USCA1 Opinion
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.
39
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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