UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THURMAN GAUSE; JOHN R. FRINK;

WILLIE SLOAN; HENRY J. BRYANT;

EDWARD THOMAS; ROSCOE BUTLER;

WILLIE FULLWOOD,

Plaintiffs-Appellants,

v.

BRUNSWICK COUNTY, NORTH

CAROLINA; BRUNSWICK COUNTY

BOARD OF COUNTY COMMISSIONERS;

No. 95-3028

DONALD WARREN; JERRY JONES;

WAYLAND VEREEN; TOM RAYBON;

DONALD SHAW, Members of the

Brunswick County Board of County

Commissioners; BRUNSWICK COUNTY

BOARD OF ELECTIONS; ORRIE GORE;

MARION D. DAVIS; BILLY BENTON,

Members of the Brunswick County

Board of Elections,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

Franklin T. Dupree, Jr., Senior District Judge.

(CA-93-80-7-D)

Argued: July 9, 1996

Decided: August 13, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anita Sue Hodgkiss, FERGUSON, STEIN, WALLAS,

ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina,

for Appellant. Michael Crowell, THARRINGTON SMITH, Raleigh,

North Carolina, for Appellees. ON BRIEF: James J. Wall, LEGAL

SERVICES OF THE LOWER CAPE FEAR, INC., Wilmington,

North Carolina, for Appellant. E. Hardy Lewis, THARRINGTON

SMITH, Raleigh, North Carolina; Michael R. Ramos, Brunswick

County Attorney, RAMOS & LEWIS, Shallotte, North Carolina, for

Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The plaintiffs, seven African-American voters and politicians, sued

Brunswick County (North Carolina) and County officials, alleging

that the method by which members of the County's Board of Commissioners are elected dilutes minority votes in violation of § 2 of the

Voting Rights Act, 42 U.S.C. § 1973. The district court granted summary judgment to the defendants. We affirm because the lack of electoral success, if any, by the candidates of African-Americans' choice

is due to the small number of African-American voters and their geographical dispersion throughout the County.

I.

Brunswick County's African-American population today is relatively small. According to the 1990 Census, 50,985 people live in

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Brunswick County, 38,960 of whom are of voting age. The population has increased dramatically since 1960, when 20,278 people lived

there. Much of the population growth is due to an influx of white

retirees from colder climates. As a result of this demographic shift,

the total percentage of African-Americans living in the County fell

from 35 percent in 1960 to 18 percent in 1990. In 1990 the County's

voting-age population was 83 percent white, 16 percent AfricanAmerican, and 1 percent other ethnic groups. Fourteen percent of registered voters are African-American. Of the County's 22 election precincts, African-Americans constitute a majority in only one. In seven

precincts, more than 90 percent of the registered voters are white.

African-Americans constitute a majority in less than 6 percent of the

County's Census blocks. They constitute a majority in none of the

County's six townships.

The County uses a modified at-large election system to choose its

Board of Commissioners. The Board has five members, and elections

for two-year terms are held every other year, with all seats up for

grabs. The County is divided into five residency districts, and the candidate from each district who receives the most votes, compared only

to other candidates living in the same district, serves. Voters, however, may vote for any candidate, regardless of where they or the candidate live. No African-American has been elected to the Board of

Commissioners since 1982. African-Americans have run for Board of

Commissioners in 9 elections since 1972, and have been elected 3 times.1

The parties do not dispute the above facts, but do dispute their meaning.

The plaintiffs claim that African-Americans have been unable to

elect their preferred candidates to the Board and that the County's

election structure is responsible. The plaintiffs propose that a majority

African-American voting district be created to ensure that AfricanAmericans are adequately represented on the Board of Commissioners. We believe that because African-Americans in Brunswick County

are too few and too dispersed, the plaintiffs have failed to establish

a prima facie case of vote dilution.

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1 African-Americans sought to be elected to the Board in 1972, 1974,

1976, 1978, 1980, 1982, 1984, 1990, and 1994. African-Americans were

elected in 1974, 1976, and 1982.

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II.

Section 2(b) of the Voting Rights Act, 42 U.S.C.§ 1973(b), provides that an election system improperly dilutes the vote of minorities

if

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

political processes leading to nomination or election in the

State or political subdivision are not equally open to participation by [minorities] in that [they] have less opportunity

than other members of the electorate to participate in the

political process and to elect representatives of their choice.

The extent to which [minorities] have been elected to office

in the State or political subdivision is one circumstance

which may be considered: Provided, That nothing in this

section establishes a right to have [minorities] elected in

numbers equal to their proportion in the population.

A vote dilution challenge to a multimember election system may

not proceed unless the plaintiff first establishes the following preconditions ("Gingles preconditions"): (1) that the minority population "is

sufficiently large and geographically compact to constitute a majority

in a single-member district"; (2) that the minority group "is politically

cohesive"; and (3) "that the white majority votes sufficiently as a bloc

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

Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); see also Shaw v.

Hunt, 64 U.S.L.W. 4437, 4442 (U.S. June 13, 1996); Johnson v.

DeGrandy, 114 S. Ct. 2647, 2654-55 (1994); Growe v. Emison, 113

S. Ct. 1075, 1084 (1993). Failure of proof on even one precondition

defeats a vote dilution claim. Gingles, 478 U.S. at 50-51 n.17;

McGhee v. Granville County, 860 F.2d 110, 116-17 (4th Cir. 1988);

McNeill v. Springfield Park Dist., 851 F.2d 937, 942 (7th Cir. 1988),

cert. denied, 490 U.S. 1031 (1989).

We believe the district court correctly concluded that the plaintiffs

failed to establish the first Gingles precondition: geographic

compactness.2

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2 The district court also found that the plaintiffs failed to satisfy the

third Gingles precondition: that majority bloc voting usually defeats the

minority's preferred candidate. Because we find that the plaintiffs have

failed to establish compactness, we need not consider whether they have

forecast sufficient evidence of majority bloc voting.

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The reason that a minority group making a [vote dilution]

challenge must show, as a threshold matter, that it is sufficiently large and geographically compact to constitute a

majority in a single-member district is this: Unless minority

voters possess the potential to elect representatives in the

absence of the challenged structure or practice, they cannot

claim to have been injured by that structure or practice.

Gingles, 478 U.S. at 50-51 n.17 (emphasis in original). In other

words, minority voters must show that their votes have been diluted

by discriminatory elements of the election process, and not simply

that their votes are dilute. See DeGrandy, 114 S. Ct. at 2659-60;

McNeil, 851 F.2d at 946. "[T]he adverse`result' for which [Section

2] seeks a remedy must be traceable ultimately to the impact of `a

certain electoral law, practice, or structure interact[ing] with social

and historical conditions.'" McGhee, 860 F.2d at 117 (quoting

Gingles, 478 U.S. at 47) (emphasis supplied).

The evidence here shows that the African-American population is

dispersed throughout the County, constituting a majority in no single

township and a majority in only one election precinct, the County's

smallest. The plaintiffs' vote dilution claim fails because the AfricanAmerican population "is spread evenly throughout" the County.

Gingles, 478 U.S. at 51 n.17; accord Bush v. Vera, 64 U.S.L.W. 4452,

4460 (U.S. June 13, 1996) (plurality opinion of O'Connor, J., joined

by Rehnquist, C.J., and Kennedy, J.); Smith v. Brunswick County,

Virginia, 984 F.2d 1393, 1399 (4th Cir. 1992).

The plaintiffs make two attempts to prove that a reasonably compact majority African-American voting district may be constructed.

Both attempts fail. The first proposed district sweeps through five of

the County's six townships and is 75 miles from tip to toe. We believe

the defendants' description of the proposed district is accurate:

[The plaintiffs propose] a 75 mile-long boomerang-shaped

district that meanders, seemingly aimlessly, around the

[southern] and eastern legs of the triangle.[Brunswick

County is roughly triangular.] From the vertex in Southport

[in the southeast] extend two "arms" which themselves are

irregular, especially the southern appendage extending from

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Southport westward to Calabash. The path of this arm

roughly follows highways 211 and 17, but it juts randomly

northward and southward from the highway to capture pockets of minority population. At one point a boot-like tentacle

steps southward toward Holden Beach. At several other

points, the district is only one census block wide. Befitting

its tortured path, the lower arm ends near Calabash with a

flourish -- hooking westward and then eastward, almost

falling back on itself. Ironically, as positioned on the page

in the joint appendix [JA 68A], this narrow, winding district

looks like a 75 mile-long question mark.

Br. of Appellee, at 14 (footnote omitted). Because the first proposed

district is "unreasonably irregular, bizarre,[and] uncouth," it does not

establish that the African-American population of Brunswick County

is sufficiently large and geographically compact to support a claim for

relief under § 2 of the Voting Rights Act. Cane v. Worcester County,

35 F.3d 921, 925 (4th Cir. 1994) (quoting Cane v. Worcester County,

840 F. Supp. 1081, 1087 (D. Md. 1994)), cert. denied, 115 S. Ct.

1097 (1995); accord Jeffers v. Tucker, 847 F. Supp. 655, 661-62

(E.D. Ark. 1994). Furthermore, the plaintiffs have not shown that in

developing their proposal they "adhered to [ ] traditional districting

principles." Cane, 35 F.3d at 927 n.6.

The second proposed majority African-American district is significantly more compact, having omitted the first proposed district's eastern arm and having smoothed out some of the irregularity at the

western end of the southern arm. The second proposal, however, has

an even more serious flaw: it violates the one-person/one-vote rule

compelled by the Equal Protection Clause of the Fourteenth Amendment.

To comply with the Equal Protection Clause, each voting district

should contain the same approximate number of voters. Voinovich v.

Quilter, 113 S. Ct. 1149, 1159 (1993); Brown v. Thomson, 462 U.S.

835, 842 (1983); Connor v. Finch, 431 U.S. 407, 416 (1977);

Reynolds v. Sims, 377 U.S. 533, 568 (1964). Equality of district size

is necessary to ensure "that each person's vote may be given equal

weight." Connor, 431 U.S. at 416.

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Brunswick County has a total population of 50,985. Thus, if all five

districts were of equal size, each would contain 10,197 people. The

second proposed majority African-American district would contain

9,080 people, or 11 percent below the ideal size of 10,197. Under this

proposal, the white district with the largest total population would

contain 10,527 people, or 3 percent above ideal. Thus, in terms of

total population, the plaintiffs' second proposal would result in a size

deviation of 14 percent between the largest and smallest districts.

When voting-age population is compared, the deviation is more

dramatic. The County's total voting-age population is 38,960, so ideally each district would contain 7,792 persons of voting age. Under

the plaintiffs' second proposal, though, the majority AfricanAmerican district would contain 6,464 persons of voting age, or 17

percent fewer than the ideal district would contain. The white district

with the largest voting-age population would contain 8,537 persons of

voting age, or 10 percent greater than ideal. The total deviation in

terms of voting-age population, then, would be 27 percent under the

plaintiffs' proposal.

A total deviation of greater than 10 percent presumptively violates

the Equal Protection Clause. Brown, 462 U.S. at 842-43. Nevertheless, such a deviation may be upheld if "supported by substantial and

legitimate state concerns," such as allowing district lines to track natural geographic barriers, significant topological features, or longstanding political boundaries. Id. The plaintiffs' second proposal

cannot be justified on the basis of these traditional concerns. Like the

first proposed district, albeit to a lesser extent, the second proposed

district respects neither township nor precinct lines, nor are its boundaries mandated by geography.

The plaintiffs have come forward with only one rationale in support of such a large population deviation: to allow creation of a majority African-American voting district. The Supreme Court has recently

instructed us, however, that race-conscious districting may be allowed

only if doing so would be a narrowly tailored method of furthering

a compelling state interest. Shaw, 64 U.S.L.W. at 4440; Bush, 64

U.S.L.W. at 4458-59 (plurality opinion) & 4466-67 (Thomas, J., concurring, joined by Scalia, J.).

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The plaintiffs' asserted rationale does not justify drawing districts

whose populations deviate so dramatically. The plaintiffs claim that

the extreme deviation must be allowed in order to redress the dilution

of minority votes. This argument, however, is fatally circular because

no dilution has yet been proven, nor can dilution be proven absent an

independent showing of geographical compactness. The plaintiff cannot show a compelling interest in redressing vote dilution without first

proving compactness. Compactness is an essential element of a vote

dilution claim, and that element must be satisfied by showing that a

minority representation district can be drawn in a manner that complies "with the overriding demands of the Equal Protection Clause."

Sanchez v. Colorado, 861 F. Supp. 1516, 1523 (D. Colo. 1994).

[A] plaintiff seeking to meet its burden of showing compactness under the first Gingles precondition should not be permitted to rely on a plan which, if subsequently adopted by

the Court after a finding of a Section 2 violation, would

have no chance of being found to be narrowly tailored to

redress the violation.

Reed v. Town of Babylon, 914 F. Supp. 843, 871 (E.D.N.Y. 1996). If

we were to accept the plaintiffs' argument, every§ 2 plaintiff could

bootstrap his way out of Gingles' compactness requirement by claiming that some unconstitutionally small district is"compact." This we

cannot allow. See McNeil, 851 F.2d at 946. 3

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3 At oral argument the plaintiffs suggested (for the first time) that even

if the African-American population is insufficiently compact to support

creation of a majority African-American district, the population is sufficiently compact to allow creation of an African-American influenced district, in other words, a district with a significant (although minority)

African-American presence. Because the plaintiffs did not raise this

argument below, we decline to consider it. See Growe, 113 S. Ct. at 1084

n.5; Bakker v. Grutman, 942 F.2d 236, 242 (4th Cir. 1991). Nor do we

accept the plaintiffs' suggestion that we remand the case to the district

court for reconsideration in light of the Supreme Court's recent decisions

in Shaw and Bush. We believe the district court's approach to the question of compactness presented here was consistent with the two recent

Supreme Court cases.

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The judgment is affirmed.

AFFIRMED

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