concurring:
I write to emphasize that the Voting Rights Act, as amended, does not assure that candidates, by reason of race or color, should be elected in proportion to their percentage of the voting population at any given time. 42 U.S.C. § 1975(b) establishes no “right to have members of a protected class [be] elected in numbers equal to their proportion in the population.” The effect of our decision is to remand this case for the opportunity of the parties to develop evidence, including the results of the judicial election which plaintiffs unsuccessfully sought to enjoin.
The facts in Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012, reh’g denied, 459 U.S. 899, 103 S.Ct. 198, 74 L.Ed.2d 160 (1982), cited as a basis for plaintiffs having asserted a sufficient claim for constitutional relief differ markedly from the circumstances in this case. Decided after the Voting Rights Act was amended in 1982, Rogers discussed the historic racial deprivation of voting rights in a predominantly black rural Georgia county in deciding that constitutional relief was indicated for local at large offices in which no black had ever served. This complaint sets out a thin constitutional cause of action at best in comparison to Rogers. The study relied upon in this case by plaintiffs, a 1986 report of Lois M. Pelekondas, refers to four elections only, head-to-head, between white and black candidates in Hamilton County, Ohio, which was about 19% black in 1980, and 15.7% black in 1970. This report refers to a losing effort of a black judicial candidate in 1976, William McClain, who received 47.2% of the total votes cast in his race against Robert Gor-man, a white democrat. This would indicate that had McClain received all the black votes cast, he would still have received more than one-third of the white votes cast in that election, assuming that the vote was roughly proportional to the makeup of the electorate.1 This hardly comports with a bloc voting pattern prereq*283uisite in such cases. There is no allegation or evidence that a minority group was denied an equal opportunity to participate in the Hamilton County elections, which was determinative in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).
There is no allegation that the at large voting method was adopted by Hamilton County as a change from a prior district voting pattern, only that the City of Cincinnati judgeships merged with those of the County beginning in 1965. Yet Professor Pelekondas in her report indicated that the percentage of voters outside the City of Cincinnati in Hamilton County was less than 42% in 1960, the year of the last federal census taken before this change took place. This would scarcely indicate an intent on the part of Hamilton County officials to dominate or subjugate the minority population in Cincinnati by continuation of an at large judicial voting plan.
Only by giving plaintiffs the benefit of a very considerable doubt can it be said that they have set out a constitutional claim in this ease. They point to only four judicial elections since 1965 in which a black candidate faced a white candidate in a general election, and in two of those elections the black candidate received approximately 47% of the total vote. I doubt that these uncontested facts set out any basis for a fourteenth or fifteenth amendment claim.
I concur in the reasoning of Judge Lively’s opinion as it relates to the Voting Rights Act claim, and that our decision in Gilday v. Board of Education, 472 F.2d 214 (6th Cir.1972), does not control the constitutional claim.
. The Pelekondas report, in fact, shows that McClain received more than 40% of the votes in many of the more overwhelmingly white wards.