USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1581

VECINOS DE BARRIO UNO, ET AL.,

Plaintiffs, Appellees,

v.

CITY OF HOLYOKE,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

___________________

_________________________

Before

Selya, Cyr and Stahl,

Circuit Judges.
______________

_________________________

Steven P. Perlmutter, with whom Michael D. Lurie, Robinson &

____________________
________________ __________
Cole,
____

and

Edward R. Mitnick,
__________________

Acting City

Solicitor,

were on

Nelson G. Apjohn,
_________________

Nutter,
_______

brief, for appellant.

Daniel J. Gleason, with
___________________

whom

McClennen & Fish, Alan J. Rom, Law Office of Sherwin Kantrovitz,

_________________ ___________ _________________________________

P.C., David P. Hoose, and Katz, Sasson, Hoose & Turnbull were on
____ _______________
______________________________
brief, for appellees.

_________________________

December 29, 1995

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

In 1965, Congress

enacted the

Voting Rights Act

(codified

(the VRA),

at 42 U.S.C.

legislation

remains

defendants, pundits

Pub. L. No.

1973-1973o).

a Serbonian

bog

89-110, 79 Stat.

437

Three decades later, the

in

which plaintiffs

and policymakers, judges

and justices

and

find

themselves bemired.

The

case

before us

conceptual complexity

against

city

has engulfed

another window

on the

the

arises

VRA.

It

the backdrop of the biennial elections that are held for

council in

Holyoke,

nonprofit organizations

eight

that

opens yet

voters of

structure

Massachusetts.

with ties to the

Hispanic descent,

violates section

2 of

The plaintiffs,

Hispanic community and

complain that

the VRA

two

by

the electoral

denying Hispanics

equal opportunity to "participate in the political process and to

elect

representatives of

their choice."

The district court found merit in

42 U.S.C.

the plaintiffs' complaint with

regard to councilmanic elections and granted relief.

de Barrio Uno v.
______________

1995).1

unable

City of Holyoke, 880 F.

________________

After careful consideration

to square

the lower

ultimate conclusion

of vote

1973(b).

Supp. 911

of a bulky

court's factual

dilution.

See Vecinos
___ _______

(D. Mass.

record, we are

findings with

Consequently,

its

we vacate

the judgment and remand for further proceedings.

____________________

1The plaintiffs also challenged the way

the
that

school committee were elected.

challenge,

see
___

Holyoke, 880
_______

in which members of

The district court repulsed

F.

Supp.

plaintiffs do not press the point on appeal.

at

928, and

the

I.
I.

BACKGROUND
BACKGROUND

We

sketch the

background, reserving

a more

exegetic

treatment of the facts pending our discussion of specific issues.

We refer those readers who yearn for an immediate rush of details

to the district court's informative opinion.

Since 1963, the Holyoke

See id. at 917-25.

___ ___

city council has been composed

of fifteen members, eight

ward.

Candidates run

elected at large and seven

without party labels

elected by

for two-year terms.

Each voter is entitled to cast a ballot for a candidate in his or

her ward, and to vote for up to eight at-large candidates.

The

dramatically

Hispanic

Hispanic

over the

past two

origin accounted

(compared to

scheme

the

13.8%

for

in 1980).

ward lines

voters comprise a

nearly

community

in

has

grown

decades.

By 1990,

persons of

31.06% of

the total

population

current

districting

Under the

were last redrawn

clear majority

Holyoke

in 1992

in two wards

one-third of the population in

Hispanic

and account

a third ward.

for

Yet, while

Hispanic-preferred city council candidates have prevailed

in the

two "Hispanic majority" wards, no person of Hispanic descent ever

has

been

elected

to

an

at-large

seat.

This

discrepancy

crystallizes

into the nub of

dilution claim is

Holyoke's voting

the

their vote

that, while Hispanics now constitute 21.89% of

age population, the electoral

Hispanic community's

members

the plaintiffs' case:

prefer to only 14%

ability

to elect

of the available

(two of fifteen).

structure limits

the candidates

its

city council seats

The district court agreed

with the plaintiffs that the

Hispanic vote had been impermissibly diluted.

See id. at 925-27.

___ ___

To remedy

by separate

the perceived inequity,

left the ward lines

number

and representation intact, but cut

of at-large seats from

council from

structure

fifteen to nine

congruent

the court

eight to two

of the

The court reasoned

revised format, Hispanics probably

of the ward

See
___

F. Supp. 9, 10 (D.

that, under

the

would continue to control two

seats, and that decreasing

would boost Hispanics' percentage

its electoral

school committee).

Vecinos de Barrio Uno v. City of Holyoke, 882

_____________________
_______________

Mass. 1995) (Holyoke II).

___________

back the

(thus shrinking the

members, and making

with that

order

the size of the

council

representation to a level that

would

compare favorably with their

population as a whole.

percentage of the voting age

See id. at 12.

___ ___

The district court, striving

in

to put its remedial order

place in time for the November 1995 municipal election cycle,

see
___

id. at 13,
___

city

appealed

entered the order

and

under pressure of

simultaneously moved

for

time.

stay.

By

unpublished order, we expedited the appeal and granted the

Hence,

the

November

1995

elections

were

held

The

an

stay.

under

the

preexisting scheme.

II.
II.

STANDARD OF REVIEW
STANDARD OF REVIEW

The bedrock on which the district court's opinion rests

is its

conclusion that the

structure

unlawfully dilutes

at-large component of

the

Hispanic

the electoral

community's

voting

power.

As

a general

matter, a finding

of vote

dilution made

after a bench trial is a finding of fact subject

the "clearly

erroneous" rubric.

U.S 30, 78-79 (1986);

610 (5th Cir. 1995);

to review under

See Thornburg v.
___ _________

Gingles, 478
_______

Houston v. Lafayette County, 56

_______
________________

F.3d 606,

Jenkins v. Red Clay Consol. Sch. Dist. Bd.

_______
________________________________

of Educ.,
________

4 F.3d 1103, 1116 (3d Cir. 1993), cert. denied, 114 S.

_____ ______

Ct. 2779 (1994); see also Fed. R. Civ. P. 52(a).

___ ____

This means that

a reviewing court ought not to disturb such a finding "unless, on

the whole of the record, [the court] form[s] a strong, unyielding

belief

that a

mistake

has

been

made."

Cumpiano
________

v.

Banco
_____

standard is formidable,

it is

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

______________

Though the

not

a juggernaut

clear error

that

crushes everything

important qualification is that

in

its path.

One

the jurisprudence of clear error

"does not inhibit an appellate court's power to correct errors of

law, including those that may infect a so-called mixed finding of

law and

fact, or

misunderstanding of

finding of

the governing

fact that

is

rule of law."

predicated on

Gingles,

478

_______

U.S. at 106 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485,
__________
_______________

501 (1984)); accord LoVuolo v. Gunning, 925 F.2d 22, 25 (1st Cir.
______ _______
_______

1991).

Considering asserted errors of law entails nondeferential

review.

See In re Extradition of Howard, 996 F.2d

___ _____________________________

1320, 1327

(1st Cir. 1993).

III.
III.

PROVING VOTE DILUTION

PROVING VOTE DILUTION

In

order to sharpen the focus of our inquiry, we first

limn the statutory framework

and elucidate the requirements that

attend a proper showing of vote dilution.

Section 2 of the VRA, as amended in 1982, prohibits any

standard, practice,

or procedure "which

abridgement of the right of

vote on account

of race

results in a

denial or

any citizen of the United States

or color."

42

U.S.C.

1973(a).

denial or abridgement of the right to vote is established when,

based on the totality of circumstances, it is

shown that the political processes leading to
nomination or election .
open to

participation

[protected] class
its

. . are not equally

by all

members of

of citizens . .

. in that

members have less opportunity than other

members of

the electorate to

participate in

to

the

political

process

representatives
to which
been

elected

Provided,
________

to

office

may

The extent

to

protected class elected

.
be

nothing

a right

elect

a protected class

which

That

establishes

to

of their choice.

members of

circumstance

and

in

have

is

one

considered:
this

have

section

members of

in numbers equal

a
to

their proportion in the population.

42 U.S.C.

1973(b).

While the statutory scheme does not provide

an assurance of success at the polls for minority candidates, see

___

Johnson v. De Grandy, 114 S.

_______
_________

provide

an

assurance

electoral law,

of

Ct. 2647, 2658 n.11 (1994), it does

fairness.

Thus,

practice, or structure interacts

when

"a

certain

with social and

historical conditions to cause an inequality in the opportunities

enjoyed by [minority] and

white voters to elect

representatives," a section 2

claim lies.

their preferred

Gingles, 478
_______

U.S. at

47.

The platform

must

contain three

must

prove

interleaved planks.

that they

"sufficiently large

required to launch a

are

part of

and geographically

vote dilution claim

First,

minority

compact to

the plaintiffs

group that

is

constitute a

majority

in a

single-member district."

Id.
___

at 50.2

Second,

they must show that

51.

the group is "politically cohesive."

Id. at
___

Third, they must demonstrate significant bloc voting by non-

minorities.

See id.
___ ___

Each of these showings must

be specific to

the electoral unit that is under fire.

The

putting the

side,

first two

Gingles preconditions look

_______

challenged practice, procedure, or

minority

voters

within

a given

structure to one

constituency

potential to elect representatives of their choice.

Emison, 113
______

n.17.

so

S. Ct.

1075, 1084 (1993);

to whether,

have

the

See Growe v.
___ _____

Gingles, 478 U.S.

_______

at 50

If, for example, minority voters in an at-large system are

widely

dispersed

candidates under

that

they

some reasonable

could

not

alternative

elect

preferred

scheme, then

the

"at-large system cannot be responsible for that group's inability

to

elect its candidates."

Solomon v. Liberty County, 899 F.2d

_______
_______________

____________________

2This

precondition

extent that
dilution

will have

the courts

claims.

to

persons who

less

than

reconfigured to

eventually validate so-called

See Voinovich
___ _________

v. Quilter,
_______

1157-58 (1993) (discussing treatment

of

be

constitute a

the majority,

113 S.

influence

Ct. 1149,

of claims brought on behalf

potentially influential

within

the

the

bloc, but

relevant electorate,

and

raising prospect that the first

Gingles precondition may have to

_______

be

The lower courts

"modified or eliminated").

the
(N.D.

subject, compare
_______
Ohio

1991)

Armour v.
______

(three-judge

dilution

claim) with McNeil v.

____ ______

937, 947

(7th Cir.

cert. denied, 490

_____ ______
declined on

Voinovich, 113
_________

panel)

F. Supp.

U.S. 1031

VRA

2.

S. Ct. at

influence

Springfield Park Dist., 851 F.2d

______________________

(1989), and the

to

1044, 1052

(recognizing

1988) (rejecting influence

four occasions

cognizable under

Ohio, 775
____

are divided on

decide whether

dilution claim),
Supreme Court

has

such claims

are

See De Grandy, 114 S.

___ __________
1157-58; Growe
_____

Ct. at 2656;

v. Emison, 113
______

1075, 1084 n.5 (1993); Gingles, 478 U.S. at 46-47 n.12.

S. Ct.

We take

_______

no view of the matter today (although we do discuss the potential

relevance of

evidence from elections in

a particular "influence

district" on the plaintiffs' claims, see infra Part V).

___ _____

1012,

1018 (11th Cir. 1990), cert. denied, 498 U.S. 1023 (1991).
_____ ______

Similarly, unless the minority group is politically cohesive, "it

cannot be

structure

said that the

thwarts

selection of

distinctive

a [particular]

minority

group

electoral

interests."

Gingles, 478 U.S. at 51.

_______

The third Gingles precondition

_______

which

embodies a showing that the majority votes sufficiently as a bloc

to

enable

preferred

it,

in the

1157 (1993)

practice, procedure, or

elect

course,

to trounce

minority-

candidates most of the time, see Voinovich v. Quilter,

___ _________
_______

113 S. Ct. 1149,

group's

ordinary

inability to

addresses whether

structure is the

mobilize

its preferred candidates.

the challenged

cause of the

its potential

minority

voting power

See De Grandy, 114 S.

___ __________

and

Ct. at

2657; Gingles, 478 U.S. at 51.

_______

Proof of all three

preconditions creates an

inference

that members of the minority are in fact harmed by the challenged

electoral

practice,

procedure,

or

structure.

However,

the

inference is

Gingles
_______

preconditions is

sufficient,

say,

rebuttable.

As a result,

necessary,

but not

to ensure success on a section

because the inference of

the force

establishing the

of other evidence,

vote

at 2657.

dilution case

proof of the

elements

itself

That is to

be rebutted by

three preconditions,

day.

See De Grandy,
___ _________

Put another way, the critical question in a

is

whether minority

opportunity to participate in

threshold

2 claim.

vote dilution can

without more, will not invariably carry the

114 S. Ct.

always in

three

voters

have an

the electoral process.

catalogued

by

the

Gingles
_______

equal

While the

Court

shed

considerable light on this inquiry, they do not comprise the only

conceivable

source

of

illumination.

demands

"comprehensive,

facts."

Id.
___

not

Consistent with

not to wear blinders.

limited,

Completing

the

inquiry

canvassing

of

relevant

this approach, courts

The judge must sift

must be careful

the evidence produced

at trial and gather enough information to paint a true picture of

the attendant facts and circumstances.

realistic

appraisal

of

what the

He or she must then make

picture

discloses.

See
___

Gingles, 478
_______

U.S. at 45 (advocating achievement

of a "practical

evaluation of the past and present reality" through a "functional

view of the political process").

list

of factors

highlighted

Some guidance can be found in a

in the

accompanied the 1982 amendment to

97th

Cong.,

2d

Sess.,

U.S.C.C.A.N. 177, 206-07,

Though helpful, the

478 U.S.

at

congressional report

VRA

28-29

2, see S. Rep.
___

(1982),

but the judge

reprinted
_________

should not stop

list is not all-encompassing.

that

No. 417,

in
__

1982

there.

See Gingles,
___ _______

at 45; Little Rock Sch. Dist. v. Pulaski County Special

______________________
______________________

Sch. Dist., 56 F.3d 904, 910

__________

(8th Cir. 1995).

Since communities

differ, and elections play out differently in different venues at

different

times,

the

judge

must

make

case-specific

determination, giving due weight

upon the particular situation.

to the idiosyncracies that bear

See Jenkins, 4 F.3d at 1115.

___ _______

One road that we believe remains open to a court called

upon

to

examine the

dilution case is to

totality of

the

circumstances in

mull other factors, apart from

a vote

racial bias,

that

may have

third Gingles
_______

white bloc

precondition.3

this question,

Brennan,

caused the

While

compare Gingles, 478

_______ _______

J.) (stating

for four

racially polarized voting is

voting identified

the Gingles Court

_______

U.S. at

in the

split on

63-64 (opinion

justices that

the

irrelevant under VRA

of

etiology of

2)

with id.
____ ___

at 100-02 (O'Connor, J., concurring in the judgment) (stating for

four justices that the

reasons why white voters

reject minority

candidates are relevant) and id. at 82-83 (White, J., concurring)

___ ___

(rejecting,

without explanation,

controversy

has raged since then, see, e.g., Nipper v. Smith, 39

___ ____ ______
_____

F.3d

1494, 1513-14 (11th Cir.

Justice

Brennan's view),

1994) (en banc)

(holding for two

judges, with two judges dissenting, that the existence

bias in the community

is relevant to a

and

of racial

section 2 claim),

cert.

_____

denied,
______

115 S.

Ct.

1795 (1995);

League of United Latin Am.

_____________________________

Citizens, Council No, 4434 [LULAC]

____________________________ _____

850-63 (5th

Cir. 1993)

v. Clements, 999
________

(en banc) (reaching

F.2d 831,

similar conclusion,

____________________

3We recognize that such

bloc

voting"

capture

and "racially

the subtleties

political

widely used terms of art

process.

polarized

voting"

of specific problems

The case

at bar, for

voting patterns of the majority

may not

always

that arise

in the

example, involves the

(loosely termed "white") and the

specific minority symbolized

by the

"Hispanics").

this

Concededly,

as "white

plaintiffs (loosely
taxonomy

is

termed

imprecise;

for

example, not all people who are considered "Hispanic" necessarily

consider

themselves

"non-white."

To

that

extent, then,

the

phrase "white bloc voting," though used repeatedly throughout the

decided

cases,

misleading.

may

be

somewhat inaccurate

Similarly, VRA

or

even

2 applies to denials of

slightly

the right

to vote on account of either race or color, yet the opinions harp

______
on the phrase "racially
idiom

of

the

case

polarized voting."
law

may

neglect

To that
potentially

extent, the

important

distinctions

between the concepts of "race"

acknowledging

these limitations,

we can

and "color."

think of

While

no universal

solution, and, thus, take refuge in the pat terminology.

10

with

three

judges dissenting),

cert.
_____

denied, 114
______

S.

Ct. 878

(1994), we are of the view that De Grandy has removed much of the
_________

doubt.

Even

when

the

Gingles
_______

preconditions

coalesce

and

thereby

create an

inference

electoral opportunity

of discrimination,

remains the central focus

Furthermore, that question "must

and

equal

of the inquiry.

still be addressed

explicitly,

without isolating any other arguably relevant facts from the

act of judgment."

De Grandy, 114 S. Ct. at 2657.

_________

evident

presence

that the

"arguably relevant" to

equal

lack of

electoral

or

absence

of

bias

the question of whether

opportunity.

After

all,

It seems self-

is

at

least

a minority lacks

a minority

group's

prospects for electoral success in a community riven along racial

lines differ significantly from its

community.

We agree with

prospects in a more

the Fifth Circuit

that "[a] tendency

among whites to cast their votes on the basis of

far more

durable obstacle

unified

race presents a

to the coalition-building

upon which

minority

electoral

ideology."

success

depends

than

over

LULAC, 999 F.2d at 858.

_____

By

like token,

however, sentiments unrelated

also can be powerful stimuli.

When it can

particular

are

unrelated

disagreements

community,

voters

to race, it is

preferred candidate

moved

be shown that, in

primarily

reasonable to assume

who embodies

able to engender majoritarian (white) support.

11

Thus:

by

causes

that a minority-

these values might

U.S. at 100-01 (O'Connor, J., concurring).

to race

equally be

See Gingles, 478

___ _______

Evidence

that a

minority group
rejected
than

candidate preferred
in a particular

by white

voters for

those which

made

preferred choice of
seem

clearly

question

that

by the

election was
reasons other
candidate

the

the minority group would

relevant

in

answering

the

whether bloc voting by white voters

will consistently defeat minority candidates.

Id. at 100.
___

The upshot

cause of

is that when

an electoral defeat

the defeat does not prove

racial antagonism is

suffered by a

not the

minority candidate,

a lack of electoral opportunity but

lack of whatever else it takes to be successful in politics (say,

failure to support popular

programmatic initiatives, or

failure

to reflect

the majority's ideological viewpoints,

appreciate the popularity of

bridge

that gap

2658 n.11;

nor should

balm for racial minorities,

believe it follows

prevail

See De Grandy,
___ _________

does not

114 S. Ct. at

361 (7th Cir. 1992) (explaining that section 2 "is

the two often coincide"),

We

it.

Section 2

see also Baird v. Consolidated City of Indianapolis,

___ ____ _____
__________________________________

976 F.2d 357,

an incumbent).

or failure to

on a VRA

not political ones

cert. denied, 113 S. Ct.

_____ ______

even though

2334 (1993).

that, after De Grandy, plaintiffs cannot

__________

2 claim if

there is significantly probative

evidence that whites voted as a bloc for reasons wholly unrelated

to racial animus.

This

We so hold.

holding draws

sustenance

from the

language

of

section 2

itself,

particularly

electoral structures

the right to vote

1973(a).

Other

the

that result in

"on account of

statute's

a denial or

prohibition

of

abridgement of

race or color."

42 U.S.C.

courts have found this language determinative of

12

the question, see, e.g.,

___ ____

F.2d

at 850,

Nipper, 39 F.3d at 1515-17;

______

especially when

coupled with

LULAC, 999
_____

legislative history

indicating that an electoral scheme violates VRA

2 only when it

"interacts with racial bias in the community and allows that bias

to dilute the voting strength of the minority group."

Nipper, 39
______

F.2d at 1520 (commenting upon legislative history).

Those

including the present plaintiffs

who favor a

more single-minded interpretation of section 2 marshal a regiment

of counterarguments.

compatibility of

Their

most serious objection questions the

our holding with Congress's

action in amending

section 2 to scrap the "intent" test imposed by City of Mobile v.

______________

Bolden, 446
______

U.S. 55, 62 (1980),

"results" test earlier

755, 765-66 (1973),

(1971).

This

and to insert in

its place the

adumbrated in White v. Regester, 412 U.S.

_____
________

and Whitcomb
________

substitution

v. Chavis, 403
______

permits plaintiffs

U.S. 124,

to

show

143

vote

dilution

denial

by proving

that

electoral structures

or abridgement of the right

"result[] in

of any citizen of the United

States to vote on account of race or color," 42 U.S.C.

and, concomitantly,

the

structures

relieves them of the burden

were

set

discrimination purpose.

equated

Congress's

in

place

Against

adoption

of

to

1973(a),

of proving that

advance

racially

this mise-en-scene, some

_____________

the

"results"

intention to foreclose any inquiry whatever into

test

have

with

an

the reasons why

minority groups lack opportunities for electoral participation.

We do not believe that the

to this restrictive conclusion.

1982 amendment lends itself

The now-discarded "intent" test

13

specifically required plaintiffs to prove that government created

or

maintained

the

challenged

electoral

structure

with

discriminatory purpose, actually intending that a structure would

disadvantage minority voters.

enacting

plaintiffs

the

amendment,

no longer

instead have to carry

have

See Mobile, 446 U.S. at 62-63.

___ ______

Congress

to prove

shifted

the

focus:

discriminatory intent

the burden of proving that

electoral structure results

law's

in a denial of equal

In

but

the challenged

opportunity on

account of race.

Properly

minorities against

they

will

be

purportedly

point.

conceived, the

a stacked

dealt a

codified in

deck but

winning

the

results test

hand.

protects racial

does not

guarantee that

Whitcomb
________

1982 amendment

an opinion

illustrates

the

There, the Court discerned no denial of equal opportunity

when a minority group's failure to elect its preferred candidates

"emerges

more as a function of losing elections than of built-in

bias" directed by the establishment majority against the minority

group.

that,

Whitcomb, 403 U.S. at 153.

________

even

minority

illegal if

when

election

group's voting

The lesson to be learned is

returns in

power, the

the defeat represents

effect

short-circuit

electoral structure

nothing more than

is not

the routine

operation of political

factors.

under the 1982 amendment, a

to race
__ ____

Hence,

is not

VRA

not require

2,

a proxy

See id.
___ ___

lack of electoral success

for a lack

of opportunity

as amended, despite its

courts to

In other words,

unrelated
_________

to succeed.

focus on results, does

ignore evidence that

14

even

factors other

than

race

are

minority

the

real obstacles

group.

to

See Gingles,
___ _______

the

political

478 U.S.

at 101

concurring) ("The overall vote dilution

nor

permits

an

arbitrary

evidence concerning

voting

success of

(O'Connor, J.,

inquiry neither requires

rule against

consideration

preferences other

than

of

all

statistical

evidence of racial voting patterns.").

We recognize, of course,

the

causes

of white

bloc

voting

remedial purposes of the VRA in

of vote

LULAC,
_____

see, e.g., id.

___ ____ ___

999 F.2d

foundation.

at

860, and

potentially jeopardizes

into

the

the sense that it may make proof

dilution more difficult.

on this score,

that permitting inquiry

Courts

have expressed concern

at 72

(opinion of Brennan,

these

concerns are

Yet, two responses spring to

mind.

not

J.);

without

First, the VRA

is designed to ensure that the electoral process

opportunities for access to it are equal.

blind eye to other

neither

approach

of

1973(b)

but,

to proportional

through which Congress

Forcing courts to turn

causes of majoritarian

these ends,

rather,

is fair and the

bloc voting serves

facilitates a

representation.

That is

desired courts to pass.

back-door

not a

See
___

door

42 U.S.C.

(stating that nothing in the VRA "establishes a right to

have members of

a protected

class elected in

numbers equal

to

their proportion in the population").

Second,

misapprehend

section

establish

the

2 claim.

a prima

we

suspect

nature

As

that

of the

at

bottom

showing

amended, the statute

facie case

of vote

needed

the

skeptics

to

support a

allows plaintiffs to

dilution by

proving the

15

three Gingles preconditions.

_______

The second and third preconditions

are designed to assay whether racial cleavages in voting patterns

exist

and, if

so, whether

those cleavages

defeat minority-preferred candidates time

are deep

and again.

enough to

If proven,

these preconditions give rise to an inference that racial bias is

operating through the medium

of the targeted electoral structure

to impair minority political

S.

Ct.

at

opportunity

2657

may

opportunities.

(noting

be

that

readily

"lack

imagined

and

See De Grandy, 114

___ __________

of

equal

electoral

unsurprising

when

demonstrated under circumstances that include the three essential

Gingles factors"); Nipper,

_______
______

of

39 F.3d at 1525

(stating that "proof

the second and third Gingles factors will ordinarily create a

_______

sufficient inference that racial bias is at work"); United States

_____________

v.

Marengo County Comm'n,

_______________________

731

(stating that

the second and third

the

indication

"surest

of

denied, 469 U.S. 976 (1984).

______

F.2d

1546, 1567

(11th

Cir.)

Gingles preconditions remain

_______

race-conscious

politics"),

cert.
_____

The

strong;

resultant inference

it will

endure unless and

______ ___

credible evidence tending to

can most

immutable, but

until the
_____

defendant adduces

by factors

unconnected to

of race with the electoral system.4

F.3d at 1524.

it is

prove that detected voting patterns

logically be explained

intersection

is not

the

See Nipper, 39
___ ______

It is only when such evidence possesses convictive

____________________

4Such
disarray,

factors
lack

unattractiveness

of
of

might include,
funds,

want

particular

for
of

example, organizational

campaign

candidates,

popularity of an opponent.

16

experience,
or

the

the

universal

force that the

inference of

serious question.

Even if

not

racial animus will

into

See De Grandy, 114 S. Ct. at 2658.

___ _________

such proof is forthcoming,

automatically triumph.

whether, based

be called

on the

Instead,

the defendant does

the court

totality of the

must determine

circumstances (including

the original inference and

the factual predicate that undergirds

it),

proven

the

plaintiffs have

denied

meaningful access to

race.

The

plaintiffs;

burden

of

defendant's

that the

minority

the political system

proof

burden

at all

is

times

an

group was

on account of

remains

entry-level

with

the

burden

of

production.

raise

Thus, once the defendant proffers enough evidence to

legitimate

question

factors adequately explain

in regard

to

whether

racial voting patterns,

nonracial

the ultimate

burden of persuading the factfinder that the voting patterns were

engendered by race rests with the plaintiffs.

Despite

the allocation

of the

burden of

framework imposes a high hurdle for those who seek

existing

system

despite

suggests

bloc voting along racial

to defend the

meaningful statistical

lines.5

See
___

proof, this

evidence

that

Jenkins, 4 F.3d
_______

____________________

5The proceedings below illustrate

court

acknowledged

but did not accept

this point.

The district

the City's attribution

of the Hispanic community's lack of electoral success to "factors

other than

the at-large

system itself, including

voter apathy,

unattractive candidates, poor campaign organizations and the like

all

evidenced by low voter turnout."

Holyoke, 880 F. Supp. at

_______
926.

The

explanations

court

seemingly

rejected

as a

matter of

fact.

based on the overall evidence,

how

attractive and no matter

the

City's

See id.
___ ___

alternative

(concluding that,

an Hispanic candidate, "no matter

how effective at

bringing out the

Hispanic vote, [would not have had] a fair opportunity to win any
at-large election in

Holyoke during this period").

Having used

this illustration, we hasten to add that, on remand, the court is

17

at 1135.

We predict that cases will be rare

in which plaintiffs

establish the Gingles preconditions yet fail on a section 2 claim

_______

because other

facts undermine the

regard,

we emphasize

require

the plaintiffs

possible

explanation

plaintiffs

must

that establishing

affirmatively

for racially

simply

preconditions (alone or

circumstances)

are

prove

strong

vote dilution

to disprove

polarized

that

enough

the countervailing

agents mustered

by the

the electoral system

In this

does not

every

voting.

the

three

in

given

evidence of

defendant, the

other

Rather,

threshold

in combination with the totality

notwithstanding

that racial politics

original inference.

of the

case

that,

other causative

record sustains

specifically, the interaction of

a claim

race and

have resulted in significantly diminished

opportunities for minority participation in elective government.

IV.
IV.

THE ASSIGNMENTS OF ERROR

THE ASSIGNMENTS OF ERROR

Having cemented

evaluating

vote

dilution claims,

gleaned understanding

below.

into place

on the

the general

we

shine

the

City's objections to

framework for

light of

our

the decision

We divide our discussion into four segments.

A.
A.

In

different

this case,

The Analytic Model.

The Analytic Model.
__________________

the

district

races in six different

court

analyzed

fifteen

election years spanning a ten-

year period from

1983 through 1993.

undifferentiated

whole, the

Taking

court found

this evidence as an

a pattern

of racially

____________________

free to

revisit the evidence

and reconsider

all its

findings,

including those that touch upon other possible causes of racially

polarized voting.

18

polarized voting sufficient to support the plaintiffs' prayer for

relief.

The City assigns error, positing that racially polarized

voting

cannot be deduced from an overview which blends data from

series

of

separate

unexceptionable.

"legally

elections,

The City's

significant"

this

theme,

the City

point is

elections

underbrace, a finding that VRA

some

can

suspect

that only

be relevant

each

of the

some

evidence from

to,

2 has been abridged.

asserts that

and

or

can

Warming to

three Gingles
_______

preconditions

must

be shown

to

exist

vis-a-vis a
_________

particular

election before a court may mull what transpired at that election

as a link in the evidentiary chain

of

vote

below, in

dilution.

If this

approach

considering whether

pattern of racially polarized

that leads to a determination

were adopted,

the plaintiffs had

the court

established a

voting over the years,

could not

have relied upon evidence drawn from any discrete election unless

the plaintiffs first

that election.6

In

proved a violation of the VRA

in regard to

We reject the City's approach.

this

enlightened

day

and

age,

bigots

rarely

advertise an intention to engage in race-conscious politics.

surprisingly, therefore, racially polarized

silent,

shadowy thief

of

the minority's

Not

voting tends to be a

rights.

Where

such

____________________

6To give
Hispanics
satisfy

concrete examples,

did not
the

evidence of

first

constitute
Gingles
_______

Holyoke contends that

a sufficiently
precondition,

white bloc voting

in that year

in 1983

compact group

thus

rendering

to

any

legally irrelevant.

In the same vein, the City insists that the district court should
have

ignored

elections

evidence

of

won by minority

racially

polarized

candidates or in

not sufficiently cohere.

19

voting

in

any

which Hispanics did

activity is

involves

detected at all, the process

resort to

demographics,

election

conduct,

and the

packaged

but

accumulated

57; Jenkins,
_______

F.2d

a multifaceted

like.

must

results,

array of

voting

Usually, such

be pieced

together

in a series of elections.

4 F.3d at 1119;

1407, 1417

(9th Cir.

of detection typically

evidence including

patterns,

evidence is

bit

by

campaign

not neatly

bit from

data

See Gingles, 478 U.S. at

___ _______

Gomez v. City of Watsonville, 863

_____
____________________

1988), cert.
_____

denied, 489
______

U.S. 1080

(1989); City of Carrollton Branch of NAACP v. Stallings, 829 F.2d

__________________________________
_________

1547, 1557 (11th Cir.

1987), cert. denied, 485 U.S.

_____ ______

936 (1988).

Thus, the question whether a given electoral district experiences

racially polarized voting to a legally significant extent demands

a series of discrete inquiries not only into election results but

also into minority and white voting practices over time.

We think that this

in Holyoke's thesis.

not

analysis exposes the principal flaw

The requirement

of "legal significance" is

a barometer for deciding what evidence of racially polarized

voting may

be considered;

which all

although

the evidence,

weaknesses

elections

may

taken in

plot

well imperil

significant racially

not greater

in

rather, it

render evidence

from those

be measured.

siphoned

overall

polarized voting

than the sum of

benchmark against

sum, must

lines

an

is the

the parts

from

individual

conclusion of

the

such

And

legally

whole is frequently

weaknesses do not

elections inadmissible.

It follows

that reliance on such evidence does not necessarily invalidate an

overall

conclusion

that unlawful

vote

dilution

exists.

See
___

20

Gingles, 478 U.S.

_______

elections

racially

individual

are

at 57

(explaining that "in

shown usually

polarized voting

is

elections does not

to

not

be

a district

polarized, the

present

in

one

where

fact

or

that

few

necessarily negate the conclusion

that the district experiences legally significant bloc voting").

This paradigm

is fully consistent with

the reality of

events.

single

One swallow does not a summer make, and the results of a

election

existence or

politics (or

readily be

series

seen by

of elections

single election.

polarized

unlikely,

nonexistence of

race-conscious

more

are

without

prove

embedded racial cleavages.

its absence,

producing a

than by

to

for that

Thus,

matter) can

documentary that

taking an

the

spans a

isolated snapshot

of a

After all, to be legally significant, racially

voting in a specific community must be such that, over

a period of years,

whites vote sufficiently as a

minority

candidates most of the time.

reliably

to tell

whether

together

behind

particular

elections

more,

in

the

See
___

racial groups

relevant

candidates

time

frame

bloc to defeat

id. at 56.
___

do

(or do

with

(or,

In order

not)

regularity,

at

least,

band

all

representative sampling of them) must be studied

elections

that, taken

in

isolation, reveal

not just those

the cicatrices

of

racially polarized voting.

On this basis, we reject the City's contention that the

failure to prove any one Gingles precondition in any one election

_______

eliminates

that

preconditions

election

are necessary

from

judicial

to prove

21

consideration.

an overall

The

conclusion of

vote

dilution, not

to

demonstrate

particular morsels of evidence.

right

its

usually coheres

relevance vel
___

non
___

of

Hence, the court below had every

to analyze all the elections

effort to ascertain both

the

(suspect and non-suspect) in

whether (1) the Hispanic community

behind particular candidates,

and (2) Holyoke's

white citizens usually vote against Hispanic-preferred candidates

in sufficient numbers to prevent their election.

B.
B.

Holyoke's

city council

eight at-large seats

era

when

few

Compactness.
Compactness.
___________

persons

model

seven ward

seats and

dates back more than three decades (to an

of

Hispanic

descent

dwelt

in

the

municipality).

controls

In

Currently,

the

Hispanic community

two of the fifteen city council

addition, Hispanics constitute

population

in Ward 4.

City strives to

the

ward.

seats (Wards 1 and 2).

about 28%

of the

voting age

Based on these population statistics, the

persuade us that

Gingles preconditions
_______

insufficiently

effectively

because

compact to

the plaintiffs cannot

Hispanics, as

constitute

the majority

satisfy

a group,

in a

are

third

We are unconvinced for two reasons.

First, the City failed to make this claim in its brief,

asserting it for

one's feet is

the first time at

a useful tool

oral argument.

of appellate

advocacy only if

thinker has a suitable foothold in the record.

was too little

too late.

See United States

___ _____________

Thinking on

the

Here, the thought

v. Gertner, 65 F.3d
_______

963, 971 n.7 (1st

Cir. 1995) (refusing to entertain

an argument

not raised in the government's appellate brief); see also Fed. R.

___ ____

22

App. P. 28(a).

In all events, the

founded

on a

benchmarks

faulty

for

City's spur-of-the-moment retort is

premise.

matching

the

It

assumes that

Hispanic

the

population

relevant

and

its

opportunity for access are the

assumption

seven single-member wards.

This

is faulty because the litigation challenges Holyoke's

electoral system

as a whole, and, to the extent the challenge is

scissile, its cynosure is not the wards but the system's at-large

component

a component

opportunity

for

affairs.

Refined

that, because

full

that allegedly dilutes

political

to bare

essence, the

of the combined

structure and an incipient

participation

the plaintiffs'

in

municipal

plaintiffs' theory

impact of the

is

at-large electoral

pattern of racially polarized voting,

Hispanics can only hope to elect candidates to two of the fifteen

city council seats

they

(i.e., about

14% of the

seats) even

comprise at least 22% of Holyoke's total population.

though

Thus,

the City's emphasis on the seven wards misses the point.

This does not

mean that the wards

are an irrelevancy.

successful vote

dilution

challenge "must

alternative practice as a benchmark

existing voting practice."

(1994).

to

In

reasonable

against which to measure the

Holder v. Hall, 114 S. Ct. 2581, 2585

______
____

that sense, the single-member districts are relevant

an assessment of the

system's at-large component.

may be theoretically possible

to

find a

While it

to analogize the plaintiffs' claim

a challenge addressed to a multimember at-large district

in

which case the court would have to compare Hispanic opportunities

23

to elect candidates to one of the eight undifferentiated at-large

seats

to the

potential opportunities

that might

exist if

multimember district were

divided into eight contiguous

member

e.g.,
____

districts,

see,
___

id.
___

at

2589

the

single-

(O'Connor,

J.,

concurring) ("In a challenge to a multimember at-large system . .

. a

court may compare

districts.")

limits.

the

Here,

the

it to a system

analogy cannot

analogy

would

plaintiffs' challenge is addressed

as a whole.

consider

of multiple single-member

be carried

be

past its

imperfect

logical

because

the

to Holyoke's electoral system

Accordingly, the district court had an obligation to

whether that system

not just its at-large component

provides minorities with an equal opportunity to elect candidates

of their choice.

See Baird, 976

___ _____

F.2d at 360; NAACP

_____

Columbia, 850 F. Supp. 404, 429 (D.S.C. 1993),

________

v. City of
_______

aff'd, 33 F.3d 52
_____

(4th Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995).

_____ ______

Bearing this in

mind, we

think that

constructed a reasonable benchmark by

the lower

court

comparing current Hispanic

opportunities to potential opportunities

that would exist if the

municipality were divided into fifteen single-member councilmanic

districts.

conclusion

Hispanics

three

And since

that,

under

we

find no

its

clear error

projected

would constitute a majority

of fifteen reconstituted

set

of

in the

circumstances,

of the votes

wards, we

court's

cannot set

in at least

aside its

finding that Hispanics are a sufficiently compact group.

C.
C.

Low Voter Turnout.

Low Voter Turnout.
_________________

The City also asserts

that, given the consistently low

24

turnout

among Holyoke's

Hispanic

voters, see
___

Holyoke, 880
_______

F.

Supp. at 925 ("Hispanic turnout rates in Holyoke have varied from

22%

to as

low as 2%

over a

ten-year period,

. .

. differing

considerably

from

election to

precinct."),

the

district court

declaring the

election

erred as

finding

from precinct

matter of

that

particular

to

law in

Hispanic community to be politically cohesive.

the City's view, low turnout betokens

and

In

voter apathy and precludes

candidates

received

significant

minority support (as required to show minority political cohesion

under

Gingles,
_______

478 U.S.

anemic turnout but argue

cohesion

inquiry.

at 56).

The plaintiffs

that it is irrelevant to

They

take the

position that

concede the

the political

courts should

frame answers to such inquiries after considering the behavior of

those minority

voters

who actually

electoral process, and not

opt to

participate in

the

gaze beyond that group (whatever

its

size) to count the number that sit on the sidelines.

We

VRA

is

to

candidates

routine

walk a middle path.

provide a

level

impediments

playing

like all candidates

vicissitudes of

arising out

electoral system.

A principal

on which

minority

will be exposed only

the electoral

of

field

objective of the

process, not

the intersection

of

to the

to special

race and

the

So, if a defeat at the polls (or even a string

of defeats) is caused by,

say, a candidate's lack of merit

or a

campaign's lack of focus, the Voting Rights Act is not infringed.

See
___

1423,

Whitfield v.
_________

Democratic Party of State of Ark.,

___________________________________

890 F.2d

1430 (8th Cir. 1989) (explaining that a "causal connection

25

between

power

the challenged

practice .

. .

and the

of the minority must be established").

diluted voting

By like token, if

the defeat of minority candidates occurs because the votes of the

members

of the

diverse

interests,

lacking.

minority community

then

the

are scattered

requisite

See Gingles, 478 U.S. at 51.

___ _______

the interaction of race

causal

due

to their

connection

is

Under such circumstances,

with the electoral system

cannot justly

be blamed for a minority group's lack of success at the polls.

In the case of low

voter turnout, the electoral system

may not always be so easily absolved.

modest

turnout,

the

actual

For one thing, even with a

votes cast

may

be

probative

minority cohesion if a sufficiently strong pattern emerges.

e.g.,
____

n.4

of

See,
___

United States v. Dallas County Comm'n, 739 F.2d 1529, 1536

_____________
____________________

(11th Cir. 1984).

For another thing,

low voter turnout in

the minority community sometimes

may result from the interaction

of the electoral system with the

effects of past discrimination,

which

together

participation.

actually

U.S. at

1416

n.4

operate

In

to

such

discourage

instances,

meaningful

low

be probative of vote dilution.

turnout

electoral

itself

may

See, e.g., Gingles, 478

___ ____ _______

69 (opinion of Brennan, J.); see also Gomez, 863 F.2d at

___ ____ _____

(suggesting

that

voter

apathy

traceable

to

past

discrimination is

"evidence of minority voters'

lack of ability
_______

to participate effectively in the political process"); Kirksey v.

_______

Board of
Supervisors,
_______________________

(observing that failure to

554

F.2d

139,

145

n.13

(5th

register may be a residual

Cir.)

effect of

previous lack of access or feelings of futility in light of white

26

bloc

voting),

cert.

denied,

434

U.S.

968

(1977);

see also

_____

______

___ ____

Buckanaga v. Sisseton Indep. Sch. Dist., 804 F.2d 469,

_________
___________________________

Cir. 1986).

the

475 (8th

When low turnout results from the very problems that

Voting Rights

Act is

intended to

mindless for courts to ignore

ameliorate, it

would be

the evidence of minority

cohesion

that can be culled from the actual ballot tallies.

This

either

dilution

is not to say,

would have it,

that low voter turnout is altogether irrelevant to a vote

inquiry, or

voting results.

detect.

as the plaintiffs

courts should

group's political

only to

voters have not made reasonable

participate in the electoral

accurately gauge

look

actual

The cause of poor turnout is often difficult to

If minority

organize and

that

the

effects

aspirations.

efforts to

system, courts cannot

of the

system

See

City of

on

the

minority

Columbia, 850

F.

___

Supp.

at 415-16.

Furthermore,

indicium of

ebbing community

candidate.

See id. at
___ ___

may

or may

not

_________________

low turnout sometimes

support for a

418-19.

particular minority

Hence, evidence

be probative

on

may be an

the

of this nature

issue of

minority

cohesion.

In

the final

analysis,

minority voter turnout helps

and the related question

sufficient

without

(or better)

regard

circumstances

to

of

the

cannot resort to the

the question

or hurts a claim of

of whether

vote dilution,

of whether actual votes cast

measure of

turnout,

both

particular

provide a

minority political

depend

case.

on

low

the

cohesion

facts

Consequently,

easy visibility of a bright-line

and

courts

rule.

On

27

this delicate, fact-sensitive issue, only a case-by-case approach

satisfactorily permits courts to peel away the layers and conduct

the functional vote dilution inquiry that the VRA requires.

In the case at hand, the district court made reasonably

detailed

turnout

findings concerning the

among

Hispanics

Holyoke's electoral system.

and

relationship between depressed

the

structural

attributes

The court determined that

of

the City

imposed

Hispanic

or neglected

to remove

political participation.

The

variety of

obstacles to

court mentioned,

inter
_____

alia, the City's niggardly deployment of bilingual registrars and

____

poll

workers,

its

removal

from voter

registration

rolls

of

Hispanics who did not fill out English-language census forms, and

its

failure to print ballot information posters in Spanish.

Holyoke, 880 F. Supp. at

_______

deficiencies,

along

925.

In the court's estimation,

with downtrodden

matters, the

court found

that

these

socioeconomic conditions,

accounted for the low turnout among Hispanic voters.

cap

See
___

the actual

Id.
___

And to

turnout, though

small, was adequate to reflect political cohesion in the Hispanic

community.

Id.
___

We believe that

these findings are supportable.

In a

vote dilution case characterized by meager turnout among minority

voters,

plaintiffs

numbers

is

the

community and

interaction

show that

the

between racial

sole cause

divisions

of low

in

identifiable elements of the electoral system.

is sufficient if

considerations

need not

the plaintiffs

implicating

persuade the

race

28

contributed

trial court

substantially

the

It

that

to

repressing

minority participation.

facts

circumstances,

and

coupled

explicit findings, we believe

burden here.

undercut

In

light of

with

the

the aggregate

district

court's

that the plaintiffs satisfied this

Thus, the evidence of low Hispanic turnout does not

the court's

ultimate

conclusion that

the

plaintiffs

established minority political cohesion.7

D.
D.

The

court's

facts.

Adequacy of the Findings.

Adequacy of the Findings.
________________________

City's

application of

most

telling

point

relevant legal

involves

principles to

the

lower

discerned

In condoning the necessary appraisal, we are mindful that

a district judge

broad a brush.

sitting without

a jury cannot

paint with

too

Rule 52(a) requires the judge to make findings of

fact and

permit

conclusions of

law that

a reviewing court to

are sufficiently detailed

ascertain the factual

the legal foundation for, the rulings below.

Unit Die Prods., Inc., 43 F.3d

_____________________

to

core of, and

See Touch v. Master

___ _____
______

754, 759 (1st Cir. 1995); Pearson

_______

v. Fair, 808 F.2d 163, 165-66 & n.2 (1st Cir. 1986) (per curiam).
____

This bedrock rule has particular force in cases of this

genre.

Vote dilution claims

degree of complexity.

demands

a careful

patterns.

The

are often marked

by a significant

Typically, the resolution

sifting of

legal

of such claims

imbricated, highly

principles

that

must

be

ramified fact

applied

are

____________________

7We leave open the

voter

turnout in

possibility that especially low minority

particular election

may

be evidence

that

factors other

than racially based politics

organization
cause

of

or lack

the

of

minority

minority community
community's

(say, poor political

support) were

inability

to

elect

the

its

preferred candidate in that election.

29

convoluted,

and they

precepts, together

separation

almost

always

with important

of powers.

touch upon

constitutional

issues of federalism

and the

Accordingly, a trial court that decides a

vote dilution case must be scrupulous in chronicling the relevant

facts

and delineating the

ultimate

conclusion of

McWherter, 46 F.3d
_________

F.2d at

vote dilution

568, 574-75 (6th

To this

See
___

Cousin v.
______

Cir. 1995); Buckanaga,

_________

the substantial

472); see
___

collecting

supports its decision

but also all

also Houston,
____ _______

Despite

investment of time and

thoughtful analysis

its opinion."

229 (8th Cir. 1992) (quoting

cases).

1017, 1020

must discuss

evidence contrary to

Ladd, 958 F.2d 226,

____

804

end, the district court

only the evidence that

F.2d at

vel non.
___ ___

facts and the

472; Velasquez v. City of Abilene, 725 F.2d

_________
________________

(5th Cir. 1984).

"not

linkages between those

56 F.3d

the

Harvell v.
_______

Buckanaga, 804
_________

at 612 n.6

district

(similar;

judge's

effort in the proceedings below,

of difficult

legal issues, the

obvious

and his

findings of

fact

in

the

instant

case

fail

to

satisfy

these

under

VRA

2,

demanding

criteria.

In

any

claim

brought

preconditions are central to the

trial court sounded an

second and third

the Gingles
_______

plaintiffs' success.

uncertain trumpet in respect to

preconditions.

lack of congruence between

This

Here, the

both the

uncertainty stems from

the court's subsidiary findings anent

the particular elections it

studied and its overall findings

minority cohesion and white

bloc voting in Holyoke.

briefly.

30

of

We explain

The

Hispanic

lower court

analyzed fifteen

candidates ran for office.8

elections in

Of these,

only four were

at-large elections; the rest were ward elections for

council

or school committee seats.

elections, Hispanic

reveal

voting.9

little

The

about

In four

district

minority cohesion

court found

either city

of the eleven ward

candidates ran unopposed.

either

which

These

or

elections

white

neither minority

bloc

cohesion

behind Hispanic candidates nor racially polarized voting in seven

of the eleven elections in

which Hispanic candidates ran against

non-Hispanic opponents.

The court found minority cohesion in the

four remaining elections, and found white bloc voting only in the

____________________

8Although the
2 showing
minority

VRA does not require for a successful section

that minority-preferred
group, see Clarke v.
___ ______

810 n.1 (6th

v. Bond,
____

denied,
______

498

875 F.2d

U.S.

candidates run

937

are often

racial bloc voting.

1488, 1495

(1990),

994 F.2d

in

(1995);

1989), cert.
_____

which

minority

on the

issue of

But

1143, 1149 (5th

assessing the totality

vote dilution case,

the evidence

Cir.), cert.
_____

evidence exhumed from "white

still be relevant in

the circumstances in a
to rebut

elections

especially probative

denied, 114 S. Ct. 555 (1993).

______
only" elections may

40 F.3d 807,

115 S. Ct. 1960

(10th Cir.

of the

See, e.g., Jenkins, 4 F.3d at 1128; Magnolia

___ ____ _______
________

Bar Ass'n, Inc. v. Lee,

________________
___

tends

City of Cincinnati,
__________________

Cir. 1994), cert. denied,

_____ ______

Sanchez
_______

of

candidates be members

of cohesion

especially if it

or white

bloc voting

extracted from "mixed" elections.

9To be sure,
cast in three

See Jenkins, 4 F.3d at 1128.

___ _______

the district court implied

of these four elections (the

committee elections

white bloc voting.

But the

implication that white

See Holyoke, 880

___ _______

F.

record furnishes no foundation for the

voters cast

blank ballots

against unopposed Hispanic candidates.

highest

1989 and 1993 school

in Ward 2, and the 1993 city council race in

the same ward) evinced

Supp. at 923-24.

that blank ballots

as a

protest

In 1989, for example, the

percentage of blank ballots was recorded in the precinct

that had the highest percentage of Hispanic voters.

31

three that occurred

before 1988.10

See Holyoke,
___ _______

880 F.

Supp.

at 921-24.

Viewed from a different angle, the court's finding that

so few

elections exhibited

telltale signs of

minority cohesion

and/or white bloc voting seems to be tantamount to a finding that

those characteristics

of

were absent from

the analyzed elections.

the district

The finding also seems to contradict

court's conclusion that the

the second and

approximately two-thirds

third Gingles
_______

plaintiffs established

preconditions.

Of

course, it

is

possible that

the apparent contradiction can

be explained away:

we recognize

that determining whether racial

bloc voting exists

is

not merely an arithmetic exercise that consists of totting up

columns

of

numbers, and

nothing more.

To the

contrary, the

district court should not confine itself to raw numbers, but must

make a practical,

commonsense assay

Magnolia Bar Ass'n, Inc. v. Lee,

________________________
___

cert. denied,
_____ ______

supra, at
_____

08.

But

114 S. Ct. 555

of all the

evidence.

See
___

994 F.2d 1143, 1147 (5th Cir.),

(1993); see also S.

___ ____

Rep. No. 417,

29-30 & n. 118, reprinted in 1982 U.S.C.C.A.N. at 207_________ __

allowing

for

evaluative judgment does

the

possibility

of

not dissipate the need

sophisticated

to explain that

____________________

10The district court also

found that the minority community

had cohered behind a non-Hispanic candidate, Elaine Pluta, in her

successful 1991 bid for an at-large seat on the city council.
fact, Pluta

ranked ahead

voters' ballots.
Hispanic voters
her

fifth

while there
record

of

a Hispanic

candidate on

In

Hispanic

However, she received strong support from nonas well; that

(out of

sixteen) among

may have been

reflects no

segment of the

at-large candidates.

minority cohesion

evidence of

electorate ranked

white

behind Pluta,

bloc voting

Thus,

the

against the

candidate that minority voters preferred.

32

judgment.

The district court, forced

to juggle several issues at

once, offered no explanation of this seeming contradiction.

court

not only glossed over

clarify why

most

the raw numbers

The

but also failed to

evidence reflecting racially polarized

voting in at

three or four elections (out of eleven) justified a finding

of vote dilution.

that such

While we are unprepared to say,

a finding is incorrect

accept it without a better

as a matter of

here and now,

law, we cannot

articulated rationale.

Thus, because

we are unable to follow the district judge's thought processes in

this regard, we must return

explication of his

n.8

(remanding

reasoning.

because the

general

to allow us

cases);

Cousin, 46
______

fails to provide

Velasquez,
_________

the case to him for a

See Houston, 56
___ _______

"district

to conduct

F.3d at

court

our appellate

more detailed

F.3d at 612-13 &

findings are

review") (citing

575 (remanding because

the bases for

too

the district court

the "record

reasoning");

725 F.2d at 1021 (similar); cf. Westwego Citizens for

___ _____________________

Better Gov't v. City of Westwego, 946 F.2d 1109, 1119

____________
_________________

(5th Cir.

1991)

(ascribing

error

when

district

court's

facially

inconsistent findings were not explained).

We take

courts have

this step

reluctantly, mindful that

heavy workloads and that

not stand unduly on

district court's

permit this to be

appellate tribunals should

ceremony, but should

account when

district

fill in blanks in

the record and

the circumstances

done without short-changing the parties.

Applewood Landscape & Nursery Co. v.

____________________________________

33

the

Hollingsworth, 884
_____________

See
___

F.2d

1502,

1503-04 (1st

Cir.

1989)

(collecting

cases).

In

this

situation, however, the record does not lend itself to curing the

omissions in this fashion.

We

are fortified in this

cautious approach by what we

envision as the distinct possibility that the

have

undervalued

the

import

political environment.

1983 to 1993, the

gathering both

the

During the decade

numbers and

mid-1980s

Holyoke's

rapidly

changing

analyzed by the court,

embryonic Hispanic community grew to maturity,

mounted a "successful

in

of

district court may

political muscle.

Hispanic leaders

community-based voter registration

and

boosted

voter

turnout

drive"

dramatically.

Holyoke, 880 F. Supp. at 922.

_______

In 1985, Holyoke voters elected an

Hispanic to political office for the first time in Massachusetts'

history.

victory,

See id.
___ ___

the

at 921.

1987

successful

city-wide

Holyoke."

Id.
___

municipal

campaign

at 922.11

last contest in which the

bloc voting.

political

Hot

on the

elections

ever

Those

of this

witnessed

by

an

elections also

the

signal

"most

Hispanic

in

witnessed the

district court supportably found white

From that time forward,

dominance over

run

heels

two wards

Hispanics have maintained

and have

represented those

wards on both the school committee and the city council.

See id.
___ ___

at 921-24.

This

rise

____________________

in

the

Hispanic

community's

political

11Success is,
came
close

close but

relative; the Hispanic

nevertheless lost.

only counts

dancing,

of course,

in

While

horseshoes, hand

we think that progress

candidate

some might

say that

grenades, and

ballroom

of this sort,

even short of an

electoral win, is significant.

34

fortunes

is significant.

The ultimate question in any section 2

case must be posed in the present tense, not the past tense.

court must determine

whether the challenged electoral

The

structure

deprives a racial minority of equal opportunity to participate in

the political process at

__

probative of

environmental

provide

Though past elections

racially polarized voting,

change occurs.

In

may be

they become less

particular,

elections

so as

that

insights into past history are less probative than those

that mirror the current

at

present.
_______

political reality.

See LULAC,
___ _____

999 F.2d

891; Meek v. Metropolitan Dade County, 985 F.2d 1471, 1482-83

____
________________________

(11th Cir. 1993).

In

this

Holyoke's political

instance,

the

district

court

evolution, see, e.g., Holyoke,

___ ____ _______

alluded

to

880 F. Supp.

at 927, but does not appear to have given it weight in evaluating

either the Gingles preconditions or the strength of any inference

_______

to be drawn therefrom.

Under these circumstances, we think it is

incumbent upon the court to explain more fully its view that vote

dilution persists in spite of improved political conditions.

V.
V.

ADDITIONAL MATTERS
ADDITIONAL MATTERS

Because remand is required, we take this opportunity to

comment briefly on two other areas of continuing interest.

First,

the

shortcomings

we have

catalogued

in

the

district court's findings cloud the relationship between evidence

of

racially polarized voting in the ward elections and the trial

court's conclusion

system

that the at-large component

unlawfully dilutes the Hispanic

35

vote.

of the electoral

Though

we do not

quarrel with

the court's decision to consider

ward elections

in analyzing racial polarization

elections

as we have

ponder

available

all

voting that

particular

Gretna
______

indicated supra, a
_____

evidence

electoral scheme,

use

of

data

duty to

racially

polarized

on the factors at

work in a

see, e.g.,
___ ____

834 F.2d

in the at-large

court has a

concerning

promises to cast light

v. City of Gretna,
_______________

(approving

evidence from the

496,

from exogenous

Citizens for a Better

______________________

502 (5th

elections

Cir. 1987)

when

other

evidence

remain

and

is

sparse), cert.
_____

denied, 492
______

at a loss, on the record

how

the

court thought

elections informed

contests

questions,

for

that

seats

too, demand more

905 (1989)

on

the

evidence

what had

the

city

council.

specific findings.

F.2d 1327, 1330 (5th Cir.)

when

relies

trial

court

on

from the

transpired in

City of Woodville, 881

_________________

we

as it stands, to comprehend why

the analysis of

at-large

U.S.

information

See
___

ward

the

These

Monroe v.
______

(holding that

from

exogenous

elections, it should undertake fact-specific assessments of their

relevance and

probative worth), modified in

________ __

other respects, 897

_____ ________

F.2d 763, cert. denied, 498 U.S. 822 (1990).

_____ ______

Second, we think that the district court, which made no

reference

to Ward 4 in its initial assessment, must meet head-on

the City's contention that this ward (in which Hispanics comprise

approximately 28% of the voting age population) constitutes a so-

called

influence district

account in

and

therefore should

evaluating whether Hispanic voting

illegally diluted.

36

be taken

into

strength has been

Although

"society's

racial

and

ethnic

cleavages

sometimes necessitate majority-minority districts to ensure equal

political and electoral opportunity,

fact that there

able

are communities in

that should not obscure the

which minority citizens

are

to form coalitions with voters from other racial and ethnic

groups, having no need to be a majority within

a single district

in order to elect candidates of their choice."

De Grandy, 114 S.
_________

Ct. at

2661; see also Chisom

___ ____ ______

v. Roemer, 501 U.S.

______

380, 397 n.24

(1991) (rejecting "the erroneous assumption that a small group of

voters can never influence the outcome of an election"); Gingles,

_______

478 U.S. at

group's

87-88 (O'Connor, J., concurring)

voting strength

only to its prospects

should be

(intimating that a

assessed with

reference not

for electoral success but also in terms of

"other avenues of political influence").

confirm the lessons of

of

practical politics:

a minority group is

which its

population,

members

the voting

not necessarily limited

constitute

but also

These precedents merely

extends

majority

to every

of

strength

to districts in

the

district

voting

age

in which

its

members are sufficiently numerous to have a significant impact at

the ballot box

most of the

Comm., Inc. v.
___________

Boston, 609 F. Supp. 739, 747-48 (D. Mass. 1985),

______

aff'd, 784 F.2d

_____

409 (1st

time.

Cir. 1986);

African-Am. Affairs Council, Inc.

___________________________________

1096,

1105 (W.D.

influence

least

Tenn.)

district exists

See
___

Latino Political Action

________________________

see also
___ ____

v. McWherter,
_________

(three-judge court)

if

Rural W. Tenn.
_______________

a minority

877 F.

Supp.

(holding that

an

group constitutes

at

one-quarter of the voting age population because the group

37

then

every

850

"ha[s] significant

influence

on

candidates in

virtually

election"), aff'd, 116 S. Ct. 42 (1995); City of Columbia,

_____
________________

F. Supp.

at 429

(discussing minority's

"shared influence"

over at-large seats in districts where the minority comprises 40%

of the total voting age population).

Although

we are

unwilling to prescribe

any numerical

floor above which a minority is automatically deemed large enough

to convert a district into an influence district, we believe that

when, as now, a minority group constitutes 28% of the

population,

its

potential

influence

is

voting age

relevant

to

determination of whether the group lacks a meaningful opportunity

to participate in the electoral system.

Supp.

should

at 1102.

As is true

make a searching

exercisable

by

the

realities, past and

conclusions

as to

of other factors, the district court

evaluation of

minority,

(if

at

the degree

consistent

present, and should

how

Accord McWherter, 877 F.

______ _________

all)

with

of influence

the

political

enter its findings

the

voting

and

strength

of

In requiring that influence districts be considered

in

Hispanics in Ward 4 affects the section 2 calculus.

section 2 cases, we

that

the

VRA's

discrimination

legitimacy of

115 S. Ct.

balkanizing

See id.
___ ___

from

are guided by the Court's

goals

the

include

"eradicating

electoral process

our political

institutions."

2475, 2494 (1995).

These goals

electorates and carving

recent admonition

and

invidious

enhancing

Miller
______

the

v. Johnson,
_______

are poorly served by

them into

racial fiefdoms.

Influence districts, on the other hand, are to be prized

38

as a means of encouraging both voters and candidates to dismantle

the

barriers

barriers

with

that wall

voting

districts bring us closer

which race

2832

off

racial

groups and

coalitions.12

In

to "the goal of a

no longer matters."

(1993); see also De Grandy,

___ ____ _________

replace

fine,

those

influence

political system in

Shaw v. Reno, 113

____
____

S. Ct. 2816,

114 S. Ct. at 2661 (reflecting

that "minority voters are not immune from the obligation to pull,

haul,

and trade to find

common political ground,

the virtue of

which is not to be slighted in applying a statute meant to hasten

the waning of racism in American politics").13

VI.
VI.

CONCLUSION
CONCLUSION

To recapitulate, the district court's opinion is

considered

terrain

and

in many

of voting

respects

deftly

rights jurisprudence.

well-

navigates the

Yet,

at the

marshy

risk of

seeming unappreciative of a job well done, we believe the court's

opinion lacks essential clarity in its factual findings.

For one

____________________

12Factoring influence districts into the calculus also helps

ease

the

tension

dilution claims to
avoid

creating

Gingles, 478
_______
"inherent

between

Congress's

desire

to

be brought under section 2 and

a right

U.S. at

to

proportional

84 (O'Connor, J.,

permit

vote

its intent to

representation.

See
___

concurring) (discussing

tension between what Congress wished to do and what it

wished to avoid").

13It is important to
these goals only
opportunity for
process.

to the

realize that influence districts serve

extent that they

reflect a

minority voters to participate

Consequently,

before

the existence

meaningful

in the political
of an

influence

district is given significant weight in the balance, the evidence

must reveal that

joined

with

choice.

minority voters

other

voters

Moreover,

the

in the district

to elect
record

have in

representatives
must

show

that

of

fact

their

elected

representatives from such a district serve, at least in part, the

interests of the minority community and vie for its support.

39

thing,

the court

evidence that

vote

dilution.

neither

appears to

acknowledges

nor discusses

contradict its ultimate

For another thing,

critical

conclusion of

it never adequately explains

the relevance of some evidence upon which it relies quite heavily

to

support

meaningful

this

conclusion.

mention

influence districts).

of

And,

potentially

finally,

salient

it

factors

omits

(such

any

as

Rather than guess at the missing elements,

we think that the course of prudence is to vacate and remand.

We

leave the procedure to be followed on remand to the

lower court's informed discretion,

outer limit on its range

without endeavoring to set an

of options.

See Lussier v.
___ _______

Runyon, 50
______

F.3d 1103, 1115

(1st Cir.), cert. denied, 116

_____ ______

S. Ct. 69 (1995).

At

the court

evidence we

minimum,

identified as

the

must

discuss

troubling (or as possibly

the

have

overlooked) and explain

relationship of this evidence to the issue of vote dilution.

The court need not stop there, however; it is free

to reopen the

record, to take additional evidence, and/or to reconsider all (or

any part) of its findings

in light of the comments

contained in

this

end,

require

opinion.

To

this

while

we

neither

nor

anticipate an entirely new trial, the court in its discretion may

permit

the

parties

to

supplement

the

existing

record

with

additional facts (including, but not limited to, evidence gleaned

from the new round of municipal elections that have recently been

completed).

See Charles Alan Wright & Arthur R. Miller, Federal

___
_______

Practice and Procedure

______________________

We

2577 (2d ed. 1995).

are mindful that, in addition to the assignments of

40

error that we have discussed, the City strenuously objects to the

remedy fashioned

objection

by the

today.

consideration,

violates

expectancy

in

If

again

section

2 of

we offer

the

district

finds that

the VRA

this regard

revisit the question of

Withal

court below.

we

We

court,

Holyoke's

and

we

anticipate

how best to mold an

and, perhaps, at the

do not address

after

this

further

electoral structure

do not

intimate any

that it

will then

appropriate remedy.

expense of remarking the obvious

two brief bits of general

if this contingency materializes.

guidance that may be helpful

First, the court

of remedy in

Second, the

must be sure to

analyze the question

light of any new findings that

court now has

luxury of time.

it makes on remand.

and should take advantage

of

the

The court originally attempted to craft a remedy

in time for the 1995 municipal elections.

That cycle has turned,

and

Given

the

next is

opportunity,

a section 2

well

in the

future.

this

window of

the option of choice (assuming that the court finds

transgression) is

to give the

chance to assemble a remedial plan.

defendant the

first

We think it is a fundamental

tenet of voting rights law that, time permitting, a federal court

should

defer in

the first

city's choice among

instance to

an affected

legally permissible remedies.

state's or

See Cane
___ ____

v.

Worcester County, 35 F.3d 921, 927 (4th Cir. 1994), cert. denied,
________________
_____ ______

115 S. Ct. 1097 (1995); Westwego, 946 F.2d at 1124.

________

If,

satisfactory

and

only

if,

the

City

fails

to

formulate

remedial plan should the district court step in and

41

fashion the

115 S.

appropriate anodyne ex proprio vigore.

__ _______ ______

Ct. at 2488.

It

goes almost without

See Miller,
___ ______

saying that

this

authority must be exercised responsibly and with due attention to

the

Supreme

Court's

recent

warnings

about

the

social

and

political costs of dividing communities along racial lines in the

name of improving electoral systems.

at

2832

remedial

(observing

purposes,

that

may

"[r]acial

balkanize

See, e.g., Shaw, 113 S. Ct.

___ ____ ____

gerrymandering,

us

into

even

competing

for

racial

factions").

Vacated and remanded.

Vacated and remanded.
____________________

costs on this appeal.

costs on this appeal.
____________________

All parties will bear their own

All parties will bear their own
________________________________

42