*

This decision was originally issued o

issued to incorporate Judge Jones’ separ

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

RURAL WEST TENNESSEEAFRICAN AMERICAN-AFFAIRSCOUNCIL, et al. (98-6718),PHILLIP R. LANGSDON, et al.(98-6778),

Plaintiffs-Appellees,

v.

DON SUNDQUIST, Governor ofthe State of Tennessee, et al.,

Defendants-Appellants.

Appeal from the United St

for the Western District of Te

Nos. 92-02407; 92-02415—Jerom

Argued: March 

Decided and Filed: A

Before: JONES, BATCHELDE

Judges.
2 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

_________________

COUNSEL

ARGUED: Michael W. Catalano, OFFICE OF THEATTORNEY GENERAL, Nashville, Tennessee, forAppellants. Laughlin McDonald, AMERICAN CIVILLIBERTIES UNION FOUNDATION, Atlanta, Georgia, JohnL. Ryder, APPERSON, CRUMP & MAXWELL, Memphis,Tennessee, for Appellees. ON BRIEF: Michael W.

Catalano, Paul G. Summers, OFFICE OF THE ATTORNEYGENERAL, Nashville, Tennessee, for Appellants. LaughlinMcDonald, AMERICAN CIVIL LIBERTIES UNIONFOUNDATION, Atlanta, Georgia, John L. Ryder,APPERSON, CRUMP & MAXWELL, Memphis, Tennessee,John R. Walker, BAKER, DONELSON, BEARMAN &CALDWELL, Memphis, Tennessee, Richard H. Dinkins,DODSON, PARKER, DINKINS & BEHM, Nashville,Tennessee, for Appellees. 

BATCHELDER J., delivered the opinion of the court, in

which CLAY, J., joined. JONES, J. (pp. 18-23), issued aseparate concurring opinion.

_________________

OPINION

_________________

BATCHELDER, Circuit Judge. Don Sundquist, Governor

of the State of Tennessee, and other state officials appeal froma district court order finding that a districting plan for theTennessee House of Representatives unlawfully dilutesAfrican-American voting strength in violation of § 2 of theVoting Rights Act, 42 U.S.C. § 1973, and enjoining furtheruse of that plan. The State further requests a stay of thedistrict court’s order for elections scheduled to begin inAugust of 2000. For the reasons set forth below, we affirmthe order of the district court, and deny the motion for a stayas moot.

Nos. 98-6718/6778 Rural Wlong as it grants equal opportunminority voters. This conclusion iCourt’s interpretation of § 2, whistate may not remedy vote dilut

compliance in another.
22 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

(W.D. Tenn. 1998). While one might expect a political groupto wield significant influence in a district in which itcomprises at least one-quarter of the voting age population,the realities of white bloc voting command that we apply amore flexible standard in assessing the extent to whichpurported influence districts provide minorities with an equalopportunity to elect representatives of choice.Notwithstanding a minority population that may evenapproach upwards of 40% in a district, when, as here, 90% ofwhites coalesce along racial lines to defeat the blackcommunity’s preferred candidate of choice, the ability ofblacks to “influence” elections in these circumstances isspecious. The bright-line 25% rule obscures the realities ofwhite bloc voting, and implies black “influence” that may notin fact exist. Accordingly, I would expressly reject the 25%rule, and adopt a more flexible, case-by-case standard thattakes white bloc voting into account.

Second, the majority concludes that “neither overproportionality in one area of the State nor substantial

proportionality in the State as a whole should ordinarily beused to offset a problem of vote dilution in one discrete areaof the State.” Ante at 14 (emphasis added). For this

conclusion, the majority relies upon the Supreme Court’sholdings in Shaw v. Hunt, 517 U.S. 899 (1996) and Johnson

v. DeGrandy, 512 U.S. 997 (1994), which collectivelyprovide that a state may not remedy vote dilution in one areaof a state by compliance with § 2 in another area. Indeed, asthe majority acknowledges, the DeGrandy court scathinglycritiqued the premise that “the rights of some minority votersunder § 2 may be traded off against the rights of othermembers of the same minority class,” 512 U.S. at 1019, andthe Shaw court plainly ruled that “the vote-dilution injuriessuffered by . . . persons [in one area of the State] are notremedied by creating a safe majority-black district somewhereelse in the State.” 517 U.S. at 917. Inexplicably, the majorityreads ambiguity into these conclusions, and thereby leaves thedoor open to the notion that a state may dilute the vote ofminority voters in ways that would otherwise violate § 2, as

Nos. 98-6718/6778 Rural W

I

In April of 1992, the Tennessee G

legislation reapportioning the StateRepresentatives and Senate distric1-102 & 103 (1992) (repealed 1primaries, the Rural West TennAffairs Council (“RWTAAC”) anin Tennessee filed suit charging thathe House Plan violated § 2 of the Thirteenth, Fourteenth, and FifteUnited States Constitution. Phillregistered voters in Tennessee fvalidity of the House Plan on the gof Voting Rights Act and the “one of the Fourteenth Amendment; the the House Plan on other grounds s

A three-judge panel of the dis

ordered the two cases consolidatedthe panel held that the House Pbecause it violated the one personEqual Protection Clause. RWTAASupp. 447, 452 (W.D. Tenn. 1993defendants to prepare and sapportionment plan by January 2

appealed to the United States Supr

On November 4, 1993, the dis

Senate Plan violated § 2 of thaffording African-American voteopportunity than other membeparticipate in the political process aof their choice. RWTAAC v. McW466 (W.D. Tenn. 1993) (“RWTAAand the Supreme Court vacated remanded for further consideratio

DeGrandy, 512 U.S. 997 (1994). 512 U.S. 1249 (1994). On remand
4 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

its decision in RWTAAC I and held that the Senate Planconformed to the Voting Rights Act. RWTAAC v.McWherter, 877 F. Supp. 1096, 1098 (W.D. Tenn. 1995)(“RWTAAC II”). The plaintiffs appealed.

While the appeals in the Senate and House Plan cases were

pending, the Tennessee General Assembly adopted a newHouse Plan and submitted it to the district court. Tenn. CodeAnn. § 3-1-103 (1994). The court found that the new Plancomplied with the Equal Protection Clause’s one person, onevote requirement. It delayed consideration of the otherchallenges to the House Plan until the Supreme Court ruledon the appeals pending in the Senate case.

The Supreme Court affirmed the dismissal of the plaintiffs’

claims as to the Senate Plan on October 4, 1995. RWTAAC v.Sundquist, 516 U.S. 801 (1995). RWTAAC then amended itscomplaint to challenge the House Plan on the sole ground thatit violated § 2 of the Voting Rights Act. Because theamended complaint contained no constitutional claims, thethree-judge court disbanded itself. After a trial on the meritsof the plaintiffs’ consolidated claim of vote dilution, theHonorable Jerome Turner, on November 6, 1998, declared the1994 House Plan to be violative of the Voting Rights Act andenjoined the defendants from using it in future elections.RWTAAC v. Sundquist, 29 F. Supp. 2d 448, 450 (W.D. Tenn.1998). The state defendants bring this timely appeal.

II

"A district court's factual findings regarding Section 2

violations and the determination of whether vote dilution hasoccurred are ordinarily reviewed for clear error." Cousin v.

McWherter, 46 F.3d 568, 574 (6th Cir. 1995) (citing Fed. R.Civ. P. 52(a) and Thornburg v. Gingles, 478 U.S. 30, 79(1986)). However, "Rule 52(a) does not inhibit an appellatecourt's power to correct errors of law, including those thatmay infect a so-called mixed finding of law and fact, or afinding of fact that is predicated on a misunderstanding of the

Nos. 98-6718/6778 Rural Wleast of all a rule interpreting a statthe Fourteenth and Fifteenth Constitution.” NAACP v. City of N

1016 (2d Cir. 1995). Indeed, thevaluated the success of the blaccandidate in white-white elections conclude that racial representation dilution determination. See Cousonly is such an abstracted presucolorblind goals of the Equal Pro

Miller v. Johnson, 515 U.S. 900, 91conflicts with § 2's dictate that noAct shall be construed to require prSee 42 U.S.C. § 1973(b). 

By granting greater weight to b

white bloc voting is targeted againnot disrespect this principle. Westablished realities of white blTennessee, and conclude uncontroenjoy an equal opportunity “to pprocess and to elect representatives can elect only those candidates majority.

II.

I also write separately to expres

the district court’s definition of “ipurposes of the “totality of the cirthe majority’s implicit recogniunspecified circumstances, a state in one area of a state by complianc

First, the district court erred in 

court’s bright-line definition of “idistrict where a minority group co55% of the district. Rural West TeAffairs Council, Inc. v. Sundquis
20 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

candidates of their race at the polls. Cf. Shaw v. Reno, 509U.S. 630, 647 (1993) (asserting that intentionally-createdmajority-minority districts may “reinforce[] the perceptionthat members of the same racial group . . . think alike, sharethe same political interests, and will prefer the samecandidates at the polls”). In this case, the record shows that60% of whites vote against the black community’s preferredcandidate in white-white elections, yet almost 90% of whitesvote for the white candidate in black-white elections. Therecord therefore reveals almost total white bloc voting whena politically cohesive group of blacks attempts to elect amember of their racial group. These facts depict theundisputed racial realities of politics in rural west Tennessee,and we cannot wish away these hard political facts in hopesof achieving a colorblind ideal that, as of yet, does notcomport with empirical reality. 

Moreover, absent compelling evidence that a white

candidate in a white-white election is genuinely the blackcommunity’s preferred candidate, courts must assess blackwhite elections to determine whether a politically cohesiveminority group actually has a viable candidate of choice, ormerely an opportunity to mitigate the impact of whiteelectoral hegemony. See Cousin, 145 F.3d at 825 (providingthat white-white elections are relevant when “one of thecandidates [is] strongly preferred by black voters” or “[w]hereblack voters have a genuine candidate of choice”) (citationomitted); cf. Citizens for a Better Gretna v. Gretna, 834 F.2d496, 503 (5th Cir. 1987) (concluding that a candidate’s raceis most relevant when the election “offers voters the choice ofsupporting a viable minority candidate”).

Recognizing the relevance of a candidate’s race when the

record shows minority political cohesion and especially strongwhite cohesion in elections involving black candidates doesnot preempt the possibility that a white candidate may be theblack community’s genuine and actual candidate of choice.As the Second Circuit rightly concluded, “[n]o legal ruleshould presuppose the inevitability of electoral apartheid –

Nos. 98-6718/6778 Rural Wgoverning rule of law." Ginglesquotation marks omitted).

A

Section 2 of the Voting Rights A

(a) No voting qualification or 

standard, practice, or procedurapplied by any State or political which results in a denial or abriany citizen of the United Staterace or color, or in contraventioforth in section 1973b(f)(2) of tsubsection (b) of this section. 

(b) A violation of subsectio

established if, based on the totalishown that the political processeor election in the State or politequally open to participation by citizens protected by subsection its members have less opportunitthe electorate to participate in the elect representatives of their chomembers of a protected class hain the State or political subdiviswhich may be considered: Provisection establishes a right to have class elected in numbers equal tpopulation. 

 42 U.S.C. § 1973.

Before considering whether the H

voting strength in rural west Temembers of the minority group a representatives of their choice, wthe plaintiffs have met the three prthe Supreme Court in Thornburg v
6 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

51. The plaintiffs must demonstrate that 1) the minoritygroup is sufficiently large and geographically compact toconstitute a majority in a single-member district; 2) theminority group is politically cohesive; and 3) the whitemajority votes sufficiently as a bloc to enable it usually todefeat the minority’s preferred candidate. Id. The partiesagree that the first two Gingles preconditions have beensatisfied. They clash on the question whether whites vote asa bloc usually to defeat the candidates of choice of AfricanAmerican voters, contesting most hotly the weight to be givento particular sets of election data.

B

Chapter 536 of the Public Acts of 1994 provides a threepart reapportionment plan for Tennessee’s ninety-nine house

districts. Plan A, at issue in this case, creates twelvemajority-African-American districts. None of these districts,however, lies in the area that plaintiffs describe as rural westTennessee, which includes Madison, Haywood, Hardeman,Tipton, Fayette, and Lauderdale counties. Chapter 536provides that should a court find that Plan A unlawfullydilutes minority voting strength, Plan B, which createsthirteen majority-African-American house districts, includingone in rural west Tennessee, will take effect. Plan C, whichwould have reinstated the 1992 house redistricting plan hadthe State prevailed on its claim that the 1992 plan compliedwith the Equal Protection Clause, is moot. See Millsaps v.

Langsdon, 510 U.S. 1160 (1994) (affirming the districtcourt’s ruling that the 1992 house redistricting plan violatedthe “one person, one vote” doctrine).

At trial, both parties presented expert testimony regarding

voter behavior in rural west Tennessee. Plaintiffs’ expert, Dr.Steven Cole, analyzed eleven legislative elections which hadboth black and white candidates from 1974 to 1996 usingbivariate ecological regression analysis, and found that theblack preferred candidates lost nine times (82%). Averageblack cohesion was 67%, and average white cohesion was

Nos. 98-6718/6778 Rural Wwhite candidates than those involvAnte at 9. The majority is wise to because “[w]hen white bloc voting candidates, black voters are denied white voters, namely, the opportuntheir own race.” Clarke, 40 F.3d white voters have the opportunity to of all races, yet black voters may oblack voters patently do not enjo[their] candidate of choice on avoters.” Voinovich v. Quilter, 507 

This conclusion does not blu

ultimately concerned with “whcandidates, whatever their race, white bloc voting. Cousin v. Sun

(6th Cir. 1998). It merely recognfound both that a minority group pracial lines, and that whites politiclines in elections involving a memit defies logic for a court to attempa colorblind fashion. In these circuwith race-conscious political actimajority and the black minority, aclearly protects the racial minority of the racial majority. See 42 U.Showever, fails to apply a raceaccounts for acute white bloc votinit may allow less dramatic polelections to obscure the reality of bblack-black elections. It is syllodiscern color-conscious discriminlenses.

The VRA’s command that we 

race when faced with black politwhite bloc voting stems from fempirical realities of race-conscioupresumptions that blacks, or w
18 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

_____________________

CONCURRENCE

_____________________

NATHANIEL R. JONES, Circuit Judge, concurring.

Although I fully concur in the result reached by the majorityand in much of its well-reasoned analysis, I write separatelyto make three points. In concluding that the district court didnot err in finding that whites vote as a bloc usually to defeatthe preferred candidate of blacks in rural west Tennessee, themajority acknowledges that “the Voting Rights Act’sguarantee of equal opportunity is not met when ‘candidatesfavored by blacks can win, but only if the candidates arewhite.’” Ante at 9 (quoting Smith v. Clinton, 687 F.Supp.

1310, 1318 (E.D. Ark. 1988) (three judge panel)). It is on thispresupposition that the majority rests its conclusion that, inthis case, black-white elections are more probative of votedilution than white-white elections. I agree with this holding;however, I think it is necessary to explicate further why itmatters under the Voting Rights Act (“VRA”) when aminority group’s only electable candidates of choice arewhite. I also write separately to note my differences with thedistrict court’s definition of “influence” districts, and themajority’s conclusion that, in certain unspecifiedcircumstances, compliance with § 2 in one area of a state mayoffset vote dilution in another area.

I.

I am of the view that it is wise to explain more fully the

substantive and jurisprudential support animating our holdingthat equal opportunity in voting is not achieved when aminority group may elect representatives of choice when theyare white, but are unsuccessful in electing members of theirown group. See id.; see also Clarke v. City of Cincinnati, 40

F.3d 807, 812 (6th Cir. 1994). Based primarily on thispredicate, the majority concludes that the district court did noterr in granting more weight to elections involving black and

Nos. 98-6718/6778 Rural W89%. An analysis of homogenlegislative contests from 1994 to 1980% of whites voted for the white candidates. There were no homBased on this evidence, Dr. Cole ctend to vote as a bloc so as usually choice of African-American voter

The State’s experts, Dr. William 

Gant, analyzed ten black-white lewest Tennessee from 1986 to 1minority—preferred candidates ha(90%). Average black cohesion wcohesion was 86%. Because black equal to white voter turnout in blaelections that had only white candidalso analyzed eleven white-white 1986 to 1996. Adding the resultwhite contests, Drs. Lyons and Gacandidate of black voters was defeone times (52.38%).

While Drs. Lyons and Gant 

minority-preferred candidate usuaresults of state legislative contestwere indicative of minority vote difference in one election would ctherefore examined twenty-four bwhite-white countywide elections black-white contests, they found candidate was defeated thirteen timcountywide elections, the black-ptimes (23%). Combining all the 1986 to 1996, the black-preferred cof fifty times (36%). Noting thaelections were combined with all othe results showed that the black-prtwenty-nine of seventy-one elec
8 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

experts concluded that election results in rural west Tennesseewere not, in general, indicative of minority vote dilution.

After hearing this testimony, the district court held that the

plaintiffs had made a showing sufficient to satisfy the thirdGingles precondition. The district court placed primaryemphasis on the results of the black-white contests and, dueto the significant number of legislative elections analyzed,determined that the results from the countywide contests werenot particularly useful or necessary. In light of its limitedprobativeness, the district court concluded, the white-whiteand countywide evidence was insufficient to overcome thefact that a white voting bloc defeats the minority-preferredcandidate at least 82% of the time in interracial legislativeelections in rural west Tennessee.

On appeal, the State argues that the district court erred. The

State contends, in essence, that the district court was obligedto give equal and controlling weight to white-white and nonlegislative contests in its analysis under the third Ginglesfactor.

C

This court has made clear that white-white elections are

relevant in the analysis of a voting dilution claim. In Cousin

v. Sundquist, we considered a § 2 challenge to the at-largemethod of electing judges utilized by Hamilton County,Tennessee. Cousin, 145 F.3d 818, 820 (6th Cir. 1998). The

plaintiffs’ expert used average cohesion figures from blackwhite elections in connection with voter turnout informationto determine that, in order to succeed in a Hamilton Countyelection, a hypothetical black candidate would need a numberof white crossover votes exceeding the average crossoversuggested by the cohesion figures. Id. at 824. The

defendants’ expert, by contrast, used both black-white andwhite-white election results, identified the minority’spreferred candidate in each, and determined that the whitemajority did not regularly vote in such a way as to deprive

Nos. 98-6718/6778 Rural Welections in the six county area are African-American has ever won osimply overwhelm those factors thTennessee (such as a lack of suresponsive (albeit mainly white) possibility that minority voters in mdistricts will be able to influence district court therefore properly hproved a § 2 violation. The remedy this violation, creation of one mhouse district in rural west Tennessof Plan B of Chapter 536, will take law.

IV

The late Judge Turner ably cons

statistical and anecdotal evidence tChapter 536 unlawfully dilutes strength in rural west Tennessee. the House Plan in future electiondefendants’ motion for a stay penmoot.
16 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

selected because to do so would require us to trade the § 2rights of individual African-Americans in rural westTennessee against those of African-American groupselsewhere in the State.

The State complains that by allowing the plaintiffs to define

the frame of reference for their § 2 claim, we will enablefuture litigants to carve up successively smaller areas of theState until they are able to maximize the number of majorityminority legislative districts—a result not countenanced bythe Voting Rights Act. See De Grandy, 512 U.S. at 1017(“Failure to maximize cannot be the measure of § 2.”). As thedistrict court pointed out, however, the Gingles preconditionsoperate to prevent just the sort of limitlessly small “reversegerrymander” whose specter the State raises here. See, e.g.,Campos v. City of Houston, 113 F.3d 544, 547-48 (5th Cir.1997) (holding that minority group was not sufficiently largeand geographically compact to sustain a § 2 claim). In thisregard, we note that the region selected by the plaintiffs in thiscase is a sensible one—indeed, more sensible than the sevencounty area including Shelby County urged by the State.While Shelby County is the southernmost and westernmostcounty in the State, and, like the six neighboring counties ofrural west Tennessee, has a large African-Americanpopulation, the seven counties do not form a coherentdemographic unit. The African-American population inShelby County is concentrated in inner-city Memphis, and islargely set off from rural west Tennessee by a “buffer zone”of white suburbs. As a result, the African-Americanpopulations in these two areas are not likely to be particularlycohesive. For this reason, the district court properly restrictedthe geographic scope of relevant statistical data to the sixcounties of rural west Tennessee.

Having correctly defined its frame of reference, the district

court made no clear error in weighing the totality of thecircumstances. Rural west Tennessee has an AfricanAmerican voting age population of 31%, but none of its fivehouse districts is majority-African-American. Legislative

Nos. 98-6718/6778 Rural Wblack voters in Hamilton County their candidate of choice. Id. In pof the defense expert, we noted: whether white candidates do or dcandidates, but whether minorwhatever their race, usually lose.” 

While the plain import of Cou

foreclosed from considering electwhite candidates, that case does seems to argue) that white-white entitled to the same weight as thcandidate. As Judge Richard ArnVoting Rights Act’s guarantee of ewhen “[c]andidates favored by blacandidates are white.” Smith v. C1318 (E.D. Ark. 1988) (three judge with others, has accordingly held tbe relevant to a § 2 inquiry under cClarke v. City of Cincinnati, 40 F.3see also, e.g., Nipper v. Smith, 39 F1994) (en banc) (holding that whiconsidered, but are less probative candidates). One such circumstanvoting is “targeted” against black cat 812.

In this case, there is marked e

experts for both the plaintiffs and white voter cohesion in rural west 59% in white-white elections to 86% Perhaps not unrelatedly, no Africaever won an interracial legislative area, despite many candidacies. In a white voting bloc coalesces to frcandidacies, the district court propcandidates in its § 2 analysis, and athe results of black-white election
10 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

Similarly, the district court was correct to discount the

results of countywide contests. The parties stipulated thatlegislative elections were the most legally relevant, and therulings of our sister circuits support the parties’ appraisal.See, e.g., Citizens for a Better Gretna v. City of Gretna, 834

F.2d 496, 502 (5th Cir. 1987) (suggesting that exogenouselections alone cannot prove racially polarized voting, but canbe considered as “additional evidence”). At trial, data werepresented from twenty-one legislative elections over a periodof ten years—a substantial body of evidence. See Jenkins v.Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1130(3d Cir. 1993) (holding that seven elections over a period often years was a suitable sample such that the court coulddiscern the presence of a pattern of white bloc voting usuallydefeating the minority voters’ candidate of choice). The Statenevertheless advocates the inclusion of the countywideelections on the ground that a different outcome in one of theeleven legislative elections in which the preferred candidateof African-Americans was defeated would alter the minorityvote dilution determination. But the record contains noinformation that would allow us to evaluate the claimedmarginal character of the statistics derived from the legislativecontests. More importantly, the State’s claim rests on theassumption that black-white and white-white legislativeelections should be given equal weight. As we have pointedout, however, that assumption is not valid in this case.

In sum, we find no clear error in the district court’s

determination that the plaintiffs have satisfied the thirdGingles precondition. The data from the legislative electionswere sufficiently robust for the district court to discernwhether there existed a pattern of white bloc voting. Whenthe black-white legislative elections are afforded greaterweight, the data show that the white majority votessufficiently as a bloc to enable it usually to defeat theminority’s preferred candidate in rural west Tennessee.

Nos. 98-6718/6778 Rural WCritiquing this “safe harbor” arguremarked on the State’s “unexpsuspect validity:”

that in any given voting jurisdicjurisdiction under consideratiominority voters under § 2 may brights of other members of thUnder the State’s view, the gerrymandering in half of a cdistricts would be irrelevant upolitical gerrymandering in the proportionality was the bottom l

Id. at 1019. Similarly, in Shaw, thCarolina’s argument that a bizarrcongressional district was a narrowviolation elsewhere in the State. S

Finding this position “singularly stated:

If a § 2 violation is proved for a from the fact that individuals opportunity than other membeparticipate in the political representatives of their choice.” The vote-dilution injuries suffernot remedied by creating a safe somewhere else in the State . . . 

. . . To accept that the district m

implies that the claim, and hencan undiluted vote (to cast a ballbelongs to the minority as a individual members. It does no

Id. at 917. Taken together, the a

and Shaw dissuade us from acinvitation to append Shelby Countthe geographical frame of referen
14 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

1The State also challenges the district court’s finding regarding the

history of official discrimination in voting in western Tennessee. Wehave carefully considered this question, and find no error in the districtcourt’s determination.conducting the proportionality analysis.1 The State arguesthat the court should have considered proportionality in theentire state or, in the alternative, in an area that includesShelby County along with the six counties of rural westTennessee. On a statewide basis, there are twelve majorityblack house districts out of a total of ninety-nine, which, theState contends, is substantially proportional to Tennessee’sblack voting age population of 14.4%. In the seven-countyarea that includes Shelby County, the black voting agepopulation is 37.9%; since 42.85% of the house districts aremajority black in that seven-county area, the State says,blacks are in fact overrepresented.

B

In Johnson v. De Grandy, the Supreme Court explicitly left

open the question of the proper frame of reference foranalyzing § 2 claims. De Grandy, 512 U.S. at 1022 (“[W]ehave no occasion to decide which frame of reference shouldhave been used if the parties had not apparently agreed in theDistrict Court on the appropriate geographical scope foranalyzing the alleged § 2 violation and devising its remedy.”).Nevertheless, the reasoning in that case, and in Shaw v. Hunt,517 U.S. 899, 917 (1996), persuades us that neither overproportionality in one area of the State nor substantialproportionality in the State as a whole should ordinarily beused to offset a problem of vote dilution in one discrete areaof the State.

In De Grandy, the State of Florida argued that, as a matter

of law, no dilution occurs whenever the percentage of singlemember districts in which minority voters form an effectivemajority mirrors the minority voters’ percentage of therelevant population. De Grandy, 512 U.S. at 1017.

Nos. 98-6718/6778 Rural W

III

Having determined that the pla

Gingles preconditions, we turn to ththe "totality of the circumstances," "diluted" African-American electoAfrican-Americans in rural west Tto elect representatives of their ch

at 811. The Senate Report whicamendments to the Voting Rights Atypically may be relevant to a § voting-related discrimination in subdivision; the extent to which voState or political subdivision is racto which the State or political supractices or procedures that tend tfor discrimination against the unusually large election districts, mand prohibitions against bullet vmembers of the minority group processes; the extent to which minthe effects of past discrimination iemployment, and health, which participate effectively in the politicor subtle racial appeals in political to which members of the minority public office in the jurisdiction. G(citing S. Rep. No. 97-417, at 28notes also that there may be prodemonstrating that elected officiaparticularized needs of the memband that the policy underlying thsubdivision's use of the contestetenuous. Id. at 45. 

The Supreme Court has rece

element—proportionality—to be wcircumstances. In Johnson v. De Gchallenge to Florida’s legislative 
12 Rural West Tennessee, et al.

v. Sundquist, et al.

Nos. 98-6718/6778

Court concluded that § 2 relief should not be granted because,notwithstanding the presence of continued discrimination andracial bloc voting, minority voters were able to form effectivevoting majorities in a number of legislative districts that wereroughly proportional to their respective shares in the votingage population. De Grandy, 512 U.S. 997, 1024 (1994). TheCourt emphasized, however, that proportionality is not a “safeharbor :” “the degree of probative value assigned toproportionality may vary with other facts. No single statisticprovides courts with a shortcut to determine whether a set ofsingle-member districts unlawfully dilute minority votingstrength.” Id. at 1020-21.

A

The district court found that the totality of the

circumstances indicated that the House Plan unlawfullydilutes minority voting strength in rural west Tennessee.Beginning with the two factors that the Supreme Court hasdeclared are the most important in balancing the totality of thecircumstances, see Gingles, 478 U.S. at 48 n.15, the court

found that no African-American had been elected to the statelegislature from the six-county area, and that the experts at thetrial agreed that voting in the area is racially polarized. Thecourt next took judicial notice of findings from the SenatePlan cases, RWTAAC I & II, regarding the history and effectof discrimination in voting in western Tennessee. The courtin the Senate Plan cases had recounted the entire history ofofficial discrimination from the pre-Civil War era, a timeframe whose use we disapproved of in the Cousin case, 145F.2d at 832, but went on to cite two cases from the 1980swhich indicate that voting rights violations by public officialsin rural west Tennessee are ongoing. See Taylor v. HaywoodCounty, 544 F. Supp. 1122, 1131 (W.D. Tenn. 1982) (holdingthat change to an at-large election scheme was a result ofpurposeful intention to dilute black voting strength); Bills v.Alexander, No. 83-12220 (W.D. Tenn. 1983) (approvingsettlement setting up a new system to ensure the opportunityof black citizens to participate meaningfully in the political

Nos. 98-6718/6778 Rural Wprocess). The court concluded ongoing violations, African-Adisadvantages in such areas as edhealth.

The district court further found th

Representatives was responsive to in the rural western part of the statcourt has laid heavy emphasis in F.3d at 833. The district court quemaintaining municipal boundariconfiguring the legislative distrifractured certain cities. Under the hfactors, the court concluded that suspect electoral practices, raccampaigns, or a slating process or prevent minority candidacies.

Turning to the question of propo

noted that blacks make up 31population of the six counties Tennessee, but that none of the fivthat area contains a majority of acknowledged that in four of thmembers make up 25-55% of the pmeaningfully affect election outcobut concluded that in the absence district, this fact had little probativthe lack of proportionality with tSenate Report, the court concludewest Tennessee do not have equal process. 

The State’s primary quarrel 

concerns the geographical area on