(dissenting):
I would not reach the question whether New York Election Law § 6-162 (1978), the primary run-off law, violated the Fourteenth or Fifteenth Amendments (although I have trouble with the district court’s finding that the law was enacted for discriminatory purposes under Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982)), because I believe that the district court properly found that the law does have a discriminatory effect so as to violate section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982).
In 1982 Congress added subsection (b) to section 2 of the Voting Rights Act to make explicit that section 2 could be violated by a showing of discriminatory effect as well as intent. As amended, section 2 reads as follows:
(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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
*152(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 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.
The statute thus frames the question for us as whether “based on the totality of circumstances” the primary run-off law causes a race- or color-based class of voters to “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” As the majority opinion correctly points out, at n. 5, it is the anticipated effect of the law with which we are concerned, see Gingles v. Edmisten, 590 F.Supp. 345, 363 (E.D.N.C.1984), prob. juris. noted sub nom. Thornburg v. Gingles, — U.S. -, 105 S.Ct. 2137, 85 L.Ed.2d 495 (1985), since discriminatory voting laws, by their very adoption, may affect minority political participation in subtle ways, e.g., by deterring minority candidates from seeking office.
The courts may consider as one circumstance the extent to which members of a protected class have been elected to the office(s) affected by the primary run-off law, and I note that no minority candidate has been elected to any of the three offices so affected (mayor, city council president, comptroller). While the law establishes no right to have members of a protected class elected in numbers equal to their proportion in the population, no one contends for such a right here. The legislative history of the 1982 amendment to section 2 spells out seven additional criteria or factors derived from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), which we may look to in making our overall determination:
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 [mentioned specifically in the statute].
S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Ad. News 177, 206-07 (footnotes omitted).
Two additional factors mentioned in the Senate Report are:
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.
*153whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Id. at 29, 1982 U.S.Code Cong. & Ad.News at 207 (footnotes omitted).
Judge Brieant, recognizing that it is the “totality of circumstances” that must be examined, and that the nine factors mentioned in the Senate Report are only “guidelines,” 614 F.Supp. 1527, 1543 (S.D.N.Y.1985), relied on the following factors mentioned in that report: (1) — history of past discrimination; (6) — racial appeals in campaigning; (2) — racially polarized voting; (7) — the extent to which candidates have held elective offices, particularly the offices affected by the law in question; and the “tenuous[ness]” of state policy. To a lesser, and more speculative, extent he relied also on factor (5). I think the district judge’s findings as to these points, set forth at 614 F.Supp. at 1544-48, speak for themselves, are supported by the evidence, and cannot be deemed clearly erroneous. I incorporate them by reference in this opinion.
The majority opinion discusses these findings so as to cast doubt on their validity. Its reference to past discrimination, however, does not take into account some of the litigation in this court, see, e.g., United Jewish Organizations v. Wilson, 510 F.2d 512, 516-17 (2d Cir.1975) (1972 redistricting in Bronx, Kings, and New York Counties running afoul of section 5 of the Voting Rights Act), aff'd sub nom. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). It also fails to demonstrate that Judge Brieant was clearly in error in finding that
historical evidence of past inequality when combined with evidence of lower socio-economic status and lower rates of voter registration, supports a finding that a plaintiff class member has less opportunity to nominate and elect a candidate of choice under a statute which requires a superplurality in the initial primary election (40%), or the burdens associated with running two primary campaigns.
614 F.Supp. at 1544-45 (factor 5 above referred to).
It is true that Judge Brieant’s reference to racial appeals in campaigning, 614 F.Supp. at 1545, referred only to the 1973 primary, but that was the only run-off primary involving a minority candidate for one of the three offices in question. Judge Brieant found “overwhelming[ ]” evidence that such appeals were made. Id. The majority opinion does not explain why the fact that these appeals could not be directly attributed to the minority candidate’s opponent should be of relevance. The important inquiry, as the trial court found, was that the racial appeals were made and “were made possible or gained strength due to existence of the short run-off period [of three weeks].” Id. The majority opinion does not mention this factual finding.
Judge Brieant’s findings of racially polarized voting, 614 F.Supp. at 1545-47, based as they are in substantial part on statistical regression analysis, which is the standard method of analysis of racially polarized voting, NAACP v. Gadsden County School Board, 691 F.2d 978, 983 (11th Cir. 1982); Gingles, 590 F.Supp. at 367 n. 29, are not mentioned, let alone challenged, in the majority opinion.1 All that is necessary *154is that racial and ethnic polarization and bloc voting exist to a significant degree; Judge Brieant so found, 614 F.Supp. at 1547. Any insistence on more comprehensive and extensive statistical evidence on prior elections for the offices at issue to prove racial bloc voting would effectively insulate voting schemes until the requisite number of elections had occurred in which there had been minority candidates and in which sufficient information was available upon which to base a valid statistical analysis. In this case there were three mayoral elections in the thirteen years between the passage of § 6-162 and Judge Brieant’s decision. While regression analysis was performed only for the 1977 mayoral election, according to Dr. Engstrom’s testimony, the information upon which to base a regression analysis was not available for 1973. In 1981 no minority candidate ran for mayor.
Judge Brieant recognized that minorities have had considerable electoral success in New York in non-city-wide contests. He balanced this against the striking fact that no minority candidate has been elected to an office where the law requires a run-off primary. In the absence of any minority success for the three offices in which this unique intermediate hurdle exists, the majority’s discussion of this finding — highlighting that “minorities have had considerable electoral success in New York City”— seems to me beside the point.
As to the tenuousness of the state policy found by Judge Brieant, the majority opinion refers principally to the trial judge’s reliance on discriminatory purpose. Even if one accepts that the run-off law was enacted with the most beneficent of purposes, however, it has a certain tenuousness. It applies to only one city in New York. It applies to only three offices, and then only to the party primary, not the general. election, so that while a party’s nominee must garner at least 40% of the party vote (or 50% in case of a run-off), he could become mayor with a significantly lower percentage of support. Finally, New York City is the only one of the seventeen largest cities in the United States with minority populations large enough to support a black or Hispanic mayoral candidacy, but not so large as fully to dominate the political scene, that has a run-off primary (as opposed to a run-off election used in twelve of such cities).2 I think it proper to consider the uniqueness or limited scope of an election law in determining “tenuousness,” and under this standard New York’s primary run-off law may properly be considered tenuous.
Because Judge Brieant’s factual findings are not clearly erroneous, I am obliged to approach the section 2 question from the factual premises of the district judge, a position which I apparently do not share with the majority. So approaching it, I face the interesting and difficult question *155posed by the majority: does the Voting Rights Act apply only to at-large elections or elections for multi-member bodies, and not to elections for single-member offices, or can there be “less opportunity ... to participate in the political process” when that process involves an election for a single-member office? With certain qualifications (such as the case of an office filled by a convention) not relevant here, the majority asserts that there cannot be less opportunity where there is a single-member office, because “[t]here can be no equal opportunity for representation within an office filled by one person.”
I believe the majority misses the point of the 1982 amendments to the Voting Rights Act. The Senate Report states,
As the Supreme Court has repeatedly noted, discriminatory election systems or practices which operate, designedly or otherwise, to minimize or cancel out the voting strength and political effectiveness of minority groups, are an impermissible denial of the right to have one’s vote fully count, just as much as outright denial of access to the ballot box.
S.Rep. No. 417, supra, at 28, 1982 U.S. Code Cong. & Ad.News at 205 (footnote omitted) (emphasis added).
The requirement that the political processes leading to nomination and election be “equally open to participation by the group in question” extends beyond formal or official bars to registering and voting, or to maintaining a candidacy.
As the Court said in White, the question whether the political processes are “equally open” depends upon a searching practical evaluation of the “past and present reality.”
Id. at 30, 1982 U.S.Code Cong. & Ad.News at 208 (footnote omitted) (emphasis added). The majority focuses on minority opportunity for “representation,” but ignores the statute’s and legislative history’s emphasis on opportunity to “participate.” There is simply nothing in the Act or the legislative history that would indicate a congressional intent to protect from scrutiny single-member office election laws, particularly when they contain unique provisions such as a party primary run-off, that may deny minorities an opportunity to participate equally. See id., 1982 U.S.Code Cong. & Ad. News at 207.
It is true that blacks and Hispanics have no right under the Act to a proportionate “share” of the offices of mayor, comptroller, or city council president. But they do have a right not to be subject to any structural process that under the totality of circumstances deprives them of equal opportunity to field a candidate for one of those offices. It is my view, as I believe it was the view of the district judge, that the run-off primary is such a process, because a run-off primary after an initial closed primary, followed by a general election, inevitably discriminates against minority voters in New York, even though I think a run-off election after an open primary, or a general election after a party primary, does not involve any more discrimination than is inherent in the size of the voting group, per the majority’s reasoning here.
By virtue of a run-off after a closed primary election, a bloc-voting white majority in what is for all practical purposes a one-party city such as the City of New York can keep a minority candidate off the ballot for the general election. Such a candidate has three hurdles to leap in order to win election — he must be among the top two finishers in the initial party primary (bloc voting would likely prevent him from reaching the 40% threshold that would enable him to avoid a run-off),3 he must win the run-off primary if he has not won 40% of the vote, and he must then win the general election. In the more usual case of a run-off election after an open non-party primary, there are only two hurdles to be jumped and a number of minority candidates in cities which have such a system have won election. As to New York City, *156we can easily hypothesize a scenario in which in a two-step election a non-white candidate wins a plurality in the Democratic primary and then attracts a sufficient number of the overwhelmingly Democratic electorate to defeat a white Republican rival for the mayoralty. Because of the third hurdle of a run-off in a closed primary — perhaps because of the brevity of time involved, the expense such a run-off involves, or the dynamics of a closed primary run-off, which the testimony showed tend to encourage racial polarization, or perhaps because of all three factors — the minority candidate is disadvantaged. In my opinion, such a disadvantage in a racial-bloc voting city already subject to the pre-clearance provisions of the Voting Rights Act, as New York is, is a violation of section 2 of the Act. Moreover, the run-off effectively converts the closed primary into a majority vote system. Although not a per se violation of the Act, majority vote requirements have been criticized in at-large systems for submerging racial minorities. See City of Rome v. United States, 446 U.S. 156, 183-84, 100 S.Ct. 1548, 1564-65, 64 L.Ed.2d 119 (1980); Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir.1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).
The district court found, at least implicitly, that each of the three factors flowing from a closed primary run-off affects minority political participation. Under New York Election Law § 8-100(l)(b) the runoff must be held within two weeks of the initial primary election. The time constraints require that the run-off campaign concentrate heavily on the media, which in turn significantly enhances the importance of campaign funding. See 614 F.Supp. at 1530-31, 1533, 1536. This need for funds in turn disadvantages minority candidates because they often lack access to large amounts of campaign funds. Id. at 1533. The dynamics of a run-off primary also exacerbate racial polarization. Id. at 1531-33. The district court apparently agreed with the opinions expressed by Basil Paterson, an elected State Senator and Lieutenant Governor and appointed Deputy Mayor of the City of New York and Secretary of State for the State of New York. Mr. Paterson’s testimony was summarized as follows by the district court:
Mr. Paterson added factual corroboration to the testimony of Mr. Badillo and Mr. Sutton concerning the need for campaign funds to purchase television time for a short runoff primary campaign. His testimony in essence was that television and other forms of media coverage have replaced party organizational support as the most important factor in a citywide campaign. (Tr. 174-75).
In 1985 Mr. Paterson considered the possibility of running for the Democratic nomination for the office of Mayor. He estimated that it would cost approximately $2.2 million to conduct a “reasonable campaign”, planning only on the basis of one primary and the general election. If a run-off primary were held, Mr. Paterson estimated that he would need an additional $.5 million. This estimate is reasonable.
Mr. Paterson discussed at length his opinions concerning the effect of the runoff primary law upon the candidacy of a minority member. He noted among other things that the history of run-off primaries or indeed any one on one election campaign conducted during a short period reveals that such a campaign is likely to be very intense, marked by a high emotional level experienced during the condensed period of time. Because insufficient time is allowed for debates or street electioneering or other traditional methods, the need for television time and the quick expenditure of large sums of money is overwhelming if a candidate is to prevail in the run-off. The short period of time allowed is insufficient to respond to new attacks on a candidate’s qualifications, position or platform and therefore such a campaign lends itself to dirty tactics, assuming there is such a thing as Marquis of Queensberry rules in politics. Furthermore, he expressed a *157firm view that voters in a one to one run-off election following such a short intense campaign are more likely to vote on racial lines.
614 F.Supp. at 1536. Taking that testimony as true, as I believe the district court did, the closed primary run-off election law of New York acts to discourage minority candidates from seeking office and lessens the chances for success of those who choose to run. In my opinion, such a result violates section 2 of the Voting Rights Act by having the effect of discouraging equal participation in the electoral process by minority voters and in lessening their opportunity to elect representatives of their choice. Accordingly, I dissent.
. I believe that a finding of racial-bloc voting is a "keystone” in a section 2 case, see, e.g., United States v. Marengo County Comm’n, 731 F.2d 1546, 1566-67 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984); see also United Jewish Orgs. v. Carey, 430 U.S. at 166 n. 24, 97 S.Ct. at 1010 n. 24. Although the evidence here is not overwhelming, the district court’s finding of racial-bloc voting cannot be deemed clearly erroneous. The judge relied on both statistical (regression analysis) and somewhat anecdotal evidence on city-wide (and state and national) elections from 1973 to 1984. The trial courts similarly relied on anecdotal and statistical evidence in City of Rome v. Georgia, 472 F.Supp. 221, 227 (D.D.C.1979), aff'd sub nom. City of Rome v. United States, 446 U.S. 156, 183-84 & n. 20, 100 S.Ct. 1548, 1564-65 & n. 20, 64 L.Ed.2d 119 (1980); and in Major v. Treen, 574 F.Supp. 325, 351 (E.D.La.1983). Other courts have found bloc voting by analyzing *154even fewer results. See, e.g., Latino Political Action Comm. v. Boston, 609 F.Supp. 739, 745 (D.Mass.1985) (two elections). The time period considered — 1973-1984—was almost as long or longer than that considered by other courts. See, e.g., Marengo County Comm’n, 731 F.2d at 1551-52 (1966-78); Gingles, 590 F.Supp. at 367 & n. 28 (1978-82, although 53 elections studied); Latino Political Action Comm., 609 F.Supp. at 745 (1983 only); Jordan v. City of Greenwood, 599 F.Supp. 397, 402 (N.D.Miss.1984) (1969-81). Nor was the district court’s discounted consideration of national or state issue elections improper. City of Rome, 472 F.Supp. at 227. Although the regression analysis did not show bloc voting to the extent found in some Southern areas, it was statistically significant.
The appellants challenge the court's failure to consider evidence of “cross-over” voting in local New York City elections. However, the district court’s finding that the willingness of white voters to vote for blacks for less visible and important positions is not probative on how whites vote in city-wide elections does not appear to be clear error. The contention that plaintiffs must demonstrate why voters voted racially should be rejected, as this would render Congress's amendment of section 2 inoperative by again making the proof burden insurmountable. Thus, the court’s finding of racial polarization was not clear error, nor were improper legal standards applied. Compare Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1481 (11th Cir.1984) (Wisdom, J.).
. This information is set forth in Attachment C to the amicus brief of Citizens Union of the City of New York submitted in support of reversal of Judge Brieant’s decision.
. Judge Brieant noted that a 30% level might pass muster. 614 F.Supp. at 1556. I do not reach that question.