dismissing “influence” claim where minority group was alleged to be large enough “to effectively influence elections, getting their candidate of choice elected”
How later courts described this case
- dismissing “influence” claim where minority group was alleged to be large enough “to effectively influence elections, getting their candidate of choice elected”
- “While plaintiffs are correct that the First Circuit and the Supreme Court have not yet ruled on influence districts, we are bound by precedent in this circuit.”
Written by the judges who cited it.
The opinion
*1109 GWIN, District Judge.
While I concur with the decision to give judgment to the defendants, I do so for different reasons. The majority relies upon an interpretation of Thornburg v. Gingles, 478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986) that requires minorities to constitute a majority of the voting population before bringing a claim under Section 2 of the Voting Rights Act (“the Act”), 42 U.S.C. § 1973 (a). I believe such a holding is both unnecessary to the case before us and also likely wrong. Instead, I believe the plaintiffs’ claims fail because they do not show that the White majority votes sufficiently as a block to enable it to usually defeat the minority-preferred candidate.
Section 2 of the Act addresses electoral procedures that cause minority voters to have “less opportunity than other members of the electorate to participate in the political process.” 42 U.S.C. § 1973 (b). Section 2 prohibits a state from creating districts that dilute the ability of minority group members to elect representatives of their choice. Gingles, 478 U.S. at 46-47 , 106 S.Ct. 2752 . To prevail on a Section 2 claim, the party challenging the redistricting plan must prove that the application of the plan will operate, or has operated, to reduce or cancel the ability of minority voters to elect their preferred candidates. Id. at 48 , 106 S.Ct. 2752 .
In 1982, Congress significantly broadened the ability to seek redress under the Act. The 1982 amendments to Section 2 of the Act responded to the Supreme Court’s decision, Mobile v. Bolden, 446 U.S. 55 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980), a decision that required plaintiffs to show discriminatory intent to prove a vote-dilution claim on either constitutional or statutory grounds. In response to this narrow reading by the Court, Congress amended Section 2 of the Act to overrule the restrictive “intent” test established in Bolden . Congress instead adopted a “results” test. 1 In addition, Congress directed courts to consider nine explicit factors when determining the validity of a Section 2 claim. In setting out factors for Courts to consider, Congress set no requirement as to the percentage of voters minority populations must have before they could challenge an election practice. Instead Congress directed courts to consider “the totality of circumstances.”
An act or procedure violates the Act if it causes a minority group to have “less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.” 42 U.S.C. § 1973 , accord Beth A. Levene, Influence-Dilution Claims Under the Voting Rights Act, 1995 U. Chi. Legal F. 457 , 466. The legislative history of the Act shows that Congress sought to ensure *1110 minority groups’ ability to' meaningfully participate in elections, not just elect candidates of their choice. See S.Rep. No. 97-417, at 29 n. 115 (1982). The Senate Report notes, “the issue to be decided under the results test is whether the political processes are equally open to minority voters.” Id. at 2 . As one commentator notes, influence claims are consistent with the purposes of the Act because “ ‘political effectiveness’ not only includes the power to elect, but also ... the ability to use a group’s voting strength to persuade candidates to address particular issues.” Levene, supra at 468.
In Gingles , the Supreme Court reviewed North Carolina’s at-large státe election scheme. Despite a lack of indication that Congress intended to limit Section 2 claims, the Court identified certain conditions that a plaintiff must establish before proceeding to the more general factors Congress set out in 42 U.S.C. § 1973 (b). As to challenges to at-large districts, the Gingles Court required the challenger show that it: 1) is sufficiently large and geographically compact to make up a majority in a single-member district, 2) that the minority group is politically cohesive, and 3) that White voters have discrimina-torily blocked the minority population from electing their preferred candidate. Gingles, 478 U.S. at 50-51 , 106 S.Ct. 2752 .
While requiring that challengers to at-large districts show a majority in a single member district, the Court disclaimed an intent to deal with single-member district challenges:
We have no occasion to consider ... what standards should pertain to () a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multi-member district impairs its ability to influence elections.
Id. at 46-47 n. 12, 106 S.Ct. 2752 .
After Gingles, the Court has explicitly avoided deciding whether a plaintiff can bring a claim absent a showing that the minority makes up most of the voters in a single-member district. In Growe v. Emison, 507 U.S. 25, 41 , 113 S.Ct. 1075 , 122 L.Ed.2d 388 (1993), the Court used the Gingles factors in deciding a challenge to a single-member district but the Court expressly declined to decide whether plaintiffs could make influence dilution claims absent a minority-majority population. Id. at 41 n. 5, 106 S.Ct. 2752 .
The Court’s decision in Voinovich v. Quilter, 507 U.S. 146 , 113 S.Ct. 1149 , 122 L.Ed.2d 500 (1993), is even more relevant to whether a plaintiff can make an influence claim where the minority population makes up less than a majority of the voting age population. In Voinovich , the minority plaintiffs argued that their Section 2 rights were violated when the reapportioning body failed to construct influence districts, districts where minorities make up less than a majority of the voting age population but where they could join with others to elect preferred candidates. 2 Despite facing the issue of whether plaintiffs from districts with less than a minority-majority population could make claims, the *1111 Supreme Court again declined to reach the issue. Explaining its treatment of the Gingles multimember district requirement that the minority population be sufficient to constitute a majority in a district, the Court held:
Of course, the Gingles factors cannot be applied mechanically and without regard to the nature of the claim. For example, the first Gingles precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, ar-guendo, to be actionable today. Id. at 1155. The complaint in such a case is not that black voters have been deprived of the ability to constitute a majority, but of the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority. See ibid. We need not decide how Gingles’ first factor might apply here, however, because appellees have failed to demonstrate Gingles’ third precondition-sufficient white majority block voting to frustrate the election of the minority group’s candidate of choice.
Id. at 158, 113 S.Ct. 1149 .
The Voinovich Court ruled against the appellees because they had failed to show that Whites voted as a block. If the Voi-novich Court had intended to stop influence claims in districts where minorities do not make up a majority, it could have made that finding on a legal basis. Instead it engaged in a factual review that required it to decide whether, under a clear error analysis, sufficient evidence supported the district court’s finding that White voters did not vote as a block.
In Johnson v. De Grandy, 512 U.S. 997, 1009 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994), the Court again declined to find that plaintiffs could not make influence claims. (“As in the past, we will assume without deciding that even if Hispanics are not an absolute majority of the relevant population in the additional districts, the first Gingles condition has been satisfied in these eases.”)
Beyond its repeated failure to impose the minority-majority condition upon Section 2 claims challenging a single-member district, the Court has emphasized that courts should not quickly apply judicially crafted limitations to Section 2 litigation. In Chisom v. Roemer, 501 U.S. 380 , 111 S.Ct. 2354 , 115 L.Ed.2d 348 (1991), the Court stated a philosophy of affording a hearing to claims without judicially created limitations:
[T]he standard that should be applied in litigation .under Section 2 is not at issue here. Even if serious problems lie ahead in applying the totality of the circumstances described in Section 2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress.
501 U.S. at 416 , 111 S.Ct. 2354 .
The majority finds that plaintiffs fail to meet the first prong of the Gingles test. The plaintiffs argue that the first prong of the Gingles test does not apply because their claims are “influence claims.” The plaintiffs point to First Circuit authority that supports this argument. • See Uno v. City of Holyoke, 72 F.3d 973, 979 (1st Cir.1995). See also Armour v. Ohio 775 F.Supp. 1044, 1052 (N.D.Ohio 1991) (three judge panel) (recognizing validity of influence claim). Also, as described above, the Supreme Court has gone out of its way to avoid applying the first prong of Gingles to stop influence claims.
Lacking any clear Supreme Court holding requiring minority-majority status before a Section 2 claim can be made in a *1112 single-member district, the majority relies upon Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir.1998). In Sundquist , the Sixth Circuit reviewed a Section 2 challenge to Tennessee’s at-large method for electing judges. The Sundquist Court explicitly did not reach a determination whether the plaintiffs needed to show a sufficiently large and geographically compact concentration to constitute a majority in a district:
Since we conclude that the plaintiffs failed to meet the third pre-condition, we need not conduct a detailed inquiry into the first factor, the geographic compactness of blacks in Hamilton County. ..
145 F.3d at 823 . The Sundquist Court then relied upon its finding that there was insufficient evidence showing that Whites voted as a block to defeat minority favored candidates. In declining to rest its decision on the failure to show minorities made up a majority in the challenged district, the Sundquist Court relied upon the Supreme Court’s failure to reach this issue in Voinovich. 145 F.3d at 823 (citing Voinovich v. Quilter, 507 U.S. 146, 158 , 113 S.Ct. 1149 , 122 L.Ed.2d 500 (1993)). See also, Gingles, 478 U.S. at 50 , 106 S.Ct. 2752 .
As with Voinovich , the Sundquist Court then reviewed the trial court’s finding that Whites voted as a block to defeat minority preferred candidates for clear error. 145 F.3d at 823 . The Sundquist Court’s discussion of the first Gingles condition is obvious dicta. If the Sixth Circuit intended to stop influence claims for districts where minorities did not make up a majority of voters, why would it undertake the detailed factual analysis necessary to reverse the district court’s finding that the White majority voted as a block? Stated otherwise, why make the effort if the Sixth Circuit intended to stop influence claims because the minority complainants could not show they made up a majority in the voting district? 3
The majority also relies upon O’Lear v. Miller, as authority against the viability of influence claims. However, O’Lear does not bind this Court. The O’Lear court, like the majority here, misread Sundquist as binding authority. O’Lear v. Miller, 222 F.Supp.2d 850, 860-61 (E.D.Mich.2002). Second, even if O’Lear did not base its *1113 holding on dicta, O’Lear would not control this Court, as another statutory three district judge court rendered the decision. The decisions of statutory three-judge district courts do not bind other statutory three-judge district courts. See, San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1316 (9th Cir.1981); see also, Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir.1970) (“A district court ... convened as a statutory three-judge panel ... still is sitting as a district court for purposes of stare decisis”); see also, P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System, 967-79 (2d ed.1973) (“purpose of a three-judge court .. .was not to add a greater than normal authority or finality to its decision”). For these reasons O’Lear does not control our decision. To the extent it is offered as persuasive authority, it fails to offer a reasoned explanation why claims under Section 2 should be limited to districts where minorities make up a majority of voters.
If required to decide, by the facts presented herein, I would find strong support for allowing influence claims. Most important, nothing suggests that Congress intended to limit Section 2 claims to ones involving districts where minorities were a majority of voters. -The Supreme Court has also suggested that a minority influence claim may be sufficient to sustain a Section 2 results claim. In Chisom v. Roemer, 501 U.S. 380 , 111 S.Ct. 2354 , 115 L.Ed.2d 348 (1991), the Court stated that to establish a Section 2 claim, the plaintiffs must show both that they have less opportunity to participate in the political process and that they have less opportunity to elect representatives of their choice. Justice Sealia dissented, arguing that this reading of Section 2 would leave “minorities who form such a small part of the electorate in a particular jurisdiction that they could on no conceivable basis ‘elect representatives of their choice’ ” entirely without Section 2 protection. Id. at 409 , 111 S.Ct. 2354 . He further reasoned that such minorities could therefore be denied equal opportunity to participate in the political process with impunity. Id. The majority responded to Justice Scalia’s dissent by pointing out that his argument “rested on the erroneous assumption that a small group of voters can never influence the outcome of an election.” Id. at 397 n. 24, 111 S.Ct. 2354 . Thus, the Court suggested that influence claims can be valid under Section 2 of the Act.
The majority gives judgment to the defendants after finding African-American voters are not able to show that they could constitute a majority in any proposed district. As explained above, I am not convinced that plaintiffs are required to make such a showing. Yet more important for our present circumstances, we need not reach this issue because the plaintiffs have failed “to demonstrate that the White majority votes sufficiently- as a bloc to enable it ... to defeat the minority’s preferred candidate.” Thornburg v. Gingles, 478 U.S. at 50 , 106 S.Ct. 2752 .
In support of their argument that White majority voters do not vote as a block to defeat the minority’s preferred candidate, the defendants first point to Ohio election returns in recent years. During the period 1992 — 2000, African-American candidates won seventy-four of eighty-four races. Of the races lost, one involved an African-American running as an independent and most of the other results involved an African-American Democrat running in a Republican leaning district.
In Ohio, African-Americans make up 11.46% of the population. Although having less than 12% of the population, African-Americans held 14% of the Ohio House seats and 12% of the Ohio Senate seats after the 2000 election. African-Americans candidates won these seats with *1114 significant White crossover votes. Since 1991, African-Americans have held four Senate seats, only one of which has a minority-majority African-American voting age population. African-American candidates won three Ohio Senate Seats with African-American voting age population of 27.21%, 89.04%, and 32.28% respectively. African-Americans won these seats with significant White crossover votes.
In the 2000 election, fourteen African-American candidates won election to the Ohio House, usually with significant White support. Of the fourteen African-Americans elected in 2000, only four were from minority-majority African-American districts. Five of these candidates won election to the Ohio House from districts with less than 40% African-American voting age population. After correcting for methodology errors, the defendants’ expert, Dr. King 4 , found that the candidate of choice of the African American community won in twenty-seven of thirty-four races. While such success alone does not establish that Whites do not vote as a block, it is certainly relevant. 5 Gingles, 478 U.S. at 99 , 106 S.Ct. 2752 (“[T]he relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution”).
The defendants provided persuasive statistical evidence showing that Ohio has little racially polarized voting in relevant elections, which is important to our consideration whether the plaintiffs established that Whites vote as a block, thereby denying minorities opportunity to meaningfully participate.
Dr. King gave persuasive testimony suggesting that Ohio has little significant racially polarized voting in Ohio General Assembly elections. 6 After correcting for errors, Dr. King reviewed Ohio elections over the 1990 — 2000 time frame. He first sought to set up a control group. To control for differing party loyalties between African-Americans and Whites, King compared elections where an African-American Democrat candidate faced a White Republican candidate. He then contrasted the results of these elections with races where a White Democrat faced a White Republican. King then compared the degree of different voting between African-Americans and Whites to see what influence the race of the candidate had in the vote. King described the results after reviewing 123 elections from across Ohio:
So what we can look at here is the degree of racially polarized voting overall, but then given different treatments, that is given different sets of candidates, so let’s start with a white Democrat versus a white Republican. When a white Democrat runs against a white *1115 Republiean, the degree of racially polarized voting is about 31.7 percent. Very interestingly, when the Democrats decide instead to nominate an African-American, that number stays almost exactly the same. The number beneath it is 31.8 percent. That’s fairly remarkable. In fact it’s quite remarkable, and it’s a tribute to the people of Ohio, essentially, that a different type of candidate is nominated and people are responding in very similar ways.
In fact you can look at the individual black and white behavior to dissect this a little further. What happens when a white Democrat runs against a white Republican among black voters? About 79 percent of them give their support to the Democratic candidate. What happens when the Democrats decide to run blacks? More blacks vote for the black Democrat. It goes from 79.4 to 84.4. That’s very interesting, but it’s not surprising. But what is very interesting is that whites are doing the same thing. Whites give 47.7 percent to the white Democrats when it’s a white Democrat running, and their support for the Democratic candidate also increases when the Democrats run a black; it increases to 52.6 percent. The result overall is that the degree of racially polarized voting, the difference between the first and second column, doesn’t really change.
Section 2 applies when Whites and racial minorities consistently prefer different candidates at the polls. Section 2 prohibits a state from drawing district lines that take advantage of these differing preferences to give White preferred candidates a majority in a disproportionate share of districts and prevent minority voters from electing candidates of their choice. Plaintiffs must show that the local majority votes as a block. Evidence regarding the success of the minority’s preferred candidates speaks to whether such majority block voting occurs. See Gingles, 478 U.S. at 51 , 106 S.Ct. 2752 (“It is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability ‘to elect.’ ”)
Here, the persuasive evidence before the Court shows that Ohio’s majority White voters do not vote in a block. Having failed to show significant differences in the preferences of White and minority voters, the plaintiffs do not establish the core consideration necessary to succeed with their Section 2 claimthat the defendants used a significant racial voting disparity to apportion districts to defeat minority participation. Failing such a showing, we must give judgment to the defendants.
. As amended, 42 USC § 1973 (a)-(b) (1988) reads:
(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 ... as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of 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.
. The Court described the claim:
Appellees in this case, however, do not allege that Ohio’s creation of majority-black districts prevented black voters from constituting a majority in additional districts. Instead, they claim that Ohio's plan deprived them of “influence districts” in which they would have constituted an influential minority. Black voters in such influence districts, of course, could not dictate electoral outcomes independently. But they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters.
507 U.S. at 154, 113 S.Ct. 1149 .
. Some question exists whether the Sixth Circuit's opinion in Sundquist would control us in any regard. Does the Sixth Circuit’s opinion constitute stare decisis on a statutory three-judge district court? Congress directs that voting rights claims be heard by a statutory three-judge district court, see 28 U.S.C. § 2284 , with appeal directly to the Supreme Court, thereby bi-passing the Circuit Court of Appeals. See id. The doctrine of stare decisis in practice, commands that lower courts follow the precedent of courts who review their decisions. If our decision is reviewable only by the Supreme Court, logic suggests that we are not bound by circuit authority. While such authority may persuade, only Supreme Court holdings would seem to have controlling authority.
At least one statutory three-judge district court agrees. See Jehovah’s Witnesses in Washington v. King County Hosp., 278 F.Supp. 488, 502-3 (W.D.Wash.1967)("In this special three-judge court case we are not bound by any judicial decisions other than those of the United States Supreme Court.”). In contrast, a majority of three-judge district courts and circuit courts disagree. See Baksalary v. Smith, 579 F.Supp. 218, 227 (E.D.Penn. Feb. 1, 1984); Finch v. Mississippi State Medical Ass’n., Inc., 585 F.2d 765, 773 (5th Cir.1978); Lewis v. Rockefeller, 431 F.2d 368 , 371 (2d Cir.1970); Russell v. Hathaway, 423 F.Supp. 833, 835 (N.D.Tex.Dec.10, 1976); Hopson v. Schilling, 418 F.Supp. 1223 , 1234-35 n. 15 (N.D.Ind. July 15, 1976); Athanson v. Grasso, 411 F.Supp. 1153, 1157 (D.Conn.1976), Alabama NAACP State Conference of Branches v. Wallace, 269 F.Supp. 346, 350 (M.D.Ala. May 3, 1967). However, these three judge district courts follow circuit precedent without clear explanation of why such precedent should control courts who are not reviewed by those circuits.
. Dr. King, a Professor of Government at Harvard University and Director of the Harvard Data Center, is trained in both political science and statistics. King specializes in statistical analysis of social issues including the quantitative review of voting trends to decide whether racially polarized voting is present. He has published extensively and is credited with developing methods and application of .quantitative methods to redistricting.
. Professor King developed a regression analysis improving on the long-utilized "Goodman’s Regression.” Goodman's regression often gives incorrect results. Dr. King’s analysis starts with Goodman’s regression and improves it by correcting for information known to be true. Dr. King’s analysis has received high praise and peer acceptance and use.
.Racially polarized voting or racial block voting is the difference between the percent of Blacks voting for a candidate and the percent of Whites voting for that candidate.