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. e du/thir dc ir c uit_1997/133Filed 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 Harl an Roberts, appeal from a judgment entered in favor of appellees, the Red Clay Consolidated School Distric t Board of Education ("The Board") in Delaware and the indi vidual

2Board members,1 finding that the at-large system of electing
Board members does not violate Section 2 of the Vot ing Rights Act. The district court's conclusion that ap pellants
failed to establish a section 2 violation was not c learly erroneous, and its legal conclusions were sound. Th erefore,
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 und er 28 U.S.C. § 1291.

Section 2 cases present mixed questions of law and fact, so our review of the district court's legal analysi s is plenary, but our review of the court's factual findings is g overned 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 deferen ce and legal review that best `preserves the benefit o f 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 Phila delphia 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 cou rt's findings, a reviewing court can conclude that thefi ndings are clearly erroneous only when " `the reviewing co urt on
the entire evidence is left with the definite andfi rm conviction that a mistake has been committed.' " An derson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 1511 (1985) (citation omitted). A reviewing c ourt, however, may not substitute its own view of the wei ght of
the evidence for that of the district court if the district court's findings represent a plausible reading of t he
evidence. Id . at 573-74, 105 S.Ct. at 1511.

___________________________________________________ ______________

1. The individual named appellees are William E. Ma nning, Carolece Scotton, Irwin J. Becnel, Jr., Charles M. Cavanaugh , Loretta C. Rice, Edward M. Sosnowski, and Jacqueline Witt.

3II. 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 str ength of black citizens and has the effect of providing blac k citizens in the Red Clay School District less opportunity th an white citizens to participate in the political process an d 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 memb er sits for a five-year term, and elections are stagge red so that each year there are elections for one or two seats. The first election was held in January 1981; since then, elec tions 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 a n atlarge or multi-member district system. Jenkins I, 780 F. Supp. at 222. "In Red Clay, there is an assigned-po st system, and only candidates living in a particular district may run for that particular district's seat. All Re d 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 c alled a nominating district, and the candidate in each nomi nating district receiving a plurality of the votes wins. J enkins I, 780 F. Supp. at 222. Thus, the system, though provi ding for representation on the Board from each of seven defined nominating districts, does so on the basis of at-la rge voting. This voting plan is at the heart of this controvers y.

The Supreme Court has "long recognized that. . . at -large voting schemes may `operate to minimize or cancel o ut the voting strength of racial [minorities in] the votin g population.' " Thornburg v. Gingles , 478 U.S. 30, 47-48, 106

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

quotation marks omitted). The danger inherent in at -large voting systems is that the majority, based on its g reater numbers, will be able to elect its chosen candidate s 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 conclud ed that appellants failed to establish one of three necessa ry factors to support their case under Gingles , namely, legally significant white bloc voting. Nonetheless, to make a comprehensive record, the court also analyzed the a t-large electoral system under the totality of the circumst ances. Jenkins I, 780 F. Supp. at 233. The court concluded that even if the appellants had established the three th reshold 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 th e Voting Rights Act. Id . at 241.

Appellants appealed the district court's decision t o 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 effec ts of white bloc voting. Only one candidate ever won a Red Clay Education Board election with a plurality of the vo te; 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 impro perly 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 mispercep tion 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 thr ee

5threshold Gingles factors, they had not established under

the totality of the circumstances that there had be en 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 voti ng or standard, practice, or procedure shall be imposed o r 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 o n account of race or color, or in contravention of th e guarantees set forth in section 1973(b)(f)(2) of th is title.

. . .

(b) A violation of subsection (a) of this section i s established if, based on the totality of the circumstances, it is shown that the political proce sses 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 proc ess and to elect representatives of their choice. The exten t to which members of a protected class have been electe d 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 equ al to their proportion in the population.

42 U.S.C. § 1973. "The essence of a § 2 claim is th at a certain electoral law, practice, or structure inter acts with social and historical conditions to cause an inequa lity 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 th e 1982 amendments to the Voting Rights Act, the Senate enumerated several factors ("the Senate Report fact ors")

6that might be relevant to an evaluation of challeng es made

under section 2:

To establish a violation, plaintiffs could show a v ariety of factors, depending upon the kind of rule, practi ce, or procedure called into question. Typical factors inc lude:

1. the extent of any history of official discrimina tion in the state or political subdivision that touched the right of the members of the minority group to regis ter, to vote, or otherwise to participate in the democra tic

process;

2. the extent to which voting in the elections of t he state or political subdivision is racially polarize d;

3. the extent to which the state or political subdivision has used unusually large election distr icts, majority vote requirements, anti-single shot provis ions, 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 th e effects of discrimination in such areas as educatio n, employment and health, which hinder their ability t o 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 responsivene ss on the part of elected officials to the particulari zed needs of the members of the minority group.

7whether the policy underlying the state or politica l

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 quest ion 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 p rocess. . . .' " 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 depr ived of the opportunity to elect representatives of their c hoosing 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 demonstra te that it is sufficiently large and geographically co mpact to constitute a majority in a single-member distric t. . . . Second, the minority group must be able to show tha t it is politically cohesive. . . . Third, the minori ty must be able to demonstrate that the white majority vote s sufficiently as a bloc to enable it -- in the absen ce of special circumstances, such as the minority candida te running unopposed. . . usually to defeat the minori ty's preferred candidate.

Gingles , 478 U.S. at 50-51, 106 S.Ct. at 2766-67 (footnote s and citations omitted). See also Reno v. Bossier Pa rish 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 im portance of the other factors enumerated in the Senate Repor t. Indeed, the Supreme Court and the courts of appeals continuously have reiterated that the Gingles factors are necessary, but not sufficient, preconditions to a s uccessful section 2 challenge. Johnson v. De Grandy , 512 U.S. 997,

81011, 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 Ci ty of Indianapolis , 976 F.2d 357, 359 (7th Cir. 1992). The two most important Senate Report factors are " `the ext ent to which minority group members have been elected to p ublic office in the jurisdiction' and the `extent to whic h 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 processe s for evaluating Section 2 claims. "In a § 2 vote dilutio n suit, along with determining whether the Gingles preconditions are met and whether the totality of the circumstanc es supports a finding of liability, a court mustfind a reasonable alternative practice as a benchmark agai nst which to measure the existing voting practice." Hol der v.
Hall , 512 U.S. 874, 880, 114 S.Ct. 2581, 2585 (1994) (footnote and citation omitted); see also Little Ro ck 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 whethe r, under the totality of the circumstances, the multimember districting scheme at issue in this cas e deprived black voters of an equal opportunity to participate in the political process and to elect representatives of their choice. . . . Therefore, e ven after a court has determined that the plaintiffs pr oved each of the Gingles factors, it must go on to consider whether the totality of circumstances, evaluated un der a searching practical evaluation of the past and present reality and a functional view of political process, establishes that the particular voting sch eme diminishes the minority group's opportunity fully t o participate in the political process.

Jenkins II, 4 F.3d at 1115-16 (citations and internal quotation marks omitted). We opined that it would b e the

9unusual case where the plaintiffs proved the Gingle s 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); Niaga ra 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 address ed only the third Gingles factor, the existence and effect of white bloc voting, reasoning that we had affirmed its pri or findings that the appellants had satisfied the othe r Gingles
factors. Jenkins III, 1996 WL 172327, at *2. Using a threestep inquiry to analyze whether white bloc voting d efeats minority preferred candidates in Red Clay, the dist rict court "(1) identif[ied] which candidates were minority-pr eferred; (2) observe[d] whether the percentage of whites vot ing as a bloc against the minority-preferred candidate has b een sufficient usually to defeat the minority-preferred candidate; and (3) decide[d] whether any of the ele ctions involved special circumstances." Id . at *3 (footnote omitted).

The district court found that five out of 11 minori typreferred candidates won their elections. Id . at *9. After considering whether the victories of minority-prefe rred candidates could be attributed to special circumsta nces, the district court concluded that "white voters usu ally vote as a bloc against the minority-preferred candidate when
that candidate is black and there is a white candid ate in the race. This bloc is large enough usually to defe at black minority-preferred candidates. In these circumstanc es, the court finds legally significant, although not overw helming, 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 distri ct court addressed each factor individually, finding that so me

___________________________________________________ ______________

2. The appellees do not challenge this finding on a ppeal and, of course, the appellants accept it.

10supported the appellants' claim while others weighe d

against finding a violation of Section 2. The court concluded that under the totality of the circumstances, the a ppellants
failed to establish a section 2 violation.

Appellants contend that this conclusion was in erro r and argue that the district court improperly weighed th e various Senate Report factors in its analysis of the totali ty of the circumstances. The Board responds that the court's analysis was proper and also argues that the distri ct court's conclusions are bolstered by the fact that the black voting population consistently has elected 10% blac k and 20% minority-preferred candidates to the Board, afi gure commensurate with the 13% black representation in t he 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 vi olation 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 th e requirement that the totality of the circumstances be subject to " `a searching practical evaluation.' " Id . (citation omitted). Third, even if a less searching evaluatio n were permitted, we required the district court to provid e a more detailed explanation of its findings and analysis. Id

.

On remand, the district court corrected these error s. First, it discarded its plurality-win theory and re evaluated the elections to determine whether legally signific ant white bloc voting was established. Jenkins III, 1996 WL 172327, at *15. Thus, the plurality-win theory did not tain t 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 expla nations of its findings and analysis.

As on the first appeal, the parties' dispute focuse s on the findings related to white bloc voting. This time, h owever,

11the disagreement centers not on the finding that th e

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 suc cess 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 Sect ion 2 violation, the district court relied in large part on the undeniably substantial success of minority candidat es. 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 prod uct 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 consi der 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' shar e of the relevant population. The concept is distinct from the subjec t of the proportional representation clause of 2. . . ." Johnson v. De Gr andy , 512 U.S. at 1014 n.11, 114 S.Ct. at 2658 n.11.

12record amply supports a finding that the black vote rs

of Red Clay have not achieved persistent proportion al representation.

Id . at 1132.

On remand, the district court reassessed its earlie r finding that black candidates had achieved substant ial electoral success, but not sustained proportional representation, in light of its new findings that t wo 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 H arlan Roberts, who won a plurality of the votes in an ele ction of
seven candidates. The district court also found tha t black
candidate Carolece Scotton's 1990 defeat of black c andidate Rita Shockley demonstrated minority electoral succe ss. Id

. at *24. In 1991, black candidate Ronald Greene defe ated white candidate Russell Fiske; the court also consi dered this election in its evaluation of minority elector al success.
Id

.

The district court included in its evaluation the e lectoral victories of two white candidates, Charles Cavanaug h 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 def eat its finding of legally significant white bloc voting, i t improperly weighed those elections in finding substantial mino rity electoral success. Appellants also claim that these candidates should not have been considered minority preferred.

In Jenkins II, we rejected a bright-line rule that any minority candidate should be viewed as minority-pre ferred and explained that although there is an inference t hat a minority candidate is minority-preferred, plaintiff s must provide evidence, such as statistical evidence rega rding voting patterns or lay testimony, demonstrating tha t the candidate is, in fact, minority-preferred. Jenkins II, 4 F.3d at 1126. Similarly, we refused to propound a rule t hat only minority candidates may be considered minority-pref erred.

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

emphasizing that courts must examine closely the na ture of minority voter support for candidates, especially w hite candidates, to determine whether a particular candi date 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 determ ining whether a particular white candidate is minority-pr eferred.
"One relevant consideration is the extent to which the minority community can be said to have sponsored th e candidate." Jenkins II, 4 F.3d at 1129. An evaluation of that factor should focus on "the level of minority invol vement 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 n eeds and interests, including how often the candidate campai gned 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 candi dates to seek office, the extent to which minority candidate s have run for office and the ease or difficulty with whic h a minority candidate can qualify to run for office ma y 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 m atter of some controversy during this litigation. Roberts is the only candidate ever elected to the Board by a plura lity of the votes. The district court, considering the "pra ctical effect" of the plurality-win rule in assessing mino rity 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 spe cial
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

14on its finding that Roberts enjoyed substantial whi te and

black support and its conviction that the victory s hould 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 e ver to run for a single Board seat, id . at *14; it was the first Board election ever held, and Roberts was the only candid ate 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 r emand 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 wa s elected. This election still should be counted, alt hough it should be accorded less weight. Thus, although the district court erred in its analysis of this race, this erro r 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 betwe en two
black candidates. The court therefore found the ele ction less probative on the question of white bloc voting . Jenkins III, 1996 WL 172327, at *17. Appellants urge that t he district court erred by failing to consider this sp ecial circumstance in its analysis of black electoral suc cess.

Appellants' argument fails. In Jenkins II, we "express[ed] no opinion on the relationship between the consider ation of special circumstances in the two contexts (sustaine d 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 thos e findings to its evaluation of white bloc voting. Id . We noted that Gingles requires the district court to consider those

15circumstances 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 tha t a particular election must be discounted for one purp ose 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 co nclusion
that the same election must be discounted when eval uating minority electoral success. To the contrary, the fa ct that two black candidates ran in one election, unopposed by any white candidate, is evidence of black electoral suc cess. 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 discoun t any evidence of black electoral success; this we cannot do. There was no error in giving weight to the electora l 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 minority preferred 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 Bet ty Anderson, who is black. The district court found th at

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4. In a footnote to their brief, appellants also ar gue that the court erred in finding that Scotton, rather than her opponent S hockley, was the minority-preferred candidate in 1990. Br. at 32 n.1 5. 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 a ll evidence of minority
electoral success. For a more detailed discussion o f this question, see
Jenkins III, 1996 WL 172327, at *8 (comparing statistical evidence supporting Scotton's status as the minority-preferr ed candidate to plaintiffs' lay testimony about minority support fo r Shockley).

16Anderson was the minority-preferred candidate in th at race.

In 1988, Cavanaugh, running unopposed, won reelecti on. Evaluating the factors delineated in Jenkins II, the district court concluded that by 1988 "Cavanaugh was the representative of choice of minority voters," and w as the minority-preferred candidate. Id . at *7, 6. The district court found that Cavanaugh had become focused on the need s 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 19 88 race against Cavanaugh. Id . at *7.

This finding may be questionable, given that the di strict 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 Cavanau gh's unopposed race affected black or white voter turnou t. Id

.Although the finding that Cavanaugh was minoritypreferred may not be clearly erroneous, it is certa inly not well supported. The district court should have disc ounted this race as having no impact on minority electoral success, just as it discounted this race in its assessment o f white bloc voting, id . at *16.

e. Election of Patricia Reinbold in 1989

Reinbold, who is white, defeated white candidate Do nald
Schneck in 1989. Based on evidence that Reinbold campaigned on issues of concern to the minority community, blacks were involved in Reinbold's campa ign efforts, important black community leaders supporte d Reinbold, and there were no barriers to a black can didate running in the election, the district court conclud ed 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 decr ease could not be attributed to the absence of a black c andidate.
Id . at *7.

The district court's conclusion that Reinbold was t he minority-preferred candidate was not clearly errone ous.

17Moreover, as noted above, individual elections can be

accorded differing weight for different purposes. A lthough 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-pre ferred candidates defeat other white non-minority-preferre d
candidates. The district court did not err in consi dering this election in its assessment of minority electoral su ccess.

f. Conclusion on Minority Electoral Success

Section 2 guarantees equality of opportunity for mi nority participation in the electoral and political proces ses. It does
not focus on whether minorities are able to elect o ther minorities to office, but rather addresses whether minorities have an equal opportunity to elect representatives of their choice, whatever their race, to office. Although th e district court did err in some respects, on the whole, disco unting the elections which should have been weighed less h eavily or ignored in the analysis of minority electoral su ccess, we find that the district court did not commit clear e rror in concluding that minority electoral success, while n ot 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 a lso were able to elect white candidates of their choosing. T he electoral success of Roberts, Scotton, Greene, and Reinbold support the finding of substantial minority elector al 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 establish ed.

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 fac tors in its evaluation of the totality of the circumstances. We first will

18discuss the court's assessment of each factor and t hen 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 minorit ies in Delaware and a general lower socioeconomic status o f minorities in Red Clay, the district court conclude d that those factors might have caused the demonstrated depressed minority political and electoral particip ation in Red Clay. Id . at *20. Appellants challenge only the weight accorded this finding in the totality of the circum stances analysis.

b. Racial Polarization of Voting

Based on its findings of voting cohesion among blac ks as well as legally significant white bloc voting, the district court determined that voting in Red Clay is, to a d egree, racially polarized. Id . at *21. This finding is not challenged on appeal.

c. Effects of other Electoral Practices or Procedur es

On remand, the district court reaffirmed that the opportunity for electoral discrimination against mi norities 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 coul d employ to elect candidates of their choosing, the court no ted 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 a ny polling place in the district. Id . at *22. The court correctly concluded that these elements of the electoral syst em 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 enha nce the

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

236.

The district court did not discuss in either opinio n the appellants' charges that the opportunity for discri mination was enhanced by the low appointment rate of blacks as poll
workers and election officials in school board elec tions. The parties stipulated that during a three-year period only ten of 149 such appointments were black. While this num ber obviously reflects some disparity, the appellants h ave not alerted us to any other record evidence on this iss ue, so it is not possible to determine whether the disparity is the
result of intentional discrimination or how that di sparity
affects voter turnout.

The appellants also claim that the district court e rred "because of its failure to acknowledge that [the vo ting practices and procedures] include a nominating-dist rict residency requirement that creates a direct barrier to minority candidacies outside the two Wilmington-bas ed nominating districts." Br. at 48. This is a more se rious concern; however, the district court adequately add ressed this issue in its original opinion, concluding that the system promotes slating and also ensures that citiz ens 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 voti ng which can help minorities elect candidates of their choosing, overall this feature of the electoral sys tem did not work either in favor of or against minority voters. Id . at 235-36. The district court again discussed this iss ue on remand, and reaffirmed its earlier findings. Jenkin s 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 see king the establishment of a single-member district system wi th 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 v ote in only those elections. The theory, of course, is that a singlemember district could become a majority-minority di strict,

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

surely the appellants should recognize that accordi ng to their theory of this case, the system they seek wou ld tend to limit minority candidates to the majority-minori ty district or districts. Although under the at-large system, b lack candidates most frequently run for election in Dist ricts A and B, minority candidates have run for election fr om five
different districts. Id . at *27. Thus, appellants now complain about a system that they seek to perpetuat e and strengthen.

On the whole, as the district court explained, the Red Clay election procedures "are open and accommodatin g and do not enhance the opportunity for discrimination a gainst
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 C andidates

The district court reaffirmed its original conclusi on that the slating processes are open to minority candidat es. Id

. This conclusion is not challenged on appeal.

e. Use of Racial Appeals in Election Campaigns

On remand, the district court reaffirmed its origin al 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 can didate who might support school population changes to prom ote racial balance. The district court correctly determ ined that this flyer did not constitute a racial appeal. Thef lyer simply noted the three candidates' positions on changing f eeder 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 differen t races in the various schools and how the candidates might vo te on feeder pattern issues, this flyer was more of an is sue appeal than a racial appeal, albeit an issue heavily ident ified with racial concerns. The district court's finding on th is factor was not clearly erroneous.

f. Policies Supporting At-Large Multi-District Syst em

The district court reaffirmed its earlier finding t hat two policies support the use of at-large voting: it pro motes

21broader accountability of the Board members by requ iring

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, w hen a particular district seat comes up for election. Id . at *24-25. The district court found that the relationship betw een these policies and the use of the at-large electoral syst em was not tenuous. Moreover, all but one school district in D elaware elect board members in this manner. The common usag e of this system further supports the district court's c onclusion that the policies advanced in support of the at-lar ge 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 de spite improvement in the areas of employment of black tea chers
and administrators and concerns about how black chi ldren were being placed into special education classes. I d . 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 t hat
result. Id . Also, some Board members, both black and white, have begun to represent and advocate for iss ues of
concern to minorities. Id . Finally, the court noted that
recent electoral victories of black and white minor itypreferred candidates might represent or lead to inc reased responsiveness by the Board to minorities. Id . While the court found these factors significant, it still con cluded 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 racial ly polarized voting and the extent of minority elector al success, tilted the balance in different directions

.

The district court found "legally significant, alth ough not overwhelming, white bloc voting," in Red Clay. Id . at *18.
The district court was entitled to accord substanti al weight to the existence of white bloc voting in its analys is of the

22totality of the circumstances; the fact that the wh ite bloc

voting was "not overwhelming" did not require the c ourt to discount significantly this factor. However, the co urt was required to weigh this factor against its finding o f substantial minority electoral success, and it did so, concluding that "[w]hile there has been legally sig nificant 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 no t responsible for the defeat of a minority or minorit ypreferred candidate or there was actually cross-ove r white voting for such candidates.

In the analysis of the totality of the circumstance s, substantial minority electoral success strongly counterbalances the racially polarized voting. The significance of the level of minority electoral suc cess achieved in Red Clay further is evidenced by the di strict court's comparison of the success achieved under th e atlarge system and the projected minority electoral s uccess the appellants' proposed single-district system wou ld produce. This comparison underscores the propriety of the district court's finding that no Section 2 violatio n was established by demonstrating that the proposed syst em would be unlikely to produce increased minority ele ctoral
success.5

Relying on appellants' expert's testimony, the cour t found that a single district, District B, could be drawn in Red Clay, the voting age population of which would be 5 5.64%
black. Id . at *27. This district would include sections of t wo

___________________________________________________ ______________

5. We note that appellants argue that the district court's comparative analysis is flawed because the district court did n ot discount those elections in which special circumstances contribute d to minority electoral success and therefore incorrectly oversta ted the electoral success in the at-large system. As noted above in t he discussion regarding minority electoral success, however, the court's discounting of
the elections was related to its assessment of whit e bloc voting, not minority electoral success. Although we found that some of those elections should have been discounted in the analys is of minority electoral success as well, we conclude that the dis trict court's comparative analysis of the two electoral systems i s not rendered clearly erroneous by its failure to discount these election s.

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

enjoy, according to our calculations, an increase o f almost 44% in the percentage of minorities in the voting a ge population. In the new District A, blacks would com prise 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 asinglemember district system, blacks living in the new Di strict B almost always would succeed in electing their chose n candidates, while blacks living outside of District s 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 elect ions in District B except for the 1985 election in which Ha rlan
Roberts was defeated. Id. Reasoning that the results would
be the same if District B were transformed into a m ajority black district in a single-member district system, the district court concluded that "[b]ecause under the single member district system the minority-preferred candi date can be expected usually to win in District B, Harla n 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 s ystem would benefit some minority candidates and voters w hile disadvantaging others: minority-preferred candidate s running in District B would benefit from a change t o a single-member district because of the significant i ncrease of the percentage of blacks in the voting age populati on. Id

. Candidates in District A also would benefit, but th e portion of black voters for whose votes they would be compe ting would increase only slightly. Id . However, candidates running in other districts (C, D, E) would be disad vantaged, for the percentage of black voters to whom they cou ld 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 vo ters into one district, the single-member plan also migh t concentrate black candidates into one district, the reby decreasing the representation of blacks outside tha t
district. Id . Finally, the district court concluded that the single-member system might impair the ability of bl ack

24voters 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 popul ations of
those districts. Id . at *28. For these reasons, the district court found that "a switch to a single member distr ict would have had and likely would have only a very mi nor impact, if any, on the success of minority-preferre d
candidates." Id .6

Given the countervailing weight of the two most important Senate Report factors, the other Senate R eport 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 minor ity voter participation, most of the features of the Re d Clay electoral system not only have not increased discri mination against minorities but in several aspects actually have made the electoral system more accessible to minori ty voters and candidates. Moreover, racial appeals hav e not been used in Red Clay elections. Finally, the situa tion in Red Clay seems to be improving, as minority elector al success continues and the Board's responsiveness to minority concerns increases. Given these circumstan ces, we find that the district court properly weighed all t he various Senate Report factors and reasonably concluded that no Section 2 violation was established.

The district court conducted a searching analysis o f past and present political realities in Red Clay, and it compared actual minority electoral success with the potentia l success a single-member system would produce. The district court followed our instructions on remand, and the eviden ce supported its conclusions. We, too, have made a sea rching

___________________________________________________ ______________

6. We note that in the text of its opinion, the dis trict court discussed the effects of the proposed single-member plan on onlyf ive nominating districts. However, it is clear from the record, an d from a footnote in the district court's opinion, that the proposed plan wo uld maintain a system with seven nominating districts. App. at 846; Jenki ns III, 1996 WL 172327, at *30 n.35. The black voting age populatio n would be 2.13% in proposed District F and 2.86% in proposed District G. Jenkins III, 1996 WL 172327, at *30 n.35.

25analysis of the numerous facets of this case, and b ased on

that analysis, we are convinced that this case fall s 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 racial ly polarized voting has characterized Red Clay electio ns, there has been substantial minority electoral success, an d a change to a single-member system would not improve appreciably the level of such success. Therefore, t he district court correctly concluded that no section 2 violati on was established.

IV. CONCLUSION

The district court's factual findings (except where noted with regard to certain electoral results) and concl usions 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 A pril 12, 1996, entering judgment in favor of the appellees.

26ROSENN, 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 prov ed 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 o f
Jenkins I , finding a "highly unusual" situation in the ordinary and ambiguous details of the case as curre ntly 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 totali ty of the circumstances. The majority is also correct in stat ing that the totality of the circumstances analysis focuses on the Senate Report factors, and that the two most import ant factors are "the extent to which voting in the elec tions of the state or political subdivision is racially pola rized" 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 minorit y candidates have enjoyed "undeniably substantial suc cess" 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 cour t decision
is unwarranted.

In focusing on the details of this case, the majori ty has apparently overlooked the broad sweep of the Voting Rights Act of 1965, 42 U.S.C. § 1973, and its 1982 amendme nts. The Act is widely considered to be the most success ful piece of civil rights legislation ever enacted by Congres s. 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).

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

(1992). President Lyndon Johnson recognized the cri tical importance of the vote to minorities when he respon ded to the Civil Rights Act of 1964 by stating, "Yes, yes, . . . I want all of those other things -- buses, restaurants, al l of that -- but the right to vote with no ifs, ands, or buts, t hat'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 electi ons 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 G rofman & Chandler Davidson eds., 1992).

The purpose of Section 2 is to prohibit electoral arrangements which "dilute" (i.e., diminish) the vo ting power of racial minority groups. For example, at-la rge electoral systems (which allow every voter to vote for as many candidates as there are legislative seats to b e filled in an entire jurisdiction) often violate Sec tion 2 by allowing a cohesive racial majority to elect every single legislator, thereby leaving racial minorities unrepresented.

Michael E. Lewyn, When Is Cumulative Voting Prefera ble 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 n ow before us. Plaintiffs had asked the district court to order Red Clay to adopt a system of single-member distric ts, 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 sch ool

28board. The majority has instead, by affirming the d istrict

court decision, placed its imprimatur on a system w hich only by a series of flukes and anomalies has permit ted 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 gro und that it sporadically and serendipitously benefits minori ty 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 plura lity 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 cou ld not have concluded on this record that the pluralit y scheme had the actual effect of allowing the black voters of Red Clay to elect their representatives o f choice even though the white voters consistently vo ted against the minority-preferred candidates in number s 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, subu rban candidate, beat another black candidate in an elect ion in
which no white candidate chose to run. The election took place in 1990, the year after this lawsuit was file d. The Supreme Court has noted that it might be proper for lower
courts to view with some caution the success of bla ck candidates during the pendency of litigation. Gingl es , 478
U.S. at 76. See also Zimmer v. McKeithen , 485 F.2d 1297, 1307 (5th Cir. 1973) ("[S]uch success might be attr ibutable to political support motivated by different conside rations -- namely that election of a black candidate will thwa rt successful challenges to electoral schemes on dilut ion

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

n.27 (E.D.N.C. 1984) ("[I]n some elections the pend ency of this very litigation worked a one-time advantage fo r 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 mi dterm election with exceptionally low voter turnout. Greene was perceived as being aligned with white suburban interests, presumably because of his strong opposit ion to mandatory school reassignment. On the morning of th e election, a flyer was distributed stating that the white candidate, Fiske, had withdrawn from the race. Fisk e testified that this had a major impact on the elect ion because the timing made it impossible for him to re spond
that the statement was untrue.

We see that of ten black candidates to run in Red C lay 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 litt lenoticed 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 addin g into the mix the two white candidates characterized by t he district court as "minority-preferred," and upon wh ich it relied so much in reaching its ultimate result. The majority acknowledges that Charles Cavanaugh was, in fact, n ot minority-preferred, and the district court "should have discounted this race as having no impact on minorit y electoral success." Maj. op. at 17. As to the other white candidate, Patricia Reinbold, of the two blacks ide ntified by her as important in her campaign, only one testifie d 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.

30Our decision today guarantees that minority voting rights

in Red Clay will continue to depend upon happenstan ce. This is not what Lyndon Johnson envisioned when he instructed his attorney general to write the "tough est voting rights act that you can devise." Howell Raines, My Soul Is Rested 337 (1977). It is not what Congress envision ed when it gave the president that law, and then made it ev en more effective with the 1982 amendments. And it is not w hat 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 coh esive minority group is not violative of § 2 of the Votin g Rights
Act." Jenkins I at 1135.

I believe that the plaintiffs' proof of the three c rucial Gingles factors and other elements that show impeded access by black citizens to full participation in t he Red Clay School District more than meet the tests necessary to
establish a violation of Section 2 under the totali ty 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 situatio n. Accordingly, I would reverse the district court's j udgment
for the defendants and remand the case to it to fas hion forthwith an appropriate remedy.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

31