PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOAN HALL; RICHARD PRUITT; 

THOMASINA PRUITT; VIVIAN CURRY;

EUNICE MCMILLAN; JAMES SPELLER;

ROBBIE GARNES; LESLIE SPEIGHT,

Plaintiffs-Appellants,

and

ELIJAH SHARPE,

Plaintiff,

v.

COMMONWEALTH OF VIRGINIA; JEAN  No. 03-2113

JENSEN, Secretary, State Board of

Elections, in her official capacity;

JERRY W. KILGORE, in his official

capacity as Attorney General of the

Commonwealth of Virginia; GARY

THOMPSON; CHARLES BROWN; JAMES

BROWN; JAMES ALFRED CAREY;

EVELYN CHANDLER; CLIFTON E.

HAYES, JR.; QUENTIN E. HICKS; IRENE

HURST; WAYNE OSMORE,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry Coke Morgan, Jr., District Judge.

(CA-03-151)

Argued: May 4, 2004

Decided: September 22, 2004

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in

which Judge Niemeyer and Judge Shedd joined. 

COUNSEL

ARGUED: J. Gerald Hebert, Alexandria, Virginia, for Appellants.

Michael A. Carvin, JONES DAY, Washington, D.C.; Edward Meade

Macon, Senior Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellees. ON BRIEF: Donald L. Morgan, CLEARY, GOTTLIEB,

STEEN & HAMILTON, Washington, D.C.; Anita S. Earls, UNCCENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for

Appellants. Jerry W. Kilgore, Attorney General of Virginia, Judith

Williams Jagdmann, Deputy Attorney General, James C. Stuchell,

Assistant Attorney General, Richmond, Virginia; Louis K. Fisher,

Shay Dvoretzky, Cody R. Smith, JONES DAY, Washington, D.C.,

for Appellees. 

OPINION

DUNCAN, Circuit Judge: 

At issue in this lawsuit under Section 2 of the Voting Rights Act

of 1965, 79 Stat. 439 (codified as amended at 42 U.S.C. § 1973

(2003)), is whether minority plaintiffs, who are not sufficiently

numerous to form a voting majority in any single-member district in

the Commonwealth of Virginia, may nevertheless claim that a legislative redistricting plan denies minority voters an equal opportunity to

elect candidates of their choice. The district court dismissed the complaint on the grounds that the plaintiffs could not satisfy the requirement established in Thornburg v. Gingles that a minority group

seeking relief under Section 2 "demonstrate that it is sufficiently large

and geographically compact to constitute a majority in a singlemember district." 478 U.S. 30, 50 (1986). Because we agree that

Gingles establishes a numerical majority requirement for all Section

2 claims, we affirm the order of the district court dismissing the complaint with prejudice.

2 HALL v. COMMONWEALTH OF VIRGINIA
I.

On June 19, 2001, the Commonwealth held a special election for

the United States House of Representatives seat in the Fourth Congressional District. The seat had become vacant on account of the

death of longtime Democratic Representative Norman Sisisky on

March 29, 2001. In the special election, Republican Randy Forbes

defeated Democrat Louise Lucas to capture the Fourth District seat by

a 52 to 48 percent margin. 

Shortly thereafter, on July 10, 2001, the Virginia General Assembly enacted the existing congressional district plan (the "2001 Redistricting Plan") based on the results of the 2000 census.1

 Relevant to

this appeal, the 2001 Redistricting Plan redrew the boundaries of the

Fourth District, shifting a number of black2 citizens out of the Fourth

District and into the Third and Fifth Congressional Districts. Before

the enactment of the 2001 Redistricting Plan, blacks formed 39.4 percent of the total population and 37.8 percent of the voting-age population in the Fourth District.3

 In the reconfigured Fourth District, blacks

constitute 33.6 percent of the total population and 32.3 percent of its

voting-age population. 

1The 2001 Redistricting Plan was duly signed into law by the Governor of Virginia and is codified at Va. Code Ann. § 24.2-302.1 (Michie

2004). The Department of Justice precleared the enacted plan pursuant

to Section 5 of the Voting Rights Act, which requires a showing that the

plan "does not have the purpose and will not have the effect of denying

or abridging the right to vote on account of race or color . . . ." 42 U.S.C.

§ 1973c. 

2For the purposes of this opinion, we use the terms "minority" and

"black" interchangeably. 

3The complaint provides only the total population statistics for the relevant congressional districts. Voting-age population statistics, however,

are publicly available on the official redistricting website of the Virginia

Division of Legislative Services. We may properly take judicial notice

of this information in reviewing the dismissal of the complaint under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Papasan v.

Allain, 478 U.S. 265, 268 n.1 (1986) ("Although this case comes to us

on a motion to dismiss under Federal Rule of Civil Procedure 12(b), we

are not precluded in our review of the complaint from taking notice of

items in the public record . . . ."). 

HALL v. COMMONWEALTH OF VIRGINIA 3
The 2001 Redistricting Plan left the total population and voting-age

population figures for blacks in the Third District virtually

unchanged. The Third District previously had a total black population

of 57 percent and a black voting-age population of 53.3 percent.

Under the new plan, blacks in the Third District comprise 56.8 percent of the total population and 53.2 percent of the voting-age population. Similarly, the total population and voting-age population

statistics for blacks in the Fifth District were largely unaffected by the

2001 Redistricting Plan. Blacks constituted 24.3 percent of the total

population in the Fifth District both before and after the enactment of

the plan. Black voting-age population, however, saw a slight increase

from 22.7 percent in the former Fifth District, to 22.8 percent in the

redrawn Fifth District.4

The plaintiffs are nine registered voters who either currently reside

in the Fourth District or were shifted out of the Fourth District as a

result of the 2001 Redistricting Plan. On February 21, 2003, the plaintiffs filed a federal complaint in the Eastern District of Virginia alleging that the reconfiguration of the Fourth District dilutes minority

voting strength in violation of Section 2 of the Voting Rights Act.5

4No explanation appears on the face of the record as to why the 2001

Redistricting Plan did not result in greater population changes in the

Third and Fifth Districts. 

5Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides that:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a

denial or abridgement of the right of any citizen of the United

States to vote on account of race or color, or in contravention of

the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. 

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

if, based on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the State

or political subdivision are not equally open to participation by

members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other

members of the electorate to participate in the political process

and to elect representatives of their choice. The extent to which

4 HALL v. COMMONWEALTH OF VIRGINIA
More precisely, the complaint alleges that, in the former Fourth District, blacks were sufficiently numerous to combine with white voters

and thereby elect their preferred candidates to public office. The

plaintiffs contend that, in the newly-drawn Fourth District, blacks are

too small in number to form the same winning coalition with "crossover"6

 white voters that existed before the enactment of the 2001

Redistricting Plan. The complaint further alleges that the new plan

dilutes minority voting strength in the Fourth District by shifting

black voters out of the Fourth and into the Third District. According

to the plaintiffs, the reassignment of black voters to this already safe

majority-minority district7 amounts to an unnecessary waste of black

votes. As affirmative relief, the plaintiffs requested an order: (1)

declaring that the 2001 Redistricting Plan dilutes minority voting

strength in violation of Section 2; (2) enjoining the defendants from

conducting any elections in the Fourth District under the 2001 Redistricting Plan; and (3) restoring the Fourth District to approximately 40

percent in total black population. 

Relying on the Supreme Court’s decision in United States v. Hays,

515 U.S. 737 (1995), the district court dismissed for lack of standing

the seven plaintiffs who no longer reside in the Fourth District as a

result of the 2001 Redistricting Plan. The Hays Court held that plaintiffs who do not live in a challenged district lack standing to claim

that the district has been racially gerrymandered in violation of the

Fourteenth Amendment. Id. at 744-45 ("Where a plaintiff resides in

a racially gerrymandered district . . . the plaintiff has been denied

equal treatment . . . and therefore has standing to challenge the legismembers of a protected class have been elected to office in the

State or political subdivision is one circumstance which may be

considered: Provided, That nothing in this section establishes a

right to have members of a protected class elected in numbers

equal to their proportion in the population. 

6

"Crossover" voters are persons outside a minority group who support

the minority group’s candidate in an election. See Gingles, 478 U.S. at

56. 

7A majority-minority district is a legislative district "in which a majority of the population is a member of a specific minority group."

Voinovich v. Quilter, 507 U.S. 146, 149 (1993). 

HALL v. COMMONWEALTH OF VIRGINIA 5
lature’s action."). Although Hays concerned a racial gerrymandering

claim under the Equal Protection Clause, rather than a vote dilution

claim under Section 2 of the Voting Rights Act, the district court was

persuaded that the principles of standing discussed in Hays apply

equally to the seven plaintiffs in this case who do not live in the challenged district, and thus can claim no more than a "‘generalized grievance against governmental conduct of which [they] do[ ] not

approve.’" Hall v. Commonwealth of Va., 276 F. Supp. 2d 528, 531

(E.D. Va. 2003) (quoting Hays, 515 U.S. at 745). Accordingly, the

district court held that only Plaintiffs Joan Hall and Leslie Speight

have standing to challenge the newly-drawn Fourth District "by virtue

of their residency within the Fourth District." Id. at 531-32. 

The district court ultimately dismissed the vote dilution claims of

Hall and Speight on the grounds that they failed to satisfy all of the

"necessary preconditions" for a Section 2 claim established by the

Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986). The

Gingles Court construed Section 2 in the context of a lawsuit claiming

that the election of candidates from a multimember district8 diluted

minority voting strength by submerging a cohesive racial minority

group within a bloc-voting white majority. The Court held that plaintiffs challenging the use of multimember districts under Section 2

must first establish three threshold conditions. The minority group

must be able to (1) "demonstrate that it is sufficiently large and compact to constitute a majority in a single member district," (2) "show

that it is politically cohesive," and (3) "demonstrate that the white

8Vote dilution challenges to legislative districts can arise either in the

case of "single-member" or "multimember" districts. The single-member

district "is the smallest political unit from which representatives are

elected." Gingles, 478 U.S. at 50 n.17. In these districts, one candidate

is elected to represent voters in the district. By contrast, in multimember

districts, "two or more legislators [are] elected at large by the voters of

the district." Whitcomb v. Chavis, 403 U.S. 124, 127-28 (1971). Because

of the greater size of multimember districts, a minority group "may be

unable to elect any representatives in an at-large election, yet may be

able to elect several representatives if the political unit is divided into

single-member districts." Rogers v. Lodge, 458 U.S. 613, 616 (1982). 

6 HALL v. COMMONWEALTH OF VIRGINIA
majority votes sufficiently as a bloc to enable it . . . usually to defeat

the minority’s preferred candidate." Id. at 50-51.9

Proof of the Gingles preconditions is not alone sufficient to establish a claim of vote dilution under Section 2. "The ultimate determination of vote dilution under the Voting Rights Act still must be made

on the basis of the ‘totality of the circumstances.’" Lewis v. Alamance

County, 99 F.3d 600, 604 (4th Cir. 1996) (internal quotations omitted). On the other hand, the failure of a minority group to satisfy all

of the Gingles preconditions means that it cannot sustain a claim

under Section 2 that the challenged electoral practice "impede[s] the

ability of minority voters to elect representatives of their choice."

Gingles, 478 U.S. at 48. After analyzing the vote dilution allegations

in the complaint, the district court held that Hall and Speight failed

to state a claim cognizable under Section 2, since blacks would not

form a population or voting-age majority in the Fourth District even

if they prevailed and the Fourth District was restored to approximately 40 percent in total black population. The district court therefore dismissed the complaint with prejudice pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. 

On appeal, the plaintiffs claim that the district court erred in treating the first Gingles precondition as "a bright-line numerical cut-off

requiring black voters to be a numerical majority in a single-member

district." Appellants’ Br. at 8. Although Gingles states very clearly

that Section 2 plaintiffs must demonstrate that a minority group is

large enough to form "a majority" in a district, Gingles, 478 U.S. at

50, the plaintiffs argue that nothing in the language of Section 2 or

Gingles requires that a minority group constitute a numerical majority

in a district in order to state a vote dilution claim. Instead, the plaintiffs contend that the first Gingles precondition is satisfied not only

when a minority group constitutes a numerical majority in a singlemember district, but also when minorities are sufficiently numerous

to form an "effective" or "functional" majority in a single-member

9The Gingles preconditions are equally applicable in vote dilution

challenges to single-member legislative districts. See Johnson v. De

Grandy, 512 U.S. 997, 1006 (1994) (applying Gingles preconditions in

a single-member district dilution suit); see also Growe v. Emison, 507

U.S. 25, 40 (1993) (same). 

HALL v. COMMONWEALTH OF VIRGINIA 7
district by combining with voters from other racial or ethnic groups.

Appellants’ Br. at 28. According to the plaintiffs, the purpose of Section 2 is to remove obstacles that impair the ability of minorities to

elect their preferred candidates. Thus, they argue that if minorities can

elect a candidate by forming a majority in a single-member district in

combination with voters from another racial group, "then they have

demonstrated that a structure which prevents them from doing so is

dilutive." Id. at 22. Fundamentally, the plaintiffs contend that Section

2 authorizes a claim that an election law or practice dilutes the voting

strength of a multiracial coalition.

II.

We review de novo the dismissal of a complaint under Rule

12(b)(6), Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002), which

authorizes the dismissal of a complaint that "fail[s] to state a claim

upon which relief can be granted," Fed. R. Civ. P. 12(b)(6). Because

the purpose of Rule 12(b)(6) is to test the legal sufficiency of a complaint, rather than the facts alleged in support of it, we "must accept

as true all well-pleaded allegations and must construe the factual allegations in the light most favorable to the plaintiff." Randall v. United

States, 30 F.3d 518, 522 (4th Cir. 1994). Ultimately, a complaint

should not be dismissed under Rule 12(b)(6) "unless it appears certain

that the plaintiff can prove no set of facts which would support its

claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7

F.3d 1130, 1134 (4th Cir. 1993). With these principles in mind, we

consider whether the complaint states a valid claim under Section 2.10

However, before turning to the merits of the plaintiffs’ appeal, we set

forth below the concepts that give meaning to a vote dilution claim,

as well as the standards that keep it "within principled legal bounds."

McGhee v. Granville County, 860 F.2d 110, 116 (4th Cir. 1988).

10We decline to address the arguments concerning whether the district

court erred in dismissing seven of the nine plaintiffs for lack of standing.

The question of standing in this appeal is purely academic. Two of the

named plaintiffs are both current and former residents of the Fourth District and, therefore, unquestionably have standing to claim that the Fourth

District dilutes minority voting strength in violation of Section 2. 

8 HALL v. COMMONWEALTH OF VIRGINIA
III.

A.

A vote "dilution" claim alleges that a particular practice operates

"to cancel out or minimize the voting strength" of a minority group.

White v. Regester, 412 U.S. 755, 765 (1973). In turn, a minority

group’s "voting strength" is measured in terms of its ability to elect

candidates to public office. Gingles, 478 U.S. at 88 (O’Connor, J.,

concurring) (observing that "minority voting strength is to be assessed

solely in terms of the minority group’s ability to elect candidates it

prefers") (emphasis omitted)). In choosing the ability "to elect" its

preferred candidates as the measure of a minority group’s voting

strength, the Court declined to address whether Section 2 permits

claims, brought by a minority group too small to form a majority in

a single-member district, that a practice "impairs its ability to influence [rather than to win] elections."11 Id. at 46 n.12. Thus, under

existing Supreme Court authority, a vote dilution claim under Section

2 must be cast solely in terms of an allegation that a particular practice "impede[s] the ability of minority voters to elect representatives

of their choice." Id. at 48. 

Any claim that the voting strength of a minority group has been

"diluted" must be measured against some reasonable benchmark of

"undiluted" minority voting strength. As Justice Frankfurter once

observed, "[t]alk of ‘debasement’ or ‘dilution’ is circular talk. One

cannot speak of ‘debasement’ or ‘dilution’ of the value of a vote until

11The Supreme Court has repeatedly declined to rule on the viability

of "influence" dilution claims. See De Grandy, 512 U.S. at 1008-09;

Voinovich, 507 U.S. at 154 (1993); Growe, 507 U.S. at 41 n.5. An "influence" claim alleges that minorities "ha[ve] enough political heft to exert

significant influence on the choice of a candidate though not enough to

determine that choice." Barnett v. Chicago, 141 F.3d 699, 703 (7th Cir.

1998). On the other hand, the plaintiffs’ "coalition" claim alleges that

minorities can, in fact, elect a candidate of their choice with the support

of crossover voters from other racial or ethnic groups. See Georgia v.

Ashcroft, 539 U.S. 461, 481-82 (distinguishing "influence" and "coalition" districts). Because the complaint does not raise an influence dilution claim, we do not consider the question here. 

HALL v. COMMONWEALTH OF VIRGINIA 9
there is first defined a standard of reference as to what a vote should

be worth." Baker v. Carr, 369 U.S. 186, 300 (1962) (Frankfurter, J.,

dissenting); see also Gingles, 478 U.S. at 88 (O’Connor, J., concurring) (noting that to evaluate a vote dilution claim, "it is . . . necessary

to construct a measure of ‘undiluted’ minority voting strength."). 

The size, compactness, and cohesiveness requirements of the

Gingles preconditions are at the heart of the measure of undiluted voting strength that the Supreme Court has adopted for vote dilution

claims. In Gingles, Justice O’Connor observed that the first and second preconditions establish a standard of undiluted minority voting

strength in terms of the voting power a minority group could wield

if its members were all concentrated within one, hypothetical singlemember district.

The Court’s definition of the elements of a vote dilution

claim is simple and invariable: a court should calculate

minority voting strength by assuming that the minority

group is concentrated in a single-member district in which

it constitutes a voting majority. Where the minority group is

not large enough, geographically concentrated enough, or

politically cohesive enough for this to be possible, the

minority group’s claim fails. Where the minority group

meets these requirements, the representatives that it could

elect in the hypothetical district or districts in which it constitutes a majority will serve as the measure of its undiluted

voting strength. Whatever plan the State actually adopts

must be assessed in terms of the effect it has on this undiluted voting strength. 

Gingles, 478 U.S. at 90-91 (O’Connor, J., concurring) (emphasis

added). The electoral ability of a group concentrated within a hypothetical single-member district makes sense as the measure of undiluted minority voting strength, because: (1) voting strength is

measured in terms of a group’s "ability to elect" candidates; and (2)

"a minority group that could constitute a majority in a single-member

district ordinarily has the potential ability to elect representatives

without white support," while "a minority that could not constitute

such a majority does not." Id. at 89 n.1 (emphasis added). 

10 HALL v. COMMONWEALTH OF VIRGINIA
Stated differently, minority voters have the potential to elect a candidate on the strength of their own ballots when they can form a

majority of the voters in some single-member district. When the voting potential of a minority group that is large enough to form a majority in a district has been thwarted by the manipulation of district lines,12

minorities may justly claim that their "ability to elect" candidates has

been diluted in violation of Section 2. On the other hand, when minority voters, as a group, are too small or loosely distributed to form a

majority in a single-member district, they have no ability to elect candidates of their own choice, but must instead rely on the support of

other groups to elect candidates. Under these circumstances, minorities cannot claim that their voting strength—that is, the potential to

independently decide the outcome of an election—has been diluted in

violation of Section 2. As the Supreme Court observed in Growe, a

minority group claiming vote dilution must establish that it "has the

potential to elect a representative of its own choice in some singlemember district." Growe, 507 U.S. at 40 (emphasis added). And

"[u]nless minority voters possess the potential to elect representatives

in the absence of the challenged structure or practice, they cannot

claim to have been injured by that structure or practice." Gingles, 478

U.S. at 50 n.17. 

12The Supreme Court has observed that an impermissible dilution of

minority voting strength can result from practices that spread a cohesive

minority group across several legislative districts "so that it is a majority

in none . . . ." Voinovich, 507 U.S. at 153. This practice is referred to as

"cracking" a potential voting majority of racial minorities. Vieth v.

Jubelirer, 124 S. Ct. 1769, 1781 n.7 (2004) ("‘Cracking’ involves the

splitting of a group or party among several districts to deny that group

or party a majority in any of those districts."). On the other hand, vote

dilution can also occur through "packing," a term that describes the "concentration of blacks into districts where they constitute an excessive

majority." Voinovich, 507 U.S. at 154 (internal quotations omitted). The

plaintiffs’ vote dilution claim alleges both dilution-by-cracking and

dilution-by-packing. Specifically, the plaintiffs allege that the 2001

Redistricting Plan reduces minority voting strength in the Fourth District

by fragmenting a cohesive population of black voters in the Fourth District across several legislative districts. In addition, the plaintiffs allege

that the new plan dilutes minority voting strength in the Fourth District

by removing black voters from that district and packing them into what

was already a majority-minority Third District. 

HALL v. COMMONWEALTH OF VIRGINIA 11
Ultimately, the right to "undiluted" voting strength in Section 2 is

a guarantee of equal opportunity in voting, ensuring that a minority

group is not denied, on account of race, color, or language minority

status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction. See Smith v.

Brunswick County, 984 F.2d 1393, 1400 (4th Cir. 1993) (explaining

that "the analysis [of a vote dilution claim] must consider whether the

protected voting group has a voting opportunity that relates favorably

to the group’s population in the jurisdiction for which the election is

being held."). This guarantee of equal opportunity in voting is evident

in the plain language of Section 2, which is violated whenever an

election law or practice leaves minorities with "less opportunity than

other members of the electorate . . . to elect representatives of their

choice." 42 U.S.C. § 1973(b); see also Voinovich, 507 U.S. at 155

("Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does

it violate § 2; where such an effect has not been demonstrated, § 2

simply does not speak to the matter."). As a result, to establish a vote

dilution claim under Section 2, minorities must prove that they have

been unlawfully denied the political opportunity they would have

enjoyed as a voting-age majority in a single-member district: namely,

the opportunity to "dictate electoral outcomes independently" of other

voters in the jurisdiction. Voinovich, 507 U.S. at 154.

B.

In light of these principles informing a vote dilution claim under

Section 2, we must conclude that the complaint in this case fails to

state a claim upon which relief can be granted. The plaintiffs cannot

establish that black voters have been denied an equal opportunity to

elect candidates of their choice. The 2001 Redistricting Plan reduces

the voting-age population of blacks in the Fourth District from 37.8

to 32.3 percent. It does not follow, however, that the new plan dilutes

minority voting strength under Section 2. Section 2 and Gingles

instruct that a plan may not create a barrier to the ability of minorities

to elect their preferred candidates. As a group that could only form

a minority of the voters in the Fourth District even before the Plan’s

enactment, the ability to elect candidates of their own choice was

never within the plaintiffs’ grasp. See Cano v. Davis, 211 F. Supp. 2d

1208, 1231 (C.D. Cal. 2002) (observing that "unless the minority

12 HALL v. COMMONWEALTH OF VIRGINIA
group can establish that an effective majority-minority district can be

created, a vote dilution claim is not cognizable because there is no

minority voting power to dilute."), aff’d, 537 U.S. 1100 (2003). The

plaintiffs concede that black voters cannot form a majority in the

Fourth District, and thereby elect a candidate, without the support of

voters from other racial or ethnic groups. 

The argument that a coalition of black and white voters may claim

that a redistricting plan dilutes their combined ability to elect candidates confuses the purpose of Section 2. The objective of Section 2

is not to ensure that a candidate supported by minority voters can be

elected in a district. Rather, it is to guarantee that a minority group

will not be denied, on account of race, color, or language minority

status, the ability "to elect its candidate of choice on an equal basis

with other voters." Voinovich, 507 U.S. at 153. Section 2 is not violated unless minorities "have less opportunity than other members of

the electorate to . . . elect representatives of their choice." 42 U.S.C.

§ 1973(b) (emphasis supplied). As a result, the question facing the

plaintiffs is not whether a black-preferred candidate can be elected in

the Fourth District after the 2001 Redistricting Plan. The question is

whether black voters have less opportunity, in comparison to other

voters of similar strength in the jurisdiction, to form a majority in the

Fourth District, and thereby elect a candidate of their choice. See

Gingles, 478 U.S. at 44 ("The right question [in the Section 2 analysis] is whether as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political

processes and to elect candidates of their choice.") (internal quotations omitted)). As the Sixth Circuit observed in Nixon v. Kent

County, 76 F.3d 1381, 1392 (6th Cir. 1996), "the Voting Rights Act

[is] aimed only at ensuring equal political opportunity: that every person’s chance to form a majority is the same, regardless of race or ethnic origin." 

At roughly 38 percent of the voting-age population in the Fourth

District before the 2001 Redistricting Plan, blacks possessed the same

opportunity to elect a candidate as any group that cannot form a

majority of the voters in a district. A minority group that is too small

to form a majority may be able to join with other voters to elect a candidate it supports. However, such groups will be obliged "to pull,

haul, and trade to find common political ground" with other voters in

HALL v. COMMONWEALTH OF VIRGINIA 13
the district. De Grandy, 512 U.S. at 1020. The 2001 Redistricting

Plan does not change this fact for black voters in the Fourth District;

their political fortunes remain tied to the interests of other voters in

the district. Because the same is true for all other groups in the Fourth

District that are too small to dominate an election with their own

votes, the plaintiffs cannot establish that black voters in the Fourth

District have less opportunity "than other members of the electorate"

to elect candidates of their choice. 42 U.S.C. § 1973(b); see also Session v. Perry, 298 F. Supp. 2d 451, 483 (E.D. Tex. 2004) ("A minority group lacking a majority cannot elect its candidate of choice, and

denying the group a separate district cannot be a denial of any opportunity protected by the Act.").

Furthermore, any construction of Section 2 that authorizes the vote

dilution claims of multiracial coalitions would transform the Voting

Rights Act from a law that removes disadvantages based on race, into

one that creates advantages for political coalitions that are not so

defined. "Congress enacted § 2 of the Voting Rights Act . . . to help

effectuate the Fifteenth Amendment’s guarantee that no citizen’s right

to vote shall ‘be denied or abridged . . . on account of race, color, or

previous condition of servitude.’" Voinovich, 507 U.S. at 152 (quoting

U.S. Const. amend. XV, § 1). 

The purpose of the [Voting Rights] Act is to redress racial

or ethnic discrimination which manifests itself in voting patterns or electoral structures. . . . If a minority group lacks a

common race or ethnicity, cohesion must rely principally on

shared values, socio-economic factors, and coalition formation, making the group almost indistinguishable from political minorities as opposed to racial minorities.

Campos v. City of Baytown, 849 F.2d 943, 945 (5th Cir. 1988) (Higginbotham, J., dissenting from denial of reh’g en banc). 

The essence of the plaintiffs’ claim in this action is the assertion

of a right to preserve their strength for the purposes of forging an

advantageous political alliance. This is understandable, to be sure.

However, we cannot find a basis for the protection of such a right in

Section 2. The Voting Rights Act "is a balm for racial minorities, not

political ones—even though the two often coincide." Baird v. Consol.

14 HALL v. COMMONWEALTH OF VIRGINIA
City of Indianapolis, 976 F.2d 357, 361 (1992). A redistricting plan

that does not adversely affect a minority group’s potential to form a

majority in a district, but rather diminishes its ability to form a political coalition with other racial or ethnic groups, does not result in vote

dilution "on account of race" in violation of Section 2.13

IV.

Because the plaintiffs cannot establish that black voters in the

Fourth District can form a majority in a single-member district as

required by Gingles, the complaint fails to state a vote dilution claim

under Section 2. Accordingly, the district court’s order dismissing the

complaint with prejudice is

AFFIRMED.

13The plaintiffs’ reliance on Georgia v. Ashcroft fails for the same reason. The plaintiffs claim that the Supreme Court in Georgia retreated

from the Gingles rule that a minority group can claim no right under Section 2 unless it can form a majority of the voters in a single-member district. In Georgia, the Supreme Court noted that "[t]here are communities

in which minority citizens are able to form coalitions with voters from

other racial and ethnic groups, having no need to be a majority within a

single district in order to elect candidates of their choice." 539 U.S. at

481 (internal quotations omitted). We do not believe that this observation

alters the Gingles numerical majority requirement in any way. A coalition of black and white voters can certainly join forces to elect a candidate, but Section 2 does not create an entitlement for minorities to form

an alliance with other voters in a district who do not share the same statutory disability as the protected class. 

HALL v. COMMONWEALTH OF VIRGINIA 15