John Dillard v. Baldwin County Commissioners

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 13, 2004
No. 03-14668 THOMAS K. KAHN
CLERK

D. C. Docket No. 87-01159 CV-T-N

JOHN DILLARD,

Plaintiff-Cross-Claimant-Appellant,

DAMASCUS CRITTENDEN, JR.
EARWEN FERRELL,
CLARENCE J. JARRELLS,
ULLYSSES MCBRIDE,
LOUIS HALL, JR.,

Plaintiffs-Appellants,

BILLY R. SMITH
JOE E. HORACE,
WILLIE E. EDWARDS,

Intervenor-Plaintiffs-Cross-
Claimants-Appellants,

DALE EUGENE BROWN,
GEORGE R. JOHNSON,
JAMES AUSTIN,
ALVIN LEE PITTS,
 Intervenor-Plaintiffs,
Cross Defendants-Appellees.

versus

BALDWIN COUNTY COMMISSIONERS,

Defendants-Appellees,

ADRIAN JOHNS,

Intervenor-Defendant,
Appellee.

________________

No. 03-16061
_______________

D. C. Docket No. 87-01159 CV-T-N

JOHN DILLARD,

Plaintiff-Cross-Claimant-Appellant,

DAMASCUS CRITTENDEN, JR.,
EARWEN FERRELL,
CLARENCE J. JARRELLS,
ULLYSSES MCBRIDE,
LOUIS HALL, JR.,
Plaintiffs-Appellants,

BILLY R. SMITH,
JOE E. HORACE,
WILLIE E. EDWARDS,

Intervenor-Plaintiffs-

2
 Cross-Claimants-Appellants,

DALE EUGENE BROWN,
GEORGE R. JOHNSON,
JAMES AUSTIN, JR.,
ALVIN LEE PITTS,

Intervenor-Plaintiffs,
Cross-Defendants-Appellees.

versus

BALDWIN COUNTY COMMISSIONERS,

Defendant-Appellee,

ADRIAN JOHNS,

Intervenor-Defendant,
Appellee.

Appeals from the United States District Court
for the Middle District of Alabama

(July 13, 2004)

Before DUBINA and CARNES, Circuit Judges, and MILLS*, District Judge.

_______________________________

*Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.

3
DUBINA, Circuit Judge:

In this appeal, we are confronted with the question of whether a federal

court must award relief on a vote dilution claim brought under section 2 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973, where the circumstances of the case

make clear that no form of relief available under section 2 will empower the

protected minority group with any meaningful opportunity to elect the candidate

of its choice. We answer the question in the negative and therefore affirm the

district court’s order dissolving a permanent injunction that the district court had

imposed on Appellee Baldwin County Commission (the “Commission”) in 1988,

after concluding, nearly fifteen years later, that further section 2 relief was

unavailable.

I. FACTS AND PROCEDURAL HISTORY

The epic history of this case began nearly twenty years ago, as an outgrowth

of earlier proceedings in another case initiated by Plaintiff-Appellant John Dillard

and other African-American citizens of Alabama (collectively “Dillard”)1 in order

to challenge the at-large, numbered-post election schemes2 employed by nine

1
Dillard was later joined in this action by Plaintiffs-Intervenors-Appellants Billy R.
Smith, Joe M. Horace, and Willie E. Edwards. Their interests are identical to Dillard’s in this
litigation.
2
In a county employing an at-large, numbered-post election scheme, each candidate for an
elected office runs county-wide for a particular designated seat, referred to as the

4
Alabama counties under section 2 of the Voting Rights Act and the Fourteenth and

Fifteenth Amendments to the United States Constitution. See Dillard v. Crenshaw

County, 640 F. Supp. 1347 (M.D. Ala. 1986). The district court found in that case

that these election schemes were the product of, or tainted by, racially inspired

enactments of the Alabama legislature, id. at 1357-60, and subsequently allowed

Dillard to expand his complaint to include 183 cities, counties, and county school

boards that were using similar voting systems.

The Commission was among the entities added to Dillard v. Crenshaw

County after the district court made its initial findings. At that time, the

Commission was composed of four commissioners that were elected under a

system that included the challenged structural features. See Dillard v. Baldwin

County Comm’n, 694 F. Supp. 836, 837 (M.D. Ala. 1988) (“Dillard I”). Rather

than litigate the entire dispute, the Commission entered into a consent decree with

Dillard in which it agreed “not [to] contest the plaintiffs’ claims that its present at-

large election system violates the Voting Rights Act.” However, the Commission

vigorously contested the issue of what would constitute an appropriate remedy for

this conceded violation. Id.

“numbered post.”

5
 In proceedings conducted in the district court, the Commission offered to

increase the size of the Commission from four to five and to abandon the

challenged numbered-post feature of its existing voting system. Id. at 838. In

theory, the resulting “pure” at-large voting system would have improved minority

voting strength by allowing candidates that were less popular with the white

majority to win elections with a plurality of votes cast.

Dillard argued that the Commission’s proposed remedy itself violated the

Voting Rights Act, and urged the district court to carve Baldwin County into

seven single-member districts, gerrymandered to create a district with an African-

American majority. Id. According to Dillard, increasing the Commission to seven

members was imperative because of the small and declining size of the African-

American population in Baldwin County, which was projected to fall below 14%

of the county’s total population by 1990. Id. at 839-40. The district court agreed

with Dillard and entered a permanent injunction adopting Dillard’s proposal. Id.

at 844-45.3 The redistricting of the county created a district with an African-

American population that was expected to be over 63% in 1990. Id. at 843.

3
This court affirmed without opinion. Dillard v. Baldwin County Comm’n, 862 F.2d 878
(11th Cir. 1988) (Table) (“Dillard II”).

6
 Six years after the district court entered its injunction, a plurality of the

Supreme Court decided in Holder v. Hall, 512 U.S. 874, 114 S. Ct. 2581, 129 L.

Ed. 2d 687 (1994), that a federal court cannot modify the size of an elected

governing body in order to remedy a section 2 violation because “[t]here is no

principled reason why one size should be picked over another as the benchmark

for [determining whether vote dilution has occurred].” Id. at 881, 114 S. Ct. at

2586. Subsequently, this court held in Nipper v. Smith, 39 F.3d 1494 (11th Cir.

1994) (en banc), that “under Holder, federal courts may not mandate as a section 2

remedy that a state or political subdivision alter the size of its elected bodies.” Id.

at 1532; see also White v. Alabama, 74 F.3d 1058, 1072 (11th Cir. 1996) (holding,

under Holder and Nipper, that the federal courts lacked the authority under section

2 to require the State of Alabama to increase the size of its appellate courts).

In light of these decisions, Dale Brown and other residents of Baldwin

County (collectively “Brown”) moved to intervene in the case in October 1996,

seeking vacatur of the injunction on grounds that it exceeded the district court’s

powers under the Voting Rights Act, and that it violated the Tenth and Eleventh

Amendments. The district court allowed Brown to intervene post-judgment but

then dismissed his complaint on grounds that he failed to state a claim on which

relief could be granted. Dillard v. Baldwin County Comm’n, 53 F. Supp. 2d 1266,

7
1268, 1273 (M.D. Ala. 1999) (“Dillard III”). On appeal from that decision, we

reversed, holding that Brown had stated a claim for relief cognizable both under

section 2 of the Voting Rights Act and under 42 U.S.C. § 1983 for violations of

the Tenth and Eleventh Amendments. Dillard v. Baldwin County Comm’rs, 225

F.3d 1271, 1280-82 (11th Cir. 2000) (“Dillard IV”). We remanded the case to the

district court to consider inter alia whether the 1988 injunction may have been an

appropriate remedy under the Fourteenth Amendment, even though it had been

improper under section 2 of the Voting Rights Act. Id. at 1282-83.

On remand, the district court conducted a bench trial, during which the

evidence showed that the 1988 injunction had not increased African-American

voting power in Baldwin County as intended because the proportion of African-

American voters in the county had continued to decline. As of the 2000 census,

the county’s voting-age African-American population had declined to 9.13%, and

Baldwin County no longer had a majority-minority district. Faced with this

reality, Dillard now asked the district court to abandon the single-member district

scheme that he had demanded fifteen years earlier, and argued instead for the court

to compel the Commission to adopt a cumulative voting system,4 or in the

4
Under a cumulative voting system, each voter has as many votes as there are posts to be
filled and may either divide his votes between candidates or concentrate his votes on a single
candidate. See Holder, 512 U.S. at 910 n.15, 114 S. Ct. 2601, n.15 (Thomas, J., concurring).

8
alternative, to order the Commission to adopt a “pure” at-large system, the remedy

Dillard complained was inadequate fifteen years earlier, when Baldwin County’s

African-American population represented a substantially larger proportion of the

county’s total population. In either case, Dillard argued that the district court had

“no basis” for reducing the Commission to its pre-injunction size, in spite of the

Supreme Court’s decision in Holder, and this court’s en banc holding in Nipper.

Dillard stressed that, although the injunction could be modified, it could not be

modified against the interest of the minority class if the injunction had been a

legitimate remedy in 1988, as voting rights law was understood at that time, even

though subsequent mandatory authority has made clear that it could never be a

legitimate remedy for any future section 2 plaintiff.

The district court rejected Dillard’s arguments and concluded that it lacked

any basis for retaining supervision of the Commission’s election system. Dillard

v. Baldwin County Comm’n, 222 F. Supp. 2d 1283, 1287 (M.D. Ala. 2002)

(“Dillard V”). After Dillard moved to amend the district court’s judgment, the

court explained that it could no longer find a section 2 violation because “[t]he

political weakness of the African-American community in Baldwin County [now]

“The system thus allows a numerical minority to concentrate its voting power behind a given
candidate without requiring that the minority voters themselves be concentrated into a single
district.” Id.

9
results from its being less than 10% of the voting age population and the fact that

it does not live in a geographically compact community.” Dillard v. Baldwin

County Comm’n, 282 F. Supp. 2d 1302, 1303 (M.D. Ala. 2003) (“Dillard VI”).

The court further concluded that the cumulative voting system that Dillard now

sought was not an appropriate section 2 “results” remedy because “there is no

objective and workable standard for choosing [it as a] reasonable benchmark[]

over the many forms of government.” Id. (internal quotations omitted). This

appeal followed.

II. ISSUE

Whether the district court abused its discretion by dissolving its injunction

on the ground that the African-American population of Baldwin County is not

numerically large enough to obtain relief on a vote dilution claim under section 2

of the Voting Rights Act.

III. STANDARD OF REVIEW

We review a district court’s decision to modify an injunction for abuse of

discretion, and it is an abuse of discretion for the district court to fail to make

modifications required by applicable law. Wilson v. Minor, 220 F.3d 1297, 1301

(11th Cir. 2000). However, we review the district court’s factual findings

underpinning its decision for clear error, and we review its analysis of applicable

10
law de novo. See Davis v. Chiles, 139 F.3d 1414, 1420 (11th Cir. 1998). In the

section 2 context, we afford the district court’s findings with special deference

“due to [the court’s] special vantage point and ability to conduct an intensely local

appraisal of the design and impact of a voting system.” Negron v. City of Miami

Beach, Fla., 113 F.3d 1563, 1566 (11th Cir. 1997) (internal quotations omitted).

IV. DISCUSSION

Section 2 of the Voting Rights Act prohibits states and their political

subdivisions from imposing or applying a voting structure or practice “in a manner

which results in a denial or abridgement of the right . . . to vote on account of race

or color.” 42 U.S.C. § 1973(a). In addition, section 2 provides a cause of action

for protected minority groups that can establish, based on the totality of

circumstances, “that [their] members 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). Numerically small minority groups have

latched onto this broadly-worded “participation” provision as support for the

theory that section 2 provides a dilution of minority “influence” cause of action for

any protected group that can demonstrate that its members have “less opportunity”

than the electorate at large “to participate in the political process.” However, the

Supreme Court made clear in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752,

11
92 L. Ed. 2d 25 (1986), that “[u]nless minority voters possess the potential to elect

representatives in the absence of the challenged structure or practice, they cannot

claim to have been injured by that structure or practice.” Id. at 51 n.17, 106 S. Ct.

at 2767 n.17 (emphasis added). This precondition to recovery precludes minority

groups from pursuing vote dilution claims unless they can meet some threshold

level of numerical substantiality. See Gingles v. Edmisten, 590 F. Supp. 345, 381

(E.D.N.C. 1984) (three-judge panel) (“We are doubtful that either the Supreme

Court in developing the dilution concept in constitutional voting rights litigation,

or the Congress in embodying it in amended Section 2 of the Voting Rights Act

intended an application open-ended as to voter group size. There must obviously

be some size (as well as dispersion) limits on those aggregations of voters to

whom the concept can be applied.”), aff’d in part, rev’d in part sub nom., Gingles,

478 U.S. at 50 n.17, 106 S. Ct. at 2766 n.17 (holding that a “minority group [that]

is so small in relation to the surrounding white population that it could not

constitute a majority in a single-member district, . . . cannot maintain that [it]

would have been able to elect representatives of [its] choice in the absence of the

multimember electoral structure”); see also McGhee v. Granville County, 860 F.2d

110, 119 (4th Cir. 1988) (commenting that Gingles precludes small and

unconcentrated minority groups from bringing vote dilution claims).

12
 In Gingles, the Supreme Court held that plaintiffs claiming vote dilution

through the use of multimember districts must prove, as preconditions to relief, (1)

that the minority group challenging the existing election scheme “is sufficiently

large and geographically compact;” (2) that the minority group is “politically

cohesive;” and (3) that “the white majority votes sufficiently as a bloc to enable it .

. . usually to defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 50-

51, 106 S. Ct. at 2766-67. Pursuant to the first Gingles precondition, which has

particular relevance in this case, the protected group must demonstrate that it is

“sufficiently large and geographically compact” to elect the candidate of its choice

in the absence of the challenged structure or practice.5 We agree with the district

5
In Gingles, the Supreme Court articulated this precondition as whether the protected
group “is sufficiently large and geographically compact to constitute a majority in a single-
member district.” Gingles, 478 U.S. at 50, 106 S. Ct. at 2766 (emphasis added). However, the
Court subsequently acknowledged in Voinovich v. Quilter, 507 U.S. 146, 113 S. Ct. 1149, 122 L.
Ed. 2d 500 (1993), that this factor “cannot be applied mechanically and without regard to the
nature of the claim,” id. at 158, 113 S. Ct. at 1157, quoted in Nipper, 39 F.3d at 1531, and
specifically recognized that it could be modified when analyzing an influence dilution claim
“[where the plaintiffs allege] the possibility of being a sufficiently large minority to elect their
candidate of choice with the assistance of cross-over votes from the white majority,” id. The
Supreme Court’s commentary in Voinovich suggests that the first Gingles precondition need not
rigidly preclude a minority group that cannot constitute “a majority in a single-member district”
from obtaining section 2 relief where the group is not seeking the creation of a single-member
district. Regardless, nothing in Voinovich limits the further requirement in Gingles that minority
voters prove that they possess the potential to elect representatives of their choice in the absence
of a challenged structure or practice before they can claim to be injured by it. Gingles, 478 U.S.
at 51 n.17, 106 S. Ct. at 2767 n.17; see also Negron, 113 F.3d at 1569 (“[T]he foundational
inquiry for the first Gingles precondition is whether the minority has the potential to elect a
representative of its own choice.”) (internal quotations omitted).

13
court’s finding that the minority group that Dillard represents, comprising less

than 10% of the relevant electorate, cannot possibly satisfy this precondition to

relief under the circumstances presented in this case. See Dillard VI, 282 F. Supp.

2d at 1302.

Dillard argues that the district court erred in applying the first Gingles

precondition because of the Commission’s agreement in 1987 “not [to] contest the

plaintiffs’ claims that its present at-large election system violates the Voting

Rights Act.” We conclude, however, that Dillard has overstated the prospective

impact of this ambiguous concession, in light of the interplay between “[t]he

inquiries into remedy and liability” in the section 2 context. Nipper, 39 F.3d at

1530. We held in Nipper that “[t]he first Gingles precondition, informed by the

second, dictates that the issue of remedy is part of the plaintiff's prima facie case in

section 2 vote dilution cases.” Id.; see Davis, 139 F.3d at 1419 (“As part of any

prima facie case under Section Two, a plaintiff must demonstrate the existence of

a proper remedy.”). We further held that “[t]he absence of an available remedy is

not only relevant at the remedial stage of the litigation, but also precludes, under

the totality of the circumstances inquiry, a finding of liability.” Nipper, 39 F.3d at

1533; see also Growe v. Emison, 507 U.S. 25, 40-41, 113 S. Ct. 1075, 1084, 122

14
L. Ed. 2d 388 (1993) (“Unless [the Gingles preconditions] are established, there

neither has been a wrong nor can be a remedy.”).

In entering into the consent decree, the Commission may have conceded

that a section 2 violation existed, and that an appropriate remedy could be crafted,

as voting rights law was then understood. However, any remedy that could have

been conceded as appropriate in 1987 was subsequently rendered inappropriate by

Holder and Nipper. In light of the interplay between the inquiries into remedy and

liability that we recognized in Nipper, the district court was thus precluded from

finding an ongoing section 2 violation in this case. As such, the Commission’s

prior agreement not to contest the substantive liability issues in Dillard’s section 2

claim can have no bearing on how the Gingles preconditions apply in this case, or,

more generally, whether Dillard has met his burden of establishing the existence

of an appropriate remedy.6 Because the Gingles preconditions are necessary

6
We also reject Dillard’s argument that the Commissioner’s prior agreement not to
contest the substantive issues in his section 2 claim somehow obligated the district court to award
or perpetuate relief that would otherwise be unavailable. Only the federal courts can decide
whether a particular modification of a municipality’s voting system is an “appropriate remedy”
for a section 2 violation, and the parties cannot compel the federal courts to enforce a remedy that
is not appropriate. Dillard’s reliance on Frew v. Hawkins, ___ U.S. ___, 124 S. Ct. 899, 157 L.
Ed.2d 855 (2004), in support of this argument is misplaced. The issue in Frew was whether a
federal court had the authority to enforce the terms of a consent decree against state officials,
without violating their Eleventh Amendment immunity, to the extent those obligations exceeded
the state’s duties imposed by federal Medicaid law. Id. at 904-05. The consent decree at issue
was “a detailed document about 80 pages long that order[ed] a comprehensive plan for
implementing [the state’s Early and Periodic Screening, Diagnosis, and Treatment (“EPSDT”)
program required by] federal statute.” Id. at 902. The Court noted that the decree “reflect[ed] a

15
prerequisites to all section 2 vote dilution claims, they must also be necessary

prerequisites to all demands that a district court perpetuate relief imposed under

the aegis of section 2.

Dillard urges us to conclude that numerically small minority groups can

bring claims under section 2, so long as the group can point to a structure or

practice that theoretically impairs its ability to influence electoral outcomes. His

claim of “influence dilution” is distinguished only by the remedy he seeks from

the claims of minority groups seeking the creation of “influence” districts, i.e.

districts “where minority voters may not be able to elect a candidate of choice but

can play a substantial, although not decisive, role in the electoral process.”

choice among ways that a State could implement the Medicaid Act,” and that “enforcing the
decree vindicate[d] an agreement that the state officials reached to comply with federal law.” Id.
at 905. Accordingly, the Court concluded that enforcement of the decree was appropriate, even
to the extent it imposed obligations beyond those required by the relevant federal law.

In this case, Dillard seeks to enforce a single, ambiguous statement, in which the
Commission agreed “not [to] contest the plaintiffs’ claims that its present at-large election
system violated the Voting Rights Act.” This statement, even read in context with Frew, cannot
possibly impose an affirmative duty on the district court to award or perpetuate relief in this case.
At most, Frew stands for the limited proposition that the district court would have no Eleventh
Amendment obstacle to enforcing a Voting Rights Act consent decree against the Commission,
even to the extent that the Commission’s obligations in the decree exceeded, but were not
inconsistent with, those imposed by the Voting Rights Act and other applicable federal law.
Frew provides no support for Dillard’s position that a private litigant can force the hand of a
district court in order to obtain relief against a state in a manner that would otherwise exceed the
court’s remedial authority. In fact, we have expressly held to the contrary, that a district court
has no authority to impose a remedy through a consent decree that is not authorized by the
Voting Rights Act. White, 74 F.3d at 1074-75.

16
Rodriguez v. Pataki, 308 F. Supp. 2d 346, 376 (S.D.N.Y. 2004) (three-judge

panel). This “influence dilution” concept, although apparently a question of first

impression in this circuit, has been consistently rejected by other federal courts.

See, e.g., Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir. 1998) (holding that a

claim of “an impairment of the minority’s ability to influence the outcome of the

election, rather than to determine it” was not cognizable under the Voting Rights

Act); McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (7th Cir. 1988) (“[W]e

cannot consider claims that . . . districts merely impair plaintiffs’ ability to

influence elections. Plaintiffs’ ability to win elections must also be impaired.”);

Rodriguez, 308 F. Supp. 2d at 378; Illinois Legislative Redistricting Comm’n v.

LaPaille, 786 F. Supp. 704, 715-17 (N.D. Ill. 1992) (three-judge panel); Turner v.

Arkansas, 784 F. Supp. 553, 568-72 (E.D. Ark. 1991) (three-judge panel), aff’d,

504 U.S. 952, 112 S. Ct. 2296, 119 L. Ed. 2d 220 (1992); Hastert v. State Bd. of

Elec., 777 F. Supp. 634, 652-54 (N.D. Ill. 1991) (three-judge panel). The clear

message of these cases, consistent with Gingles, is that a minority group cannot be

awarded relief on a vote dilution claim unless it can demonstrate that a challenged

structure or practice impedes its ability to determine the outcome of elections.

Dillard suggests that this substantial body of adverse authority is inapposite

and is evidence only of the general reluctance of federal courts to affirmatively

17
create single-member districts or to compel redistricting. According to Dillard,

the result should be different here, where the remedy sought is “less intrusive.”

We disagree.

As an initial matter, we question whether the “cumulative voting” system

that Dillard seeks to impose on the Commission is truly less “intrusive” than

compelled redistricting. Implicit in the first Gingles requirement “is a limitation

on the ability of a federal court to abolish a particular form of government and to

use its imagination to fashion a new system.” Nipper, 39 F.3d at 1531. Because

“[n]othing in the Voting Rights Act suggests an intent on the part of Congress to

permit the federal judiciary to force on the states a new model of government,” id.,

any remedy for a Voting Rights Act violation must come from within “the

confines of the state’s system of government,” id. at 1533. After reviewing the

record, we agree with the district court’s finding that cumulative voting schemes

simply do not occupy “a traditional and accepted place in Alabama’s legislatively

enacted voting schemes.” Dillard V, 222 F. Supp. 2d at 1291. The federal courts

have no authority to conjure up such an election scheme and impose it on a state

government, regardless of the theoretical prospect of increasing minority voting

strength.

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 In addition, we can find no evidence that the federal courts that confronted

the influence dilution concept in the past were specially concerned with the

intrusiveness of the remedy sought by particular section 2 plaintiffs. Instead, these

courts uniformly expressed the desire to maintain ascertainable and objective

standards from which to adjudicate section 2 claims. See, e.g., McNeil, 851 F.2d

at 942 (explaining that “[t]he creation of preconditions [is] a choice of clear rules

over muddy efforts to discern equity [that] shields the courts from meritless claims

and ensures that clearly meritorious claims will survive summary judgment”);

Hastert, 777 F. Supp. at 653 (noting that, absent the Gingles preconditions, “relief

becomes a truly perplexing issue necessarily requiring a court to resort to vague,

subjective criteria”). The first Gingles precondition provides a gate-keeping

mechanism by which the courts maintain these standards. Thus, an unrestricted

breach of this precondition “w[ould] likely open a Pandora’s box of marginal

Voting Rights Act claims by minority groups of all sizes.” Hastert, 777 F. Supp.

at 654.

[U]nbounded, [the vote dilution concept] could be applied to find

‘dilution’ of a minority group’s voting power in any situation where

the group had been unable, despite effort, to achieve representation

19
 by the election of candidates of its choice in proportion to its

percentage of the total voting age constituency.

McGhee, 860 F.2d at 116; see also 42 U.S.C. § 1973(b) (“[N]othing in this section

establishes a right to have members of a protected class elected in numbers equal

to their proportion in the population.”). We decline to open this Pandora’s box.

As of the last census, the African-American population of Baldwin County

had declined to less than 10% of the county’s total voting-age population. “If 10%

of the voters can ‘swing’ an election, perhaps so can 1% or 0.1%. A single voter

is the logical limit.” Illinois Legislative Redistricting Comm’n, 786 F. Supp. at

716; see also Hastert, 777 F. Supp. at 654 (noting that, in the absence of the first

Gingles factor, “there appears to be no logical or objective measure for

establishing a threshold minority group size necessary for bringing an influence

claim under § 2”). We cannot conceive of any method by which we could award

Dillard relief in this case without awarding similar relief to even smaller minority

groups in future cases. To open the door to the inevitable flood of marginal

section 2 claims would impose an unwarranted burden on the lower federal courts

and an indefensible encroachment into the affairs of state governments. We

choose instead to follow the near universal view of other federal courts that a

minority group cannot obtain relief under section 2 without first showing that it is

20
“large enough to control a district, not just ‘influence’ it.”7 Illinois Legislative

Redistricting Comm’n, 786 F. Supp. at 715 (emphasis added). Accordingly,

because Dillard cannot establish that the African-American population in Baldwin

County is large enough to control the outcome of elections, the district court did

not err in concluding that “[t]he political weakness of the African-American

community in Baldwin County results from its being less than 10% of the voting

age population and the fact that it does not live in a geographically compact

community.” Dillard VI, 282 F. Supp. 2d at 1303.

V. CONCLUSION

We hold that a protected minority group pursuing a vote dilution claim

under section 2 of the Voting Rights Act has no right to relief unless it can

demonstrate that, in the absence of the challenged voting structure or practice, its

7
We leave open the question of whether a section 2 plaintiff can pursue a “coalition” or
“crossover” dilution claim, i.e. a claim where “members of the minority group are not a majority
of the relevant voting population but nonetheless have the ability to elect representatives of their
choice with support from a limited but reliable white crossover vote.” Rodriguez, 308 F. Supp.
2d at 376 (emphasis added). Although some courts have strictly adhered to the Gingles majority-
minority requirement when confronted with such claims, see, e.g., Valdespino v. Alamo Heights
Indep. Sch. Dist., 168 F.3d 848, 851-53 (5th Cir.1999) (rejecting an ability-to-elect claim on the
ground that the Gingles “bright line test” requires proof that members of a minority group
“constitute more than 50% of the relevant population in their demonstration district”), this issue
presents a closer question because of the Supreme Court’s commentary in Voinovich that the
Gingles test could be modified if a court is confronted with the claim of a “minority [population
sufficiently large] to elect [its] candidate of choice with the assistance of cross-over votes from
the white majority.” Voinovich, 507 U.S. at 158, 113 S. Ct. at 1157. The African-American
population of Baldwin County is too small for this concept to have any application in this case,
and so we have no opportunity to address its merits.

21
members would have the ability to elect the candidate of its choice. If the group is

too small to elect candidates of its choice in the absence of a challenged structure

or practice, then it is the size of the minority population that results in the

plaintiff’s injury, and not the challenged structure or practice. Accordingly, we

conclude that the district court did not abuse its discretion in declining to grant

additional relief in this case, because it correctly found that no further relief was

available.

AFFIRMED.

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