Harvell v. Blytheville School District 5

___________

No. 93-1009
___________

Shirley M. Harvell; Emmanuel *
Lofton, Reverend; Hattie *
Middlebrook; Mary Alice Jones; *
Jacquelin Henton, *
*
Appellants, *
*
v. *
*
Blytheville School District #5, *
A Public Body Corporate; *
William Tomlinson, Individually *
and as Board Member; Norvell *
Moore, Individually and as *
Board Member; William Sullivan, * Appeal from the United States
Individually and as Board * District Court for the
Member; Harold Sudbury, Jr., * Eastern District of Arkansas.
Individually and as Board *
Member; Helen Nunn, *
Individually and as Board *
Member; Karen Fraser, *
Individually and as Board *
Member; Steve Littrell, *
Individually and as Board *
Member; William Stovall, III, *
also known as Bill Stovell, *
Individually and Board Member; *
Blytheville School District *
#5, Board of Directors; Dr. *
Frank Ladd, Individually and in *
his official capacity as *
Superintendent of Blytheville *
School District No. 5, *
*
Appellees. *

___________

Submitted: April 13, 1995

Filed: December 5, 1995
___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, FAGG, BOWMAN,
WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
and MURPHY, Circuit Judges, En Banc.
___________
WOLLMAN, Circuit Judge.

Shirley Harvell and other voters filed suit in 1989, challenging the
election procedure for school board members in the Blytheville, Arkansas,
school district as violative of Section 2 of the Voting Rights Act, 42
U.S.C. § 1973 ("VRA"). The district court dismissed the complaint, finding
that Harvell failed to set forth a prima facie violation of Section 2.
Harvell v. Ladd, 759 F. Supp. 525, 529-30 (E.D. Ark. 1991). We reversed
and remanded to the district court for further findings concerning the
factors set forth in Thornburg v. Gingles, 478 U.S. 30, 36-37 (1986).
Harvell v. Ladd, 958 F.2d 226, 230 (8th Cir. 1992). On remand, the
district court again dismissed the complaint because it found that Harvell
failed to establish that the unsuccessful black candidates were the
minority's preferred candidates. We again reversed in part the district
court's subsequent decision following remand, but affirmed its denial of
sanctions against Harvell. Harvell v. Blytheville Sch. Dist. #5, 33 F.3d
910 (8th Cir. 1994). We subsequently agreed to rehear the case en banc and
vacated the panel opinion. We now reverse the decision of the district
court in part and affirm the denial of sanctions.

I.

The underlying facts of this dispute are set out in detail in our
earlier opinions. The voting age population of the Blytheville school
district is 14,500, of which 70% is white and 29% black.1 Each member of
the eight member at-large school board serves a four-year term, and two
terms expire each year. Historically,

1
These are the 1980 census figures that were used at trial.
According to the 1990 census, the Blytheville school district has
a total population of 23,057, of which approximately 37% are black
and 62% white, but we do not have the relevant voting age
populations before us.

-2-
school board elections were determined by a plurality vote. In 1987,
however, the Arkansas legislature altered the voting scheme for school
board elections from one of plurality to one of majority, which would
occasion the need for a run-off election between the voter-preferred
candidates in the event that no candidate was able to garnish a majority
of the voters in the initial election. Ark. Code. Ann. § 6-14-121. All
winning candidates since 1987 have been elected by a majority of votes cast
in the first round. Following two elections under this scheme Harvell
filed suit. None of six separate black candidates has defeated a white
candidate in eight attempts following the 1987 election, although Dr. Helen
Nunn was reseated without opposition in 1990.2

II.

To mount a successful challenge to multi-member districts under
Section 2,3 a plaintiff must initially satisfy the three preconditions
delineated in Gingles. These preconditions are 1) that the minority group
is large enough and geographically compact enough that it would be a
majority in a single-member district; 2) that the minority group is
politically cohesive; and 3) that the white majority votes sufficiently as
a bloc to enable it, in the absence of special circumstances, usually to
defeat the minority's preferred candidate. 478 U.S. at 50-51. Gingles
also set forth nine non-exclusive factors mentioned in the Senate report
accompanying the VRA to assist in determining whether, under the totality
of the circumstances, a challenged electoral scheme dilutes the minority
vote. These include (1) the history of

2
Appendix I contains the vote breakdown by candidate for each
election in which a black candidate has run.
3
This vote dilution claim is "analytically distinct" from a
challenge to voting districts on equal protection grounds. Miller
v. Johnson, 115 S. Ct. 2475, 2485 (1995) (quoting Shaw v. Reno, 113
S. Ct. 2816, 2830 (1993)).

-3-
voting-related discrimination in the state or political subdivision; (2)
the extent to which voting in the state or subdivision is racially
polarized; (3) the extent to which the state or subdivision has used voting
practices or procedures that tend to enhance opportunities for
discrimination against the minority group; (4) whether minority candidates
have been denied access to any candidate-slating process; (5) the extent
to which minorities have borne the effects of past discrimination in
relation to education, employment, and health; (6) whether local political
campaigns have used overt or subtle racial appeals; (7) the extent to which
minority group members have been elected to public office in the
jurisdiction; (8) whether there is a significant lack of responsiveness on
the part of elected officials to the particularized needs of members of the
minority group; and (9) whether the policy underlying the use of voting
qualifications is tenuous. 478 U.S. at 36-37.

We must analyze the elements of a Section 2 case in context,
according deference to the district court where necessary and applying
legal constructs where appropriate. The district court's findings
regarding the factual context giving rise to the claim are reviewed for
clear error. See Gingles, 478 U.S. at 78-79. But the legal conclusions
it employs, "including those that may infect a so-called mixed finding of
law and fact, or a finding of fact that is predicated on a misunderstanding
of the governing rule of law," are subject to plenary review. Id. at 79
(quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984).

The district court found that Harvell established the first two
Gingles preconditions at trial. The school district does not contest these
findings of geographic compactness and political cohesiveness. We
therefore accept them as established. The district court also found that
voting in the school board elections is racially polarized. Harvell, 759
F. Supp. at 527-28. This undisputed finding is borne out by the record and
weighs heavily in

-4-
favor of finding the third Gingles precondition established. Jeffers v.
Clinton, 730 F. Supp. 196, 205 (E.D. Ark. 1989) (three-judge court), aff'd
mem., 498 U.S. 1019 (1991); Smith v. Clinton, 687 F. Supp. 1310, 1314-15
(E.D. Ark. 1988) (three-judge court) see Collins v. City of Norfolk, 816
F.2d 932, 935 (4th Cir. 1987) (existence of polarization establishes the
power of white bloc voting). The district court found, however, and the
school district contends, that the low voter turnout sufficiently indicates
that the minority candidates in the elections from 1988 to 1992 were not
preferred by the minority voters and precluded Harvell from satisfying the
third Gingles precondition. Harvell asserts, and we agree, that the
district court misapprehended the definition of who is eligible for
"minority-preferred candidate" status and that the evidence establishes
that the candidates in those elections were in fact the minority-preferred
candidates.

We do not categorically state that a candidate is the minority-
preferred candidate simply because that candidate is a member of the
minority. Such stereotyping runs afoul of the principles embodied in the
Equal Protection Clause. See Miller, 115 S. Ct. at 2486 (state assignment
of voters on basis of racial assumptions is "offensive and demeaning").
But see Jenkins v. Red Clay Consol. Sch. Dist Bd. of Educ., 4 F.3d 1103,
1126 (3d Cir. 1993) (stating that "practical experience leads to the
inference that any particular minority candidate is minority-preferred"),
cert. denied, 114 S. Ct. 2779 (1994). Accordingly, such an inference is
insufficient to establish that any particular candidate is minority-
preferred. The preferences of the minority voters must be established on
an election-specific basis, viewing all the relevant circumstances. See
Jenkins, 4 F.3d at 1126.

The record makes clear in this case that the race of a candidate is
by far the determinative factor in minority voting patterns in Blytheville
school board elections. Harvell's regression analysis strongly supports
the conclusion that those

-5-
black candidates who did run in the elections from 1988-1992 were in fact
the minority-preferred candidates.4 See id. (inference derived from
candidate's race combined with statistical evidence of voting patterns is
sufficient to establish minority preference); Clarke v. City of Cincinnati,
40 F.3d 807, 810 n.1 (6th Cir. 1994) ("[C]ourts generally have understood
blacks' preferred candidates simply to be those candidates who receive the
greatest support from black voters."), cert. denied, 115 S. Ct. 1960
(1995); see also Jeffers, 730 F. Supp. at 208 (noting race-conscious voting
behavior of Arkansans). The school district does not contest this
statistical evidence and offers no other evidence to contradict the
statistical preference. The consistency of the data over time lends
additional support to this conclusion. Gingles, 478 U.S. at 57.

There may be situations in which voter apathy may be linked to
disapproval of a particular candidate, but there is no indication that such
is the case here. The silence of the minority voters is not so deafening
as to warrant a finding that they disapproved of six different minority
candidates in light of the uncontroverted statistical evidence that
supports a finding of overwhelming support from those blacks who did vote.
Nor are the numbers so low as to reduce their statistical significance to
a nullity. Speculation regarding reasons for low minority turnout is
inappropriate. Gomez v. City of Watsonville, 863 F.2d 1407, 1415-16 (9th
Cir. 1988) (looking at actual voting patterns to determine political
cohesion rather than turnout rates), cert. denied, 489 U.S. 1080 (1989).
The school district's interpretation of the low turnout underestimates the
legal significance of the years of polarized voting evident in the
Blytheville school board elections. See Gingles, 478 U.S. at 57; see also
Clark v. Calhoun County, 21 F.3d 92, 96 (5th Cir. 1994) (ability of
majority to defeat the

4
Appendix II contains the results of Harvell's expert
statistical evidence.

-6-
minority-preferred candidate is "ordinarily established through evidence
of racially polarized voting"). Similarly, the related natures of
cohesiveness, polarization, and bloc voting demonstrate the incongruity of
any reliance on low voter turnout in this case. See Clark, 21 F.3d at 96;
Jenkins, 4 F.3d at 1133 n.32 (discussing relation between political
cohesiveness and the minority-preferred candidate); Collins v. City of
Norfolk, 883 F.2d 1232, 1237 (4th Cir. 1989) (polarization relevant to
determination of cohesiveness and whether white bloc voting defeats
minority-preferred candidates); Collins, 816 F.2d at 935 ("[T]he existence
of racially polarized voting . . . establishes both cohesiveness of the
minority group and the power of white bloc voting to defeat the minority's
candidates.") (emphasis omitted); see also Gingles, 478 U.S. at 52 n.18
(noting interchangeable use of polarization and bloc voting); United States
v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir.) ("The surest
indication of race-conscious politics is a pattern of racially polarized
voting."), cert. denied, 469 U.S. 976 (1984). The fact that black
candidates have lost universally in contested post-1987 elections cannot
be explained away simply on the basis of the black electorate's
dissatisfaction with its candidates. In the face of the finding of
consistent polarization, a legally significant white cross-over vote does
not exist under the current election scheme. Cf. Cane v. Worcester County,
35 F.3d 921, 926 (4th Cir. 1994) (finding average 19% white crossover vote
insufficient to salvage at-large, one-on-one election scheme under the
facts of that case), cert. denied, 115 S. Ct. 1097 (1995).

That some minority-preferred candidates did achieve electoral success
under the old system does not necessitate a finding that those minority
candidates who do not now succeed are not the minority's preferred
candidates, particularly when no candidates in these elections received
greater minority voter support. Moreover, we should not require as a
condition to a finding of minority-preferred status heroic, mythic
qualities of candidacy better

-7-
suited to a romantic view of the electoral process than to the rough-and-
tumble world of contested elections. Much as the relevant population is
the population able to vote, see African Am. Voting Rights Legal Defense
Fund, Inc. v. Villa, 54 F.2d 1345, 1352 (8th Cir. 1995), the relevant
candidate should generally be one able to receive those votes, not some
idealized figure whose absence from the ballot keeps a disappointed
electorate at home. Under the school district's proffered view, the black
voters of Blytheville have gone five consecutive years, six candidates, and
eight campaigns without stating a preference, a proposition we cannot
accept.

There are a number of factors in addition to the statistical data
that indicate that the district court's reliance on low turnout is too
speculative. Low voter turnout can be explained by any number of socio-
economic factors, or may be explained by unabashed voter apathy. It does
not, however, lend itself so easily to an inference of a sub silentio
predisposition against any particular minority candidate. Not only were
the minority turnouts low, but voter turnout as a whole for these elections
has been historically low. Additionally, we note that following the change
in the law the average vote totals declined for both white and minority
candidates, although much more precipitously for black candidates. In
light of the fact that low voter turnout has often been considered the
result of the minority's inability to effectively participate in the
political process, see Gomez, 863 F.2d at 1416 n.4; United States v. Dallas
County Comm'n, 739 F.2d 1529, 1538 (11th Cir. 1984), it stands to reason
that when an external stimulus dampens the white turnout it may impact even
more greatly on a group that has faced historic disadvantages.5

5
We further note that in 1990 the polling place of a precinct
known as a historic black voter stronghold was moved to a
predominantly white area. Although there is no evidence that this
move was predicated on an attempt to suppress the black vote, our
inquiry looks to the effect of voting practices on equal political
opportunity rather than to their intent, see Chisom v. Roemer, 501
U.S. 380, 383-84 (1991); Jeffers, 730 F. Supp. at 203-04, and the
1990 election produced a record low black voter turnout for that
particular precinct.

-8-
 Similarly, black voters need have only looked at their plurality
successes in 1974 and 1975 to realize that they faced a much lower
possibility of success under the present scheme. This may also account for
the lower turnout. Finally, varying election dates, the number of seats
up for election, and the presence or absence of other ballot issues that
may draw the electorate to the polls also have an impact on turnout. Such
considerations have no bearing on whether the candidates who ran were or
were not the minority-preferred candidates. Indeed, there are so many
possibilities for explaining the low turnouts that selecting any one in
this case is purely impermissible speculation.

Nor can we accept the school district's attempts to characterize the
unsuccessful candidates as militant fringe candidates who disenfranchised
themselves from the black community. There is no evidence in the record
that the minority community viewed any of the six different candidates as
in any way inadequate representatives of its interests. In the absence of
any such evidence, the countervailing voting patterns conclusively rebut
these denigrations.

The school district relies heavily on the historical fact of
proportional or near proportional representation of the black population
on the school board as evidence of the election scheme's validity. At the
outset we note that proportional representation is an important factor to
consider in evaluating the validity of an electoral process. It is not,
however, the statutory touchstone, and does not provide an absolute safe
harbor in which a defendant can seek refuge from the totality of the
circumstances. See

-9-
Johnson v. De Grandy, 114 S. Ct. 2647, 2660-61 (1994);6 Barnett v. Daley,
32 F.3d 1196, 1202 (7th Cir. 1994); see also Zimmer v. McKeithen, 485 F.2d
1297, 1307 (5th Cir. 1973) (listing possible explanation for success at the
polls despite vote dilution), aff'd sub nom., East Carroll Parish Sch. Bd.
v. Marshall, 424 U.S. 636 (1976). Just as proportional representation is
not mandated under Section 2, it also does not preclude finding a
violation, because racial reference points do not necessarily reflect
political realities. See De Grandy, 114 S. Ct. at 2661-62 & n.17
(probative value of proportionality varies with the facts). Similarly, the
white majority has no right under Section 2 to ensure that a minority group
has absolutely no opportunity to achieve greater than proportional
representation in any given race.

The proportional representation on which the school district relies
rests on infirm ground. The electoral success that black candidates
achieved under the plurality system is no longer present. No black
candidate has won a contested election since the change in the law. The
district contends that none of those candidates would have won under a
plurality system either, thus proving that the majority vote requirement
is not to blame, and further requiring us to weigh heavily the historic
successes of black candidates in rejecting Harvell's complaints. This sort
of back-to-the-futurism on the part of the school district cannot withstand
analysis, for if we control the results of the elections prior to 1988 with
the majority vote requirement, it becomes plain that no proportional
representation would have occurred in the past. Both the 1974 and 1975
elections would have gone to white

6
De Grandy resolved a claim involving "proportionality," which
"links the number of majority-minority voting districts to minority
members' share of the relevant population." 114 S. Ct. at 2658
n.11. Here, because we address a claim involving a single at-large
district, the analyses between proportionality and proportional
representation are essentially the same. Cf. Villa, 54 F.3d at
1352-53 n.10 (distinguishing proportional representation in case
involving proportionality claim and single-member districts).

-10-
candidates under this scenario; thus, Norvell Moore would have never won
initially to enable him to serve multiple terms as a mostly unopposed
incumbent. Dr. Nunn's 1982 victory would have provided the only successful
black candidate in Blytheville history had the current scheme been in place
then. Such success does not indicate substantial minority voting strength,
nor does it indicate the presence of a consistent, legally significant
white cross-over vote.

Further, even accepting the historical effects of the plurality
element, most of the elections won by black candidates were done so as
incumbents in the face of no opposition. This is precisely the type of
special circumstance recognized in Gingles as not vitiating any element of
the claim. 478 U.S. at 51. Even in an extreme case of total vote dilution
a candidate running in the face of no opposition is ensured success. The
two instances in which a black candidate beat a white candidate head-to-
head involved Moore's 23-vote victory as a three-term incumbent7 against
a candidate who was not even the white majority's preference as a previous
candidate, and Dr. Nunn's election in 1982. So in the final analysis, when
those campaigns involving readily apparent special circumstances are
removed, black candidates still have won only one election in thirteen
attempts since 1969, fitting precisely in the Gingles test as to whether
the white majority does indeed vote "sufficiently as a bloc to enable it
. . . usually to defeat the minority's preferred candidate." Gingles, 478
U.S. at 51.

7
We agree that incumbency is the least "special" of the
special circumstances, compare Clarke, 40 F.3d at 813-14 (de-
emphasizing incumbency element) with Collins, 883 F.2d at 1243
(emphasizing the importance of incumbency), but accept its
potential as such and view this election as a special circumstance
because of the multiple incumbency, board composition, and
opposition involved.

-11-
 We emphasize that we are not assessing the validity of the law that
existed prior to 1988. It no longer exists, and its legitimacy is
inconsequential. The election results under that scheme and the type of
representation they yielded, however, are relevant to our inquiry to the
extent that the past political reality sheds light on the totality of the
circumstances of the present scheme. Proportional representation may well
have sufficed to protect the former scheme from a Section 2 claim, but the
truth of the current system is that minority candidates face substantial
impediments to election8 that are too stark for us to dismiss their
attendant results as mere happenstance. It is a system that allows only
for victory of majority-preferred minority candidates. In essence, any
minority serving on the board does so at the sufferance of the majority --
a hollow proportional representation indeed when the minority must rely on
majority benevolence to ensure the adequacy of its representation. A
system that works for minorities only in the absence of white opposition
is a system that fails to operate in accord with the law.

Satisfaction of the necessary9 Gingles preconditions carries a
plaintiff a long way towards showing a Section 2 violation, Jenkins, 4 F.3d
at 1116 n.6, 1135; see Clark, 21 F.3d at 97, but in the final analysis
Harvell must still show that the challenged

8
In its petition for rehearing the district pointed out that
another black person has been appointed to the school board, once
again bringing representation into proportion with the black
population. This appointment is irrelevant to the ability of black
voters to elect the representatives of their choice. Nor does his
unopposed reseating in 1993 convince us of the soundness of the
election scheme.
9
The Supreme Court hedged slightly on this notion in De
Grandy, at one point calling the preconditions "generally
necessary." 114 S. Ct. at 2657. The preeminence of these
preconditions in the totality analysis has consistently been
recognized in recent opinions by the Supreme Court, however, see
Voinovich v. Quilter, 113 S. Ct. 1149, 1157-58 (1993); Growe v.
Emison, 113 S. Ct. 1075, 1083-85 (1993), and we continue to accord
them their deserved primacy.

-12-
electoral scheme provides minority voters "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 totality
of the circumstances on the record before us establishes that dilution.
See Gomez, 863 F.2d at 1411 (remand not necessary when the record "permits
only one resolution of the factual issue" (quoting Pulman-Standard v.
Swint, 456 U.S. 273, 287 [sic; 292] (1982))).

The two primary factors considered in our totality analysis are the
extent to which voting is racially polarized and the extent to which
minorities have been elected under the challenged scheme. Gingles, 478
U.S. at 48-49 n.15. As we have discussed, voting practices in the school
board elections are highly polarized. There also has been only minimal
electoral success under the present scheme, with Dr. Nunn's unopposed
reseating as an incumbent in 1990 representing the only minority victory
in nine attempts.

The remaining totality factors, although not essential to Harvell's
claim, see id., support our conclusion that Harvell has identified a
Section 2 violation. No one party to the litigation denies the long
history of racial discrimination in the electoral process in Arkansas. See
Perkins v. City of West Helena, 675 F.2d 201, 211 (8th Cir.), aff'd mem.,
459 U.S. 801 (1982). It is true, as noted by the district court, that
strides have been made since the dawn of the civil rights movement, but
Arkansas remains by no means idyllic for black voters. Jeffers, 730 F.
Supp at 204. We conclude that the district court did not accord sufficient
weight to the vestiges of that history. See Westwego Citizens for Better
Gov't v. City of Westwego, 872 F.2d 1201, 1211-12 (5th Cir. 1989). So too,
the recognized historic effects of discrimination in the areas of health,
employment, and education impact negatively on minority political
participation. The majority vote requirement, staggered terms, and at-
large structure also tend to suppress minority voters' influence. See De
Grandy, 114 S. Ct. at 2660-61;

-13-
Collins, 883 F.2d at 1236 (at-large system and staggered terms susceptible
of diluting minority votes). The manner in which those black candidates
who were elected managed to obtain and retain their seats attenuates the
district's reliance on proportional representation, and similarly heightens
our concern over the new election scheme, which while retaining the at-
large structure,10 removes the potential for winning on the basis of a
split white vote.

No evidence of a candidate-slating process was adduced, nor was any
evidence of racial appeals presented, but the presence of such insidious
accoutrements is unnecessary in situations where the process controls the
result, and their absence does not preclude finding a Section 2 violation.
Further, the district court's finding that the school board was not
unresponsive to the minority community was predicated on its belief that
because those black candidates who did serve on the board were the
minority-preferred candidates, those who did not win election to the board
must have been rejected by black voters as potentially less responsive.
Our earlier discussion of the minority-preferred candidate status counters
that proposition. Even accepting the finding of responsiveness as not
clearly erroneous, however, it is similarly insufficient to counter the
other factors that censure this scheme. See Westwego Citizens for Better
Gov't v. City of Westwego, 946 F.2d 1109, 1123 (5th Cir. 1991).

The totality of the circumstances on this record leaves us with the
firm conviction that the Blytheville school board electoral scheme is
institutionally restrictive, thereby creating

10
Following our decision in the first appeal in this case, the
Arkansas legislature amended its school board election law to
require seven single-member districts, or five single-member
districts and two at-large representatives in all school districts
having a minority population of 10% or more. If a school district
has been found to not be in violation of the VRA, it is excepted
from this provision. Ark. Code Ann. § 6-13-631.

-14-
"an inequality in the opportunities enjoyed by black and white voters to
elect their preferred representatives." Gingles, 478 U.S. at 47. Racial
polarization effectively cripples minority attempts to effect
representation on the school board in the absence of the fortuity of white
voter acquiescence. The fact that the current school board election system
is less accessible to minority participation than that of ten or twenty
years ago runs contrary to the intent and standard of Section 2.

The Supreme Court's recent redistricting decision in Miller does not
alter our analysis of the Gingles factors or our ultimate decision in this
appeal. Miller analyzed the equal protection problems involved in drawing
voting districts along race-based lines, but did not purport to alter our
inquiry into the vote-dilution claim. See 115 S. Ct. at 2485-86. We do,
however, sound a cautionary note to the district court on remand to steer
clear of the type of racial gerrymandering proscribed in Miller, while
keeping in mind the need to vindicate the rights of the minority voters.

Our holding that plaintiffs are entitled to relief on their claim
perforce forecloses defendant's application for sanctions pursuant to Fed.
R. Civ. P. 11 and attorneys' fees pursuant to 42 U.S.C. § 1988.

The judgment is affirmed in part and reversed in part, and the case
is remanded to the district court for the entry of an appropriate remedial
decree.

LOKEN, Circuit Judge, with whom BOWMAN, MAGILL, BEAM, and MORRIS
SHEPPARD ARNOLD, join, dissenting.

In my view, the court relies upon inadequate and unreliable
statistical evidence to justify disregarding "consistent and sustained
success by [African-American] candidates [that] is

-15-
presumptively inconsistent with the existence of a § 2 violation."
Thornburg v. Gingles, 478 U.S. 30, 102 (1986) (O'Connor, J. concurring).
Therefore, I respectfully dissent.

A. Insufficient Evidence of Racially Polarized Voting

The district court found that plaintiffs failed to prove the third
Gingles precondition, that the white majority in the Blytheville School
District "votes sufficiently as a bloc to enable it -- in the absence of
special circumstances . . . usually to defeat the minority's preferred
candidate." 478 U.S. at 51. To qualify as "legally significant white bloc
voting," the Supreme Court explained in Gingles, the white vote must be
sufficiently polarized that it will "normally . . . defeat the combined
strength of minority support plus white 'crossover' votes." 478 U.S. at
56. In overturning the district court's ultimate finding that the third
precondition was not proved, this court relies primarily on a subsidiary
finding that voting in Blytheville School Board elections has been "highly
polarized." Ante at 13. That is a clearly erroneous finding, improperly
made in the first instance by this court, not the district court.

At trial, plaintiffs relied on statistical analysis by their expert,
James R. Lynch, a Senior Research Specialist in the Institute of Government
at the University of Arkansas at Little Rock. As Appendix I reflects,
Lynch submitted District-wide vote totals for every Blytheville School
Board election from 1969 to 1992 that included an African-American
candidate. He also presented vote totals by voting district for ten of
those elections, in 1982, 1987, 1988, 1989, 1990, and 1991. Beyond that,
all of Lynch's data were in percentage form. He calculated the black
voting age population percentage ("BVAP") for each voting district, based
on 1980 census data. He calculated the percent of the vote captured by
African-American candidates in each voting district in the ten selected
races. He then employed a

-16-
"correlation coefficient" to conclude that there was an "overwhelming
relationship . . . between BVAP and the percent of vote that the black
candidates got." See Appendix II. Lynch did not perform an extreme case
analysis or a complete bivariate ecological regression analysis, methods
the Supreme Court noted are "standard in the literature for the analysis
of racially polarized voting." Gingles, 478 U.S. at 53 n.20. Thus, the
record here contains far less probative statistical data than was developed
in other recent Voting Rights Act cases such as National Ass'n for the
Advancement of Colored People, Inc. v. City of Niagara Falls, 65 F.3d 1002,
1005-06 & nn. 2-4 (2d Cir. 1995), and Clay v. Board of Educ., 896 F. Supp.
929, 934-36 (E.D. Mo. 1995).1

Lynch's statistical analysis was more than inadequate, it was faulty.
His most serious mistake was in equating racially cohesive voting and
racially polarized voting, an equation contrary to Gingles. Racial
cohesiveness and racial polarization are elements of different Gingles
preconditions. Political cohesiveness is the second Gingles precondition
-- "a showing that a significant number of minority group members usually
vote for the same candidates." 478 U.S. at 56. I agree with the court that
Lynch's data tend to show that African-American voters have been
politically cohesive in recent Blytheville School Board elections.

Racial polarization, however, is the essential component of the third
Gingles precondition -- a pattern of white bloc voting that permits the
majority usually to defeat the minority's preferred candidates, thereby
diluting the minority's vote. Racial polarization requires a focus on
whether "black voters and white

1
In addition, Lynch was not a properly qualified expert. He
disclaimed expertise in statistics. He described the correlation
coefficient as "simply a technique which one can employ." He could
not explain his use of the "R square" factor, and he did not even
attempt to explain the "F value" by which he purported to find
statistical significance. It is doubtful that his statistical
analysis and opinions were even admissible under Fed. R. Ev. 702.

-17-
voters vote differently." Gingles, 478 U.S. at 53 n.21; Clay, 896 F. Supp.
at 935-36. In making findings of racial polarization, "we rely primarily
on actual events and practical politics." Jeffers v. Clinton, 730 F. Supp.
196, 208 (E.D. Ark. 1989), aff'd, 498 U.S. 1019 (1991). Therefore, in
measuring this factor, elections under a prior electoral system, elections
in which there was no African-American candidate, the size and influence
of the white crossover vote, and the strength of a minority preferred
candidate's support become relevant. See Niagara Falls, 65 F.3d at 1012-
17; Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281,
1293 (11th Cir. 1995) (plaintiffs' expert's analysis flawed because he only
analyzed elections involving a minority candidate), petition for cert.
filed, 64 U.S.L.W. 3318 (U.S. Oct. 12, 1995) (No. 95-647). For the most
part, plaintiffs did not gather such data, and what there is in the record
they urge us to ignore.

The district court's finding of "racially polarized" voting reflected
Lynch's analytical error:

The testimony of Mr. James Lynch at trial, based on
analyzing past elections and voting patterns, established that
voting in the School District is racially polarized in that
usually the majority of black voters vote for black candidates
and the majority of white voters vote for white candidates.

Harvell, 759 F. Supp. at 527-28 (emphasis added). This is simply a
mislabeled finding of political cohesiveness, the second Gingles
precondition. This court then converts that limited finding into a far
broader finding of "highly polarized" voting. A brief review of the
undisputed facts demonstrates that the record will not support this
additional finding:

! From 1975 until 1991, two of the eight School Board members were
African-Americans. Until Norvell Moore, a four-term incumbent, elected not
to run in 1991, the 29% African-American

-18-
voting age minority had succeeded in electing 25% of the School Board for
sixteen straight years, under an entirely at-large election system.
Presumptively, therefore, racially polarized white bloc voting has not
unlawfully diluted the minority's vote.
! In 1982, two African-American candidates each ran against a single
white opponent. Dr. Helen Nunn won, receiving 33% of the votes in
precincts having more than an 80% white voting age population. Incumbent
Ayre Lester received 19% of the votes in those precincts and lost. In
1987, Norvell Moore ran head-to-head against a white opponent. Mr. Moore
received 46% of the votes in those predominantly white precincts and won.
This is undeniable evidence of legally significant, continuing white
crossover voting. Yet it was not assessed by the district court because
Lynch did not know the difference between racially cohesive voting and
racially polarized voting. This court then compounds that legal error with
the question-begging observation that white crossover voting cannot be
legally significant because there has been a finding of "consistent
polarization." Ante at 7.

! Plaintiffs' analysis relies on the fact that African-American
candidate Shirley Harvell received 79% of the votes cast in 1990 in the
predominantly minority Robinson Elementary School voting district. But
Harvell received only 63 votes from that district, whereas Dr. Nunn
received 247 votes from that district in her 1982 victory, and Mr. Lester,
who barely lost in 1982 despite being in very poor health, received 227
votes at Robinson Elementary School. Without knowing the size of the
voting age population of each district, as well as its percentage of
minority voters, we cannot assess whether white bloc voting was the likely
cause of Harvell's defeat.

The Supreme Court recently cautioned that "'minority political
cohesion' and 'majority bloc voting' showings are needed to establish that
the challenged districting thwarts a distinctive

-19-
minority vote by submerging it in a larger white voting population. Unless
these points are established, there neither has been a wrong nor can be a
remedy." Growe v. Emison, 113 S. Ct. 1075, 1084 (1993) (citation and
footnote omitted). This court has improperly transformed the district
court's finding that most voters vote for candidates of their own race into
a blanket assumption that racially polarized white bloc voting usually
prevents the election of minority preferred candidates. The record will
not support that appellate court finding. Compare Magnolia Bar Ass'n, Inc.
v. Lee, 994 F.2d 1143, 1148-50 (5th Cir.) (where African-American
candidates won two high profile elections with 58% and 30% of the white
vote, no clear error in finding the third precondition not satisfied
despite expert's testimony that white bloc voting was legally significant
and these elections were aberrational), cert. denied, 114 S. Ct. 555
(1993).

B. Minority Preferred Candidates Are Not Usually Defeated

The third Gingles precondition also requires proof that white bloc
voting usually will defeat "the minority's preferred candidate."2 The
court finds that all losing African-American candidates since 1987 were
minority preferred, looking only at whether they received most of the votes
in minority-dominated districts. That is a logical assumption in most
cases involving a racially cohesive electorate. But we are reviewing the
district court's contrary finding under a clearly erroneous standard that
"preserves the benefit of the trial court's particular familiarity with the
indigenous political reality." Gingles, 478 U.S. at 79.

2
By submitting data only on elections in which there was an
African-American candidate, plaintiffs improperly shifted the
Gingles focus from "minority preferred candidates" to "minority
candidates." In my view, given the sustained success of many
African-American candidates in the recent past, a finding of
racially polarized white bloc voting could only be made after
thorough analysis of the relative success of the minority preferred
candidates in all elections.

-20-
In conducting that review, I begin with what the district court actually
found:

[P]rior to 1988, the lowest number of votes that any black
candidate received was 629 and the highest was 1232. On the
average, black candidates received nearly 977 votes. On the
other hand, since 1988, the most votes received by any black
candidate was 374 and the lowest was 135. The average since
1988 has been 237 votes per black candidate. White candidates
received an average total of 1264 votes prior to 1988, with the
highest being 2212 and the lowest being 606. Since 1988, white
candidates have received an average of 1064 votes, with the
highest being 1345 and the lowest being 758. The following
chart of averages is helpful.

White Candidates Black Candidates

1969-1987 1264 977

1988- 1064 237

Percent Change 15.8% 75.7%

. . . The Court is of the opinion that none of the black
candidates since 1988 have been the "preferred" candidate of
the black community. . . . Plaintiffs have failed to show that
the reason they are unable to maintain proportional
representation is because of the way the white majority votes
. . . . Indeed, one of the candidates who had been the
overwhelming choice of the black population [Norvell Moore]
chose not to run for reelection.

A review of the entire record persuades me that this finding is not clearly
erroneous:

! If the eight unsuccessful African-American candidates since 1987
had received as many votes as Dr. Nunn received in her successful contested
race in 1982 (the first time she ran), three would have won outright and
two more would have forced run-off elections under the new majority-vote
rule. (Given the results of prior elections, the court's speculation that
whites will always win run-off elections, ante at 10-11, is unwarranted.)

-21-
 ! In 1988, African-American candidate Curtis Smith lost an election
to white candidate Bill Sullivan, 758 to 166. Smith did not carry the
Mississippi County Implement Company district, which has a BVAP of 80%, by
far the highest of any voting district. Yet the court finds that Smith was
the minority preferred candidate.

! Plaintiffs' Exhibit 26, a copy of the official election returns,
reports that in 1990, white candidate Littrell received 62 votes and
plaintiff Harvell received 7 votes in the East End Fire Station district,
one of three districts having a higher BVAP than the Blytheville School
District as a whole. Plaintiffs' Exhibit 14, prepared by Lynch, reports
that plaintiff Harvell captured 60% of the vote in that district, rather
than the 10% she actually received. Based upon Lynch's grievous error,
plaintiffs contend and now this court finds that Harvell was the minority
preferred candidate in that election.

! The votes cast in the two districts with a BVAP majority accounted
for 26% of the total votes in the 1982 election (when Dr. Nunn won and Mr.
Lester barely lost), but only 14% of the votes in 1989, 12% in 1990, and
13% in 1991.

! Only one African-American candidate since 1987 has received a
majority of the votes cast in the district that most closely mirrors the
total School District population (40% minority). In 1982, Dr. Nunn and Mr.
Lester received over 75% of the votes in a similar district.

In my view, this is overwhelming evidence that factors other than
racially polarized voting, or the 1987 election law change, account for the
election defeats of African-American candidates in recent years. Yet the
court dismisses the obvious import of this evidence with the comment that
it "stands to reason" that the 1987 change in the law caused the
precipitous drop in minority voter turnout. Ante at 8. I disagree. Prior
to 1987, African-American

-22-
candidates had won four of the previous five contested elections against
white candidates. They had received an absolute majority in two of the
previous three elections. With that voting history, only preconceived
notions of racial voting behavior could lead the court to conclude that the
majority-vote rule caused minority voters to lose all hope of success.

We should not forget that we deal here with the politics of
education, not with the election of general purpose legislators. Dr. Nunn
testified on cross examination that she opposed single-member districts
"[b]ecause I have spent my life working with the total community, working
together, and I think that's one way to improve quality of education."
Plaintiff Hattie Middlebrook, an unsuccessful candidate in 1990, testified
that Board members Norvell Moore and Dr. Nunn were no longer minority
preferred candidates because of their consensus-building political views.
On this record, I reject the court's unsupported speculation that it was
the spectre of white bloc voting, or the change to majority rule in 1987,
that caused the vast majority of potential African-American voters not to
support candidates such as Ms. Middlebrook. The district court's findings
as to the third Gingles precondition should be affirmed.

C. Consistent and Sustained Minority Representation

In Gingles, six Justices agreed that "consistent and sustained
success by candidates preferred by minority voters is presumptively
inconsistent with the existence of a § 2 violation." 478 U.S. at 102
(O'Connor, J., concurring). While proportional minority representation is
not a safe harbor that automatically defeats a claim of vote dilution, it
should be given "extremely heavy weight." African Am. Voting Rights Legal
Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1355-56 (8th Cir. 1995).
Section 2 does not "require maximization of minority-group representation."
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 56 F.3d 904,

-23-
910 (8th Cir. 1995) (no § 2 violation where minority comprising 29% of the
district's voting age population has held 28.6% of the Little Rock School
Board seats continuously for twenty years).

In this case, an African-American has held a seat on the School Board
every year since 1974, and there were two African-Americans on the Board --
proportional representation -- for sixteen consecutive years. The court
dismisses this "consistent and sustained success" as the product of
"special circumstances." For example, the court disregards Dr. Nunn's most
recent success because she ran unopposed for a third term in 1990. While
Gingles noted that incumbency and lack of opposition may be "special
circumstances" that do not disprove a racially polarized electorate, a
finding to that effect requires factual analysis. Dr. Nunn's prior
victories and standing in the at-large community may well have persuaded
potential white candidates that she was unbeatable. In a district with
only 29% minority voters, that would be strong evidence that the electorate
is not so racially polarized that African-Americans "have less opportunity
. . . to elect representatives of their choice," the ultimate issue under
§ 2. See Sanchez v. Bond, 875 F.2d 1488, 1493 (10th Cir. 1989), cert.
denied, 498 U.S. 937 (1990). "It borders on the absurd, of course, to
suggest that an individual's success in politics should be discounted as
aberrational because the person is qualified and popular." Niagara Falls,
65 F.3d at 1021 n.22.

I am particularly distressed by the court's suggestion that the
challenged system violates § 2 because it "allows only for victory of
majority-preferred minority candidates," ante at 12, and its criticism of
the manner in which successful African-American candidates "managed to
obtain and retain their seats," ante at 14. Apparently, the court believes
that only a racially balkanized election system can comply with the Voting
Rights Act. I subscribe to a contrary principle -- that "[n]o legal rule
should presuppose the inevitability of electoral apartheid -- least of all
a rule

-24-
interpreting a statute designed to implement the Fourteenth and Fifteenth
Amendments to the Constitution." Niagara Falls, 65 F.3d at 1016.

D. Conclusion

For the foregoing reasons, I conclude that plaintiffs have failed to
prove that legally significant white bloc voting in the Blytheville School
District usually defeats a minority preferred candidate. Accordingly, they
have not satisfied the third Gingles precondition, nor have they
established by a totality of the circumstances that the challenged election
system results in the minority vote dilution that § 2 prohibits.

I do not know whether the 1987 majority-vote law will ultimately work
to deprive minority voters in the Blytheville School District of their
rights under § 2. It may be that minority-preferred candidates will emerge
but persistently fail to achieve proportional electoral success. In that
case, § 2 relief will no doubt be warranted because, in the presence of
strongly polarized white bloc voting, a majority-vote rule combined with
at-large voting districts and a 30% minority voting age population most
likely violates § 2. Cf. City of Port Arthur v. United States, 459 U.S.
159, 167 (1982). But absent proof of sufficiently polarized white bloc
voting, § 2 relief should be denied.3 Our function under the Voting Rights
Act is not "to dictate to the

3
If plaintiffs were entitled to relief, it would only be an
injunction against the 1987 majority-vote rule. The court's
opinion implies that the district court must now enter an
"appropriate remedial decree" creating single-member voting
districts. Given the sustained success of minority preferred
candidates under the prior, plurality at-large system, this remedy
violates the congressional intent that the 1982 amendments to § 2
not be construed as "an all-out assault on at-large election
systems in general." S. Rep. No. 417, 97th Cong., 2d Sess. 27
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 205. Thus, I also
dissent from the remedial portion of the court's decision.

-25-
provinces the 'correct' theories of democratic representation, the 'best'
electoral systems for securing truly 'representative' government, the
'fairest' proportions of minority political influence, or . . . the
'proper' sizes for local governing bodies." Holder v. Hall, 114 S. Ct.
2581, 2602 (1994) (Thomas, J., concurring). Therefore, I would affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

-26-
 APPENDIX I

The following table is a compilation of election results for the
Blytheville, Arkansas, School Board from 1969 to 1992. Black candidates
are designated by "B" and white candidates are designated by "W."

YEAR CANDIDATES B/W VOTES

1969 Dr. James C. Guard W 1,014
Mrs. Carrie B. White B 769
1970 Mason F. Day, Jr. W 2,212
O. W. Weaver B 1,074
1973 W. J. Tomlinson W 1,068
Rev. T. J. Green B 907
1974 Edwin L. Holstead W 415
Dan M. Burge W 885
Ayre E. "Pop" Lester B 1,232
1975 George "Preacher" Nichols W 182
Richard "Dick" Reid W 582
Bill D. Jackson W 331
Mrs. Allen Bush W 812
Norvell Moore B 1,068
1978 Ayre E. "Pop" Lester B Unopposed
1979 Norvell Moore B Unopposed
1982 Jerry Nall W 1,107
Ayre E. "Pop" Lester B 948

Harold Edwards W 901
Dr. Helen Nunn B 1,187
1983 Norvell Moore B Unopposed
1986 Dr. Helen Nunn B Unopposed
1987 Edwin L. Holstead W 606
Norvell Moore B 629

-27-
1988 Bill Sullivan W 758
Curtis "Preacher" Smith B 166
1989 Harold Sudbury, Jr. W 1,302
Thurman J. Green, II B 287

Steve Littrell W 1,299
Shirley M. Harvell B 305

Steward R. Jerome W 1,226
Lawrence B. Haley B 374
1990 Steve Littrell W 810
Shirley Harvell B 135

Dr. Helen Nunn B Unopposed
1991 Karen Sue Fraser W 927
Phyllis Bloodworth W 388
Hattie G. Middlebrook B 232

James T. McMahan W 861
Doug Wilson W 484
Shirley Harvell B 223
1992 Bill Sullivan W Unopposed

Bill Stovell, III W 456
Shirley Milliken B 173

-28-
 APPENDIX II

CORRELATION
YEAR CANDIDATES COEFFICIENT*

1988 Bill Sullivan 0.8437
Curtis "Preacher" Smith
1989 Harold Sudbury, Jr. 0.9582
Thurman J. Green, II

Steve Littrell 0.9674
Shirley M. Harvell

Steward R. Jerome 0.9673
Lawrence B. Haley
1990 Steve Littrell 0.9086
Shirley M. Harvell
1991 Karen Sue Fraser 0.942
Hattie G. Middlebrook

James T. McMahan 0.928
Shirley M. Harvell
1992 Bill Stovell, III 0.838
Shirley Milliken

* The Correlation Coefficient (the "r" statistic) measures the strength
of a relationship between two variables. The "r" may range from 0.0
(indicating the two variables are independent) to +1.0 (indicating the
two variables are perfectly correlated in a positive direction).

-29-