___________ No. 93-1009

___________ Shirley M. Harvell; Emmanuel * Lofton, Reverend; Hattie * Middlebrook; Mary Alice Jones; * Jacquelin Henton, * * Appellants, * * v. * * Blytheville School District #5, * A Public Body Corporate; * William Tomlinson, Individually * and as Board Member; Norvell * Moore, Individually and as * Board Member; William Sullivan, * Appeal from the United States Individually and as Board * District Court for the Member; Harold Sudbury, Jr., * Eastern District of Arkansas. Individually and as Board * Member; Helen Nunn, * Individually and as Board * Member; Karen Fraser, * Individually and as Board * Member; Steve Littrell, * Individually and as Board * Member; William Stovall, III, * also known as Bill Stovell, * Individually and Board Member; * Blytheville School District * #5, Board of Directors; Dr. * Frank Ladd, Individually and in * his official capacity as * Superintendent of Blytheville * School District No. 5, * * Appellees. *

___________ Submitted: April 13, 1995 Filed: December 5, 1995

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, En Banc.

___________

### These are the 1980 census figures that were used at trial

. 1 

### According to the 1990 census, the Blytheville school district has a total population of 23,057, of which approximately 37% are black and 62% w hite, but we do not have the relevant voting ag e populations before us.
-2- WOLLMAN, Circuit Judge.
Shirley Harvell and other voters fil ed suit in 1989, challenging the election procedure fo r school board members in the Blytheville, Arkansas, school district as violative of Section 2 of the Voting Rights Act, 4 2 U.S.C. § 1973 ("VRA"). The district court dismissed the complaint, findin g that Harvell failed to set forth a prima facie violation of Section 2

. Harvell v. Ladd , 759 F. Supp. 525, 529-30 (E.D. Ark. 1991). We reversed and remanded to the district court for further findings concerning th e factors se t forth in Thornburg v. Gingles , 478 U.S. 30, 36-37 (1986)

. Harvell v. Ladd , 958 F.2d 226, 230 (8th Cir. 1992). On remand, th e district court again dismissed the complaint bec ause it found that Harvell failed to establish that the unsuccessful black candidates were th e minority's preferred candidates. We again reversed in part the district court's subsequent decision following remand, but affirmed its denial of sanctions against Har vell. Harvell v. Blytheville Sch. Dist. #5 , 33 F.3d 910 (8th Cir. 1994). We subsequently agreed to rehear the case en banc an d vacated t he panel opinion. We now reverse the decision of the distric t court in part and affirm the denial of sanctions.

I.

The under lying facts of this dispute are set out in detail in ou r earlier opinions. The voting age population of the Blytheville schoo l district i s 14,500, of which 70% is white and 29% black. Each member of 1 the eight member at-large school board serves a four-year term, and tw o terms expire each year. Historically,

### Appendix I contains the vote breakdown by candidate for each 2 

### election in which a black candidate has run. This vote dilution claim is "analytically distinct" from a 3 

### challenge to voting districts on equal protection grounds. Miller v. Johnson , 115 S. Ct. 2475, 2485 (1995) ( quoting Shaw v. Re no , 113 S. Ct. 2816, 2830 (1993)).
-3- school boa rd elections were determined by a plurality vote. In 1987 , howeve r, the Arkansas legislature altered the voting scheme for schoo l board elec tions from one of plurality to one of majority, which woul d occasi on the need for a run-off election between the voter-preferre d candidates in the event that no candidate was able to garnish a majority of the voters in the initial election. Ark. Code. Ann. § 6-14-121. All winning candidates since 1987 have been elected by a majority of votes cas t in th e first round. Following two elections under this scheme Harvel l filed sui t. None of six separate black candidates has defeated a whit e candidate in eight attempts following the 1987 election, although Dr. Hele n Nunn was reseated without opposition in 1990. 2

II.

To mount a successful challenge to multi-member districts unde r Section 2, a plaintiff must initially satisfy the three precondition s 3 delineated in Gingles . These preconditions are 1) that the minority group is l arge enough and geographically compact enough that it would be a majority in a single-member district; 2) that the minority group i s politically cohesive; and 3) that the white majo rity votes sufficiently as

a bloc to enable it, in the absence of special circumstances, usually to defeat the minority's preferred candidate. 478 U.S. at 50-51. Gingle s also set forth nine non-exclusive factors mentioned in the Senate report accompanying the VRA to assist in determining whether, under the totality of the circumstances, a challenged electoral scheme dilutes the minority vote. These include (1) the history of

### -4-

voting-related discrimination in the state or political subdivision; (2) the extent to which voting in the state or subdivision is raciall y polarized; (3) the extent to which the state or subdivision has used votin g prac tices or procedures that tend to enhance opportunities fo r discrimination against the minority group; (4) w hether minority candidates have been denied access to any candidate-slating process; (5) the extent to w hich minorities have borne the effects of past discrimination i n relation to education, employment, and health; ( 6) whether local political campaigns have used overt or subtle racial appeals; (7) the extent to whic h mi nority group members have been elected to public office in th e jurisdiction; (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of members of th e minoritygroup; and (9) whether the policy underlying the use of votin g qualifications is tenuous. 478 U.S. at 36-37.

We m ust analyze the elements of a Section 2 case in context , accord ing deference to the district court where necessary and applyin g legal constructs where appropriate. The district court's finding s regarding the factual context giving rise to the claim are reviewed fo r clear error. See Gingles , 478 U.S. at 78-79. But the legal conclusions it employs, "includin g those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstandin g of the governing rule of law," are subject to plenary review. Id. at 79 (quoting Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485 (1984).

The district court found that Harvell established the first tw o Gingles preconditions at trial. The school district does not contest thes e findings of geographic compactness and political cohesiveness. W e therefore accept them as established. The district court also found that voting in the school board elections is racially polarized. Harvell , 759 F. Supp. at 527-28. This undisputed finding is borne out by the record an d weighs heavily in

### -5-

favor of finding the third Gingles precondition established. Jeffers v. Clinton , 730 F. Supp. 196, 205 (E.D. Ark. 1989) (three-judge court), aff'd
mem. , 498 U.S. 1019 (1991); Smith v. Clinton , 687 F. Supp. 1310, 1314-15 (E.D. Ark. 1988) (three-judge court) see Collins v. City of Norfolk , 816 F.2d 932, 935 (4th Cir. 1987) (existence of polarization establishes the power of white bloc voting). The district court found, however, and the school district contends, that the low voter turnout sufficiently indicate s that the minority candidates in the elections from 1988 to 1992 were not preferred by the minority voters and precluded H arvell from satisfying the thir d Gingles precondition. Harvell asserts, and we agree, that th e distri ct court misapprehended the definition of who is eligible fo r "mino rity-preferred candidate" status and that the evidence establishe s that the candidates in those elections were in f act the minority-preferred candidates.

We do not categorically state that a candidate is the minority

pref erred candidate simply because that candidate is a member of th e minority. Such stere otyping runs afoul of the principles embodied in the Equal Protection Clause. See Miller , 115 S. Ct. at 2486 (state assignment of voters on basis of racial assumptions is "offensive and demeaning")

. But see Jenkins v. Red Clay Consol. Sch. Dist Bd. of Educ. , 4 F.3d 1103, 1126 (3d Cir. 1993) (stating that "practical experience leads to th e inference that any pa rticular minority candidate is minority-preferred"), cert. denied , 114 S. Ct. 2779 (1994). Accordingly, such an inference is in sufficient to establish that any particular candidate is minority

preferred. The prefe rences of the minority voters must be established on
an election-specific basis, viewing all the relevant circumstances. See Jenkins , 4 F.3d at 1126.

The recor d makes clear in this case that the race of a candidate is by far the determinative factor in minority voti ng patterns in Blytheville school board elections. Harvell's regression analysis strongly supports the conclusion that those

### Appendix II contains the results of Harvell's exper t 4 

### statistical evidence.
-6- black candidates who did run in the elections from 1988-1992 were in fact the m inority-preferred candidates. See id. (inference derived fro m 4 candidate's race comb ined with statistical evidence of voting patterns is sufficient to establish minority preference); Clarke v. City of Cincinnati , 40 F.3d 807, 810 n.1 (6th Cir. 1994) ("[C]ourts generally have understood blacks' preferred candidates simply to be those candidates who receive the grea test support from black voters."), cert. denied , 115 S. Ct. 196 0 (1995); see also Jeffers , 730 F. Supp. at 208 (noting race-conscious votin g behavior of Arkansans). The school district does not contest thi s statis tical evidence and offers no other evidence to contradict th e stat istical preference. The consistency of the data over time lend s additional support to this conclusion. Gingles , 478 U.S. at 57.

There may be situations in which voter apathy may be linked t o disapproval of a particular candidate, but there is no indication that suc h is the case here. Th e silence of the minority voters is not so deafening
as to warrant a finding that they disapproved of six different minorit y candi dates in light of the uncontroverted statistical evidence tha t supports a finding of overwhelming support from those blacks who did vote. Nor are the numbers s o low as to reduce their statistical significance to
a nulli ty. Speculation regarding reasons for low minority turnout i s inappropriate. Gomez v. City of Watsonville , 863 F.2d 1407, 1415-16 (9th Cir. 1 988) (looking at actual voting patterns to determine politica l cohesion rather than turnout rates), cert. denied , 489 U.S. 1080 (1989). The school district's interpretation of the low turnout underestimates the legal si gnificance of the years of polarized voting evident in th e Blytheville school board elections. See Gingles , 478 U.S. at 57; see also Clark v. Calhoun County , 21 F.3d 92, 96 (5th Cir. 1994) (ability o f majority to defeat the

### -7-

minority-preferred candidate is "ordinarily established through evidenc e of rac ially polarized voting"). Similarly, the related natures o f cohesiveness, polarization, and bloc voting demo nstrate the incongruity of any reliance on low voter turnout in this case. See Clark , 21 F.3d at 96; Jenkin s , 4 F.3d at 1133 n.32 (discussing relation between politica l cohe siveness and the minority-preferred candidate); Collins v. City o f Norfolk , 883 F.2d 1232, 1237 (4th Cir. 1989) (polarization relevant t o deter mination of cohesiveness and whether white bloc voting defeat s minority-preferred candidates); Collins , 816 F.2 d at 935 ("[T]he existence of racially polarized voting . . . establishes both cohesiveness of th e minority group and the power of white bloc votin g to defeat the minority's

can didates.") (emphasis omitted); see also Gingles , 478 U.S. at 52 n.1 8 (noting interchangeable use of polarization and bloc voting); United State s
v. Ma rengo County Comm'n , 731 F.2d 1546, 1567 (11th Cir.) ("The sures t indication of race-conscious politics is a pattern of racially polarized vot ing."), cert. denied , 469 U.S. 976 (1984). The fact that blac k candidates have lost universally in contested post-1987 elections cannot be explai ned away simply on the basis of the black electorate' s dissatisf action with its candidates. In the face of the finding o f consistent polarizati on, a legally significant white cross-over vote does not exist under the current election scheme. Cf. Cane v. Worcester County , 35 F.3d 921, 926 (4th Cir. 1994) (finding averag e 19% white crossover vote insu fficient to salvage at-large, one-on-one election scheme under th e facts of that case), cert. denied , 115 S. Ct. 1097 (1995).
That some minority-preferred candidates did achieve electoral s uccess under the old system does not necessitate a finding that those minorit y candidat es who do not now succeed are not the minority's preferre d candidates, particularly when no candidates in these elections receive d greater mi nority voter support. Moreover, we should not require as a condition to a finding of minority-preferred status heroic, mythi c qualities of candidacy better

### We further note that in 1990 the polling place of a precinct 5 

### known as a historic black voter stronghold was moved to a predominantly white area. Alt hough there is no evidence that this move was predicated on an attempt to suppress the black vote, our inquiry looks to the effect of voting practices on equal political opportunity rather than to the ir intent, see Chisom v. Roemer , 501 U.S. 380, 383-84 (1991); Jeffers , 730 F. Supp. at 203-04, and the 1990 election produced a record low black voter turnout for tha t particular precinct

. -8- suited to a romantic view of the electoral process than to the rough-andtumble world of contested elections. Much as the relevant population is the population able to vote, see African Am. Voting Rights Legal Defense Fun d, Inc. v. Villa , 54 F.2d 1345, 1352 (8th Cir. 1995), the relevan t candidate should generally be one able to receive those votes, not som e ideali zed figure whose absence from the ballot keeps a disappointe d electorate at home. Under the school district's proffered view, the black voters of Blytheville have gone five consecutive years, six candidates, an d eight campaigns without stating a preference, a proposition we canno t accept.

There are a number of factors in addition to the statistical dat a that indicate that the district court's reliance on low turnout is to o speculative. Low voter turnout can be explained by any number of socioeconomic factors, or may be explained by unabashed voter apathy. It does not , however, lend itself so easily to an inference of a sub silenti o predisposition against any particular minority candidate. Not only were the minority turnouts low, but voter turnout as a whole for these election s has been historically low. Additionally, we note that following the chang e in the la w the average vote totals declined for both white and minorit y candid ates, although much more precipitously for black candidates. I n light of the fact that low voter turnout has often been considered th e result of the minority's inability to effectively participate in th e political process, see Gomez , 863 F.2d at 1416 n.4; United States v. Dalla s County Comm'n , 739 F.2d 1529, 1538 (11th Cir. 1984), it stands to reason that when an external stimulus dampens the white turnout it may impact eve n more greatly on a group that has faced historic disadvantages. 5

### -9- Similarly, black voters need have only looked at their pluralit y
successes in 1974 and 1975 to realize that they faced a much lowe r possibility of success under the present scheme. This may also account fo r the lower turnout. Finally, varying election dates, the number of seats up for election, and the presence or absence of other ballot issues that may draw the electorate to the polls also have a n impact on turnout. Such considerations have no bearing on whether the candidates who ran were or
were not the minority-preferred candidates. Indeed, there are so man y pos sibilities for explaining the low turnouts that selecting any one i n this case is purely impermissible speculation.
Nor can we accept the school distric t's attempts to characterize the unsuccessful candidat es as militant fringe candidates who disenfranchised themselves from the black community. There is no evidence in the record that the minority com munity viewed any of the six different candidates as in any way inadequate representatives of its int erests. In the absence of any such evidence, the countervailing voting patterns conclusively rebut these denigrations.

The school district relies heavily on the historical fact o f proportional or near proportional representation of the black population on the school board as evidence of the election scheme's validity. At the outset we note that p roportional representation is an important factor to consider in evaluating the validity of an electoral process. It is not, however, the statutory touchstone, and does not provide an absolute safe harbor in which a defendant can seek refuge from the totality of th e circumstances. See

### De Grandy resolved a claim involving "pro portionality," which 6 

### "links the number of majority-minority voting districts to m inority membe rs' share of the relevant population." 114 S. Ct. at 265 8 n.11. Here, because we address a claim involving a single a t-large district, the analyses between proportionality and proportiona l representation are essentially the same. Cf. Villa , 54 F.3d a t 1352-53 n.10 (distinguishing proportional representation in cas e involving proportionality claim and single-member districts).
-10- Johnson v. De Grandy , 114 S. Ct. 2647, 2660-61 (1994); Barnett v. Daley , 6 32 F.3d 1196, 1202 (7th Cir. 1994); see also Zim mer v. McKeithen , 485 F.2d 1297, 1307 (5th Cir. 1973) (listing possible explanation for success at th e polls despite vote dilution), aff'd sub nom. , Ea st Carroll Parish Sch. Bd. v. Marshall , 424 U.S. 636 (1976). Just as proportional representation is not mand ated under Section 2, it also does not preclude finding a violati on, because racial reference points do not necessarily reflec t pol itical realities. See De Grandy , 114 S. Ct. at 2661-62 & n.1 7 (probative value of proportionality varies with the facts). Similarly, th e white majority has no right under Section 2 to ensure that a minority grou p has absolutely no opportunity to achieve greater than proportiona l representation in any given race.

The propo rtional representation on which the school district relies rest s on infirm ground. The electoral success that black candidate s achieved under the plurality system is no longer present. No blac k candidate has won a contested election since the change in the law. The distr ict contends that none of those candidates would have won under a plurality system either, thus proving that the majority vote requirement is not to blame, and further requiring us to weigh heavily the histori c
successes of black candidates in rejecting Harvell's complaints. This sor t of back-to-the-futurism on the part of the school district cannot withstan d analysis, for if we control the results of the elections prior to 1988 wit h the ma jority vote requirement, it becomes plain that no proportiona l represent ation would have occurred in the past. Both the 1974 and 197 5 elections would have gone to white

### W e agree that incumbency is the least "special" of th e 7 

### special circumstances, compare Clarke , 40 F.3d at 813-14 (de

em phasizing incumbency element) with Collins , 883 F.2d at 124 3 (emphasizing the importance of incumbency), but accept it s potential as such and view thi s election as a special circumstance because of the multiple incumbency, board composition, an d opposition involved.
-11- candidates under this scenario; thus, Norvell Moore would have never won initially to enable him to serve multiple terms as a mostly unoppose d incumbent. Dr. Nunn's 1982 victory would have provided the only successfu l black candidate in Blytheville history had the current scheme been in plac e then. Such success does not indicate substantial minority voting strength , nor does it indicate the presence of a consistent, legally significan t white cross-over vote.

Fur ther, even accepting the historical effects of the pluralit y element, most of the elections won by black candidates were done so a s incumbe nts in the face of no opposition. This is precisely the type o f special circumstance recognized in Gingles as no t vitiating any element of the claim. 478 U.S. at 51. Even in an extreme case of total vote dilutio n a candidate running i n the face of no opposition is ensured success. The two instances in which a black candidate beat a white candidate head-tohead inv olved Moore's 23-vote victory as a three-term incumbent agains t 7 a candidate who was not even the white majority' s preference as a previous candidate, and Dr. Nunn's election in 1982. So in the final analysis, whe n th ose campaigns involving readily apparent special circumstances ar e removed, black candidates still have won only one election in thirtee n attempts since 1969, fitting precisely in the Gingles test as to whether the white majority does indeed vote "sufficiently as a bloc to enable it . . . usually to defeat the minority's preferredcandidate." Gingles , 478 U.S. at 51.

### In its petition for rehearing the district pointed out that 8 

### another black person has been appointed to the school board, once aga in bringing representation into proportion with the blac k population. This appointment is irrelevant to the ability o f black voters to elect the representa tives of their choice. Nor does his unopposed reseating in 1993 convince us of the soundness of th e election scheme.

T he Supreme Court hedged slightly on this notion in D e 9 

### Gr andy , at one point calling the preconditions "generall y necessary." 114 S. Ct. at 2657. The preeminence of thes e pre conditions in the totality analysis has consistently bee n rec ognized in recent opinions by the Supreme Court, however, se e Voinovich v. Quilter , 113 S. Ct. 1149, 1157-58 (1993); Growe v
. Emison , 113 S. Ct. 1075, 1083- 85 (1993), and we continue to accord them their deserved primacy.
-12- We emphas ize that we are not assessing the validity of the law that existed prior to 1988. It no longer exists, and its legitimacy i s inconsequential. The election results under that scheme and the type of representation they yielded, however, are relevant to our inquiry to the extent that the past political reality sheds light on the totality of the circumstances of the present scheme. Proportion al representation may well have sufficed to protect the former scheme from a Section 2 claim, but the truth of the current system is that minority candidates face substantial impedimen ts to election that are too stark for us to dismiss thei r 8 attendant results as mere happenstance. It is a system that allows only for vi ctory of majority-preferred minority candidates. In essence, an y minority serving on the board does so at the suf ferance of the majority -- a hollow proportional representation indeed whenthe minority must rely on majorit y benevolence to ensure the adequacy of its representation. A systemthat works for minorities only in the absence of white opposition is a system that fails to operate in accord with the law.

Sati sfaction of the necessary Gingles preconditions carries a 9 plaintiff a long way towards showing a Section 2 violation, Jenkins , 4 F.3 d at 1 116 n.6, 1135; see Clark , 21 F.3d at 97, but in the final analysi s Harvell must still show that the challenged

### -13-

elec toral scheme provides minority voters "less opportunity than othe r members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). The totalit y of the circumstances on the record before us establishes that dilution

. See Gomez , 863 F.2d at 1411 (remand not necessar y when the record "permits only o ne resolution of the factual issue" (quoting Pulman-Standard v

. Swint , 456 U.S. 273, 287 [sic; 292] (1982))).

The two p rimary factors considered in our totality analysis are the exte nt to which voting is racially polarized and the extent to whic h min orities have been elected under the challenged scheme. Gingles , 47 8 U.S. at 48-49 n.15. As we have discussed, voting practices in the school board elections are highly polarized. There also has been only minima l electo ral success under the present scheme, with Dr. Nunn's unoppose d reseating as an incumbent in 1990 representing the only minority victory in nine attempts.

The remai ning totality factors, although not essential to Harvell's clai m, see id. , support our conclusion that Harvell has identified a Sectio n 2 violation. No one party to the litigation denies the lon g history of racial discrimination in the electoral process in Arkansas. Se e Perkins v. City of We st Helena , 675 F.2d 201, 211 (8th Cir.), aff'd mem. , 459 U.S. 801 (1982). It is true, as noted by the district court, tha t strides h ave been made since the dawn of the civil rights movement, bu t Arkansas remains by no means idyllic for black voters. Jeffers , 730 F

. Supp at 204. We conclude that the district court did not accord sufficien t weight to the vestige s of that history. See Westwego Citizens for Better Gov't v. City of Westwego , 872 F.2d 1201, 1211-12 (5th Cir. 1989). So too , the recognized histor ic effects of discrimination in the areas of health, employ ment, and education impact negatively on minority politica l partic ipation. The majority vote requirement, staggered terms, and at

large structure also tend to suppress minority voters' influence. See De Grandy , 114 S. Ct. at 2660-61;

### Following our decision in th e first appeal in this case, the 10 

### Arkansas legislature amended its school board election law t o require seven single-member districts, or five single-membe r districts and two at-large rep resentatives in all school districts having a minority population o f 10% or more. If a school district has been found to not be in violation of the VRA, it is excepte d from this provision. Ark. Code Ann. § 6-13-631.
-14- Collins , 883 F.2d at 1236 (at-large system and s taggered terms susceptible of diluting minority votes). The manner in which those black candidates who were elected managed to obtain and retain their seats attenuates the district's reliance on proportional representation, and similarly heighten s
our concern over the new election scheme, which while retaining the at

large structure, removes the potential for winning on the basis of a 10 split white vote.

No eviden ce of a candidate-slating process was adduced, nor was any evidence of racial appeals presented, but the presence of such insidious accoutrements is unne cessary in situations where the process controls the result, and their absence does not preclude find ing a Section 2 violation. Further, the district court's finding that the school board was no t unresponsive to the minority community was predicated on its belief that bec ause those black candidates who did serve on the board were th e minority-preferred candidates, those who did not win election to the board
mus t have been rejected by black voters as potentially less responsive

. Our earlier discussion of the minority-preferredcandidate status counters that proposition. Even accepting the finding of responsiveness as no t clearl y erroneous, however, it is similarly insufficient to counter th e other factors that ce nsure this scheme. See Westwego Citizens for Better Gov't v. City of Westwego , 946 F.2d 1109, 1123 (5th Cir. 1991).

The total ity of the circumstances on this record leaves us with the firm c onviction that the Blytheville school board electoral scheme i s institutionally restrictive, thereby creating

### -15-

"an inequality in the opportunities enjoyed by black and white voters to elect their preferredrepresentatives." Gingles , 478 U.S. at 47. Racial pol arization effectively cripples minority attempts to effec t representation on the school board in the absenc e of the fortuity of white voter acquiescence. The fact that the current school board election syste m is less accessible to minority participation than that of ten or twent y years ago runs contrary to the intent and standard of Section 2.
The Supreme Court's recent redistric ting decision in Miller does not alter our analysis of the Gingles factors or our ultimate decision in this appeal. Miller analyzed the equal protection pr oblems involved in drawing voting districts alon g race-based lines, but did not purport to alter our inquiry into the vote -dilution claim. See 115 S. Ct. at 2485-86. We do, however, sound a caut ionary note to the district court on remand to steer clear of the type of racial gerrymandering proscribed in Miller , whil e keeping in mind the need to vindicate the rights of the minority voters.

Our h olding that plaintiffs are entitled to relief on their clai m perforce forecloses defendant's application for sanctions pursuant to Fed. R. Civ. P. 11 and attorneys' fees pursuant to 42 U.S.C. § 1988.
The judgm ent is affirmed in part and reversed in part, and the case is remanded to the district court for the entry of an appropriate remedial decree.
LOKEN, Circuit Judge, with whom BOWMAN, MAGILL, BEAM, and MORRIS SHEPPARD ARNOLD, join, dissenting.

In my view, the court relies upon inadequate and unreliabl e stat istical evidence to justify disregarding "consistent and sustaine d success by [African-American] candidates [that] is

### -16-

presum ptivelyinconsistent with the existence of a § 2 violation. " Thornburg v. Gingles , 478 U.S. 30, 102 (1986) (O'Connor, J. concurring). Therefore, I respectfully dissent.

A. Insufficient Evidence of Racially Polarized Voting

The dist rict court found that plaintiffs failed to prove the thir d Gingle s precondition, that the white majority in the Blytheville Schoo l District "votes sufficiently as a bloc to enable it -- in the absence of special circumstances . . . usually to defeat the minority's preferre d candidate." 478 U.S. at 51. To qualify as "legally significant white blo c voting," the Supreme Court explained in Gingles , the white vote must b e sufficientlypolarized that it will "normally . . . defeat the combine d strength of minority support plus white 'crossover' votes." 478 U.S. at 56. In overturning the district court's ultimate finding that the third precondition was not proved, this court relies primarily on a subsidiary finding that voting in Blytheville School Board elections has been "highly polarized." Ante at 13. That is a clearly erroneous finding, improperly made in the first instance by this court, not the district court.
At trial, plaintiffs relied on stati stical analysis by their expert, James R. Lynch, a Senior Research Specialist in the Institute of Governmen t at the University of Arkansas at Little Rock. As Appendix I reflects , Lync h submitted District-wide vote totals for every Blytheville Schoo l Board election from 1969 to 1992 that included an African-America n candidate

. He also presented vote totals by voting district for ten o f those elections, in 1 982, 1987, 1988, 1989, 1990, and 1991. Beyond that, all of Lynch's data were in percentage form. He calculated the blac k voting age populationpercentage ("BVAP") for each voting district, based
on 1980 census data. He calculated the percent of the vote captured b y Africa n-American candidates in each voting district in the ten selecte d races. He then employed a

### In addition, Lynch was not a properly qualified expert. He 1 

### disclaimed expertise in statistics. He described the correlation coefficient as "simply a technique which one can employ." H e could not explain his use of the "R square" factor, and he did not even at tempt to explain the "F value" by which he purported to fin d st atistical significance. It is doubtful that his statistica l analysis and opinions were even admissible under Fed. R. Ev. 702.
-17- "correl ation coefficient" to conclude that there was an "overwhelmin g relation ship . . . between BVAP and the percent of vote that the blac k candidates got." See Appendix II. Lynch did not perform an extreme case analysis or a complete bivariate ecological regression analysis, methods the Supreme Court noted are "standard in the literature for the analysis of racially polarized voting." Gingles , 478 U.S. at 53 n.20. Thus, the record here contains far less probative statistical data than was develope d in other recent Voting Rights Act cases such as National Ass'n for th e Advancement of Colored People, Inc. v. City of Niagara Falls , 65 F.3d 1002 , 1005-06 & nn. 2-4 (2d Cir. 1995), and Clay v. Bo ard of Educ. , 896 F. Supp. 929, 934-36 (E.D. Mo. 1995). 1

Lynch's statistical analysis was more than inadequate, it was f aulty. His mos t serious mistake was in equating racially cohesive voting an d racial lypolarized voting, an equation contrary to Gingles . Racia l cohe siveness and racial polarization are elements of different Gingle s preconditions. Political cohesiveness is the s econd Gingles precondition -- "a showing that a significant number of minority group members usually vote for the same candidates." 478 U.S. at 56. I agree with the court tha t Lynch' s data tend to show that African-American voters have bee n politically cohesive in recent Blytheville School Board elections.
Racial polarization, however, is the essential component of the third Gingles precondition -- a pattern of white bloc voting that permits th e majority usually to defeat the minority's preferred candidates, thereb y diluting the minority's vote. Racial polarization requires a focus o n whether "black voters and white

### -18-

voters vote differently." Gingles , 478 U.S. at 53 n.21; Clay , 896 F. Supp

. at 935-36. In making findings of racial polarization, "we rely primarily
on actual events and practical politics." Jeffers v. Clinton , 730 F. Supp

. 196, 208 (E.D. Ark. 1989), aff'd , 498 U.S. 1019 (1991). Therefore, i n measuring this factor, elections under a prior e lectoral system, elections in which there was no African-American candidate, the size and influence of the whi te crossover vote, and the strength of a minority preferre d candidate's support b ecome relevant. See Niagara Falls , 65 F.3d at 1012- 17; So uthern Christian Leadership Conference v. Sessions , 56 F.3d 1281 , 1293 (11th Cir. 1995) (plaintiffs' expert's analysis flawed because he onl y anal yzed elections involving a minority candidate), petition for cert

. filed , 64 U.S.L.W. 3318 (U.S. Oct. 12, 1995) (No. 95-647). For the most part, plaintiffs did not gather such data, and w hat there is in the record they urge us to ignore.
The district court's finding of "racially polarized" voting ref lected Lynch's analytical error:

The te stimony of Mr. James Lynch at trial, based o n analyzing past elections and voting patterns, established that vot ing in the School District is racially polarized in tha t usually the majority of black voters vote for black candidates and the majority of white voters vote for white candidates.

Harvell , 759 F. Supp. at 527-28 (emphasis added). This is simply a misla beled finding of political cohesiveness, the second Gingle s precondition. This court then converts that limited finding into a fa r broa der finding of "highly polarized" voting. A brief review of th e undisp uted facts demonstrates that the record will not support thi s additional finding:

! From 1975 until 1991, two of the eight School Board members were African-Americans. Until Norvell Moore, a four-term incumbent, elected no t to run in 1991, the 29% African-American

### -19-

voting age minority h ad succeeded in electing 25% of the School Board for sixte en straight years, under an entirely at-large election system

. Pres umptively, therefore, racially polarized white bloc voting has no t unlawfully diluted the minority's vote. ! In 1982, two African-American candidates each ran against a sin gle white opponent. Dr. Helen Nunn won, receiving 33% of the votes i n precincts having more than an 80% white voting age population. Incumbent Ayre Les ter received 19% of the votes in those precincts and lost. I n 1987, Norvell Moore r an head-to-head against a white opponent. Mr. Moore received 46% of the v otes in those predominantly white precincts and won. Th is is undeniable evidence of legally significant , continuing whit e
crossover voting. Yet it was not assessed by the district court because Lynch did not know the difference between racially cohesive voting an d racially polarized voting. This court then compounds that legal error wit h the question-begging observation that white crossover voting cannot b e legall y significant because there has been a finding of "consisten t polarization." Ante at 7.

! Pla intiffs' analysis relies on the fact that African-America n candidate Shirley Harvell received 79% of the votes cast in 1990 in th e predominantly minority Robinson Elementary School voting district. Bu t Harvell received only 63 votes from that district, whereas Dr. Nun n received 247 votes from that district in her 198 2 victory, and Mr. Lester, who barel y lost in 1982 despite being in very poor health, received 22 7 votes at R obinson Elementary School. Without knowing the size of th e voti ng age population of each district, as well as its percentage o f minority voters, we cannot assess whether white bloc voting was the likely cause of Harvell's defeat.

The Supreme Court recently cautioned that "'minority politica l cohesion' and 'majority bloc voting' showings ar e needed to establish that the challenged districting thwarts a distinctive

### By su bmitting data only on elections in which there was a n 2 

### African-American candidate, plaintiffs improperly shifted th e Ging les focus from "minority preferred candidates" to "minorit y candidates." In my view, given the sustained success of man y Africa n-American candidates in the recent past, a finding o f rac ially polarized white bloc voting could only be made afte r thorough analysis of the relative success of the minority pr eferred candidates in all elections.
-20- minority vote by submerging it in a larger white voting population. Unles s these points are esta blished, there neither has been a wrong nor can be a
rem edy." Growe v. Emison , 113 S. Ct. 1075, 1084 (1993) (citation an d footno te omitted). This court has improperly transformed the distric t court's finding that most voters vote for candidates of their own race int o
a blan ket assumption that racially polarized white bloc voting usuall y prevents the election of minority preferred candidates. The record will not support that appellate court finding. Compare Magnolia Bar Ass'n, Inc

. v. Lee , 994 F.2d 1143, 1148-50 (5th Cir.) (where African-America n candidate s won two high profile elections with 58% and 30% of the whit e vote , no clear error in finding the third precondition not satisfie d despite expert's test imony that white bloc voting was legally significant and these elections were aberrational), cert. denied , 114 S. Ct. 55 5 (1993).

B. Minority Preferred Candidates Are Not Usually Defeated

The third Gingles precondition also requires proof that white blo c voting u sually will defeat "the minority's preferred candidate." Th e 2 court finds that all losing African-American candidates since 1987 wer e minority preferred, looking only at whether they received most of the vote s in minority-dominated districts. That is a logical assumption in mos t cases involving a rac ially cohesive electorate. But we are reviewing the district court's cont rary finding under a clearly erroneous standard that "preserves the benefit of the trial court's particular familiarity with th e indigenous political reality." Gingles , 478 U.S. at 79.

### -21-

In conducting that review, I begin with what the district court actually found:

[P]r ior to 1988, the lowest number of votes that any blac k candidat e received was 629 and the highest was 1232. On th e ave rage, black candidates received nearly 977 votes. On th e other hand, since 1988, the most votes received by any blac k candidat e was 374 and the lowest was 135. The average sinc e 1988 has been 237 votes per black candidate. White candidates received an average total of 1264 votes prior to 19 88, with the highest being 2212 and the lowest being 606. Since 1988, white can didates have received an average of 1064 votes, with th e highest being 1345 and the lowest being 758. The followin g chart of averages is helpful.

White Candidates Black Candidates
1969-1987 1264 977
1988- 1064 237 Percent Change 15.8% 75.7%

. . . Th e Court is of the opinion that none of the blac k candid ates since 1988 have been the "preferred" candidate o f the black community. . . . Plaintiffs have failed to show that the reason they are unable to maintain proportiona l representation is because of the way the white majority votes

. . . . Indeed, one of the candidates who had been th e overwhelming choice of the black population [Norvell Moore ] chose not to run for reelection.

A review of the entire record persuades me that this finding is not clearl y erroneous:

! If the ei ght unsuccessful African-American candidates since 1987 had received as many votes as Dr. Nunn received in her successful conteste d
race in 1982 (the first time she ran), three would have won outright and two more would have forced run-off elections under the new majority-vote rule. (Given the results of prior elections, th e court's speculation that whites will always wi n run-off elections, ante at 10-11, is unwarranted.)

### -22- ! In 1988, African-American candidate Curtis Smith lost an election to white candidate Bill Sullivan, 758 to 166. Smith did not carryth e Mississippi County Implement Company district, w hich has a BVAP of 80%, by far the highest of any voting district. Yet the court finds that Smith wa s the minority preferred candidate.

! Plaintiff s' Exhibit 26, a copy of the official election returns, repo rts that in 1990, white candidate Littrell received 62 votes an d plaintiff Harvell rec eived 7 votes in the East End Fire Station district,
one of three districts having a higher BVAP than the Blytheville Schoo l District as a whole. Plaintiffs' Exhibit 14, prepared by Lynch, reports that plaintiff Harvell captured 60% of the vote in that district, rather than the 10% she actually received. Based upon Lynch's grievous error , plaintiffs contend an d now this court finds that Harvell was the minority preferred candidate in that election.

! The votes cast in the two districts with a BVAP majority accoun ted for 26% of the total votes in the 1982 election (when Dr. Nunn won and Mr. Lester barely lost), but only 14% of the votes in 1989, 12% in 1990, and 13% in 1991.

! Only o ne African-American candidate since 1987 has received a majorityof the votes cast in the district that most closely mirrors the total School District population (40% minority). In 1982, Dr. Nunn and Mr

. Lester received over 75% of the votes in a similar district.

In my view, this is overwhelming evidence that factors other tha n racially polarized voting, or the 1987 election law change, account for th e election defeats of A frican-American candidates in recent years. Yet the court dismisses the o bvious import of this evidence with the comment that it "st ands to reason" that the 1987 change in the law caused th e precipitous drop in minority voter turnout. Ante at 8. I disagree. Prio r to 1987, African-American

### -23-

candidates had won four of the previous five contested elections against white can didates. They had received an absolute majority in two of th e previo us three elections. With that voting history, only preconceive d notions of racial voting behavior could lead the court to conclude that th e majority-vote rule caused minority voters to lose all hope of success.

We should not forget that we deal here with the politics o f education, not with the election of general purp ose legislators. Dr. Nunn testified on cross examination that she opposed single-member district s "[b]ecause I have spe nt my life working with the total community, working toget her, and I think that's one way to improve quality of education. " Plaintiff Hattie Middlebrook, an unsuccessful ca ndidate in 1990, testified that Board members Norvell Moore and Dr. Nunn were no longer minorit y preferred candidates because of their consensus-building political views. On this record, I reject the court's unsupported speculation that it was the spectre of white bloc voting, or the change to majority rule in 1987, that caused the vast majority of potential African-American voters not to support candidates such as Ms. Middlebrook. The district court's findings as to the third Gingles precondition should be affirmed.

C. Consistent and Sustained Minority Representation

In Gin gles , six Justices agreed that "consistent and sustaine d
succe ss by candidates preferred by minority voters is presumptivel y inconsist ent with the existence of a § 2 violation." 478 U.S. at 10 2 (O'Connor, J., concurring). While proportional minority representation is not a safe harbor tha t automatically defeats a claim of vote dilution, it should be given "extremely heavy weight." Afric an Am. Voting Rights Legal Defense F und, Inc. v. Villa , 54 F.3d 1345, 1355-56 (8th Cir. 1995)

. Section 2 does not "require maximization of minority-group representation. " Little Rock Sch. Dist . v. Pulaski County Special Sch. Dist. , 56 F.3d 904,

### -24-

910 (8th Cir. 1995) (no § 2 violation where mino rity comprising 29% of the district's voting age population has held 28.6% of the Little Rock School Board seats continuously for twenty years).

In this case, an African-American has held a seat on the School Board every year since 1974, and there were two African-Americans on the Board -

- proportional representation -- for sixteen consecutive years. The court dismis ses this "consistent and sustained success" as the product o f "special circumstances." For example, the court disregards Dr. Nunn's mos t recent success becaus e she ran unopposed for a third term in 1990. While Ging les noted that incumbency and lack of opposition maybe "specia l circum stances" that do not disprove a racially polarized electorate, a finding to that effect requires factual analysis. Dr. Nunn's prio r victories and standing in the at-large community may well have persuaded potential white candidates that she was unbeatable. In a district wit h only 29% minority voters, that would be strong evidence that the electorat e is not so racially polarized that African-Americ ans "have less opportunity . . . to elect repres entatives of their choice," the ultimate issue under § 2. See Sanchez v. Bond , 875 F.2d 1488, 1493 (10th Cir. 1989), cert
. denied , 498 U.S. 937 (1990). "It borders on the absurd, of course, t o suggest that an individual's success in politics should be discounted as aberrational because the person is qualified andpopular." Niagara Falls , 65 F.3d at 1021 n.22.

I am particularly distressed by the court's suggestion that th e challenged system violates § 2 because it "allows only for victory o f majority-preferred mi nority candidates," ante at 12, and its criticism of the manner in which successful African-American candidates "managed t o obtain and retain their seats," ante at 14. Apparently, the court believe s that only a racially balkanized election system can comply with the Voting Rights Act. I subscr ibe to a contrary principle -- that "[n]o legal rule should presuppose the inevitability of electoral apartheid -- least of all a rule

### If pl aintiffs were entitled to relief, it would only be a n 3 

### injunc tion against the 1987 majority-vote rule. The court' s opinio n implies that the district court must now enter a n "appropriate remedial decree" creating single-member votin g districts. Given the sustained success of minority preferre d candidates under the prior, pl urality at-large system, this remedy violates the congressional intent that the 1982 amendments to § 2 not be construed as "an all-out assault on at-large electio n system s in general." S. Rep. No. 417, 97th Cong., 2d Sess. 2 7 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 205. Thus, I als o dissent from the remedial portion of the court's decision.
-25- interpreting a statut e designed to implement the Fourteenth and Fifteenth Amendments to the Constitution." Niagara Falls , 65 F.3d at 1016.

D. Conclusion

For the foregoing reasons, I conclud e that plaintiffs have failed to prove that legally significant white bloc voting in the Blytheville School District usually defeats a minority preferred candidate. Accordingly, the y have n ot satisfied the third Gingles precondition, nor have the y established by a totality of the circumstances that the challenged electio n system results in the minority vote dilution that § 2 prohibits.
I do not know whether the 1987 majority-vote law will ultimatel y work to deprive minority voters in the Blytheville School District of thei r rights under § 2. It may be that minority-preferred candidates will emerg e but persistently fail to achieve proportional electoral success. In that
case, § 2 relief will no doubt be warranted because, in the presence o f stronglypolarized white bloc voting, a majority-vote rule combined with at- large voting districts and a 30% minority voting age population mos t likely violates § 2. Cf. City of Port Arthur v. United States , 459 U.S. 159, 167 (1982). But absent proof of sufficiently polarized white blo c voting, § 2 relief should be denied. Our function under the V oting Rights 3 Act is not "to dictate to the

### -26-

provinces the 'correc t' theories of democratic representation, the 'best' ele ctoral systems for securing truly 'representative' government, th e 'fairest' proportions of minority political influence, or . . . th e 'proper' sizes for local governing bodies." Holder v. Hall , 114 S. Ct

. 2581, 2602 (1994) (Thomas, J., concurring). Therefore, I would affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

### -27- APPENDIX I
Th e following table is a compilation of election results for th e Blytheville, Arkansas, School Board from 1969 to 1992. Black candidates are designated by "B" and white candidates are designated by "W."

YEAR CANDIDATES B/W VOTES

1969 Dr. James C. Guard W 1,014

Mrs. Carrie B. White B 769 1970 Mason F. Day, Jr. W 2,212

O. W. Weaver B 1,074 1973 W. J. Tomlinson W 1,068

Rev. T. J. Green B 907 1974 Edwin L. Holstead W 415

Dan M. Burge W 885 Ayre E. "Pop" Lester B 1,232 1975 George "Preacher" Nichols W 182

Richard "Dick" Reid W 582 Bill D. Jackson W 331 Mrs. Allen Bush W 812 Norvell Moore B 1,068 1978 Ayre E. "Pop" Lester B Unopposed 1979 Norvell Moore B Unopposed 1982 Jerry Nall W 1,107

Ayre E. "Pop" Lester B 948
Harold Edwards W 901 Dr. Helen Nunn B 1,187 1983 Norvell Moore B Unopposed 1986 Dr. Helen Nunn B Unopposed 1987 Edwin L. Holstead W 606

Norvell Moore B 629

### -28-

1988 Bill Sullivan W 758

Curtis "Preacher" Smith B 166 1989 Harold Sudbury, Jr. W 1,302

Thurman J. Green, II B 287 Steve Littrell W 1,299 Shirley M. Harvell B 305
Steward R. Jerome W 1,226 Lawrence B. Haley B 374 1990 Steve Littrell W 810

Shirley Harvell B 135
Dr. Helen Nunn B Unopposed 1991 Karen Sue Fraser W 927

Phyllis Bloodworth W 388 Hattie G. Middlebrook B 232
James T. McMahan W 861 Doug Wilson W 484 Shirley Harvell B 223 1992 Bill Sullivan W Unopposed

Bill Stovell, III W 456 Shirley Milliken B 173

### -29-

APPENDIX II

YEAR CANDIDATES CORRELATION COEFFICIENT*

1988 Bill Sullivan 0.8437

Curtis "Preacher" Smith 1989 Harold Sudbury, Jr. 0.9582

Thurman J. Green, II Steve Littrell 0.9674 Shirley M. Harvell
Steward R. Jerome 0.9673 Lawrence B. Haley 1990 Steve Littrell 0.9086

Shirley M. Harvell 1991 Karen Sue Fraser 0.942

Hattie G. Middlebrook
James T. McMahan 0.928 Shirley M. Harvell 1992 Bill Stovell, III 0.838

Shirley Milliken
* The Correlation Coefficie nt (the "r" statistic) measures the strength of a r elationship between two variables. The "r" may range from 0. 0 (indicating the two variables are independent) to +1.0 (indicating the two variables are perfectly correlated in a positive direction).