of a protected minority

within the purview of section 2. Fidelity to core democratic

values demands that we reject this taxonomy. Although the Gingles

preconditions contemplate a certain degree of crossover voting, see

Thornburg v. Gingles, 478 U.S. 30, 56 (1986); Jenkins v. Red Clay

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Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1123 (3d Cir. 1993),

there is a point at which crossover voting becomes so large a part

of the picture as to crowd out the possibility of a legally

cognizable vote dilution claim. That is the case here; after all,

the bricolage comprises a roughly equal mix of African-American and

crossover voters. Under these circumstances, allowing a vote

dilution claim to go forward would make sense only if the end game

were to ensure the success of candidates favored by minority

groups. That is plainly not the proper object of section 2 of the

VRA, which is a law aimed at ensuring equality of opportunity

rather than at guaranteeing the electoral success of particular

candidates. See Johnson v. De Grandy, 512 U.S. 997, 1014 n.11

(1994).

The plaintiffs' claim also trips over the third Gingles

precondition. See Gingles, 478 U.S. at 56 (explaining that

plaintiffs must show the existence of majoritarian bloc voting

sufficient to defeat minority-preferred candidates most of the

time). A showing of majoritarian bloc voting is structurally

inconsistent with the plaintiffs' exposition of their case. Their

reliance on a high level of crossover voting, ranging upward from

a minimum of 32% and nearly equaling the whole of the African-

American vote, belies any majoritarian bloc voting and thus

defenestrates their claim of illegal vote dilution. See Abrams v.

Johnson, 521 U.S. 74, 92-93 (1997) (affirming lower court decision

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that average majority crossover voting of 22% to 38% is sufficient

to demonstrate the "general willingness of [majority] voters to

vote for [minority] candidates" (internal quotation marks

omitted)); cf. Voinovich v. Quilter, 507 U.S. 146, 151-52, 158

(1993) (approving lower court's finding of no majority bloc voting

where "black candidates have been repeatedly elected from [single-

member] districts with only a 35% black population").

The plaintiffs showcase Senator Walton's past electoral

successes as proof of the cogency of their ability to elect claim

— but that datum is a two-edged sword. Consistent electoral

success on the part of a racial or ethnic minority group that

comprises considerably less than a numerical majority of the

electorate is a telling indicium of the absence of majoritarian

bloc voting and, thus, is presumptively inconsistent with an

actionable vote dilution claim. See Gingles, 478 U.S. at 102

(O'Connor, J., concurring); Overton v. City of Austin, 871 F.2d

529, 540 (5th Cir. 1989) (per curiam); see also Brooks v. Miller,

158 F.3d 1230, 1241 (11th Cir. 1998); Turner v. Arkansas, 784 F.

Supp. 553, 570-71 (E.D. Ark. 1991) (three-judge court), aff'd mem.,

504 U.S. 952 (1992).

In short, I do not believe that section 2 of the VRA

authorizes vote dilution claims that are wholly dependent upon

massive crossover voting. There is a critical distinction between

minority-preferred candidates who lose because redistricting

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excludes too much of the minority electorate from a particular

district (illegal vote dilution) and minority-preferred candidates

who lose because they do not attract enough votes from other

constituencies within the district (legal majoritarian rule). The

amended complaint, even when taken at face value, blurs this

distinction.

Some vote dilution cases are sufficiently clear that, on

any rational view of the facts alleged, further proceedings are

inappropriate. This is one of them. Accordingly, I respectfully

dissent from the court's decision. Left to my own devices, I would

affirm the order of dismissal.

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