Hollis D. Stabler Jr v. Cty. of Thurston

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 96-2964
____________

Hollis D. Stabler, Jr.; Sharon Freemont;
*
Omaha Tribal Historical Project, Inc.; *
Red Feather Family Services, Inc., *
*
Plaintiffs-Appellees, *
*
v. *
*
County of Thurston, Nebraska; Mark *
Casey, in his official capacity as Chair
*
o f the Board of Supervisors of Thurston
*
County, Nebraska, *
* Appeals from the United States
Defendants-Appellants. * District Court for the
* District of Nebraska
Thurston County School District 13, *
Thurston County, Nebraska; Village of *
Walthill, Nebraska; Steve Dunn, in his *
official capacity as Chair of the Village
*
of Walthill Board of Trustees; Patricia
*
Higgins, in her official capacity as County*

Clerk of Thurston County, Nebraska; *
Keith Mahaney, in his official capacity
*
as President of Thurston County School *
District 13, *
*
Defendants. *
____________

No. 96-3111
____________

Hollis D. Stabler, Jr.; Sharon Freemont;
*
Omaha Tribal Historical Project, Inc.; *
Red Feather Family Services, Inc., *
*
Plaintiffs-Appellants, *
*
v. *
*
County of Thurston, Nebraska; Mark *
Casey, in his official capacity as Chair
*
o f the Board of Supervisors of Thurston
*
County, Nebraska, Thurston County *
School District 13, Thurston County, *
Nebraska; Village of Walthill, Nebraska; *
Steve Dunn, in his official capacity as
*
Chair of the Village of Walthill Board
*
of Trustees; Patricia Higgins, in her *
official capacity as County Clerk of *
Thurston County, Nebraska; Keith *
Mahaney, in his official capacity *
as President of Thurston County School *
District 13, *
*
Defendant - Appellees.. *
____________

Submitted: May 19, 1997

Filed: December 1, 1997
____________

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 ____________

Before McMILLIAN, ROSS and FAGG, Circuit Judges.
____________

McMILLIAN, Circuit Judge.

Defendant County of Thurston, Nebraska (Thurston County), appeals from a
final order entered in the United States District Court1 for the District of Nebraska
holding that the districting plan for the election of the Thurston County Board of
Supervisors (the County Board) violates section 2 of the Voting Rights Act of 1965
(§ 2), as amended, 42 U.S.C. § 1973, and ordering Thurston County to create a third
majority-minority district for such elections. Stabler v. County of Thurston,
No. 8:CV93-00394 (D. Neb. Aug. 29, 1995). For reversal, Thurston County argues
that the district court erred in: (1) considering total population and voting age
population to determine proportionality; (2) applying the totality of the circumstances
test; and (3) finding that the districting plan violated § 2. Plaintiffs Hollis D. Stabler,
Jr., Sharon Freemont, Omaha Tribal Historical Project, Inc., and Red Feather Family
Services (collectively, “plaintiffs”) cross-appeal from that part of the order entered in
favor of defendants Thurston County School District 13 (School District 13) and
Village of Walthill (the Village) holding that the districting plan used to elect both the
District’s school board (the School Board) and the Village’s Board of Trustees (the
Village Board) does not violate § 2 or the First, Thirteenth, Fourteenth, or Fifteenth
Amendments to the United States Constitution. Id. On cross-appeal, plaintiffs argue
that the district court erred in holding that plaintiffs failed to satisfy the three Gingles2
preconditions for a § 2 claim. For the reasons discussed below, we affirm the order of
the district court.

1
The Honorable Lyle E. Strom, Senior United States District Judge for the
District of Nebraska.
2
Thornburg v. Gingles, 478 U.S. 30 (1986).
 Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,
1343(a)(4), and 2201. Jurisdiction on appeal is proper based upon 28 U.S.C. §1291.
The notices of appeal and cross-appeal were timely filed under Fed. R. Civ. P. 4(a).
I. Background

The following facts are taken from the district court’s memorandum opinion.
Slip op. at 1-2, 6-8, 19-20. The Omaha and Winnebago Indian Reservations are
located in eastern Thurston County, which lies in northeast Nebraska. Accordingly,
Thurston County has a substantial Native American population concentrated in the
eastern half of the county. The Village is a small community located in eastern
Thurston County. School District 13, which serves the Village and the surrounding
area, has a student body population which, during the 1994-1995 school year, was 80%
Native American.3 The individual plaintiffs, Hollis Stabler, Jr., and Sharon Freemont,
are Native American citizens and voters in Thurston County, School District 13, and
the Village. The organizational plaintiffs, Omaha Tribal Historical Project, Inc., and
Red Feather Family Services, are located in Thurston County.

In 1979, the County Board entered into a consent decree which created its
current method of election. The County Board is composed of seven members elected
from single-member districts, with each member holding a four-year term. Members
are nominated in partisan primary elections and elected in general elections in even
numbered years. Four members (Districts 1, 3, 5, and 7) are elected in gubernatorial
election years, while three members (Districts 2, 4, and 6) are elected in presidential
election years. The County Board drew the district lines to create two Native American
majority districts, providing Native Americans in Thurston County with representation

3
Brief for Appellees/Cross-Appellants at 19, citing plaintiffs’ exhibit no. 19.

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on the County Board in proportion to their 28.5% share of the total population in 1979.
(Two of seven County Board seats = 28.57%.) Following the 1980 census, the County
Board redistricted and again created two Native American majority districts. At that
time, non-whites made up 33.8% of Thurston County’s total population.4 According
to the 1990 census, of Thurston County’s total population, 43.92% are Native
Americans and 55.67% are whites. Of Thurston County’s voting age population
(VAP), 35.9% are Native Americans and 63.54% are whites.

Following the 1990 census, the County Board created the districting scheme
challenged by plaintiffs. In Districts 4 and 6, which are the majority-minority districts,
Native Americans constitute a majority of the total population (87.9% and 96.9%,
respectively) and the VAP (82.8% and 94.5%, respectively). Whites constitute a
majority of the total population and the VAP in the other five districts. However, in
Districts 2, 3, and 5, Native Americans represent a substantial portion of the total
population (41.2%, 30.9%, and 46.3%, respectively) and the VAP (36.9%, 22.7%, and
36.4%, respectively). Only Districts 1 and 7 contain nominal Native American
populations.

The School Board is composed of six members, each elected at-large to a four-
year term. Three members are elected every two years in a non-partisan primary
election in May and a non-partisan general election in November. The winners in each
primary election are the top six finishers determined by a plurality vote method, and the
winners of the general election are the top three finishers by plurality vote.
The Village Board is composed of five members, each elected at-large to a four-
year term. Three members are elected in a non-partisan general election held in May

4
The district court found that, statistically, the terms “non-white” and “Native
American” are “virtually synonymous.” Stabler v. County of Thurston,
No. 8:CV93-00394, slip op. at 7 n.3 (D. Neb. Aug. 29, 1995).

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of the gubernatorial election year, and two members are elected in a general election
held in May of the presidential election year. The winners in each general election are
the top three (or two) finishers determined by a plurality vote method.

Plaintiffs filed suit against Thurston County, School District 13, and the Village,
alleging that the districting plan used to elect the County Board and the at-large method
used to elect the School Board and the Village Board violate § 2 of the Voting Rights
Act of 1965 and the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the
United States Constitution by diluting the voting strength of Native Americans in
Thurston County and in the Village. Plaintiffs alleged that the current districting system
used to elect the County Board packs most of Thurston County’s Native American
population into Districts 4 and 6 and fragments the remaining Native American
population among Districts 2, 3, and 5. Because the Native American population in
Thurston County has increased, as a percentage, from 28.5% in 1979 to 43.92% in
1990, plaintiffs sought the creation of a third Native American majority district for the
election of the County Board. Plaintiffs also sought to implement single-member or
multi-member districting plans for the election of the School Board and the Village
Board. Regarding the School Board, plaintiffs offered two alternative districting plans:
one plan features two three-member districts; the other plan features six single-member
districts. Regarding the Village Board, plaintiffs offered a plan featuring two single-
member districts and one three-member district.

The district court conducted a bench trial on the issues from May 30, 1995,
until June 2, 1995. With respect to the County Board, the district court found that it
is possible to create another majority-minority district because: the minority group
(Native Americans) is sufficiently large and geographically compact; the minority group
is politically cohesive; and the white majority votes sufficiently as a bloc to enable it
to defeat the minority’s preferred candidate. Slip op. at 13-15. The district court then
examined the totality of the circumstances, determined that the County Board’s
districting plan does not provide Native American voters representation on the County

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Board which is “roughly proportional” to their total and voting age populations, and
concluded that the challenged plan violates § 2 by diluting the voting strength of Native
American voters. Id. at 18. The district court ordered the County Board to submit a
districting plan to create a third Native American majority single-member district. Id.
The County Board timely submitted a plan and subsequently submitted an amended
plan to correct some mathematical errors. The amended remedial plan was approved
by the district court on June 26, 1996, and is scheduled to be phased into place
beginning with the 1998 elections.

With respect to the School Board and the Village Board, the district court held
that, while the parties were able to draw a single-member district in which Native
Americans constitute a majority, the boundaries of those districts would be highly
irregular and the result would be racially gerrymandered districts. The district court
held that such irregularly-drawn districts would run afoul of the equal protection clause
because they were drawn principally for racial considerations. Id. at 20, citing Miller
v. Johnson, 515 U.S. 900 (1995) (Miller), and Shaw v. Reno, 509 U.S. 630 (1993).
The district court further held that the challenged jurisdictions are so small that no
feasible single-member or multi-member districting plan can be drawn because it would
be inflexible to any change in the district’s racial composition. Therefore, the district
court found that the protected group, Native Americans, is not sufficiently large and
geographically compact to justify a majority-minority district for the School Board or
the Village Board elections. Id. The district court also held that plaintiffs did not prove
a constitutional violation because they could not show that there was a racially
discriminatory purpose and effect in establishing the at-large election systems for the
School Board and the Village Board. Id. at 21-22. Thurston County’s appeal and
plaintiffs’ cross-appeal followed.

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 II. Discussion

In a § 2 case, we review the district court’s findings “regarding the factual
context giving rise to the claim” for clear error. Harvell v. Blytheville Sch. Dist. No. 5,
71 F.3d 1382, 1386 (8th Cir. 1995) (en banc) (Harvell), cert. denied, 116 S. Ct. 1876
(1996). However, the district court’s legal conclusions, “‘including those that may
infect 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,’ are subject to plenary review.” Id.,
quoting Thornburg v. Gingles, 478 U.S. 30, 78-79 (1986) (Gingles).

A voting procedure violates § 2 if it has the “result” under the “totality of the
circumstances” of affording minority voters less opportunity than white voters “to elect
representatives of their choice.” 42 U.S.C. § 1973(b). A successful § 2 claimant must
show three necessary preconditions: (1) the minority group is sufficiently large and
geographically compact to constitute an effective majority in a single-member district;
(2) the minority group is politically cohesive; and (3) the majority votes sufficiently as
a bloc to enable it usually to defeat the minority’s preferred candidate. Gingles, 478
U.S. at 50-51. These three preconditions apply to challenges to single-member districts
as well as multi-member districts. Growe v. Emison, 507 U.S. 25, 40-41 (1993).
“When applied to a claim that single-member districts dilute minority votes, the first
Gingles condition requires the possibility of creating more than the existing number of
reasonably compact districts with a sufficiently large minority population to elect
candidates of its choice.” Johnson v. De Grandy, 512 U.S. 997, 1008 (1994)
(Johnson). Once the preconditions are met, § 2 plaintiffs must further show that, under
the totality of the circumstances, vote dilution has occurred because the challenged plan
denies minority voters equal political opportunity. Id. at 1011-12; Gingles, 478 U.S.
at 43. The factors to be considered include: (1) a history of official discrimination in
the political subdivision that touched the right of minority group members to register,
vote, or otherwise participate in the democratic process; (2) the extent to which voting
in the elections of the political subdivision is racially polarized; (3) the political

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subdivision’s use of unusually large election districts, majority-vote requirements, anti-
single shot provisions (discouraging voters from using only one of their multiple votes),
or other voting practices or procedures that may enhance the opportunity for
discrimination against the minority group; (4) whether the minority group members
have been denied access to a candidate-slating process, where one exists; (5) the extent
to which minority group members in the political subdivision bear the effects of
discrimination in such areas as education, employment, and health which hinder their
ability to participate effectively in the political process; (6) whether political campaigns
have been characterized by overt or subtle racial appeals; and (7) the extent to which
minority group members have been elected to public office in the jurisdiction. See
Gingles, 478 U.S. at 36-37. Additional factors that may be probative of vote dilution
are: (8) whether there is a significant lack of responsiveness on the part of elected
officials to the particularized needs of the members of the minority group and
(9) whether the policy underlying the political subdivision’s use of such voting
qualification, prerequisite to voting, or standard, practice, or procedure is tenuous. See
id. at 37.

A. Thurston County’s Appeal

1. Proportionality

Thurston County argues that the district court erred in basing its proportionality
determination on both total population and VAP figures because only VAP should be
considered. Thurston County contends that, in African Am. Voting Rights Legal
Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1352 (8th Cir. 1995) (Villa) (citing Johnson,
512 U.S. at 1013-14 & n.11), cert. denied, 116 S. Ct. 913 (1996), this court recognized
that “Johnson consistently defines the relevant population as the voting age
population.” It claims that the Supreme Court left open the question whether another
population base could be used (e.g., total population). Thurston County maintains that,

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because the district court relied on the VAP, it erred in also considering the total
population.

Thurston County also argues that the district court erred in holding that the
County Board is required to provide “proportional representation” to minority voters.
Rather, Thurston County contends that substantial proportionality is sufficient because
42 U.S.C. § 1973(b) provides 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.” Thurston County suggests that the district court confused the concepts of
“proportional representation” and “proportionality” and erroneously focused its
determination on proportional representation, which refers to the success of minority
group member candidates, rather than on “proportionality,” which “links the number
of majority-minority voting districts to minority members’ share of the relevant
population.” See Johnson, 512 U.S. at 1014 n.11. Thurston County maintains that the
number of majority-minority voting districts provided by its districting plan (2 of 7
districts, or 28.5%) is substantially proportional to Native Americans’ 35.9% share of
the VAP.

We disagree and hold that the district court did not err in finding that the
challenged districting plan lacks proportionality. See slip op. at 17-18. “While [rough]
proportionality is not dispositive in a challenge to single-member districting, it is a
relevant fact in the totality of circumstances to be analyzed.” Johnson, 512 U.S. at
1000. The creation of a third majority-minority district would increase the share of
majority-minority districts to 42.86% of all districts and would create closer
proportionality than the current two majority-minority districts plan (28.57%), whether
total population (43.92%) or VAP (35.9%) is considered. Under the current plan,
Native Americans are under-represented by more than 7% considering VAP and 15%
considering total population. Under the district court’s plan, Native Americans would
be over-represented by less than 7% considering VAP and under-represented by less
than 1.5% considering total population. Whether we consider the total population or

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the VAP, the proposed three majority-minority districts plan results in less disparity
than the current plan and more closely approximates rough, or substantial,
proportionality, as discussed in Johnson, 512 U.S. at 1023, in which the Supreme Court
upheld a districting plan with approximately a 2% population disparity, and in Villa, 54
F.3d at 1353, in which this court approved a districting plan with less than a 1%
disparity.

Furthermore, Thurston County mischaracterizes “substantial proportionality” as
“the maximum number of majority-minority districts possible without exceeding
proportionality.” Brief for Appellants/Cross-Appellees at 20 n.1, citing Rural West
Tennessee African-Am. Affairs Council, Inc. v. McWherter, 877 F. Supp. 1096, 1107
n.12 (W.D. Tenn.), aff’d sub nom. Rural West Tennessee African-Am. Affairs Council,
Inc. v. Sundquist, 116 S. Ct. 42 (1995) (mem.). Only in a rare case will the population
ratios match the fractions of the number of districts such that one group is not over-
represented. There is no reason why the Native American minority in this case should
continue to bear the burden of under-representation under the current scheme while the
white majority enjoys over-representation. The creation of a third majority-minority
district will not harm non-Native Americans because the evidence does not show that
Native Americans vote as a bloc to defeat white voters’ candidates of choice.
Moreover, the evidence indicates that Thurston County intentionally discriminated
against Native Americans because it failed to make adjustments during the 1990
redistricting process in response to the information gathered in the 1990 census
demonstrating a shift in the population’s racial composition due to the increased Native
American population. This evidence shows that Thurston County maintained its current
districting system with a discriminatory intent and thwarted Congress’s purpose in
amending § 2 in 1982 to provide “equally open” political processes. See Johnson, 512
U.S. at 1018-19.

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 2. Totality of the Circumstances

While conceding that plaintiffs satisfied the three Gingles preconditions,
Thurston County argues that the district court erred in finding that plaintiffs satisfied
the totality of the circumstances test. Thurston County claims that there is no evidence
of past discrimination affecting Native Americans’ voting strength. It asserts that, in
fact, it has taken measures to make it easier for Native Americans to participate in the
voting process by sending the county clerks to various communities to register voters.
Thurston County also claims that, while some evidence was offered to show racially
polarized voting, the evidence also showed that Native Americans and whites in
Thurston County have sometimes shared a preferred candidate. Thurston County also
claims that: none of its voting practices or procedures enhance the opportunity for
discrimination against Native Americans because unusually large election districts are
not used; members of the County Board are elected by plurality, rather than majority,
vote; anti-single shot provisions were not used; and County Board elections do not
involve a candidate-slating process but, rather, use an open primary system. Thurston
County also argues that plaintiffs failed to show any causal link between the lingering
effects of discrimination and Native Americans’ ability to participate in the political
process. Specifically, Thurston County contends that plaintiffs failed to show any
lingering economic disparities resulting from discrimination in education, employment,
and health. Thurston County asserts that plaintiffs cannot show economic disparity
because recent developments (a casino) have given Native Americans an economic
boost. Thurston County also contends that witnesses testified that the political
campaigns are not characterized by overt or subtle racial appeals. As for the extent to
which Native Americans are elected to the County Board, Thurston County refers to
the regular election of Native Americans in District 6 and the realistic potential to elect
a Native American in District 4 (because it is a majority-minority district) even though
non-Native Americans have historically been elected in that district. Thurston County
also contends that the County Board regularly consults and cooperates with the Omaha
and Winnebago Tribes and concludes that its decision not to create a third majority-

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minority district is not tenuous because it has already created majority-minority districts
in proportion to Native Americans’ share of the VAP.

We disagree and hold that the district court’s finding that, under the totality of
the circumstances, Native Americans do not have equal access to the political process
in Thurston County is not clearly erroneous. See slip op. at 18. As stated above, under
Johnson, 512 U.S. at 1000, proportionality is a relevant factor to be considered in the
totality of the circumstances analysis. While plaintiffs must still show that, under the
totality of the circumstances, the current voting scheme provides them with less
opportunity than other voters to participate in the electoral process and elect
representatives of their choice, see 42 U.S.C. § 1973(b), the “[s]atisfaction of the
necessary Gingles preconditions carries [] plaintiff[s] a long way towards showing a
Section 2 violation.” Harvell, 71 F.3d at 1390. The two primary factors considered in
the totality of the circumstances analysis are: (1) the extent to which voting is racially
polarized and (2) the extent to which minorities have been elected under the challenged
scheme. Id., citing Gingles, 478 U.S. at 48-49 n.15. The district court did not clearly
err in finding “racial polarization” based upon its analysis of various Thurston County
elections from 1978 to 1992 which “indicate that Native Americans overwhelmingly
vote for Native American candidates and whites vote for white candidates to defeat the
Native American candidate of choice.” Slip op. at 14. This finding also explains the
lack of success achieved by Native American candidates. Despite the evidence
presented by Thurston County that Native Americans have enjoyed “some success in
elections and employment,” the district court’s finding that “racial polarization and
minimal white crossover voting results in a legally significant white bloc vote to defeat
Native American candidates of choice” is not clearly erroneous. Id.
Other totality factors, while not essential to support plaintiffs’ claim, support the
district court’s finding of a § 2 violation. See Harvell, 71 F.3d at 1390. The district
court found that Native Americans bear the effects of social, economic, and educational
discrimination and concluded that “it is obvious that Native Americans lag behind

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whites in areas such as housing, poverty and employment.” Slip op. at 15-16. We
cannot say that these findings are clearly erroneous. Nor can we say that the district
court’s finding of overt and subtle racial discrimination in the community is clearly
erroneous. Id. at 16. Thurston County, School District 13, and the Village each
employ only one Native American, and social organizations in Thurston County are not
racially mixed. Consequently, the white majority has little interaction with most Native
American candidates, and, therefore, the opportunity to become known as a person and
to be trusted with public office is not equal. This disparate socio-economic status is
causally connected to Native Americans’ depressed level of political participation,
despite Thurston County’s efforts to register Native Americans to vote.

3. § 2 Findings

Thurston County argues that, even if this court does not reverse the district
court’s holding regarding proportionality and the totality of the circumstances, the case
should be remanded to the district court for detailed findings to enable this court to
determine the factual and legal bases for the district court’s judgment. Brief for
Appellants/Cross-Appellees at 29-30, citing Buckanaga v. Sisseton Ind. Sch. Dist.
No. 54-5, 804 F.2d 469, 472 (8th Cir. 1986) (Buckanaga) (requiring district courts to
explain with particularity their reasoning and underlying subsidiary factual conclusions
in vote dilution claims). Thurston County contends that the district court failed to
discuss the substantial evidence contrary to its finding of vote dilution and that its
totality of the circumstances analysis was cursory.

We disagree and hold that the district court made adequate factual findings to
support its holding and discussed the substantial evidence contrary to its decision as
required under Fed. R. Civ. P. 52(a) and Buckanaga, 804 F.2d at 472. The district
court thoroughly discussed the facts underlying its conclusion that the Gingles
preconditions were met in this case and that a violation was shown under the totality
of the circumstances. Slip op. at 6-18. Additionally, the district court considered the

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evidence presented by Thurston County that “Native Americans have enjoyed some
success in elections and employment” and testimony that “Native Americans are active,
well-received and productive members of the community.” Id. at 16. Further findings
by the district court are not necessary.

B. Plaintiffs’ Cross-Appeal

Plaintiffs argue that the district court erred in holding that “plaintiffs cannot
prove that Native Americans are sufficiently large and geographically compact to
constitute a majority in a single-member district which is regularly drawn and non-
bizarrely shaped.” Id. at 20. First, plaintiffs claim that the illustrative districting plans
for the School Board and the Village Board cannot be described as bizarre in light of
the irregularity of those jurisdictions themselves. Plaintiffs contend that their § 2 claim
should not be defeated on the basis of gerrymandered districting because a districting
plan adopted or imposed as a remedy for a § 2 violation necessarily uses race as part
of its basis. Plaintiffs maintain that, if this court conducts an equal protection review
of the proposed districting plans, the plans should survive strict scrutiny because the
creation of a majority-minority district is reasonably necessary to comply with § 2 and
such redistricting substantially addresses the § 2 violation without considering race
more than is necessary to remedy the § 2 violation. Brief for Appellees/Cross-
Appellants at 46, citing Shaw v. Hunt, 116 S. Ct. 1894, 1905-07 (1996), and Bush v.
Vera, 116 S. Ct. 1941, 1960, 1968 (1996) (plurality assumed without deciding that a
state’s interest in avoiding § 2 liability can be a compelling state interest for purposes
of strict scrutiny inquiry, while concurring Justice expressed that compliance with § 2
is a compelling state interest). Furthermore, plaintiffs contend that the proposed
districting plans cannot be defeated based solely on their fragile racial composition
because Gingles merely requires that § 2 plaintiffs show that, by creating a majority-
minority district, the minority possesses the “potential to elect representatives.” 478
U.S. at 50 n.17.

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 Plaintiffs also argue that the district court failed to properly consider all of the
evidence of racially polarized voting. Plaintiffs claim that the district court erred in
limiting the evidence of voter cohesion and bloc voting to statistical evidence and in
failing to consider non-statistical evidence of voting behavior. Plaintiffs maintain that
the district court did not consider certain lay witness testimony, the consistent defeat
of Native American candidates, the lack of Native American candidates, the “eye
balling” of election returns (to make generalizations from the results), and a history of
discrimination. For example, plaintiffs especially note the testimony that a white man
told his Native American neighbor, who was running for School Board election, that
he would move if an Indian was elected to the School Board.

We disagree and hold that the district court did not err in holding that the
proposed districting plans were not workable remedies to the challenged practices. See
slip op. at 20. The district court justifiably rejected the proposed plans because of the
fragile composition of the proposed districts. Id. Under the proposed plans, if 4 or 5
Native Americans moved from the proposed majority-minority districts created for the
School Board and Village Board, respectively, and they were replaced by non-Native
Americans, the majority-minority composition would be destroyed. Brief for Appellees
at 27, 30. Therefore, plaintiffs failed to prove that Native Americans are
geographically compact to form an effective voting majority in a single-member district
as required under Gingles.

In the alternative, we hold that the district court did not err in holding that the
proposed districting plans constitute gerrymandering in violation of the equal protection
clause of the Fourteenth Amendment. See slip op. at 20. A districting plan violates the
equal protection clause when it is shown, “‘either through circumstantial evidence of
a district’s shape and demographics or more direct evidence going to legislative
purpose, that race was the predominant factor’ motivating the placement of ‘a
significant number of voters within or without a particular district.’” Harvell v.
Blytheville Sch. Dist. No. 5, No. 97-1364, 1997 WL 590121, at *2 (8th Cir. Sept. 25,

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1997) (to be reported at 126 F.3d 1038), quoting Miller, 515 U.S. at 916. Any remedy
drawn in order to correct a § 2 violation should “steer clear of the type of racial
gerrymandering proscribed in Miller.” Harvell, 71 F.3d at 1391. Bizarre shape is
“persuasive circumstantial evidence that race for its own sake, and not other districting
principles, was [plaintiffs’] dominant and controlling rationale in drawing [the
proposed] district lines.” Miller, 515 U.S. at 913. The bizarre shape of the proposed
districts, considered in combination with the racial and population densities of the
proposed districts, support the district court’s finding that race was the predominant
factor in drawing the proposed districts to create a majority-minority single-member
district and that the proposed redistricting resulted in gerrymandered districts. See id.
at 917. “If race is the predominant motive in creating districts, strict scrutiny applies,
and the districting plan must be narrowly tailored to serve a compelling governmental
interest in order to survive.” Abrams v. Johnson, 117 S. Ct. 1925, 1936 (1997)
(citation omitted). Even assuming, without deciding, that compliance with § 2 can be
a compelling state interest, in the present case, there is “no ‘strong basis in evidence’
to conclude that vote dilution, in violation of § 2, would occur in consequence of the
[challenged districting] plan[s]” because “none of the three Gingles factors, the
threshold findings for a vote dilution claim, [have been] established.” Id. (citations
omitted). Specifically, the district court found, without clear error, that plaintiffs failed
to prove that: the Native American population is sufficiently large and geographically
compact to constitute an effective majority in a single-member district; Native
Americans are politically cohesive; and whites vote as a bloc to defeat Native
Americans’ preferred candidates. Slip op. at 20-21. Because plaintiffs failed to
establish a § 2 violation, the proposed gerrymandered districts cannot survive strict
scrutiny.

Finally, the district court did not err in rejecting plaintiffs’ proffer of evidence of
county-wide voting behavior to prove voter cohesiveness and bloc voting in the School
Board and the Village Board elections. While the district court held that the absence
of statistical evidence was fatal to plaintiffs’ claims, it considered all of the evidence

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in determining that plaintiffs failed to prove either cohesiveness or bloc voting. Id. at
21. The district court concluded that evidence gathered from exit polls in 1994 was
inconclusive and failed to prove that minority voters were cohesive or that majority
voters voted as a bloc. Id. Moreover, a Native American testified at trial that Native
Americans have a fair chance of being elected to the School Board and the Village
Board. Brief for Appellees at 38, citing Tr. Vol. II at 365:21-25. Therefore, the district
court did not err in holding that plaintiffs failed to prove that the School Board and the
Village Board elections violated either § 2 or the Constitution.

III. Conclusion

We commend the district court for its extremely thorough memorandum opinion.
We hold that the district court did not err in ordering Thurston County to create a third
majority-minority district for elections of the County Board and rejecting plaintiffs’
challenge to the districting plans used for the School Board and the Village Board
elections. For the reasons set forth above, we affirm the order of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.

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