United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1628

___________

Pearl Cottier; Rebecca Three Stars, * 

* 

Appellees, * 

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

City of Martin; Todd Alexander; * 

Rod Anderson; Scott Larson; * 

Don Moore; Brad Otte; Molly Risse, * 

in their official capacities as members *

of the Martin City Council; *

Janet Speidel, in her official capacity *

as Finance Officer of the * 

City of Martin, * 

* 

Appellants. *

___________

Submitted: March 12, 2008

Filed: December 16, 2008

___________

Before BYE, SMITH, and COLLOTON, Circuit Judges.

___________

SMITH, Circuit Judge.

In September 2002, the American Civil Liberties Union brought an action on

behalf of two Native Americans ("plaintiffs") against the City of Martin, South

Dakota, and various city officials in their official capacities (collectively "Martin").

Plaintiffs challenged Ordinance 122, which redistricted the Martin City Council ("city
1

The Honorable Karen E. Schreier, Chief Judge, United States District Court

for the District of South Dakota.

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council") ward boundaries, as intentionally and effectively diluting the voting strength

of Native Americans and keeping Native American-preferred aldermen candidates

from being elected in violation of Section 2 of the Voting Rights Act of 1964 (VRA)

and the Fourteenth and Fifteenth Amendments to the United States Constitution. After

a trial, the district court1

 denied relief, finding that plaintiffs had not met their burden

of proving that the white majority in Martin usually voted as a bloc to defeat Native

American-preferred candidates. A panel of this court disagreed and remanded the

matter to the district court to complete the analysis required by the Supreme Court

pursuant to Section 2 of the VRA as construed by Thornberg v. Gingles, 478 U.S. 30

(1986). Cottier v. City of Martin, 445 F.3d 1113 (8th Cir. 2006) ("Cottier I"). 

On remand, the district court held, based on the totality of the circumstances,

that Ordinance 122 impermissibly diluted the Native American vote and violated

Section 2 of the VRA. Consequently, the district court instructed Martin to submit a

remedial proposal consistent with the district court's opinion. Martin failed to propose

a remedial plan, instead arguing no possible remedy existed for the violation. In

contrast, plaintiffs proposed three plans. Subsequently, in a remedial order, the district

court adopted plaintiffs' Plan C, an at-large, cumulative voting scheme. Martin now

appeals, arguing that the district court erred: (1) in finding that, under the totality of

the circumstances, Ordinance 122 diluted the vote of Native Americans in Martin in

violation of Section 2 of the VRA; and (2) in ordering remedial Plan C. We affirm. 

I. Background

Plaintiffs, Pearl Cottier and Rebecca Three Stars, are Native Americans,

qualified electors, members of the Oglala Sioux Tribe, and residents of Martin, South

Dakota. Martin is located in the southwestern part of South Dakota and is part of

Bennett County, which is adjacent to the Pine Ridge and Rosebud Indian
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Reservations. According to the 2000 census, Martin had a total population of 1,078

persons and a voting-age population (VAP) of 737 persons. The city is small in both

population and land area; it covers slightly more than one half of a square mile. The

Native American population in Martin is 485, which is 44.71% of the total population

and 36% of the VAP. 

As described by a prior panel in this case: 

For more than a decade Martin has been the focus of racial tension

between Native-Americans and whites. In the mid-1990's, protests were

held to end a racially offensive homecoming tradition that depicted

Native-Americans in a demeaning, stereotypical fashion. Concurrently,

the United States Justice Department sued and later entered into a

consent decree with the local bank requiring an end to "redlining" loan

practices and policies that adversely affected Native-Americans, and

censuring the bank because it did not employ any Native-Americans.

Most recently, resolution specialists from the Justice Department

attempted to mediate an end to claims of racial discrimination by the

local sheriff against Native-Americans. 

Cottier I, 445 F.3d at 1115–16. 

Historically, Martin was divided into three wards, each electing two city council

members to staggered two-year terms on a non-partisan ballot. In addition, Martin has

elected a mayor who ran at-large for a two-year term on a non-partisan ballot. The

district court noted that the record is unclear as to when the ward lines were originally

drawn but, by 2001, the wards had not been changed in 47 years and the wards within

the city were not within the requisite variation of population. 

Pursuant to South Dakota law, the city council had the power and duty to

redistrict the ward boundaries following the decennial federal census. Martin

contracted with Black Hills Council of Local Governments (BHCLG) to reconfigure
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the wards so that they would comply with the one-person, one-vote requirement in the

Equal Protection Clause of the Fourteenth Amendment, see Reynolds v. Sims, 377

U.S. 533, 562–63 (1964). Initially, BHCLG used incorrect population data in drawing

the new wards, and so, on January 16, 2002, the city council, unaware of the errors,

adopted the flawed redistricting recommendations submitted by BHCLG in Ordinance

121. 

Once these new wards were published in the local newspaper, plaintiffs

contacted their attorneys because they suspected the new boundaries were flawed.

After analyzing the new boundaries in Ordinance 121, the attorneys concluded the

new wards were severely malapportioned in violation of the one-person, one-vote

principle. Counsel for plaintiffs also concluded that the new wards unlawfully

fragmented the Native American population in violation of Section 2 of the VRA. In

early March 2002, BHCLG received a letter detailing these concerns and Martin's

Mayor, Bill Kuxhaus, was copied on the letter. The city council then asked BHCLG

to redraw the wards to comply with the one-person, one-vote requirement, and a new

map was submitted to the city council.

On March 12, 2002, plaintiffs' attorneys received a copy of the new redistricting

plan, again drafted by BHCLG. Plaintiffs believed this revised plan did not fix the

fragmentation problem, and they wrote a letter to the Mayor expressing this concern

that same day. Despite the expressed concern, the city council proceeded to adopt the

revised redistricting plan enacted as Ordinance 122. As has been done historically,

Ordinance 122 divided Martin into three wards with no ward having a Native

American majority. The district court created the following figure to summarize the

total population and VAP under Ordinance 122:
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Ordinance 122 Statistics

Ward Total

Population

Indian

Population

Percent

Indian

VAP Indian

VAP

% Indian

VAP

1 352 165 46.88% 236 90 38.14%

2 361 177 49.03% 237 86 36.29%

3 365 143 39.18% 264 90 34.09%

Ordinance 122 became effective on May 8, 2002, and it is the plan currently in effect

in Martin.

In an attempt to prevent the city from implementing this new plan, Native

American voters submitted a petition to have Ordinance 122 referred to the voters as

a ballot issue. City Finance Officer Janet Speidel reviewed this petition and decided

that the petition did not contain a sufficient amount of valid signatures. Speidel did not

tell the petitioners that the signatures were insufficient until the deadline for

petitioning ballot initiatives had passed. 

On April 3, 2002, plaintiffs brought suit alleging Ordinance 121 violated the

one-person, one-vote requirement, and the district court dismissed the complaint as

moot because Ordinance 121 had been replaced by Ordinance 122, which the court

found equally redistributed the population into three wards alleviating the one-person,

one-vote problem. The district court also granted plaintiffs' motion to supplement its

complaint. Plaintiff's supplemented complaint challenged Ordinance 122, as

intentionally and effectively diluting the voting strength of Native Americans and

keeping Native American-preferred aldermen candidates from being elected in

violation of Section 2 of the VRA and the Fourteenth and Fifteenth Amendments to

the United States Constitution. 
2

In Gingles, the Supreme Court highlighted factors set out in the Senate report

accompanying the VRA. These Senate factors were intended to assist in determining

whether, under the totality of the circumstances, a challenged electoral scheme dilutes

the minority vote. Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1385 (8th Cir.

1995).

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Following an eleven-day bench trial, the district court found that plaintiffs had

met the first two conditions of Gingles—plaintiffs met their burden of showing that

a permissible remedy in the context of the challenged system could be fashioned and

that Native Americans in Martin were politically cohesive. Gingles, 478 U.S. at

49–51. However, the district court also found that plaintiffs failed to prove, by a

preponderance of the evidence, the third Gingles precondition—that "the white

majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's

preferred candidate"—and therefore, the district court entered judgment for Martin on

the vote dilution claim. Id. at 51. The district court also found that plaintiffs could not

prevail on their intent claim because there was no evidence that Ordinance 122 had

been adopted and maintained for a discriminatory purpose. 

Plaintiffs appealed, and a panel of this court reversed and remanded holding

that the white majority in Martin usually voted in a way to defeat Native Americanpreferred candidates. We remanded, instructing the district court to complete the

analysis required by Gingles, and "[i]f the district court then finds in favor of the

plaintiffs, it shall develop a plan under which Native-Americans will have a

reasonable opportunity to elect an Indian-preferred candidate." Cottier I, 445 F.3d at

1115.

On remand, the district court reviewed the Senate factors,2

 as well as other

relevant circumstances such as proportionality, and found that, based on the totality

of the circumstances, Ordinance 122 impermissibly diluted the Native American vote

in violation of Section 2 of the VRA. Having concluded that Ordinance 122 violated

the VRA, the court held that plaintiffs were entitled to a "full and complete remedy."
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Thereafter, the court gave Martin the first opportunity to propose a redistricting plan

that would remedy the Section 2 violation. 

Martin failed to propose a remedial plan, and, instead, argued that no remedy

could be crafted for the violation. Because Martin refused to propose a remedy, in an

order dated February 9, 2006, the district court found it could either fashion its own

remedy or use a remedy proposed by plaintiffs. The district court chose to adopt

plaintiffs' Plan C which the district court described as follows:

In Plan C, Martin is not divided into aldermanic wards. Instead, Plan C

adopts an at-large voting scheme using cumulative voting. (Docket

413-4). Martin will still have six city council members, elections for

which will be held in a 3-3 staggered cycle. Elections will be held in

2007 for the three seats whose current members' terms expire in 2007.

Elections will be held in 2008 for the remaining three seats. Candidates

shall run as a field without designation of positions or number posts.

Candidates can be from any part of Martin. Pursuant to the cumulative

voting scheme, each voter will receive three votes. Each voter can cast

one, all, or any whole number of his or her votes for any one or more of

the candidates. No voter shall be required, however, to cast one vote, or

any other minimum number of votes, for any candidate. Nor shall any

voter be required to cast all of the votes available to that voter in a

particular election. The winners of the election will be the three

candidates that receive the highest number of votes. 

Cottier v. City of Martin, 475 F. Supp. 2d 932, 936 (D. S.D. 2007). 

The district court concluded that no form of municipal government authorized

by South Dakota law—common council structure or board of commissioners—would

remedy the Section 2 VRA violation in this case, and that Plan C was the proper

remedy. 
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II. Discussion

Martin argues on appeal that the district court erred in: (1) finding that, under

the totality of the circumstances, Ordinance 122 dilutes the vote of Native Americans

in Martin, in violation of Section 2 of the VRA; and (2) ordering remedial Plan C. 

A. Section 2 Violation—Totality of the Circumstances

Martin argues on appeal that the district court erred in finding that plaintiffs

established, through the totality of the circumstances, a violation of Section 2 of the

VRA. "The District Court's determination whether the § 2 requirements are satisfied

must be upheld unless clearly erroneous. Where the ultimate finding of dilution is

based on a misreading of the governing law, however, there is reversible error."

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, —, 126 S.Ct. 2594, 2614

(2006) (internal citations and quotations omitted).

Using the clear error standard: 

[W]e will overturn a factual finding only if it is not supported by

substantial evidence in the record, if it is based on an erroneous view of

the law, or if we are left with the definite and firm conviction that an

error was made. We give due regard to the district court's opportunity to

judge the credibility of the witnesses. A district court's choice between

two permissible views of evidence cannot be clearly erroneous. 

United States v. Vertac Chem. Corp., 453 F.3d 1031, 1039 (8th Cir. 2006) (internal

citations and quotations omitted).

Section 2 of the VRA provides that a denial of the right to vote occurs when:

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
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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). "The essence of a § 2 claim is that a certain electoral law,

practice, or structure interacts with social and historical conditions to cause an

inequality in the opportunities enjoyed by [minority] and white voters to elect their

preferred candidates." Cottier I, 445 F.3d at 1116 (quoting Gingles, 478 U.S. at 47).

In order to establish a Section 2 violation, plaintiffs must prove the following

three elements—often referred to as the "Gingles preconditions"—by a preponderance

of the evidence: "(1) the racial group is sufficiently large and geographically compact

to constitute a majority in a single-member district; (2) the racial group is politically

cohesive; and (3) the majority votes sufficiently as a bloc to enable it usually to defeat

the minority's preferred candidate." Bone Shirt v. Hazeltine, 461 F.3d 1011, 1018 (8th

Cir. 2006) (internal citation and modifications omitted). 

In the first appeal, this court held that plaintiffs have proven all three Gingles

preconditions by a preponderance of the evidence. Cottier I, 445 F.3d at 1122.

Satisfying the three Gingles preconditions takes the plaintiff "a long way towards

showing a section 2 violation," however, the analysis does not stop here. Bone Shirt,

461 F.3d at 1021 (quoting Harvell, 71 F.3d at 1390).

"If all three Gingles requirements are established, the statutory text directs us

to consider the 'totality of circumstances' to determine whether members of a racial

group have less opportunity than do other members of the electorate. The general

terms of the statutory standard 'totality of circumstances' require judicial

interpretation." League of United Latin Am.Citizens, 126 S. Ct. at 2614. The Senate

Committee report accompanying the 1982 VRA amendment noted the following

"inexhaustive, objective factors in determining whether the totality of the

circumstances indicate a Section 2 violation":
3

The district court also weighed the additional factor of proportionality. See

Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994). ("'Proportionality' as the term

is used here links the number of majority-minority voting districts to minority

members' share of the relevant population. The concept is distinct from the subject of

the proportional representation clause of § 2 . . . .). Recently in League of United Latin

Am. Citizens v. Perry, the Supreme Court held that proportionality is a relevant fact

in the totality of the circumstances. 126 S. Ct. at 2620. Neither in their brief nor in oral

argument does Martin discuss the district court's finding that, in the district court's

opinion, proportionality weighed in favor of plaintiffs. 

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(1) the extent of any history of official discrimination in the state or

political subdivision that touched the right of the members of the

minority group to register, to vote, or otherwise to participate in the

democratic process;

(2) the extent to which voting in the elections of the state or political

subdivision is racially polarized;

(3) the extent to which the state or political subdivision has used

unusually large election districts, majority vote requirements, anti-single

shot provisions, or other voting practices or procedures that may enhance

the opportunity for discrimination against the minority group;

(4) if there is a candidate slating process, whether the members of the

minority group have been denied access to that process;

(5) the extent to which members of the minority group in the state or

political subdivision bear the effects of discrimination in such areas as

education, employment and health, which hinder their ability to

participate effectively in the political process;

(6) whether political campaigns have been characterized by overt or

subtle racial appeals;

(7) the extent to which members of the minority group have been elected

to public office in the jurisdiction. 

Bone Shirt, 461 F.3d at 1021–22 (internal citations omitted). Also useful inquiries

include "(1) was there a significant lack of response from elected officials to the needs

of the minority group, and (2) was the policy underlying the jurisdiction's use of the

current boundaries tenuous." Id. at 1022.3
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The two factors that predominate the totality analysis are "the extent to which

voting is racially polarized and the extent to which minorities have been elected under

the challenged scheme." Bone Shirt, 461 F.3d at 1022 (quoting Harvell, 71 F.3d at

1390). The district court found that seven of the above factors weighed in plaintiffs'

favor: history of voting-related discrimination; racially polarized voting; voting

practices or procedures that tend to enhance opportunity for discrimination; effects of

past discrimination in education, employment and health; success of minority

candidates; lack of responsiveness; and proportionality. 

The district court found the following two factors weighed in favor of Martin:

denial of access to candidate-slating process (plaintiffs conceded there is not a formal

slating process in Martin); and tenuousness of the city's policy drawing district lines

(the court found Martin began the redistricting effort because it was obligated to do

so after the 2000 census and that it was done to reduce an unacceptable level of

variation in population among the three wards). According to the district court, the use

of racial appeals in campaigns weighed in favor of neither plaintiffs nor Martin. The

district court found that although there was some evidence that racial appeals were

used, the court gave the evidence little weight because most involved elections outside

of Martin.

As to the two primary factors in our totality of the circumstances analysis—"the

extent to which voting is racially polarized and the extent to which minorities have

been elected under the challenged scheme," Harvell, 71 F.3d at 1390—the record

supports the district court's finding that these factors weigh in favor of plaintiffs. As

the Cottier I panel acknowledged and the district court found on remand, the exit polls

in the 2003 aldermanic election along with the loss of every Native Americanpreferred candidate since the adoption of Ordinance 122 strongly indicate racially
4

Endogenous elections are elections in the district at issue. Cottier I, 445 F.3d

at 1121 n.5.

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polarized voting in endogenous elections.4

 The 2003 exit polls revealed that in the

aldermanic election in 2003 in ward I, 100% of Native Americans supported the

Native American-preferred candidate but that candidate still lost; therefore, at most,

only 25% of whites voted for that candidate indicating a high degree of polarization.

The ward III exit polls showed that the Native American-preferred candidate received

86% of the Native American vote and still lost. Also, exit polls for the 2003 school

board election revealed that two Native American-preferred candidates received

82.7% and 58.8% of the Native American vote and, at most, only 14.6% and 6.3% of

the white vote—these candidates came in fourth and fifth out of six. Expert and nonexpert witness testimony also indicated racially polarized voting in Martin. 

Regarding the extent to which Native Americans have been elected under the

challenged scheme, there is also substantial evidence in the record to support the

district court's finding that Native Americans have rarely been elected to the city

council and this factor weighs in favor of plaintiffs. The record indicates that four

Native Americans have won a total of seven city council elections between 1981 and

2002 in Martin, and during that time there have been 29 elections for city council in

ward I. The only Native Americans elected in ward I were Melva Marshall, who won

a contested election in 1984 and Molly Risse, who was not a Native Americanpreferred candidate, who won a contested election in 2001.Ward II has had 26

elections and the only Native American elected was Dick Rose who ran unopposed

in both 1991 and 1993. There have been 26 elections in ward III and only one Native

American won (in 1994, 1995, 1997), and he ran unopposed. Therefore, out of 80

elections for city council, Native Americans have won only 7 elections (8.75%). This

evidence shows that Native Americans have some limited success in seeking election,

but, on the whole, success is rare. In 5 of the 7 successful elections, the Native

American candidate ran unopposed. In 3 of the 5 unopposed successes by Native
5

Martin argues that the district court erred in finding that this factor weighed in

plaintiffs' favor because the district court's analysis was too broad and should only

have looked at specific voting discrimination in Martin. However, the district court

was correct that the long, elaborate history of discrimination against Native Americans

in South Dakota and Bennett County in matters related to voting is relevant here. In

fact, we have reversed district courts for failing to consider statewide discrimination

in school district VRA cases. See Buckanaga v. Sisseton Indep. Sch. Dist. No.54-5,

804 F.2d 469, 474–75 (8th Cir. 1986). See also Westwego Citizens for Better Gov't v.

City of Westwego, 946 F.2d 1109, 1121–23 (5th Cir. 1991). 

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Americans, the candidate was incumbent. The district court's findings that this

important factor weighs in favor of plaintiffs was not clearly erroneous. 

The record also shows that Native Americans in Martin, Bennett County and

South Dakota at large have faced a history of voting-related discrimination.5 See Bone

Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1019 (D. S.D. 2004) ("South Dakota officially

excluded Indians from voting and holding office until the 1940s. Even after state laws

were repealed that expressly denied Indians the right to vote, as late as 1975 Indians

were effectively denied the right to vote in certain county elections, and Indians in

certain counties were denied the right to run for the office of county commissioner in

violation of the equal protection clause until 1980") (internal citations omitted). 

Further, the record also supports the district court's finding that Native

Americans in Martin continue to suffer from the effects of past discrimination

including lower levels of income, education, home ownership, automobile ownership

and standard of living. "[P]olitical participation by minorities tends to be depressed

where minority group members suffer effects of prior discrimination such as inferior

education, poor employment opportunities, and low incomes." Gingles, 478 U.S. at

69. We have explicitly recognized that Native Americans in South Dakota continue

to bear the burden of past discrimination, which hinders their political participation.
6

As noted by the district court, according to Summary File 3 from the 2000

census containing socioeconomic data produced by the United States Census Bureau,

36.4% of Native Americans over 25 have not finished high school while only 16.1%

of whites have not finished. The Native American drop-out rate is 21.4%, and it is

3.4% for whites. Only 9.7% of Native Americans have a college degree whereas

20.3% of whites have a college degree. The unemployment rate for Native Americans

is 15.8% which is five times higher than white unemployment rate; median family

income for Native Americans is $25,000 less than the white median income, and at

least forty percent of Native American children lived in poverty while no white

children were living in poverty. And, twice as many Native Americans as whites rent

their homes; value of homes owned by Native Americans is lower; the percentage of

income going to rent is higher for Indians; 18.2% of Indian homes in Martin lack

telephones and 17.2% lacked access to a car, whereas 1.1% of white households were

without a phone and 7.2% lacked a car.

7

We note that, although not necessary for our ultimate holding, the district

court's findings that Senate factors three and eight—voting practices or procedures

that tend to enhance the opportunity for discrimination and unresponsiveness of

elected officials to needs of Native Americans in Martin—weigh slightly in favor of

plaintiffs (but are based on mixed evidence) are not clearly erroneous.

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See Bone Shirt, 461 F.3d at 1022. As the district court found, this case is similar.6

 The

record supports the district court's finding that Native Americans in Martin continue

to suffer the effects of discrimination, including lower levels of income and education

and that Native Americans in Martin suffer from depressed levels of political activity.7

We conclude that the district court's overall weighing of the totality of the

circumstances was not clearly erroneous because the ultimate finding of dilution is not

based on a misreading of the governing law, and it is supported by substantial

evidence in the record. Vertac Chem. Corp., 453 F.3d at 1039. 
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B. Remedy—Plan C

Martin also argues on appeal that the district court erred in imposing Plan C

because it lacked the authority to impose a remedial plan. Martin contends all plans

proposed to the court were either unworkable, ineffective, or in violation of South

Dakota law. We review the district court's remedial order for an abuse of discretion.

Bone Shirt, 461 F.3d at 1017. 

The abuse of discretion standard means that a court has a range of

choice, and that its decision will not be disturbed as long as it stays

within that range and is not influenced by any mistake of law. An abuse

of discretion occurs if a relevant factor that should have been given

significant weight is not considered, if an irrelevant or improper factor

is considered and given significant weight, or if a court commits a clear

error of judgment in the course of weighing proper factors. 

Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004) (internal citations and

quotations omitted). 

Upon finding a Section 2 violation, the district court must develop a

constitutional remedy and give the defendant the first opportunity to submit a remedial

plan. Bone Shirt, 461 F.3d at 1022; Cottier I, 445 F.3d at 1123. If the defendant

refuses to submit a remedial plan, it is then up to the district court to fashion its own

remedy or adopt a remedial plan proposed by the plaintiff. Bone Shirt, 461 F.3d at

1022.

"In formulating a remedial plan, the first and foremost obligation of the district

court is to correct the Section 2 violation." Id. Second, the court's remedy should

"achieve population equality while avoiding, when possible, the use of multi-member

districts" and it should be narrowly tailored. Id. at 1022–23. Third, the remedial plan

must not violate Sections 2 or 5 of the VRA. Id. at 1023. "Finally, the plan should not

'intrude on state policy any more than is necessary' to uphold the requirements of the
8

Footnote 4 of the March 22, 2005, district court opinion read "Plaintiffs proffer

Illustrative Plan C as an alternative which would allow Indians to elect preferred

candidates in numbers more proportional to the Indian population. Although

Illustrative Plan C's limited voting plan cannot be a racial gerrymander, the court does

not believe it has authority to order such a remedy. Cane v. Worcester County,

Maryland I and II, 35 F.3d 921 (4th Cir. 1994). . . ." 

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Constitution." Id. (quoting Upham v. Seamon, 456 U.S. 37, 41–42 (1982 ) (per

curiam)). 

In Cottier I, this court reviewed the district court's denial of relief to plaintiffs.

Cottier I, 445 F.3d at 1116–22. Before that appeal, the district court had denied relief

to plaintiffs on the basis that they had not established the third Gingles factor.

Specifically, the district court ruled that plaintiffs had not established that the white

majority usually voted in a way to defeat the Native American-preferred candidate.8

The Cottier I panel reversed that decision in part, concluding that plaintiffs had

established the third, and therefore all, Gingles factors. The prior panel affirmed the

district court's finding that plaintiffs had met their burden under the first Gingles

factor in establishing that the Native American community in Martin was sufficiently

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

Id. at 1118. In discussing the first Gingles factor the prior panel stated: 

The ultimate viability and effectiveness of a remedy is considered at the

remedial stage of litigation and not during analysis of the Gingles

preconditions. At the initial stage, the plaintiff must only show that

"minority voters possess the potential to elect representatives in the

absence of the challenged structure or practices." Gingles, 478 U.S. at 50

n.17, 106 S. Ct. 2752; see also Dickinson v. Indiana State Election Bd.,

933 F.2d 497, 503 (7th Cir. 1991); Houston v. Lafayette County, 56 F.3d

606, 611(5th Cir. 1995). Although Martin argues the plans are not viable

or stable, the ultimate end of the first Gingles precondition is to prove

that a solution is possible, and not necessarily to present the final

solution to the problem. Gingles, 478 U.S. at 50 n.17, 106 S. Ct. 2752.
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Id. at 1117 (emphasis in the original). After holding that plaintiffs had established all

three Gingles preconditions, the prior panel stated that it would remand the case to the

district court to determine if plaintiffs were entitled to relief under the totality of the

circumstances. Id. at 1122. The prior panel then stated: 

In the event the district court finds that under the totality of the

circumstances, the plaintiffs are entitled to relief, the district court shall

devise and implement a remedy that will give Native-Americans in

Martin a reasonable opportunity to elect Indian-preferred candidates to

alderman. In so doing, the defendant shall be given an opportunity to

propose a remedy within a specified amount of time. See Cane v.

Worcester County, Md., 35 F.3d 921, 927 (4th Cir. 1994). The court

should then review the proposed order to determine whether it is "legally

unacceptable." Id. If the defendant fails to propose a legally acceptable

remedy, the district court shall devise a plan that ensures that

Indian-preferred candidates have a reasonable chance of prevailing in

Martin municipal elections for alderman. Among its options, the district

court has the discretion to implement any of the three plans presented by

the plaintiffs. 

Id. at 1123. (emphasis added). At the end of the above paragraph, in a footnote, the

prior panel stated:

We disagree with the district court's finding that it is unable to apply an

at-large voting system in Martin. In Cane, the court considered the

amount of deference due to a legislative policy decision underlying

proposed electoral schemes. Cane, 35 F.3d at 927–28. Even where the

legislative body fails to propose a plan or where the plan proposed is

legally unacceptable, "the court, in exercising its discretion to fashion a

remedy that complies with § 2, must to the greatest extent possible give

effect to the legislative policy judgments underlying the current electoral

scheme or legally unacceptable remedy offered by the legislative body."

Id. at 928. If, at the remedy stage, a redistricting of Martin's wards

appears unworkable, it appears that plaintiffs' third plan would be a
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viable option. Whereas the plan in Cane completely eliminated elected

positions, plaintiffs' at-large plan continues Martin's practice of

staggering its aldermanic elections and maintains the current number of

aldermen. Moreover, its current form of aldermanic government is by

choice, not by legislative mandate. See S.D. Codified Laws §§ 9-11-5;

9-11-6. In essence, an at-large election would change Martin into a

single ward rather than three wards. More importantly, an at-large

system would conform Martin to the requirements of section 2 of the

Voting Rights Act. 

Id. at n.7. (emphasis added). In the remedial order at issue the district court explicitly

stated that it was following our panel's decision as law of the case: 

Defendants argue that South Dakota law prohibits the court from

adopting Plan C. Specifically, defendants argue that Martin uses the

common council form of municipal government, and that state law

permits neither at-large districts nor cumulative voting in the common

council structure. See SDCL 9-8-4. Defendants also argue that only the

voters of Martin, not the court, can change Martin's form of government.

The court disagrees that South Dakota law prevents the court from

adopting Plan C. Indeed, the Eighth Circuit explicitly held that the court

had the power to adopt Plan C: "If, at the remedy stage, a redistricting of

Martin's wards appears unworkable, it appears that [Plan C] would be a

viable option." Cottier, 445 F.3d at 1123 n.7. The Eighth Circuit's

decision on this matter is the law of the case, and this court is bound to

follow it. See Mosley v. City of Northwoods, Mo., 415 F.3d 908, 911 (8th

Cir. 2005). The court thus concludes that it has the power to adopt Plan

C. 

Cottier v. City of Martin, 475 F. Supp. 2d at 937. 

Although the prior panel acknowledged that the Gingles analysis dealt only

with possible solutions instead of ultimate, viable or stable solutions, the panel also

concluded that the district court had the authority to implement Plan C, and the district

court stated that it was bound by that holding as law of the case. We realize that the
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third Gingles factor was at issue in our prior panel decision, and so the statements

about Plan C were dicta. However, the prior panel did instruct the district court that

on remand, in determining a remedy, "[a]mong its options, the district court has the

discretion to implement any of the three plans presented by the plaintiffs." Cottier I,

445 F.3d at 1123. We conclude, given the prior panel's instruction, that the district

court reasonably believed that it had the discretion to adopt Plan C. We hold that the

district court did not abuse its discretion in adopting Plan C. 

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

COLLOTON, Circuit Judge, dissenting.

After the district court’s dismissal of this case was reversed by a divided panel

in Cottier v. City of Martin, 445 F.3d 1113 (8th Cir. 2006) (Cottier I), the district court

on remand ruled that the City of Martin was liable for diluting the voting strength of

Native Americans, in violation of § 2 of the Voting Rights Act of 1965. Cottier v.

City of Martin, 466 F. Supp. 2d 1175 (D.S.D. 2006). As a remedy, the district court

ordered the City to adopt a municipal government structure that is not authorized by

South Dakota law, and to implement an at-large, cumulative voting scheme designed

to result in the election of a candidate preferred by Native American voters in each

election cycle. Cottier v. City of Martin, 475 F. Supp. 2d 932, 936 (D.S.D. 2007). 

I would reverse the judgment of the district court. To the extent the plaintiffs

made a sufficient showing to justify a finding of liability for vote dilution under § 2,

this showing required proof that Native Americans were “sufficiently large and

compact to constitute a majority in a single-member district.” Thornburg v. Gingles,

478 U.S. 30, 50 (1986). If the record supports that conclusion (the so-called first

Gingles precondition), then it was unnecessary for the district court to impose a

remedy contrary to South Dakota law. The appropriate remedy would have been to
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create a district (or ward) in which Native Americans constitute a majority. The

district court concluded, however, that it “could not draw a three-ward plan that

contains an effective majority of Indian voters in one ward.” Cottier, 475 F. Supp. 2d

at 938. If this conclusion is correct, then there was no liability for vote dilution in the

first place, because the first Gingles precondition was not satisfied. Accordingly, I

would remand the case to the district court with directions either to revisit the finding

of liability and dismiss the case if the plaintiffs have failed to meet the first Gingles

precondition, or to implement a remedy that conforms to South Dakota law by

creating a ward in which Native Americans constitute a majority.

The Supreme Court in Gingles established three preconditions to a finding of

liability under § 2. The first precondition is that the minority group is large enough

and geographically compact enough that it would be a majority in a single-member

district. 478 U.S. at 50. The Court explained that the reason for this precondition is

to ensure that minority voters “possess the potential to elect representatives in the

absence of the challenged structure or practice.” Id. at 50 n.17 (emphasis in original).

If minority voters are not a sufficiently large and compact group to constitute a

majority in a single-member district – “the smallest political unit from which

representatives are elected” – then it follows that they have no potential to elect a

representative of their choice, and there is no principled basis to find that their voting

strength has been “diluted.” Id.

“To establish the first Gingles precondition, a plaintiff must demonstrate a

proper and workable remedy exists.” Cottier I, 445 F.3d at 1117. In Stabler v. County

of Thurston, 129 F.3d 1015 (8th Cir. 1997), this court recognized that where the

plaintiffs fail to present a workable remedy in which “Native Americans are

geographically compact to form an effective voting majority in a single-member

district,” they do not meet the first precondition of Gingles, and they fail to establish

liability under § 2. Id. at 1025. Stabler thus echoed the conclusion of other circuits

that “[t]he inquiries into remedy and liability . . . cannot be separated,” and that “[a]
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district court must determine as part of the Gingles threshold inquiry whether it can

fashion a permissible remedy in the particular context of the challenged system.”

Nipper v. Smith, 39 F.3d 1494, 1530-31 (11th Cir. 1994) (en banc); id. at 1547

(Edmondson, J., concurring in part and concurring in result); accord Sanchez v.

Colorado, 97 F.3d 1303, 1311 (10th Cir. 1996). As the Supreme Court put it in

Growe v. Emison, 507 U.S. 25 (1993), “[u]nless these points are established, there

neither has been a wrong nor can be a remedy.” Id. at 40-41.

In Cottier I, the district court found that the first precondition was satisfied, 445

F.3d at 1117, and a panel of this court, applying a clearly erroneous standard of

review, id. at 1116, affirmed the district court’s finding. Id. at 1118. After this court

reversed the district court’s finding that the third precondition was not established, id.

at 1122, the district court on remand found that under the totality of the circumstances,

the plaintiffs had established vote dilution that violated § 2. 466 F. Supp. 2d at 1199.

When it turned to the remedy, however, the district court effectively backtracked on

its previous conclusion that the plaintiffs had established the first Gingles

precondition. At that point, the court concluded that “[r]edistricting Martin’s threeward system will not remedy the § 2 violation,” cited an expert who “could not create

a three-ward plan in Martin that contained an effective majority of Indians,” and found

that it “could not draw a three-ward plan that contains an effective majority of Indian

voters in one ward.” 475 F. Supp. 2d at 938. Once the court found in its remedial

analysis that Native Americans were not geographically compact enough to form an

effective voting majority in a single-member ward, Stabler dictated a corresponding

finding that the first Gingles precondition was not met, and that the plaintiffs failed

to establish a § 2 violation. Stabler, 129 F.3d at 1025; see also Nipper, 39 F.3d at

1533 (“The absence of an available remedy is not only relevant at the remedial stage

of the litigation, but also precludes, under the totality of the circumstances inquiry, a

finding of liability.”). 
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Rather than revisit its conclusion on liability, however, the district court

proceeded to implement an unprecedented remedy – a plan that is “not a municipal

government structure authorized by South Dakota law.” 475 F. Supp. 2d at 938.

Adopting the plaintiffs’ Plan C, the court ordered that the City abolish its aldermanic

wards and adopt “an at-large voting scheme using cumulative voting.” Id. at 936.

Under this scheme, the City will have “six city council members, elections for which

will be held in a 3-3 staggered cycle.” Id. “Pursuant to the cumulative voting scheme,

each voter will receive three votes,” and “[e]ach voter can cast one, all, or any whole

number of his or her votes for any one or more of the candidates.” Id. “The winners

of the election will be the three candidates that receive the highest number of votes.”

Id. As the district court recognized, however, South Dakota law authorizes only two

municipal government structures: (1) a common council form in which the council

“consists of the mayor elected at large and two aldermen elected from and by the

voters of each ward of the municipality,” with staggered terms so that “two aldermen

are not up for reelection in the same year” (i.e., the City’s present form), S.D. Codified

Laws § 9-8-4 (emphasis added); or (2) a commission form in which “the board of

commissioners shall consist of the mayor and two or four commissioners elected at

large.” Id. § 9-9-1 (emphasis added). The district court imposed a hybrid scheme, not

authorized by South Dakota law, under which six city council members are to be

elected at large, under a cumulative voting scheme.

Neither the majority nor the district court cites any precedent in which a federal

court has ordered a municipality to adopt a governmental structure that is

unauthorized by state law as a remedy under § 2 of the Voting Rights Act. The

district court, in its decision reviewed in Cottier I, concluded that it did not have

authority to order this remedy. (Order, R. Doc. 371, at 21 n.4). The district court

cited Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), which reversed a district

court’s decision to adopt an at-large cumulative voting scheme that abolished

residency districts, because the court failed to give due deference to contrary

legislative judgments about an appropriate voting plan. Id. at 927-29; see also Cane
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v. Worcester County, Nos. 95-1122, 95-1688, 1995 WL 371008, at *3 (4th Cir. June

16, 1995) (directing the district court to adopt a different plan that came “closer to

satisfying all of the legislative goals expressed by the County”). The district court in

this case reversed course on remand, however, because it felt bound by dicta from a

footnote in Cottier I, which said “it appears that plaintiffs’ third plan would be a

viable option.” 445 F.3d at 1123 n.7. The majority on this appeal provides no

independent analysis, relying exclusively on the footnote in Cottier I. Ante, at 17-19.

For their part, the plaintiffs assert that the district court “plainly erred” by refusing to

deem viable both plaintiffs’ Plan A, which divided the city into three dual-member

wards, and thus conformed to South Dakota’s common council form of government,

see S.D. Codified Laws § 9-8-4, and Plan B, which divided the city into six singlemember wards, but the plaintiffs maintain that the district court nonetheless had

discretion to adopt Plan C. (Appellees’ Br. 46).

The Supreme Court has declared that federal courts in voting rights cases

“should follow the policies of the preferences of the State, as expressed in statutory

and constitutional provisions or in the . . . plans proposed by the state legislature,

whenever adherence to state policy does not detract from the requirements of the

Federal Constitution.” White v. Weiser, 412 U.S. 783, 795 (1973); see also Whitcomb

v. Chavis, 403 U.S. 124, 160-61 (1971) (holding that a district court erred in

fashioning a plan that rejected state policy choices “without solid constitutional or

equitable grounds for doing so”). Thus, at least two circuits have opined that district

courts applying § 2 “must to the greatest extent possible give effect to the legislative

policy judgments underlying the current electoral scheme or the legally unacceptable

remedy offered by the legislative body.” Cane, 35 F.3d at 928; accord Harper v. City

of Chi. Heights, 223 F.3d 593, 602 (7th Cir. 2000); see also Nipper, 39 F.3d at 1531

(“Implicit in [the] first Gingles requirement is a limitation on the ability of a federal

court to abolish a particular form of government and to use its imagination to fashion

a new system.”). These observations are bolstered by the Supreme Court’s decision

in Holder v. Hall, 512 U.S. 874 (1994), which established that the size of a governing
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body is not subject to a vote dilution challenge under § 2. “Holder also confirms that,

from the inception of a section 2 case, the existence of a workable remedy within the

confines of the state’s system of government is critical to the success of a vote dilution

claim.” Nipper, 39 F.3d at 1533.

These authorities indicate strongly that a federal court may disregard state law

in remedying a violation of § 2 only as a last resort. The plaintiffs here essentially

concede an abuse of discretion by urging that the district court could have adopted

Plan A or Plan B as a remedy for the purported violation. If the plaintiffs have

satisfied the first Gingles precondition that Native American voters constitute a

geographically compact majority in a single-member ward, then a “proper and

workable remedy” presumably would have been to create such a ward, and it was an

abuse of discretion for the district court to impose a municipal government structure

that contravenes state law, rather than a remedy that follows the policy preferences of

the State.

The problem of overriding state law concerning the structure of municipal

government is compounded by the district court’s imposition of a cumulative voting

scheme. The plaintiffs cite no authority that cumulative voting in municipal elections

is authorized by South Dakota law, and the relevant statute indicates that it is not. See

S.D. Codified Laws § 9-13-21 (“If more than one member of the governing body is

to be elected, the ballot shall contain instructions as to how many candidates for the

governing body are to be voted for.”). As others have noted, moreover, “the effect

and, proponents would argue, the strength of cumulative voting” is that it will achieve

proportional representation of protected classes. Cousin v. Sandquist, 145 F.3d 818,

829 (6th Cir. 1998). Because “[t]he imposition of cumulative voting is thus meant to

achieve an end not contemplated in the Voting Rights Act,” id., its appropriateness as

a remedy for a violation of § 2 is dubious. See id. (“[W]e feel that cumulative voting,

the remedy ordered by the district court in this case, is an inappropriate remedy for a

Section 2 claim . . . .”); Cane, 35 F.3d at 928 (holding that district court abused its
9

Cottier I distinguished the Fourth Circuit’s decision in Cane on the ground that

the plan in that case “completely eliminated elected positions,” 445 F.3d at 1123 n.7,

presumably by abolishing residency districts and “imposing a plan that would permit

all five seats on the Board to be filled by individuals living in the same general area

of the County.” Cane, 35 F.3d at 929. The remedy adopted by the district court in

this case, however, similarly abolishes the wards in Martin, and provides that all six

council members will be elected at large.

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discretion in adopting a cumulative voting scheme). The dicta in Cottier I did not

address the tension between the specific prohibition on use of the Voting Rights Act

to achieve proportional representation, 42 U.S.C. § 1973(b), and the natural effect

(and perhaps design) of a cumulative voting scheme.9

 The only authority offered by

the plaintiffs in support of cumulative voting is the statement of Justice Thomas in

Holder, that “nothing in our present understanding of the Voting Rights Act places a

principled limit on the authority of federal courts that would prevent them from

instituting a system of cumulative voting as a remedy under § 2,” 512 U.S. at 910

(Thomas, J., concurring in judgment) – a statement that read in context can hardly be

taken as a ringing endorsement of the remedy. See id. at 908-14 (observing that

changes such as cumulative voting or a system using transferable votes “may seem

radical departures from the electoral systems with which we are most familiar,” and

“may be unwanted by the people in the several States who purposely have adopted

districting systems in their electoral laws,” and urging that the Court’s interpretation

of the Voting Rights Act should be systematically reexamined). 

In summary, this case in several respects represents a remarkable assertion of

authority by a federal court of appeals under § 2 of the Voting Rights Act:

• The panel majority in Cottier I declared clearly erroneous the district

court’s refusal to give decisive weight to unreliable exit poll data and

other equivocal election data, in the face of Supreme Court guidance that

vote dilution claims are “peculiarly dependent upon the facts of each

case,” and require “an intensely local appraisal of the design and impact
-26-

of the contested electoral mechanisms.” Gingles, 478 U.S. at 79 (internal

quotations omitted).

• The majority opinion on this appeal affirms a determination of liability

under § 2, despite the district court’s finding that it “could not draw a

three-ward plan that contains an effective majority of Indian voters in

one ward,” 475 F. Supp. 2d at 938, thus generating an intra-circuit

conflict with Stabler, 129 F.3d at 1025, and an inter-circuit conflict with

cases holding that the first Gingles precondition means that the inquiries

into remedy and liability cannot be separated. See Sanchez, 97 F.3d at

1311; Nipper, 39 F.3d at 1530-31.

• The majority opinion on this appeal, applying dicta from Cottier I,

upholds as a remedy under § 2 the imposition of a municipal government

structure that is not authorized by state law, and becomes the only

published authority to approve the imposition of cumulative voting as a

remedy for a violation of § 2.

I respectfully dissent.

______________________________