concurring in part and dissenting in part.
I write separately to express my disagreement with the reasoning and conclusion of the majority regarding section 2 of the Voting Rights Act. This case presents a voting rights challenge to the use of run-off primaries in elections for single-member offices, a procedure that without more does not dilute the opportunity of any group of voters to participate equally with other voters in the political processes leading to the nomination and election of public officials. Accordingly, I dissent.
Run-off primaries serve a basic principle of representative government: majority rule. States have always had the right to require that a majority of the voters support the winner of an election. While it is unquestionably true that run-off primaries combined with at-large elections or other dilutive electoral devices can produce discriminatory results, see Thornburg v. Gingles, 478 U.S. 30, 56, 106 S.Ct. 2752, 2769, 92 L.Ed.2d 25 (1986); City of Port Arthur v. United States, 459 U.S. 159, 167, 103 *1435S.Ct. 530, 535, 74 L.Ed.2d 334 (1983); Rogers v. Lodge, 458 U.S. 613, 627, 102 S.Ct. 3272, 3280, 73 L.Ed.2d 1012 (1982); White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973), no federal court has ever taken the position that run-off primaries standing alone violate section 2. Moreover, the only court ever faced with this issue reached the opposite conclusion. Butts v. City of New York, 779 F.2d 141 (2d Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986). Because of the importance of the principle underlying run-off primaries, their long history and the absence of authority for the position the court today adopts, I would require explicit direction from Congress before invalidating the use of run-off primaries standing alone.
Section 2 of the Voting Rights Act is less than explicit. It states that an electoral procedure violates the Act 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 [minority voters] in that [minority voters] 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) (1982).
Section 2 forbids two types of electoral procedures: restrictive procedures that prevent members of a minority group from voting and procedures that have the effect of diluting minority voting strength. Butts, 779 F.2d at 148. In this case we confront the issue whether the use of runoff primaries standing alone dilutes minority voting strength. This issue does not lend itself to easy analysis because the phrase “vote dilution” “suggests a norm with respect to which the fact of dilution may be ascertained.” Mississippi Republican Executive Comm. v. Brooks, 469 U.S. 1002, 1012, 105 S.Ct. 416, 422-23, 83 L.Ed.2d 343 (1984) (Rehnquist, J., dissenting from summary affirmance). No such norm exists.
The Senate Report accompanying the 1982 amendments to the Act set forth a list of “typical” factors relevant to the existence of a section 2 violation. S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Admin.News 177, 206-07. While the Supreme Court discussed these factors with approval in Thornburg v. Gingles, the Court nevertheless observed
that this list of typical factors is neither comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered. Furthermore, the Senate Committee observed that “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other. Rather, the Committee determined that “the question whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the ‘past and present reality,’ ” and on a “functional” view of the political process.
478 U.S. at 45, 106 S.Ct. at 2763-64 (citing S.Rep. No. 417, 97th Cong., 2d Sess. 29, reprinted in U.S.Code Cong. & Admin. News at 206-07) (footnote and citations omitted). In this case, the majority does not conduct a searching evaluation but simply adds up a number of factors and concludes that a violation has occurred. Moreover, the majority fails to recognize that the district court conducted an appropriate evaluation.
In analyzing the effect of the run-off primary on the nomination of black candidates, District Judge Eisele quoted from the work of Professor Harold Stanley:
The likelihood of black nominees gaining a plurality of the primary vote in a crowded field seems enticing enough to encourage some to argue for ending the runoff. However, in majority black districts — as supporters of the runoff point out — the lack of a runoff might cause several black candidates to split the black vote and allow a white candidate to gain a plurality nomination. Thus, the runoff can protect and promote black political prospects in majority black districts.
*1436Whitfield v. Democratic Party, 686 F.Supp. 1365, 1378 (E.D.Ark.1988) (quoting Stanley, Runoff Primaries and Black Political Influence, in Blacks in Southern Politics 259, 262-63 (1987)). Other commentators agree that invalidating the use of run-off primaries may hamper the ability of black voters to nominate their preferred representatives. McDonald, The Majority Vote Requirement: Its Use and Abuse in the South, 17 Urb.Law. 429, 437-38 (1985); Butler, The Majority Vote Requirement: The Case Against Its Wholesale Elimination, 17 Urb.Law. 441, 454 (1985). The able district judge cited evidence in the record to support his conclusion that the use of run-off primaries does not produce discriminatory effects: “The blacks have a voting age population majority in some of the Justice of the Peace districts in Phillips County. If two or more blacks chose to run in the primary and only one white, then the same possibility, i.e., of a minority white plurality nominee, would occur.” Whitfield, 686 F.Supp. at 1378. District Judge Eisele, residing in the state of Arkansas and familiar with its political processes, is in a far better position than we appellate judges to evaluate whether the run-off primary denies black voters an equal opportunity to nominate candidates of their choice.
Judge Eisele also reasoned that the existence of the run-off primary has the effect over time of easing racial polarization in voting. “[P]lurality-win statutes or rules promote racial polarization and separation. Run-off provisions promote communication and collaboration among the various constituencies by which coalitions are built.” Whitfield, 686 F.Supp. at 1386. In support of this statement, Judge Eisele observed:
For Democratic candidates, nomination rules that encourage the seeking of biracial support promote prospects for election. Retaining the runoff can lead to more black-white coalitions that back Democratic candidates who make successful biracial appeals. Courting and composing such biracial coalitions require a politics that is capable of reducing racial polarization, rather than reinforcing it. Such political cooperation between the races provides a more promising basis for collaboration on the eventual nomination and election of southern black candidates. On the other hand, eliminating the runoff where strong racial polarization exists — even if this would produce more black nominees (which seems unlikely) — should mean continued racial polarization....
Id. at 1386 (quoting Stanley, Runoff Primaries and Black Political Influence, in Blacks in Southern Politics 259, 264 (1987)). Racial polarization needs discouragement not enhancement. We should avoid any conclusion, such as the one the majority reaches today, that has the effect of continuing racial polarization in voting.
In addition to failing to recognize that the determination of a section 2 violation depends on a searching evaluation of the political process, the majority opinion contains a second flaw: none of the authority cited by the majority supports a conclusion that section 2 applies to run-off primaries standing alone. The majority refers to the Supreme Court’s recognition that majority voting requirements are “potentially dilu-tive electoral devices_” Thornburg v. Gingles, 478 U.S. at 56, 106 S.Ct. at 2769. But the Court in Gingles was referring to the use of majority vote requirements in connection with multi-member districts. The majority also refers to language in Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d 1201, 1212 (5th Cir.1989), that majority voting requirements “could serve to further dilute the voting strength of minorities.” The Westwego court, however, was remanding to the district court for a determination of whether an at-large voting scheme diluted the voting strength of minorities in violation of section 2. The Westwego court was merely recognizing that a majority vote requirement combined with an at-large voting scheme could dilute minority voting strength. Finally, the majority states that the Senate Report that accompanied the 1982 amendments identified a number of “dilution schemes,” including “majority run-offs_” S.Rep. No. 417, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News at 183. The quoted portion of the Senate Report, however, is *1437discussing section 5, dealing with pre-clearance of legislative efforts to undermine the Act. Section 5 is obviously not at issue here and the Arkansas legislature enacted the run-off primary law long before passage of the Voting Rights Act.
As stated earlier, the only court to address the use of run-off primaries reached a conclusion different from the one the majority reaches today. Butts v. City of New York, 779 F.2d 141 (2d Cir.1985). Butts involved a voting rights challenge to a New York statute that required a run-off primary if no candidate received more than 40% of the vote in the general primary. In holding that in the absence of dilutive electoral procedures the run-off primary at issue did not violate section 2, the court stated:
Whereas, in an election to a multi-mem-ber body, a minority class has an opportunity to secure a share of representation equal to that of other classes by electing its members from districts in which it is dominant, there is no such thing as a “share” of a single-member office. The distinction is implicit in City of Port Arthur v. United States, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982), where the Court struck down a run-off requirement that Port Arthur had appended to its at-large voting system for seats on the multi-member city council, but made no mention of a similar run-off requirement for the election of mayor. The latter run-off was not even challenged.
... The rule in elections for single-member offices has always been that the candidate with the most votes wins, and nothing in the Act alters this basic political principle. Nor does the Act prevent any governmental unit from deciding that the winner must have not merely a plurality of the votes, but an absolute majority (as where run-offs are required when no candidate in the initial vote secures a majority) or at least a substantial plurality, such as the 40% level required by § 6-162.
Id. at 148-49. The Butts rationale gives strong support to the district court’s perceptive and well-reasoned opinion.1
For all of the reasons given above, I would affirm.
. Judge (now Chief Judge) Oakes dissented in Butts, contending that while minority voters have no right to "a proportionate ‘share’ ” of a single member office, "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.” 779 F.2d at 155 (Oakes, J., dissenting). Judge Oakes further opined that a run-off election after an open primary would not violate section 2. Id. (Oakes, J., dissenting). In footnote 3 of its opinion, the majority reveals that in this case Arkansas law does not prohibit cross-party voting. Thus, the Butts dissent seems not to support the opinion of the majority.