___________

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% white, but we do not have the relevant voting age

populations before us.

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WOLLMAN, Circuit Judge.

Shirley Harvell and other voters filed suit in 1989, challenging the

election procedure for school board members in the Blytheville, Arkansas,

school district as violative of Section 2 of the Voting Rights Act, 42

U.S.C. § 1973 ("VRA"). The district court dismissed the complaint, finding

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 the

factors set 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, the

district court again dismissed the complaint because it found that Harvell

failed to establish that the unsuccessful black candidates were the

minority's preferred candidates. We again reversed in part the district

court's subsequent decision following remand, but affirmed its denial of

sanctions against Harvell. Harvell v. Blytheville Sch. Dist. #5, 33 F.3d

910 (8th Cir. 1994). We subsequently agreed to rehear the case en banc and

vacated the panel opinion. We now reverse the decision of the district

court in part and affirm the denial of sanctions.

I.

The underlying facts of this dispute are set out in detail in our

earlier opinions. The voting age population of the Blytheville school

district is 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 two

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. Reno, 113

S. Ct. 2816, 2830 (1993)).

-3-

school board elections were determined by a plurality vote. In 1987,

however, the Arkansas legislature altered the voting scheme for school

board elections from one of plurality to one of majority, which would

occasion the need for a run-off election between the voter-preferred

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 cast

in the first round. Following two elections under this scheme Harvell

filed suit. None of six separate black candidates has defeated a white

candidate in eight attempts following the 1987 election, although Dr. Helen

Nunn was reseated without opposition in 1990.2

II.

To mount a successful challenge to multi-member districts under

Section 2, a plaintiff must initially satisfy the three preconditions

3

delineated in Gingles. These preconditions are 1) that the minority group

is large enough and geographically compact enough that it would be a

majority in a single-member district; 2) that the minority group is

politically cohesive; and 3) that the white majority 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. Gingles

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
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voting-related discrimination in the state or political subdivision; (2)

the extent to which voting in the state or subdivision is racially

polarized; (3) the extent to which the state or subdivision has used voting

practices or procedures that tend to enhance opportunities for

discrimination against the minority group; (4) whether minority candidates

have been denied access to any candidate-slating process; (5) the extent

to which minorities have borne the effects of past discrimination in

relation to education, employment, and health; (6) whether local political

campaigns have used overt or subtle racial appeals; (7) the extent to which

minority group members have been elected to public office in the

jurisdiction; (8) whether there is a significant lack of responsiveness on

the part of elected officials to the particularized needs of members of the

minority group; and (9) whether the policy underlying the use of voting

qualifications is tenuous. 478 U.S. at 36-37.

We must analyze the elements of a Section 2 case in context,

according deference to the district court where necessary and applying

legal constructs where appropriate. The district court's findings

regarding the factual context giving rise to the claim are reviewed for

clear error. See Gingles, 478 U.S. at 78-79. But the legal conclusions

it employs, "including those that may infect a 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. 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 two

Gingles preconditions at trial. The school district does not contest these

findings of geographic compactness and political cohesiveness. We

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 and

weighs heavily in
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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 indicates

that the minority candidates in the elections from 1988 to 1992 were not

preferred by the minority voters and precluded Harvell from satisfying the

third Gingles precondition. Harvell asserts, and we agree, that the

district court misapprehended the definition of who is eligible for

"minority-preferred candidate" status and that the evidence establishes

that the candidates in those elections were in fact the minority-preferred

candidates.

We do not categorically state that a candidate is the minoritypreferred candidate simply because that candidate is a member of the

minority. Such stereotyping 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 the

inference that any particular minority candidate is minority-preferred"),

cert. denied, 114 S. Ct. 2779 (1994). Accordingly, such an inference is

insufficient to establish that any particular candidate is minoritypreferred. The preferences 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 record makes clear in this case that the race of a candidate is

by far the determinative factor in minority voting patterns in Blytheville

school board elections. Harvell's regression analysis strongly supports

the conclusion that those
 Appendix II contains the results of Harvell's expert

4

statistical evidence.

-6-

black candidates who did run in the elections from 1988-1992 were in fact

the minority-preferred candidates. See id. (inference derived from

4

candidate's race combined 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

greatest support from black voters."), cert. denied, 115 S. Ct. 1960

(1995); see also Jeffers, 730 F. Supp. at 208 (noting race-conscious voting

behavior of Arkansans). The school district does not contest this

statistical evidence and offers no other evidence to contradict the

statistical preference. The consistency of the data over time lends

additional support to this conclusion. Gingles, 478 U.S. at 57.

There may be situations in which voter apathy may be linked to

disapproval of a particular candidate, but there is no indication that such

is the case here. The silence of the minority voters is not so deafening

as to warrant a finding that they disapproved of six different minority

candidates in light of the uncontroverted statistical evidence that

supports a finding of overwhelming support from those blacks who did vote.

Nor are the numbers so low as to reduce their statistical significance to

a nullity. Speculation regarding reasons for low minority turnout is

inappropriate. Gomez v. City of Watsonville, 863 F.2d 1407, 1415-16 (9th

Cir. 1988) (looking at actual voting patterns to determine political

cohesion rather than turnout rates), cert. denied, 489 U.S. 1080 (1989).

The school district's interpretation of the low turnout underestimates the

legal significance of the years of polarized voting evident in the

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 of

majority to defeat the
-7-

minority-preferred candidate is "ordinarily established through evidence

of racially polarized voting"). Similarly, the related natures of

cohesiveness, polarization, and bloc voting demonstrate the incongruity of

any reliance on low voter turnout in this case. See Clark, 21 F.3d at 96;

Jenkins, 4 F.3d at 1133 n.32 (discussing relation between political

cohesiveness and the minority-preferred candidate); Collins v. City of

Norfolk, 883 F.2d 1232, 1237 (4th Cir. 1989) (polarization relevant to

determination of cohesiveness and whether white bloc voting defeats

minority-preferred candidates); Collins, 816 F.2d at 935 ("[T]he existence

of racially polarized voting . . . establishes both cohesiveness of the

minority group and the power of white bloc voting to defeat the minority's

candidates.") (emphasis omitted); see also Gingles, 478 U.S. at 52 n.18

(noting interchangeable use of polarization and bloc voting); United States

v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir.) ("The surest

indication of race-conscious politics is a pattern of racially polarized

voting."), cert. denied, 469 U.S. 976 (1984). The fact that black

candidates have lost universally in contested post-1987 elections cannot

be explained away simply on the basis of the black electorate's

dissatisfaction with its candidates. In the face of the finding of

consistent polarization, 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 average 19% white crossover vote

insufficient to salvage at-large, one-on-one election scheme under the

facts of that case), cert. denied, 115 S. Ct. 1097 (1995).

That some minority-preferred candidates did achieve electoral success

under the old system does not necessitate a finding that those minority

candidates who do not now succeed are not the minority's preferred

candidates, particularly when no candidates in these elections received

greater minority voter support. Moreover, we should not require as a

condition to a finding of minority-preferred status heroic, mythic

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. Although 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 their 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 that

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

Fund, Inc. v. Villa, 54 F.2d 1345, 1352 (8th Cir. 1995), the relevant

candidate should generally be one able to receive those votes, not some

idealized figure whose absence from the ballot keeps a disappointed

electorate at home. Under the school district's proffered view, the black

voters of Blytheville have gone five consecutive years, six candidates, and

eight campaigns without stating a preference, a proposition we cannot

accept.

There are a number of factors in addition to the statistical data

that indicate that the district court's reliance on low turnout is too

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 silentio

predisposition against any particular minority candidate. Not only were

the minority turnouts low, but voter turnout as a whole for these elections

has been historically low. Additionally, we note that following the change

in the law the average vote totals declined for both white and minority

candidates, although much more precipitously for black candidates. In

light of the fact that low voter turnout has often been considered the

result of the minority's inability to effectively participate in the

political process, see Gomez, 863 F.2d at 1416 n.4; United States v. Dallas

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 even

more greatly on a group that has faced historic disadvantages.5
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Similarly, black voters need have only looked at their plurality

successes in 1974 and 1975 to realize that they faced a much lower

possibility of success under the present scheme. This may also account for

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 an 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 many

possibilities for explaining the low turnouts that selecting any one in

this case is purely impermissible speculation.

Nor can we accept the school district's attempts to characterize the

unsuccessful candidates as militant fringe candidates who disenfranchised

themselves from the black community. There is no evidence in the record

that the minority community viewed any of the six different candidates as

in any way inadequate representatives of its interests. In the absence of

any such evidence, the countervailing voting patterns conclusively rebut

these denigrations.

The school district relies heavily on the historical fact of

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 proportional 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 the

circumstances. See
 De Grandy resolved a claim involving "proportionality," which 6

"links the number of majority-minority voting districts to minority

members' share of the relevant population." 114 S. Ct. at 2658

n.11. Here, because we address a claim involving a single at-large

district, the analyses between proportionality and proportional

representation are essentially the same. Cf. Villa, 54 F.3d at

1352-53 n.10 (distinguishing proportional representation in case

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 Zimmer v. McKeithen, 485 F.2d

1297, 1307 (5th Cir. 1973) (listing possible explanation for success at the

polls despite vote dilution), aff'd sub nom., East Carroll Parish Sch. Bd.

v. Marshall, 424 U.S. 636 (1976). Just as proportional representation is

not mandated under Section 2, it also does not preclude finding a

violation, because racial reference points do not necessarily reflect

political realities. See De Grandy, 114 S. Ct. at 2661-62 & n.17

(probative value of proportionality varies with the facts). Similarly, the

white majority has no right under Section 2 to ensure that a minority group

has absolutely no opportunity to achieve greater than proportional

representation in any given race.

The proportional representation on which the school district relies

rests on infirm ground. The electoral success that black candidates

achieved under the plurality system is no longer present. No black

candidate has won a contested election since the change in the law. The

district 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 historic

successes of black candidates in rejecting Harvell's complaints. This sort

of back-to-the-futurism on the part of the school district cannot withstand

analysis, for if we control the results of the elections prior to 1988 with

the majority vote requirement, it becomes plain that no proportional

representation would have occurred in the past. Both the 1974 and 1975

elections would have gone to white
 We agree that incumbency is the least "special" of the

7

special circumstances, compare Clarke, 40 F.3d at 813-14 (deemphasizing incumbency element) with Collins, 883 F.2d at 1243

(emphasizing the importance of incumbency), but accept its

potential as such and view this election as a special circumstance

because of the multiple incumbency, board composition, and

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 unopposed

incumbent. Dr. Nunn's 1982 victory would have provided the only successful

black candidate in Blytheville history had the current scheme been in place

then. Such success does not indicate substantial minority voting strength,

nor does it indicate the presence of a consistent, legally significant

white cross-over vote.

Further, even accepting the historical effects of the plurality

element, most of the elections won by black candidates were done so as

incumbents in the face of no opposition. This is precisely the type of

special circumstance recognized in Gingles as not vitiating any element of

the claim. 478 U.S. at 51. Even in an extreme case of total vote dilution

a candidate running in the face of no opposition is ensured success. The

two instances in which a black candidate beat a white candidate head-tohead involved Moore's 23-vote victory as a three-term incumbent against

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, when

those campaigns involving readily apparent special circumstances are

removed, black candidates still have won only one election in thirteen

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 preferred candidate." 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

again bringing representation into proportion with the black

population. This appointment is irrelevant to the ability of black

voters to elect the representatives of their choice. Nor does his

unopposed reseating in 1993 convince us of the soundness of the

election scheme.

 The Supreme Court hedged slightly on this notion in De

9

Grandy, at one point calling the preconditions "generally

necessary." 114 S. Ct. at 2657. The preeminence of these

preconditions in the totality analysis has consistently been

recognized in recent opinions by the Supreme Court, however, see

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.

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We emphasize that we are not assessing the validity of the law that

existed prior to 1988. It no longer exists, and its legitimacy is

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. Proportional 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

impediments to election that are too stark for us to dismiss their

8

attendant results as mere happenstance. It is a system that allows only

for victory of majority-preferred minority candidates. In essence, any

minority serving on the board does so at the sufferance of the majority --

a hollow proportional representation indeed when the minority must rely on

majority benevolence to ensure the adequacy of its representation. A

system that works for minorities only in the absence of white opposition

is a system that fails to operate in accord with the law.

Satisfaction of the necessary Gingles preconditions carries a

9

plaintiff a long way towards showing a Section 2 violation, Jenkins, 4 F.3d

at 1116 n.6, 1135; see Clark, 21 F.3d at 97, but in the final analysis

Harvell must still show that the challenged
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electoral scheme provides minority voters "less opportunity than other

members of the electorate to participate in the political process and to

elect representatives of their choice." 42 U.S.C. § 1973(b). The totality

of the circumstances on the record before us establishes that dilution.

See Gomez, 863 F.2d at 1411 (remand not necessary when the record "permits

only one resolution of the factual issue" (quoting Pulman-Standard v.

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

The two primary factors considered in our totality analysis are the

extent to which voting is racially polarized and the extent to which

minorities have been elected under the challenged scheme. Gingles, 478

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 minimal

electoral success under the present scheme, with Dr. Nunn's unopposed

reseating as an incumbent in 1990 representing the only minority victory

in nine attempts.

The remaining totality factors, although not essential to Harvell's

claim, see id., support our conclusion that Harvell has identified a

Section 2 violation. No one party to the litigation denies the long

history of racial discrimination in the electoral process in Arkansas. See

Perkins v. City of West 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, that

strides have been made since the dawn of the civil rights movement, but

Arkansas remains by no means idyllic for black voters. Jeffers, 730 F.

Supp at 204. We conclude that the district court did not accord sufficient

weight to the vestiges 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 historic effects of discrimination in the areas of health,

employment, and education impact negatively on minority political

participation. The majority vote requirement, staggered terms, and atlarge structure also tend to suppress minority voters' influence. See De

Grandy, 114 S. Ct. at 2660-61;
 Following our decision in the first appeal in this case, the 10

Arkansas legislature amended its school board election law to

require seven single-member districts, or five single-member

districts and two at-large representatives in all school districts

having a minority population of 10% or more. If a school district

has been found to not be in violation of the VRA, it is excepted

from this provision. Ark. Code Ann. § 6-13-631.

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Collins, 883 F.2d at 1236 (at-large system and staggered 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 heightens

our concern over the new election scheme, which while retaining the atlarge structure, removes the potential for winning on the basis of a

10

split white vote.

No evidence of a candidate-slating process was adduced, nor was any

evidence of racial appeals presented, but the presence of such insidious

accoutrements is unnecessary in situations where the process controls the

result, and their absence does not preclude finding a Section 2 violation.

Further, the district court's finding that the school board was not

unresponsive to the minority community was predicated on its belief that

because those black candidates who did serve on the board were the

minority-preferred candidates, those who did not win election to the board

must have been rejected by black voters as potentially less responsive.

Our earlier discussion of the minority-preferred candidate status counters

that proposition. Even accepting the finding of responsiveness as not

clearly erroneous, however, it is similarly insufficient to counter the

other factors that censure this scheme. See Westwego Citizens for Better

Gov't v. City of Westwego, 946 F.2d 1109, 1123 (5th Cir. 1991).

The totality of the circumstances on this record leaves us with the

firm conviction that the Blytheville school board electoral scheme is

institutionally restrictive, thereby creating
-15-

"an inequality in the opportunities enjoyed by black and white voters to

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

polarization effectively cripples minority attempts to effect

representation on the school board in the absence of the fortuity of white

voter acquiescence. The fact that the current school board election system

is less accessible to minority participation than that of ten or twenty

years ago runs contrary to the intent and standard of Section 2.

The Supreme Court's recent redistricting decision in Miller does not

alter our analysis of the Gingles factors or our ultimate decision in this

appeal. Miller analyzed the equal protection problems involved in drawing

voting districts along 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 cautionary note to the district court on remand to steer

clear of the type of racial gerrymandering proscribed in Miller, while

keeping in mind the need to vindicate the rights of the minority voters.

Our holding that plaintiffs are entitled to relief on their claim

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 judgment 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 unreliable

statistical evidence to justify disregarding "consistent and sustained

success by [African-American] candidates [that] is
-16-

presumptively inconsistent 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 district court found that plaintiffs failed to prove the third

Gingles precondition, that the white majority in the Blytheville School

District "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 51. To qualify as "legally significant white bloc

voting," the Supreme Court explained in Gingles, the white vote must be

sufficiently polarized that it will "normally . . . defeat the combined

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 statistical analysis by their expert,

James R. Lynch, a Senior Research Specialist in the Institute of Government

at the University of Arkansas at Little Rock. As Appendix I reflects,

Lynch submitted District-wide vote totals for every Blytheville School

Board election from 1969 to 1992 that included an African-American

candidate. He also presented vote totals by voting district for ten of

those elections, in 1982, 1987, 1988, 1989, 1990, and 1991. Beyond that,

all of Lynch's data were in percentage form. He calculated the black

voting age population percentage ("BVAP") for each voting district, based

on 1980 census data. He calculated the percent of the vote captured by

African-American candidates in each voting district in the ten selected

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." He could

not explain his use of the "R square" factor, and he did not even

attempt to explain the "F value" by which he purported to find

statistical significance. It is doubtful that his statistical

analysis and opinions were even admissible under Fed. R. Ev. 702.

-17-

"correlation coefficient" to conclude that there was an "overwhelming

relationship . . . between BVAP and the percent of vote that the black

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 developed

in other recent Voting Rights Act cases such as National Ass'n for the

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. Board of Educ., 896 F. Supp.

929, 934-36 (E.D. Mo. 1995).1

Lynch's statistical analysis was more than inadequate, it was faulty.

His most serious mistake was in equating racially cohesive voting and

racially polarized voting, an equation contrary to Gingles. Racial

cohesiveness and racial polarization are elements of different Gingles

preconditions. Political cohesiveness is the second 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 that

Lynch's data tend to show that African-American voters have been

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 the

majority usually to defeat the minority's preferred candidates, thereby

diluting the minority's vote. Racial polarization requires a focus on

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, in

measuring this factor, elections under a prior electoral system, elections

in which there was no African-American candidate, the size and influence

of the white crossover vote, and the strength of a minority preferred

candidate's support become relevant. See Niagara Falls, 65 F.3d at 1012-

17; Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281,

1293 (11th Cir. 1995) (plaintiffs' expert's analysis flawed because he only

analyzed 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 what there is in the record

they urge us to ignore.

The district court's finding of "racially polarized" voting reflected

Lynch's analytical error:

The testimony of Mr. James Lynch at trial, based on

analyzing past elections and voting patterns, established that

voting in the School District is racially polarized in that

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

mislabeled finding of political cohesiveness, the second Gingles

precondition. This court then converts that limited finding into a far

broader finding of "highly polarized" voting. A brief review of the

undisputed facts demonstrates that the record will not support this

additional finding: 

! From 1975 until 1991, two of the eight School Board members were

African-Americans. Until Norvell Moore, a four-term incumbent, elected not

to run in 1991, the 29% African-American
-19-

voting age minority had succeeded in electing 25% of the School Board for

sixteen straight years, under an entirely at-large election system.

Presumptively, therefore, racially polarized white bloc voting has not

unlawfully diluted the minority's vote. 

! In 1982, two African-American candidates each ran against a single

white opponent. Dr. Helen Nunn won, receiving 33% of the votes in

precincts having more than an 80% white voting age population. Incumbent

Ayre Lester received 19% of the votes in those precincts and lost. In

1987, Norvell Moore ran head-to-head against a white opponent. Mr. Moore

received 46% of the votes in those predominantly white precincts and won.

This is undeniable evidence of legally significant, continuing white

crossover voting. Yet it was not assessed by the district court because

Lynch did not know the difference between racially cohesive voting and

racially polarized voting. This court then compounds that legal error with

the question-begging observation that white crossover voting cannot be

legally significant because there has been a finding of "consistent

polarization." Ante at 7. 

! Plaintiffs' analysis relies on the fact that African-American

candidate Shirley Harvell received 79% of the votes cast in 1990 in the

predominantly minority Robinson Elementary School voting district. But

Harvell received only 63 votes from that district, whereas Dr. Nunn

received 247 votes from that district in her 1982 victory, and Mr. Lester,

who barely lost in 1982 despite being in very poor health, received 227

votes at Robinson Elementary School. Without knowing the size of the

voting age population of each district, as well as its percentage of

minority voters, we cannot assess whether white bloc voting was the likely

cause of Harvell's defeat.

The Supreme Court recently cautioned that "'minority political

cohesion' and 'majority bloc voting' showings are needed to establish that

the challenged districting thwarts a distinctive
 By submitting data only on elections in which there was an

2

African-American candidate, plaintiffs improperly shifted the

Gingles focus from "minority preferred candidates" to "minority

candidates." In my view, given the sustained success of many

African-American candidates in the recent past, a finding of

racially polarized white bloc voting could only be made after

thorough analysis of the relative success of the minority preferred

candidates in all elections. 

-20-

minority vote by submerging it in a larger white voting population. Unless

these points are established, there neither has been a wrong nor can be a

remedy." Growe v. Emison, 113 S. Ct. 1075, 1084 (1993) (citation and

footnote omitted). This court has improperly transformed the district

court's finding that most voters vote for candidates of their own race into

a blanket assumption that racially polarized white bloc voting usually

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-American

candidates won two high profile elections with 58% and 30% of the white

vote, no clear error in finding the third precondition not satisfied

despite expert's testimony that white bloc voting was legally significant

and these elections were aberrational), cert. denied, 114 S. Ct. 555

(1993).

B. Minority Preferred Candidates Are Not Usually Defeated

The third Gingles precondition also requires proof that white bloc

voting usually will defeat "the minority's preferred candidate." The

2

court finds that all losing African-American candidates since 1987 were

minority preferred, looking only at whether they received most of the votes

in minority-dominated districts. That is a logical assumption in most

cases involving a racially cohesive electorate. But we are reviewing the

district court's contrary finding under a clearly erroneous standard that

"preserves the benefit of the trial court's particular familiarity with the

indigenous political reality." Gingles, 478 U.S. at 79. 
-21-

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

found: 

[P]rior to 1988, the lowest number of votes that any black

candidate received was 629 and the highest was 1232. On the

average, black candidates received nearly 977 votes. On the

other hand, since 1988, the most votes received by any black

candidate was 374 and the lowest was 135. The average since

1988 has been 237 votes per black candidate. White candidates

received an average total of 1264 votes prior to 1988, with the

highest being 2212 and the lowest being 606. Since 1988, white

candidates have received an average of 1064 votes, with the

highest being 1345 and the lowest being 758. The following

chart of averages is helpful.

 White Candidates Black Candidates

1969-1987 1264 977

1988- 1064 237

Percent Change 15.8% 75.7%

. . . The Court is of the opinion that none of the black

candidates since 1988 have been the "preferred" candidate of

the black community. . . . Plaintiffs have failed to show that

the reason they are unable to maintain proportional

representation is because of the way the white majority votes

. . . . Indeed, one of the candidates who had been the

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 clearly

erroneous: 

! If the eight unsuccessful African-American candidates since 1987

had received as many votes as Dr. Nunn received in her successful contested

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, the court's speculation that

whites will always win 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 carry the

Mississippi County Implement Company district, which has a BVAP of 80%, by

far the highest of any voting district. Yet the court finds that Smith was

the minority preferred candidate.

! Plaintiffs' Exhibit 26, a copy of the official election returns,

reports that in 1990, white candidate Littrell received 62 votes and

plaintiff Harvell received 7 votes in the East End Fire Station district,

one of three districts having a higher BVAP than the Blytheville School

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 and 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 accounted

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 one African-American candidate since 1987 has received a

majority of 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 than

racially polarized voting, or the 1987 election law change, account for the

election defeats of African-American candidates in recent years. Yet the

court dismisses the obvious import of this evidence with the comment that

it "stands to reason" that the 1987 change in the law caused the

precipitous drop in minority voter turnout. Ante at 8. I disagree. Prior

to 1987, African-American
-23-

candidates had won four of the previous five contested elections against

white candidates. They had received an absolute majority in two of the

previous three elections. With that voting history, only preconceived

notions of racial voting behavior could lead the court to conclude that the

majority-vote rule caused minority voters to lose all hope of success.

We should not forget that we deal here with the politics of

education, not with the election of general purpose legislators. Dr. Nunn

testified on cross examination that she opposed single-member districts

"[b]ecause I have spent my life working with the total community, working

together, and I think that's one way to improve quality of education."

Plaintiff Hattie Middlebrook, an unsuccessful candidate in 1990, testified

that Board members Norvell Moore and Dr. Nunn were no longer minority

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 Gingles, six Justices agreed that "consistent and sustained

success by candidates preferred by minority voters is presumptively

inconsistent with the existence of a § 2 violation." 478 U.S. at 102

(O'Connor, J., concurring). While proportional minority representation is

not a safe harbor that automatically defeats a claim of vote dilution, it

should be given "extremely heavy weight." African Am. Voting Rights Legal

Defense Fund, 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 minority 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

dismisses this "consistent and sustained success" as the product of

"special circumstances." For example, the court disregards Dr. Nunn's most

recent success because she ran unopposed for a third term in 1990. While

Gingles noted that incumbency and lack of opposition may be "special

circumstances" that do not disprove a racially polarized electorate, a

finding to that effect requires factual analysis. Dr. Nunn's prior

victories and standing in the at-large community may well have persuaded

potential white candidates that she was unbeatable. In a district with

only 29% minority voters, that would be strong evidence that the electorate

is not so racially polarized that African-Americans "have less opportunity

. . . to elect representatives 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, to

suggest that an individual's success in politics should be discounted as

aberrational because the person is qualified and popular." Niagara Falls,

65 F.3d at 1021 n.22.

I am particularly distressed by the court's suggestion that the

challenged system violates § 2 because it "allows only for victory of

majority-preferred minority candidates," ante at 12, and its criticism of

the manner in which successful African-American candidates "managed to

obtain and retain their seats," ante at 14. Apparently, the court believes

that only a racially balkanized election system can comply with the Voting

Rights Act. I subscribe to a contrary principle -- that "[n]o legal rule

should presuppose the inevitability of electoral apartheid -- least of all

a rule
 If plaintiffs were entitled to relief, it would only be an

3

injunction against the 1987 majority-vote rule. The court's

opinion implies that the district court must now enter an

"appropriate remedial decree" creating single-member voting

districts. Given the sustained success of minority preferred

candidates under the prior, plurality 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 election

systems in general." S. Rep. No. 417, 97th Cong., 2d Sess. 27

(1982), reprinted in 1982 U.S.C.C.A.N. 177, 205. Thus, I also

dissent from the remedial portion of the court's decision. 

-25-

interpreting a statute 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 conclude that plaintiffs have failed to

prove that legally significant white bloc voting in the Blytheville School

District usually defeats a minority preferred candidate. Accordingly, they

have not satisfied the third Gingles precondition, nor have they

established by a totality of the circumstances that the challenged election

system results in the minority vote dilution that § 2 prohibits. 

I do not know whether the 1987 majority-vote law will ultimately work

to deprive minority voters in the Blytheville School District of their

rights under § 2. It may be that minority-preferred candidates will emerge

but persistently fail to achieve proportional electoral success. In that

case, § 2 relief will no doubt be warranted because, in the presence of

strongly polarized white bloc voting, a majority-vote rule combined with

at-large voting districts and a 30% minority voting age population most

likely violates § 2. Cf. City of Port Arthur v. United States, 459 U.S.

159, 167 (1982). But absent proof of sufficiently polarized white bloc

voting, § 2 relief should be denied. Our function under the Voting Rights 3

Act is not "to dictate to the
-26-

provinces the 'correct' theories of democratic representation, the 'best'

electoral systems for securing truly 'representative' government, the

'fairest' proportions of minority political influence, or . . . the

'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

The following table is a compilation of election results for the

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 Coefficient (the "r" statistic) measures the strength

of a relationship 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).