Opinion

Jenkins v. Reinbold

116 F.3d 685

Court: Court of Appeals for the Third Circuit
Filed: Jun 18, 1997
On the bench: Alito, Greenberg, Rosenn
Cited by: 2 cases
Authority: More cited than 40.0%

The opinion

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

6-18-1997

Jenkins v. Reinbold

Precedential or Non-Precedential:

Docket 96-7313

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation

"Jenkins v. Reinbold" (1997). 1997 Decisions. Paper 133.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/133

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed June 18, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7313

ALDEN JENKINS; GWENDOLYN NEAL;

HARLAN ROBERTS,

Appellants

WILLIAM E. MANNING; CAROLECE SCOTTON; IRWIN J.

BECNEL, JR.; CHARLES M. CAVANAUGH; LORETTA C.

RICE; EDWARD M. SOSNOWSKI; JACQUELINE WITT;

RED CLAY CONSOLIDATED SCHOOL DISTRICT BOARD

OF EDUCATION

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civ. No. 89-00230)

Argued April 17, 1997

BEFORE: GREENBERG, ALITO, and ROSENN,

Circuit Judges

(Filed: June 18, 1997)

Gary W. Aber

Heiman, Aber & Goldlust

First Federal Plaza

702 King Street

P.O. Box 1675, Suite 600

Wilmington, DE 19801

Brenda Wright (Argued)

Samuel L. Walters

Todd A. Cox

Lawyers Committee for Civil

Rights

1450 G. Street, N.W.

Suite 400

Washington, DC 20005

Attorneys for Appellants

Thomas J. Manley (Argued)

Albert Diaz

Hunton & Williams

One Hanover Square

Fayetteville Street Mall

Suite 1400

Raleigh, NC 27601

Alfred D'Angelo, Jr.

Pepper, Hamilton & Scheetz

1201 Market Street Suite 1600

Wilmington, DE 19801

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellants, Alden Jenkins, Gwendolyn Neal, and Harlan

Roberts, appeal from a judgment entered in favor of

appellees, the Red Clay Consolidated School District Board

of Education ("The Board") in Delaware and the individual

Board members,1 finding that the at-large system of electing

Board members does not violate Section 2 of the Voting

Rights Act. The district court's conclusion that appellants

failed to establish a section 2 violation was not clearly

erroneous, and its legal conclusions were sound. Therefore,

we will affirm.

I. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C.

§§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1973j(f). We

have jurisdiction over this timely filed appeal under 28

U.S.C. § 1291.

Section 2 cases present mixed questions of law and fact,

so our review of the district court's legal analysis is plenary,

but our review of the court's factual findings is governed by

the clearly erroneous standard. Jenkins v. Red Clay Consol.

Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116-17 (3d Cir.

1993), cert. denied, 512 U.S. 1252, 114 S.Ct. 2779 (1994)

("Jenkins II"). "[I]t is this combination of factual deference

and legal review that best `preserves the benefit of the trial

court's particular familiarity with the indigenous political

reality without endangering the rule of law.' " Id. at 1117

(citation omitted); see also Ortiz v. City of Philadelphia

Office of City Com'rs Registration Div., 28 F.3d 306, 308-09

(3d Cir. 1994).

If there is some evidence to support a district court's

findings, a reviewing court can conclude that thefindings

are clearly erroneous only when " `the reviewing court on

the entire evidence is left with the definite andfirm

conviction that a mistake has been committed.' " Anderson

v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct.

1504, 1511 (1985) (citation omitted). A reviewing court,

however, may not substitute its own view of the weight of

the evidence for that of the district court if the district

court's findings represent a plausible reading of the

evidence. Id. at 573-74, 105 S.Ct. at 1511.

_________________________________________________________________

1. The individual named appellees are William E. Manning, Carolece

Scotton, Irwin J. Becnel, Jr., Charles M. Cavanaugh, Loretta C. Rice,

Edward M. Sosnowski, and Jacqueline Witt.

II. FACTUAL AND PROCEDURAL HISTORY

The appellants filed this case as a class action on behalf

of all eligible black voters in the Red Clay School District to

challenge the method of electing members to the Red Clay

Board of Education. Appellants charged that the at-large

electoral system "unlawfully dilutes the voting strength of

black citizens and has the effect of providing black citizens

in the Red Clay School District less opportunity than white

citizens to participate in the political process and to elect

candidates of their choice to the Red Clay Board of

Education." Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 780 F. Supp. 221, 221-22 (D. Del. 1991) ("Jenkins

I"), rev'd, Jenkins II, 4 F.3d 1103.

The Red Clay School District was established in

November 1980. The Board has seven seats; each member

sits for a five-year term, and elections are staggered so that

each year there are elections for one or two seats. The first

election was held in January 1981; since then, elections

have been held annually in May. Candidates for the Board

only must obtain the signatures of 20 voters to run for the

Board.

The Red Clay electoral system is characterized as an at-

large or multi-member district system. Jenkins I, 780 F.

Supp. at 222. "In Red Clay, there is an assigned-post

system, and only candidates living in a particular district

may run for that particular district's seat. All Red Clay

voters, however, can vote for each seat." Jenkins v. Red

Clay Consol. Sch. Dist. Bd. of Ed., 1996 WL 172327, at *21

(D. Del. 1996) ("Jenkins III"). Each voter may vote for one

candidate from each particular district, which is called a

nominating district, and the candidate in each nominating

district receiving a plurality of the votes wins. Jenkins I,

780 F. Supp. at 222. Thus, the system, though providing

for representation on the Board from each of seven defined

nominating districts, does so on the basis of at-large voting.

This voting plan is at the heart of this controversy.

The Supreme Court has "long recognized that. . . at-large

voting schemes may `operate to minimize or cancel out the

voting strength of racial [minorities in] the voting

population.' " Thornburg v. Gingles, 478 U.S. 30, 47-48, 106

S.Ct. 2752, 2764-65 (1986) (citations, footnote, and internal

quotation marks omitted). The danger inherent in at-large

voting systems is that the majority, based on its greater

numbers, will be able to elect its chosen candidates and

defeat the candidates preferred by the minority. Id. at 48,

106 S.Ct. at 2765. Gingles has become a guiding case

under the Voting Rights Act.

Following a bench trial, the district court concluded that

appellants failed to establish one of three necessary factors

to support their case under Gingles, namely, legally

significant white bloc voting. Nonetheless, to make a

comprehensive record, the court also analyzed the at-large

electoral system under the totality of the circumstances.

Jenkins I, 780 F. Supp. at 233. The court concluded that

even if the appellants had established the three threshold

factors, including white bloc voting, necessary to obtain

relief under Gingles, under the totality of the circumstances

they failed to prove a violation of Section 2 of the Voting

Rights Act. Id. at 241.

Appellants appealed the district court's decision to this

court, and we reversed and remanded for further

proceedings. Jenkins II, 4 F.3d 1103. We held that the

district court erred in its assessment of the effects of white

bloc voting. Only one candidate ever won a Red Clay

Education Board election with a plurality of the vote; we

found this single election insufficient to support the district

court's finding that the plurality-win rule enables minority-

preferred candidates to overcome white bloc voting. Id. at

1122-23. We explained that the district court improperly

based its assessment on the potential, rather than the

actual, effects of plurality voting on the ability of black

voters to elect their chosen representatives. Id. at 1123.

Because we had "no way of knowing what conclusions the

district court would have arrived at in regards to white bloc

voting had it not been laboring under its misperception as

to the significance of Red Clay's plurality voting scheme,"

we remanded the case to the district court for

reconsideration. Id.

On remand, the district court admitted additional

evidence and ultimately concluded that although the

appellants had demonstrated the presence of the three

threshold Gingles factors, they had not established under

the totality of the circumstances that there had been a

section 2 violation. Jenkins III, 1996 WL 172327. The

appellants then appealed again.

III. DISCUSSION

Section 2 of the Voting Rights Act provides:

(a) No voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a

manner 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 in contravention of the

guarantees set forth in section 1973(b)(f)(2) of this title.

...

(b) A violation of subsection (a) of this section is

established if, based on the totality of the

circumstances, it is shown that the political processes

leading to nomination or election in the State or

political subdivision are not equally open to

participation by members of a class of citizens

protected by subsection (a) of this section in that its

members have less opportunity than other members of

the electorate to participate in the political process and

to elect representatives of their choice. The extent to

which members of a protected class have been elected

to office in the State or political subdivision is one

circumstance which may be considered: Provided, That

nothing in this section establishes a right to have

members of a protected class elected in numbers equal

to their proportion in the population.

42 U.S.C. § 1973. "The essence of a § 2 claim is that a

certain electoral law, practice, or structure interacts with

social and historical conditions to cause an inequality in

the opportunities enjoyed by black and white voters to elect

their preferred representatives." Gingles, 478 U.S. at 47,

106 S.Ct. at 2764. In the legislative history to the 1982

amendments to the Voting Rights Act, the Senate

enumerated several factors ("the Senate Report factors")

that might be relevant to an evaluation of challenges made

under section 2:

To establish a violation, plaintiffs could show a variety

of factors, depending upon the kind of rule, practice, or

procedure called into question. Typical factors include:

1. the extent of any history of official discrimination

in the state or political subdivision that touched the

right of the members of the minority group to register,

to vote, or otherwise to participate in the democratic

process;

2. the extent to which voting in the elections of the

state or political subdivision is racially polarized;

3. the extent to which the state or political

subdivision has used unusually large election districts,

majority vote requirements, anti-single shot provisions,

or other voting practices or procedures that may

enhance the opportunity for discrimination against the

minority group;

4. if there is a candidate slating process, whether

the members of the minority group have been denied

access to that process;

5. the extent to which members of the minority

group in the state or political subdivision bear the

effects of discrimination in such areas as education,

employment and health, which hinder their ability to

participate effectively in the political process;

6. whether political campaigns have been

characterized by overt or subtle racial appeals;

7. the extent to which members of the minority

group have been elected to public office in the

jurisdiction.

Additional factors that in some cases have had

probative value as part of plaintiffs' evidence to

establish a violation are:

whether there is a significant lack of responsiveness

on the part of elected officials to the particularized

needs of the members of the minority group.

whether the policy underlying the state or political

subdivision's use of such voting qualification,

prerequisite to voting, or standard, practice or

procedure is tenuous.

1982 U.S.C.C.A.N. 177, 206-07 (footnotes omitted).

According to the Senate Report, there is no magical number

of factors which must be shown to exist; "the question

whether the political processes are `equally open' depends

upon a searching practical evaluation of the `past and

present reality.' " Id. at 207-08 (footnote omitted).

Additionally, the Senate Report noted that "Section 2, as

amended, adopts the functional view of `political process.

. . .' " Id. at 208 n.120. See also Gingles, 478 U.S. at 45,

106 S.Ct. at 2763-64; Jenkins II, 4 F.3d at 1115.

A plaintiff must establish three elements before he or she

can demonstrate that minority voters have been deprived of

the opportunity to elect representatives of their choosing in

violation of Section 2. These factors, to which we alluded

above, have come to be known as the "Gingles factors":

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 50-51, 106 S.Ct. at 2766-67 (footnotes

and citations omitted). See also Reno v. Bossier Parish Sch.

Bd., 117 S.Ct. 1491, 1498 (1997).

The Supreme Court viewed the Gingles factors as

"necessary preconditions," id. at 50, 106 S.Ct. at 2766, to

finding a section 2 violation but also noted the importance

of the other factors enumerated in the Senate Report.

Indeed, the Supreme Court and the courts of appeals

continuously have reiterated that the Gingles factors are

necessary, but not sufficient, preconditions to a successful

section 2 challenge. Johnson v. De Grandy, 512 U.S. 997,

1011, 114 S.Ct. 2647, 2657 (1994); Jenkins II, 4 F.3d at

1115; Uno v. City of Holyoke, 72 F.3d 973, 980 (1st Cir.

1995); N.A.A.C.P., Inc. v. City of Niagara Falls, 65 F.3d

1002, 1019 (2d Cir. 1995); Baird v. Consolidated City of

Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992). The two

most important Senate Report factors are " `the extent to

which minority group members have been elected to public

office in the jurisdiction' and the `extent to which voting in

the elections of the state or political subdivision is racially

polarized.' " Gingles, 478 U.S. at 48 n.15, 106 S.Ct. at 2766

n.15 (citations omitted).

The Supreme Court recently has refined the processes for

evaluating Section 2 claims. "In a § 2 vote dilution suit,

along with determining whether the Gingles preconditions

are met and whether the totality of the circumstances

supports a finding of liability, a court mustfind a

reasonable alternative practice as a benchmark against

which to measure the existing voting practice." Holder v.

Hall, 512 U.S. 874, 880, 114 S.Ct. 2581, 2585 (1994)

(footnote and citation omitted); see also Little Rock Sch.

Dist. v. Pulaski County Special Sch. Dist., #1, 56 F.3d 904,

910 (8th Cir. 1995).

We addressed Gingles in Jenkins II, where we emphasized

that:

The ultimate determination under § 2 remains whether,

under the totality of the circumstances, the

multimember districting scheme at issue in this case

deprived black voters of an equal opportunity to

participate in the political process and to elect

representatives of their choice. . . . Therefore, even

after a court has determined that the plaintiffs proved

each of the Gingles factors, it must go on to consider

whether the totality of circumstances, evaluated under

a searching practical evaluation of the past and

present reality and a functional view of political

process, establishes that the particular voting scheme

diminishes the minority group's opportunity fully to

participate in the political process.

Jenkins II, 4 F.3d at 1115-16 (citations and internal

quotation marks omitted). We opined that it would be the

unusual case where the plaintiffs proved the Gingles factors

yet could not prove a section 2 violation under the totality

of the circumstances, but we did not foreclose the

possibility that such a case could arise. Id. at 1116 n.6. See

also Little Rock Sch. Dist. 56 F.3d 904 (court assumed

existence of Gingles factors but found no violation

established under totality of circumstances); Niagara Falls,

65 F.3d 1002 (Gingles factors established, but no violation

under totality of the circumstances).

According to the district court, this case is such an

unusual case. On remand, the district court addressed only

the third Gingles factor, the existence and effect of white

bloc voting, reasoning that we had affirmed its prior

findings that the appellants had satisfied the other Gingles

factors. Jenkins III, 1996 WL 172327, at *2. Using a three-

step inquiry to analyze whether white bloc voting defeats

minority preferred candidates in Red Clay, the district court

"(1) identif[ied] which candidates were minority-preferred;

(2) observe[d] whether the percentage of whites voting as a

bloc against the minority-preferred candidate has been

sufficient usually to defeat the minority-preferred

candidate; and (3) decide[d] whether any of the elections

involved special circumstances." Id. at *3 (footnote omitted).

The district court found that five out of 11 minority-

preferred candidates won their elections. Id. at *9. After

considering whether the victories of minority-preferred

candidates could be attributed to special circumstances,

the district court concluded that "white voters usually vote

as a bloc against the minority-preferred candidate when

that candidate is black and there is a white candidate in

the race. This bloc is large enough usually to defeat black

minority-preferred candidates. In these circumstances, the

court finds legally significant, although not overwhelming,

white bloc voting." Id. at *18.

Finding that appellants satisfied the three Gingles factors,2

the district court then assessed the Senate Report factors.

As we will discuss in more detail below, the district court

addressed each factor individually, finding that some

_________________________________________________________________

2. The appellees do not challenge this finding on appeal and, of course,

the appellants accept it.

supported the appellants' claim while others weighed

against finding a violation of Section 2. The court concluded

that under the totality of the circumstances, the appellants

failed to establish a section 2 violation.

Appellants contend that this conclusion was in error and

argue that the district court improperly weighed the various

Senate Report factors in its analysis of the totality of the

circumstances. The Board responds that the court's

analysis was proper and also argues that the district

court's conclusions are bolstered by the fact that the black

voting population consistently has elected 10% black and

20% minority-preferred candidates to the Board, afigure

commensurate with the 13% black representation in the

voting age population.

During the initial appeal, we rejected the Board's

argument that even if all the Gingles factors had been

satisfied, the district court's analysis supported a finding

that under the totality of the circumstances, no violation

was established. First, we found that the district court's

evaluation of the totality of the circumstances was tainted

by its finding that the plurality-win rule combated the

potential effects of white bloc voting. Jenkins II, 4 F.3d at

1135. Second, we concluded that the district court's

analysis was conclusory and did not comport with the

requirement that the totality of the circumstances be

subject to " `a searching practical evaluation.' " Id. (citation

omitted). Third, even if a less searching evaluation were

permitted, we required the district court to provide a more

detailed explanation of its findings and analysis. Id.

On remand, the district court corrected these errors.

First, it discarded its plurality-win theory and reevaluated

the elections to determine whether legally significant white

bloc voting was established. Jenkins III, 1996 WL 172327,

at *15. Thus, the plurality-win theory did not taint its

findings on the remand. Second, the district court engaged

in the more detailed evaluation contemplated by the Senate

Report and the case law as we required in Jenkins II.

Finally, the district court provided detailed explanations of

its findings and analysis.

As on the first appeal, the parties' dispute focuses on the

findings related to white bloc voting. This time, however,

the disagreement centers not on the finding that the

appellants established the third Gingles factor, but on how

the district court's finding of legally significant white bloc

voting influenced its other findings. Specifically, the parties

dispute the weight to be accorded the electoral success of

black candidates in the analysis of the totality of the

circumstances.

1. Significance of Proportional Representation and Minority

Electoral Success

In finding that appellants did not establish a Section 2

violation, the district court relied in large part on the

undeniably substantial success of minority candidates.

Nevertheless, proportionality of representation, or the lack

thereof, though relevant, is not dispositive either in proving

or disproving a section 2 claim. See, e.g., Little Rock Sch.

Dist., 56 F.3d at 911-912 (citing Johnson v. De Grandy);

Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1388 (8th

Cir. 1995), cert. denied, 116 S.Ct. 1876 (1996).3

In Jenkins II, we rejected the Board's argument that the

consistent proportional representation of blacks on the

Board should defeat the section 2 claim. Jenkins II, 4 F.3d

at 1131-32. We viewed the district court's findings that

some of the black electoral victories were the product of

special circumstances and its decision to consider the

Gingles factors

as a finding that the black voters of Red Clay had not

achieved the persistent proportional representation

discussed in Gingles that would defeat a § 2 claim at

the threshold and thereby obviate the need to consider

the Gingles factors. We conclude that the court's

finding in this regard was not clearly erroneous as the

_________________________________________________________________

3. These cases rely on Johnson v. De Grandy for support. However, the

court in Johnson v. De Grandy was addressing a different sort of

proportionality when it found that proportionality is relevant but not

dispositive. As used there, the term "link[ed] the number of majority-

minority voting districts to minority members' share of the relevant

population. The concept is distinct from the subject of the proportional

representation clause of 2. . . ." Johnson v. De Grandy, 512 U.S. at 1014

n.11, 114 S.Ct. at 2658 n.11.

record amply supports a finding that the black voters

of Red Clay have not achieved persistent proportional

representation.

Id. at 1132.

On remand, the district court reassessed its earlier

finding that black candidates had achieved substantial

electoral success, but not sustained proportional

representation, in light of its new findings that two white

candidates who were elected to the Board also were

minority-preferred. Jenkins III, 1996 WL 172327, at *24.

The district court based its finding of substantial minority

electoral success on several elections. First, the district

court counted the 1981 victory of black candidate Harlan

Roberts, who won a plurality of the votes in an election of

seven candidates. The district court also found that black

candidate Carolece Scotton's 1990 defeat of black candidate

Rita Shockley demonstrated minority electoral success. Id.

at *24. In 1991, black candidate Ronald Greene defeated

white candidate Russell Fiske; the court also considered

this election in its evaluation of minority electoral success.

Id.

The district court included in its evaluation the electoral

victories of two white candidates, Charles Cavanaugh in

1988 and Patricia Reinbold in 1989, whom it deemed

minority-preferred. Appellants argue that although the

district court did not allow these elections to defeat its

finding of legally significant white bloc voting, it improperly

weighed those elections in finding substantial minority

electoral success. Appellants also claim that these

candidates should not have been considered minority-

preferred.

In Jenkins II, we rejected a bright-line rule that any

minority candidate should be viewed as minority-preferred

and explained that although there is an inference that a

minority candidate is minority-preferred, plaintiffs must

provide evidence, such as statistical evidence regarding

voting patterns or lay testimony, demonstrating that the

candidate is, in fact, minority-preferred. Jenkins II, 4 F.3d

at 1126. Similarly, we refused to propound a rule that only

minority candidates may be considered minority-preferred.

Id. at 1126. Instead, we adopted a more flexible approach,

emphasizing that courts must examine closely the nature of

minority voter support for candidates, especially white

candidates, to determine whether a particular candidate is

minority-preferred. Id. at 1125-26 (citing Sanchez v. Bond,

875 F.2d 1488, 1494-96 (10th Cir. 1989)).

We enumerated several inquiries pertinent to determining

whether a particular white candidate is minority-preferred.

"One relevant consideration is the extent to which the

minority community can be said to have sponsored the

candidate." Jenkins II, 4 F.3d at 1129. An evaluation of that

factor should focus on "the level of minority involvement in

initially advancing the particular candidate and in

conducting or financing that candidate's campaign." Id. The

level of attention the candidate gave to minority needs and

interests, including how often the candidate campaigned in

predominantly minority areas, is also relevant. Id. at 1129.

We also found pertinent the level of minority voter turn out

in white-white elections, compared to the turn out when a

black candidate is running. Id. "Finally, bearing in mind

the disincentives that may exist for minority candidates to

seek office, the extent to which minority candidates have

run for office and the ease or difficulty with which a

minority candidate can qualify to run for office may be

relevant considerations." Id. We now examine individual

elections.

a. Election of Harlan Roberts in 1981

The election of Harlan Roberts in 1981 has been a matter

of some controversy during this litigation. Roberts is the

only candidate ever elected to the Board by a plurality of

the votes. The district court, considering the "practical

effect" of the plurality-win rule in assessing minority

electoral success, relied on this unusual election to support

its finding of substantial black electoral success. Jenkins

III, 1996 WL 172327, at *23.

In Jenkins II, we accepted the district court's original

finding that the Roberts victory occurred under special

circumstances. Jenkins II, 4 F.3d at 1122-23, 1132. The

district court's conclusion on remand that special

circumstances were not at work in this election was based

on its finding that Roberts enjoyed substantial white and

black support and its conviction that the victory should not

be discounted simply because the plurality system

contributed to Roberts' victory. Jenkins III, 1996 WL

172327, at *15. This finding was clearly erroneous; this

election involved the largest field of candidates ever to run

for a single Board seat, id. at *14; it was the first Board

election ever held, and Roberts was the only candidate ever

to have won with a plurality of the vote, Jenkins II, 4 F.3d

at 1122-23.

However, this error does not require reversal and remand

to the district court for yet another assessment of this case.

Although the district court should have discounted the

effect of this victory in its analysis of minority electoral

success, the fact remains that a black candidate was

elected. This election still should be counted, although it

should be accorded less weight. Thus, although the district

court erred in its analysis of this race, this error does not

upset the overall evaluation of minority electoral success.

Rather, we must look to the other races considered in the

district court's analysis to determine whether the error is

reversible.

b. Carolece Scotton's Election in 1990

The district court found that there were special

circumstances in this election because it was between two

black candidates. The court therefore found the election

less probative on the question of white bloc voting. Jenkins

III, 1996 WL 172327, at *17. Appellants urge that the

district court erred by failing to consider this special

circumstance in its analysis of black electoral success.

Appellants' argument fails. In Jenkins II, we "express[ed]

no opinion on the relationship between the consideration of

special circumstances in the two contexts (sustained

proportional representation and white bloc voting)." Jenkins

II, 4 F.3d at 1119 n.9. Ironically, in its original opinion, the

district court considered special circumstances in the

context of its findings on sustained proportional

representation but erroneously failed to apply those

findings to its evaluation of white bloc voting. Id. We noted

that Gingles requires the district court to consider those

circumstances in the context of white bloc voting, id., and,

on remand, the district court did so.

We now find that it is quite reasonable to hold that a

particular election must be discounted for one purpose but

not another. Here, the district court's finding that a black-

black election should be discounted for purposes of

evaluating white bloc voting does not compel the conclusion

that the same election must be discounted when evaluating

minority electoral success. To the contrary, the fact that

two black candidates ran in one election, unopposed by any

white candidate, is evidence of black electoral success. It

demonstrates that blacks in Red Clay can and do put

forward and support candidates who can succeed. The

appellants actually seem to be asking us to discount any

evidence of black electoral success; this we cannot do.

There was no error in giving weight to the electoral success

of Scotton in 1990.4

c. Election of Ronald Greene in 1991

Ronald Greene, a black candidate, defeated Russell Fiske,

a white candidate, in a 1991 election for a special one-year

term. The court found that both statistical and lay

testimony demonstrated that Greene was the minority-

preferred candidate. Jenkins III, 1996 WL 172327, at *9.

This finding has not been challenged on appeal, and we

accept it as not clearly erroneous.

d. Election of Charles Cavanaugh in 1988

In 1983, Cavanaugh, a white candidate, defeated Betty

Anderson, who is black. The district court found that

_________________________________________________________________

4. In a footnote to their brief, appellants also argue that the court erred

in finding that Scotton, rather than her opponent Shockley, was the

minority-preferred candidate in 1990. Br. at 32 n.15. There is no

detailed argument on this point, and we decline to address it. However,

the evidence we have reviewed supports the district court's finding on

this matter, and we view the argument as an effort by the appellants to

persuade us (and the district court) to disregard all evidence of minority

electoral success. For a more detailed discussion of this question, see

Jenkins III, 1996 WL 172327, at *8 (comparing statistical evidence

supporting Scotton's status as the minority-preferred candidate to

plaintiffs' lay testimony about minority support for Shockley).

Anderson was the minority-preferred candidate in that race.

In 1988, Cavanaugh, running unopposed, won reelection.

Evaluating the factors delineated in Jenkins II, the district

court concluded that by 1988 "Cavanaugh was the

representative of choice of minority voters," and was the

minority-preferred candidate. Id. at *7, 6. The district court

found that Cavanaugh had become focused on the needs

and interests of the minority community during his earlier

term, and that in 1988 he was supportive of issues

important to the minority community. Id. at *6.

Additionally, the court found that there were no

impediments to a minority candidate entering the 1988

race against Cavanaugh. Id. at *7.

This finding may be questionable, given that the district

court recognized that no evidence demonstrated that the

minority community advanced, conducted, or financed

Cavanaugh's campaign in 1988. Id. at *6. Additionally, the

court noted that there was no evidence that Cavanaugh's

unopposed race affected black or white voter turnout. Id.

Although the finding that Cavanaugh was minority-

preferred may not be clearly erroneous, it is certainly not

well supported. The district court should have discounted

this race as having no impact on minority electoral success,

just as it discounted this race in its assessment of white

bloc voting, id. at *16.

e. Election of Patricia Reinbold in 1989

Reinbold, who is white, defeated white candidate Donald

Schneck in 1989. Based on evidence that Reinbold

campaigned on issues of concern to the minority

community, blacks were involved in Reinbold's campaign

efforts, important black community leaders supported

Reinbold, and there were no barriers to a black candidate

running in the election, the district court concluded that

Reinbold was the minority-preferred candidate. Id. at *7-8.

The court found that although black voter turn out

decreased disproportionately in that year, the decrease

could not be attributed to the absence of a black candidate.

Id. at *7.

The district court's conclusion that Reinbold was the

minority-preferred candidate was not clearly erroneous.

Moreover, as noted above, individual elections can be

accorded differing weight for different purposes. Although a

white-white election obviously is of less relevance to an

analysis of white bloc voting, it is relevant to an assessment

of minority electoral success if white minority-preferred

candidates defeat other white non-minority-preferred

candidates. The district court did not err in considering this

election in its assessment of minority electoral success.

f. Conclusion on Minority Electoral Success

Section 2 guarantees equality of opportunity for minority

participation in the electoral and political processes. It does

not focus on whether minorities are able to elect other

minorities to office, but rather addresses whether minorities

have an equal opportunity to elect representatives of their

choice, whatever their race, to office. Although the district

court did err in some respects, on the whole, discounting

the elections which should have been weighed less heavily

or ignored in the analysis of minority electoral success, we

find that the district court did not commit clear error in

concluding that minority electoral success, while not

reaching sustained levels of proportionality, was

substantial. Although several black candidates who sought

election were defeated, often by white candidates, others

were successful, and in some elections minorities also were

able to elect white candidates of their choosing. The

electoral success of Roberts, Scotton, Greene, and Reinbold

support the finding of substantial minority electoral

success. As the district court reasonably found,

"Considering that black voters comprise only 13% of the

VAP [voting age population], their success has been great.

It has not been persistent or sustained, but it has been

impressive." Id. at *24. These findings supported the

district court's conclusion that under the totality of the

circumstances, no section 2 violation was established.

2. Analysis of the Remaining Senate Report Factors

Appellants challenge the district court's findings on many

of the Senate Report factors as erroneous and also argue

that the court improperly weighed the different factors in its

evaluation of the totality of the circumstances. Wefirst will

discuss the court's assessment of each factor and then

evaluate the weight ascribed to each factor in its analysis of

the totality of the circumstances.

a. Past and Present Discrimination

Finding a history of discrimination against minorities in

Delaware and a general lower socioeconomic status of

minorities in Red Clay, the district court concluded that

those factors might have caused the demonstrated

depressed minority political and electoral participation in

Red Clay. Id. at *20. Appellants challenge only the weight

accorded this finding in the totality of the circumstances

analysis.

b. Racial Polarization of Voting

Based on its findings of voting cohesion among blacks as

well as legally significant white bloc voting, the district

court determined that voting in Red Clay is, to a degree,

racially polarized. Id. at *21. This finding is not challenged

on appeal.

c. Effects of other Electoral Practices or Procedures

On remand, the district court reaffirmed that the

opportunity for electoral discrimination against minorities

was not enhanced by other features of the Red Clay

electoral system, such as the size of the district, the

plurality-win rule, or the anti-single shot voting provision.

Id. For example, although the anti-single shot rule

precludes resort to a strategy that minorities could employ

to elect candidates of their choosing, the court noted that

it also ensures that citizens from each district in Red Clay

have representatives on the Board. Id. These findings were

not clearly erroneous.

The district court also noted that other aspects of the Red

Clay voting system were beneficial to minorities,

particularly the absence of any voter registration

requirements and the ability of voters to vote at any polling

place in the district. Id. at *22. The court correctly

concluded that these elements of the electoral system make

it easier for minorities to vote. Similarly correct were the

district court's original findings that the use of Tuesdays

rather than Saturdays as election days did not enhance the

opportunity for discrimination. Jenkins I, 780 F. Supp. at

236.

The district court did not discuss in either opinion the

appellants' charges that the opportunity for discrimination

was enhanced by the low appointment rate of blacks as poll

workers and election officials in school board elections. The

parties stipulated that during a three-year period only ten

of 149 such appointments were black. While this number

obviously reflects some disparity, the appellants have not

alerted us to any other record evidence on this issue, so it

is not possible to determine whether the disparity is the

result of intentional discrimination or how that disparity

affects voter turnout.

The appellants also claim that the district court erred

"because of its failure to acknowledge that [the voting

practices and procedures] include a nominating-district

residency requirement that creates a direct barrier to

minority candidacies outside the two Wilmington-based

nominating districts." Br. at 48. This is a more serious

concern; however, the district court adequately addressed

this issue in its original opinion, concluding that the

system promotes slating and also ensures that citizens

from all areas of the district will be represented on the

board. Jenkins I, 780 F. Supp. at 235. The court concluded

that although the system precluded single shot voting

which can help minorities elect candidates of their

choosing, overall this feature of the electoral system did not

work either in favor of or against minority voters. Id. at

235-36. The district court again discussed this issue on

remand, and reaffirmed its earlier findings. Jenkins III,

1996 WL 172327, at *21.

Appellants' contention that a nominating district

requirement limits minority candidates to the two

Wilmingon-based nominating districts strikes us as highly

ironic. The appellants have brought this action seeking the

establishment of a single-member district system with each

district electing its own member. Thus, for example, only

residents of District B could vote in the elections for the

member from District B, and those residents could vote in

only those elections. The theory, of course, is that a single-

member district could become a majority-minority district,

thus leading to the election of a minority member. Yet,

surely the appellants should recognize that according to

their theory of this case, the system they seek would tend

to limit minority candidates to the majority-minority district

or districts. Although under the at-large system, black

candidates most frequently run for election in Districts A

and B, minority candidates have run for election from five

different districts. Id. at *27. Thus, appellants now

complain about a system that they seek to perpetuate and

strengthen.

On the whole, as the district court explained, the Red

Clay election procedures "are open and accommodating and

do not enhance the opportunity for discrimination against

black citizens." Id. at *22. Thus, the district court's findings

about the features of the Red Clay electoral system were

not clearly erroneous.

d. Accessibility of Slating Processes to Minority Candidates

The district court reaffirmed its original conclusion that

the slating processes are open to minority candidates. Id.

This conclusion is not challenged on appeal.

e. Use of Racial Appeals in Election Campaigns

On remand, the district court reaffirmed its original

conclusion that racial appeals were not used in Red Clay

elections. Id. at *23. Appellants argue that the district court

improperly discounted the use of a flyer during the 1988

campaign that warned against voting for a black candidate

who might support school population changes to promote

racial balance. The district court correctly determined that

this flyer did not constitute a racial appeal. Theflyer simply

noted the three candidates' positions on changing feeder

patterns within the School District, and it did not identify

the candidates by race. Although the feeder pattern issue

did involve the percentages of students of different races in

the various schools and how the candidates might vote on

feeder pattern issues, this flyer was more of an issue appeal

than a racial appeal, albeit an issue heavily identified with

racial concerns. The district court's finding on this factor

was not clearly erroneous.

f. Policies Supporting At-Large Multi-District System

The district court reaffirmed its earlier finding that two

policies support the use of at-large voting: it promotes

broader accountability of the Board members by requiring

them to seek support from citizens of all district

neighborhoods, and it allows citizens to vote every year for

Board members, rather than once every five years, when a

particular district seat comes up for election. Id. at *24-25.

The district court found that the relationship between these

policies and the use of the at-large electoral system was not

tenuous. Moreover, all but one school district in Delaware

elect board members in this manner. The common usage of

this system further supports the district court's conclusion

that the policies advanced in support of the at-large system

are sufficiently related to the use of the system. The finding

was not clearly erroneous.

g. Responsiveness of the Board

The district court reaffirmed its original finding that the

Board had been unresponsive to minority concerns despite

improvement in the areas of employment of black teachers

and administrators and concerns about how black children

were being placed into special education classes. Id. at *25.

The court also noted, however, that a federal court now has

held that the schools of Red Clay are desegregated,

although there was substantial delay in achieving that

result. Id. Also, some Board members, both black and

white, have begun to represent and advocate for issues of

concern to minorities. Id. Finally, the court noted that

recent electoral victories of black and white minority-

preferred candidates might represent or lead to increased

responsiveness by the Board to minorities. Id. While the

court found these factors significant, it still concluded that,

on the whole, this Senate Report factor weighed in favor of

appellants. This finding was not clearly erroneous.

h. The Totality of the Circumstances

In weighing the Senate Report factors in this case, the

two most important factors, the existence of racially

polarized voting and the extent of minority electoral

success, tilted the balance in different directions.

The district court found "legally significant, although not

overwhelming, white bloc voting," in Red Clay. Id. at *18.

The district court was entitled to accord substantial weight

to the existence of white bloc voting in its analysis of the

totality of the circumstances; the fact that the white bloc

voting was "not overwhelming" did not require the court to

discount significantly this factor. However, the court was

required to weigh this factor against its finding of

substantial minority electoral success, and it did so,

concluding that "[w]hile there has been legally significant

racially polarized voting in Red Clay, the results of that one

legal test do not tell the whole story." Id. at *28. In some

cases, for example, either white bloc voting was not

responsible for the defeat of a minority or minority-

preferred candidate or there was actually cross-over white

voting for such candidates.

In the analysis of the totality of the circumstances,

substantial minority electoral success strongly

counterbalances the racially polarized voting. The

significance of the level of minority electoral success

achieved in Red Clay further is evidenced by the district

court's comparison of the success achieved under the at-

large system and the projected minority electoral success

the appellants' proposed single-district system would

produce. This comparison underscores the propriety of the

district court's finding that no Section 2 violation was

established by demonstrating that the proposed system

would be unlikely to produce increased minority electoral

success.5

Relying on appellants' expert's testimony, the court found

that a single district, District B, could be drawn in Red

Clay, the voting age population of which would be 55.64%

black. Id. at *27. This district would include sections of two

_________________________________________________________________

5. We note that appellants argue that the district court's comparative

analysis is flawed because the district court did not discount those

elections in which special circumstances contributed to minority

electoral success and therefore incorrectly overstated the electoral

success in the at-large system. As noted above in the discussion

regarding minority electoral success, however, the court's discounting of

the elections was related to its assessment of white bloc voting, not

minority electoral success. Although we found that some of those

elections should have been discounted in the analysis of minority

electoral success as well, we conclude that the district court's

comparative analysis of the two electoral systems is not rendered clearly

erroneous by its failure to discount these elections.

existing nominating districts, Districts A and B, and would

enjoy, according to our calculations, an increase of almost

44% in the percentage of minorities in the voting age

population. In the new District A, blacks would comprise

15.46% of the voting age population, id.; as we calculate it,

this would represent almost a four percent increase. The

district court concluded that if Red Clay adopted a single-

member district system, blacks living in the new District B

almost always would succeed in electing their chosen

candidates, while blacks living outside of Districts A and B

would not often succeed in electing their preferred

candidates. Id. at *26.

To date, a black candidate has won all of the elections in

District B except for the 1985 election in which Harlan

Roberts was defeated. Id. Reasoning that the results would

be the same if District B were transformed into a majority

black district in a single-member district system, the

district court concluded that "[b]ecause under the single

member district system the minority-preferred candidate

can be expected usually to win in District B, Harlan

Roberts' loss in 1985 logically could be blamed on the at-

large system of election." Id. at *27.

The district court concluded that a single-member system

would benefit some minority candidates and voters while

disadvantaging others: minority-preferred candidates

running in District B would benefit from a change to a

single-member district because of the significant increase of

the percentage of blacks in the voting age population. Id.

Candidates in District A also would benefit, but the portion

of black voters for whose votes they would be competing

would increase only slightly. Id. However, candidates

running in other districts (C, D, E) would be disadvantaged,

for the percentage of black voters to whom they could look

for support would decrease from 12% to less than 3% in

Districts E and D and 5% in District C. Id. The district

court also concluded that by concentrating black voters

into one district, the single-member plan also might

concentrate black candidates into one district, thereby

decreasing the representation of blacks outside that

district. Id. Finally, the district court concluded that the

single-member system might impair the ability of black

voters to elect white minority-preferred candidates by

decreasing the incentives for white candidates in the non-

black majority districts to appeal to black voters due to

their decreased percentages in the voting age populations of

those districts. Id. at *28. For these reasons, the district

court found that "a switch to a single member district

would have had and likely would have only a very minor

impact, if any, on the success of minority-preferred

candidates." Id.6

Given the countervailing weight of the two most

important Senate Report factors, the other Senate Report

factors are very important in an assessment of the totality

of the circumstances. The district court's findings make

clear that, although there has been discrimination in Red

Clay which may have resulted in the decreased minority

voter participation, most of the features of the Red Clay

electoral system not only have not increased discrimination

against minorities but in several aspects actually have

made the electoral system more accessible to minority

voters and candidates. Moreover, racial appeals have not

been used in Red Clay elections. Finally, the situation in

Red Clay seems to be improving, as minority electoral

success continues and the Board's responsiveness to

minority concerns increases. Given these circumstances, we

find that the district court properly weighed all the various

Senate Report factors and reasonably concluded that no

Section 2 violation was established.

The district court conducted a searching analysis of past

and present political realities in Red Clay, and it compared

actual minority electoral success with the potential success

a single-member system would produce. The district court

followed our instructions on remand, and the evidence

supported its conclusions. We, too, have made a searching

_________________________________________________________________

6. We note that in the text of its opinion, the district court discussed the

effects of the proposed single-member plan on onlyfive nominating

districts. However, it is clear from the record, and from a footnote in the

district court's opinion, that the proposed plan would maintain a system

with seven nominating districts. App. at 846; Jenkins III, 1996 WL

172327, at *30 n.35. The black voting age population would be 2.13% in

proposed District F and 2.86% in proposed District G. Jenkins III, 1996

WL 172327, at *30 n.35.

analysis of the numerous facets of this case, and based on

that analysis, we are convinced that this case falls into that

category of unusual cases where the Gingles factors are

proved, but under the totality of the circumstances, no

section 2 violation is established. Although racially

polarized voting has characterized Red Clay elections, there

has been substantial minority electoral success, and a

change to a single-member system would not improve

appreciably the level of such success. Therefore, the district

court correctly concluded that no section 2 violation was

established.

IV. CONCLUSION

The district court's factual findings (except where noted

with regard to certain electoral results) and conclusions

were not clearly erroneous. We therefore uphold the district

court's conclusion that no section 2 violation was

established. Consequently, we affirm the order of April 12,

1996, entering judgment in favor of the appellees.

ROSENN, Circuit Judge, dissenting.

When last this case was before our court, Jenkins v. Red

Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103 (3d Cir.

1993) [Jenkins I], we stated that"it would be a highly

unusual case in which a plaintiff successfully proved the

existence of the three Gingles factors and still failed to

establish a violation [of § 2 of the Voting Rights Act]." Id. at

1116 n.6; see also id. at 1135. Since that time, several

other Courts of Appeals have adopted our view.1 Yet today

the majority retreats from the compelling mandate of

Jenkins I, finding a "highly unusual" situation in the

ordinary and ambiguous details of the case as currently

presented. For this reason, I respectfully dissent.

The majority correctly states that the Gingles factors are

merely preconditions to a successful § 2 challenge, and that

courts must look beyond these factors to the totality of the

circumstances. The majority is also correct in stating that

the totality of the circumstances analysis focuses on the

Senate Report factors, and that the two most important

factors are "the extent to which voting in the elections of

the state or political subdivision is racially polarized" and

"the extent to which members of the minority group have

been elected to public office in the jurisdiction." But the

majority's analysis hinges on its view that minority

candidates have enjoyed "undeniably substantial success"

in Red Clay elections. I see the elections through a different

lens. The majority's weighing of the Senate Report factors is

imbalanced, and its affirmance of the district court decision

is unwarranted.

In focusing on the details of this case, the majority has

apparently overlooked the broad sweep of the Voting Rights

Act of 1965, 42 U.S.C. § 1973, and its 1982 amendments.

The Act is widely considered to be the most successful piece

of civil rights legislation ever enacted by Congress. See, e.g.,

Alexander Athan Yanos, Note, Reconciling the Right to Vote

_________________________________________________________________

1. See, e.g., Clark v. Calhoun County, 88 F.3d 1393, 1396 (5th Cir.

1996); Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995); NAACP

v. City of Niagara Falls, 65 F.3d 1002, 1020 n.21 (2d Cir. 1995); Nipper

v. Smith, 39 F.3d 1494, 1514 (11th Cir. 1994), cert. denied, 115 S. Ct.

1795 (1995).

With the Voting Rights Act, 92 Colum. L. Rev. 1810, 1835

(1992). President Lyndon Johnson recognized the critical

importance of the vote to minorities when he responded to

the Civil Rights Act of 1964 by stating, "Yes, yes, . . . I want

all of those other things -- buses, restaurants, all of that --

but the right to vote with no ifs, ands, or buts, that's the

key." Merle Miller, Lyndon, An Oral Biography 371 (1980).

The 1982 amendments to the Voting Rights Act

acknowledged that while outright deprivation of the right to

vote was more or less a thing of the past, minority vote

dilution was still a tenacious problem. See, e.g., Armand

Derfner, Vote Dilution and the Voting Rights Act

Amendments of 1982, in Minority Vote Dilution 145, 145

(Chandler Davidson ed., 1984). When it enacted the

amendments, Congress was aware that at-large elections

were seen as the principal impediment to minority

representation. See, e.g., Timothy G. O'Rourke, The 1982

Amendments and the Voting Rights Paradox, in

Controversies in Minority Voting 85, 110 (Bernard Grofman

& Chandler Davidson eds., 1992).

The purpose of Section 2 is to prohibit electoral

arrangements which "dilute" (i.e., diminish) the voting

power of racial minority groups. For example, at-large

electoral systems (which allow every voter to vote for as

many candidates as there are legislative seats to be

filled in an entire jurisdiction) often violate Section 2 by

allowing a cohesive racial majority to elect every single

legislator, thereby leaving racial minorities

unrepresented.

Michael E. Lewyn, When Is Cumulative Voting Preferable to

Single-Member Districting?, 25 N.M. L. Rev. 197, 197 (1995)

(footnotes omitted).

It is against the broad mandate from Congress, that we

eliminate minority vote dilution resulting from at-large

electoral systems, that we must evaluate the case now

before us. Plaintiffs had asked the district court to order

Red Clay to adopt a system of single-member districts, the

traditional remedy in cases of this sort, see, e.g., Lewyn,

supra, at 197, and one which would virtually guarantee

that minorities are represented on the Red Bank school

board. The majority has instead, by affirming the district

court decision, placed its imprimatur on a system which

only by a series of flukes and anomalies has permitted any

minority representation at all. This cannot be the desire of

Congress, and it most certainly is not that of the Supreme

Court. See Thornburg v. Gingles, 478 U.S. 30, 76 (1986)

("Where multimember districting generally works to dilute

the minority vote, it cannot be defended on the ground that

it sporadically and serendipitously benefits minority

voters.").

When we examine the "undeniably substantial success of

minority candidates" upon which the majority relies, we see

that it is neither undeniable nor substantial. The majority

itself acknowledges that Harlan Roberts' 1981 plurality

victory was a never-repeated situation which should be

discounted. This echoes our view in Jenkins I in 1993:

Since no candidate, black or white, has won with a

mere plurality since 1981, and only one black

candidate has run in an election against more than a

single opposing candidate since 1981, the court could

not have concluded on this record that the plurality

scheme had the actual effect of allowing the black

voters of Red Clay to elect their representatives of

choice even though the white voters consistently voted

against the minority-preferred candidates in numbers

sufficient to prevent those candidates from winning a

majority of the overall vote.

Jenkins I, 4 F.3d at 1123.

Carolece Scotton, who was slated with a white, suburban

candidate, beat another black candidate in an election in

which no white candidate chose to run. The election took

place in 1990, the year after this lawsuit was filed. The

Supreme Court has noted that it might be proper for lower

courts to view with some caution the success of black

candidates during the pendency of litigation. Gingles, 478

U.S. at 76. See also Zimmer v. McKeithen, 485 F.2d 1297,

1307 (5th Cir. 1973) ("[S]uch success might be attributable

to political support motivated by different considerations --

namely that election of a black candidate will thwart

successful challenges to electoral schemes on dilution

grounds."); Gingles v. Edmisten, 590 F. Supp. 345, 367

n.27 (E.D.N.C. 1984) ("[I]n some elections the pendency of

this very litigation worked a one-time advantage for black

candidates in the form of unusual organized support by

white leaders concerned to forestall single-member

districting . . ..").

Ronald Greene won against a white candidate in a mid-

term election with exceptionally low voter turnout. Greene

was perceived as being aligned with white suburban

interests, presumably because of his strong opposition to

mandatory school reassignment. On the morning of the

election, a flyer was distributed stating that the white

candidate, Fiske, had withdrawn from the race. Fiske

testified that this had a major impact on the election

because the timing made it impossible for him to respond

that the statement was untrue.

We see that of ten black candidates to run in Red Clay in

the years 1981 to 1991, only three succeeded: one (Roberts)

in a never-repeated plurality win, one (Scotton) by defeating

another black candidate, and one (Greene) in a little-

noticed mid-term election. This hardly exemplifies

substantial or consistent electoral success. On the

contrary, it demonstrates legally significant white bloc

voting. The dismal picture is not improved by adding into

the mix the two white candidates characterized by the

district court as "minority-preferred," and upon which it

relied so much in reaching its ultimate result. The majority

acknowledges that Charles Cavanaugh was, in fact, not

minority-preferred, and the district court "should have

discounted this race as having no impact on minority

electoral success." Maj. op. at 17. As to the other white

candidate, Patricia Reinbold, of the two blacks identified by

her as important in her campaign, only one testified before

the district court. He had this to say in response to a query

as to why he supported Reinbold: "I guess I couldn't stand

Schneck, who was running against her." This is not the

sort of "minority sponsorship" we envisioned when, in

Jenkins I, we gave explicit instructions for determining

whether a white candidate is "truly the minority

community's representative of choice." Jenkins I at 1126.

Our decision today guarantees that minority voting rights

in Red Clay will continue to depend upon happenstance.

This is not what Lyndon Johnson envisioned when he

instructed his attorney general to write the "toughest voting

rights act that you can devise." Howell Raines, My Soul Is

Rested 337 (1977). It is not what Congress envisioned when

it gave the president that law, and then made it even more

effective with the 1982 amendments. And it is not what this

court envisioned when in Jenkins I we emphasized

repeatedly the rarity of a case where "an electoral system

that routinely results in white voters voting as a bloc to

defeat the candidate of choice of a politically cohesive

minority group is not violative of § 2 of the Voting Rights

Act." Jenkins I at 1135.

I believe that the plaintiffs' proof of the three crucial

Gingles factors and other elements that show impeded

access by black citizens to full participation in the Red Clay

School District more than meet the tests necessary to

establish a violation of Section 2 under the totality of the

circumstances. In light of the prolonged history of this case

and its remand in 1993, remand for further findings would

only aggravate an obviously unsatisfactory situation.

Accordingly, I would reverse the district court's judgment

for the defendants and remand the case to it to fashion

forthwith an appropriate remedy.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.