Alfred Bone Shirt v. Joyce Hazeltine

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-4010
___________

Alfred Bone Shirt; Belva Black *
Lance; Bonni High Bull; Germaine *
Moves Camp, *
*
Appellees, *
*
v. * Appeal From the United States
* District Court for the
Joyce Hazeltine, in her official * District of South Dakota.
capacity as Secretary of State of *
the State of South Dakota; Scott *
Eccarius, in his official capacity as *
Speaker of the South Dakota House *
of Representatives; South Dakota *
House of Representatives; Arnold *
Brown, in his official capacity as *
President of the South Dakota *
Senate; South Dakota Senate, *
*
Appellants. *
___________

Submitted: June 12, 2006
Filed: August 22, 2006
___________

Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
___________

HEANEY, Circuit Judge.
 This case arises from the 2001 legislative redistricting of South Dakota. The
redistricting plan (the Plan) created a 105-member state legislature that was split into
thirty-five districts. Each district elected two members of the state house of
representatives at-large and one member of the state senate. District 28 was an
exception. It was divided into two single-member districts: District 28A and 28B.
There were only two Indian-majority districts in the plan, Districts 27 and 28A.
District 27, with a ninety percent Native-American population, consistently elected
Indian-preferred candidates. District 28A, with a lesser majority, frequently elected
Indian-preferred candidates. District 26, which neighbors District 27, had only a
thirty percent Native-American population and did not elect an Indian-preferred
candidate from 1982 to 2002.

At issue is whether the Plan violated Section 2 of the Voting Rights Act by
packing District 27 with Native-Americans at the expense of District 26, and whether
the district court redistricted South Dakota in a manner that assured Native-Americans
in Districts 26 and 27 the opportunity to elect Indian-preferred candidates. The
district court1 found this to be the case, and we agree.

BACKGROUND

Native-Americans make up just over nine percent of South Dakota’s population
and nearly seven percent of its voting-age population. Because of the well-
documented history of discrimination against Native-Americans and the nature of the
reservation system, much of this population is geographically compact.2 Under the
Plan, only three state house seats and one state senate seat are in Indian-majority

1
The Honorable Karen Schreier, United States District Judge for the District of
South Dakota.
2
The district court opinion recounted the history of this discrimination in great
detail. Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1018-33 (D.S.D. 2004).

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districts. Of those seats, two state house seats and a state senate seat are in District 27
where Native-Americans comprise eighty-six percent of the voting-age population.

In December 2002, Alfred Bone Shirt and three other Indian (hereinafter the
plaintiffs) voters filed suit, alleging that the Plan violated Sections 2 and 5 of the
Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 and 1973c.3 The plaintiffs
contended that the Plan violated Section 2 because it “packed” Indian voters into
District 27, which, in turn, diluted Indian voting strength in District 26 and left Indian
voters in District 26 unable to elect representatives of their choice. The district court
conducted a nine-day bench trial and found by a preponderance of the evidence that
the Plan violated Section 2. After the defendants refused to advance a remedy, the
district court imposed one of the remedial plans proposed by the plaintiffs. The
defendants appeal the finding of a Section 2 violation and the imposition of the
plaintiffs’ remedial plan.

The district court found that the plaintiffs had met the three preconditions listed
under Thornburg v. Gingles, 478 U.S. 30 (1986), and concluded that the totality of the
circumstances indicated that a Section 2 violation existed. The district court gave the
defendants forty-five days to propose a remedy. The state rejected this opportunity
and asked the district court to certify a legal question of whether the legislature had
the power to redistrict the state in a non-census year to the South Dakota Supreme
Court. Certification was granted and the defendants were given thirty days after the
state supreme court’s decision to propose a remedy, if necessary. Although the South
Dakota Supreme Court decided the legislature did indeed have the continuing power
and duty to redistrict when the past apportionment resulted in a Section 2 violation,
Bone Shirt v. Hazeltine, 700 N.W.2d 746, 755 (S.D. 2005), the defendants stated they
would not propose a remedial plan. The district court then adopted one of the

3
The Section 5 claim alleged the defendants implemented the Plan without first
obtaining federal preclearance. In May 2002, a three-judge panel held that the state
violated Section 5. Bone Shirt v. Hazeltine, 200 F. Supp. 2d 1150 (D.S.D. 2002).

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plaintiffs’ proposed redistricting plans, Plan E,4 and entered judgment in favor of the
plaintiffs. Bone Shirt v. Hazeltine, 387 F. Supp.2d 1035 (D.S.D 2005). The court
subsequently denied the defendant’s motion to alter or amend the remedial order, and
this appeal followed.

ANALYSIS

The defendants advance two basic arguments on appeal: (1) that the district
court clearly erred in finding a Section 2 violation, and (2) that the district court
abused its discretion in imposing the plaintiff’s redistricting plan. We review the
district court’s factual findings for clear error, including the district court’s factual
determination of whether the Section 2 requirements are satisfied. League of United
Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2614 (2006). Legal questions and mixed
questions of law and fact are also reviewed de novo. Harvell v. Blytheville Sch. Dist.,
71 F.3d 1382, 1386 (8th Cir. 1995) (en banc). The district court’s remedial order is
reviewed for an abuse of discretion. See Rodriguez v. Bexar County, 385 F.3d 853,
870 (5th Cir. 2004).

I. ESTABLISHMENT OF THE GINGLES PRECONDITIONS

"The essence of a § 2 claim is that 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
candidates." Cottier v. City of Martin, 445 F.3d 1113, 1116 (8th Cir. 2006) (quoting
Gingles, 478 U.S. at 47). A denial of the right to vote under Section 2 occurs when:

4
The district court’s August 2005 opinion refers to the chosen remedial plan as
“Remedial Plan 1,” but notes that it is the same as “Illustrative Plan E” that plaintiffs
presented at trial.” Bone Shirt, 387 F. Supp. 2d at 1039 n.1.

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 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 members of a [a racial group] 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.

League of United Latin Am. Citizens, 126 S. Ct. 2613-14 (quoting 42 U.S.C. §
1973(b)).

To establish a Section 2 violation, the plaintiffs must prove by a preponderance
of the evidence three elements, often referred to as the “Gingles preconditions”:

(1) [T]he racial group is sufficiently large and geographically compact
to constitute a majority in a single-member district; (2) the racial group
is politically cohesive; and (3) the majority votes sufficiently as a bloc
to enable it usually to defeat the minority’s preferred candidate.

League of United Latin Am. Citizens, 126 S. Ct. at 2614 (internal citations and
modifications omitted); Harvell, 71 F.3d at 1385. Failure to prove each of the
preconditions defeats a Section 2 claim. Clay v. Bd. of Educ., 90 F.3d 1357, 1362
(8th Cir. 1996). If the three preconditions are met, the court proceeds to consider the
totality of the circumstances. Cottier, 445 F.3d at 1117 (citing Harvell, 71 F.3d at
1390).

In a vote dilution claim, 42 U.S.C. § 1973(b) is violated when it is proven under
Gingles that the voting strength of a politically cohesive minority is diluted by either
(1) fragmenting minority voters among several districts so that a majority bloc can
usually outvote the minority, or, as is in this instance, (2) packing the minority into
one or several districts so that the minority’s influence is minimized in its neighboring
districts. See Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (noting both as “usual
device[s] for diluting minority voting power”).

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 A. First Gingles Precondition: Sufficiently Numerous and
Geographically Compact

At the outset, the plaintiff must show Native-Americans are “sufficiently
[numerous] and geographically compact to constitute a majority in a [proposed] single
member district” in order to demonstrate that a workable solution is possible. Clay,
90 F.3d at 1361. The plaintiffs submitted five redistricting plans, each of which
created at least one additional majority-Indian legislative district. Plan E maintained
a majority-Indian Senate District (District 27) and a majority-Indian House District
(District 28A) and created a new majority-Indian House district (District 26A) by
reconfiguring the boundaries of Districts 26 and 27 into a new District 26 and dividing
it into Districts 26A and 26B, giving each a state representative.5 According to expert
testimony, each district in the remedial plan possessed voter margins that ensured
Indian-preferred candidates an opportunity to win an election. See Gingles, 478 U.S.
at 50 n.17 (explaining justification for first Gingles precondition). Under the
plaintiffs’ proposed plan, Native-Americans would comprise over 65 percent of the
voting-age population in District 27, and over 74 percent of the voting-age population
in District 26A. Furthermore, each proposed district includes Indian-preferred
incumbents, which increases the opportunity of Native-American voters to elect their
preferred candidates.

The defendants argue the plaintiffs must prove that the minority group will
enjoy sufficient super-majority status in the proposed remedial district.6 This court
recently held that at the initial stage of the Gingles precondition analysis, the plaintiffs

5
Plan E established a total of five legislative seats that would be in Native-
American majority districts: a house seat in Districts 26A and 28A, and two house
seats and a senate seat in District 27.
6
We note that although a super-majority is not required in the first Gingles
precondition, the evidence accepted by the district court indicated that the plaintiffs’
plan created Native-American super majorities in District 26A and District 27.

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are only required to produce a potentially viable and stable solution. Cottier, 445 F.3d
at 1117: see also Gingles, 478 U.S. at 50 n.17 (“[T]he ultimate end of the first Gingles
precondition is to prove that a solution is possible, and not necessarily to present the
final solution to the problem.”) As the district court correctly noted, the Gingles
preconditions are designed to establish liability, and not a remedy. Because the first
Gingles precondition seeks to establish whether a workable solution is possible, “the
Supreme Court [at this stage] requires only a simple majority of eligible voters in the
single-member district. The court may consider, at the remedial stage, what type of
remedy is possible . . . . But this difficulty should not impede the judge at the liability
stage of the proceedings.” Dickinson v. Ind. State Election Bd., 933 F.2d 497, 503
(7th Cir. 1991) (citations omitted).

The defendants also argue the district court violated the equal protection clause
because it accepted a proposed remedial plan primarily based on race. We disagree.
A redistricting plan violates the equal protection clause only if race is the predominant
factor in placing voters within or outside of a particular district. Easley v. Cromartie,
532 U.S. 234, 241 (2001). Strict scrutiny does not apply where, as here, race was
merely a factor in redistricting. Harvell, 126 F.3d at 1041 (8th Cir. 1997); see also
Bush v. Vera, 517 U.S. 952, 958 (1996) (plurality opinion).

The borders proposed in the remedial plan easily pass muster. They are
compact and respect traditional boundaries. Under the remedial plan, District 27
consists of four counties, plus the Pine Ridge Reservation, as well as its off-
reservation trust lands. District 26 also is made up of four counties, the Rosebud
Reservation, and its off-reservation trust lands. Geographic boundaries were also
considered. The proposed District 27 uses the Cheyenne River as a northern boundary
and the proposed District 26 uses the Missouri River as its eastern boundary. This is
consistent with traditional districting criteria, including respect for political and
administrative boundaries, geographic considerations, and communities of interest.
See S.D. Codified Laws 2-2-32; Abrams v. Johnson, 521 U.S. 74, 91-92 (1997);

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Cottier, 445 F.3d at 1118. The plaintiffs’ redistricting plan also is not so irregularly
shaped that it seems the primary principle in shaping the district was to include or
exclude Native-Americans from any one particular district. Cottier, 445 F.3d at 1117-
18. In fact, as the district court notes, the plaintiffs’ plan coincides in great detail with
the previous state districting plan while creating a greater opportunity for Indian
voters to elect representatives of their choice. Thus, the remedial plan was not based
solely on race, and survives constitutional scrutiny. Id. at 1118.

B. Second and Third Gingles Preconditions: Minority Political
Cohesion and Majority Bloc Voting

The second Gingles precondition requires a showing that the Native-American
minority is politically cohesive. League of United Latin Am. Citizens, 126 S. Ct. at
2614. Proving this factor typically requires a statistical and non-statistical evaluation
of the relevant elections. Cottier, 445 F.3d at 1118.

Evidence of political cohesiveness is shown by minority voting
preferences, distinct from the majority, demonstrated in actual elections,
and can be established with the same evidence plaintiffs must offer to
establish racially polarized voting, because “political cohesiveness is
implicit in racially polarized voting.”

Id. (quoting Sanchez v. Colorado, 97 F.3d 1303, 1312 (10th Cir. 1996)).

The third Gingles precondition asks whether the white majority typically votes
in a bloc to defeat the minority candidate. League of Latin Am. Citizens, 126 S. Ct.
at 2614. This is determined through three inquiries: (1) identifying the minority-
preferred candidates; (2) determining whether “the white majority vote as a bloc to
defeat the minority preferred candidate;” and (3) determining whether “there [were]
special circumstances such as the minority candidate running unopposed present when
minority-preferred candidates won.” Cottier, 445 F.3d at 1119-20.

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 Both the second and third Gingles preconditions were established through use
of expert testimony, employing BERA or regression analysis and Homogenous
Precinct Analysis.7 The defendants argue the district court erred in receiving this
evidence. We review this evidentiary decision for an abuse of discretion. United
States v. Jordan, 150 F.3d 895, 899 (8th Cir. 1998). The district court reviewed the
testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and
found the plaintiffs’ expert testimony relevant and reliable. We agree. The statistical
methods used by the plaintiffs have long been accepted by the Supreme Court, see
Gingles, 478 U.S. at 52-53 (regression analysis), and other courts, see, e.g. Harvell,
71 F.3d at 1386(regression analysis); Old Person v. Cooney, 230 F.3d 1113, 1123 (9th
Cir. 2000) (same); Rural W. Tenn. African-American Affairs Council v. Sundquist,
209 F.3d 835, 839 (6th Cir. 2000) (homogenous and regression analysis). This court
recently accepted the use of these methods as reliable evidence in determining the
second and third Gingles preconditions. Cottier, 445 F.3d 1118-19. And we do so
here.

Second, we agree with the district court’s interpretation of the evidence and the
expert testimony. Ordinarily, racially polarized voting is “the keystone of a vote
dilution case.” Buckanaga v. Sisseton Indep. Sch. Dist., 804 F.2d 469, 473 (8th Cir.
1986). Endogenous8 and interracial elections are the best indicators of whether the

7
BERA or regression analysis considers the votes a candidate receives with the
racial composition of the electorate. It then employs mathematical equations to
produce estimates of minority and white voting behavior. See Old Person v. Cooney.
230 F.3d 1113, 1123 (9th Cir. 2000). For instance, in Johnson, homogenous precinct
analysis was used to compare the voting results of precincts that have a 90 percent
minority majority and precincts that have a 90 percent white majority. These results
are analyzed and used to estimate the general preferences of each race. See Johnson
v. Hamrick, 296 F.3d 1065, 1076 n.2 (11th Cir. 2002).
8
Endogenous races are elections in a single district which are held to elect that
distict’s legislative seats.

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white majority usually defeats the minority candidate. See Cottier, 445 F.3d at 1121;
Old Person, 230 F.3d at 1127. The more recent an election, the higher its probative
value. See Uno v. City of Holyoke, 72 F.3d 973, 990 (1st Cir. 1995). In the only
mixed-race endogenous election in District 26 in the past ten years, the Indian-
preferred candidate for state senate lost even though he received 70 percent of the
Native-American vote. In nine of the most recent endogenous District 26 elections
between white candidates, the Indian-preferred candidate lost each time. In each
election, the white majority voted as a bloc to defeat the Indian-preferred candidate
even though the Indian-preferred candidate was able to carry a majority of the Native-
American vote.

Although they are not as probative as endogenous elections, exogenous9
elections hold some probative value. Cottier, 445 F.3d at 1121. In two exogenous,
interracial elections, the Indian-preferred candidate lost. The white majority was able
to vote as a bloc in each election to defeat overwhelming Native-American voter
support for the Indian-preferred candidate. It was only in exogenous elections
between white candidates, that Native-Americans were finally able to elect their
preferred candidate. On the basis of this record, we agree with the district court’s
findings that Native-Americans in South Dakota are politically cohesive and that the
white majority voting bloc usually defeats the Indian-preferred candidate.

II. TOTALITY OF THE CIRCUMSTANCES ANALYSIS

Although satisfying the three Gingles preconditions takes the plaintiff “a long
way towards showing a section 2 violation,” Harvell, 71 F.3d at 1390, the plaintiffs
ultimately must prove that the totality of the circumstances indicates minority voters

9
Exogenous races are elections in a district for positions that are not exclusively
representative of that district, such as governor and attorney general.

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had “less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice,” 42 U.S.C. § 1973(b).

The Senate Committee report that accompanied the 1982 amendment to the
Voting Rights Act noted the courts should consider the following, inexhaustive,
objective factors in determining whether the totality of the circumstances indicate a
Section 2 violation:

(1) the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in the
democratic process;
(2) the extent to which voting in the elections of the state or political
subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements, anti-single
shot provisions, or other voting practices or procedures that may enhance
the opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the
minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or
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;
(7) the extent to which members of the minority group have been elected
to public office in the jurisdiction.

S. R. No. 97-417 at 28-29 (1982); Gingles, 478 U.S. at 44-45. Two additional factors
are also probative in determining whether Section 2 was violated: (1) was there a
significant lack of response from elected officials to the needs of the minority group,
and (2) was the policy underlying the jurisdiction’s use of the current boundaries
tenuous. Gingles, 478 U.S. at 44.

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 Two factors predominate the totality-of-circumstances analysis: “the extent to
which voting is racially polarized and the extent to which minorities have been elected
under the challenged scheme.” Harvell, 71 F.3d at 1390. Here, the record reflects a
high level of polarization in District 26, as well as an intolerable level of racial
polarization in District 27, and it is clear that Native-Americans have consistently
been excluded from District 26’s elected positions. Moreover, the record reflects that
not one Indian-preferred candidate was elected to the state legislature from the area
that includes District 26 during the period of 1982 to 2002.10

The defendants opine that the actual cause of racially polarized voting in South
Dakota is the establishment and continued maintenance of the reservation system. As
a result, Native-Americans have a low interest in South Dakota politics. We reject this
argument. The presumption that South Dakota is relieved of liability for
discriminatory voting practices because the reservation system makes Native-
Americans less involved in state politics and more involved in tribal matters is
untenable. See United States v. South Dakota, 636 F.2d 241, 245 (8th Cir. 1981).
The record is clear that South Dakota’s history of discrimination against Native-
Americans has limited their ability to succeed in the state political process. Id. at 244-
45. The vestiges of this discrimination remain, dampening Native-American interest
in South Dakota politics and affecting the ability of Native-Americans to register, to
vote, and to participate in the electoral process. See Westwego Citizens for Better
Gov’t v. City of Westwego, 872 F.2d 1201, 1211-12 (5th Cir. 1989). Further, the
“historic effects of discrimination in the areas of health, employment, and education
impact negatively” on the ability of Indians to participate in the political process.
Harvell, 71 F.3d at 1390.

10
The defendants attempt to rebut this evidence by stating that close to thirty
Native-Americans have held office in Bennett County over the past 100 years. The
record shows, however, that several of these officials were appointed and that the
positions were for county posts, posts not at issue in this case. See Clark v. Calhoun
County, 21 F.3d 92, 97 (5th Cir. 1994).

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III. THE REMEDIAL PLAN

When a Section 2 violation is found, the district court is responsible for
developing a constitutional remedy. As required, the defendants were afforded the
first opportunity to submit a remedial plan. Cottier, 445 F.3d at 1123; Williams v.
City of Texarkana, 32 F.3d 1265, 1268 (8th Cir. 1994). They refused, thus leaving
it to the district court to fashion its own remedy or, as here, adopt a remedial plan
proposed by the plaintiffs. Williams, 32 F.3d at 1268.

In formulating a remedial plan, the first and foremost obligation of the district
court is to correct the Section 2 violation. See Westwego Citizens for a Better Gov’t,
946 F.2d at 1124. Second, the plan should be narrowly tailored, and achieve
population equality while avoiding, when possible, the use of multi-member districts.
Abrams v. Johnson, 521 U.S. 74, 98 (1997); Chapman v. Meier, 420 U.S. 1, 26-27
(1975). Third, the plan must not violate Sections 2 or 5 of the Voting Rights Act.
Finally, the plan should not “intrude on state policy any more than is necessary” to
uphold the requirements of the Constitution. Upham v. Seamon, 456 U.S. 37, 41-42
(1982) (per curiam) (quoting White v. Weiser, 412 U.S. 783, 794-95 (1973)).

The defendants argue the district court committed three reversible errors in
adopting the remedial plan: (1) the plan is not an appropriate remedy, since it will still
result in losses for Indian-preferred candidates; (2) the court did not seek preclearance
from the Department of Justice; and (3) the court ignored evidence that “reformulating
a new district may result in a new dynamic.” (Appellant Br. at 77-79.) We disagree.
In our view, the district court’s remedial plan assures Native-American voters the
opportunity to elect representatives of their choice and meaningful participation in the
political process. Harvell, 126 F.3d at 1041. The record reveals the remedial plan
affords Native-Americans more than a 65 percent majority in District 27 and a 74
percent majority in District 26A. See Ketchum v. Byrne, 740 F.2d 1398, 1402 (7th
Cir. 1984) (acknowledging recognized 65 percent guideline); Neal v. Coleburn, 689

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F. Supp. 1426, 1438 (E.D. Va. 1988) (“[T]he general 65% guideline for remedial
districts is not a required minimum which the plaintiffs must meet before they can be
awarded any relief under § 2 . . . . Rather, the 65% standard is a flexible and practical
guideline to consider in fashioning relief for a § 2 violation”). Furthermore, the
district court correctly considered other factors, including turnout rate and
incumbency in formulating the plan. Dickinson, 933 F.2d at 503. The defendants’
argument that the remedial plan must provide some sort of guarantee that Indian-
preferred candidates will be elected is not persuasive; all that is required is that the
remedy afford Native-Americans a realistic opportunity to elect representatives of
their choice. This is true here.

The defendants further contend that the remedial plan violates Section 5 of the
Voting Rights Act because it will result in an overall loss of representation for Native-
Americans in District 27. See Beer v. United States, 425 U.S. 130, 141 (1976).
Section 5 is designed to combat retrogression which, “by definition, requires a
comparison of a jurisdiction's new voting plan with its existing plan [and] necessarily
implies that the jurisdiction’s existing plan is the benchmark against which the effect
of voting changes is measured.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478
(1997) (internal citations omitted). The burden is on South Dakota to prove that the
change does not have a discriminatory purpose or an effect that would deny or abridge
the voting rights of minorities based on race when compared to the status quo of the
previous plan. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 328-29, 334 (2000).
The defendants have not carried this burden. A retrogressive effect is one that
decreases minority voting power in comparison with a preexisting plan when it
eliminates a majority minority district or otherwise reduces the voting power of a
minority community.11 Beer, 425 U.S. at 141. Here, the plan increases the number
of Native-American majority districts by one, and enhances the voting power of the

11
The defendants do not argue a retrogressive purpose, nor can one be inferred
from the district court’s intent to grant Native-Americans a greater opportunity in
electing their preferred candidates.

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minority. Thus, the remedial plan is consistent with the goals of the Supreme Court,
as stated in Beer, 425 U.S. at 141: “reapportionment that enhances the position of
racial minorities with respect to their effective exercise of the electoral franchise can
hardly have the effect of diluting or abridging the right to vote on account of race
within the meaning of § 5.”

As to the defendants’ claim that Section 5 was violated due to the lack of
preclearance, we find no merit. Section 5 clearly states that the preclearance
requirement12 applies to “legislative apportionment plans that are adopted without
judicial discretion or approval.” McDaniel v. Sanchez, 452 U.S. 130, 138 (1981). In
this case, the plan was privately developed, and thus not subject to preclearance. Id.
(“[T]he Act’s preclearance requirement does not apply to plans prepared and adopted
by a federal court.”).

Finally, the defendants opine that the district court erred when it reformulated
a plan that “may result in a new dynamic.” The defendants do not describe the
dynamic they fear, nor do they direct us to any evidence in support of their position.
Moreover, we have found no case law suggesting that a district court must analyze the
changing political dynamics of remedial districts. Therefore, we find that the district
court did not abuse its discretion in implementing the plaintiffs’ remedial plan.

12
Section 5 of the Voting Rights Act, as amended, 42 U.S.C. § 1973c, requires
a governmental body to obtain preclearance of a proposed plan either by securing a
declaratory judgment from the United States District Court for the District of
Columbia or by submitting the change to the Attorney General of the United States.
As long as the Attorney General has not interposed an objection within sixty days
after such submission, the state may enforce the change.

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 CONCLUSION

For each of the reasons noted herein, we affirm the decision of the district
court and find that the preponderance of the evidence shows that the plaintiffs met
their burden in proving a Section 2 violation. We also affirm the district court’s
decision to impose the plaintiffs’ proposed remedial plan.

GRUENDER, Circuit Judge, concurring in the judgment.

Because I do not find that the district court clearly erred in the essential
holdings of its opinion, I concur in the judgment. I write separately because my
analysis of the district court’s findings and my application of the clearly erroneous
standard differs from that of the Court.

We review the district court’s factual findings for clear error. Harvell, 71 F.3d
at 1386. “Using this standard, we will overturn a factual finding only if it is not
supported by substantial evidence in the record, if it is based on an erroneous view of
the law, or if we are left with the definite and firm conviction that an error was made.”
United States v. Vertac Chemical Corp., 453 F.3d 1031, ___ (8th Cir. 2006)
(quotation omitted). Under this standard, affirmance may be proper regardless of
whether “we agree with the district court’s interpretation of the evidence and the
expert testimony.” Ante at 10; see also ante at 2, 9, 11. We instead review the district
court’s factual findings only to ascertain whether the district court’s interpretation of
the facts is a permissible one, as “[a] district court’s choice between two permissible
views of the evidence cannot be clearly erroneous.” Vertac, 453 F.3d at __ (qutoation
omitted); see also Cottier, 445 F.3d at 1123-24 (Colloton, J., dissenting) (“To preserve
the benefit of the trial court’s particular familiarity with the indigenous political
reality, we apply a clear error standard of review both to the predicate factual

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determinations and to the ultimate finding regarding vote dilution.”) (internal
quotations and alterations omitted).

I. The Gingles Preconditions

The Court’s opinion adequately describes the Gingles preconditions. See ante
at 4-6. While I cannot join the Court’s analysis of the Gingles preconditions, I concur
in its conclusion. I set forth what I find to be the proper analysis of the issues below.

A. The First Gingles Precondition

Under the first Gingles precondition, Bone Shirt must show that Indians
constitute a minority that is sufficiently large and geographically compact to constitute
a majority in a single-member district. Gingles, 478 U.S. at 50. This first
precondition focuses upon whether the district court can “fashion a permissible
remedy in the particular context of the challenged system.” Sanchez v. Colorado, 97
F.3d 1303, 1311 (10th Cir. 1996) (quoting Nipper v. Smith, 39 F.3d 1494, 1530-31
(11th Cir. 1994)). If no “proper and workable remedy exists,” then a plaintiff’s claims
fail as a matter of law. Cottier, 445 F.3d at 1117. In Cottier, this Court sustained
redistricting plans under the first Gingles precondition so long as the proposed plans
offered Indians a “more reasonable opportunity” to elect representatives of their
choice. Id.

The State contends that the district court erroneously determined that Indians
need not have a supermajority in the newly-created district. This Court rejected a
similar argument in Cottier. Id. The question is whether the minority population has
an “equal opportunity” to elect its preferred candidate, not whether it will actually
muster the votes to do so. League of United Latin Am. Citizens v. Perry, 126 S. Ct.
2594, 2615-16 (2006). In any event, the State’s argument is beside the point, as Bone

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Shirt demonstrated that there were five potential remedial plans that gave Indians a
supermajority of over 65 percent in the new District 26, the remedial district. As such,
I cannot say that the district court clearly erred when it concluded that Indians
constituted a minority that was sufficiently large and compact to constitute a majority
in a single-member district. In addition, the Court accurately described the proposed
remedial districts, ante at 8, and I likewise conclude that the proposed remedial
districts are not themselves racial gerrymanders.

B. The Second and Third Gingles Preconditions

Gingles’s second precondition required Bone Shirt to show that Indians are
politically cohesive. Gingles, 478 U.S. at 51. “A showing that a significant number
of minority group members usually vote for the same candidates is one way of
proving the political cohesiveness necessary to a vote dilution claim, and,
consequently, establishes minority bloc voting within the context of § 2.” Id.(internal
citation omitted). The third Gingles precondition requires a plaintiff to demonstrate
that “the white majority votes sufficiently as a bloc to enable it—in the absence of
special circumstances, such as the minority candidate running unopposed—usually to
defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 51 (internal citation
omitted).

Much of the argument before the district court and in this Court addressed
whether the statistical methods employed by Bone Shirt’s expert, Dr. Steven Cole,
were sufficiently reliable. Cole employed bivariate ecological regression analysis
(“BERA”) and homogenous precinct analysis (“HPA”). The State’s expert, Dr. Zax,
employed ecological inference (“EI”) or “King’s Method.” Using BERA and HPA,
Cole determined that Indian voters are highly cohesive; that is, Indians tend to vote
for the same candidates. The district court accepted Cole’s BERA-based statistical
analysis, even though “Cole admitted that [his] equation contains an error [and that]

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the effect of that error is unknown.” 336 F. Supp. 2d at 1001-02. The Court points
out that BERA has “long been accepted” by the courts. Ante at 9-10.

I find it difficult to rely upon a statistical method that incorporates an
admittedly erroneous equation that yields a result with an error of unknown quantity
and effect. Daubert specifically requires a district court to consider “the known or
potential rate of error” of the scientific method utilized by testifying experts. 509 U.S.
at 594. It is difficult to weigh this factor in Daubert’s analysis if “the effect of that
error is unknown.” 336 F. Supp. 2d at 1002. Nor am I persuaded that previous
acceptance of BERA results permanently decides the matter. Science evolves, and
scientific methods that were once considered unassailable truths have been discarded
over time. Unreliable testimony based upon those outdated theories and methods must
be discarded as well, lest scientific stare decisis ensure that such theories survive only
in court. It may be that the validity of some scientific methods need not be constantly
reestablished in case after case, but a statistical method that contains an apparently
unquantified error would not be one of them. If Cole’s BERA-based testimony were
the only basis for the district court’s opinion, I would likely hold that its conclusions
were unsupported by competent evidence.

Nevertheless, I do not find that the district court clearly erred when it found that
Indians vote sufficiently cohesively and the white majority voted as a bloc to usually
defeat the minority preferred candidate (“MPC”), thereby establishing the second and
third Gingles preconditions. As the district court correctly noted, “all three methods
employed by the parties’ experts in this case generate sufficiently similar results.” Id.
at 1004. In other words, Cole’s BERA and HPA-based results and Zax’s EI-based
results are substantially similar. While the State contends that this is not the case, the
analysis it presents in its brief is based upon a misunderstanding of the proper
approach to the issue.

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 First, the State’s expert used an approach that conflates the second and third
Gingles preconditions. According to the State’s brief, “dilution may be found when
there is first, racial polarization and, second, in a case in which there is racial
polarization, the minority candidate loses.” The State further refines its approach by
arguing that a particular race does not qualify as “polarized” unless at least 60 percent
of Indians voted for the MPC and at least 60 percent of the white majority voted
against him. But there is no support for this approach, as no Gingles precondition
asks whether the white majority is also cohesive. To the contrary, the questions under
Gingles’s second and third preconditions are whether the minority votes cohesively
and whether “the white majority votes sufficiently as a bloc” in most elections to
defeat the candidate that the cohesive minority population prefers. Gingles, 478 U.S.
at 51. Nothing in the case law prescribes that the white majority bloc must be of a
certain size beyond the requirement that the bloc be large enough to defeat the MPC.
As such, Dr. Zax’s assumption that only races where at least 60 percent of the white
majority votes for the same candidate improperly skews his results.

Second, the State diluted the proper analysis by relying heavily upon election
results in races in other districts and for other offices, known as exogenous elections.
As we have held previously, endogenous results are preferable to exogenous ones.
Cottier, 445 F.3d at 1121. Moreover, the district court clearly found that endogenous
results were preferable to exogenous results, and the State did not attack that finding
in its appeal.

The State also relied heavily upon results from District 27 when arguing that
the white majority does not usually defeat the MPC. But it is hardly shocking that the
white population usually cannot vote as a bloc sufficient to defeat the MPC in District
27—a district created to ensure that Indians could elect their MPC and where Indians
enjoy a large supermajority. Contrary to the State’s argument, the precedent
addressing this issue makes clear that courts must focus on election results from the

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majority-white district. See, e.g., Gingles, 478 U.S. at 51 (holding that the minority
proves the third precondition by showing that “submergence in a white multimember
district impedes its ability to elect its chosen representatives” because the district’s
“white majority” votes sufficiently as a bloc) (emphases added); see also League of
United Latin Amer. Citizens, 126 S. Ct. at 2616 (“The Court has rejected the premise
that a State can always make up for the less-than-equal opportunity of some
individuals by providing greater opportunity to others.”); De Grandy, 512 U.S. at
1003-04 (holding that the third precondition was satisfied by “a tendency of non-
Hispanic whites to vote as a bloc to bar minority groups from electing their chosen
candidates except in a district where a given minority makes up a voting majority”)
(emphasis added).

If the State’s approach were correct, packing would be both the problem and the
solution—i.e., having illegally packed Indians into one district, the State could then
point out that Indians are sometimes able to elect their preferred candidate in the
packed district. See Old Person, 230 F.3d at 1122 (noting that this approach “would
permit white bloc voting in a majority-white district to be washed clean by electoral
success in neighboring majority-Indian districts”). As the case law illustrates, the
State’s approach to the issue is inappropriate.

In this case, then, the elections that speak to this critical issue are those in
District 26, the “white majority” district in question. And, at bottom, when analyzed
under the proper framework, both experts’ analyses using all three methods—BERA,
HPA and EI—support the conclusion that the Indians vote cohesively in that district
and that the white majority usually votes as a bloc to defeat the MPC. As such, the
district court did not clearly err when it held that the second and third Gingles
preconditions had been met.

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II. Totality of the Circumstances

The district court analyzed all the Senate factors, as well as two additional
factors often considered in Section 2 cases. See ante at 11-12. The district court’s
weighing of the totality of the circumstances, like its factual findings, is subject to
clear error review. Stabler, 129 F.3d at 1023.

The Court’s opinion analyzes only two of the Senate factors, the extent of
racially polarized voting and the extent to which minorities have been elected,
reasoning that these two factors “predominate” the analysis. Id. at 12-13. Without
analyzing the remainder of the factors, the Court then cites a 1981 case from this
Circuit involving South Dakota and holds that “[t]he record is clear that South
Dakota’s history of discrimination against Native-Americans has limited their ability
to succeed in the state political process.” Id. at 13. After reviewing the district court’s
Senate-factor findings and its weighing of those factors, I believe that the issue of
whether the totality of the circumstances indicates that South Dakota violated Section
Two is a closer call than reflected in the Court’s opinion. Nevertheless, I conclude
that the district court did not clearly err when it determined that “based on the totality
of the circumstances, it [has been] shown that . . . [members of a protected group]
have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b).

I would, however, find that the district court’s analysis of several of the Senate
factors was clearly erroneous. First, the district court erroneously concluded that
South Dakota uses voting procedures that enhance the opportunity for discrimination.
The district court first found that South Dakota “has taken measures to simplify voting
procedures and promote access to the political process [and that] these laws and
practices decrease opportunities for discrimination.” 336 F. Supp. 2d at 1037.
Nevertheless, the district court concluded that South Dakota’s use of multimember

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districts in District 26 and District 27 outweigh South Dakota’s efforts to ensure
Indian access to the polls. Id. The district court’s conclusion on this factor is
unsupported by any analysis or evidence. Moreover, it is difficult to see how the use
of multimember districts in District 27, which has a supermajority of Indians, hurts
Indian efforts to elect their preferred candidates. As the lack of Indian voters in
District 26 forms the basis for Bone Shirt’s claim, it is unclear from the evidence
whether the use of multimember districts in fact adds to that injury, as there may just
be too few Indians in District 26 irrespective of whether it is a single or multimember
district. As the district court’s opinion does not represent a choice between two
permissible views of the evidence, but is instead a conclusion unsupported by
substantial evidence, I would hold that it clearly erred when analyzing this factor.

Second, the district court found that, although there is no formal candidate
slating process in South Dakota, there is an informal one, and it worked in one
instance to harm Indian interests when a Democratic committee chairman campaigned
against the MPC, who was running as a Democrat. Id. Again, the district court’s
conclusion is unsupportable, as the factor concentrates first upon whether there is a
candidate slating process. At most, the district court found that there is an informal
one. Id. This then means that the process is more open than if there were a formal
slating process that worked consistently against Indian interests. While it is unclear
whether an informal slating process is relevant to the Senate factor, a single instance
where, for whatever reason, a party chairman chose not to support his party’s
candidate is an insufficient basis upon which to determine that Indians have been
“denied access to that [slating] process.” Gingles, 478 U.S. at 37. The district court’s
finding in this regard is clearly erroneous.

Third, the district court’s conclusion that racial appeals have been used in South
Dakota’s elections, 336 F. Supp. 2d at 1041, was also clearly erroneous. As support
for its conclusion, the district court primarily cited news stories concerning alleged

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Indian voter fraud. Id. The district court’s opinion does not reflect that any of the
stories originated from a particular campaign, that they were meant to incite anti-
Indian sentiment or that they were meant to motivate white voters to reject Indian
candidates. Moreover, the fact that the news media reported that one non-Indian
politician chose an Indian running mate is not evidence of a racial appeal, much less
a racial appeal that is detrimental to Indians. This evidence does not support the
district court’s conclusion that racial appeals have been used in South Dakota
elections. Therefore, because the finding is unsupported by evidence, I would find
that it was clearly erroneous.

One other portion of the district court’s analysis is problematic despite its
factual accuracy. A very significant portion of the district court’s conclusion that
there was a “long and extensive history” of discrimination that affects the voting
rights of Indians in South Dakota is predicated upon early South Dakota and
American history, including denial of the right of Indians to vote by Congress in the
1860s. 336 F. Supp. 2d at 1034. Because Indians have had the right to vote under
particular circumstances since at least the 1890s and have had the universal right to
do so for over half a century, this evidence is far from dispositive. Nor am I
persuaded that particular witnesses’ anecdotes about perceived slights at the polls
would be sufficient to sustain the district court’s opinion on this issue. Nevertheless,
there was also evidence of more recent discrimination, including purposeful efforts
to deny Indians the right to vote in various jurisdictions in South Dakota, id. at 1023-
24, and I cannot conclude that the district court clearly erred when it determined that
this factor weighed in Bone Shirt’s favor.

Although the district court’s conclusion with respect to three of the Senate
factors was clearly erroneous, its conclusion respecting the other nine factors it
analyzed was not. Importantly, this includes its conclusion concerning the two
“primary factors,” Harvell, 71 F.3d at 1390—the existence of polarized voting and the

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lack of Indian elected officials. In my view, the district court’s analysis of these
remaining Senate factors constitutes a “choice between two permissible views of the
evidence,” Vertac,453 F.3d at ___, and I cannot therefore say that its analysis is
clearly erroneous. As we have held previously, “Congress made clear . . . that the
factors identified in the legislative history are not exhaustive . . . and that there is no
formula for aggregating the factors.” Buckanaga v. Sisseton Indep. Sch. Dist. No. 54-
5, 804 F.2d 469, 471 (8th Cir. 1986). In accord with this reality, no court has ever
determined how many of the factors must be present or in what combination. Under
these circumstances, I cannot say that the district court’s overall weighing of the
totality of the circumstances was clearly erroneous.

III. Remedy

After South Dakota declined to submit a remedial plan, the district court
adopted the ACLU’s “Remedial Plan 1.” 387 F. Supp. 2d at 1038-39. The State
argues on appeal that the remedial plan is retrogressive in that it hurts the opportunity
of Indians in District 27 to elect the candidates of their choice, it is facially
impermissible under Section Five of the Voting Rights Act and it must be submitted
to the Department of Justice or a three judge panel for clearance.

In his brief, Bone Shirt pointed out that the State did not make its retrogression
and Section Five arguments before the district court. The State did not dispute that
characterization in its reply. Accordingly, I would find that the State failed to
preserve these arguments for appeal. See, e.g., AIG Centennial Ins. Co. v. Fraley-
Landers, 450 F.3d 761, 767 (8th Cir. 2006) (“We generally do not consider arguments
presented for the first time on appeal . . . .”).

Nor am I persuaded that the district court was required to seek preclearance
from the Department of Justice or a three judge panel for its proposed redistricting

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plan. As the Supreme Court interpreted Section Five in the context of a judicially-
ordered redistricting plan, the redistricting plan need not be submitted for preclearance
unless the plan was created by the relevant legislative body. McDaniel, 452 U.S. at
153 (“As we construe the congressional mandate, it requires that whenever a covered
jurisdiction submits a proposal reflecting the policy choices of the elected
representatives of the people—no matter what constraints have limited the choices
available to them—the preclearance requirement of the Voting Rights Act is
applicable.”). Here, the adopted plan does not reflect South Dakota’s redistricting
choices. Indeed, South Dakota explicitly refused to offer any remedial redistricting
plan. Accordingly, the district court need not have sought preclearance.

IV. Conclusion

For the foregoing reasons, I would affirm the judgment of the district court.
Accordingly, I concur in the judgment.
______________________________

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