# Shirt v. Hazeltine

> District Court, D. South Dakota · September 15, 2004 · 336 F. Supp. 2d 976

URL: https://www.frixlaw.com/law-library/cases/2526227

## Case

- **Full name:** Alfred Bone SHIRT; Belva Black Lance; Bonnie High Bull; And Germaine Moves Camp, Plaintiffs, v. Joyce HAZELTINE, in Her Official Capacity as Secretary of the State of South Dakota; Scott Eccarius, in His Official Capacity as Speaker of the South Dakota House of Representatives; South Dakota House of Representatives; Arnold Brown, in His Official Capacity as President of the South Dakota Senate; And South Dakota Senate, Defendants
- **Court:** District Court, D. South Dakota
- **Decided:** September 15, 2004
- **Citations:** 336 F. Supp. 2d 976; 2004 DSD 18; 2004 U.S. Dist. LEXIS 19265; 2004 WL 2093519
- **Precedential status:** Published
- **Opinion:** Opinion by Schreier
- **Judges:** Schreier
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2526227

## How later opinions describe it (automated extraction)

- explaining a common hierarchy of election history value, when such history is available, noting that "[e]ndogenous elections, contests within the jurisdiction and for the particular office that is at issue, are more probative than exogenous elections"
- finding that white bloc voting usually defeated minority-preferred candidates where the minority-preferred candidate was defeated by bloc voting in fourteen of twenty-four exogenous elections
- noting that the court would give "no weight" to *761 ballot-issue elections because the defendants did not explain "why or how Indian voting behavior with regard to ballot issues would be probative of vote dilution”
- holding that “cohesion exists at levels above 60 percent and may exist, albeit more weakly, at lower levels”

## Opinion text

MEMORANDUM OPINION AND ORDER
SCHREIER, District Judge.
TABLE OF CONTENTS
I. Parties & Background.980
II. History of Districts 26 and 27 .980
III. 2000 Census Data and the Current Legislative Plan.982
IV. Section 2 of the Voting Rights Act.986
A. Sufficiently Large and Geographically Compact.987
B. Minority Political Cohesiveness .995
1. Dr. Cole’s Analysis.996
2. Dr. Zax’s Analysis.998
3. Reliability of Each Method.1001
4. Non-Statistical Evidence of Cohesiveness.1004
5. Partisanship and Low Voter Turnout .1008
C. Usual Defeat of Indian-Preferred Candidates .....1010
D. Totality of the Circumstances..1017
1. History of Discrimination.1018
a. Voting.1018
b. Discrimination in Representation.1023
c. Recent Electoral Processes.1023
d. Access to Polling Places.1026
e. 1975 Amendments to the Voting Rights Act.1027
f. Redistricting and Representation .1028
g. Other Evidence of Official Discrimination.1028
h. Unofficial Discrimination.1031
2. The Extent of Racially Polarized Voting .1034
3. Use of Voting Procedures for Discriminatory Purposes.1036
4. Access to Candidate Slating Process.1037
5. Socioeconomic Disparities.1037
6. Racial Appeals in the Political Process.1041
7. Indian Elected Officials.1042
8. Unresponsiveness.1043
9. Tenuousness.1047
10. Proportionality.1048
11. Indian Candidacies.1049
12. Voter Apathy and Low Turnout.1050
V. Remedy.1052
*980
INTRODUCTION
Plaintiffs contend that South Dakota’s 2001 legislative redistricting plan dilutes Indian voting strength by packing District 27 with a 90 percent supermajority of Indians, in violation of § 2 of the Voting Rights Act of 1965. This, plaintiffs contend, minimized the total number of districts in which Indians could select the candidate of their choice. Plaintiffs seek to create at least one additional single-member house district with a majority of Indians as a remedy. Defendants deny the allegations. After considering the evidence admitted during a nine-day court trial, the court determines by a preponderance of the evidence the following facts and conclusions of law.
I. Parties & Background
Plaintiffs Alfred Bone Shirt and Belva Black Lance are Indians, qualified electors, members of the Rosebud Sioux Tribe, and residents of Todd County, which is currently part of District 27. T.III p. 634, 688. Plaintiffs Bonnie High Bull and Germaine Moves Camp are Indians, qualified electors, and residents of Bennett and Jackson Counties, respectively, which are currently part of District 26. Joint Stipulations of Fact § 1 (Docket 267).
Defendant Chris Nelson is South Dakota’s Secretary of State, Secretariat of the State Election Board, and the successor in office to the original defendant, Joyce Ha-zeltine. Complaint (Docket 1); Answer (Docket 23); T.VI p. 1513. Defendant South Dakota House of Representatives is one of two houses of South Dakota’s legislature. Defendant Matthew Michaels is the Speaker of the House of Representatives and the successor-in-office to Scott Eccarius, an original defendant in this case. Complaint (Docket 1); Answer (Docket 23); T.VIII p. 2215. Defendant South Dakota Senate is South Dakota’s other house of the legislature and defendant Arnold Brown is the President Pro Tempore of the South Dakota Senate. Complaint (Docket 1); Answer (Docket 23); T.VIII p. 2158.
Plaintiffs filed suit on December 26, 2001, alleging that South Dakota’s 2001 legislative redistricting plan (“the Plan”) violates their rights under §§ 2 and 5 of the Voting Rights Act of 1965. Complaint (Docket 1). On January 29, 2002, a three-judge panel heard plaintiffs’ § 5 claim and held that defendants violated § 5 by failing to preclear the Plan. Only the § 2 claim now remains to be decided by this court.
See Bone Shirt v. Hazeltine,
200 F.Supp.2d 1150 (D.S.D.2002).
II. History of Districts 26 and 27
From 1973 to 1975, a task force analyzed Indian/State government relations to improve tribal and state relations in South Dakota. It consisted of nine tribal chairmen, two senators, two representatives, and five lay people. Thomas Short Bull, a member of the Oglala Sioux Tribe (OST), was the executive director. T.II p. 488-89; Ex. 268-270.
As of 1970, there were 28 legislative districts; none were majority Indian, and no Indians had been elected under that plan. One of the task force’s reports discussed voting as it related to Indians in South Dakota. T.II p. 491-94; Ex. 18 p. 162-185; Ex. 267 p. 14.
At trial, Short Bull testified that the task force concluded that the legislative district plan gerrymandered the Rosebud
1
*981
and Pine Ridge
2
Reservations by “divid[ing it] into three legislative districts, effectively neutralizing the Indian vote in that area.” None of the districts were majority Indian. T.II p. 491; Ex. 18 p. 167; Ex. 269 p. 9. A 1974 report by the task force recommended that Shannon, Washabaugh, Todd, and Bennett Counties be combined into one legislative district, which would be a majority Indian district. T.II p. 495; Ex. 18 p. 186; Ex. 267 p. 25.
The legislature never considered the plan. Short Bull testified that “the state representatives and senators felt it was a political hot potato.... [T]his was just too pro-Indian to take as an item of action.... [The legislature] always tried to get ... a compromise on things, but there really wasn’t much to compromise here; either you gerrymander it, or you try to have a district that has more Indian people in the legislative district.” The task force did propose eight other bills in 1974 that affected Indians, and the legislature passed seven of them. T.II. p. 497-506; Ex. 268 p. 43. In 1975, the legislature chose to not fund the task force and it was dissolved. A state Civil Rights Commission followed instead. T.II p. 506, 514.
Following the 1980 census, the legislature drew a new redistricting plan. The state Civil Rights Commission recommended that the state should create a district in the area of the Rosebud and Pine Ridge Reservations. After the national Civil Rights Commission received the state commission’s report, the Department of Justice instructed South Dakota that it would not approve its reapportionment plan unless the state created a substantially Indian district. T.II p. 513-14. The redistricting plan that was enacted in 1981 had 35 single-member senate districts. Each district also elected two house members. District 28, which included Shannon and Todd Counties and half of Bennett County, became the first majority Indian district in South Dakota. SL 1881, ch. 14, § 2; 1983, ch. 10, § 2. In 1982, District 28 was 86 percent Indian. Short Bull was elected from District 28 in 1982 and became the first Indian state Senator. T.II. p. 488, 515-16.
The court finds Short Bull’s testimony credible. His knowledge and experiences as the director of the task force and as the first Indian state senator in South Dakota make his testimony reliable, credible, and probative. Accordingly, the court accepts his testimony and gives it substantial weight.
Following the 1990 census, the legislature again engaged in re-districting. Ex. 869; Ex. 870. Meetings on the issue were held in June 1991 at Sinte Gleska College in Mission, South Dakota, the Bennett
*982
County Courthouse, and Oglala Lakota College (OLC) in Kyle, South Dakota. Ex. 869 p. 1. Testimony at the meetings expressed concern about diluting the Lakota (Indian) vote and about drawing districts “to maximize the opportunity for Lakota people to elect a Lakota to represent them.” People testified about concerns regarding the accuracy of the census results. They believed the reservations had a “significantly greater population than the Census indicated.” Although some testimony urged the legislature to retain the current boundaries, there was also testimony that if a census recount evidenced a strong population increase, “two Indian districts would be preferable.” Ex. 869 p. 1-2. The re-districting plan adopted in 1991 retained a district consisting of Todd and Shannon Counties and a part of Bennett County, except the city of Martin. 1st SS 1999, ch. 1, § 3. This district was renumbered District 27.
Id.
The redistricting plan did not create a second district containing a majority of Indians. Ex. 869; Ex. 870. During a second special session in 1991, the legislature created two single-member house districts, namely Districts 28A and 28B, which encompass part of the Standing Rock Reservation and all of the Cheyenne River Indian Reservation. According to the statute, the districts were created for the purpose of protecting minority voting rights. 2nd SS 1991, ch. 1.
III. 2000 Census Data and the Current Legislative Plan
South Dakota’s Constitution requires reapportionment of its membership every ten years after 1991. S.D. Const, art. Ill, § 5. The legislature convened on October 23-24, 2001, for the purpose of redistricting. Ex. 401 Tab 2; Ex. 402.
3
When drafting the 2001 Plan, the legislature relied on the Census 2000 Redistricting Data Summary File produced by the United States Census Bureau. This was the first federal Census that allowed respondents to identify themselves with more than one racial group. Consequently, there are several ways to assign people to racial groups for the purpose of redistricting. T.I p. 258, 260. The single-race method classifies only those who identify themselves exclusively as a single racial group within that category. The multiple-race method assigns each multiple race response to every category with which the person identifies.
Black Political Task Force v. Galvin,
300 F.Supp.2d 291, 301 (D.Mass.2004). The dual-race method assigns any multiple-race response that includes white and one of the other five race categories to the minority race listed in the response.
Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act,
66 F.R.D. 5412 -01, 5414 (2001). Because this “case involves an examination of only one minority group’s effective exercise of the electoral franchise, ... it is proper to look at
all
individuals who identify themselves as [Indian.]”
Georgia v. Ashcroft,
539 U.S. 461 , 123 S.Ct. 2498 , 2507-8 n. 1, 156 L.Ed.2d 428 (2003). This court will, therefore, consider all people who self-identify as Indian, whether single, dual, or multiple race.
See id.;
T.I p. 260-263.
4
*983
According to the 2000 census, the total population of the state of South Dakota is 754,844, with an Indian population of 67,-990. Thus, Indians constitute 9.05 percent of the total population and 6.79 percent of the voting age population (VAP).
5
Ex. 358 p. 6. sub-ex.l. There are nine federally recognized tribes that have land in South Dakota.
6
All of “Indian country” is located in rural areas. The total population of South Dakota’s “Indian country” is 59,366, of whom 42,460 are Indians. Ex. 358 p. 7-8. Nearly two-thirds (62.55 percent) of South Dakota’s Indian population lives in “Indian Country.” Eight predominantly rural counties are Indian majority: Shannon, Bennett, Todd, Mellette, Dewey, Ziebach, Corson, and Buffalo. Ex. 358, Ex. 2.
The redistricting committee consisted of 15 members. Senator Arnold Brown was the committee co-chair. Two Indian legislators were members of the committee, namely Representative Paul Valandra (member of the Rosebud tribe) and Senator Dick Hagen (member of the Oglala Sioux tribe). Both are elected officials from District 27. Representative James Bradford, also from District 27, requested placement on the committee but was told there was not enough room for another member. T.VIII p. 2164; T.IV p. 1080; Ex. 401.
The 2000 redistricting committee held six meetings, four in Pierre, one at Sinte Gleska College on the Rosebud Reservation, and one at Wolf Creek school on the Pine Ridge Reservation. Legislative members from Districts 26 and 27 encouraged the holding of meetings at Sinte Gles-ka and Wolf Creek to provide an opportunity for local input. Senator Hagen and Representative Valandra were in charge of establishing the meeting dates and advertising. Both meetings were poorly attended. Six people attended the Wolf Creek meeting, and only one person spoke. T.VIII p. 2168-71, 2242; T.IV p. 1101.
Representative Bradford testified that although Senator Hagen publicized the occurrence of a meeting, he did not adequately advertise the location or time. Originally the meeting was planned to be held at Billy Mills Hall which is located in the town of Pine Ridge; however, Senator Hagen failed to reserve the hall. Representative Bradford offered Wolf Creek school for the meeting, which is located five miles outside of the town of Pine Ridge. Representative Bradford attributes the low attendance at the meeting to its inconvenient and unadvertised location. T.IV p. 1081-82.
Representative Valandra set up the meeting at Sinte Gleska College. Representative Bradford testified that Indians were “very, very sensitive to the atmosphere.” The formality of the room and the committee’s attire made Indians feel like they were inadequate “to appear before a committee of that magnitude.” T.IV p. 1100-01.
Following the redistricting committee hearings, the legislature took up the issue of redistricting at a special session held on October 23 and 24, 2001. Like previous plans, the 2001 Plan divided South Dakota into 35 legislative districts, each of which elects one member to the Senate and two members at large to the House of Representatives, except for District 28. District 28 is divided into two single-member dis
*984
tricts, Districts 28A and District 28B, which each elect one member to the House of Representatives. SDCL 2-2-34. Under the Plan, District 27 includes all of Shannon and Todd Counties, and Precinct 27 of Bennett County, which is the southern portion of Bennett County. District 26 borders District 27 and includes all of Haakon, Jackson, Jones, Lyman, Mellette and Tripp Counties, and Precinct 26 of Bennett County, which is the northern portion of the county. SDCL 2-2-34.
During the house floor discussion, Representative Bradford introduced an amendment to provide for a new configuration of Districts 26 and 27, which would have created a majority-Indian Senate District 27 consisting of Haakon, Jackson, and Shannon Counties and a portion of Bennett and Todd Counties. Senate District 26 would have consisted of Jones, Mellette, Lyman, and Tripp Counties. Two single-member house districts would have been created for District 26, wherein majority-Indian District 26A would have consisted of Mellette County and a portion of Bennett, Jones, and Todd Counties. District 26B would have consisted of the remainder of District 26 and would have been a majority-white district. The amendment was defeated by a vote of 51 to 16. Ex. 402, p. 18 of House Journal. The bill was passed by both houses and the governor signed the bill into law on November 1, 2001. Ex. 402 p. 37; SDCL 2-2-34. A map of the adopted plan follows as Figure 1.
[[Image here]]
Every district in the 2001 Plan is majority white except Districts 27 and 28A, which are majority Indian. According to the 2000 Census, Indians make up approximately 90 percent of District 27’s total population and 86 percent of the VAP.
7
Indians make up approximately 30 percent of District 26’s total population and 23 percent of the VAP.
8
Ex. 358 p. 14; Ex.
*985
369. Part of the Pine Ridge Reservation and all of the Rosebud Reservation are located within District 27. This district elects one senator and two representatives to the legislature. Part of the Standing Rock Reservation and all of the Cheyenne River Reservation are within House District 28A. This district elects one representative and is half of a district that elects one senator to the legislature. Ex. 358 p. 14
The court finds the testimony of Representative Bradford to be highly credible. He grew up in Parmalee, South Dakota, on the Rosebud Reservation and lived there for 15 years as an adult. He graduated from Sinte Gleska College, which is also located on the Rosebud Reservation. He has lived in Mission, South Dakota, on the Rosebud Reservation and near Martin, South Dakota, in Bennett County for 15 years. His wife is from Pine Ridge, and they have lived there since 1978. His mother was part Indian, and although neither his mother nor he are enrolled members, he is eligible for tribal benefits such as Indian Health Service and education and he has always identified himself as an Indian person. He has been a representative in the South Dakota legislature since 2000. T.IV p. 1059-64. The court finds that his experiences and knowledge about Indian issues make his testimony probative. The court, therefore, accepts his testimony in its entirety and gives it great weight.
Representative Valandra and Senator Hagen preferred keeping the districts in the current form. Representative Matthew Michaels, a member of the redistricting committee and Speaker of the House of Representatives, testified that Senator Hagen stated that “he had not heard an outcry to change [the districts]” and that people who testified at the meetings on the Rosebud and Pine Ridge Reservations wanted to “leave the status quo.” T.VIII p. 2173, 2180-81, 2231-32. Representative Bradford proposed an alternative map that would have increased the number of Indian-majority districts. T.VIII p. 2180-81.
Although no evidence refutes that Representative Valandra and Senator Hagen told others on the redistricting committee that they would prefer the district boundaries to be left unchanged, the court gives little weight to this evidence because as incumbents, they had a vested interest in resisting change to their district’s boundaries. The limited public testimony at the Sinte Gleska and Wolf Creek meetings also does not necessarily represent the attitudes of Indians in the affected districts. The low attendance at these meetings detracts from the probative value of the evidence.
Furthermore, there is evidence that directly refutes this evidence. During the special session in October 2001, Representative Valandra voted in favor of an amendment proposed by Representative Bradford that would have changed the boundary lines of Districts 26 and 27. Ex. 402 p. 19. Additionally, lay testimony at trial undermines the claim that Indians wanted to keep Districts 26 and 27 unchanged. Elsie Meeks testified that the current configuration of Districts 26 and 27 is unfair because it “segregates Indians.” T.V p. 1376. Lyla Young described the current districts as unfair because they “dumped us all in this bloc,” which gives Indians less choice. T.III p. 676. Short Bull stated that District 27 was unfair because there were “just too many Indians in that legislative district,” which dilutes their vote. T.II p. 518.
*986
Defendants point to evidence that it was reasonable for legislators to rely on the statements by Senator Hagen and Representative Valandra. T.IV p. 1094. While their reliance may not be unreasonable, the court does not find this evidence probative of whether the Plan violates § 2. Regardless of Senator Hagen’s and Representative Valandra’s statements, legislators were obligated to draw district lines that comply with § 2. This evidence, therefore, has little probative value.
Defendants also argue that ACLU representative Jennifer Ring testified at a redistricting meeting that the “Sagebrush/Cocklebur Plan” was her favorite. This plan is virtually the same as the current plan adopted by the legislature. Ex. 401 p. 5, Tab 10 p. 14. Ring testified at trial, however, that she did not choose a favorite and that she believed District 27 was a “packing plan.” T.III p. 767, 811-12. Furthermore, whether or not Ring favored a particular plan is irrelevant to determining whether Districts 26 and 27 comply with § 2 of the Voting Rights Act. Thus, the court does not give this evidence great weight.
IV. Section 2 of the Voting Rights Act
Section 2 of the Voting Rights Act of 1965, as amended, prohibits the use of any voting practice which “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” or membership in a language minority. 42 U.S.C. §§ 1973 (a), 1973b(f)(2);
Thornburg v. Gingles,
478 U.S. 30, 44 , 106 S.Ct. 2752, 2763 , 92 L.Ed.2d 25 (1986). A violation of § 2 is established “if, based on the totality of the circumstances, it is shown that ... [members of a protected minority group] 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). The voting strength of a politically cohesive minority group can be diluted either “by fragmenting the minority voters among several districts where a bloc-voting majority can routinely outvote them, or by packing them into one or a small number of districts to minimize their influence in the districts next door.”
Johnson v. De Grandy,
512 U.S. 997,1007 , 114 S.Ct. 2647, 2655 , 129 L.Ed.2d 775 (1994). Both the dispersal of Indians into districts in which they constitute an ineffective minority of voters or the concentration of Indians into districts where they constitute an excessive majority may dilute racial minority voting strength.
Voinovich v. Quitter,
507 U.S. 146, 154 , 113 S.Ct. 1149, 1155 , 122 L.Ed.2d 500 (1993).
The Supreme Court has established a test to prove vote dilution through the use of multimember districts under § 2 of the Voting Rights Act:
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it-in the absence of special circumstances, such as the minority candidate running unopposed-usually to defeat the minority’s preferred candidate.
Gingles,
478 U.S. at 51 , 106 S.Ct. 2752 . Upon satisfying these three factors, the court must then consider the totality of the circumstances “to determine, based upon a searching practical evaluation of the past and present reality whether the political process is equally open to minority voters. This determination is peculiarly dependent upon the facts of each case and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms.”
Id.
at 2781. A violation of § 2 is
*987
established “if, based on the totality of the circumstances, it is shown that ... [members of a protected minority group] 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).
A. Sufficiently Large and Geographically Compact
Under the first
Gingles
factor, plaintiffs must demonstrate that the minority is sufficiently large and geographically compact to constitute a majority in a single-member district.
Gingles,
478 U.S. at 50 , 106 S.Ct. 2752 . Small and dispersed minority groups undermine the ability to create a district that would remedy the grievance.
Sanchez v. Colorado,
97 F.3d 1303, 1311 (10th Cir.1996). It considers whether the court can “fashion a permissible remedy in the particular context of the challenged system.”
Sanchez,
97 F.3d at 1311 . When requiring proof of this factor, the Court noted 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.... Thus, if the minority group is spread evenly throughout a multimember district, or if, although geographically compact, the minority group is so small in relation to the surrounding white population that it could not constitute a majority in a single-member district, these minority voters cannot maintain that they would have been able to elect representatives of their choice in the absence of the multimember electoral structure.
Id.
at 50 n. 17, 106 S.Ct. 2752 .
This factor does not require “some aesthetic ideal of compactness,” but rather looks at whether the minority population is sufficiently compact to constitute a majority in a single-member district.
Clark v. Calhoun County, Miss.,
21 F.3d 92, 95 (5th Cir.1994)
(Clark I).
The constitution does not require regularity of district shape.
Bush v. Vera,
517 U.S. 952, 963 , 116 S.Ct. 1941, 1953 , 135 L.Ed.2d 248 (1996);
Sanchez,
97 F.3d at 1312 . Plaintiffs, therefore, need only propose a plan that demonstrates the possibility of a majority-minority district.
Houston v. Lafayette County, Miss.,
56 F.3d 606, 611 (5th Cir.1995). The court must determine “whether the affected minority is diffused and thus politically ineffective, not whether the area by which it is bound is geographically dense.”
Sanchez,
97 F.3d at 1312 .
Plaintiffs introduced into evidence five illustrative redistricting plans which were drawn by their demographic expert, William Cooper. Each plan creates at least one additional majority-Indian house district. Ex. 358 p. 16, sub. ex. 9-13; T.I p. 270-71. Illustrative Plan A creates three majority-Indian districts, including two majority-Indian senate districts and one majority-Indian single-member house district. It divides one of the majority-Indian senate districts into two single-member house districts, one of which is majority-Indian. Thus, six legislative seats are majority-Indian. The following table summarizes the total population and VAP. Ex. 358 p. 16-17, sub. ex. 9; Ex. 369.
_Single Race Dual Race Multi-Race
District 26 Senate (VAP)_48.57_50.15_50.20_
_(total population)_57.03_58.96_59.01_
District 26A single-member House (VAP) 67.58_69.81_69,88
*988
_(total population)_74.52_77.01_77.08
District 27 Senate (VAP)_70^0_7L41_71.42
_(total population)_76.67_77.91_77.92
District 28A single-member House (VAP) 67.00_67.94_67.98
(total population)74.13_75.26_75.32
Illustrative Plan B creates two majority-Indian senate districts and divides one of the majority-Indian senate districts into two single-member house districts, both of which are majority-Indian. A total of six legislative seats in Illustrative Plan B are majority-Indian. The table summarizes the total population and VAP. Ex. 358 p. 17-18 sub-ex. 10; Ex. 369.
Single Race Dual Race Multi-Race
District 26 Senate (VAP) 61.10 62.53 62.57
(total population) 68.57 70.22 70.28
District 26A single-member House (VAP) 69.10 69.94 69.99
(total population) 75.65 76.70 76.76
District 26B single-member House (VAP) 53.20 55.20 55.24
(total population) 61.35 63.61 3.68
District 27 Senate (VAP) 84.81 86.04 86.07
(total population) 88.66 89.91 89.9
Illustrative Plan C creates one majority-Indian senate district and two majority-Indian single-member house districts. A total of five legislative seats are majority-Indian. The table summarizes the total population and VAP. Ex. 358 p. 18-19 sub-ex. 11; Ex. 369.
Single Race Dual Race Multi-Race
District 26A single-member House (VAP) 65.70 67.8 67.89
(total population) 73.08 75.62 75.69
District 27 Senate (VAP) 9.21 70.46 70.47
(total population) 75.81 77.09 77.11
District 28 Senate (VAP) 68.3 69.25 69.29
(total population) 75.03 76.04 76.10
Illustrative Plan D creates one majority-Indian senate district and two majority-Indian single-member house districts. A total of five legislative seats are majority-Indian. The table summarizes the total population and VAP. Ex. 358 p. 19-20 sub-ex. 12; Ex. 369.
Single Race Dual Race Multi-Race
District 26A single-member House (VAP) 65.60 66.65 66.70
(total population) 73.06 74.21 74.25
District 27 Senate (VAP) 67.19 68.96 3.98
(total population) 74.05 75.Í 76.02
District 28A single-member House (VAP) 68.38 69.25 69.29
(total population) 75.03 76.04 76.10
*989
Illustrative Plan E creates one majority-Indian senate district and two majority-Indian single-member house districts. A total of five legislative seats are majority Indian. The table summarizes the total population and VAP. Ex. 358 p. 20-21 sub-ex. 13; Ex. 369.
_Single Race Dual Race Multi-Race
District 26A single-member (VAP)_73.10_74.31_74.36_
_(total population)_79.39_80.84_80.88_
District 27 Senate (VAP)_63.87_65154_65.56
_(total population)_71.16_72,98_73.00_
District 28A single-member (VAP)_68.38_69.25_69.29_
(total population)75.03_76.04_76.10
Cooper’s plans present various alternatives, each of which creates at least one additional majority-minority legislative district in South Dakota while adhering to traditional redistricting principles. For instance, Plan E largely follows existing county and reservation boundaries. For illustrative purposes, Plan E is shown here as Figure 2.
[[Image here]]
Plans A and B, while splitting some counties, avoid splitting precincts. The proposed districts are also compact and relatively contiguous. T.I p. 271; Ex. 358 sub-exs. 9-13.
The fact that Cooper’s socio-economic data reports only information relating to single-race Indians does undermine the credibility of his report. This section of the report was derived from census data that only provided information for single-race Indians. As noted previously, there is not a significant difference between the number of people who self-identified themselves as single, dual, or multiple race Indians. Although less comprehensive, Cooper’s use of single-race Indian data does not discredit his redistricting maps or his findings. Furthermore, even though Cooper has not taught at a college, written
*990
for a journal, and is not a sociologist, political scientist, economist, or econometrician, he is nonetheless credible and qualified as an expert to draw redistricting maps. Neither his testimony nor his report require expertise in these social sciences for purposes of providing reliable testimony about alternative redistricting plans for South Dakota. He need not be an expert in anthropology, Sioux culture and history, or South Dakota history to reliably report on redistricting options in South Dakota. He can reliably base his analysis and conclusions on his experience in South Dakota and his knowledge of redistricting. T.II p. 306-14.
Furthermore, the fact that Cooper did not analyze what effect, if any, discrimination had on producing a relatively depressed economy and less prosperous population of Indians than non-Indians in Districts 26 and 27 does not undermine his analysis, conclusions, or illustrative plans. In fact, this issue is not in real dispute because even defendants’ expert, Michael Lawson, acknowledged that past discrimination has contributed to present day depressed socioeconomic status among Indians. T.II p. 333-85; T.VIII p. 2116.
Defendants argue that plaintiffs did not satisfy the first
Gingles
factor because they failed to propose a complete, narrowly tailored remedy that contains constitutionally workable districts. Plaintiffs need not propose a complete remedy at this stage.
See Gingles,
478 U.S. at 50 n. 17, 106 S.Ct. 2752 (plaintiffs must show that minority voters “possess the
potential
to elect representatives in the absence of the challenged structure or practice”) (emphasis added). Plaintiffs’ proposed districts simply demonstrate the feasibility of drawing a majority-minority district and are not cast in stone.
Houston,
56 F.3d at 611 .
See also Dickinson v. Indiana State Election Bd.,
933
F.2d
497 , 503 (7th Cir.1991) (completeness of remedy considered at the remedial stage of litigation). “If a § 2 violation is found, the [state] will be given the first opportunity to develop a remedial plan.”
Id. See also Clark v. Calhoun County, Miss.,
88 F.3d 1393, 1407 (5th Cir.1996)
(Clark II)
(county’s challenge to the remedy was not ripe for review because the county was “free, within limits, to develop a different remedial plan from those proposed by plaintiffs”);
Sanchez,
97 F.3d at 1315 (“drawing the necessary district is not [plaintiffs’] onus because the State must be given the first opportunity to fashion a remedy”).
Defendants also argue that plaintiffs have failed to satisfy this factor because any proposed remedy requires above a supermajority of 65 percent Indian YAP. The court disagrees. First, the law does not definitively require establishing super-majority districts.
Gingles,
478 U.S. at 50 , 106 S.Ct. 2752 (requiring proof of a majority);
Valdespino v. Alamo Heights Ind. Sch. Dist.,
168 F.3d 848 , 852-53 (5th Cir.1999) (requiring proof that the minority group exceeds 50 percent of the relevant population);
Solomon v. Liberty County, Fla.,
899 F.2d 1012, 1013, 1018 (11th Cir.1990) (holding that plaintiffs satisfied the first factor of
Gingles
where minority voters made up 49 percent of the total population, 51 percent of the VAP and 46 percent of the registered voters).
Second, any necessary supermajority is required only at the remedial stage of litigation. Indeed, the 65 percent guideline is a general remedial goal and “is irrelevant to the first part of the
Thorn-burg
tripartite threshold test for liability.”
Magnolia Bar Ass’n v. Lee,
793 F.Supp. 1386, 1397 (S.D.Miss.1992). In
Dickinson,
the Seventh Circuit noted that although several cases have recognized a need for a supermajority of minority voters in the proposed district:
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the Supreme Court requires only a simple majority of eligible voters in the single-member district. The court may consider, at the
remedial
stage, what type of remedy is possible based on the factors traditionally examined in single-member districts, such as minority voter registration and turn-out rates.... But this difficulty should not impede the judge at the liability stage of the proceedings.
933 F.2d at 503 (citations omitted). Because the current case is at the liability stage of the proceedings, the court concludes that proof of a supermajority is not required.
Defendants rely on
Jeffers v. Tucker
to support their contention that a superma-jority is necessary.
Jeffers
notes that
in fashioning remedies for Voting Rights Act violations, the creation of districts with bare majorities is not enough for a complete remedy. In order to compensate for historically low rates of voter registration and turnout, “minorities must have something more than a mere majority even of voting age population in order to have a reasonable opportunity to elect a representative of their choice.”
847 F.Supp. 655, 660 (E.D.Ark.1994).
Defendants’ argument fails for several reasons. First, the current stage of the litigation is determining liability, not fashioning a remedy. Second, plaintiffs have proposed five plans
9
which maintain at least a 65 percent
10
Indian VAP in District 27 and create a new single member house district with at least a 65 percent Indian VAP in District 26A. ■
Third, a 65 percent supermajority does not necessarily apply. In
James v. City of Sarasota, Fla.,
the district judge referenced the 65 percent guideline. 611 F.Supp. 25 , 28 n. 3 (M.D.Fla.1985). The court later attached a letter from the chief of the civil rights division of the Justice Department to the opinion:
There is no 65 percent threshold population figure.... Rather, our responsibility is to determine whether the number of districts in which minority voters will have a fair opportunity for electing representatives of their choice (whatever the percentage of minority voters in each district) has been decreased by the proposed redistricting plan submitted under Section 5....
In this context, the Section 5 inquiry is much less concerned with discrete percentages of minority voters in reconfigured districts ... [We do not attach] particular significance to a 65 percent population figure, and no attempt is made to add arbitrarily increments of five percentage points each to compensate for age, registration and turn-out differences....
Each Section 5 submission must, of course, be evaluated in light of the particular factual circumstances ... not on the basis of some preordained population percentage.
Id.
at 32-33 .
Even though DOJ’s letter in
James
referenced a § 5 violation, the court finds it
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persuasive on the issue of whether the law requires proof of a particular percentage of minority voters in a proposed district. The law does not require a discrete number.
See Magnolia. Bar Ass’n,
793 F.Supp. at 1397 (“The 65 percent guideline, therefore, is a general remedial goal in Voting Rights Act cases that is irrelevant to the first part of the
Thornburg
tripartite threshold test for liability.”);
Neal v. Coleburn,
689 F.Supp. 1426, 1438 (E.D.Va.1988) (“Contrary to defendants’ contention, the general 65 percent guideline for remedial districts is not a required minimum which the plaintiffs must meet before they can be awarded any relief under § 2 of the Voting Rights Act. Rather, the 65 percent standard is a flexible and practical guideline to consider in fashioning relief for a § 2 violation.”). Accordingly, the court finds that no supermajority is required at this stage of the litigation, and even if the law did so require, plaintiffs have proposed several remedies that satisfy a 65 percent supermajority standard.
While defendants contend that the su-permajority should be higher than 65 percent, defendants have not identified any case law which requires a supermajority higher than 65 percent.
Gingles
requires only that a plaintiff show that minority voters “possess the
potential
to elect representatives.”
Gingles,
478 U.S. at 50 n. 17, 106 S.Ct. 2752 . Section 2 is not a guarantee that minority voters will elect the representative of their choice. Therefore, the court is not persuaded that a supermajority greater than 65 percent is required.
Additionally, defendants contend that plaintiffs’ plans are race based, are impermissible gerrymanders, and fail to account for communities of interest. In
Jeffers,
847 F.Supp. at 655 , Chief Judge Arnold found that any plan “would have to be consistent with the spirit of
Shaw v. Reno,
509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993).” In
Shaw v. Reno,
509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993), the Court held that an equal protection claim that triggers strict scrutiny is raised when a voting scheme is “so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification.”
Id.
at 2824. Here, plaintiffs have proposed several redistricting plans that do not appear any more irregular or gerrymandered on their face than the plan that the legislature enacted.
Furthermore, “drawing racial distinctions is permissible where a governmental body is pursuing a ‘compelling state interest.’ ”
Shaw v. Hunt,
517 U.S. 899, 908 , 116 S.Ct. 1894 , 1902, 135 L.Ed.2d 207 (1996) (Shaw II). The Supreme Court has assumed without deciding that compliance with the results test of § 2 of the Voting Rights Act (VRA) is a compelling state interest.
See Shaw v. Hunt,
116 S.Ct. at 1905 ;
Miller v. Johnson,
515 U.S. 900, 920-21 , 115 S.Ct. 2475, 2490-91 , 132 L.Ed.2d 762 (1995);
Bush v. Vera,
517 U.S. at 977, 116 S.Ct. 1941 . Justice O’Connor in a separate concurrence found that compliance with VRA in fact is a compelling state interest.
Vera,
116 S.Ct. at 1968 . A state may then pursue that compelling state interest and create a district that is narrowly tailored to remedy the VRA liability.
Id.
at 1970. Thus, the consideration of race when proposing a plan does
not
necessarily invalidate the plan.
Additionally, the proposed plans are not so irregular on their face that they appear to be solely an effort to segregate races for the purpose of voting. In fact, the proposed plans are no more irregular than the current districting plan. Indeed, illustra
*993
tive plans C, D, and E largely coincide with the current plan. Ex. 358 p. 19 sub-exs. 9-13; T.I p. 271. Plaintiffs’ plans consider race to the extent necessary to determine whether additional minority-majority districts are possible but not any more than reasonably necessary. Accordingly, the plans do not impermissibly subordinate race-neutral districting principles to racial considerations. T.II p. 281-82; Ex. 358 sub-exs. 9-13.
Furthermore, Figure 3, which is a South Dakota map based on Indian population by county, as shown here,
[[Image here]]
reflects it is not difficult to draw an additional majority-minority legislative seat because the Indian population is concentrated in the area from the Crow Creek and Lower Brule Reservations toward the Pine Ridge and Rosebud Reservations. The areas between these reservations are also sparsely populated. T.I p. 271.
In response to defendants’ claim that each plan fails to incorporate important community values and traditional redistricting principles, plaintiffs point to Cooper’s testimony as evidence that he adhered to South Dakota’s traditional redistricting principles when drafting the five plans. Traditional redistricting principles as recognized by the South Dakota state legislature include population equality, protecting community of interests through compact and contiguous districts, respect for geographical and political boundaries, and protection of minority voting rights. SDCL 2-2-32. Similar principles have been recognized as traditional redistricting principles by the United States Supreme Court. See,
e.g., Miller,
515 U.S. at 916 , 115 S.Ct. 2475 (identifying “respect for political subdivisions and communities defined by actual shared interests” as traditional districting principle);
Shaw v. Reno,
509 U.S. at 651-52 , 113 S.Ct. 2816 (identifying population equality as a traditional
*994
districting principle);
Miller,
515 U.S. at 916 , 115 S.Ct. 2475 (identifying compactness and contiguity as traditional districting principle). The court accepts Cooper’s explanation that he applied traditional districting principles. A review of the plans reveals that the plans attempt to keep county and precinct boundaries intact, adhere to traditional geographic boundaries, consider current and historical reservation boundaries, create districts with the population equality, create compact and contiguous districts, and make minimal changes to the 1991 Plan. T.II p. 281, 289-91, 339.
Defendants stressed other nuances about South Dakota history and culture, including differences between East and West River and differences between farmers and ranchers, to discredit Cooper’s redistricting plans. Defendants contend Cooper’s plans combine East and West River counties into the same district and put farmers and ranchers into the same district. The court notes, however, that the 2001 Plan that was adopted by the legislature has two districts, 24 and 21, that include counties from both East and West River and several districts combine counties occupied by both farmers and ranchers. Thus, it appears that such concerns are not significant enough to discredit Cooper’s five plans. Furthermore, if the court finds a § 2 violation, defendants will have the first opportunity to draft a remedial plan and will have the opportunity to consider any differences between East and West River they deem relevant to redistricting.
See Sanchez,
97 F.3d at 1315 .
The court finds that Cooper’s testimony is credible and probative. Cooper is a geographic information system consultant who works with census data to prepare maps that show demographic patterns or trends. He has extensive experience in drawing redistricting maps, having drafted “thousands and thousands” of maps. Cooper has prepared such maps since 1986 for approximately 475 jurisdictions to promote compliance with the Voting Rights Act. He has proposed redistricting plans for § 2 litigation for 18 states. He has also analyzed the 2000 census data for 100 local jurisdictions in 15 states and has developed plans for 8 states. He has testified as an expert witness in approximately 24 voting rights cases in 10 different states and has been involved in 19 other cases. T.I p. 241^4; Ex. 358 p. 1-3.
Since 1999, Cooper has worked with various Indian communities in South Dakota relating to redistricting. In addition, he has researched socio-economic factors affecting Indians and voting rights. The court further finds that Cooper employs reliable methods, including a software mapping program that he has used extensively for 13 years. T.I p. 244-46. For the reasons previously detailed herein and for the reasons stated in this court’s order dated December 31, 2003, the court finds Cooper’s testimony credible and his methods reliable. The court gives significant weight to the analysis and findings contained in Cooper’s testimony and report. Defendants’ Objections to Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (Docket 319); Ex. 358; Court Order 12/31/03 (Docket 204).
In addition to the maps proposed by Cooper, there is additional evidence in the record that supports the conclusion that a permissible remedy in the context of the challenged system can be fashioned. During the 2001 redistricting process, legislative research staff members drafted several plans that added at least one additional majority-minority seat, including: the “Little Wound” plan, the “Spotted Tail” plan, and the “Hollow Horn Bear” plan. All committee members received copies of these maps. Ex. 401 Tab 7; T.V p. 1416.
*995
Although several of the proposed legislative plans had only a simple majority of Indians and no VAP majority of Indians, the population trends according to the 2000 census indicate that the Indian population in the counties at issue continues to grow rapidly while the white population declines. Ex. 401 Tab 7. Furthermore, the additional district created in the “Hollow Horn Bear” plan contained a greater than 65 percent VAP.
After considering all the evidence, including Cooper’s five illustrative plans and the plans drafted by the legislative research staff, the court finds as a matter of law that plaintiffs have met their burden of showing that a permissible remedy in the context of the challenged system can be fashioned, which is the first
Gingles
factor.
B. Minority Political Cohesiveness
The second
Gingles
factor requires plaintiffs to show that the minority group is politically cohesive.
Gingles,
478 U.S. at 51 , 106 S.Ct. 2752 . This ensures that the minority group at issue has distinctive minority group interests.
Id.
Without such distinct interests, unequal opportunity in the political arena cannot harm the minority group.
Id.
“A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, ... and, consequently, establishes minority bloc voting within the context of § 2.”
Id.
at 2769. Voting patterns are the central focus.
Campos v. City of Baytown, Tex.,
840 F.2d 1240, 1244 (5th Cir.1988).
See also Ruiz v. City of Santa Maria,
160 F.3d 543, 552 (9th Cir.1998) (candidate who received sufficient votes to be elected if the election were held among the minority group was considered the minority-preferred candidate even if he received less than 50 percent of the minority vote).
Proving this factor typically requires statistical evaluation of elections.
Campos,
840 F.2d at 1244-45 . “The number of elections that must be studied in order to determine whether voting is polarized will vary according to pertinent circumstances.”
Gingles,
478 U.S. at 57 n. 25, 106 S.Ct. 2752 . Courts have relied on various statistical methods.
See, e.g., Houston,
56 F.3d at 611 (use of bivariate ecological regression and extreme case analysis);
Clark,
88 F.3d at 1397 (expert employed regression and homogenous precinct analysis);
Sanchez,
97 F.3d at 1317-18 (court considered both ecological and multivariate regression analysis). This court will examine each method used by the experts in this case.
The first method is homogeneous precinct analysis (HPA) or extreme case analysis. This technique examines voting behavior in precincts that are closest to being racially or ethnically homogeneous in population, typically 90 percent or more. The vote in the most heavily minority precincts is used as an estimate of minority voting behavior and the voting behavior in the most heavily majority precincts is used as an estimate of majority voting behavior. HPA is based directly on voter behavior and requires no statistical inference. Ex. 359 p. 4, 7-9.
A second technique is bivariate ecological regression analysis (BERA). Under this technique, precinct-by-precinet election results are correlated with census data or some other measure of the racial or ethnic composition of the electorate to generate estimates of the voting behavior of majority and minority voters. Ex. 359 p. 4-5.
A third technique is ecological inference (El), or the King method. It assumes that the actual votes of two groups for two particular candidates are based on fixed underlying propensities, but vary from
*996
precinct to precinct in random ways. It estimates the underlying propensity of each group to turn out for an election and to vote for a particular candidate using the estimation technique of maximum likelihood. T.VII p. 1786-87.
Certain elections are more probative of unequal electoral opportunity than others. Interracial elections are generally more probative than racially homogeneous elections because voters have a racial choice.
See Gingles,
478 U.S. at 80-82 , 106 S.Ct. 2752 (relying exclusively on interracial legislative contests to determine whether a legislative redistricting plan diluted the black vote);
United States v. Blaine County, Mont.,
368 F.3d 897, 911 (9th Cir.2004) (contests between white and Indian candidates are most probative of bloc voting). Endogenous elections, contests within the jurisdiction and for the particular office that is at issue, are more probative then exogenous elections.
See Sanchez,
97 F.3d at 1317 (greater weight to endogenous elections). Recent elections are more probative than elections in the distant past.
See Uno v. City of Holyoke,
72 F.3d 973, 990 (1st Cir.1995) (recent elections more probative);
Meek v. Metropolitan Dade County, Fla.,
985 F.2d 1471, 1482-83 (11th Cir.1993).
Although interracial elections are highly probative of minority voting patterns, the court recognizes that the minority preferred candidate is not always a minority.
See Lewis v. Alamance County, N.C.,
99
F.3d
600, 605-06 (4th Cir.1996) (minority preferred candidate may be white). Thus, the court will not limit its consideration to interracial elections. T.IV p. 908; T.VII p. 1829-31.
1. Dr. Cole’s Analysis
Plaintiffs’ expert, Dr. Steven Cole, used HPA and BERA. Ex. 359 p. 4. He applied the dual-race method of identifying Indians. Dr. Cole examined all state legislative elections in the current Districts 26 and 27 and several interracial elections for statewide and county offices from 1986 to 2002. He aggregated his data across both districts for statewide offices. Ex. 359 p. 3.
Dr. Cole generated tables to demonstrate his results. In the first table, using BERA, Dr. Cole used a single regression analysis, which examines the relationship between the precinct’s racial composition and the candidate’s vote share. The R-squared value demonstrates what percentage of the variables in a candidate’s vote share can be predicted by race alone. It measures how close the precincts fall to the regression line and estimates Indian cohesion and white crossover voting. T.II p. 383-386; Ex. 359 p. 26-27. The P-value represents an analysis of variants by testing how well the regression model fits the data. If the P-value is less than .05, it is considered statistically significant. T.II p. 386; Ex. 359 p. 26-27.
The third column estimates the percentage of Indian voters voting for a candidate and the fourth column estimates the percentage of non-Indian voters voting for that candidate. Dr. Cole used two regression equations adjusted for turnout differences in groups to determine these amounts. The final column is the number of votes received by that candidate, which is obtained from election returns. T.II p. 387; Ex. 359 p. 26-27.
In Table 2, Dr. Cole employed HPA. For this analysis, he relied on virtually all-white or all-Indian precincts, generally over 90 percent. Precincts with 90 percent or more non-Indian VAP provide an estimate of white crossover voting while precincts with 90 percent of more Indian VAP measure Indian cohesion. T.II p. 388; Ex. 359 p. 28-29. When drawing conclusions about cohesion, Dr. Cole averaged estimates of minority support across elections and relied on the overall pattern
*997
of results. Ex. 359 p. 15; T.II p. 389-90. When defining “cohesion,” Dr. Cole does not employ a strict numerical threshold. Rather, according to Dr. Cole, he measures political cohesiveness on a continuum, “starting slightly above 50 percent and going all the way up to 100 percent. There is no absolute cutoff that 59 percent is not cohesion and 60 percent is cohesion. ... It’s the degree to which people stick together is the measure of cohesiveness. There is no cut point.” T.II p. 412.
Defendants argue that Dr. Cole erroneously finds cohesion if 50.1 percent of the Indian voters vote for the same candidate, noting that cohesion is absent only when two candidates tie. The court disagrees with this characterization of Dr. Cole’s testimony. Dr. Cole explained that 50.1 percent represents the very beginning stages of cohesion but would be evidence of very weak cohesion. He repeatedly indicated that cohesion does not have a specific “cut point.” T.II p. 481-8. In Dr. Cole’s opinion, polarization exists in contests involving two candidates “when a majority of the voters of one race would elect a different candidate than would the majority of voters of the other race. In head to head contests with more than two candidates, significant racial polarization is exhibited when a majority/plurality of the voters of one race would elect a different candidate than would a majority/plurality of voters of the opposite race.” Ex. 359 p. 6.
Dr. Cole analyzed five interracial elections for the state senate: the 1998 general election for Districts 26 and 27, the 1994 general election for District 27, and the 1988 and 1990 general elections for District 28. Ex. 359 p. 12. He found the average estimate of Indian political cohesion in these races to be 83 percent, which is “highly politically cohesive.” T.II p. 389-90; Ex. 359 p. 15, 26-27.
He analyzed nine interracial elections for the state house: the 1994 and 2000 Democratic primary election, and the 1992, 1994, 1996, 1998, and 2000 general elections for District 27. He also analyzed the 1986 and 1990 general elections for District 28. Ex. 359 p. 19-20. Using BERA, Dr. Cole estimated the average level of Indian political cohesion at 77 percent. Although the percentages varied slightly, Dr. Cole’s BERA analysis was largely consistent with his HPA analysis. Ex. 359 p. 40-46.
Dr. Cole analyzed eight elections for the state senate which involved only non-Indian candidates: the 1992, 1996, and 2002 general elections for District 26. He also analyzed the 1986 and 1990 general elections for Districts 27 and 29 and the 1988 general election for District 29. Ex. 359 p. 16. Using BERA, Dr. Cole estimated the average level of Indian political cohesion was 80 percent. This was consistent with his HPA analysis. Ex. 359 p. 17, 30-35.
Dr. Cole analyzed eight
11
elections for the state house involving only non-Indian candidates: the 1992, 1994, 1996, 1998, 2000 and 2002 general elections for District 26, the 1988 general election in District 29, and the 1986 general election in District 29. Ex. 359 p. 22.
Dr. Cole found that using BERA, the average estimate of Indian political cohesion for the top preferred candidate in these races was 73 percent. This analysis was largely consistent with his HPA analysis. Ex. 359 p. 47-54.
Dr. Cole analyzed six elections for the state senate involving only Indian candidates: the 1996 and 2002 Democratic pri
*998
mary election, the 1992, 1996, 2000, and 2002 general election for District 27. Ex. 359 p. 17-18. Using BERA, the average Indian cohesion for the six contests was 89 percent. Dr. Cole’s HPA analyses were largely consistent with his BERA analyses. Ex. 359 p. 18, 36-39.
Dr. Cole analyzed one election for the state house involving only Indian candidates: the 2002 general election for District 27. Ex. 359 p. 22. Using BERA, Dr. Cole estimated Indian political cohesion for the top preferred candidate in this race at 80 percent. Dr. Cole’s BERA analyses were consistent with his HPA analyses. Ex. 359 p. 22, 55-56.
Dr. Cole also analyzed eight exogenous interracial elections: the 2002 nonpartisan primary election for Bennett County School Board, the 2002 Democratic primary for Bennett County Commissioner at Large, the 2002 general elections for Attorney General, Bennett County Commissioner at Large, Register of Deeds and County Coroner, and the 1998 general election for Governor and Lieutenant Governor. Ex. 359 p. 23-24. Using BERA, Dr. Cole determined that Indian political cohesion for the top preferred candidate in these races was 87 percent. His BERA analyses were consistent with his HPA analyses. Ex. 359 p. 57-62.
Across the 22 interracial elections that Dr. Cole analyzed with BERA, the average estimate of Indian political cohesion for the top preferred candidates was 82 percent. Ex. 359 p. 26-27, 40-42, 57-29. Across the 37 endogenous elections that Dr. Cole analyzed with BERA, the average estimate of Indian political cohesion for the top preferred candidate was 80 percent. Ex. 359 p. 26-27, 30-32, 36-37, 40-42, 47-50, 55. Across the 12 elections in 2002 that Dr. Cole analyzed with BERA, the average estimate of Indian political cohesion for the top preferred candidate was 84 percent. Ex. 359 p. 30, 36, 47, 55, 57-59. Across the 45 elections Dr. Cole analyzed using BERA, the average estimate of Indian political cohesion for the top preferred candidate was 81 percent. Ex. 359 p. 26-27, 30-32, 36-37, 40-42, 47-50, 55, 57-59. His results demonstrate high political cohesion among Indians in Districts 26 and 27. Ex. 359.
The court finds that Dr. Cole qualifies as an expert in this case. He holds a Ph.D. in human experimental psychology with a sub-specialty in methodology and statistics. He has taught courses in psychology, statistics, and the scientific analysis of data. He currently teaches at Emory University and has taught courses at the law school. He served as the director of research for Research Designs Associates, Inc., since 1982. He has worked as a consultant for numerous schools and organizations. He has published numerous papers and has testified about voting behaviors in many cases. T.II p. 377-78; Ex. 359 App. A; Court Order 12/31/03 (Docket 204). The court finds that Dr. Cole’s education, experience, knowledge, and skill qualify him to testify as an expert in this case.
2. Dr. Zax’s Analysis
Defendants’ expert, Dr. Zax, used ecological inference (El)- Ex. 948. El estimates turnout and vote shares for two groups within a district and within each precinct of that district. The basis for estimates of turnout and voting behavior for white and minority voters is referred to as “Goodman’s regression,” and El derives estimates from these parameters. Ex. 948 p. 7. El estimates turnout rates and the proportion of voters choosing a particular candidate within the feasible range. The estimates will not be less than zero or greater than one, and the parameters may be much narrower than this range. El calculates these bounds and ensures that
*999
the estimated turnout rates and voting shares he within them. Ex. 948 p. 8.
Tables two and three in Dr. Zax’s report provide examples of the bounds and estimates, drawn from the analysis of the 2000 General Election in state senate District 27. The first two columns in Table 2 provide lower and upper bounds for the proportion of Indian voters in each precinct choosing the Democratic candidate in the race. Ex. 948 p. 8. When Indians make up only a small proportion of the electorate and provide only a small number of the votes tabulated, the outcome of the race will not change much even if all Indian VAP vote for the same candidate. The vote share of Indians for the particular candidate could range anywhere from zero to one. Ex. 948 p. 8-9. In contrast, where the population largely consists of white voters, their voting patterns cannot differ greatly from the overall patterns observed in the precinct. Their vote shares are then confined to relatively narrow ranges. Ex. 948 p. 9.
Instructive bounds, which are smaller than the range between zero and one, appear for groups in precincts where they do not form a majority. El provides estimates of the vote shares cast by each group that not only lie between the absolute limits of zero and one, but that also lie within the boundaries established by the observed group shares and vote shares. Ex. 948 p. 10.
Dr. Zax employed the single-race method of assigning individuals to racial categories in the main body of his report and used the multiple-race method in Appendix Table 1. Ex. 948 p. 5. Dr. Zax analyzed races for statewide office and ballot issues in the general elections of 1996, 1998, 2000 and 2002 in Districts 26 and 27. He analyzed state senate races but excluded state house races. Ex. 948 p. 13.
Dr. Zax defined cohesion as “arising when a group devotes a supermajority of at least 60 % of its votes .to a particular alternative.... In other words, statistical evidence of cohesion arises when the estimated vote share cast by a group for some alternative is 60 % or greater and the probability that the group actually provided less than 60 % of its votes for its favored alternative is 10% or less.” Ex. 948 p. 3, 11. The court finds that Dr. Cole’s and Dr. Zax’s definitions of cohesion are consistent. Both agree that cohesion exists when 60 percent or more of the votes cast are for a particular alternative. Dr. Zax believes that no cohesion exists below that point; Dr. Cole believes that at amounts below 60 percent, weak cohesion can exist. Factoring in the margin of error and the arbitrary nature of setting a specific point, the court holds that cohesion exists at levels above 60 percent and may exist, albeit more- weakly, at lower levels. T.II p. 482.
Dr. Zax’s statistical identification of polarization is analogous to his cohesion definition. “[Sjtatistical evidence
of
polarization arises when the probability that one group actually provided less than 60% of its vote for its favored alternative, and that the other group actually provided more than 40% of its vote for this alternative, is 10% or less.” Ex. 948 p. 12.
Although Dr. Zax did not categorize his election analysis with reference to whether the elections were endogenous or exogenous, the court will so categorize his statistics. Dr. Zax analyzed five endogenous elections: (1) the 2002 general election for State Senate District 26, (2) the 2002 general election for State Senate District 27, (3) the 2000 general election for State Senate District 27, (4) the 1998 general election for State Senate District 27, and (5) the 1996 general election for State Senate District 27. Zax Report at 20, 35, 38, 42, 45. Using the multi-race method of assigning census respondents to racial categories, Dr. Zax found that Indians voted
*1000
cohesively in 5 out of 5 (100 percent) endogenous contests, and he estimated the Indian political cohesion in these races to be 78 percent, 93 percent, 89 percent, 86 percent, and 93 percent respectively.
Id.
at 55, 69, 72, 76, 79.
. Dr. Zax also did not identify interracial contests in his report. By using racial identification information from Dr. Cole’s report, the court has identified such races to be: (1) the 2002 election for Attorney General in District 26; (2) the 2002 election for Attorney General in District 27:(3) the 1998 election for Governor in District 26
12
; (4) the 1998 election for Governor in District 27, and (5) the 1998 election for State Senate in District 27. Using the multi-race methods of assigning census respondents to racial categories, Dr. Zax found that Indians voted cohesively in 5 out of 5 (100 percent) interracial contests, and the estimate of Indian political cohesion in these races was 66 percent, 92 percent, 66 percent, 87 percent, and 86 percent.
See id.
at 54, 62, 68, and 76. (It should be noted that the fifth race identified here is the same as the fourth endogenous race discussed above).
Dr. Zax analyzed 24 exogenous general election contests for public office in District 27 for the years 1996, 1998, 2000, and 2002. These races ranged in importance from President of the United States to Public Utilities Commissioner. Using a multi-race definition for these analyses and using Dr. Zax’s definition of cohesion and polarization, Dr. Zax found Indian cohesion in all 24 races. The estimated cohesion rates ranged from 72 percent to 96 percent, with an average of 89 percent. Ex. 948 p. 68-69, 72, 76, and 79. (It should be noted that three of these races were included in the interracial contests discussed in the previous paragraph.)
Applying the multiple-race definition, Dr. Zax analyzed the 1996, 1998, 2000, and 2002 exogenous general elections in District 26. These races ranged in importance from President of the United States to Public Utilities Commissioner. Dr. Zax determined that Indians were cohesive in 17 out of 24 contests for public office. The estimated cohesion rates ranged from 43 percent to 79 percent, with an average of 67 percent. Ex. 948, p. 54-55, 58, 62, 65. (It should be noted that two of these races were included in the interracial contests discussed previously.)
Dr. Zax also analyzed 48 ballot-issue elections. Using the multiple-race method of assigning census respondents to racial categories, Dr. Zax found that Indians voted cohesively according to his definition in 17 out of 44 (39 percent) ballot-issue elections. The court does not give these results any weight, however. Defendants have not explained why or how Indian voting behavior with regard to ballot issues would be probative of vote dilution. Even if the court did give such evidence weight, the weight would be significantly less than the weight given to endogenous races and interracial contests.
Even Dr. Zax, after considering all contests equally, whether they were endogenous or exogenous contests, whether they were interracial or only contests involving candidates of the majority race, and whether or not the contest involved a candidate or a ballot issue, concluded that Indians were cohesive in 24 of the 47 analyzed races in District 26 and in 37 of 50 of the analyzed races in District 27. Ex. 948 p. 13.
The court finds that Dr. Zax qualifies as an expert. Dr. Zax has a doctorate in
*1001
economics and has taught in the field of economics since 1984. He currently teaches at the University of Colorado where he has received several teaching awards. He is writing a text book in econometrics, has published several articles, and referees various journals. Dr. Zax has testified in several trials on the issue of voting rights. Ex. 451; T.VII p. 1764-73. The court finds that Dr. Zax’s education, experience, knowledge, and skill qualify him as an expert in this case.
3. Reliability of Each Method
In
Sanchez ,
the court evaluated both experts’ analyses and results to determine which reached the most reliable results. 97 F.3d at 1316-1319 . The court is not obliged to accept either parties’ statistical evidence.
Clark,
21 F.3d at 96 .
Dr. Cole employs two techniques: HPA and BERA. Numerous courts, including the United States Supreme Court, have accepted these methods as reliable in § 2 cases.
See Gingles,
478 U.S. at 52-53 , 106 S.Ct. 2752 (relying on single regression analysis, which the Court considered “standard in the literature for the analysis of racially polarized voting”).
See, e.g., Old Person v. Cooney,
230 F.3d 1113, 1123 (9th Cir.2000) (relying on Dr. Zax’s BERA);
Rural West Tennessee African-American Affairs Council v. Sundquist,
209 F.3d 835, 839 (6th Cir.2000) (considering Dr. Cole’s BERA and HPA);
Harvell v. Blytheville Sch. Dist. No. 5,
71 F.3d 1382 , 1386 (8th Cir.1995) (relying on regression analysis). The prevalence of both district and circuit courts,relying on these methods demonstrates the wide acceptance of Dr. Cole’s analyses.
See Teague v. Attala County, Miss.,
92 F.3d 283, 290 (5th Cir.1996) (district court erred by disregarding the “established acceptance of regression analysis as a standard method for analyzing racially polarized voting”).
Other courts have found that discounting this statistical analysis amounts to reversible error. In
Sanchez ,
the Tenth Circuit reversed the district court for rejecting plaintiffs’ BERA and HPA. 97 F.3d at 1321 . The Fifth Circuit also required the district court to consider this method and noted that the Supreme Court used this analysis.
Teague,
92 F.3d at 291 .
See Houston,
56 F.3d at 606 . Precedent, therefore, supports the acceptance of Dr. Cole’s analysis.
Defendants contend that although courts have accepted this analysis, none have rigorously examined the merits of BERA. Several district courts, however, have indeed scrutinized the reliability of the ecological regression analysis. In
Garza v. County of Los Angeles, California,
the court considered defendants’ attack on the degree of bias in the ecological regression technique and the R-squared correlation coefficient. 756 F.Supp. 1298, 1334 (C.D.Cal.1990). The court concluded that ecological regression was sufficiently reliable to determine racial polarization in voting.
Id.
In
Jeffers v. Clinton,
the court discussed the debate between which statistical method has the most merit. 730 F.Supp. 196, 208 (E.D.Ark.1989). Ultimately, it relied on single regression, double regression, and homogeneous-precinct analysis, stating that the entirety of the statistical exhibits reliably demonstrated racial polarization.
Id.
Even defendants’ expert Dr. Zax has previously accepted and relied on the methodology employed by Dr. Cole.
See Old Person,
230 F.3d at 1123 .
Dr. Zax questions the reliability of Cole’s analysis and the high error rate, and contends that the theory is based on a faulty algebraic equation because the two sides of the equation are not equal.
13
Dr.
*1002
Cole admitted that the equation contains an error, but he states that the effect of that error is unknown. The court finds that although there may be in error in the equation, experts continue to use BERA and it is accepted in the field. Furthermore, the equation error must not be significant, because Dr. Cole’s BERA results are consistent with the results obtained under both HPA and EI Ex. 359 p. 2; Y.II p. 1836-37; Ex. 729, 853, 854; T.II p. 404, 543. For example, in the 2002 Senate race in District 26, Dr. Cole, using BERA, calculated Indian cohesion at 88 percent and non-Indian cohesion at 69 percent. Using HPA, Dr. Cole reached estimates of 91 percent and 66 percent. For the same Senate race, Dr. Zax, using El, found 82 percent Indian cohesion and non-Indian cohesion at 66 percent.
14
Although these percentages differ, they are significantly similar and do not indicate a disparity that shows Dr. Cole’s methodology to be unreliable.
Dr. Zax strenuously criticized Dr. Cole’s methods and conclusions during trial. Based on simulated elections, he claims that BERA over-predicted cohesion among a group of voters when such cohesion in fact did not exist. Ex. 858 p. 26, T.VII p.1908. From this he concluded that BERA does not provide accurate estimates. T VII p.1908. Dr. Zax also criticized the R-squared analysis of BERA and contends that there is no mathematical proof that the R-squared calculation makes double regression estimates more reliable.
T. VII p.1910-19; Ex. 858 p. 30: Ex. 359 p. 9.
Dr. Zax’s criticisms of BERA are the same criticisms he articulated regarding the BERA method in articles he submitted for publication to the American Political Science Review and the Political Analysis journal. Both publications declined to publish Zax’s articles. T.VII p.1991-95. One of the double-blind reviewers of his articles described his discussion of the variance of the estimators as misleading, his simulations were described as incomplete, his criticisms of R-squared were described as skewed, and his presentation was described as sometimes being unfair. Ex. 901. A second reviewer commented that his simulations were made “under assumptions that are rather specialized (or even implausible)[.]” Ex. 930. A third reviewer commented that while he would certainly choose El over BERA, he believes Zax is “being unduly harsh” in his criticism of BERA. Ex. 854. This reviewer noted that El is an improvement over BERA, which occurred over the course of time because of recent developments in the science.
Id.
The court agrees with the third reviewer that El is an improvement over BERA, but finds that the flaws that exist in BERA are not significant enough to reject the BERA results wholesale.
BERA can also produce impossible results, that is, values that exceed 100 percent. The results from El are contained within the Dunean-Davis bounds and
*1003
therefore, cannot exceed 100 percent. T.VII p. 1809-10, 1819. The fact that the BERA results sometimes exceed 100 percent, however, is not the result of a flawed analysis. Rather it appears to occur because of census undercount, because some counties do not purge their voter registration rolls frequently, or because some voters moved away but remain on the rolls for a certain amount of time. T.VII p.2006-09.
Defendants also allege that the experts used differing definitions of legal terms such as cohesion and polarization, and thus Dr. Cole’s analysis should be found invalid. A court can accept numerical calculations of an expert, however, without adopting his legal conclusions regarding polarization.
See Askew v. City of Rome,
127 F.3d 1355 , 1367 n. 2 (11th Cir.1997) (although court accepted Dr. Cole’s numerical estimates, it did not necessarily accept his legal conclusions regarding polarization since the court must base that determination on the relevant law). Nor do other inconsistencies pointed out by defendants render Dr. Cole’s opinions inadmissible. Proving a pattern of voting behavior does not require complete accuracy in Dr. Cole’s numerical estimates. A “pattern will not be fatally altered if a few of his percentages are somewhat inaccurate.”
Id.
With regard to HPA, which was also used by Dr. Cole, Dr. Zax admitted that he was unaware of any other experts who refused to employ HPA in litigation. T.VII p.2043. The court acknowledges that HPA has some limitations, however. No precincts are entirely homogenous, and it is difficult to test the reliability of the necessary inferences. It reveals little about how voters that are not part of the majority will vote in the homogeneous precinct. Ex. 938; T.VII p.1921-29. While there are limitations on the conclusions that can be drawn from HPA results regarding voters that are not part of the majority, HPA remains a statistical analysis that is commonly used by other experts in the field as a reliable indicator of how the majority will vote.
With regard to El, the method employed by Dr. Zax, the court finds that El is a reliable method of analysis. Courts recently have recognized El as a reliable improvement on ecological regression analysis.
Rodriguez v. Pataki,
308 F.Supp.2d 346, 387-88 (S.D.N.Y.2004) (citing
Georgia v. Ashcroft,
195 F.Supp.2d 25, 69 (D.D.C. 2002),
vacated on other grounds,
539 U.S. 461 , 123 S.Ct. 2498 , 156 L.Ed.2d 428 (2003)) (recognizing King’s ecological inference as having the “prospect of improving on ecological regression” despite its recency in voting rights litigation);
United States v. Alamosa County, Colo.,
306 F.Supp.2d 1016, 1023 (D.Colo.2004) (noting use of King’s El by experts Weber and Engstrom). Even Dr. Cole admits that El is reliable. TT. II, p. 468-69.
In applying El, however, Dr. Zax did not include an analysis of primaries even though he admitted that experts in the field typically analyze such contests and courts routinely accept such evidence. He was not aware of any other experts who refused to analyze primary results. T.VII p.1960-62, 2043. Dr. Zax also did not give more weight to endogenous contests as compared to exogenous elections. And his opinion did not give interracial races more weight. He gave all races the same weight. T.VII p.2020-23. This does not make his opinion inadmissible, however, as the court can and has considered his results and has given the appropriate weight to the respective contests.
A 2002 article co-authored by Bernard Grofman, who developed BERA, entitled “Ecological Regression and Ecological Inference,” states that the contrast between BERA and El “is too easily exaggerated.” He acknowledged that “most methods [of
*1004
analyzing racial bloc voting] yield very similar estimates.” Ex. 1038 p. 2, 6 n. 5, 18. Similarly, the court finds that all three methods employed by the parties’ experts in this case generate sufficiently similar results. Even though Dr.
Zax
found cohesion in fewer races than Dr. Cole, the court finds that both experts’ analyses demonstrate significant cohesion among Indian voters. Dr. Zax concluded that in District 27, Indian voters were cohesive in 100 percent of the races analyzed. He found cohesion in 100 percent of the endogenous elections he analyzed, 83 percent of the exogenous elections, and 80 percent of the interracial contests. Dr. Cole calculated the average estimate of Indian political cohesion in 45 elections analyzed was 81 percent. Ex. 359, 948. In light of the similar estimates and the general acceptance within the scientific community, the court accepts both experts’ testimony as reliable and probative of cohesion existing among Indians. The court finds that the statistical evidence demonstrates political cohesiveness among Indians.
4. Non-Statistical Evidence of Cohesiveness
The inquiry, however, “does not stop with bare statistics.”
Whitfield v. Democratic Party of Ark.,
890 F.2d 1423 , 1428 (8th Cir.1989). “The experiences and observations of individuals involved in the political process are clearly relevant to the question of whether the minority group is politically cohesive. This testimony would seem to be required if the court is to identify the presence or absence of distinctive minority group interests.”
Sanchez v. Bond,
875 F.2d 1488, 1494 (10th Cir.1989). Evidence that “a specified group of voters share common beliefs, ideals, principles, agendas, concerns, and the like such that they generally unite behind or coalesce around particular candidates and issues,” demonstrates cohesion.
League of United Latin American Citizens, Council No. 4434 v. Clements,
986 F.2d 728, 744 (5th Cir.1993).
See Askew,
127 F.3d at 1377 (both empirical and anecdotal evidence demonstrated cohesion).
Other evidence in the record demonstrates cohesion among Indians. In 1952, the nine Indian tribes in South Dakota formed an organization called the United Sioux Tribes to speak out against mutual issues affecting Indians. In 1963, this group was instrumental in defeating a referendum in South Dakota intended to eventually terminate the reservations. It has continued “to speak out with one voice to promote, encourage, inspire and bring about the economic and social development of the Indian people.” The Oglala Sioux, who reside on the Pine Ridge Reservation, and the Rosebud Sioux are members of United Sioux Tribes. Ex. 3; T.V p. 1359.
Recently, two Indian women formed an organization called First Voices. First Voices promotes an ongoing Indian presence in the state legislature and advocates on behalf of the tribes to create political change. It organized the first anti-racial profiling day at the state capítol in 2002, brought Indians to testify before the legislature, and secured a date for Native Americans’ Day in the state capitol. Ex. 2, 4; T.III p. 706-09.
Political parties and candidates have courted Indian voters with targeted advertisements and other appeals. Ex. 50, 129, 151, 237. Several Indian-oriented newspapers are circulated in South Dakota, including
Indian Country Today,
the
Lakota Journal,
and the
Black Hills Peoples’ News.
These papers cover a wide variety of social, cultural, and political topics, including voting rights, redistricting, and political campaigns. Ex. 113, 122, 125, 132, 144, 147-50, 153, 155, 158-159, 168-174, 176, 182, 186, 190, 195, 199, 205-06, 218. Non-Indian media also frequently reflect Indian issues and concerns. Ex. 54-55,
*1005
64-65, 71, 75, 92, 94, 223, 225, 234, '238, 252-54, 256-57, 260.
Indians have organized a network of tribal colleges with courses that teach traditional tribal arts, language, and culture. T.II p. 524-28, 531-32; Ex. 971.
The Lakota Nation Invitational basketball tournament brings together Indians from across the state every year to watch and participate in athletic and cultural activities. Ex. 73. Tribes and tribal members from across the state frequently come together at social, political, and economic conferences and seminars. Ex. 70, 74, 76-77, 79, 84.
Examples of Indian people coming together regarding common interests include the holding of several protest marches to highlight issues of Indian concern ranging from alcohol abuse to school mascots. Second, the LaCreek Civil Rights Commission, which is a group of Indian people who reside in Bennett County, endorsed candidates in what they have called “the Indian Block” and have used print and broadcast media to encourage tribal members to support the slate. Third, Indian people have worked together through their tribal governments on a host of political issues including voter registration, education, and economic development. Ex. 356 p. 52-53.
Dr. McCool, one of plaintiffs’ experts, opined that “there is a strong sense of cohesion and loyalty” within the Indian community. He testified that there is a “high level of cohesion [regarding] issues affecting the relationship between state and local governments and Indian reservations and the relationship between the federal government and state and local and Indian reservations.” Ex. 356 p. 55; T.I p. 56.
The court accepts this testimony of Dr. McCool as reliable, and gives it some weight. The court finds that he qualifies as an expert to testify in this case. Dr. McCool has a doctorate degree in political science. He has taught courses at the college level since the late 1970s and currently teaches political science at the University of Utah. He is the director of the American West Center, a unit of the University of Utah that researches issues affecting the west, and he teaches classes about western issues, including classes on American Indians. Dr. McCool has published numerous articles and books about the relationship between American Indians and non-Indians. Some of this research specifically discussed Indian issues and political relationships in South Dakota. He has testified as an expert in several other cases on the political relationship between Indians and non-Indians in the western United States.
The court finds that Dr. McCool has the education, training, skill, and knowledge necessary to make him a reliable expert. The court also finds that his research and methods were reliable and of the type typically practiced in his field. His extensive publications, peer reviewed work, and involvement in western issues makes his research credible and reliable. Defendants’ own expert, Dr. Michael Lawson, relied on Dr. McCool as an authority in the field when writing his report. T.VIII p. 2126-27.. For these reasons and the analysis contained in the court’s January 23, 2004 order, the court finds that Dr. McCool satisfies the requirements of Rule 702 and
Daubert.
Ex. 356, T.II p. 17-21; Court Order 1/23/04 (Docket 215).
The court gives little weight, however, to the portions of Dr. McCool’s report that relied on interviews of various people living on the Pine Ridge and Rosebud Reservations, including the conclusions he drew from those interviews. When comparing evidence, the court finds that the testimony of witnesses at trial is entitled to more weight than the personal history informa
*1006
tion acquired by Dr. McCool in unstructured interviews.
Defendants’ expert, Dr. Lawson, also testified about Indian cohesion in South Dakota. He stated that the Indians living in South Dakota “tend to vote as a bloc” in federal, state, and local elections. He also stated: “The recent elections in South Dakota indicate that overwhelmingly they supported one candidate over another, and it can be said that that voting bloc has political cohesion. The majority of them, the overwhelming majority of them, vote in the same way.” T.VIII p. 2108.
Dr. Lawson also testified that “tribal members have very practical considerations about the value of their vote for— for bringing about change. They have a very practical approach. They are most likely to vote for a candidate or on an issue if it agrees with their viewpoints and their cultural integrity and their cultural values. They are least likely to vote when they see that the vote doesn’t make any difference.” T.VIII p. 2109.
Dr. Lawson believed that at the time he wrote his report, Indian cohesion was low because of low voter participation. He acknowledged, however, that “there’s a growing number of tribal members who see the importance of political participation at every level.” T.VIII p. 2109, 2132.
Dr. Lawson has the education, skill, knowledge, and training to make him qualified to testify as an expert on the issues of Indian voting behaviors in South Dakota. He has a doctorate degree in philosophy with a specialty in the history of the American West and federal lending policy. He has worked as a historian with the Bureau of Indian Affairs (BIA) in Aberdeen, South Dakota. During this time, he worked with both the Rosebud and Oglala Sioux tribes. Dr. Lawson then worked in the branch of the BIA that determined whether unrecognized tribes should gain recognition.
. Dr. Lawson retired from the BIA in 1993 and began working as a consultant for a private, historical research firm in Montana. He worked as the general manager and lead historian in their Washington, D.C. office. Dr. Lawson currently works for Morgan, Angel, and Associates, a public policy consulting firm, where he researches history projects. T.VIII p.2063-67.
The court accepts Dr. Lawson’s testimony as reliable and credible to the extent that it is based on his own education, experience, research, and knowledge of Indian issues and behaviors in South Dakota. Dr. Lawson’s report, however, is limited in its probative scope, because as he acknowledged his intent was to “do a literature search and to look at what other academics were looking at ... in terms of Indian voter participation and Indian voting patterns.” T.VIII p. 2131. Furthermore, major portions of the report were written by an assistant, James Muhn. Ex. 314, T. VIII, p.2088-89.
The court finds that although Dr. Lawson is generally qualified to testify in the area and used reliable methods to compile the report, his limited involvement when compiling the report and the limited scope of his research lessens the probative value of the report. The court will therefore afford some weight to portions of Dr. Lawson’s testimony, but not give any weight to his conclusion that Indians are not cohesive because that conclusion is not supported by his other statements.
Lay testimony also evidences cohesion among Indians. Several witnesses consistently and readily identified numerous “Indian issues,” including juvenile corrections, racial profiling, voting rights, Indian child welfare, and tribal sovereignty. T.III p. 715-23 (Bear Heels McCowan), 771-73 (Ring); T.V p. 1300-02 (Van Norman); T.IV p. 1078-80 (Bradford). The court
*1007
finds this testimony to be credible based on the life experiences of these witnesses.
Representative Michaels also testified that Indians are particularly interested in certain issues before the legislature, including racial profiling. He agreed that Indians in South Dakota constitute a community of interest and have special interests. He also agreed that the race of the voters in Districts 26 and 27 correlated with the way they voted. Representative Michaels’ testimony on these matters was credible and relevant. He grew up around Indians and graduated from the University of South Dakota law school. He was elected to the South Dakota legislature in 1999 and currently serves as Speaker of the House. His background and experience make him a credible witness regarding issues of particular Indian concern. T.VIII p. 2213-15, 2238-40.
The lay evidence also demonstrates Indian cohesiveness with regard to recruitment of candidates, registration of voters, and get-out-the-vote efforts. Indians in Bennett County established a grass roots political organization in 2001 called the Lacreek District Civil Rights Committee. Ex. 150, 159, 350. Jesse Clausen, who lives in Bennett County, testified that for several years, certain incidents occurred that made him feel like local public officials violated his civil rights. Indians felt as though law enforcement, particularly the Bennett County sheriff, unfairly singled them out. A group of people who live within the Lacreek tribal council district of the Oglala Sioux Tribe began meeting to discuss concerns and ideas. Clausen became the spokesperson or chairman of the group. Eventually the Lacreek District Civil Rights Committee was formed and they met with the city council, county commissioners, and the mayor. T.IV p. 993, 1036-37. In the Committee’s view, neither the sheriff, the city council, nor the mayor took action to remedy the situation.
When elected officials did not adequately respond to Indian concerns about law enforcement, the Committee turned its focus to the political process. The Committee determined that by registering voters and getting people to the polls, they could elect a different sheriff and different representation in the county and city commissions. T.IV p. 993. In the spring of 2002, the Committee organized a peaceful march in Martin to protest against the actions of the sheriffs office. Between 500 and 1000 people participated. A second march took place that fall. Approximately 400 people attended. T.IV p. 1037-39.
The Committee registered Indian voters and recruited candidates for local offices. It sponsored a slate of candidates in the municipal, school board, and county elections in 2002 and supported those candidates with campaign materials and advertisements in print media and on the local tribal radio station. The Committee met on a weekly basis, organized a phone tree, and registered voters, often by going door to door. On election day, the Committee transported voters to the polls on election day and set up poll watchers. The Committee compared a list of registered voters with those who had voted at the polls, contacted people who had not yet voted, and brought them to the polls. T.IV p. 994-96, 1033-34; Ex. 114-15,117,119,150, 350.
The Committee met with some success. In the primary, they unseated three county commissioner incumbents. During the general election, the Committee succeeded in electing the sheriff candidate they supported and in electing one county commissioner. The actions and results of the Committee’s efforts were publicized nationally. T.IV p. 997, 1000-02; Ex. 121.
The court finds the testimony of Clausen and Craig Dillon, who both described the efforts of the Lacreek District Civil Rights
*1008
Committee, to be reliable and credible and gives this testimony great weight. The court finds that the actions of the Lacreek District Civil Rights Commission is strong evidence of cohesion among Indians. It demonstrates that a significant portion of Indian voters support the same candidates and are concerned with the same issues.
Defendants point to testimony of internal division among tribal members and between tribes as evidence that Indians are not politically cohesive. Defendants quote Rebecca Ann Three Stars as agreeing that “not all Indians think alike” to support their contention. T.IV p. 909; T.II p. 517-18; T.V p. 1182. The court agrees that there is some division among tribal members and between various tribes on certain issues, particularly in relation to internal tribal matters. Cohesion on inter-tribal matters, however, is not relevant to the current case. Indeed, a § 2 violation does not require proof that all members of the minority “think alike.” The evidence establishes, moreover, that any division among Indians is far less prominent when applied to external factors affecting the tribes, such as relations with the state or federal government. The court finds that cohesiveness among Indian people exists, specifically regarding outside influences toward Indians. T.I p. 56-57. The law, moreover, has historically recognized Indians as members of “distinct political communities.”
See Morton v. Mancari,
417 U.S. 535, 554 , 94 S.Ct. 2474 , 41 L.Ed.2d 290 (1974);
Santa Clara Pueblo v. Martinez,
436 U.S. 49, 55 , 98 S.Ct. 1670 , 56 L.Ed.2d 106 (1978).
5. Partisanship and Low Voter Turnout
Defendants maintain that partisanship, rather than race, accounts for Indian voting behaviors. While causation may be relevant to the totality-of-circumstances review, it is not relevant in the inquiry into the three
Gingles
factors.
See Goosby v. Town Bd. of Town of Hempstead, N.Y.,
180 F.3d 476, 493 (2d Cir.1999) (holding causation irrelevant to the three
Gingles
factors);
Milwaukee Branch of the N.A.A.C.P. v. Thompson,
116 F.3d 1194, 1199 (7th Cir.1997) (explanation for the defeat of black-preferred candidates should only be considered in the totality-of-circumstances inquiry);
Lewis v. Alamance County,
99 F.3d 600 , 616 n. 12 (4th Cir.1996) (causation relevant to the totality-of-circumstances inquiry, but not in the
Gingles
analysis);
Uno,
72 F.3d at 983 (totality-of-circumstances inquiry may examine non-racial reasons for voting patterns).
Cf Nipper v. Smith,
39 F.3d 1494, 1524 (11th Cir.1994) (en banc). Accordingly, partisanship has no bearing on the
Gingles
factors.
If partisanship is proper for the court to consider, however, the court finds that the evidence does not support that partisanship explains Indian voting patterns more than race. For example, the slate of candidates supported by the Lacreek District Civil Rights Committee were neither all Indian nor all Democrat. The Committee endorsed a Republican candidate for county commissioner and an independent Indian candidate for Register of Deeds against the non-Indian Democratic incumbent. Ex. 115, 117, 119, 350; T.IV 999-1000.
There is testimony that factors other than party affiliation are likely more important to Indian voters and that Indians would probably cross party lines to vote for a candidate who better represented them on important issues. T.VI p. 1484, 1504. For example, a non-Indian who is the Register of Deeds in Bennett County stated that she believed personal familiarity with a candidate was more important than party affiliation to Indian voters in Bennett County. In her opinion more Indians voted for Republican Larry Long for attorney general in 2002 than his Demo
*1009
cratic opponent, Ron Volesky, a Indian. Long was a lifetime resident of Bennett County and many Indians in the community knew him. Sterkel deposition (Docket 273) p.8-9; Ex. 948.
Other evidence demonstrates that partisanship is not always the primary concern. In the 2002 Democratic primary election for Bennett County Commission, Indians favored the three Indian candidates over all three Democratic incumbents by greater than a 4-to-l margin. Ex. 359 p. 57. In the 1988 general election for State Senate District 28, Indians favored an independent Indian candidate, Paul Valandra, over his non-Indian Democratic opponent by a margin of more than 3-to-l. Ex. 359, p. 27. And in the 1994 Democratic primary election for State House District 27, Indians voted for the only Indian candidate, Richard Hagen, by a 2-to-l margin over his closest non-Indian opponent.
Id.
at 41 .
Defendants note that Dr. Cole analyzed 22 interracial contests and found that a larger percentage of Indians voted for non-Indian candidates in 10 of these contests and Indian voters only preferred Indian candidates in 12 of the 22 races, or 55 percent. Ex. 359 p. 27, 4CM4, 57. The court finds that Indians need not single out Indian candidates for their support. Indians, like other voters, consider many factors when voting for a candidate and will not, therefore, exclusively vote for Indian candidates. The issue at hand is whether Indians can elect their candidate of choice, not whether they can elect Indian candidates.
Defendants also argue that in a majority of the races analyzed by Dr. Cole, a greater percentage of Indians voted for Democrats over Republicans than voted for Indians over non-Indians. Defendants contend that this demonstrates that party affiliation best explains Indian voting patterns. The court disagrees. Neither party affiliation nor race conclusively explain Indian voting patterns. The court, therefore, does not adopt defendants’ partisanship argument. The record in the current case does not “indisputably prove that partisan affiliation, not race, best explains the divergent voting patterns among minority and white citizens in the contested counties.”
Clements,
999 F.2d at 850. Furthermore, minority voters have a right to an equal opportunity to elect representatives of their choice, whatever the basis for those choices. 42 U.S.C. § 1973 (b). In
Goosby ,
the Second Circuit stated, “The Town’s argument implies that if blacks registered and voted as Republicans, they would be able to elect the candidates they prefer. But they are not able to elect preferred candidates under the Republican Party regime that rules in the Town. Moreover, blacks should not be constrained' to vote for Republicans who are not their preferred candidates.” 180 F.3d at 495-96 . Likewise, the court will not accept defendants’ argument that limits Indian preference to Democrats.
Defendants’ argument that low voter turnout evidences a lack of Indian cohesion also fails as a matter of law. In
Gomez v. City of Watsonville,
the Ninth Circuit found that “the district court erred by focusing on low minority voter registration and turnout as evidence that the minority community was not politically cohesive.” 863 F.2d 1407 , 1416 (9th Cir.1988). The court refused to speculate as to the reason why some Indians appear apathetic.
Id.
It found there was no evidence that “lack of enthusiasm for [Indian] candidates was responsible for the low rates of voter registration among [Indians].”
Id.
“[I]f defendants could defeat a showing of political cohesion by showing little more than that many minority voters were apathetic, § 2 would be seriously weakened. Low voter registration and turnout have often been considered evidence of minority voters’
*1010
lack of
ability
to participate effectively in the political process.”
Id.
at n. 4. The court adopts this rationale and finds that political cohesion exists despite evidence of low voter turnout.
After considering the statistical evidence, historic evidence, and current-day lay testimony, the court finds that plaintiffs have shown by a preponderance of the evidence that Indians in Districts 26 and 27 are politically cohesive. The court finds that plaintiffs have satisfied the second
Gingles
factor.
C. Usual Defeat of Indian-Preferred Candidates
The third
Gingles
factor requires plaintiffs to demonstrate that “the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority’s preferred candidate.”
Gingles,
478 U.S. at 51 , 106 S.Ct. 2752 . The presence of racially polarized voting “will ordinarily be the keystone of a vote dilution case.”
Buckanaga v. Sisseton Indep. Sch. Dist. No. 5h-5, S.D.,
804 F.2d 469, 473 (8th Cir.1986). Voting along racial lines “deprivets] minority voters of their preferred representative ... [and] allows those elected to ignore minority interests without fear of political consequences, leaving the minority effectively unrepresented.”
Gingles,
478 U.S. at 47 n. 14, 106 S.Ct. 2752 . Unless the minority has substantial difficulty electing representatives of their choice, it is impossible to prove that a challenged electoral mechanism impairs their ability to elect.
Id.
at 48 n. 15, 106 S.Ct. 2752 .
The Supreme Court adopted the definition of racial polarization as existing “where there is a consistent relationship between the race of the voter and the way in which the voter votes, or to put it differently, where black voters and white voters vote differently.”
Id.
at 51 n. 21, 106 S.Ct. 2752 . There is no simple test to determine the existence of legally significant racial bloc voting.
Id.
at 58 , 106 S.Ct. 2752 . In inquiring into the existence of racially polarized voting, the court should ascertain: whether minority group members constitute a politically cohesive unit and whether whites vote sufficiently as a bloc usually to defeat the minority’s preferred candidates.
Id.
at 56 , 106 S.Ct. 2752 . Political cohesiveness can be shown by evidence that a significant number of minority group members usually vote for the same candidates, and by a white bloc vote that “normally will defeat the combined strength of minority support plus white ‘crossover’ votes.”
Id.
In order for white bloc voting to be legally significant, however, it had to be high enough to “normally defeat the combined strength of minority support plus white crossover votes.”
Id.
at 56 , 106 S.Ct. 2752 .
Gingles ,
however, “does not require an absolute monolith” in the majority’s bloc vote.
Sanchez,
97 F.3d at 1319 .
The level of white bloc voting sufficient to defeat a minority preferred candidate varies according to a variety of factual circumstances. Thus, no mathematical formula or simple doctrinal test is available to determine whether plaintiffs satisfied the third factor.
Id.
at 57-58, 106 S.Ct. 2752 ;
Ruiz,
160 F.3d at 554 . The inquiry therefore focuses on statistical evidence to discern the way voters voted.
Gingles,
478 U.S. at 57 , 106 S.Ct. 2752 ;
Sanchez,
97 F.3d at 1315 . “The surest indication of race conscious politics is a pattern of racially polarized voting extending over time.”
Buckanaga,
804 F.2d at 473 .
The third
Gingles
factor considers not the size of the bloc but considers the bloc’s effect on minority voters’ ability to fully participate in the political process and to
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elect their representatives of choice.
Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ.,
4 F.3d 1103 , 1122 (3d Cir.1993). When determining whether a pattern of usual defeat exists, the court must conduct “a searching practical evaluation of the past and present reality [with] a functional view of the political process.”
Gingles,
478 U.S. at 45 , 106 S.Ct. 2752 .
In examining the third
Gingles
factor, the inquiry should center on districts with a “white majority.”
Gingles,
478 U.S. at 50 , 106 S.Ct. 2752 . While this issue did not arise in
Gingles
because there were no majority black jurisdictions in the challenged plan, the Supreme Court decision in
Johnson v. De Grandy,
512 U.S. 997 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994) is more instructive. In
De Grandy ,
a § 2 challenge was made to a plan that included both majority-minority districts and majority-white districts. The Court described the challenge as one seeking “the chance for more success in place of some.”
Id.
at 1012-13, 114 S.Ct. 2647 . The district court concluded that the third
Gingles
factor had been satisfied and the Supreme Court ratified this conclusion when it acknowledged the district court finding that there was a “tendency of non-Hispanic whites to vote as a bloc to bar minority groups from electing their chosen candidates
except in a district where a given minority makes up a voting majority.” Id.
at 1003-04, 114 S.Ct. 2647 , 512 U.S. 997 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (emphasis added) (citing
De Grandy v. Wetherell,
815 F.Supp. 1550, 1572 . (N.D.Fla. 1992),
aff'd. in part and rev’d in part sub nom. Johnson v. De Grandy,
512 U.S. 997 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994)).
This rationale was adopted by the Ninth Circuit Court of Appeals in
Old Person,
230 F.3d at 1122 . In
Old Person ,
the court recognized that Indian electoral success in majority-Indian districts was relevant to consider only in the totality of the circumstances inquiry with regard to proportionality and proportional representation.
Id.
at 1122 . “To do otherwise would permit white bloc voting in a majority-white district to be washed clean by electoral success in neighboring majority-Indian districts.”
Old Person,
230 F.3d at 1122 .
See also Barnett v. City of Chicago,
141 F.3d 699, 702 (7th Cir.1998) (polarization shown where minorities almost never win unless the district was majority-minority).
Furthermore, such an analysis makes logical sense. Plaintiffs here are alleging that a supermajority of Indians (90 percent) have been packed into District 27. If Indians vote cohesively as is required by the second
Gingles
factor, and they constitute 90 percent of the VAP of a district in a head-to-head contest, the minority-preferred candidate will always win. Thus, plaintiffs could never satisfy the third
Gingles
factor, which requires proof that the minority’s preferred candidate is usually defeated.
To ascertain the existence of white bloc voting in a particular contest, the court should determine: (1) the candidate who the Indian voters preferred; and (2) whether whites voted as a bloc to defeat the Indian preferred candidate.
Old Person,
230 F.3d at 1122 . In analyzing election contests, certain contests are more probative of bloc voting than others. Endogenous elections between white and minority candidates are the most probative in determining the existence of legally significant white bloc voting.
See Gingles,
478 U.S. at 80-82 , 106 S.Ct. 2752 ;.
Blaine County,
363 F.3d at 911. The court gives greater weight to the most recent elections because they are more probative.
Uno,
72 F.3d at 990 ;
Meek,
985 F.2d at 1482-83 .
The only endogenous race in District 26 between an Indian and a white candidate during the last ten years is the 1998 gener
*1012
al for State Senate. Dr. Zax did not analyze this race, but it was analyzed by Dr. Cole. He found:
_ENDOGENOUS INTERRACIAL CONTEST_
Contest Method White vote Indian vote Result Source for Indian for Indian preferred preferred _candidate candidate_
1998 General BERA 24%_70%_Indian preferred Ex. 359, p. 26
State Senate HPA 25%N/A_candidate lost Ex. 359, p. 28
The Indian (and Indian-preferred) candidate lost. The court finds that white voters voted sufficiently as a bloc (approximately 75 percent) and that the Indian-preferred candidate was defeated.
15
Second, the court next examines election contests between white candidates in endogenous District 26 races for the state senate and the state house. Again, the court examines the more recent elections within the last twelve years because those elections are more probative. Dr. Zax analyzed one such race, a state senate race in District 26. Dr. Cole analyzed three state senate and six state house races fitting this criteria in District 26. They found:
ENDOGENOUS CONTESTS BETWEEN WHITE CANDIDATES ONLY
Contest Method White vote Indian vote Result Source for Indian for Indian preferred preferred _candidate candidate_
2002 General JEI_34%_82%__ Indian preferred Ex. 948, p. 20
State Senate BERA 31%_88%_candidate lost Ex. 859. n. 30
Dist. 26_HPA 34%_91%_Ex. 359. n. 33
1996 General BERA 29%_93%_Indian preferred Ex. 359, n. 30
State Senate HPA 28% N/A candidate lost Ex. 359, p. 33 Dist. 26_
1992 General BERA 49%_50%_Indian preferred Ex. 359, n. 30
State Senate HPA 49% N/A candidate lost Ex. 359, p. 33 Dist. 26_
2002 General BERA 17% 67% Indian preferred Ex. 359, p. 47
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State House Dist. 26 HPA 21% 73% candidate (Heller) lost Ex. 359, p. 51
2000 General BERA State House Dist. 26 31% 61% HPA 32% N/A Indian preferred candidate (Jorgensen)lost Ex. 359, p. 47 Ex. 359, p. 51
1998 General BERA State House Dist. 26 38% 58% 24% 72% Indian preferred candidate (Jorgensen) lost Ex. 359, p. 47 Indian preferred candidate (Bartlett) lost
HPA 39% N/A 25% N/A Indian preferred candidate (Jorgensen) lost Ex. 359, p. 51 Indian preferred candidate (Bartlett) lost
1996 General BERA State House Dist. 26 35% 83% 25% 71% Indian preferred candidate (Good) lost Ex. 359, p. 48 Indian preferred candidate (Risseeuw) lost
HPA 35% N/A 25% N/A Indian preferred candidate (Good) lost Ex. 359, p. 52 Indian preferred candidate (Risseeuw) lost
1994 General BERA State House Dist. 26 31% 74% Indian preferred candidate (Risseeuw) lost Ex. 359, p. 48
HPA 30% N/A Indian preferred candidate (Risseeuw) lost Ex. 359, p. 52
1992 General BERA State House Dist. 26 37% 96% 2% 51% Indian preferred candidate (Good) lost Ex. 359, p. 49 Indian preferred candidate (Riggs) lost
HPA 35% N/A 3% N/A Indian preferred candidate (Good) lost Ex. 359, p. 53 Indian preferred candidate (Riggs) lost
In the state senate races, the Indian-preferred candidate lost all three contests. Both experts agree white voters voted sufficiently as a bloc and that the Indian-preferred candidate was defeated in the 2002 state senate race. The court agrees with this finding. The white voters voted sufficiently as a bloc (at least 66 percent) and the Indian-preferred candidate was defeated. With regard to the 1996 state
*1014
senate race, the white voters voted sufficiently as a bloc (at least 71 percent) and the Indian-preferred candidate was defeated. With regard to the 1992 state senate race, there was no Indian preferred candidate because the Indian vote was split evenly between the two candidates.
In the state house races, two candidates are elected in each context. The Indian-preferred candidate lost all six races held between 1992 and 2002. In all six races, the white voters voted sufficiently as a bloc (between 61 percent to 98 percent) for an opponent of the Indian-preferred candidate and the Indian-preferred candidate was defeated. With regard to the 1994, 2000, and 2002 contests, only one house candidate was considered an Indian-preferred candidate because the Indian vote did not reflect a majority for a second candidate.
16
Next, the exogenous races. Exogenous races are less probative than the endogenous races and thus the court gives them less probative value.
See Sanchez,
97 F.3d at 1317 . Dr. Zax and Dr. Cole both analyzed two exogenous interracial contests, which are entitled to more probative weight then white-white exogenous races. Their results, based on voters within District 26, are summarized as follows:
_EXOGENOUS INTERRACIAL CONTESTS_
Contest Method White vote Indian vote Result Source for Indian for Indian preferred preferred _candidate candidate_
2002 Attorney JEI_29%_68%_Indian preferred Ex. 948, p. 17
General BERA 26%_91%_candidate lost Ex. 359, p. 58
Election HPA 30%_87%_Ex. 355, p. 61
1998 Attorney _EI_30%_66%_Indian preferred Ex. 948, p. 27
General BERA 27% _87%_candidate lost Ex. 359, p. 59
Election HPA 31%79%Ex. 359, p. 61
In both of these races, the Indian-preferred candidate lost. The court finds that the white voters voted sufficiently as a bloc (at least 70 percent in the Attorney General race and at least 69 percent in the Governor’s race) to defeat the Indian-preferred candidate.
*1015
Dr. Zax also analyzed the voting behavior of District 26 voters with regard to exogenous races between white candidates in 22 recent elections. The results are summarized as follows:
EXOGENOUS CONTESTS BETWEEN WHITE CANDIDATES ONLY Contest Method White vote Indian vote Result for Indian for Indian preferred preferred candidate candidate Source
2002 General U.S. Senate El 38% 81% Indian preferred candidate lost Ex. 948, p. 19
2002 U.S. Rep. El 37% 80% Indian preferred candidate lost Ex. 948, p. 19
2002 General Governor El 30% 74% Indian preferred candidate lost Ex. 948, p. 19
2002 General Secretary of State El 30% 79% Indian preferred candidate lost Ex. 948, p. 19
2002 General El State Auditor 45% 80% Indian preferred candidate won Ex. 948, p. 19
2002 General State Treasurer El 23% 81% Indian preferred candidate lost Ex. 948, p. 19
2002 General School & Public Lands El 45% 74% Indian preferred candidate won Ex. 948, p. 19
2002 General El PUC; 6-year term 81% Indian preferred candidate lost Ex. 948, p. 20
2002 General El PUC; 4-year term 37% 82% Indian preferred candidate lost Ex. 948, p. 20
2000 General President El 24% 61% Indian preferred candidate lost Ex. 948, p. 23
2000 General U.S. Rep. El 16% 49% Indian preferred candidate lost Ex. 948, p. 23
2000 General PUC El 34% 58% Indian preferred candidate lost Ex. 948, p. 23
1998 General U.S. Senate El 56% 79% Indian preferred candidate won Ex. 948, p. 27
1998 General U.S. Rep. El 16% 46% Indian preferred candidate lost Ex. 948, p. 27
1998 General Secretary of State El 21% 55% Indian preferred candidate lost Ex. 948, p. 27
1998 General Treasurer El 51% 67% Indian preferred candidate won Ex. 948, p. 27
1998 General School & Public Lands El 48% 51% Indian preferred candidate won Ex. 948, p. 27
1998 General PUC El 61% 60% Indian preferred candidate won Ex. 9 48, p. 27
1996 General President El 33% 67% Indian preferred candidate lost Ex. 948, p. 30
*1016
1996 General U.S. Senate El 33% 68% Indian preferred Ex. 948, p. 30 candidate lost
1996 General U.S. Rep. El 33% 67% Indian preferred Ex. 948, p. 30 candidate lost
1996 General PUC El 33% 67% Indian preferred Ex. 948, p. 30 candidate lost
In these 22 contests, whites voted sufficiently as a bloc (more than 60 percent) against the Indian-preferred candidate in 16 contests and the Indian-preferred candidates lost in all 16 of these races. Thus, an analysis of racially-polarized white-white exogenous contests reveals legally significant white bloc voting.
Although Dr. Zax analyzed multiple ballot issues such as initiatives and referendums, the court gives no weight to these ballot issues. Defendants have provided no evidence to suggest that these ballot issues touched on issues of heightened concern to the Indian community. Thus, the court need not consider this evidence.
Old Person,
230 F.3d at 1126 . Furthermore, the record is replete with more probative evidence, to which the court gives more weight. Similarly, Dr. Cole analyzed several Bennett County elections. The court gives no weight to these contests because the voters in Bennett County make up only a small portion of the voters in Districts 26 and 27. Because the results do not predict voter behavior within the disputed areas as a whole, the court gives these results no weight. Dr. Cole also included election results from more than 12 years ago. Because the configuration of District 26 was significantly different then, the court gives these results no weight.
Although the court does not accept Dr. Zax’s conclusion regarding the third
Gin-gles
factor, the court nonetheless finds Dr. Zax’s analyses sufficiently reliable to evaluate the third factor. Furthermore, the court finds that his results, like Dr. Cole’s, show that non-Indian voters in District 26 vote, sufficiently as a bloc to enable them, particularly in the most probative elections and in the absence of special circumstances, usually to defeat the Indian-preferred candidate.
See Barnett,
141 F.3d at 702 (polarized voting where blacks were rarely elected in wards that did not contain black voting-age majority and whites were rarely elected in wards that were majority-minority).
The court rejects Dr. Zax’s conclusion because he did not focus on whether white bloc voting was sufficient enough in a white-majority district to defeat Indian-preferred candidates and he did not give more weight to endogenous races and races between white and minority candidates. Dr. Zax gave the same weight in his analysis to a ballot issue contest as he did to a recent interracial race for state senate. This skewed his conclusion.
The court declines to reach the issue urged by defendants that an Indian vote of over 60 percent for a candidate is needed for a candidate to be identified as an Indian-preferred candidate and that over 60 percent of the whites must vote against the Indian-preferred candidate to prove that the whites sufficiently vote as a bloc to defeat the minority’s preferred candidate. When the most probative election results are examined, even under this demanding standard, the third
Cingles
factor is met. Using defendants’ criteria, in the one endogenous contest between a white and an Indian candidate, which is the most probative of white bloc voting, the Indian (and Indian-preferred) candidate was defeated by white bloc voting in majority-white District 26. In the three endogenous contests for the state senate between white candidates in majority-white District
*1017
26, the Indian voters expressed a preference for an Indian-preferred candidate in two races, the Indian-preferred candidate was defeated by white bloc voting in both contests. In the third senate contest, which occurred in 1992, the Indian voters did not express a preference for a candidate. In 7 out of 12 state house races between white candidates in District 26, which are the most probative white-white contests,
see N.A.A.C.P. v. City of Niagara Falls, N.Y.,
65 F.3d 1002 , 1015 n. 16 (2d Cir.1995), the Indian-preferred candidate lost 100 percent of split-preference relevant elections in majority-white districts as a result of white bloc voting. In two races, the second house candidate received less than 60 percent, but more than 50 percent, of the Indian vote. In three races, the Indian voters did not express a preference for the second representative. Thus, considering all endogenous races, in 10 out of 16 contests (63 percent), an Indian-preferred candidate received more than 60 percent of the Indian vote and then was defeated by white bloc voting at a rate greater than 60 percent.
Next, considering all 24 exogenous contests, including contests between both all white candidates and interracial candidates within District 26, Indians preferred a candidate by a vote of 60 percent or greater in 19 contests. Whites voted as a bloc (in excess of 60 percent) against those 19 candidates in 14 contests. Thus, considering all exogenous races, in 14 out of 24 contests (58 percent), an Indian-preferred candidate was defeated by white bloc voting. In 10 out of 24 contests (42 percent), either there was no Indian-preferred candidate or the Indian-preferred candidate won.
In all categories listed above, even when using defendants’ threshold, the rate at which Indian-preferred candidates are defeated by white bloc voting does not fall below 58 percent. Furthermore, in the contests that are most probative of white bloc voting, the percentages are above that threshold. Considering all this evidence in the aggregate, the court concludes that the white majority in District 26 “votes sufficiently as a bloc to enable it ... usually to defeat the [Indian] preferred candidate.”
Gingles,
478 U.S. at 51 , 106 S.Ct. 2752 . The court finds that this evidence is sufficient to establish “legally significant” white bloc voting within the meaning of the third
Gingles
factor.
See
478 U.S. at 55 , 106 S.Ct. 2752 .
D. Totality of the Circumstances
If a plaintiff satisfied the three
Gingles
factors, th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2526227. Public record. Not legal advice.