### 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 sui t aga inst the Board of Education of the City of St. Louis (Board o f Education), alleging violation of § 2 of the Vot ing Rights Act. 42 U.S.C. §§ 1973-1973p. Plaintiffs contend that the at-l arge voting system used to elect members to the Board of Education operates to dilute African-America n voting pow er. The district court, finding that they failed to show that 1 the white majority

### Because the parties did not provide earlier statistics, w e 2 

### are uncertain of the makeup of the Board prior to 1967.
-2- votes sufficiently as a bloc to enable it to usually defeat the AfricanAmerican preferred candidate, dismissed their su it. The Plaintiffs appeal and we affirm, holdin g that they failed to establish one of the necessary preconditions to a § 2 claim.

I.

The S t. Louis School District (School District) is the largest i n Miss ouri. In 1991, the seventy-two public schools within the Schoo l District educated over 40,000 students. School Data Section, Department of Elementary & Secondary Education, Missouri School Directory 1991-92, 16 3 (1992).

Th e School District is governed by the Board of Education, whic h consists of twelve members elected for staggeredsix-year terms. In every odd- numbered year, four seats on the Board are contested in at-larg e electi ons. See Mo. Rev. Stat. § 162.581 (1991). Each eligible cit y resident has four votes which can be allocated, one to a candidate, to fou r different candidates. The voter also has the option to cast fewer tha n four votes (the "bull et voting" option), thereby marginally enhancing the weight of the votes that the voter does cast. The four candidate s receiving the most votes from throughout the city are elected.

Since 1967, African-American candida tes have consistently held seats on the Boa rd 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 eleve n (28.9% ) were filled by white candidates who received enough African

American 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 t o voting or any standard, practice, or procedure shall be imposed or applied by any Stat e or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of th e United States to vote on account of race or color, or in contravention of th e guarantees set forth in section 1973b(f)(2) of thi s title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section i s established if, based on the totality of th e circumstances, it is shown that the political processes lead ing to nomination or election in the State o r political subdivision are not equally open t o participationby members of a class of citizens protecte d by subdivision (a) of this section in that its member s ha ve less opportunity than other members of th e electorate to participate in the political process and t o elec t representatives of their choice. The extent t o which members of a protected class have been elected to office in the State or political subdivision is on e circumstance which may be considered: Provided, Tha t noth ing in this section established the right to hav e members of a protected class e lected in numbers equal to their proportion of the population.
-3- 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 co rresponds closely with the actual percentage of African-American and white voters in the city

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

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

On Apr il 1, 1991, Plaintiffs brought suit against the Board o f 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, b y 4 denying African-American voters an equal

### Clay assert s that African-American votes are diluted through 5 

### the mu lti-member, city-wide election for the Board of Education

. The theoretical basis for this type of minority voter impair ment is that where majority and minority voters consistently prefe r di fferent candidates, the majority, by virtue of its numerica l su periority, will regularly defeat the choices of the minorit y voters
. Thornburg v. Gingles , 478 U.S. 30, 48 (1986). A syste m thus f lawed also allows those elected to ignore the minorit y 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 fo r mayor and comptroller are considered exogenous elections. Only th e Board of E ducation elections are considered endogenous elections. I I Trial Tr. at 54-55. Wards are the primary political subdivision in the city o f 7 

### St. Louis. In total, there are twenty-eight wards. For ana lytical purposes, Warren defined a pol itical entity which is larger than a ward. He called this entity a ward cluster. I Trial Tr. at 53.
Warr en's analysis did not include data from mixed war d clu sters. Instead, it relied on the assumption that African

Americans in the mixed ward clusters would vote as those i n homogeneous ward clusters vote.
-4- oppor tunityto effectively participate in the political process

. Plaintiffs claimed that the at-large electoral s ystem, in combination with bloc voting patterns and election practices, ope rates to dilute the voting strength o f African-Americans. Plaintiffs sought declaratory relief and 5

an injunction requiring that "districts be fairly drawn for each of th e twelve positions on the Board of Education for the City of St. Louis. " Compl. at 7.

At the be nch trial, both parties offered expert testimony analyzing past Board of Education elections. The Plaintiffs relied on Dr. Kenneth Warren, wh o used a hybrid homogenous analysis to explain the Board o f Educatio n and exogenous election results. Under this approach, Warre n 6 assumed that ward clu sters with at least 90% African-American populations
were entirely African-American and ward clusters with 90% white population s
were e ntirely white. From the election results of these largel y 7 homoge nous areas, he sought to extrapolate a racial voting pattern

. Warren's

### "As a practical research problem . . . yo u are really looking 8 

### at bla ck communities vote for black candidates and the whit e commun ities vote for white candidates and whether or not th e crossover of white voters for black candidates is enough to allow black candidates to elect candidates of their choice which u nder 99 of the conditions happens to be black." I Trial Tr. at 69.
-5- an alysis emphasized the ability of African-American candidates to b e elected to the Board of Education, relying on th e implicit assumption that Afr ican-American candidates were the preferred candidates of African

American 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 eac h contested election. Weber employed two different statistical methods to study Bo ard of Education election voting patterns. First, he use d ho mogeneous precinct analysis, which differed from hybrid homogenou s 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 maj ority had not voted sufficiently as a bloc to enable it to usuall y 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 conclude d that the Plaintiffs had failed to prove that the majo rity voted sufficiently as a bloc to usually defeat the minority

### -6-

preferred candidate. Specifically, the court found that the Plaintiffs ha d failed to identify th e minority preferred candidate or offer a legitimate method for making suc h an identification. In the absence of a reasonable alter native, the court accepted the School District's definition o f minority preferred ca ndidate. The district court also found that, due to flaws in Warren's statistical approach, Weber's analysis provided a sounde r expl anation of the Board of Education elections. Based on these tw o crucial findings, the district court found that minority preferre d candidates were elected 57.9% of the time and, t herefore, the white voting bloc did not tend to thwart the minority preferred candidate.

Plain tiffs appeal, raising six challenges to the district court' s findings of fact. The central argument assertedby 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 th e School District's bivariate regression analysis of election result s provided a more accurate description of racial voting patterns.

II.

To es tablish a § 2 violation, the minority group must demonstrat e that, bas ed on the totality of circumstances, they "have less of a n opport unityto participate in the political process and to elec t representatives of their choice." 42 U.S.C. § 1973(b). The minority grou p must in itially 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 andgeographically compact to constitute a majority in a single member district. Second, the minority group m ust be able to show that it is politically cohesive. Third, th e minority group must be able to demonstrate that the majority votes

### -7-

suffic ientlyas a bloc to enable it--in the absence of specia l circumstances--to def eat 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. Blythevill e Sch. Dist. #5 , 71 F.3d 1382, 1386 (8th Cir. 1995), cert. denied , 116 S. Ct. 1876 (1996). In order to prove that the thir d Ging les precondition exists, the plaintiffs must identify the minorit y preferr ed candidates and show that, due to majority bloc voting, the y usually are not elect ed. See Gingles , 478 U.S. at 55-56. Plaintiffs did neither.

A.

The P laintiffs offered, by implication, a definition of "minorit y preferred candidate" based solely on the candida te'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 electio n-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 di d not explicitly identify who the minority's candidates of choice were o r what methodology should be used to make such a d etermination. Mem. Op. at 21. Nor did the Plaintiffs otherwise offer evidence on who the minority preferred candidates are. Rather, the Plaintiffs relied on the presumptio n that African-American voters preferred African-American candidates.

### While we reject using a candidate's race as the sole method 9 

### of i dentifying minority preferred candidates, we also recogniz e tha t courts should consider this factor in determining who i s 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 o n 10 

### the su pport a candidate receives from minority voters, has bee n used b efore. See Harvell , 71 F.3d at 1386-87; Clarke v. City o f Cincinnati , 40 F.3d 807, 810 ( 6th Cir. 1994), cert. denied , 115 S. Ct. 1960 (1995). -8- In Harvell , supra , we specifically rejected the presumption sug gested by Plaintiffs, that only African-American candidates can be preferred by African-American voters. Inferences based solel y on race are insufficient to e stablish which candidate is minority-preferred. The notion that a 9 minoritycandidate 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 mi nority preferred candidate and identified, in each election, wh o those candidates were. Since four seats on the Board of Education ar e contes ted in every Board election, he designated the four candidate s receiv ing the highest number of African-American votes as the "minorit y preferred candidates." 10
The district court properly adopted the School District's definition of minority preferred candidate. Absent a showi ng that minority preferred candidate s are, for some reason, excluded from the ballot, it is a nea r ta utological principle that the minority preferred candidate "shoul d generally be one able to receive

### Beginning in 1989, St. Louis residents have forme d 11 

### nonpa rtisan, biracial slating groups for Board of Educatio n elections. A slating group consists of a small number o f individu als who select candidates to run as a bloc to fill seat s which are up for election. Considered in the aggregate, th e slating groups in 1989, 1991, and 1993 consisted of 44.8% AfricanAmericans. The Plaintiffs suggest that the slating groups o perated to deny candidates preferred by African-American votes equal access to the election process. However, they offer no evidence beyon d this assertion and, therefore, we dismiss this contention.
-9- [minority] votes." Harvell , 478 U.S. at 1387. 11

B.

The fact that Plaintiffs failed to provide an adequate descriptio n of the minority preferred candidates does not en d the analysis. It may be that the Board of Edu cation's definition, when applied to the Plaintiffs' statistical analysis, demonstrates the condition s necessary to satisfy the third Gingles precondition. On appeal, the Plaintiffs argue that the cour t erred in accepting the analysis of the Board of Education over the analysi s propounded by their expert, Warren. In light of the more thorough analysi s presented by the Board of Education, we conclude that the district court
was not clearly erroneous in accepting the Board of Education's statistica l analysis.

The district court cited several reasons for discounting th e Plaintiffs' expert an alysis. First, in performing his hybrid homogeneous analysis, Warren relied on ward clusters, but failed to define the ter m bey ond the fact that a ward cluster is larger than both precincts an d wards. Given its relatively large size, ward clusters are not as conduciv e to homogen eous analysis as the smaller precincts used by Weber in hi s homogeneous analysis. Second, much of the Plaintiffs' expert's analysis relies on exogenous elections, which should be u sed only to supplement the analysis of the specific election at issue. Thi rd, the Plaintiffs' expert was retained on a contingency basis, and would be

### -10-

compensated only if Clay prevailed. We find the rationale of the district court compelling and perceive no reason for reversing its finding.

Bas ed on the School District's definition of minority preferre d
can didate and its statistical analysis, minority preferred candidate s realize d a substantial degree of election success. Overall, 57.9% o f minority preferred ca ndidates were elected to the Board of Education. In addition, the minority preferred candidate was elected 80% of the time whe n African-American voters voted cohesively. There fore, Plaintiffs failed to establish the third Gingles precondition because they did not show that th e white voting bloc did tend to thwart the minorit y preferred candidate. In lig ht of our conclusion that Plaintiffs failed to establish a necessar y 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 t o establish the existen ce 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.