## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2964

____________ Hollis D. Stabler, Jr.; Sharon Freemont ; * Omaha Tribal Historical Project, Inc.; * Red Feather Family Services, Inc., *
* Plaintiffs-Appellees, *
* v. *
* County of Thurston, Nebraska; Mark * Casey, in his official capacity as Chai r * o f the Board of Supervisors of Thursto n * County, Nebraska, *
* Appeals from the United States Defendants-Appellants. * District Court for the
* District of Nebraska Thurston County School District 13, * Thurston County, Nebraska; Village of * Walthill, Nebraska; Steve Dunn, in his * official capacity as Chair of the Villag e * o f Walthill Board of Trustees; Patrici a * Higgins, in her official capacity as County * Clerk of Thurston County, Nebraska; * Keith Mahaney, in his official capacit y * as President of Thurston County School * District 13, *
* Defendants. *-2-

____________ No. 96-3111

____________ Hollis D. Stabler, Jr.; Sharon Freemont ; * Omaha Tribal Historical Project, Inc.; * Red Feather Family Services, Inc., *
* Plaintiffs-Appellants, *
* v. *
* County of Thurston, Nebraska; Mark * Casey, in his official capacity as Chai r * o f the Board of Supervisors of Thursto n * County, Nebraska, Thurston County * School District 13, Thurston County, * Nebraska; Village of Walthill, Nebraska; * Steve Dunn, in his official capacity a s * Chair of the Village of Walthill Boar d
* of Trustees; Patricia Higgins, in her * official capacity as County Clerk of * Thurston County, Nebraska; Keith * Mahaney, in his official capacity * as President of Thurston County School * District 13, *
* Defendant - Appellees.. *

____________ Submitted: May 19, 1997 Filed: December 1, 1997

____________The Honorable Lyle E. Strom, Senior United States District Judge for th e 1 District of Nebraska. Thornburg v. Gingles , 478 U.S. 30 (1986). 2 ____________ Before McMILLIAN, ROSS and FAGG, Circuit Judges.

____________
McMILLIAN, Circuit Judge. Defenda nt

County of Thurston, Nebraska (Thurston County), appeals from a final order entered in the United States District Court for the District of Nebrask a 1 holding that the districting plan for the election of the Thurston County Board o f Supervisors (the County Board) violates section 2 of the Voting Rights Act of 196 5 (§ 2), as amended, 42 U.S.C. § 1973, and ordering Thurston County to create a third major ity-minority district for such elections. Stabler v. County of Thurston , No

. 8:CV93-00394 (D. Neb. Aug. 29, 1995). For reversal, Thurston County argue s tha t the district court erred in: (1) considering total population and voting ag e population to determine proportionality; (2) applying the totality of the circumstances tes t; and (3) finding that the districting plan violated § 2. Plaintiffs Hollis D. Stabler, Jr., Sharon Freemont, Omaha Tribal Historical Project, Inc., and Red Feather Family Services (c ollectively, “plaintiffs”) cross-appeal from that part of the order entered in favor of defendants Thurston County School District 13 (School District 13) an d Village of Walthill (t

he Village) holding that the districting plan used to elect both the Distr ict’s school board (the School Board) and the Village’s Board of Trustees (th e Villag e Board) does not violate § 2 or the First, Thirteenth, Fourteenth, or Fifteenth Amendments to the Unite d States Constitution. Id. On cross-appeal, plaintiffs argue that the district court erred in holding that plaintiffs failed to satisfy the three Gingles 2 preconditions for a § 2 claim. For the reasons discussed below, we affirm the order of the district court.Brief for Appellees/Cross-Appellants at 19, citing plaintiffs’ exhibit no. 19. 3

-4- Jurisdicti on was proper in the district court based upon 28 U.S.C. §§ 1331 , 1343(a) (4), and 2201. Jurisdiction on appeal is proper based upon 28 U.S.C. §1291. The notices of appeal and cross-appeal were timely filed under Fed. R. Civ. P. 4(a). I. Background
The following facts are taken from the district court’s memorandum opinion. Slip op. at 1-2, 6-8, 19-20. The Omaha and Winnebago Indian Reservations ar e locat ed in eastern Thurston County, which lies in northeast Nebraska. Accordingly , Thurston County has a substantial Native American population concentrated in th e east ern half of the county. The Village is a small community located in easter n Thurs ton County. School District 13, which serves the Village and the surroundin g area, has a student body population which, during the 1994-1995 scho ol year, was 80% Native American. The i ndividual plaintiffs, Hollis Stabler, Jr., and Sharon Freemont, 3

are Native American citizens and voters in Thurston County, School District 13, and the Village. The organizational plaintiffs, Omaha Tribal Historical Project, Inc., and Red Feather Family Services, are located in Thurston County.

In 197 9, the County Board entered into a consent decree which created it s current method of election. The County Bo ard is composed of seven members elected f rom single-member districts, with each member holding a four-year term. Members

ar e nominated in partisan primary elections and elected in general elections in eve n numbered years. Four members (Districts 1, 3, 5, and 7) are elected in gubernatorial election years, while three members (Districts 2, 4, and 6) are elected in presidential election years. The County Board drew the district lines to create two Nati ve American majority districts, providing Native A mericans in Thurston County with representationThe district court found that, statistically, the terms “non-white” and “Nativ e 4 American” are “virtually synonymous.” Stabler v. County of Thurston , No. 8:CV93-00394, slip op. at 7 n.3 (D. Neb. Aug. 29, 1995).
-5- on the County Board in proportion to their 28.5% share of the total population in 1979. (Two of seven County Board seats = 28.57%.) Following th e 1980 census, the County Board redistricted and again created two Native American majority districts. At that time, non-whites made up 33.8% of Thurston County’s total population. According 4
to the 1990 census, of Thurston County’s total population, 43.92% are Nativ e America ns and 55.67% are whites. Of Thurston County’s voting age populatio n (VAP), 35.9% are Native Americans and 63.54% are whites.

Foll owing the 1990 census, the County Board created the districting schem e challenged by plaintiffs. In Districts 4 and 6, which are the majority-minority districts, Native Am ericans constitute a majority of the total population (87.9% and 96.9% , resp ectively) and the VAP (82.8% and 94.5%, respectively). Whites constitute a maj ority of the total population and the VAP in the other five districts. However, i n Districts 2, 3, and 5, Native Americans represent a substantial portion of the tota l population (41.2%, 30.9%, and 46.3%, respectively) a nd the VAP (36.9%, 22.7%, and 36.4%, res pectively). Only Districts 1 and 7 contain nominal Native America n populations.

The School Board is co mposed of six members, each elected at-large to a fouryear term. Three members are elected every two years in a non-partisan primar y election in May and a non-partisan general election i n November. The winners in each primary election are the top six finishers determined by a plural ity vote method, and the winners of the general election are the top three finishers by plurality vote. The Village Board is composed of five members, eachelected at-large to a fouryear te rm. Three members are elected in a non-partisan general election held in May-6-

of the gubernatorial election year, and two members are elected in a general election held in May of the presidential election year. The winners in each general election are the top three (or two) finishers determined by a plurality vote method.
Plaintiffs filed suit against Thurston County, School District 13, and the Village, alleging that the districting plan used to elect the County Boa rd and the at-large method used to elect the School Board and the Village Board violate § 2 of the Voting Rights Act of 19 65 and the First, Thirteenth, Fourteenth, and Fifteenth Amendments to th e United States Constitution by diluting the voting strength of Native Americans i n Thurston County and in the Village. Plaintiffs alleged that the current di stricting system used to el ect the County Board packs most of Thurston County’s Native America n population into Districts 4 and 6 and fragments the remaining Native America n populat ionamong Districts 2, 3, and 5. Because the Native American population i n Thursto n County has increased, as a percentage, from 28.5% in 1979 to 43.92% i n 1990, plaintiffs sought the cr eation of a third Native American majority district for the election of

the County Board. Plaintiffs also sought to implement single-member o r multi-m ember

districting plans for the election of the School Board and the Villag e Board. Regarding the School Board, plaintiffs offered t wo alternative districting plans: one plan features two three-member districts; the other p lan features six single-member districts. Regarding the Village Board, plaintiffs offered a plan featuring two singlemember districts and one three-member district.

Th e district court conducted a bench trial on the issues from May 30, 1995 , until June 2, 1995. With respect to the County Board, the district court found that it is possible to create another majority-minority district because: the minority grou p (Native Americans) is sufficiently large and geographically compact; the m inority group is politically cohesive; and the white majority votes sufficiently as a bloc to enable it to defeat the minority’s preferred candidate. Slip op. at 13-15. The district court then examin ed the totality of the circumstances, determined that the County Board’ s districting plan does not provide Nat ive American voters representation on the County-7-

Board which is “roughly proportional” to their total and voting age populations, an d concluded that the challenged plan violates § 2 by diluting th e voting strength of Native American voters. Id. at 18. The district court ordered the County Board to submit a districting plan to c reate a third Native American majority single-member district. Id. The C ounty Board timely submitted a plan and subsequently submitted an amende d plan to co rrect some mathematical errors. The amended remedial plan was approved by the distri ct court on June 26, 1996, and is scheduled to be phased into plac e beginning with the 1998 elections.
With respe ct to the School Board and the Village Board, the district court held that, whi le the parties were able to draw a single-member district in which Nativ e Ame ricans constitute a majority, the boundaries of those districts would be highl y irregu lar and the result would be racially gerrymandered districts. The district cour t held that such irregularly-drawn districts would run a foul of the equal protection clause because they weredrawn principally for racial considerations. Id. at 20, citing Miller

v. Johnson , 515 U.S. 900 (1995) ( Miller ), and Shaw v. Reno , 509 U.S. 630 (1993)

. The district court further held that the challenged jurisdictions are so small that n o feasible single-member or multi-member districting plan can be drawn because it would be inflexible

to any change in the district’s racial composition. Therefore, the district court fou nd that the protected group, Native Americans, is not sufficiently large an d geographic ally compact to justify a majority-minority district for the School Board or the Village Board elections. Id. The district court also held that plai ntiffs did not prove

a constit utional violation because they could not show that there was a raciall y d i scriminatory purpose and effect in establishing the at-large election systems for the Sc hool Board and the Village Board. Id. at 21-22. Thurston County’s appeal an d plaintiffs’ cross-appeal followed.-8- II. Discussion

In a § 2 cas e, we review the district court’s findings “regarding the factua l context giving rise to the claim” for clear error. Harvell v. Blytheville Sch. Dist. No. 5 , 71 F.3d 1382, 1386 (8th Cir. 1995) (en banc) ( Harvell ), cert. denied , 116 S. Ct. 1876 (1996). However, the district court’s legal conclusions, “‘including those that ma y infect so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law,’ are subject to plenary review.” Id. , quoting Thornburg v. Gingles , 478 U.S. 30, 78-79 (1986) ( Gingles ).

A voting pro cedure violates § 2 if it has the “result” under the “totality of th e circumstances” of affording minority voters less opportun ity than white voters “to elect representatives of their choice.” 42 U.S.C. § 1973(b). A successful § 2 claimant must sho w three necessary preconditions: (1) the minority group is sufficiently large an d geographically compact to cons titute an effective majority in a single-member district; (2) the minority group is polit ically cohesive; and (3) the majority votes sufficiently as

a bloc to enable it usually to defeat the minority’s preferred candidate. Gingles , 478 U.S. at 50-51. These three preconditions apply to challenges to single -member districts

as we ll as multi-member districts. Growe v. Emison , 507 U.S. 25, 40-41 (1993)

. “When applied to a claim that single-member districts dilute minority votes, the firs t Gingles condition requires th e possibility of creating more than the existing number of

reason ably compact districts with a sufficiently large minority population to elec t candidates of its choice.” Johnson v. De Grandy , 512 U.S. 997, 1008 (1994 ) ( Johnson ). Once the preconditions are met, § 2 plaint iffs must further show that, under the totality of the circumstances, vote dilution has occurred because the challenged plan denies minority voters equal political opportunity. Id. at 1011-12; Gingles , 478 U.S. at 43. The f

actors to be considered include: (1) a history of official discrimination in the po litical subdivision that touched the right of minority group members to register, vote, or otherwise participate in the democratic process; (2) the extent to which voting in the elections of the political subdivision is racially polarized; (3) the political-9-

subdivision’s use of unusually large election distri cts, majority-vote requirements, antisingle shot provisions (discouraging voters from using only o ne of their multiple votes),

or othe r voting practices or procedures that may enhance the opportunity fo r di scrimination against the minority group; (4) whether the minority group member s have been denied access to a candidate-slating process, where oneexists; (5) the extent to which minority group members in the political subdivision bear the effects o f discr imination in such areas as education, employment, and health which hinder their ability to participate effectively in the political process; (6) whether political campaigns have b een characterized by overt or subtle racial appeals; and (7) the extent to which minority g roup members have been elected to public office in the jurisdiction. Se e Gingles , 47 8 U.S. at 36-37. Additional factors that may be probative of vote dilution

are: (8 ) whether there is a significant lack of responsiveness on the part of electe d off icials to the particularized needs of the members of the minority group an d (9) whether the policy underlying the political subdivision’s use of such votin g qualification, prerequisite to voting, or standard, pract ice, or procedure is tenuous. See id. at 37.

A. Thurston County’s Appeal

1. Proportionality
Thurston County argues that t he district court erred in basing its proportionality determinatio n on both total population and VAP figures because only VAP should be considered. Thurston County contends that, in African Am. Voting Rights Lega l Defense Fund, Inc. v. Villa , 54 F.3d 1345, 1352 (8th Cir. 1995) ( Villa ) (citing Johnson , 512 U.S. at 1013-14 & n.11), cert. denied , 116 S. Ct. 913 (1996 ), this court recognized that “ Johnson consistently defines the relevant population as the voting ag e population. ” It claims that the Supreme Court left open the question whether another population base could be used (e.g., total population). Thurston County maintains that,-10-

because the district court relied on the VAP, it erred in also considering the tota l population.

Thurston County also argues that the district court erred in holding that th e County Board i s required to provide “proportional representation” to minority voters. Rather, Thurston County contends that sub stantial proportionality is sufficient because 42 U.S.C. § 1973(b) provides that “nothing in this section establishes a right to have members o f a protected class elected in numbers equal to their proportion in th e population.” Thurston County suggests that the district court confused the concepts of “proportional representation” and “proportionality” and erroneously focused it s determination on proportional representation, which refers to the success of minority group member candidates, rather than on “proportionality,” which “links the number of majority-minority voting districts to minority members’ share of the relevan t population.” See Johnson , 512 U.S. at 1014 n.1 1. Thurston County maintains that the numbe r of majority-minority voting districts provided by its districting plan (2 of 7 districts, or 28.5%) i s substantially proportional to Native Americans’ 35.9% share of the VAP.

We d isagree and hold that the district court did not err in finding that th e challenged districting plan lacks proportionality. Seeslip op . at 17-18. “While [rough] proportio nality is not dispositive in a challenge to single-member districting, it is a relevant fact in the totality of circumstances to be analyzed.” Johnson , 512 U.S. a t 1000. The creation of a third majority-minority district would increase the share o f

ma jority-minority districts to 42.86% of all districts and would create close r proportionality than the current two majority -minority districts plan (28.57%), whether tota lpopulation (43.92%) or VAP (35.9%) is considered. Under the current plan , Native Americans are under-represented by more than 7% considering VAP and 15% considering total population. U nder the district court’s plan, Native Americans would b e over-represented by less than 7% considering VAP and under-represented by less t h an 1.5% considering total population. Whether we consider the total population or-11-

the VAP, the proposed three majority-minority districts plan results in less disparit y than t he current plan and more closely approximates rough, or substantial , proportionality, as discussed in Johnson , 512 U.S. at 1023, in which the Supreme Court upheld a districting plan with approximately a 2% populati on disparity, and in Villa , 54 F.3 d at 1353, in which this court approved a districting plan with less than a 1 % disparity.
Furthermore, Thurston County mischa racterizes “substantial proportionality” as “t he maximum number of majority-minority districts possible without exceedin g proport ionality.” Brief for Appellants/Cross-Appellees at 20 n.1, citing Rural Wes t Tennessee African-Am. Affair s Council, Inc. v. McWherter , 877 F. Supp. 1096, 1107 n.12 (W.D. Tenn.), aff’d sub nom. Rural West Tennessee African-Am. A ffairs Council, Inc. v. Sundquist , 116 S. Ct. 42 (1995) (mem.). Only in a rare case will the population ratios match the fractions of the number of districts such that one group is not over

represented. There is no reason why t he Native American minority in this case should continue to bear the burden of under-representation under the current scheme while the white majority enjoys over-representation. The creation of a third majority-minorit y district will n ot harm non-Native Americans because the evidence does not show that Native Amer icans vote as a bloc to defeat white voters’ candidates of choice

. Moreov er, the evidence indicates that Thurston County intentionally discriminate d agai nst Native Americans because it failed to make adjustments during the 199 0 redist ricting process in response to the information gathered in the 1990 censu s demonstrating a shift in the population’s racial composition due to the increased Native American population. This evidence shows that Thurston County maintained it s current distr icting system with a discriminatory intent and thwarted Congress’s purpose i n amending § 2 in 1982 to provide “equally open” poli tical processes. See Johnson , 512 U.S. at 1018-19.-12-

2. Totality of the Circumstances

While conceding that plaintiffs satisfied the three Gingles preconditions , Thurston County argues that the district court erred in finding that plaintiffs satisfied the totality of the circumstances test. Thurston C ounty claims that there is no evidence of past discrimination affecting Native Americans’ voting strength. It asserts that, in fact, it has taken measures to make it easier for Native Americans to participate in the voting process by sending the county c lerks to various communities to register voters. Thurston County also claims that, while some evidence was offered to show racially polariz ed voting, the evidence also showed that Native Americans and whites i n Thurston County have sometimes s hared a preferred candidate. Thurston County also claims that: none of its voting practices or procedures enhance the opportunity fo r discrimination against Na

tive Americans because unusually large election districts are not used; me mbers of the County Board are elected by plurality, rather than majority, vote; anti- single shot provisions were not used; and County Board elections do no t involve a candidate-slating process but, rather, use an open primary system. Thurston County also argues that plaintiffs failed to show any causal link between the lingering ef fects of discrimination and Native Americans’ ability to participate in the politica l process. Specifically, Thurston County contends that plaintiffs failed to show an y lingering economic disparities resulting from discrimination in education, employment, and health . Thurston County asserts that plaintiffs cannot show economic disparit y because recent developments (a casino) have given Native Americans an economi c boost. Thurston County also contends that witnesses testified that the politica l campaigns are not characterized by overt or subtle racial appeals. As for the extent to whichNative Americans are elected to the County Board, Thurston County refers to the regular election of Native Americans in Distric t 6 and the realistic potential to elect a Native American in District 4 (beca use it is a majority-minority district) even though non-Native Americans have histor ically been elected in that district. Thurston County also contends that the County Board regularly consult s and cooperates with the Omaha and Winnebago Tribes and concludes that its decision not to create a third majority--13-

minority district is not tenuous because it has already created majorit y-minority districts in proportion to Native Americans’ share of the VAP.

We disagree and hold that the district court’s finding that, under the totality of the circumstances, Native Americans do not have equal access to the political process in Thurston County is not clearly erroneous. Seeslip op. at 18. As stated above, under Johnson , 512 U .S. at 1000, proportionality is a relevant factor to be considered in the totali ty of the circumstances analysis. While plaintiffs must still show that, under the totality o f the circumstances, the current voting scheme provides them with les s opportuni ty than other voters to participate in the electoral process and elec t repre sentatives of their choice, see 42 U.S.C. § 1973(b), the “[s]atisfaction of th e
ne cessary Gingles preconditions carries [] plaintiff[s] a long way towards showing a Section 2 violation.” Harvell , 71 F.3d at 1390. The two primary factors considered in the totality of the circumstanc es analysis are: (1) the extent to which voting is racially polarized and (2) the extent to which minorities have been e lected under the challenged scheme. Id. , citing Gingl es , 478 U.S. at 48-49 n.15. The district court did not clearly err in finding “racial po larization” based upon its analysis of various Thurston County elections from 1978 to 1992 which “indicate that Native Americans overwhelmingly vote for Native American candidates and whites vote for white candidates to defeat the Nativ e American candidate of choice.” Slip op. at 14. This finding also explains the lack of s uccess achieved by Native American candidates. Despite the evidenc e presented by Thurston County that Native Americans have enjoyed “some success in el ections and employment,” the district court’s finding that “racial polarization an d minimal white crossover voting results in a legally significant white bloc vote to defeat Native American candidates of choice” is not clearly erroneous. Id. Other totality factors, while not essential to sup port plaintiffs’ claim, support the district court’s finding of a § 2 violation. See Harvell , 71 F.3d at 1390. The district court found that Native Americans bear the effects of social, economi c, and educational discrimination and concluded that “it is obvious that Native Americans lag behind-14-

whites in areas such as housing, poverty and employment.” Slip op. at 15-16. W e cannot say that these findings are clearly erroneous. Nor can we say that the district court’s fin ding of overt and subtle racial discrimination in the community is clearl y
err oneous. Id. at 16. Thurston County, School District 13, and the Village eac h employ only one Native American, and social organizations in Thurston County are not racially mixed. Consequently, the white majority has little int eraction with most Native American candidates, and, therefore, the opportunity to becom e known as a person and to be trusted with public office is not equal. This disparate socio-economic status i s causall y connected to Native Americans’ depressed level of political participation , despite Thurston County’s efforts to register Native Americans to vote.

3. § 2 Findings

Thurst on County argues that, even if this court does not reverse the distric t court’s holding regarding proportionality and the totality of the circumstances, the case should be remanded to the district court for detailed findings to enable this court t o determine t he factual and legal bases for the district court’s judgment. Brief fo r Ap pellants/Cross-Appellees at 29-30, citing Buckanaga v. Sisseton Ind. Sch. Dist

. No. 54-5 , 8 04 F.2d 469, 472 (8th Cir. 1986) ( Buckanaga ) (requiring district courts to explain with particularity their reasoning a nd underlying subsidiary factual conclusions in vo te dilution claims). Thurston County contends that the district court failed t o discuss t he substantial evidence contrary to its finding of vote dilution and that it s totality of the circumstances analysis was cursory.

We d isagree and hold that the district court made adequate factual findings t o suppo rt its holding and discussed the substantial evidence contrary to its decision a s
re quiredunder Fed. R. Civ. P. 52(a) and Buckanaga , 804 F.2d at 472. The distric t court thoroughly discussed the facts underlying its conclusion that the Gingle s preconditions were met in this case and that a violation was shown under the totality of the circu mstances. Slip op. at 6-18. Additionally, the district court considered the-15-

evidence presented by Thurston County that “Native Americans have enjoyed som e success in elections and employment” and testimony that “Native American s are active, well-received and productive members of the community.” Id. at 16. Further findings by the district court are not necessary.

B. Plaintiffs’ Cross-Appeal

Plaintiffs argue that the district court erred in holding that “plaintiffs canno t prove that Native Americans are sufficiently large and geographically compact t o constitute a majority in a single-member district which is regularly drawn and non

bizarrely shaped.” Id. at 20. First, plaintiffs claim that the illustrative districting plans for the School Board and the Village Board cannot be described as bizarre in light of the irregularity of those jurisdictions themselves . Plaintiffs contend that their § 2 claim should not b e defeated on the basis of gerrymandered districting because a districting pl an adopted or imposed as a remedy for a § 2 violation necessarily uses race as part

o f its basis. Plaintiffs maintain that, if this court conducts an equal protection review of the proposed districting plans, the plans should survive strict scrutiny because th e creation of a majority-minority dis trict is reasonably necessary to comply with § 2 and

su ch redistricting substantially addresses the § 2 violation without considering rac e
more th an is necessary to remedy the § 2 violation. Brief for Appellees/Cross

Appel lants at 46, citing Shaw v. Hunt , 116 S. Ct. 1894, 1905-07 (1996), and Bush v. Vera , 116 S. Ct. 1941, 1960, 1968 (1996) (plurality assumed without deciding that a state’s interes t in avoiding § 2 liability can be a compelling state interest for purposes of strict scrutinyinquiry, while concurring Justice expressed that compliance with § 2 is a compelling state interest). Furthermore, plaintiffs contend that the propose d districting plans cannot be defeated based solely on their fragile racial compositio n because Gingles merely requires that § 2 plaintiffs show that, by creating a majorityminority district, the minority possesses the “potential to elect representatives.” 478 U.S. at 50 n.17.-16-

Plaintiffs also argue that the district court failed to properly consider all of the evidence of racially polarized voting. Plaintiffs claim that the district court erred i n limiti ng the evidence of voter cohesion and bloc voting to statistical evidence and i n failing to consider non-statistical evidence of voting behavior. Plaintiffs maintain that the district court did not consider certain lay witness testimony, the consistent defeat of Native American candidates, the lack of Native American candidates, the “ey e balling” of election returns (to make generalizations from the results), and a history of discrimination. For

example, plaintiffs especially note the testimony that a white man toldhis Native American neighbor, who was running for School Board election, that he would move if an Indian was elected to the School Board.

We disa gree and hold that the district court did not err in holding that th e proposed districting plans were not workable remedies to the challeng ed practices. See slip op. at 20. The district

court justifiably rejected the proposed plans because of the fragile com

position of the proposed districts. Id. Under the proposed plans, if 4 or 5 Native Americans moved from the propo sed majority-minority districts created for the School Board and Village Board, respectively, and they were replaced by non-Native Americans, the majority-minority composition would be destroyed. Br ief for Appellees at27, 30. Therefore, plaintiffs failed to prove that Native Americans ar e geographically compact to form an effective voting majority in a single-member district as required under Gingles

.

In the al ternative, we hold that the district court did not err in holding that the proposed districting plans constitute gerrymandering in violation o f the equal protection clause of the Fourteenth Amendment. Seeslip op. at 20. A dist ricting plan violates the equal protection clause when it is shown, “‘either through circumstantial evidence of

a dis trict’s shape and demographics or more direct evidence going to legislativ e purpo se, that race was the predominant factor’ motivating the placement of ‘ a significan t

number of voters within or without a particular district.’” Harvell v

. Blytheville Sch. Dist. N o. 5 , No. 97-1364, 1997 WL 590121, at *2 (8th Cir. Sept. 25,-17-

1997) (to be reported at 126 F.3d 1038), quoting Mill er , 515 U.S. at 916. Any remedy drawn i n order to correct a § 2 violation should “steer clear of the type of racia l gerrymanderi ng proscribed in Miller .” Harvell , 71 F.3d at 1391. Bizarre shape i s “persuasive circumstantial evidence that race for i ts own sake, and not other districting princi ples, was [plaintiffs’] dominant and controlling rationale in drawing [th e proposed] distric t lines.” Miller , 515 U.S. at 913. The bizarre shape of the proposed di stricts, considered in combination with the racial and population densities of th e proposed districts, support the district court’s finding that race was the predominan t factor in drawing the proposed districts to create a majority-minority single-membe r district and that the propo sed redistricting resulted in gerrymandered districts. See id. at 917. “If race is the predominant motive in creating districts, strict scrutiny applies, and the district

ing plan must be narrowly tailored to serve a compelling governmental interest in order to survive.” Abrams v. Johnson , 117 S. Ct. 1925, 1936 (1997 ) (citation omitted ). Even assuming, without deciding, that compliance with § 2 can be a compelli ng state interest, in the present case, there is “no ‘strong basis in evidence’ to conclude that vote dilution, in violation of § 2, would occur in consequence of the [challe ngeddistricting] plan[s]” because “none of the three Gingles factors, th e thr eshold findings for a vote dilution claim, [have been] established.” Id. (citation s omitted). Specifically, the district court found , without clear error, that plaintiffs failed to prove that: the Native American population is sufficiently large and geographically compa ctto constitute an effective majority in a single-member district; Nativ e Ameri cans are politically cohesive; and whites vote as a bloc to defeat Nativ e Americans’ preferred candidates. Slip op. at 20-21. Because plaintiffs failed t o estab lisha § 2 violation, the proposed gerrymandered districts cannot survive stric t scrutiny.
Finally, the district court did not err in reje cting plaintiffs’ proffer of evidence of county-wide voting behavior to prove voter cohesivene ss and bloc voting in the School Board and the Village Board elections. While the district court held that the absence of statistical evidence was fatal to plaintiffs’ claims, it considered all of the evidence-18-

in determini ng that plaintiffs failed to prove either cohesiveness or bloc voting. Id. at 21. The district court concluded that evidence gathered from exit polls in 1994 wa s inconclusiv e and failed to prove that minority voters were cohesive or that majorit y voters voted as a bloc. Id. Moreover, a Native American testified at trial that Native America ns have a fair chance of being elected to the School Board and the Villag e Board. Brief for Appellees at 38, citingTr. Vol. II at 365:21-25. Therefore, the district court did not err in holding that pl aintiffs failed to prove that the School Board and the Village Board elections violated either § 2 or the Constitution.

III. Conclusion
We commend the district court for its extremely thorough memorandum opinion. We hold that the district court did not er r in ordering Thurston County to create a third major ity-minority district for elections of the County Board and rejecting plaintiffs ’ cha llenge to the districting plans used for the School Board and the Village Boar d elections. For the reasons set forth above, we affirm the order of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.