Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNESTINE LEWIS; SYLVESTER J.

LEWIS,

Plaintiffs-Appellants,

and

MINNETTA E. HILL,

Plaintiff,

No. 95-2002

v.

ALAMANCE COUNTY, NORTH

CAROLINA, including its Board of

Commissioners and Board of

Elections,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CA-92-614)

Argued: March 5, 1996

Decided: November 4, 1996

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,

Circuit Judges.

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Affirmed by published opinion. Judge Luttig wrote the majority opinion, in which Chief Judge Wilkinson joined. Chief Judge Wilkinson
wrote a concurring opinion. Judge Michael wrote a dissenting opinion.

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COUNSEL

ARGUED: Donnell Van Noppen, III, PATTERSON, HARKAVY &

LAWRENCE, Raleigh, North Carolina, for Appellants. J. Michael

Crowell, THARRINGTON, SMITH, Raleigh, North Carolina, for

Appellees. ON BRIEF: E. Hardy Lewis, THARRINGTON, SMITH,

Raleigh, North Carolina; S. C. Kitchen, Alamance County Attorney,

Graham, North Carolina, for Appellees.

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OPINION

LUTTIG, Circuit Judge:

Appellants Ernestine and Sylvester Lewis, black voters of appellee

Alamance County, North Carolina, challenged the County's at-large

method of electing county commissioners, arguing that black citizens

have been denied an equal opportunity to elect representatives of their

choice through vote dilution, in violation of Section 2 of the Voting

Rights Act, 42 U.S.C. § 1973. The district court granted summary

judgment for the County, holding that plaintiffs failed to demonstrate

that minority-preferred candidates are usually defeated by white bloc

voting, as required by Thornburg v. Gingles, 478 U.S. 30 (1986). For

the reasons that follow, we affirm.

I.

Alamance County is governed by a Board of Commissioners, the

five members of which are elected, in at-large partisan elections, to

four-year staggered terms. Voters are allowed to cast votes for as

many candidates as there are vacant seats, but they cannot cast more

than one vote for any one candidate. Since the 1965 passage of the

Voting Rights Act, black candidates have run for seats on the Board

in eight of fourteen election cycles. Only one black candidate, Jack

O'Kelley, has been elected, although he was elected three times, in

 2
1974 (after first being appointed to fill a vacancy), 1976, and 1980.

Moreover, white candidates supported by a majority (often substantial) of black voters, either in the primary election, the general election, or both, have repeatedly won election.1

Section 2(a) of the Voting Rights Act of 1965 prohibits a State or

its political subdivisions from imposing any voting practice "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." 42

U.S.C. § 1973(a). Section 2(b) of the Act, as amended in 1982, further

provides that a violation of § 2(a) occurs,

if, based on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the

State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less

opportunity than other members of the electorate to participate in the political process and to elect representatives of

their choice.

42 U.S.C. § 1973(b) (emphasis added).2

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1 The census data of 1990 shows that Alamance County's population

is 79.8% white, 19.2% black. Voting age population is 81.2% white,

18.0% black. As of April 1994, the population of registered voters was

84.1% white, 15.5% black. While 59% of all registered voters in the

county are Democrats, blacks in Alamance County are overwhelmingly

Democrats (94%). For this latter reason, when we refer to primary elections, we are referring only to the Democratic primaries.

2 The full statute provides as follows:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a

denial or abridgement of the right of any citizen of the United

States to vote on account of race or color, or in contravention of

the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

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

if, based on the totality of circumstances, it is shown that the

 3
In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court

interpreted the amended Voting Rights Act as it applied to a challenge

to multi-member districts in which candidates were elected at large.

Rejecting the claim that an at-large election scheme is per se violative

of the Voting Rights Act, id. at 48, the Court established three preconditions to proving that such a voting system dilutes minority group

voting strength sufficiently to violate the Act:

First, the minority group must be able to demonstrate that

it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . .

Second, the minority group must be able to show that it is

politically cohesive. . . .

Third, the minority must be able to demonstrate that the

white majority votes sufficiently as a bloc to enable it . . .

usually to defeat the minority's preferred candidate.

478 U.S. at 50-51. If these preconditions are met, the court must then

determine under the "totality of circumstances" whether there has

been a violation of Section 2. See Johnson v. De Grandy, 114 S. Ct.

2647, 2657 (1994); Collins v. City of Norfolk, Va., 816 F.2d 932, 938

(4th Cir. 1987) ("Collins I") ("[The] ultimate determination [of vote

dilution under the Voting Rights Act] still must be made on the basis

of the `totality of the circumstances.'").

In an effort to meet Gingles' second and third preconditions, plain-

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political processes leading to nomination or election in the State

or political subdivision are not equally open to participation by

members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other

members of the electorate to participate in the political process

and to elect representatives of their choice. The extent to which

members of a protected class have been elected to office in the

State or political subdivision is one circumstance which may be

considered: Provided, That nothing in this section establishes a

right to have members of a protected class elected in numbers

equal to their proportion in the population.

 4
tiffs' expert in this case conducted bivariate ecological regression

analyses on the eleven primary and general elections in which a black

candidate was on the ballot. Based on those regression analyses, the

expert estimated the level of support among black voters for each

candidate.3 Plaintiffs then proffered the voter preference estimates as

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3 In the face of the County's intended challenge to the use of such statistical evidence, we again caution against overreliance on bivariate ecological regression analysis in the estimation of voter preferences for

purposes of a vote dilution claim. See, e.g., Smith v. Brunswick County,

Va., Bd. of Supervisors, 984 F.2d 1393, 1400 n.6 (4th Cir. 1993). Bivariate regression analysis, as used in Voting Rights Act cases, only allows

one to determine the correlation between the percentage of the vote

received by a particular candidate and the racial composition of voting

precincts. See, e.g., Jenkins v. Red Clay Consol. School Dist. Bd. of

Educ., 4 F.3d 1103, 1119 n.10 (3d Cir. 1993) (citing Richard L. Engstrom & Michael D. McDonald, Qualitative Evidence in Vote Dilution

Litigation: Political Participation and Polarized Voting, 17 URB. LAW.

369, 374 (Summer 1985)), cert. denied , 114 S. Ct. 2779 (1994); City of

Carrollton Branch of the NAACP v. Stallings , 829 F.2d 1547, 1556 (11th

Cir. 1987), cert. denied, 485 U.S. 936 (1988). The relevant correlation

for vote dilution claims, however, is that between the race of the voters

and the votes cast for a particular candidate, not that between the racial

composition of precincts and the votes cast for a particular candidate, for

it is only the former from which one can accurately estimate actual voter

preferences. One can derive estimates of voter preferences from the

regressions employed here only by assuming that the level of minority

support for the candidate is fairly constant across precincts -- an "ecological" assumption that runs counter to the common sense observation

that blacks and whites who live in integrated neighborhoods are more

likely to vote for candidates of another race. See, e.g., Bernard Grofman

et al., Minority Representation and the Quest for Voting Equality 89

(1992) ("The principal disadvantage [of ecological regression is] the possibility of errors owing to ecological inference."); id. ("[T]he `ecological

fallacy' . . . is the error of attributing the average behavior of voters in

a given geographic area (ecological unit) to all voters in that area."). In

other words, the bivariate ecological regression analysis merely assumes

that which it is the purpose of the analysis to prove -- political cohesiveness and constancy of candidate preference among minority voters and

racial bloc voting among majority voters. See Overton v. City of Austin,

871 F.2d 529, 539 n.12 (5th Cir. 1989) ("[Bivariate ecological regression

analysis] assumes that the voters in most precincts voted according to

their ethnicity."); id. at 539 ("[T]rial court should not ignore the imperfections of the data used nor the limitations of[bivariate ecological

regression] analysis").

 5
proof of both black voter cohesion (the second Gingles element) and

white bloc voting sufficient to usually defeat black-preferred candidates (the third Gingles element). After reviewing the voter preference estimates from plaintiffs' expert on these selected elections, the

district court held that plaintiffs had failed to provide evidence sufficient to satisfy the third Gingles element, because they had not shown

that black-preferred candidates were usually defeated. Based upon the

limited data before the court, this conclusion was fully supported even

by plaintiffs' own expert witness, who admitted during his deposition

that twenty of the thirty-one candidates "generally preferred" by black

voters in the select number of elections he analyzed won election or

nomination, thirteen of twenty-two "strongly preferred" candidates

won election or nomination, and eleven of the seventeen "strongest

preferred" candidates won election or nomination. If only the five

general elections analyzed by plaintiffs' expert are considered, eight

of the eleven candidates most strongly preferred by black voters were

elected to seats on the Board.

Plaintiffs advance on appeal four arguments as to why the district

court's conclusion was in error. We reject plaintiffs' claim that those

white candidates who received overwhelming support from black voters in general elections, assertedly only because they were Democrats,

should not have been considered as black-preferred candidates by the

district court. And we also reject plaintiffs' argument that the district

court erred in not discounting the repeated success of one of the

minority-preferred candidates because of the alleged effects of incumbency. We agree with plaintiffs, however, that the district court

improperly aggregated primary and general election results, and also

that it failed to conduct an individualized determination into whether

some candidates should be treated as black-preferred candidates.

Additionally, we conclude that the district court erred in a third

respect, by basing its decision exclusively on data from elections in

which a black candidate was on the ballot, rather than on a more representative sample of elections. By limiting its consideration to elections in which a candidate of the minority's race was on the ballot,

the district court may have failed to include as black-preferred candidates some white candidates who may very well have been the representatives of choice of the black community.

 6
II.

Turning first to what we perceive to be the overarching error, we

believe that, by considering only elections in which a black candidate

was on the ballot, the district court failed to analyze a sufficient number of elections to enable it to determine whether white bloc voting

usually operates to defeat minority-preferred candidates. As noted, the

district court considered only election data from eleven of the twentyeight primary and general elections held since passage of the Voting

Rights Act -- six of fourteen primary elections and only five of fourteen general elections. Although we recognize that this election data

was the only data proffered by plaintiffs, we believe that, without a

larger, more representative sample of elections, the district court simply did not have before it sufficient evidence to determine whether the

black-preferred candidates usually were defeated,4 unless one is will-

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4 We do not imply that the third Gingles element is met if plaintiffs

merely show that white bloc voting defeats the minority-preferred candidate more often than not. The terms used by the Gingles Court are "usually," "normally," and "generally." 478 U.S. at 49, 51, 56. We need not

in this case specify a meaning for these terms; suffice it to say that they

mean something more than just 51%. See Clarke v. City of Cincinnati,

40 F.3d 807, 812-13 (6th Cir. 1994) (finding that 47% success rate was

"no reason to find that blacks' preferred black candidates have `usually'

been defeated."), cert. denied, 115 S. Ct. 1960 (1995); Uno v. City of

Holyoke, 72 F.3d 973, 985 (1st Cir. 1995) ("[T]o be legally significant,

racially polarized voting in a specific community must be such that, over

a period of years, whites vote sufficiently as a bloc to defeat minority

[-preferred] candidates most of the time ." (emphasis added)). Indeed, Justice O'Connor suggested in Gingles that a finding of "usually defeated"

should be based on a success rate by minority-preferred candidates that

is less than proportional representation, although greater than mere

tokenism. 478 U.S. at 99-100 (O'Connor, J., concurring in judgment)

("[A] reviewing court should be required to find more than simply that

the minority group does not usually attain an undiluted [that is, proportional] measure of electoral success. The court must find that even substantial [that is, less than proportional but more than token] minority

success will be highly infrequent under the challenged plan before it may

conclude, on this basis alone, that the plan operates `to cancel out or minimize the voting strength of [the] racial grou[p].'" (quoting White v.

Regester, 412 U.S. 755, 765 (1973))); see also Jenkins, 4 F.3d at 1122

("If minority-preferred candidates are consistently able to prevail in representative numbers . . . , then it cannot be said that white voters vote

sufficiently as a bloc usually to prevent the election of the minority preferred candidates." (emphasis added)).

 7
ing to assume (which we are not) that the black community will never

have a preferred candidate in an election in which no black candidate

is on the ballot, or, more fundamentally, that a black voter can never

prefer a candidate who is white.

Although the district court erred in this regard, we do not reverse

its judgment because of this error, for it is the plaintiffs' burden to

establish a violation of Section 2, and therefore their burden to proffer

data from a sufficient number of elections to enable the district court

to determine whether white bloc voting usually defeats minoritypreferred candidates. Where, as here, plaintiffs fail to carry their burden to proffer sufficient evidence, and the district court correctly concludes on the basis of the proffered evidence that no Section 2

violation has been established, then the plaintiffs cannot be heard to

complain.

A.

Section 2 of the Voting Rights Act prohibits the use of voting procedures, such as at-large elections, that afford minority voters less

opportunity than other members of the electorate"to elect

representatives of their choice," 42 U.S.C.§ 1973(b) (emphasis

added), or, in the language of Gingles, that afford minority voters less

opportunity to elect minority-preferred candidates. Gingles, 478 U.S.

at 51. The only possible interpretation of this unambiguous language

is that Section 2 prohibits any election procedure which operates to

deny to minorities an equal opportunity to elect those candidates

whom they prefer, whether or not those candidates are themselves of

the minority race. As Justice Brennan observed in Gingles, "it is the

status of the candidate as the chosen representative of a particular

racial group, not the race of the candidate," which is relevant in

determining whether Gingles' third precondition is satisfied. Gingles,

478 U.S. at 68 (plurality opinion of Brennan, J., joined by Blackmun,

Marshall, and Stevens, JJ.); see Collins I, 816 F.2d at 937 n.5 ("The

question is not . . . so simple as how many blacks versus whites were

elected. The court must examine the parties' studies of voting preferences to determine which were the preferred candidates of the majority and minority communities."); see also Lani Guinier, The Triumph

of Tokenism: The Voting Rights Act and the Theory of Black Electoral

Success, 89 MICH. L. REV. 1077, 1103 n.115 (1991) ("Authentic repre-

 8
sentatives [of the black community] need not be black as long as the

source of their authority, legitimacy, and power base is the black

community."). That is, a minority-preferred candidate may be a nonminority, just as a minority candidate may be the preferred candidate

of the voters of the majority's race. The black community may prefer

a white candidate, as the white community may prefer a black candidate. A Martin Luther King, Jr. or a Colin Powell can represent white

Americans, no less than a John Fitzgerald Kennedy or a Hubert Humphrey can represent black Americans. To indulge the contrary presumption, that every black person necessarily prefers a black

candidate over a white candidate, or that every white person necessarily prefers a white candidate over a black candidate, would itself constitute invidious discrimination of the kind that the Voting Rights Act

was enacted to eradicate, effectively disenfranchising every minority

citizen who casts his or her vote for a non-minority candidate. To

acquiesce in such a presumption would be not merely to resign ourselves to, but to place the imprimatur of law behind, a segregated

political system -- in Judge Cabranes' words, an"electoral apartheid," NAACP v. City of Niagara Falls, N.Y., 65 F.3d 1002, 1016 (2d

Cir. 1995) -- in derogation of the most fundamental principles of our

representative democracy and in betrayal of our most cherished

beliefs about individual autonomy and political self-determination.

Our understanding of Section 2 that the minority-preferred candidate may be either a minority or a non-minority, and therefore that

both elections in which the candidates are of the same race and elections in which the candidates are of different races must be considered

in order to determine whether white bloc voting usually defeats the

minority-preferred candidate, is confirmed within Section 2 itself, by

the express proviso that "[t]he extent to which members of a protected

class have been elected to office" is but "one circumstance which may

be considered" in assessing whether minority voters have been denied

an equal opportunity "to participate in the political process and to

elect representatives of their choice." See 42 U.S.C. § 1973(b); see

also id. ("[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion

in the population."). Were this proviso, coupled with the statute's

plain reference to the minority's representatives"of choice," not

enough, the plurality in Gingles itself, as noted, expressly stated that

"only the race of the voter, not the race of the candidate, is relevant"

 9
in determining whether a plaintiff has met Gingles' preconditions,

Gingles, 478 U.S. at 68 (emphasis added), and not a single Justice

suggested that only candidates of the minority race could be considered minority-preferred candidates, see infra note 5. Indeed, as the

Third Circuit has held, a candidate of the minority's race need not

even be the minority-preferred candidate. Jenkins v. Red Clay Consol.

School Dist. Bd. of Educ., 4 F.3d 1103, 1126 (3d Cir. 1993), cert.

denied, 114 S. Ct. 2779 (1994).

Although at times they suggest otherwise, see Appellant's Br. at 30

("Under the law, black voters must have an opportunity not just to

elect candidates of their choice, but to elect black candidates of their

choice"), plaintiffs no doubt agree with our interpretation of Section

2. They themselves conducted a bivariate regression analysis on the

eleven elections in which a black candidate was on the ballot precisely in order to determine whether the black candidate or the white

candidate was the minority-preferred candidate in those elections.

Had they not believed, as we do, that a white candidate may be the

minority-preferred candidate, then they would have advanced their

claim solely on the basis that only one black candidate had actually

won in these elections. To conduct a regression analysis with respect

to a black-white election, ostensibly in part to identify the blackpreferred candidate, makes sense only if it is possible for the preferred

candidate not to be the black candidate.

We recognize that the plaintiffs' expert in Gingles had only analyzed elections in which a black candidate had appeared on the ballot,

see Gingles, 478 U.S. at 52, and that the Court there relied upon that

data in invalidating North Carolina's at-large election scheme. The

Court in Gingles, however, never addressed the question of whether

plaintiffs' exclusion of evidence from white-white races rendered

their proffer insufficient; it merely assumed for purposes of that case

that the black candidates there were the representatives of choice of

black voters. Justice Brennan, in fact, could not have been clearer in

this regard:

Because both minority and majority voters often select

members of their own race as their preferred representatives,

it will frequently be the case that a black candidate is the

choice of blacks, while a white candidate is the choice of

 10
whites. . . . Indeed, the facts of this case illustrate that tendency -- blacks preferred black candidates, whites preferred

white candidates. Thus, as a matter of convenience, we and

the District Court may refer to the preferred representative

of black voters as the "black candidate" and to the preferred

representative of white voters as the "white candidate."

Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a § 2

inquiry. Under § 2, it is the status of the candidate as the

chosen representative of a particular racial group, not the

race of the candidate, that is important.

Id. at 68 (emphasis added, in part) (plurality opinion);5 cf. Harvell v.

Blytheville School District No. 5, 71 F.3d 1382, 1386 (8th Cir. 1995)

(en banc) ("We do not categorically state that a candidate is the

minority-preferred candidate simply because that candidate is a member of the minority. Such stereotyping runs afoul of the principles

embodied in the Equal Protection Clause." (citing Miller v. Johnson,

115 S. Ct. 2475, 2486 (1995))), cert. denied, 116 S. Ct. 1876 (1996).

Where the results of not even a majority, much less a substantial

majority, of elections are considered, it is simply not possible for the

district court to determine whether minority-preferred candidates are

"usually" defeated. We therefore hold that, in assessing whether "the

white majority votes sufficiently as a bloc to enable it . . . usually to

defeat the minority's preferred candidate," a district court must consider, at a minimum, a representative cross-section of elections, and

not merely those in which a minority candidate appeared on the ballot, at least where elections in which minorities were on the ballot do

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5 Although Justice White, who joined the remainder of Justice Brennan's opinion, did not join this portion of the opinion, neither Justice

White nor Justice O'Connor, who concurred only in the judgment, as

much as hinted that only elections in which a black candidate was on the

ballot need be considered; they each merely argued that Justice Brennan's conclusion that the race of the candidate is always irrelevant was

in conflict with Whitcomb v. Chavis , 403 U.S. 124 (1971), and was not

necessary to the disposition of the case. Id . at 82, 83 (White, J., concurring); id. at 83, 101 (O'Connor, J., concurring in the judgment, joined by

Burger, C.J., and Powell and Rehnquist, JJ.).

 11
not constitute a substantial majority of the total number of elections.

Cf. Niagara Falls, 65 F.3d at 1016-17 ("The trial court . . . properly

attempted to analyze white-white elections, as well as to evaluate the

success of white candidates in black-white elections, to determine

whether whites voted as a bloc to defeat blacks' preferred candidates."). Only by considering such a representative sample can the

district court meaningfully determine whether a white voting bloc

usually defeats the minority-preferred candidate. See, e.g., Uno v.

City of Holyoke, 72 F.3d 973, 985 (1st Cir. 1995) ("[T]o be legally

significant, racially polarized voting in a specific community must be

such that, over a period of years, whites vote sufficiently as a bloc to

defeat minority[-preferred]6 candidates most of the time. . . . In order

reliably to tell whether racial groups do (or do not) band together

behind particular candidates with regularity, all elections in the relevant time frame (or, at least, a representative sampling of them) must

be studied -- not just those elections that, taken in isolation, reveal

the cicatrices of racially polarized voting." (emphasis added)). By

focusing exclusively on elections in which a minority candidate

appeared on the ballot, it can only be determined whether the "minority candidate" is usually defeated, not, as required by Section 2,

whether the "minority-preferred candidate" is usually defeated. See,

e.g., Harvell, 71 F.3d at 1393 n.2.

Our sister circuits interpret section 2 and the third Gingles element

as do we. As the Tenth Circuit recognized in affirming a district

court's finding that plaintiffs' evidence was "inadequate" to measure

the success of minority-preferred candidates because it did not consider elections in which only whites were on the ballot:

[A] per se rule against examining races that have only white

candidates . . . would be clearly contrary to the [Gingles]

plurality opinion, which views the race of the candidates as

irrelevant in voting analysis [and] . . . is questionable in light

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6 Although the First Circuit referred in this passage to "minority candidates," not to "minority-preferred candidates," it is evident from its citation to Gingles at p. 56 that the court meant by "minority candidate" the

"minority-preferred candidate." At that page in Gingles, the Supreme

Court refers only to the "minority's preferred candidates" and the "representatives of their choice." It does not once refer to minority candidates.

 12
of the language of § 2, which seeks to give minorities equal

opportunity to "elect representatives of their choice."

Sanchez v. Bond, 875 F.2d 1488, 1495 (10th Cir. 1989), cert. denied,

498 U.S. 937 (1990); SCLC v. Sessions , 56 F.3d 1281, 1293-94 (11th

Cir. 1995) (en banc) (approving district court's conclusion that the

analysis by plaintiff's expert "was flawed because he only analyzed

elections . . . involving a black candidate."), cert. denied, 116 S. Ct.

704 (1996); see also Uno, 72 F.3d at 988 n.8 ("[T]he VRA does not

require for a successful section 2 showing that minority-preferred

candidates be members of the minority group . . . ."); Niagara Falls,

65 F.3d at 1016 (district court properly analyzed white-white elections to determine which candidates were black-preferred); Clarke v.

City of Cincinnati, 40 F.3d 807, 810 n.1 (6th Cir. 1994) ("Plaintiffs

suggest that white candidates cannot be included among blacks' preferred candidates, but we disagree." (quotation marks omitted)), cert.

denied, 115 S. Ct. 1960 (1995); Nipper v. Smith, 39 F.3d 1494, 1540

(11th Cir. 1994) (en banc) ("[W]e do not foreclose the consideration

of electoral races involving only white candidates where the record

indicates that one of the candidates was strongly preferred by black

voters."), cert. denied, 115 S. Ct. 1795 (1995); Jenkins, 4 F.3d at 1125

("[T]here may be majority candidates who truly may be the minority

community's representative of choice."); Valladolid v. City of

National City, 976 F.2d 1293, 1297 (9th Cir. 1992) ("[Appellants'

argument] that minorities have long been underrepresented on the city

council, and that a significant number of minority candidates have

failed in their efforts to win election to that body. . . too easily

equate[s] the presence or absence of minority individuals on the council with the victory or defeat of minority-preferred candidates.").7

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7 See also Smith v. Clinton, 687 F. Supp. 1310, 1316 (E.D. Ark. 1988)

(three-judge panel) ("We assume without deciding that all of the evidence [of white-white elections] offered by the defendants is admissible

and properly to be considered."); Brown v. Board of Commissioners of

the City of Chattanooga, 722 F. Supp. 380, 391 (E.D. Tenn. 1989) ("[A]

review of white/white elections as well as white/black elections is necessary to determine the existence of racially polarized voting."); Southern

Christian Leadership Conference of Alabama v. Evans, 785 F. Supp.

1469, 1473 (M.D. Ala. 1992) ("Court will . . . consider political races

generally -- white on black and white on white-- in seeking to deter-

 13
The Fifth Circuit in Citizens for a Better Gretna v. City of Gretna,

La., 834 F.2d 496 (5th Cir. 1987), cert. denied, 492 U.S. 905 (1989),

agreed that "Gingles is properly interpreted to hold that the race of the

candidate is in general of less significance than the race of the voter,"

id. at 503, and it even noted that "Justice Brennan's plurality opinion

is careful not to state that a black candidate is tantamount to the black

preference." Id. But, it found "implicit" in Gingles' undiscussed reliance on data only from black-white elections "the notion that black

preference is determined from elections which offer the choice of a

black candidate," and thus concluded that the race of the candidate

was less significant than that of the voters "only within the context of

an election that offers voters the choice of supporting a viable minority candidate." Id. at 503-04; see also id. at 504 ("The various Gingles

concurring and dissenting opinions do not consider evidence of elections in which only whites were candidates. Hence, neither do we.");

Campos v. City of Baytown, Tex., 840 F.2d 1240, 1244 (5th Cir.

1988) ("The district court was warranted in its focus on those races

that had a minority member as a candidate." (citing Gretna, 834 F.2d

at 503)), cert. denied, 492 U.S. 905 (1989). However, the Fifth Circuit

has, since, substantially retreated from its dictum in Gretna in

Overton v. City of Austin, 871 F.2d 529 (5th Cir. 1989), holding that

it is, indeed, permissible to consider elections in which a minority is

not on the ballot. Id. at 538 (relying only on elections in which a

minority was on the ballot and on election results rather than extrinsic

factors "is not the only permissible way to approach § 2 claims."); cf.

LULAC v. Clements, 986 F.2d 728, 748 (5th Cir.) ("[A] court may

properly give more weight to elections in which the minoritypreferred candidate is a member of the minority group."), on reh'g en

banc, 999 F.2d 831, 864 (1993) ("This court has consistently held that

elections between white candidates are generally less probative in

examining the success of minority-preferred candidates . . . ."

(emphasis added) (citing Campos, 840 F.2d at 1245; Gretna, 834 F.2d

at 503)), cert. denied, 114 S. Ct. 878 (1994).

_________________________________________________________________

mine the question of whether the political process is open to minority

voters. The Court must keep in mind the mandate of the statute that Section 2 does not require that minorities be given equal opportunity to elect

minority candidates, but that they be given equal opportunity to `elect

representatives of their choice.'").

 14
In short, though some courts have held that black-white elections

are more probative than white-white elections, see, e.g., Uno, 72 F.3d

at 988 n.8; Jenkins, 4 F.3d at 1128; LULAC, 999 F.2d at 864; Smith,

687 F. Supp. at 1316,8 to our knowledge, no court has held that a

white candidate cannot, as a matter of law, be a minority-preferred

candidate, and therefore that white-white elections are irrelevant to

the Gingles third element inquiry.

B.

By failing to consider evidence of elections in which no minority

candidate appeared on the ballot, the district court, insofar as can be

discerned, could have understated (or overstated) the extent to which

minority-preferred candidates were usually defeated in Alamance

County.

For example, the record includes election data from the 1974 general election because O'Kelley, a black candidate, was on the ballot

seeking election to the unexpired term of the seat to which he had

been appointed following a vacancy. But it does not include election

data from the 1974 primary election, notwithstanding that the two

Democrats elected in the primary for the two full-term seats, both of

whom were white, each received 99+% of the black vote in the general election. Although it may well be that either or both of these candidates were the minority-preferred candidates in the 1974 primary,

and therefore would have counted as minority-preferred electoral successes (both did receive a majority of black support in other primary

_________________________________________________________________

8 We do not decide here the extent to which, if any, white-white elections are deserving of less evidentiary weight than elections in which a

minority candidate is on the ballot. It seems to us, however, that if whitewhite elections are entitled to less weight, then they are so only on the

question of whether racial polarization exists, not on the question of

whether, because of that polarization, minority-preferred candidates are

usually defeated. Cf. Harvell, 71 F.3d at 1382 (distinguishing between

"racial cohesiveness," the second Gingles precondition, and "racial polarization, . . . the essential element of the third Gingles precondition," and

holding that in measuring whether racial polarization "permits the majority usually to defeat the minority's preferred candidates," evidence such

as "elections in which there was no African-American candidate [on the

ballot] . . . become[s] relevant.").

 15
elections -- Long received 84% in 1972, and Newlin 60%, in 1978),

it could be that neither was a minority-preferred candidate in the 1974

primary, in which case there were uncounted minority-preferred

defeats.

Similarly, the record does not include election results from the

1972 or 1978 general elections, although Long was successful in the

1972 primary with 84% of the black vote (second only to the 98%

received by Morris, a black candidate), and Newlin was successful in

the 1978 primary with 60% of the black vote (second only to the 78%

received by black candidate Harris). Based upon the record data from

other general elections, it may be that both of these candidates

received near unanimous support of the black community in their general elections, and thus should have been considered the blackpreferred candidates in those elections. But, without the data from

these elections, it simply cannot be known whether they, or others,

were the black-preferred candidates, and therefore whether the blackpreferred candidates were successful or defeated.

And there are no election returns, general or primary, for the 1966,

1968, 1970, 1982, 1988, or 1990 election cycles. The district court

therefore likewise could not have known who were the representatives of choice of black voters in those elections, or whether or not

they were defeated.

In making these observations, we do not suggest that the district

court need analyze every election since 1965 in order to determine

whether the minority-preferred candidates are usually defeated. We

leave to another day the question of precisely how many elections

must be considered in order for a district court's conclusions to be

adequately supported. Cf. Gingles, 478 U.S. at 57 ("[A] pattern of

racial bloc voting that extends over a period of time is more probative

of . . . legally significant polarization than are the results of a single

election."); Hines v. Mayor and Town Council of Ahoskie, 998 F.2d

1266, 1272 (4th Cir. 1993) ("[The] `results' test [of section 2 of the

VRA] `supposes the need to consider multiple electoral contests.'"

(quoting Baird v. Consolidated City of Indianapolis, 976 F.2d 357,

359 (7th Cir. 1992), cert. denied, 508 U.S. 907 (1993))); Baird, 976

F.2d at 359 ("Any approach that depends on outcomes supposes the

need to consider multiple electoral contests -- the same position over

 16
many years, many positions during the same year, or both.");

Collins I, 816 F.2d at 936 ("[W]hether there is a `pattern of racial bloc

voting that extends over a period of time' [is] a critical factor in a

claim of vote dilution under § 2."); see also Uno, 72 F.3d at 985

("[R]ace-conscious politics (or its absence, for that matter) can more

readily be seen by producing a documentary that spans a series of

elections than by taking an isolated snapshot of a single election.").

Today, we hold merely that it is insufficient to consider selectively

only those elections in which minority candidates were on the ballot,

at least where such elections are not such a substantial majority of the

total elections that a fair assessment can be made of whether the

minority-preferred candidates are usually defeated by white bloc voting.

III.

Plaintiffs challenge the methodology employed by the district court

on numerous other grounds. Specifically, plaintiffs urge: 1) that the

district court improperly viewed as minority-preferred candidates

some candidates who finished second and third among black voters;

2) that it improperly treated candidates in the general election as

black-preferred when those candidates assertedly received a majority

of black votes only because they were Democrats; 3) that it improperly viewed success in the primary election as electoral success; and

4) that it failed to discount the weight attributed to the one repeatedly

successful black candidate due to the effects of incumbency. We

address each of these challenges in turn, finding no reversible error

by the district court.

A.

Plaintiffs first contend that, contrary to our holding in Collins v.

City of Norfolk, Va., 883 F.2d 1232 (4th Cir. 1989) ("Collins II"),cert.

denied, 498 U.S. 938 (1990), the district court considered as "blackpreferred" some successful candidates who finished second and third

among black voters, behind a successful black-preferred candidate.

We agree that the district court erred, but not in the manner plaintiffs

suggest. Rather, we conclude the district court erred in plaintiffs'

favor by not treating as "black-preferred" some successful candidates

who placed second or third among black voters (and with a significant

 17
majority of black votes) behind an unsuccessful candidate who was

the first choice of black voters.

1.

Because Alamance County's Board of Commissioners is elected

from a single, multi-member district, citizens are permitted to vote for

either two or three candidates in both the primary and general elections, depending on the number of seats up for election in any given

year. Consequently, the district court in most cases treated the top two

or three vote-recipients among black voters as the black-preferred

candidates, as did plaintiffs' expert. If the first choice of black voters

did not win an election, however, the district court excluded from

consideration even as possible minority-preferred candidates those

candidates who placed second or third among black voters behind the

losing black-preferred candidate, in attempted reliance on our opinion

in Collins II, 883 F.2d at 1238. In so doing, the district court, as even

counsel for the plaintiffs conceded at oral argument, seems to have

misread our opinion in Collins II. We did not, in Collins II, adopt a

per se rule against considering, as minority-preferred, candidates who

finished second or third among minority voters behind an unsuccessful candidate who was the minority community's first choice. We

held only that,

[t]he mere election of a candidate who appears to have

received votes from more than fifty percent of minority ballots does not count as a minority electoral success, when

each ballot may contain votes for more than one candidate.

In such a situation, if there were other candidates, preferred

by a significantly higher percentage of the minority community, who were defeated in the same election, then it cannot

be fairly said that the minority community has successfully

elected representatives of its choice. Each such situation

must be reviewed individually to determine whether the

elected candidates can be fairly considered as representatives of the minority community. The presumption must be

that they cannot if some other candidate has received

significantly more minority votes.

Id. at 1238 (emphases added) (quoting Collins I, 816 F.2d at 937).

 18
Collins II, in other words, requires that a two-step inquiry be

undertaken by the court in order to determine whether candidates who

receive less support from black voters than an unsuccessful first

choice may nevertheless be deemed black-preferred candidates in

multi-seat elections. First, if the unsuccessful candidate who was the

first choice among minority voters did not receive a"significantly

higher percentage" of the minority community's support than did

other candidates who also received a majority among minority voters,

Collins II, 883 F.2d at 1238 (quoting Collins I, 816 F.2d at 937); see

also id. at 1239 (referring to the level of support given to the unsuccessful candidate as "much greater"), then the latter should also be

viewed by the district court as minority-preferred candidates. Cf.

Niagara Falls, 65 F.3d at 1018 (treating as black-preferred a candidate who finished behind an unsuccessful first choice among black

voters whose support "was not dramatically higher."). Second, if the

level of support received by the unsuccessful first-place finisher

among black voters was "significantly higher" than the support given

the second- and third-place finishers by those same voters, then successful candidates who finished behind the unsuccessful first choice

"are presumed not to be the minority's preferred candidates or representatives of choice." Id. at 1238. Even so, the district court must still

review "[e]ach such situation . . . individually to determine whether

the elected candidates can be fairly considered as representatives of

the minority community." Id. This is to say that Collins II requires an

individualized determination in the circumstance where the unsuccessful first choice of black voters received significantly more support

than the next-place finishers of the black voters. In this circumstance,

the individualized determination is undertaken in order to ensure that

the second- or third-place finishers, who, based upon their substantial

support from the minority community would seem to be minoritypreferred candidates, may in fact fairly be characterized as such.

In this case, black candidate Morris, for example, received 98% of

the black vote in the 1972 Democratic primary election, and white

candidates Long, Fleming, and Horne received 84%, 29%, and 16%

of the black vote, respectively.9 Long, Fleming, and Horne won the

primary election. Notwithstanding the impressive support that Long

_________________________________________________________________

9 Three other white candidates received 9%, 8% and 5% of the black

vote, respectively.

 19
received from black voters in the primary, the district court did not

even consider whether Long might have been a black-preferred candidate. Because Morris' support among black voters was not "significantly higher" than Long's, the district court appears to have erred in

not automatically treating Long as a black-preferred candidate. But

even had Morris' level of support among black voters been significantly higher than Long's, the district court still would have erred in

not making an individualized determination before rejecting Long as

a black-preferred candidate.

Morris' support was significantly higher than the 29% received by

Fleming. In such a circumstance, as in the case directly addressed by

Collins II,10 a presumption against viewing Fleming as blackpreferred is required by our holding in Collins II, which, as a panel,

we are bound by. However, the district court should have made an

individualized determination to assess whether that candidate, too,

could properly have been deemed black-preferred.

The district court also declined to treat successful white candidate

Newlin as a black-preferred candidate in the 1978 Democratic primary, merely because Harris, the first choice of black voters, lost.

There were two seats up for election that year, and Harris and Newlin

were the top two vote-recipients among black voters, by far, with an

estimated 78% and 60% of the black vote, respectively. Significantly,

the third place finisher among black voters was a black candidate,

who received only 12% of the black vote. Even were we to conclude

that Harris' support among black voters was "significantly higher"

_________________________________________________________________

10 Our holding in Collins II actually does not address this circumstance

directly, since Fleming received less than majority support among black

voters; Collins II addressed only the circumstance where a candidate

receives more than 50% of the minority community's vote. Nevertheless,

we do not believe that the mere failure to achieve a threshold of 50% in

a multi-candidate election necessarily means that a candidate cannot be

viewed as a black-preferred candidate. If the election had been held only

among black voters, a hypothetical inquiry given some credence by the

Gingles plurality, see 478 U.S. at 68 ("The essence of a submergence

claim is that minority group members prefer certain candidates whom

they could elect" if the election were held in a majority-black district),

then Fleming would have won, because he was the third-place finisher

among black voters in an election in which three seats were to be filled.

 20
than Newlin's, an individualized determination would still have been

required before declining to treat Newlin as a black-preferred candidate. Again, we held in Collins II only that successful candidates who

receive more than 50% of the black vote should not automatically be

viewed as a black-preferred candidate if they receive significantly less

support from black voters than another, losing candidate, not that they

should never be treated as black-preferred.

2.

While the district court erred in automatically excluding, as possible minority-preferred candidates, the second- and third-place finishers behind an unsuccessful first choice among black voters, we do not

believe the court erred, as plaintiffs contend, in not conducting an

individualized determination with respect to every candidate who finished second or third among black voters behind successful blackpreferred candidates, before treating them as black-preferred. Plaintiffs object to the fact that the district court considered some of the

second and/or third place finishers as black-preferred in the three primary elections in which the first choice of black voters was successful

-- 1976, 1980, and 1984. In the 1976 primary, for example, the district court treated both successful black candidate O'Kelley, who won

99+% of the black vote, and successful white candidate Fleming, who

finished second among black voters with 47% of the vote, as blackpreferred. The district court did not, however, consider successful

white candidate Paris as black-preferred because he received only

16% of the black vote, even though that percentage placed him in a

tie for third among black voters and thus may have been sufficient to

win had the election been held only among black voters. See supra

note 10. All three candidates went on to win in the general election,

with 99+% of the black community's vote.

Plaintiffs object to the district court's treatment of these second and

third place finishers as black-preferred candidates on the ground that,

"[i]n most of these elections, . . . the black community fielded only

one [black] candidate," Appellant's Br. at 20. In advancing this argument, plaintiffs rely not on the holding in Collins II, but on a single

passage from that case in which we said the following:

If black voters exercised their right to cast all of their allotted votes, they ran the risk that their second and third

 21
choices would be declared their preferred candidates. Only

by single-shot voting -- withholding all votes save for their

first choice, and forfeiting the opportunity to cast all votes

allotted to each voter -- could the minority be assured that

its second and third choices would not be declared its preferred candidates. In contrast, under the at-large system, the

white voters can freely cast all votes allotted to them without suffering the penalty imposed on the minority voters.

883 F.2d at 1239-40. Because Collins II, as explained above,

addressed only the treatment of second- and third-place finishers

behind an unsuccessful, not a successful, minority-preferred candidate, this passage is obviously dictum and not controlling here. And

even were it applicable, the passage does not suggest the level of support necessary in order for such candidates to be considered minoritypreferred.

We believe that it would be unwise to extend the holding in Collins II

to instances in which the first choice among black voters was successful. Where the first choice of black voters was successful, there is

simply no reason to presume that the minority community has been

unsuccessful in electing representatives of its choice. Accordingly, we

now hold that, in multi-seat elections in which voters are permitted

to cast as many votes as there are seats, at the very least any candidate

who receives a majority of the minority vote and who finishes behind

a successful candidate who was the first choice among the minority

voters is automatically to be deemed a black-preferred candidate, just

like the successful first choice. Cf. Niagara Falls, 65 F.3d at 1018

n.18 (noting that parties did not dispute that candidates who received

more than 50% were black-preferred). Candidates who receive less

than 50% of the minority vote, but who would have been elected had

the election been held only among black voters, are presumed also to

be minority-preferred candidates, although an individualized assessment should be made in order to confirm that such a candidate may

appropriately be so considered.

The district court appears generally to have conducted its analysis

in the manner that we have described as appropriate. It considered as

black-preferred candidates only those candidates who received sub-

 22
stantial support from black voters;11 it did not unquestioningly denominate as black-preferred the top two or three vote-recipients among the

black community. Moreover, the court seems to have made an individualized determination before considering, as black-preferred, candidates such as Fleming who, in 1976, received slightly less than 50%

of the black vote (47%), and in rejecting Paris, who in that same election only tied for third, with 16% of the black vote. We accordingly

discern no reason to disturb the district court's determinations with

respect to those candidates who finished second and third among

minority voters, behind the minority community's successful first

choice. Those determinations are not clearly erroneous. See Gingles,

478 U.S. at 77-79.

B.

Plaintiffs next object to the fact that the district court treated, as

black-preferred, Democratic candidates who received 99+% of the

black vote in general elections. Plaintiffs contend that to consider

these candidates as black-preferred ignores that blacks in Alamance

County overwhelmingly support Democrats in partisan elections.

They argue that Democrats should be treated as black-preferred only

if they were also black-preferred in the primary election. Therefore,

they would have us discount, for example, the general election victories of Fleming in 1976 and Paris in 1980, both of whom received

nearly unanimous black voter support, merely because they received

"only" 47% and 48%, respectively, of the black vote in the primary

elections. This argument is flawed in two fundamental respects.

First, as we discuss infra, acceptance of this argument would

require that we carry forward the candidates' black-preferred status

from the primary to the general election, when the Voting Rights Act

is clearly concerned with whether blacks have an equal opportunity

to elect the candidate of their choice in both nominations and elections. See 42 U.S.C. § 1973(b) ("A violation . . . is established if . . .

it is shown that the political processes leading to nomination or

election . . . are not equally open to participation by [citizens on

_________________________________________________________________

11 The level of support that may properly be deemed "substantial" will

vary, of course, depending on the number of candidates on the ballot and

the number of seats to be filled.

 23
account of race or color]." (emphasis added)); cf. NAACP v. City of

Columbia, S.C., 850 F. Supp. 404, 417 (D. S.C. 1993) (noting, as

ironic, the fact that second choice of black voters, behind unsuccessful first choice, who went on to prevail in run-off election with majority of support from black voters, would not be considered preferred

by either blacks or whites if level of support received in the initial primary election was the benchmark), aff 'd as modified on other

grounds, 33 F.3d 52 (4th Cir. 1994) (per curiam), cert. denied, 115

S. Ct. 1095 (1995). Thus, candidates who receive 99+% of the black

vote in general elections are the black-preferred candidate in that

election, regardless of their level of support in the primary. We reject

the proposition that "success of a minority-preferred candidate in a

general election is entitled to less weight when a candidate with far

greater [minority] support was defeated in the primary." Niagara

Falls, 65 F.3d at 1018. Such a view is grounded in the belief that

minority voters essentially take their marbles and go home whenever

the candidate whom they prefer most in the primary does not prevail,

a belief about minority voters that we do not share. And such a view

ignores altogether the possibility that primary election winners will

become the minority's preferred candidate during the general election

campaign, or that where, as here, the overwhelming majority of

blacks vote in the Democratic primary, that a Republican could in fact

become the black-preferred candidate in the general election by

addressing himself to issues of interest to the minority community in

a way that appeals to them as participants in the political process.

Second, under plaintiffs' theory, the district court would be

required, contrary to Gingles, to assess the cause of the minority community's support of the candidate in determining whether the

minority-preferred candidates usually are defeated by white bloc voting. See infra note 12. In Gingles, defendants argued that the plaintiffs

were required to use multiple regression analysis, rather than bivariate

regression analysis, to ensure that only those defeats of blackpreferred candidates that were actually caused by race, and not some

other reason such as party affiliation, were considered defeats of

black-preferred candidates for purposes of a vote dilution claim. The

Gingles plurality explicitly rejected such a requirement in the context

 24
of assessing the second and third Gingles preconditions. 478 U.S. at

62.12

Moreover, even the limited election data in this record demonstrate

that black voters do not vote monolithically, even in partisan general

elections. White Democrats Holt and Thompson only received 69%

and 83% of the black vote, respectively, in the 1984 general election,

and Democrat Morris, who is black, received only 57% of the black

vote in the 1986 general election -- behind Democrat Bennett, who

is white, who received 99+% of the black vote.

_________________________________________________________________

12 Although only a four-Member plurality joined Section III(C) of the

opinion, in which the rejection of defendant's multiple regression claim

is found, Section III(C) is lengthy, and the dispute that cost Justice

White's vote on the section was not over the "cause" issue.

Although most of our sister circuits have by now adopted the position

that an inquiry into cause is relevant, see, e.g., LULAC, 999 F.2d at 850

("[The] rigorous protections [of the Voting Rights Act], as the text of § 2

suggests, extend only to defeats experienced by voters `on account of

race or color.'"), they are still in disagreement about the stage in the vote

dilution inquiry in which causation evidence is appropriate, compare

Nipper, 39 F.3d at 1515 ("[I]f 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.") with

Clarke, 40 F.3d at 812-14 (considering "cause" of the success rate of

black-preferred candidates in assessing third Gingles element). We think

the best reading of the several opinions in Gingles, however, is one that

treats causation as irrelevant in the inquiry into the three Gingles preconditions, see Gingles, 478 U.S. at 62 (Brennan, J., plurality opinion), but

relevant in the totality of circumstances inquiry, see 478 U.S. at 100

(O'Connor, J., concurring in judgment) (agreeing that use of racial polarization data "solely" to prove Gingles second and third elements cannot

be rebutted by "evidence that the divergent racial voting patterns may be

explained in part by causes other than race," but disagreeing with plurality's claim "that such evidence can never affect the overall vote dilution

inquiry.").

Of course, whether causation is relevant to the second and third precondition inquiries or to the totality of circumstances inquiry, it would

be just as relevant for determining whether particular minority-preferred

candidates lose for some reason other than racial polarization, as it would

be for determining, as plaintiffs urge, whether particular minoritypreferred candidates win merely because of party affiliation.

 25
We therefore hold that the district court properly deemed all general election candidates who received 99+% of the black community's

vote as black-preferred, without reference to the underlying primary

election.

C.

Plaintiffs next contend that the district court erred in not distinguishing between, and separately analyzing, primaries and general

elections, in determining whether black-preferred candidates were

"usually" successful. With this contention, we agree.

Section 2(b) of the Voting Rights Act provides that a violation

occurs if "the political processes leading to nomination or election . . .

are not equally open" to all voters. 42 U.S.C.§ 1973(b) (emphasis

added); see also 42 U.S.C. § 1973l(c)(1) ("The terms `vote' or `voting' shall include all action necessary to make a vote effective in any

primary, special, or general election . . . ."). The statute thus requires

that minorities have an equal opportunity to participate not only in

primary elections but also in general elections. From this, we believe

it follows that the results in these two phases of the single election

cycle must be separately considered and analyzed, and, in recognition

of this statutory requirement, that Gingles' third precondition can be

satisfied by proof that, in either the primary or the general election,

the minority-preferred candidate is usually defeated by white bloc

voting. Not to separately consider primary and general elections risks

masking regular defeat in one of these phases with repeated successes

in the other, and thereby misperceiving a process that is palpably in

violation of the Voting Rights Act, as not violative of the Act at all.

By way of illustration, an at-large voting method under which the

candidates preferred by the minority community are always successful in the primary election but, because of white bloc voting, are

always defeated in the general election (or one in which minoritypreferred candidates are essentially barred from the general election

ballot because of racial-bloc voting in the primary, see White v.

Regester, 412 U.S. 755, 767 (1973) ("[T]he black community has

been effectively excluded from participation in the Democratic primary selection process.")), is a voting method under which minorities

are, because of white bloc voting, always unsuccessful in attaining

 26
elective office. By aggregating primary and general elections, however, a court would ineluctably find in both circumstances that

minority-preferred candidates were successful fifty percent of the

time, and therefore not "usually" defeated by white bloc voting.

The Supreme Court has held, in an analogous context, that courts

must not rely on "aggregated" data "when considering several separate vote dilution challenges in a single case." See Gingles, 478 U.S.

at 59 n.28; see also id. at 101 (O'Connor, J., concurring in judgment)

("The District Court clearly erred in aggregating data from all of the

challenged districts . . . ."). Because plaintiffs' challenge is, in reality,

two separate vote dilution challenges -- one to the at-large primary

election scheme, and one to the at-large general election scheme --

we believe that like reasoning must obtain here. Accordingly, we hold

that primary and general election results should not be aggregated for

purposes of determining whether black-preferred candidates are "usually" successful, and that the district court erred in so doing. Because

plaintiffs in this case would not prevail on their Section 2 claim even

were the primaries and general elections considered separately, however, we will not reverse the district court on account of this error.

D.

Plaintiffs' final claim is that the district court erred in not discounting the weight attributed to O'Kelley's electoral successes because he

was an incumbent. See Gingles, 478 U.S. at 57 ("[S]pecial circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a

polarized contest." (emphasis added)); but see Smith, 687 F. Supp. at

1317 ("The materiality of [evidence of incumbency] is questionable."

(citing Gingles, 478 U.S. at 63 (plurality opinion))). O'Kelley, one of

the successful black-preferred candidates whom the district court considered in determining whether black-preferred candidates usually

were defeated, won three straight general elections (and, apparently,

5 elections total, including primaries) after first being appointed to a

vacant seat. Although the district court provided no explanation of its

decision not to discount O'Kelley's successes, we will not disturb that

decision, given that plaintiffs' own expert did not analyze the effects

of incumbency for O'Kelley or for any other candidate. To reverse as

clearly erroneous the district court's decision under these circum-

 27
stances would be to transform what was at most a narrow or "special"

circumstance envisioned by the Court only in dicta into a categorical

rule that all electoral successes of a minority-preferred incumbent are

to be discounted. See, e.g., Clarke, 40 F.3d at 813-14 ("[I]ncumbency

plays a significant role in the vast majority of American elections. To

qualify as a `special' circumstance, then, incumbency must play an

unusually important role in the election at issue; a contrary rule would

confuse the ordinary with the special, and thus`make practically

every American election a "special circumstance."'" (quoting Collins

II, 883 F.2d at 1250 (Chapman, J., dissenting)). Of course, as the

defendants point out, and as counsel for the plaintiffs conceded at

argument, "if incumbency were to be considered to discount the

weight to be given to the success of one black candidate, O'Kelley,

it likewise would have to be used to discount the weight given to the

defeat of other black candidates who lost to incumbents, such as Harris in 1978 and Freeman in 1984." Appellee's Br. at 24, citing Nipper

v. Smith, 39 F.3d 1494, 1538-39 (11th Cir. 1994)).

* * * * *

The purpose of the Voting Rights Act is to ensure to minority citizens an equal opportunity to participate in the democratic processes

and to elect candidates of their choice, candidates whom they believe

will best represent their political interests. The Act's purpose is not

to ensure the election of candidates of the minority's race, nor is it to

ensure the election of candidates of any particular political party. In

guaranteeing that minorities will be afforded an equal opportunity to

participate in the political processes and to elect representatives of

"their choice," the Act at once embodies the presumption and

embraces the ideal that, in this Country, a candidate of any color can

represent citizens of all colors, that a candidate of either party can

represent the interests of all parties. Few presumptions are more fundamental to our system of representative democracy or more revealing of our commitment to equality and individual autonomy.

At bottom, through their collective arguments, plaintiffs urge a

reading of the Supreme Court's decision in Gingles, and therefore an

interpretation of Section 2, that would be "at war" with this fundamental presumption, this ideal, which we believe not only informed

Congress' enactment of Section 2, but underlay the Court's interpreta-

 28
tion of that provision in Gingles. The reading of Gingles urged upon

us would not simply guarantee to minority voters an equal opportunity to elect representatives of their choice, but would require the

election of minority candidates: "Under the law, black voters must

have an opportunity not just to elect candidates of their choice, but to

elect black candidates of their choice." Appellant's Br. at 30. Such an

interpretation, of course, is grounded ultimately in the twin presumptions that all members of a particular racial group will always prefer

the same candidate and that that preferred candidate will always be

of that group's race. We simply disagree that Gingles requires, or

even permits, any such presumptions; indeed, we believe Gingles forbids such presumptions based upon race alone. And to the extent it

can be read otherwise, we are convinced the Court would not so read

the case today, given its unequivocal pronouncements that the principles of equal protection are offended by "assumption[s] that voters of

a particular race, because of their race, `think alike, share the same

political interests, and will prefer the same candidates at the polls'."

Miller v. Johnson, 115 S. Ct. 2475, 2486 (June 29, 1995) (quoting

Shaw v. Reno, 509 U.S. 630, 647 (1993)); see also Shaw, 509 U.S.

at 648 ("`The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that

District B must be represented by a Caucasian, District C by a Jew,

District D by a Catholic, and so on.'" (quoting Wright v. Rockefeller,

376 U.S. 52, 66-67 (1964) (Douglas, J., dissenting))).

The judgment of the district court is affirmed.

AFFIRMED

 29
Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNESTINE LEWIS; SYLVESTER J.

LEWIS,

Plaintiffs-Appellants,

and

MINNETTA E. HILL,

Plaintiff,

No. 95-2002

v.

ALAMANCE COUNTY, NORTH

CAROLINA, including its Board of

Commissioners and Board of

Elections,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

William L. Osteen, Sr., District Judge.

(CA-92-614)

Argued: March 5, 1996

Decided: November 4, 1996

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the majority opinion, in which Chief Judge Wilkinson joined. Chief Judge Wilkinson
wrote a concurring opinion. Judge Michael wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Donnell Van Noppen, III, PATTERSON, HARKAVY &

LAWRENCE, Raleigh, North Carolina, for Appellants. J. Michael

Crowell, THARRINGTON, SMITH, Raleigh, North Carolina, for

Appellees. ON BRIEF: E. Hardy Lewis, THARRINGTON, SMITH,

Raleigh, North Carolina; S. C. Kitchen, Alamance County Attorney,

Graham, North Carolina, for Appellees.

_________________________________________________________________

WILKINSON, Chief Judge, concurring:

I agree that the judgment of the district court should be affirmed,

and I concur in Judge Luttig's fine opinion. I write separately, however, to express my concern about the way in which my dissenting

colleague interprets Thornburg v. Gingles, 478 U.S. 30 (1986). That

case commands us, when analyzing claims of minority vote dilution,

to determine whether "the white majority votes sufficiently as a bloc

to enable it . . . usually to defeat the minority's preferred candidate."

Id. at 51.

The dissent's intensely race-conscious approach to that inquiry

seems to me at odds with three recent Supreme Court cases which

have held race-based redistricting schemes to be in violation of the

Constitution. See Bush v. Vera, 116 S.Ct. 1941 (1996); Shaw v. Hunt,

116 S.Ct. 1894 (1996); Miller v. Johnson, 115 S.Ct. 2475 (1995).

Gingles may require us to engage in an inquiry which focuses on

racial considerations, but it cannot be read to require us to adopt rules

that unconstitutionally tie American politics to racial identity. If my

dissenting brother's view of Gingles prevails, we will be well on our

way to the creation of racially separate electorates and a racially separate society. Nothing in Supreme Court precedent compels us to take

America in that direction.

 32
By reversing the district court, the dissent would lead us not only

to a relentlessly race-conscious trial, but also toward the restructuring

of Alamance County electoral districts along racial lines. This is just

what the Supreme Court does not allow. Bush, Shaw, and Miller did

not overrule Gingles, but they surely set limits on the ability of federal courts to cast voters as members of racial blocs rather than as

individuals. In order to identify the "minority-preferred" candidate,

we have been forced to wade into a bog of slippery assumptions and

statistics. In this case alone, we have been asked to assault such

impenetrable questions as: May a candidate who receives more than

50% of the minority vote, but who finishes behind a successful

minority-preferred candidate, also be considered preferred by the

minority? If the candidate who is most preferred by the minority is

unsuccessful, may other successful candidates who received substantial minority support be considered as preferred by the minority?

Should votes for candidates cast by minority voters in general elections be held not to express their true preferences when a candidate

favored by minority voters in the primary election failed to win a

place on the ballot for the general election? And, should votes for a

minority-preferred candidate who is also an incumbent be disregarded

when analyzing the successes of minority-preferred candidates?

Where will this road of race-consciousness end? As the above

questions demonstrate, the Gingles inquiry is complicated enough in

a biracial community. Is the inquiry to become ever more refined and

ever more complex as America becomes more multicultural? How do

we identify minority-preferred candidates under Gingles when multiple minorities are present? How shall we determine whether a candidate supported to a greater or lesser extent by different minorities is

the preferred candidate of a single minority? To what extent are the

electoral interests of different racial minorities to be aggregated or

kept separate? How broadly or narrowly are the categories of racial

minorities to be defined? At some point, this race-based calculus will

demonstrate only how far the law has set us on the path to disunion.

Entering this maze of racially laden inquiries reflects a view of

American political life as a competition between highly segregated

racial forces. Indeed, this is precisely the mistake of the dissent. The

dissent's interpretation of Gingles will not allow courts to accept the

votes of minority individuals as expressing their personal preferences.

 33
Instead, the dissent mandates that we pass the votes of minority individuals under a microscope in order to determine the racial preferences expressed by those voters.

Under the dissent's view, all electoral behavior is reducible to race.

Thus, the dissent suggests that because voters prefer candidates of

their own race, elections in which no minority was a candidate need

not be counted. The dissent further suggests that minority votes for

a candidate in a general election do not express a preference by the

minority unless that candidate was also preferred by the minority in

the primary election; that a successful candidate who received more

than 50% of the minority vote, but finished behind a successful candidate who received a higher degree of minority support, should not

automatically be considered to be preferred by the minority; and that

certain electoral successes of incumbent, minority-preferred candidates should not count towards the success of minority individuals in

electing their preferred candidate.

And these are but a few of the racially-driven factors that the dissent would fasten upon the judicial review of American elections. In

its recent cases, the Supreme Court has made it clear that there is no

room in the Constitution for congressional redistricting schemes predicated predominantly on the basis of race. See Bush v. Vera, 116 S.Ct.

1941 (1996); Shaw v. Hunt, 116 S.Ct. 1894 (1996); Miller v. Johnson,

115 S.Ct. 2475 (1995). The dissent's interpretation of Gingles flies in

the face of this command by proposing a set of intricate inquiries

designed to reinforce the view of American politics as a contest

between separate racial voting blocs. The tendency of such rules to

"disrupt[ ] nonracial bases of political identity," Bush, 116 S.Ct. at

1962 (plurality opinion), will be no less than that of drawing district

boundaries based on race, and they should be no more acceptable

under the Constitution. "It takes a shortsighted and unauthorized view

of the Voting Rights Act to invoke that statute, which has played a

decisive role in redressing some of our worst forms of discrimination,

to demand the very racial stereotyping the Fourteenth Amendment

forbids." Miller, 115 S.Ct. at 2494. In leading us ineluctably to electoral remedies based on racial shares, the dissent"carr[ies] us further

from the goal of a political system in which race no longer matters

-- a goal that the Fourteenth and Fifteenth Amendments embody, and

 34
to which the Nation continues to aspire." Shaw v. Reno, 113 S.Ct.

2816, 2832 (1993).*

It will be said that racial bloc voting is already ensconced in American political life and that courts must learn to embody in law what

is established in fact. A Constitution, however, has its aspirational as

well as descriptive aspect. It is informed by the way things ought to

be. Were the Fourteenth Amendment no more than a concession to

the racial realities of the day, Brown v. Board of Education would

have remained an untaken step. Separation of the races is no better for

America now than it was in 1954. It is a sad turn that has led the

courts to rebuild the walls they once brought down.

MICHAEL, Circuit Judge, dissenting:

Since 1980 no minority candidate has been elected to Alamance

County's five-member Board of Commissioners. Indeed, since the

Voting Rights Act was first passed in 1965, only one minority candidate has ever been elected to the Board of Commissioners. That candidate was initially appointed (not elected), and when he was first

elected after his appointment, he ran in a special election that was not

subject to Alamance County's at-large voting system. In light of this

history, I believe that members of the black community in Alamance

County would be truly surprised to learn that they enjoy the same

opportunity as white voters to elect their preferred candidates as

county commissioners. Yet, in light of this same history, the majority

_________________________________________________________________

*My good colleague suggests in dissent that the concurring opinion

fails to follow the law -- "even when it is a law that we might think

unwise or unnecessary in today's world." Of course, the district court followed the law when it found that the Alamance County system conformed fully to section 2 of the Voting Rights Act and did not operate

to deny black citizens an equal opportunity to elect candidates of their

choice. In voting to reverse the district court, it is the dissent, I respectfully suggest, that has failed to follow the law, because it has mandated

a collection of intensely race-conscious inquiries destined to result by

way of remedy in the proportional allocation of electoral districts based

on race. To pursue this course in the wake of the Supreme Court's

repeated cautions against race-conscious districting is simply not supportable.

 35
concludes that the plaintiffs have failed to demonstrate that minoritypreferred candidates are usually defeated by white bloc voting and

affirms the award of summary judgment to the County.

The majority offers two main reasons for its decision. First, the

majority believes that the plaintiffs have failed to defeat the County's

motion for summary judgment because the plaintiffs have not "proffer[ed] data from a sufficient number of elections to enable the district

court to determine whether white bloc voting usually defeats

minority-preferred candidates." Ante at 8. That is, because the plaintiffs have not proffered evidence from elections in which no minority

was a candidate, the County is entitled to judgment as a matter of law.

The majority reaches this conclusion even though the plaintiffs have

proffered election data from every election in which a minority was

a candidate, and even though the Supreme Court in Thornburg v.

Gingles, 478 U.S. 30 (1986), upheld a finding of vote dilution based

on an analysis of election data that included results from only those

elections in which a minority was a candidate and that covered only

three election years.

Second, the majority believes that even if we only consider the

election data that the plaintiffs have proffered, the plaintiffs have still

failed to establish a violation of section 2 of the Voting Rights Act,

42 U.S.C. § 1973. In particular, under the majority's approach for

determining who is and who is not a minority-preferred candidate, the

plaintiffs have failed to show that minority voters' preferred candidate

is usually defeated by white bloc voting. In reaching this conclusion,

the majority adopts a methodology that is unsound and unsupported

by precedent. For example, even though primary election results provide a means for assessing minority voter preference without the

effects of partisanship, under the majority's approach it is improper

to consider primary election data when determining who is and who

is not a minority-preferred candidate in the general election. Ante at

23-24. Thus, according to the majority, we should take raw election

data in isolation and disregard the probative value of considering general election data in conjunction with primary election data (or in conjunction with any other circumstance in most cases).

Because I believe that neither of the majority's two reasons provide

grounds for affirming the district court's grant of summary judgment,

 36
I respectfully dissent. At the very least, I believe that it is clear that

the plaintiffs have offered ample evidence showing that there is a genuine issue of material fact of whether minority-preferred candidates

are usually defeated by white bloc voting. Therefore, the district

court's order granting summary judgment should be reversed and the

case remanded for trial.

I.

The Supreme Court's decision in Gingles makes clear that the

plaintiffs have the burden of proving each of the Court's three preconditions, see Gingles, 478 U.S. at 48, including whether "the white

majority votes sufficiently as a bloc to enable it--in the absence of

special circumstances, . . . usually to defeat the minority's preferred

candidate." Id. at 51 (citations omitted). And the plurality opinion of

Justice Brennan emphasizes that "it is the status of the candidate as

the chosen representative of a particular racial group, not the race of

the candidate, that is important." Id. at 68 (Brennan, J., plurality opinion) (emphasis in original).1 Yet, the Court's decision in Gingles

notes that:

_________________________________________________________________

1 Justice Brennan's opinion on this point failed to gain a majority of the

Court, and it was joined by only Justices Marshall, Blackmun, and Stevens. Justice White, who otherwise joined Justice Brennan's opinion,

rejected the notion that the race of the candidate is irrelevant. Id. at 83

(White, J., concurring). Justice O'Connor, in an opinion joined by Chief

Justice Burger and Justices Powell and Rehnquist, agreed with Justice

White that race of the candidate might affect the overall vote dilution

inquiry. Id. at 101 (O'Connor, J., concurring). Justice White and Justice

O'Connor were concerned that ignoring the race of the candidate may

cause the successful election of a black candidate not to be counted for

purposes of identifying racial polarization. For instance, because black

voters often support the Democratic party, there was concern that the

election of a black Republican candidate would not be viewed as a

minority success. See id., 478 U.S. at 83 (White, J., concurring) ("This

is interest-group politics rather than a rule hedging against racial discrimination."); id. at 101 (O'Connor, J., concurring) (agreeing with Justice

White that "Justice Brennan's conclusion that the race of the candidate

is always irrelevant in identifying racially polarized voting conflicts with

Whitcomb [v. Chavis, 403 U.S. 124 (1971)] and is not necessary to the

disposition of this case."). Of course, the majority opinion in the present

 37
The number of elections that must be studied in order to

determine whether voting is polarized will vary according to

pertinent circumstances. One important circumstance is the

number of elections in which the minority group has sponsored candidates. Where a minority group has never been

able to sponsor a candidate, courts must rely on other factors

that tend to prove unequal access to the electoral process.

Similarly, where a minority group has begun to sponsor candidates just recently, the fact that statistics from only one or

a few elections are available for examination does not foreclose a vote dilution claim.

Id. at 57 n.25; see Jenkins v. Red Clay Consol. School Dist. Bd. of

Educ., 4 F.3d 1103, 1130 (3d Cir. 1993) ("The Supreme Court's language clearly indicates that an inability to offer statistical evidence on

a large number of elections should not foreclose a voting rights

claim.") cert. denied, 114 S. Ct. 2779 (1994); Citizens for a Better

Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987) ("Gingles

. . . suggests flexibility in the face of sparse data."), cert. denied, 492

U.S. 905 (1989).

Accordingly, the plaintiffs here, faced with the prospect of having

to establish their vote dilution claim at trial, conducted a statistical

analysis of all general and primary elections since 1972 in which a

minority candidate was on the ballot for county commissioner. In

total, the plaintiffs proffered election data from five general elections

and six primary elections extending over twenty years. The election

data included the general elections in 1974, 1976, 1980, 1984, and

1986, and the Democratic primaries in 1972, 1976, 1978, 1980, 1984,

and 1992. See Gingles, 478 U.S. at 57 ("a pattern of racial bloc voting

that extends over a period of time is more probative of a claim that

_________________________________________________________________

case turns the opinions of Justice Brennan, Justice White, and Justice

O'Connor on their collective heads. That is, whereas the Supreme Court

in Gingles was concerned with whether to count the election of a black

Republican for purposes of identifying racial polarization, the majority

holds that the plaintiffs' action cannot withstand summary judgment

because we must consider whether to count the election of white Democrats for purposes of identifying racial polarization.

 38
a district experiences legally significant polarization than are the

results of a single election").

In turn, the County proffered no election data of its own. Instead,

the County moved for summary judgment arguing that the plaintiffs'

own election data fails to support their contention that the minority

group's preferred candidates are usually defeated by bloc voting

among white voters of Alamance County. Neither before the district

court, nor in its briefs to this court, did the County argue that it was

entitled to summary judgment because the plaintiffs had only analyzed elections involving minority candidates. In essence, however,

that is what the majority has held here today.

I disagree with this result because I believe that the plaintiffs have

in fact offered sufficient evidence from which a fair assessment can

be made of whether minority-preferred candidates are usually

defeated by white bloc voting. In addition, I believe that if the County

wishes to rebut the plaintiffs' evidence of racial polarization based on

evidence from elections in which no minority was a candidate, then

the County should have the burden to produce such evidence.2 I will

elaborate on each of these points below.

A.

No court before today has ever dismissed a vote dilution claim

because the plaintiffs failed to proffer evidence of elections in which

_________________________________________________________________

2 Also, I do not share the majority's uneasiness with the plaintiffs' reliance on bivariate regression analyses. See ante at 5 n.3. If the County

wishes to challenge the plaintiffs' statistical evidence as flawed, then it

should do so, and we should refrain from criticizing the statistical evidence in the absence of such a challenge. For instance, while it may (or

may not) be true that "blacks and whites who live in integrated neighborhoods are more likely to vote for candidates of another race," id., the

County has put forth no evidence or argument on this appeal that the

plaintiffs' election data is flawed because it treated minority preference

as constant across precincts. Cf. Smith v. Clinton, 687 F. Supp. 1310,

1315 n.6 (E.D. Ark.) (three-judge court) (noting that the defendants did

not dispute the fact that a regression analysis is the "standard method for

inferring the behavior of population groups from data collected for political units") (internal quotes omitted), aff'd mem., 488 U.S. 988 (1988).

 39
no minority was a candidate. And, of course, the majority does not

expressly say that is what it is doing here. According to the majority,

it "hold[s] merely that it is insufficient to consider selectively only

those elections in which minority candidates were on the ballot, at

least where such elections are not such a substantial majority of the

total elections that a fair assessment can be made of whether the

minority-preferred candidates are usually defeated by white bloc voting." Ante at 17. Yet, the majority makes clear that it believes that

"both elections in which the candidates are of the same race and elections in which the candidates are of different races must be considered

in order to determine whether white bloc voting usually defeats the

minority-preferred candidate . . . ." Id. at 9 (emphasis added).

Of course, I agree that there must be sufficient election data presented from which a "fair assessment can be made" of the third

Gingles precondition. I cannot, however, agree that a "fair assessment" must be based on data from a "substantial majority of the total

elections." Nor can I agree that elections in which no minority was

a candidate must be considered in all circumstances.

Despite what the majority believes, there is no requirement under

section 2 of the Voting Rights Act or Supreme Court precedent that

the plaintiffs offer election data from "a substantial majority of the

total elections" in order to show that minority-preferred candidates are

usually defeated by white bloc voting. Likewise, even though "a

minority-preferred candidate may be either a minority or a nonminority," neither section 2 of the Voting Rights Act nor Supreme

Court precedent requires, as the majority claims, that we "must" consider (and plaintiffs must proffer) data from elections in which no

minority was a candidate. See ante at 9. As I have said, not only did

the decision in Gingles uphold vote dilution claims based on election

data that included only those elections in which a minority was a candidate, but the Court specifically noted that "[t]he number of elections

that must be studied in order to determine whether voting is polarized

will vary according to the pertinent circumstances." 468 U.S. at 57

n.25 (emphasis added). And no court (at least before today) has ever

said that there is a per se rule requiring that election data from elections in which no minority was a candidate "must" be proffered. Cf.

Sanchez v. Bond, 875 F.2d 1488, 1495 (10th Cir. 1989) ("We do not

believe that a per se rule against examining races that have only white

 40
candidates is implicit in Gingles.") (emphasis added), cert. denied,

498 U.S. 937 (1990).3

This makes complete sense. While minority voters might prefer a

candidate from the majority (i.e., white) group, common experience

shows that minority voters frequently prefer minority candidates. The

opposite is true as well. Gingles, 478 U.S. at 68 (Brennan, J., plurality

opinion) ("Because both minority and majority voters often select

members of their own race as their preferred representatives, it will

frequently be the case that a black candidate is the choice of blacks,

while a white candidate is the choice of whites.") (citation omitted);

Jenkins, 4 F.3d at 1126 ("experience does demonstrate that minority

candidates will tend to be candidates of choice among the minority

community").

Moreover, even though voter preference is what matters, minority

sponsorship of a candidate is the basis for determining whether a candidate is minority preferred. Of course, sponsorship can be proven in

a number of different ways, and election data is only one of them.

However, when a defendant neither argues nor proffers evidence that

_________________________________________________________________

3 The majority cites the decision in Brown v. Board of Commissioners,

722 F. Supp. 380, 391 (E.D. Tenn. 1989), for the proposition that "a

review of white/white elections as well as white/black elections is necessary to determine the existence of racially polarized voting." Ante at 13

n.7. What, however, the majority fails to say is that the district court

made this remark in the context of "this particular case." Brown, 722 F.

Supp. at 391 (providing overview of elections in Chattanooga and stating

that "blacks have . . . found themselves having to support white candidates in an effort to achieve a measure of political influence"). See also

Sanchez, 875 F.2d at 1496 (affirming district court's decision to examine

elections in which no minority was a candidate because the evidence

showed that a candidate could not receive the nomination and support of

the Democratic party without receiving minority support). Also, a court's

leeway to examine elections in which no minority is a candidate does not

mean that a court must examine such elections before a vote dilution

claim can be established, and it certainly does not mean that a plaintiff

must proffer such evidence in all cases (and on summary judgment). Cf.

Jenkins, 4 F.3d at 1129 ("district court may, in its discretion, decide to

allow the defendants to introduce evidence on which, if any, white candidates were minority-preferred") (emphasis added; footnote omitted).

 41
the minority has sponsored such a significant number of white candidates that a fair assessment can not be made without an analysis of

election data from elections in which no minority was a candidate, I

do not believe that we may require a plaintiff to proffer election data

from white/white elections before a vote dilution claim can be proven.

Indeed, when the minority's only choice is to vote for a white candidate or not to vote at all, such elections are, in general, less probative on the issue of racial polarization than elections involving both

black and white candidates. As the Fifth Circuit has said:

"[T]he evidence most probative of racially polarized voting

must be drawn from elections including both black and

white candidates." "[W]hen there are only white candidates

to choose from it is `virtually unavoidable that certain white

candidates would be supported by a large percentage . . . of

black voters.'" Thus, it is not particularly surprising--and

not particularly probative--that analysis of elections that

included only white candidates did not reveal any racial

polarization.

Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d

1109, 1119 n.15 (5th Cir. 1991) (Westwego III ) (citations omitted;

quoting Westwego I, 872 F.2d 1201, 1208 n.7 (5th Cir. 1989);

Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th

Cir. 1987), cert. denied, 492 U.S. 904 (1989)); see ante at 15 (listing

cases in which courts have held that black/white elections are more

probative than white/white elections). Therefore, if the defendant does

not bring forth evidence of particular circumstances showing that

minority voters often choose to sponsor, Gingles, 478 U.S. at 57 n.25,

and not merely vote for white candidates, I believe that "a fair assessment can be made" of the third Gingles precondition without the proffer of election data from elections in which no minority was a

candidate.

A fair assessment is just that, and the plaintiffs in this case have

offered more than sufficient election data from which we may discern

election patterns in Alamance County. The plaintiffs' election data

spans the twenty years preceding the filing of the plaintiffs' complaint

in October of 1992. During those twenty years, there were ten county

 42
commissioner elections, and of those ten elections the plaintiffs have

offered election data from five general elections and six primary elections. In other words, the plaintiffs have offered election data from a

majority of the county commissioner elections held within the two

decades preceding the filing of their complaint. I believe it is clear

that the proffer of such extensive election data as this satisfies the

plaintiffs' burden to produce sufficient election data from which a fair

assessment can be made. See, e.g., Gingles, 478 U.S. at 61 (concluding that "the District Court's approach, which tested data derived

from three election years in each district, and which revealed that

blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each

facet of the legal standard"); Uno v. City of Holyoke, 72 F.3d 973, 985

(1st Cir. 1995) ("race-conscious politics (or its absence, for that matter) can more readily be seen by producing a documentary that spans

a series of elections than by taking an isolated snapshot of a single

election").

B.

While the plaintiffs have the burden of proving the Gingles preconditions, nothing prevents the defendant from offering election data of

its own. And, as I have said, black/white elections are generally more

probative than white/white elections. It therefore follows that if the

plaintiffs have proffered election data sufficient to provide a "fair

assessment" of the third Gingles precondition, and that election data

only involves black/white elections, the defendant is free to counter

with evidence of election data from elections in which no minority

was a candidate. As the Third Circuit has said:

We . . . do not believe that plaintiffs are required to present evidence on white versus white elections if they do not

believe that those elections are probative. If the defendants

want to introduce evidence on those elections in an attempt

to rebut the plaintiffs' evidence of cohesiveness or white

bloc voting, they may do so. Nevertheless, because white

versus white elections tend to be less probative, there may

still be cases in which "[t]he evidence of polarized voting

. . . is so strong . . . that it cannot be overcome even when

 43
all reasonable inferences are accorded to the evidence of

elections involving only white candidates."

Jenkins, 4 F.3d at 1128-29 (quoting Smith, 687 F. Supp. at 1317); see

Uno, 72 F.2d at 988 & n.8 (noting that when district court only examined elections involving minority candidates, "evidence exhumed

from `white only' elections may still be relevant in assessing the totality of the circumstances in a vote dilution case, especially if it tends

to rebut the evidence of cohesion or white bloc voting extracted from

`mixed' elections") (emphasis added; citation omitted).

In this case, the County offered no evidence from white/white elections. And, in fact, the County has not even argued that such elections

are probative. Accordingly, the majority is simply wrong to uphold

the district court's decision granting summary judgment because the

plaintiffs have not offered evidence from elections in which no minority was a candidate.

II.

The majority is also wrong to conclude that if we only consider the

election data that the plaintiffs have proffered from black/white elections, the plaintiffs have still failed to establish a violation of section

2 of the Voting Rights Act, 42 U.S.C. § 1973. Ante at 8. In particular,

I believe that the majority's (and the district court's) methodology for

determining who is and who is not a minority-preferred candidate is

fundamentally flawed and that the County is not entitled to summary

judgment when the election data put forth by the plaintiffs is properly

considered.

Initially, I emphasize that the majority opinion does not squarely

address the issue of the procedural posture of this case. We are hearing this case on appeal from the district court's grant of summary

judgment in favor of the County, and not after a trial on the merits.

Therefore, it is the moving party (i.e., the County) that has the burden

of showing that there is no genuine issue of material fact requiring a

trial, and we must draw all reasonable inferences in favor of the nonmoving party (i.e., the plaintiffs). In addition, while the plaintiffs here

bear the ultimate burden of persuasion on their vote dilution claim,

the County must show that there is an absence of evidence to support

 44
the plaintiffs' claim in order to succeed on summary judgment. See,

e.g., Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.

Supp. 1022, 1030 (D. Md. 1994) (three-judge court) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). And while we have

previously said that plaintiffs in a vote dilution case cannot "pass the

summary judgment threshold" unless they establish all the Gingles

preconditions, McGhee v. Granville County, 860 F.2d 110, 117 (4th

Cir. 1988) (internal quotes and citation omitted), I believe that the

plaintiffs here have adequately established the Gingles preconditions

for purposes of defeating the County's motion for summary judgment.4

Moreover, because we are reviewing this case on summary judgment, I do not believe that the district court's factual findings are entitled to deference. The district court assessed a paper record, and we

should, as we normally do on summary judgment, review the court's

findings de novo. Cf. ante at 22-23, 27-28 (upholding district court's

factual findings under the clearly erroneous standard of Rule 52(a) of

the Federal Rules of Civil Procedure).5 

_________________________________________________________________

4 As I have noted, the County has not even argued that the plaintiffs

must submit election data from white/white elections, nor has the County

submitted any such data. In short, the County has not shown that the

absence of data on white/white elections means that there is insufficient

evidence to support the plaintiffs' vote dilution claim. Therefore, under

basic summary judgment principles, I am at a loss as to how the majority

can conclude that the County is entitled to summary judgment because

the plaintiffs have not proffered election data from white/white elections.

5 The Court in Gingles did not discuss what level of deference an

appellate court is to accord a district court's factual findings on summary

judgment. The Court did, however, stress that because of the fact intensive nature of a vote dilution claim, a district court's factual findings

made after trial are subject to the clearly erroneous standard of Rule

52(a). As the Court said:

We reaffirm our view that the clearly-erroneous test of Rule

52(a) is the appropriate standard of appellate review of a finding

of vote dilution. As both amended § 2 and its legislative history

make clear, in evaluating a statutory claim of vote dilution

through districting, the trial court is to consider the "totality of

the circumstances" and to determine, based "upon a searching

practical evaluation of `the past and present reality,'" [S. Rep.

 45
Of course, the legal standards that the district court applied are not

entitled to any deference. And even if there had been a trial on the

merits in this case, we would still have the "power to correct errors

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

law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law." Gingles, 478 U.S. at 79 (internal quotes and citations omitted). Accordingly, I turn now to the

errors of law that infected the district court's decision in this case--

errors that the majority has simply compounded.

A.

The plaintiffs challenge the methodology employed by the district

court on several grounds. First, the plaintiffs argue that the district

court erred "[b]y grouping together white candidates for whom black

voters voted only in the absence of other alternatives with candidates

who were enthusiastically and overwhelmingly supported by black

voters (and who were, with one exception, black) . .. ." Appellants'

Brief at 16. According to the plaintiffs, the fact that many white Democratic candidates received substantial electoral support from black

voters in general elections does not show that these candidates are

minority preferred. Rather, it is a reflection of the fact that when the

only electoral choice is to vote for a white Republican or a white

Democrat, blacks in Alamance County usually choose the white Dem-

_________________________________________________________________

No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 208 (footnote omitted)], whether the political

process is equally open to minority voters. "`This determination

is peculiarly dependent upon the facts of each case,'" Rodgers [v.

Lodge, 458 U.S. 613, 621 (1982)], quoting Nevett v. Sides, 571

F.2d 209, 224 (5th Cir. 1978), and requires "an intensely local

appraisal of the design and impact" of the contested electoral

mechanisms. 458 U.S. at 622.

Gingles, 478 U.S. at 79 (emphasis added). In the absence of a trial, it is

difficult to imagine how the district court can make"a searching practical

evaluation of `the past and present reality'" to determine who is and who

is not a minority-preferred candidate. Without such an evaluation, there

is no reason or basis for deferring to the district court's factual findings

under the clearly erroneous standard.

 46
ocrat. Therefore, the district court should have conducted an individualized assessment of each candidate that received a majority of the

minority's support in the general election to determine if that candidate was truly minority preferred. For example, the district court

should have examined primary election results (nominating elections

where the effects of partisan voting are minimized) to determine the

black community's true level of support for a particular candidate.

Second, while the district court failed to examine primary elections

to help determine who is and who is not minority preferred, the plaintiffs argue that the district court erred because it equated success in

primary elections with success in general elections. This, according

to the plaintiffs, is wrong because "winning the primary does not

place the winner in office." Id. at 25.

Finally, the plaintiffs believe that the district court erred because it

failed to discount the three election victories of Jack O'Kelley, the

only black candidate ever elected to Alamance County's Board of

Commissioners. Id. at 26. In particular, the plaintiffs contend that the

district court should not have counted O'Kelley's election victories

because O'Kelley first gained office by appointment, not election. In

other words, unlike every other county commissioner, O'Kelley has

always been an incumbent. Thus, the factual circumstances surrounding his election victories are not typical, and they provide little guidance for determining whether white bloc voting usually defeats the

minority's preferred candidate.

The majority disagrees with much of what the plaintiffs argue,

though to its credit the majority does correctly recognize that "primary and general elections results should not be aggregated for purposes of determining whether black-preferred candidates are `usually'

successful . . . ." Ante at 27. Thus, the majority evidently agrees with

the plaintiffs that even though a minority-preferred candidate wins in

the primary, this success alone does not count for purposes of determining whether the minority is usually able to elect its preferred candidates to office. And I too agree on this point.

Nevertheless, I cannot agree with the majority's conclusions with

respect to the plaintiffs' other assigned errors. According to the

majority, the district court actually "erred in plaintiffs' favor by not

 47
treating as `black-preferred' some . . . candidates who placed second

or third among black voters (and with a significant majority of black

votes) behind an unsuccessful candidate who was the first choice of

black voters." Ante at 17-18. Also, the majority believes that the district court did not err when it failed to conduct an individualized

determination of candidates who placed second or third among minority voters when the minority's first choice was successful. Ante at 22-

23. Furthermore, the majority rejects the plaintiffs' argument that primary election results provide a basis to help determine whether a candidate is minority preferred in the general election. See ante at 23-26.

And the majority believes that the district court did not err in giving

full weight to the three election victories of Jack O'Kelley. Ante at 27.

I believe that in reaching these conclusions the majority has seriously misread the Supreme Court's decision in Gingles, our own precedent, and precedent from our sister circuits. As I explain below, the

critical error that both the majority and the district court make is to

isolate election data from the actual circumstances surrounding an

election and then to treat such data as dispositive for purposes of

determining who is a minority-preferred candidate (though, under

most circumstances, the majority does not treat the data as dispositive

for purposes of determining who is not a minority-preferred candidate).6

Granted, election data (taken in isolation) provides some guidance in

making a determination of who is and who is not a minority-preferred

candidate. However, both section 2 of the Voting Rights Act and

Gingles demand a more searching inquiry than mere reference to the

percentage of minority voter support that a candidate has received,

particularly when the candidate is not a minority and an at-large voting system is employed. At the very least, we must examine the particular circumstances of each case to discern whether the electoral

support that minority voters give a candidate (especially in general

elections) truly reflects minority voters' preference or whether such

support is itself a manifestation of a structural inequality in the challenged voting system.

_________________________________________________________________

6 When questioned at his deposition, the plaintiffs' expert fell into

somewhat the same trap as the majority and the district court, acknowledging minority-preferred candidates based on election data taken in isolation.

 48
1.

We have covered much of this ground before. See Collins v. City

of Norfolk, 883 F.2d 1232 (4th Cir. 1989) (Collins II), cert. denied,

498 U.S. 938 (1990).7 At-large voting schemes may work to create

the appearance of minority preference where none actually exists

because once the number of seats up for election exceeds the number

of candidates that minority voters "prefer," minority voters face the

choice of either voting for a candidate that they do not actually prefer

or not voting at all. Thus, the fact that a candidate receives a majority

of the minority vote does not automatically make that candidate a

minority-preferred candidate for purposes of the third Gingles precondition. As we explained in Collins II: 

The mere election of a candidate who appears to have

received votes from more than fifty percent of minority ballots does not count as a minority electoral success, when

each ballot may contain votes for more than one candidate.

In such a situation, if there were other candidates, preferred

by a significantly higher percentage of the minority community, who were defeated in the same election, then it cannot

_________________________________________________________________

7 In Collins II the minority plaintiffs challenged the at-large voting system used to elect the City Council in Norfolk, Virginia. We explained

that "`[t]he essence of a § 2 claim is that a certain electoral law, practice,

or structure interacts with social and historical conditions to cause an

inequality in the opportunities enjoyed by black and white voters to elect

their preferred candidates.'" Id. at 1236 (quoting Gingles, 478 U.S. at

47). We then stated that "[t]he proper identification of minority voters'

`representatives of their choice' is critical." Id. at 1237. And, we recognized that the plaintiffs' primary complaint was not that minority voters

were unable to elect their first choice to the city council, but rather that

the at-large voting system prevented minority voters from electing a second preferred candidate as well. Id. at 1240 ("In the context of this case

it is necessary to apply Gingles' teaching to the black community's

attempt to elect a second black councilman."). For this reason alone, the

majority is wrong to say that Collins II left open the question of how to

treat second- and third-place finishers when the minority's first choice is

successful. See ante at 22. Because minority voters in Norfolk were able

to elect one candidate, Collins II clearly addresses the situation where

there is a successful minority-preferred candidate.

 49
fairly be said that the minority community has successfully

elected representatives of its choice. Each situation must be

reviewed individually to determine whether the elected candidates can be fairly considered as representatives of the

minority community. The presumption must be that they

cannot, if some other candidate has received significantly

more minority votes.

883 F.2d at 1238 (emphasis added; quoting Collins IV, 816 F.2d 932,

937 (4th Cir. 1987)).

Collins II thus demands a two-step inquiry. In the first step we

decide whether there is a presumption that a candidate is or is not

minority preferred. When an unsuccessful candidate receives a significantly higher percentage of the minority vote than candidates who

win election with a majority of the minority vote, the elected candidates are presumed not to be minority preferred. When, however, an

unsuccessful candidate receives a percentage of the minority vote

which is not significantly higher than that of the elected second- and

third-place finishers, we presume that the second- and third-place finishers are minority preferred. Either way, however, the election data

only creates a presumption.

In the second step of the inquiry the district court must determine

whether the presumption is supported by other facts. The court must

make an individualized determination of "whether the elected candidates can be fairly considered as representatives of the minority community." Depending on the outcome of the first step, there may be a

presumption for or against finding that a candidate is minority preferred, but regardless of the presumption the district court must make

an individualized determination in "[e]ach situation." Such an individualized determination is required, because as both Congress and the

Supreme Court recognize, "whether the political processes are equally

open depends upon a searching practical evaluation of the past and

present reality, and on a functional view of the political process." S.

Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 208; Gingles, 478 U.S. at 45 & 79.

The majority recognizes that Collins II demands a two-step inquiry.

See ante at 19. The majority, however, misconstrues the inquiry.

 50
Under the first step, according to the majority, a second- or thirdplace finisher is minority preferred if the unsuccessful first choice

received a percentage of the minority vote which is not significantly

higher than that of the elected second- and third-place finishers. Id.

In this situation, the majority believes that a district court need not

(and evidently cannot) proceed to the second step of the inquiry in

order to make the individualized determination required under the Act

and Gingles. Id. at 20 ("Because[unsuccessful candidate] Morris'

support among black voters was not `significantly higher' than [successful candidate] Long's, the district court appears to have erred in

not automatically treating Long as a black-preferred candidate.")

(emphasis added).

Needless to say, cutting off the inquiry at the first step makes a

court's "searching practical evaluation of the past and present reality"

dependent exclusively upon election results taken in isolation. Yet,

because at-large voting systems often fail to provide an accurate view

of the political process (among other things, they may create the

appearance of minority preference), I believe that a court must proceed to the second step of the inquiry even when"the unsuccessful

first choice among minority voters did not receive a`significant

higher percentage' of the minority community's support."

Of course, when the level of support received by the unsuccessful

first-place finisher among minority voters is "significantly higher"

than the support given the second- and third-place finishers by those

same voters, the majority agrees that only a presumption is created

against finding that the second- and third-place finishers are minority

preferred. Id. at 21 (asserting that "we held in Collins II (sic) only that

successful candidates who receive more than 50% of the black vote

should not automatically be viewed as a black-preferred candidate if

they receive significantly less support from black voters than another,

losing candidate, not that they should never be treated as blackpreferred") (emphasis in original). I fail, however, to discern any reason for creating the presumption (and proceeding to the second step)

only when an unsuccessful first-place finisher receives a significantly

higher percentage of the minority vote, and neither the Act, nor

Gingles, nor Collins II supports the majority's conclusion to the contrary.

 51
For much the same reason, the majority is also wrong to conclude

that "any candidate who receives a majority of the minority vote and

who finishes behind a successful candidate who was the first choice

among the minority voters is automatically to be deemed a blackpreferred candidate . . . ." Ante at 22 (emphasis in original). Indeed,

under the majority's theory even when a successful minority-preferred

candidate garners significantly higher minority support than successful second- and third-place finishers (who receive over 50 percent of

the minority vote), a district court must automatically treat the successful second-and third-place finishers as minority-preferred candidates. And, in fact, the majority goes so far as to conclude that even

though a candidate fails to gain a majority of the minority vote, there

is a presumption that the candidate is minority preferred provided that

the candidate would have won a seat in an at-large election among

black voters. Id. at 22 (stating that "[c]andidates who receive less than

50% of the minority vote, but who would have been elected had the

election been held only among black voters, are presumed also to be

minority-preferred candidates, although an individualized assessment

should be made in order to confirm that such a candidate may appropriately be so considered"). That has never been the law, nor should

it be.8

_________________________________________________________________

8 The flaw in the majority's approach is illustrated by the following

hypothetical. An at-large election for four slots is held. There are eight

candidates. Candidate number 1 wins with 99 percent of the minority

vote; candidate number 2 loses with 95 percent of the minority vote; candidate number 3 wins with 51 percent of the minority vote; candidate

number 4 wins with 20 percent of the minority vote; candidate number

5 loses with 15 percent of the minority vote; candidate number 6 loses

with 10 percent of the minority vote; candidate number 7 loses with 5

percent of the minority vote; and candidate number 8 wins with 3 percent

of the minority vote. According to the majority, we must automatically

treat candidate number 3 as minority preferred even though that candidate received far less support than candidate number 1 or candidate number 2. Also, according to the majority, there is a presumption that

candidate number 4 is minority preferred even though that candidate

received the support of only one in five minority voters. That cannot be

right. It also directly conflicts with our holding in Collins II, because as

I have previously noted, see supra at 49 n.7, in Collins II (as in the above

hypothetical), the minority was successful in electing its first candidate

of choice. See 883 F.2d at 1240.

 52
The only way that the majority can reach these conclusions is to

disregard our clear language in Collins II and other precedent

throughout the circuits. These are decisions that hold that a successful

candidate is not automatically minority preferred merely because that

candidate receives more than 50% of the minority vote. And these are

decisions that either hold or assume that a candidate who receives less

than 50% of the minority vote cannot (by definition) be minority preferred. As we stated in Collins II: 

The district court's error in finding successful candidates

who received over 50% of the minority vote to be the chosen representatives of the minority community, despite the

fact that other candidates received a much greater percentage of the minority vote, is not simply technical or semantic.

. . .

A moment's reflection shows how the district court's

method of identifying the black community's representatives of choice defeats a primary purpose of the Act. In

1974, 21 candidates sought the 4 open seats on the council.

In 1980, 12 candidates vied for 3 open seats. In 1974, each

voter--black and white--could cast four votes and in 1980

three votes. If black voters exercised their right to cast all

of their allotted votes, they ran the risk that their second and

third choices would be declared their preferred candidates.

Only by single-shot voting--withholding all votes save for

their first choice, and forfeiting the opportunity to cast all

votes allotted to each voter--could the minority be assured

that its second and third choices would not be declared its

preferred candidates. In contrast, under the at-large system,

the white voters can freely cast all votes allotted to them

without suffering the penalty imposed on the minority voters. The district court's construction of the Act defeats the

congressional purpose of assuring that the opportunity to

participate in the electoral process is open to all citizens.

We are aware of no case that supports the district court's

construction of the Act.

883 F.2d at 1239-40 (emphasis added); see NAACP v. Niagara Falls,

65 F.3d 1002, 1019 (2d Cir. 1995) ("a candidate cannot be `minority-

 53
preferred' if that candidate receives support from fewer than 50% of

minority voters.") (emphasis added); id. ("even if a candidate receives

50% or more of the minority vote, a court need not treat the candidate

as minority-preferred if another candidate receives significantly

higher support"); Jenkins, 4 F.3d at 1126 ("it is important to look

beyond whether a white candidate received a majority of the minority

community's vote and determine whether that white candidate is truly

the minority community's representative of choice"); Campos v. City

of Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988) (rejecting the argument that "any time a candidate gets a majority of the minority votes

he is the `chosen representative' of the minority group"), cert. denied,

492 U.S. 905 (1989). See also Uno, 72 F.3d at 989 ("[D]etermining

whether racial bloc voting exists is not merely an arithmetic exercise

that consists of toting up columns of numbers, and nothing more. To

the contrary, the district court should not confine itself to raw numbers, but must make a practical, commonsense assay of all the evidence.") (citations omitted).

The effect of the majority's unprecedented decision will be to

undermine the Voting Rights Act. After today, structural inequalities

that may be at work in at-large voting systems will be masked by the

structure itself, perpetuating those very inequalities that the Act is

intended to remedy. The reason for this is simple. As I have

explained, at-large voting systems may work to create the appearance

of minority preference where none actually exists. Thus, to allow

election results alone to dictate whether a candidate is minority preferred is to validate the structural inequalities which may be present

in at-large voting systems based on the system itself. That is circular

reasoning, I believe.

We are bound to follow Collins II. In sum, therefore, we should

hold that a district court must always make an individualized determination of whether any second- or third-place finisher who receives a

majority of the minority vote is actually minority preferred. When a

minority-preferred candidate (whether successful or not) receives a

significantly higher percentage of the minority vote, we must presume

that the second- or third-place finisher who receives a majority of the

minority vote is not minority preferred. When a minority-preferred

candidate (whether successful or not) does not receive a significantly

higher percentage of the minority vote, we must presume that the sec-

 54
ond-or third-place finisher is minority preferred, provided that the

second- or third-place finisher received a majority of the minority

vote. And when any candidate receives less than a majority of the

minority vote, that candidate can never be deemed minority preferred.

2.

I also believe that it is clear that when making an individualized

determination of who is and who is not a minority-preferred candidate, a district court must examine the particular facts and circumstances surrounding each election and candidate in order to ascertain

which, if any, candidate or candidates the minority community has

sponsored. See Gingles, 478 U.S. at 57 n.25. In other words, the district court must look at the totality of the circumstances in each situation.

There is nothing unique about this approach, and depending on the

facts, it may help or hurt plaintiffs' ability to prevail in a vote dilution

case. See, e.g., Uno, 72 F.3d at 989 (criticizing district court for failing to take into account city's "rapidly changing political environment" which may have allowed the minority group to sponsor

successful candidates); Jenkins, 4 F.3d at 1129 ("In deciding which,

if any, of the white candidates were minority preferred, the court must

engage in a detailed, practical evaluation of the extent to which any

particular white candidate was, as a realistic matter, the minority voters' representative of choice."); Collins II , 883 F.2d at 1238 ("in addition to the bare statistics, it is appropriate to consider testimony

revealing how political observers and the candidates themselves

viewed the city's claim that [the candidates] were the minority's preferred candidates and representatives of choice"); Smith, 687 F. Supp.

at 1316-17 (emphasizing that "considerable weight" should be given

to elections between black and white candidates, but still examining

multiple factors to determine minority voters' representatives of

choice).

Because we should examine the totality of the circumstances, a district court should not hesitate to look at any evidence that might be

probative. Accordingly, I can not agree with the majority that primary

election results do not bear on the question of who is and who is not

a minority-preferred candidate. See ante at 23-26. Cf. Niagara Falls,

 55
65 F.3d at 1019 ("When a candidate receives support from 50% or

more of minority voters in a general election, a court need not treat

the candidate as minority-preferred when another candidate receiving

greater support in the primary failed to reach the general election.");

Sanchez, 875 F.2d at 1496 (examining totality of the circumstances,

including "testimony to the effect that no candidate could secure the

Democratic slot in county races without the support of a group of Hispanics that included some of the plaintiffs"). Moreover, I believe that

while the race of the candidate is not dispositive, it too is a fact which

in the totality of the circumstances the court may consider. See

Jenkins, 4 F.3d at 1129. Again, "whether the political processes are

equally open depends upon a searching practical evaluation of the

past and present reality, and on a functional view of the political process." S. Rep. No. 417, 97th Cong., 2d Sess. 30 (1982), reprinted in

1982 U.S.C.C.A.N. 177, 208; Gingles, 478 U.S. at 45 & 79. A district

court should not therefore refrain from examining election data from

primaries in order to help determine who is and who is not a minoritypreferred candidate. Nor should the district court ignore the fact that

minority voters often support minority candidates.

When, for example, a white candidate fails to gain a majority of the

minority vote in the primary election (yet still wins nomination), the

fact that such a candidate subsequently gains a majority of the minority vote in the general election is of minimal probative value. This is

especially true when minority voters strongly support a losing minority candidate in the primary election process.9 Simply put, while the

majority may be correct to say that minority voters do not "take their

marbles and go home whenever the candidate whom they prefer most

in the primary does not prevail," ante at 24, the requirements of the

_________________________________________________________________

9 Obviously, while we should treat the defeat of a minority-preferred

candidate in a primary as a defeat for purposes of determining whether

Gingles' third precondition has been met, we should not treat the success

of a minority-preferred candidate in receiving his or her party's nomination as a success for purposes of the same inquiry. Only if a minoritypreferred candidate is actually elected has the minority succeeded in the

electoral process. Winning the primary is all to the good, but without

winning the general election, white majority bloc voting may have still

succeeded in defeating the minority-preferred candidate or candidates.

 56
Voting Rights Act are not met if "[c]andidates favored by blacks can

win, but only if the candidates are white." Smith, 687 F. Supp. at 1318.10

3.

As a district court must examine the totality of the circumstances

to determine who is and who is not a minority-preferred candidate, a

district court must also examine whether "special circumstances" have

resulted in a minority-preferred candidate winning a particular election or elections. Gingles, 478 U.S. at 51 & 57. In such a case, a claim

of vote dilution may still succeed because a pattern of racial bloc voting may still result in the defeat of minority-preferred candidates

under normal election conditions. See id. at 57 ("the success of a

minority candidate in a particular election does not necessarily prove

that the district did not experience polarized voting in that election;

special circumstances, such as the absence of an opponent, incum-

_________________________________________________________________

10 In Jenkins the Third Circuit outlined the following non-exhaustive

list of factors that a court should examine when deciding whether a white

candidate may properly be considered minority preferred:

One relevant consideration is the extent to which the minority

community can be said to have sponsored the candidate. In

determining whether the minority community sponsored the candidate, the court should look to the level of minority involvement

in initially advancing the particular candidate and in conducting

or financing that candidate's campaign.

Additionally, the attention which the candidate gave to the

particular needs and interests of the minority community, including the extent to which the candidate campaigned in predominately minority areas or addressed predominately minority

crowds and interests, may be relevant factors.

Another relevant consideration would be the rates at which

black voters turned out when a minority candidate sought office

as compared to elections involving only white candidates.

Finally, bearing in mind the disincentives that may exist for

minority candidates to seek office, the extent to which minority

candidates have run for office and the ease or difficulty with

which a minority candidate can qualify to run for office may be

relevant considerations.

4 F.3d at 1129 (citations omitted).

 57
bency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest") (footnote omitted).

Here, for example, I believe that the district court erred when it

counted as minority electoral success all three election victories of

black candidate Jack O'Kelley. At the very least the district court

should have discounted O'Kelley's first election victory in 1974. That

election and the candidacy of O'Kelley were atypical for two reasons.

First, O'Kelley was initially appointed (not elected) to fill a vacant

slot on the Board of Commissioners. He thus ran as an incumbent

even though he had never been elected. Second, and more importantly, the 1974 general election was both a special election for the

seat to which O'Kelley had previously been appointed, and it was an

at-large election for two other seats on the Commission. And, of

course, O'Kelley ran in the special election, not the at-large election.

Thus, I would hold that as a matter of law O'Kelley's incumbency,

coupled with his appointment and the unique nature of his 1974 election, constitute special circumstances requiring that we discount this

election victory.

As for O'Kelley's second and third elections in 1976 and 1980, it

may or may not be appropriate to count these elections as instances

where the minority was successful in electing its preferred candidate.

Because of the odd nature of the 1974 election, O'Kelley was forced

to run for reelection after only two years (not the normal four years).

Accordingly, there is evidence that "special circumstances" exist that

also might require us to discount O'Kelley's 1976 election. As for the

1980 election, the effects of O'Kelley's initial appointment, coupled

with his incumbency, may still persist. And, as the Court in Gingles

expressly recognizes, incumbency may constitute a special circumstance in certain situations. 478 U.S. at 57. Accordingly, because we

hear this case on an appeal from summary judgment, I would hold

that there are genuine issues of material fact as to whether O'Kelley's

second and third election victories should be counted for purposes of

Gingles' third precondition. These fact issues should be resolved at

trial, after the district court has examined the totality of the circumstances surrounding O'Kelley's second and third election victories.

B.

In light of the proper methodology described above, I turn now to

examine the election data that the plaintiffs have proffered. Of course,

 58
because there has been no trial, and thus no "individual determinations" of who is and who is not a minority-preferred candidate, the

district court's grant of summary judgment should be reversed for this

reason alone. In addition, even if we merely examine the election

data, I believe it clear that the presumptions we recognized as appropriate in Collins II indicate that minority-preferred candidates have

rarely been successful. I would therefore hold that there is a genuine

issue of material fact as to whether minority-preferred candidates are

usually defeated by white bloc voting and that the case should be

remanded for trial.

The 1972 Election:

In 1972 Morris (a black candidate) received 98% of the black vote

in the Democratic primary but was defeated nonetheless. Long (a

white candidate) received 84% of the black vote and was nominated.

No other candidate received a majority of the minority vote. Thus,

assuming that 98% of the vote is not "significantly higher" than 84%

of the vote, there is a presumption that we have two minoritypreferred candidates--one of whom we know lost (Morris). Because

neither party has proffered election data from the 1972 general election, it would appear that we cannot determine whether Long was successful or not in the general election. However, candidate Long also

ran in the 1974 election. It is thus apparent that Long was not elected

in 1972. Accordingly, we may presume that minority voters were not

able to elect either of their preferred candidates in 1972.

The 1974 Election:

The parties have failed to provide the primary results from the

1974 Democratic primary, but Newlin (a white candidate) won the

general election with 99% of the black vote, and Long lost with 99%

of the black vote. I will therefore count Newlin as a successful

minority-preferred candidate and Long as an unsuccessful minority

candidate (though again the record is incomplete on this point). Also,

as I have said, O'Kelley's election is not counted because he had

recently been appointed to the Board of Commissioners, and he was

running to fill a single vacant seat. Thus, as of 1974 there is a presumption that there had been four minority-preferred candidates, one

candidate who was elected and three candidates who were not.

 59
The 1976 Election:

In 1976 only O'Kelley received the support of a majority of black

voters in the Democratic primary election. Therefore, he is the only

candidate that should be presumed minority preferred. But again,

because O'Kelley did not serve a full term after his 1974 election, it

may be inappropriate to count his success in the general election.

Thus, as of 1976 there still had been only four minority-preferred candidates, only one of whom was elected.

The 1978 Election:

In the 1978 Democratic primary, Harris (a black candidate)

received 78% of the black vote but was not nominated, and Newlin

(a white candidate) received 60% of the black vote and was nominated. The majority does not disagree that Harris's support among

minority voters was significantly higher than Newlin's support. See

ante at 20-21. In addition, the district court reached the same conclusion. We should therefore presume that there was only one minoritypreferred candidate in 1978 (Harris). Because he was unsuccessful, as

of 1978 there had been five minority-preferred candidates, one candidate who was elected and four candidates who were not.

The 1980 Election:

In the 1980 Democratic primary, O'Kelley received 99% of the

black vote and was nominated, and Fleming (a white candidate)

received 57% of the black vote but was not nominated. No other candidate received a majority of the minority vote in the primary. Thus,

for purposes of summary judgment I would not count either O'Kelley

or Fleming as minority preferred. The effects of O'Kelley's initial

appointment (coupled with his incumbency) may still persist, though

less so than in 1974 and 1976. And Fleming did not receive "significantly" close to the same amount of support as O'Kelley. Accordingly, as of 1980, there remained five minority-preferred candidates,

one candidate who was elected and four candidates who were not.

The 1984 Election:

In the 1984 Democratic primary, Freeman (a black candidate)

received 98% of the black vote and was nominated. Paris (a white

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candidate) received 50% of the black vote but was not nominated.

Because Freeman's minority support was significantly higher than

Paris's, I would presume that Paris was not a minority-preferred candidate. In the general election, Freeman lost. Therefore, as of 1984

there had been six minority-preferred candidates, one who was

elected and five who were not.

The 1986 Election:

The parties have not provided primary results for 1986. In the general election, however, Bennett (a white candidate) won with 99% of

the black vote. I will therefore count him as a successful minoritypreferred candidate. However, Morris (a black candidate) lost the

general election, though he got 57% of the black vote. Although Morris is a minority and received a majority of the minority vote, I will

nonetheless presume that he is not a minority-preferred candidate

because Bennett received significantly higher support. Therefore, as

of 1986 we should presume that there had been seven minoritypreferred candidates, two who were elected and five who were not.

The 1992 Election:

In the 1992 Democratic primary, Torain (a black candidate)

received 74% of the black vote in the primary but was not nominated.

No one other candidate received a majority of the black vote. I thus

presume that Torain was the only minority-preferred candidate in

1992.

In total, therefore, we should presume that there have been eight

minority-preferred candidates, two who were elected and six who

were not. Accordingly, based only upon the election data proffered,

I believe that the County is not entitled to summary judgment. See

Gingles, 478 U.S. at 75 ("the language of§2 and its legislative history

plainly demonstrate that proof that some minority candidates have

been elected does not foreclose a §2 claim"). And, I reemphasize, this

analysis only shows which candidate (whether black or white) the

court should presume to be minority preferred. An individual determination as to each candidate should be made after trial to ensure that

all minority-preferred candidates have been properly identified.

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* * * *

It is no doubt true that we may not (and should not) simply assume

that "`voters of a particular race, because of their race, "think alike,

share the same political interests, and will prefer the same candidates

at the polls".'" Ante at 29 (quoting Miller v. Johnson, 115 S. Ct. 2475,

2486 (1995) (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993))).

Some black voters may prefer white candidates, some white voters

may prefer black candidates, and most voters (I would hope) may not

care if their preferred candidate is black or white. Still, a particular

voting system may work to prevent black voters from having the

same opportunity to elect their chosen representatives as white voters,

and such a system violates the law. See Shaw, 509 U.S. at 652 (recognizing that a vote dilution claim is "analytically distinct" from a claim

that the state has used race as a basis for separating voters into districts). Accord Miller, 115 S. Ct. at 2485-86.11

Here, the plaintiffs have proffered sufficient evidence to defeat the

County's motion for summary judgment because that evidence shows

_________________________________________________________________

11 Evidently, however, under the views expressed in the concurring

opinion such a system would not violate the law. Of course, to reach that

conclusion we would have to read the Voting Rights Act out of existence, something I do not believe that the Supreme Court has done in

Bush v. Vera, 116 S. Ct. 1941 (1996), Shaw, supra, or Miller, supra.

Indeed, I know of nothing unconstitutional about Congress forbidding

electoral schemes that "are not equally open" and that operate to provide

minority members with "less opportunity than other members of the electorate to participate in the political process and to elect representatives

of their choice." 42 U.S.C. § 1973(b). Likewise, there is nothing unconstitutional about requiring the trial court "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." Gingles, 478 U.S. at 79 (citation and

internal quotes omitted). While we, as the appellate court, might therefore be faced with hard questions on review (though I doubt that they are

"impenetrable" ones), we must nonetheless decide whether the trial court

has correctly followed the law -- even when it is a law that we might

think unwise or unnecessary in today's world. And I must respectfully

differ with my concurring colleague if he regards that as an "intensely

race-conscious approach." See ante at 32.

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that a genuine question of fact exists as to whether the at-large

method for electing commissioners in Alamance County deprives

black voters of the same opportunity to elect representatives of choice

as is enjoyed by white voters. The County may ultimately prevail on

that question, but without a trial neither we, nor the County, nor the

citizens of Alamance will know. Again, I respectfully dissent.

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