# Appendix — Nipper v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1366%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1083 ## Text ES es We ee Z9FILED y 941463 MAR 2 1995 OFEGE GE THE @LaRiS. No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1994 JESSE L. NIPPER, et al., Petitioners, v. JIM SMITH, SECRETARY OF STATE, et al., Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BARBARA R. ARNWINE ROBERT B. McDUFF THOMAS J. HENDERSON 771 North Congress Street BRENDA WRIGHT* Jackson, MS 39202 SAMUEL L. WALTERS (601) 969-0802 TODD A. COX Lawyers’ Committee for MITCHELL F. DOLIN Civil Rights Under Law Covington & Burling 1450 G Street, N.W. 1201 Penn. Ave., N.W. Suite 400 Washington, D.C. 20044 Washington, D.C. 20005 (202) 662-6000 (202) 662-8600 *Counsel of Record Attorneys for Petitioners INDEX APPENDIX A Court of Appeals en banc opinion December 2,1994 ’ APPENDIX B Court of Appeals panel opinion, September 15,1993 APPENDIX C District Court opinion, PI Ti Bi cine inscieceschcsececsease ceca. APPENDIX D Statutory Provision COCO OTOH eee EEE EeEeees CPPCC O SEs er Oe ereseseceeeeesoS Page la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 92-2588 Jesse L. NIPPER; Donald A. Carter; Annie Ruth Williams; Selendra Williams; Katrina Miles; Desi Wayne Dunlap; Carol D. Days; Anthony Days, and D.W. Perkins Bar Association, Plaintiffs-Appellants, Vv. Jim SMITH; Dot Joyce, Director of the Florida Division of Elections; Tommie R. Bell, Supervisor of Elections in Duval County; and Lawton Chiles, Governor, Defendants-Appellees. OPINION December 2, 1994, Decided Appeal from the United States District Court for the Middle District of Florida. (No. 90-447-CIV-J-16). John H. Moore, I, Chief Judge. 2a COUNSEL: ATTORNEY(S) FOR APPELLANT(S): Brenda Wright, Esquire, Washington, DC, Robert B. McDuff, Esquire, Jackson, MS, Denise M. Prescod, Es- quire, Jacksonville, FL. Mitchell F. Dolin, Esquire, Covington & Burling, Washington, D.C. Sherrilyn A. Ifill, New York, N.Y. ATTORNEY(S) FOR APPELLEE(S): George L. Waass, Department of Legal Affairs, Talla- hassee, FL, Harry F. Chiles, -do-, Denis Dean, -do-, Frank E. Brown, Asst.Atty. Gen., Tampa, FL, Leonard S. Magid, Jacksonville, FL, Mitchell D. Franks, Lakeland, FL. ATTORNEY(S) FOR AMICUS BRIEFS, For USA: Rebecca K. Troth, DOJ, Civil Rights Division, Appellate Section, Washington, D.C., Devel Patrick, -do-, Howard C. Coker, COKER, MYERS, SCHICKEL, COOPER & SORENSON, The Florida Bar, Tallahassee FL, (For Amicus Fla. Bar Trial Lawyers Section). JUDGES: Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH > and DUBINA, Circuit Judges. * OPINION BY: TJOFLAT OPINION: TJOFLAT, Chief Judge: Section 2(a) of the Voting Rights Act, 42 U.S.C. § 1973 (1988), states that “no voting qualification or prerequi- site to voting, or standard, practice, or procedure shall * Judges Black, Carnes and Barkett recused themselves and did not participate in the consideration or decision of this case. LS ee 3a be imposed or applied by any State or political subdivi- sion in a manner which results in a denial or abridge- ment of the right of any citizen of the United States to vote on account of race or color.” Under section 2(b) of the Act, “[{a] violation of [section 2(a)] 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 ... are not equally open to participa- tion by members of a class of citizens protected by [section 2(a)] 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.” Section 2 applies to state judicial elections. Chisom v. Roemer, 501 U.S. 380, 404, 111 S. Ct. 2354, 2368, 115 L. Ed. 2d 348 (1991); Houston Lawyers’ Ass’n v. Attorney Gen., 501 U.S. 419, 423-24, 111 S. Ct. 2376, 2379, 115 L. Ed.2d 379 (1991). In this case, the appellants, black voters and an associ- ation of black attorneys, challenge the system used to elect the judges of Florida’s Fourth Judicial Circuit Court, which encompasses Duval, Clay, and Nassau counties, and the judges of the Duval County Court. The appellants contend that the use of at-large elections in those trial court jurisdictions dilutes the voting strength of the black minority in violation of section 2; they seek a remedy, such as the creation of subdistricts, that will ensure their ability to elect black judges of their choice. The appellees contend that the appellants are entitled to no relief. First, the appellants and the black voters they represent have suffered no racial vote dilution. Second, assuming that vote dilution exists, the relief the appel- lants seek would so alter the structure of the Fourth Judicial Circuit and Duval County courts as to under- mine the ability of those courts to administer justice. Following a five-day bench trial, the United States District Court for the Middle District of Florida dismissed 4a the appellants’ case. The court did so on two grounds: (1) the appellants failed to establish an essential element of a vote dilution case—racially polarized voting in tne relevant communities—as required by Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25(1986); and (2) the appellees’ rebuttal evidence demonstrated that, under “the totality of the circum- stances,” racial discrimination was not playing a role in the judicial elections under challenge. The district court’s finding of no section 2 liability made it unneces- sary for the court to consider the matter of remedy. On appeal, a panel of this court concluded that the evidence before the district court demonstrated racially polarized voting in the Fourth Judicial Circuit and Duval County as a matter of law, and thus a section 2 viola- tion. Without considering, as required by Houston Lawyers’ Ass’n, 501 U.S. at 426, 111 S. Ct. at 2380-81, the appellees’ argument that the relief the appellants sought would undermine the administration of justice in those jurisdictions, the panel remanded the case to the district court for the imposition of a remedy. Nipper v. Smith, 1 F.3d 1171, 1184 (11th Cir.1993). The case is now before us on rehearing en banc. Nipper v. Smith, 17 F.3d 1352 (11th Cir.1994). To determine whether the district court erred in hold- ing that the appellants failed to establish a case of vote dilution, we must address a question the Supreme Court has not decided and our divided en banc court in Solo- mon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (en banc) (per curiam), cert. denied, 498 U.S. 1023, 111 S. Ct. 670, 112 L. Ed. 2d 663 (1991), has precluded us from answering: whether section 2 plaintiffs, in order to establish that the challenged electoral scheme is diluting their right to vote “on account of [their] race or color,” must demonstrate that their diminished opportunity to participate in the political process and to elect represen- tatives of their choice is being caused by the interaction ttt Meee Nidal elites 5a of racial bias in the voting community and the chal- lenged scheme. Without an answer to this question, we cannot determine what evidence is relevant, and the weight it should be accorded, in the totality of the circumstances inquiry of section 2(b). Specifically, we cannot determine the weight to be accorded the state policies underlying the challenged judicial electoral scheme. Houston Lawyers’ Ass’n, 501 U.S. at 426,111 S. Ct. at 2380-81. Nor can we determine, given those poli- cies and the structure of the courts involved, whether the remedy sought is feasible. In part I of this opinion, we set forth the facts and procedural history of the case. In part II, we address the question left unanswered in Solomon: whether the exist- ence of racial bias in the voting community necessarily forms the basis of a section 2 violation. We hold that the totality of the circumstances must demonstrate that the voting community is driven by racial bias and that the electoral scheme in question permits that bias to dilute the plaintiff minority’s voting strength. In part I, after noting several important differences between judicial and legislative elections, we discuss the factors, includ- ing the policies advanced by Florida’s method of select- ing its trial court judges, involved in the totality of the circumstances analysis in judicial election cases. In parts IV and V, we apply the principles set forth in parts I and III to the case at hand. In part IV, we examine the district court’s finding of no vote dilution and conclude, as did the panel, that the appellants established a case of ditution. In part V, we consider the matter of remedy. We find that the type of relief the appellants seek would undermine the administration of justice in the trial courts at issue; we therefore affirm the district court’s denial of section 2 relief. s Voting rights cases are inherently fact-intensive, par- ticularly those section 2 vote dilution claims alleging 6a that, due to the operation of a challenged voting scheme, minority voters are denied an equal opportunity to participate in the political process and to elect repre- sentatives of their choice. In such cases, courts must conduct a “searching practical evaluation of the ‘past and present reality’ ” of the electoral system’s operation. Gingles, 478 U.S. at 45, 106 S. Ct. at 2764 (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.«.N. 177, 208). Accordingly, because a claim of vote dilution must be evaluated with a func- tional, rather than a formalistic, view of the political process, the Supreme Court has emphasized the impor- tance of “ ‘an intensely local appraisal of the design and impact’ ” of the electoral structure, practice, or proce- dure at issue. Jd. at 79, 106 S. Ct. at 2781 (quoting Rogers v. Lodge, 458 U.S. 613, 621, 102 S. Ct. 3272, 3278, 73 L. Ed. 2d1012 (1982)). Given the necessity of a nuanced understanding of the election system in evaluating a claim of racial vote dilution, we set out the factual background of this case in some detail.! ' A more extensive summary of the district court’s factual findings can be found in that court’s opinion. See Nipper v. Chiles, 795 F. Supp. 1525, 1532-39 (M.D.Fla.1992). The following discussion includes additional material not discussed by the district court of which we take judicial notice. Under Rule 201 of the Federal Rules of Evidence, “[a] judicially noticed fact must be one not subject to reasonable dis- pute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Moreover, it is recognized that: Appellate courts have a special need to resort to facts not found in the record.When the question before the court is not merely the rights of the parties, but the interests of others who may be affected by the rule the court makes to govern the case, it would be foolish for the court to rely only on the evidence the parties have chosen to prove below. 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5102, at 462 (1977). Accordingly, we have attempted to develop a more complete picture of judicial elections in the Fourth Circuit and Duval County than that presented to the dis- trict court. 7a A, Florida’s judiciary employs two tiers of trial courts. The circuit courts have general jurisdiction over civil and criminal cases while the jurisdiction of the county courts is restricted to certain statutorily defined classes of misdemeanor and small claims cases.? Fla. Const. art. 5, §§ 5-6 (WestSupp.1994); Fla.Stat.Ann. §§ 26.012, 34.01 (West 1988 & Supp.1994). Florida currently has twenty circuit courts (designated by number); they range from single-county circuits (in highly populated areas like Miami or Tampa) to circuits comprised of as many as six or seven counties (many of which are rural). See Fla.Stat.Ann. § 26.021 (West 1988). Each circuit judge has jurisdiction or authority within the entire circuit; similarly, the jurisdiction of each judge of the county court extends throughout the county. Although the cir- cuit and county courts have multiple members, like most trial courts they do not operate as collegial bodies; rath- er, the judges exercise independent judicial authority, engaging in coordinated decision making only for the handling of some administrative matters. Circuit judges serve six-year terms and county judges serve four-year terms, Fla. Const. art. 5, § 10; in all other respects, the office of judge on the two benches is virtually identical. The judges of the circuit and county courts are elected at-large in nonpartisan circuitwide and countywide elections, respectively; they must reside within the territory of the court on which they serve. The at-large judicial elections for both courts are charac- terized by a majority vote requirement,*? a numbered ? Florida also has two levels of appellate courts: the district courts of appeal (intermediate appellate courts) and a supreme court. Fla. Const. art. 5, §§ 3-4 (West Supp.1994). Only the selection of trial court judges is challenged in this case, however. ® To be elected to office, a judicial candidate must receive a majori- ty of the votes cast. All candidates for a particular seat first compete in nonpartisan primaries; if no candidate receives an outright majori- 8a place system (meaning that candidates must run for a particular seat on the court), and the use of staggered terms. In order to qualify to run for a judgeship, a candi- date must pay a filing fee (although a candidate can avoid the fee by obtaining a number of signatures from registered voters on a petition), see Fila.Stat.Ann. §§ 105.031(3) & .035 (West 1992), and must have been a member in good standing of The Florida Bar for at least five years immediately preceding the election in ques- tion, see Fla.Const. art. 5, § 8. In the event of a mid-term vacancy on either court, the governor appoints a re- placement to serve until the next general election. /d. § 11. In the instant case, the appellants challenge the elec- toral system for both trial courts in and around Jackson- ville, Florida.’ The Fourth Judicial Circuit is located in northeast Florida and consists of Duval, Clay, and Nassau Counties. Duval County encompasses the City of Jacksonville; the county and city governments were consolidated in 1968. According to the 1990 census, the total population of the Fourth Circuit is 822,928; the black population is 173,937, or approximately twenty- one percent of the total. At the time of trial in 1991, the ty, a runoff election is held between the two candidates who received the most votes in the primary. * A numbered place requirement forces candidates for multimember offices (like the courts at issue here) to run for a particular seat, rather than for any existing vacancy. Each seat is given a designated place on the ballot (group 1, 2, 3, and so forth) so that all of the candidates are not competing against one another. The effect of a numbered place system is therefore to break what would otherwise be a single contest into several mini-elections. See Pamela S.Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.C.R.-C.L.L.Rev. 173, 186 (1989). 5 The appellees in this case are the Governor of Florida and the relevant state and county election officials. —se ee ee ee ee ee ae ee ee ee ae ee a Tre 9a Fourth Circuit had twenty-eight circuit judges, only one of whom was black.® The total population of Duval County (as of the 1990 census) is 672,971, of which 163,902, or approximately twenty-four percent, are black. Two of the twelve judges on the Duval County Court at the time of trial were black judges.’ Although the voting age populations of the Fourth Circuit and Duvai County are nineteen and twenty-two percent black, respectively, no black candidate for a judgeship on either court has ever been elected to office in a contested election. Every black judge who has served on one of these courts originally reached office by way of a mid-term appointment to a vacant seat. Although forming a powerful initial sketch of the role played by race in the relevant judicial elections, this bare description of circuit and county court election results paints only part of the total picture. To place the elections at issue in this litigation into their proper context, we first detail the historical evolution of the Florida scheme of judicial elections. We then describe the operation of the current model since its adoption in 1972 and examine the special circumstances and relative infrequency with which black candidates have sought judgeships on the Fourth Circuit and the Duval County Court. * The only black judge ever to have served on the Fourth Circuit bench at the time of trial was Judge Henry Adams, who testified in this case for the appellants. After the trial was completed but before the district court rendered its decision, a second black judge, Henry E. Davis, was appointed to the court.According to the district court, however, “the Davis appointment has played no part in the Court’s consideration of this case.” Nipper, 795 F. Supp. at 1536 n.10. In late 1993, after the district court issued its opinion, Judge Adams left the circuit court and joined the federal bench as a judge of the United States District Court for the Middle District of Florida. 7 The two black judges on the Duval County Court are Judges Alfred Washington and James Ruth. Both originally were appointed by the governor to fill vacancies, and both remain on the bench today. 10a B. Article 5 of the Florida Constitution, which governs the judicial branch of the state government, has evolved over the last twenty-five years, thereby changing the method of selecting state court judges dramatically.* For much of this century, judicial positions in Florida were filled through partisan elections. Florida voters adopted a revised constitution in 1968, but the new version temporarily retained the old system of partisan judicial elections. In 1971, the Florida legislature adopted its first nonpartisan electoral system for the state judiciary. The statute, the contemporary counterpart of which is now codified as Fla.Stat.Ann. § 105.011(2) (West 1992), pro- vided essentially that ”[a] judicial office is a nonpartisan office, and a candidate for election or retention thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.” ® At that time, the process of selecting judges became fundamentally differ- ent from the methods used to choose other elected state officials. Article 5 was significantly amended in 1972, although the revised version continued to provide that all judges * For scholarly treatment of the history of judicial elections in Flori- da, see Madison B. McClellan, Note, Merit Appointment Versus Popu- lar Election: A Reformer’s Guide to Judicial Selection Methods in Florida, 43 Fla.L.Rev. 529(1991); Joseph W. Little, An Overview of the Historical Development of the Judicial Article of the Florida Constitution, 19 Stetson L.Rev. 1 (1989). The district court was ap- prised of much of this material because the appellees introduced into evidence a report on this subject from Dr. William Rogers, an histori- an at Florida State University. * See also Fla.Stat.Ann. § 105.041(3) (West 1992) (“No reference to political party affiliation shall appear on any ballot with respect to any nonpartisan judicial office or candidate.”); Jd. § 105.071 (listing limitations on partisan political activities by candidates for judicial office); Id. § 105.09(1) (“No political party or partisan political organi- zation shall endorse, support, or assist any candidate in a campaign for election to judicial office.”). lla would be elected “by vote of the qualified electors within the territorial jurisdiction of their respective courts.” When a vacancy occurred on any court of the state, however, the governor would make an interim appointment until a permanent replacement for the remainder of the predecessor judge’s term could be elected. Although the ultimate decision regarding such an interim appointment was entrusted to the discretion of the governor, the appointee nonetheless had to be selected from a slate of not fewer than three candidates submitted to the governor by a judicial nominating commission.‘ One commission was created for each court in the state to accept applications from interested eligible attorneys when vacancies arise and to make recommendations thereon. The nominating commission system was designed to inaugurate a merit selection process for members of the state judiciary through the submission of qualified nominees to the governor. The system of judicial elections currently in place was created by a further amendment to Article 5 that was adopted by the citizens of Florida at the general election in November of 1976. At that time, Florida adopted the “Missouri Plan” '' for the selection of supreme court justices and the judges of the district courts of appeal, the intermediate appellate courts of the Florida judici- ary. Initial selection of those justices and judges was transferred away from the electorate to the nominating commissions and to the governor. The new selection Earlier this year, the legislature amended Fla.Stat.Ann. § 26.021 (which, in part, defines the number of judges on the various circuit courts) to provide that “the judicial nominating commission of each circuit, in submitting nominations for any vacancy in a judgeship, and the Governor, in filling any vacanc, for a judgeship, shall consider whether the existing judges within the circuit, together with potential nominees or appointees, reflect ... the racial and ethnic diversity of the population within the circuit, and the geographic distribution of the racial and ethnic minority population within the circuit.” 1994 Fla.Sess.Law Serv. ch. 94-137, § 1. 12a process empowers the governor to fill any vacancy (not just an unexpired term) on the supreme court or the district courts of appeal, the only condition being that the selection must be made from a slate of “three per- sons nominated by the appropriate judicial nominating commission. “Fla. Const. art. 5, § 11(a). These initial appointments are for partial terms of not less than one year, id., at the end of which each justice or judge “may qualify for retention [and a full six-year term] by a vote of the electors.” Id. § 10(a). The justices and judges of Florida’s appellate courts then stand for retention at the end of every term. The retention elections, however, do not involve challenges to the incumbent by another competitor for office; rather, each candidate for reten- tion under this approach runs against his or her estab- lished record of performance. The 1976 constitutional amendments, however, did not alter the method of selecting circuit and county court judges. Therefore, under the present system, which constitutes a partial “Missouri Plan,” judges of the circuit and county courts continue to be elected (in nonpartisan elections) to six- and four-year terms, respectively, by vote of the qualified electors in their jurisdictions. Jd. § 10(b). When a mid-term vacancy occurs, the governor appoints a replacement from a slate provided by the appropriate nominating commission, with a single commission handling nominations for vacancies on a circuit court as well as the county courts in that circuit’s territory. Jd. § 11. As a result, subsequent elections, even at the trial court levels, are affected by the merit 11 Missouri adopted its Nonpartisan Court Plan, which provided for merit-based selection of state court judges, in 1940; Missouri’s plan has since been emulated for some courts in at least thirty states. For a more detailed discussion of the operation of Missouri’s system, see Richard A. Watson, Observations on the Missouri Nonpartisan Court Plan, 40 Sw.L.J. 1 (1986). 13a selection of interim appointments by the governor upon the recommendation of the judicial nominating commis- sions; the momentum gained from initial selection by such an independent review panel has a telling effect upon later races in which the incumbent is a candidate. Under the current system of electing trial court judges in Florida, therefore, merit selection plays a part in all but a few: those to fill vacancies on the circuit or county court benches that occur at the end of a term—when, for example, a judge retires and two challengers compete to fill his or her seat. These changes in Florida’s constitution were clearly designed to eliminate the vices of partisan, electoral politics from the process of selecting state court judges. The goal of merit selection of judges, naturally, is to insulate them from popular pressure and to make them more willing to decide an unpopular case fairly and impartially while, at the same time, raising the level of qualifications of judicial officers. C. A total of five black candidates have run for seats on either the Fourth Circuit or the Duval County Court in six elections since 1972. We now highlight the circum- stances surrounding each of those electoral races while describing the methods by which the judges on those courts have generally reached office during the same period. The first of the elections relied on by the parties in litigating this case predates the inauguration of Florida’s partial merit selection system for trial court judges. In 1972, Leander Shaw became the first black candidate for a judgeship on a court at issue in this litigation. A black lawyer who now serves as a justice of the Florida Supreme Court, Shaw ran for a vacant seat on the Fourth Circuit bench. In the nonpartisan primary, he was opposed by two white candidates, John S. Cox and 14a George L. Proctor. Shaw and Cox advanced to a runoff election, which Cox ultimately won. The Shaw election was one of only four Fourth Circuit electoral races that were contested during the 1972 election cycle; the other fifteen Fourth Circuit judgeships at stake in that year’s elections were filled by candidates who ran unopposed. The parties in this case introduced a wealth of statisti- cal evidence that indicates how Florida’s scheme of trial court elections has operated in the Jacksonville area under the current model. A pattern readily emerges that has prevailed throughout the period at issue in this case: relatively few judicial elections have been contested in the Fourth Circuit and in Duval County.’ Between January 1, 1973, when the current system for selecting circuit and county court judges went into effect, and the end of 1990, the last year for which information was available at the time of trial, the record reflects that seventy-eight circuit judgeships were filled by election." Of those positions, only ten (or approximately thirteen percent) were contested; the rest were filled by candi- 12 Recognizing how often elections for judicial officers are not con- tested in Florida generally, the legislature has provided that “the name of an unopposed candidate for the office of circuit judge or county court judge shall not appear on any ballot, and such candidate shall be deemed to have voted for himself at the general election.” Fla.Stat.Ann. § 105.051(1Xa) (West 1992). 8 The record does not reflect how many of these races involved an incumbent seeking reelection. Obviously, that information would be important in fleshing out the operation of the judicial election system in the Fourth Circuit and in Duval County. 15a dates who ran unopposed.'* Only one black candidate ran for a seat on the Fourth Circuit bench during this period: Harrell T. Buggs in 1978. In the primary, Buggs and two white candidates challenged an incumbent white judge, Lawrence D. Fay, who had been appointed to the court through the merit selection process approx- imately one hundred days before the election. Fay and one of the white challengers, John E. Palmer, advanced to the runoff; Buggs, who had obtained over eighty percent of the black vote but only approximately four percent of the white vote, was eliminated in the pri- mary. Focusing solely on the elections described above, however, paints an incomplete picture of how judges come to the circuit court bench in the Fourth Circuit. According to the Duval County Clerk’s Office, a total of fifty-four judges have served on the Fourth Circuit since 1972. Fourteen were hold overs from the pre-reform system (six of whom were appointed by the governor before the merit selection process was instituted and eight of whom were elected). With respect to the re- mainder, twenty-eight circuit court judges began their judgeships after being appointed through the commission 14 The following information on the number of contested races for Fourth Circuit judgeships was provided to the district court by Dr. Ronald Weber, an expert witness for the appellees. Year # of Seats Up # Contested % Contested 1974 3 1 25.0% 1976 2 1 50.0% 1978 17 2 11.8% 1980 5 l 20.0% 1982 3 l 33.3% 1984 16 2 12.5% 1986 7 0 0.0% 1988 9 1 11.1% 1990 15 1 6.7% — i) 12.8% Total 78 16a system although only twelve originally were elected in nonpartisan elections.'® Furthermore, although it is true that no black candidates have been elected to judicial office in the Fourth Circuit, two black judges have been appointed under the nominating commission system (Judges Adams and Davis, see supra note 6). The increasing reliance on the appointment process for selecting trial court judges is highlighted by an examina- tion of the composition of the current Fourth Circuit Court. Of the twenty-eight judges presently sitting on the court, nineteen were appointed through the commis- sion process, eight initially were elected in nonpartisan elections, and one was appointed by the governor in 1967 under the old system.'* Moreover, at the time of trial, only one of the judges then serving on the Fourth Circuit bench had ever been opposed for reelection (Judge Fay by Harrell Buggs in 1978), although the twenty-eight judges collectively had stood for reelection over twenty times. 16 The method for filling some of these forty positions, however, was dictated by the fact that they corresponded to newly-created judgeships. According to the Duval County Clerk’s Office, whether a new seat on the bench is filled by election or appointment depends upon the effective date set by the legislature. If the seat is created in an election year and the effective date is after the election, the seat is filled by election. If, on the other hand, the position is not created in an election year, or if it is created in an election year but with an effective date before the election, the seat is filled through the nominating commission and appointment process. 16 The district court did make factual findings concerning the routes by which the twenty-eight judges on the circuit court at the time of trial in 1991 came to the bench: seventeen originally were appointed while eleven initially were elected to office; of those eleven, five ran unopposed. Nipper, 795 F.Supp. at 1538 & n. 14. Therefore, only six of the twenty-eight circuit judges serving at the time of trial had earned their place on the bench in a contested election. 17a A similar pattern emerges from an examination of the county court selection process. From 1973 to 1990, fifty- six judgeships on the Duval County Court were decided by election; only twelve (or approximately twenty-one percent) of those electoral races were contested.'? Black candidates participated in primaries for three of those elections and were defeated each time. As the district court noted, however, special circumstances surrounded two of these three races. Alfred Washington, a black candidate, lost his primary race for a seat on the Duval County Court in 1978 to Giles P. Lewis, despite garnering eighty-eight percent of the black vote. Prior to the elec- tion, however, Washington had resided in the communi- ty for only a short period of time whereas Lewis was a longtime resident with an established legal practice. In 1984, two black candidates sought positions on the county court bench. Denise Prescod was defeated in her primary by incumbent, Edward P. Westberry, even though she garnered a similar proportion of the black vote. Judge Westberry was not a lawyer, but he was permitted to serve on the court under a grandfather clause in the 1972 constitutional revision that allowed former justices of the peace to become county court 17 Dr. Weber’s report provides the following information concerning contested elections for the Duval County Court: Year # of Seats Up # Contested % Contested 1974 5 2 40.0% 1976 7 l 14.3% 1978 6 2 33.3% 1980 6 0 0.0% 1982 6 0 0.0% 1984 “ 4 50.0% 1986 6 l 16.7% 1988 7 l 14.3% 1990 5 1 20.0% Total: 56 12 21.4% 18a judges. He had, by all accounts, received consistently poor ratings from the local bar but was acknowledged to be a vigorous and extremely effective campaigner. Judge Westberry also had been a judicial officer since 1966, thus claiming the mantle of experience. Prescod, a lawyer, received several important endorsements, in- cluding those from Jacksonville’s only daily newspaper and the public school teachers’ organization. At the time she ran for judicial office, however, Prescod had been admitted to The Florida Bar for only two years. Under the current five-year experience requirements, Prescod would not have been eligible to run for county court judge in 1984. The district court concluded that “neither candidate’s qualifications ... were particularly helpful -to their respective campaigns, and in all probability incum- bency ultimately proved to be the deciding factor.” Nipper, 795 F. Supp. at 1542 n. 18. In the remaining county court election involving a black candidate and the only one in which the black candidate did not chal- lenge an incumbent, Dietra Micks won three-quarters of the black vote but failed to make the runoff for her position against a field of three white candidates. Again, this time in the county court context, looking solely at elections tells only part of the story. Since 1972, a total of thirty judges have served on the Duval County Court. Ten initially were appointed by the governor under the commission nominating process while twelve originally obtained their positions by winning nonparti- san elections. Nine other county court judges were holdovers from the prior (pre-1972) system. As for the twelve county court judges serving at the time of trial, five were originally appointed to the bench, including both of the black judges. As the district court concluded, the evidence of black electoral success in the jurisdictions at issue in this case is mixed at best. The court found: 19a The black circuit and county judges who have faced reelection have been unopposed and, of course, successful in their reelection bids. In a similar judi- cial election, Joseph Hatchett’s 1976 Supreme Court reelection, the incumbent Hatchett defeated a white candidate. Hatchett garnered a majority of the white vote in both the Fourth Judicial Circuit and Duval County. No black candidate has won a contested election for circuit or county judge at least since 1972. Id. at 1537.'* In addition, a review of non-judicial elec- tions in the Jacksonville area reveals a dearth of black electoral success: “No black candidate has won a con- tested circuit wide '® or county wide election for any office since 1979,” and only one city council member and three members of the civil service board in Jacksonville appear to have done so prior to that time. Jd. Black candidates fared better in the Fourth Circuit appointment process. Henry Coxe, the chairman of the Fourth Circuit Judicial Nominating Committee from 1987 to 1991, testified at trial concerning minority participa- tion in the appointment process during his tenure on the committee. Based on that testimony, the district court found: 18 Justice Hatchett, now a member of this court, was a United States magistrate in 1975 when Governor Rubin Askew appointed him to be the first black supreme court justice in Florida history. His 1976 reelection campaign, one of Florida’s most highly publicized judicial elections, occurred during the few years in which the partial merit selection system applied to supreme court justices. Despite a chal- lenge by Circuit Judge Harvey Duval, a white candidate from Dade County, Justice Hatchett won reelection by garnering a majority of the white vote in both the Fourth Circuit as a whole and Duval County in particular. 1* There are no non-judicial circuit wide offices in the Fourth Cir- cuit. The court was apparently referring to a compilation of the re- sults from the Fourth Circuit counties for statewide elections. 20a Statistics provided by the [Fourth Circuit Judicial Nominating] Commission indicate that from 1987 to 1991, the Commission accepted applications for eleven circuit and county court vacancies. Of the total number of applicants, approximately eleven percent were black attorneys. An almost identical percentage of blacks were among the total number of nominees sent by the Commission to the Gover- nor. Nine percent of the total appointments made by the Governor during this period were black (specifi- cally, the county judge appointment in the summer of 1991). Id. at 1538. Moreover, the court emphasized, “in judicial elections, incumbency and name recognition are the primary fac- tors behind electoral success.” Jd. Several witnesses testified to this effect. Indeed, only one of the twenty- eight incumbent circuit judges serving at the time of trial had ever faced electoral opposition subsequent to his or her initial appointment or election; none of the twelve incumbent county judges had ever been opposed in a reelection bid. Judge Adams agreed that incumbency is an important factor in determining the outcome of judi- cial elections and testified revealingly that “I don’t think that a black could win a county-wide judicial election without the benefit of incumbency.” By all accounts, the electoral benefits of incumbency accrue equally to black and white judges as none of the black judges on either the Fourth Circuit or Duval County Court benches has ever been opposed for reelection. D. The complaint in this case was filed in the United States District Court for the Middle District of Florida on July 5, 1990. The plaintiffs (the appellants here) chal- lenged the method of electing judges for the Fourth Circuit and the Duval County Court under section 2 of 2la the Voting Rights Act as well as under the Fourteenth and Fifteenth Amendments of the Constitution; they alleged that those election systems unlawfully diluted the electoral strength of black voters. Trial originally was scheduled for March 1991, but the district court stayed the proceedings pending the out- come of cases before the United States Supreme Court concerning the applicability of section 2 to judicial elec- tions. After the Court confirmed that section 2 applies to the election of state court judges, see Chisom v. Roemer, 501 U.S. 380, 404, 111 S. Ct. 2354, 2368, 115 L. Ed. 2d348 (1991); Houston Lawyers’ Ass’n v. Attorney Gen., 501 U.S. at 419, 423-24, 111 S. Ct. 2376, 2379, 115 L. Ed. 2d 379 (1991), the trial of this case was reset and com- menced on December 12, 1991. To resolve the issue of whether voting in circuit and county judicial elections was racially polarized, both sides offered expert testimony and statistical evidence. The appellants relied on the testimony of Dr. Allan Lichtman, Professor of History at American University in Washington, D.C. The appellees offered two expert witnesses: Dr. Ronald Weber, Professor of Government at the University of Wisconsin, and Dr. Joan Haworth, former Professor of Economics at Florida State Universi- ty and currently the president of a private consulting company. Although the ultimate conclusion reached by the two sides was different, the experts agreed on most of the foundational data. Indeed, all of these experts used the same or similar statistical techniques to analyze the election results at issue.2° The experts divided sharp- ly, however, over which types of elections should be analyzed in order to determine whether voting in Fourth Circuit and Duval County judicial elections has been, and continues to be, racially polarized. 2° All of the experts used ecological regression and extreme case analysis to study the voting behavior in the circuit and county judicial elections. As the district court explained: ee 22a The appellants’ expert, Dr. Lichtman, studied the six circuit and county judicial elections in which black candidates have competed against white candidates since 1972.2! He also analyzed numerous elections for offices not at issue in this litigation (referred to as “exogenous” elections) that involved black candidates, placing particular emphasis on Justice Hatchett’s 1976 Florida Supreme Court reelection bid.2? Almost all of the Ecological regression analysis permits estimation of the voting behavior of racial groups through comparison of the racial composition of the population at each precinct to the division of the vote among competing candidates at each precinct. The regression analysis uses data from all of the precincts participat- ing in an election, and produces estimates of the voting behavior of both whites and blacks. Nipper, 795 F. Supp. at 1533. The experts in this case used substan- tially the same techniques that were approved (and relied on) by the Supreme Court in Gingles. 21 To summarize, between 1972 and 1990, there were six contested elections for circuit and county judgeships in which black candidates participated. These elections involve only five seats because the first two were the primary and general elections for the same position. The elections and black candidates were: (1) 1972 Primary, Circuit Court, Leander Shaw; (2) 1972 Runoff, Circuit Court, Leander Shaw; (3) 1978 Primary, Circuit Court, Harrell Buggs; (4) 1978 Primary, Duval County Court, Alfred Washington; (5) 1984 Primary, Duval County Court, Denise Prescod; and (6) 1984 Primary, Duval County Court, Dietra Micks. 22 The only exogenous election to which the district court attached significance in its opinion was the 1976 Florida Supreme Court elec- tion involving Justice Hatchett—a statewide race involving one black and one white candidate. The district court adopted Dr. Lichtman’s regression results as findings of fact on this point; those results demonstrate that a majority of white voters in the circuit generally, and in Duval County in particular, supported Justice Hatchett’s ree- lection, along with virtually all blacks voting. The court rejected Dr. Lichtman’s attempts to tie this race to the other exogenous elections, however, suggesting that “equating Hatchett’s non-partisan,lower profile, judicial election with Rev. [Jesse] Jackson’s partisan, high profile, presidential election for the purpose of showing racial polari- 23a other exogenous elections studied by Dr. Lichtman were of a partisan nature (including Jesse Jackson’s presiden- tial primary campaigns in 1984 and 1988 and Alcee Hastings’ various bids for statewide office). Based on his review of these elections, Dr. Lichtman concluded that voting in the Fourth Circuit and in Duval County is ra- cially polarized in judicial elections: Black voters prefer black candidates by over whelming margins, but those candidates are not elected because they do not receive sufficient crossover votes from the white electorate. According to the ecological regression studies, a large majority of black voters strongly supported the black candidate in each of the six circuit and county judicial elections. At the same time, the majority of white voters supported the white candidate, thereby resulting in the defeat of all of the black candidates except for Leander Shaw in the 1972 primary. Shaw, however, went on to lose in the general election. In these six elections, black support for the black candidates ranged from seventy- three to ninety-eight percent, while white support for those same black candidates varied from three to thirty- three percent. Black voter support for the white candi- dates never exceeded twenty-seven percent while white support for the white candidates ranged from sixty-seven to ninety-seven percent. The district court adopted Dr. Lichtman’s statistical estimates concerning these six elections as findings of fact.2° Nipper, 795 F. Supp. at 1534 n. 4. zation in circuit and county judicial elections is misleading.” Nipper, 795 F. Supp. at 1535 n. 8. Although it made findings of fact concern- ing the results of various other elections, the district court “accorded little weight to these non-judicial, exogenous elections.” Jd. at 1535. 28 Dr. Lichtman’s ecological regression analysis revealed the follow- ing degrees of racial polarization in the Fourth Circuit and Duval County. It should be noted that one of the appellees’ experts, Dr. 24a The principal expert witness for the defense, Dr. Weber, also reviewed the six circuit and county court campaigns in which black candidates participated. Dr. Weber also examined a set of elections that Dr. Licht- man had not.** Declining to confine his analysis of Fourth Circuit and Duval County judicial elections to those races in which a black candidate had competed, Haworth, produced estimates for these elections that were nearly identical to Dr. Lichtman’s, even though she used a slightly different methodology. % of Black % of Black % of White % of White Voters Voting Voters Voting Voters Voting Voters Voting for Black for White for Black for White Cand. Cand.(s) Cand. Cand.(s) Fo Circui 1972 Primary Leander Shaw Circuit 92 8 24 76 Duval Co 93 7 23 77 1972 Runoff Leander Shaw Circuit 97 3 33 67 Duval Co. 98 2 32 68 1978 Primary Harrell Buggs Circuit 82 18 3 97 Duval Co. 81 19 4 96 Duval Co. Court 1978 Primary Group 6 A. Washington 88 12 13 87 1984 Primary Group 4 Denise Prescod 73 27 31 69 1984 Primary Group 8 Dietra Micks 76 24 4 96 *%* Dr. Haworth’s role for the defense was to reexamine Dr. Licht- man’s data, so she examined the same exogenous elections as Licht- man (albeit using as lightly different methodology) and reached a different conclusion. Dr. Haworth contended that any racial polariza- tion in these elections was not significant, and that, indeed, strong support by black voters for black candidates corresponded to higher levels of white crossover votes. 25a Dr. Weber instead examined all of the judicial elections in the relevant jurisdictions between i972 and 1990, even those in which only white candidates participated. In further refining his study sample, Dr. Weber “argued that only those non-judicial elections for low-visibility offices similar to judgeships would be of importance in a judicial elections case.” Id. at 1533. Accordingly, he criticized Dr. Lichtman’s reliance on high-profile elec- tions for statewide or national office. Dr. Weber con- cluded that the candidate of choice of black voters wins elections in the Fourth Circuit and Duval County be- cause of the high degree of black cohesion and sufficient white crossover voting—but he admitted on cross-exami- nation that his conclusion should be qualified as follows: “These data show very clearly that black candidates of choice are regularly elected in both jurisdictions and white voters do not usually vote as a bloc to deny black voters the opportunity to elect candidates of choice to these judicial posts—so long as these candidates are white and not black.” * There were a total of nineteen contested elections for circuit judge between 1972 and 1990, of which sixteen involved only white candidates. Dr. Weber’s analyses, which the district court “adopted as findings of fact for statistical purposes only,” id. at 1534, revealed that the candidate of choice of black voters won thirteen, or sixty-eight percent, of these contested elections. During this same time period, there were twenty-four contested Duval County Court elections, three of which involved black candidates. Dr. Weber’s study revealed that the candidate of choice of black voters won fourteen, or fifty-eight percent, of those elections. A somewhat dif- ferent picture emerges, however, when “split prefer- ence” statistics are examined. Looking at both circuit 26 "Black candidate of choice” is a term of art referring to a candi- date who is preferred by the majority of black voters, without refer- ence to the candidate’s race. 26a and county court races, Dr. Lichtman testified that the candidate preferred by black voters differed from the candidate preferred by white voters in nineteen of the thirty-seven contested judicial elections that involved only white candidates. In those “split preference” elec- tions, the black voters’ preferred candidate lost eighty- four percent of the time. At trial, the appellants also introduced non-statistical evidence of Florida’s history of discrimination against black citizens, including its legacy of disfranchisement and segregation in most areas of life.2° In particular, Florida employed various franchise restrictions— from the poll tax to the white primary—for decades in an attempt to restrict the access of black voters to the ballot. Those classic discriminatory devices have been eliminated, however, and the consensus at trial was that there is currently little disparity in voter registration in the Fourth Circuit and in Duval County by race. Blacks of voting age are registered at higher rates than whites of voting age in both the Fourth Circuit and Duval County. Despite the removal of overt badges of segregation, the district court nonetheless found that “black citizens .in Florida still suffer in some ways from the effects of Florida’s history of purposeful discrimination,” particu- larly in terms of socio-economic disparities, such as family income and high school graduation rates. Id. at 1536. Black citizens in the region covered by the Fourth Circuit have lower median incomes than whites and are 2° Transportation facilities in Florida were segregated until the 1950s, and many area school systems still have not achieved unitary status. Moreover, until 1958, Florida refused to permit black students to attend the University of Florida College of Law. Florida A & M Law School was created in 1951 for black students but was not accredited until several years later. When the state opened another law school in Tallahassee in 1967 at Florida State University, it closed the law school at Florida A & M. 27a more likely to be unemployed and to fall below the poverty line. In addition, the limited evidence presented at trial (reflected in a consensus among the experts) suggested that, although little disparity exists in voter registration, black voter turnout appears to be slightly lower than white turnout. And the “rolloff” ef- fect—which measures the number of voters who sign in at the polls but fail to cast a vote for a particular elec- tion on the ballot—is greater among black voters than white voters. ; The appellants also introduced into evidence a report issued in 1990 by the Florida Supreme Court Racial and Ethnic Bias Study Commission 2? that, according to the district court, “documented numerous features of Flori- da’s justice system that allegedly have an adverse effect on the dispensation of justice to minority citizens, includ- ing the under representation of minorities in the judici- ary in comparison to the percentage of minorities in the total population.” Jd. at 1535. The Study Commission concluded: Clearly, the current election process, which provides for circuit-wide, at-large elections, is not yielding sufficient representation of minorities on Florida’s bench. At the same time, the dramatic under repre- sentation of minority judges reflected in the ... sta- tistics compels the conclusion that the appointive system, as currently structured and implemented, has itself failed to achieve racial and ethnic diversi- ty. The Commission strongly believes that serious measures need to be considered for implementa- tion—in both systems—which are aimed at producing a more racially and ethnically sensitive judiciary. 27 Judge Adams served on the Study Commission and described its composition and conclusions at trial. The Commission was appointed by the Florida Supreme Court and contained a cross-section of judges, lawyers, and lay citizens from various parts of the state. 28a To that end, the Study Commission recommended that the state legislature study the feasibility of utilizing subdistricts for judicial elections as a means of redressing prior discrimination and increasing minority representa- tion on the bench.”* The appellants established that the low number of minority judges on the trial courts cited by the Study Commission affects the perception, if not the reality, of the system’s fairness; all of the witnesses acknowledged, however, that the judges of the Fourth Circuit and the Duval County Court are fair and impar- tial in their administration of justice without regard to race. E. The record in this case therefore reveals a somewhat conflicted picture of the judicial selection process in the Fourth Circuit and Duval County. On the one hand, all of the black candidates for judicial office in those jurisdic- tions have been defeated by their white opponents. Several of the elections involving black candidates also involved other special circumstances, such as incumben- cy, that cloud the issue of whether race was the factor most responsible for the outcome. On the other hand, black judges have been appointed to the bench under the merit selection nominating commission system rough- ly in proportion to the number of minority applicants; 2* The Study Commission highlighted its view of the need. for heightened representation of minorities on the state’s courts in a subsequent report issued in 1991: [T]he under representation of minorities as attorneys and judges serves to perpetuate a system which is, through institutional policies or individual practices, unfair and insensitive to individu- als of color.... [B]y threatening the withdrawal of the tacit “consent of the governed,” the under representation of minorities in positions of responsibility in the judicial system weakens the very system of ordered liberty upon which our democracy is based. 29a once in office, moreover, those black judges have en- joyed the same benefits of incumbency as their white counterparts (including standing unopposed for reelec- tion). The influence of the merit appointment system has been significant: Since its institution in 1972, more judges initially have reached the bench by appointment than by election. Based upon this evidence, the district court issued an order containing findings of fact and conclusions of law on June 2, 1992. In that order, the court rejected all of the appellants’ statutory and constitutional claims and denied relief. Jd. at 1548. The court first ruled against the appellants on the critical issue of racially polarized voting, concluding that the statistical evidence, viewed in light of the special circumstances surrounding the judicial elections in question, failed to demonstrate sufficient racial bloc voting such that the white majority usually defeats the minority’s preferred candidate.?° Id. at 1543. The court then concluded alternatively that: {E]ven if Plaintiffs had made a sufficient showing of racial polarization, Defendants have offered over- whelming proof of objective factors in rebuttal that demonstrate, under the totality of the circum- stances, that the social conditions in the Fourth Judicial Circuit and Duval County are such that their interactions with the electoral scheme do not, and will not, result in voting discrimination in the judi- cial elections under challenge. Id. at 1548. Judgment was entered for the appellees that same day. 2° According to the district court, “this finding alone required a ruling in favor of the [appellants].... In the interests of providing a comprehensive opinion [, however,] the court [considered the appel- lees’] proof of other objective factors in rebuttal that indicate, under the totality of the circumstances, that the voting community is not driven by racial bias.” Nipper, 795 F. Supp. at 1543 (citation omitted). 30a In this appeal, the appellants challenge only the dis- trict court’s denial of their section 2 claim; this court is not asked to review the court’s rulings on the constitu- tional issues. In an opinion issued on September 15, 1993, a panel of this court reversed, and remanded the case to the district court for the imposition “forthwith [of] an appropriate remedy.” Nipper v. Smith, 1 F.3d 1171 (11th Cir.1993). Much of the panel’s opinion was devoted to evaluating the evidence before the district court on the issue of racially polarized voting. According to the panel opinion, the district court had discounted the appellant’s statistical evidence (which the district court had acknowledged would ordinarily be sufficient to establish racially polarized voting) for three reasons: because “(1) the judicial elections involving black candi- dates were stale; (2) black voters occasionally elected candidates of choice in elections involving only white candidates; and (3) two of the black-white elections involved incumbents.” Jd. at 1178-79. The panel “reject- ed as clear error each of the district court’s reasons for concluding that appellants failed to show racial polariza- tion” and held that “the evidence in the entire record demonstrates racially polarized voting in the Fourth Judicial Circuit and Duval County.” Jd. at 1181-82. In the panel’s view, the district court also “erred in ruling that appellees discharged their burden of proving that the voting communities were not driven by racial bias”; specifically, the appellees had not shown “an absence of racially biased voting in the Fourth Judicial Circuit and Duval County.” *° Jd. at 1184. Subsequently, we vacated the panel opinion and granted rehearing en banc. Nipper v. Smith, 17 F.3d 1352 (11th Cir. 1994). 9° As we discuss infra part V, after finding vote dilution in violation of section 2, a court, before imposing a remedy, should consider the state’s argument that the remedy the plaintiffs propose is not feasible because, if implemented, it would undermine the administration of cE een Sane eee eee ee eee 3la i. Section 2 of the Voting Rights Act, adopted in 1965 and amended in 1982, outlaws election practices that result in racial discrimination.*! Of particular concern are electoral structures, such as at-large elections in areas with white majorities, that produce racial vote dilution because “the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.” 82 Allen v. State Bd. of Elections, 393 justice in the challenged court. Houston Lawyers’ Ass’n, 501 U.S. at 426, 111 S. Ct. at 2380-81. The appellees made such an argument in urging the panel to affirm the district court’s denial of relief, but the panel, did not address the argument in its opinion. 81 Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1988), pro- vides: (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.... (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the politi- cal 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 gee Bay 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. 32 This conclusion is not, however, universally accepted. See, ¢.g., Holder v. Hall, U.S. , , 114S. Ct. 2581, 2603, 129 L. Ed. 2d 687 (1994) (Thomas, J., concurring) (“Properly understood, the terms ‘standard, practice, or procedure’ in § 2(a) refer only to practices that affect minority citizens’ access to the ballot. Districting systems and electoral mechanisms that may affect the ‘weight’ given to a ballot duly cast and counted are simply beyond the purview of the Act.”). 32a U.S. 544, 569, 89 S. Ct. 817, 833, 22 L. Ed. 2d 1 (1969) (emphasis added). Since racial and ethnic groups tend, at times, to be geographically compartmentalized in our society, a districting plan drawn without regard to the physical distribution of such groups may nevertheless operate to distort their relative voting strengths, as well as to provide the opportunity for subtle discrimination through the manipulation of electoral structures. Vote dilution cases involve allegations that the location of district lines or the use of other electoral practices, such as at-large voting, may “ ‘interact with social and histor- ical conditions,’ [thereby] impairing the ability of a protected class to elect its candidate of choice on an equal basis with other voters.” Voinovich v. Quilter, U.S. , , 1183S. Ct. 1149, 1155, 122 L. Ed. 2d 500 (1993) (quoting Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L. Ed.2d 25 (1986)). Cases alleging a dis- tortion of group voting power of this type have been termed “qualitative” (as opposed to quantitative)** reapportionment cases because they focus “not on population-based apportionment but on the quality of representation.” Whitcomb v. Chavis, 403 U.S. 124, 142, 91S. Ct. 1858, 1868, 29 L. Ed. 2d 363 (1971)... To prevail on a claim of vote dilution under section 2, plaintiffs generally must meet certain threshold re- quirements that the Supreme Court first identified in Gingles. Specifically, plaintiffs in vote dilution cases must establish as a threshold matter: (1) that the minori- 33 A case alleging violation of the one person, one vote standard, see, €.g., Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), based solely on a mathematical analysis of population inequalities among voting districts, is generally termed a “quantita- tive” reapportionment case. The issue in such a case is whether population deviations from the average district are impermissibly large. The Supreme Court has held, however, that one person, one vote requirements do not apply to judicial elections. See Wells v. Edwards, 409 U.S. 1095, 93 S. Ct. 904, 34 L. Ed. 2d 679 (1973). 33a ty group is “sufficiently large and geographically com- pact to constitute a majority in a single-member district”; (2) that the minority group is “politically cohesive”; and (3) that sufficient racial bloc voting exists such that the white majority usually defeats the minority’s preferred candidate. Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766- 67; Growe v. Emison, U.S. , , 113 S. Ct. 1075, 1084, 122 L. Ed. 2d 388 (1993) (quoting Gingles). The second and third of these threshold preconditions, or factors, relate to the question of whether the challenged elector- al scheme is abridging the right of the plaintiff minority group “to vote on account of race or color.” The first precondition, or factor, asks whether the court can fash- ion a remedy for a demonstrated abridgement.*4 In addition to the second and third preconditions, the Gingles Court identified other factors that may, in “the totality of the circumstances, “support a claim of racial vote dilution. Derived from the Senate Report accompa- nying the 1982 amendment to section 2, those factors include: *% The Supreme Court developed the three-part Gingles threshold test in a case challenging North Carolina’s multimember legislative district scheme. The remedy the plaintiffs sought in that case was the creation of single-member districts in which the minority voters they represented would constitute a sufficient majority to elect represen- tatives of their choice. The first Gingles threshold factor addressed this remedy and asked, at the outset of the case,whether such dis- tricts could be drawn. If not, the case would have ended. As we discuss in further detail, infra part 01.B.1., the first Gingles threshold factor is properly read, in light of Holder, U.S. , 1145S. Ct. 2581, to stand for the broader proposition that a district court must determine whether it can identify an alternative electoral scheme against which to measure the existing voting practice. Outside of the multimember legislative district context, this benchmark scheme may or may not involve the use of single-member districts, depending on the facts of the case. In this case, we do not limit the remedy aspect of the vote dilution inquiry to whether single-member districts can be drawn, see infra part V. 34a 1. the extent of any history of official discrimina- tion 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 subdi- vision has used unusually large election districts, majority vote requirements, anti-single shot provi- sions, 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 charac- terized by overt or subtle racial appeals; [and] 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. Gingles, 478 U.S. at 37, 106 S. Ct. at 2759 (quoting S.Rep. No. 417, at 28-29, reprinted in 1982 U.S.C.C.A.N. at 177, 206-07). Additional factors that may be probative of vote dilution in some cases are: [8.] whether there is a significant lack of respon- siveness on the part of elected officials to the par- ticularized needs of the members of the minority group; [and] [9.] whether the policy underlying the state or political subdivision’s use of such voting qualifica- 35a tion, prerequisite to voting, or standard, practice or procedure is tenuous. Id., at 37, 106 S. Ct. at 2759.95 The Gingles Court emphasized that “this list of typical factors is neither comprehensive nor exclusive,” id. at 45, 106 S. Ct. at 2763, although evidence of the third precondition, racially polarized voting, is “the linchpin of a § 2 vote dilution claim,” Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 499 (5th Cir.1987), cert. denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed.2d 564 (1989), and thus forms the basis of the Gingles threshold inquiry on the issue of liability (as opposed to remedy). Regardless of the particular factors that the plaintiff in a vote dilution case is able to demonstrate, however, the essence of a section 2 claim is that certain electoral characteristics, in conjunction with “social and historical conditions,” operate to eviscerate the ability of minority voters to elect their candidates of choice. Gingles, 478 U.S. at 47, 106 S. Ct. at 2764; see also Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547, 1555 (11th Cir.1987), cert. denied, 485 U.S. 936, 108S. Ct. 1111, 99 L. Ed. 2d 272 (1988). In 1990, this court divided on the issue of whether voting rights plaintiffs can establish a section 2 violation merely by satisfying the second and third Gingles threshold factors or whether the ultimate inquiry is always under the totality of the circumstances, such that Ct. 1083, 47 L. Ed. 2d 296 (1976). See S.Rep. No. 417, at 28 n. 113, reprinted in 1982 U.S.C.C.A.N. at 177, 206 n. 113. This development process is detailed in Solomon v. Liberty County, 899 F.2d 1012, 1021 (11th Cir.1990) (en banc) (Tjoflat, C.J., Specially concurring), cert. denied, 498 U.S. 1023, 111 S. Ct. 670, 112 L. Ed. 2d 663 (1991). 36a the defendants have the opportunity to rebut the plain- tiffs’ showing of vote dilution—and thereby avoid liabili- ty—by demonstrating a lack of racial bias in the voting community.** See Solomon v. Liberty County, 899 F.2d 1012, 1017 (11th Cir.1990) (en banc) (per curiam) (divi- sion detailed in the concurring opinions of Kravitch, J., and Tjoflat, C.J.), cert. denied, 498 U.S. 1023, 111 S. Ct. 670, 112 L. Ed. 2d 663 (1991). The Supreme Court’s recent decision in Johnson v. De Grandy, US. , 114 S.Ct. 2647, 129 L. Ed. 2d 775 (1994), has essentially resolved this issue as the following discussion indicates. A. Proof of the three core factors emphasized in Gingles is necessary, Gingles, 478 U.S. at 50, 106 S. Ct. at 2766, but not always sufficient, to establish a claim for relief under section 2. Rather, plaintiffs in such cases also must show that, under the totality of the circumstances, “they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters.” League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 849 (5th Cir. 1993) (en banc) (“LULAC”), cert. de- nied, U.S. , 114S. Ct. 878, 127 L. Ed. 2d 74 (1994). In Gingles, the Court stated that, “as both amended § 2 and its legislative history make clear ... the trial court is 36 The division has been noted in several recent opinions of this court. See, eg., Hall v. Holder, 955 F.2d 1563, 1568 n. 9 (11th Cir.1992) (“Although the Gingles factors may have been established in a particular case, the continuing role of the parties and of the court is unclear.”), rev’d, U.S. ,114S. Ct. 2581, 129 L. Ed. 2d 687 (1994); Meek v. Metropolitan Dade County, 908 F.2d 1540, 1544 (llth Cir.1990) (“The en banc court divided on the question of whether proof of the [second and third] Gingles factors was sufficient and whether a defendant could raise as a defense the lack of racial bias in the community.”), cert. denied, 499 U.S. 907, 111 S. Ct. 1108, 11% L.Ed. 2d 217 (1991). 37a to consider the totality of the circumstances and to determine, based upon a searching practical evaluation of the past and present reality, whether the political process is equally open to minority voters.” 87 Gingles, 478 U.S. at 79, 106 S. Ct. at 2781 (internal quotation marks and citation omitted). The Gingles threshold factors (specifically, the second and third) constitute “essentially a ‘gloss’ on the Senate factors and a limita- tion on the interpretation of those factors in proving a vote dilution claim.” Stallings, 829 F.2d at 1555; accord Collins v. City of Norfolk, 816 F.2d 932, 935 (4th Cir. 1987). Thus, the Gingles Court did not decree that a plaintiff who proves the three preconditions invariably will win; instead, it merely held that the three factors are prerequisites to a successful claim.** See Gingles, 478 U.S. at 48 n. 15, 106 S. Ct. at 2765 n.15. The Supreme Court’s recent decision in De Grandy, U.S. , 114 S. Ct.2647, resolved any doubt as to the threshold nature of the Gingles factors. In De Grandy, a case involving a challenge to Florida’s legislative reap- portionment plan, the Court definitively characterized the “Gingles factors (compactness/numerousness, minori- ty cohesion or bloc voting, and majority bloc voting) as “necessary preconditions,’ for establishing vote dilu- tion.” 8° Jd. at , 114 S. Ct. at 2657 (citation omitted). The 87 In Hall, a panel of this court recognized that “the Gingles majori- ty did not ... limit the manner in which the [second and third] factors may be proven [and that] the totality of the circumstances surround- ing a § 2 claim may properly be considered when determining wheth- er plaintiffs have established the [those two] Gingles preconditions.” ** Significantly, the Gingles Court itself discussed the broader totali- ty of the circumstances after it had noted the plaintiffs’ success in proving the three threshold factors. See Gingles, 478 U.S. at 80, 106 S. Ct. at 2781. 8° In two other cases decided after Gingles, the Supreme Court reit- erated that the Gingles core factors are threshold conditions. See Growe, U.S. at , 1135S. Ct. at 1083; Voinovich, U.S.at ,113S. Ct. at 1157. 38a Court went on to say, however, that “the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts.” Id. at , 114 S. Ct. at 2657. Thus, under De Gran- dy, reviewing courts are required—not just invited—to look beyond the Gingles threshold factors when evaluat- ing vote dilution claims.*° As the Court stressed, “[lJack of electoral success is evidence of vote dilution, but courts must also examine other evidence in the totality of circumstances, including the extent of the opportuni- ties minority voters enjoy to participate in the political processes.” Jd. at , 114 S. Ct. at 2657. In De Grandy, the Court assumed that the Gingles preconditions had been satisfied, but nevertheless concluded that section 2 relief should not be granted because, notwithstanding the presence of continued discrimination and racial bloc voting, minority voters were able to form effective voting majorities in a number of legislative districts that were roughly proportional to their respective shares in the voting age population.*! See id. at , 1145. Ct. at 2663. # The same point had been suggested in several of the Court’s prior cases. In Chisom, for example, the Court held that the 1982 amend- ment to section 2 “make[s] clear that an application of the results test requires an inquiry into “the totality of the circumstances.’ ” Chisom v. Roemer, 501 U.S. 380, 393, 111 S. Ct. 2354, 2363, 115 L. Ed. 2d 348 (1991) (emphasis added). Similarly, the Court echoed in Houston Lawyers’ Ass’n that “an analysis of the totality of the cir- cumstances ... must be considered in an application of the results test embodied in § 2, as amended.” Houston Lawyers’ Ass’n v. Attorney Gen., 501 U.S. 419, 426, 111 S. Ct. 2376, 2381, 115 L. Ed. 2d 379 (1991) (emphasis added). *! De Grandy therefore discusses a new element—proportionality— to be weighed in the totality of the circumstances. As the Court ex- plained, “one may suspect vote dilution from political famine, but one 39a As an initial matter, therefore, proof of the Gingles threshold factors is a necessary precondition to section 2 relief; such a showing, however, will not guarantee relief. A defendant in a vote dilution case may always attempt to rebut the plaintiff’s claim by introducing evidence of objective, non-racial factors under the totali- ty of the circumstances standard.*2 Indeed, if the Court meant to deny the defendant an oppor- tunity to rebut the plaintiff’s case after the plaintiff has offered evidence of the three factors, then the three factors would be both necessary and always sufficient to win under section 2.... The Court’s adherence to the totality-of-the-circumstances test must mean that the defendant can rebut the plain- is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast.” De Grandy, U.S.at ,114S. Ct. at 2660. Nevertheless, “while proportionality in the sense used here is obviously an indication that minority voters have an equal opportuni- ty, in spite of racial polarization, “to participate in the political proc- ess and to elect representatives of their choice,’ 42 U.S.C. § 1973(b), the degree of probative value assigned to proportionality may vary with other facts.” Jd. at , 114 S. Ct. at 2661. *? This is precisely what the Supreme Court permitted the defend- ants to do in De Grandy. In that case, “the District Court found that the three Gingles preconditions were Satisfied, and that Hispanics had suffered historically from official discrimination, the social, economic, and political effects of which they generally continued to feel.” De Grandy, U.S. at , 114 S. Ct. at 2656. The Court concluded that, even with all three Gingles conditions Satisfied, the circumstances in totali- ty would not support a finding of vote dilution where Hispanics could be expected to elect their preferred candidates in proportion to their percentage of the area’s population. Jd. at , 114 S.Ct. at 2663. In that context, the District Court was not critical enough in asking whether a history of persistent discrimination reflected in the larger society and its bloc-voting behavior portended any dilutive effect from a newly proposed districting scheme, whose pertinent features were majority-minority districts in substantial proportion to the minority’s share of voting-age population.” Jd. at , 1145S. Ct. at 2658. ™ SS eS ee Ie eee 40a tiff’s claim—even after the plaintiff has offered proof of the three Gingles factors. Solomon, 899 F.2d at 1035 (Tjoflat, C.J., specially con- curring). Because the ultimate inquiry is under the total- ity of the circumstances, courts must consider not only evidence of the Gingles threshold factors but also any other evidence offered by the parties that is relevant to the statutory test. It may well be true, as the Third Circuit has suggested, that “it will be only the very unusual case in which the plaintiffs can establish the ... Gingles [threshold] factors but still have failed to estab- lish a violation of § 2 under the totality of the circum- stances.” Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (8d Cir.1993). Nevertheless, the Supreme Court cautions: To be sure, some § 2 plaintiffs may have easy cases, but although lack of equal electoral opportunity may be readily imagined and unsurprising when demon- strated under circumstances that include the ... essential Gingles factors, that conclusion must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judg- ment. De Grandy, U.S. at , 114S. Ct. at 2657. It is, therefore, under the totality of the circumstances that courts must decide, in the final analysis, whether a violation of sec- tion 2 has been established. B. Given that courts evaluating section 2 claims must look beyond the Gingles threshold factors, we must determine what constitutes a violation of the statute’s “results” test under the totality of the circumstances. As the Supreme Court has stated, section 2 “make[s] clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent [in 4la the adoption or maintenance of those practices and procedures] protects them from constitutional challenge” under the Fourteenth and Fifteenth Amendments. Chisom v. Roemer, 501 U.S. 380, 383-84, 111 S. Ct. 2354, 2358, 115 L. Ed. 2d 348 (1991). The concern thus be- comes what proof is required to Satisfy the results test, as well as what form of intent inquiry is forbidden thereunder.** We hold that section 2 prohibits those voting systems that have the effect of allowing a community motivated ** Initially, it bears noting that the Supreme Court itself was divided in Gingles on this point. In a concurring opinion joined by three other justices, Justice O’Connor wrote: Evidence that a candidate preferred by the minority group in a particular election was rejected by white voters for reasons other than those which made that candidate the preferred choice of the minority group would seem clearly relevant in answering the question whether bloc voting by white voters will consistently defeat minority candidates.... ... The overall vote dilution inquiry neither requires nor permits an arbitrary rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Such a rule would give no effect whatever to the Senate Report’s repeated emphasis on “intensive racial politics,” on “racial political considerations,” and on whether “racial poli- tics ... dominate the electoral process” as one aspect of the “racial bloc voting” that Congress deemed relevant to showing a § 2 violation. Gingles, 478 U.S. at 100-01, 106 S. Ct. at 2792 (O’Connor, J., concur- ring). Justice White wrote separately, suggesting that he would find it significant if partisan affiliation—and therefore not race—were shown to be the consideration driving the election results. Id. at 83, 106 S. Ct. at 2783 (White, J., concurring). Justice Brennan, the author of the majority opinion, took the contrary position: “Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting and defendants may not rebut that case with evidence of causation or intent.” Jd. at 74, 106 S. Ct. at 2778. Only three other justices joined the portion of Justice Brennan’s opinion discussing this issue, however. e's; Pee ee - —_ — a oe a ee ea se ee 42a by racial bias to exclude a minority group from participa- tion in the political process. Therefore, if the evidence shows, under the totality of the circumstances, that the community is not motivated by racial bias in its voting patterns, then a case of vote dilution has not been made. Our interpretation of the Voting Rights Act is supported by the text of the statute, the legislative history accom- panying the 1982 amendment to section 2, and the Supreme Court’s vote dilution cases. We now discuss these sources in greater detail. 1. At first glance, the language of section 2, as amended in 1982, appears somewhat inconsistent and unclear. Subsection (a) forbids the use of electoral structures that “result[ ] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Subsection (b), on the other hand, appears more generous, explaining that a violation of subsection (a) is established if members of a minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Jd. § 1973(b). We believe, however, that the statutory language, when properly understood, circumscribes the universe of prohibited electoral structures and requires more than a mere showing of electoral losses at the polls by minority candidates. The appellants argue that the language of section 2 requires nothing more than proof of disparate election results—i.e., that, when observed from a _ numeri- cal/success rate point of view, minorities have less opportunity than their white counterparts to participate in the political process and to elect representatives of their choice. Such proof, they argue, sufficiently demon- strates the required denial or abridgement of a minority group’s right to vote. 43a This reading of section 2, however, ignores crucial portions of the language in both subsection (a) and subsection (b). It is an axiomatic principle of statutory construction that statutes are to be read in their entire- ty, not in the piecemeal fashion employed by the appel- lants. Accordingly, we “follow the cardinal rule that a Statute is to be read as a whole, see Massachusetts v. Morash, 490 U.S. 107, 115, 109 S. Ct. 1668, 1673, 104 L. Ed. 2d 98 (1989), since the meaning of statutory lan- guage, plain or not, depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, , 112 S. Ct. 570, 574, 116 L. Ed. 2d 578 (1991). When the entire Statutory provision is examined, it becomes clear that the well-known first portion of subsection (b) can only be understood in light of subsection (a), which requires that the denial or abridgement of the right to vote be “on account of race or color,” and the final clause of subsection (b), which makes clear that the 1982 amendment was not designed to create a right of proportional representation. This comprehensive reading plainly precludes the appellants’ interpretation of section 2. First, the language of section 2 as amended, by prohib- iting voting structures that “result{] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” explicitly retains racial bias as the gravamen of a vote dilution claim. 42 U.S.C. § 1973(a) (emphasis added). The exist- ence of some form of racial discrimination therefore remains the cornerstone of section 2 claims; to be ac- tionable, a deprivation of the minority group’s right to equal participation in the political process must be on account of a classification, decision, or practice that depends on race or color, not on account of some other racially neutral cause. As the Fifth Circuit has explained, “the scope of the Voting Rights Act is indeed quite broad, but its rigorous protections, as the text of § 2 Suggests, extend only to defeats experienced by voters ‘on account of race or color.’ ” LULAC, 999 F.2d at 850. 44a Furthermore, this linguistic conclusion is supported by the fact that any other reading might well render section 2 outside the limits of Congress’ legislative powers and therefore unconstitutional. It is important to remember that the Voting Rights Act was adopted pursuant to Congress’ authority to enforce the Fourteenth and Fif- teenth Amendments. The Civil War Amendments to the Constitution were designed to remedy pervasive racial discrimination, and Congress has broad power to enforce those amendments by appropriate legislation.*4 Congres- sional actions, however, must remain rooted in the purpose of the amendments. Accordingly, the Supreme Court has upheld the ban on electoral changes in section 5 of the Voting Rights Act (the preclearance provision) because “the Act’s ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohib- its only intentional discrimination in voting.” City of Rome v. United States, 446 U.S. 156, 177, 100 S. Ct. 1548, 1562, 64 L. Ed. 2d 119 (1980). Thus, Congress’ decision to include and retain the “on account of race or color” language was not merely fortuitous. Indeed, “this limita- tion was not so much the product of legislative discretion as constitutional imperative, given that the scope of Congress’ remedial power under the Civil War Amend- ments is defined in large part by the wrongs they prohib- it.” LULAC, 999 F.2d at 854. As the Senate Judiciary Committee concluded, the proposed amendment to sec- tion 2 was constitutional because of “the very terms and operation of the provision, which confine its application to actual racial discrimination.” S.Rep. No. 417, at 43, reprinted in 1982 U.S.C. C.A.N. at 177, 221. “4 Congress’ authority to enforce the Civil War Amendments approx- imates its power under the Necessary and Proper Clause, as described by McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), to implement the powers granted by Article 1. See City of Rome v. 45a In addition, to accept the appellants’ interpretation of section 2—that is,to read the “on account of race” language out of the statute by allowing section 2 plain- tiffs to establish a violation merely by proving numerical differences in representation levels—would be to create a de facto right to proportional representation, a result explicitly prohibited by section 2 itself.*° See 42 U.S.C. United States, 446 U.S. 156, 174-77, 100 S. Ct.1548, 1560-61, 64 L. Ed. 2d 119 (1980) (approving the preclearance provisions of section 5 of the Voting Rights Act while expressing no opinion as to the constitu- tionality of section 2). Indeed, the Court held that “Congress may prohibit practices that in and of themselves do not violate § 1 of the [Fifteenth] Amendment, so long as the prohibitions attacking racial discrimination in voting are ‘appropriate’ as that term is defined in McCulloch v. Maryland and Ex parte Virginia, 100 U.S. 339 [25 L. Ed. 676] (1880).” City of Rome, 446 U.S. at 177, 100 S. Ct. at 1561-62. Quoting Ex parte Virginia, 100 U.S. at 345-46, the Court explained in South Carolina v. Katzenbach, 383 U.S. 301, 327, 86 S. Ct. 803, 818, 15 L. Ed. 2d 769 (1966), that: Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Similarly, in Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S. Ct. 1717, 1724, 16 L. Ed. 2d 828 (1966), the Court held that legislation enacted pursuant to section 5 of the Fourteenth Amendment would be upheld as an appropriate exercise of congressional power if the statute “ ‘is plainly adapted to [the] end’” of enforcing the Equal Protection Clause and “is not prohibited by but is consistent with ‘the letter and spirit of the constitution,’ ” regardless of whether the practices outlawed by Congress violated the Equal Protection Clause in and of themselves. ** In amending section 2, the Judiciary Committee noted, with ap- proval, that “Whitcomb [v. Chavis] and White [v. Regester] both recognized that, in order to prevail, plaintiffs had to prove more than that minority members had not elected legislators in proportion to their percentage of the population.” S.Rep. No. 417, at 23, reprinted in 1982 U.S.C.C.A.N. at 177, 200; see also id. at 34, reprinted in 1982 Friis 46a U.S.C. § 1973(b) (“Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”). For, under the appellants’ reading, courts would do no more than simply determine whether black voters are able to elect their candidates of choice and whether they might be more effective under a different electoral arrangement. Taken a step further, the appellants’ interpretation necessarily requires a finding that, whenever minority candidates are not succeeding in at- large elections despite the fact that the minority popula- tion is reasonably large and politically cohesive, the only possible explanation for the minority candidates’ lack of success is white bloc voting. Such a holding would amount to no less than the creation of a right to propor- tional representation, while also serving to eviscerate the very reason for the adoption of the Voting Rights Act—to prevent the abridgement of the right to vote “on account of race.” 2. An examination of the legislative history surrounding the 1982 amendment to the Voting Rights Act (along with the Supreme Court cases that preceded that legisla- tion) confirms that racial bias in the voting community remains the keystone of section 2 vote dilution claims. Congress amended section 2 in 1982 to overturn the plurality decision of the Supreme Court in City of Mobiie v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L.Ed. 2d 47 U.S.C.C.A.N. at 177, 212 (“If the mere existence of under representa- tion plus a history of dual schools had been sufficient under White, then plaintiffs would have won in every lawsuit brought in the Fifth Circuit [after Zimmer], which was clearly not the case.”). es Oe = . oo * * aT $3 47a poseful device to further racial ... discrimination,’ ” id. at 66, 100 S. Ct. at 1499 (quoting Whitcomb v. Chavis, ** See S.Rep. No. 417, at 2, reprinted in 1982 U.S.C.C.A.N. at 177, Bolden.”); id. at 27, reprinted in 1982 U.S.C.C.A.N. at 177, 205 (“The ‘results’ standard is meant to restore the pre-/Bolden] legal Standard at 1028-31 (Tjoflat, CJ., specially concurring); see also Gingles, 478 comb.”); LULAC, 999 F.2d at 851 (“The 1982 amendments to § 2 were intended to ‘codify’ the results test as employed in White and Whit- comb.”). 48a veloped around it, into the application of Section 2.” S.Rep. No. 417, at 32, reprinted in 1982 U.S.C.C.A.N. at 177, 210. Because of this stated purpose to return the section 2 burden of proof to pre-Bolden standards,‘*’ “it is to Whitcomb and White that we should look in the first instance in determining -how great an impairment of minority voting strength is required to establish vote dilution in violation of § 2.” Gingles, 478 U.S. at 97, 106 S. Ct. at 2791 (O’Connor, J., concurring). The Supreme Court began the development of a stand- ard for racial vote dilution cases in Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971), which involved a challenge to the multimember, at-large legislative district scheme in Marion County, Indiana (the Indianapolis area). In that case, black voters claimed that the use of at-large elections diluted the voting strength of minorities in violation of the Equal Protec- tion Clause of the Fourteenth Amendment.‘** After noting that multimember district systems are not per se unconstitutional, 7d. at 142, 91 S. Ct. at 1868, the Court determined that they “may be subject to challenge *? Several decisions of this court have recognized that Congress intended the 1982 amendment to section 2 to restore the standard that governed vote dilution cases before Bolden. See, e.g., United States v. Marengo County Comm’n, 731 F.2d 1546, 1562-63 (11th Cir.), cert. denied, 469 U.S. 976, 105 S. Ct. 375, 83 L.Ed.2d 311 (1984); see also McMillan v. Escambia County, 748 F.2d 1037, 1041 (Former 5th Cir. 1984). *® The Fourteenth Amendment states, in pertinent part, that “no State shall make cr enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws.” 49a where the circumstances of a particular case may ‘oper- ate to minimize or cancel out the voting Strength -of racial ... elements of the voting population,’ ” id. at 143, 91 S. Ct. at 1869 (quoting Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501, 13 L.Ed. 2d 401 (1965)). The Court then turned to the question of how such unconsti- tutional vote dilution could be proved. The Court first noted that any schemes “conceived or operated as purposeful devices to further racial discrimi- nation” would be struck down under the Equal Protec- tion Clause. Jd. at 149, 91 S. Ct. at 1872. It found, however, that the plaintiffs had made no showing that the system used in urban Indianapolis had been explicit- ly designed or maintained by the relevant public officials to dilute the minority vote. Jd. The Court then shifted its attention from the intent of the legislators who had framed the electoral System to conditions in the voting community as a whole. The Court Stressed that invidious discrimination could not Satisfactorily be proved through evidence of minority candidates’ lack of success “absent evidence and findings that {minority voters] had less opportunity than did other Marion County residents to participate in the political process and to elect legislators of their choice.” Jd. To make this showing, the Court explained that plaintiffs could rely on evidence of Var- ious objective factors, such as limitations on minority registration or participation in political parties, that are probative of the presence or absence of racial bias in all] levels of the political community and not just of “offi- cial” discrimination by legislators.49 Thus, Whitcomb 50a indicates that the actions of the members of the voting community as a whole, not just the conduct of officials responsible for designing or maintaining the electoral structure at issue, are relevant to inquiries into discrimi- nation in the voting process. In White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314, the Supreme Court retained proof of invid- ious discrimination as a requirement of a successful vote dilution case brought under the Equal Protection Clause. The Court explained that, in vote dilution cases, it had “entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups.” Jd., 412 U.S. at 765, 93 S. Ct. at 2339. The plaintiffs in White challenged, under the Fourteenth Amendment, the multimember legislative apportionment plan, which employed multimember dis- tricts in certain Texas counties. Accordingly, in framing the constitutional issue before it, the Court explained that it was required to determine whether the use of multimember districts had “been invidiously discrimina- tory against cognizable racial or ethnic groups in those counties.” Jd. at 756, 93 S. Ct. at 2335. The plaintiffs in White apparently never attempted to demonstrate invidious discrimination through proof of the subjective intent of the legislators who designed or maintained the challenged election scheme. Instead, the plaintiffs only offered—and the Court only dis- cussed—circumstantial evidence that pointed to objec- tive factors that, like those in Whitcomb, shed light on the presence or absence of racial bias in the voting “the failure of the [black community] to have legislative seats in proportion to its population{ ] emerges more as a function of losing elections than of built-in bias against poor Negroes. The voting power of ghetto residents may have been ‘cancelled out’ ..., but this seems more a euphemism for political defeat at the polls.” Whitcomb, 403 U.S. at 153, 91 S. Ct. at 1874. 5la community. Echoing the language used in Whitcomb, the Court framed the relevant standard as follows: To sustain [vote dilution] claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political proc- esses leading to nomination and election were not equally open to participation by the group in ques- tion—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Id. at 765-66, 93 S. Ct. at 2339. The Supreme Court approved the district court’s use of several objective factors to determine whether the plaintiffs had met this burden of proof. Those factors included the state’s histo- ry of official racial discrimination; the use of certain voting structures that, although not in themselves improper or invidious, nevertheless enhanced the oppor- tunity for racial discrimination; the influence of all- white political organizations over the process; and the use of overt racial campaign tactics to defeat candidates supported by the black community. See id. at 766-67, 93 S. Ct. at 2339-40. Based upon an evaluation of these fac- tors, the Court affirmed the district court’s determina- tion that the minority population had been excluded unconstitutionally from the political process in those Texas counties. The relevance of the objective factors discussed in Whiie clearly was not limited to the narrow issue of legislators’ intent in the adoption or maintenance of a challenged voting scheme. Instead, those factors were indicative of racial bias in the political community as a whole and of interaction between that bias and the challenged electoral structure. The opportunity, or lack of opportunity, to participate in the political process was 52a proved in White with objective factors that indicated that the voting scheme, “overlaid, as it was, on the cultural and economic realities of the [minority] commu- nity in Bexar County and its relationship with the rest of the county,” closed the political process to the minority group. Id. at 769, 93 S.Ct. at 2341. Whitcomb and White thus established that proof of invidious discrimination constituted an essential element of voting rights claims under the Equal Protection Clause. Plaintiffs could establish this element: (1) by proving that the legislators or other officials intended to enact or maintain a discriminatory voting scheme; or (2) by demonstrating objective factors indicating that the minority group has less opportunity to participate in the political process and to elect officials of its choice. As Justice White recently explained, Whitcomb and White carry the following theme: “It is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned.” Shaw v. Reno, US. , , 113 S. Ct. 2816, 2835, 125 L. Ed. 2d 511 (1993) — J., dissenting). It was against this jurisprudential backdrop that a plurality of the Supreme Court in Bolden eliminated the second of these two methods of establishing invidious discrimination available to voting rights plaintiffs under Whitcomb and White—objective factors indicating that the minority group has less opportunity to participate in the political process and to elect officials of its choice. Specifically, the Bolden plurality held that plaintiffs in voting rights cases, whether claiming a violation of the Fourteenth Amendment, Fifteenth Amendment, or section 2 of the Voting Rights Act, “must prove that the disputed plan was ‘conceived or operated as [a] purpose- ful device to further racial ... discrimination.’ ” © Bold- en, 446 U.S. at 66, 100 S. Ct. at 1499 (quoting Whitcomb, 403 U.S. at 149, 91 S. Ct. at 1872). Bolden involved a challenge to the at-large system of elections for the 53a three-member city commission governing Mobile, Ala- bama, whose members jointly exercised legislative and executive power. In rejecting each of the plaintiffs’ claims, the plurality read the same intent requirement into both the Civil War Amendments and section 2: An electoral scheme would be invalidated only where the plaintiff could prove racially discriminatory intent on the part of legislators (or other relevant officials) in design- ing or maintaining the challenged scheme.*! See id. at 62, 66-67; 100 S. Ct. at 1499-1500. © The plurality reviewed many cases in the process of distilling this intent test, and it imported from those cases the basic principle that purposeful discrimination is a requirement for a violation of the Fifteenth Amendment, citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed.2d 110 (1960), and Wright v. Rockefeller, 376 U.S. 52, 84 S. Ct. 603, 11 L. Ed.2d 512 (1964), and of the Fourteenth Amendment, citing Washington v. Davis, 426U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), and Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct.2282, 60 L. Ed. 2d 870 (1979). See Bolden, 446 U.S. at 62-63, 66-67, 91 S. Ct.at 1497, 1499. The plurality held that, as a matter of statuto- ry construction, “the language of § 2 no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself.” Jd. at 60-61, 100 S. Ct. at 1496 (footnote omitted). * Further evidence that the plurality was altering the standard established in Whitcomb and White can be derived from the Court’s holding that the objective factors discussed in those opinions could not provide sufficient proof of the discriminatory purpose the plurali- ty opinion now required. See Bolden, 446 U.S. at 73, 100 S. Ct. at 1502-03. As we explain above, those factors are relevant to a deter- mination of racial bias in the voting community as a whole, not to racial motivations on the part of the creators of a state’s electoral scheme. Thus, the Bolden plurality’s holding that the circumstantial evidence factors alone could not Support a finding of invidious dis- crimination indicates that only evidence of racial bias on the part of legislators or other responsible officials could demonstrate the re- quired discriminatory purpose. 54a Thus, the legislative history surrounding the 1982 amendment to section 2 supplies significant insight into Congress’ intent to overturn the Bolden intent test by codifying White. The Judiciary Committee’s report makes clear that amended section 2 restored the pre- Bolden standard by eliminating the absolute requirement that plaintiffs prove a discriminatory intent on the part of the legislators or officials responsible for designing or maintaining the challenged electoral scheme. The 1982 amendment, however, was not designed completely to eliminate consideration of the presence or absence of racial bias from the vote dilution inquiry; instead, it was meant merely to restore the invidious discrimination requirement as articulated by the Whitcomb and White Courts. Thus, under section 2 as amended, a plaintiff once again may demonstrate a violation by proving either: (1) the subjective discriminatory motive of legisla- tors or other relevant officials; or (2) the existence of objective factors demonstrating that the _ electoral scheme interacts with racial bias in the community and allows that bias to dilute the voting strength of the minority group. b. Appearing before this court as amicus curiae on behalf of the United States, the Department of Justice joined the appellants in opposing the foregoing reading of the legislative history and pre-amendment case law sur- rounding section 2. The Department contends that sec- tion 2 does not require any proof whatsoever of inten- tional discrimination or racial animus; to consider a lack of racial bias in the voting community as a means of avoiding a section 2 vote dilution claim under the totali- ty of the circumstances, the Department contends, would be to reintroduce the type of intent-based inquiry ‘65a Because of the Symbolic power of that characterization, we address the Department’s reading of the legislative history in some detail. tee’s report, particularly the comment that “the specific intent of [the 1982] amendment is that the plaintiffs may choose to establish discriminatory results without prov- ing any kind of discriminatory purpose.” S.Rep. No. 417, at 28, reprinted in 1982 U.S.C.C.A.N. at 177, 205-06.This expression of legislative intent, the Department argues, forecloses the reading into the statute of any require- ment that the presence or absence of racial bias in the voting community be considered in determining whether a section 2 violation has been established. As noted above, however, the overriding intent of the 1982 amendment to section 2, as expressed repeatedly in the Senate Report, was to reject the position of the plurality in Bolden, “which required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.” Gingles, 478 U.S. at 43-44, 106 S. Ct. at 2762-63. The Department of Justice, however, contends that the goals Congress sought to achieve were broader: was attributable to racial considerations would “frustrate the goals Congress sought to achieve by repudiating the intent test of [Bolden].” Gingles, 478 U.S. at 71, 106 S. Ct. at 2777. 56a to divorce the issue of racial bias from the section 2 inquiry altogether and essentially to limit the relevant considerations to the rate of minority electoral success at the polls. “Given the palpable tension between ‘the goals Congress sought to achieve’ and those it actually ex- pressed, it is hardly surprising that the principles [the appellants] purport[ ] to locate in the Senate Report bear only a passing resemblance to those offered by Congress.” LULAC, 999 F.2d at 862. The Senate Report leaves no doubt that Congress’ view of the vice of the Bolden decision comports with our description above: In pre-Bolden cases piaintiffs could prevail by showing that a challenged election law or procedure, in the context of the total circumstances of the local electoral process, had the result of denying a racial or language minority an equal chance to participate in the electoral process. Under this results test, it was not necessary to demonstrate that the chal- lenged election law or procedure was designed or maintained for a discriminatory purpose. S.Rep. No. 417, at 16, reprinted in 1982 U.S.C.C.A.N. at 177, 193. The Committee thus concluded that the Bolden “intent test places an unacceptably difficult burden on plaintiffs” because “it diverts the judicial [inquiry] from the crucial question of whether minorities have equal access to the electoral process to a historical question of individual motives.” Id. The Whitcomb and White deci- sions, in the Committee’s view, were correct because “in neither ...did the Supreme Court undertake a factual examination of the intent motivating those who designed the electoral districts at issue.” /d. at 22, reprinted in 1982 U.S.C.C.A.N. at 177, 200. In context, therefore, the phrases from the Senate Report highlighted by the Department of Justice and the appellants refer to this particular form of intent.®* The 58 Our reading of the Senate Report comports with the conclusion reached by the Fifth Circuit. See LULAC, 999 F.2d at 862 (“The _ 57a Report states that the intent test “asks the wrong ques- tion” precisely because it probes the racial motivations of lawmakers (and not because it inquires into racial bias in general): (if an electoral System operates today to exclude blacks or Hispanics from a fair chance to participate, then the matter of what motives were in an offi- cial’s mind 100 years ago is of the most limited relevance.... If [minorities] are denied a fair oppor- tunity to participate ... the System should be changed, regardless of what may Or may not be provable about events which took place decades ago. S.Rep. No. 417, at 36, reprinted in 1982 U.S.C.C.A.N. at 177, 214; see also Shaw, U.S. at , 113 S. Ct. at 2823 (“In 1982, [Congress] amended § 2 of the Voting Rights Act to prohibit legislation that results in the dilution of a minority group’s voting strength, regardless of the legis- lature’s intent.”). Statements in the Report about avoid- ing a requirement that plaintiffs prove “discriminatory intent” must be considered in light of the meaning pro- vided to that phrase in the document as a whole, where- in the Committee expressed its intent to overturn the Bolden legislative intent requirement. The many refer- ences to “intent,” “motivation,” and “purpose” through- out the report therefore must be read to refer to the intent of those responsible for erecting or maintaining the challenged scheme.*4 Senate Report quite unambiguously declares that Congress intended to “make clear that plaintiffs need not prove a discriminatory purpose in order to establish a violation.’ ”). ** In the section of the Senate Report dealing with the operation of amended section 2, the Committee consistently contrasts the results test, which it adopts, with the forbidden intent test, because the former avoids inquiry into the motivations of legislators. For example, the Committee noted: 58a Not only does the context of the passage from the Senate Report clearly indicate what Congress meant by forbidden inquiry into discriminatory intent, but the Committee’s language in other sections of its report also demonstrates a congressional desire to retain a basic inquiry into racial bias in the voting community—an inquiry that is qualitatively different from the question whether a challenged election law or procedure was designed or maintained for a discriminatory purpose. The Senate Report explains: The results test makes no assumptions one way or the other about the role of racial political considera- tions in a particular community. If plaintiffs assert that they are denied fair access to the political process, in part, because of the racial bloc voting context within which the challenged election system works, they would have to prove it. S.Rep. No. 417, at 34, reprinted in 1982 U.S.C.C.A.N. at 177, 212. The Judiciary Committee thus explicitly recog- The amendment to the language of Section 2 is designed to make clear that plaintiffs need not prove a discriminatory pur- pose in the adoption or maintenance of the challenged system [or] practice in order to establish a violation. Plaintiffs must either prove such intent, or, alternatively, must show that the chal- lenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process. S.Rep. No. 417, at 27, reprinted in 1982 U.S.C.C.A.N. at 177, 205 (footnote omitted). The Committee continued: “If the plaintiff pro- ceeds under the ‘results test’, then the court would assess the impact of the challenged structure or practice on the basis of objective fac- tors, rather than making a determination about the motivations which lay behind its adoption or maintenance.” Jd. The Committee, therefore, drew a distinction between the forbidden inquiry into the motives of the designers of an electoral scheme and the use of objec- tive factors to evaluate whether minorities are denied equal access to the political process on account of race—an evaluation that focuses on racial bias in the voting community. Id. at 33, reprinted in 1982 U.S.C.C.A.N. at 177,211. In electoral process. In the context of such racial bloc voting, and other factors, a particular election method can deny minority voters equal Opportunity to Participate meaningfully in elections. Separating, within the meaning of the Voting Rights Act, those jurisdictions in which minority voters have an These objective factors, as discussed above, bear on the existence or nonexistence of racial bias in the community as a whole. 60a equal opportunity to participate from those in which they do not.* Contrary to the assertion of the appellants and the Department of Justice, permitting inquiry into racial bias would not reintroduce into section 2 cases the divisive- ness that Congress sought to eliminate. In language heavily relied on by these parties, the Senate Report explains that exploring racial motivations as an element of proof is divisive because “it involves charges of racism on the part of individual officials or entire communities.” Jd. at 36, reprinted in 1982 U.S.C.C.A.N. at 177, 214. Significantly, however, the Senate Report continues on in the very same paragraph to reproduce testimony suggesting that this concern arises because, under the Bolden intent test, “litigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citi- zens. The question would be whether their decisions were motivated by invidious racial considerations.” Id. (emphasis added). Moreover, an inquiry into racial bias in the voting community, using objective factors, does not require that any individuals be labelled as racists because section 2 contemplates proof by circumstantial - evidence.*? 5* As a panel of this court has explained, “this section of the Senate Report makes it clear that section 2 is intended not to create race- conscious politics, but to remedy it where it already exists.” Marengo, 731 F.2d at 1567. 57 As Professor (and now Solicitor General) Drew Days testified during the congressional hearings, “in those jurisdictions where the evidence supports the conclusion that a combination of public and private actions, over time, have succeeded in ‘fencing out’ minorities from the electoral process, [it is] difficult to understand how requiring that corrective measures be undertaken brands that community and its officials as ‘racists,’ as some critics of the proposed Amendment have suggested.” Hearings on the Voting Rights Act Before the Sub- comm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong.,2d Sess. 1402 (statement of Prof. Drew S. Days, I, Yale Law School). 6la 3. The legislative history, therefore, does not revea] an intent on the part of Congress to limit the section 2 inquiry to numbers alone, without any corresponding consideration of racial bias. Such a position directly contravenes the language of section 2, which prohibits voting practices that deny minority voters equal access to the political process on account of race. Indeed, “without an inquiry into the circumstances underlying unfavorable election returns, courts lack the tools to discern results that are in any sense ‘discriminatory,’ and any distinction between deprivation and mere losses at the polls becomes untenable.” LULAC, 999 F.2d at 850. As we have emphasized, and as the Supreme Court recognized in Gingles, “the essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical] conditions to cause an inequali- ty in the opportunities enjoyed by black and white voters to elect their preferred representatives.” 58 Gin- gles, 478 U.S. at 47, 106 S. Ct. at 2764. Unless the tend- ency among minorities and white voters to support dif- ferent candidates, and the accompanying losses by minority groups at the polls, are somehow tied to race, voting rights plaintiffs simply cannot make out a case of vote dilution. C. In summary, a plaintiff must prove invidious discrimi- nation in order to establish a violation of section 2 of the Voting Rights Act. Specifically, the plaintiff may prove either: (1) discriminatory intent on the part of legislators ** See also id. at 1367-68 (statement of Prof. Days) (explaining that 1982 amendment to section 2 was designed to restore a remedy in cases “where a combination of public activity and private discrimina- tion have joined to make it virtually impossible for minorities to play a meaningful role in the electoral process”). 62a or other officials responsible for creating or maintaining the challenged system; or (2) objective factors that, under the totality of the circumstances, show the exclu- sion of the minority group from meaningful access to the political process due to the interaction of racial bias in the community with the challenged voting scheme. Given the obvious fact that evidence of legislators’ bias will generally be difficult to find, we envision that sec- tion 2 plaintiffs usually will pursue the second option, the “results test.” The contours of the proper inquiry under the results test emerge from the Supreme Court’s opinion in Gin- gles, which identified three preconditions to obtaining relief under section 2.5° A plaintiff cannot obtain relief unless he or she can establish: (1) the existence of a permissible remedy (in legislative cases like Gingles, the existence of a sufficiently large and compact minority group to constitute a single-member district); (2) that the m [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1366%3A2. Public record. Not legal advice.