# United Stat es Court of Appeals For the First C ircuit

No. 02-2204 HAROLD METTS; JEAN WIGGINS; BRYAN EVANS; STEPHANIE CRUZ;

URBAN LEAGUE; NAACP - PROVIDENCE; BLACK AMERICAN CITIZENS POLITICAL ACTION COMMITTEE,

Plaintiffs, Appellants,

v. WILLIAM J. MURPHY, Speaker of the House of Representatives; ROGER N. BEGIN, in his official capacity as State Board of Elections Chairman; MATTHEW A. BROWN, Secretary of State; JOSEPH A. MONTALBANO, Senate Majority Leader,

Defendants, Appellees, DONALD L. CARCIERI, Governor; CHARLES FOGARTY, Lt. Governor and Presiding Officer of the Senate,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, Chief U.S. District Judge ]

Before Selya, Circuit Judge , Stahl, Senior Circuit Judge , and Lynch, Circuit Judge . Anita Hodgkiss , Lawyers' Committee for Civil Rights Under Law , with whom Sunil R. Kulkarni , Morrison & Foerster LLP , Kelli Reynolds , NAACP Legal Department , and Bruce G. Pollock were on brief, for appellants.Joseph M. Fernandez and Goldenberg & Muri LLP on brief for

Rhode Island Affiliate, Amer ican Civil Liberties Union, amicus curiae. Ma rlene Twaddell on brief for Puerto Rican Political Act io n Committee and Direct Action for Rights andEquality, amici curiae. John A. Tarantino , with whom Patricia K. Rocha , Victoria M. Almeida , and Adler Pollock & Sheehan P.C. were on brief, for appellee Senate Majority Leader. RichardB. Woolleyand Thomas A. Palombo , Assistant Attorneys General, on brief for appellee Secretary of State. NormandG. Benoit , Eugene G. Bernado, II and Partridge Snow & Hahn LLP on brief for appellee Speaker of the House of Representatives. RaymondA. Marca cci o on brief for appellee Chairman of the State Board of Elections.

October 28, 20031 While the loss of the incumbent, Charles D. Walton, in

Senate District 9 is not part of the plaintiffs' complaint, we take judicial notice of this electoral outcome. The fact of his loss is undisputedand has been referred to by the parties. It is also an easy inference from the complaint that the African-American voters' candi date of choice would lose after and as a result of the redistricting process. -3-

LYNCH, Circuit Judge . A group of African-American voters andrelated organizations brought a challenge under § 2 of the Voting Rights Act, 42 U.S.C. § 1973 (2000), to the Rhode Island state senate redistricting plan adopted in 2002. They allege that although African-Americans did not constitute a numerical majority in any state senate dist rict before redistricting, they have historicallyhad the ability to elect a representative of the ir choice with the help of crossove r v otes in one of the former districts. They claimthat as a result of the redistricting plan, this opportunity has been adversely affected (indeed, eliminated) by the reduction of the African-American percentage in the relevant district. After the districts were redrawn, their candid ate of choice, at that time an incumbent, lost his seat in the Democratic Partyprimary. Because of the makeup of the newly configured district, the victor in the primary was effectively assured of being the victor in the general election. 1

The district court dismissed the claimunder Fed. R. Civ. P. 12(b)(6) becaus e t he African-American group could not form a numerical majority in any district and beca use that group would require crossover votes to elect a candidate of its choice. Under2 We e xpress our appreciation to amici for their valuable

assistance.

3 Many of the defendants originally sued in their official capacities no longer occupy their respective offices. The current incumbents have been substituted as defenda n ts for their predecessors in office. See Fed. R. App. P. 43(c)(2). -4- the standard for Rule 12(b)(6) dismissal, which permits dismissal of a complaint "only if it is clear that no relief could be granted under a ny set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding , 467 U.S. 69, 73 (1984), we reverse the dismissal of the claim. 2 I. On May 2, 2002, a group of individual plaintiffs and advocacyorganizatio n s challenged the redistricting plan in the UnitedStates District Court for the District of Rhode Island under § 2 of the Voting Rights Act ( VRA) , 42 U.S.C. § 1973. The plaintiffs n ame d as defendants the Governor, the Lieutenant Govern or, the Speaker of the House of Representatives, the State Boardof Elections Chairman, the Secretary of State, and the Senate Majority Leader. 3

When reviewing the dismissal of a complaint under Fed. R. Civ. P. 12(b)(6), "[w]e accept as true the well-pleaded factual allegations of the complaint, draw all reaso nable inferences therefromin the plaintiff's favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery

on any cognizable theory." Martin v. Applied Cellular Tech., Inc. ,-5-

284 F.3d 1, 6 (1st Cir. 2002). Thus, the following facts are derived from the plaintiffs' amended complaint.

On February 23, 2002, the Rhode Island General Assembly

vo tedto pass a redistricting plan for the state senate. An alteration was necessaryfor two reasons. First, there was a need to adjust the senate districts to account for shifts in state population. Second, a recent state constitu tional amendment reducedthe number of senate districts fromfifty to thirty-eight, necessitating an entirely new district map with larger districts.

The new senate distr ict plan was highly controversial. There were concerns from the beginning that the plan might make it more difficult for African-American voters to elect candidates of their choice. Various community groups and individuals testified before the legislature against the plan on the grounds that it wouldnot give African-American voters "an equal opportunity to elect candidates of their choice" to the state senate, and that the plan unnecessarily abridged the voting rights of African-American voters in violation of the VRA. Nonetheless, the se nate's judiciarycommittee "approvedthe plan[] without taking the time to evaluate the proposals and comments of those opposed to the plan." It is fair to infer, given that there was only one African-American senator, that the plan was approved over the objections of the African-American community and its representative. Governor Lincoln Almond refused to sign the legislation, explicitly4 The complaint makes a distin ctio n between Hispanic voters

and"Non-His pa nic African-American" voters. We use "AfricanAmerican" to describe the latter group, as distinguished from Hispanic African-Americans, whom the complaint counts as members of the Hispanic community.

5 The complaint does not specify the voting age population demographics of the old Senate District 9, nor does it specify the percentage of the population that is white in either the old Senate -6- ques tioning its fairness to Rhode Island's minority populations. He did not veto it, however, and the plan became law without his signature on February 23, 2002.

The population of Rhode Island is four percent AfricanAmeri can, 4 over half of whom live in Providence. The state's African-American ci t izens continue to suffer from past official discrimination in housing, education, health care, andemployment. By common measures of socio-economic status, educational attainment, and access to political resources, they continue to lag behindthe rest of the state. Only one African-American state senator, the chosen candidat e of the African-American community, has ever been elected in Rhode Island; that senator, Charles D. Walton, represented the old Senate District 9 until the redistricting. According to the census data from the year 2000, that district was 25.69% African-American and 41.08% Hispani c . Much of Providence's African-American population is now within the

new Senate District 2. The population of this new dis tric t is 21.42% African-American and 46.74% Hispanic, and the voting age population is 21.43% African-American and 43.12% Hispanic. 5District 9 or the new Senate District 2. -7- Plaintiffs plead that the African-American voters in Rhode Island are themselves politically cohesive, and that they are not cohesive with Hispanic or white voters. Although no alternative plans were appended to the complaint, plaintiffs claim that it is possible to divide the state into thirty-eight districts such that one senate district would have a pop ulati on that is at least twenty-six percent African-American, and in such a district it would be possible for "an African-American candidate preferred by African-American voters" to win election due to w hit e and Hispanic crossover support. However, if a district is less than twenty-six percent African-American, "[t]he white and Hispanic communities vote sufficiently in a bloc u sually to defeat the candidate of choice of African-American voters." II. Without filing a responsive pleading, the defendants quickly moved to dismiss on the basis of Fed. R. Civ. P. 12(b)(6) for failure to state a claim. They argued that the complaint fails to allege that it is possible to create a senate district in which African-Americans are a ma jority , and that such an allegation is requiredby Thornburgv. Gingles , 478 U.S. 30 (1986), and its progeny. On September 9, 2002 , the district court granted the defendants' motion. Metts v. Almond , 217 F. Supp. 2d 252 (D.R.I.-8-

2002). The district court analyzed the plaintiffs' complaint as both an "ability to influence" claim and an "ability to elect" claim. As to the former, it found that influence claims are not cognizable under § 2. Id. at 257. As to the latter, it held that Gingles requires that a minority group be able to constitute a majority without th e h elp of crossover votes from other groups. Id. at 260. Finally, the district court also dismissed the complaint based upon a failure to demonstrate that the majority in Senate District 9 votes as a bloc, another requirement set out in Gingle s . I d. at 260-61. The plaintiffs appeal the dismissal of their claim. III. A. Standard of Review

We review de novo a district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6), Morales-Villalobos v. Garcia-Llorens , 316 F.3d 51, 52 (1st Cir. 2003), taking well-pl eaded facts in the complaint as true and making all r easo nable inferences in favor of the plaintiffs. Arruda v. Sears, Roebuck & Co. , 310 F.3d 13, 18 (1st Cir. 2002). Rule 12(b)(6) permits dismissal of a complaint for "failure of the pleading to state a claim upon which relief can be granted." For the purposes of Rule 12(b)(6), "it is enough for a plai ntiff t o sketch a scenario which, if subsequently fleshed out by means of appropriate facts, could support an actionable claim." Garrett v.6 The amendment was meant, in part, to overturn t he S upreme

Court's interpretation of the VRA in City of Mobile v. Bolden , 446 U.S. 55, 61 (1980). See P. M cCrar y, Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960-1990 , 5 U. Pa. J. Const. L. 665, 697-699 (2003). -9- TandyCorp. , 295 F.3d 94, 105 (1st Cir. 2002). We must reverse if the plaintiffs have included in their complaint well-pleaded facts which, taken as true, "justify recovery on a ny sup portable legal theory." Cruz v. Melecio , 204 F.3d 14, 21 (1st Cir. 2000). B. Legal Background

Section 2 of the VRAforbids any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a de nial 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). First passed in 1965, it was amended in 1982 to s pecify th at the test is one of adverse impact to minority communities and does not require a sho wing of discriminatory intent. 6 Pub. L. No . 89-110, tit. I, § 2, 79 Stat. 437, 437 (1965), amended byPub. L. No. 97-205, § 3, 96 Stat. 131, 134 (1982). A violation is established "if, based on the totality of circumstances, it is show n that . . . a class of citizens . . . [has] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

The Supreme Court first construed the post-amendment VRA-10-

in Thorn burg v. Gingles , supra . Gingles was a challenge to a redistricting plan that included multimember districts, which are legislative districts from which more than o ne r epresentative is electedat a time. 478 U.S. at 35. The Gingles court established three "preconditions" for a VRA challenge to multimember districts.

First, the minority group must be able to demonstrate that it is sufficiently large andgeographically 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 sufficientlyas a bloc to enable it . . . usually to defeat the minority's preferred candidate. Id. at 50-51. The Supreme Court has, in subsequent cases, held that some form of these three preconditions should also apply to challenges to single- member legislative districts. Growe v. Emison , 507 U .S. 25, 40-41 (1993) (applying the second precondition); see also Voinovich v. Quilter , 507 U.S. 146, 157-58 (1993) (applying the thirdprecondition). The Court has summarized the three in shorthand terms as "compactness/numerousness, minority cohesion or bloc voting, andmajority bloc voting." Johnson v. De Grandy , 512 U.S. 997, 1011 (1994). As a matter of pleading, the complaint exp licitly pleads the second and third of the Gingles preconditions as well as geographic compactness under the first precondition.

This is not a case, as in De Grandy , where minority voters hold a majority in some districts and the issue is whether § 2 of the VRA requires courts to maximize the number of districts-11-

in which minority voters may elect their candidates of choice. Here, the only district in which African-American voters could elect a candidate of their choice (with help from crossover voting)

was altered significantly; the result, plaintiffs say, is that African-American voters can no longer elect a candidate of their choice in any state senatorial district. Far from complaining that the legislature has failed to maximize their political power, these plaintiffs complain that their opportunity to elect a candidate of their choice has been minimized -- indeed, eliminated. C. First Precondition: Compactness & Numerousness

1. Ability to Influence and Crossover Voting The district court characterized plaintiffs' claim as alternately an "ability to influence" claim and an "ability to elect" claim. The Gingles Court, when fashioning the three preconditions to a redistric tin g challenge to a multimember district, expressly reserved the question of whether § 2 permitted claims bya minority group "alleging that the use of a multimember district impairs its ability to influence elections," and whether the three preconditions would apply unabated to such a claim. 478 U.S. at 46 n.12 (emphasis in original). The same question of the meaning of an ability to elect as opposed to an ab il ity to influence arises in challenges to single member districts. See De Grandy , 512 U.S. at 1008-09; Voinovich , 507 U.S. at 154.

Since Gingles , there has been much confusion over the-12-

definition of an influence claim under the VRA. Most often, influence districts have been defined as ones "in which a minority group has enough political heft to exert significant influence on the choice of candidate though not enough to determine that choice." Barnett v. City of Chicago , 141 F.3d 699, 703 (7th Cir. 1998) (reserving question of whether such a claim is cognizable);

see Cousin v. Sundquist , 145 F.3d 818, 828-29 (6th Cir. 1998) (refusing to recognize such a claim under the VRA); McNeil v. Legislative Apportionment Comm'n , 828 A.2d840, 852-53 (N.J. 2003) (recognizing influence dilution claims under the VRA). This court has also used the "influence district" terminology in this sense. Vecinos de Barrio Uno v. City of Holyoke , 72 F.3d 973, 990-91 (1st Cir. 1995).

The confusion stems fromthe intersection of this type of influence claim and another type, in which a minority group constituting less than fifty percent of the electorate can elect a candidate of its choice with the help of crossover votes from voters in the majority group. See R.H. Pildes, Is Vot ing R ights Law Now at War with Itself? Social Science and Voting Rights in the 2000s , 80 N.C. L. Rev. 1517, 1539-40 & n.60 (2002) (referring to this latter type of district as a "coalitional district"); Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting , 116 Harv. L. Rev. 2208, 2209-10 & n.13 (2003). We will refer to this second type of influence claim as a7 We u se "crossover" in a specialized sense with regard to

racial blocs. The term is also used in a different sense when members of one political party cro ss over to vote in the other party's primary. See Easley v. Cromartie , 532 U.S. 234, 245 (2001).

8 The recent Supreme Court decision in Georg ia v. Ashcroft , 123 S.Ct. 2498 (2003), considered influence districts and crossover districts in the § 5 context, but did not resolve the relationship between the two.

9 Crossover districts where plaintiffs al lege an ability to elect also may be confused with a third type of claim, a "minority coalition" claim, in which two separate minority groups allege that a district could be formed in which they could join forces to elect a representative. See De Grandy , 512 U.S. at 1020 (describing such a VRA claim); Concerned Citizens v. Hardee County Bd. , 906 F.2d 524, 526-27 (11th Cir. 1990 ) (i ndicating that minority coalition claims meet the first Gingles pr econdition); Brewer v. Ham , 876 F.2d448, 453 (5th Cir. 1989) (same). But see Nixon v. Kent County , 76 F.3d 1381, 1392 (6th Cir. 1996) (en banc) (rejecting a minority coalition claim). We take no position on that issue. Plaintiffs do not allege that they and another minority group form a minority coalition and that such a coalition may qualify as a "class" under § 2. Rather, this suit appears to posit that the interests of African-American voters have been pitted against the interests of Hispanic voters. -13- "crossover district." 7 The Supreme Court has not had the opportunityto address thi s distinction; 8 the Court in Voinovich usedthe term "influence district" to describe a crossover district -- one in which minorities could, despite the inability to form a majority, "elect their candidate of choice nonetheless if they are

numerous enough andtheir candidate attracts sufficient cross-over votes." 507 U.S. at 154. 9

Plaintiffs, for their part, forswear any claimunder the ability to influence rubric, choosing to stand or fall entirely on

an ability to elect claim. However, they do so only as far as the-14-

term "influence district" describes one where a minority group is unable to elect a candidate of its choice even with crossover support. They use the term "influence district" in the complaintto describe what we label a crossover district, in which AfricanAmerican voters have an abilit y to elect with crossover support. We consider only th is type of influence claim, and not the more nebulous variety described in Barnett and disavowed by plaintiffs.

The Supreme Court has expressly held open the question of whether the G ingl es preconditions should apply to influence claims. See De Grandy , 512 U.S. at 1009; Voinovich , 507 U.S. at 154; Gingles , 478 U.S. at 46 n.12. We read the language of these cases, especially Gingles and Voinovich , to profess a willingness to consider a crossover district claim such as the one plaintiffs plead. The Gingles language setting aside the question of an influence claim did not differentiate between crosso ver district claims and claims in which plaintiffs profess only an ability to affect, not determine, electoral outcomes. But the Court has not flatlyrefused to consider a crossover district despite the opportunity to do so. See Voinovich , 507 U.S. at 154.

The Supreme Court's recent opinion in Georgia v. Ashcroft , 123 S.Ct. 2498 (2003), also supports our conclusion that

crossover dist ric ts should be considered in the § 2 context.10 Under § 5, the Attorn ey G eneral of the United States must

preclear a covered jurisdiction's "standard, practice, or procedure." 42 U.S.C. § 1973c. Preclearance depends on whether the change "would lead to a retrogression in the position of racial mino riti es with respect to their effective exercise of the electoral franchise." Beer v. United States , 425 U.S. 130, 141 (1976). -15- Georgia interpreted § 5 of the VRA. 10 The Court has repeatedly warnedthat § 2 and § 5 "c ombat different evils and . . . impose very different duties upon the States." Reno v. Bossier Parish Sch. Bd. , 520 U.S. 471, 476 (1997). Despite the differences between § 2 and § 5 anal ysis, the Court's treatment of influence and crossover districts in Georgia is highly instructive.

Georgia held that when assessing retrogression, courts must consider not only majority-minority districts but also the existence of influence districts, including crossover districts. 123 S.Ct. at 2512. The state's plan created two additional districts with a minority po pulati on of between thirty and fifty percent, andtwo districts with a population of between twenty-five andthirty percent. These districts, the Court found, were crucial to determining the overall eff ect of the new redistricting plan. Id. at 2515. Indeed, the Court was unanimous that crossover districts should be considered in the § 5 analysis; the dissent objected only to the use of those influence districts in which it was not clear that minority voters would have an ability to elect

even with crossover support. See id. at 2513, 2514; id. at 2518-19 (Souter, J., dissenting). If crossover districts are important-16-

enough to minority voters to be considered when assessing a redistricting plan's r etrogr ession, it would be an odd result if the same voters could not bring a § 2 claim when such a crossover district is eliminated by redistricting.

Given these Supr e me Court precedents, we believe that whatever the status of other influence claims, at least crossover district claims are cognizable under § 2 of the VRA. We decline to hold, as a matter of law, that they are not.

This conclusion is consistent with our dec ision in Vecinos de Barrio Uno , supra , where this court held that an "influence district" that was twenty-eight percent Hispanic should be considered in the determination of whet her the minority population's voting strength had been diluted. 72 F.3d at 990-91 ("[T]he voting strength of a minority group is not necessarily limitedto districts in which its members constitute a majority of the voting age population, but also extends to every district in which its members are sufficiently numerous to have a significant impact at the ballot box most of the time."). Unlike the present case, the influence district in Vecinos de Barrio Uno was used by the defendant city as evidence that the minority population retainedpolitical power. Moreover, the city was not alleging that the minority group could elect its own ca ndi date with crossover support, but only that it was large enough to wieldinfluence over the outcome. Despite these factual differences, this court's-17-

recognition that inf lue nce districts may be used to show the existence of the political power of minority groups reinforces the decision to recognize, at least in theory, a suit complaining that a crossover district has been unjustly eliminated.

Though Gingles did not apply the preconditions to influence claims, however they are defined, some preconditions must apply in order to link the complained-of voting practice with the harmthe plaintiffs allege. Gingles , 478 U.S. at 48-51; see Vecinos , 72 F.3d at 979 n.2 ("[The first] precondition will have to be reconfigured to the extent that the courts eventually validate so-called influence dilution claims."). For the purposes of this discussion, we assume that plaintiffs' claim must satisfy the second and third Gingles preconditions, and that some form of the first precondition will also apply.

2. Majority Requirement The first Gingles precondition requires that "the minoritygroup must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-membe r dis trict." 478 U.S. at 50. Some courts have read this literally to mean that unless plaintiffs can show that they

can constitute an absolute majority in a single district -- that is, more than fifty percent -- then there is no possible § 211 On defendants' theory, a discrete, geograp hicall y compact

racial group (here, African-Americans) is not entitled to avail itself of § 2 of the VRA until it is large enough to constitute a numerical majority in any given district. -18- claim. 11 See Valdespino v. Alamo Heights Indep. Sch. Dist. , 168 F.3d848, 852-53 (5th Cir. 1999), cert. denied , 528 U.S. 1114 (2000); Perez v. Pasadena Indep. Sch. Dist. , 165 F.3d 368, 371-73 (5th Cir. 1999), cert. denied , 528 U.S. 1114 (2000); see also N egron v. City of Miami Beach , 113 F.3d 1563, 1571 (11th Cir. 1997); Parker v. Oh io , 263 F. Supp. 2d 1100, 1104-05 (S.D. Ohio 2003). That appro ach has been criticized as a "talismanic requirement, divorced from any underlying functional reasons." Pildes, supra , at 1555. If that approach were followed here, plaintiffs' complaint would fail to meet the first precondition.

We reject the conclusion that no § 2 cause of action is

ever stated, regardless of the nature of the claim, unless plaintiffs can show that a minority group would be a literal majority in a single district. The approach is inconsistent with the Supreme Court's own descriptions of the functions served by the first Gingles precondition. It is al so inc onsistent with the variety of political realities the VRA was meant to address; a demographic fact of life in some areas of the country is that no single racial group constitutes an absolute majority. And finally, it contravenes the plain text of § 2, which requires courts to consider the "totality of the circumstances."12 Consonant with its holding that the Gingles preconditions

are in some form applicable to single-member districts, the Supreme Court has consistently avoided applying the first precondition to ch allenges to such districts. See De Grandy , 512 U.S. at 1 00 9 (assuming the first precondition is satisfied); Voinovich , 507 U.S. -19- Requi ring t he protected class to show that it is an absolute majority igno res th e reality that the class could elect its preferred candidate without such numbers. Thus, a discussion of whether the protected class forms a "majority" is not

n ec essarilyhelpful in determining whether an "electoral law, practice, or structure interacts with social and his torical conditions," Gingles , 478 U.S. at 47, to impair the ability of the class to vote. The plaintiffs here have alleged that AfricanAmerican voters formed a politically cohesive group that was able, with the assistance of crossover voting, to elect the candidate of its preference in a district that was less than fifty percent African-American andthat, in a properly drawn district, they could continue to do so.

In the conte xt of this case, that pleading suffices to satisfy the interests identified by the Supreme Court for the first Gingles precondition. That precondition should not be readwithout regardto its function: to determine whether "the ability of min orityvoters to elect representatives of their choice" i s impeded. Gi ngles , 4 78 U.S. at 48. As the Court has noted, "the Gingles factors cannot be applied mechanically and without regard to the nature of the claim." Voinovich , 507 U.S. at 158. 12 Ginglesat 158 (same); Growe , 507 U.S. at 41 (same). -20- itself, in reviewing a m ulti-member district, noted that the function of the first precondition was to assure that there was a causal relationship between the creation of the district lines and the harm to the plaintiffs; if the minority group's candidate could not prevail even in a single district, then "the multimember form cannot be responsible for minority voters' inability to elect its candidates." 478 U.S. at 50 (emphasis removed). Similarly, when discussing majority bloc voting in the context of the third precondition, Gingles defined it as that which is su ffic ient usually to "defeat the combined strength of minority support plus whi te crossover votes." Id. at 56 (internal quotation marks omitted); see also Jenkins v. Red Clay Consol. Sch . Dis t. Bd. of Educ. , 4 F.3d 1103, 1123 (3d Cir. 1993) ("[T]he Gingles [third precondition] standard presupposes the existence of crossover voting."). Growe reinforced this functional analysis, noting that "the 'geographically compact majority' and 'minority political cohesion' showings are needed to estab lish that the minority has the potential to elect a representative of its own choice in some single-m ember dis trict." 507 U.S. at 40. Such support for a functional approach leaves room to incl ude cl aims in which an electoral majority is formed only with crossover support.

This functional approach also better accounts for various political realities. In electoral schemes in which representatives13 But see Brewer , 876 F.2d at 454 (requiring a majority even

for plurality elections, reasoning that a "plurality feature is of course more responsive to minority voter grou ps") ; McNeil v. SpringfieldPark Dist. , 851 F.2d93 7, 943-44 (7th Cir. 1988) (rejecting any showing of less than an absolute majority as unduly speculative). -21- can usua lly be elected with less than a majority of the vote , Gingles should not be read to require that the minority group nevertheless be able to form a literal majority in a reconfigured district. Rhode Island law specifically provides that candidates in both primary and general elections for state office may be elected with a plurality of the vote. See R.I. Const. art. IV, § 2 (g eneral elections); R.I. Gen. Laws § 17-15-29 (2002) (primary elections). In such cases, constituting a majority would not be necessaryfor minorities to "elect a representative of t heir choice." 42 U.S.C. § 1973(b); see Romero v. Pomona , 883 F.2d 1418, 1424 n.7 (9th Cir. 1989), overruled on other grounds , 929 F.2d1358 (9th Cir. 1990). 13 "To the extent that courts have read Gingles to elevate the ability to create a district with a majority-black electorate into a threshold requirement for establishing liability in all vote dilution litigation, they have improperly applied one particular theory of liability to other distinct types of vote diluti on." P.S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation , 24 Harv. C.R.-C.L. L. Rev. 173, 202 (1989).

Georgia v. Ashcroft , supra , confirms that influence-22-

districts, including crossover districts , are important to any practical assessment of minority voting power . In Georgia , the Court emphasized the fact-bound nature of VRA claims, holding that the retrogression inquiry under § 5, like the dilution inquiry under § 2, see 42 U.S.C. § 1973(b), requires an assessment of the "totalityof the circumstances." 123 S.Ct. at 2511 . One reason for this broad factual inquiry, the Court indicated, is that "[t]he ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine." Id. Accordingly, the Court held, influence and crossover districts must be considered as part of tha t dete rmination in the retrogression context. Id. at 2512. The Court also cit ed empirical studies indicating th at such districts may maximize minority voting strength. Id. at 2512-13.

We also cons ider relevant both modern and historical political realities. During the 1970s and1980s, African-American populations usually could not elect representatives of their choice unless they constituted a majority in an electoral district. See generally Quiet Revolution in the South (C. Davidson & B. Grofman eds., 1994). Indeed, usually a mere majority was not sufficient; many believed th at to overcome racial bloc voting patterns, the total minority population needed to be sixty-five percent. See Ketchumv. Byrne , 740 F.2d 1398, 1415-16 (7th Cir. 1984) (collecting sources). But the percentage of minority popu lati on14 Our dissenting colleague engages in the sort of fac tua l

predictions that courts are forbidden to indulge on a motion to dismiss. See Gonzalez-Gonzalez v. United States , 257 F.3d 31, 37 (1st Cir. 2001) (refusing to engage in "speculation" on appeal from a Rule 12(b)(6) dismissal and instead assuming the truth of the averments in the complaint). The dissent assumes that a minimum level of crossover voting of 32% will be required for the AfricanAmerican minority to elect a candidate of its choice, and it assumes that only two-candidate contests are relevant. It assumes that the African-American voters' inability to elect their preferredcandidate "can much more readily be attributed to c andidate-specific issues" than to the reduction i n th e representation of the African-American community in the political process. It assumes that plaintiffs will establish no history of discrimination against black citizens in the political process. It -23- necessaryto elect a candidate has been steadily declining. By 1990, fifty-five percent was generally considered sufficient. And thereafter, due to increased white crossover voting, the number has slipped below majority level. One study reported that during the 1990s, an African-American candidate cou ld be elected from a congressional district that was between thirty -thr ee and thirtynine percent African-American. B. Grofman, L. Handley & D. Lublin, Drawing Effective Minority Dis tricts: A Conceptual Framework and Some Empirical Evidence , 79 N.C. L. Rev. 1383, 1407-09 (2001). The percentage of minority vot ers necessary to elect a candidate depends heavily on the political makeup of the district as a whole,

see Pildes, supra , at 1535-36, a matter difficult to determine on a motion to dismiss a complaint.

In sum, it is not an absolute bar to a claimunder § 2 of the VRA that som e a mount of crossover voting is needed for a minoritygroup to elect a candidate of its choice. 14 See Armour v.assumes that there will not be sufficient bloc voting by Hispanic

voters after the redistricting to defea t the African-American community's candidate of choice. Further, the dissent assumes that "whites and Hispanics would have to cast almost half of the votes needed for a succ essfu l senatorial candidacy." In a plurality race, as the dissent apparentlyconcedes, that is almost certainly untrue. Even in a two-candidate race, it may be untrue -- given, for example, low overall voter turnout, high African-American turnout, and AfricanAmerican bloc voting. Similarly, the dissent assumes that a 5% reduction in the African-American population is insignificant. But the former African-American state senator may have lost the election by that 5%. Each of these assumptions reflects factua l in ferences that, by law, must be made in plaintiffs' favor on a motion to dismiss. United States v. AVX Corp. , 962 F.2d 108, 114 (1st Cir. 1992).

15 We reach a det erm ination only with regard to crossover districts, the sole t ype of influence claim presented in this appeal. We reach no conclusion concerning other types of influence claims, which, if they are recognized, may require a different application of the Gin g les preconditions and different limiting principles. -24- Ohio , 775 F. Supp. 1044, 1059-61 (N.D. Ohio 1991) (three-judge court); see also McNeil , 828 A.2d at 852-53; Powers , 263 F. Supp. 2dat 1109-1113 (three-judge cou rt) (Gwin, J., concurring in judgment); West v. Clinton , 786 F. Supp. 803, 807 & n.2 (W.D. Ark. 1992) (three-judge court).

Though a c laimthat includes crossover voting may be cognizable under the first precondition for a § 2 cause of action, not every such claim will pass muster. It would be discordant with the Act, for instance, to consider a crossover district claim from a numerically tiny minority population that can only claim a hope to e lect a candidate with an overwhelming number of crossover votes. Several limiting principles readily present themselves. 15-25- First, this case presents a cl aimnot merely of an abstract hope to elect the Afr ic an-American voters' preferred candidate through both African-American andcrossover voting. The allegedloss is much more concre te. Historically, the AfricanAmerican community's preferred candidate was consistently elected,

even though African-American voters were less than a num eric al majority in the district. The redistricting plan, however, significantly reduced the percentage of African-American voters in the district, and the candidate lost his bid for ree lec tion. African-American voters sued, saying they had been denied an equal opportunityto elect the candidate of their choice, and on this motion to dismiss, the redistricting plan must be taken as the cause of the lost election. That is not to say that a history of electoral success is a necessary part of a su ccessful claim, especiallyif the lack of success is due to historic vote dilution, but the mi nority group's historical voting success makes this an easier case.

The second is the statutory requirement that a minority population be able to elect, in a potential district, "representatives of their choice ." 42 U.S.C. 1973(b) (emphasis supplied). A minority group may require so many crossover votes that it does not truly have the ca pacity to choose its own candidate, but only to help elect candidates cho sen by other groups. If so, plaintiffs cannot make a crossover district claim.16 The parties agree that the se con d Gingles precondition is

met by the plaintiffs' pleading that "African-Ameri can voters in the State of Rhode Island are politically cohesive." -26- Here, however, the plaintiffs clearly pleadin their complaint that the African-American community can elect its own candidate with crossover support in a properly drawn district.

The third limitation is expressed in the third Gingles precondition: "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 51. A minority population that is too small, and that therefore requires too high a level of crossover support, will not be able to meet the thirdprecondition. If the majority population is willing to provide crossover support to minority-chosen candidates at very high levels, then it cannot be said to be voting

as a bloc against these candidates. For the reasons described below, the plaintiffs' complaint offers enough on the third precondition to render a Rule 12(b)(6) dismissal on tha t g round inappropriate. 16

Finally, we note that this is not a situation, as in Georgia v. Ashcroft , supra , where the leader s of the AfricanAmerican community developedthe redistricting plan at issue. The contrary is true here. With only one state senator out of fifty, the African-American community had precious little political strength in the senate before the redistricting. After the plan-27-

was implemented, they lost their only representation. Similarly, this is not a case about the failure to maximize potential AfricanAmerican voting power. Cf. Abrams v. Johnson , 521 U.S. 74 (1997). Ra ther, this is a case about the elimination of African-American voters' opportunity to elect the candidate of their choice, an opportunitythat they had consistently enjoyed prior to the redistricting. D. Third Precondition: Majority Bloc Voting

The third Gingles precondition requires that "the minoritymust be able to demonstrate that the white majority votes sufficientlyas a bloc to en able it . . . usually to defeat the minority's preferred candidate." 478 U.S. at 51. Again, this is part of a functional approach to the Act. See id. (" I n establishing this last circumstance, the minority group demons tr ates that submergence in a white multimember district impedes its ability to elect its chosen representatives."). This court has described the third condition as addressing "whether the challengedpractice, procedure, or structure is the ca use of the minority group's inability to mobilize its potential voting power and elect its preferred candidates," Vecinos , 72 F.3d at 980, and referred to the bloc simply as a "majoritarian" bloc, id. at 981, 982. The district court held that the plaintiffs' com plai nt failedto satisfy this third condition. First, it read Gingles-28-

specificallyto require that the majority bloc must be a white numerical majority. While the complaint does not specify the white population of Senate District 2, i t ca n be no more than 31.84% after subtracting the African-American and Hispanic population. Furthermore, the court calculatedthat because the old district was only twenty-six percent African-American, the crossover vote needed to elect the candidate preferred by African-American voters would have to constitute twenty-four percent of the electorate. If half of that crossover vote were white, the court reasoned, then the whit e population would be crossing over at a rate of abo ut one

third, which it thought too high to be consistent with "bloc voting" needed to "defeat the minority 's pr eferred candidate." Metts , 217 F. Supp. 2d at 260-61.

This reasoni ng h as several flaws. Inherent in the court's analysis is the assumption that the electoral contest would have only two candidates. That is not necessarily so, particularly in primaries. In many jurisdictions, the winner of a particular party's primary is de facto the winner of the general election; it maybe inferred that this was historically the c ase in the old Senate District 9 and it remains true in the reconfigured Senate District 2. The court also allocated the crossover vote half to whites and hal f to Hispanics, but there is simply no evidence of the racial composition of the crossover votes, either historically or in a proposed alternative district.-29- Further, we reject the district court's impermissible focus on only the white voters in Senate District 2 for purposes of the third Gingles precondition. The plaintiffs, in their

co mpla int, claim that "[t]he white and Hispanic communities vote sufficientlyas a bloc usually to defeat the candidate of choice of African-American voters when that candidate is African-American and the district is less than twenty-six percent black in total population." Under the standards of Rule 12(b)(6), such claims in the complaint may be rejected only if they are "bald assertions" or "unsupportable conclusions." Chongris v. Bd. of Appeals , 811 F.2d 36, 37 (1st Cir. 1987). Neither characterization can be said to be true here. The VRA does not, by its terms, afford protection to or against any particular racial or ethnic group; if it did, it might well be suspect under the Equal Protection Clause. U.S. Const. amend. XIV, § 1. The language of Gingles referred to a "white majority" only because that happened to be the composition of the majority on the facts before the Court. See 478 U.S. at 51.

Nor must the majority bloc be comprised of only one race. While the "protected class" being discriminated against must be constitutedof a particular "race or color," see 4 2 U.S. C. § 1973(a), there is no requirement in th e VRA tha t a contrary voting bloc be of just one race. Coalitions of certain races that characteristically vot e agai nst the preferred candidate of a-30-

different racial group may well constitute bloc voting for purposes of the third Gingles precondition. In De Grandy , the Supreme Court consideredsuch a challenge to Florida's state legislative districts. In one county, there were three large voter groups: African-Americans, Hispanics, and whites. The trial court found, basedon expert testimony, that during elections pitting a minority candidate against a white one, the white vot ers would vote as a bloc along with the other minority group's voters to elect the white candidate. De Grandyv. Wetherell , 815 F. Supp. 1550, 1572 (N.D. Fla. 1992) (three-judge court). The Supreme Court did not findthis fact pattern problematic as a means to satisfy the third Gingles precondition. De Grandy , 512 U.S. at 1007. In a similar case, also reviewing a challenge to a Florida redistricting plan, the Eleventh Circuit found that "a coalition of Hispanics and Non Latin Whites could form the relevant majority voting bloc for the purpose of the third Gingles factor." Meek v. Metro. Dade County , 908 F.2d 1540, 1545-46 (11th Cir. 1990). We agree.

The district court's rationale does, however, highlight

a potential difficulty with the plaintiffs' complaint. In the plaintiffs' proposed remedial district, the African-American population would be at least twenty-six percent. Depending on how the facts are developed, that number may raise issues related to the third precondition. If it is true that a majority (rather than only a plurality) is needed to elect a candidate, if the racial-31-

makeup of the voters is proportional to the racial composition of the district, and if, as the plaintiffs assert, the Af ric anAmerica n voters are politically cohesive, then crossover voting wouldneed to reach twenty-four percent. In that scenario, thirtytwo percent of the non-African-Ameri can voters would have to support the African-American community's chosen candidate in order to reach the majority needed. The district court believed that such a high rate of crossover voting would be inconsistent with a finding of bloc voting.

At the Rule 12(b)(6) stage, that conclusion is premature. Aseries of factual assumptions would be required to judge the average level of crossover support the plaintiffs are alleging, assumptions that cannot be confirmed or repudiated at this stage of the proceedings. While the co mpla int's description of a reconfigured district includes total population figures, there is

no demogra phic information concerning the voting age population, the number of registered voters, or the expected voters in any given election, much less the typical voting patterns of var ious groups. There are also no fa cts about the number of candidates that typically run in the primary or general elections. Without such information, it is impossible to kn ow the percentage of

crossover support necessary to elect the candidate of the AfricanAmerican community's choice.

More importantly, even if the facts show that crossover-32-

voting of thirty-two per cent would be required, that number, without more, does not warrant a Rule 12(b)(6) dismiss al for failur e to s tate a claim in light of the third Gingles precondition. The statute commands an examination of "the totality of circumstances." 42 U.S.C. § 1973(b). An inquiry into the third precondition is thus an inherently f actu al enterprise. "[T]he degree of racial bloc voting that is cognizable as an element of a § 2 vote dilution claim will vary according to a variety of factual circumstances." Gingles , 478 U.S. at 57-58; see Vecinos , 72 F.3d at 989. The Supreme Court has been chary of per

se rules in this area, whether the claim is that a device is a per

se violation of § 2, Voinovich , 507 U.S. 154, or whether the claim is that a single factor is a safe harbor for defendants, De Grandy , 512 U.S. at 1017-18.

One important factor about which the record i s undeveloped is the pattern of voting behavior over time. Gingles stressed the importance of determining whether racial bloc voting is a pattern extending over time or merely a phenomenon in a single election. 478 U.S. at 57. The reverse is also true: the success of a minority candidate, or the absence of bloc voting in a few elections, cannot be taken to mean that the district does not experience racial bloc voting overall. Id.

Furthermore, a crossover rate of thirty-two perc ent is within the range of fact patterns in which courts have found17 The dissent's citation to Abrams v . Johnso n , 521 U.S. 74,

92-93 (1997), does not assist it. Abrams was decided after trial on a full record. The record revealed that there was, over time, an increased general willingness of white voters to vote for black candidates, and a correspondi ng d ecrease in racial polarization. The Abrams Court did not purport to establish a mathematical litmus test for screening cases under the third Gingles precondition on a motion to dismiss. -33- majori tybloc voting. Gingles itself found majority bloc voting where the majority group supported African-American candidates in the general election at a rate between twenty-eight and forty-nine perc ent, with an average support of one-third. Id. at 59; see Campos v. Baytown , 840 F.2d 1240, 1249 (5th Cir. 1988) (finding majoritybloc voting when the crossover vote was thirty-seven percent). Of course, that does not mean that a crossover rate less than one-third would always disprove majority bloc voting: in other circumstances, the Supreme Court has found a crossover rate averaging between twenty-two and thirty-eight percent sufficient to suggest "a general willingness of white voters to vote for black candidates," especially when minority candidates have a record of

succe ss. 17 A brams v. Johnson , 521 U.S. 74, 93 (1997) (internal quotation marks omitted).

At this stage of the litigation there is no evidence of the degree or effect, if any, of racially polarized voting, or whether a voting district could have b een constituted to protect the ability of both African-American and Hispanic voters to elect candidates of their choice.-34- The dissent misses the point when it objects that the VRA is not meant "to ensure the success of candidates favored by minority groups." In this case, it is undisputed that a minority group's preferred candidate, an incumbent, failed to win reelection in the first election after the state legislature adopted a redistricting plan that decreased the percentage representation of that minority in the candidate's home electoral district. No court has ever held -- and it would be clear error for a court to hold -- that such a defeat is irrelevant to the question whether members of that m inorit y group "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). Plaintiffs seek equality of opportunity, not a guarantee of electoral success.

The district court's dismissal of the plaintiffs' complaint under Rule 12(b)(6) for failure to meet the third Gingles precondition was inappropriate. IV.

Congress, in enacting the Voting Rights Act, was cognizant of this country's long and shameful history of excluding African-Americans from our political processes. In li ght of the purposes of the Fourteenth Ame ndm ent and its guarantee of equal protection of the laws, it is no answer to say, as the dissent does, that the federal courts should close their doors to possibly meritorious complaints under the Voting Rights Act out of deference-35-

to majoritarian will and "difficult" legislative choices. That is particularlytrue at this early stage of t he litigation. Plainti ffs must still prove their case; they must establish the Gi ngles preconditions, as well as a substantive violation of the VRA, with evidence. There is no frustration of majoritarian will in requiring the defendants to respond to allegations that state a claimunder the Act. The dissent describes such a claim as a quest for "unfair advantage." To the contrary, the complaint states a claimof unfair disa dvantage to African-American voters in the exercise of the most important right in our American democracy. If plaintiffs ultimately prevail, it will be because they have proven that the Rhode Island legislature, acting f or the majority, has violatedthe Voting Rights Act byimpermissibly denying members of the African-American community in Providence an equal opportunity to elect a state senator of their choice. As the Supreme Court statedin Georgia v. Ashcroft , "[t]he purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise andto foster our transformation to a society that is no longer fixated on race." 123 S.Ct. at 2517.

The plaintiffs must be given the opportunity to prove their case. We express no view as to the outcome. The dismissal of the plaintiffs' complaint is reversed and the case is remanded for proceedings consistent with this opinion.-36- Dissenting opinion follows.-37- SELYA, Circuit Judge (dissenting). Alth ough it is regrettable that redistricting may make it more difficult f or a candidate preferred by African-American voters to win election to the Rhode Island state senate, the Voting Rights Act is not intendedas a means of ensuring that every minority group has exactlythe district lines that it deems most advantageous. In the circumstances of this case, I can discern no valid legal basis for

us to superimpose the appellants' will on that of the Rhode Island Gener al Assembly. I would therefore affirm the district court ' s dismissal of the amended complaint.

My reasoning is rooted in precedent. The Supreme Court has made it reasonably clear that, as a threshold requirement for the maintenance of a vote dilution claim in a single-member district, plaintiffs must show (1) that theyare part of a minority group that i s su fficiently large and geographically compact to constitute a majority in some plausible iteration of the affected district; (2) that the group is politically cohesive; and (3) that other racial group s e ngage in bloc voting significant enough to defe at the minority group's preferred candidate. Voinovichv. Quilter , 507 U.S. 14 6, 1 57-158 (1993) (applying Thornburg v. Gingle s , 4 78 U.S. 30, 50-51 (1986), to single-member districts); Growe v. Emison , 507 U.S. 25, 40 (1993) (same). Given the nature of their claim, I think it is fairly clear that th e ap pellants cannot satisfy the first precondition. It is absolutely clear,-38-

however, that they cannot simultaneously satisfy both the first and third preconditions.

I start with the first Gingles precondition. The appellants concede that they ar e unab le to show that AfricanAmericans can constitute a literal m ajor ity in anyplausible iteration of Senate District 2. Rather, their complaint rests on the novel premise that a minority group whos e m embers cannot concei vab lycomprise a numerical majority, even in what is from their point of view an ideally configured single-member district, nonetheless can mount a viable vote dilution claim by demonstrating that the district's lines couldhave been drawn in such a way as to give the minority group the ability to elect the candidate its members prefer. Whether or not this type of claim ever can fall within the purview of section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973, the instant claim does not. The identified minority group is so small and its need to rely on crossover voting so great that the appellants' section 2 claim necessarily fails.

It i s comm on ground that courts must apply the Gingles preconditions to the ideal district proposedby those who challenge

a redistricting plan. See Holder v. Hall , 512 U.S. 874, 880 (1994) (opinion of Kennedy, J.); Negrón v. City of Miami Beach , 113 F.3d 1563, 1571 (11th Cir. 1997). In this case, the appellants concede that the adoption of a constitutiona l am endment downsizing the General Assemblyrequired redistricting of the state senate. Thus,-39-

Senate District 9 could not remain intact and had to be reconfigured. With this in mind, the appella nts describe their ideal version of Senate District 2 as a district in which AfricanAmericans comprise roughly 26% of the population. This configuration differenti ates the appellants' case from the minerun. Typically, vote dilution claims address redistricting schemes that take a racial minority group whose members have the potential to comprise a nume rica l majority in a geographically compact district and disperse the group across two or more districts (with the re sult that its members constitute a majority in none). See Voinovich , 507 U.S. at 153.

Mycolleagues suggest that we can change the paradigm becau se the appellants may have been deprived of a "crossover district" — a kind of "influence district" in which a numerical minorityis so positioned that it has an ability to swing elections. See generally id. at 154 (descr ibing an influence district as one in which minority group members "could not dictate electoral outcomes independently [but] couldelect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes fromwhite voters"). The Supreme Court has repeatedly refrain ed f rom deciding the cognizability of claims based on legislative disman tli ng of

crossover districts, e.g. , Johnson v. De Grandy , 512 U.S. 997, 1008-09 (1994); Voinovich , 507 U.S. at 154, and, until today, this-40-

court has exhibited the same restraint, e.g. , Vecinos de Barrio Uno

v. City of Holyoke , 72 F.3d 973, 979 n.2 (1st Cir. 1995).

To be sure, the preservation of in flue nce or crossover districts may constitute a relevant factor in defending against a

v ote dilut ion claim. See , e.g. , De Grandy , 512 U.S. at 1020; Vecinos , 72 F.3d at 990-91 & n.13; Latino Political Action Comm. v. City of Boston , 784 F.2d 409, 414-15 (1st Cir. 1986). But to say that a court may consider crossover districts in deferring to a state's redistricting plan is v ery different from saying that a minority has the legal right, under section 2 of the VRA, to demand that the legislature establish such a district. The ultimate goal of the VRA is "transition to a soci ety wher e race no longer matters." Georgia v. Ashcroft , 123 S. Ct. 2498, 2517 (2003). Thus, minorities still bear the burden "to pull, haul, and trade to fin dcommon political ground, the virtue of which is not to b e slightedin applying a statute meant to hasten the waning of racism in American politics." Id. at 2512 (quoting De Grandy , 512 U.S. at 1020) (internal quotations marks omitted). My colleagues' freshly minted"functional approach" would significantly lighten this burden. In all events, deciding this case does not require us to go so far as to rule out all section 2 claims based on a legislature's failure either to assemble or to preserve a crossover district. Here, the raw numbers are inimical to such a claim. The18 This estimate is conserv ative. To the extent that voter

registra tion or voter turnout differs, or that African-Americans ar e not completely monolithic in their voting preferences, th e needed thresholds become harder to achieve. -41- pertinent demog raphi c for analysis of the first Gingles precondition is the voting age population. See Growe , 507 U.S. at 38 n.4; Ketchumv. Byrne , 740 F.2d 1398, 1412-13 (7th Cir. 1984). In this case, the appellants maintain that African-Americans representedapproximately 26% of the voting age population in former Senate District 9 yet represent only 21% of the voting age population in the new district (Senate District 2). They claim that this 5% differential is a political kiss of death.

Strippedof rhetorical flourishes, the appellants' thesis proceeds along the following lines. Whenever a candidate preferred by African-Americans runs for the state senate in the new district, he or she will receive all the African-American votes plus no less than 32% but no more than 37% of the combined white and Hispanic votes (these being the percentages of all white and Hispanic voters necessary to form a majority in conjunction with African-American voters when African-Americans constitute 26% and 21% of the population, respectively ). 18 In the appellants' view, those

crossover voters will favor the African-Americans' preferred candidate regardless of the race or politics of his or her opponent(s). Consequently, the re dist ricting plan is vulnerable under section 2 of the VRA because the electorate's polarization is-42-

so deeply entrenched that candidate-specific variations will operate only within a 5% margin.

Whether viewed as a matter of logic, political science,

or human behavior, thi s prediction strikes me as utterly conjectural. For good reason, a difference of a few percentage points in the minority population of a single-member district gene rall yhas been thought unlikely to affect election outcomes. See S. Christian Leadership Conf. v. Sessions , 56 F.3d 1281, 1296 (11th Cir. 1995) (en banc). Th e appellan t's claim flies in the teeth of this conventional wisdom — and the mere fact that one very popular candidate, running uphill, had a series of successes in the "old" district does not validate the appellants' claim.

Even if I must indulge the claimbe cause the district court chose to act at the Rule 12(b)(6) stage, the most that can be saidis that the appellants had forged a sort of functional majority in former Senate District 9. By that I mean that AfricanAmerica ns , though neither numerous nor concentrated enough to comprise a majority in the district, exhibited an ability to elect

a particularly appealing candidate with the aid of a large and predictable non-African-American crossover vote. But whatever may be said for functional majority claims in general, the appellants' functional majority claim is a non-starter. Where, as here, a minority group comprises only a rela tively small fraction of the total population of an electoral district before redistricting, the-43-

inability of group members to elect the candidate of their choice after redistricting can much more readily be att ributed to candidate-specific issues than to a slight reduction in their numbers. In all events, a minority group of that modest size must relyso heavily on crossove r v otes, both before and after redistricting, that section 2 of the VRA provides no safe harbor.

The figures tell the tale. In the appellants' idealized district, whites and Hispanics would have to cast almost half of the votes needed for a successful senatorial candidacy. Those votes would not correlate with the individual voter's race, but, rather, with the race of the candidate, or, alternatively, with the race of the minority group members with whom the crossover voters identify. This fact has two important implications. In the first place, it confirms that, regardless of how the district's lines are drawn, African-Americans by themselves do not have anything close to an ability to elect the candidate of their choice. In the second place, it demonstrates that the appellants' claim puts the emphasis not on assuring equal opportunity for minority voters but

on ass uring a victory by the African-Americans' preferred candidate. That is the wrong emphasis. See 42 U.S.C. § 1973(b) (identifying "members of a class of citizens," not candidates, as the operative unit o f statutory protection); see also De Grandy , 512 U.S. at 1014 n.11 (explaining that "the ultimate right of § 2 is equalityof opportunity, not a guarantee of electoral success");-44-

Smith v. Brunswick County Bd. of Supervisors , 984 F.2d 1393, 1400 (4th Cir. 1993) (abjuring classification of protected groups by the waythey vote rather than by their rac e; to do otherwise would imper missibly"resolv[e] discrimination issues on the basis of whether members of the protected group are elected"); cf. Gingles , 478 U.S. at 99-100 (O'Connor, J., concurring) (agreeing that, for purposes of a section 2 claim, voting must correlate with the race of the voter).

The existence of this misdirected emphasis is borne out by the fact that the appellants' proposed reconfiguration of Senate District 2 would strengthen the electoral power not only of the African-American community but als o of the sizable white and Hispanic crossover vote. That increasedpolitical clout wouldcome at the expense of the remaining two-thirds of the white and Hispanic voters. The VRA empowers courts to protect the rights of

a minority group to participate in the electoral process so that such a group, if treated fairly, can become a majority. It does not give courts the raw power to privilege the interests of the few

over the interests of the many, much less the power to override the normal functioning of the majorita rian p rocess. See Vecinos , 72 F.3d at 982; Smith , 984 F.2d at 1400-02.

The democratic system re mains the best and fairest electoral system ever devised. Even so, the realities of democracy

are sometimes harsh. The appellants seek to avoid these realities19 My colleagues write that "[i]n this case, it is undisputed

that a minority group's preferred candidate, an incumbent, failed to win reelection in the first election after the state legislature adopteda redistricting plan that decreased the percentage representation of that minority in the candidate's home electoral district." Maj. Op. at 34. That is not a relevant consideration. When the appellants served their amended complaint (May 14, 2002) -45- by tempting us to treat crossover voters as if they constitute part of a protected minority within the purview of section 2. Fidelity to core democratic values demands that we resist this temptation. While the Gingles preconditions contemplate a certain degree of

crossover voting, see Gingles , 478 U.S. at 56; Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ. , 4 F.3d 1103, 1123 (3d Cir. 1993), there is a point at which crossover voting becomes so large a part of th e pictur e as to crowd out the possibility of a legally cognizable vote dilution claim.

That is the picture painted by the amended complaint. Where, as in this case, the bricolage comprises a roughlyequal mix of minority and crossover voters, allowing a vote dilution claim to go forward would make sense only if the end game were to ensure the

success of candidates favored by minority groups. As I already have explained, however, that is not the objective of the VRA. Nor should it be; my colleagues' "functional approach" would create a topsy- turv yworld in which legislatures would have to base redistricting plans not on the need to preserv e le gitimate majority/min orit ydistricts, but, rather, on guesswork about the way in which each constituent was likely to vote. 19andwhen the district court dismissed the case (September 9, 2002),

no elections had yet been held under the redistricting plan. -46- In short, I do not believe that sect ion 2 of the VRA author izes vote dilution claims that are wholly dependent upon massive crossover voting. There is a critical distinction between minority-preferredcandidates who lose because redistricting excludes too much of the minority electorate from a particular district (illegal vote dilution) and minority-preferred candidates who lose because they do not attract enough votes from other folks within the district (legal majoritarian rule). The amended complaint, even when taken at face value, blurs this distinction.

Mycolleagues attempt to blunt the for ce o f this reasoning in two ways. First, they posit that vote dilution claims must be decided based on the totality of the circumstances. That is so — but the statutory provision they cite, 42 U.S.C. § 1973(b), does not inoculate all such cl aims against Rule 12(b)(6) challenges. A plaintiff class must do more than cry "vote dilution" to engage the gears of the VRA. The Gingles preconditions act as a sentry at the gates — a brigh t-line rule that mu st be satisfied before the totality of the circumstances

comes into play. See Valdespino v. Alamo Heights Indep. Sch. Dist. , 168 F.3d 848, 852 (5th Cir. 1999) (collecting cases); City of Carrollton Br anc h of N.A.A.C.P. v. Stallings , 829 F.2d 1547, 1550-51 (11th Cir. 1987). This framew ork helps ensure the20 Given the widesprea d popularity of plurality election

systems, the Supreme Court must certainly have ta ken their existence into account in fo rmul ating the Gingles preconditions. Cf. Voinovich , 507 U.S. at 157 (applying the Gingles preconditions without making any allowance for Ohio's use of a plurality voting system). I therefore see no reason why we should not adhere to the Supreme Court's rendition of the first Gingles precondition without en gaging in rank speculation about the possibility of multi pl e candidacies. -47- effectiveness of the remedy created by the VRA without distorting either its scope or intent.

Mycolleagues' second gambit is to stress th at R hode Islandelects its state senators under what amounts to a plurality system. This seems to me to be a bit of a redherring. On the one hand, cases holding pl aintiffs to the requirements of the first Gingles precondition despite the existence of a plurality election systemare ubiquitous. 20 See , e.g. , Perez v. Pasadena Indep. Sch. Dist. , 165 F.3d 368, 370-71 (5th Cir. 1999); Stabler v. County of Thurston , 129 F.3d 1015, 1025 (8th Cir. 1997); Cane v. Worcester Cou nty , 35 F.3d 921, 924 n.4, 925 (4th Cir. 1994); McNeil v. Springfield Park Dist. , 851 F.2d 937, 943-44 (7th Cir. 1988). On the other hand, c ases in which courts have recognized a section 2 claimby members of a small minority group simply because they reside in a jurisdiction that employs a plurality election system

are nonexistent. Mo reover, plurality election rules are, as my colleagues apparently concede, more responsive to minority voters than simple majority election rules. It would be ironic to relax the first Gingles precondition for vote dilution claims arising-48-

under an electoral structure already more favorable to minorities. It also would make little sense, politicallyor mathematically, to proclaimthat a plurality rule supports a minority group's ability to elect when its members number 26% of the electorate yet utterly forecloses that ability when they number 21% of the electorate.

Last — but far from least — my colleagues' reliance on the existence of a plurality election systemign ores the vicissitudes of such systems. For example, in elections in which only two candidates are on the ballot or in which one of several candidates enjoys great popularity, minorities will have to muster

a clear majority of all votes cast in order to elect the candidate of their choice. The permutations are endless. To my mind, this

means that the putative effects of a plurality voting system are simplytoo speculative to provide a basis for a convincing vote dilution claim. See Brewer v. Ham , 876 F.2d 448, 455-56 (5th Cir. 1989); McNeil , 851 F.2d at 944. These problems may explain why the appellants never made reference to Rhode Is lan d's plurality election laws in their amendedcomplaint or their appellate briefs.

That ends this aspect of the matter. While I am willing to leave o pen th e possibility that a racial minority group constituting less than 50% of the electo rat e in a particular single-member district may in special cir c umstances satisfy the21 Such a situation may occur, for example, where evidence of

intentional vote dilution exists, e.g. , Garza v. County of Los Angeles , 918 F.2d 763, 770-72 (9th Cir. 1990); Armour v. Ohio , 775 F. Supp. 1044, 1060-62 (N.D. Ohio 1991), or a minority group comprises nearly 50% of the popula tion of a particular district, e.g. , Martinez v. Bush , 234 F. Supp. 2d 1275, 1299 (S.D. Fla. 2002) (three-judge court) (per curiam), or the demograph ic t rend lines are such that the affected minority group reasonably can be expectedto attain majority stat us in the near future, e.g. , Solomon v. Liberty County , 899 F.2d 1012, 1018 n.7 (11th Cir. 1990) (en banc) (Kravitch, J., specially concurring). -49- first Gingles precondition, 21 the facts alleged in this case reflect

no such special circumstances. I conclude, t her efore, that the appella nts ' claim does not and cannot satisfy the first Gingles precondition.

If more were needed — and I doubt that it is — the appellants' claim also fails to satisfy the third Gingles precondition. That precondition requires a showing of nonminority bloc voting (which, for purposes of this case, encompasses the combinedvoting power of whites and Hispanics). Here, such a showing is inconsistent with the theme around which the appellants' case is constructed.

The appellants showcase Senator Walton's past electoral successes as proof of the cogency of their ability to elect claim — but this is a two-edged sword. Consistent electoral success on the part of a racial or ethnic minority group that comprises considerab ly les s than a numerical majority of the electorate is indicative of the absence of nonminority bloc voting and, thus, is presumptively inconsistent with the third Gingles precondition.22 The appellants' argument necessarily presupposes that this

crossover voting peaks at a point below 37%. That is a purely arbitraryfigure and, as such, need not be credited (even for purposes of a motion to dismiss). See , e.g. , Dartmouth Review v. Dartmouth Coll. , 889 F.2d 13, 16 (1st Cir. 1989) (warning that courts should be wary of "unsupported conclusions, s ub jective characterizations, and problematic suppositions" when reviewing dismissal orders under Rule 12(b)(6)). -50- See Gingles , 478 U.S. at 102 (O'Connor, J., concurring); see also S. Christian Leadership Conf. , 56 F.3d at 1291-94 (finding no white bloc voting where African-Americans, though less than a numerical majority, had been largely successful in electing their preferred candidates); Overton v. City of Austin , 871 F.2d 529, 540 (5th Cir. 1989) (per curiam) (similar); see also Brooks v. Miller , 158 F.3d 1230, 1241 (11th Cir. 1998) (noting that cla ims dependent on substantial white crossover voting are inherently inconsistent with fulfillment of the third Gingles precondition); Turner v. Arkansas , 784 F. Supp. 553, 570-71 (E.D. Ark . 1991 ) (three-judge court) (similar). This line of cases reflects a common-sense proposition: that the ability of a racial minority group actually to elect its preferredcandidate may depend upon such a high degree of crossover voting that the third Gingles pr econ dition inevitably fails of satisfaction. So it is here: the appellants' reliance on a high level of crossover voting, ranging upward from a minimum of 32% and

n early equalling the whole of the African-American vote, defenestrates their claim of illegal vote dilution. 2223 The appellants do cite one case, Old Person v. Cooney , 230

F.3d 1113 (9th Cir. 2000), that involves single-member districts. There, the Ninth Circuit found white bloc voting because white voting in excess of 60% defeated mino rit y candidates in most elections. Id. at 1124-27. That case was not decided based on the rate of crossover voting, but, rather, on the regularity with which the white majority had banded together to defeat minority candidates. See id. at 1127-28 (distinguishing Abrams v. Johnson , 521 U.S. 74, 92-93 (1997), on that very ground). For that reason, the Ninth Circuit neve r s pecified what rate of crossover voting actually existed. -51-

The appellants — and my colleagues — cite a few cases suggesting (or so theysay) that a high rate of crossover voting does not necessarily preclude a finding of racially polarized voting. See , e.g. , Gingles , 478 U.S. at 59-61 (upholding lower court's finding of white bloc voting despite white crossover voting ranging from 8% to 50%); Campos v. City of Baytown , 840 F.2d 1240, 1249 (5th Cir. 1988) (upholding lower court's finding of white bloc voting despite t he fact that 3% to 37% of whites crossed over). But all of these cases addressed multi-member or at-large districts

— situations that pose a much more subtle threat to minority electoral strength precisely because they require higher levels of

crossover voting for minorities to prevail. 23 See Growe , 507 U.S. at 40 ; Cane , 35 F.3d at 926; see also S. Rep. No. 97-417, at 29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206. In the realm of challenges to single-member red istricting plans, no less an authority than the Supre me C ourt has held average majority

crossover voting of 22% to 38% sufficient to demonstrate the "general willingness of [majority] voters to vote for [min ority]-52-

candidates," particularly in c onjunction with a record of significant success by minority candidates. Abrams v. Johnson , 521 U.S. 74, 92-93 (1997) (citat ion and internal quotation marks omitted); cf. Voinovich , 507 U.S. at 151-52, 158 (approving lower court's finding of no majority bloc voting where "black candidates have been repeatedly elected from [single-memb er] districts with only a 35% black population").

To be sure, the appellants asseverate that their past victories occurred only because the "old" district ( in w hich African-Americans comprised approximately 26% of the population) was different than the "new" district (in which African-Americans comprise approximately 21% of the populatio n). But this modest change in the level of African-American penetration does not render the voters' track recordirrelevant. Whatever the precise numbers, African-Americans were and are a numerical minority in the district

— and the appellants are in effect arguing that whenever crossover voting is large enough to secure the success of a minoritypre ferredcandidate, that crossover voting cannot be used t o disprove nonminority bloc voting. Such a rule would conflict with both the realities of modern politics and the objectives of section 2. The better rule is that when African-Americans constitute a relativelysma ll num erical minority yet repeatedly attract a crossover vote sizable enough to elect their preferred candidate,-53-

that fact is highly relevant to (and, as here, may be conclusive in) an analysis of the third Gingles precondition.

In a final effort to salvage the vote dilution claim, my colleagues posit that we cannot make any determinations as to the third Gingles precondition until we have evidenc e of voter registration, turnout, andvoting patterns. That might ordinarily be true — but the appellants have not presented us with an ordinary vote dilution claim. Rather, they make a very specific and highly idiosyncratic claim premised on the notion that at least 32% of the white and Hi spanic population can be expected regularly to cross

over in order to form the ma jorit y required by the first Gingles precondition. This approach inextricably intertwines the first and third Gi ngles preconditions, so that allowances given as to one necessarily have repercussions as to the other. See Sanchez v. Colorado , 97 F.3 d 1 303, 1315 (10th Cir. 1996) (remarking the interrelatedness of these preconditions); Jenkins , 4 F.3d at 1133 n.32 (same). That is one reason why this case cannot survive a motion to dismiss.

Although "the degree of racial b loc voting that is cognizable as an element of a § 2 vote dilution claim will vary according to a variety of factual circumstances," Gingles , 478 U.S. at 57-58, the touchstone of the third Gi ngles precondition is whether the majority votes sufficiently as a bloc to enable it to defeat the minority's preferred candidate most of the time. See-54-

id. at 56; Sanchez , 97 F.3d at 1319. Crossover voting in South Providence enabled African-American voters regularly to elect the candidate of their choice despite the relatively small AfricanAmerican constituency in the pr edeces sor district. This is a telling bit of political his tory . See Gingles , 478 U.S. at 56 (noting that the amount of nonminority bloc voting that is legally significant varies in part with the size of the minority group within the district); Rangel v. Morales , 8 F.3d 242, 245 (5th Cir. 1993) (same). It demonstrates to my satisfaction that no legally cognizable anti-mino rit y bloc voting exists here (and that, therefore, the app ell ants have failed to meet the third Gingles precondition).

I give the majority its due. In the ordinary course, district courts should allow col orab le vote dilution claims to proceed beyond the Rule 12(b)(6) stage. And, moreover, if one is willing to split an infinit e number of hairs, it always will be possible to conjure up remote scenarios that might be disinterred during discovery (and, thus, prevent the entry of a motion to dismiss). B ut Ru le 12(b)(6) does not invite courts to engage in such endless conjecture. See Garrett v. Tandy Corp. , 295 F.3d 94, 105 (1st Cir. 2002) ("The method of Rule 12(b)(6) requires courts

. . . to resolve all realistic possibilities in the pleader's favor." (emphasis supplied)). Some case s are sufficiently clear that, on any rational view of the facts alleged, a vote di lutio n-55-

claimis insupportable. See Mixson v. Ohio , 193 F.3d 389, 399-400, 406-08 (6th Cir. 1999) (affirming dismissal of section 2 claim under Rule 12(b)(6)); Mirrione v. Anderson , 717 F.2d 743, 746 (2d Cir. 1983) (similar); Martinez v. Bush , 234 F. Supp. 2d 1275, 1280 n.7 (S.D. Fla. 2002) (three-judge court) (per curiam) (granting defendants ' R ule 12(b)(6) motion with respect to a section 2 clai m). This is such a case: the allegations are unapologetic, the key facts are essentially undisputed, andthe amended complaint stands or falls on the cogency of the appellants' avant-garde legal theory. Like the district court, I find that theory unacceptable.

I add a coda. Reapportionment and redis tric ting are thornymatters — andmatters in which state legislatures are best suitedto lead. Within wide limits, courts ought to respect legislative choices. See Voinovich , 507 U.S. at 156-57 (collecting cases). I understand that respect is not equivalent to blind allegiance, and if there were signs that the Rhode Island General Assembly had acted in derogation of the Co nst itution or federal law, I would not hesitate to support judicial intervention. But such signs are lacking here, so respect counsels restraint.

Give n the mixed racial and ethnic composition of South Providence, the Rhode Island General Assembly was caught between a rock and a hard place. It made a series of difficult choices, not perfectly, but within the compass of its legal and constitutional authority. Whether or not I would have drawn the lines of the-56-

affecteddistrict in the same manner is beside the point. What matters is that the General Assembly's line-drawing is a product of legitimate legislative choices made within allowable limits. Accepting the appellants' vote dilution claim would nullify these choices and give an unfair advantage to a particular subset of voters — an advantage beyond any that Congress contemplated in drafting the VRA. In the bargain, accepting the claim would shrink the district-wide Hispanic population, thereby disadvantaging another group of minority voters.

I have said my piece. Because the appellants fail to allege the kind of impermissibly race-based distortion of electoral opportunitythat would sustain a claim under section 2 of the VRA, I respectfully dissent.