Goosby v. Town Board of Hempstead

LEVAL, Circuit Judge,

concurring:

I also vote to affirm the judgment of the district court, but for slightly different reasons.

The Town contends that some racial motivation is necessary to show a violation of section 2 of the Voting Rights Act. It asserts that plaintiffs failed to show any such motivation because black voters’ lack of success in electing candidates of their choice is attributable solely to political preferences: The Town historically has been and remains overwhelmingly Republican, while black voters have tended to vote for Democrats who have lost. Plaintiffs and their amici contend that section 2 does not require racial motivation. They further contend that, if racial motivation is needed, the need is satisfied: Although the at-large district was not created to achieve race-based goals, it effectively combines with racial animus to deprive black voters of equal participation in the political process.

As enacted in 1965, section 2 prohibited a voting mechanism- “imposed or applied by any State or political subdivision to deny or abridge the right of any citizen ... to vote on account of race or color.” Voting Rights Act of 1965, 79 Stat. 437 (current version at 42 U.S.C. § 1973). In *4991980, a plurality of the Supreme Court interpreted that text to go no further than the Fifteenth Amendment, and to prohibit only electoral mechanisms intentionally adopted or maintained by state officials for a racially discriminatory purpose. See City of Mobile v. Bolden, 446 U.S. 55, 61, 65, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion). In 1982 Congress amended the act, apparently to reject the Bolden interpretation. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). While making clear that the statute no longer requires discriminatory intent by a state actor, the amendment clarified little more. It is exceedingly difficult to discern what the amended statute means.1

Subsection (a) of the amended statute retains the original statute with one significant change. Where the original act had addressed voting mechanisms “imposed or applied to deny or abridge the right ... to vote on account of race or color,” the new version reaches mechanisms “imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote on account of race or color.” This substitution clearly diminishes the importance of motivation and focuses more on result. Retention of the words “on account of race or color,” however, suggests a continuing concern for race-based motivation, at least within the electorate.2 (I recognize that courts have sometimes construed similar language not to require proof of race-based intent. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (construing section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) — which prohibits adverse employment actions “because of’ an individual’s race — to reach job requirements that unnecessarily have a “disparate impact” on a minority group).)

The 1982 amendment also added a new subsection (b). The first sentence of subsection (b) asserts that a violation of subsection (a) is established “if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by [the class of persons] protected by subsection (a) ... in that its members have less opportunity than [others] to participate in the political process and to elect representatives of their choice.” Under this structure, a showing that satisfies subsection (b) is deemed to satisfy subsection (a). Subsection (b) is satisfied by a showing “the political processes leading to nomination or election are not equally open” to persons of a race or color “in that [they] have less opportunity than [others] to participate in the political process and to elect representatives of their choice.”

*500This standard is exceptionally vague. One has almost no guidance as to what illegally lessens the opportunity to vote. Following the Senate Report, the Supreme Court has directed courts to consider multiple factors, in “the totality of the circumstances,” in determining whether section 2 has been violated. See Johnson v. De-Grandy, 512 U.S. 997, 1010 & n. 9, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (quoting Gingles, 478 U.S. at 44-45, 106 S.Ct. 2752 (citing S.Rep. No. 417, 97th Cong., at 28-29, reprinted in 1982 U.S.C.C.A.N. 177, 205-06)). The specified factors, however, give little guidance as to what constitutes a violation of the act.

The last sentence of subsection (b) and its proviso add further confusion, particularly where, as here, plaintiffs’ claim is based largely on their lack of success in electing their preferred candidates. The sentence states that “the extent to which members of a protected class have been elected ... is one circumstance which may be considered.” The proviso goes on to say, however, that the statute confers no “right to have members of a protected class elected in numbers equal to their proportion in the population.”

Probably the result of a political impasse in Congress, these provisions are especially confusing. They might be read to state two forceful propositions that point in opposite directions and thus cancel each other out: First, minority voters’ failure to elect representatives in proportion to their population can be highly significant in establishing a violation- — but second, there is no right to achieve proportional success. Alternatively, the provisions may simply state self-evident propositions. The main clause says that the success or failure of minority candidates “may be considered” in deciding whether members of that minority have had “less opportunity [than others] ... to participate in the political process and to elect representatives of their choice.” The proviso, meanwhile, might merely state one of two reasonably obvious propositions: that the requirements of the statute do not go so far as to guarantee strict proportionality of representation, or that the failure of members of a protected class to elect candidates of their class may result from voters of that class voting for candidates who are not of that class, so that the election of few members of a minority might say little about the overall opportunity of class members to participate. See NAACP v. City of Niagara Falls, 65 F.3d 1002, 1015 (2d Cir.1995). The last sentence and proviso therefore either cancel each other out or assert nothing of significance.

The relevance of race-based intent to a violation of subsection (b) is especially unclear under the amended act. To satisfy subsection (b), a plaintiff must show that persons of plaintiffs class “have less opportunity than others to participate in and elect representatives of their choice.” In some instances, such lesser opportunity clearly could result from procedures imposed without racial motivation. An easy case of a violation might occur where established polling places are geographically inaccessible to a new settlement of voters in a protected class. Cf. Perkins v. Matthews, 400 U.S. 379, 387-88, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). On the other hand, in other circumstances, the lessening of a protected class’s opportunity might result solely from race-based animus. For example, even when members of a protected class have an equal opportunity to cast ballots, race-motivated actions by nominating committees or majority voters might lessen the opportunity for members of the minority to elect their choice of representatives. See White v. Regester, 412 U.S. 755, 766-69, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). It thus appears that some violations of subsection (b) might require race-based intent on the part of officials or voters, but others would not.

The Supreme Court has offered no definitive guidance on the role of discriminatory intent under section 2. In Gingles, four Justices understood section 2 to require no showing of racial intent. See 478 *501U.S. at 61-74, 106 S.Ct. 2762 (plurality opinion). But five Justices expressed different views. See id. at 83, 106 S.Ct. 2752 (White, J., concurring); id. at 100-01, 106 S.Ct. 2752 (O’Connor, J., concurring). Subsequent decisions have not clarified the issue.

Section 2 has been aptly described as a “compromise that seeks to have things both ways.” Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 359 (7th Cir.1992). Interpreting such a statute is a particular challenge. One approach to statutory interpretation tells judges to rely only on the text and a dictionary. However valuable that approach may be when statutes contain decipherable instructions as to a particular question, the approach is of no use when a statute contains no such guidance. In some instances, either because Congress was internally divided or because it lacked a clear idea how a general principle should play out in the specifics, a statute simply leaves the major questions unanswered. In those cases, a special relationship arises between Congress and the courts. Having left open the inevitable questions, Congress enters a partnership with the courts, assigning them the task of supplying answers based on common sense and good judgment in giving effect to the incompletely formulated intentions and apparent compromises of the statute. The Sherman Act is one vague statute whose general terms require courts to play an especially active interpretive role. See 15 U.S.C. § 1 (1999) (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal”). Even more than in the Sherman Act, which at least contains a clear general message, in the Voting Rights Act Congress has assigned the courts such a partnership role.

On the issue of intent, Justice Brennan’s plurality opinion argued that the statute intended to reject any requirement of racial animus. See Gingles, 478 U.S. at 61-74, 106 S.Ct. 2752. The opinion pointed to observations in the Senate Report of two significant disadvantages to such a requirement: first, that attempts to prove racial animus in litigation would likely have a divisive effect; and second, that racial animus is often difficult to prove, so that such a requirement might allow some violations to escape redress. See id. at 71-73, 106 S.Ct. 2752.

While these observations are surely accurate, there are important countervailing considerations, Difficulty proving racial animus in some circumstances may result from the fact that there was none. For courts to find violations and invalidate elections and election procedures in the absence of any racial motivation, merely because a protected class can show it has had little success electing candidates, could produce enormous disruptions in the political process.3 As the majority report indicates, this was not Congress’s intent. See S.Rep. No. 417, at 35, reprinted in 1982 U.S.C.C.A.N. at 213 (stating that the act “will not result in wholesale invalidation of electoral structures”).

In my view, the more deeply judicial intervention would intrude into the political process, the more reluctant courts should be to find a violation without a *502finding of racial motivation. For example, in a circumstance discussed above, the act might require the establishment of a polling place near a new concentration of protected class members, even though the location of polling places had not been racially motivated, if the inaccessibility of the polling place lessened the opportunity of class members to cast ballots. Such a remedy involves little judicial intrusion into the political process. On the other hand, where the complaint essentially alleges that voters of the protected class have had little success electing candidates of their choice, and where correction would require radical political restructuring-either by redrawing district lines or by changing the nature of representation from at-large to single-representative districts-I believe courts should not find a violation in the absence of race-based intent. See S.Rep. No. 417, at 21, reprinted in 1982 U.S.C.C.A.N. at 198 (citing with approval the holding of Whitcomb v. Chavis, 403 U.S. 124, 153, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), that absent “built-in bias” against blacks, the “cancellfing] out” of black votes constitutes a “mere euphemism for political defeat at the polls,” not a Voting Rights Act violation).4 I therefore reject the plaintiffs’ argument that Hemp-stead’s long-standing multimember district at-large can violate the plaintiffs’ rights under section 2 absent race-based intent on the part of either Hempstead’s officials or its voters.

The next question is how a court should analyze race-based intent. In my view the concerns discussed by Justice Brennan’s Gingles opinion can be appropriately accommodated, without excessive judicial intrusion into the electoral process, by burden-shifting. In order to establish a prima facie case of vote dilution, plaintiffs must prove the-three “necessary preconditions” to a section two violation under Gingles: that the minority group is large and compact enough to constitute a majority in a single-member district; that the minority is politically cohesive; and that the majority ordinarily votes sufficiently as a bloc to defeat the minority preferred candidate. See Gingles, 478 U.S. at 50, 106 S.Ct. 2752. Proof of those three factors sufficiently *503supports an inference that race may have been a motivating factor to justify imposing on defendants the burden to prove that the regular defeat of minority preferred candidates is not the result of race-based intent on the part of the governing officials of the electorate. Cf. Vecinos De Barrio Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir.1995). On this issue, a defendant can ultimately prevail by showing, in the “totality of the circumstances,” Johnson, 512 U.S. at 1011, 114 S.Ct. 2647, that the lessening of plaintiffs’ opportunity to elect their preferred candidate did not result from race-based intentions.

Although the district court proceeded on a different understanding of section 2, the court’s judgment must be affirmed under these standards. The court found that the three Gingles preconditions were satisfied: The black minority in Hempstead is large and compact enough to form a majority in a single-member district; the minority is politically cohesive, as it is heavily Democratic; and the white majority, which is heavily Republican, has always voted as a bloc that defeats the minority’s preferred candidates in Board elections. Those findings are supported by the evidence, and they placed the burden of proving that race was not a motivating factor upon the defendants.

Based on the district court’s factual findings, none of which is clearly erroneous, I cannot say that defendants carried then-burden of disproving racial motivation. Judge Gleeson made a number of findings indicating that race is a factor in the polities of Hempstead. Racial appeals have been features of Town elections on more than one occasion. Town law enforcement officers have engaged in race-conscious policing — essentially telling black youths visiting from Queens to “go back where they belong.” Agencies of the Town government have committed acts of racial discrimination to which the Town has made no response. And the Town has a history of indifference to the economic and social needs of the black communities within Hempstead, even though they have lower incomes than the rest of the Town.

It is true that blacks were sometimes elected in Hempstead, but they were elected to positions other than the Town Board, from geographical areas other than the Town proper. This is not enough to establish that race was not a motivating factor in elections for the Town Board, especially in the “comprehensive, not limited, canvassing of relevant facts” that the act requires. Johnson, 512 U.S. at 1011, 114 S.Ct. 2647. Until this litigation began, the Republican Party in Hempstead had never recruited an African-American candidate for the Town Board — a fact that distinguishes both LULAC, 999 F.2d at 861, and Baird, 976 F.2d at 361. Furthermore, a majority of white voters in Hempstead had never supported a black candidate for the Board — another difference from LULAC, 999 F.2d at 861. After this litigation began, the Republican Party did choose a black candidate, but he was not supported by the majority of blacks active in the Republican Party. His selection hardly eases fears, engendered by the history, that black voters in Hempstead have less political influence than similarly situated white voters. See Solomon v. Liberty County Comm’rs, 166 F.3d 1135, 1143 (11th Cir.1999).

In the totality of the circumstances, the defendants failed to show that racial motivation was not a cause of blacks’ persistent defeat at the polls. As Judge Gleeson noted, it appears that in Hempstead, “race-neutral factors, such as political partisanship ... co-exist with race-based ones, such as diminished access to the slating process or insensitivity by elected officials to the particularized needs of the minority community.” Under section 2, it is necessary to find only that (1) the complete failure of blacks to elect the candidates of their choice to the Town Board, despite their electoral cohesiveness and strength, satisfied the plaintiffs’ burden on the first three elements of a violation through vote dilution, and (2) defendants’ *504evidence failed to demonstrate the absence of race-based intentions as a contributing cause. I believe plaintiffs proved a section 2 violation.

. The act now reads:

(A) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner 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 ..., as provided in subsection (b) of this section.
(B) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to the participation by members of a class of citizens protected by subsection (a) of this section 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 in the State or political subdivision 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.

. Some courts find that a requirement of racial animus survives the 1982 amendment, and can be satisfied by racial motivation on the part of the electorate, rather than the state. See, e.g., Nipper v. Smith, 39 F.3d 1494, 1524-25 (11th Cir.1994) (en banc) (opinion of Tjoflat, C.J.); LULAC v. Clements, 999 F.2d 831, 859-63 (5th Cir.1993) (en banc).

. Consider, for example, a case in which a district line was set long ago and has since been maintained without any racial motivation. In recent years, a cluster of members of a protected class develops around the dividing line, with a substantial percentage of the cluster falling on both sides of the line. If the members of that class could not elect their preferred representative in the districts on either side of the line, but could elect a representative if the line were shifted so that the entire community fell into one district, then plaintiffs from that class could argue that the maintenance of the line deprived them of the opportunity to elect a representative of their choice. In such a circumstance, the notion that courts could invalidate an election and require revision of election districts, without any showing of discriminatory intent, seems to me alarming and far beyond the probable contemplation of Congress.

. In deciding whether or not discriminatory intent is necessary to a section 2 violation, another factor that may be relevant is whether the alleged violation appears more concerned with process or outcomes. The accessible location of polling places, for example, is necessary to a fair process in which all persons can cast a vote. The law may plausibly guarantee a fair process regardless whether the unfairness to be remedied is the product of discriminatory intent. But where plaintiffs allege that they are unable to elect representatives of their choice, their complaint, at least on its face, is that the outcome is unfavorable to them. Ordinarily, American law guarantees equal electoral opportunity, not equal electoral results. See Davis v. Bandemer, 478 U.S. 109, 131-33, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986); Baird, 976 F.2d at 359. If courts are to police electoral outcomes, it is reasonable that they first require that discrimination, within the electorate if not the state, have infected the election. When discrimination is present, it can be said that the process also was not fair, in the sense that it was marred by illegitimate animus. For this reason, when a complaint appears to allege only bad outcomes, it makes sense to require discriminatory intent.

Requiring discriminatory intent to prove vote dilution reduces the otherwise serious tension between section 2 and constitutional principles. Prohibiting the electoral process from effectuating discriminatory animus is entirely consistent with the nation's commitment " ‘to confront its conscience and fulfill the guarantee of the Constitution’ with respect to equality in voting.’’ Bush v. Vera, 517 U.S. 952, 992, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (O’Connor, J., concurring) (quoting S.Rep. No. 417, at 4, reprinted in 1982 U.S.C.C.A.N. at 181). However, entitling a unified racial minority to elect a representative of its choice, even when the minority's electoral defeats have nothing to do with racial animus, creates an inappropriate inducement to vote according to race rather than ideas. If the Voting Rights Act is read to create a remedy where there is no proof in a particular case that past or present discrimination causes bloc voting, then the act arguably “threatens to carry us further from the goal of a political system in which race no longer matters — a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.” Shaw v. Reno, 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).