1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-18-1997

Jenkins v. Reinbold

Precedential or Non-Precedential:

Docket 96-7313

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Recommended Citation

"Jenkins v. Reinbold" (1997). 1997 Decisions. Paper 133.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/133
Filed June 18, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7313 

ALDEN JENKINS; GWENDOLYN NEAL; 

HARLAN ROBERTS, 

Appellants

v. 

WILLIAM E. MANNING; CAROLECE SCOTTON; IRWIN J. 

BECNEL, JR.; CHARLES M. CAVANAUGH; LORETTA C. 

RICE; EDWARD M. SOSNOWSKI; JACQUELINE WITT; 

RED CLAY CONSOLIDATED SCHOOL DISTRICT BOARD 

OF EDUCATION 

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. Civ. No. 89-00230) 

Argued April 17, 1997 

BEFORE: GREENBERG, ALITO, and ROSENN, 

Circuit Judges

(Filed: June 18, 1997) 
Gary W. Aber 

Heiman, Aber & Goldlust 

First Federal Plaza 

702 King Street 

P.O. Box 1675, Suite 600 

Wilmington, DE 19801 

Brenda Wright (Argued) 

Samuel L. Walters 

Todd A. Cox 

Lawyers Committee for Civil 

Rights 

1450 G. Street, N.W. 

Suite 400 

Washington, DC 20005 

 Attorneys for Appellants

Thomas J. Manley (Argued) 

Albert Diaz 

Hunton & Williams 

One Hanover Square 

Fayetteville Street Mall 

Suite 1400 

Raleigh, NC 27601 

Alfred D'Angelo, Jr. 

Pepper, Hamilton & Scheetz 

1201 Market Street Suite 1600 

Wilmington, DE 19801 

 Attorneys for Appellees

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

Appellants, Alden Jenkins, Gwendolyn Neal, and Harlan 

Roberts, appeal from a judgment entered in favor of

appellees, the Red Clay Consolidated School District Board 

of Education ("The Board") in Delaware and the individual 

 2 
Board members,1 finding that the at-large system of electing 

Board members does not violate Section 2 of the Voting 

Rights Act. The district court's conclusion that appellants 

failed to establish a section 2 violation was not clearly 

erroneous, and its legal conclusions were sound. Therefore, 

we will affirm. 

I. JURISDICTION AND STANDARD OF REVIEW 

The district court had jurisdiction under 28 U.S.C.

§§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1973j(f). We 

have jurisdiction over this timely filed appeal under 28 

U.S.C. § 1291. 

Section 2 cases present mixed questions of law and fact, 

so our review of the district court's legal analysis is plenary, 

but our review of the court's factual findings is governed by 

the clearly erroneous standard. Jenkins v. Red Clay Consol.

Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116-17 (3d Cir. 

1993), cert. denied, 512 U.S. 1252, 114 S.Ct. 2779 (1994) 

("Jenkins II"). "[I]t is this combination of factual deference 

and legal review that best `preserves the benefit of the trial 

court's particular familiarity with the indigenous political 

reality without endangering the rule of law.' " Id. at 1117 

(citation omitted); see also Ortiz v. City of Philadelphia

Office of City Com'rs Registration Div., 28 F.3d 306, 308-09 

(3d Cir. 1994). 

If there is some evidence to support a district court's 

findings, a reviewing court can conclude that thefindings 

are clearly erroneous only when " `the reviewing court on 

the entire evidence is left with the definite andfirm 

conviction that a mistake has been committed.' " Anderson

v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 

1504, 1511 (1985) (citation omitted). A reviewing court, 

however, may not substitute its own view of the weight of 

the evidence for that of the district court if the district 

court's findings represent a plausible reading of the 

evidence. Id. at 573-74, 105 S.Ct. at 1511. 

_________________________________________________________________ 

1. The individual named appellees are William E. Manning, Carolece 

Scotton, Irwin J. Becnel, Jr., Charles M. Cavanaugh, Loretta C. Rice, 

Edward M. Sosnowski, and Jacqueline Witt. 

 3 
II. FACTUAL AND PROCEDURAL HISTORY 

The appellants filed this case as a class action on behalf 

of all eligible black voters in the Red Clay School District to 

challenge the method of electing members to the Red Clay 

Board of Education. Appellants charged that the at-large 

electoral system "unlawfully dilutes the voting strength of 

black citizens and has the effect of providing black citizens 

in the Red Clay School District less opportunity than white 

citizens to participate in the political process and to elect 

candidates of their choice to the Red Clay Board of

Education." Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 780 F. Supp. 221, 221-22 (D. Del. 1991) ("Jenkins

I"), rev'd, Jenkins II, 4 F.3d 1103. 

The Red Clay School District was established in 

November 1980. The Board has seven seats; each member 

sits for a five-year term, and elections are staggered so that 

each year there are elections for one or two seats. The first 

election was held in January 1981; since then, elections 

have been held annually in May. Candidates for the Board 

only must obtain the signatures of 20 voters to run for the 

Board. 

The Red Clay electoral system is characterized as an atlarge or multi-member district system. Jenkins I, 780 F. 

Supp. at 222. "In Red Clay, there is an assigned-post 

system, and only candidates living in a particular district 

may run for that particular district's seat. All Red Clay 

voters, however, can vote for each seat." Jenkins v. Red

Clay Consol. Sch. Dist. Bd. of Ed., 1996 WL 172327, at *21 

(D. Del. 1996) ("Jenkins III"). Each voter may vote for one 

candidate from each particular district, which is called a 

nominating district, and the candidate in each nominating 

district receiving a plurality of the votes wins. Jenkins I, 

780 F. Supp. at 222. Thus, the system, though providing 

for representation on the Board from each of seven defined 

nominating districts, does so on the basis of at-large voting. 

This voting plan is at the heart of this controversy. 

The Supreme Court has "long recognized that. . . at-large 

voting schemes may `operate to minimize or cancel out the 

voting strength of racial [minorities in] the voting 

population.' " Thornburg v. Gingles, 478 U.S. 30, 47-48, 106 

 4 
S.Ct. 2752, 2764-65 (1986) (citations, footnote, and internal 

quotation marks omitted). The danger inherent in at-large 

voting systems is that the majority, based on its greater 

numbers, will be able to elect its chosen candidates and 

defeat the candidates preferred by the minority. Id. at 48, 

106 S.Ct. at 2765. Gingles has become a guiding case 

under the Voting Rights Act. 

Following a bench trial, the district court concluded that 

appellants failed to establish one of three necessary factors 

to support their case under Gingles, namely, legally 

significant white bloc voting. Nonetheless, to make a 

comprehensive record, the court also analyzed the at-large 

electoral system under the totality of the circumstances. 

Jenkins I, 780 F. Supp. at 233. The court concluded that 

even if the appellants had established the three threshold 

factors, including white bloc voting, necessary to obtain 

relief under Gingles, under the totality of the circumstances 

they failed to prove a violation of Section 2 of the Voting 

Rights Act. Id. at 241. 

Appellants appealed the district court's decision to this 

court, and we reversed and remanded for further 

proceedings. Jenkins II, 4 F.3d 1103. We held that the 

district court erred in its assessment of the effects of white 

bloc voting. Only one candidate ever won a Red Clay

Education Board election with a plurality of the vote; we 

found this single election insufficient to support the district 

court's finding that the plurality-win rule enables minoritypreferred candidates to overcome white bloc voting. Id. at 

1122-23. We explained that the district court improperly 

based its assessment on the potential, rather than the 

actual, effects of plurality voting on the ability of black 

voters to elect their chosen representatives. Id. at 1123. 

Because we had "no way of knowing what conclusions the 

district court would have arrived at in regards to white bloc 

voting had it not been laboring under its misperception as 

to the significance of Red Clay's plurality voting scheme," 

we remanded the case to the district court for 

reconsideration. Id. 

On remand, the district court admitted additional 

evidence and ultimately concluded that although the

appellants had demonstrated the presence of the three 

 5 
threshold Gingles factors, they had not established under 

the totality of the circumstances that there had been a 

section 2 violation. Jenkins III, 1996 WL 172327. The 

appellants then appealed again. 

III. DISCUSSION 

Section 2 of the Voting Rights Act provides: 

(a) No voting qualification or prerequisite to voting or 

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 1973(b)(f)(2) of this title. 

. . . 

(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 subsection (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 establishes a right to have

members of a protected class elected in numbers equal 

to their proportion in the population. 

42 U.S.C. § 1973. "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 black and white voters to elect 

their preferred representatives." Gingles, 478 U.S. at 47, 

106 S.Ct. at 2764. In the legislative history to the 1982 

amendments to the Voting Rights Act, the Senate 

enumerated several factors ("the Senate Report factors") 

 6 
that might be relevant to an evaluation of challenges made 

under section 2: 

To establish a violation, plaintiffs could show a variety 

of factors, depending upon the kind of rule, practice, or 

procedure called into question. Typical factors include: 

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. 

Additional factors that in some cases have had 

probative value as part of plaintiffs' evidence to 

establish a violation are: 

whether there is a significant lack of responsiveness 

on the part of elected officials to the particularized 

needs of the members of the minority group. 

 7 
whether the policy underlying the state or political 

subdivision's use of such voting qualification, 

prerequisite to voting, or standard, practice or 

procedure is tenuous. 

1982 U.S.C.C.A.N. 177, 206-07 (footnotes omitted). 

According to the Senate Report, there is no magical number 

of factors which must be shown to exist; "the question 

whether the political processes are `equally open' depends 

upon a searching practical evaluation of the `past and 

present reality.' " Id. at 207-08 (footnote omitted). 

Additionally, the Senate Report noted that "Section 2, as 

amended, adopts the functional view of `political process. 

. . .' " Id. at 208 n.120. See also Gingles, 478 U.S. at 45, 

106 S.Ct. at 2763-64; Jenkins II, 4 F.3d at 1115. 

A plaintiff must establish three elements before he or she 

can demonstrate that minority voters have been deprived of 

the opportunity to elect representatives of their choosing in 

violation of Section 2. These factors, to which we alluded 

above, have come to be known as the "Gingles factors": 

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 must 

be able to demonstrate that the white majority votes 

sufficiently as a bloc to enable it -- in the absence of 

special circumstances, such as the minority candidate 

running unopposed. . . usually to defeat the minority's 

preferred candidate. 

Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67 (footnotes 

and citations omitted). See also Reno v. Bossier Parish Sch.

Bd., 117 S.Ct. 1491, 1498 (1997). 

The Supreme Court viewed the Gingles factors as 

"necessary preconditions," id. at 50, 106 S.Ct. at 2766, to 

finding a section 2 violation but also noted the importance 

of the other factors enumerated in the Senate Report. 

Indeed, the Supreme Court and the courts of appeals

continuously have reiterated that the Gingles factors are 

necessary, but not sufficient, preconditions to a successful 

section 2 challenge. Johnson v. De Grandy, 512 U.S. 997, 

 8 
1011, 114 S.Ct. 2647, 2657 (1994); Jenkins II, 4 F.3d at 

1115; Uno v. City of Holyoke, 72 F.3d 973, 980 (1st Cir. 

1995); N.A.A.C.P., Inc. v. City of Niagara Falls, 65 F.3d 

1002, 1019 (2d Cir. 1995); Baird v. Consolidated City of

Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992). The two 

most important Senate Report factors are " `the extent to 

which minority group members have been elected to public 

office in the jurisdiction' and the `extent to which voting in 

the elections of the state or political subdivision is racially 

polarized.' " Gingles, 478 U.S. at 48 n.15, 106 S.Ct. at 2766 

n.15 (citations omitted). 

The Supreme Court recently has refined the processes for 

evaluating Section 2 claims. "In a § 2 vote dilution suit, 

along with determining whether the Gingles preconditions 

are met and whether the totality of the circumstances 

supports a finding of liability, a court mustfind a

reasonable alternative practice as a benchmark against 

which to measure the existing voting practice." Holder v.

Hall, 512 U.S. 874, 880, 114 S.Ct. 2581, 2585 (1994) 

(footnote and citation omitted); see also Little Rock Sch.

Dist. v. Pulaski County Special Sch. Dist., #1, 56 F.3d 904, 

910 (8th Cir. 1995). 

We addressed Gingles in Jenkins II, where we emphasized 

that: 

The ultimate determination under § 2 remains whether, 

under the totality of the circumstances, the 

multimember districting scheme at issue in this case 

deprived black voters of an equal opportunity to 

participate in the political process and to elect 

representatives of their choice. . . . Therefore, even 

after a court has determined that the plaintiffs proved 

each of the Gingles factors, it must go on to consider 

whether the totality of circumstances, evaluated under 

a searching practical evaluation of the past and 

present reality and a functional view of political 

process, establishes that the particular voting scheme 

diminishes the minority group's opportunity fully to 

participate in the political process. 

Jenkins II, 4 F.3d at 1115-16 (citations and internal 

quotation marks omitted). We opined that it would be the 

 9 
unusual case where the plaintiffs proved the Gingles factors 

yet could not prove a section 2 violation under the totality 

of the circumstances, but we did not foreclose the 

possibility that such a case could arise. Id. at 1116 n.6. See

also Little Rock Sch. Dist. 56 F.3d 904 (court assumed 

existence of Gingles factors but found no violation 

established under totality of circumstances); Niagara Falls, 

65 F.3d 1002 (Gingles factors established, but no violation 

under totality of the circumstances). 

According to the district court, this case is such an 

unusual case. On remand, the district court addressed only 

the third Gingles factor, the existence and effect of white 

bloc voting, reasoning that we had affirmed its prior 

findings that the appellants had satisfied the other Gingles

factors. Jenkins III, 1996 WL 172327, at *2. Using a threestep inquiry to analyze whether white bloc voting defeats 

minority preferred candidates in Red Clay, the district court 

"(1) identif[ied] which candidates were minority-preferred; 

(2) observe[d] whether the percentage of whites voting as a 

bloc against the minority-preferred candidate has been 

sufficient usually to defeat the minority-preferred

candidate; and (3) decide[d] whether any of the elections 

involved special circumstances." Id. at *3 (footnote omitted). 

The district court found that five out of 11 minoritypreferred candidates won their elections. Id. at *9. After 

considering whether the victories of minority-preferred 

candidates could be attributed to special circumstances, 

the district court concluded that "white voters usually vote 

as a bloc against the minority-preferred candidate when 

that candidate is black and there is a white candidate in 

the race. This bloc is large enough usually to defeat black 

minority-preferred candidates. In these circumstances, the 

court finds legally significant, although not overwhelming, 

white bloc voting." Id. at *18. 

Finding that appellants satisfied the three Gingles factors,2 

the district court then assessed the Senate Report factors. 

As we will discuss in more detail below, the district court 

addressed each factor individually, finding that some 

_________________________________________________________________ 

2. The appellees do not challenge this finding on appeal and, of course, 

the appellants accept it. 

 10 
supported the appellants' claim while others weighed 

against finding a violation of Section 2. The court concluded 

that under the totality of the circumstances, the appellants 

failed to establish a section 2 violation. 

Appellants contend that this conclusion was in error and 

argue that the district court improperly weighed the various 

Senate Report factors in its analysis of the totality of the 

circumstances. The Board responds that the court's 

analysis was proper and also argues that the district 

court's conclusions are bolstered by the fact that the black 

voting population consistently has elected 10% black and 

20% minority-preferred candidates to the Board, afigure 

commensurate with the 13% black representation in the 

voting age population. 

During the initial appeal, we rejected the Board's 

argument that even if all the Gingles factors had been 

satisfied, the district court's analysis supported a finding 

that under the totality of the circumstances, no violation 

was established. First, we found that the district court's 

evaluation of the totality of the circumstances was tainted 

by its finding that the plurality-win rule combated the 

potential effects of white bloc voting. Jenkins II, 4 F.3d at 

1135. Second, we concluded that the district court's 

analysis was conclusory and did not comport with the 

requirement that the totality of the circumstances be 

subject to " `a searching practical evaluation.' " Id. (citation 

omitted). Third, even if a less searching evaluation were 

permitted, we required the district court to provide a more 

detailed explanation of its findings and analysis. Id. 

On remand, the district court corrected these errors. 

First, it discarded its plurality-win theory and reevaluated 

the elections to determine whether legally significant white 

bloc voting was established. Jenkins III, 1996 WL 172327, 

at *15. Thus, the plurality-win theory did not taint its 

findings on the remand. Second, the district court engaged 

in the more detailed evaluation contemplated by the Senate 

Report and the case law as we required in Jenkins II. 

Finally, the district court provided detailed explanations of 

its findings and analysis. 

As on the first appeal, the parties' dispute focuses on the 

findings related to white bloc voting. This time, however, 

 11 
the disagreement centers not on the finding that the 

appellants established the third Gingles factor, but on how 

the district court's finding of legally significant white bloc 

voting influenced its other findings. Specifically, the parties 

dispute the weight to be accorded the electoral success of 

black candidates in the analysis of the totality of the 

circumstances. 

1. Significance of Proportional Representation and Minority

Electoral Success

In finding that appellants did not establish a Section 2 

violation, the district court relied in large part on the 

undeniably substantial success of minority candidates. 

Nevertheless, proportionality of representation, or the lack 

thereof, though relevant, is not dispositive either in proving 

or disproving a section 2 claim. See, e.g., Little Rock Sch.

Dist., 56 F.3d at 911-912 (citing Johnson v. De Grandy); 

Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1388 (8th 

Cir. 1995), cert. denied, 116 S.Ct. 1876 (1996).3 

In Jenkins II, we rejected the Board's argument that the 

consistent proportional representation of blacks on the 

Board should defeat the section 2 claim. Jenkins II, 4 F.3d 

at 1131-32. We viewed the district court's findings that 

some of the black electoral victories were the product of 

special circumstances and its decision to consider the 

Gingles factors 

as a finding that the black voters of Red Clay had not 

achieved the persistent proportional representation

discussed in Gingles that would defeat a § 2 claim at 

the threshold and thereby obviate the need to consider 

the Gingles factors. We conclude that the court's 

finding in this regard was not clearly erroneous as the 

_________________________________________________________________ 

3. These cases rely on Johnson v. De Grandy for support. However, the 

court in Johnson v. De Grandy was addressing a different sort of 

proportionality when it found that proportionality is relevant but not 

dispositive. As used there, the term "link[ed] the number of majorityminority voting districts to minority members' share of the relevant 

population. The concept is distinct from the subject of the proportional 

representation clause of 2. . . ." Johnson v. De Grandy, 512 U.S. at 1014 

n.11, 114 S.Ct. at 2658 n.11. 

 12 
record amply supports a finding that the black voters 

of Red Clay have not achieved persistent proportional 

representation. 

Id. at 1132. 

On remand, the district court reassessed its earlier 

finding that black candidates had achieved substantial 

electoral success, but not sustained proportional 

representation, in light of its new findings that two white 

candidates who were elected to the Board also were 

minority-preferred. Jenkins III, 1996 WL 172327, at *24. 

The district court based its finding of substantial minority 

electoral success on several elections. First, the district 

court counted the 1981 victory of black candidate Harlan 

Roberts, who won a plurality of the votes in an election of 

seven candidates. The district court also found that black 

candidate Carolece Scotton's 1990 defeat of black candidate 

Rita Shockley demonstrated minority electoral success. Id. 

at *24. In 1991, black candidate Ronald Greene defeated 

white candidate Russell Fiske; the court also considered 

this election in its evaluation of minority electoral success. 

Id. 

The district court included in its evaluation the electoral 

victories of two white candidates, Charles Cavanaugh in 

1988 and Patricia Reinbold in 1989, whom it deemed 

minority-preferred. Appellants argue that although the 

district court did not allow these elections to defeat its 

finding of legally significant white bloc voting, it improperly 

weighed those elections in finding substantial minority 

electoral success. Appellants also claim that these

candidates should not have been considered minoritypreferred. 

In Jenkins II, we rejected a bright-line rule that any 

minority candidate should be viewed as minority-preferred 

and explained that although there is an inference that a 

minority candidate is minority-preferred, plaintiffs must 

provide evidence, such as statistical evidence regarding 

voting patterns or lay testimony, demonstrating that the 

candidate is, in fact, minority-preferred. Jenkins II, 4 F.3d 

at 1126. Similarly, we refused to propound a rule that only 

minority candidates may be considered minority-preferred. 

 13 
Id. at 1126. Instead, we adopted a more flexible approach, 

emphasizing that courts must examine closely the nature of 

minority voter support for candidates, especially white 

candidates, to determine whether a particular candidate is 

minority-preferred. Id. at 1125-26 (citing Sanchez v. Bond, 

875 F.2d 1488, 1494-96 (10th Cir. 1989)). 

We enumerated several inquiries pertinent to determining 

whether a particular white candidate is minority-preferred. 

"One relevant consideration is the extent to which the 

minority community can be said to have sponsored the 

candidate." Jenkins II, 4 F.3d at 1129. An evaluation of that 

factor should focus on "the level of minority involvement in 

initially advancing the particular candidate and in

conducting or financing that candidate's campaign." Id. The 

level of attention the candidate gave to minority needs and 

interests, including how often the candidate campaigned in 

predominantly minority areas, is also relevant. Id. at 1129. 

We also found pertinent the level of minority voter turn out 

in white-white elections, compared to the turn out when a 

black candidate is running. Id. "Finally, bearing in mind 

the disincentives that may exist for minority candidates to 

seek office, the extent to which minority candidates have 

run for office and the ease or difficulty with which a 

minority candidate can qualify to run for office may be 

relevant considerations." Id. We now examine individual 

elections. 

a. Election of Harlan Roberts in 1981

The election of Harlan Roberts in 1981 has been a matter 

of some controversy during this litigation. Roberts is the 

only candidate ever elected to the Board by a plurality of 

the votes. The district court, considering the "practical 

effect" of the plurality-win rule in assessing minority 

electoral success, relied on this unusual election to support 

its finding of substantial black electoral success. Jenkins

III, 1996 WL 172327, at *23. 

In Jenkins II, we accepted the district court's original 

finding that the Roberts victory occurred under special 

circumstances. Jenkins II, 4 F.3d at 1122-23, 1132. The 

district court's conclusion on remand that special 

circumstances were not at work in this election was based 

 14 
on its finding that Roberts enjoyed substantial white and 

black support and its conviction that the victory should not 

be discounted simply because the plurality system 

contributed to Roberts' victory. Jenkins III, 1996 WL 

172327, at *15. This finding was clearly erroneous; this 

election involved the largest field of candidates ever to run 

for a single Board seat, id. at *14; it was the first Board 

election ever held, and Roberts was the only candidate ever 

to have won with a plurality of the vote, Jenkins II, 4 F.3d 

at 1122-23. 

However, this error does not require reversal and remand 

to the district court for yet another assessment of this case. 

Although the district court should have discounted the 

effect of this victory in its analysis of minority electoral 

success, the fact remains that a black candidate was 

elected. This election still should be counted, although it 

should be accorded less weight. Thus, although the district 

court erred in its analysis of this race, this error does not 

upset the overall evaluation of minority electoral success. 

Rather, we must look to the other races considered in the 

district court's analysis to determine whether the error is 

reversible. 

b. Carolece Scotton's Election in 1990

The district court found that there were special 

circumstances in this election because it was between two 

black candidates. The court therefore found the election 

less probative on the question of white bloc voting. Jenkins

III, 1996 WL 172327, at *17. Appellants urge that the 

district court erred by failing to consider this special 

circumstance in its analysis of black electoral success. 

Appellants' argument fails. In Jenkins II, we "express[ed] 

no opinion on the relationship between the consideration of 

special circumstances in the two contexts (sustained 

proportional representation and white bloc voting)." Jenkins

II, 4 F.3d at 1119 n.9. Ironically, in its original opinion, the 

district court considered special circumstances in the 

context of its findings on sustained proportional 

representation but erroneously failed to apply those 

findings to its evaluation of white bloc voting. Id. We noted 

that Gingles requires the district court to consider those 

 15 
circumstances in the context of white bloc voting, id., and, 

on remand, the district court did so. 

We now find that it is quite reasonable to hold that a 

particular election must be discounted for one purpose but 

not another. Here, the district court's finding that a blackblack election should be discounted for purposes of

evaluating white bloc voting does not compel the conclusion 

that the same election must be discounted when evaluating 

minority electoral success. To the contrary, the fact that 

two black candidates ran in one election, unopposed by any 

white candidate, is evidence of black electoral success. It 

demonstrates that blacks in Red Clay can and do put

forward and support candidates who can succeed. The

appellants actually seem to be asking us to discount any 

evidence of black electoral success; this we cannot do. 

There was no error in giving weight to the electoral success 

of Scotton in 1990.4 

c. Election of Ronald Greene in 1991

Ronald Greene, a black candidate, defeated Russell Fiske, 

a white candidate, in a 1991 election for a special one-year 

term. The court found that both statistical and lay

testimony demonstrated that Greene was the minoritypreferred candidate. Jenkins III, 1996 WL 172327, at *9. 

This finding has not been challenged on appeal, and we 

accept it as not clearly erroneous. 

d. Election of Charles Cavanaugh in 1988

In 1983, Cavanaugh, a white candidate, defeated Betty 

Anderson, who is black. The district court found that 

_________________________________________________________________ 

4. In a footnote to their brief, appellants also argue that the court erred 

in finding that Scotton, rather than her opponent Shockley, was the 

minority-preferred candidate in 1990. Br. at 32 n.15. There is no 

detailed argument on this point, and we decline to address it. However, 

the evidence we have reviewed supports the district court's finding on 

this matter, and we view the argument as an effort by the appellants to 

persuade us (and the district court) to disregard all evidence of minority 

electoral success. For a more detailed discussion of this question, see

Jenkins III, 1996 WL 172327, at *8 (comparing statistical evidence 

supporting Scotton's status as the minority-preferred candidate to 

plaintiffs' lay testimony about minority support for Shockley). 

 16 
Anderson was the minority-preferred candidate in that race. 

In 1988, Cavanaugh, running unopposed, won reelection. 

Evaluating the factors delineated in Jenkins II, the district 

court concluded that by 1988 "Cavanaugh was the 

representative of choice of minority voters," and was the 

minority-preferred candidate. Id. at *7, 6. The district court 

found that Cavanaugh had become focused on the needs 

and interests of the minority community during his earlier 

term, and that in 1988 he was supportive of issues 

important to the minority community. Id. at *6. 

Additionally, the court found that there were no 

impediments to a minority candidate entering the 1988 

race against Cavanaugh. Id. at *7. 

This finding may be questionable, given that the district 

court recognized that no evidence demonstrated that the 

minority community advanced, conducted, or financed

Cavanaugh's campaign in 1988. Id. at *6. Additionally, the 

court noted that there was no evidence that Cavanaugh's 

unopposed race affected black or white voter turnout. Id. 

Although the finding that Cavanaugh was minoritypreferred may not be clearly erroneous, it is certainly not 

well supported. The district court should have discounted 

this race as having no impact on minority electoral success, 

just as it discounted this race in its assessment of white 

bloc voting, id. at *16. 

e. Election of Patricia Reinbold in 1989

Reinbold, who is white, defeated white candidate Donald 

Schneck in 1989. Based on evidence that Reinbold 

campaigned on issues of concern to the minority 

community, blacks were involved in Reinbold's campaign 

efforts, important black community leaders supported 

Reinbold, and there were no barriers to a black candidate 

running in the election, the district court concluded that 

Reinbold was the minority-preferred candidate. Id. at *7-8. 

The court found that although black voter turn out 

decreased disproportionately in that year, the decrease 

could not be attributed to the absence of a black candidate. 

Id. at *7. 

The district court's conclusion that Reinbold was the 

minority-preferred candidate was not clearly erroneous. 

 17 
Moreover, as noted above, individual elections can be 

accorded differing weight for different purposes. Although a 

white-white election obviously is of less relevance to an 

analysis of white bloc voting, it is relevant to an assessment 

of minority electoral success if white minority-preferred 

candidates defeat other white non-minority-preferred 

candidates. The district court did not err in considering this 

election in its assessment of minority electoral success. 

f. Conclusion on Minority Electoral Success

Section 2 guarantees equality of opportunity for minority 

participation in the electoral and political processes. It does 

not focus on whether minorities are able to elect other 

minorities to office, but rather addresses whether minorities 

have an equal opportunity to elect representatives of their 

choice, whatever their race, to office. Although the district 

court did err in some respects, on the whole, discounting 

the elections which should have been weighed less heavily 

or ignored in the analysis of minority electoral success, we 

find that the district court did not commit clear error in 

concluding that minority electoral success, while not 

reaching sustained levels of proportionality, was 

substantial. Although several black candidates who sought 

election were defeated, often by white candidates, others 

were successful, and in some elections minorities also were 

able to elect white candidates of their choosing. The 

electoral success of Roberts, Scotton, Greene, and Reinbold 

support the finding of substantial minority electoral 

success. As the district court reasonably found, 

"Considering that black voters comprise only 13% of the 

VAP [voting age population], their success has been great. 

It has not been persistent or sustained, but it has been 

impressive." Id. at *24. These findings supported the 

district court's conclusion that under the totality of the 

circumstances, no section 2 violation was established. 

2. Analysis of the Remaining Senate Report Factors

Appellants challenge the district court's findings on many 

of the Senate Report factors as erroneous and also argue 

that the court improperly weighed the different factors in its 

evaluation of the totality of the circumstances. Wefirst will 

 18 
discuss the court's assessment of each factor and then 

evaluate the weight ascribed to each factor in its analysis of 

the totality of the circumstances. 

a. Past and Present Discrimination

Finding a history of discrimination against minorities in 

Delaware and a general lower socioeconomic status of 

minorities in Red Clay, the district court concluded that 

those factors might have caused the demonstrated 

depressed minority political and electoral participation in 

Red Clay. Id. at *20. Appellants challenge only the weight 

accorded this finding in the totality of the circumstances 

analysis. 

b. Racial Polarization of Voting

Based on its findings of voting cohesion among blacks as 

well as legally significant white bloc voting, the district 

court determined that voting in Red Clay is, to a degree, 

racially polarized. Id. at *21. This finding is not challenged 

on appeal. 

c. Effects of other Electoral Practices or Procedures

On remand, the district court reaffirmed that the 

opportunity for electoral discrimination against minorities 

was not enhanced by other features of the Red Clay 

electoral system, such as the size of the district, the 

plurality-win rule, or the anti-single shot voting provision. 

Id. For example, although the anti-single shot rule 

precludes resort to a strategy that minorities could employ 

to elect candidates of their choosing, the court noted that 

it also ensures that citizens from each district in Red Clay 

have representatives on the Board. Id. These findings were 

not clearly erroneous. 

The district court also noted that other aspects of the Red 

Clay voting system were beneficial to minorities, 

particularly the absence of any voter registration 

requirements and the ability of voters to vote at any polling 

place in the district. Id. at *22. The court correctly 

concluded that these elements of the electoral system make 

it easier for minorities to vote. Similarly correct were the 

district court's original findings that the use of Tuesdays 

rather than Saturdays as election days did not enhance the 

 19 
opportunity for discrimination. Jenkins I, 780 F. Supp. at 

236. 

The district court did not discuss in either opinion the 

appellants' charges that the opportunity for discrimination 

was enhanced by the low appointment rate of blacks as poll 

workers and election officials in school board elections. The 

parties stipulated that during a three-year period only ten 

of 149 such appointments were black. While this number 

obviously reflects some disparity, the appellants have not 

alerted us to any other record evidence on this issue, so it 

is not possible to determine whether the disparity is the 

result of intentional discrimination or how that disparity 

affects voter turnout. 

The appellants also claim that the district court erred 

"because of its failure to acknowledge that [the voting 

practices and procedures] include a nominating-district 

residency requirement that creates a direct barrier to 

minority candidacies outside the two Wilmington-based 

nominating districts." Br. at 48. This is a more serious 

concern; however, the district court adequately addressed 

this issue in its original opinion, concluding that the 

system promotes slating and also ensures that citizens 

from all areas of the district will be represented on the 

board. Jenkins I, 780 F. Supp. at 235. The court concluded 

that although the system precluded single shot voting 

which can help minorities elect candidates of their

choosing, overall this feature of the electoral system did not 

work either in favor of or against minority voters. Id. at 

235-36. The district court again discussed this issue on 

remand, and reaffirmed its earlier findings. Jenkins III, 

1996 WL 172327, at *21. 

Appellants' contention that a nominating district 

requirement limits minority candidates to the two 

Wilmingon-based nominating districts strikes us as highly 

ironic. The appellants have brought this action seeking the 

establishment of a single-member district system with each 

district electing its own member. Thus, for example, only

residents of District B could vote in the elections for the 

member from District B, and those residents could vote in 

only those elections. The theory, of course, is that a singlemember district could become a majority-minority district, 

 20 
thus leading to the election of a minority member. Yet, 

surely the appellants should recognize that according to 

their theory of this case, the system they seek would tend 

to limit minority candidates to the majority-minority district 

or districts. Although under the at-large system, black 

candidates most frequently run for election in Districts A 

and B, minority candidates have run for election from five 

different districts. Id. at *27. Thus, appellants now 

complain about a system that they seek to perpetuate and 

strengthen. 

On the whole, as the district court explained, the Red 

Clay election procedures "are open and accommodating and 

do not enhance the opportunity for discrimination against 

black citizens." Id. at *22. Thus, the district court's findings 

about the features of the Red Clay electoral system were 

not clearly erroneous. 

d. Accessibility of Slating Processes to Minority Candidates

The district court reaffirmed its original conclusion that 

the slating processes are open to minority candidates. Id. 

This conclusion is not challenged on appeal. 

e. Use of Racial Appeals in Election Campaigns

On remand, the district court reaffirmed its original 

conclusion that racial appeals were not used in Red Clay 

elections. Id. at *23. Appellants argue that the district court 

improperly discounted the use of a flyer during the 1988 

campaign that warned against voting for a black candidate 

who might support school population changes to promote 

racial balance. The district court correctly determined that 

this flyer did not constitute a racial appeal. Theflyer simply 

noted the three candidates' positions on changing feeder 

patterns within the School District, and it did not identify 

the candidates by race. Although the feeder pattern issue 

did involve the percentages of students of different races in 

the various schools and how the candidates might vote on 

feeder pattern issues, this flyer was more of an issue appeal 

than a racial appeal, albeit an issue heavily identified with 

racial concerns. The district court's finding on this factor 

was not clearly erroneous. 

f. Policies Supporting At-Large Multi-District System

The district court reaffirmed its earlier finding that two 

policies support the use of at-large voting: it promotes 

 21 
broader accountability of the Board members by requiring 

them to seek support from citizens of all district 

neighborhoods, and it allows citizens to vote every year for 

Board members, rather than once every five years, when a 

particular district seat comes up for election. Id. at *24-25. 

The district court found that the relationship between these 

policies and the use of the at-large electoral system was not 

tenuous. Moreover, all but one school district in Delaware 

elect board members in this manner. The common usage of 

this system further supports the district court's conclusion 

that the policies advanced in support of the at-large system 

are sufficiently related to the use of the system. The finding 

was not clearly erroneous. 

g. Responsiveness of the Board

The district court reaffirmed its original finding that the 

Board had been unresponsive to minority concerns despite 

improvement in the areas of employment of black teachers 

and administrators and concerns about how black children 

were being placed into special education classes. Id. at *25. 

The court also noted, however, that a federal court now has 

held that the schools of Red Clay are desegregated,

although there was substantial delay in achieving that 

result. Id. Also, some Board members, both black and 

white, have begun to represent and advocate for issues of 

concern to minorities. Id. Finally, the court noted that 

recent electoral victories of black and white minoritypreferred candidates might represent or lead to increased 

responsiveness by the Board to minorities. Id. While the 

court found these factors significant, it still concluded that, 

on the whole, this Senate Report factor weighed in favor of 

appellants. This finding was not clearly erroneous.

h. The Totality of the Circumstances

In weighing the Senate Report factors in this case, the 

two most important factors, the existence of racially 

polarized voting and the extent of minority electoral 

success, tilted the balance in different directions. 

The district court found "legally significant, although not 

overwhelming, white bloc voting," in Red Clay. Id. at *18. 

The district court was entitled to accord substantial weight 

to the existence of white bloc voting in its analysis of the 

 22 
totality of the circumstances; the fact that the white bloc 

voting was "not overwhelming" did not require the court to 

discount significantly this factor. However, the court was 

required to weigh this factor against its finding of 

substantial minority electoral success, and it did so, 

concluding that "[w]hile there has been legally significant 

racially polarized voting in Red Clay, the results of that one 

legal test do not tell the whole story." Id. at *28. In some 

cases, for example, either white bloc voting was not 

responsible for the defeat of a minority or minoritypreferred candidate or there was actually cross-over white 

voting for such candidates. 

In the analysis of the totality of the circumstances, 

substantial minority electoral success strongly 

counterbalances the racially polarized voting. The 

significance of the level of minority electoral success 

achieved in Red Clay further is evidenced by the district 

court's comparison of the success achieved under the atlarge system and the projected minority electoral success 

the appellants' proposed single-district system would 

produce. This comparison underscores the propriety of the 

district court's finding that no Section 2 violation was 

established by demonstrating that the proposed system 

would be unlikely to produce increased minority electoral 

success.5 

Relying on appellants' expert's testimony, the court found 

that a single district, District B, could be drawn in Red 

Clay, the voting age population of which would be 55.64% 

black. Id. at *27. This district would include sections of two 

_________________________________________________________________ 

5. We note that appellants argue that the district court's comparative 

analysis is flawed because the district court did not discount those 

elections in which special circumstances contributed to minority 

electoral success and therefore incorrectly overstated the electoral 

success in the at-large system. As noted above in the discussion 

regarding minority electoral success, however, the court's discounting of 

the elections was related to its assessment of white bloc voting, not 

minority electoral success. Although we found that some of those 

elections should have been discounted in the analysis of minority 

electoral success as well, we conclude that the district court's 

comparative analysis of the two electoral systems is not rendered clearly 

erroneous by its failure to discount these elections. 

 23 
existing nominating districts, Districts A and B, and would 

enjoy, according to our calculations, an increase of almost 

44% in the percentage of minorities in the voting age 

population. In the new District A, blacks would comprise 

15.46% of the voting age population, id.; as we calculate it, 

this would represent almost a four percent increase. The 

district court concluded that if Red Clay adopted a singlemember district system, blacks living in the new District B 

almost always would succeed in electing their chosen 

candidates, while blacks living outside of Districts A and B 

would not often succeed in electing their preferred

candidates. Id. at *26. 

To date, a black candidate has won all of the elections in 

District B except for the 1985 election in which Harlan 

Roberts was defeated. Id. Reasoning that the results would 

be the same if District B were transformed into a majority 

black district in a single-member district system, the 

district court concluded that "[b]ecause under the single 

member district system the minority-preferred candidate 

can be expected usually to win in District B, Harlan 

Roberts' loss in 1985 logically could be blamed on the atlarge system of election." Id. at *27. 

The district court concluded that a single-member system 

would benefit some minority candidates and voters while 

disadvantaging others: minority-preferred candidates 

running in District B would benefit from a change to a 

single-member district because of the significant increase of 

the percentage of blacks in the voting age population. Id. 

Candidates in District A also would benefit, but the portion 

of black voters for whose votes they would be competing 

would increase only slightly. Id. However, candidates 

running in other districts (C, D, E) would be disadvantaged, 

for the percentage of black voters to whom they could look 

for support would decrease from 12% to less than 3% in 

Districts E and D and 5% in District C. Id. The district 

court also concluded that by concentrating black voters 

into one district, the single-member plan also might 

concentrate black candidates into one district, thereby 

decreasing the representation of blacks outside that 

district. Id. Finally, the district court concluded that the 

single-member system might impair the ability of black 

 24 
voters to elect white minority-preferred candidates by 

decreasing the incentives for white candidates in the nonblack majority districts to appeal to black voters due to 

their decreased percentages in the voting age populations of 

those districts. Id. at *28. For these reasons, the district 

court found that "a switch to a single member district 

would have had and likely would have only a very minor 

impact, if any, on the success of minority-preferred 

candidates." Id.6 

Given the countervailing weight of the two most 

important Senate Report factors, the other Senate Report 

factors are very important in an assessment of the totality 

of the circumstances. The district court's findings make 

clear that, although there has been discrimination in Red 

Clay which may have resulted in the decreased minority 

voter participation, most of the features of the Red Clay 

electoral system not only have not increased discrimination 

against minorities but in several aspects actually have 

made the electoral system more accessible to minority 

voters and candidates. Moreover, racial appeals have not 

been used in Red Clay elections. Finally, the situation in 

Red Clay seems to be improving, as minority electoral 

success continues and the Board's responsiveness to

minority concerns increases. Given these circumstances, we 

find that the district court properly weighed all the various 

Senate Report factors and reasonably concluded that no 

Section 2 violation was established. 

The district court conducted a searching analysis of past 

and present political realities in Red Clay, and it compared 

actual minority electoral success with the potential success 

a single-member system would produce. The district court 

followed our instructions on remand, and the evidence 

supported its conclusions. We, too, have made a searching 

_________________________________________________________________ 

6. We note that in the text of its opinion, the district court discussed the 

effects of the proposed single-member plan on onlyfive nominating 

districts. However, it is clear from the record, and from a footnote in the 

district court's opinion, that the proposed plan would maintain a system 

with seven nominating districts. App. at 846; Jenkins III, 1996 WL 

172327, at *30 n.35. The black voting age population would be 2.13% in 

proposed District F and 2.86% in proposed District G. Jenkins III, 1996 

WL 172327, at *30 n.35. 

 25 
analysis of the numerous facets of this case, and based on 

that analysis, we are convinced that this case falls into that 

category of unusual cases where the Gingles factors are 

proved, but under the totality of the circumstances, no 

section 2 violation is established. Although racially 

polarized voting has characterized Red Clay elections, there 

has been substantial minority electoral success, and a 

change to a single-member system would not improve 

appreciably the level of such success. Therefore, the district 

court correctly concluded that no section 2 violation was 

established. 

IV. CONCLUSION 

The district court's factual findings (except where noted 

with regard to certain electoral results) and conclusions 

were not clearly erroneous. We therefore uphold the district 

court's conclusion that no section 2 violation was 

established. Consequently, we affirm the order of April 12, 

1996, entering judgment in favor of the appellees. 

 26 
ROSENN, Circuit Judge, dissenting. 

When last this case was before our court, Jenkins v. Red

Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103 (3d Cir. 

1993) [Jenkins I], we stated that"it would be a highly 

unusual case in which a plaintiff successfully proved the 

existence of the three Gingles factors and still failed to 

establish a violation [of § 2 of the Voting Rights Act]." Id. at 

1116 n.6; see also id. at 1135. Since that time, several 

other Courts of Appeals have adopted our view.1 Yet today 

the majority retreats from the compelling mandate of 

Jenkins I, finding a "highly unusual" situation in the 

ordinary and ambiguous details of the case as currently 

presented. For this reason, I respectfully dissent.

The majority correctly states that the Gingles factors are 

merely preconditions to a successful § 2 challenge, and that 

courts must look beyond these factors to the totality of the 

circumstances. The majority is also correct in stating that 

the totality of the circumstances analysis focuses on the 

Senate Report factors, and that the two most important 

factors are "the extent to which voting in the elections of 

the state or political subdivision is racially polarized" and 

"the extent to which members of the minority group have 

been elected to public office in the jurisdiction." But the 

majority's analysis hinges on its view that minority 

candidates have enjoyed "undeniably substantial success" 

in Red Clay elections. I see the elections through a different 

lens. The majority's weighing of the Senate Report factors is 

imbalanced, and its affirmance of the district court decision 

is unwarranted. 

In focusing on the details of this case, the majority has 

apparently overlooked the broad sweep of the Voting Rights 

Act of 1965, 42 U.S.C. § 1973, and its 1982 amendments. 

The Act is widely considered to be the most successful piece 

of civil rights legislation ever enacted by Congress. See, e.g., 

Alexander Athan Yanos, Note, Reconciling the Right to Vote

_________________________________________________________________ 

1. See, e.g., Clark v. Calhoun County, 88 F.3d 1393, 1396 (5th Cir. 

1996); Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995); NAACP

v. City of Niagara Falls, 65 F.3d 1002, 1020 n.21 (2d Cir. 1995); Nipper

v. Smith, 39 F.3d 1494, 1514 (11th Cir. 1994), cert. denied, 115 S. Ct. 

1795 (1995). 

 27 
With the Voting Rights Act, 92 Colum. L. Rev. 1810, 1835 

(1992). President Lyndon Johnson recognized the critical 

importance of the vote to minorities when he responded to 

the Civil Rights Act of 1964 by stating, "Yes, yes, . . . I want 

all of those other things -- buses, restaurants, all of that -- 

but the right to vote with no ifs, ands, or buts, that's the 

key." Merle Miller, Lyndon, An Oral Biography 371 (1980). 

The 1982 amendments to the Voting Rights Act 

acknowledged that while outright deprivation of the right to 

vote was more or less a thing of the past, minority vote 

dilution was still a tenacious problem. See, e.g., Armand 

Derfner, Vote Dilution and the Voting Rights Act

Amendments of 1982, in Minority Vote Dilution 145, 145 

(Chandler Davidson ed., 1984). When it enacted the 

amendments, Congress was aware that at-large elections 

were seen as the principal impediment to minority 

representation. See, e.g., Timothy G. O'Rourke, The 1982

Amendments and the Voting Rights Paradox, in 

Controversies in Minority Voting 85, 110 (Bernard Grofman 

& Chandler Davidson eds., 1992). 

The purpose of Section 2 is to prohibit electoral 

arrangements which "dilute" (i.e., diminish) the voting 

power of racial minority groups. For example, at-large 

electoral systems (which allow every voter to vote for as 

many candidates as there are legislative seats to be 

filled in an entire jurisdiction) often violate Section 2 by 

allowing a cohesive racial majority to elect every single 

legislator, thereby leaving racial minorities 

unrepresented. 

Michael E. Lewyn, When Is Cumulative Voting Preferable to

Single-Member Districting?, 25 N.M. L. Rev. 197, 197 (1995) 

(footnotes omitted). 

It is against the broad mandate from Congress, that we 

eliminate minority vote dilution resulting from at-large 

electoral systems, that we must evaluate the case now 

before us. Plaintiffs had asked the district court to order 

Red Clay to adopt a system of single-member districts, the 

traditional remedy in cases of this sort, see, e.g., Lewyn, 

supra, at 197, and one which would virtually guarantee 

that minorities are represented on the Red Bank school 

 28 
board. The majority has instead, by affirming the district 

court decision, placed its imprimatur on a system which 

only by a series of flukes and anomalies has permitted any 

minority representation at all. This cannot be the desire of 

Congress, and it most certainly is not that of the Supreme 

Court. See Thornburg v. Gingles, 478 U.S. 30, 76 (1986) 

("Where multimember districting generally works to dilute 

the minority vote, it cannot be defended on the ground that 

it sporadically and serendipitously benefits minority 

voters."). 

When we examine the "undeniably substantial success of 

minority candidates" upon which the majority relies, we see 

that it is neither undeniable nor substantial. The majority 

itself acknowledges that Harlan Roberts' 1981 plurality 

victory was a never-repeated situation which should be 

discounted. This echoes our view in Jenkins I in 1993: 

Since no candidate, black or white, has won with a 

mere plurality since 1981, and only one black 

candidate has run in an election against more than a 

single opposing candidate since 1981, the court could 

not have concluded on this record that the plurality 

scheme had the actual effect of allowing the black 

voters of Red Clay to elect their representatives of 

choice even though the white voters consistently voted 

against the minority-preferred candidates in numbers 

sufficient to prevent those candidates from winning a 

majority of the overall vote. 

Jenkins I, 4 F.3d at 1123. 

Carolece Scotton, who was slated with a white, suburban 

candidate, beat another black candidate in an election in 

which no white candidate chose to run. The election took 

place in 1990, the year after this lawsuit was filed. The 

Supreme Court has noted that it might be proper for lower 

courts to view with some caution the success of black 

candidates during the pendency of litigation. Gingles, 478 

U.S. at 76. See also Zimmer v. McKeithen, 485 F.2d 1297, 

1307 (5th Cir. 1973) ("[S]uch success might be attributable 

to political support motivated by different considerations -- 

namely that election of a black candidate will thwart 

successful challenges to electoral schemes on dilution 

 29 
grounds."); Gingles v. Edmisten, 590 F. Supp. 345, 367 

n.27 (E.D.N.C. 1984) ("[I]n some elections the pendency of 

this very litigation worked a one-time advantage for black 

candidates in the form of unusual organized support by 

white leaders concerned to forestall single-member 

districting . . .."). 

Ronald Greene won against a white candidate in a midterm election with exceptionally low voter turnout. Greene 

was perceived as being aligned with white suburban 

interests, presumably because of his strong opposition to 

mandatory school reassignment. On the morning of the 

election, a flyer was distributed stating that the white 

candidate, Fiske, had withdrawn from the race. Fiske 

testified that this had a major impact on the election 

because the timing made it impossible for him to respond 

that the statement was untrue. 

We see that of ten black candidates to run in Red Clay in 

the years 1981 to 1991, only three succeeded: one (Roberts) 

in a never-repeated plurality win, one (Scotton) by defeating 

another black candidate, and one (Greene) in a littlenoticed mid-term election. This hardly exemplifies 

substantial or consistent electoral success. On the

contrary, it demonstrates legally significant white bloc 

voting. The dismal picture is not improved by adding into 

the mix the two white candidates characterized by the 

district court as "minority-preferred," and upon which it 

relied so much in reaching its ultimate result. The majority 

acknowledges that Charles Cavanaugh was, in fact, not

minority-preferred, and the district court "should have 

discounted this race as having no impact on minority 

electoral success." Maj. op. at 17. As to the other white 

candidate, Patricia Reinbold, of the two blacks identified by 

her as important in her campaign, only one testified before 

the district court. He had this to say in response to a query 

as to why he supported Reinbold: "I guess I couldn't stand 

Schneck, who was running against her." This is not the 

sort of "minority sponsorship" we envisioned when, in 

Jenkins I, we gave explicit instructions for determining 

whether a white candidate is "truly the minority 

community's representative of choice." Jenkins I at 1126. 

 30 
Our decision today guarantees that minority voting rights 

in Red Clay will continue to depend upon happenstance. 

This is not what Lyndon Johnson envisioned when he 

instructed his attorney general to write the "toughest voting 

rights act that you can devise." Howell Raines, My Soul Is 

Rested 337 (1977). It is not what Congress envisioned when 

it gave the president that law, and then made it even more 

effective with the 1982 amendments. And it is not what this 

court envisioned when in Jenkins I we emphasized 

repeatedly the rarity of a case where "an electoral system 

that routinely results in white voters voting as a bloc to 

defeat the candidate of choice of a politically cohesive 

minority group is not violative of § 2 of the Voting Rights 

Act." Jenkins I at 1135. 

I believe that the plaintiffs' proof of the three crucial 

Gingles factors and other elements that show impeded 

access by black citizens to full participation in the Red Clay 

School District more than meet the tests necessary to 

establish a violation of Section 2 under the totality of the 

circumstances. In light of the prolonged history of this case 

and its remand in 1993, remand for further findings would 

only aggravate an obviously unsatisfactory situation. 

Accordingly, I would reverse the district court's judgment 

for the defendants and remand the case to it to fashion 

forthwith an appropriate remedy. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 31