The Honorable Donald J. Stohr, United States District Judge 1

for the Eastern District of Missouri.

___________

No. 95-3378

___________

William L. Clay, Jr.; John F. *

Bass, *

*

Appellants, *

* Appeal from the United States

Louis H. Ford, * District Court for the 

* Eastern District of Missouri.

Plaintiff, *

*

v. *

*

Board of Education of the *

City of St. Louis, *

*

Appellee. *

__________

 Submitted: March 11, 1996

 Filed: July 26, 1996

__________

Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

___________

MAGILL, Circuit Judge.

William L. Clay, Jr. and John F. Bass (Plaintiffs) brought suit

against the Board of Education of the City of St. Louis (Board of

Education), alleging violation of § 2 of the Voting Rights Act. 42 U.S.C.

§§ 1973-1973p. Plaintiffs contend that the at-large voting system used to

elect members to the Board of Education operates to dilute African-American

voting power. The district court, finding that they failed to show that 1

the white majority
 Because the parties did not provide earlier statistics, we

2

are uncertain of the makeup of the Board prior to 1967. 

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votes sufficiently as a bloc to enable it to usually defeat the AfricanAmerican preferred candidate, dismissed their suit. The Plaintiffs appeal

and we affirm, holding that they failed to establish one of the necessary

preconditions to a § 2 claim.

I.

The St. Louis School District (School District) is the largest in

Missouri. In 1991, the seventy-two public schools within the School

District educated over 40,000 students. School Data Section, Department

of Elementary & Secondary Education, Missouri School Directory 1991-92, 163

(1992). 

The School District is governed by the Board of Education, which

consists of twelve members elected for staggered six-year terms. In every

odd-numbered year, four seats on the Board are contested in at-large

elections. See Mo. Rev. Stat. § 162.581 (1991). Each eligible city

resident has four votes which can be allocated, one to a candidate, to four

different candidates. The voter also has the option to cast fewer than

four votes (the "bullet voting" option), thereby marginally enhancing the

weight of the votes that the voter does cast. The four candidates

receiving the most votes from throughout the city are elected. 

Since 1967, African-American candidates have consistently held seats

on the Board of Education. African-American candidates have won twenty- 2

one of the sixty-six (31%) Board seats available in elections between 1967

and 1995. Of the thirty-eight seats contested from 1977 to 1995, eleven

(28.9%) were filled by African-American candidates and another eleven

(28.9%) were filled by white candidates who received enough AfricanAmerican votes to have won
 Over this period, an additional seven seats on the Board of 3

Education were filled through uncontested elections.

 Section 1973 states: 4

(a) No voting qualification or prerequisite to

voting or any standard, practice, or procedure shall be

imposed or applied by any State or political subdivision

in a manner which results in a denial or abridgement of

the right of any citizen of the United States to vote on

account of race or color, or in contravention of the

guarantees set forth in section 1973b(f)(2) of this

title, as provided in subsection (b) of this section.

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

established if, based on the totality of the

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 subdivision (a) of this section in that its members

have less opportunity than other members of the

electorate to participate in the political process and to

elect representatives of their choice. The extent to

which members of a protected class have been elected to

office in the State or political subdivision is one

circumstance which may be considered: Provided, That

nothing in this section established the right to have

members of a protected class elected in numbers equal to

their proportion of the population.

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if only African-American voters participated. Resp't Br. at A-6.3

Currently, the Board of Education consists of five African-American

members and seven white members, a ratio that corresponds closely with the

actual percentage of African-American and white voters in the city.

According to the 1990 Census, African-Americans comprise 42.7% of St.

Louis's voting-age population of 210,000.

On April 1, 1991, Plaintiffs brought suit against the Board of

Education, claiming that the at-large electoral system used to elect Board

members violates § 2 of the Voting Rights Act, 42 U.S.C. § 1973, by

4

denying African-American voters an equal
 Clay asserts that African-American votes are diluted through 5

the multi-member, city-wide election for the Board of Education.

The theoretical basis for this type of minority voter impairment is

that where majority and minority voters consistently prefer

different candidates, the majority, by virtue of its numerical

superiority, will regularly defeat the choices of the minority

voters. Thornburg v. Gingles, 478 U.S. 30, 48 (1986). A system

thus flawed also allows those elected to ignore the minority

interests without fear of consequences.

 Exogenous elections are elections on issues and for offices 6

other than that under study. In this case, the elections for mayor

and comptroller are considered exogenous elections. Only the Board

of Education elections are considered endogenous elections. II

Trial Tr. at 54-55. 

 Wards are the primary political subdivision in the city of

7

St. Louis. In total, there are twenty-eight wards. For analytical

purposes, Warren defined a political entity which is larger than a

ward. He called this entity a ward cluster. I Trial Tr. at 53.

Warren's analysis did not include data from mixed ward

clusters. Instead, it relied on the assumption that AfricanAmericans in the mixed ward clusters would vote as those in

homogeneous ward clusters vote.

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opportunity to effectively participate in the political process.

Plaintiffs claimed that the at-large electoral system, in combination with

bloc voting patterns and election practices, operates to dilute the voting

strength of African-Americans. Plaintiffs sought declaratory relief and 5

an injunction requiring that "districts be fairly drawn for each of the

twelve positions on the Board of Education for the City of St. Louis."

Compl. at 7.

At the bench trial, both parties offered expert testimony analyzing

past Board of Education elections. The Plaintiffs relied on Dr. Kenneth

Warren, who used a hybrid homogenous analysis to explain the Board of

Education and exogenous election results. Under this approach, Warren

6

assumed that ward clusters with at least 90% African-American populations

were entirely African-American and ward clusters with 90% white populations

were entirely white. From the election results of these largely

7

homogenous areas, he sought to extrapolate a racial voting pattern.

Warren's
 "As a practical research problem . . . you are really looking 8

at black communities vote for black candidates and the white

communities vote for white candidates and whether or not the

crossover of white voters for black candidates is enough to allow

black candidates to elect candidates of their choice which under 99

of the conditions happens to be black." I Trial Tr. at 69.

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analysis emphasized the ability of African-American candidates to be

elected to the Board of Education, relying on the implicit assumption that

African-American candidates were the preferred candidates of AfricanAmerican voters.8

Dr. Ronald Weber testified as the expert for the Board of Education.

At the outset, Weber defined the African-American preferred candidates to

be the four candidates who received the most African-American votes in each

contested election. Weber employed two different statistical methods to

study Board of Education election voting patterns. First, he used

homogeneous precinct analysis, which differed from hybrid homogenous

analysis only in that the voting areas studied were smaller. Second, he

applied bivariate regression analysis, plotting the percentage of the vote

garnered by a particular candidate against the racial composition of the

precinct to determine if a pattern of political support emerges across a

cross section of different racial compositions. Mem. Op. at 7-8. 

Based on the results of both methods, Weber testified that the white

majority had not voted sufficiently as a bloc to enable it to usually

defeat the minority preferred candidate. Rather, according to Weber's

results, the minority preferred candidate was elected in most instances.

He demonstrated that, overall, St. Louis voters elected African-American

preferred candidates 57.9% of the time.

In light of the evidence presented, the district court concluded that

the Plaintiffs had failed to prove that the majority voted sufficiently as

a bloc to usually defeat the minority
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preferred candidate. Specifically, the court found that the Plaintiffs had

failed to identify the minority preferred candidate or offer a legitimate

method for making such an identification. In the absence of a reasonable

alternative, the court accepted the School District's definition of

minority preferred candidate. The district court also found that, due to

flaws in Warren's statistical approach, Weber's analysis provided a sounder

explanation of the Board of Education elections. Based on these two

crucial findings, the district court found that minority preferred

candidates were elected 57.9% of the time and, therefore, the white voting

bloc did not tend to thwart the minority preferred candidate. 

Plaintiffs appeal, raising six challenges to the district court's

findings of fact. The central argument asserted by Plaintiffs is that the

district court erred in defining the minority preferred candidates to be

those candidates who receive the most minority votes. In addition,

Plaintiffs argue that the district court erred when it found that the

School District's bivariate regression analysis of election results

provided a more accurate description of racial voting patterns. 

II.

To establish a § 2 violation, the minority group must demonstrate

that, based on the totality of circumstances, they "have less of an

opportunity to participate in the political process and to elect

representatives of their choice." 42 U.S.C. § 1973(b). The minority group

must initially show that three preconditions exist. See Thornburg v.

Gingles, 478 U.S. 30, 50 (1986). First, the minority group must be able

to demonstrate that it is sufficiently large and geographically compact to

constitute a majority in a single member district. Second, the minority

group must be able to show that it is politically cohesive. Third, the

minority group must be able to demonstrate that the majority votes
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sufficiently as a bloc to enable it--in the absence of special

circumstances--to defeat the minority preferred candidate. Id. at 50-51.

We review the district court's factual findings for clear error and

the legal conclusions it draws from these factual findings de novo.

Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1386 (8th Cir. 1995),

cert. denied, 116 S. Ct. 1876 (1996). In order to prove that the third

Gingles precondition exists, the plaintiffs must identify the minority

preferred candidates and show that, due to majority bloc voting, they

usually are not elected. See Gingles, 478 U.S. at 55-56. Plaintiffs did

neither.

 

A.

The Plaintiffs offered, by implication, a definition of "minority

preferred candidate" based solely on the candidate's race. As a matter of

law, such a definition is untenable and must be rejected in favor of the

alternative offered by the Board of Education.

There is no blanket definition of "minority preferred candidate."

Rather, the plaintiffs must prove, on an election-by-election basis, which

candidates are minority-preferred. Harvell, 71 F.3d at 1386 (8th Cir.

1995) (citing Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d

1103, 1126 (3d Cir. 1993), cert. denied, 114 S. Ct. 2779 (1994)).

In explaining his statistical analysis, the Plaintiffs' expert did

not explicitly identify who the minority's candidates of choice were or

what methodology should be used to make such a determination. Mem. Op. at

21. Nor did the Plaintiffs otherwise offer evidence on who the minority

preferred candidates are. Rather, the Plaintiffs relied on the presumption

that African-American voters preferred African-American candidates. 
 While we reject using a candidate's race as the sole method 9

of identifying minority preferred candidates, we also recognize

that courts should consider this factor in determining who is

minority-preferred. See Jenkins, 4 F.3d at 1126; Citizens for a

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

cert. denied, 492 U.S. 905 (1989). 

 This definitional approach, which places heavy emphasis on

10

the support a candidate receives from minority voters, has been

used before. See Harvell, 71 F.3d at 1386-87; Clarke v. City of

Cincinnati, 40 F.3d 807, 810 (6th Cir. 1994), cert. denied, 115 S.

Ct. 1960 (1995).

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In Harvell, supra, we specifically rejected the presumption suggested

by Plaintiffs, that only African-American candidates can be preferred by

African-American voters. Inferences based solely on race are insufficient

to establish which candidate is minority-preferred. The notion that a

9

minority candidate is the minority preferred candidate simply because of

that candidate's race offends the principles of equal protection. Harvell,

71 F.3d at 1386. As Justice Brennan stated in Gingles, "under § 2, it is

the status of the candidate as the chosen representative of a particular

racial group, not the race of the candidate, that matters." 478 U.S. at

68 (plurality opinion).

In contrast, the Board of Education's expert offered a definition of

the minority preferred candidate and identified, in each election, who

those candidates were. Since four seats on the Board of Education are

contested in every Board election, he designated the four candidates

receiving the highest number of African-American votes as the "minority

preferred candidates." 

10

The district court properly adopted the School District's definition

of minority preferred candidate. Absent a showing that minority preferred

candidates are, for some reason, excluded from the ballot, it is a near

tautological principle that the minority preferred candidate "should

generally be one able to receive
 Beginning in 1989, St. Louis residents have formed

11

nonpartisan, biracial slating groups for Board of Education

elections. A slating group consists of a small number of

individuals who select candidates to run as a bloc to fill seats

which are up for election. Considered in the aggregate, the

slating groups in 1989, 1991, and 1993 consisted of 44.8% AfricanAmericans. The Plaintiffs suggest that the slating groups operated

to deny candidates preferred by African-American votes equal access

to the election process. However, they offer no evidence beyond

this assertion and, therefore, we dismiss this contention.

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[minority] votes." Harvell, 478 U.S. at 1387.11

B.

The fact that Plaintiffs failed to provide an adequate description

of the minority preferred candidates does not end the analysis. It may be

that the Board of Education's definition, when applied to the Plaintiffs'

statistical analysis, demonstrates the conditions necessary to satisfy the

third Gingles precondition. On appeal, the Plaintiffs argue that the court

erred in accepting the analysis of the Board of Education over the analysis

propounded by their expert, Warren. In light of the more thorough analysis

presented by the Board of Education, we conclude that the district court

was not clearly erroneous in accepting the Board of Education's statistical

analysis.

The district court cited several reasons for discounting the

Plaintiffs' expert analysis. First, in performing his hybrid homogeneous

analysis, Warren relied on ward clusters, but failed to define the term

beyond the fact that a ward cluster is larger than both precincts and

wards. Given its relatively large size, ward clusters are not as conducive

to homogeneous analysis as the smaller precincts used by Weber in his

homogeneous analysis. Second, much of the Plaintiffs' expert's analysis

relies on exogenous elections, which should be used only to supplement the

analysis of the specific election at issue. Third, the Plaintiffs' expert

was retained on a contingency basis, and would be
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compensated only if Clay prevailed. We find the rationale of the district

court compelling and perceive no reason for reversing its finding. 

Based on the School District's definition of minority preferred

candidate and its statistical analysis, minority preferred candidates

realized a substantial degree of election success. Overall, 57.9% of

minority preferred candidates were elected to the Board of Education. In

addition, the minority preferred candidate was elected 80% of the time when

African-American voters voted cohesively. Therefore, Plaintiffs failed to

establish the third Gingles precondition because they did not show that the

white voting bloc did tend to thwart the minority preferred candidate. In

light of our conclusion that Plaintiffs failed to establish a necessary

precondition to their § 2 claim, we do not reach the other issues raised

by Plaintiffs on appeal.

III.

For the above stated reason, we hold that the Plaintiffs failed to

establish the existence of the third Gingles precondition and, therefore,

cannot prevail in their § 2 vote dilution claim. We affirm the judgment

of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.